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FTC reaches settlements with student debt relief operators
On September 28, as part of Operation Game of Loans, a coordinated effort between the FTC and state law enforcement, the FTC announced settlements with several individuals and their associated companies (defendants), accused of violating the FTC Act and the Telemarketing Sales Rule when marketing and selling student debt relief services. According to the FTC, the defendants, among other claims: allegedly (i) misrepresented to consumers that they were affiliated with the Department of Education or a borrower’s loan servicer; (ii) claimed that consumers who paid an up-front fee—as much as $1,000 according to the FTC’s complaint—would qualify for or be approved to receive permanently reduced monthly payments or have their student loans forgiven or discharged; and (iii) engaged in deceptive advertising practices through social media, falsely claiming they could qualify, establish eligibility for, approve, or enroll consumers in loan forgiveness programs.
Under the terms of the settlements, the defendants are permanently banned from advertising, marketing, promoting, offering for sale, or selling any type of debt relief products or services—or from assisting others to do the same. The defendants also are prohibited from making misrepresentations related to financial products and services. Combined, the settlements total more than $19 million in monetary judgments, all of which have been partially suspended due to the defendants’ inability to pay the entire amount of their respective judgments. The more than $5 million in unsuspended amounts may be used for equitable relief, including consumer redress.
New York Attorney General sues nine student debt relief companies
On September 20, the New York Attorney General announced a lawsuit against nine student loan debt relief companies, along with their financing company, and two individuals (collectively, “defendants”), alleging that the defendants fraudulently, deceptively, and illegally marketed, sold, and financed student debt relief services to consumers nationwide. Among other things, the complaint alleges that the defendants (i) sent direct mail solicitations to consumers that deceptively appeared to be from a governmental agency or an entity affiliated with a government agency; (ii) misrepresented that they would apply fees paid by borrowers to student loan balances; (iii) charged consumers over $1,000 for services that were available for free; (iv) requested upfront payments in violation of federal and state credit repair and debt relief laws; (v) charged usurious interest rates; and (vi) provided consumers with “incomplete and harmful advice,” such as counseling borrowers to consolidate federal student loans without explaining that in certain circumstances borrowers could “lose months or years of loan payments they had already made that would qualify toward forgiveness of their loans under the Public Service Loan Forgiveness Program.” The New York Attorney General maintains that these practices violated several federal and state consumer protection statutes, including the Telemarketing Sales Rule, New York General Business Law, the state’s usury cap on interest rates as covered by New York Banking Law and New York General Obligations Law, disclosure requirements under the Truth in Lending Act, and the Federal Credit Repair Organization Act.
FTC halts fraudulent telemarketing scheme in Arizona
On July 31, the FTC announced that it had successfully halted a $3 million telemarketing scheme, which falsely promised to obtain grants for consumers in exchange for the upfront payment of fees. The FTC alleges the Arizona-based defendants charged consumers upfront fees ranging from $295 to $4,995 and promised to obtain $10,000 or more in government, corporate, or private grants that could help the consumers pay off personal expenses such as medical bills. However, “most, if not all,” consumers ultimately received nothing in return and the defendants often changed the company name once they received consumer complaints or state attorney general notices, or once they lost merchant accounts.
On July 16, the FTC filed a now-unsealed complaint with the U.S. District Court for the District of Arizona. The FTC simultaneously sought a temporary restraining order (TRO), which the court granted the following day. Among other things, the TRO prohibits the defendants from: (i) conducting similar business activities; (ii) violating the Telemarketing Sales Rule; and (iii) using or disseminating consumer information obtained through the fraudulent activities. Additionally, the TRO freezes the defendants’ assets and places the companies in receivership until relief is determined.
FTC files complaint against two operations allegedly responsible for making billions of illegal robocalls
On June 5, the FTC announced charges filed against two individuals and their related operations (defendants) for allegedly facilitating billions of robocalls to consumers across the country through a telephone dialing platform in violation of the FTC Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, and the Telemarketing Sales Rule. According to the complaint filed in the U.S. District Court for the Central District of California, the alleged misconduct—dating back to 2001—centered around the principal and owner of a group of companies that operated and developed a computer-based telephone dialing platform, and a second individual defendant and his group of call center businesses that paid for the development and use of software designed to make autodial telephone calls and deliver prerecorded messages. The FTC alleged that for many years the two individual defendants jointly owned and operated businesses that resold access to a “bundle of services”—referred to as a “one-stop-shop for illegal telemarketers”—that provided, among other things, (i) servers to host the autodialing software, as well as the physical space housing the servers; and (ii) the ability to make calls using “spoofed” caller ID numbers, which made it look as if the calls came from a consumer’s local area code. According to the FTC, this “bundle of services” became so widely used within the industry that it has been named in at least eight other FTC lawsuits centered on the facilitation of unlawful calls. Among other things, the charges against the defendants include assisting with illegal robocalls, calling with prerecorded messages, calling numbers on the National Do Not Call Registry, calling with spoofed caller IDs, and abandoning calls. The FTC seeks civil monetary penalties, a permanent injunction against the defendants to prevent future violations, and reimbursement of costs for bringing the action.
District Court holds that FTC investigation and initiation of enforcement proceedings do not qualify as final agency actions subject to judicial review
On May 29, the U.S. District Court for the Northern District of California granted the FTC’s motion to dismiss a declaratory-judgment action filed by several California-based companies that provide student loan processing services, along with their CEO/primary shareholder (plaintiffs). In August 2017, having allegedly learned that the FTC “was in the final process of gathering information to file a lawsuit against one or more of [the] [p]laintiffs on the purported and factually unsupportable basis that the [c]ompanies made misrepresentations to consumers” and violated the TSR’s debt relief service provision, the plaintiffs filed for instant declaratory relief under the Declaratory Judgment Act, seeking a declaration that the Telemarketing Sales Rule’s (TSR) debt relief provisions did not apply to them or, alternatively, that they were in compliance with the provisions. In February 2018, the FTC filed an enforcement action against the plaintiffs alleging that their collection of fees in advance of providing services violated the FTC Act and the TSR, and seeking injunctive and equitable relief. The FTC also moved to dismiss the plaintiffs’ declaratory judgment for lack of subject-matter jurisdiction.
According to the order granting the FTC’s motion, the court agreed with the FTC that the Administrative Procedure Act (APA)—not the Declaratory Judgment Act—is the exclusive, proper vehicle to obtain judicial review of a federal agency’s action. The court then held that the plaintiffs failed to satisfy the two prerequisites for judicial review under the APA, that (i) the agency’s actions constitute as a “final” agency action, and (ii) there exists no other adequate remedy in court. Specifically, the court found that the plaintiffs failed to demonstrate that the FTC’s “investigation into the lawfulness of the [plaintiffs’] actions and initiation of enforcement proceedings” qualified as a “final” agency action subject, and that the plaintiffs’ alternative “adequate remedy” was to be had in the enforcement action brought against them by the FTC, where they would be able to present all of the same defenses and arguments they sought to advance in their declaratory judgment action.
Court enters default judgment in favor of CFPB against debt relief companies
On May 22, the U.S. District Court for the District of Maryland entered a default judgment, in favor of the CFPB, against two debt relief companies, their service provider, and their owners (defendants) for allegedly misleading consumers about their debt validation program. As previously covered by InfoBytes, the CFPB filed a complaint in October 2017 against the defendants for allegedly violating the Telemarketing Sales Rule and the Consumer Financial Protection Act by, among other things, purportedly claiming to be affiliated with the federal government and misrepresenting the abilities of their services. In granting the CFPB’s request for default judgment, the court held that the defendants failed to defend the action and ordered they pay almost $5 million in restitution, as well as $16 million in civil money penalties. In addition to the fines, the defendants are prohibited from engaging in telemarketing, debt relief and credit repair activities in the future.
District Court partially denies defendants’ time-barred claims, rules certain TSR violations may proceed
On May 3, the U.S. District Court for the Central District of California addressed time-barred claims raised by a group of affiliated law firms and their managing attorneys (defendants) that partnered with a now-defunct entity to offer debt relief services to consumers. The court granted in part and denied in part defendants’ request for summary judgment after determining that many of the allegedly improper up-front fees charged to consumers seeking debt relief were collected within the three-year statute of limitations for enforcement actions. As previously covered in InfoBytes last January, the CFPB claimed, among other things, that the defendants violated the Telemarketing Sales Rule (TSR) by allegedly assisting a different, now-defunct debt relief service company with charging up-front fees. Last May, the district court denied the defendants’ bid for dismissal but at the time “declined to resolve the parties’ dispute over the applicable statute of limitations.” While the CFPB agreed to limit its request for relief to the three years preceding the filing of the suit, the defendants filed a motion for summary judgment arguing that the entire action should be barred because the alleged violations relate to a “singular scheme” discovered by the CFPB in 2012. However, according to the court, federal consumer financial law states that “any violations of the TSR that occur within the relevant limitations period are not time-barred.” Therefore, because the CFPB provided evidence that fees were collected in 2015—well within the applicable statute of limitations—the defendants’ request as to violations of the TSR that allegedly occurred within three years of the filing is denied. Notwithstanding, the court granted part of the defendants’ request for summary judgment and barred all claims related to conduct that occurred outside the three-year window because the CFPB did not oppose the motion.
FTC reaches $45.5 million settlement with companies over illegal telemarketing calls
On March 16, the FTC and three Utah-based movie companies (defendants) agreed to a proposed stipulated final order settling charges that they violated the FTC Act and the Telemarketing Sales Rule (TSR). In 2011, the DOJ filed a complaint on behalf of the FTC, which alleged defendants engaged in abusive telemarketing practices by making more than 117 million deceptive and unlawful calls to consumers to pitch movies and induce DVD sales in violation of the TSR, including 99 million calls to numbers on the Do Not Call Registry. In 2016, a federal court jury found the defendants guilty of six TSR violations and collectively responsible for the more than 117 million unlawful calls alleged in the complaint. The jury additionally found that the defendants had “actual or implied knowledge of the TSR violations,” meaning that the court was allowed to assess civil penalties under the FTC Act. According to the FTC’s press release, this was the first-ever jury verdict in an action to enforce the TSR and DNC Registry rules.
The proposed stipulated final order bans the defendants from engaging in the alleged misconduct, orders the defendants to train and monitor its solicitors to ensure compliance with the TSR, and imposes a $45.5 million civil money penalty, of which $487,735 is suspended unless it is determined that the financial statements defendants submitted to the FTC contain any inaccuracies.
FTC settles credit card laundering lawsuit
On March 9, the FTC entered into a settlement with a credit card merchant and its individual officer (collectively, “defendants”) relating to an allegedly deceptive credit card telemarketing operation. According to the FTC’s amended complaint, the defendants violated the FTC Act and the Telemarketing Sales rule by assisting a telemarketing company in masking its identity by processing the company’s credit card payments through multiple fictitious companies. The FTC previously had banned the telemarketing company from selling fraudulent “work-at-home” opportunities in 2015. The settlement, among other things, prohibits the defendants from processing payments or acting as an independent sales organization. The order also stipulates a judgment of approximately $1.3 million, which will be suspended unless it is determined that the financial statements defendants submitted to the FTC contain any inaccuracies.
10th Circuit upholds TCPA statutory damages as uninsurable under Colorado law
On February 21, the U.S. Court of Appeals for the 10th Circuit affirmed a district court’s decision that under Colorado law, an insurance company had no duty to indemnify and defend its insured against TCPA claims seeking statutory damages and injunctive relief. According to the appellate opinion, the FTC and the states of California, Illinois, North Carolina, and Ohio sued a satellite television company for violations of the TCPA, Telemarking Sales Rule (TSR), and various state laws for telephone calls made to numbers on the National Do Not Call Registry (FTC lawsuit). The FTC lawsuit sought statutory damages of up to $1,500 per alleged violation and injunctive relief. The defendant requested that its insurer defend and indemnify it for the claims pursuant to existing policies. The insurance company filed a complaint for declaratory judgment, seeking a declaration that it need not defend or indemnify the company in the FTC lawsuit. The district court determined that there was no coverage for several reasons, including: (i) that the statutory TCPA damages were a “penalty,” rendering them uninsurable under Colorado law; and (ii) that the injunctive relief sought did not qualify as damages under the policies’ definition. The 10th Circuit Court of Appeals affirmed both holdings, concluding that no coverage existed.