InfoBytes Blog
Filter
Subscribe to our InfoBytes Blog weekly newsletter and other publications for news affecting the financial services industry.
FTC settles with Belizean bank over real estate scheme
On September 24, the FTC announced a proposed $23 million settlement with a Belizean bank resolving allegations that it assisted various entities in deceiving U.S. consumers into purchasing parcels of land in a luxury development in Belize. As previously covered by InfoBytes, in November 2018, the FTC filed charges and obtained a temporary restraining order against the operators of an international real estate investment scheme, which allegedly violated the FTC Act and the Telemarketing Sales Rule by advertising and selling parcels of land through the use of deceptive tactics and claims. The FTC asserted that consumers who purchased lots in the development purchased them outright or made large down payments and sizeable monthly payments, including HOA fees, and that defendants used the money received from these payments to fund their “high-end lifestyles,” rather than invest in the development. The FTC argued that “consumers either have lost, or will lose, some or all of their investments.” At the time, the FTC filed separate charges against the Belizean bank for allegedly assisting and facilitating the scam.
According to the FTC, the bank has now agreed to the proposed consent order to settle the allegations. The consent order requires the bank to pay $23 million, which will be used to provide equitable relief, including consumer redress, and to cease all non-liquidation business activities permanently. Additionally, the consent order prohibits the liquidator or anyone else from seeking to re-license and operate the bank’s business. The consent order must be approved by the U.S. District Court for the District of Maryland.
FTC lawsuits allege student loan scams
On September 12, the FTC announced two separate suits filed in the U.S. District Court for the Central District of California against various entities and individuals who allegedly engaged in deceptive practices when promoting student loan debt relief schemes.
In the first complaint, filed jointly with the Minnesota attorney general, a debt relief company and its owners (collectively, the “Minnesota defendants”) were alleged to have violated the FTC Act, TILA, the Telemarketing Sales Rule (TSR), and various state laws, by charging consumers who sought student loan payment reduction programs an advance fee of over $1,300 while falsely representing that the payment would go toward their student loans. The advance fee, the FTC contends, was allegedly financed through high-interest loans from a third-party finance company identified as a co-defendant in both complaints. The stipulated order entered against the Minnesota defendants prohibits them from, among other things: (i) making material misrepresentations related to their financial products and services, or any other kind of product or service; (ii) making unsubstantiated claims about their financial products and services; (iii) engaging in unlawful telemarketing practices; or (iv) collecting payments on accounts sold prior to the order’s date. The stipulated order also requires the Minnesota defendants to notify its customers that none of their prior payments have gone towards a Department of Education repayment program or towards their student loans, and orders the payment of $156,000, with the total judgment of approximately $4.2 million suspended due to inability to pay.
The FTC filed a second complaint against a separate student loan debt relief operation for allegedly engaging in deceptive and abusive practices through similar actions, including charging consumers advance fees of up to $1,400 and enrolling consumers in the same finance company’s high-interest loan program. The action against the second student loan debt relief operation is ongoing.
Both complaints also charge the finance company with violating the assisting and facilitating provision of the TSR by providing substantial assistance to both sets of defendants even though it knew, or consciously avoided knowing, that they were engaging in deceptive and abusive telemarketing practices. The FTC also alleges that the finance company violated TILA when it failed to clearly and conspicuously make certain required disclosures concerning its closed-end credit offers. Separate stipulated orders were entered by the FTC in each case (see here and here) against the finance company. The orders’ terms require the finance company to pay a combined $1 million out of a nearly $28 million judgment, with the rest suspended due to inability to pay, as well as relinquish its rights to collect on any outstanding loans. Among other things, the orders also permanently ban the finance company from engaging in transactions involving secured or unsecured debt relief products and services or making misrepresentations regarding financial products and services.
District Court: FTC allegations against credit card processor can proceed
On August 28, the U.S. District Court for the District of Arizona denied motions to dismiss an enforcement action brought by the FTC against a group of individuals and entities that allegedly facilitated a telemarketing scheme that previously resulted in the principal actors in the scheme settling with the FTC and later pleading guilty to state criminal charges. The alleged scheme involved “credit card laundering”—the creation of fictitious entities to process customer credit card transactions so that the actual entity receiving the funds would not be identified. The defendants in the current matter are an Independent Sales Organization and several of its officers allegedly involved in that effort (prior Info Bytes coverage here). The defendants first argued that the relevant part of the FTC Act only permits injunctive relief and that the FTC’s requests for restitution and disgorgement were improper because those forms of relief are penalties, not equitable relief, under Kokesh v. Securities and Exchange Commission. The court noted, however, that the Supreme Court in Kokesh expressly limited the holding to the question of the statute of limitations applicable to the SEC, and that the Ninth Circuit has subsequently approved decisions granting restitution and disgorgement under the FTC Act. The defendants also argued that injunctive relief was not warranted where the unlawful conduct in question ceased in 2013, but the court ruled that the FTC need only show that it has “reason to believe” that a defendant is violating or is about to violate the law. The court declined to address the FTC’s argument that its “reason to believe” decision is unreviewable, but it found that the FTC had pled sufficient facts to establish that it has reason to believe that the defendants would violate the statute. In particular, the court noted that a “court’s power to grant injunctive relief survives the discontinuance of illegal conduct,” that “an inference arises from illegal past conduct that future violations may occur,” and that “courts should be wary of a defendant’s termination of illegal conduct when a defendant voluntarily ceases unlawful conduct in anticipation of formal intervention.” Those factors were all present, along with the fact that the defendants “remain in the same professional occupation.”
FTC settles with lead generator
On August 27, the FTC announced a settlement with an Illinois-based educational services company and its subsidiaries (defendants) to resolve deceptive marketing allegations in violation of the FTC Act and the Telemarketing Sales Rule. In the complaint, the FTC claimed the defendants used third-party lead generators that posed as military recruiters or job-finding services to encourage consumers to provide contact information via websites. The websites did not clearly inform the consumers that the personal information entered into online forms might be sold or used in training or educational programs. Rather, the FTC asserted that the lead generators falsely informed consumers that their information would not be shared. According to the FTC, the defendants then purchased these leads to call consumers in an attempt to enroll them in post-secondary schools, with many of these calls made to consumers on the National Do Not Call Registry. While the defendants did not carry out the deceptive practices to generate the leads, the FTC stated that the defendants established control over the marketing materials and reviewed telemarketing scripts that allegedly directed lead generators to falsely identify themselves as military recruiters. The FTC’s press release emphasized that “[t]his case demonstrates that the FTC will seek to hold advertisers liable for the deceptive or illegal practices of their affiliates, publishers, or other lead generators. We expect companies purchasing leads to implement strong vendor management programs and stay on the right side of the law.” Under the terms of the settlement, the defendants are: (i) ordered to pay $30 million; (ii) required to implement a system to review any marketing materials used by lead generators; (iii), prohibited from calling numbers on the National Do Not Call Registry without obtaining written consent; and (iv) banned from falsely stating that they represent the military or prospective employers.
FTC, Ohio AG halt payment processor and credit card interest-reduction telemarketing operations
On July 29, the FTC and the Ohio attorney general announced temporary restraining orders and asset freezes issued by the U.S. District Court for the Western District of Texas against a payment processor and a credit card interest-reduction telemarketing operation (see here and here). According to the FTC, the payment processor defendants allegedly violated the FTC Act, the Telemarketing Sales Rule (TSR), and various Ohio laws by, among other things, generating and processing remotely created payment orders or checks that allowed merchants—including deceptive telemarketing schemes—the ability to withdraw money from consumers’ bank accounts. The FTC asserted that the credit card interest-reduction defendants deceptively promised consumers significant credit card interest rate reductions, along with “a 100 percent money back guarantee if the promised rate reduction failed to materialize or the consumers were otherwise dissatisfied with the service.” However, the FTC claimed that most customers never received the promised rate reduction, were refused refund requests, and often received collection or lawsuit threats. Additionally, the credit card interest-reduction defendants allegedly violated the TSR by charging advance fees, failing to properly identify the service in telemarketing calls, and failing to pay to access the FTC’s National Do Not Call Registry.
FTC seeks permanent injunction against student loan debt relief operation
On July 11, the FTC announced it was charging a student loan debt relief operation with violations of the FTC Act and the Telemarketing Sales Rule for allegedly engaging in deceptive practices when marketing and selling their debt relief services. The complaint alleges the operators of the scheme allegedly, among other things, (i) charged borrowers illegal advance fees; (ii) falsely claimed they would service and pay down their student loans; and (iii) obtained borrowers’ credentials in order to change consumers’ contact information and prevent communications from loan servicers. According to the FTC, the defendants allegedly collected more than $23 million from consumers, and when asked why their payments were not being applied to their loans, the defendants “informed consumers that their entire payments had been collected as ‘handling’ or ‘management’ fees.” On July 10, the U.S. District Court for the Central District of California issued a temporary restraining order and asset freeze at the FTC’s request. The FTC seeks a permanent injunction against the defendants to prevent future violations, as well as redress for injured consumers through “rescission or reformation of contracts, restitution, the refund of monies paid, and the disgorgement of ill-gotten monies.”
CFPB settles lawsuit against debt settlement provider
On July 9, the CFPB announced a $25 million settlement with the nation’s largest debt settlement provider to resolve allegations that the company engaged in deceptive acts and practices in violation of the Telemarketing Sales Rule and the Consumer Financial Protection Act. As previously covered by InfoBytes, in 2017 the Bureau claimed, among other things, that the company (i) misled consumers about its ability to negotiate with creditors that the company knew maintained policies against working with settlement companies; (ii) charged advance fees without settling consumers’ debts; and (iii) failed to inform consumers about their rights to refunds from their deposit accounts if they left the settlement program. The proposed stipulated final judgment and proposed order requires the company to pay $20 million in restitution to affected consumers and a $5 million civil money penalty (CMP), in addition to providing certain upfront disclosures to consumers before enrollment. The settlement further enjoins the company from engaging in the alleged unlawful conduct in the future and stipulates that $493,500 of the CMP will be remitted in light of a penalty the company previously paid under a consent order issued by the FDIC in 2018.
Federal and state enforcement agencies coordinate on robocall crackdown
On June 25, the FTC announced a major crackdown on illegal robocalls named “Operation Call it Quits,” which includes 94 enforcement actions from around the country brought by the FTC and 25 other federal, state, and local agencies. In addition to actions targeting the actors, the operation also includes a consumer education initiative and promotion of the development of technology-based solutions to block robocalls and fight caller ID spoofing. In addition to the 87 other enforcement actions brought under the initiatives, the FTC announced four new actions, some of which were filed by the DOJ on the FTC’s behalf, and three new settlements targeting robocallers for violations of the FTC Act and the Telemarketing Sales Rule (TSR), among other things. The FTC alleges many of the actors used illegal robocalls to contact financially distressed consumers regarding interest rate reductions, sell fraudulent money-making opportunities, pitch free medical alert systems, or develop leads for solar energy companies. The affected consumers in these actions were often listed on the Do Not Call Registry. The FTC provided a complete list of the 94 actions brought under Operation Call it Quits.
State Attorneys General participating in the initiative are: Alabama, Arizona, Colorado, Florida, Illinois, Indiana, Michigan, Missouri, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Texas, and Virginia. Additionally, local agencies include: the Consumer Protection Divisions of the District Attorneys for the Counties of Los Angeles, San Diego, Riverside, and Santa Clara, California; the Florida Department of Agriculture and Consumer Services; and the Los Angeles City Attorney.
FTC halts operations of credit-repair company
On June 21, the FTC announced that the U.S. District Court for the District of Connecticut temporarily halted the operation of an alleged credit repair scheme based on allegations the company charged illegal upfront fees and falsely claimed to substantially improve consumers’ credit scores in violation of the FTC Act, the Credit Repair Organizations Act, the Telemarketing Sales Rule (TSR), the Consumer Review Fairness Act, TILA, and the EFTA. According to the complaint, since 2014, the company, among other things, (i) claims they can improve consumers’ credit scores by removing negative items and hard inquiries from credit reports; (ii) charges advance fees for their services; (iii) does not provide the required disclosures for its services, including credit transaction disclosures related to the financing of the service fees; (iv) engages in electronic funds transfers from consumers’ bank accounts without proper authorization; and (v) threatens consumers with legal action after consumers complain about the lack of results. The court order requires the company to temporarily cease its operations and ensures the company’s assets are frozen.
9th Circuit: CFPB structure is constitutional; law firm must comply with CID
On May 6, the U.S. Court of Appeals for the 9th Circuit held that (i) the CFPB’s single-director structure is constitutional, and that (ii) the district court did not err when it granted the Bureau’s petition to enforce a law firm’s compliance with a 2017 civil investigative demand (CID). As previously covered by InfoBytes, the CFPB previously determined that none of the objections raised by the law firm warranted setting aside or modifying the CID, which sought information to determine whether the law firm violated the Telemarketing Sales Rule (TSR) when providing debt-relief services. The law firm contended that the CFPB’s single-director structure was unconstitutional and therefore the CID was unlawful. It argued further that the CFPB lacked statutory authority to issue the CID.
On review, the 9th Circuit held that the for-cause removal restriction of the CFPB’s single director is constitutionally permissible based on existing Supreme Court precedent. The panel agreed with the conclusion reached by the U.S. Court of Appeals for the D.C. Circuit majority in the 2018 en banc decision in PHH v. CFPB (covered by a Buckley Special Alert) stating, “if an agency’s leadership is protected by a for-cause removal restriction, the President can arguably exert more effective control over the agency if it is headed by a single individual rather an a multi-member body.” The 9th Circuit noted that the dissenting opinion of then Court of Appeals Judge Brett Kavanaugh found that the single-director structure was unconstitutional and noted that “[t]he Supreme Court is of course free to revisit those precedents, but we are not.”
The 9th Circuit next addressed the law firm’s argument that the CFPB lacked statutory authority when it issued the CID. The panel held that the TSR “does not exempt attorneys from its coverage even when they are engaged in providing legal services,” and therefore, the Bureau has investigative authority without regard to the Consumer Financial Protection Act’s (CFPA) practice-of-law exclusion. In addition, the panel rejected the law firm’s argument that the CID was vague or overly broad, and stated that the CID fully complied with the CFPA’s requirements and identified the allegedly illegal conduct and violations.