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OCC appeals judgment in NYDFS fintech charter challenge
On April 23, the OCC filed its opening brief in the U.S. Court of Appeals for the Second Circuit to appeal a district court’s final judgment in an NYDFS lawsuit that challenged the agency’s decision to allow non-depository fintech companies to apply for Special Purpose National Bank charters (SPNB charter). As previously covered by InfoBytes, last October the district court entered final judgment in favor of NYDFS, ruling that the SPNB regulation should be “set aside with respect to all fintech applicants seeking a national bank charter that do not accept deposits,” rather than only those that have a nexus to New York State. The judgment followed the court’s denial of the OCC’s motion to dismiss last May (covered by InfoBytes here), in which the court concluded, among other things, that the OCC failed to rebut NYDFS’s claims that the proposed national fintech charter posed a threat to the state’s ability to establish its own laws and regulations, and that engaging in the “business of banking” under the National Bank Act (NBA) “unambiguously requires receiving deposits as an aspect of the business.” Highlights of the OCC’s appeal include:
- The OCC claims that NYDFS lacks standing and that its claims are unripe because its alleged injuries are premised on a non-depository fintech company receiving a SPNB charter and commencing business in the state. However, the OCC has yet to receive even an application. The OCC also argues that NYDFS “would not be prejudiced by waiting to resolve these claims until OCC takes affirmative steps to approve an application” because the period between preliminary conditional approval and final approval would provide “ample opportunity to challenge such an application.”
- The OCC argues that the district court erred in holding that the agency’s decision to accept SPNB charter applications from non-depository fintechs was not entitled to Chevron deference. Specifically, the term “business of banking” under the NBA is “ambiguous” on whether it requires deposit-taking, and the OCC’s resolution of that ambiguity is reasonable as it is consistent with U.S. Supreme Court case law.
- The OCC argues that even if NYDFS’s claims were justiciable (and even if the OCC’s interpretation was not entitled to Chevron deference), any relief NYDFS is entitled to receive must be limited to the state. The OCC contends that the district court’s decision to grant nationwide relief was improper because it is inconsistent with Article III, which establishes that “remedies should not extend beyond what is necessary to redress the plaintiff’s alleged injuries,” as well as equitable principles and the Administrative Procedure Act.
Student loan servicer settles public service loan relief suit
On April 24, a proposed class of borrowers and a national student loan servicer agreed to settle a lawsuit, which alleged the servicer failed to inform the borrowers of a loan forgiveness program for public service employees. The proposed settlement, which was granted final court approval in October, settles the one remaining deceptive acts and practices claim under a section of the New York General Business Law after the U.S. District Court for the Southern District of New York dismissed the rest of the borrowers’ claims last July. The court noted in its order that it did not agree with the servicer’s argument that the claims were preempted by the federal Higher Education Act (HEA), stating that the borrowers “do not seek to impose state law ‘disclosure requirements’ on federal student loans,” but instead “seek to hold [the servicer] liable for affirmative misrepresentations made in the course of performing its duties under various contracts.” According to the court’s order, language under the HEA “does not express the ‘clear and manifest purpose of Congress’ to preempt such claims.”
While the servicer denies any allegations of wrongful conduct and damages, it has agreed to, among other things, put in place enhancements to identify borrowers who may qualify for Public Service Loan Forgiveness and “distribute comprehensive and accurate information about how to qualify, which are meaningful business practice enhancements.” The servicer will also fund a $2.25 million education and counseling program for student loan borrowers in public service.
PPP loan application agent files suit against lenders for compensation
On April 30, an Illinois financial advising and consulting services business (company) filed a putative class action in the U.S. District Court for the Northern District of Illinois against several financial institutions (defendants) claiming that the defendants owe the business certain fees for assisting Paycheck Protection Program (PPP) loan applicants with applying for PPP loans under the CARES Act. The complaint alleges that the PPP SBA regulations specify that the lender must provide compensation of between one quarter of a percent and one percent of a loan’s value to an agent—which includes loan brokers, applicant representatives, consultants, accountants, and attorneys—for preparing PPP loan applications for small business applicants. Additionally, the company states that the PPP regulations prohibit it from collecting application fees directly from small business applicants that it assists. The company alleges that the defendants, in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, failed to compensate it for assisting with the preparation of applications submitted to the defendants for processing. The company seeks certification of the class, disgorgement, and punitive damages, among other things.
9th Circuit: Providing disclosure with employment documents does not violate FCRA
On April 24, the U.S. Court of Appeals for the Ninth Circuit affirmed a district court’s ruling that an employer that obtained a consumer report for employment purposes did not violate the FCRA when it provided disclosure simultaneously with other documents and failed to use a standalone document for the FCRA authorization. The plaintiff, a former employee, alleged that during the hiring process, applicants were presented with employment documents and were required to sign two forms related to consumer reports: (i) a separate “disclosure” form that informed applicants that the employer could obtain reports pertaining to their employment record, drug tests, and driving record; and (ii) an “authorization” form appearing at the end of the application, which authorized the employer or its agent or subsidiary to investigate the applicant’s previous employment record. The plaintiff’s suit alleged that the forms violated the FCRA’s standalone disclosure requirement because the defendant presented the forms at the same time as other application materials and failed to place the authorization on a standalone document. The district court granted summary judgment to the defendant.
On appeal, the 9th Circuit rejected the plaintiff’s argument, concluding that there is nothing that prohibits an employer from “providing a standalone FCRA disclosure contemporaneously with other employment documents.” While the 9th Circuit acknowledged that the FCRA requires a disclosure form to contain nothing more than the disclosure itself, “no authority suggests that a disclosure must be distinct in time, as well.” With respect to the authorization, the appellate court rejected the argument that it violated the FCRA because “the authorization subsection of FCRA lacks the disclosure subsection’s standalone document requirement” and only requires that the authorization be in writing.
U.S. Supreme Court announces May oral arguments to be delivered via teleconference
On April 28, the U.S. Supreme Court announced that on May 4-6 and 11-13, the Court will hear a number of the oral arguments that were previously postponed for March and April due to the Covid-19 pandemic. Counsel will present arguments to the Court via telephone conference as the Chief Justice prompts them, and the next case will follow immediately after the first ends.
SEC charges company and CEO for misleading statements concerning N95 masks
On April 28, the SEC announced that it filed suit in the U.S. District Court for the Southern District of Florida against a company and its CEO (defendants) for violating the Securities Exchange Act of 1934 by making false and misleading statements concerning their ability to source and supply N95 masks for the Covid-19 virus. The SEC alleges that the defendants’ actions sought to mislead investors because they “never had either a single order from any buyer to purchase masks, or a single contract with any manufacturer or supplier to obtain masks, let alone any masks actually in its possession.” Following regulatory inquiries (and an SEC March 26 order that temporarily suspended trading in the securities of the company), the SEC alleges in the complaint that the CEO issued a press release stating that the company never had masks available to sell. The SEC seeks injunctive relief and civil penalties against the defendant, as well as an officer-and-director bar against the CEO.
5th Circuit affirms summary judgment in FCRA case
On April 22, the U.S. Court of Appeals for the Fifth Circuit affirmed a district court’s dismissal of an FCRA action, holding that the plaintiff failed to prove that his alleged injuries were the result of the defendants’ actions. According to the opinion, the plaintiff alleged that a financial institution wrongfully reported a payment delinquency on his retail credit card, which he claimed caused the subsequent denial of a loan application. Upon learning of the denial, the plaintiff disputed the late-payment notation with three credit reporting agencies (CRAs). Prior to the district court’s judgment, the plaintiff settled with the retailer, the financial institution, and one of the three CRAs. The remaining two defendant CRAs reinvestigated the delinquency with the financial institution, confirmed the information, and notified the plaintiff of the result of their investigation. The plaintiff argued that the CRAs “failed to conduct a reasonable investigation” because they never directly contacted the retailer about the disputed late payment. However, the district court held that that the CRAs’ reliance on the Automated Consumer Dispute Verification (ACDV) system to investigate the dispute and confirm the information was “generally acceptable.”
On appeal, the 5th Circuit agreed with the district court that the plaintiff “offered no reasonable factual basis” for why the CRAs “should have been on notice of a need to go beyond the ACDV system as to this dispute.” The appellate court further agreed that the plaintiff was unable to show that contacting the retailer would have changed the CRAs’ conclusions about the information they already possessed. Finally, the 5th Circuit held that the plaintiff had shown no evidence that the denial of his loan application was a direct result of the CRAs’ actions because, as the district court concluded, the loan application was denied because of a credit report from the CRA that had previously settled with the plaintiff and was no longer a party to the suit.
Class actions accuse banks of prioritizing existing customers and high-dollar loans
On April 23, a small business filed a class action lawsuit in the U.S. District Court for the Central District of California against a large bank for allegedly ignoring the CARES Act’s Paycheck Protection Program (PPP) “regulations for administering, processing, and handling” loan applications. The complaint claims that the bank disregarded a requirement to process loans in the order that they were submitted, and also contends that the bank made false and misleading statements to conceal the fact that high dollar loans were moved to the front of the processing queue in order for the bank to obtain higher fees. The class action seeks certification of the class, injunctive relief, disgorgement, and punitive and statutory damages, among other things.
On April 22 in a separate class action based on similar facts and allegations, a small business owner filed a motion for a temporary restraining order and preliminary injunction against a different large bank. The business owner filed the motion in the U.S. District Court for the Southern District of Texas, Houston Division to prevent the bank from applying “illegal eligibility requirement[s]” to the Small Business Administration-guaranteed PPP loans. The motion claims that the bank was only processing loan applications from the bank’s existing business customers in disregard for the CARES Act and Interim Final Rule instruction to administer the PPP loans to all customers, existing and new. In addition to the temporary restraining order and a preliminary injunction, the motion requests that the bank issue a public statement that their existing business customer eligibility requirement is no longer in effect. In an order issued on April 29, the court denied the business owner’s motion for a temporary restraining order and deferred ruling on the preliminary injunction until after a hearing.
6th Circuit affirms access-device fraud and identity theft convictions
On April 17, the U.S. Court of Appeals for the Sixth Circuit affirmed a district court’s access-device fraud and aggravated identity theft convictions, finding that there was sufficient evidence to support the court’s factual findings on both charges. According to the opinion, the defendant applied for a debit card for his great-grandfather’s bank account without authorization and used the card to pay for his own expenses. The defendant was also seen multiple times on bank security cameras withdrawing money from an ATM using this card. The district court also heard testimony that the defendant opened accounts and applied for loans under his own name but used his great-grandfather’s social security number. The district convicted the defendant on one count of access-device fraud and two counts of aggravated identity theft. The defendant appealed, arguing that the district court failed to make adequate findings of fact and that the government failed to present sufficient evidence to support the charges for which he was convicted.
On appeal, the 6th Circuit reviewed the factual findings underlying the convictions, and first concluded that, with respect to the count of access-device fraud, the government proved each element: that the defendant (i) knowingly used an access device assigned to another individual; (ii) possessed an intent to defraud; (iii) obtained a thing or things with an aggregate value of $1,000 or more within a year using the access device; and (iv) affected interstate or foreign commerce in using the access device. The appellate court explained that there was ample circumstantial evidence to support lack of authorization from the proper owners of the accounts at issue, and that the card was issued in Kentucky and the bank issuing the card was headquartered in Minnesota. The appellate court next considered whether evidence supported the district court’s finding that the defendant committed aggravated identity theft under the bank-fraud statute by opening a checking account and applying for a loan using his great-grandfather’s social security number. The appellate court held that the defendant’s use of his great-grandfather’s social security number properly supported the district court’s finding that the defendant knowingly used, without lawful authority, another person’s means of identification and that the defendant committed a predicate felony under the bank-fraud statute.
District court says $267 million robocall verdict is not unconstitutionally excessive
On April 17, the U.S. District Court for the Northern District of California issued an order granting in part and denying in part several motions pertaining to a class action lawsuit, which accused a debt collection agency (defendant) of violating the TCPA, FDCPA, and the California Rosenthal Fair Debt Collection Practices Act by using repeated robocalls and pre-recorded voices messages to collect debt. As previously covered by InfoBytes, last September the court entered a $267 million final judgment against the defendant, consistent with a jury’s verdict that found the defendant liable for violating the TCPA by making more than 500,000 unsolicited robocalls using autodialers. Under the terms of the judgment each class member was awarded $500 per call. The defendant argued that the award was unconstitutionally excessive and violated due process, and requested that the court reduce the per violation amount. The court was unpersuaded and upheld the judgment, stating that the defendant failed to identify (and the court could not find) any “Ninth Circuit authority on how a district court should reduce damages that are found to be unconstitutionally excessive.” While acknowledging that the award was “significant,” the court stated that it also “evidences the fervor with which the United States Congress was attempting to regulate the use of autodialers for non-consensual calls” and that “the unilateral slashing of an award does not only ignore the plain words of the statute, the task is devoid of objectivity.” Among other actions, the court granted the defendant’s request to amend the final judgment to reflect that allegations concerning “willful and/or knowing violations of the TCPA” were dismissed with prejudice and that the defendant succeeded at summary judgment on the FDCPA and state law claims. However, the court denied the defendant’s request to release any surplus or residue amounts not distributed to a class member back to the company. The court also approved the class counsel’s motion for more than $89 million in attorneys’ fees and non-taxable costs of $277,416.28, and awarded the named plaintiff a $25,000 service award.