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Financial Services Law Insights and Observations


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  • Company to pay $45 million to SEC, states for unregistered crypto-lending product


    On January 19, the SEC charged a Cayman Islands digital asset firm for allegedly failing to register the offer and sale of its retail crypto-asset lending product. According to the SEC’s cease-and-desist order, the company’s product allowed U.S. investors to tender certain crypto assets with the company, which were then deposited in interest-yielding accounts and used by the company to generate income and fund interest payments to investors.

    The SEC maintained that the company’s product was marketed as an opportunity for investors to earn interest on their crypto assets, and that company actions “included staking, lending, and engaging in arbitrage on purportedly ‘decentralized’ finance platforms; investing in certain crypto assets; loaning funds to retail and institutional borrowers; and entering into options and swap contracts with respect to the crypto assets tendered”— resulting in the company acquiring $2.7 billion in assets from approximately 112,000 investors. The SEC found that because the product qualified as a security and did not qualify for an exemption from registration under the Securities Act of 1933, the company was required to register its offer and sale of the product, which it failed to do.

    The company did not admit or deny the SEC’s findings, but agreed to pay $22.5 million to the SEC, and said it would stop offering and selling the unregistered lending product to U.S. investors. The SEC considered remedial actions promptly taken by the company, as well as its cooperation with Commission staff in determining the settlement amount. The SEC reported that the company voluntarily stopped offering its product to new U.S. investors and ceased paying interest on new funds added to existing accounts after the SEC announced charges against a different company that offered a similar crypto investment product. The company also announced that the product would stop being offered in certain states and that it was phasing out all of its products and services in the U.S.

    The company also agreed to pay another $22.5 million to state regulators from California, Kentucky, Maryland, New York, Oklahoma, South Carolina, Vermont, and Washington in a parallel action claiming the company offered interest-earning accounts without first registering the investment products as securities. According to the announcement, the company allegedly failed to comply with state securities registration requirements, and, among other things, deprived investors “of critical information and disclosures necessary to understand the potential risks of the [product].”

    Securities SEC Enforcement Digital Assets Consumer Lending Cryptocurrency State Issues Securities Act

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  • NYDFS issues check-cashing fee regulations

    State Issues

    On January 18, NYDFS announced that it has adopted an updated check cashing regulation. As previously covered by InfoBytes, NYDFS issued a proposed check cashing regulation in June 2022, following an emergency regulation announced in February 2022, that halted annual increases on check-cashing fees and locked the current maximum fee set last February at 2.27 percent (covered by InfoBytes here). The regulation establishes a new fee methodology that evaluates the needs of licensees and consumers who use check cashing services. Two tiers of fees for licensed check cashers are recommended: (i) the maximum fee that a check casher may charge for a public assistance check issued by a federal or state government agency (including checks for Social Security, unemployment, retirement, veteran’s benefits, emergency relief, housing assistance, or tax refunds) is set at 1.5 percent; and (ii) the maximum fee a check casher is permitted to charge for all other checks, drafts, or money orders is $1 or 2.2 percent, whichever is greater. According to NYDFS Superintendent Adrienne Harris, “the existing fee methodology wasn’t just outdated, but inappropriate and punitive to consumers.” She further noted that “[c]heck cashers should not be entitled to automatic, annual fee increases.”

    State Issues Bank Regulatory New York NYDFS State Regulators Check Cashing Fees

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  • States file brief in support of Biden’s student loan debt-relief program


    On January 11, a coalition of 22 state attorneys general from Massachusetts, California, Colorado, Connecticut, Delaware, the District Of Columbia, Hawaii, Illinois, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin, filed an amicus brief with the U.S. Supreme Court in two pending actions concerning challenges to the Department of Education’s student loan debt relief program. At the beginning of December, the Supreme Court agreed to hear the Biden administration’s appeal of an injunction entered by the U.S. Court of Appeals for the Eighth Circuit that temporarily prohibits the Secretary of Education from discharging any federal loans under the agency’s student debt relief plan (covered by InfoBytes here). In a brief unsigned order, the Supreme Court deferred the Biden administration’s application to vacate, pending oral argument. Shortly after, the Supreme Court also granted a petition for certiorari in a challenge currently pending before the U.S. Court of Appeals for the Fifth Circuit, announcing it will consider whether the respondents (individuals whose loans are ineligible for debt forgiveness under the plan) have Article III standing to bring the challenge, as well as whether the Department of Education’s debt relief plan is “statutorily authorized” and “adopted in a procedurally proper manner” (covered by InfoBytes here). Oral arguments in both cases are scheduled for February 28.

    The states first pointed out that under the Higher Education Act, Congress gave the Secretary “broad authority both to determine borrowers’ loan repayment obligations and to modify or discharge these obligations in myriad circumstances.” The Secretary was also later granted statutory authority under the HEROES Act to take action in times of national emergency, which includes allowing “the Secretary to ‘waive or modify any statutory or regulatory provision applicable to the student financial assistance programs’ if the Secretary ‘deems’ such actions ‘necessary’ to ensure that borrowers affected by a national emergency ‘are not placed in a worse position financially’ with respect to their student loans.” The states stressed that while “the magnitude of the national emergency necessitating this relief is unprecedented, the relief offered to borrowers falls squarely within the authority Congress gave the Secretary to address such emergencies and is similar in kind to relief granted pursuant to other important federal student loan policies that have concomitantly advanced our state interests.”

    The states went on to explain that the Secretary tailored the limited debt relief using income thresholds to ensure that “the borrowers at greatest risk of pandemic-related defaults receive critical relief, either by eliminating their loan obligations or reducing them to a more manageable level,” thus meeting the express goal of the HEROES Act to “prevent[] affected borrowers from being placed in a worse position because of a national emergency.” The states also stressed that the Secretary reasonably concluded that targeted relief is necessary to address the impending rise in pandemic-related defaults once repayment restarts. The HEROES Act expressly permits the Secretary to “exercise his modification and waiver authority ‘notwithstanding any other provision of law, unless enacted with specific reference to [20 U.S.C. § 1098bb(a)(1)],” the states asserted, noting that “relevant statutory and regulatory provisions related to student loan repayment and cancellation contain no such express limiting language.”

    Secretary Miguel Cardona issued the following statement in response to the filing of more than a dozen amicus curiae briefs: “The broad array of organizations and experts—representing diverse communities and different perspectives—supporting our case before the Supreme Court today reflects the strength of our legal positions versus the fundamentally flawed lawsuits aimed at denying millions of working and middle-class borrowers debt relief.” A summary of the briefs can be accessed here.

    Courts State Issues State Attorney General Department of Education Student Lending Debt Relief Consumer Finance U.S. Supreme Court Biden Covid-19 HEROES Act Higher Education Act Appellate Fifth Circuit Eighth Circuit

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  • Ohio will grant occupational licenses to applicants experienced in another state

    On January 2, the Ohio governor signed SB 131, which, among other things, requires “an occupational licensing authority to issue a license or government certification to an applicant who holds a license, government certification, or private certification or has satisfactory work experience in another state under certain circumstances.” The Act eases licensing burdens by allowing licensed professionals to apply for and be granted a license to work provided they meet certain criteria. Specifically, a licensing authority shall issue a license or government certification to an applicant if the authority determines that the applicant meets several conditions, including: (i) the applicant holds either a “substantially similar out-of-state occupational license that authorizes the applicant to engage in the same profession, occupation, or occupational activity as the license or government certification for which the applicant is applying in this state” or a “government certification in the same profession, occupation, or occupational activity as the license or government certification for which the applicant is applying in this state from one of the uniformed services or a state that does not issue an out-of-state occupational license for the respective profession, occupation, or occupational activity”; (ii) the applicant possesses a valid out-of-state license for at least one year immediately preceding the date the application is submitted and has been actively engaged in the profession (a licensing authority may choose to waive this requirement); (iii) the applicant is in good standing; (iv) the applicant satisfied minimum education, training, or experience requirements or passed an examination to receive an out-of-state occupational license or government certification (this provision is waived if applicable law does not require these requirements); (v) the applicant has not surrendered or had revoked a license, out-of-state occupational license, or government certification, and does not have any disqualifying criminal history or is the subject of a complaint, allegation, or investigation related to unprofessional conduct or a violation of a law; and (vi) the applicant pays the required fees. The Act also discusses additional pathways for licensure through private certification.

    Licensing State Issues State Legislation Ohio

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  • Credit unions to pay $4 million in GAP fee refunds

    State Issues

    On January 4, the Colorado attorney general announced settlements with two credit unions that will pay a combined $4 million in refunds to borrowers in the state who were entitled to “guaranteed automobile protection” (GAP) fee refunds. An investigation conducted by the Consumer Protection Section of the Colorado Department of Law found that the credit unions historically failed to refund unearned GAP fees owed to consumers. According to the state, the credit unions act as creditors by purchasing retail installment sales contracts from auto dealers that include GAP purchased by Colorado consumers. The state explained in its announcement that borrowers pay the full GAP fee when they purchase a car (the fee is typically only earned gradually over the loan’s lifetime). However, should a borrower prepay the loan prior to maturity or the car is repossessed and sold at auction before the loan is paid off, Colorado law requires lenders to refund the unearned portion of the GAP fee to the borrower, the state said.

    The assurances of discontinuance (see here and here) apply to all consumer credit transactions entered into with consumers in the state related to any alleged unfair conduct committed by the credit unions related to GAP fee refund practices. In additional to paying consumer remediation and $100,000 each to the state, the credit unions also agreed to alter their business practices to ensure that applicable refunds will be provided to consumers going forward.

    State Issues Colorado State Attorney General GAP Fees Consumer Finance Settlement Enforcement Auto Finance

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  • 3rd Circuit: Now-invalid default judgment still in effect when debt collection attempts were made


    On January 11, the U.S. Court of Appeals for the Third Circuit affirmed a district court’s decision to grant summary judgment in favor of defendants accused of violating the FDCPA when attempting to collect on a judgment that was later vacated. According to the opinion, the plaintiff was sued in state court for an unpaid debt. Contradictory orders were entered by the Superior Court, one which dismissed the action due to one of the defendant’s failure to attend trial, and another that entered default judgment against the plaintiff (which was confirmed two years later by the state court).

    A few years later, an attempt was made to collect on the debt. The plaintiff disputed the debt and later sued, claiming the defendants “knew or should have known” that the debt was unenforceable. The plaintiff later filed a motion in state court to vacate the default judgment and declare it “void ab initio,” which was eventually granted by the state court after it determined that the judgment was erroneously entered by the clerk after the court had already dismissed the case due to the debt collector’s failure to appear for trial. The plaintiff filed a cross-motion for summary judgment in the district court.

    The district court, however, found that the defendants’ alleged efforts to collect the debt were not false or misleading because the now-invalid default judgment at issue was technically still valid and existed when the collection attempts were made. The plaintiff appealed, arguing that the summary judgment violated the Rooker-Feldman doctrine because the district court “‘could not have reached the decision that it did without necessarily supplanting’ the Superior Court’s order vacating the judgment against her.” The plaintiff also argued that the district court erred when it found the Superior Court judgment against the plaintiff to be “in effect . . . until such time as it was vacated, . . . rather than ‘per se not valid’” when the defendants engaged in their efforts to collect the debt.

    On appeal, the 3rd Circuit disagreed with the plaintiff’s assertions. According to the appellate court, the plaintiff satisfied none of the four requirements to trigger the Rooker-Feldman doctrine, adding that regardless of whether the state court declared the judgment “void ab initio,” it was in effect when the defendant attempted to collect on the debt. Moreover, the appellate court noted that the plaintiff “failed to present a triable issue that any communication from Defendants to [the plaintiff] regarding the collection of the default judgment was made unlawful retroactively upon the Superior Court vacating its default judgment order.”

    Courts State Issues Appellate FDCPA Debt Collection Consumer Finance New Jersey

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  • NYDFS describes plan to include medical debt in Consumer Credit Fairness Act

    State Issues

    On January 10, NYDFS announced that the New York governor revealed several healthcare-related proposals in the State of the State address, including a plan to include medical debt in the state’s Consumer Credit Fairness Act. NYDFS noted that the governor “will create a comprehensive plan to address excessive medical debt” by amending “the Consumer Credit Fairness Act to cover medical debt, launching an industry and consumer education campaign that addresses medical debt and affordability, and reforming hospital financial assistance applications to require hospitals to use a uniform application form.” According to NYDFS, the best way to combat “medical debt is a commitment to an affordable and equitable healthcare system with transparency that empowers consumers, regardless of their socioeconomic status.”

    State Issues Bank Regulatory New York Medical Debt NYDFS State Regulators

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  • 9th Circuit reverses decision in COPPA suit


    In December, the U.S. Court of Appeals for the Ninth Circuit reversed and remanded a district court’s decision to dismiss a suit alleging that a multinational technology company used persistent identifiers to collect children’s data and track their online behavior surreptitiously and without their consent in violation of the Children’s Online Privacy Protection Act (COPPA). According to the opinion, the company used targeted advertising “aided by sophisticated technology that delivers curated, customized advertising based on information about specific users.” The opinion further explained that “the company’s technology ‘depends partly on what [FTC] regulations call ‘persistent identifiers,’ which is information ‘that can be used to recognize a user over time and across different Web sites or online services.’” The opinion also noted that in 2013, the FTC adopted regulations under COPPA that barred the collection of children’s “persistent identifiers” without parental consent. The plaintiff class claimed that the company used persistent identifiers to collect data and track their online behavior surreptitiously and without their consent, and alleged state law claims arising under the constitutional, statutory, and common law of California, Colorado, Indiana, Massachusetts, New Jersey, and Tennessee, in addition to COPPA violations. The district court ruled that the “core allegations” in the third amended complaint were squarely covered, and preempted, by COPPA.

    On appeal, the 9th Circuit considered whether COPPA preempts state law claims based on underlying conduct that also violates COPPA’s regulations. To determine this, the appellate court examined the language of COPPA’s preemption clause, which states that state and local governments cannot impose liability for interstate commercial activities that is “inconsistent with the treatment of those activities or actions” under COPPA. The opinion noted that the 9th Circuit has long held “that a state law damages remedy for conduct already proscribed by federal regulations is not preempted,” and that the statutory term “inconsistent” in the preemption context refers to contradictory state law requirements, or to requirements that stand as obstacles to federal objectives. The appellate court stated that it was not “persuaded that the insertion of ‘treatment’ in the preemption clause here evinces clear congressional intent to create an exclusive remedial scheme for enforcement of COPPA requirements.” The opinion noted that because “the bar on ‘inconsistent’ state laws implicitly preserves ‘consistent’ state substantive laws, it would be nonsensical to assume Congress intended to simultaneously preclude all state remedies for violations of those laws.” As such, the appellate court held that “COPPA’s preemption clause does not bar state-law causes of action that are parallel to, or proscribe the same conduct forbidden by, COPPA. Express preemption therefore does not apply to the children’s claims.”

    Courts Appellate Ninth Circuit COPPA Privacy, Cyber Risk & Data Security FTC State Issues

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  • District Court approves $11 million data breach settlement

    Privacy, Cyber Risk & Data Security

    On January 4, the U.S. District Court for the Northern District of Texas granted final approval of an $11 million class action settlement resolving allegations related to a February 2021 data breach that compromised more than 4.3 million customers’ personally identifiable information, including names, Social Security numbers, driver’s license numbers, dates of birth, and username/password information. According to plaintiffs’ amended complaint, the defendant insurance software providers failed to notify affected individuals about the data breach until on or after May 10, 2021, despite commencing an investigation in March. Plaintiffs maintained that the defendants’ alleged failure to comply with FTC cybersecurity guidelines and industry data protection standards put at risk their financial and personal records, and said they now face years of constant surveillance to prevent potential identity theft and fraud. Under the terms of the settlement (see also plaintiffs’ memorandum of law in support of the motion for final approval), class members will each receive up to $5,000 for out-of-pocket expenses, including up to eight hours of lost time at $25/hour, as well as 12 months of financial fraud protection. Members of a California subclass will receive additional benefits of between $100 and $300 each. The defendants are also responsible for paying each named plaintiff a $2,000 service award and must pay over $3 million in attorney fees, costs, and expenses.

    Privacy, Cyber Risk & Data Security Courts Settlement Data Breach State Issues Class Action California FTC

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  • NY restricts lenders’ ability to reset statute of limitations on foreclosures

    State Issues

    In December, the New York governor signed A 7737-B, the “Foreclosure Abuse Prevention Act,” which amends the rights of parties in foreclosure actions. Among other things, the law provides that a lender or servicer’s voluntary discontinuance of a foreclosure action does not reset New York’s 6-year statute of limitations on foreclosures, according to New York CPLR §213. Further, pursuant to the new law, if an action to foreclose a mortgage or recover any part of the mortgage debt is time-barred, any other action seeking to foreclose the mortgage or recover the debt is also time-barred. The amendments are effective immediately and, notably, apply to all pending actions in which a final judgment of foreclosure and sale has not been enforced.

    State Issues New York State Legislation Foreclosure Mortgages Mortgage Servicing Consumer Finance

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