On November 18, the CFPB announced an action against a Delaware-based online payday lender and its CEO for alleged violations of the Truth in Lending Act and the Electronic Fund Transfer Act, and for engaging in unfair and deceptive acts and practices. Specifically, the CFPB alleges that, from May 2008 through December 2012, the online lender (i) continued to debit borrowers’ accounts using remotely created checks after consumers revoked the lender’s authorization to do so; (ii) required consumers to repay loans via pre-authorized electronic funds transfers; and (iii) deceived consumers about the cost of short-term loans by providing them with contracts that contained disclosures based on repaying the loan in one payment, while the default terms called for multiple rollovers and additional finance charges. The case will be tried by an Administrative Law Judge from the CFPB’s Office of Administrative Adjudication.
Special Alert: CFPB Issues Guidance Regarding Preauthorized Debit Transactions Under the Electronic Fund Transfer Act and Regulation E
On November 23, 2015, the Consumer Financial Protection Bureau (“CFPB”) released Compliance Bulletin 2015-06 (“Bulletin”), which provides industry guidance on the Electronic Fund Transfer Act (“EFTA”) and Regulation E requirements for obtaining consumer authorizations for preauthorized electronic fund transfers (“EFTs”). The CFPB issued this Bulletin, in part, because it observed during its examinations that some companies are not fully complying with the EFTA and Regulation E. Principally, this Bulletin addresses two areas of concern: (i) obtaining the customer’s authorization for preauthorized EFTs over the telephone; and (ii) providing a copy of the authorization to the customer. Read more…
On November 18, the FTC announced that it approved, by a 3-1 vote, final amendments to the Telemarketing Sales Rule (TSR) that ban telemarketers from using certain payment methods that are commonly used by scammers. Per the amendments, telemarketers are prohibited from (i) using specific types of checks and “payment orders” that are remotely created by the telemarketer or seller and which permit direct access to consumers’ bank accounts; (ii) receiving payments through traditional “cash-to-cash” money transfers, which allow scammers to easily obtain consumer funds anonymously and without the ability to reverse the transaction; and (iii) accepting as payment “cash reload” mechanisms. The FTC concluded that the aforementioned payment methods constituted abusive practices because they caused or were likely to cause “substantial injury to consumers that is neither reasonably avoidable by consumers nor outweighed by countervailing benefits to consumers or competition.” Finally, according to the FTC, “the amendments address changes in the financial marketplace to ensure consumers remain protected by the TSR’s antifraud provisions, but are narrowly tailored to allow for innovations with respect to other payment methods that are used by legitimate companies.”
On November 16, the FCC and the FTC executed a Memorandum of Understanding (MOU) on continued cooperative efforts to protect consumers from unfair and deceptive acts and practices involving telecommunications services. In an effort to formalize existing cooperation among the agencies, the MOU outlines the ways in which the two agencies will continue to work together, including: (i) coordinating agency initiatives where one agency’s action will significantly impact the other agency’s authority or programs; (ii) sharing investigative techniques and tools, intelligence, technical and legal expertise, as necessary, in addition to best practices in response to reasonable requests for such assistance; and (iii) collaborating on consumer and industry outreach and education efforts, as appropriate. Moreover, the MOU identifies the scope of each agency’s enforcement authority with respect to common carriers, and confirms that the 2003 MOU regarding Telemarketing Enforcement between the two agencies remains effective, stating that the most recent MOU should not “be construed as altering, amending, or invalidating that  MOU.”
On November 16, the DOJ announced a $95.5 million settlement with the country’s second-largest for-profit education company to resolve alleged federal and state violations of the False Claims Act (FCA). According to the DOJ’s complaint, the company’s admissions personnel received payment based on the number of students they enrolled, a violation of Title IV of the Higher Education Act’s (HEA) Incentive Compensation Ban (ICB) and the Regulatory Safe Harbor. The DOJ alleges that the company misrepresented its compliance with Title IV of the HEA to the Department of Education by certifying in Program Participation Agreements that it had not “paid to any persons or entities any commission, bonus, or other incentive payment based directly or indirectly on success in securing enrollments, financial aid to students, or student retention.” The Department of Education calculated that, from July 1, 2003 through June 30, 2011, the company, having submitted “a variety of claims to the government for Title IV funding that it [knew] to be false based upon its non-compliance” with the ICB, received more than $11 billion in government funding. Under the terms of the settlement, the $95.5 million will be divided among the United States, the co-plaintiff states, and the whistleblowers and their counsel in the FCA cases filed separately in federal court in Pittsburgh, Pennsylvania and Nashville, Tennessee.
FTC Signs Memorandum of Agreement to Prevent Fraudulent and Deceptive Practices Against Servicemembers
On November 12, the FTC announced that it signed a Memorandum of Agreement with the Veterans Administration (VA) to provide mutual assistance in preventing fraudulent and deceptive acts by “institutions of higher learning and other establishments that offer training” targeting U.S. servicemembers, veterans, and dependents using military education benefits. In its press release, the FTC warned servicemembers of for-profit schools that may make unrealistic promises and pressure them to enroll in unnecessary courses or take out loans they may not be able to pay off.
On November 12, the CFPB released “Planning for Retirement,” an online tool intended to help older consumers make informed decisions regarding Social Security retirement benefits. On the same day, the CFPB published a report titled “Issue Brief: Social Security Claiming Age and Retirement Security.” According to the report, many consumers decide to collect Social Security benefits at the earliest possible age of 62 without (i) knowing the full retirement age range of 66 to 67, depending on the person’s birth year; and (ii) understanding the effects of collecting Social Security claims before the full retirement age, such as the substantial reduction of monthly benefits. The CFPB’s new interactive tool (i) uses Social Security Administration formulas to help consumers estimate how their age will affect their Social Security retirement benefits; (ii) provides claiming tips relevant to a consumer’s specific situation; and (iii) provides suggested action steps to help consumers plan their retirement.
On November 12, the FTC announced the topics for its November 18 Debt Collection Dialogue in Atlanta, which will have two panels. The first panel, “State Regulation and Enforcement of Debt Collection,” will include representatives from state law enforcement agencies and industry. The second panel, “Federal Regulation and Enforcement of Debt Collection,” will feature representatives from the FTC, the CFPB, and the OCC. Panelists will discuss enforcement actions, consumer complaints, compliance issues, and industry best practices.
On November 10, CFPB Director Richard Cordray delivered remarks at the annual American Bankers Association convention. Cordray addressed efforts by the CFPB and financial institutions to collaborate in strengthening financial education, identifying the following areas of focus: (i) working with schools and teachers to provide young people with the knowledge and skills necessary to become financially successful adults; (ii) encouraging workplace financial education; and (iii) educating older Americans and those who care for them on how to avoid financial scams. Cordray called on community banks to implement financial education programs in school systems, urging bank leaders to “set the goal of making sure that financial education is required learning in all 50 states.” Cordray encouraged banks to lead by example in promoting financial education in the workplace, and to “make it a priority to educate their own employees and help them develop and use sound financial strategies, including savings for both emergencies and retirement.” Finally, Cordray applauded banks for launching the “Safe Banking for Seniors” campaign and urged them to do more to protect older consumers from financial exploitation, noting that bankers are often the first to spot red flags and should act quickly to report any suspected abuse.
Recently, the District Court for the District of Columbia issued an opinion recognizing a company’s right to maintain privacy when challenging a CFPB Civil Investigative Demand (CID). John Doe Company No. 1 v. CFPB, No. 1:15-cv-1177 (D.D.C. Oct. 16, 2015). After receiving a CID from the Bureau, the Plaintiffs requested that the CFPB allow counsel to be present at a voluntary investigative hearing; the Plaintiffs’ request and subsequent petition to the CFPB were denied. On July 22, 2015, Plaintiffs filed a complaint against the CFPB seeking a temporary restraining order (TRO) and a motion to seal the case, arguing that sealing was appropriate because (i) CFPB investigations are normally nonpublic; and (ii) sealing the case would protect Plaintiffs from the harm that an ongoing investigation would cause if it were disclosed to the public. The court applied a six-factor test established by the D.C. Circuit in United States v. Hubbard to determine whether the court records should be released, considering the need for public access to the documents, the strength of the property and privacy interests involved, the possibility of prejudice against the Plaintiffs, and other factors. In a “compromise [to maximize] the amount of information available to the public while still protecting the privacy interest Plaintiffs assert,” the court ruled to unseal the case but ordered Plaintiffs to file redacted versions of all files pertaining to the case, omitting the names of Plaintiffs and “any other information reasonably likely to lead to the disclosure of Plaintiffs’ identities.”
On November 5, the CFPB published a report titled “Mobile Financial Services” to summarize the results of its June 2014 Request for Information on the opportunities and challenges associated with the use of mobile financial services (MFS) by traditionally underserved consumers. With 44% of unbanked individuals owning a smartphone, the report notes that MFS has the potential to be a promising tool for underbanked and unbanked consumers to manage their finances. According to the report, consumers using MFS save time and money because they can check their balances any time and have access to certain tools that help them manage their money. The report highlights mobile Remote Deposit Capture as particularly attractive to unbanked consumers because it allows them to take a picture of and deposit checks remotely, reducing the limitations of branch hours and locations. Additional key takeaways from the report include: (i) MFS would likely be most effective for underserved consumers if paired with consultative or assistance services; (ii) privacy and security concerns remain a significant risk; and (iii) digital access and digital financial literacy need improvement, such as enhancing affordable access to technology and educating consumers and intermediaries about safe and effective use of the technology.
FTC Partners with Federal, State, and Local Law Enforcement Agencies to Announce Nationwide “Crackdown” on Abusive Debt Collection
On November 4, the FTC announced the first coordinated federal, state, and local initiative to combat alleged abusive and deceptive debt collection practices, Operation Collection Protection. This announcement included authorities listing 30 new actions, including five enforcement actions by the FTC. These actions targeted the following practices: (i) extracting payments from consumers by using intimidation and inaccurate representations; (ii) impersonating servers or attorneys and threatening arrest or litigation; and (iii) collecting on debts that never existed or had already been paid. These cases bring the total number of actions taken under the Operation Collection Protection initiative this year to 115 and the total number of participating law enforcement partners to 70.
On November 3, the FTC announced the agenda for its Cross-Device Tracking workshop, which is scheduled to take place on November 16 in Washington, D.C. FTC Chairwoman Edith Ramirez will deliver opening remarks, with FTC Office of Technology, Research and Investigation Policy Director Justin Brookman introducing two panel discussions. The first panel will examine the technology used for cross-device tracking, including how it has evolved, privacy concerns, and how the technology benefits consumers and businesses alike. The second panel will focus on the policy implications of cross-device tracking, such as: (i) the type of data being collected about consumers; (ii) consumer awareness of this type of tracking; (iii) notice to consumers of cross-device tracking and consumers’ ability to give consent; and (iv) industry self-regulation efforts.
On November 3, the CFPB released its latest Supervisory Highlights report, which covers examination findings from May 2015 to August 2015. According to the report, which summarizes supervisory observations in the areas of consumer reporting, debt collection, mortgage origination, mortgage servicing, student loan servicing, and fair lending, recent non-public CFPB supervisory actions resulted in $107 million in restitution to more than 238,000 consumers. The report recognizes that certain efforts were made by institutions to improve compliance, including (i) mortgage servicers making improvements to their compliance audits and conducting information technology reviews; and (ii) student loan servicers alerting borrowers of unpaid balances remaining after borrowers attempt to pay off their loans but fall short. The report also discusses the CFPB’s revised exam appeals process, which includes changes to the supervisory appeals process originally outlined in Bulletin 2012-07. Among other things, the revised exam appeals process extends the expected time to issue a written decision on appeals from 45 to 60 days, and “[p]revents an institution from appealing adverse findings or an unsatisfactory rating related to a recommended or pending investigation or public enforcement action until the enforcement investigation or action has been resolved.”
Maryland Court of Special Appeals Holds MCSBA Applies to Loan Broker Working with Federally Insured Out-of-State Banks
On October 27, the Maryland Court of Special Appeals held that a loan broker who originates loans in Maryland for a federally insured out-of-state bank and then repurchases those loans days later qualifies as a “credit service business” under the Maryland Credit Services Business Act (MCSBA) and must be licensed accordingly. Md. Comm’r of Financial Reg. v. CashCall, No. 1477, 2015 WL 6472270 (Md. Ct. Spec. App. Oct. 27, 2015). The loan broker argued, citing Gomez v. Jackson Hewitt, Inc., 427 MD. 128 (2012), that it was not a “credit service business” within the meaning of the MCSBA because the MCSBA did not apply to the out-of-state federally insured bank that made the loans and because the loan broker did not receive a direct payment from the consumer. The Commissioner and the court disagreed. In affirming the Commissioner’s decision and in overturning the decision of the Circuit Court for Baltimore, the Court of Special Appeals reasoned that the MCSBA applied because (i) the loan broker was engaged in the very business the MCSBA was intended to apply to (i.e. it was exclusively engaged in assisting Maryland consumers to obtain small loans); and (ii) after repurchasing the loan, the loan broker had the right to receive direct payment from consumers. The Court of Special Appeals remanded the case to the Circuit Court for Baltimore.