Second Circuit Overturns Credit Card Antitrust Violation

On September 26, the U.S. Court of Appeals for the Second Circuit ruled that a credit card company did not unreasonably restrain trade in violation of the Sherman Act by prohibiting merchants from directing customers to use other, less costly forms of payment. The appeals court reversed based on the lower courts definition of the market as limited to the “core enabling functions provided by networks which allow merchants to capture, authorize, and settle transactions for customers who elect to pay with their credit or charge card.” According to the decision, this definition was too limited in this case, because the credit card network derived its market share from cardholder satisfaction, providing “no reason to intervene and disturb the present functioning of the payment‐card industry.” The court noted that the outcome in this case is different than in previous credit card exclusionary rule cases because here, the payment clearing network and the card issuing function are completely integrated, meaning that the issuer and the network are the same company.


Federal Court Denies FinCEN’s Second Attempt to Ban Foreign Bank

On September 21, the U.S. District Court for the District of Columbia stayed enforcement of FinCEN’s second attempt to cut off a Tanzania-based bank’s access to the U.S. banking system. The dispute originated from FinCEN’s attempt to prohibit domestic financial institutions from opening or maintaining correspondent accounts on behalf of the foreign bank under the authority of Section 311 of the USA PATRIOT ACT, which authorizes FinCEN take special measures against banks of primary money laundering concern. FinCEN first promulgated a final rule imposing the prohibition in July 2015, which was enjoined by the court in August, 2015. FinCEN agreed to a voluntary remand to correct deficiencies in its rulemaking process, such as providing the bank access to declassified information and considering the use of less drastic measures to address its concerns. In March 2016, FinCEN promulgated a revised final rule in which it indicated that the bank’s AML compliance remained inadequate and that the bank continued to engage in “illicit financial activity.” Upon a second review, the court again found that FinCEN had failed to adequately disclose declassified information to the bank prior to releasing the revised final rule, and did not properly respond to other of the bank’s concerns. In addition, the court was not satisfied that FinCEN had made the required consultations with other executive-branch agencies as required by statute.


District Court Dismisses Disparate Impact Claim under the Fair Housing Act

In The Inclusive Cmtys. Project, Inc. v. The Tex. Dep’t of Hous. and Cmty., No. 3:08-cv-00546-D (N.D. Tex. Aug. 26, 2016), on remand from the Supreme Court and the Fifth Circuit, the district court dismissed claims of disparate impact under the Fair Housing Act (FHA) where the plaintiff alleged that the defendant allocated two different types of tax credits in a manner that perpetuated racial segregation. The district court applied the Supreme Court’s previously explained three-part burden-shifting framework to analyze the plaintiff’s claim, and determined that, among other things, the plaintiff’s claim failed to show a “specific, facially neutral policy” causing a racially disparate impact. The court reasoned that “[b]y relying simply on [the defendant’s] exercise of discretion in awarding tax credits, [the plaintiff] has not isolated and identified the specific practice that caused the disparity in the location of low-income housing…. [The plaintiff] cannot rely on this generalized policy of discretion to prove disparate impact.” The district court further reasoned that because the plaintiff had not “sufficiently identified a specific, facially-neutral policy that has caused a statistically disparity,” the court could not “fashion a remedy that removes that policy.”  The district court concluded that the plaintiff “failed to prove a prima facie case of discrimination by showing that a challenged practice caused a discriminatory effect” and entered judgment in favor of the defendants.


Second Circuit Remands Case to District Court, Rules Web Provider Failed to Show Plaintiff Agreed to Arbitration

Recently, the Court of Appeals for the Second Circuit vacated in part a district court ruling, specifically its decision to dismiss a plaintiff’s putative-class action claim on the grounds that the plaintiff failed to plausibly state a claim for relief. Nicosia v., Inc., No. 15-423-cv (2d Cir. Aug. 25, 2016). The district court concluded that a consumer was “bound by the mandatory arbitration provision in [a web provider’s] Conditions of Use” by placing an order on the web-based provider’s site; the Second Circuit was “not convinced.” The court reasoned that “[n]othing about the ‘Place your order’ button alone suggests that additional terms apply, and the presentation of terms is not directly adjacent to the ‘Place your order’ button so as to indicate that a user should construe clicking as acceptance.” The court further noted the web-based provider’s order page was distracting: “there appear to be between fifteen and twenty-five links on the Order Page, and various text is displayed in at least four font sizes and six colors (blue, yellow, green, red, orange, and black), alongside multiple buttons and promotional advertisements.” As a result, the court stated that it did “not hold that there was no objective manifestation of mutual assent here as a matter of law” but instead concluded that “reasonable minds could disagree on the reasonableness of notice.” The case was remanded for further proceedings.


District Court Issues Orders Against False Mortgage Relief Operation

The District Court for the Middle District of Florida recently ruled in favor of the FTC in the FTC’s complaint for equitable relief against several Florida-based companies and individuals (collectively, defendants), effectively banning the defendants from the mortgage loan modification and debt relief business. The FTC took this action against the defendants in 2014, alleging that they, acting in concert, ran a deceptive mortgage relief operation. According to the FTC, the defendants falsely promised consumers that, by paying an upfront fee of $1,000 to $4,000, and in some cases additional monthly fees, consumers would receive loan modifications or legal representation to prevent foreclosure of their homes. The Court’s final order imposes a judgment of more than $13.5 million against the defendants, subject to a separate stipulated order imposing an $8 million judgment on a subset of the defendants who had previously reached a settlement with the FTC in November 2015.

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