On July 14, the CFPB ordered a Delaware-based national bank to pay a $10 million civil penalty to settle allegations that its overdraft fee practices were deceptive and violated Regulation E of the Electronic Fund Transfer Act because the bank allegedly charged consumers overdraft fees in connection with ATM and one-time debit card transactions without obtaining their affirmative consent. The CFPB alleges that the bank incentivized sales representatives of a third-party telemarketing vendor to market its overdraft service through “Opt-in Call Campaigns.” According to the consent order, vendor representatives deviated from sales scripts approved by the bank and provided consumers with incomplete, inaccurate, or misleading information to persuade them to enroll in the overdraft service. The CFPB alleges that the bank failed to properly monitor the vendor and detect “widespread problems” throughout the Opt-in Call Campaigns, including, but not limited to: (i) enrolling consumers in the bank’s overdraft program without their consent; (ii) falsely advertising the overdraft program as free, when in fact consumers were charged $35 per overdraft; (iii) misleading consumers into believing they would be charged overdraft fees regardless of whether or not they signed up for the program, or telling consumers they would face additional charges if they opted out of the program; and (iv) falsely claiming that the purpose of the call was “not a sales call” but rather to let consumers know that the bank had changed its name. In addition to imposing a $10 million civil penalty, the consent order requires the bank to, among other things, (i) validate that all consumers who were enrolled in the program through its vendor wish to remain in the program; (ii) stop using a vendor to conduct the marketing of its overdraft service; and (iii) develop and implement a new or revised written policy to govern vendor management for Service Providers engaged in telemarketing of consumer financial products or services.
On September 8, the CFPB issued a consent order to a national bank to resolve allegations that its employees opened deposit and credit card accounts for consumers without obtaining consent to do so. According to the CFPB’s consent order, the respondent implemented an incentive compensation program under which employees “engaged in Improper Sales Practices to satisfy goals and earn financial rewards.” The CFPB alleges that the bank’s employees’ Improper Sales Practices were unfair and abusive. Specifically, the consent order alleges that the employees, possibly without consumers’ knowledge or without their consent, (i) opened more than 1.5 million deposit accounts and subsequently transferred money from consumers’ existing accounts to fund the newly opened accounts; (ii) submitted approximately 565,000 credit card account applications on behalf of consumers, with consumers consequently incurring late, annual, and over-draft fees on such accounts; (iii) issued debit cards and created personal identification numbers to activate the cards; and (iv) enrolled consumers in online-banking services. Pursuant to the consent order, the bank, among other things, must pay a civil penalty of $100 million and an expected $2.5 million in consumer redress.
OCC Revises Guidance Regarding Consumer Protection Requirements to Overdraft Lines and Protection Services
As previously reported in our March 11 Special Alert Update, on March 6, 2015, the OCC issued its revised “Deposit-Related Credit” booklet (“DRC booklet”) of the Comptroller’s Handbook, which replaced the “Deposit-Related Consumer Credit” booklet issued on February 11, 2015 (previously covered in this Special Alert). While the new booklet covers the same products – check credit (overdraft lines of credit, cash reserves, and special drafts), overdraft protection services, and deposit advances – the OCC made significant amendments to scale back the provisions of the prior version. Specifically, the new DRC booklet no longer contains supervisory principles that could be read to require that banks provide substantive consumer protections that are not currently required by the applicable consumer protection regulations. Read more…
On March 2, an international bank agreed to pay $30 million to settle allegations that it changed the order in which customers’ debit transactions cleared in order to generate additional overdraft fees. According to the plaintiffs, the bank engaged in a practice known as “high-to-low” posting, whereby a bank orders transactions from the largest to the smallest dollar amount before posting them to the customer’s account. The bank also charged a $35 fee for each overdraft, regardless of the amount of the transaction. The plaintiffs allege that, when combined, these practices increased the number of overdraft fees paid by some customers because processing the largest charges first depleted their funds more quickly and increased the total number of transactions that failed to clear. The bank appropriately defended its practices, contending, among other things, that the claims were preempted by the National Bank Act and barred by the Uniform Commercial Code, and that the deposit agreement provided for discretion to order transactions. The settlement is scheduled to face a fairness hearing and final approval by the court.
On an appeal of five putative class actions alleging the unlawful charging of overdraft fees on consumer checking accounts, On February 10, the U.S. Court of Appeals for the Eleventh Circuit vacated a lower court order holding that the defendant’s waiver of its right to compel arbitration with the named plaintiffs precludes the Bank from compelling arbitration with any unnamed members of the putative classes. In re Checking Account Overdraft Litigation, No. 13-12082 (11th Cir. Feb. 10, 2015). The panel held that the lower court lacked jurisdiction to resolve the question. Additionally, it held that the named plaintiffs lacked standing, under Article III of the U.S. Constitution, to advance claims on behalf of those unnamed putative class members, who—in the absence of class certification—have “no justiciable controversy” with the Bank.