Many observers have reported on leadership changes at the CFPB and the potential shifts in policy priorities that may follow. However, in the new year, among the most interesting actions taken by the CFPB is the in-court opposition to a credit union with respect to an issue related to an overdraft policy and Regulation E-related evidence.
Consumer Financial Services Legal Update Blog
Bottles of Ink: Court Observes that FCC’s Recent “Regulatory Crusade” Has Only Made the TCPA Murkier
It should come as no surprise to readers of this blog that the TCPA is the subject of regular criticism by judges across the country. See e.g. Dominguez v. Yahoo!, Inc., No. 13-1887, 2017 U.S. Dist. LEXIS 11346, at *20 (E.D. Pa. Jan. 27, 2017) (calling the FCC’s 2015 Omnibus “a ‘mongrel’ – with no offense to dogs.”). The ambiguities in the FCC’s rulings on the TCPA’s exceptions for healthcare-related calls are the most recent subject of judicial critique of the TCPA.
Court Finds Pre-Checked Disclosure Acceptance Box Still “Clickwrap”; Compels Arbitration of TCPA Case
Dorsey’s TCPA team is already renowned for obtaining first-in-the-nation results. Adding to that pile, Dorsey aided GoSmith, Inc. this week in obtaining a ruling compelling arbitration under facts that have long escaped direct judicial review.
Silver Lining Playbook: Ninth Circuit Reverses Retroactive Application of TCPA Amendment Limiting Liability for Calls Made to Collect on Government-Backed Debt
In 2015, Congress enacted an amendment to the TCPA that exempted calls made in an effort to collect upon federally-backed debt. The amendment seemed straightforward enough. By adding the word “except” to the statute, Congress clarified that the TCPA applies except where it doesn’t. And it doesn’t apply to calls regarding federally-backed debt. The end. The Ninth Circuit Court of Appeals had a different take, however. In Silver v. Pennsylvania Higher Education Assistance Agency, the Ninth Circuit reversed and remanded the district court’s opinion applying the amendment retroactively, reasoning: “This case involves a statutory personal injury claim that had accrued prior to the date Congress enacted the TCPA amendment at issue. Ninth Circuit law is clear that retroactively extinguishing a personal claim that has already accrued implicates the strong presumption against retroactivity…”
When a Defendant submits 89 call recordings demonstrating that the customer never once asked for calls to stop or suggested that the calls were unwanted, you’d think that would be enough to earn a summary judgment. Not so, says Judge Theodore D. Chuang of the United States District Court for the District of Maryland.
Court Finds Text Message Offering Link to Dinner “Specials” Was Not Telemarketing Because the Customer Already Had a Dinner Reservation
Imagine sitting at home and receiving a text message from a restaurant inviting you to view their nightly dinner specials. That’s pretty clearly telemarketing, right? Now, imagine that you first called the restaurant to make a dinner reservation for that evening and also provided your cell phone number. The restaurant then sends you the exact same text message. What result? In a new decision from the Eastern District of California, Judge John A. Mendez held that such text messages are not telemarketing and are expressly permitted by the diner when the diner provides his or her phone number to the restaurant in connection with the dinner reservation.
Court Bends Every Procedural Rule to Grant Dismissal to Kohl’s in “Opt-Out Evader” TCPA Text Suit –Blesses Contractual Revocation Clause
One of the most annoying inhabitants of TCPA land is the Opt-Out Evader. This fellow or lady tries to set up TCPA lawsuits by texting phrases s/he knows will not be recognized by text service providers. Rather than simply texting “STOP,” the Opt-Out Evader texts, “It would be great if you would no longer text me. Thanks.” And instead of QUIT, s/he might say, “These text messages are really quite excessive so please cut it out.” It is all a scam, of course. Judge Brian Martinontti of the District of New Jersey saw this tactic a mile away and dealt a steely hand of rough justice this week to an Opt-Out Evader in Viggiano v. Kohl’s Dep’t Stores, Inc.
Judge Bencivengo Refuses to Change Her Stripes—District Court Doubles Down on Romero and Again Dismisses TCPA Claim for Lack of Article III Standing
She may be the only judge in the country still actively dismissing TCPA claims for lack of Article III standing following Spokeo, but Judge Cathy Ann Bencivengo demonstrated on Thursday in Selby v. Ocwen Loan Servicing that she is not going to change her views on the subject anytime soon.
The National Law Journal quoted Jenny Lee, partner at Dorsey & Whitney, in an article entitled, “What Lawyers Are Saying About Richard Cordray’s CFPB Departure Plans.”
New York District Court Applies Reyes to Squash TCPA Suit Based Upon Consent Terms Built into Sallie Mae TCPA Class Action Settlement Agreement
In Rodriguez v. Student Assistance Corp.—the first published decision directly following the Second Circuit’s ruling in Reyes v. Lincoln Automotive Financial Services—an E.D.N.Y. judge granted summary judgment in favor of Navient Solutions in a TCPA case, disregarding allegations that the Plaintiff had “repeatedly” asked for automated calls to her cell phone to stop. The Court found that the revocation efforts were absolutely meaningless because the Plaintiff was a member of the Sallie Mae settlement and, by failing to opt out or otherwise submit a written revocation form, was bound to an eternity of debt collection calls from Sallie Mae and its corporate successors by virtue of the settlement agreement’s “class consent” clause.
This year’s TCPA filings are downright ghoulish, although slightly below last year’s count YTD. If that isn’t enough to make you scream, consider that TCPA class actions are still being filed at quadruple the rate seen before the FCC’s 2015 TCPA Omnibus ruling. But the really horrifying statistic this year is the .071 batting average that defendants have mustered on motions to stay TCPA cases pending the outcome of the ACA, Int’l appeal since August of this year.
On Tuesday, the Senate voted 51-50 (with Vice President Mike Pence casting the tiebreaking vote) to overturn the Consumer Financial Protection Bureau’s July 2017 rule banning firms from including arbitration clauses blocking class-action lawsuits in consumer financial contracts. The Senate’s action follows a 231-190 vote in the House in July 2017 to overturn the Rule. Under the Congressional Review Act, the resolution will now go to President Trump, whose expected signature will invalidate the Rule and prohibit the CFPB from revisiting it for an extended period of time.
The constitutionality of the CFPB continues to be an issue in cases involving that agency. The latest party to raise the “CFPB is unconstitutional” defense is a law firm, Seila Law, LLC, which is attempting to evade a civil investigative demand seeking information relating to the CFPB’s litigation against debt relief firm Morgan Drexel Inc. and its affiliates.