Consumer Financial Services Legal Update Blog

Ninth Circuit Lowers the Axe on Oft-Criticized TCPA Standing Opinion

The Ninth Circuit Court of Appeal overruled the district court’s dismissal of a TCPA case for lack of Article III standing yesterday in Elisa Romero v. Department Stores National Bank, No. 16-56265, 2018 WL 1079728 (9th Cir. Feb. 28, 2017). The district court ruling in Romero was an oft-cited and oft-criticized opinion that held, in essence, that the harm caused by phone calls must be attributable to the use of an ATDS to give rise to Article III standing. It also suggested that debt collection phone calls don’t really cause harm at all.

Church Provides No Sanctuary: Sixth Circuit’s FDCPA Decision May Breathe New Life into TCPA Spokeo Arguments

A number of Circuit Courts of Appeal have addressed Spokeo challenges to consumer protection statutes in the 646 days (and counting) since the U.S. Supreme Court handed down Spokeo, Inc. v. Robins in 2016. Most of those decisions have given the issue of standing short shrift, leapt to conclusions or—perhaps worst of all—shown a deep and unrelenting deference to Congressional legislative power in assessing Article III limits. The result has been languid opinions and squishy legal doctrine in the arena of standing, where only precision and intellectual rigor ought to prevail. Hagy v. Demers & Adams, No. 17-3696, 2018 U.S. App. LEXIS 3710 (6th Cir. Feb. 16, 2018) marks a stark departure from its soft-thinking predecessors, and represents the first intellectual tour-de-force of the post-Spokeo era.

Changes at the CFPB: Dorsey Partner Quoted in American Banker Article, “Mulvaney Looks to Neuter CFPB’s Most Potent Weapon”

American Banker quoted Dorsey & Whitney partner Jenny Lee in an article reporting on the Consumer Financial Protection Bureau’s new strategic plan. The article observes how the CFPB’s February 12, 2018 plan dropped all mention of “unfair, deceptive or abusive acts or practices” from the Bureau’s vision statement, suggesting that Mick Mulvaney will de-emphasize actions against regulated entities for so-called UDAAP violations.

D.C. Circuit Upholds CFPB’s Constitutionality: Why the PHH Case Underscores the Importance of Internal Agency Discipline

On January 31, the D.C. Circuit issued a plurality opinion confirming the constitutionality of the CFPB governance by a sole Director, while reinstating the decision below that struck down the CFPB’s $109 million disgorgement demand in the underlying dispute. Moving forward, the decision puts the spotlight on several important issues for those interested in the CFPB’s activities.

TCPA Class Certification Denial Exposes Major Spousal Scheme

There are plenty of things I’d like to do with my wife one day. Take a trip to Greece. Finally convince her to go camping with me (never going to happen). But filing a class action with her as class representative is definitely not one of them. That’s exactly what one husband and wife duo tried to pull in the Eastern District of New York. Senior Judge Frederic Block made quick work of the scheme.

Revocation by Lawsuit: Judge Rules Service of TCPA Complaint Instantly Revoked Consent

It has been a fairly quiet start to 2018 in TCPAland, but February has ushered in a series of cases worth talking about. The first is McMillion v. Rash Curtis & Assocs., No. 16-cv-03396-YGR, 2018 U.S. Dist. LEXIS 17784 (N.D. Cal. Feb. 2, 2018). You may recall that back in September 2017, Judge Yvonne Gonzalez Rogers certified a number of skip trace classes in this case. Well, her latest ruling in McMillion is a veritable grab bag of TCPA wonders.

OCC’s Proposed Charter for Fintech Companies in Limbo

Late last year, the Office of the Comptroller of the Currency announced that a proposed national charter for fintech companies is currently on hold as the OCC’s new Comptroller of the Currency, Joseph Otting, needs additional time to study the proposed charter. Despite the fact that the OCC has not yet granted a national charter for fintech companies, the proposal to do so has already been the subject of two different court challenges by state regulatory authorities.

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.

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…”