Senators Edward J. Markey (D-Mass.) and Michael S. Lee (R-Utah) are taking yet another stab at invoking the Telephone Consumer Protection Act against federal debt collectors, even though the Federal Communications Commission has made clear that the TCPA does not apply to these entities.
Consumer Financial Services Legal Update Blog
The CFPB Says Fees and Fee-Related Disclosures For Payments-By-Phone May Constitute an Unfair and Deceptive Practice and Violate Federal Debt Collection Statutes
In a Compliance Bulletin released July 27, 2017, the CFPB cautioned covered persons and service providers that fees for pay-by-phone services may run afoul of “sections 1031 and 1036 of the [Dodd-Frank Act’s] prohibition on engaging in unfair, deceptive, or abusive acts or practices . . . when assessing phone pay fees.” The CFPB also provided guidance to debt collectors who receive phone pay fees about the possible consequences under the FDCPA.
Last Friday, Judge Richard Story (USDC, N.D. Ga.) entered an order in Consumer Financial Protection Bureau v. Universal Debt Solutions, LLC, et al., granting a defendant’s motion for Rule 37 discovery sanctions and striking Counts 8, 9, 10, and 11 from the CFPB’s complaint. This order is another example of judicial decisions resolving a significant issue for the CFPB in recent years: how to handle Rule 30(b)(6) depositions.
It is a scenario that our clients commonly face: when calling a customer to discuss a specific delinquency on a specific account, the customer says “stop calling me.” But what if the customer has multiple accounts or even debts related to multiple product lines with the caller? Is the caller to cease all effort to contact the customer on all accounts, no matter how diverse and for any reason whatsoever? Or is the caller only required to stop calling regarding this specific delinquency and on this specific account? Or is it something in-between?
In a new article published in the Yale Journal on Regulation, Dorsey & Whitney partner Eric B. Epstein examines the growing rift between how one would expect the bank examination privilege to operate and how the privilege actually works when banks become involved in litigation with nongovernmental parties.
Texas Federal Judge Upholds CFPB’s Investigative Authority in Denying Stay Pending Appeal of CFPB CID Dispute
Burgeoning federal enforcement efforts relating to the consumer data and credit reporting industry have led to another key legal development: a federal court in Dallas ruled in favor of the CFPB by upholding the agency’s investigative authority.
Strict scrutiny just isn’t what it used to be. For the third time, a district court has applied strict scrutiny in analyzing the TCPA and found that the statute restricts no more speech than necessary to further a compelling governmental interest.
A District Court in Kentucky recently rejected the Consumer Financial Protection Bureau’s claim against a law firm brought under the Real Estate Settlement Procedures Act, granting the law firm summary judgment in connection with its activities with nine real estate joint ventures surrounding the sale of title insurance policies because the Court found that the law firm’s activities fell within RESPA’s safe harbor provision.
Case Update: In Consumer Data Breach Case, Eleventh Circuit Indicates Concern over Scope of FTC’s Enforcement Actions
On June 21, 2017, the Eleventh Circuit Court of Appeals heard oral argument in LabMD, Inc. v. FTC, Case No. 16-16270, a case that is being carefully watched to see if it will clarify the limits of the Federal Trade Commission’s authority to bring enforcement actions for consumer data security breaches under Section 5 of the FTC Act.
Just when you thought that the practical operational restraints imposed by the new Administration had limited (i.e., handcuffed) the Consumer Financial Protection Bureau’s ability to engage in new mischief-making (i.e., new rule-making), today the CFPB issued its arbitration rule.
This is the biggest TCPA news since the Omnibus—a silver bullet to defeat most revocation cases was hiding in plain sight the entire time: a party cannot unilaterally modify the terms of a written contract to suit itself and so cannot revoke consent when the contract gives a business the right to call the number.
Seventh Circuit Rejects Rule 67 Mootness Argument But Keeps Campbell-Ewald Full Deposit Maneuver Alive
Rien n’est eternel. Nothing lasts forever. In TCPAland, things don’t even last a week. Just days after a Chicago district court endorsed the tactic in A Custom Heating & Air Conditioning, Inc. v. Kabbage, Inc., the Seventh Circuit dealt the Rule 67 mootness maneuver—i.e. “pick off” play—a hearty blow.
“Junk Fax” Case Determined Not To Make Junk Law, Strengthens Post-Spokeo Standing and Rule 67 Mootness Arguments
In a world pushed forward by new technology, it’s a “junk fax” case that advances two case dispositive TCPA defense bar arguments: (1) a plaintiff lacks Article III standing post-Spokeo unless there is a sufficient injury-in-fact; and (2) a Rule 67 deposit moots a class action.