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CFTC awards $500,000 to whistleblowers
On March 10, the CFTC announced awards totaling approximately $500,000 to two whistleblowers who “separately provided significant information and substantial assistance” that led to a successful Commodity Exchange Act enforcement action. The associated order noted that the claimants voluntarily provided original information, which began an underlying investigation and “significantly contributed to the success” of the enforcement action.
The CFTC has awarded approximately $300 million to whistleblowers since the enactment of its Whistleblower Program under Dodd-Frank, and whistleblower information has led to nearly $3 billion in monetary relief.
11th Circuit affirms $23 million judgment against founder of debt relief operation
On March 9, the U.S. Court of Appeals for the Eleventh Circuit affirmed summary judgment in favor of the FTC and the Florida attorney general after finding that an individual defendant could be held liable for the actions of the entities he controlled. As previously covered by InfoBytes, the FTC and the Florida AG filed a complaint in 2016 against several interrelated companies and the individual defendant who founded the companies, alleging violations of the FTC Act, the Telemarketing Sales Rule, and the Florida Deceptive and Unfair Trade Practices Act. The complaint alleged that the defendants engaged in a scheme that targeted financially distressed consumers through illegal robocalls selling bogus credit card debt relief services and interest rate reductions. Among other things, the defendants also claimed to be “licensed enrollment center[s]” for major credit card networks with the ability to work with a consumer’s credit card company or bank to substantially and permanently lower credit card interest rates and charged up-front payments for debt relief and rate-reduction services. In 2018, the court granted the FTC and the Florida AG’s motion for summary judgment, finding there was no genuine dispute that the individual defendant controlled the defendant entities, that he knew his employees were making false representations, and that he failed to stop them. The court entered a permanent injunction, which ordered the individual defendant to pay over $23 million in equitable monetary relief and permanently restrained and enjoined the individual defendant from participating—whether directly or indirectly—in telemarketing; advertising, marketing, selling, or promoting any debt relief products or services; or misrepresenting material facts.
The individual defendant appealed, arguing that there were genuine disputes over whether: (i) he controlled the entities; (ii) he had knowledge that employees were making misrepresentations and failed to prevent them; (iii) employee affidavits “attesting that they had saved customers money created an issue of fact about whether his programs did what he said they would do”; and (iv) he had knowledge of “rogue employees” violating the “do not call” registry to solicit customers.
On appeal, the 11th Circuit determined that the facts presented by the individual defendant did not create a genuine dispute about whether he controlled the entities, and further stated that the individual defendant is liable for the employees’ misrepresentations because of his control of the entities and his knowledge of those misrepresentations. The appellate court explained that while the individual defendant argued that he could not be liable because he did not participate in those representations, he failed to present any evidence in support of that argument and, even if he had, “it wouldn’t matter, because [the individual defendant’s] liability stems from his control of [the companies], not from his individual conduct.” Additionally, the appellate court held that whether the services were helpful to customers was immaterial and did not absolve him of liability, because liability for deceptive sales practices does not require worthlessness. As to the “do not call” registry violations, the appellate court disagreed with the individual defendant’s claim that an “outside dialer or lead generator”—not the company—placed the outbound calls, holding that this excuse also does not absolve him of liability.
DOJ resolves SCRA violations with credit union
On March 11, the DOJ announced a settlement with a credit union resolving allegations that the credit union violated the Servicemembers Civil Relief Act (SCRA) by charging excessive interest on servicemembers’ loans and repossessing servicemembers’ cars without first obtaining a court order. According to the DOJ’s complaint, which was filed concurrently with the proposed settlement, the credit union allegedly charged interest exceeding 6 percent to 21 servicemembers who qualified for SCRA interest rate benefits. Under the SCRA, creditors are required to reduce the interest rate on retail installment sales contracts to 6 percent in certain circumstances. However, the DOJ asserted that in at least one instance, a servicemember was told that “reducing the interest rate would increase her monthly payment.” The DOJ also alleged that the credit union repossessed three servicemembers’ vehicles without court orders, including one instance where the vehicle was repossessed from a military base.
The consent order, which is pending court approval, requires the credit union to pay nearly $70,000 to the affected servicemembers, along with a $40,000 civil penalty. The credit union is also, among other things, prohibited from (i) charging interest rate exceeding 6 percent during a period of military service; (ii) reamortizing any retail installment sales contracts connected to a request for SCRA interest rate benefits; (iii) “failing or refusing to credit early alert periods of military service when applying such benefits”; and (iv) repossessing SCRA-protected servicemembers’ vehicles without first obtaining a court order or valid SCRA waiver. The settlement also requires the credit union to review and update its SCRA policies and procedures to prevent future violations and to provide SCRA compliance training to its employees.
FTC fines payment processor $2.3 million for helping online discount clubs bilk consumers
On March 10, the FTC reached a settlement with a payment processing company and two senior officers (collectively, “defendants”) whereby the company would pay $2.3 million in restitution as part of their role in allegedly helping the operators of a group of marketing entities enroll consumers into online discount clubs and debit more than $40 million from consumers’ bank accounts for membership without their authorization. As previously covered by InfoBytes, the FTC’s 2017 complaint claimed that the online discount clubs claimed to offer services to consumers in need of payday, cash advance, or installment loans, but instead enrolled consumers in a coupon service that charged initial fees ranging from $49.89 to $99.49, as well as monthly recurring fees of up to $19.95. However, the FTC’s complaint stated that “99.5 percent of the consumers being illegally charged for the ‘discount clubs’ never accessed any coupons, and that tens of thousands called the defendants to try and cancel the charges, while thousands more disputed the charges directly with their banks.” The FTC accused the defendants of providing “substantial assistance or support” in the way of payment processing services while “knowing or consciously avoiding knowing” that the actions being supported were in violation of the Telemarketing Sales Rule (TSR). The FTC further detailed how defendants ignored several indications of fraudulent activity, including the consistently high return rates generated by the discount club transactions and that a primary client of their services had already been the subject of previous FTC enforcement actions for engaging in similar conduct.
Under the terms of the settlement, which is pending court approval, the defendants are banned from, among other things, (i) processing remotely created payment orders; (ii) processing payments on behalf of clients whose business involves outbound telemarketing, discount clubs, or offers to help consumers with payday loans; (iii) processing payments on behalf of any client that the defendants know or should know is engaging in deceptive or unfair acts or practices or violating the TSR; and (iv) processing payments for any existing or prospective clients without first conducting a reasonable screening to ensure clients are not violating federal law.
FTC settles with online stock trading site
On March 8, the FTC announced a proposed settlement with an online stock trading site and its operators (collectively, “defendants”) for allegedly using earnings claims to mislead consumers into signing up for services, which led them into long-term subscription plans. The FTC filed a complaint in 2020 as part of an initiative called “Operation Income Illusion,” which encompasses more than 50 enforcement actions against alleged scams targeting consumers with false promises of income and financial independence (covered by InfoBytes here). According to the complaint, the defendants allegedly violated the FTC Act, among other laws, by falsely marketing investment-related services by claiming that “consumers who purchase [the defendants'] services will earn or are likely to earn substantial income.” Additionally, according to the press release, the defendants featured testimonials from purported customers claiming they made “[$]6500.00 in 20 minutes” and “$500 in 15 min[utes],” and allegedly attempted to profit off the Covid-19 pandemic, with a “guru” claiming that he could “rack up nearly $500K in profits by trading stocks related to the COVID-19 pandemic.” Under the terms of the stipulated final order, the defendants, among other requirements: (i) must pay a fine of over $2.4 million to the FTC: (ii) are prohibited from making claims regarding potential earnings without having written evidence that those claims are typical for consumers; and (iii) are prohibited from making claims misrepresenting that purchasers can be successful in trading regardless of their experience, the amount of capital they have to invest, or the amount of time they spend trading.
CARU orders app company to correct violations of children’s privacy rules
On March 8, the Children’s Advertising Review Unit (CARU) announced that a smart watch phone operator has agreed to take actions to correct alleged violations of the Children’s Online Privacy Protection Act (COPPA) and CARU’s Self-Regulatory Guidelines for Children’s Online Privacy Protection. According to the press release, CARU is the nation’s first FTC-approved COPPA Safe Harbor Program and is tasked with monitoring online services for compliance with COPPA and CARU’s privacy guidelines to make sure the collection of children’s data is handled responsibly. CARU examined the company’s data handling and sharing practices and found that the company, among other things, “failed to provide clear and complete, and non-confusing, notice of its children’s information collection practices in its privacy policy and failed to provide any notice that would constitute a direct notice to parents as required by COPPA.” The company also failed to offer a method for parents to provide verifiable consent to its data gathering practices prior to its collection of information from children, CARU stated, adding that the company’s privacy policy, terms of service, and other online disclosures also included “inconsistent, confusing and/or contradictory statements about its collection, use, or disclosure of children's personal information.”
CARU noted that the company submitted a “detailed plan” outlining measures to remedy the concerns and agreed to correct the violations in order to comply with CARU’s privacy guidelines and COPPA. The company will also update its privacy policy to include information on how parents can prohibit the use of their child’s data or have it deleted and will obtain verifiable parental consent prior to completing the registration process. CARU also recommended that the company revise its website and app to provide parents with “direct notice of what personal information the operator can collect from children through their use of the service, both passively and actively, and how such personal information can be used and disclosed, together with a clear and prominent link to its privacy policy.”
SEC awards $3.5 million to whistleblower
On March 8, the SEC announced that it awarded a whistleblower over $3.5 million for providing “critical” information that led to two successful SEC enforcement actions. According to the redacted order, the whistleblower provided information that prompted SEC staff to further investigate certain potential securities violations, which saved time and resources and helped advance settlement discussions. The SEC has awarded approximately $1.2 billion to 248 individuals since issuing its first whistleblower award in 2012.
New York college to cancel $20 million in unpaid loans
On March 2, the New York City mayor announced an agreement with a for-profit college resolving allegations that it violated various provisions of New York consumer protection laws. According to the press release, the New York City Department of Consumer and Worker Protection filed the lawsuit against the defendant in 2018, claiming that it, among other things: (i) collected debts that were not owed; (ii) concealed its identity from former students when collecting debts; and (iii) falsely misrepresented when debts were accrued on official documents. Under the terms of the settlement agreement, the defendant is required to cease collecting outstanding student loans incurred prior to January 2019, which are estimated to be valued at approximately $20 million. The defendant must also pay $350,000 in restitution, establish polices related to communicating with students about debt owed to the college, and ensure that the statutes of limitation on debt collection are observed.
FTC, DOJ reach $1.5 million settlement with weight-loss companies
On March 4, the FTC and DOJ announced a $1.5 million settlement with an international weight loss service organization and its subsidiary (collectively, “defendants”) accused of allegedly using unfair and deceptive practices to obtain personal information of underage users without parental consent. As previously covered by InfoBytes, the agencies claimed that the defendants violated the Children’s Online Privacy Protection Act (COPPA) and Section 5 of the FTC Act by collecting and keeping personal information from children under 13 without providing notice to or obtaining consent from their parents. The agencies’ settlement announcement stated that the defendants’ signup process originally “encouraged younger users to falsely claim they were over the age of 13, despite text indicating that children under 13 must sign up through a parent,” and that even after the signup process was revised, the defendants allegedly “failed to provide a mechanism to ensure that those who choose the parent signup option were indeed parents and not a child trying to bypass the age restriction.” Additionally, the defendants allegedly violated COPPA’s data retention provisions “by retaining children’s personal information indefinitely and only deleting it when requested by a parent.”
Under the terms of the settlement, unless verified parent consent has been subsequently obtained, the defendants are required to refrain from disclosing, using, or benefiting from previously collected personal information that did not comply with COPPA’s parental notice and consent requirements, and must destroy all previously collected personal information, as well as any affected work product that used illegally collected data. The settlement also orders the defendants to pay a $1.5 million civil penalty.
Agencies crack down on deceptive Covid-19 treatment claims
On March 3, the FTC, along with the DOJ and FDA, filed a lawsuit against a New York-based marketer of herbal tea for allegedly claiming its tea was clinically proven to treat, cure, and prevent Covid-19. The announcement reiterated the agencies’ commitment to cracking down on companies that unlawfully market unproven Covid-19 treatments. According to the joint agency complaint, the defendants’ deceptive marketing claims that their herbal tea product is capable of preventing or treating Covid-19 (and is more effective than Covid-19 vaccines) are not supported by competent or reliable scientific evidence and pose “a significant risk to public health and safety.” Moreover, the defendants have allegedly repeatedly ignored FTC and FDA warnings that their deceptive advertising and misrepresentations violate the FTC Act, the Covid-19 Consumer Protection Act, and the Federal Food, Drug, and Cosmetic Act. The complaint seeks permanent injunctive relief, civil penalties, and other remedies to prevent the harms caused by the defendants’ deceptive misrepresentations.