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2nd Circuit affirms dismissal of class action against international bank for alleged AML control misrepresentations
On April 13, the U.S. Court of Appeals for the 2nd Circuit affirmed a district court’s dismissal of a proposed class action alleging an international bank misrepresented the effectiveness of internal controls to investors, during a time Russian traders were laundering more than $10 billion through the bank. In May 2016, investors filed a class action complaint against the bank alleging securities law violations for touting its compliance efforts while Russian clients were engaging in “mirror trades.” The district court dismissed the complaint for failing to sufficiently allege how the bank misled investors. Specifically, the district court noted that general statements about reputation and compliance amount to “puffery” and are regularly held to be non-actionable. In affirming the district court’s decision, the 2nd Circuit agreed that the plaintiffs failed to adequately allege scienter. The panel rejected the plaintiff’s reliance on, among other things, a consent order between the New York Department of Financial Services (NYDFS) and the bank (previously covered by InfoBytes here) as evidence the bank was aware of Russian wrongdoing during the time it made its alleged misrepresentations, stating “the consent order thus contradicts the plaintiffs’ argument that the individual defendants were aware of any wrongdoing at the time they made their alleged misrepresentations.”
Bank petitions for rehearing of 9th Circuit preemption decision; OCC to file amicus brief in support of bank
On April 13, a national bank filed a petition for an en banc rehearing of the U.S. Court of Appeals for the 9th Circuit’s March decision, which held that a California law that requires the bank to pay interest on escrow funds is not preempted by federal law. As previously covered by InfoBytes, the 9th Circuit held that the Dodd-Frank Act of 2011 (Dodd-Frank) essentially codified the existing National Bank Act (NBA) preemption standard from the 1996 Supreme Court decision in Barnett Bank of Marion County v. Nelson. The panel cited to Section 1639d(g)(3) of Dodd-Frank, which, according to the opinion, expresses Congress’ view that the type of law at issue does not “prevent or significantly interfere with a national bank’s operations” because the law does not “prevent or significantly interfere” with the national bank’s exercise of its power. Additionally, the 9th Circuit concluded that the OCC’s 2004 preemption regulation had no effect on the preemption standard.
In its petition for rehearing, the bank argues that the 9th Circuit’s decision, if allowed to stand, “will create confusion regarding which state laws apply to national banks and restrict the terms on which they may extend credit” because the decision conflicts with previous decisions by the same court, the Supreme Court, and other circuits. The bank also acknowledges the OCC’s intent to file an amicus curiae brief in support of the petition no later than April 23.
8th Circuit reverses district court’s decision, rules plaintiff failed to demonstrate actual damages under RESPA
On April 3, the U.S. Court of Appeals for the 8th Circuit reversed a district court’s decision, which granted summary judgement in favor of a consumer (plaintiff) who claimed a mortgage loan servicer violated the Real Estate Settlement Procedure Act (RESPA) and the Minnesota Mortgage Originator and Servicer Licensing Act when it failed to adequately respond to his qualified written requests concerning erroneous delinquency allegations. The district court ruled that the plaintiff suffered actual damages of $80 under his RESPA claims when the loan servicer “made minimal effort to investigate the error” and failed to provide the plaintiff with requested information about his loan history since origination. The “pattern or practice” of non-compliance also, in the district court’s view, justified $2000 in statutory damages. The plaintiff also received a separate damage award, attorney’s fees and costs under the Minnesota statute. However, under RESPA, a plaintiff must demonstrate proof of actual damages resulting from a loan servicer’s failure, and the three-judge panel argued that the plaintiff “failed to prove actual damages” because the loan servicer’s “failure to comply with RESPA did not cause [the plaintiff’s] alleged harm.” The panel opined that while the loan servicer failed to (i) conduct an adequate investigation following the plaintiff’s request as to why there was a delinquency for his account, and (ii) failed to provide a complete loan payment history when requested, its failure to comply with RESPA involved pre-2011 payment history for which the plaintiff eventually requested and received the relevant loan payment records at no cost. In fact, the panel stated, the only evidence of actual damages was the $80 the plaintiff spent for bank account records, but that expense concerned a separate dispute about whether the plaintiff missed two payments in 2012 and 2013, which the plaintiff eventually acknowledged that he did, in fact, fail to make. Since the loan servicer did not commit an error with respect to the missed payments, the court concluded that the $80 spent by plaintiff were not the result of the loan servicer’s failure to investigate and provide information related to the pre-2011 payment history. To the contrary, with respect to responding to the plaintiff’s inquiries regarding the missing payments, the loan servicer had “complied with its duties under RESPA.”
Furthermore, the panel stated that the plaintiff failed to provide evidence that the loan servicer engaged in a “pattern or practice of noncompliance.” The 8th Circuit remanded the case back to the district court with directions to enter judgment in favor of the loan servicer on the RESPA claims and for further proceedings on claims under the Minnesota statute.
CFPB Succession: Mulvaney pleads for Congress to restructure the CFPB; oral arguments held in English litigation
On April 11 and 12, acting Director of the CFPB, Mick Mulvaney, testified before the House Financial Services Committee and the Senate Banking Committee regarding the Bureau’s semi-annual report to Congress. (Previously covered by InfoBytes here). Mulvaney’s prepared testimony, which was submitted to both committees, covers the salient points of the semi-annual report but also includes the same request to Congress that he made in the report: change the law “in order to establish meaningful accountability for the Bureau.” This request, which includes four specific changes (such as, subjecting the Bureau to the Congressional appropriations process and creating an independent Inspector General for the Bureau), was the focus of many of Mulvaney’s responses to questions posed by members of each committee. Specifically, during the House Financial Services hearing, Mulvaney encouraged the members of the committee to include the CFPB restructure in negotiations with the Senate regarding the bipartisan regulatory reform bill, S.2155, which passed the Senate last month. (Previously covered by InfoBytes here).
Mulvaney also fielded many questions regarding the Bureau’s announcement that it plans to reconsider the final rule addressing payday loans, vehicle title loans, and certain other extensions of credit (Rule); however, his responses gave little indication of what the Bureau’s specific plans for the Rule are. As previously covered by InfoBytes, resolutions have been introduced in the House and the Senate to overturn the rule under the Congressional Review Act. Additionally, on April 9, two payday loan trade groups filed a lawsuit in the U.S. District Court for the Western District of Texas asking the court to set aside the Rule because, among other reasons, the CFPB is unconstitutional and the Bureau’s rulemaking failed to comply with the Administrative Procedure Act. The complaint alleges that the Rule is “outside the Bureau's constitutional and statutory authority, as well as unnecessary, arbitrary, capricious, overreaching, procedurally improper and substantially harmful to lenders and borrowers alike.” The complaint also argues that the rule is a product of an agency that violates the Constitution’s separation of powers due to the Bureau’s structure of a single director who may only be removed by the president “for cause.” A similar argument in CFPB v. PHH Corporation was recently rejected by the U.S. Court of Appeals for the D.C. Circuit (covered by a Buckley Sandler Special Alert).
Additionally, on April 12, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in English v. Trump. In this suit, Leandra English, the current deputy director of the CFPB, challenges Mulvaney’s appointment as acting director. Unlike previous arguments, which focused on the president’s authority to appoint Mulvaney under the Federal Vacancies Reform Act (FVRA), the court spent considerable time discussing Mulvaney’s concurrent role as head of the Office of Management and Budget (OMB), and whether that dual role is inconsistent with the independent structure of the Bureau, as established by the Dodd-Frank Act.
9th Circuit amended opinion holds company not vicariously liable under TCPA
On April 4, the U.S. Court of Appeals for the 9th Circuit issued an amended opinion to further affirm a district court’s decision to grant summary judgment in favor of a defendant concerning allegations that it was vicariously liable for telemarketing activity in violation of the Telephone Consumer Protection Act (TCPA). The three-judge panel held that the defendant, who sells vehicle service contracts (VSCs) through automobile dealers and “marketing vendors,” was not vicariously liable under the TCPA for calls made by telemarketers employed by a company that sold VSCs for the defendant and multiple other companies. Last August, the three-judge panel determined that the company’s telemarketers acted as independent contractors, rather than as the defendant’s agents. In amending their opinion, the three-judge panel further determined that the telemarketers lacked actual authority (under express language contained within the parties’ contract) to place the unlawful calls, and that the defendant “exercised insufficient control over the manner and means of the work to establish vicarious liability under the asserted theory.”
9th Circuit affirms dismissal of claims alleging survey provider violated TCPA
On March 29, the U.S. Court of Appeals for the 9th Circuit affirmed a district court’s decision to grant summary judgment in favor of a patient satisfaction survey provider (defendant), concluding that a plaintiff's signed enrollment form with her health insurance provider meant she granted “prior express consent” to receive calls from the defendant. According to the opinion, the plaintiff accused the defendant of allegedly violating the Telephone Consumer Protection Act (TCPA) when it used an automatic telephone dialing system to repeatedly call her to inquire about the quality of her experience with a network physician. She later challenged the dismissal of her suit, arguing that the calls fell outside the scope of consent. However, in agreeing with the district court’s decision, the three-judge panel held that by providing her phone number on an insurance enrollment form that permitted the insurer to share her information for “quality improvement” and other purposes, the plaintiff had provided the level of consent required by the TCPA to receive calls from the defendant. While the court acknowledged that the plaintiff “could not have known the identity of the specific entity that would ultimately call her,” by authorizing the insurance company “to disclose her phone number for certain purposes, she necessarily authorized someone other than [the insurance company] to make calls for those purposes. Specifically, she authorized calls from entities to which [the insurance company] disclosed her information.” According to the panel, the defendant fell within that category.” The panel also rejected the plaintiff’s argument that the calls violated the TCPA because the defendant failed to demonstrate that it called her on the insurance company’s behalf, finding that there is “no statutory or logical basis for imposing such a requirement.”
Bank and shareholders reach settlement over BSA/AML compliance allegations
On March 30, a regional bank reached a $13 million settlement with a group of its shareholders over allegations of misleading statements and omissions regarding the bank’s compliance with fair lending laws, and Bank Secrecy Act (BSA) and Anti-Money Laundering (AML) regulations. The shareholders—purchasers of the bank’s stock between July 2013 and July 2014—allege that the bank’s misrepresentations regarding their compliance with BSA/AML laws, as well as other laws and regulations, artificially inflated the price of the bank’s stock. According to the settlement, both parties’ decisions to enter into the agreement were partially due to the length and expense of continued litigation, which began in 2014. The shareholders initiated the class action litigation in July 2014; however, the U.S. Court of Appeals for the 6th Circuit vacated the initial class certification in September 2016, remanding to the district court for further proceedings. The class was recertified by the district court in June 2017 with the 6th Circuit denying the bank’s petition for appeal of the recertification. The bank denies all allegations of wrongdoing and liability in the settlement.
District Court finds government is not immune from private claims under the FCRA
On March 22, the U.S. District Court for the Western District of Louisiana denied the Defense Finance and Accounting Service’s (DFAS), a federal government agency within the Department of Defense, motion to dismiss a private action under the Fair Credit Reporting Act (FCRA) based on a lack of subject matter jurisdiction as a result of sovereign immunity. The court found that FCRA’s definition of person includes “government or governmental subdivision or agency,” and therefore, waives the United States’ sovereign immunity under FCRA. The court did not agree with DFAS’ position that the terms “government or governmental subdivision or agency” are too broad to constitute a wavier of sovereign immunity. In support of its position, the court cited a decision by the U.S. Court of Appeals for the 7th Circuit providing that the FCRA “unequivocally waives the United States’ sovereign immunity from damages for violations under the FCRA.”
2nd Circuit: debt collectors do not need to state interest is not accruing
On March 29, the U.S. Court of Appeals for the 2nd Circuit held that a debt collection letter, which does not disclose that the balance due is not accruing interest or fees is not misleading under the Fair Debt Collection Practices Act (FDCPA). The decision results from a 2016 lawsuit filed by two debtors who alleged that the debt collection notices they received from the defendants were “false, deceptive, or misleading” under Section 1692e of the FDCPA because the notices did not state whether the balances were accruing interest or fees. The district court awarded summary judgment in favor of the defendants after unrebutted evidence was produced to show that the debtor’s balances did not accrue interest or fees during the collection period. In affirming the district court’s decision, the 2nd Circuit applied the “least sophisticated consumer” standard and found that even if a consumer interpreted the debt collection notice to believe the balance due was accruing interest or fees, the only harm that would exist is “being led to think that there is a financial benefit to making repayment sooner rather than later.” The panel also noted that the notice was consistent with Section 1692g of the FDCPA because interest and fees were not accruing, the balance due stated the accurate amount of the debt.
CFPB appeals $10 million order in payday lender suit
On March 27, the CFPB filed a notice of appeal to the U.S. Court of Appeals for the 9th Circuit in response to a district court’s order that an online loan servicer and its affiliates pay a $10 million penalty for offering high-interest loans in states with usury laws barring the transactions—a penalty which fell far short of the $50 million the CFPB had requested. As previously covered in InfoBytes, the district court found that a lower statutory penalty was more appropriate than the CFPB’s requested amount because the CFPB failed to show the company “knowingly violated the CFPA.” It further rejected the Bureau’s request for restitution and denied a request for a permanent injunction. The notice of appeal seeks review of all parts of the final judgment as well as the parts of the findings of facts and conclusions of law that are adverse to its position.