InfoBytes Blog
Filter
Subscribe to our InfoBytes Blog weekly newsletter and other publications for news affecting the financial services industry.
FTC, Florida permanently shut down grant funding operation
On December 8, the FTC and the Florida attorney general announced that a Florida-based grant funding company and its owner (collectively, “defendants”) will be permanently banned from offering grant-writing and business consulting services as a result of a lawsuit the regulators brought against the defendants in June. As previously covered by InfoBytes, the complaint alleged that the defendants violated the Consumer Protection Act, the FTC Act, and the Florida Deceptive Unfair Trade Practices Act by deceptively marketing their services to minority-owned small businesses. Among other things, the defendants (i) promised grant funding that did not exist and/or was never awarded; (ii) misled customers about the status of grant awards; and (iii) failed to honor a “money-back guarantee” and suppressed customer complaints. The defendants agreed to the terms of a proposed court order, which would ban them from providing grant-related services and business consulting, and prohibit them from making misrepresentations regarding advertised products or services. Defendants would also be required to turn over certain property to be sold in order to provide refunds to affected businesses. The proposed order also includes a more than $2 million monetary judgment, which is partially suspended due to defendants’ inability to pay.
District Court issues judgment against company for marketing fake high-yield CDs
On December 9, the U.S. District Court for the Southern District of New York entered a final stipulated final judgment and order against a Delaware financial-services company operating in Florida and New York along with its owner (collectively, “defendants”) for engaging in deceptive acts under the Consumer Financial Protection Act related to its misleading marketing representations when advertising high-yield healthcare savings CD accounts. As previously covered by InfoBytes, the Bureau’s 2020 complaint alleged that defendants engaged in deceptive acts or practices by: (i) falsely representing that consumers’ deposits into the high yield CD accounts would be used to originate loans for healthcare professionals, when in fact, the company never used the deposits to originate loans for healthcare professionals, never sold a loan to a bank or secondary-market investor, and never entered into a contract with a buyer or investor to purchase a loan; (ii) concealing the company’s true business model by falsely representing that the consumers’ deposits, when not being used to originate healthcare loans, would be held in an FDIC- or Lloyd’s of London-insured account or a “cash alternative” or “cash equivalent” account, when in reality, consumers’ deposits were, among other things, invested in securities; (iii) misleading consumers into believing that the accounts their funds were being deposited into functioned like traditional savings accounts when in fact, consumers’ deposits were actively traded in the stock market or used in securities-backed investments; and (iv) falsely representing that past high yield CD accounts allegedly paid interest at rates between 5 percent and 6.25 percent prior to 2019 when in fact, the company did not offer CDs until August 2019, and “consumers’ principals was neither guaranteed nor insured.” The complaint noted that since August 2019, the company took more than $15 million from at least 400 consumers.
The settlement provides for a comprehensive consumer redress plan that would require defendants to refund approximately $19 million to approximately 400 depositors. Further, pursuant to the order, the defendants are required to return the money that each affected consumer deposited into a certain account in a manner consistent with the advertised terms of the product, namely, the principal along with an average per year interest rate of about 6 percent. The proposed order also permanently bans the defendants from engaging or assisting others in any deposit taking activities and requires defendants to pay a civil money penalty to the Bureau in the amount of $391,530.
District Court: Defendants cannot use CFPB funding argument to dismiss deceptive marketing lawsuit
On November 18, the U.S. District Court for the Northern District of Illinois ruled that the CFPB can proceed in its lawsuit against a credit reporting agency, two of its subsidiaries (collectively, “corporate defendants”), and a former senior executive accused of allegedly violating a 2017 enforcement order in connection with alleged deceptive practices related to their marketing and sale of credit scores, credit reports, and credit-monitoring products to consumers. According to the court, a recent decision issued by the U.S. Court of Appeals for the Fifth Circuit, which found that the Bureau’s funding structure violates the Appropriations Clause of the Constitution (covered by a Buckley Special Alert), is a persuasive basis to have the lawsuit dismissed.
As previously covered by InfoBytes, the Bureau sued the defendants in April claiming the corporate defendants, under the individual defendant’s direction, allegedly violated the 2017 consent order from the day it went into effect instead of implementing agreed-upon policy changes intended to stop consumers from unknowingly signing up for credit monitoring services that charge monthly payments. The Bureau further claimed that the corporate defendants’ practices continued even after examiners raised concerns several times, and that the individual defendant had both the “authority and obligation” to ensure compliance with the 2017 consent order but did not do so.
The defendants sought to have the lawsuit dismissed for several reasons, including on constitutional grounds. The court disagreed with defendants’ constitutional argument, stating that, other than the 5th Circuit, courts around the country have “uniformly” found that Congress’ choice to provide independent funding for the Bureau conformed with the Constitution. “Courts are ill-equipped to second guess exactly how Congress chooses to structure the funding of financial regulators like the Bureau, so long as the funding remains tethered to a law passed by Congress,” the court wrote. The court also overruled defendants’ other objections to the lawsuit. “[T]his case is only at the pleading stage, and all the Bureau must do is plausibly allege that [the individual defendant] was recklessly indifferent to the wrongfulness of [the corporate defendants’] actions over which he had authority,” the court said, adding that the Bureau “has done so because it alleges that because of financial implications, [the individual defendant] actively ‘created a plan to delay or avoid’ implementing the consent order.”
The Bureau is currently seeking Supreme Court review of the 5th Circuit’s decision during its current term. (Covered by InfoBytes here.)
DOJ, FTC, Wisconsin AG sue timeshare scammers
On November 22, the DOJ, FTC, and the Wisconsin attorney general announced a civil enforcement action against 16 defendants for allegedly using deceptive sales practices to sell timeshare “exit services” to consumers, mostly involving senior citizens. The complaint, which was filed in the U.S. District Court for the Eastern District of Missouri, alleged that the defendants failed to assist consumers in exiting their timeshare contracts while collecting large fees for the incomplete service. The complaint also alleged that the defendants deceived consumers into registering for timeshare exit services by, among other things, falsely claiming that consumers could not exit timeshare contracts on their own, and that the defendants were affiliated with legitimate companies. The complaint further alleged that the defendants failed to notify consumers of their rights under federal and state law to cancel their contracts with defendants within three business days. The complaint noted that the defendants allegedly deceived consumers into paying over $90 million to the defendant companies for services that were not delivered. The complaint also stated that the defendants’ actions violated the FTC Act, the FTC’s rule concerning the cooling-off period for sales made at home or other locations, and certain Wisconsin state laws concerning fraudulent misrepresentations and direct marketing. The complaint seeks monetary relief, civil penalties, and injunctive relief. According to the DOJ, the defendants’ timeshare exit services are also the subject of lawsuits filed by the Alaska and Missouri attorneys general in June 2022.
FTC seeks feedback on possible changes to Business Opportunity Rule
On November 17, the FTC announced it is soliciting public comments on possible modifications to the Business Opportunity Rule. According to the FTC’s advance notice of proposed rulemaking (ANPR), the Commission is seeking feedback on the rule’s effectiveness, whether it is necessary, and whether it should be expanded to cover other types of money-making opportunities, such as coaching or mentoring programs, e-commerce opportunities, or investment opportunities. The Business Opportunity Rule prohibits the use of deceptive statements when selling business opportunities, and requires sellers to make several key disclosures to potential buyers, including: (i) the seller’s identifying information; (ii) information supporting claims about possible earnings or profits; (iii) disclosures about whether the seller, its affiliates, or key personnel have been included in certain legal actions; (iv) information on whether the seller has a cancellation or refund policy and any applicable policy terms; and (v) a list covering the past three years of consumers who have purchased the business opportunity. The FTC will also require sellers who conduct business in languages other than English to provide disclosures in the language in which the sale is conducted.
The ANPR also asks commenters to address whether business opportunity practices “disproportionately target or affect certain communities or groups, including but not limited to people living in lower-income communities, communities of color, or other historically underserved communities,” and requests feedback on suggested amendments to address any negative effects. Comments on the ANPR are due 60 days after publication in the Federal Register.
FTC final order fines company $62 million for misleading potential home sellers
On October 21, the FTC announced the approval of a final order against an online home buying firm accused of allegedly making misleading claims to consumers about how much money they could save by selling their home through the company’s services as opposed to selling on the open market. As previously covered by InfoBytes, the FTC claimed the company violated the FTC Act by, among other things, misrepresenting: (i) market value prices when making offers to buy homes by including downward adjustments to such values; (ii) the manner in which it made money on transactions; (iii) that consumers likely would have paid the same amount in repair costs whether they sold their home through the company or in traditional sale; and (iv) that consumers paid less in costs. The final order requires the company to pay $62 million, which is expected to be used for consumer redress, and prohibits the company from making deceptive, false, and unsubstantiated claims about how much money consumers will receive for their homes or the costs required to use the company’s service. Additionally, the company is required to have “competent and reliable evidence to support any representations made about the costs, savings, or financial benefits associated with using its service, and any claims about the costs associated with traditional home sales.”
FTC, states sue rental listing platform for fraud
On August 30, the FTC announced a lawsuit, together with the attorneys general from New York, California, Colorado, Florida, Illinois, and Massachusetts, against a rental listing platform and its owners for allegedly charging consumers for false endorsements and fake listings. The complaint, which alleges violations of the FTC Act and various state laws, claims that the defendants used both fake reviews and fake listings to lure consumers to its platform and pay for access to so-called “verified and authentic living arrangement listings.” In particular, one of the individual defendants is alleged to have deceptively promoted the platform “by providing tens of thousands of fake four- and five-star reviews” to app stores. That individual defendant stipulated to the entry of a proposed stipulated final order on the same day, which requires the following: (i) cooperation with the FTC’s ongoing action; (ii) informing the app stores that he was paid to post reviews and identify the fake reviews and when they were posted; (iii) a permanent ban from selling or misrepresenting consumer reviews or endorsements; and (iv) payment of a total of $100,000 to the state AGs.
The action is part of the FTC’s on-going efforts to address fake and deceptive reviews, which include a $4.2 million action taken against an online fashion retailer accused of suppressing negative reviews, and warnings issued in 2021 to more than 700 companies announcing that they may face fines over misleading online endorsements (covered by InfoBytes here and here).
FDIC warns financial institutions about NSF fees
On August 18, the FDIC issued FIL-40-2022 along with supervisory guidance to warn supervised financial institutions that charging customers multiple non-sufficient funds (NSF) fees on re-presented unpaid transactions may increase regulatory scrutiny and litigation risk. According to the FDIC, some institutions’ disclosures did not fully or clearly describe their re-presentment practices and failed to explain that the same unpaid transaction may result in multiple NSF fees if presented more than once. Failing to disclose “material information to customers about re-presentment and fee practices has the potential to mislead reasonable customers,” the agency said, noting that the material omission of this information is considered to be deceptive pursuant to Section 5 of the FTC Act. Additionally, “there are situations that may also present risk of unfairness if the customer is unable to avoid fees related to re-presented transactions,” the FDIC said.
The supervisory guidance also discussed the agency’s approach for addressing violations of law, noting that it will focus on identifying re-presentment-related issues to ensure correction of deficiencies and remediation to harmed customers. The agency stated that examiners “will generally not cite UDAP violations that have been self-identified and fully corrected prior to the start of a consumer compliance examination,” and noted that it “will consider an institution’s record keeping practices and any challenges an institution may have with retrieving, reviewing, and analyzing re-presentment data, on a case-by-case basis, when evaluating the time period institutions utilized for customer remediation.” However, the FDIC warned that “[f]ailing to provide restitution for harmed customers when data on re-presentments is reasonably available will not be considered full corrective action.” Financial institutions are encouraged to review practices and disclosures related to the charging of NSF fees for re-presented transactions and should consider FDIC risk-mitigation practices to reduce the risk of customer harm and potential violations.
District Court awards injunctive relief to FTC in deceptive advertising case
On August 9, the U.S. District Court for the Northern District of Georgia ruled that the FTC provided “broad and detailed” evidence of alleged deceptive advertising and unfair fee practices in its $550 million case against a technology company and its CEO (collectively, “defendants”). As previously covered by InfoBytes, the FTC filed a suit in 2019, alleging the defendants made deceptive representations to customers and charged hidden, unauthorized fees in connection with the company’s “fuel card” products in violation of Section 5 of the FTC Act. In 2019, when the agency filed its lawsuit, legal precedent held that the FTC could obtain restitution for consumers directly through such civil proceedings in federal court. However, in April of 2021, the Supreme Court held in AMG Capital Management, LLC v. FTC that the FTC does not have statutory authority to obtain equitable monetary relief under Section 13(b) of the FTC Act. (Covered by InfoBytes here.) Following that decision, the FTC filed a motion to stay or voluntarily dismiss in an attempt to preserve the possibility of obtaining monetary relief for injured consumers in federal court while pursuing claims against the defendants through the agency’s administrative process, but the district court denied the motion, concluding that the “balance of equities does not weigh in favor of a stay or dismissal without prejudice.”
In its most recent order, the district court ruled that the FTC provided compelling and overwhelming evidence, including advertisements, internal marketing studies, and a “plethora of customer complaints” that showed the defendants are liable for multiple violations of the FTC Act. Among other things, the court noted that the evidence showed that the defendants knew that many customers were unaware of certain fees when they signed up for the fuel cards and that the defendants’ terms and conditions governing the fees were “inscrutable” and confusing. However, the district court partially granted defendants’ request for summary judgment on monetary relief, ruling that in light of the Supreme Court’s decision in AMG Capital Management, the FTC cannot obtain a monetary award for the violations until the agency exhausts its administrative litigation process. A hearing will be held to determine the nature of the required injunctive relief.
CFPB fines fintech for algorithm-induced overdraft charges
On August 10, the CFPB announced a consent order against a California-based fintech company for allegedly using an algorithm that caused consumers to be charged overdrafts on their checking accounts when using the company’s personal finance-management app. According to the Bureau, the app promotes automated savings with a proprietary algorithm, which analyzes consumers’ checking-account data to determine when and how much to save for each consumer. The app then automatically transfers funds from consumers’ checking accounts to accounts held in the company’s name. The Bureau asserted, however, that the company engaged in deceptive acts or practices in violation of the CFPA by (i) causing consumers’ checking accounts to incur overdraft charges from their banks even though it guaranteed no overdrafts and represented that its app never transferred more than a consumer could afford; (ii) representing that it would reimburse overdraft charges (the Bureau claims the company has received nearly 70,000 overdraft-reimbursement requests since 2017); and (iii) keeping interest that should have gone to consumers even though it told consumers it would not keep any interest earned on consumer funds. Under the terms of the consent order, the company is required to provide consumer redress for overdraft charges that it previously denied and must pay a $2.7 million civil penalty.