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NY AG Schneiderman Releases List of “Top Ten” Frauds for 2016
On March 6, 2017, New York Attorney General Eric T. Schneiderman released the state’s 2016 top ten list of consumer fraud complaints. For the past 11 years, Internet-related complaints concerning service providers, data privacy and security, and consumer fraud topped the list, closely followed by complaints about automobile sales, service, financing, and repairs. Credit complaints about debt collection, billing, debt settlement, payday loads, credit repair and reporting agencies, and identity theft were sixth. Complaints related to mortgages were ninth. Not on the top ten list but highlighted by the Attorney General’s office were complaints involving scam student debt relief companies as well as two common schemes known as the IRS scam and the Grandparent scam. Also provided were tips consumers should use to protect themselves and their families.
FTC Issues New Top 10 Consumer Complaint Categories in Annual Summary
On March 3, the Federal Trade Commission (FTC) issued an annual summary of consumer complaints, highlighting trends in the various categories of consumer complaints received by the Commission over the past year. The agency released its overview in the form of the Consumer Sentinel Network Data Book for January - December 2016 (2016 Data Book)—which provides category breakdowns and state specific data extrapolated from the Consumer Sentinel Network (CSN)—a secure online database of millions of consumer complaints available only to law enforcement, including, but not limited to, the FTC. In compiling the 2016 Data Book, the CSN collected more than 3.1 million consumer complaints, which the FTC sorted into 30 top complaint categories.
Florida, Georgia and Michigan were (again) the top three states for fraud and other complaints, while Michigan, Florida and Delaware were the top three states for identity theft complaints. The 2016 Data Book also reveals that debt-collection complaints remained the top category, comprising 28 percent of all complaints. The Commission attributes this “high number of reported debt collection complaints” to, among other things, “complaints submitted by a data contributor who collects complaints via a mobile app.” The Commission also identifies “imposter scams” as a “serious and growing problem.” In response to this trend, Acting Director of the FTC’s Bureau of Consumer Protection, Thomas Pahl, indicates that the agency “will use all the tools at its disposal to address it,” including “law enforcement actions against scammers and consumer education to help consumers avoid losing money.”
Another category that saw some movement was identity theft. While overall complaints in this category declined from 16 percent to 13 percent, 29 percent were consumers reporting that their data was used to commit tax fraud. Furthermore, there was a jump in those who reported “that their stolen data was used for credit card fraud. . .[a number that] rose from nearly 16 percent in 2015 to more than 32 percent in 2016.” And, rounding out the “Top Ten” consumer complaints for 2016 after debt-collection, imposter scams, and identify theft, were: telephone and mobile services, banks and lenders, prizes/sweepstakes/lotteries, shop-at-home/catalog sales, auto-related complaints, credit bureaus/information furnishers/report users, and television and electronic media complaints.
More information about the Consumer Sentinel Network and Data Book is available through www.FTC.gov/sentinel.
Decades-Old Fraud Case Settled After Over 12 Years
On February 10, the New York Attorney General’s office announced it had reached a settlement in a securities fraud suit filed in 2005 by then-Attorney General Eliot Spitzer. The lawsuit was filed after the company admitted to engaging in improper reinsurance transactions that materially misrepresented loss reserves and misstated underwriting results. The original settlement in 2006 resulted in the company paying $1.6 billion to settle the matter; however, the two individuals involved refused responsibility for the transactions. Now, over 12 years later, and after the two defendants’ arguments were “substantially rejected by the New York Supreme Court, the New York Supreme Court Appellate Division, First Department and the New York Court of Appeals,” the defendants have acknowledged their role in the transactions and agreed to collectively relinquish over $9.9 million they had received as performance bonuses from 2001 through 2004.
New DOJ Official to Oversee Fraud Section
Trevor McFadden, previously a partner with the law firm Baker McKenzie, was appointed Deputy Assistant Attorney General last month, with oversight over the Fraud and Criminal Appellate Sections. He takes over from Sung-Hee Suh, who was appointed to the role in September 2014.
Shaw v. United States - Supreme Court Holds That Fraud Against Customer Can Be Fraud Against Bank
In Shaw v. United States, No. 15-5991 (Dec. 12, 2016), the Supreme Court ruled 8-0 that Lawrence Eugene Shaw had defrauded a national bank when he used a customer’s personal details to transfer more than $275,000 from that bank’s customer’s account to his own PayPal account. In an opinion written by Justice Breyer, the Court rejected Shaw’s arguments that the conviction was inappropriate because prosecutors could not prove that Shaw intended to defraud the bank. The Court held, among other things, that: (i) the bank had a property interest in the customer’s deposits; (ii) the defendant’s ignorance of the application of property laws to bank deposits was not a defense; and (iii) the bank fraud statute does not require the government to prove that the defendant intended that the bank would suffer a loss; rather, his knowledge that the bank likely would suffer a loss was sufficient.
Despite this finding, the Supreme Court ultimately vacated the Ninth Circuit’s decision affirming the conviction and remanded it to the appellate court for consideration of whether a claimed defect in the jury instructions was properly preserved for appeal, whether the instructions were defective, and whether any resulting error was harmless.
Justice Department Recovers Over $4.7 Billion From False Claims Act Cases in Fiscal Year 2016
On December 14, the DOJ announced that it has obtained more than $4.7 billion in settlements and judgments in civil cases involving fraud and false claims against the government in fiscal year 2016 (ending September 30). Of the $4.7 billion recovered, $2.5 billion came from the health care industry, including drug companies, medical device companies, hospitals, nursing homes, laboratories, and physicians. The DOJ also recovered $1.6 billion from housing and mortgage settlements and judgments this past fiscal year – the second highest annual recovery in the history of the federally insured mortgage program.
There were 845 new False Claims Act suits in 2016, one of the largest totals in history. Of those, 143 were initiated by the government and 702 were brought by whistleblowers. Approximately $100 million was recovered in cases handled exclusively by whistleblowers and their attorneys—a sharp drop from the record $1.1 billion recovered in 2015, but an amount comparable to the averate amount recovered in previous years. Notably, the $4.7 billion recovered in 2016 does not include state shares. Such shares were significant in 2016 because of payouts involving the federal-state Medicaid program, with the top three health care settlements alone resulting in distributions of approximately $500 million to states.
Argentine Sports Marketing Firm Agrees to $112.8 Million Settlement in Connection with FIFA Corruption Investigation
An Argentine sports marketing firm, entered into a deferred prosecution agreement with the U.S. DOJ on December 13, admitting to wire fraud conspiracy in connection with paying tens of millions of dollars in bribes and kickbacks to high-ranking FIFA officials in order to secure support for broadcasting rights in Argentina, Uruguay, and Paraguay for the 2018, 2022, 2026, and 2030 World Cup. The four-year DPA calls for the firm to pay approximately $112.8 million in forfeiture and criminal penalties. In announcing the DPA, the DOJ noted its consideration of the firm’s remedial actions including termination of its entire senior management team, hiring a new General Manager, Chief Financial Officer, Legal Director, Chief Compliance Officer, and Compliance Manager, cooperation, and implementation of enhanced internal controls and a rigorous corporate compliance program.
The deferred prosecution agreement is part of the DOJ’s wider investigation into corruption in international soccer. Thus far, DOJ has charged 42 defendants and obtained 19 guilty pleas in connection with the FIFA corruption prosecutions. Prior Scorecard coverage of the FIFA investigations can be found here.
Federal District Court Holds Claims Brought by CFPB Alleging Deceptive Conduct Must Meet Heightened Rule 9(b) Standard
In a recent case, a California District Court held that CFPB’s claims alleging deceptive conduct under the Telemarketing Sales Rule (“TSR”) against a credit repair company failed to meet the heightened pleading requirement under Fed. R. Civ. P. 9(b), under which a plaintiff must “state with particularity the circumstances constituting fraud” – including pleading “the time, place, and specific content of the false representations.” CFPB v. Prime Marketing Holdings, LLC, CV 16-07111-BRO, Dkt. No. 32 (C.D. Cal. Nov. 15, 2016).
Specifically, the court in Prime Marketing Holdings concluded that the CFPB’s general allegations of deception “failed to identify any specific instances where the defendant made such a misrepresentation” including, for instance, “what representations were made, when these representations were made and to whom they were made.” Id. at 12-13. Based on this finding, the court dismissed without prejudice the four deception-based claims. Id.
FinCEN Issues Advisory on E-Mail Compromise Fraud Schemes
On September 6, FinCEN issued advisory bulletin FIN-2016-A003 notifying financial institutions of a growing number of e-mail compromise schemes, in which criminals misappropriate funds by deceiving financial institutions and their customers into conducting wire transfers. The advisory summarizes the three main stages of email compromise schemes, which involve impersonating victims to submit seemingly legitimate transactions instructions: (i) compromising victim information and e-mail accounts, whereby criminals access an e-mail account via social engineering or computer intrusion techniques; (ii) transmitting fraudulent transaction instructions, whereby criminals use stolen e-mail account information to send financial institutions fraudulent wire transfer instructions; and (iii) executing unauthorized transactions, whereby the fraudulent wire transfer instructions direct the financial institution to deposit the transfers to the criminals’ domestic or foreign banks. The advisory further warned of two prevalent email compromise schemes: i) Business E-mail Compromise (BEC), which targets commercial customers of financial institutions; and (ii) E-mail Account Compromise (EAC), which targets personal bank accounts. When conducting a BEC scheme, criminals will impersonate company employees, a company supplier, or a company executive to “authorize or order payment through seemingly legitimate internal e-mails.” EAC schemes, however, target individuals conducting large transactions through financial institutions, lending entities, real estate companies, and law firms. Developed in coordination with the FBI and the U.S. Secret Service, the advisory provides red flags for financial institutions to use to identify and prevent BEC and EAC e-mail fraud schemes.
SEC Announces $22 Million-Plus Whistleblower Award; Program Surpasses $100 Million in Awards
On August 30, the SEC announced that a whistleblower will receive more than $22 million for providing the SEC with a “detailed tip and extensive assistance” to help the agency uncover “well-hidden” securities fraud at the whistleblower’s company. The $22 million-plus award is the second largest SEC whistleblower award, following a $30 million award in September 2014. The SEC began the whistleblower program in 2011 and announced its first award in August 2012. Since then, the agency’s program has surpassed $100 million in total money awarded. More than 14,000 whistleblower tips have been submitted to the Whistleblower Office, with a total of 33 whistleblowers receiving monetary awards.