Firm Alerts

The New York Department of Financial Services released revised regulations implementing the Commercial Finance Disclosure Law. These regulations set forth the precise formatting and calculation methods providers must use to make commercial financing offers in amounts under $2.5 million. This version was released after 18 comments were submitted to the Department during the public comment period. The revised regulations propose several key changes and clarifications. Read More

On August 29, 2022, Blue Ridge Bank (“Bank”), which has $2.8 billion in assets, entered into a formal written agreement with the Office of the Comptroller of the Currency (“OCC”) regarding the Bank’s oversight of its fintech partners. The OCC found unsafe and unsound practices relating to Bank oversight of third-party risk, Bank Secrecy Act/Anti-Money Laundering risk management, suspicious activity reporting and information technology control and risk governance.

The entire Eleventh Circuit Court of Appeals reheard Hunstein v. Preferred Collection and Management Services and reversed the previous panel holding. The entire Eleventh Circuit now holds (8 to 4) that plaintiff Hunstein failed to allege a concrete harm that would provide Article III standing to pursue his claims in federal court. Previously, a three-judge panel of the Eleventh Circuit previously found Hunstein had standing to sue, which spawned thousands of copycat cases across the country. See our ALERT dated Nov. 18, 2021. This case does not address the underlying substantive question of...

The California Attorney General Rob Bonta announced a settlement with Sephora, Inc. involving certain alleged California Consumer Privacy Act (“CCPA”) violations. The complaint against Sephora alleged that Sephora did not properly process certain consumer opt out requests, did not disclose to consumers that their personal information was being sold and failed to clearly and conspicuously post a “Do Not Sell My Personal Information” link in violation of the CCPA. According to the complaint, Sephora also allegedly allowed third parties tracking software to create profiles on their customers in...

Recently the CFPB released an interpretative rule providing that certain digital marketers may be considered “service providers” under the Consumer Financial Protection Act (“CFPA”) and thus subject to the CFPA’s prohibition on unfair, deceptive or abusive acts or practices (“UDAAP”). The CFPA is applicable to service providers who provide a material service to “covered persons” under the CFPA. In the interpretative rule, the CFPB determined that digital marketers engage in a material service when they assist in developing content strategies through identifying and selecting prospective...

Last month, the Federal Trade Commission filed a complaint and executed a stipulated order against First American Payment Systems and two companies that market First American’s payment processing services. The FTC alleged that First American and its marketers violated the Federal Trade Commission Act (“FTCA”) and the Restore Online Shoppers’ Confidence Act (“ROSCA”). First American provides payment processing services to small businesses and sole proprietors to allow them to take credit and debit cards. The FTC alleged that First American tricked its merchants by (i) failing to disclose that...

On August 18, 2022, the FDIC issued guidance for financial institutions regarding the practice of charging multiple re-presentment NSF fees. According to the FDIC, through compliance examinations, the FDIC identified violations of law when financial institutions charged multiple NSF fees for the re-presentment of unpaid transactions. The FDIC stated in the guidance that disclosures given to consumers did not fully and clearly disclose multiple representment NSF fee policies. Specifically, financial institutions failed to sufficiently explain how an item being presented more than once could...

On July 20, 2022, an amended version of the American Data Privacy and Protection Act (“ADPPA”) was passed out of the House Committee on Energy & Commerce by a 53-2 vote. Some of the major changes made by the Committee since the ADPPA was introduced include specifically granting authority to the California Privacy Protection Agency to enforce the ADPPA in California, shortening the private right of action grace period to 2 years from 4 years and expanding the definition of sensitive covered data to include race, color, ethnicity, religion, union membership and internet browsing history...

The California Department of Financial Protection (“DFPI”) and Innovation has released a draft text of new rulemaking regarding the scope, reporting and record retention requirements of the Debt Collection Licensing Act (“DCLA”). The proposed rulemaking would exempt from licensure: (i) original creditors who meet certain criteria; (ii) servicers of current debts on behalf of original creditors; (iii) certain healthcare providers, healthcare facilities and hospitals; (iv) student loan servicers; (v) employees of DCLA-licensed debt collectors; (vi) government entities; and (vii) certain public...

The Consumer Financial Protection Bureau has issued an advisory opinion interpreting the federal Fair Debt Collection Practices Act to prohibit a debt collector from charging a convenience fee to consumers unless either the agreement creating the debt or applicable law expressly authorize the fee. The advisory opinion interprets 15 U.S.C. § 1692f(1)’s prohibition on collecting “any amount (including any interest, fee, charge or expense incidental to the principal obligation) unless such amount is expressly authorize by the agreement creating the debt or permitted by law.” The CFPB now...