Firm Alerts

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...

In a blog post, Rohit Chopra, Director of the Consumer Financial Protection Bureau (“CFPB”), announced the CFPB’s intent to re-examine and update a broad range of consumer financial regulations. The goal of this re-examination, according to Director Chopra, is the simplification of what he brands an “overly complicated” regulatory landscape. Consequently, the CFPB plans to re-examine landmark rules inherited from other agencies or promulgated in the first decade of the CFPB’s existence, as well as the regulatory implementation of longstanding Congressional directives. The CFPB argues that...

The Consumer Financial Protection Bureau (“CFPB”) issued an Advance Notice of Proposed Rulemaking (“ANPR”) on credit card late payment fees, returned payment fees and the fee safe harbor under Truth in Lending Act, the CARD Act and Regulation Z. The notice asks for comment from credit card issuers, consumer groups and the public, regarding credit card late fees, late payments and card issuers’ revenue and expenses. he request for comment is part of the CFPB’s larger “Junk Fee Initiative.” The CFPB trumpets the request for information as “the first step toward addressing credit card company...

The Consumer Financial Protection Bureau (“CFPB”) has taken two actions to encourage state governments to bring enforcement actions for alleged violations of any federal consumer financial laws enforced by the CFPB. First, the CFPB issued an interpretive rule delineating state governments’ authority to enforce federal consumer protection laws. Second, the CFPB began issuing Consumer Financial Protection Circulars, guidance directed at state attorneys general and regulators. The CFPB issued an interpretive rule delineating states’ authority to bring civil suit against alleged (i) unfair,...

On June 3, 2022, a bipartisan group of legislators from the House and Senate announced a data privacy bill titled the American Data Privacy and Protection Act (“ADPPA”). While there are many hurdles the bill must overcome before it is enacted, the bipartisan group of legislators hope this announcement will be the first step towards improving United States privacy laws. The ADPPA contains similar provisions to those in currently enacted state privacy laws. The ADPPA applies to covered entities, meaning (i) any entity that collects, processes or transfers covered data and (a) is subject to the...