In a letter to three representatives of consumer advocacy groups, CFPB Acting General Counsel Seth Frotman indicated that due to “repeated reports of confusion” caused by the CFPB’s November 2020 advisory opinion (AO) on earned wage access (EWA) programs, he plans to recommend to Director Chopra “that the CFPB consider how to provide greater clarity on these types of issues.”

The AO addressed whether an EWA program with the characteristics set forth in the AO was covered by Regulation Z.  Such characteristics included the absence of any requirement by the provider for an employee to pay any charges or fees in connection with the transactions associated with the EWA program and no assessment by the provider of the credit risk of individual employees.  The AO set forth the Bureau’s legal analysis on which it based its conclusion that the EWA program did not involve the offering or extension of “credit” within the scope of Regulation Z.  In the AO, the CFPB observed that there may be EWA programs with nominal processing fees that nonetheless do not involve the offering or extension of “credit” under Regulation Z and advised that providers of such programs can request clarification about a specific fee structure.

Mr. Frotman’s letter responds to a letter sent to him by the representatives regarding proposed New Jersey legislation that would provide that certain EWA products would not be treated as loans under New Jersey law.  As described in his letter, the bill would allow EWA companies to operate in New Jersey, and charge fees/and or “tips” for their products, without being subject to the state’s 30% usury cap and other protections that apply to consumer credit transactions.  Mr. Frotman stated that the representatives indicated in their letter that proponents of the bill had cited the AO as justification for its passage.  He also referenced a letter sent to Director Chopra in October 2021 by a group of 96 organizations and individuals, who described themselves as consisting of “consumer, labor, civil rights, legal services, faith, community and financial organizations and academics” and urged the Bureau to regulate fee-based EWA products as credit subject to the Truth in Lending Act (TILA).  Mr. Frotman stated that both that letter and the representatives’ letter “make evident that the advisory opinion has caused significant confusion in the marketplace.”

As further described in Mr. Frotman’s letter, the New Jersey bill “would allow a provider to charge a consumer for earned income access services two times in any week” and “has no limit…on products with ‘optional’ fees or ‘tips’.”  Mr. Frotman indicated that, based on these features alone, the AO provides no support for the bill because the AO on its face, was limited to circumstances where the employee was not required to pay any charges or fees for the EWA product.

While acknowledging that the AO had left open the possibility that an EWA product with nominal processing fees might not be “credit” under Regulation Z, Mr. Frotman suggested that possibility is remote.  More specifically, he noted that the CFPB had expressly limited the AO’s application to EWA programs meeting all of the characteristics set forth in the AO and stated that “products that include the payment of any fee, voluntary or not, are excluded from the scope of the advisory opinion and may well be TILA credit.”  Mr. Frotman also noted that the AO does not speak to whether EWA products would be “credit” under federal laws other than the TILA, such as the CFPA or the ECOA, or under state law.

We believe that if Director Chopra agrees with Mr. Frotman that more clarity is needed, the CFPB will use the “clarification” to attempt to maximize the reach of consumer financial protection laws to EWAs and other products that may be on the periphery of what may be considered credit products.

The CFPB has announced that it will begin examining post-secondary schools, such as for-profit colleges, that extend private loans directly to students and/or parents to fund undergraduate, graduate, and other forms of postsecondary education.  The announcement was accompanied by the CFPB’s issuance of an update to its Education Loan Examination Procedures manual.  The update includes a new section on credit extended by schools directly to students and/or parents, which the manual refers to as “institutional loans.” even though they may actually be installment sales transactions.

The Dodd-Frank Act gave the CFPB supervisory authority over entities that originate private education loans.  It also gave the CFPB supervisory authority over the servicing of student loans by large banks.  In 2013, the CFPB issued a “larger participant rule” that allows it to supervise any nonbank servicer of federal or private student loans if the servicer’s account volume, as defined by the rule, exceeds one million accounts.

According to the CFPB’s press release, the decision to begin examining schools making direct loans stems from the CFPB’s “concern[] about the borrower experience with institutional loans because of past abuses at schools, like those operated by Corinthian and ITT, where students were subjected to high interest rates and strong-arm debt collection practices.”  The CFPB notes that “[s]chools have not historically been subject to the same servicing and origination oversight as traditional lenders.”

The update is intended to require CFPB examiners, “in addition to looking at general lending issues, [to] review the facts around certain actions only schools can take against their students.”  Specifically, the update adds a new section titled “Additional Concerns for Institutional Lenders” that directs examiners to determine the following when examining schools:

  • Whether the school calculates fees and tuition in connection with the credit product and if so, calculates these items in accordance with the terms of the program the borrower attends
  • Whether the school accurately and timely credits account transactions, including calculations of account balances following the distribution or return of aid
  • Whether the school uses payment plans or temporary credits for all or any portion of its programs
  • How the school calculates and issues refunds to borrowers who withdraw from the school or a program before completing the program or term for which the loans were taken out
  • Whether and under what circumstances the school withholds transcripts from or otherwise refuses to certify program completion for students who owe a debt
  • Whether and under what circumstances the school imposes any enrollment restrictions on institutional loan borrowers based on their repayment status
  • Whether and under what circumstances the school imposes additional fees or increases tuition on institutional loan borrowers based on their repayment status
  • Whether the school uses acceleration clauses with its institutional loans in situations where a borrower who withdraws from the school or a program owes more than the proportional cost of the time they were enrolled in the program (and if the school uses such clauses, to compare the schools policies to those for the return of unused federal funds for similar programs)
  • Whether a loan product is a private education loan as defined by Regulation Z and if so whether the school complies with the TILA prohibition on the use of prepayment penalties for such loans

The press release includes a reference to “kickback arrangements that gave schools the incentive to steer students into certain loans” that received attention from regulators in the mid-2000s and includes “maintaining improper lending relationships” as one of the issues CFPB examiners will be looking at when examining schools.  This is not a new line of inquiry for CFPB examiners, however.  Prior to the update, the manual already directed examiners to determine whether a lender making private student loans had established “a partnership, referral relationship, or preferred lender agreement with any educational institution regarding the [lender’s] private education lending programs” and, if so, to make certain assessments.

 

 

In this wide-ranging conversation with two experienced reporters on the consumer finance industry, we discuss differences between the current CFPB and the Trump-era CFPB, including with regard to areas of regulatory and enforcement focus such as UDAAP, consumer access to financial information, small business issues, and fair lending.  We also discuss the potential implications of the current CFPB’s interest in buy-now-pay-later and its inquiry into large technology companies that offer payment services.  Other topics include the potential impact of the recent leadership turmoil at the FDIC and expectations for activity by state regulators and attorneys general.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation.

Click here to listen to the podcast.

The D.C. federal district court has granted the motions filed by the CFPB and the Consumer Financial Services Association (CFSA) to dismiss the lawsuit brought by the National Association for Latino Community Asset Builders (NALCAB).  (The CFSA had intervened in the lawsuit.)  In the lawsuit, the NALCAB sought to overturn the CFPB’s July 2020 final rule (2020 Rule) rescinding the “ability-to-repay” (ATR) or “mandatory underwriting provisions” in its 2017 final payday/auto title/high-rate installment loan rule (2017 Rule).

The district court found that the NALCAB had neither organizational standing on its own behalf nor associational standing on behalf of its members to bring the lawsuit.  To have organizational standing, the NALCAB was required to show that the rescission of the ATR provisions “perceptibly impair[ed] its ordinary operations.”  The NALCAB alleged that the rescission required increased expenditures because of the need to continue to devote resources to educating its member organizations and their staff about issues related to no-underwriting lending.  The court concluded that such increased expenditures did not qualify as a cognizable organizational injury to the NALCAB.

The district court also found that the NALCAB’s attempt to assert associational standing on behalf of one of its members, Mission Economic Development Agency (MEDA), failed for the same reason. The NALCAB argued that MEDA had a cognizable injury stemming from the 2020 Rule because it caused more MEDA clients to need more financial coaching and thus impaired MEDA’s work.  According to the district court, an increased demand for MEDA’s services and a reallocation of resources to meet that demand was not sufficient to qualify as a cognizable organizational injury to MEDA.

The NALCAB lawsuit had created a threat of the ATR provisions being reinstated.  Unless the CFPB under Director Chopra decides to reopen its payday loan rulemaking (something which most observers think is unlikely), the dismissal of the lawsuit has removed that threat for now.  However, it is likely the industry will continue to face CFPB scrutiny of its underwriting practices under Director Chopra.   Despite approving the filing of the CFPB’s motion to dismiss, former Acting Director Uejio made clear, when the motion was filed, that the motion was not intended to indicate that the “new CFPB” supported the 2020 Rule.  He explained in a blog post that the 2020 Rule “was challenged in court and the Bureau had a legal obligation to respond to the lawsuit,” which it did by filing a brief “addressing only the court’s jurisdiction to hear the case.”  He stated further that “the Bureau continues to believe that ability to repay is an important underwriting standard.  To the extent small dollar lenders’ business models continue to rely on consumers’ inability to repay, those practices cause harm that must be addressed by the CFPB.”

The industry also continues to face the very real possibility that it will be required to comply with the payment provisions in the 2017 Rule if the CFSA is unsuccessful in the Fifth Circuit.  The CFSA has appealed from the district court’s final judgment granting the CFPB’s summary judgment motion in the CFSA’s lawsuit challenging the payment provisions.  The district court stayed the compliance date for the payment provisions until 286 days after August 31, 2021 (which would have been until June 13, 2022).  After the appeal was filed, the Fifth Circuit entered an order staying the compliance date of the payment provisions until 286 days after the trade groups’ appeal is resolved.

The Conference of State Bank Supervisors (CSBS) has withdrawn its lawsuit filed in D.C. federal district court in December 2020 seeking to block the OCC from granting a national bank charter to Figure Technologies Inc.  The lawsuit represented the CSBS’s third challenge to the OCC’s authority to issue special purpose national bank (SPNB) charters to non-depository fintech companies or to uninsured deposit-taking fintechs.  The first two lawsuits were dismissed on ripeness grounds.

In its press release announcing the withdrawal, the OCC stated that in December 2021, Figure Technologies amended its charter application for Figure Bank, National Association, to offer FDIC-insured deposit accounts.  The OCC indicated that in connection with this amendment, the bank organizers will apply to the FDIC for deposit insurance, and Figure Technologies, Inc. will apply for approval from the Federal Reserve Board  to become a bank holding company under Section 3 of the Bank Holding Company Act.

In June 2021, the lawsuit was stayed in response to an unopposed stay motion filed by the CSBS that referenced Acting Comptroller Hsu’s May 2021 testimony to the House Financial Services Committee indicating that the OCC was reviewing its framework for chartering national banks.  The stay motion followed the OCC’s filing of a motion to dismiss the lawsuit in which, in addition to challenging the CSBS’s standing, the OCC argued that the National Bank Act (NBA) gives it authority to issue SPNB charters to non-depository companies and that it has authority to reasonably interpret the NBA to determine that a national bank is not required to obtain deposit insurance to lawfully commence “the business of banking.”

In its press release, the OCC indicated that although it continues to “maintain[] that it has the authority to charter an uninsured institution, including one that takes deposits…Figure Technologies’ decision to amend the application and seek a full service charter rendered the lawsuit moot.”  The press release also included the following statement from Acting Comptroller Hsu:

I am pleased that the OCC can now consider Figure’s application without the cloud of a lawsuit.  The amendments to Figure’s banking applications, if approved, will help ensure that the innovative activities engaged in by the bank are done in a safe, sound, and responsible manner, on a level playing field and fully within the bank regulatory perimeter.  There needs to be less regulatory competition and more coordination.  We must modernize the regulatory perimeter as a prerequisite to conducting business as usual with firms interested in novel activities.  Modernizing the bank regulatory perimeter cannot be accomplished by simply defining the activities that constitute ‘doing banking,’ but will also require determining what is acceptable activity to be conducted in a bank. Consolidated supervision will help ensure risks do not build outside of the sight and reach of federal regulators.

The question of what activities constitute the “business of banking” is addressed by 12 C.F.R. § 5.20(e)(1).  Section 5.20(e)(1) provides in part:

The OCC charters a national bank under the authority of the National Bank Act of 1864, as amended, 12 U.S.C. 1 et seq.  The bank may be a special purpose bank that limits its activities to fiduciary activities or to any other activities within the business of banking.  A special purpose bank that conducts activities other than fiduciary activities must conduct at least one of the following three core banking functions: Receiving deposits; paying checks; or lending money.

In July 2018, relying on the NBA and Section 5.20(e)(1), the OCC issued a policy statement confirming that it would begin accepting applications for SPNB charters from non-depository fintechs.  In addition to the CSBS lawsuits, the policy statement led to the filing of lawsuits by the NYDFS that similarly challenged the OCC’s authority to issue SPNB charters to non-depository fintech companies.  Although the NYDFS’s first lawsuit was dismissed for lack of standing, the district court, in the second NYDFS lawsuit, concluded that the term “business of banking” as used in the NBA, “read in the light of its plain language, history, and legislative context, unambiguously requires that, absent a statutory provision to the contrary, only depository institutions are eligible to receive national bank charters.”  The OCC appealed that decision to the Second Circuit which reversed the district court and ruled that the complaint should be dismissed because the NYDFS lacked standing and its claims were not constitutionally ripe.  As a result, the Second Circuit did not have jurisdiction to reach the district court’s holding, on the merits, of whether the “business of banking” under the NBA requires the receipt of deposits.

The statements in the OCC’s press release are ambiguous.  Although the OCC maintains “that it has the authority to charter an uninsured institution,” we fear that the amendment to the Figure Technologies charter application (likely at the behest of the OCC) and the conciliatory statements in the press release about “regulatory competition and more coordination” and “modernizing the regulatory perimeter” with “[c]onsolidated supervision” reflects a retreat by the OCC and a decision, at least under the current the Acting Comptroller, to shut the OCC’s doors to charter applications from non-depository fintechs.

The CFPB has issued a compliance bulletin and policy guidance on medical debt collection and consumer reporting requirements in connection with the No Surprises Act.

The No Surprises Act sets forth requirements that apply to certain individuals who receive care from an out-of-network provider that furnishes emergency services, inpatient services an in-network facility, or air ambulance services.  The Act applies to health plan years beginning on or after January 1, 2022.

FDCPA.  In the bulletin, the CFPB cautions debt collectors about the intersection of certain Fair Debt Collection Practices Act (FDCPA) prohibitions and the No Surprises Act.  In particular, the CFPB advises that the FDCPA prohibition on the use of “false, deceptive, or misleading” representations includes misrepresenting that a consumer must pay a debt stemming from a charge that exceeds the amount permitted by the No Surprises Act.  It also notes that courts have found that collecting an amount that exceeds what is owed could violate the FDCPA prohibition on the use of “unfair or unconscionable means” to collect a debt.

Credit reporting.  In the bulletin, the CFPB also cautions consumer reporting agencies (CRAs) and furnishers of information relating to unpaid medical debts to CRAs about the intersection of the Fair Credit Reporting Act (FCRA) and Regulation V and the No Surprises Act.  The CFPB reminds CRAs and furnishers of the following FCRA/Regulation V requirements:

  • When preparing a consumer report, CRAs must follow procedures to ensure maximum accuracy of the information reported;
  • Furnishers must establish and implement reasonable procedures regarding the accuracy and integrity of the information they furnish to CRAs; and
  • Both CRAs and furnishers must conduct reasonable and timely investigations of consumer disputes to verify the accuracy of furnished information.

The CFPB advises CRAs and furnishers that these accuracy and dispute requirements apply with respect to debts from charges that exceed the amount permitted by the No Surprises Act.  Accordingly, a furnisher of information to a CRA indicating that a consumer owes a debt arising from out of network charges, or a CRA that includes such information in a consumer report, may violate the FCRA and Regulation V if the amount of the charges exceed the amount permitted by the No Surprises Act or if the furnisher or CRA fails to meet its dispute obligations.

It is important to evaluate what steps can be taken to reduce the risk of potential liability for the types of claims outlined above when collecting or furnishing information on medical debts.  Attorneys in Ballard Spahr’s Employee Benefits and Executive Compensation and Health Law Practice Groups are advising clients on the No Surprises Act and rules and are closely monitoring related developments.  Members of these groups recently issued a briefing on the No Surprises Act rules and regularly report on developments on the firm’s Health Care Reform Dashboard.  They are available to work with members of the firm’s Consumer Financial Services Group who regularly advise on debt collection and FCRA compliance matters.

The CFPB filed a complaint earlier this week in a New York federal district court against three companies that purchase defaulted debts (Corporate Defendants) and three individuals who are owners and/or officers of the Corporate Defendants (Individual Defendants).  (Click here to read the statement from United Holding Group, LLC, one of the Corporate Defendants, about the lawsuit.)

The Bureau alleges that the Corporate Defendants (1) placed consumer debts directly with debt collectors that collected the debts on their behalf or with “master servicers” who then placed the debts with debt collectors that collected the debts on their behalf, and (b) sold consumer debts to debt collectors, some of whom were contractually required to make ongoing payments to the Corporate Defendants.  The CFPB alleges that both debt collectors who collected debts on the Corporate Defendants’ behalf and debt collectors to whom the Corporate Defendants sold debts used deceptive collection tactics, including false threats of lawsuits, arrest, and jail, and false statements about credit reporting.  The CFPB’s claims against the defendants consist of claims for direct violations of the CFPA and FDCPA and claims for substantially assisting CFPA violations by debt collectors.

Direct Violations.  The CFPB alleges that the Corporate Defendants and the Individual Defendants violated the CFPA’s UDAAP prohibition by falsely representing through debt collectors with whom they placed debts that consumers would be sued if they did not settle their debts or that repayment (or not repaying) would affect their credit scores.  According to the CFPB, the defendants did not authorize these debt collectors to sue consumers, did not intend to sue consumers imminently, and did not furnish information to consumer reporting agencies.  It also alleges that two of the Corporate Defendants violated the FDCPA by making these false representations and that such FDCPA violations also constituted CFPA violations.

Substantial Assistance.  The CFPB alleges:

  • Debt collectors with whom all of the Corporate Defendants placed debts and debt collectors to whom they sold debts violated the CFPA UDAAP prohibition by making false threats of lawsuits and false statements about credit reporting.  All of the defendants knowingly or recklessly provided substantial assistance to the debt collectors in violation of the CFPA because they knew, or should have known, of the debt collectors’ deceptive practices and continued to place debts with or sell debts to the debt collectors.  In the complaint, among the allegations made by the CFPB to support its allegation that the defendants “knew or should have known” is the defendants’ receipt of hundreds of complaints about false threats and statements by debt collectors and recordings of phone calls in which debt collectors made such threats or statements.
  • Debt collectors to whom one of the Corporate Defendants sold debts violated the CFPA UDAAP prohibition by making false threats of arrest or jail.  This Corporate Defendant and one of the Individual Defendants (who owned and managed the Corporate Defendant) knowingly or recklessly provided substantial assistance to these debt collectors in violation of the CFPA because they knew, or should have known, of the debt collectors’ false threats and continued to sell debts to them.

The CFPB’s claims in this enforcement action strike us as particularly aggressive because rather than taking action against the debt collectors used by the Corporate Defendants or the debt buyers to whom they sold debts, it is seeking to hold the Corporate and Individual Defendants directly and separately responsible for the violations committed by these third parties.  As such, the takeaway for debt sellers (including first-party creditors) is that they should perform appropriate due diligence when selecting debt collectors or debt buyers, monitor debt collectors and debt buyers for compliance with applicable consumer protection laws and regulations, and take appropriate action promptly when compliance issues arise to ensure full remediation of any issues.

 

 

 

 

 

We look at the legal considerations that should be addressed when developing subscriptions for consumer financial products and services.  After reviewing the practices addressed by federal and state automatic renewal/subscription laws and the types of products and services covered by such laws, we discuss legal requirements for subscriptions and renewals such as up-front disclosures, notification obligations, and cancellation options, federal and state enforcement actions, and private litigation.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation joined by Kim Phan and Jason Cover, partners in the firm’s Consumer Financial Services Group, and Jill Dolan, an associate in the Group.

Click here to listen to the podcast.

The FTC announced last week that it has entered into a settlement with ITMedia Solutions LLC, a lead generation company, and a group of affiliated companies (collectively, ITMedia), and several individuals who served as officers of ITMedia, to resolve a complaint filed by the FTC in a California federal district court alleging that the defendants’ conduct violated the FTC Act and FCRA.  The settlement requires the defendants to pay a $1.5 million civil penalty to the FTC.

In its complaint, the FTC alleges that ITMedia:

  • operates websites that urge consumers to complete loan applications in which they are asked to provide sensitive financial information, including their Social Security numbers and bank account information.
  • induces consumers to complete applications by assuring that it will share information only with “qualified and trusty” loan providers and will only share information to find a loan for the consumer.
  • represents that loans are available without regard to credit scores or history to consumers who complete ITMedia’s application.
  • sells information to entities other than lenders (such as marketers, debt relief, and credit repair companies), and without regard for whether an entity purchasing leads would check and evaluate a consumer’s creditworthiness.
  • transmits loan applications to prospective lead buyers without masking or otherwise restricting access to sensitive information resulting in the sharing of sensitive information with multiple entities that have not committed to purchase the information.
  • lacks policies and procedures that require an entity obtaining leads to certify that it uses the information solely to respond to the consumer’s loan request or that provide for ITMedia’s assessment or investigation of whether lead purchasers safeguard information or use such information for purposes other than making a loan.
  • uses credit scores it purchases of consumers who submit applications for marketing purposes such as setting lead prices and sends information to potential lead buyers with codes identifying the range into which a consumer’s credit score falls or filter leads based on credit score ranges selected by potential buyers without requiring the potential buyer to identify each recipient or end user of the leads and certify it will use the leads only to respond to the consumer’s loan request.
  • represents to the consumer reporting agencies (CRAs) from which it purchases credit scores that it will use the scores to prequalify consumers without (1) acknowledging that it uses the scores for marketing purposes, (2) providing the identities of the entities to which it has furnished score-based information, or (3) providing the CRAs with the purposes for which such entities use such information.
  • shares sensitive information with entities that are not using the information solely to respond to the consumer’s request without the consumer’s knowledge or consent (or with any disclosures regarding such sharing “buried in dense text, in small font, and in single space type” that could only be reached via a hyperlink that did not appear on the same pages as the loan application and which consumers were not required to view before submitting an application.)

Based on the above allegations, the FTC alleges that the defendants’ violated:

  • the FTC Act by (1) making deceptive representations regarding how their information and applications would be used, and (2) unfairly distributing sensitive information without consumers’ knowledge or consent and without regard to whether the recipients are lenders or otherwise had a legitimate need for the information.
  • the FCRA by obtaining and using credit scores without a permissible purpose and reselling credit scores without complying with the FCRA’s reseller requirements.

In addition to payment of the $1.5 million civil penalty, the Stipulated Order requires the defendants to establish, implement, and maintain procedures to verify the legitimate need for and use of consumer’s sensitive information by any person to whom they sell, transfer, or disclose such information, and prohibits them from obtaining or using a consumer report for other than a permissible purposes and from reselling consumer reports without complying with FCRA requirements.

Since conducting a 2015 workshop on lead generation and issuing a staff paper in 2016, lead generation has been an FTC enforcement focus.  In its enforcement actions, the FTC has targeted both lead generators and users of their services.  Having continued to target lead generation during the Trump Administration, the FTC can be expected to target lead generation even more aggressively under Democratic leadership.  On February 2, 2022, from 12:00 p.m. to 1:00 p.m. ET, Ballard Spahr attorneys will hold a webinar, “What are the Compliance Risks for Lead Generators and Lead Buyers?”  Click here to register.

The U.S. Court of Appeals for the Eleventh Circuit has scheduled oral argument in the rehearing en banc in Hunstein v. Preferred Collection and Management Services, Inc. for February 22, 2022.  After ordering the rehearing en banc in November 2021, the Eleventh Circuit issued a memorandum indicating that for purposes of the rehearing, the Court wanted counsel to focus their briefs on the question: “Does Mr. Hunstein have Article III standing to bring this lawsuit?”

The district court had dismissed Mr. Hunstein’s complaint for failing to state a claim, concluding that he had not sufficiently alleged that the debt collector’s transmittal of information to the vendor violated Section 1692c(b) of the FDCPA because the transmittal did not qualify as a “communication in connection with the collection of any debt.”  After a unanimous Eleventh Circuit panel reversed the lower court’s dismissal and ruled that the plaintiff had stated a FDCPA claim, in response to the defendant’s first effort to obtain a rehearing, the panel vacated its original opinion and substituted a new opinion.

In the substituted new 2-1 opinion, the majority again concluded that the plaintiff had sufficiently alleged a potential claim for a violation of Section 1692c(b) of the FDCPA.  The new opinion was vacated by the Eleventh Circuit’s order to rehear the case en banc.