The CFPB and FTC have targeted the use of “dark patterns” on websites to influence consumer behavior.  We first discuss what regulators consider to be dark patterns and why they are a focus of  regulatory concern and look at examples.  We then discuss the empirical issues and behavioral theories a company should expect regulators to raise if it is the target of a dark patterns investigation or enforcement action, what proactive steps a company can take to reduce the risk of a dark patterns challenge and the role of A/B testing, the practices most likely to be the focus of future dark pattern challenges by regulators, and principles to consider when designing online interactions with consumers so as to avoid potential dark patterns.… Continue Reading

The CFPB has filed a Notice of Appeal with the U.S. Court of Appeals for the Seventh Circuit from the district court’s decision in the CFPB’s enforcement action against Townstone Mortgage (Townstone).  In the case, the district court ruled that a redlining claim may not be brought under the Equal Credit Opportunity Act (ECOA) because the statute only applies to applicants.… Continue Reading

Many people have asked me if the Second Circuit’s opinion in CFPB v. Law Offices of Crystal Moroney, which held that the CFPB’s funding does not violate the Appropriations Clause, changes my mind about how the Supreme Court will rule in CFSA v. CFPB.  It is noteworthy that two of the three judges on the Second Circuit panel were appointed by Republican Presidents, including one appointed by President Trump. … Continue Reading

On March 30, 2023, a three-judge panel of the Superior Court of Pennsylvania held in a precedential opinion that debt collectors can send collection letters to debtors after the expiration of the statute of limitations without violating federal or Pennsylvania law, so long as the debt collector does not file suit in court.… Continue Reading

On March 30, the Consumer Financial Protection Bureau issued its final rule to implement Section 1071 of the Dodd-Frank Act.  Section 1071 amended the Equal Credit Opportunity Act to require financial institutions to collect and report certain data in connection with credit applications made by small businesses, including women- or minority-owned small businesses. … Continue Reading

On March 30, 2023, the White House endorsed several proposals to strengthen regulatory requirements for the banking industry in the wake of the Silicon Valley Bank and Signature Bank failures. This comes on the heels of President Biden’s March 13, 2023 remarks where he noted his intention to ask Congress and the banking regulators to “strengthen the rules for banks” to decrease the likelihood of similar failures in the future.… Continue Reading

The Consumer Financial Protection Bureau has issued its long-awaited final rule to implement Section 1071 of the Dodd-Frank Act.  Section 1071 amended the Equal Credit Opportunity Act to require financial institutions to collect and report certain data in connection with credit applications made by small businesses, including women- or minority-owned small businesses.… Continue Reading

Earlier this week, the U.S. Supreme Court agreed to hear a case in which the question presented is whether an Americans with Disabilities Act (ADA) “tester” has Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacked any intention of visiting that place of public accommodation. … Continue Reading

On March 23, 2023, the Federal Trade Commission (“FTC” or “Commission”) issued a Notice of Proposed Rule Making (“NPRM”) seeking comment on proposed amendments to the Commission’s Negative Option Rule.  The proposed amendments, which would expand the scope of the rule’s coverage to all forms of negative option marketing and consolidate various requirements dispersed across various statutes and regulations, include a “click to cancel” provision which would require a simple cancellation mechanism for consumers to easily cancel subscriptions by using the same method they used to initially enroll.… Continue Reading

On March 23, 2023, the CFPB filed a complaint and proposed judgment against Portfolio Recovery Associates, LLC (“PRA”), one of the largest debt collectors in the United States.  If entered by the court, the proposed judgment would require PRA to pay $12.18 million to allegedly harmed consumers and $12 million to the CFPB as a civil penalty.… Continue Reading