Barbara S. Mishkin

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We discuss the industries and practices that have been the subject of recent FTC enforcement focus, including: marketing, servicing, and collection practices involving small business financing such as merchant cash advances; auto add-on product sales practices; product endorsements and reviews; dark patterns; marketing practices of for-profit schools; lead generation; and COVID-related fraud. … Continue Reading

We discuss the growing trends in privacy litigation, particularly litigation targeting company practices regarding the sharing and sale of consumer personal data, plaintiffs’ liability theories, including the right of publicity, and best practices for companies to consider in order to reduce the risk of privacy claims.

Aliza Karetnick, a Ballard Spahr partner and Leader of the firm’s cross-practice Consumer Products and Retail Team, leads the conversation, joined by Phil Yannella, a Ballard partner and Practice Leader of the firm’s Privacy and Data Security Group, and Greg Szwczyk, a Ballard partner and member of the firm’s Privacy and Data Security Group.… Continue Reading

We first look at NCLC’s legislative priorities, which include a 36% national interest rate cap and credit reporting reform, and the prospects for Congressional action.  Ms. Saunders then provides NCLC’s perspective on areas of potential CFPB regulatory action including overdraft and other fees labeled “junk fees” by the CFPB, earned wage access programs, buy-now-pay later products, income share agreements, the use of artificial intelligence in underwriting and collections, fraud in peer-to-peer payment services, the use of unfairness to challenge non-credit discrimination, and mandatory arbitration.… Continue Reading

The CFPB recently announced that it is updating its exam manual to direct its examiners to consider discriminatory conduct an “unfair” act or practice represents a significant expansion of its UDAAP authority.  We discuss: the CFPB’s legal theory; types of products/services/bases for discrimination the CFPB could reach using unfairness and role of disparate impact analysis; what manual updates tell examiners to ask about and look at; implications for entities the CFPB does not supervise or have jurisdiction over; likely legal challenges to the Bureau’s theory; and how companies can prepare.… Continue Reading

Our special guests are the authors of a 259-page study, “Reboot Required: The Civil Justice System Has Crashed,” which makes the case that the civil justice system has been corrupted by corporations and no longer protects average Americans from corporate abuse.  The study is accompanied by a draft model law intended to create new rights and protections for consumers. … Continue Reading

Professor Peterson, who served at the CFPB under former Director Cordray, shares his perspective on the CFPB’s publicly-announced enforcement activities and initiatives under Director Chopra and what they might signal for future enforcement and supervisory activities.  The matters discussed include the UDAAP implications of the CFPB’s focus on pricing in its enforcement action against JPay, the CFPB’s use of UDAAP to challenge discrimination not involving credit, and the CFPB’s junk fees initiative and approach to technology. … Continue Reading

Although the decision narrowed the technology covered by the TCPA’s automatic telephone dialing system definition, the TCPA continues to be very dangerous.  We first discuss the plaintiff bar’s case strategy in response to the decision and the decision’s implications for defendants’ case strategy.  We then look at the increasing volume of cases alleging violations of the TCPA provisions on calls using an artificial or prerecorded voice and do-not-call, identify the most significant remaining TCPA risks companies face, and offer thoughts on steps companies can take to reduce TCPA risk.… Continue Reading

We discuss how lead generation works, the roles of the various players in the lead generation marketplace, the key regulatory risks arising under the Fair Credit Reporting Act, Telephone Consumer Protection Act, and Telemarketing Sales Rule, FTC enforcement cases, and CFPB supervisory concerns.  We also discuss the impact of the Real Estate Settlement Procedures Act’s referral fee prohibition and fair lending/fair housing laws on lead generation involving mortgage-related services and state licensing issues triggered by lead generation.… Continue Reading

The CFPB’s recently-issued request for information takes aim at what the CFPB labels “junk fees” charged by consumer financial services providers.  We discuss the types of fees targeted in the RFI, particularly fees related to deposit accounts and mortgages, and the impact of existing regulatory requirements on the CFPB’s initiative.  We also examine the CFPB’s authority to address so-called “junk fees,” consider possible short- and long-term actions the CFPB could take in response to the RFI, offer steps providers can take to prepare for greater scrutiny of ancillary fees and possible legal challenges, and describe the CFPB readiness reviews that Ballard Spahr attorneys are conducting to assist providers in assessing the permissibility and disclosure of fees charged in connection with their consumer products and services.… Continue Reading

In addition to discussing what cryptocurrency is, we look at some of the regulatory rules that apply to this increasingly popular but complicated financial instrument, including registration and compliance program requirements, and consider how crypto exchanges, financial institutions, and other businesses should address crypto transactions involving unhosted digital wallets and requirements for the identification and reporting of counter-parties to transactions.… Continue Reading