On November 15, 2022, the FTC announced that it was extending by six months the deadline for companies to comply with some portions of the updated Safeguards Rule. The extension comes as a welcome relief to companies racing to meet the rapidly nearing effective date.

The FTC approved changes to the longstanding Safeguards Rule in October 2021. … Continue Reading

As the industry continues to digest the Fifth Circuit’s opinion in Community Financial Services Association of America, Ltd. v. Consumer Financial Protection Bureau, which held the Bureau’s funding mechanism to be unconstitutional, new litigation illustrates the challenges that the decision creates to the CFPB’s ability to conduct oversight and enforcement.… Continue Reading

In Wakefield v. ViSalus, Inc., the Ninth Circuit considered whether a jury verdict of $925,200,000 for cumulative statutory damages under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) was constitutional in light of its harsh severity.  After a three-day trial, the jury delivered a verdict against ViSalus, finding that it sent over 1.8 million prerecorded calls to class members without prior express consent, in violation of the TCPA. … Continue Reading

On November 3, 2022, Pennsylvania Attorney General (and Governor-Elect) Josh Shapiro announced that his office had filed a lawsuit in the U.S. District Court for the Western District of Pennsylvania against New York-based Fluent, Inc.—a lead generator that connects companies to potential new customers through the consumers’ harvested personal data—and its subsidiaries for their role in allegedly assisting and facilitating the making of hundreds of thousands of unwanted telemarketing calls to Pennsylvania consumers. … Continue Reading

The CFPB has filed a certiorari petition with the U.S. Supreme Court seeking review of the Fifth Circuit panel decision in Community Financial Services Association of America Ltd. v. CFPB that held the CFPB’s funding mechanism violates the Appropriations Clause of the U.S. Constitution.  Given the daunting odds the CFPB would have faced in seeking to have the decision reversed by an en banc Fifth Circuit, it is not surprising that it chose to proceed directly to the Supreme Court. … Continue Reading

Yesterday, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit granted a request to enjoin the Biden Administration’s federal student loan forgiveness program pending resolution of an appeal filed by state attorneys general of six states (Missouri, Arkansas, Nebraska, Iowa, Kansas, and South Carolina), whose challenge to the loan forgiveness plan had been dismissed in October for lack of Article III standing. … Continue Reading

The CFPB has issued a circular (2022-07) to address “shoddy investigation practices” and “affirm that neither consumer reporting companies nor information furnishers can skirt dispute investigation requirements.”  

The Fair Credit Reporting Act (FCRA) requires both consumer reporting agencies (CRAs) and furnishers of information to CRAs  to conduct a reasonable investigation when properly notified of a dispute about information furnished in a consumer report. … Continue Reading

The CFPB and All American Check Cashing have agreed to a settlement in the CFPB’s enforcement action filed against All American in 2016 for alleged violations of the CFPA’s UDAAP prohibition in connection with check cashing services and small dollar loans offered by All American.  The settlement comes less than a month after a Fifth Circuit panel ruled in Community Financial Services Association v.… Continue Reading

The Biden Administration recently announced a slate of new public and private sector initiatives aimed at advancing racial equity by delivering “capital and resources to underserved small businesses and the community lenders who serve them.”  Among these initiatives was a proposed rule change for the Small Business Administration (SBA) that would increase the number of nonbanks, including Fintechs, eligible to offer SBA 7(a) loans. … Continue Reading

On November 10, 2022, a federal district court in the Northern District of Texas entered judgment in favor of two plaintiffs on an Administrative Procedure Act (APA) claim seeking vacatur of the Biden administration’s plan to forgive approximately $400 billion in federal student loans under the HEROES Act of 2003. The court, citing a rarely used provision in Rule 65 of the Federal Rules of Civil Procedure, converted the plaintiffs’ motion for a preliminary injunction into a motion for summary judgment over the Biden administration’s objection, and then entered a final ruling on the merits that will (along with the still-pending administrative stay entered by the Eighth Circuit) prohibit the Biden administration from moving forward with its loan forgiveness plan—at least unless and until the administration obtains a stay and/or reversal of the court’s judgment in the Fifth Circuit Court of Appeals, which it has already sought.… Continue Reading