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
CFPB and FTC issue request for information on background screening in connection with rental housing
The Consumer Financial Protection Bureau and Federal Trade Commission issued a request for information (RFI) yesterday seeking comment on “background screening issues affecting individuals who seek rental housing in the United States, including how the use of criminal and eviction records and algorithms affect tenant screening decisions and may be driving discriminatory outcomes.” … Continue Reading
FTC issues annual ECOA report to CFPB
The FTC recently sent its annual letter to the CFPB reporting on the FTC’s activities related to the Equal Credit Opportunity Act (ECOA) and Regulation B. The new letter reports on the FTC’s activities in 2022. The Bureau includes the FTC’s annual letter in its own annual report to Congress on the ECOA.… Continue Reading
This week’s podcast episode: A close look at the Federal Trade Commission’s proposal to ban non-compete agreements
With one Republican Commissioner dissenting, the FTC has issued a notice of proposed rulemaking that would ban non-compete agreements between employers and workers nationwide, both prospectively and retroactively. If finalized, the proposal would impact nearly all nonbanks in the consumer financial services industry. We first review the practices that the proposal would prohibit, the types of employers and categories of workers it covers, and the types of agreements it covers, including the proposal’s narrow exceptions. … Continue Reading
White House issues Blueprint for Renters Bill of Rights: Will the CFPB and FTC stay in their lanes?
Last week, the Biden Administration released a “Blueprint for a Renters Bill of Rights” (Blueprint), which sets forth five principles intended to “create a shared baseline for fairness for renters in the housing market” and directs various federal agencies, including the Consumer Financial Protection Bureau (CFPB) and the Federal Trade Commission (FTC), to take various actions to further those principles. … Continue Reading
CFPB issues circular on negative option marketing
The CFPB has issued a new circular (2023-01) that addresses the circumstances under which “negative option marketing practices” can violate the CFPA prohibition of unfair, deceptive, or abusive acts or practices.
The circular uses the term “negative option” to refer to “a term or condition under which a seller may interpret a consumer’s silence, failure to take an affirmative action to reject a product or service, or failure to cancel an agreement as acceptance or continued acceptance of the offer.” … Continue Reading
FTC seeks to ban non-compete agreements
Following an announcement last year that the Federal Trade Commission (FTC) would use Section 5 of the FTC Act to aggressively police conduct it deems unfair (see our Legal Alert), the Agency kicked off the new year with two actions aimed at banning non-compete agreements between employers and workers.
On January 5, the FTC issued a Notice of Proposed Rulemaking aimed at categorically banning non-compete agreements nationwide. … Continue Reading
This week’s podcast episode: A look at the Federal Trade Commission’s proposed rule for auto dealers from the perspective of auto dealers and auto finance companies, with special guests Paul Metrey, Senior Vice President for Regulatory Affairs, National Automobile Dealers Association (NADA), and Richard Hackett, Regulatory Compliance Consultant and former Assistant Director, Consumer Financial Protection Bureau
The FTC’s proposal would impose a number of new substantive and disclosure requirements on auto dealers in connection with the car buying or leasing process. We first discuss NADA’s comment letter to the FTC on the proposal, including NADA’s concerns with the process used by the FTC to issue the proposal and with the proposal’s disclosure, recordkeeping, website posting, and other requirements. … Continue Reading
Fourth Circuit Rules Communications Decency Act Did Not Protect Data Aggregator From FCRA Liability
The Fourth Circuit Court of Appeals in Henderson v. Source For Pub. Data, L.P., No. 21-1678, 2022 U.S. App. LEXIS 30534 (4th Cir. Nov. 3, 2022) found that the protections of Section 230 of the Communications Decency Act did not extend to a public data aggregation company. The ruling reversed the district court’s order dismissing all claims in a putative class action alleging Fair Credit Reporting Act (“FCRA”) violations against the data aggregator, PublicData.com… Continue Reading
FTC extends deadline for updated Safeguards Rule by six months
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