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After discussing what are “dark patterns” and the most common forms they can take, we consider whether and how “dark patterns” used to influence consumers’ online behavior differ from traditional scams directed at consumers involving the use of deception.  We then discuss the federal and state statutes and common law claims currently being used to challenge the use of “dark patterns” as well as current legislative action to more directly target “dark patterns” and the challenges lawmakers face in crafting new legislation. … Continue Reading

Asserting that irreparable harms to their members “are piling up,” the U.S. Chamber of Commerce and the other plaintiffs have filed a motion for a status conference with the Texas federal district court hearing their lawsuit challenging the CFPB’s update to the Unfair, Deceptive, or Abusive Acts or Practices section of its examination manual to include discrimination. … Continue Reading

Last week, the FTC filed a civil case against Amazon alleging that the company used “dark patterns” to enroll people in its Prime program.  The case continues a pattern initiated by FTC Chair Lina Khan of challenging web-based marketing tactics of consumer-facing businesses as deceptive and anticompetitive on the grounds that they impede consumer choice and can be used by dominant firms as a tactic to exclude competitors. … Continue Reading

In the CFPB’s second attempt to define “abusive” acts or practices, the first being guidance rescinded a year after it was given in 2020, the CFPB has issued a new policy statement in which it turns to statutory analysis and past enforcement actions to provide a framework for determining what constitutes abusive conduct. … Continue Reading

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

The CFPB has filed a motion to dismiss, or in the alternative for summary judgment in, the lawsuit filed by the U.S. Chamber of Commerce in September 2022 challenging the CFPB’s update to the Unfair, Deceptive, or Abusive Acts or Practices (UDAAP) section of its examination manual to include discrimination. … Continue Reading

The U.S. Chamber of Commerce has filed a motion for summary judgment in its lawsuit filed in September 2022 against the CFPB challenging the CFPB’s recent update to the Unfair, Deceptive, or Abusive Acts or Practices (UDAAP) section of its examination manual to include discrimination.  The other plaintiffs in the lawsuit, which was filed in a Texas federal district court, are American Bankers Association, Consumer Bankers Association, Independent Bankers Association of Texas, Longview Chamber of Commerce, Texas Association of Business, and Texas Bankers Association.… Continue Reading

The U.S. Chamber of Commerce, joined by six other trade groups, filed a lawsuit yesterday in a Texas federal district court against the CFPB challenging the CFPB’s recent update to the Unfair, Deceptive, or Abusive Acts or Practices (UDAAP) section of its examination manual to include discrimination.  The other plaintiffs are American Bankers Association, Consumer Bankers Association, Independent Bankers Association of Texas, Longview Chamber of Commerce, Texas Association of Business, and Texas Bankers Association. … Continue Reading

The CFPB has issued an interpretive rule that addresses when digital marketing providers are “service providers” subject to the Consumer Financial Protection Act, including the CFPA’s prohibition on unfair, deceptive, or abusive acts or practices. 

The CFPB describes digital marketing providers as businesses that use data obtained from an array of sources to offer targeted advertising services. … Continue Reading

In a blog post published on July 30 on Consumer Law and Policy Blog, Professor Jeff Sovern discusses comments from CFPB officials that the Bureau will not use the disparate effects or impact test to determine if discrimination has occurred when using its UDAAP authority.  In those comments, Director Rohit Chopra and Assistant Director Eric Halperin indicated that “unfair” for purposes of the CFPB’s UDAAP authority has its own test and that the Bureau will use that test rather than the disparate effects test when using its UDAAP authority to determine if a discriminatory practice is unfair.… Continue Reading