UDAP

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The District of Columbia (DC) Office of the Attorney General (OAG) recently entered into settlements with four title companies in connection with title company joint ventures that included the companies and real estate agents as owners. The basic allegation of the OAG is that real estate agents were offered the opportunity to purchase interests in title company joint ventures, and that the referral of consumers to the ventures by the agents for title and escrow business violated the DC anti-inducement provision applicable to title insurance, and also the unfair and deceptive trade practice prohibition under the DC Consumer Protection Procedures Act (CCPA).… Continue Reading

The Federal Trade Commission (“FTC”) recently entered into proposed stipulations with a group of student loan debt relief providers to resolve allegations that the group conducted deceptive marketing and sales practices in collecting over $8 million in “junk fees” for nonexistent debt relief services.

Last August, the FTC filed a complaint against Express Enrollment LLC (d/b/a SLFD Processing), Intercontinental Solutions LLC (d/b/a Apex Doc Processing LLC), and their operators Marco Manzi, Ivan Esquivel, and Robert Kissinger alleging violations of the unfair or deceptive acts or practices (“UDAP”) prohibitions of Section 5(a) of the FTC Act , the FTC’s Telemarketing Sales Rule (“TSR”), and Section 521 of the Gramm Leach Bliley Act, which prohibits obtaining a person’s financial information by making false statements, in connection with their deceptive marketing and sale of student loan debt relief services.… Continue Reading

After promising earlier this year to “establish nation-leading regulations for the Buy Now Pay Later loan industry,” New York Governor Kathy Hochul took a significant first step in that direction by including Buy Now Pay Later (“BNPL”) legislation in her Proposed 2024-2025 Transportation, Economic Development and Environmental Conservation (“TED”) Bill.… Continue Reading

In remarks to the press and public on January 2, 2024, New York Governor Kathy Hochul announced “a sweeping consumer protection and affordability agenda”, including proposed actions to “strengthen consumer protections against unfair business practices” and “establish nation-leading regulations for the Buy Now Pay Later loan industry”.

The Governor vowed to pursue “the first major expansion to New York consumer protection laws since 1980” to curb “predatory” business practices and “exploitative tactics” that harm consumers, citing student loan servicers and debt collectors as examples of consumer financial services businesses that should be subjected to further legal constraints.… Continue Reading

In October 2023, the FTC issued a proposed “Rule on Unfair or Deceptive Fees” targeting what the FTC refers to as “junk fees.”  Our special guest is Stacy Cammarano, Staff Attorney in the FTC’s Bureau of Consumer Protection, Division of Advertising Practices, and a lead attorney on the proposal.  After reviewing how the FTC has previously used its enforcement authority to address “junk fees,” we discuss some of the key issues identified in comments received by the FTC on its October 2022 Advance Notice of Proposed Rulemaking on “junk fees.” … Continue Reading

The Federal Trade Commission recently announced that it has entered into a settlement with Bridge It, Inc. (“Brigit”), the operator of a personal finance mobile application, to resolve the FTC’s allegations that Brigit engaged in unfair and deceptive acts or practices in violation of Section 5 of the FTC Act and engaged in conduct that violated the Restore Online Shoppers’ Confidence Act (“ROSCA”). … Continue Reading

Our special guest is Andrew Nigrinis, PhD, who formerly served as Enforcement Economist for the Consumer Financial Protection Bureau.  We first discuss what is meant by “dark patterns” and the types of digital practices identified by the CFPB and Federal Trade Commission as “dark patterns.”  We then look at the CFPB ‘s position regarding the use of “dark patterns” as an unfair, deceptive, or abusive act or practice under the Consumer Financial Protection Act, the FTC’s position regarding the use of “dark patterns” as anticompetitive and/or a violation of the FTC Act prohibition of unfair or deceptive acts or practices, and the relationship between “dark patterns” and behavioral economics. … Continue Reading

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

Professor Hoffman first explains his thesis that falling transaction costs has led to the proliferation of form contracts into areas where they little have social value, resulting in social harms that require a new approach.  We then discuss his proposal that states deny enforcement of written contracts for small dollar transactions by adopting what he calls a “Statute Against Forms.” … 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