Kelley Drye attorneys closely monitor developments in the highly regulated area of consumer financial services and bring a base of experience that is invaluable in the context of an uncertain future regulatory environment. Without a doubt, the Dodd-Frank Wall Street Reform and Consumer Protection Act makes broad and comprehensive changes to the nation’s financial system regulatory structure that has ripple effects across industries. Designed to promote financial stability and transparency, the law aims to protect consumers from abusive and deceptive practices and established the Consumer Financial Protection Bureau (CFPB) to oversee and regulate consumer financial products and services. Kelley Drye’s integrated consumer financial protection team advises clients on new regulations, what the changes mean for their businesses and how the CFPB enforces the laws. Our firm has been actively engaged in advocacy before the CFPB on rulemaking and examination issues on behalf of debt collection and debt buying firms.
While the CFPB is relatively new, the agency is not starting from scratch when it comes to consumer protection. The Federal Trade Commission (FTC) has transferred authority to the CFPB for consumer financial products and services, and the CFPB takes guidance from the FTC’s “unfair and deceptive acts and practices” jurisprudence. The two agencies share rulemaking and enforcement authority with respect to non-bank financial institutions, and the CFPB draws heavily from FTC jurisprudence for entities offering consumer financial products and services. Kelley Drye is uniquely positioned to counsel on how the CFPB interprets and enforces regulations, given our attorneys’ extensive experience working with and at the FTC. We are proud to count among our group former leaders at the FTC, including a director of the FTC’s Bureau of Consumer Protection, an assistant director and several FTC attorney advisors. This collective experience and historical perspective on FTC rulings gives us unique insight into the future of the agency and its enforcement activity.
On behalf of our clients, we pay particular attention to Dodd-Frank Title X regulations in the following areas:
- Unfair and deceptive practices. Rules identifying unlawful, unfair, deceptive or abusive acts or practices in connection with any transaction for a consumer financial product or service.
- Clear and accurate disclosures. Rules to ensure that the features of any consumer financial product or service are fully, accurately and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits and risks associated with the product or service.
- Single mortgage loan disclosure. Rules that combine certain disclosures required under Truth In Lending Act and Real Estate Settlement Procedures Act into a single integrated disclosure for mortgage loan transactions.
- Mortgage loan practices. Rules relating to unfair or deceptive acts or practices regarding mortgage loans, which may include unfair or deceptive acts or practices involving loan modification, foreclosure rescue services, and reverse mortgages.
- Debt collection. Rules with respect to the collection of debt by debt collectors.
- Arbitration Provisions. Rules regarding the use of arbitration provisions between companies and consumers for financial products and services.
Kelley Drye draws on the experience of practitioners in the areas of consumer protection and advertising, corporate law, finance, government relations and public policy, and litigation to track developments at the CFPB, monitor regulations as they unfold, and advise clients on how best to react. Together with attorneys and advisors in the firm’s Government Relations and Public Policy group, we submit comments on proposed rule-making and conduct informal meetings with regulators on behalf of our clients to ensure their voices are heard.
Outside the scope of the CFPB, Kelley Drye's consumer financial protection attorneys offer a range of services for financial institutions and non-financial services providers including finance companies, traditional and online merchants and telecommunications companies. If a business has any financial interaction with consumers, it may be subject to a host of statutes, some of which include the Electronic Funds Transfer Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Federal E-SIGN Act, the Gramm-Leach Bliley Act, the Payment Card Industry Data Security Standard, state and federal Unfair and Deceptive Trade Practices Act, and federal and state consumer disclosure and notice requirements. We help companies minimize advertising and privacy risks, providing practical advice on fair credit best practices, data security, information sharing, payment programs and permissible cross marketing practices.
Drawing on our deep bench of nationally-known litigators, Kelley Drye offers experience in rigorous investigation, dispute resolution and litigation in responding to state and federal regulators, managing Attorney General and federal investigations, and litigating matters ranging from white collar criminal defense to defense of major national class actions.
- Represented a major third party servicer in a confidential investigation before the CFPB.
- Successfully negotiated a settlement for a national debt buyer in FTC investigation.
- Represented one of the largest money transfer services to settle FTC allegations that the company allowed its money transfer system to be used by fraudulent telemarketers. Advised client on implementation of an anti-fraud and agent-monitoring program.
- Represented one of the largest debt collection agencies to settle FTC allegations that the company’s collection techniques violated the FTC Act and Fair Debt Collection Practices Act.
- Settled FTC allegations regarding cancellation and rebate delivery issues. Also represented the companies in settlement of allegations regarding cancellation, reactivation, telephone billing and disclosure of terms of service with 48 state Attorneys General.
- Represent debt portfolio management company regarding information requests under Section 6(b) of the FTC Act. The FTC will use the information in connection with a study of the debt-buying industry.
- Advised a major clothing and luxury lifestyle retailer on employment-related privacy matters, including disclosures related to the Fair Credit Reporting Act.
- Represented a popular children's specialty retailer in an FTC investigation of the company's in-store and online privacy practices. Successful in convincing the FTC to close the investigation without pursuing law enforcement or remedial action.
- Provide comprehensive privacy and data security advice for a major online retailer. This includes advising on compliance with COPPA, CAN-SPAM, and relevant FTC and state consumer protection, privacy and data security laws.
- For various types of retailers, develop online payment processes and recurrent billing programs, consistent with federal E-SIGN requirements and Regulation E, and related state laws.
- Represented the financing division of a Fortune 50 computer and technology company in investigations initiated by the FTC in connection with the company's financing promotions. The FTC staff closed the matter.
- Represented a Fortune 50 computer and technology company and its financial services arm in obtaining settlement with attorneys general of 49 states, resolving allegations related to clients' financing promotions, service contract and warranty offers, and rebate fulfillment. Case settled by payment of $4,075,000 for consumer redress, costs, penalties and disgorgement (averaging less than $85,000 per state) and implementation of injunctive relief.
- Represented numerous credit counseling companies as defendants that resulted in settlement of FTC and state attorney general allegations regarding unfair and deceptive practices in the offering of credit counseling and debt management programs.
- Represented a financial services company and its subsidiary in an FTC challenge to the parent company's credit card marketing practices. The FTC also alleged that the debt collection company engaged in deceptive conduct in marketing credit cards as part of its debt collection activities and violated the FDCPA.
- Assisted an association of credit and collection professionals, in the development of a self-regulatory program for the debt collection industry.
- Represented an Internet retailer in settlement of allegations brought by the Attorney General of the State of New York regarding the use of "data pass" of consumer financial information. Also assisted in the settlement of nationwide class action with similar allegations.
- Obtained summary judgment for defendant, a call center and debt collection company, in putative class action challenging ordinary course of business call monitoring practices under the FDCPA and California privacy statutes.
- Represented back-end processor in FTC's largest case at the time in the credit counseling industry.
- Represent a satellite and digital TV provider in litigation initiated by the Department of Justice on behalf of the Federal Trade Commission and the states of North Carolina, Illinois, Ohio and California seeking civil penalties for violations of the FTC's Telemarketing Sales Rule by allegedly calling telephone numbers listed on the Do Not Call Registry.
- Represented a national financial services company in FTC investigation of Gramm-Leach-Bliley Safeguards Rule violations, resulting in closing of investigation.
- Settled allegations brought by three state Attorneys General regarding unfair and deceptive practices related to prepaid telephone companies.