Consumer Financial Services Watch

News and developments related to consumer financial services, litigation, and enforcement.

 

1
Dodd-Frank Reform 2.0
2
Requirements for Massachusetts Homestead Exemption: Can Debtors Exempt Principal Residence Occasionally Rented as Short-Term Lodging?
3
CFPB Left with Rulemaking to Modify or Delay Payday Rule
4
No More Zombie Class Actions: Supreme Court Stops Class Members from Filing Successive Class Claims after Expiration of Limitations Period
5
Shedding Some Light: SCOTUS Grants Cert. in Lamps Plus to Answer Question on State-Law Contract Interpretation and Class Arbitration
6
The Door May Be Open, but the Ride Isn’t Free: Seventh Circuit Allows Data Breach Class Action to Survive Pleading Stage but Signals Tough Road Ahead for Plaintiffs
7
Massachusetts Supreme Judicial Court Holds Passive Debt Buyers Are Not Debt Collectors Under Massachusetts Law
8
Another Shot at the Target: CFPB Payday Loan Rule Faces New Challenge from Trade Groups
9
Risky Business: Whether an Increased Risk of Harm Supports Legal Standing in Data Breach Class Actions Continues to Divide Federal Courts of Appeals
10
Ninth Circuit Doubles Down on Lack of Standing under Spokeo in FACTA Cases

Dodd-Frank Reform 2.0

By: Daniel F. C. Crowley, Bruce J. Heiman, William A. Kirk, Karishma Shah Page, Dean A. Brazier, Eric A. Love, Eli M. Schooley

Recent activity in Congress suggests that the return from the July 4th recess will see a continued push to reform the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”) before year’s end. This alert provides an overview of the current state of play and the most likely outcome.

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Requirements for Massachusetts Homestead Exemption: Can Debtors Exempt Principal Residence Occasionally Rented as Short-Term Lodging?

By: Sean R. Higgins and David A. Mawhinney

Should a Massachusetts homeowner be allowed to claim a homestead exemption in a principal residence that is also used for business or other commercial purposes?  Answering this question several years ago as a matter of first impression, the U.S. Bankruptcy Court for the District of Massachusetts adopted a fact-intensive, case-by-case inquiry into the “predominant use” of the property.[1]  The predominant use test was developed to address the point at which an owner forfeits homestead protection in the pursuit of commercial activity.  The inquiry recognizes the ubiquity of the home office or boarder in modern residences.  Bankruptcy Judge Elizabeth Katz’s recent opinion in In re Shove takes a fresh look at the Massachusetts Homestead Statute and rejects the predominant use inquiry as unnecessary and, in some cases, unduly burdensome on the homesteader.[2]

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CFPB Left with Rulemaking to Modify or Delay Payday Rule

By: Jennifer Janeira Nagle, Robert W. Sparkes, Scott B. Hefferman

On Tuesday, June 12, 2018, a Texas federal judge denied a joint request from the Consumer Financial Protection Bureau (“CFPB”) and two payday-lending trade groups to stay the August 2019 deadline for industry compliance with the Payday Loan Rule (the “Rule”). The decision was issued in Community Financial Services Association of America, Ltd., v. Consumer Financial Protection Bureau, No. 1:18-cv-295-LY, an action that was filed in April 2018 by the trade groups against the CFPB, seeking to invalidate the Rule as arbitrary and capricious in violation of the Administrative Procedures Act (“APA”), among other things.  (For more about the litigation, click here.)  In late May 2018, the plaintiff trade groups and the defendant CFPB jointly asked the Court to stay the Rule’s compliance deadline, but the Court’s decision Tuesday quickly and summarily rejected that request.  The Court stayed only the litigation, leaving August 2019 as the operative date for industry participants to comply with the Rule.

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No More Zombie Class Actions: Supreme Court Stops Class Members from Filing Successive Class Claims after Expiration of Limitations Period

By: Andrew C. Glass, Roger L. Smerage, Elma Delic                     

The U.S. Supreme Court has ruled that a plaintiff cannot file a class action outside the applicable statute of limitations merely because an unsuccessful prior class action tolled the limitations period for individual claims.[1]  In China Agritech v. Resh,[2] the Court held that its prior jurisprudence “does not permit the maintenance of a follow-on class action past expiration of the statute of limitations.”[3]  Rather, that jurisprudence only tolls the statute of limitations for unnamed class members to intervene in the action “individually or file individual claims if the class fails.”[4]  In reaching this conclusion, the Court recognized that “[t]he Federal Rules [of Civil Procedure] provide a range of mechanisms to aid courts in” overseeing complex litigation, such as where individual claims are added on after a denial of class certification.[5]  But, critically, “[w]hat the Rules do not offer is a reason to permit plaintiffs to exhume failed class actions by filing new, untimely class claims.”[6]

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Shedding Some Light: SCOTUS Grants Cert. in Lamps Plus to Answer Question on State-Law Contract Interpretation and Class Arbitration

Andrew C. Glass, Robert W. Sparkes, III, Roger L. Smerage, Elma Delic

In Stolt-Nielsen S.A. v. AnimalFeeds International Corp., [1] the U.S. Supreme Court held that “a party may not be compelled” under the Federal Arbitration Act (“FAA”) “to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” [2] The Stolt-Nielsen Court found that an agreement that is silent on the availability of class arbitration does not provide sufficient evidence that the parties intended to submit to class, as opposed to individual, arbitration. [3] The Court, however, left open the question of what level of specificity an agreement must contain to demonstrate the parties’ consent to submit a dispute to class arbitration. [4]

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The Door May Be Open, but the Ride Isn’t Free: Seventh Circuit Allows Data Breach Class Action to Survive Pleading Stage but Signals Tough Road Ahead for Plaintiffs

By Andrew C. Glass, David D. Christensen, and Matthew N. Lowe

In Dieffenbach v. Barnes & Noble, Inc.,[1] the Seventh Circuit allowed a data breach class action to survive the pleadings stage, including a challenge to the plaintiffs’ standing.  At the same time, the Court indicated that the plaintiffs may have a tough time proving their claims on the merits or establishing that class certification is warranted.  That warning may put the brakes on this action as well as others brought on a similar theory of liability.

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Massachusetts Supreme Judicial Court Holds Passive Debt Buyers Are Not Debt Collectors Under Massachusetts Law

By: Sean R. Higgins and Matthew N. Lowe

The Massachusetts Supreme Judicial Court recently held in Dorrian v. LVNV Funding, LLC,[1] that “passive debt buyers” are not “debt collectors” required to be licensed under the Massachusetts Fair Debt Collection Practices Act[2] (“MDCPA”).

Dorrian is a class action lawsuit filed by borrowers in default who alleged that defendant LVNV Funding, LLC (“LVNV”) was operating as a debt collector without being licensed under the MDCPA.[3]  Notably, the plaintiffs did not sue the third-party LVNV contracted with to handle all collection and servicing, which was licensed as a debt collector under the MDCPA.  The trial court certified the class and granted summary judgment in the borrowers’ favor on their claims that LVNV violated the MDCPA by operating as an unlicensed debt collector.[4]

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Another Shot at the Target: CFPB Payday Loan Rule Faces New Challenge from Trade Groups

By Jennifer Janeira Nagle, Robert W. Sparkes, III, Hayley Trahan-Liptak

The Consumer Financial Protection Bureau’s Payday Loan Rule (the “Rule”), with a looming compliance deadline in August 2019, is facing yet another attack—this time from trade groups seeking relief directly from the courts. On April 9, 2018, two payday lending industry trade associations — the Community Financial Services Association of America, Ltd. and the Consumer Services Alliance of Texas — filed suit in the U.S. District Court for the Western District of Texas against the Consumer Financial Protection Bureau (“CFPB”) and its Acting Director, Mick Mulvaney, seeking an order enjoining and setting aside the Rule.

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Risky Business: Whether an Increased Risk of Harm Supports Legal Standing in Data Breach Class Actions Continues to Divide Federal Courts of Appeals

By: Andrew C. Glass, David D. Christensen, and Matthew N. Lowe

Every data breach class action in federal court must confront a threshold question: has the plaintiff alleged a sufficient “injury in fact” to establish Article III standing?  The inquiry frequently focuses on whether a plaintiff has standing simply by pleading an increased risk of future injury from the theft of personal identifying information (PII).  This is because many named plaintiffs do not––because they cannot––allege any present harm.  The federal courts of appeals continue to weigh in on the issue of whether allegations of possible future harm suffice for Article III purposes.  But far from providing clarity or consensus, recent appellate decisions have reached differing conclusions, which appear highly dependent on the nature of the facts alleged in each case.[1]

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Ninth Circuit Doubles Down on Lack of Standing under Spokeo in FACTA Cases

By  Gregory N. BlaseAndrew C. Glass, and Roger L. Smerage

Recently, the Ninth Circuit held in Bassett v. ABM Parking Services, Inc. that an allegation that a business violated the Fair and Accurate Credit Transactions Act (“FACTA”) by printing a credit card expiration date on a customer’s receipt is, by itself, insufficient to establish Article III standing under Spokeo, Inc. v. Robins. (For more information, read K&L Gates alerts on the Bassett decision and FACTA standing jurisprudence.) Now, in Noble v. Nevada Checker Cab Corp., No. 16-16573 (9th Cir. Mar. 9, 2018), the Ninth Circuit reached the same conclusion with respect to an alleged FACTA violation arising out of the printing of the first digit of the card number in addition to the last four digits. In doing so, the Ninth Circuit appears to be sending a strong signal to potential FACTA plaintiffs that something more than a technical violation is necessary to have standing to pursue statutory damages in federal court under FACTA.

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