On Thursday April 15th, the U.S. Department of Justice, on behalf of the Federal Trade Commission (“FTC”) filed a lawsuit in the U.S. District Court for the Eastern District of Missouri against chiropractor Eric A. Nepute and his company Quickwork LLC (the “Defendants”) for violating the new COVID-19 Consumer Protection Act. In the complaint, the FTC charges Nepute and Quickwork LLC with making unsubstantiated claims about products sold under the “Wellness Warrior” brand regarding their ability to treat and prevent COVID-19. The FTC is seeking both monetary penalties against the Defendants, as well as a permanent injunction to prevent future violations of the FTC Act and the COVID-19 Consumer Protection Act by the Defendants.

Passed by Congress in December 2020, the COVID-19 Consumer Protection Act (“the Act”) serves to deter and prohibit businesses from marketing products based on unsubstantiated scientific claims for the duration of the COVID-19 crisis. Specifically, the Act prohibits deceptive acts or practices pertaining to “the treatment, cure, prevention, mitigation, or diagnosis of COVID-19” or “a government benefit related to COVID–19.” Congress included in the statute that any violation of this law “shall be treated as a violation of a rule defining an unfair or deceptive act or practice prescribed under section 18(a)(1)(B) of the Federal Trade Commission Act,” allowing for violators to receive financial penalties.

The Defendants promoted vitamin D and zinc products as part of their “Wellness Warrior” brand. They claimed–through multiple mediums of advertisement including emails, videos, and claims conveyed via Facebook–that their vitamin D products were scientifically proven to treat or prevent COVID-19. Some videos stated explicitly that “COVID-19 Patients who get enough Vitamin D are 52% less likely to die” and that people who get enough Vitamin D3 “have a 77 percent less chance of getting infected in the first place.” The Defendants made similar claims about their zinc products. More importantly, the Defendants also claimed that their products provided equal or better protection against COVID than the available vaccines.

The FTC issued a warning letter to Defendants about COVID-19 efficacy claims back in May 2020, but alleges that, since then, Defendants have “ramped up their unsubstantiated claims regarding Vitamin D and zinc.” Given the critical effort to roll out the various vaccines and maintain public trust regarding their effectiveness, it is unsurprising that the FTC has pursued this lawsuit.

The Lawsuit claims that Defendants violated both the FTC Act and the COVID-19 Consumer Protection act by making false claims regarding the ability of Defendants’ products ability to treat, cure, prevent, or mitigate COVID-19, both on their own and compared to available vaccines. The complaint seeks to prohibit further claims and to obtain monetary penalties Specifically the complaint states, “A violation of Section (b)(1) of the COVID-19 Consumer Protection Act made with the knowledge required by Section 5(m)(1)(A) of the FTC Act, 15 U.S.C. § 45(m)(1)(A), is subject to monetary civil penalties of not more than $43,792 for each violation of the COVID-19 Consumer Protection Act after January 13, 2021, including penalties whose associated violation predated January 13, 2021.”

By bringing this action, the FTC has made it clear that it takes these type of COVID-19 claims very seriously and that it will respond accordingly, partnering with the Justice Department as appropriate. To date, the FTC has sent over 350 warning letters to other companies regarding their conduct related to unsubstantiated COVID-19 claims, and there is a strong reason to believe the FTC will continue to pursue these claims as they arise.

Introduction

The Supreme Court of California, interpreting California Penal Code section 632.7, recently held in Smith v. LoanMe, Inc. that cellular or cordless phone conversations cannot be recorded by nonparties or the parties to the call without consent of the parties.  This decision overturned the Court of Appeal’s previous ruling that consent is only required if nonparties, and not the parties to the call, seek to record the conversation.  Therefore, companies must ensure that they obtain consent prior to recording their calls, or else criminal  and civil liability may ensue, including expensive class actions.

California Penal Code § 632.7

As part of the Invasion of Privacy Act, Penal Code section 632.7 provides, in relevant part: “Every person who, without the consent of all parties to a communication, intercepts or receives and intentionally records, or assists in the interception or reception and intentional recordation of, a communication transmitted between two cellular radio telephones, a cellular radio telephone and a landline telephone, two cordless telephones, a cordless telephone and a landline telephone, or a cordless telephone and a cellular radio telephone, shall be punished.”

Section 632.7 was enacted to expand section 632, which criminalized the unconsented to recording of phone conversations between traditional telephones, to include cellular or cordless phones.

Factual and Procedural Background

This case arose after Defendant LoanMe, Inc. (“LoanMe”) recorded a very brief phone conversation that it had with Plaintiff Jeremiah Smith (“Smith”), the husband of a woman to whom LoanMe extended a loan.  On October 15, LoanMe called the phone number that Smith’s wife had provided, and Smith answered on a cordless phone, informed LoanMe that his wife was not home, and hung up.  The call lasted a total of eighteen seconds.  About three seconds into the call, LoanMe caused a “beep” tone to sound, which signaled that the call was about to be recorded, though the LoanMe representative never verbally advised Smith that the call was going to be recorded.

Thereafter, in September 2016, Smith brought suit on behalf of a putative class consisting of “all persons in California whose inbound and outbound telephone conversations involving their cellular or cordless telephones were recorded without their consent by [LoanMe] or its agent/s within the one year prior to the filing of this action.”  The complaint alleged that the recording of these calls violated section 632.7.

The trial court held that there was no violation, holding that the beep tone gave Smith sufficient notice that the call was going to be recorded.

The Court of Appeal, rather than focusing on if Smith consented to the recording, addressed when consent would be required prior to the recording.  Specifically, the court debated if section 632.7 required that consent be obtained when parties to the call sought to record the call, or if it only applied when nonparties were the ones recording the conversation.  The court ultimately concluded that only nonparties were required to obtain consent, reasoning that “parties to a phone call always consent to the receipt of their communications by each other.”  Smith v. LoanMe, Inc., 43 Cal. App. 5th 844, 848 (2019).

Supreme Court of California’s Decision

On April 1, 2021, the Supreme Court of California reversed the lower courts, holding, “We conclude that [section 632.7] applies to the intentional recording of a covered communication regardless of whether the recording is performed by a party to the communication, or a nonparty.”  The Court’s analysis is as follows:

Statutory History

In Flanagan v. Flanagan, this Court defined “confidential communication” for purposes of interpreting section 632.  The Court held, “A conversation is confidential if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded.”  Flanagan v. Flanagan, 27 Cal. 4th 766, 768 (2002).  As part of its reasoning, the Court determined that this interpretation was consistent with section 632.7.  Therefore, because parties to a phone call will typically have a reasonable expectation that the call is not being recorded, it is unreasonable to assume that a person consented to a recording of their conversation by virtue of being on the call.

Language of § 632.7

The Court then looked to the language of the statute, which specifically addresses a person who “intercepts or receives” a call and intentionally records it without the parties’ consent.  Because a party to the call is a person who “receives” the call, the statute therefore forbids parties to the call from recording the conversation without the other party’s consent.  The Court went on to say, “Although parties might normally be regarded as consenting to the receipt of their communications by other parties to a call, this acquiescence would not, by itself, necessarily convey their consent to having these communications recorded.”

Legislative History

The Committee analyses of Assembly Bill 2465 establish that section 632.7 was enacted to respond to concerns that existing law did not prohibit the unconsented to recording of conversations involving cellular or cordless phones.  Although multiple analyses lend support to this notion, the following provides a concise explanation:

The primary intent of [AB 2465] is to provide a greater degree of privacy and security to persons who use cellular or cordless telephones.  Specifically, AB 2465 prohibits persons from recording conversations transmitted between cellular or cordless telephones.

Under current law, it is only illegal to ‘maliciously’ intercept a conversation transmitted between the above-identified telephones.  There is no prohibition against recording a conversation transmitted between cellular or cordless telephones.

By comparison, it is currently illegal to ‘intentionally’ intercept or record a conversation transmitted between landline, or traditional, telephones.

…Henceforth, persons using cellular or cordless telephones may do so knowing that their conversations are not being recorded.  Sen. Com. on Judiciary, Analysis of Assem. Bill No. 2465, at pp. 3-4, Ops. Cal. Legis. Counsel, No. 27958 (Dec 17, 1991)

Because the Legislature’s aim was to provide more protection for communications involving cellular or cordless phones, interpreting section 632.7 to require both parties and nonparties to obtain consent before recording a call squarely aligns with the legislative intent.

Policy Considerations

From a policy perspective, recording a conversation without a party’s consent, regardless of who is doing the recording, can implicate considerable privacy concerns.  As this Court recognized in Ribas v. Clark, “While one who imparts private information risks the betrayal of his confidence by the other party, a substantial distinction has been recognized between the secondhand repetition of the contents of a conversation and its simultaneous dissemination to an unannounced second auditor, whether that auditor be a person or mechanical device.”  Ribas v. Clark, 38 Cal. 3d 355, 360-61 (1985).  Applying this to section 632.7, although a party to a call consents to the other party receiving its communications, there are privacy concerns when the party’s communications are simultaneously disseminated to a recording device without the party’s consent.

The Court reasoned that the distinction stressed in Ribas owes to the fact that “secret monitoring denies the speaker an important aspect of privacy of communication — the right to control the nature and extent of the firsthand dissemination of his statements.” Ribas, at 361; United States v. White, 401 U.S. 745, 787-788 (1971)(dis. opn. of Harlan, J.) [“[m]uch off-hand exchange is easily forgotten and one may count on the obscurity of his remarks, protected by the very fact of a limited audience, and the likelihood that the listener will either overlook or forget what is said, as well as the listener’s inability to reformulate a conversation”]. The Court concluded, citing Kearney v. Salomon Smith Barney, 39 Cal.4th 95, 125 (2006),  to ensure that these concerns are addressed, the state has a “strong and continuing interest in the full and vigorous application” of laws that vindicate the privacy rights that can be compromised when a communication is recorded without consent.

Takeaways

Moving forward, it is now unlawful for anyone, party or nonparty, to record a cellular or wireless telephone conversation without the consent of all parties to the call.  As such, companies must ensure that they receive the other party’s consent before recording the call.  However, it is important to note that what exactly constitutes consent remains uncertain (it is still to be determined whether the “beep” in the above case gave Smith adequate notice that the call was being recorded).  Because of this, companies should have their representatives or automated systems clearly indicate to the other party that the call is being recorded and ensure that such notification is non-bypassable. Companies should ensure that their outbound and inbound call recording practices with California individuals comport with this significant new decision. We expect the plaintiffs’ bar to target non-compliant businesses conducting business in California. For more information, please see our recent webinar on California Consumer Class Action issues.

Monday, May 10, 2021
12:00 p.m. to 1:00 p.m. Eastern
11:00 a.m. to 12:00 p.m. Central
10:00 a.m. to 11:00 a.m. Mountain
9:00 a.m. to 10:00 a.m. Pacific

About the Program

On October 30, 2020, the CFPB released its long-awaited final collections rule, which restated and clarified certain prohibitions on harassment and abuse, false or misleading representations, and unfair practices by debt collectors under the Fair Debt Collection Practices Act (“FDCPA”).  The release marks one of the most significant developments in the debt collection industry since the FDCPA was enacted in 1977.

In the third installment of the Consumer Financial Services Litigation Webinar Series, Seyfarth attorneys will break down various portions of the final rules. Below is the list of topics that we plan to discuss in further detail.

  • Overview of the FDCPA and Rulemaking that led to the Fall 2020 new regulations;
  • Highlight of changes and key provisions in the new FDCPA regulations;
  • Recent CFPB actions to delay and supplement the new FDCPA regulations (i.e., the two notices I circulated in the last few days).

Consumer Financial Services Webinar Series
Given the magnitude of the potential changes ahead, Seyfarth has developed a webinar series designed to convey strategies and best practices to help you to ensure that your company and internal clients are prepared for what is ahead. To stay abreast of these changes, please subscribe to our mailing to list.

Subscribe to Seyfarth’s Consumer Financial Services Mailing List.

For updates and insight on Consumer Financial Services Issues, we invite you to click here to subscribe to Seyfarth’s Consumer Class Defense Blog

Speakers

Tonya M. Esposito, Partner, Seyfarth Shaw LLP
Michael Jusczyk, Associate, Seyfarth Shaw LLP
J. Patrick Kennedy, Senior Counsel, Seyfarth Shaw LLP

Jordan Vick and Kristine Argentine have organized and will be moderating a CLE program for the Federal Bar Association titled Commercial Class Actions: Hot Topics and Trends.

In this program, Seventh Circuit Judge David F. Hamilton and District Court Judge Robert M. Dow, Jr. will offer their perspectives on significant recent developments at the Circuit Court and Supreme Court levels affecting how class actions are brought, litigated, certified and settled.

Register for this program here.

On Thursday, April 15, 2020 at 12:00 p.m. Central, Seyfarth attorneys Robert Milligan, Josh Salinas and Darren Dummit presented Hot Topics and Trends in California Consumer Class Actions.

They reviewed the latest consumer class action law developments affecting companies that do business in California. It is no secret that resourceful plaintiff’s attorneys target companies conducting business in California with expensive and time-consuming putative class actions alleging violations of federal or state consumer statutes. Specifically, Seyfarth attorneys provided a summary of recent key decisions, identified trends for companies to watch for in 2021 and beyond, and provided practical “best practices” and risk management advice for the future.

As a conclusion to this webinar, we developed a summary of key takeaways:

  • California Supreme Court recently ruled that calls recorded without consent by parties and non-parties are a violation of Penal Code Section 632.7, which could result in significant class action exposure.
  • For purposes of consumer arbitration and class action waivers, unlike many states, California state and federal case law currently require that consumers not be precluded from seeking a public injunction. Arbitration provisions should be drafted to make clear that consumer arbitration provisions do not preclude such relief.
  • Covid-related “refund” class action suits have put a spotlight on the importance of clear policies within terms and conditions, as well as the changing market effects underlying these policies, but going forward we should expect to see class action activity around diminished value of the offerings, failure to provide redemptive credits of in-kind value, and failure to accommodate individual health and safety issues.
  • Perhaps one of the hottest trends over the past year-plus has been the explosion of TCPA law suits and verdicts, particularly targeting the nascent cannabis industry, and while the US Supreme Court’s recent decision will no doubt reduce the TCPA activity from the plaintiffs bar, it will by no means end it.
  • Reduce the risk of potential false advertisement class actions by ensuring marketing materials and labels comply with relevant regulations, are not misleading, and any representations or implied claims have adequate scientific support or can otherwise be substantiated.
  • Sensitive employee and customer data can be compromised not only by outside attackers but also by carelessness, mistake, and inadequate information security practices.

On January 5, 2021, the Consumer Financial Protection Bureau (CFPB) Taskforce on Federal Consumer Financial Law (Taskforce) issued a nearly 900-page final report (Report) making extensive recommendations for legislative and regulatory reform, enactment, and adoption of new initiatives in the financial marketplace. In proposing changes to the existing legal and regulatory framework, the Report is centered around five key principles: (1) consumer protection; (2) information and education; (3) competition and innovation; (4) regulatory modernization and flexibility; and (5) inclusion and access.

In the second installment of the Consumer Financial Services Litigation Webinar Series, Seyfarth attorneys offered predictions on what financial services companies might expect from the CFPB in the months ahead as a result of the Taskforce Report. Specifically, Seyfarth attorneys provided a deeper dive into the following:

  • The Background of the Taskforce, its Report and prior studies that provided the starting point and reasons for the current consumer financial services regulatory review.
  • Status of a recent legal challenge to the Taskforce and its Report pending in the Massachusetts federal court.
  • Key recommendations, including:
    • Focusing enforcement decisions on the “lodestar” of consumer harm;
    • Providing public transparency as to how enforcement decisions are made;
    • Rethinking Regulation Z’s required disclosures to better inform consumers;
    • Increasing access to credit for more consumers;
    • Providing the CFPB flexibility to determine that compliance with particular federal and state regulations during times of emergency would be impracticable.
  • Predictions for the scope of reliance and magnitude of the Taskforce Report given the change to the Biden-Harris Administration and nomination of a new CFPB Director.

Subscribe to Seyfarth’s Consumer Financial Services Mailing List.

Please see the webinar recording and presentation below for the March 25th Webinar: “Deeper Dive into the CFPB Taskforce Report Recommendations and Q&A Session”

Presentation Recording
PowerPoint Presentation

Consumer Financial Services Webinar Series

Given the magnitude of the potential changes ahead, Seyfarth has developed a webinar series designed to convey strategies and best practices to help you to ensure that your company and internal clients are prepared for what is ahead. To stay abreast of these changes, please subscribe to our mailing to list.

On Thursday, April 15, 2020 at 12:00 p.m. Central, Seyfarth attorneys Robert Milligan, Josh Salinas and Darren Dummit will present Hot Topics and Trends in California Consumer Class Actions.

Seyfarth attorneys will review the latest consumer class action law developments affecting companies that do business in California. It is no secret that resourceful plaintiff’s attorneys target companies conducting business in California with expensive and time-consuming putative class actions alleging violations of federal or state consumer statutes. Specifically, Seyfarth attorneys will provide a summary of recent key decisions, identify trends for companies to watch for in 2021 and beyond, and provide practical “best practices” and risk management advice for the future. This webinar will provide insight on the following areas:

  • COVID-19 consumer class action developments
  • Latest TCPA decisions and trends
  • Eavesdropper and call recording claims under CIPA
  • Recent developments in privacy/data breach
  • False advertising claims
  • Latest developments concerning arbitration and class waivers
  • Latest decisions and trends involving live sports, entertainment, and recreation

Thursday, March 25, 2021

12:00 p.m. to 1:00 p.m. Eastern
11:00 a.m. to 12:00 p.m. Central
10:00 a.m. to 11:00 a.m. Mountain
9:00 a.m. to 10:00 a.m. Pacific

Speakers

Robert B. Milligan, Partner, Seyfarth Shaw LLP
Daniel Joshua Salinas, Partner, Seyfarth Shaw LLP
Darren W. Dummit, Partner, Seyfarth Shaw LLP

If you have any questions, please contact Kelli Pacha at kpacha@seyfarth.com and reference this event.

On January 5, 2021, the Consumer Financial Protection Bureau (CFPB) Taskforce on Federal Consumer Financial Law (Taskforce) issued a nearly 900-page final report (Report) making extensive recommendations for legislative and regulatory reform, enactment, and adoption of new initiatives in the financial marketplace. In proposing changes to the existing legal and regulatory framework, the Report is centered around five key principles: (1) consumer protection; (2) information and education; (3) competition and innovation; (4) regulatory modernization and flexibility; and (5) inclusion and access.

In the second installment of the Consumer Financial Services Litigation Webinar Series, Seyfarth attorneys will offer predictions on what financial services companies might expect from the CFPB in the months ahead as a result of the Taskforce Report. Specifically, Seyfarth attorneys will provide a deeper dive into the following:

  • The Background of the Taskforce, its Report and prior studies that provided the starting point and reasons for the current consumer financial services regulatory review.
  • Status of a recent legal challenge to the Taskforce and its Report pending in the Massachusetts federal court.
  • Key recommendations, including:
    • Focusing enforcement decisions on the “lodestar” of consumer harm;
    • Providing public transparency as to how enforcement decisions are made;
    • Rethinking Regulation Z’s required disclosures to better inform consumers;
    • Increasing access to credit for more consumers;
    • Providing the CFPB flexibility to determine that compliance with particular federal and state regulations during times of emergency would be impracticable.
  • Predictions for the scope of reliance and magnitude of the Taskforce Report given the change to the Biden-Harris Administration and nomination of a new CFPB Director.

Submit your questions for our Q&A Session upon registration. There is an additional field in the registration link to enter your questions.

Consumer Financial Services Webinar Series

Given the magnitude of the potential changes ahead, Seyfarth has developed a webinar series designed to convey strategies and best practices to help you to ensure that your company and internal clients are prepared for what is ahead. To stay abreast of these changes, please subscribe to our mailing to list.

Subscribe to Seyfarth’s Consumer Financial Services Mailing List.

For updates and insight on Consumer Financial Services Issues, we invite you to click here to subscribe to Seyfarth’s Consumer Class Defense Blog.

*CLE Credit for these webinars is approved in the following states: CA, IL, NJ and NY. CLE Credit is pending for GA, TX and VA. Credit will be applied for, but cannot be guaranteed, in all other eligible jurisdictions. Please note that in order to receive full credit for attending each webinar, the registrant must be present for the entire session.

Speakers

J. Patrick Kennedy, Senior Counsel, Seyfarth Shaw LLP
James R. Billings-Kang, Associate, Seyfarth Shaw LLP
Michael E. Jusczyk, Associate, Seyfarth Shaw LLP

Thursday, March 25, 2021

12:00 p.m. to 1:00 p.m. Eastern
11:00 a.m. to 12:00 p.m. Central
10:00 a.m. to 11:00 a.m. Mountain
9:00 a.m. to 10:00 a.m. Pacific

If you have any questions, please contact Kelli Pacha at kpacha@seyfarth.com and reference this event.

In the first installment of Seyfarth’s 2021 monthly Consumer Financial Services Webinar Series held on February 24, 2021, attorneys David M. Bizar, Tonya M. Esposito and J. Patrick Kennedy discussed the major legislative initiatives, regulatory and enforcement, and executive actions that are likely to be prioritized by the Biden-Harris administration; the key financial department appointees of the new administration; and the continuing impacts of the COVID-19 pandemic, particularly on the status of federal foreclosure and eviction moratoria.

As a conclusion to this webinar, we developed a summary of key takeaways:

  • Until the COVID-19 pandemic subsides, CARES Act provisions providing for mortgage payment forbearance and foreclosure eviction moratoria will continue to cause disruptions in the consumer lending and mortgage servicing marketplaces.  With the administration change following the November election, new legislative initiatives will be heavily consumer-focused, and enforcement of consumer laws by the CFPB and other executive agencies will dramatically increase.  Fintech, student lending and smaller-dollar consumer products such as payday loans are expected to be a particular focus under new CFPB Director Rohit Chopra.
  • The Biden-Harris administration’s financial department appointees are smart; consumer-focused; experienced in leading important consumer initiatives in prior Democratic administrations; and are expected to be aggressive in their enforcement and rule-making positions.
  • The federal eviction and foreclosure moratoria have been formally extended due to the continuing COVID-19 pandemic through March 31, 2021, will be extended further until June 30, 2021, and absent a dramatic improvement in conditions related to COVID-19 are expected to be in place through at least September 2021.  Federal restrictions generally take precedence over state-law restrictions, unless state bans are more inclusive.  These moratoria will result in increasing numbers of mortgage loans in default status, requiring more default servicing and foreclosure resources for banks and other financial servicers once the pandemic subsides.

Banks and financial institutions should review their compliance protocols and procedures, and be prepared for increased scrutiny by federal regulators during the Biden-Harris administration.  Our next scheduled event in the monthly Consumer Financial Services Webinar Series will be held on March 25, 2021, and will explore the recently-issued CFPB Taskforce Report and Recommendations.