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.

With the Democrats in control of the House, the Senate, and the White House, combined with the ongoing effect of COVID-19’s effect of consumer lending, we anticipate a heightened focus on consumer protection issues and financial services enforcement at every level in 2021.

President Biden recently appointed FTC Commissioner Rohit Chopra to head the Consumer Financial Protection Bureau (CFPB). As we await Chopra’s Senate confirmation process, there is much to consider in terms of what the future may bring for consumer lending, including the recently released report of the CFPB’s Taskforce on Federal Consumer Financial Law’s recently released report. Noteworthy among the recommendations in the taskforce’s report is that the CFPB be given the authority to license and regulate financial technology companies. If implemented, that change would broaden the CFPB’s regulatory oversight powers.

Please join us for our first Consumer Financial Services Litigation Webinar of 2021. This webinar will discuss what the incoming Biden-Harris administration’s likely policy, regulatory and enforcement agenda might mean for banks and financial institutions. Specifically, our attorneys will touch on:

  • The major legislative, regulatory and administrative acts that are likely to be prioritized by the Biden-Harris administration;
  • The Biden-Harris administration’s financial regulatory agency appointments, including Chopra to head the CFPB, and their backgrounds, and expected platform for change; and
  • COVID-related impacts, including the status of the federal foreclosure and eviction moratoria.

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 take part in the webinars, please subscribe to our mailing to list receive future invitations. We urge clients interested in this topic to register immediately.

Subscribe to Seyfarth’s Consumer Financial Services Mailing List.

Speakers

David Bizar, Partner,  Seyfarth Shaw LLP
Tonya Esposito, Partner, Seyfarth Shaw LLP
J. Patrick Kennedy, Senior Counsel, Seyfarth Shaw LLP

Tuesday, February 23, 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.

Background

A recently decided Ninth Circuit case provides additional guidance for defendants looking to challenge standing in consumer class actions.  In, McGee v. S-L Snacks National, Plaintiff brought a putative class action asserting claims of unfair competition, nuisance, and breach of the implied warranty of merchantability arising from her contention that her popcorn brand of choice, Pop Secret from Diamond Foods, contained trans-fat. Even though trans-fat was a listed ingredient, Plaintiff argued that it caused her both economic loss and physical injury. The Ninth Circuit disagreed.

Analysis

The Ninth Circuit rejected Plaintiff’s claims regarding her supposed economic injury largely due to the fact that the popcorn clearly listed trans-fat as an ingredient on its nutritional label. Under a benefit of the bargain theory, Plaintiff claimed that she was injured because she believed she was purchasing a safe product when, in fact, the popcorn contained “unsafe and unlawful ingredients.” However, the court explained that Plaintiff’s beliefs were immaterial where Plaintiff could not allege that Diamond made any false representations given its disclosure of trans-fat in its labeling. The Ninth Circuit similarly found Plaintiff’s claims regarding economic injury unavailing under an overpayment theory. Even entertaining the possibility of an overpayment theory being viable absent a misrepresentation, the Ninth Circuit disregarded Plaintiff’s arguments. The nutritional label plainly disclosed the presence of trans-fat and the health risks associated with consuming trans-fat had been well established. Therefore, the popcorn did not contain some hidden defect and was not worth objectively less than what Plaintiff paid for.

Turning to Plaintiff’s allegations of physical injury, the Ninth Circuit found that Plaintiff’s claims were too speculative to be actionable. Plaintiff alleged that she experienced immediate physical injury because there is no safe quantity for which one can consume trans-fat. The Ninth Circuit found that, even at the pleading stage, Plaintiff’s failure to provide facts regarding medical testing, examination, or the like to confirm her supposed injuries was fatal to her claim. The Ninth Circuit found that Plaintiff’s claim of future physical injury suffered the same defect. Simply claiming that consuming trans-fat substantially increased her risk of disease was not enough. Plaintiff’s failure to tie this risk to the quantities that she consumed made her injury too remote.

Takeaway: Defendants should always look to whether a class action suit can be challenged on the basis of standing. The Ninth Circuit has signaled that even at the pleading stage, a plaintiff cannot get by with conclusory allegations. A plaintiff must adequately and specifically plead an injury in fact.

Seyfarth Synopsis: The New York state legislature recently introduced a standalone biometric information privacy bill, AB 27, that mirrors Illinois’ Biometric Information Privacy Act (740 ILCS § 14/1 et seq., “BIPA”), which has spawned thousands of class actions in the Land of Lincoln. If enacted, The New York bill would become only the second biometric privacy act in the United States to provide a private right of action and plaintiffs’ attorneys’ fees for successful litigants. This represents a significant development for companies and employers operating in New York in light of the explosion of class action litigation over workplace privacy issues.

Details Of New York’s Proposed Legislation

What can otherwise be characterized as BIPA 2.0, New York proposed and introduced its own “Biometric Privacy Act” on January 6, 2021. New York’s proposed “Biometric Privacy Act” is a carbon copy of the Illinois BIPA, including identical definitions of both biometric identifiers and biometric information. The proposed law prohibits private entities from capturing, collecting, or storing a person’s biometrics without first implementing a policy and obtaining written consent. Most notably, the proposed bill provides for identical remedies to BIPA, whereas an aggrieved person under the proposed bill will be afforded a private right of action with the ability to recover $1,000 for each negligent violation, $5,000 for each intentional or reckless violation, and reasonable attorneys’ fees and costs.

Implications For Companies

Companies that are already familiar with the Illinois BIPA are undoubtedly aware of the risks that the proposed New York biometric privacy bill poses. While the BIPA was enacted in 2010, Illinois has seen an explosion in class action litigation over the past few years brought by employees and consumers alleging that their biometric data was improperly collected for timekeeping, security, and consumer transactions. In fact, between 2015 and 2020 alone, there were over 1,000 Illinois BIPA class action complaints filed across the United States, with additional new filings continuing to be initiated every day.

It remains to be seen if New York’s biometric privacy bill will pass as drafted. However, if enacted as it is currently drafted, companies in New York can also expect to face an onslaught of biometric privacy litigation. Compliance is key, and there no better time to think about your company’s biometric privacy compliance than right now. Companies with New York operations that are utilizing anything that could be considered biometrics, for any reason, should consider audit their practices, policies, and procedures to avoid potentially costly exposure in the event that the bill ultimately passed. Businesses with compliance questions should contact a member of Seyfarth Shaw’s Biometric Privacy Compliance & Litigation Practice Group.

While this proposed bill is only days old, we will provide immediate updates on its progress when available.

The Telephone Consumer Protection Act (TCPA) generally restricts making certain non-emergency calls to cellular phones and landlines, among other things, without the called party’s consent.  However, the Federal Communications Commission (FCC) has created a number of exemptions on which business have come to rely.  A new FCC Order significantly limits those exemptions.

Background

The TCPA places different restrictions on making calls without the called-party’s consent, depending on the type of telephone line used. For instance, with respect to residential landlines, the TCPA prohibits initiating non-emergency calls “using an artificial or prerecorded voice” but permits calls to residential landlines using an automatic telephone dialing system (ATDS).[1] With respect to cellular telephone numbers, the TCPA prohibits non-emergency calls using an ATDS or an artificial or prerecorded voice.[2]

Through section 8 of the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act), enacted in 2019, Congress required the FCC to ensure that its TCPA exemptions had parameters regarding “(i) the classes of parties that may make such calls; (ii) the classes of parties that may be called; and (iii) the number of such calls that a calling party may make to a particular called party.”[3] The FCC released a notice initiating this process in October 2020 and solicited comments.[4]

Following the notice and comment period, the FCC issued an Order on December 30, 2020 which places significant limits on the exemptions with respect to residential landlines, as outlined below.  These changes will come into force six months from the date of publication of the Office of Management and Budget’s approval of the rules in the Federal Register.[5]

Changes to Residential Landline Exemptions

  1. Non-commercial, Non-Telemarketing and Tax-Exempt Nonprofit Calls

(a) Before:  A caller, including any tax-exempt, nonprofit organization, could make  (or cause its vendor(s) to make) any amount of prerecorded or artificial voice calls to a residential landline for non-commercial or non-telemarketing purposes (including for political purposes) under this exemption.

(b) After:  A caller, including any tax-exempt, nonprofit organization, may make (or cause its vendor(s) to make) only three (3) prerecorded or artificial voice calls in a consecutive thirty (30) day period to residential landlines for non-commercial or non-telemarketing purposes.[6]

Further, an opt-out mechanism is now required for those calls, meaning that the caller must provide a phone number which takes opt-out requests or a key-press tool that can be prompted during prerecorded or artificial calls.[7]

  1. Healthcare / HIPAA Calls

(a) Before: A caller could make (or cause its vendor(s) to make) any amount of   HIPAA-related calls delivering a healthcare message to residential landlines under this exemption.

(b) After: A caller may make (or cause its vendor(s) to make) only one (1) HIPAA-related call conveying a healthcare message per day, up to a maximum of three (3) artificial or prerecorded voice calls per week under this exemption.[8]

Further, the same type of opt-out mechanism described above is required.[9]

No Changes to Wireless Number Exemptions

As our readers may be aware, the FCC has carved-out exemptions for package delivery calls, financial institution calls, healthcare provider calls, and inmate-calling service calls made to wireless numbers using an ATDS or artificial / prerecorded voice.  These exemptions stand.

The FCC determined that “no further restrictions [were] necessary” to harmonize these exemptions with the TRACED Act.[10] As to calls made by financial institutions, for example, the FCC found existing conditions on the exemption sufficient, as the exemption only applies to calls made by financial institutions to their customers and is limited to no more than “three calls per event over a three-day period for each affected account.”[11]

Takeaway

These new restrictions have significant implications for businesses in a wide-variety of industries, from tax-exempt nonprofits to political organizations to healthcare companies, as well as vendors making calls on their behalf.  Although these new restrictions are not enforceable for six months, businesses should begin to think seriously about compliance now, particularly if they engage multiple outside vendors as part of their communications strategy. The reason for this is that the new limitations apply per “calling party” (i.e. caller) and “called party” (i.e. per person), meaning that a caller cannot call the same person (or cause the same person to be called) more than 3 times in 30 days or, in the case of HIPAA-related calls, more than 3 times per week.  In other words, a business will likely run afoul of the limits if it has multiple agents who collectively call a person in excess of these limits.  Accordingly, the best practice for businesses and their vendors is to make sure that they have sufficient internal and external controls to stay within the new limits.

As always, please reach out to use if you have any question regarding compliance with these new rules.

[1] 47 U.S.C. § 227(b)(1)(B).

[2] Id. § 227(b)(1)(A)(iii).

[3] Id. § 227(b)(2)(I).

[4] Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Report & Order, FCC 20-186 (2020), ¶ 8.

[5] Id. ¶ 42.

[6] Id. ¶¶ 15, 28, 33.

[7] Id. ¶¶ 21, 23, 28, 29, 33, 34 & n. 77.

[8] Id. ¶ 38.

[9] Id. ¶ 40.

[10] Id. ¶ 43.

[11] Id. ¶ 45.