Consumer Financial Services Law Monitor

Consumer Financial Services Law Monitor

monitoring the financial services industry to help companies navigate through regulatory compliance, enforcement, and litigation issues

Alan D. Wingfield

Alan D. Wingfield

Blog Role:
Editor – Auto Finance

CFS Value:
Alan specializes in regulatory compliance as well as litigation matters.

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Five Guys Faces Background Check Lawsuit Over Allegedly Improper Disclosures

Posted in ALL CFS Blog Entries, Background Screening
Five Guys Enterprises LLC—franchisor of the popular Five Guys Burger Co.—and a California franchisee are facing a lawsuit from a former employee alleging numerous violations of the federal Fair Credit Reporting Act and California state law.  The plaintiff, Jeremy Lusk, alleges he began working for Five Guys in August 2016.  He alleges that in the… Continue Reading

Florida AG Announces $5M Settlement with Car Dealership over Alleged Misleading Business Practices

Posted in ALL CFS Blog Entries, Auto Finance, State Attorneys General, CFPB, & FTC
On June 2, Florida Attorney General Pam Bondi announced a settlement with a Jacksonville car dealership, its financing arm, and its president related to allegations that the dealership engaged in misleading business and sales practices.  The consent agreement, filed in the Circuit Court of the Fourth Judicial Circuit for Duval County, Florida, requires the dealership… Continue Reading

District Court Dismisses FCRA Class Action for Lack of Standing Based on Insufficient Risk of Imminent Harm

Posted in ALL CFS Blog Entries, Credit Reporting & Data Brokers
Since the Supreme Court issued its decision in Spokeo, Inc. v. Robins, appellate and district courts throughout the country have been grappling with the ruling’s reach.  Just this past month, the District Court for the Southern District of New York weighed in on the issue and found that a plaintiff must show more than a… Continue Reading

District Court Rejects Notion That An Improper Background Check Disclosure Automatically Renders A Subsequent Background Authorization Improper

Posted in ALL CFS Blog Entries, Background Screening
In the world of background check litigation under the Fair Credit Reporting Act (“FCRA”), one theory that plaintiffs frequently assert is that if the background check disclosure provided by the employer violates the FCRA, then the authorization based on that disclosure is also necessarily inadequate.  Under the FCRA, an employer desiring to obtain a criminal… Continue Reading

TCPA Is Not Dead Yet – Court Trebles Eight Figure TCPA Award While World Awaits ACA Decision

Posted in ALL CFS Blog Entries, Cyber Security, Information Governance & Privacy, Debt Buyers & Collectors, Mortgage Lenders & Servicers
While the world eagerly awaits the D.C. Circuit’s forthcoming ruling on the proper interpretation of the Telephone Consumer Protection Act (TCPA), a recent federal court ruling imposing tens of millions of dollars of liability is a reminder of the risks associated with outbound calling activities and of the stakes at play in the ACA International… Continue Reading

Spokeo Strikes Again: Fourth Circuit Reverses and Dismisses $12 Million FCRA Class Action on Spokeo Grounds

Posted in ALL CFS Blog Entries, Background Screening, Credit Reporting & Data Brokers, Cyber Security, Information Governance & Privacy, Debt Buyers & Collectors, Featured Posts
In one of the most significant post-Spokeo decisions to date, the Fourth Circuit unanimously reversed and dismissed a nearly $12 million Fair Credit Reporting Act (“FCRA”) class action judgment, finding plaintiff, Michael T. Dreher, lacked Article III standing to bring his claims. The decision provides much needed clarity from the Fourth Circuit on the viability… Continue Reading

Sodexo Defends FCRA Class Action Alleging Failures in Hiring Process

Posted in ALL CFS Blog Entries, Background Screening
Sodexo, Inc. was recently named as the defendant in a putative Fair Credit Reporting Act class action based on alleged improprieties in its hiring procedures.  The case, Piveronas v. Sodexo, Inc., was originally filed in the Court of Common Pleas of Allegheny County, Pennsylvania, and removed to the United States District Court for the Western… Continue Reading

Virginia Federal Court Dismisses FCRA Permissible Purpose Claim on Standing Grounds

Posted in ALL CFS Blog Entries, Background Screening
On March 29, 2017, a judge in the United States District Court for the Eastern District of Virginia dismissed a Fair Credit Reporting Act claim against Equifax Information Services, LLC alleging that Equifax provided the plaintiff’s consumer report to a third party without an FCRA permissible purpose.  Dilday v. DIRECTV, LLC et al., No. 3:16CV996-HEH. … Continue Reading

Court Rejects FCRA Background Check Settlement As Providing Insufficient Recovery For Class Members In Light Of Ninth Circuit Ruling

Posted in ALL CFS Blog Entries, Background Screening
This past week, the U.S. District Court for the Northern District of California declined to preliminarily approve a class action settlement of a Fair Credit Reporting Act (FCRA) claim because the payment to class members was unreasonably low.  In the Court’s view, the class members deserved more in light of the strengths of the plaintiff’s… Continue Reading

California’s Regulation Regarding Consideration of Criminal History in Employment Decisions

Posted in ALL CFS Blog Entries, Background Screening, Credit Reporting & Data Brokers
The Fair Employment and Housing Council published the final text for the “Consideration of Criminal History in Employment Decisions” regulation on March 27, 2017.  This regulation, effective July 1, 2017, impacts employers’ consideration of criminal history information for employment purposes, including those related to layoffs.  Employers are well-advised to take a fresh look at their… Continue Reading

TCPA Defendant Settles Class Claims on Individual Basis Following Counterclaims for Harassment and Racketeering

Posted in ALL CFS Blog Entries, Credit Reporting & Data Brokers, Debt Buyers & Collectors
BrandRep, the defendant in a Telephone Consumer Protection Act putative class action lawsuit pending in the United States District Court for the Central District of California, recently settled putative nationwide class claims on an individual basis, resulting in dismissal of the case.  The settlement came on the heels of BrandRep’s assertion of counterclaims that put… Continue Reading

Join Us on March 23 for a Complimentary Webinar on Electronic Fund Transfer Act (EFTA) – Latest Trends and Developments

Posted in ALL CFS Blog Entries, CFS Events, Payment Processing & Cards
Over the past few years, Regulation E, which implements the Electronic Fund Transfer Act, has been cited by federal regulators in rulemaking, enforcement actions and bulletins. The CFPB has not only used the EFTA in its rulemaking concerning prepaid accounts, but it has filed enforcement actions for alleged violations of EFTA and issued bulletins concerning… Continue Reading

District Court Finds That Sending Copy of Background Check Satisfies FCRA Pre-Adverse Action Obligations

Posted in ALL CFS Blog Entries, Background Screening
Under the Fair Credit Reporting Act, when an employer is considering rejecting an applicant based on a background check (often referred to as a consumer report), it must follow certain “pre-adverse” action procedures.  Specifically, an employer must provide the applicant with a copy of his or her background check and a summary of rights under… Continue Reading

Defendant Requests Rehearing En Banc of Ninth Circuit’s Finding of Willful FCRA Violation

Posted in ALL CFS Blog Entries, Background Screening
As we previously reported, on January 20, the Ninth Circuit Court of Appeals issued a decision of first impression in Syed v. M-I, LLC, a putative class action, when it held that a prospective employer willfully violated the Fair Credit Reporting Act by including a liability waiver in its background check disclosure form.  The Ninth… Continue Reading

Court Denies Background Screener’s Spokeo Motion Related to Address History Reporting

Posted in ALL CFS Blog Entries, Background Screening
On February 13, a judge in the United States District Court for the Southern District of New York denied a background screening company’s motion to dismiss a putative Fair Credit Reporting Act class action on the basis of the Supreme Court’s holding in Spokeo v. Robins, 136 S. Ct. 1540 (2016).  As has been the… Continue Reading

Join Us on February 9 for a Complimentary Webinar on Redlining and Fair Lending

Posted in ALL CFS Blog Entries, Auto Finance, CFS Events, Mortgage Lenders & Servicers
Join Troutman Sanders Partners James W. Stevens and Alan D. Wingfield on Thursday, February 9 at 12 p.m. ET for a complimentary webinar to discuss current trends and outlook for the key fair lending issues of redlining and disparate impact. Specific topics of discussion include the basics of federal regulators’ theories and methodologies in assessing redlining… Continue Reading

Ninth Circuit Reverses Dismissal of Plaintiffs’ FCRA Complaint against Fannie Mae

Posted in ALL CFS Blog Entries, Background Screening
In an unpublished decision, the Ninth Circuit Court of Appeals ruled that a complaint sufficiently alleged that Federal National Mortgage Association (“Fannie Mae”) may act as a consumer reporting agency (“CRA”) under the Fair Credit Reporting Act, which could potentially subject Fannie Mae to the accuracy requirements imposed by section 1681e(b) of the FCRA. In… Continue Reading

Employers Beware: Ninth Circuit Finds Inclusion of Liability Waiver in FCRA Background Check Disclosure Form is a Willful Violation

Posted in ALL CFS Blog Entries, Background Screening
On January 20, 2017, the Ninth Circuit Court of Appeals issued a decision of first impression in Syed v. M-I, LLC, a putative class action, when it held that a prospective employer willfully violated the Fair Credit Reporting Act (FCRA) by including a liability waiver in its FCRA background check disclosure form. Any employer who… Continue Reading

Third Circuit Finds Consumer Standing in FCRA Data Breach Litigation

Posted in ALL CFS Blog Entries, Credit Reporting & Data Brokers
On January 20, the Third Circuit in In re Horizon Healthcare Services Data Breach Litigation reversed a district court’s dismissal of a lawsuit under the Fair Credit Reporting Act involving a data breach at Horizon Healthcare.  The Third Circuit held that the plaintiffs had standing to pursue their claims under the FCRA without any accompanying… Continue Reading

District Court Finds That “Complete and Up to Date” Requirement of FCRA § 1681K Does Not Include an Accuracy Component

Posted in ALL CFS Blog Entries, Background Screening, Credit Reporting & Data Brokers, Featured Posts
A consumer reporting agency complies with § 1681k(a)(2) of the Fair Credit Reporting Act (“FCRA”) if it “maintain[s] strict procedures designed to insure that whenever public record information which is likely to have an adverse effect on a consumer’s ability to obtain employment is reported it is complete and up to date.” In Kelly v.… Continue Reading

Federal Communications Commission Chairman Tom Wheeler Announces Resignation on Dec. 15, 2016, Signaling Potential Reform to the Telephone Consumer Protect Act (TCPA)

Posted in ALL CFS Blog Entries, Cyber Security, Information Governance & Privacy, Debt Buyers & Collectors
Federal Communications Commission Chairman Tom Wheeler said Thursday that he’ll step down from his post on Jan. 20, 2017. Wheeler was appointed by President Obama three years ago to lead the FCC. Prior to his October 2013 confirmation as the 31st chairman of the FCC, Wheeler served as managing director at venture capital firm Core… Continue Reading

Ninth Circuit Hears Oral Argument in Spokeo Following Remand From Supreme Court

Posted in ALL CFS Blog Entries, Background Screening
On December 13, the Ninth Circuit Court of Appeals heard arguments in the long‑simmering Robins v. Spokeo Inc. putative class action, following reversal of the appellate court’s previous opinion by the Supreme Court.  Robins alleges that Spokeo violated the Fair Credit Reporting Act by maintaining various inaccurate data points about the plaintiff in an online… Continue Reading

Court Finds That Spokeo Does Not Bar Enforcement of Background Check Class Action Settlement

Posted in ALL CFS Blog Entries, Background Screening
In Schumacher v. SC Data Center, the plaintiff brought three class action claims against SC Data Center, Inc. under the Fair Credit Reporting Act related to its pre-employment background check process.  Specifically, the plaintiff alleged that SC Data Center’s background check process violated the disclosure and adverse action provisions of the FCRA.  The substance of… Continue Reading

California Federal Court Remands Background Check Class Action on Basis of Article III Standing

Posted in ALL CFS Blog Entries, Background Screening
On December 2, the court in Lee v. Hertz Corp., No. 15-cv-04562-BLF (N.D. Cal.) granted a motion to dismiss a putative Fair Credit Reporting Act class action against Hertz.  The court’s order, which was based on a finding that the named plaintiffs—Peter Lee and Latonya Campbell—lacked Article III standing, remanded the case to San Francisco… Continue Reading