On February 25, the Federal Trade Commission announced that it had finalized a consent order settling its claims against online lender SoFi in connection with SoFi’s allegedly misleading advertising of its student loan refinancing products.   

The FTC issued a complaint in October 2018 alleging that SoFi, for more than two years, had overstated the average amounts that borrowers could save through its student loan refinance products in its mail, television, and online advertising.  According to the FTC, the “average” refinance savings that SoFi conspicuously advertised were calculated by using only a select group of consumers who would have the most savings, while several other groups of consumers not included in the calculations would have only minimal savings or would ultimately end up paying more over the life of the loan if they refinanced.   

At least some of SoFi’s advertising included a disclaimer explaining how the average savings were calculated, but the FTC contended that this “fine print” information was “buried” behind terms and conditions.  The disclaimer did not mitigate the more prominent advertising claims.  The FTC instead used the disclaimer’s explanation against SoFi as evidence in support of its deceptive advertising claim.  

The settlement does not include financial penalties, but prohibits SoFi from misrepresenting the amount of savings consumers could obtain through its credit products unless it has “competent and reliable” evidence to back up the claims.  The consent order, applicable for a twenty-year period, also includes regulatory oversight provisions requiring SoFi to maintain records, submit compliance reports upon request, and ensure that its marketing staff and principals are aware of the consent order’s requirements.  

Due to limits on the FTC’s authority, it was unable to impose any monetary penalties.  However, the FTC did note that any future violations of the consent order would be subject to enforcement by the Consumer Financial Protection Bureau or state attorneys general, and that such enforcement could include financial penalties.  

The consent order was unanimously approved by all five FTC commissioners.