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

David M. Gettings

David M. Gettings

Blog Role:
Contributor – Credit Reporting & Data Brokers; Background Screening

CFS Value:
Dave specializes in the defense of consumer actions, general business disputes, and regulatory compliance, with a focus on class action defense.

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District Court Rejects Argument that Background Check Disclosure is Not “Standalone” Document

Posted in ALL CFS Blog Entries, Background Screening
The Fair Credit Reporting Act regulates more than credit.  It includes provisions that govern employers who obtain consumer reports on applicants in connection with the application process.  One such provision deals with the disclosure that an employer must provide to an applicant before obtaining a background check.  According to the FCRA, the employer must provide… Continue Reading

State Court Among First to Dismiss FCRA Claim for Lack of Injury-in-Fact

Posted in ALL CFS Blog Entries, Credit Reporting & Data Brokers
In Miles v. The Company Store, consumer Timothy Miles brought a claim in state court against retailer The Company Store for alleged violations of the federal Fair Credit Reporting Act.  Specifically, Miles claimed that The Company Store violated 15 U.S.C. § 1681c for printing too many digits of his credit card number on his receipt. … Continue Reading

District Court Skeptical of Consent to Obtain Consumer Report

Posted in ALL CFS Blog Entries, Credit Reporting & Data Brokers
The District Court for the District of Nevada recently addressed the reach of a consumer’s written authorization to obtain a consumer report under the Fair Credit Reporting Act.  In Rodriguez v. Your First Choice, LLC, it implicitly limited a business’s ability to obtain a report based on “written authorization” to situations when a permissible purpose… Continue Reading

Congress Kills CFPB’s Arbitration Ban for Financial Services Companies, Returning Focus to State v. Federal Court Wars

Posted in ALL CFS Blog Entries, Featured Posts, State Attorneys General, CFPB, & FTC
On Tuesday, October 24, 2017, the Senate voted to nullify the Consumer Financial Protection Bureau’s (“CFPB”) arbitration rule (the “Rule”) in a 51-50 vote. Only two Republicans voted against the measure – Lindsey Graham (SC) and John Kennedy (LA). President Trump praised the vote, saying that he will sign the resolution when it reaches his… Continue Reading

District Court Rejects FCRA Class Action Settlement for Lack of Standing

Posted in ALL CFS Blog Entries, Background Screening
In Robertson v. Allied Solutions, LLC, plaintiff Shameca Robertson brought a class action claim in the Southern District of Indiana against Allied Solutions under the Fair Credit Reporting Act.  In the complaint, Robertson asserted two claims against Allied Solutions: (1) that the company failed to provide her with an FCRA-compliant disclosure informing her that it… Continue Reading

CFPB Issues Guidance to Small Businesses on Complying With Rule Banning Class Action Waivers

Posted in ALL CFS Blog Entries, Credit Reporting & Data Brokers
On July 10, the Consumer Financial Protection Bureau issued its long-awaited final Rule banning class action waivers in arbitration provisions for covered entities, as well as requiring the covered entities to provide information to the CFPB regarding any efforts to compel arbitration.  This Rule is of significance to any financial services company that utilizes consumer… Continue Reading

No Vacancy – Court Denies Class Certification in FCRA Case Against Hyatt

Posted in ALL CFS Blog Entries, Credit Reporting & Data Brokers
On March 13, 2017, Carlos Guarisma filed a class action complaint against Hyatt Equities, alleging violation of the Fair Credit Reporting Act.  The complaint alleges that Hyatt printed more than the last five digits of customers’ credit card numbers on hotel receipts.  Guarisma sought to represent a class of Hyatt hotel guests.  This past week,… Continue Reading

U.S. Chamber of Commerce and Other Business Associations Sue to Overturn Ban on Class Action Waivers

Posted in ALL CFS Blog Entries, Credit Reporting & Data Brokers
The U.S. Chamber of Commerce and other business groups have filed a federal lawsuit seeking to invalidate the Consumer Financial Protection Bureau’s Rule banning class action waivers in arbitration provisions contained in financial institutions’ contracts with consumers.  Compliance with the Rule would be required beginning March 19, 2018.  The lawsuit was filed in the United… Continue Reading

District Court Denies Motion to Strike in FCRA Background Check Class Action

Posted in ALL CFS Blog Entries, Background Screening
In Fosbrink v. Area Wide Protective, Inc., William Fosbrink sued defendant Area Wide Protective in a class action complaint for allegedly violating the Fair Credit Reporting Act’s provisions regarding employment background checks.  According to Fosbrink, Area Wide violated the FCRA in three ways: (1) it failed to provide him with a stand-alone disclosure informing him… Continue Reading

West Virginia Federal Court Preliminarily Approves Nearly $30M TCPA Class Action Settlement

Posted in ALL CFS Blog Entries, Cyber Security, Information Governance & Privacy
In re Monitronics International, Inc., pending in the Northern District of West Virginia, is a consolidated class action lawsuit brought under the Telephone Consumer Protection Act.  After years of contentious litigation, this past week the Court preliminarily approved a class action settlement of $28 million.  This significant settlement serves as another example of the high… Continue Reading

Bill to Cap FCRA Liability Gets Hearing Before Congressional Subcommittee

Posted in ALL CFS Blog Entries, Credit Reporting & Data Brokers
This past May, Rep. Barry Loudermilk (R-Ga.) introduced H.R. 2359, the FCRA Liability Harmonization Act, which would cap class action damages in Fair Credit Reporting Act claims at $500,000 or one percent of the defendant’s net worth, whichever is less, and eliminate punitive damages.  Such changes would align the Fair Credit Reporting Act with numerous… Continue Reading

Federal Appellate Court Affirms Dismissal of Putative FCRA Class Action

Posted in ALL CFS Blog Entries, Background Screening, Credit Reporting & Data Brokers
On August 24, the United States Court of Appeals for the Eleventh Circuit affirmed the dismissal of a putative class action against TransUnion on the basis that it failed to allege a plausible claim for relief, holding that TransUnion was not objectively unreasonable in its reading of the Fair Credit Reporting Act. The plaintiff, Kathleen… Continue Reading

Court Finds Congress Has Waived Governmental Sovereign Immunity for FCRA Violations

Posted in ALL CFS Blog Entries, Credit Reporting & Data Brokers
In Kent v. TransUnion, plaintiff Rowdy Kent sued multiple consumer reporting agencies and the United States Defense Finance and Accounting Services for alleged violations of the Fair Credit Reporting Act.  DFAS moved to dismiss Kent’s claims, arguing that it possesses sovereign immunity from claims under the FCRA.  On August 25, the District Court for the… Continue Reading

Indiana Becomes First State to Prohibit Ban-the-Box Ordinances

Posted in ALL CFS Blog Entries, Background Screening
Countering a nationwide trend of “ban the box” ordinances that prohibit employers from asking about an individual’s criminal history at the initial application stage, Indiana has become the first state to ensure through legislation that employers can inquire into applicants’ criminal histories.  The legislation prohibits localities from implementing “ban the box” ordinances.  The measure has… Continue Reading

Courier Service Settles Lawsuit Challenging Background Check Disclosure Form and Notices

Posted in ALL CFS Blog Entries, Background Screening, Credit Reporting & Data Brokers, Featured Posts
The recent matter of Nesbitt, et al. v. Postmates Inc., Case No. CGC15547146 in the Superior Court of the State of California, County of San Francisco, demonstrates the continuing trend of litigation regarding the content of background disclosure forms, as well as ongoing issues regarding the failure of employers to provide notice of adverse action… Continue Reading

Defendant Seeks To Stymie Plaintiff’s ‘False Pretense’ Claim Under the FCRA

Posted in ALL CFS Blog Entries, Background Screening
In Patel v. Comcast Corporation, plaintiff consumer Mounang Patel brought a purported class action lawsuit against defendant Comcast Corporation, arguing that Comcast unlawfully obtains background checks (also referred to as consumer reports) on consumers under false pretenses.  On July 17, Comcast moved to dismiss this class claim on the ground that Patel failed to allege… Continue Reading

Indiana Governor Issues Executive Order “Banning the Box”

Posted in ALL CFS Blog Entries, Background Screening
Indiana Governor Eric Holcomb has issued an executive order “banning the box” for jobs within the executive branch.  Effective July 1, applicants for employment in the executive branch will no longer be subject to inquiries about their criminal history at the initial application stage, unless the conviction for a specific crime would disqualify the applicant… Continue Reading

Arbitration Rule Compliance Date Set for March 19, 2018

Posted in ALL CFS Blog Entries, Credit Reporting & Data Brokers, Featured Posts, State Attorneys General, CFPB, & FTC
Financial institutions with arbitration clauses in consumer contracts are on the clock. The Consumer Financial Protection Bureau’s (CFPB) new Arbitration Rule was published in the Federal Register today, with an effective date of September 18, 2017 and a compliance date of March 19, 2018. Absent congressional action or successful litigation challenge, those financial institutions that… Continue Reading

CFPB Issues Rule Banning Class Action Waivers In Arbitration Provisions

Posted in ALL CFS Blog Entries, Background Screening, Credit Reporting & Data Brokers, Featured Posts, State Attorneys General, CFPB, & FTC
On July 10, 2017, the Consumer Financial Protection Bureau issued its long-awaited final rule banning class action waivers in arbitration provisions for covered entities, as well as requiring the covered entities to provide information to the CFPB regarding any efforts to compel arbitration. This rule is of significance to any financial services company that utilizes… Continue Reading

Court Certifies FCRA Background Check Disclosure Claim Against Employer That Relied on Vendor’s Disclosure Form

Posted in ALL CFS Blog Entries, Background Screening
A new Florida federal district court case is yet another reminder of the minefield of federal and state regulations governing employer criminal background check forms.  In Graham v. Pyramid Healthcare Solutions, the Court certified a class action against the employer under the federal Fair Credit Reporting Act and ruled that whether the employer willfully violated… Continue Reading

CFPB Targets Credit Repair Companies and Their Principals for Allegedly Misleading Consumers and Charging Improper Fees

Posted in ALL CFS Blog Entries, Credit Reporting & Data Brokers
On June 27, 2017, the Consumer Financial Protection Bureau (“CFPB”) announced approximately $2 million in fines and penalties against four credit repair companies and three associated individuals for allegedly misleading consumers and charging improper fees.  Under two proposed final judgments that the CFPB filed in United States District Court for the Central District of California,… Continue Reading

Supreme Court Declines to Weigh in on Spokeo in FACTA Lawsuit

Posted in ALL CFS Blog Entries, Credit Reporting & Data Brokers
The United States Supreme Court has denied a petition seeking review of a Seventh Circuit decision holding that a consumer lacked Article III standing to challenge an alleged violation of the Fair and Accurate Transactions Act where the defendant retailer printed more than the last five digits of his credit card number and the expiration… Continue Reading

Employer Seeks Supreme Court Review of Ninth Circuit Finding of Willful FCRA 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 by including a liability waiver in its FCRA background check disclosure form.  In the underlying case, Syed applied… 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