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Ethan G. Ostroff

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Ethan’s practice focuses on financial services litigation and compliance counseling, as well as digital assets and blockchain technology. With a long track record of successful litigation results across the U.S., both bank and non-bank clients rely on him for comprehensive advice throughout their business cycle.

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On October 19, the Consumer Financial Protection Bureau (CFPB) issued its highly anticipated notice of proposed rulemaking under Section 1033 of the Consumer Financial Protection Act of 2010 (CFPA). The proposed Personal Financial Data Rights Rule would require depository and nondepository entities to make available to consumers and authorized third parties certain data relating to consumers’ accounts, establish obligations for third parties accessing a consumer’s data, and provide basic standards for data access. Notably, the proposed rule only provides for narrow exceptions, such as community banks and credit unions that have no digital interface with their customers. The CFPB is currently accepting comments on the proposed rule until December 29, 2023.

On October 12, the U.S. Court of Appeals for the Third Circuit issued a decision rejecting a district court’s finding that the so-called informational injury doctrine established Article III standing for the named plaintiff and putative class in a class action brought under the Fair Debt Collection Practices Act (FDCPA).

On October 19, the Securities and Exchange Commission (SEC) dismissed its claims against Ripple Labs, Inc. (Ripple) executives Bradley Garlinghouse and Christian Larsen for allegedly aiding and abetting Ripple’s violations of the Securities Act with respect to its “institutional sales” of XRP. The Southern District of New York had deemed “institutional sales” to be unregistered securities in its July summary judgment decision, however, at that time the court reserved judgment as to the aiding and abetting claims against the executives. The matter was set for trial in 2024.

The Utah court of appeals has recently affirmed the dismissal of a plaintiff’s suit against a debt buyer based on its alleged failure to register as a collection agency prior to filing collection lawsuits. The court’s decision in Meneses v. Salander Enterprises LLC, not only holds that a violation of the Utah Collection Agency Act (UCAA) is not a deceptive or unconscionable act under state law, but also calls into question whether the UCAA ever even applied to debt buyers. As discussed here, the UCAA was repealed by the state legislature earlier this year, but cases asserting this theory of liability remain pending before state and federal courts.

On October 12, the U.S. District Court for the Northern District of Illinois denied certification of a putative class action asserting that TransUnion violated the Fair Credit Reporting Act (FCRA) and the Missouri Merchandising Practices Act (MMPA) by allegedly misleading consumers about the accuracy and popularity of VantageScore 1.0, TransUnion’s proprietary credit scoring model. The court held that the plaintiff was an inadequate class representative due to his lack of credibility, and the asserted class claims failed both the commonality and predominance prongs of Federal Rule of Civil Procedure (FRCP)23.

The Middle District of Tennessee denied a defendant’s summary judgment motion in a Telephone Consumer Protection Act (TCPA) case, clearing the way for a lawsuit claiming that the defendant was secondarily liable under an agency theory for calls made by a third-party call service even though a principal-agent relationship was disclaimed by contract.

On October 11, the Consumer Financial Protection Bureau (CFPB or Bureau) published a special edition of its Supervisory Highlights report. This report serves as a “victory lap” for the Bureau, which highlights the relief it has obtained for consumers since the release of its March 2023 Special Fees Edition, discussed here. According to the Bureau, its supervisory efforts have led to institutions refunding over $140 million to consumers, including $120 million in overdraft and non-sufficient funds (NSF) fees.