On June 6, the Consumer Advisory Board’s twenty-two members were informed that they would no longer serve on the CAB and could not reapply for their former positions.

Through June 5, the Consumer Financial Protection Bureau had four advisory bodies: the Academic Research Council, the Community Bank Advisory Council, the Credit Union Advisory Council, and the Consumer Advisory Board. By law, the CFPB must meet twice a year with the CAB to discuss trends in the financial industry, regulations, and the impact of financial products and practices on consumers. Tellingly, the CFPB’s acting director, Mick Mulvaney, has canceled several meetings between the CFPB and its advisory groups during his short tenure.

For the CAB’s former members, the coup de grace came on June 6 when, in an afternoon call, Anthony Welcher, the Bureau’s recently hired Policy Associate Director for External Affairs, informed them that they were terminated. This move came after several members criticized Mulvaney’s leadership and implored him to keep this week’s scheduled—and just cancelled—meeting on the books.

“We’re going to start the advisory groups with sort of a new membership, to bring in these new perspectives for these new dialogues,” Welcher said on the call. “We’re going to be using the current application cycle to populate these memberships in the new groups. So we’re going to be transitioning these current advisory groups over the next few months.”

In the memo announcing the members’ terminations, the CFPB defended this “[r]evamping” as necessary to “increase high quality feedback” and mentioned plans to hold more town halls and roundtable discussions and reduce the new CAB’s ranks. As a later released statement argued, “[b]y both right-sizing its advisory councils and ramping up outreach to external groups, the Bureau will enhance its ability to hear from consumer, civil rights, and industry groups on a more regular basis.” In response to press queries, a CFPB spokesman not only denied the members’ characterization of the agency’s action—“The Bureau has not fired anyone”—but also accused these “outspoken” officials of “seem[ing] more concerned about protecting their taxpayer funded junkets to Washington, D.C., and being wined and dined by the Bureau than protecting consumers.”

As designed and envisioned, student loan ombudsmen are government officials tasked with helping borrowers struggling with repaying their student loans.  Among other varied means, they are designed to protect consumers from unfair debt collection practices and help them understand their repayment options. In recent years, a growing number of jurisdictions, including Connecticut, Illinois, and the District of Columbia, have established such officers. Via legislation proposed on January 10, 2018, and approved by Governor Ralph Northam on April 4, 2018, Virginia is set to join this group on July 1.

Per this now codified bill, the State Council of Higher Education for Virginia, a 13-member state commission, will establish the Office of the Qualified Education Loan Ombudsman (the “Ombudsman). Intended to work as an advocate for borrowers, this office will:

(1)    “[r]eceive, review, and attempt to resolve any complaints from qualified education loan borrowers, including attempts to resolve such complaints in collaboration with institutions of higher education, qualified education loan servicers, and any other participants in qualified education loan lending”;

(2)    “[c]ompile and analyze data on qualified education loan borrower complaints”;

(3)    “[a]ssist qualified education loan borrowers to understand their rights and responsibilities under the terms of qualified education loans”;

(4)    “[p]rovide information to the public, state agencies, legislators, and other persons regarding the problems and concerns of qualified education loan borrowers and make recommendations for resolving those problems and concerns”;

(5)    “[a]nalyze and monitor the development and implementation of federal and state laws and policies relating to qualified education loan borrowers and recommend any changes . . .”;

(6)    “[r]eview the complete qualified education loan history of any qualified education loan borrower who has provided written consent for such review”

(7)    “[d]isseminate information concerning the availability of the Office of the Qualified Education Loan Ombudsman to assist qualified education loan borrowers and potential qualified education loan borrow”; and

(8)    “[t]ake any other actions necessary to fulfill . . . [its] duties . . . .”

In addition, this law requires the Ombudsman to create and maintain a qualified education loan borrower education course that shall include educational presentations and materials regarding qualified education loans on or before December 1, 2019, and submit a report to the relevant state legislative committees regarding its effectiveness and the state of implementation of this law every year on January 1.  In general, the Ombudsman will strive to help borrowers by renegotiating their loan terms, asking servicers to delay payments, and helping borrowers get into careers where student loan forgiveness is an option, such as in public service.

In defending this enactment, Virginia’s leaders pointed to the state’s worsening student loan problem. Even as student loan debt topped $1.5 trillion by March 31, 2018, more than one million Virginians owed more than $30 billion in student loan debt in 2017. Depressing anecdotes, meanwhile, have come from all corners of the Old Dominion. “Virginians owe more on student loans than we do on credit cards or car loans, but only student loans lack consumer protections,” said Anna Scholl, executive director of Progress Virginia, a liberal advocacy group, when the ombudsman bill was first announced. Scholl continued: “Student loan borrowers should be treated just like everyone else and afforded basic protections to ensure the cost of education doesn’t ruin their financial future.”

This past May, alums of a for-profit program run by the now-defunct Corinthian Colleges, Inc. won a stunning, albeit temporary and partial, victory against the Department of Education: the grant of their motion for a temporary restraining order and preliminary injunction by a magistrate judge sitting on the United States District Court for the Northern District of California.

Background

Under former President Barack H. Obama, the DOE adopted a program of blanket forgiveness of federal student loans taken out by Corinthian alums frequently referred to as the “Corinthian Job Placement Rate Rule.” All that the Obama-era DOE required to ensure full cancellation of any outstanding educational debt was the submission of a short and simple form attesting to a borrower’s enrollment in certain specific programs, during specified periods of time and at specified campuses, whose job placement rates had been misrepresented by the company. Pursuant to this Corinthian Job Placement Rate Rule, the DOE granted complete forgiveness to nearly 27,000 former Corinthian students.

In December 2017, the DOE, now led by Elisabeth “Betsy” DeVos, opted to abandon this expansive formula. With little apparent public input, high-level officials crafted a more individualized approach soon known as “the Average Earnings Rule” that resulted in a denial of any relief to those alums whose “average earnings” were not less than half of the “average earnings” of some unspecified group of students who went to a different, non-Corinthian school. In coming up with these numbers, the DOE turned to the Social Security Administration and invoked an information sharing agreement originally intended to measure and publish “gainful employment” metrics for students’ use. So as to assess the earnings from Corinthian programs to “comparable” ones, the DOE thereupon grouped 61,717 former students who applied to have their loans cancelled by 79 Corinthian programs they attended and received these students’ earnings data from the SSA. The SSA, in turn, provided the DOE with the “mean and median incomes” for each program group based on 2014 data. Per the Average Earnings Rule, those borrowers who enrolled in programs for which the average Corinthian applicants’ earnings were more than half of the “comparable” programs were denied complete loan relief by the DOE under DeVos.

This haphazardly disclosed shift, revealed primarily via individual rejection letters rather than any official public release, piqued the interest of newspapers, and the concern of state officials already suspicious of the Trump Administration, soon thereafter.

Lawsuit Launched

With notice spreading, the inevitable came to pass: on December 20, 2017, three plaintiffs—Martin Calvillo Manriquez, Jamal Cornelius, and Rthwan Dobashi, represented by the Project on Predatory Student Lending, a legal services clinic at Harvard Law School, and Housing and Economic Rights Advocates, a California statewide, not-for-profit legal service and advocacy organization—filed a class action complaint for declaratory and injunctive relief aimed at securing the preservation and application of the Corinthian Job Placement Rate Rule. In their exhaustive pleading, the plaintiffs slammed the new policy as arbitrary, capricious, and therefore illegal pursuant to the Administrative Procedures Act (APA) for its violations of the Privacy Act. Enacted in 1974, the Privacy Act prohibits one government agency from sharing individuals’ information with other federal agencies, as the SSA and DOE had done prior to the latter’s creation of the Average Earnings Rule, without meeting certain procedural safeguards and being subject to certain expressly defined exceptions.

Summary of Ruling: A Partial and Tentative Victory at Best

On May 25, the Court agreed, granting these borrowers’ motion for a preliminary injunction. In particular, it ordered the DOE to stop both using the Average Earnings Rule immediately and collecting the loans of certain Corinthian borrowers. “When the . . . [DOE] disclosed to the . . . [SSA] information about the applicants’ Social Security numbers and dates of birth from . . . [the former’s] files, that disclosure violated the Privacy Act,” the Court stated in its 38-page ruling. The Court offered up an unambiguous rejoinder to the DOE’s assertion that its use of SSA data was consistent with the relevant agreement: even if true, privacy laws like the Privacy Act still bar the use of aggregate statistical data to make decisions concerning the “rights, benefits or privileges of specific individuals.”

Despite the huzzah that greeted this ruling, however, the Court’s order was, in fact, rather narrow. Even though the Court granted the motion, it did so purely due to the DOE’s failure to follow the procedures set forth in the APA. Indeed, the ruling explicitly acknowledged DOE’s (mostly) untrammeled statutory and administrative “power to determine the amount of relief a borrower can obtain.” No other law, including the Due Process Clause of the Fifth Amendment, bequeathed a protected interest in the application of the more generous Corinthian Job Placement Rate Rule unto a single one of Corinthian’s encumbered graduates. For that reason, if the DOE readopted its rule in accordance with the strictures of the APA, the Court strongly implied, the Average Earnings Rule would likely be safe from invalidation. Naturally enough, a Department spokesperson promptly touted this implicit recognition in an email to The Washington Post.

 

Reverse Mortgage Solutions, Inc. (“RMS”), a leading servicer of home equity conversion mortgages, commonly known as reverse mortgages, recently received a complete defense verdict in the United States District Court for the Southern District of West Virginia, in a trial presided over by Judge Irene Berger. The case arose out of a reverse mortgage entered into by the borrower, Teresa Lavis, and RMS in November 2013. When the borrower was unable to pay her taxes and insurance for several years, RMS – with the approval of the U.S. Department of Housing and Urban Development – called the loan due and payable and began foreclosure proceedings. The borrower retained Gary Smith of Mountain State Justice, who prompted her to send a letter to RMS in May 2016 purporting to “rescind” her loan. In early November 2016, the borrower then filed an eight-count Complaint against RMS in the Circuit Court of Raleigh County, West Virginia. RMS removed the case to the U.S. District Court for the Southern District of West Virginia.

The Complaint asserted claims under the West Virginia Consumer Credit Protection Act, the Truth in Lending Act, and the Residential Mortgage Lender, Broker and Servicer Act (“RMLBSA”), including a class action claim alleging that RMS charged various purportedly illegal and excessive fees, charges, and costs at closing. The borrower made individual claims under the West Virginia Consumer Credit Protection Act for unconscionable inducement into the loan, unfair or unconscionable debt collection, and using fraudulent, deceptive or misleading representations to collect a debt, as well as claims for breach of contract, failure to honor payment, rescission under the Truth in Lending Act, and failure to honor rescission. The basic allegations made by the borrower were that the loan officer misrepresented to her that she would never have to make a payment under the loan, was denied meaningful counseling about the loan because RMS steered her to a loan counselor alleged to have a business relationship with RMS, and had no opportunity to read the closing documents because the closing was rushed. She also asserted that RMS improperly sought reimbursement for tax and insurance payments it advanced on her behalf, had no right to foreclose, and failed to honor her purported “rescission” of the loan.

Ruling on a motion to dismiss, Judge Berger agreed with RMS that the borrower’s putative class action claims – alleging improper and unlawful closing fees and charges – were time-barred under the two-year statute of limitations applied to claims under the RMLBSA because they accrued on the date of the closing. The case proceeded on the borrower’s individual claims. Ultimately, on summary judgment, the Court also dismissed the borrower’s claims for unconscionable inducement and unconscionable debt collection. Notably, Judge Berger found that all terms of the loan had been disclosed to the borrower up front, some months before the closing, and that she could not, therefore, base an unconscionable inducement claim on the alleged statements made by RMS’s loan officer. In addition, the Court found – on an issue of first impression in West Virginia – that closing costs and fees were not “debts” that RMS sought to collect. Instead, they were charges and fees for services rendered.

Having dropped her claims for breach of contract and failure to honor payment, the case proceeded to trial on the borrower’s claims that RMS used fraudulent, deceptive or misleading representations to collect a debt and failed to honor her purported rescission of the loan. After a three-day jury trial, during which the borrower was represented by Gary Smith and Bren Pomponio of Mountain State Justice, the jury returned a complete defense verdict for RMS on all counts, finding that RMS did not misrepresent the amount or status of the debt and did not fail to honor the borrower’s purported rescission.

President Donald Trump announced this morning that he plans to nominate Kathy Kraninger, associate director of the Office of Management and Budget (“OMB”), to become the new director of the Consumer Financial Protection Bureau (“CFPB”), replacing Mick Mulvaney.

The announcement came as a surprise to many because Kraninger’s name was not among those that had been circulated as possible candidates to head the CFPB and her previous experience did not center on consumer protection and financial regulatory issues. Kraninger, 43, is a Pittsburgh native and graduate of Marquette University and Georgetown Law School. Her primary experience includes serving as the Clerk for the Senate Appropriations subcommittee on Homeland Security, including overseeing the Department of Homeland Security (“DHS”) budget (and the budgets for four other agencies) while at OMB. Kraninger also served as deputy assistant for policy at DHS.

Based on the law that permitted Mulvaney to serve as interim Director, Mulvaney would have otherwise been required to leave his post at the CFPB on or before June 22, 2018, if a permanent director had not been nominated. Kraninger’s nomination, however, triggers a provision in the Federal Vacancies Reform Act that allows Mulvaney to serve until the Senate confirms or rejects the pick. That process is expected to be lengthy, taking months.

The CFPB post has been subject to significant drama since former democratic Director Richard Cordray departed, with Cordray appointing Deputy Director Leandra English to fill his seat. Within hours of Cordray’s resignation announcement, however, Trump appointed Mulvaney under the Federal Vacancies Act to succeed Cordray. English then sued, but the federal district court denied her request for a temporary restraining order and preliminary injunction. The matter remains tied up in litigation on appeal.

A White House spokesperson said Kraninger was selected because “[s]he will bring a fresh perspective and much-needed management experience” to the CFPB, “which has been plagued by excessive spending, dysfunctional operations, and politicized agendas.”

The selection of Kraninger is likely to trigger the latest rounds of fights over the leadership of the CFPB, with trade groups for financial services companies lining up in support while opponents are focusing on her lack of experience in consumer financial protection matters. Troutman Sanders LLP will continue to monitor these developments.

The Federal Trade Commission recently reached a settlement agreement with a Los Angeles-based company purporting to offer student loan debt relief services for alleged violations of the FTC Act and the Telemarketing Sales Rule.

The FTC filed a complaint against defendants Salar Tahour and his companies, M&T Financial Group and American Counseling Center Corp., as part of an initiative known as “Operation Game of Loans”, a coordinated effort between the FTC and numerous state attorneys general intended to crack down on deceptive student loan debt relief scams. The defendants, who operated as Student Debt Relief Group, SDRG, Student Loan Relief Counselors, SLRC, StuDebt, and Capital Advocates Group, marketed themselves as student loan debt relief servicers. However, according to the FTC the companies engaged in a scheme that defrauded consumers out of $7.3 million.

In its complaint, the FTC alleged that the defendants operated an unlawful student loan debt relief service and engaged in illegal and deceptive practices. These included violating the Telemarketing Sales Rule by contacting consumers on the National Do Not Call Registry and charging advanced fees for their debt relief services.  They were also charged with violating the FTC Act by misrepresenting to consumers that they were affiliated with the U.S. Department of Education. The FTC also alleged that the companies told consumers they were operating under the Federal Student Loan Forgiveness Act of 2012 – an act that was proposed during former President Obama’s administration but was never signed into law.

Per the terms of the settlement order, the defendants are permanently banned from offering any type of debt relief product or service and must pay a monetary judgement of over $12 million –  $11,694,347.49 of the judgment representing the estimated amount of injury caused to consumers by the defendants’ actions.

On June 11, St. Louis County officials signed an executive order, effective immediately, that would “ban the box” and ensure that St. Louis County will no longer ask job applicants for criminal histories in their initial employment applications.  Other jurisdictions in Missouri with ban-the-box laws include Jackson County, Columbia, and Kansas City.

“A parolee’s failure to find full-time employment becomes, quite frankly, a serious public safety issue for every county resident,” St. Louis County Executive Steve Stenger told the St. Louis Post-Dispatch. “Without a decent job, ex-prisoners are far more likely to struggle with substance abuse. And they are far more likely to engage in criminal activity.”

The executive order provides that “employment decisions will not be based on the criminal history of a job applicant unless demonstrably job-related and consistent with business necessity, or unless state or federal law prohibits hiring an applicant with certain convictions for a particular position.”

Currently, more than 150 cities and counties nationwide as well as 32 states have passed ban-the-box legislation that delays questions about criminal records of job applicants until later in the hiring process. Eleven of those states have required the removal of criminal history questions from job applications for private employers.

Troutman Sanders will continue to monitor related legislative developments concerning employment background screening and employee hiring.

In mid-May 2018, per multiple reports, John Michael “Mick” Mulvaney, the acting director of the Consumer Financial Protection Bureau, announced plans to fold the CFPB’s Office of Students and Young Consumers into its preexisting Office of Financial Education, itself a part of this agency’s Consumer Education and Engagement Division. During this reorganization, the Office of Financial Education will also subsume the Student Loan Ombudsman, a position created by the Dodd-Frank Act. Because of this rejiggering, to be effectuated concurrently with the hiring of more political appointees and the creation of an office of cost-benefit analysis set to report to Mulvaney alone, the current staff of the Office of Students and Young Consumers will be reassigned to yet unknown positions.

Critics have pounced on and decried this development. As some noted, this proposal would end the Office of Students and Young Consumers’ participation in all investigations that could potentially result in supervisory or enforcement actions against student loan lenders and servicers. The CFPB may still pursue such investigations, many promptly acknowledged. Nonetheless, many fear that Mulvaney’s change may muzzle one of the CFPB’s most aggressive units – the only one exclusively focused on purported misdeeds within the student loan field and solely dedicated to protecting student loan borrowers. Giving voice to these concerns, Senator Patty Murray (D-Wash.), the ranking Democrat on the Senate Health, Education, Labor and Pensions Committee, thundered on May 9: “President Trump is giving student loan corporations the green light to take advantage of students without fear of repercussion and sending a clear message to students that this administration is not interested in their best interests when it gets in the way of corporate profits.”

To close observers, this latest decision was neither unusual nor surprising. Rather, it fit the general pattern of regulatory retreat characteristic of the CFPB since Mulvaney’s still-unconfirmed appointment as director, as two other recent examples aptly show:

  • In February 2018, Mulvaney transferred the CFPB’s Office of Fair Lending from the Supervision, Enforcement, and Fair Lending Division (“SEFL”) to the Director’s Office, thereby making it a part of the Office of Equal Opportunity and Fairness and stripping it of its enforcement powers. “The Fair Lending Office will continue to focus on advocacy, coordination, and education, while its current supervision and enforcement functions will remain in SEFL,” Mulvaney explained in an internal memo. In response, Senator Elizabeth Warren (D-Mass.) accused Mulvaney of “putting the Office of Fair Lending under his control so that he can weaken it” and, as a result, “leaving neighborhoods and consumers across the country more vulnerable to bias.”
  • In the spring of 2018, Mulvaney revealed, via a request for information published in The Federal Register on April 17, that he is mulling ending the public availability of the CFPB’s consumer complaint reporting database. In a frank baring of his position, Mulvaney mused at a banking industry conference, with a copy of the 2010 Dodd-Frank legislation that established the CFPB in hand: “I don’t see anything in here that says I have to run a Yelp for financial services sponsored by the federal government.” For now, the period for comment is scheduled to close on July 16, 2018.

As the student loan total keeps climbing and Congress keeps debating what to do, advice from all corners keeps bombarding the nation’s desperate borrowers. Some tout the use of crowdfunding via sites like GoFundMe and Zero Bound; others encourage borrowers to leverage rebate programs; and in some cases, cryptocurrencies have been hyped as a student loan hack. Most, of course, repeat the old saws—avoid excessive amounts, pay more than the minimum, pay while in school, and sign up for auto-debit, and more—to enrollees and alums alike. Even as these proposals, some madder than others, swirl, a handful of schools and a smattering of employers have attempted to help their students and employees deal with the omnipresent financial specter looming over America’s higher education landscape.  

Not surprisingly, graduates from America’s medical schools often leave with gargantuan debts. According to the Association of American Medical Colleges, 75% of medical students who graduated in 2017 incurred educational loans, with the mean debt standing at $190,694. To alleviate this problem, medical schools have begun experimenting with solutions.  

In April 2018, the Vagelos College of Physicians and Surgeons at Columbia University announced that it would eliminate student loans with scholarships for all students who qualify for financial aid. A second institution—the University of Puerto Rico’s Ponce School of Medicine—has digitized parts of its curriculum, curbing costs in the absence of a large endowment. Tufts University now offers a university-wide loan repayment assistance program, referred to as LRAP, that provides funds to graduates from its college and graduate and professional schools to help qualifying grads with monthly student loan payments. Additionally, the medical school at the University of California—Riverside recently announced the planned launch of the Dean’s Mission Award in the fall of 2018, which will provide two years of free medical education to those who agree to practice in the region. 

Meanwhile, employers from all fields have started offering student loan repayment programs in an effort to target millennial workers saddled with student debt. According to a Forbes article, approximately 4% of employers adopted student loan repayment assistance as part of their benefits package as of August 2016. In recent years, well-known corporate behemoths Staples, PricewaterhouseCoopers, and Aetna have joined this list. Gradifi, the leading provider of student loan repayment and college savings benefit programs to U.S. employers and one of a flurry of new startups in recent years designed to facilitate student loan repayment benefits (including FutureFuel.io, Tuition.io, and Student Loan Genius) today has more than 300 corporate clients, up from 50 in 2016. 

For the most part, these programs are neither unduly complicated for employees nor outlandishly expensive for employers. Generally, an employer makes a regular contribution to an employee’s loan balance, typically $100 a month, even as the employee continues to make their regular monthly payment. Although the employer’s contributions (unlike tuition reimbursement benefits) constitute taxable income, employees still save money on both the balance and the interest assessed for a longer loan term. According to a study commissioned by Gradifi, on a $26,500 student loan with 4% interest, employer assistance of $100 a month can cut down the length of a 10-year loan by about three years, saving employees around $10,000, which not only earns employee loyalty and boosts morale but can attract the latest crop of burdened graduates. 

On May 31, the Fourth Circuit Court of Appeals affirmed a $150,000 sanctions award against three consumer attorneys and their law firms for bad faith conduct and misrepresentations.

The opinion reads like a detective story and lays out, in the Court’s own words, “a mosaic of half-truths, inconsistencies, mischaracterizations, exaggerations, omissions, evasions, and failures to correct known misimpressions created by [consumer attorneys’] own conduct that, in their totality, evince lack of candor to the court and disrespect for the judicial process.”

The litigation arose from a payday loan that plaintiff James Dillon obtained from online lender Western Sky.  Later, Dillon engaged attorneys Stephen Six and Austin Moore of Stueve Siegel Hanson LLP and Darren Kaplan of Kaplan Law Firm, PC who filed a putative class action against several non-lender banks that processed loan-related transactions through the Automatic Clearing House network.  Defendant Generations Community Federal Credit Union promptly moved to dismiss Dillon’s lawsuit on the basis of the loan agreement’s arbitration clause.  In response, Dillon challenged authenticity of the loan agreement and a two-year-long dispute ensued during which the district court refused to send the case to arbitration based on Dillon’s authenticity challenge; Generations appealed the district court’s decision; and the Fourth Circuit vacated it and remanded the case for further proceedings on the arbitration issue.  Significantly, when questioned by both the district court and the Fourth Circuit, Six maintained authenticity challenge and represented that he had drafted the complaint without the loan agreement and that Dillon’s claims do not rely on the loan agreement.

Six’s representations regarding the contents of the complaint were problematic given the complaint specifically referenced the loan agreement and its terms.  Evidence uncovered during arbitration-related discovery showed that Dillon possessed the loan agreement all along and, crucially, that he supplied his counsel with a copy of the agreement a week before the complaint was filed.  The latter piece of evidence was discovered only as a result of forensic examination of Dillon’s computer.  Once this evidence came to light, Dillon responded to Generations’ requests for admissions that the loan agreement was authentic.

Generations moved for sanctions against Dillon’s attorneys.  Instead of admitting their wrongdoing, Kaplan argued that there was never any challenge to authenticity, and Six argued that he still doubted authenticity even though he signed Dillon’s admissions that the loan agreement was authentic.  Invoking its inherent authority to punish bad faith behavior, the district court sanctioned Six, Kaplan, and their law firms jointly, ordering them to pay the defendants $150,000 in attorneys’ fees.  Moore was held liable jointly for only $100,000 of the total amount due to his lesser role in the bad-faith conduct.  The lawyers appealed.

The Fourth Circuit summarily rejected their arguments that neither the rules of ethics nor the Federal Rules of Civil Procedure required them to disclose the copy of the loan agreement before discovery commenced.  “These arguments miss the point.  Counsel are not being sanctioned for their failure to disclose the Dillon copy of the Western Sky loan agreement.  Rather, counsel are being sanctioned for raising objections in bad faith—simultaneously questioning (and encouraging the district court to question) the authenticity of a loan agreement without disclosing that the Plaintiff provided them a copy of that loan agreement before the complaint was filed.”

Discovery in consumer litigation is often asymmetrical and focuses on defendants’ obligations.  This opinion is a good reminder that the rules apply to plaintiffs too and that the courts will not condone a “crusade to suppress the truth to gain a tactical advantage.”