On March 9, the U.S. House Financial Institutions and Monetary Policy Subcommittee held a hearing entitled “Consumer Financial Protection Bureau [CFPB]: Ripe for Reform.” The memorandum released in advance stated the hearing would “examine the leadership structure, funding, budget, and operations of the CFPB and areas in which reforms are needed.” Predictably, during the hearings there was a partisan split on the proposed reforms, with Republican members attacking what they characterized as agency overreach in areas such as fee elimination and advocating drastic reforms up to total defunding, while Democratic members of the subcommittee largely supported the agency’s actions.

In his opening statement, Chairman Andy Barr (R) explained why, in his opinion, reforms were needed and introduced a bill to do just that:

[article_ad]

“[T]he CFPB operates outside of the congressional appropriations process, receiving its funding through the Federal Reserve (Fed), which also operates outside of the appropriations process, through an opaque formula. This denies Congress the use of its most powerful oversight tool — the ‘power of the purse.’ My bill, the Taking Account of Bureaucrats Spending Act, or the TABS Act, gives Congress back the power of the purse and its oversight power, reins in the unaccountable CFPB, and subjects the agency to the traditional appropriations process.”

Beyond the TABS Act, other reform bills discussed during the hearing included:

The CFPB Dual Mandate and Economic Analysis Act. This bill would establish the Office of Economic Analysis in the CFPB to review all proposed and existing rules and regulations. Additionally, the purpose of the CFPB would be revised to include strengthening private sector participation in markets, without government interference or subsidies, to increase competition and enhance consumer choice.

The CFPB–IG Reform Act. This bill would establish a separate Office of Inspector General for the CFPB.

The Consumer Financial Protection Commission Act. This bill would remove the CFPB from being funded by the Fed, convert the CFPB into an independent commission, eliminate the positions of director and deputy director, and establish a five-person commission appointed by the President and confirmed by the Senate.

Federal Reserve Loss Transparency Act. This bill would amend the Consumer Financial Protection Act of 2010 to prohibit the Fed from transferring money to fund the CFPB if the Federal Reserve Banks incur an operating loss, and amend the Federal Reserve Act to require the Fed to follow US GAAP.

Beyond reforming the structure and funding of the agency, the CFPB’s war on fees, most recently discussed here, was a hotly contested topic. Subcommittee member Blaine Luetkemeyer (R) accused Director Chopra of using so-called “junk fees” as an excuse to expand his authority. “[T]he fact that we now call them junk fees doesn’t mean it’s real.” Maxine Waters (D), ranking member of the House Financial Services Committee, defended the agency’s actions in the area stating, “[t]he CFPB has made major progress in supporting consumers, combatting discrimination and junk fees, holding large financial institutions accountable for repeatedly harming consumers, and so much more.”

The proposed reform bills have virtually no chance of becoming law with Democrats currently in control of the Senate and the White House. We see the introduction of these bills as markers for future activity by the Republicans when the political conditions are more conducive. Although ordinarily that would need to await the Republicans taking control of the White House and both Chambers of Congress, if the Supreme Court holds that the CFPB should be subject to Congressional appropriations in the CFSA case, most recently discussed here, the Democrats will need the Republicans’ cooperation in order to fund the agency’s ongoing operations. The Republicans appear to be setting forth the conditions of that cooperation through the proposed legislation discussed at this hearing.

A recording of the Subcommittee hearing is available here.

ROCHESTER, N.Y. — Continental Service Group, LLC, d/b/a ConServe, in conjunction with the company’s “Matching Gift Program”, donated its January and February ConServe Cares proceeds to the Perinton Ambulance and the Bellevue Fire Department.  The ConServe team supports and funds the efforts of numerous local non-profit agencies that strive to make a difference.  As a result of the employees’ compassion and generosity; countless lives have been touched and enriched in our community.

Mike Hoskins, Chief of Perinton Ambulance states, “Perinton Ambulance appreciates and depends on philanthropic support from businesses, groups, and organizations to help us treat more than 4,500 patients annually.  In addition to our 911 responses, this support ensures we can offer child seat safety inspections, blood pressure clinics, CPR & First Aid training, and much, much more for our community.  The generous support from those working at ConServe help keep us Always There and Ever Prepared.”

“ConServe is committed to giving back to our local communities and is an integral part of our mission statement,” said George Huyler, Vice President of Human Resources.  “We’re proud to support the first-responders who have committed to being there for our families, our neighbors, and our communities whenever we need them.”

About ConServe

ConServe is a top-performing accounts receivable management service provider specializing in customized recovery solutions for their Clients.  Anchored in ethics and compliance, and steadfast in their pursuit of excellence, they are a consumer-centric organization that operates as an extension of their Clients’ valued brands.  For over 37 years, they have partnered with their Clients to provide unmatched customer service while simultaneously helping them achieve their accounts receivable management goals.  Visit them online at: www.conserve-arm.com

About the Perinton Ambulance

Perinton Ambulance is a registered 501(c)3 not-for-profit ambulance service located in Fairport, NY. Perinton Ambulance has been providing Emergency Medical Services (EMS) since 1965 with a commitment to caring for the local community. Perinton Ambulance provides Basic and Advanced Life Support emergency care with a team of over 60 professional and certified Emergency Medical Technicians and Paramedics.  Visit them online:  www.perintonambulance.org

About Bellevue Volunteer Fire Company

The Bellevue Fire Company provides fire protection and EMS services to the residents and visitors of the Bellevue Fire District.  Our District is roughly the area of Cheektowaga between Union Road and Transit Road and between Como Park Blvd and Losson Road. Bellevue answers approximately 550 calls a year.  Visit them online:  https://www.bellevuefire.org/

So its Selection Sunday again. Amazing how fast time flies.

TONS has changed since the last time I did this power ranking–just one year ago. At that time I was still an equity partner in #biglaw–having not yet mustered the courage to start my own shop. And the traffic on TCPAWorld.com was much lower– the power rankings became my best read article ever at that time, but this year has already seen 5 stories with more reads.

The site–always popular– has really blown up since I’ve been out on my own and its amazing to see.

[article_ad]

Some things never change though. The Big 10 is one again overrated and has way too many teams in the field–how does the media seem to have amnesia on this issue year after year?–and the Pac 12 is, once again, woefully underrepresented. But, as I said last year, it all ends up the way its supposed to. And so it will again.

But, for now, it is power ranking time. I have spent several weeks thinking this year’s rankings through.

How does one define power in this context? For instance, if you asked me what Plaintiff’s firm would I least want to face in a TCPA class action the answer would be Edelson PC. But those guys don’t really bring any TCPA cases these days. So can I really call them the most powerful shop in the TCPAWorld?

Then there’s a guy like Avi Kaufman. To say that he is more fearsome than Lief Cabraser or Kazerouni and Associates is absolutely laughable. But then when you look at the incredible (incredible) success he has had over the last 365 days who do I not rank him near the top?

Really tricky stuff.

So ultimately I arrived at the following formula

(2YE * (4N + 10A))/D + (1/10TR)/(1/AR)= Power Ranking 

Where:

YE = years of TCPA experience,

N = the monthly number of TCPA cases filed,

A=  the number of attorneys in the shop,

D= the number of days since the latest TCPA filing,

TR= total recovery for the year

AR= average recovery for the year.

As you can see, computing these metrics for each firm on the list yields a perfectly objective measure of their power.

But of course I didn’t do any of that, because that would be crazy.

What I really did is the same thing I did last year–tried to provide a useful and weighted ranking of what firms really know what they’re doing and have the wherewithal and desire to really push matters in the TCPAWorld.

In short, a list of the most dangerous Plaintiff’s lawyers out there.

And you REALLY need to be paying attention right now. TCPA FILINGS ARE EXPLODING. They are WAY WAY up this year and the STATE LAW filings ad an entire additional dimension.

This is unsurprising as the money here is simply insane. One guy on the list made over $20MM over the last 365 days so… yeah.

So for all of you folks fielding new TCPA suits and wondering if the guys on the other side are any good here is the Czar’s official opinion. Obviously I’ve tangled with everyone on this list multiple times–in many cases dozens of times.

One thing EVERYONE on this list has in common– they are legitimate threats to go “all the way.” That means they will push you to certification, or beyond–and have done so many times.

Without further adieu:

Honorable Mention: Dr. Evil and the guys at LawHQ

So there’s this guy who thinks he can scale the practice of law and bring in “millions” of clients to file TCPA suits.

I’m serious. I call him Dr. Evil.

He has built an App that allows consumers to “swipe right” on robocalls and immediately notify his office of a scam or spam report. This allows the firm’s investigate team to start the process of finding out who is making the calls and then sue them.

When he wins he splits the money “fifty fifty” with the consumer.

It’s nuts. But just nuts enough to work. And it seems to be.

LawHQ is the hottest thing on the rise in TCPAWorld right now and a real rocket ship poised to break into the rankings next year and really upset a few folks.

If you missed our podcast interview with these guys you owe it to yourself to check it out, here.

10. Keith Keogh, Keogh Law, LTD

Dropping to the ten hole on the Czar’s “what have you done for me lately” power rankings, is a guy who would have been near the top just a few years ago.

The “Iceman” of TCPAWorld, Keith has always been cool as a cucumber–or cooler.  And he never blinks when it comes to driving a huge price tag in a TCPA class action. He still owns the single most valuable TCPA settlement in history when judged on a per-class member metric. The Hageman class settlement saw a stunning resolution worth over $1,600 per class member.

As I explained last year, however, Keith has largely taken a back set to others these days–you only need so many Rolls Royces I guess– so his shop just isn’t the TCPAWorld powerhouse it once was. Still, the folks working at Keogh’s shop are still very talented and driven lawyers–and they’re not afraid to ride some lines and push new arguments all the way. Do not take a filing by Keogh lightly.

9. Andrew Shamis/Manny Hiraldo/ Scott Edelsberg

So coming in at number 9 is actually 3 different law firms that tend to work together all the time.

All three of these guys are decent fellas, even if their cases are not always the most meritorious (sorry.) They are true volume players so they seem to be willing to pan for gold in a manner that those higher up on the list simply find intolerable.

Still these guys have gotten a lot better over the years–not intended as a slight, just a fact–and they are FAR tougher to contend with these days than just a few years ago. If you see one of these folks on a filing and your current lawyer calls them a “bottom feeder”–or the like–I think they (and you) need to update the playbook. These guys have certainly earned the Czar’s attention–and respect– and should NOT be taken lightly.

8. Alex Burke, Burke Law Offices, LLC

Burke is up one spot from last year, but continues to lurk on the periphery of the rankings, but he is definitely a threat to rocket to the top.

Burke–known affectionally as “Red” for his amber hair- has been the behind-the-scenes mastermind of numerous multi-million dollar TCPA settlements. He is handling a few lower volume of cases than others on the list, but he is simply explosive–both in terms of his capabilities and his personality–so he simply cannot be left off a TCPA power rankings list.

Burke knows the TCPA and the art of litigation extremely well. And he is not afraid to fight–and fight hard–when pushed. Indeed, pound for pound Burke might be the hardest puncher on this list. Luckily he mostly stays out of the ring these days.

7. Bursor and Fisher, PA

Taking the biggest tumble on this year’s list is Bursor.

Last year they enjoyed a likely-inflated ranking due to a massive crush job that saw the firm deliver the largest TCPA settlement of all time.

Since then, however, these guys have been focused on paying bonuses that make #biglaw blush but haven’t really delivered anything big over the last 365 days.

That said, these guys are MONSTERS, so do be on the look out for them. Remember, they once even got a major defense firm to switch sides and help them. 

While I am very comfortable slotting them in at number 7 this year, I suspect they’ll be higher next time this ranking comes out.

6. Daniel Hutchinson/John Selbin Lieff Cabraser

Down one spot to number 6 this year are a couple of OG litigators. These two have always been more stubborn than clever in my view, but a willingness to litigate hard for many years will almost always lead to great results, and this duo of LC litigators has demonstrated that time and again.

TCPAWorld is still smarting from their wins-that-shouldn’t-be such as Cordoba and Brown. But like Bursor these guys have (mercifully) been a bit quiet over the least year or so.

Its unlikely you would take a class action from LC lightly anyway, but take it from me–these folks are TOUGH litigators that STICK in cases for the long haul and have definitely earned their reputation.

5. Jay Edelson, Edelson PC

Here he is. The boogey man.

Probably the most brilliant plaintiff’s-side litigator on this (or any) list, Edelson PC owns the largest privacy jury verdict in history with their trouncing of Visalus.

But the guy is too busy breaking Tom Girardi into a thousand tiny little pieces to pursue TCPA cases these days. Plus he is trying to put an end to robolawyer virtuoso DoNotPay for some reasons I don’t fully understand, but still totally applaud.

Back when I had a twitter account–can’t believe anyone is still on that platform with Elon running it–I used to love reading this guy’s tweets. He is always on the cutting edge.

Edelson is a rare sighting in TCPAWorld these days but if you ever see Edelson PC on the caption of a complaint naming your business, my goodness you better take it seriously.

4. Abbas Kazerounain, Kazerouni Law Group

The “Godfather” of TCPA class actions and one of the original architects of the entire concept of mass TCPA suits, Abbas is an absolute TCPAWorld legend. And the fact that he’s a pretty good guy just makes it all that much harder to stomach his endless success.

While he is best known as the guy who brought the world the stunning Marks appellate victory Abbas is known in TCPAWorld circles as the guy who has cracked more companies for multi-million dollar settlements than any other living person.

Abbas has grown tired of buying fancy cars and airplanes and has moved on to operating ADR centers. So like others on this list he is less concerned with TCPA class actions than he used to be. Nonetheless, any time KLG shows up on a caption you better be ready to rumble.

Nobody is better funded than Abbas. And although he sometimes plays coy, he is an absolute monster of a litigator.

3. Anthony Paronich, Paronich Law PC

The “Wolf of TCPAWorld” has had a great year. He’s made millions and really done well in the courtroom. As a result he has moved his way steadily up this list.

Paronich has a well-earned reputation as a ruthless litigator and a shrewd negotiator. He somehow manages a large volume of cases with a relatively limited infrastructure while remaining a threat to “go all the way.”

Paronich has been the absolute scourge of the lead generation industry, filing case after case against callers who had the misfortune of buying a lead listing his client. Does Paronich just get lucky in identifying fraudulent lead suppliers, or are his clients setting up these suits?

Tough to say. But Paronich was a VERY compelling first guest on the new Deserve to Win podcast–and if you haven’t listened to what he has to say. YOU SHOULD. 

Any way you look at it, however, when the Wolf comes stalking, don’t open the door.

2. Avi Kaufman, Kaufman, PA

Oh Avi.

I really hate listing this guy so high on the list.

But his firm is responsible for OVER $20MM in fee recoveries over the last year– higher than anybody else on the list. So how can I overlook that?

He has absolutely destroyed the real estate brokerage industry–extracting a massive $40MM settlement from Keller Williams, and he is not yet through with Coldwell Banker who he has on the ropes in a CERTIFIED TCPA class action set to try this year. My goodness.

What really scares me though, is that he is still young, hungry, and improving. He reminds me of peak Burke–which I suspect both men will take as an insult. But there is no denying he is well funded, sharp and in charge of his own destiny now in TCPAWorld.

Still he has weaknesses. A lack of associate-level firepower and a tendency to make little mistakes driven by ego or temper.

Will Kaufman take it to the next level and dethrone number 1 next year? Or will his temperamental nature cripple him as his empire crumbles under the weight of success?

We’ll find out.

As I said last year “[d]on’t let his seeming lack of sophistication fool you. Kaufman PA is well funded, and Avi is a smart advocate.” Now, more than ever, take any filings from his office seriously.

1. Mike Greenwald, Greenwald Davidson Radbil, PLLC

As stale as the idea of holding the number 1 spot with the same firm, I just don’t see any compelling reason to move Greenwald down.

He is just as dangerous now as he was last year. Big wins continue to pile up behind the guy. And he has shown no signs of slowing down–a steady drumbeat of (mostly meritorious) TCPA filings continue to stream out of his office.

He is incredibly smart. Highly adaptable. Extremely well funded. And worst of all… supremely reasonable and thoughtful.

He may have even improved since last year now that he’s seemingly mastered the Czar-esque ability to disarm and lull others into a false sense of security. That’s my move Mike!

For those of you who missed my podcast episode with the guy you HAVE to give this thing a watch. This is the most dangerous man in TCPAWorld folks talking with our team (here).

The folks at Greenwald Davidson Radbil, PLLC remain the ultimate monsters lurking in the TCPAWorld woods. By the time they sue you, it may already be too late.

As I said last year: “when I give TCPA compliance advice its often the GDR firm I have in the back of my mind when I’m trying to help folks to avoid devastating exposure. When you’re even in the Czar’s head you definitely have earned your top spot on the TCPAWorld POWER Rankings.”

True then. True now.

DALLAS, TX — The Hampton Pryor Group International (HPGI) is proud  to sponsor and support the Kishanje Highlands High School (Juna Amagara) located in Rubanda, Uganda. As part of this sponsorship, HPGI spearheaded a private fundraiser to make some much needed renovations to the school’s facilities. The Rev. Dr. Ben Tumuheirwe, Founder and Director of the school stated “ Hampton Pryor Group International made it possible for the school to be given a fresh coat of paint in every classroom, dormitory and all office space. Additionally, their generosity provided for the construction of user friendly stairways on the sloping hillside campus.” 

HPGI became acquainted with the school through the wife of Joe Adams, Chairman and CEO. “My wife has sponsored the tuition and fees for  a group of female students for a number of years, and I began to do the same for an equal number of male students last year.  When I had the chance to visit the school in 2022, I noticed that the facilities could use a facelift. In addition to making a significant corporate contribution, we enlisted the assistance of members of our extended family, that generously allowed Kishanje High School to make additional improvements.”

In January 2023, Joe, his wife Anne and daughter Johannah had the opportunity to travel back to the school and see firsthand the improvements made. The students put on a program, and a number of students spoke in gratitude of the renovations and school sponsorships. A plaque was unveiled recognizing the contributions of HPGI and the other sponsors.

About Hampton Pryor Group International (HPGI)

Now celebrating its 20th year in existence, HPGI is a leader in providing compliance, training, operations  and SOC audit assistance to banks, credit unions, collection agencies, mortgage servicers, call centers and debt purchasers. With offices in the United States, Kenya and Uganda, HPGI continues to offer “world class” service to its ever-growing client base.

The last few years have given us more than enough cases discussing Article III standing. Despite the ebb and flow of some of these standing decisions, a judge in the Eastern District of Wisconsin has decided the issue is now so clear in the Seventh Circuit that improperly attempting to remove a case is enough to warrant awarding attorney fees to a consumer.

Some history: over the last few years, we’ve learned what standing is. We’ve seen some big-name cases get dismissed for lack of it. Some debt collectors have argued in favor of dismissals, while others have argued against dismissing cases. We’ve seen judges ask whether it has all gone too far, and we have questioned whether any of this is good for the ARM industry. 

It appears at least one judge in Wisconsin has had enough. In Clark v. Client Services, Inc., (Case No. 22-cv-1410, E.D. Wis. 2023), a consumer filed her complaint in state court. She chose state court to, in her words,  proceed in the “fastest way possible” to obtain the $1,000.00 statutory award allowed under the Fair Debt Collection Practices Act (FDCPA). 

[article_ad]

Since the consumer requested “actual damages” in her complaint, the debt collector attempted to move the matter to federal court. In the debt collector’s opinion, “actual damages” imply an “actual injury,” which would allow one to infer that the actual injury was a “concrete injury” sufficient for Article III standing.

The consumer disagreed, contending that “actual damages” and “concrete injury” are not interchangeable. In contesting the removal, she pointed out that she never alleged she had to pay any extra money, that her credit was affected, or that she responded differently due to receiving the letter. 

Inferences are not enough, according to the judge. In siding with the consumer, the judge cited previous Seventh Circuit precedent that held “what matters is what the plaintiff alleges in the complaint.”  A vague reference to “actual damages” without more in the complaint is not enough to plead a concrete injury sufficient to move a case to federal court.

The judge did not stop there, though. Since the Seventh Circuit precedent was clear when the debt collector attempted to move the matter to federal court, the judge found it was objectively unreasonable for the debt collector to attempt to remove the case to federal court. Therefore, the consumer was entitled to recover attorney fees and costs from the debt collector. 

Find the full Order here. 

insideARM perspective:

There are two takeaways from this case: (1) the do they/don’t they Article III standing opinions may be winding down, and (2) this case underscores the importance of vetting the pros and cons of litigation strategies prior to embarking down any one path.

Lawyers, particularly defense counsel, can sometimes be accused of being overly negative or doomsday-ish. But the law doesn’t always follow logic, and it doesn’t always make sense. Try telling a random stranger on the street that “actual damages” don’t imply an “actual injury.” This disconnect between law and logic is why it’s important to listen and consider the risks outlined by defense counsel when deciding a litigation strategy, no matter how far-fetched or illogical they might seem. The risk may be worth taking, but it’s important to consider all the potential outcomes. 

Historically, there hadn’t been much downside to making an attempt to remove a case to federal court. If the attempt was unsuccessful, the case would be transferred right back to state court. This case may be isolated, but maybe it isn’t. At the very least, it’s yet another thing for ARM entities to consider when deciding their litigation strategy. 

On February 27, Wyoming Governor Mark Gordon signed into law House Bill 284, which requires debt buyers be licensed as “collection agencies” starting July 1, 2023.

The bill was introduced at the request of the Receivables Management Association International (RMAI) to address an emerging debate as to whether debt buyers should have been licensed in Wyoming under the existing definition of “collection agency,” despite the fact that the state licensing board has been issuing exemptions to debt buyers for over 20 years.

Under the new law, the term “debt buyer” is defined as “any person that is regularly engaged in the business of purchasing charged-off consumer debt for collection purposes, whether the person collects the debt, hires a third party for collection of the debt or hires an attorney for collection litigation.”

House Bill 284 explicitly provides that debt buyers did not have to be licensed in the state prior to July 1, 2023 and protects the validity of any civil action or arbitration filed or commenced by a debt buyer, or any judgment entered for a debt buyer before the effective date.

The Federal Communications Commission (FCC) has issued a Report and Order and Further Notice of Proposed Rulemaking that would impose new requirements for the blocking of text messages by mobile wireless providers and propose new limitations on senders of text messages.  The document has been circulated for consideration by the FCC at its March 2023 open meeting and the FCC’s ultimate resolution of the issues is subject to change.

In the Report and Order, which would be effective 30 days after publication in the Federal Register, the FCC “for the first time require[s] mobile wireless providers to take action to protect consumers from unwanted and illegal text messages.”  Pursuant to the Report and Order, mobile wireless providers would have to block texts that purport to be from numbers on a reasonable Do-Not-Originate list, which include numbers that purport to be from invalid, unallocated, or unused North American Numbering Plan numbers, and numbers for which the subscriber to the number has requested that texts purporting to originate from that number be blocked.  To mitigate the risk of erroneous blocking, the FCC would require mobile wireless providers to maintain a single point of contact for senders to report erroneously blocked calls and to post the contact information for their single point of contact on a public-facing website.  In explaining its action, the FCC states that its plan to require blocking rather than continue to rely on industry’s voluntary efforts to block “is in part the result of the heightened risk of text messages as both annoyance and vehicles for fraud.”

In the Further Notice of Proposed Rulemaking, the FCC seeks comment on proposals to:

• Require terminating mobile wireless providers to investigate and potentially block texts from a sender after they are on notice from the FCC that the sender is transmitting suspected illegal texts.

• Require prior express invitation or permission in writing for text messages to wireless numbers on the national Do-Not-Call (DNC) Registry.  The FCC notes that although it has stated that text messages are “calls” for purposes of the Telephone Consumer Protection Act (TCPA), it has never stated that text messages are subject to DNC protections.  The proposal would “clarify” that, before sending a marketing text to a wireless number on the DNC Registry, the texter must have the consumer’s prior express invitation or permission, which must be evidenced by a signed, written agreement between the consumer and seller, which states that the consumer agreed to be contacted by this seller and includes the telephone number to which the calls may be placed.

• Ban the practice of obtaining a single consumer consent as grounds for delivering calls and text messages from multiple marketers on subjects beyond the scope of the original consent (i.e. “the lead generator loophole”).  The proposal responds to concerns that lead generators and data brokers use hyperlinked lists (e.g. lists of “partner companies”) to harvest consumer telephone numbers and consent agreements on a website and pass that information to telemarketers and scammers.  The FCC is considering amending its TCPA consent requirements to require that such consent be considered granted only to callers logically and topically associated with the website that solicits consent and whose names are clearly disclosed on the same web page.

Comments on the Further Notice of Proposed Rulemaking would have to be filed on or before 30 days after publication in the Federal Register and reply comments would have to be filed on or before 60 days after publication in the Federal Register.

CHICAGO, Ill. — Clark Hill announced today that Ari Derman has joined the firm as Senior Counsel in its Banking and Financial Services group. He will be based in Clark Hill’s Chicago office and also be a part of the Financial Services Regulatory and Compliance team.

“Ari is tremendously respected in the industry and will be an excellent addition to Clark Hill and our banking practice,” said Joann Needleman, leader of Clark Hill’s Financial Services Regulatory and Compliance team.

Derman’s practice centers on regulatory compliance work for the accounts receivable management (ARM) industry. He also defends clients against enforcements actions while assisting with policy and procedure management and finding corporate advisory strategies solutions.

“After a more than a decade of in-house work, I’m very excited to partner with a firm that has the resources of Clark Hill,” Derman said. “It’s a tremendous opportunity to team up with Joann and offer a really specialized brand of corporate advisory work that’s unique to the banking and financial services industry.”

Derman and Needleman have collaborated previously as members of trade groups and committees in the banking and financial services industry. Derman regularly presents at industry trade conferences for ACA International, the National Creditors Bar Association, the Illinois Creditors Bar Association (ILCBA), InsideARM, and others such as the Healthcare Financial Management Association.

“I’ve known and respected many people who have come through Clark Hill. They’ve had great success in working with several different regulators and have had great results in enforcement actions,” Derman said. “Also, having grown up and gone to school in the Midwest, joining a national firm that has its roots here was very attractive to me.” 

Derman earned his law degree from Marquette University Law School.   

As we reported here, late last year, the Consumer Financial Protection Bureau (CFPB) signaled that it planned to increase scrutiny of the Buy Now, Pay Later (BNPL) industry and issued its first report about BNPL. Yesterday, the CFPB issued a report exploring the financial profiles of BNPL borrowers. According to the CFPB, on average, BNPL borrowers were much more likely to be highly indebted, revolve on their credit cards, have delinquencies in traditional credit products, have lower credit scores, and use high-interest financial services such as payday, pawn, and overdraft compared to non-BNPL borrowers. However, many of these differences pre-dated borrowers’ BNPL use and the increased availability of BNPL products might offer a less expensive borrowing option for many of these users.

BNPL products are a form of credit that allows a consumer to split a retail transaction into smaller, interest-free installments and repay over time. The typical BNPL structure divides a $50 to $1,000 purchase into four equal installments. While BNPL credit is generally interest free, providers make money by charging fees to both sellers and consumers who don’t pay on time. Launched in the mid-2010s as an alternative form of short-term credit for online retail purchases, BNPL loan usage increased ten-fold during the pandemic. Offerings marketed as BNPL have since grown to include a varied range of credit products, but for purposes of this report, BNPL refers exclusively to zero-interest, pay-in-four (or fewer) installment point of sale loans — the same product parameters that were the focus of the CFPB’s December 2021 BNPL market monitoring orders and subsequent September 2022 report.

For this report, the CFPB used consumer responses to the 2022 Making Ends Meet survey as well as an anonymized sample of credit bureau records. Among other takeaways from the report, the CFPB found:

• On average, 17% of consumers borrowed using BNPL at least once in the prior year. Black, Hispanic and female consumers and those with household income between $20,001-50,000 were significantly more likely to use BNPL products compared to white, non-Hispanic and male consumers, or those with household income below $20,000.

• BNPL borrowers have lower average credit scores than consumers who did not borrow using BNPL. They were also 11 percentage points more likely to have a delinquency of at least 30 days on their consumer report.

• Users of BNPL products exhibit measures of financial distress that are significantly higher than non-users. For example, BNPL borrowers have higher credit card debt and utilization rates, a higher likelihood of having an overdraft, a higher likelihood of revolving on at least one credit card (meaning that they carried over a credit card balance from one billing cycle to the next), and higher utilization rates of alternative financial services that charge high interest rates.

However, the report concluded by noting that the majority of BNPL users have access to traditional credit. In fact, for users with revolving credit card debt where the interest rate starts immediately, credit cards purchases are much more expensive. Zero-interest BNPL loans appear to be a less expensive borrowing option, not the only option for the majority of users.

In the CFPB press release announcing yesterday’s report, Director Chopra’s remarks unmistakably signal his intent to regulate BNPL with the same rigor that he has applied to more traditional products: “Since Buy Now, Pay Later is like other forms of credit, we are working to ensure that borrowers have similar protections and that companies play by similar rules.”

The U.S. Court of Appeals for the Sixth Circuit recently reversed a trial court’s dismissal of a consumer’s federal Fair Debt Collection Practices Act claim, and held that the FDCPA claim actually fell within the statute of limitations.

In so ruling, the Sixth Circuit held that, because the FDCPA creates an independent statute of limitations for each discrete violation of the FDCPA, and even though the alleged FDCPA violation occurred in a collection lawsuit that was filed more than one year before the filing of the FDCPA action, the specific alleged FDCPA violation at issue occurred later in the collection lawsuit and within the FDCPA’s one-year statute of limitation.

A copy of the opinion in Bouye v. Bruce is available at:  Link to Opinion.

The consumer financed a furniture purchase through a retail installment contract (“RIC”). The RIC was sold to a financing company. The consumer defaulted, and the financing company, through its attorney, sued in state court to recover the debt and attorney’s fees.

The RIC attached to the complaint did not establish a transfer to the financing company. The court ordered the financing company to file proof of assignment, and the company filed an updated RIC that listed the previous creditor’s store manager as assigning the debt to the financing company. The trial court then granted the financing company summary judgment, but the state appellate court found that the financing company had not sufficiently demonstrated a valid transfer. The state appellate court remanded the case, and the financing company eventually filed a voluntary dismissal.

Then, 380 days after the financing company originally filed its lawsuit in state court, the consumer sued the financing company’s attorney in federal court under the FDCPA, alleging that the attorney doctored the RIC mid-litigation to make it look like the assignment was proper.

Upon the attorney’s motion, the federal trial court dismissed the complaint as untimely under the FDCPA’s one-year limitations period. The consumer filed a motion for reconsideration, and the attorney filed a motion for attorney’s fees. The trial court denied both motions, and the parties timely appealed.

Meanwhile, the consumer and the financing company entered into a settlement agreement that released the company, later clarifying in an addendum that the company’s attorney was not released. Three months before the court denied the motions for reconsideration and attorney’s fees, the attorney learned of the settlement agreement.

Before the parties briefed the merits of their appeals, the attorney moved to dismiss the consumer’s appeal for lack of jurisdiction based on the settlement agreement. The consumer argued that the attorney had forfeited this argument or, alternatively, that the agreement did not go to the Sixth Circuit’s jurisdiction to hear the case. And, producing the addendum to the agreement as well as the attorney’s employment contract with the financing company, the consumer also argued that the attorney was not an intended third-party beneficiary of the settlement agreement.

The Sixth Circuit denied the attorney’s motion to dismiss the consumer’s appeal, holding that the settlement agreement did not moot the appeal because, in the context of the case, the agreement did not go to the Court’s jurisdiction to hear the case. The Court then allowed the parties to proceed with their briefing on appeal.

The consumer argued that her claim fell within the FDCPA’s one-year statute of limitations. The attorney challenged the consumer’s Article III standing to bring the lawsuit because, according to him, she was only pleading a statutory harm related to the state-court lawsuit and, therefore, could not meet the injury-in-fact requirement. The attorney also argued that the consumer’s claim was time-barred and that she released her claim against him through the settlement agreement.

As you may recall, to establish Article III standing, a plaintiff must have suffered an injury-in-fact that is fairly traceable to the defendant’s conduct and would likely be redressed by a favorable decision from a court. Rice v. Vill. of Johnstown, 30 F.4th 584, 591 (6th Cir. 2022). For the injury-in-fact requirement, a plaintiff’s allegations must establish that she has experienced an injury that is “concrete, particularized, and actual or imminent.” Barber v. Charter Twp. of Springfield, 31 F.4th 382, 390 (6th Cir. 2022).

Here, the Sixth Circuit concluded that the consumer was not merely pleading a statutory violation because she also alleged that she suffered an injury from defending against a state lawsuit that the financing company had no right to bring in the first place. Thus, in the Court’s view, that harm established a concrete injury that met the injury-in-fact requirement. See Hurst v. Caliber Home Loans, Inc., 44 F.4th 418, 423 (6th Cir. 2022).

Regarding the statute of limitations question, the Sixth Circuit noted that every alleged discrete FDCPA violation has its own statute of limitations. Slorp v. Lerner, Sampson & Rothfuss, 587 F. App’x 249, 259 (6th Cir. 2014). “[T]he date on which the violation occurs” determines when the one-year statute of limitations starts running. § 1692k(d).

The Court then found that the consumer’s complaint did allege a timely FDCPA violation: that the attorney filed an updated RIC and moved for summary judgment on that basis, allegedly affirmatively misrepresenting to the trial court that the assignment of the debt occurred before the financing company filed suit against the consumer.

The attorney argued that the alleged FDCPA violation was a continuing effect of the financing company’s initial filing of the state lawsuit and was therefore time-barred because the consumer did not file within a year of the company’s initiation of the state suit. See Slorp, 587 F. App’x at 259.

However, the Sixth Circuit held that the consumer’s single claim was independent of the financing company’s initial filing of the lawsuit — not a continuing effect of it — because it was a standalone FDCPA violation. The allegation was that the consumer introduced an RIC with a false assignment of debt that occurred after the lawsuit was filed. The Court reasoned that if it was only to consider the date the company filed suit, without regard to subsequent FDCPA violations within that lawsuit, it would create a rule that disregards the fact that § 1692k(d) creates an independent statute of limitations for each discrete violation of the FDCPA. See Bender v. Elmore & Throop, P.C., 963 F.3d 403, 407 (4th Cir. 2020).

The attorney also argued that the consumer released her FDCPA claim in the settlement agreement. The Sixth Circuit noted that the attorney first invoked that agreement in support of his jurisdictional argument that the agreement mooted the consumer’s suit. At that time, the Court rejected the attorney’s jurisdictional argument in its earlier order denying the motion to dismiss the appeal.

Nevertheless, the Sixth Circuit remanded this case for the trial court to evaluate in the first instance any merits argument based on the settlement agreement. Additionally, the Court vacated the trial court’s order denying attorney’s fees since the litigation below was allowed to continue.