Consumer Finance Class Actions & Litigation

Thursday, January 26 to Friday, January 27, 2012

New York Marriott Downtown, New York City, NY

DAY ONE – Thursday, January 26, 2012

7:30 Registration & Continental Breakfast

8:00 Co-Chairs’ Opening Remarks

Thomas H. Hefferon
Partner
Goodwin Procter LLP

Greg Walker
Managing Director & Corporate Counsel
UBS Investment Bank

8:05 A Fair Lending Case Study: Using Consumer Data to Avoid Consumer Litigation

Eric Jon Taylor
Parker
Hudson Ranier & Dobbs

Janet R. Thornton, Ph.D.
Managing Partner
ERS Group

When a lender receives notice that it is accused of discriminatory lending practices, it faces one of its steepest challenges. It can be a legal and public relations nightmare. Whether the claim comes from a regulator or a plaintiffs’ lawyer, the lender must take quick and decisive action. By utilizing proven methods, lenders can both fight against these types of claims, and become a stronger business in the process. This case study details the steps required to address these very serious concerns with a view toward optimizing results.Topics addressed will include:

• Early interviews and information gathering
• Data analysis
• Identification of areas where subjective decision making occurs
• Statistical modeling of decision making/disparate impact analyses
• Maintaining privilege
• Negotiating successful resolutions
• Public relations concerns
• Documenting settlements

8:55 in-House Roundtable on Preventing & Managing Litigation Related to Mortgage Modification, Foreclosure and Problems Specific to Depository Institutions

Judd A. Levy
Senior Counsel
HSBC - North America

Joseph J. Patry
Counsel
MERSCORP Inc.

Karyn Caldwell
Vice President & Associate General Counsel
Flagstar Bank, FSB

Michael Ferrier
Vice President – Claims & Litigation Counsel
Stewart Title Guaranty Corp.

Gary A. Deutsch
Senior Counsel
PNC Legal Department

Joseph Green
General Counsel
TCF Financial Corp.

LeAllen Frost
Vice President & Assistant General Counsel
SAXON

David Stein
General Counsel
Residential Finance Corp.

Anne Sutherland
Executive Vice President, General Counsel & Secretary
Nationstar Mortgage LLC

Moderator:
Joy Harmon Sperling
Day Pitney LLP

Expert in-house attorneys will lead this session, solely devoted to the issues surrounding mortgage litigation, including foreclosure, common loan servicing and modification issues and the best internal procedures to avoid litigation.

• Ensuring payments are being applied correctly to loan balance, arrearages and modified loans
• Dealing with payment processors and implementing effective anti-money laundering protocols
• How are companies implementing compliance with the attorneys general’s settlement agreement including loss mitigation strategies, implementing internal audits, assigning case workers and dealing with operational system overhauls
• How are banks handling the ramifications of legacy liability for failed banks in takeover situations and dealing with FDIC related issues?
• Defending against claims where in-house attorneys or the legal department as a whole is named as a defendant
• Strategies for ascertaining and defending against claims when a complaint has not met Iqbal standards
• Dealing with title defects after a foreclosure is retroactively deemed to have been problematic
• Dealing with overzealous discovery requests in litigation and regulatory inquiries
• Managing the uptick in 299(c) reporting
• Containing costs & managing the rising amount of mortgage and foreclosure litigation
• Establishing ownership of a loan

10:10 Morning Coffee Break

10:15 In-House Roundtable on FCRA, SCRA, FDCPA, TCPA, Managing Credit Card & Fee Related Class Actions, Student and Auto Loans, Debt Collection and Trouble Spots in Credit Reporting

Sarah Stroebel
Senior Corporate Counsel
U.S. Bank

James K. McMurray
Deputy General Counsel
Springleaf Finance, Inc.

Michael J. Galeano
Senior Director & Counsel
Alliance Data

Jeffrey I. Langer
Senior Counsel
Macy’s Inc.

Jonathan Campbell
Senior Director & Associate General Counsel
Capital Bank

Rick Bellows
Vice President, General Counsel
National Creditors Connection

Moderator:
Christi R. Adams
Foley & Lardner LLP

In-house attorneys dealing with consumer credit cards and loans will lead this timely session and keep attendees up-to-date on the current issues related to debt collection, credit reporting, auto and student loans and credit cards.

• Where are the compliance trouble spots in Dodd-Frank, FDCPA, TCPA and SCRA?
• Best practices for avoiding FDCPA and TCPA issues
• When does a complaint constitute a bona fide dispute?
• Modifying credit reporting to comport with individual settlements
• Leaving appropriate collection messages on machines and with third parties
• The new wave of cases being brought under the FDCPA & TCPA
• Steps to comply with applicable state and federal collection laws
• Litigation updates and best practices for avoiding trouble spots in fax blasts, robo-dialing, cell phones and trade line litigation
• Obtaining proper express consent to record calls, call cell phones and comply with other TCPA provisions
• State claims and preemption by FCRA and FACTA
• Providing notice to avoid FCRA violations
• Strategies for resolving defaults

11:15 Dodd-Frank & the CFPB: A Look into Today’s Most Important Issues, the Status of the Bureau and Which Regulations Will Most Impact Consumer Finance Institutions & Litigators in the Next Year

Alan J. Levith
Associate General Counsel
LOGS Network

Ken Markison
Associate Vice President & Regulatory Counsel
Mortgage Bankers Association

Thomas E. Gilbertsen
Venable LLP

Nancy R. Thomas
Morrison & Foerster LLP

With a slew of rule writing still taking place, overlapping jurisdiction with other agencies still being worked out and a crucial yet still unclear role in protecting consumers from fraud and abuse, all eyes remain on the Bureau. In this session, industry leaders will review the most recent developments surrounding the CFPB, which are still emerging daily. Keeping up to speed with the CFPB is critical for litigators and in-house counsel…this session will make sure you’re not left in the dark.

• The new CFPB/FTC rulemaking
• The enforcement and supervision paradigm
• Navigating concurrent jurisdiction
• The expanded role of state AGs and coordination with CFPB
• Preemption updates

12:15 Networking Luncheon for Speakers & Delegates

1:15 Class Action Litigation Trends: A Look into New Cases, Theories of Liability & Updates on the Cases To Watch

Jeffrey S. Patterson
Nelson Mullins Riley & Scarborough LLP

John C. Lynch
Troutman Sanders LLP

Christopher Chorba
Gibson Dunn & Crutcher LLP 

Michael R Mendola
Vice-President & Senior Legal Counsel, Gneral Counsel's Office, HSBC Bank USA

Robert T. Mowrey
Locke Lord Bissell & Liddell, LLP

Moderator:
Cameron Azari
Director - Legal NoticeEpiq Systems

In this session, attorneys who are up-to-date on the day to day happenings of courts around the country will provide insights on how district courts are applying recent holdings and the types of class actions they are seeing pop up throughout the country.

• An update on new MDLs, forced-place insurance claims, home equity line of credit suits and overdraft litigation
• The case against First American class certification issues, calculating damages, Supreme Court cert and the fallout that could result• What new types of claims are coming down the pipeline?
• An overview of the latest suit against Chase for summary halts to equity lines of credit
• Fraudulent transactions involving payment processors
• The use of email notice and online claims processing in consumer finance settlements
• Ensuring the security of consumer data and guarding against fraud in notice and settlement administration

2:15 Class Action Strategy Session: How Wal-Mart and Concepcion Affect Class Defense, and Winning Defense Tactics for Removal, Counterclaims, Dispositive Motions & Settlement

Scott M. Pearson
Stroock & Stroock & Lavan

LeAnn Pedersen Pope
Burke Warren Mackay & Serritella

Anthony Rollo
McGlinchey Stafford PLLC

Cindy D. Hanson
Kilpatrick Townsend & Stockton, LLP

With so many class actions being filed across the country, defending against both procedure and substance of class actions has become increasingly important. In this invaluable session, class action litigators will examine the lastest decisions about the enforceability of arbitration provisions, class certification, removal, notice, settlement and so much more.

• Certifying classes after Wal-Mart and defending against the argument that it should only be applied to employment cases• Developing a notice scheme that will appease the courts
• Defeating arguments that courts should not apply Concepcion’s holding
• Removal under CAFA
• Settlement strategies
• Contending with private attorney general actions as a way around arbitration clauses

3:15 Afternoon Refreshment Break

3:20 Understanding Debt Collection Litigation Trends and Preventing Future Lawsuits

Michael L. Frost
Senior Vice President & General Counsel
The CBE Group, Inc.

Timothy Collins
Associate Director of Compliance
Hyundai Credit America

Trends in the debt collection arena may have a dramatic impact on your business or the business of your vendors. Take an in-depth look at the litigation data and learn from the experts on how to prevent future litigation and how to respond to the current trends. Topics will include:

• Understanding statistics & data
• The reasons behind the explosive increase in consumer litigation
• Behind the scenes reasons for litigation trends
• Methods to prevent future law suits
• Strategies for calculating damages based on net worth
• Leaving appropriate messages on machines and with third parties
• The new wave of cases being brought under the FDCPA & TCPA
• Steps to comply with applicable state and federal collection laws
• Litigation updates and best practices for avoiding trouble spots in fax blasts, robo-dialing, cell phones and trade line litigation
• Strategies for mitigating the tremendous damages that can result from multiple improper collection calls and a look at whether any courts will cap damages
• Obtaining proper express consent to record calls, call cell phones and comply with other TCPA provisions
• State claims and preemption by FCRA and FACTA
• Providing notice to avoid FCRA violations

4:00 Dodd-Frank Section 1013 & UDAP Claims: Defining Unfair, Deceptive or Abusive Practice Claims and What The New Standards Mean in the Hands of the CFPB

Thomas H. Hefferon
Goodwin Procter LLP

Douglas A. Thompson
Bryan Cave LLP

Martin C. Bryce, Jr.
Ballard Spahr LLP

Darren M. Welch
Skadden Arps Slate Meager & Flom

• Among the many pages of Dodd-Frank Section 1013 charges the CFPB with enforcement powers to prevent “unfair, deceptive or abusive acts or practices” related to consumer financial transactions. While this provision seems to be nothing more than a modification on UDAP language that has been around for decades, in the hands of the CFPB, and with many long standing definition still unclear, it could turn out to be the most far-reaching provision of Dodd-Frank. Join the leaders of this session to find out:
• What practices will the CFPB target first?
• Evaluating forthcoming written guidance on the issue
• Establishing a culture of fairness within your company
• What types of products or aspects of origination and servicing may be “abusive”?
• The risk of retroactive application
• How are courts are treating common law and state UDAP claims arising out of failed loan modifications, including, among others, Bosque v. Wells Fargo, Costigan v. CitiMortgage and Allen v. CitiMortgage?

5:00 implementing Effective Defenses & Defeating Claims Related to Discriminatory & Predatory Lending

Michael B. Goldberg
Senior Counsel
Wells Fargo Law Department

Gregory P. Dresser
Morrison & Foerster LLP

Richik Sarkar
Ulmer & Berne LLP

Robert Maddox
Bradley Arant Boult Cummings LLP

As foreclosures begin to move forward again, distressed borrowers are pulling out all of the stops to stay in their homes. Coupled with regulatory and case law developments, the environment is ripe for a quick uptick in discriminatory and predatory lending cases. Leading defense attorneys will take attendees through the current regulatory and litigation developments and discuss the prospective cases that may arise in the weeks and months ahead.

• Discretionary pricing claims after Wal-Mart
• A look into the latest redlining and reverse redlining cases
• An overview of the cases filed by the cities of Baltimore and Memphis and the potential for other cities to file suit
• Defending against the latest claims alleging fair lending violations
• Recent regulatory and litigation developments related to discriminatory/predatory lending, TILA, HAMP & SCRA and how these developments affect the defense of claims

6:00 Cocktail Reception

DAY TWO – Friday, January 27, 2012

7:30 Continental Breakfast

8:00 The View From the Bench Part one: District Court Judges’ Perspectives on the Current State of Consumer Finance Litigation

Hon. Mark W. Bennett
U.S. Dist. Ct., D. Iowa

Hon. Ruben Castillo
U.S. Dist. Ct., N.D. Ill.

Hon. Donovan W. Frank
U.S. Dist. Ct., D. Minn.

Moderator:
Stuart M. Richter
Katten Muchin Rosenman LLP

Hon. Phillip Pro
U.S. Dist. Ct., D. Nev.

Hon. Mark E. Fuller
U.S. Dist. Ct., M.D. Ala.

Hon. Laurie Smith-Camp
U.S. Dist. Ct., D. Neb.

Led by federal district court judges, jurists will provide you with their views on the current consumer litigation and strategic insights for conveying your case to the court.

• Judicial perspectives on the latest waves of class actions, the timing and significance of class certification and how Wal-Mart and Concepcion effect the landscape
• How are judges ensuring the consumer finance industry is being treated fairly in the current environment
• Judicial perspectives on foreclosure documentation errors
  • Dealing with “robo-signing” cases, foreclosure mills and phantom notaries
  • The impact of court implemented rules, including attorney affidavits, file reviews and enhanced pleading requirements
  • Foreclosure injunctions and moratorium
• Insights on arbitration and Concepcion
  • The impact of Concepcion on class waiver provisions
  • Should financial institutions and lenders want to arbitrate?
• What are the advantages in a judge’s eyes?
• Managing your client’s reputation – what are judges hearing from juries and how might biases be effecting trial outcomes?

9:15 The View from the Bench Part Two: Magistrate Judges’ Perspectives on the Current State of Consumer Finance Litigation

Hon. Alan J. Baverman
U.S. Dist. Ct., N.D. Ga.

Hon. Tonianne Bongiovanni
U.S. Dist. Ct., D.N.J.

Hon. Robert B. Collings
U.S. Dist. Ct., D. Mass.

Hon. William V. Gallo
U.S. Dist. Ct., S.D. Ca.

Hon. Jeffrey J. Keyes
U.S. Dist. Ct., D. Minn.

Moderator:
Andrew K. Stutzman
Stradley Ronon Stevens & Young LLP

Led by federal magistrate judges, jurists will provide you with their views on the current consumer litigation landscape and strategic insights for conveying your case to the court.

• Class action notice
  • Assuring the court that you are reaching your class
  • The resistance to website and email notice
• Insights on arbitration
  • The impact of Concepcion on class waiver provisions
  • Should financial institutions and lenders want to arbitrate?
• What are the advantages in a judge’s eyes?
• The timing and significance of class certification
• Preliminary and final settlement approval – what are judges looking for?

10:30 Morning Coffee Break

10:40 Regulatory Roundtable Part i: The View from Federal Regulators on Current Enforcement Initiatives

Deborah Marrone
Assistant Regional Director, Northeast Regional Office
Federal Trade Commission

Michael Bresnick
Assistant Chief, Fraud Bureau
U.S. Department of Justice, E.D.P.A.

Joel M. Sweet
Assistant United States Attorney
U.S. Department of Justice, E.D.P.A.

David C. Shonka
Deputy General Counsel
Federal Trade Commission

Moderator:
Richard J. Zack
Pepper Hamilton PLLC

In this session, federal regulators will share what priorities are at the forefront of government efforts and how they expect to co-regulate going forward. The esteemed panel, led by the FTC and DOJ, will provide you with proven effective strategies for dealing with their regulatory body and avoiding costly investigations.

• Assessing the investigation and actions that are being brought against financial institutions, directors and officers, servicers, and third parties
• The impact of eased preemption under Dodd-Frank and where financial institutions can expect changes• Potential actions against rating agencies and/or title companies?
• What are the biggest areas of concern for enforcement agencies right now?
• The regulatory perspective on debt collection and credit reporting hot spots
• Cooperating with investigations:
  • What to do in the first days, weeks and months
  • Regulators’ pet peeves
  • Reaching consent settlements with regulators
• What are the biggest substantive areas of concern for the FTC? The DOJ?

11:40 Regulatory Roundtable Part ii: The View from State Regulators on Current Enforcement Initiatives

Attorney General Paula Dow
New Jersey

Attorney General Darrell McGraw
West Virginia

Attorney General Scott Pruitt
Oklahoma

Glenn Kaplan
Chief, Insurance & Financial Services Division
Office of the Massachusetts Attorney General

Thomas Calcagni
Director, Division of Consumer Affairs
Office of the New Jersey Attorney General

Suzan Sanford
Chief, Corporate Oversight Division
Office of the Michigan Attorney General

Thomas P. James
Consumer Counsel, Consumer Fraud Bureau
Office of the Illinois Attorney General

Thomas Bates
Deputy Attorney General
Office of the Oklahoma Attorney General

Moderator:
Frank A. Hirsch
Alston & Bird LLP

• Assessing the investigation and actions that are being brought against financial institutions, directors and officers, servicers, and third parties
• The impact of eased preemption under Dodd-Frank and where financial institutions can expect changes
• How will the states be coordinating investigations, enforcement actions and settlements with the CFPB and the FTC?
• A look at the Attorneys General’s settlement and where the current objectors stand?
• What are the biggest areas of concern for the states right now?
• Cooperating with investigations:
  • What to do in the first days, weeks and months
  • Regulators’ pet peeves
  • Reaching consent settlements with regulators

1:00 Networking Luncheon for Speakers & Delegates

2:00 Securitization 101 for Litigators: understanding the Mortgage Securitization Process, Where the Trouble Spots Are in Relation to Today’s Consumer Litigation & Explaining the Practice to the Court

Greg Walker
Managing Director & Corporate Counsel
UBS Investment Bank

Deborah Lee Hovatter
Spilman Thomas & Battle, PLLC

Anthony J. Laura
Patton Boggs LLP

Judith Tribble
Corporate Counsel
Residential Finance Corp.

In response to the needs expressed by the market, join our panel of experts for a targeted primer session on the nuts and bolts of the securitization process. Targeted to the needs of litigators, this session will give attendees a basic understanding of the securitization process, point out the top trouble spots and how to defend against them, and teach you how to convey the process to the court.

• Understanding the securitization process from start to finish
• Where are the trouble spots?
• Choice of law provision
• Who are the major players in the process?
• Dealing with trustee issues and enforcement of the note
• Explaining the securitization process to the court
• Defeating common loan ownership defenses
• An update on the securitization cases & repurchase litigations still pending

3:00 Afternoon Refreshment Break

3:10 Defending Foreclosure and Loan Modification Practices, Defeating the MERS, TiLA, HAMP and Bankruptcy Defenses & Contending with the Recent Wave of Cases Involving Trustees

H. Hunter Twiford
McGlinchey Stafford PLLC

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP

Roland P. Reynolds
Palmer Lombardi & Donahue LLP

Donn A. Randall
Bulkley, Richardson & Gelinas, LLP

Thomas M. Schehr
Dykema Gossett PLLC

Though many think the worst might be over, litigation surrounding residential mortgages continues, with new theories of liability being generated every day. In this session, attorneys leading the national scene will provide updates on the current state of affairs and take a look at the new theories of liability being generated by plaintiffs’ attorneys across the country.

• Updates on recent actions and case law
• Update on MERS issues
• Defending against cases where the trustee is brought in
• Dealing with HOA, COA and code enforcement issues in foreclosure
• Getting boiler-plate answers and cross-claims dismissed
• A look into claims involving option arm payments
• Best strategies for dealing with Qualified Written Requests and updates on response time line amendments
• What is the future of reverse mortgage litigation?
• Dealing with title defects and title insurance after “bad” foreclosures
• Recent regulatory and litigation developments related to discriminatory/predatory lending, TILA, HAMP & SCRA and how these developments affect the defense of claims
• Strategies for curing defaults after a temporary modification if a permanent modification is denied
• Identifying and defending cases with systemic versus individual risk
• HAMP Litigation: What constitutes proper disclosure notices and an enforceable modification contract under HAMP?
• Proactive steps

4:25 Emerging Litigation issues in the Student Loans, Credit/Debit Cards & Auto Loans Sectors

Jeffrey D. Pilgrim
Grady Pilgrim Christakis Bell LLP

Michelle A. Fox
Kutak Rock LLP

With so much focus on the mortgage crises in recent years, the spotlight has moved away from other consumer products. However, areas like student loans, credit and debit cards, and auto loan products continue to generate a steady stream of litigation. This session will keep you up to speed on the current litigation trends and issues in these areas.

• The claims against Cooley and New York Law School and how they may affect student loan repayment
• Payment protection/debt cancellation programs and other fee product cases
• The future of the interchange fee
• Ongoing and emerging privacy issues related to protection of consumer data and overseas call centers
• ATM sticker fee cases
• Franchise car dealers and the FTC: what does the regulatory future look like with regard to:
  • Revenue sharing
  • Spot delivery
  • Leasing
• Developments in litigation surrounding the CARD Act and FACTA
• Strategies for remedying credit card receipt litigation
• A look at the developments and strategies being used in the MDL on overdraft fees

5:15 Conference Concludes

 

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Location:
New York Marriott Downtown
New York City, NY