Consumer Finance Class Actions, Litigation & Government Enforcement Actions

Opening Remarks from the Conference Co-Chairs

KEYNOTE PANEL

State Enforcement in the Trump Era: Novel Regulatory Bodies, Increasingly Militant Consumer Protection, and Renewed Scrutiny of Industry Practices

• Status update on new investigation and enforcement actions by state Attorneys General and regulatory agencies (including licensing entities with the power to revoke the licenses of those whose conduct they regulate) as well as coordinated multi-state activity in response to decreased federal activity
• Gain insight into enforcement efforts by “Mini-CFPBs” in New York, New Jersey, and Massachusetts over the past year and proposals to create a similar agency in California
• Hear directly from key agencies and prepare to engage in dialogue with them in an exclusive Q&A session

How to Navigate the Uptick in State Enforcement: Best Practices for Financial Institutions in Examinations and Settlements

• Examine trends in the scope of examinations, types of actions, and remediation requirements and how you can adapt your compliance and litigation strategies accordingly
• Assess the probable further escalation of state enforcement against lenders in the COVID-19 context as consumers are increasingly unable to meet their obligations
• Analyze how potential conflict between state and federal regulation may play out in enforcement activity following the pandemic

Break

How to Mitigate and Manage a New Wave of Litigation and Enforcement Following the Pandemic: In-House Perspectives

• Learn how consumer finance providers are navigating lending and servicing challenges and related disputes amid unprecedented loss of employment and demand for credit
• Gain insight into new obstacles in-house counsel are facing in managing the fallout from the pandemic, best practices from successes in their response thus far, and their concerns for the months to come
• Identify class action and enforcement activity that may result from the current crisis and how leading financial institutions intend to manage the expected surge in disputes
• Explore the consequences of the crisis on lenders in specific sectors including automobile, credit card, mortgage, and student loans
• Anticipate disputes that are likely to arise among industry players as consumers default on loans

Federal Regulatory State of the Union: What Lenders Need to Know About Continued Enforcement Activity and Trump’s Policy Priorities

• Stay up to date on regulatory and enforcement initiatives by federal agencies including the CFPB, FTC, OCC, FDIC, and DOJ over the past year and coordination among them
• Learn about the CFPB’s continued engagement in consumer protection, including through enforcement actions against major banks – Citizens and Fifth Third
• Examine the CFPB’s policy under the Trump administration against “regulation by enforcement,” according to which regulatory bodies’ supervisory guidance does not have the force of law
• Assess the implications of an executive order signed by the President in October 2019 governing agencies including the CFPB, which states that guidance alone is insufficient for imposing new standards of conduct
• Discuss developments in the case on the constitutionality of the CFPB currently before the Supreme Court

Break

FTC Keynote

Developments in Consumer Privacy, Data Security, and UDAP Enforcement Against Financial Institutions

Anticipating Disputes Resulting from Government Relief Programs and Rethinking Litigation Strategies Post-COVID-19

• Delve into the range of federal, state, and local government programs deferring collection activity and industry pushback to these limitations on financial institutions
• Anticipate a surge in litigation against borrowers as deferments expire and courts re-open following the pandemic
• Examine likely disputes between industry and government, as lenders contest the binding aspects of relief programs
• Assess the impact of debt collection challenges on servicers, trust holders, and lenders and probable disputes among these parties
• Analyze the implications of possible continued government-mandated deferment, abatement, or forgiveness of debt following the pandemic
• Hear directly from the plaintiff bar on the major types of disputes they expect to pursue going forward

Break

Residential Mortgage Litigation Forecast: Preparing for a Possible Foreclosure Crisis on the Horizon

• Examine trends in litigation over bankruptcy discharge violations, inadequate foreclosure notice, and insufficient loss mitigation pre- and amid COVID-19
• Engage in dialogue with industry leaders on how to navigate the greatest disruption to the housing market since the Great Recession
• Analyze the impact of payment deferment plans and forbearances and government-mandated suspension of foreclosures and evictions on the mortgage industry
• Anticipate a range of disputes between stakeholders – homeowners and servicers, servicers and trust holders, lenders and government – after the pandemic
• Assess whether a foreclosure crisis is likely to materialize as temporary deferments and suspensions expire, as well as additional measures the government may take to deter such a crisis

Dissecting Class Action Developments: New Theories Pursued under Major Legislation, Emerging Types of Disputes, and Growing Challenges in Settlement

• Hear about new arguments made by plaintiffs’ lawyers in cases filed under the TCPA, the FCRA, the FDCPA and analogous state legislation
• Examine trends in class actions relating to false advertising, out-of-network ATM fees, overdraft fees, data breaches, and attorney fees
• Explore pre-emption challenges and recent case law developments under the Class Action Fairness Act
• Stay current on questions over whether uninjured persons should be class members, as well as questions over personal jurisdiction in cases where certain persons claiming injury do not reside in the state of the court
• Identify emerging challenges in class settlements, including procedural issues over how notice should be given to class members, objections by third parties, and courts remanding settlements with increasing frequency

Closing Remarks, Conference Adjourns

Opening Remarks from the Co-Chairs

In-house Roundtable on Effective Litigation Management Strategies: Allocating Resources, Collaborating with Outside Counsel, and Adapting to New Legislative Demands

• Gather best practices on overcoming budgetary constraints and efficiently litigating a growing number of disputes
• Hear about key considerations in-house counsel make when retaining external counsel and what makes for a productive working relationship
• Share insights on mobilizing resources to tackle complex litigation challenges at a time of unprecedented economic and industry turmoil

Student Loan Servicing Challenges in the COVID-19 Context and Beyond: Navigating New Constraints on Debt Collectors and Ensuring the Viability of the Industry

• Stay up to date on student loan-related class actions and enforcement activity under the FDCPA over the past year
• Learn about efforts by state legislatures around the country to grant state regulators oversight of student loan servicing entities
• Explore servicing challenges specific to private student loans, which are not subject to interest waivers or payment deferrals that apply to federal student loans under the CARES Act
• Anticipate disputes among lenders, servicers, governments, and borrowers in the private student loan space in and post-pandemic
• Engage in dialogue about the future of the student loan industry amid growing attention to student debt in electoral campaigns

Break

Minimizing Liability Under the FCRA Amid a Recent Uptick in Credit Reporting Litigation and a Likely COVID-19-Related Surge

• Gain insight into increased federal enforcement of the FCRA and related class action activity in the past year
• Analyze frequently litigated permissible purpose claims as well as reporting accuracy and dispute investigation claims under this Act
• Examine recent case law surrounding what constitutes correct reporting of multiple forms of delinquency, modification, and bankruptcy
• Understand the modifications to the FCRA pursuant to the CARES Act, which impose limits to reporting of payment accommodations made due to the coronavirus crisis
• Assess the consequences of continued credit reporting during the pandemic (beyond the specific limitations cited in the CARES Act) and litigation that consumers are likely to initiate

Break

Evolving Challenges in the Fintech Space: Fair Lending, True Lender, Accessibility, and Automated Payment Litigation

• Learn how financial institutions and their tech partners are meeting their ECOA obligations in processing consumer information and delivering advertising through online platforms
• Examine developments in true lender litigation and related legislative and regulatory efforts to undo the precedent set by the Madden decision
• Assess emerging litigation under the Americans with Disabilities Act over accessibility barriers on online financial services platforms
• Analyze challenges relating to automated payments under the Electronic Funds Transfer Act in web-based finance
• Anticipate an increased prominence of Fintechs as consumers heighten their online presence and become more accustomed to transacting online during the coronavirus pandemic

The TCPA Litigation Landscape: Novel Disputes, Ongoing Ambiguities, and Key Takeaways from Recent Case Law

• Stay on top of case law relating to the definition of an Automatic Telephone Dialing System (ATDS), which triggers protection under the TCPA
• Understand how pending guidance from the Federal Communications Commission (FCC) on what constitutes an auto-dialer will shape future litigation and class action activity
• Analyze arguments made in revocation of consent disputes and the dispositions of these cases
• Identify strategies for effectively deploying resources to defend TCPA cases, considering that a finding of liability involves significant relief for plaintiffs

Break

New Privacy Legislation: Preparing for a Major Source of Class Action and Enforcement Activity Going Forward

• Assess the impact of the California Consumer Privacy Act (CCPA) and analogous efforts in other states on the financial industry
• Examine ambiguities in the scope of the private right of action under the CCPA which are likely to be debated in litigated
• Explore ways in which the plaintiffs’ bar is leveraging the CCPA despite restrictions on a private right of action, and delve into the first wave of class actions filed since the law took effect
• Learn how consumers’ increased online presence in the coronavirus crisis and financial service providers’ continued tracking of online activity is likely to provide ground for privacy-related disputes
• Anticipate CCPA actions against the industry in light of the California AG’s refusal to defer enforcement amid the pandemic

Closing Remarks, Conference Concludes