Amicus Brief Opposes OCC Charter ThatWould Aid Predatory Lenders

For Immediate Release: July 31, 2020

Media Contacts:National Consumer Law Center: Jan Kruse (jkruse@nclc.org)Center for Responsible Lending: Ricardo Quinto (ricardo.quinto@responsiblelending.org)National Community Reinvestment Coalition: Alyssa Wiltse (awiltse@ncrc.org)

WASHINGTON, D.C. – The National Consumer Law Center, Center for Responsible Lending, andthe National Community Reinvestment Coalition filed an amicus brief in Lacewell v. Office of theComptroller of the Currency (OCC), in support of the plaintiff, the New York State Department ofFinancial Services (DFS), against the OCC’s plan to issue “special purpose national bank” chartersto nonbank lenders.

In the brief, the group urged the Second Circuit Court of Appeals to uphold the lower court’sdecision to block the OCC from issuing nonbank “bank” charters since doing so would allow freereign for predatory lenders to ignore state consumer protection laws, particularly state interest ratecaps on lending products.

According to the group’s amicus brief: “Allowing the OCC to grant national bank charters tononbank lenders will eviscerate the fundamental power that states have had since the time of theAmerican Revolution—to cap interest rates to protect their residents from predatory lending. …Predatory lenders will be eager to obtain a national bank charter so that they can charge rates wellover 100% APR that are illegal under most state laws. High-cost lenders, often under the “fintech”label, are already trying to exploit banks’ preemptive powers to evade state rate caps by using rent-a-bank schemes. The OCC is not reigning in – and in fact has been defending – predatory lendersthat launder their loans through banks. A nonbank charter will make usurious lending even morewidespread.”

The brief notes that the nonbank charter is a continuation of efforts by the OCC to support high-costlenders, including an OCC amicus brief in support of World Business Lenders, failure to addresspredatory lending by WBL abetted by OCC-supervised Axos Bank, and OCC rules (recentlychallenged by three states) that would aid predatory rent-a-bank schemes such as the one betweenthe payday lender CURO and OCC-supervised Stride Bank.

New York’s DFS led the challenge against the nonbank charter in Lacewell v. Office of theComptroller of the Currency in a federal district court action in the Southern District of New York. In May 2019, the district court ruled against the OCC, set aside the OCC’s nonbank charter, andheld that the National Bank Act “unambiguously requires that …. only depository institutions areeligible to receive national bank charters from OCC.”

Under the nonbank charter, predatory lenders would have fewer constraints than true nationalbanks. They also would not be subject to the Community Reinvestment Act, which only applies tonational banks that take deposits, creating a higher risk they will offer products that harm thecommunities where they do business rather than serving these communities with responsibleproducts.

Currently, at least 45 states and the District of Columbia impose interest rate caps on someconsumer loans. Among those states that cap rates, the median annual rate including all fees is38.5% for a $500, six-month loan; 31% for a $2000, two-year loan; and 25% for a $10,000, five-yearloan.

The American public strongly supports state interest rate caps. At every opportunity in recent years,voters in a diverse range of states have overwhelmingly (typically by a two-to-one or higher margin)approved rate caps of 36% or less, including in Arizona, Ohio, Montana, South Dakota, andColorado.

Consumer, Civil Rights, and Housing GroupsCall on U.S. Senate to Save Family Homesand Stop Evictions in Next COVID-19 Bill

FOR IMMEDIATE RELEASE: JULY 28, 2020

Contacts: Americans for Financial Reform: Diop Harris (diop@ourfinancialsecurity.org) or LindaJun (linda@ourfinancialsecurity.org)

National Consumer Law Center: Jan Kruse (jkruse@nclc.org) or Alys Cohen (acohen@nclc.org)

Washington, D.C. – More than 50 consumer, civil rights, community, housing, and other publicinterest organizations sent a letter today to U.S. Senate leadership urging inclusion of mortgage andrental protections for families in the next COVID-19 legislation.

In the letter, the groups, which include Americans for Financial Reform, the National Consumer LawCenter, the Leadership Conference for Civil and Human Rights, NAACP, and UnidosUS wrote:

“For many Americans, their home is their greatest asset and largest financial investment. But morethan that, home is the place that provides families with safety and security in times of crisis.Especially now, when staying home is the best protection against contracting or infecting otherswith COVID-19, it is critical that Congress enact common-sense mortgage protections that will makeit possible for American homeowners to keep their homes and provide them with the stability theyneed to rebuild. A healthy housing market also requires access to safe and affordable mortgagecredit, which not only supports the economic recovery but ensures that the benefits of recovery arebroadly shared. While the CARES Act provided important protections for homeowners withgovernment-backed mortgages, these protections need to be expanded to the entire market andrefined to provide more comprehensive assistance, especially when borrowers must repay deferredpayment amounts. Homeowners who have obtained a forbearance should not be forced intoforeclosure before they can make affordable repayment arrangements.”

“The next recovery package must prevent unnecessary foreclosures by providing homeowners withthe relief they need to withstand the economic distress caused by the COVID-19 pandemic andpreserve long-term homeownership. Congress should expand on the CARES Act by:

Providing temporary payment relief to homeowners facing a financial hardship due toCOVID-19 that interferes with the ability to make mortgage payments, regardless of whetherthe loan is federally-backed;Placing a temporary moratorium on foreclosures and similar actions while a homeowner is inforbearance or seeking post-forbearance repayment arrangements;Requiring that all homeowners, regardless of mortgage loan type, be offered an opportunity toresume regular payments, or obtain a more affordable payment where needed, after atemporary payment halt and before any foreclosure begins;Requiring that homeowners who are at least 60 days late on their mortgage payments beprovided an automatic forbearance;Ensuring that all homeowners receive notice of their options if they are facing a COVID-19hardship, including in-language communications for borrowers with limited Englishproficiency and information about housing counseling;Enacting policies that encourage the mortgage industry to offer broad access to safe andaffordable credit; andEstablishing a mortgage assistance fund to help homeowners who need emergency financialassistance to stay in their homes.

“We urge you to include these mortgage provisions in the next COVID-19 relief legislation. They willprovide homeowners the temporary relief they need to get back on their feet and successfullyrebuild their lives. Extending mortgage protections will allow more homeowners to save theirhomes, resulting in more stable communities and a faster economic recovery. Rental assistance isalso critical to prevent wide-scale evictions.”

Student Loan Borrowers Need Real Relief,Not a COVID Stimulus Plan that Will BuryThem Deeper in Debt

FOR IMMEDIATE RELEASE: JULY 27, 2020

CONTACTS: Jan Kruse (jkruse@nclc.org) or Persis Yu (pyu@nclc.org)

New Republican Stimulus Bill Fails 43 Million Student Loan Borrowers

Statement of Persis Yu, director of NCLC’s Student Loan Borrowers Assistance Project, inresponse to the COVID-19 stimulus package proposed by Senate Republicans today.

“As Senator Lamar Alexander (R-Tenn.) correctly stated this past week, “[i]n less than three months,43 million student loan borrowers will be required by law to begin monthly payments again on theirloans … Many of those borrowers won’t be able to afford those payments.” And yet, while Congresscontinues to bail out big businesses, the bill introduced today proposes to resume collection offederal student loans on October 1st.

“There is a pandemic still happening. Workers are still unemployed. Schools and child careprograms are still closed. It is not yet safe for our economy to fully function. This so-called solution

for the millions of student loan borrowers struggling to feed their families and pay their bills is torecreate a less generous, more onerous, and ultimately more expensive version of a student loanrepayment program that already exists. This new proposal continues to leave out millions of federalstudent loan borrowers and is less generous than current income-driven repayment plans, and willbe more expensive for borrowers over the long term. This is not relief and fails the 43 millionstudent loan borrowers counting on Congress to act.

“We call on Congress to pass real relief to borrowers as detailed in our recommendations.”

Consumer Advocates to CFPB: Don’tDestabilize the Mortgage Market in theMidst of a Pandemic

FOR IMMEDIATE RELEASE: JULY 27, 2020

National Consumer Law Center contacts: Jan Kruse (jkruse@nclc.org) or Alys Cohen(acohen@nclc.org)

Washington, D.C. – Today, the National Consumer Law Center (NCLC) and 13 other organizationssent a comment letter to the Consumer Financial Protection Bureau (CFPB) urging it not to revampthe rules governing the residential mortgage market—a step that could destabilize the mortgagemarket in the middle of the pandemic. The CFPB should focus its efforts on the effects of thepandemic and on ensuring that homeowners, especially the Black and Latinx homeowners hardesthit by both COVID-19 and the Great Recession, avoid a tidal wave of foreclosures from thepandemic.

The Dodd-Frank Act, passed in response to the last foreclosure crisis and the Great Recession,required the CFPB to adopt rules ensuring that mortgage lenders cease the risky and predatorypractice of making loans without regard to the borrowers’ ability to repay those loans. Now, theCFPB is proposing to revise these rules. The two proposals issued on July 10 have rushed commentdeadlines: August 10 and September 8, respectively. The CFPB proposals seek to rewrite the basicstandards the mortgage market has followed since the end of the last foreclosure crisis, and theCFPB hints that it plans to finalize the new rules—and require compliance with the new rules—byApril 2021. By comparison, the original ability-to-repay rules took nearly three years to write and theCFPB allowed a full year for implementation.

“Now is the wrong time to change the rules of the game in the mortgage market,” said Alys Cohen,a staff attorney at the National Consumer Law Center. “The challenges posed by the pandemicare very real, with a resurgence in cases across the country and projections of increasing economichardship. The CFPB’s focus of resources should be to respond to the pandemic, including thelooming foreclosure crisis in Black and Brown communities, not on resetting mortgage rules in away that can have unintended consequences.

Mandated changes to underwriting standards will inevitably further disrupt a market which theCFPB acknowledges is already disrupted by COVID-19, with more borrowers reporting they are

missing payments than making arrangements with their mortgage servicer. Nor has the CFPB donethe foundational research needed to ascertain the impact of the changes it proposes on themortgage market or the larger economy, much less whether its proposal is an adequate measure ofborrowers’ ability to repay or only a poor proxy.

“Before we make decisions that will affect the financial health of our entire economy and impact thewealth of communities and families for generations to come, we should have adequate data andample time to consider the consequences of our actions here,” said Cohen. “Without furtherpreparation and analysis, a proposal that appears to generously include underserved borrowerscould in fact leave victims of predatory mortgage lending with no recourse. The CFPB must extendthe comment period and maintain the current rules until the COVID-19 crisis and its economicfallout are better understood and addressed.”

Consumer Groups Demand Review of FCCRuling that the Calling Industry Claims WillAllow Millions More Unsolicited TextMessages and Calls to Consumers’Cellphones

FOR IMMEDIATE RELEASE: July 24, 2020

National Consumer Law Center contacts: Jan Kruse (jkruse@nclc.org) or Margot Saunders(msaunders@nclc.org)

Advocates seek review of the Declaratory Ruling issued by the Consumer and GovernmentalAffairs Bureau, which blesses P2P texting platforms invented to evade consumerprotections

WASHINGTON, D.C. – Consumer groups, led by the National Consumer Law Center (NCLC) onbehalf of its low-income clients, today filed an appeal with the Federal Communications Commission(FCC) of a ruling by the FCC’s Consumer and Governmental Affairs Bureau that federal protectionsagainst unwanted text messages do not apply to peer-to-peer (P2P) text messaging systems. Thecalling industry is already citing the ruling as a basis to exempt all text messages and autodialedvoice calls from the federal prohibition against making these calls without the consumer’s consent.

“Such an interpretation would lead to an exponential growth in unsolicited calls and text messagesfrom both telemarketers and political campaigns,” said Margot Saunders, senior counsel withthe National Consumer Law Center. “Now more than ever, as consumers face mountingpressures from the ongoing COVID-19 pandemic and as we’re entering the peak election season, theFCC must protect consumers from unwanted and harassing text messages rather than bowing topolitical pressure to allow these unwanted texts without consent.” Automated dialing systems madeit possible for debt collectors, telemarketers, scammers, and others to generate over 58 billion callsto U.S. consumers in 2019.

The ruling involves an interpretation of the federal consumer privacy law, the Telephone ConsumerProtection Act (TCPA), and its application to the P2P texting platform. The purveyors of the P2Pplatform invented it to evade the consent requirements of the TCPA for robocalls, and to allowpolitical campaigns and telemarketers to send thousands of identical texts in a short period of time,without the consent of the recipients. The consumers’ application for review notes that the rulingconflicts with previous FCC orders, recent decisions in the Second and Ninth Circuits Courts ofAppeal, and the TCPA itself.

“The Bureau’s ruling implicitly relies on facts regarding the P2P system’s level of automation thatare not supported by the record and are contrary to readily available information,” said Saunders.“This ruling repeatedly characterizes the definition of an autodialer in ways that conflict with eachother, with the FCC’s rulings, and prevailing case law.”

NCLC was joined in the appeal by Consumer Action, Consumer Federation of America, EPIC, theNational Association of Consumer Advocates, and Public Knowledge.

For additional information, visit NCLC’s Robocalls & Telemarketing page.

Litigating Bail Cases: Using Consumer Lawsto Challenge Commercial Bail IndustryPractices

July 23, 2020

Lawsuits across the country are challenging commercial bail systems. This webinar will discuss howconsumer laws may be used to challenge abusive and unfair bail industry practices, as well aslitigation strategies and obstacles.

Speakers:

Alex Kornya, Iowa Legal AidIvy Wang, Southern Poverty Law CenterAriel Nelson, Staff Attorney at the National Consumer Law Center

Leading Civil Rights & Housing GroupsCondemn President’s Effort to Gut FairHousing, Use of Incendiary Racial Rhetoricfor Political Gain

FOR IMMEDIATE RELEASE: July 23, 2020Media contacts: Jan Kruse (jkruse@nclc.org) or Odette Williamson (owilliamson@nclc.org)

Fair housing advocates denounce Trump’s newest effort to eliminate a critical tool todesegregate communities and call on the president to instead concentrate on ensuringhousing equity during a pandemic

Washington, D.C.- Today, a coalition of civil rights, affordable housing and consumer advocacyorganizations condemned the move by the Trump administration to eliminate a critical tool foraddressing systemic racism and segregation in our communities. In its haste to undermine thiscentral component of the Fair Housing Act, the administration has done an end run around thenormal rulemaking process and adopted a new Affirmatively Furthering Fair Housing (AFFH) rule byexecutive fiat.

This new rule is at complete odds with Congress’ intent in including this provision in the FairHousing Act of 1968, as well as decades of case law interpreting this provision. That act requiresfederal agencies, especially HUD, to “affirmatively further fair housing.” Under the AFFH mandate,localities receiving federal assistance must take meaningful actions to undo decades of federal,state, and local discriminatory policies and practices that resulted in creating racially segregated,under-resourced communities that persist to this day. They must also address local policies thatillegally discriminate against residents. Further, they must ensure that all neighborhoods haveequitable access to high quality schools, healthy food, clean air and water, reliable transportation,quality healthcare facilities, and other community resources and amenities.

Under the Trump administration, HUD suspended the AFFH regulations finalized in 2015 –effectively gutting the only meaningful guidance since the Fair Housing Act for how states andlocalities should correct discriminatory housing practices and undo the harms caused by racialsegregation, housing discrimination and disinvestment. Today’s action by the president is theadministration’s latest effort to thwart access to fair housing and to perpetuate segregation. Thecoalition call on him to rescind this mandate and reinstate the 2015 AFFH regulation.

There is considerable evidence that all residents benefit from diverse, inclusive communities. Research by Harvard University Economist Raj Chetty showed that moves by lower-income residentsto higher-income neighborhoods not only reduce the intergenerational persistence of poverty butalso ultimately generate positive returns for taxpayers. Despite this evidence, the president hasfalsely claimed that AFFH would lead to decreased property values and increased crime in suburbancommunities. Given that one statutory purpose of AFFH is to create more housing opportunities forpeople who have been historically excluded from predominantly white neighborhoods due to federal,state, and local policies and practices, the president’s assertions have clear racial implications. Thismandate, issued just a few months before the presidential election, is designed to engender fearamong suburban white voters.

At a moment when much of the nation is calling for sweeping reforms to overcome structural racismand achieve greater racial justice and equity, the administration is seeking to eviscerate the legalrequirement to achieve greater desegregation and housing equity. The president’s action today isespecially egregious during the coronavirus pandemic when millions of families of color areexperiencing disproportionate income and job loss and are at greater risk of being evicted from theirhomes and becoming homeless.

“Housing justice and racial justice are inextricably linked. The AFFH regulation was an importantstep to rectify decades of racist housing policies that created today’s segregated neighborhoods andall its associated harm to children, families and the country.” said Diane Yentel, president andCEO of the National Low Income Housing Coalition. “Secretary Carson has worked toundermine fair housing since the day he stepped into the HUD building, so this action is notsurprising. But it is abhorrent for Trump to use a critical fair housing tool for election year race-baiting, particularly during a time of reckoning for racial injustices.”

“The Affirmatively Furthering Fair Housing provision of the long-standing Fair Housing Act isneeded to dismantle decades of government-sponsored discrimination that led to segregation anddisinvestment in healthcare, housing, education, and other essential services in Black communitiesand other communities of color,” said Odette Williamson, staff attorney and director of theRacial Justice and Equal Economic Opportunity Project at the National Consumer LawCenter. “The disparate impact on highly segregated Black communities that were historicallyredlined still plays out today as Black families bore the brunt of early infections and death due to theCOVID-19 pandemic. This unacceptable action is yet another attempt by the Trump Administrationto roll back hard-won civil rights protections that provide housing opportunities for people who havebeen excluded from highly resourced communities.”

“People should not be shut out of the American Dream based on the color of their skin. However,decades of redlining have cemented this injustice, perpetuated a massive racial wealth gap betweenBlack and white families, and sustained the continued distribution of resources and opportunitybased on race,” said Nikitra Bailey, executive vice president at the Center for ResponsibleLending. “The government helped create entrenched, pernicious residential segregation and has anobligation to undo it. By rejecting the Fair Housing Act’s mission to dismantle segregation and theinequity it created, this Administration is eschewing its responsibility and will be on the wrong sideof history.”

“We call on every American to oppose the unjustifiable and shortsighted rollback of civil rights lawslike the AFFH mandate,” said Heather Abraham, supervising attorney of the GeorgetownUniversity Law Center Civil Rights Clinic. “Today, more Americans are waking up to the realitythat our government has repeatedly used its power and resources to segregate communities by race,and that history must be confronted and reversed. The last thing we should do is create anotherbarrier to reform. No more rollbacks, no more games.”

“President Trump’s elimination of the 2015 AFFH rule is an unacceptable affront to civil rights andconstitutes a reprehensible regression for fair housing in this country,” said Lisa Cylar Barrett,director of Policy at the NAACP Legal Defense and Educational Fund, Inc. Today’sannouncement is particularly egregious amid an ongoing pandemic that disproportionately impactsBlack people’s socioeconomic security and during a period with staggeringly low Blackhomeownership rates. The president’s action is the exact opposite of the type of housing policyneeded at this moment.”

“It is absolutely essential that fair housing opportunities are available to historically marginalizedpopulations, including survivors of domestic and sexual violence,” said Peg Hacskaylo,

Founder/CEO of the National Alliance for Safe Housing. “This pandemic has shown that thereare massive racial disparities in who can access and maintain safe and healthy housing. The federalgovernment must be responsible for addressing our country’s housing inequalities that were createdthrough decades of federally backed discriminatory housing policies. HUD’s decision to end theaffirmatively furthering fair housing rule only creates a barrier towards achieving true housingequality and will worsen our current housing crisis.”

“The COVID-19 pandemic continues to amplify the grave disparities and structural racism that existsin our country’s housing system,” said Seema Agnani, executive director of the NationalCoalition for Asian Pacific American Community Development. “The administration’s lack ofrespect and care for the American people continues to reveal itself and is truly putting ourcommunities and neighborhoods at further risk. Such actions are simply unacceptable and makevery clear the administration’s priorities during this time crisis.”

“This is terrible. The administration just gutted the rule that enforces fairness in housing, which wasand still is the whole point of the Fair Housing Act,” said Jesse Van Tol, CEO of the NationalCommunity Reinvestment Coalition. “All of us have an interest in living in fair and desegregatedcommunities. This would be a return to separate but equal and would be among the most overtlyracist housing policies in decades. It’s hard to even call it a policy. It doesn’t enforce anything, ithands off any action to local governments, and they can get away with no action. This approachwon’t affirmatively further anything other than discrimination.”

“The president seems to think that what you don’t know about or don’t measure can’t hurt you. Weknow that’s not true — whether it’s a highly contagious new disease or segregation anddiscrimination in housing. He wants to take away tools to measure housing discrimination becausehe doesn’t want it to be counted. This move is a deflection,” said Lisa Rice, president and CEO ofthe National Fair Housing Alliance. “The worst thing we can do in a major health pandemic isincrease housing instability, homelessness, and overcrowding — which is what will happen if theAffirmatively Furthering Fair Housing provision is significantly weakened. Taking away strong fairhousing tools makes all of our communities less safe and increases housing instability. We havelearned that lesson and we should not repeat that mistake. We will not allow Trump to take awaytools to fight discrimination or make our neighborhoods less safe.”

“The President’s attacks on the Affirmatively Furthering Fair Housing Rule are deeply racist. TheAFFH rule was functionally eliminated in 2017 so the administration’s focus on it now is clearly apolitical stunt to stoke racial animus before the election. To say that a rule that requires cities toanalyze segregation would ‘destroy the suburbs’ is as close as you can get to an endorsement ofracial segregation without actually saying the words,” said Shamus Roller, executive director ofthe National Housing Law Project. “Our nation is simultaneously facing a global pandemic and anationwide reckoning on entrenched institutional racism. Both have laid bare our country’s enduringlegacy of the disenfranchisement of and disregard for Black and Brown lives. Instead of working toensure that all our nation’s families can stay safe and avoid eviction during the public health crisis,this Administration is working to dismantle decades of civil rights law.”

“The 2015 AFFH regulation provided communities with a roadmap for identifying and addressingthe housing and other needs of people with disabilities,” said Dara Baldwin, director of theCenter for Disability Rights, Inc. “Now, without any opportunity for their voices to be heard, thePresident is taking away that tool. That experience tells us the result will be that people withdisabilities will have less access to suitable, affordable housing in the neighborhoods of their choicethat enables them to fully participate in their communities. This is a bad outcome for people withdisabilities, and a bad outcome for the nation.”

“Discriminatory housing practices have been at the core of systemic racism in this country from theJim Crow era right up to the present day,” said Melissa Boteach, VP of Income Security andChild Care at National Women’s Law Center. “Our cities are now more racially segregated thanthey were when the Fair Housing Act was first passed, and surging rent prices have madehistorically Black neighborhoods unaffordable for most Black families. HUD must play a critical rolein turning this tide towards true economic justice instead of actively seeking to hurt the well-beingof the women of color this move will impact the most. Abandoning this rule now will only serve tofurther the harm endured by generations of communities of color, leaving them even more exposedto the impacts of a mismanaged pandemic and a historic downturn.”

“The President’s attempted rewriting of the Fair Housing Act shows a flagrant disregard for racialdiscrimination and its human cost, as well as a fundamental misunderstanding of the federalgovernment’s statutory responsibility to address the ongoing legacies of segregation,” said PhilipTegeler, executive director of the Poverty & Race Research Action Council. While this newanti-AFFH rule will not pass legal muster, the signal it sends to local jurisdictions will be chilling.”

“Once again, Trump is seeking to strip historically marginalized communities of their basic civil andhuman rights,” said Vanita Gupta, president and CEO of The Leadership Conference on Civiland Human Rights. “At a time when evictions, joblessness, and housing insecurity are exacerbatedby the pandemic, gutting the Fair Housing Act will only serve to continue systemic racism andsegregation against families of color seeking secure, safe, and fair housing. This cruel actioncontinues housing inequity today as well as for future generations. All people in America deserve fairhousing, especially in the midst of a global pandemic.”

Advocacy and Communication as of July 2020

Sample of Recent Advocacy Materials

New Take Action advocacy campaign:

Take Action: Urge your U.S. Senators to help families and the economy recover fromCOVID-19 by passing the HEROES Act

New Reports

Voices of Despair: How Seizing the EITC is Leaving Student Loan Borrowers Homeless andHopeless During a Pandemic, July 2020Commercialized (In)Justice Litigation Guide: Applying Consumer Laws to Commercial Bail,Prison Retail, and Private Debt Collection, June 2020

New Policy Briefs

A Looming Crisis: Black Communities at Greatest Risk of Covid-19 Foreclosure, July 2020The CFPB and Other Federal Agencies Should Adopt Strong Language Access Protections forHomeowners and Other Consumers, May 2016

Op-eds

4/28/20 The Hill “Congress must make sure eviction bans will not lead to housing crisis” op-ed by Ariel Nelson and Eric Dunn at the National Housing Law Project4/28/20 Utility Dive “Utility shutoff bans are in effect for many families, but what happenswhen they end?” op-ed by John Howat 6/8/20 Utility Dive “Utility exec and consumer advocate: Arrearage management programsare a win for customers and utilities” by Penny Conner and Charlie Harak

Blog

5/5/20 UnidosUS Blog “We call for $700 million to help hardworking families keep theirhomes” mentions NCLC

Radio

7/14/20 NPR (23:42 runtime) “Getting Out Of Medical Debt Can Feel Impossible. Here’sHow To Do It” by Chris Arnold features Jen Bosco4/10/20 NPR (3:22 runtime) “Those $1,200 Emergency Payments are arriving – and debtcollectors may be eying them” by Chris Arnold quotes Lauren Saunders (circulated widely)

TV

6/1/20 Telemundo47 (NYC/NJ/CT affiliate) Runtime: 2:43 “Experts explain howhomeowners can get mortgage relief” (Spanish and English) by Liz Gonzalez interviews SarahMancini5/5/20 Scripps TV (national and affiliates across the nation) (runtime: 1:17) “Some stillhaving wages garnished for student loans” in an interview with Persis Yu about the lawsuitthat NCLC and our allies filed against Betsy DeVos and Dept. of Education for illegal wagegarnishment of student loan borrowers under the CARES Act7/14/20 NewsChannel5 (Nashville) (2:13 runtime) “Steps to take when facing debtpayments” by Alicia Nieves features Andrea Bopp Stark (circulated widely through ScrippsTV outlets)7/16/20 NBC News (3:07 runtime) “Troy Harlow has always made sure to pay hismortgage on time. Wells Fargo had other plans for him.” by Gretchen Morgenson quoting ChiChi Wu.

Video

Coronavirus Crisis: What Consumers Need to Know About Mortgage Relief (NCLCcommunication team’s production)

Print/Online

4/11/20 Latin Post “Advocates Are Calling for the Translation of Mortgage Notices toDifferent Languages” by Neil P. quotes Sarah Mancini7/20/20 USA Today “Hurricane fallout creates financial ruin for Puerto Rico’s seniors withreverse mortgages” by Nick Penzenstadler and Kevin Crowe, USA TODAY; Luis J. Valentín

Ortiz, Centro de Periodismo Investigativo; and Jeff Kelly Lowenstein, Grand Valley StateUniversity quotes Tara Twomey5/28/20 The Markup (co-published with the New York Times) “Access Denied: FaultyAutomated Background Checks Freeze Out Renters” by Lauren Kirchner and MatthewGoldstein quotes Ariel Nelson and references her 2019 “Broken Records Redux” report6/3/20 Harvard Law Today “Office of Clinical and Pro Bono programs recognizes sixstudents for outstanding work” features former NCLC summer intern Sarah Cayer6/12/20 CBS News “Redlining’s legacy: Maps are gone, but the problem hasn’t disappeared”by Kristopher J. Brooks quotes Stuart Rossman6/30/20 The Guardian “They shut his water off over an unpaid bill–and then a fire broke out”by Nina Lakhani quotes Olivia Wein

Bonus:

4/14/20 NBC News “Why it’s suddenly more difficult to get a mortgage” by Marth C.White quotes Alys Cohen4/15/20 USA Today “Debt collectors can garnish coronavirus stimulus checks because ofloophole, legal advocates say” by Aimee Picchi quotes Lauren Saunders (circulated widely)4/22/20 ProPublica “Coronavirus Put Her Out of Work, Then Debt Collectors Froze HerSavings Account” by Kiah Collier and Ren Larson quotes Lauren Saunders4/24/20 ProPublica “Millions of People Face Stimulus Check Delays for a Strange Reason:They Are Poor” by Paul Kiel, Justin Elliott, and Will Young quotes Chi Chi Wu4/27/20 American Bar Association “Coronavirus Pandemic Prompts Temporary Relief inReverse Mortgage Foreclosures” by Odette Williamson5/15/20 New York Times “One Side Effect of the Virus: Free Credit Reports Each Week” byAnn Carrns quotes Chi Chi Wu/23/20 Forbes “Senators Unveil Bipartisan Proposal To Exempt CARES Act Stimulus ChecksFrom Private Debt Collection” by Shahar Ziv quotes Lauren Saunders6/30/20 E&E News “Disaster loans foster disparities in Black communities” by Thomas Frankquotes Chi Chi Wu7/15/20 Mass.gov Press Release: “AG Healey Leads Lawsuit Against Secretary DeVos forRegulations That Put Predatory Schools over Students” quotes Persis Yu5/31/20 Washington Post “What you need to know about paying your June rent ormortgage” by Renae Merle quotes Andrea Bopp Stark6/4/20 MA AGO press release “AG Healey Calls on the Department of Public Utilities toInvestigate the Future of Natural Gas Utilities in Massachusetts” with quote by CharlieHarak on the importance of helping low-income customers transition to clean energy.4/23/20 Politico “Biden vs Trump: Who’s the Actual Criminal Justice Reformer?” linksto NCLC‘s Commercialized (In)Justice report on private companies profiting from diversionprograms, commercial bail, and electronic monitoring programs.

OCC Proposal Would Turn State Interest RateLimits Into a “Dead Letter,” Causing

Explosion of Rent-a-Bank Payday Lendingthat Will Devastate Struggling Families

FOR IMMEDIATE RELEASE: JULY 20, 2020National Consumer Law Center contacts: Jan Kruse (jkruse@nclc.org) or Lauren Saunders(lsaunders@nclc.org)

Washington, D.C. – Today, the Office of the Comptroller of the Currency (OCC) issued a proposedrule that overturns the “true lender” rule that courts have used since the early 1800s to preventevasions of state usury laws. The deadline to submit comments on the OCC’s proposal is September3, 2020.

The following statement is by National Consumer Law Center Associate Director LaurenSaunders.

“The OCC’s ‘true lender’ proposal would turn state usury laws into a ‘dead letter,’ in the words ofthe U.S. Supreme Court, and eviscerate power that states have had since the time of the AmericanRevolution to protect people from high interest rates and predatory lending. At the time of theAmerican Revolution, every American state had interest rate limits, and today at least 45 states andthe District of Columbia have interest rate caps on installment loans.

“Yet under the proposal, a payday lender or other nonbank lender could ignore state interest ratelimits as long as either a bank ‘[i]s named as the lender in the loan agreement,’ or the bank ‘[f]undsthe loan’ — that is, the payday lender launders the loan through the bank. This proposal would allowpayday lenders to resume the rent-a-bank schemes that were shut down by bank regulators in themid-2000s, and would embolden today’s high-cost predatory rent-a-bank lending by onlineinstallment lenders.

“The proposed rule would purport to overturn the ‘true lender’ doctrine, which allows courts toprevent evasions of usury laws by looking beyond the technical form or fine print of a loantransaction to examine which party has the predominant economic interest in the loan. The truelender doctrine has long been used to prevent payday lenders and other high-cost lenders fromlaundering their loans through banks, which are not subject to state interest rate caps.

“Many courts used the true lender doctrine in the early 2000s to stop payday lenders from usingbanks to get around state interest rate limits. And in 2014, a West Virginia court found that CashCallhad to obey West Virginia’s usury caps and could not charge 96% APR because the purpose of thearrangement with a bank ‘was to allow CashCall to hide behind’ the bank.

“Just last month, the District of Columbia Attorney General used the true lender doctrine tochallenge a rent-a-bank scheme by Elevate, which was charging from 99% to 251% APR despite DC’s6% to 24% interest rate caps

“The OCC has no authority to take away the right of courts to look beyond the fine print to preventevasions of state usury laws. The true lender doctrine is part of the longstanding anti-evasionprinciple that courts have used to enforce usury laws. As the Supreme Court said in one case, Scottv. Lloyd, in 1835:

‘The ingenuity of lenders has devised many contrivances by which, under forms sanctioned by law,

the [usury] statute may be evaded….[I]f giving this form to the contract will afford a cover whichconceals it from judicial investigation, the [usury] statute would become a dead letter. Courts,therefore, perceived the necessity of disregarding the form, and examining into the real nature ofthe transaction.’

“The OCC’s proposed rule would prevent courts from examining the real nature of a predatory rent-a-bank scheme, help predatory lenders conceal their schemes from judicial review, and turn stateusury laws into the ‘dead letter’ that the Supreme Court predicted in 1835.

“The OCC’s trumped-up excuses for this rule do not hold water. The true lender doctrine does notthreaten legitimate bank activities but it does prevent predatory lenders from hiding behind banks.The OCC’s overreach is breathtaking in its audacity and it will not stand.

“In 2002, former OCC Comptroller Hawke shut down rent-a-bank schemes that payday lenders wereusing, declaring that bank privileges ‘cannot be treated as a piece of disposable property that a bankmay rent out to a third party that is not a national bank.’ Today the OCC, instead of preventingbanks from shielding payday lenders, is attempting to issue a rule that could allow payday lenders toignore state interest rate limits in all 50 states. But the OCC has no authority to take away courts’power to enforce state interest rate laws, and this proposal will not stand.

“It is shocking that in the midst of the coronavirus pandemic with unemployment at a level not seensince the Great Depression that the OCC is pushing hard and fast on a proposal that will emboldenpredatory lenders while trapping many struggling families into long-term debt.”

More information

Predatory Rent-a-Bank Loan Watch List by State

Advocates Praise Rent-a-Bank Colorado Court Ruling Upholding State Interest Rate Caps, June 10,2020

Advocates Praise D.C. Attorney General Suit Against Predatory High-Cost Rent-a-Bank Lender, June5, 2020

State Rate Caps for $500 and $2,000 Loans, February 2020, updated March 2021

Brief: FDIC/OCC Proposal Would Encourage Rent-a-Bank Predatory Lending, December 2019

Testimony of Lauren Saunders before the U.S. House Financial Services Committee on Rent-a-BankSchemes and New Debt Traps, Feb. 5, 2020

Op-Ed: Rent-a-bank schemes trample voters’ and states’ rights by Lauren Saunders, Feb. 8, 2018

Amicus Briefs

Below are some of the amicus briefs filed by NCLC and our partners on behalf of our low-incomeclients. In collaboration with national, state, and local organizations and attorney advocates, NCLCprovides guidance on a wide range of cases impacting low- to middle-income consumers and their

families.

Access to Justice || Civil Rights || Credit Reporting|| || Criminal Justice || ConsumerProtection & the CFPB || Debt Collection || Housing || Predatory Lending || RegulatoryEnforcement || Student Loans || TCPA

Access to Justice2020

Kauders v. Uber Technologies and Rasier LLC

NCLC and Public Justice filed an amicus brief urging the Massachusetts Supreme Court to confirmthat Massachusetts has just one test for contract formation—whether that contract includes a forumselection clause, an arbitration clause, neither, or (as here) both, and whether the contract waspurportedly formed on a computer, using a smartphone, or in the increasingly old-fashioned mannerof a signed paper document. Neither Cullinane nor Ajemian applied a heightened notice orreasonableness standard. Rather, they both correctly applied the single unitary standard for forminga contract under Massachusetts law—a standard that Uber’s rider registration interface fails tomeet.

On Jan. 4, the Massachusetts Supreme Judicial Court issued a major opinion about how contracts getformed online in the case of Kauders v Uber. The Court ruled that the same two-parttest—reasonable notice of contract terms and clear manifestation of assent to those terms—governsagreements consummated over computer or mobile device as for any other type of contract. Further,in applying that test to Uber’s user interface, the Court made several important observations aboutconsumer behavior and online terms of use. The Court found that Uber’s registration process did notform an enforceable contract under Massachusetts law based on lack of notice and overturned thepending order compelling arbitration of the issues presented in the case.

2019

China Agritech v. American Pipe & Construction Co. v. Utah

The Supreme Court held that “the commencement of a class action suspends the applicable statuteof limitations as to all asserted members of the class who would have been parties had the suit beenpermitted to continue as a class action.” The question presented in this appeal was whether theplaintiffs, whose individual claims were timely as a result of American Pipe tolling also may bringthose claims in a subsequent class action on behalf of all class members who also had timely claimsunder the American Pipe rule. The 9th Circuit said they could. NCLC, in an amicus brief prepared bythe Gupta Wessler law firm, joined AAJ in support of the plaintiff’s claim and seeking affirmation ofthe 9th Circuit’s ruling.

The Supreme Court ruled, however, that upon denial of class certification, a putative class membermay not, in lieu of promptly joining an existing suit or promptly filing an individual action,commence a class action anew beyond the time allowed by the applicable statute of limitations.

Franks v. Google

NCLC filed an amicus brief joined by U.S. PIRG. The issue presented was a challenge by a

professional objector and industry-based class action opponent to the approval of a pure cy pressettlement distribution. The agreement negotiated between Google and the consumer class in theunderlying breach of privacy case resulted in a more than reasonable damages figure. However,because of the enormous size of the class, it was economically infeasible to distribute the funds tothe class members. Therefore, all of the damages were allocated to appropriate non-profitorganizations. NCLC’s amicus brief focused on cy pres as a vital component for ensuring theenforceability of consumer laws and preserving their deterrent impact.

Based on a suggestion made by the Solicitor General in his submitted amicus brief, and discussed atthe oral argument in the case, however, the Supreme Court ultimately decided it should not reachthe merits of the appeal because there were substantial questions about whether any of theoriginally named plaintiffs had standing to sue in light of the standards established in Spokeo.Therefore, the Court never reached the cy pres issue but, rather, vacated the judgment of the NinthCircuit and remanded the matter for further proceedings on the standing issue.

Home Depot v. Jackson

NCLC submitted an amicus brief prepared by the Lieff Cabraser and Tousely Brain Stephens Lawfirms. The case raised a narrow, atypical issue: whether a third-party counter-defendant may removea case to federal court under the Class Action Fairness Act (“CAFA”), notwithstanding that thefederal court lacked subject matter jurisdiction over the original parties. The amicus brief providedthe Court with representative examples of fact patterns under which a counter-defendant wouldattempt to remove a case under CAFA, particularly when the target of a state-court debt collectionaction counterclaims that the underlying debt is invalid under state law. Class action counterclaimsarise in debt collection actions to dispute the merits of the debt itself. When one party avails itself ofstate court in an effort to collect another party’s fraudulent debt, we argued that it is notunreasonable to expect the latter to answer the charge that its debt is unlawful in that same forum.We stressed that Home Depot not only sought to change the way removal jurisdiction has worked ina radical manner, but would do so in a way that would impact the ability of consumers to raisemeritorious counterclaims in an efficient and fair manner.

The Supreme Court ultimately agreed. It held that a third-party counterclaim defendant may notremove a case to federal court — even if the counterclaim against the defendant is brought as aputative class action that otherwise satisfies the requirements for federal subject matter jurisdictionunder CAFA. In context, the Court stated, the term “defendant,” as used in 28 U.S.C. § 1441(a),means the defendant sued in the original complaint. The majority held that Section 1441(a) refers tothe removal of a “civil action” and that the “civil action” subject to removal is the action “defined bythe plaintiff’s complaint,” not a counterclaim later filed in that action. The only “defendant” entitledto remove, the Court thus concluded, is the defendant named in the original complaint. The majorityalso determined that construing the term “defendant” to have different meanings for purposes ofSection 1441 and CAFA would render the provisions “incoherent.”

2010

AT&T Mobility L.L.C. v. Concepcion

NCLC joined a dozen other advocacy organizations in a brief by the Legal Aid Society of the Districtof Columbia and NACA arguing that the Federal Arbitration Act does not prevent state contract lawfrom invalidating as unconscionable a contract providing that a consumer entering into the contracthas waived her right to a class action against the phone company.

The Supreme Court on April 27, in a highly anticipated decision in Concepcion sharply limited

consumer class actions. The court ruled that the Federal Arbitration Act (FAA) preempts the“Discover Bank” rule, finding unconscionable a contractual clause banning class relief. The Courtlimited FAA language that an arbitration agreement can be struck down “upon such grounds as existat law or in equity for the revocation of any contract.” The Discover Bank rule prohibited bans onclass-wide relief found in consumer adhesion contracts where damages are small and where theparty with superior bargaining power deliberately cheats large numbers of consumers out ofindividually small sums of money. Since this rule applies to bans on class relief both in court andarbitration, it is grounds for “the revocation of any contract.” The majority still struck it down asinconsistent with the FAA. The majority found that it was fundamental to arbitration that it bestreamlined and expeditious. The Discover Bank rule, by forcing class arbitration on an unwillingparty, negates the FAA requirement that arbitration agreements be enforceable as written. Classarbitration is inconsistent with FAA arbitration because it greatly increases the risks to defendants,requires arbitrators to make class certification judgments, and is slower, more costly and more likelyto generate procedural issues.

Wal-Mart Stores v. Dukes

NCLC joined in an amicus brief with the Consumers Union of the United States, Inc. and Center forConstitutional Rights. Although the case primarily concerns issues of employer wage discriminationagainst female employees, its implications for other class actions is enormous. The brief argues thatWal-Mart Stores, Inc. (“Wal-Mart”) was mistaken that a defendant has the right to individualhearings to determine the monetary relief owed by its discriminatory policies. This position wouldgut the class-action mechanism along with its intended efficiencies. Wal-Mart disregards widelyapproved techniques used to calculate monetary relief in class suits generally, and in employment-discrimination class actions specifically. Second, the employees’ experts on discrimination satisfiedthe requirements for expert testimony.

The Supreme Court found (9 to 0) that classes certified under Fed. R. Civ.P. 23(b)(2) cannot includeclaims for individualized monetary relief—in this case, backpay—at least where the monetary reliefis not incidental to injunctive or declaratory relief. Instead, the class should proceed under Rule23(b)(3) that contains additional requirements. The case’s other ruling (5-4 with the usual fiveconservative justices in the majority) found insufficient commonality where the class alleged thatthousands of Wal-Mart managers pursuant to a corporate culture had each discriminated against 1.5million female employees. While the decision contains broad and troubling language aboutcommonality, the unusually ambitious nature of the claims should limit the holding’s applicabilityregarding many consumer class actions.

Jackson v Rent A Center, Inc.

NCLC and Consumer Action joined in an amicus urging the Supreme Court to affirm the 9thCircuit’s decision and hold that unconscionability is a question for a court, rather than thearbitrator, to decide because judicial review of unconscionability challenges to arbitration clauses isnecessary to maintain the fairness and integrity of arbitration proceedings.

Civil Rights2019

Bostock v. Clayton County

NCLC, with 56 other civil rights organizations, joined an amicus brief prepared by The Lawyers’Committee for Civil Rights Under Law and The Leadership Conference on Civil and Human Rights,

filed in a trio of cases before the Supreme Court. These combined cases, which the Court willconsider next term, examine whether employment discrimination on the basis of sexual orientationand gender identity are covered under Title VII of the Civil Rights Act of 1964. The brief argues thatoutlawing job discrimination based on LGBTQ status is fully consistent with Title VII’s long history ofanti-discrimination achievements, as well as the statutory text that has made those successespossible. Furthermore, if Title VII does not bar LGBTQ discrimination, that will leave many LGBTQpeople of color vulnerable to workplace discrimination – an outcome contrary to Congress’paramount goal of ensuring equal access to employment opportunities for minorities. Since there arenearly two million LGBTQ people of color in America’s workforce, they are far more likely to sufferdiscrimination than their white counterparts. We argue, therefore, if Title VII is not construedaccording to its plain text so that it covers LGBTQ discrimination, such discrimination would gounchecked by federal law, and biased employers would have a convenient pretext for discriminatingagainst LGBTQ persons of color. It is thus impossible to carve out LGBTQ discrimination from TitleVII’s ambit without inflicting severe harm on countless employees of color.

State of New York v. U.S. Department of Commerce

NCLC joined with over 150 civil rights, grassroots, advocacy, labor, legal services groups in anamicus drafted by the Leadership Conference on Civil and Human Rights, The LeadershipConference Education Fund, Muslim Advocates, National Coalition on Black Civic Participation,National Association of Latino Elected and Appointed Officials and Wilmer Cutler Pickering Hale andDorr LLP.

The case involved a challenge by numerous states, local governments, and non-governmentalorganizations to the Secretary of Commerce’s announcement to add a citizenship question to the2020 census over the strenuous objection of the Census Bureau. The stakes are high and long-lastingas the decennial census endeavors to count every person residing in the US, regardless ofcitizenship status. The count is used to apportion political power at all levels of government, allocate$800 billion annually in federal funds, and affect policy and investment decisions by government andnon-government entities. The addition of a citizenship question threatened to undermine theintegrity of the population count by depressing the count for those who fear the government will usethe information against them, in particular noncitizens and immigrant communities of color. Theamicus brief challenged the defendants’ premise that the citizenship question has been a part of themodern census, as the question hasn’t been a part of the census since 1950 (before the passage ofthe Voting Rights Act). The amicus also argued that the plaintiffs had standing because thecitizenship question would lead to an undercounting which would result in a loss of federal funding.Finally, the amicus challenged the defendants’ assertion that the citizenship question was necessaryto enforce the Voting Rights Act.

The Supreme Court upheld that the Enumeration clause allows for a citizenship question to beadded to the Census, but stated that the decision to add this question is a reviewable action underthe Administrative Procedure Act (APA). The Supreme Court also agreed that the explanationprovided by the Commerce Department for the question was insufficient. The majority wrote thatunder the APA, it was expected that the Commerce Department would “offer genuine justificationsfor important decisions, reasons that can be scrutinized by courts and the interested public”, butthat the reason provided by the Commerce Department appeared to have been contrived and waspretextual. The Supreme Court, therefore, affirmed the District Court’s injunction prohibiting theaddition of the citizenship question until the Commerce Department is able to provide a satisfactoryexplanation for such an action.

Comcast v. NAAAOM

NCLC joined 20 other national civil rights organizations in an amicus brief filed by the LawyersCommittee for Civil Rights Under Law with the United States Supreme Court. The case concernsthe issue of whether a claim of race discrimination under 42 U.S.C. § 1981, a historic and criticalcivil rights law, fails in the absence of but-for causation. The brief seeks to detail how the applicationof a but-for analysis to claims brought under section 1981 could hinder access to the protectionsguaranteed by the statute and argues that the application of a but-for standard to establish claims ofintentional race discrimination would be inconsistent with the statute’s text, history, and purpose.

2017

Bank of America v. City of Miami

NCLC joined an amicus brief prepared by the Cohen Milstein law firm and also signed by theLawyers Committee for Civil Rights, NFHA, ACLU, the Poverty & Race Research Action Council, theLeadership Conference on Civil Rights and the Impact Fund, supporting the standing of the City ofMiami to assert discrimination claims against BOA and Wells Fargo under the FHA. The brief arguedthat standing under the FHA extends to municipalities not directly targeted by discrimination.Noting that racially discriminatory lending practices are a major cause of this country’s residentialsegregation, we asserted that the FHA was designed to address the systemic problems associatedwith such segregation and permits cities to seek redress for injuries caused by discriminatorypractices.

The Supreme Court ruled that the city’s claimed injuries fall within the zone of interests that theFHA arguably protects,” and, therefore, “the city is an ‘aggrieved person’ able to bring suit underthe statute.” The Court sent the case back to the 11th Circuit Court of Appeals after it “declined todecide whether the city had asserted a direct enough connection between the banks’ actions and theharm it claimed.”

Credit Reporting2020

Consumer Data Industry Association v. Frey, in his capacity as Acting Attorney General of theState of Maine

NCLC’s amicus brief was joined by Maine Equal Justice in support of the State of Maine. The briefargues the Fair Credit Reporting Act’s (FCRA) text and structure, as well as its legislative history,clearly indicate that Congress did not intend to enact a sweeping prohibition against all stateregulation of the contents of a consumer report. The policies underlying Maine’s Economic Abuseand Medical Debt Provisions are consistent with the goals of the FCRA, including accurate consumerreporting, and supplement already-existing provisions of federal law or codify existing practicesagreed to by the credit reporting industry. Maine passed the Economic Abuse Provision to alleviatethe damage to credit caused by economic abuse. It does not contradict the FCRA, but rathersupplements and streamlines procedures already available to survivors of economic abuse. BecauseMaine law now also prohibits collection of debts caused by economic abuse, prohibiting thereporting of these debts reflects the credit status of survivors more accurately. The net effect is theremoval of negative credit information when medical debt has been paid or settled in full and theappearance of positive credit data when medical debt is in repayment. These changes will in turnlead to higher credit scores that accurately reflect the financial status of a consumer.

Ramirez v. Transunion

The FCRA provides three core rights that allow consumers to ensure that information contained inconsumer reports is accurate: (1) a consumer must be informed when a consumer report is usedagainst them; (2) a consumer must be allowed to see what information their file contains; and (3)consumers have the right to dispute inaccurate information. These three rights work together, andwhen a consumer reporting agency (CRA) disregards one of these rights and fails to provide theconsumer the required notice detailing their rights, like TransUnion did here, the system designedby Congress breaks down. Under the FCRA, it is not enough to simply make the disclosure of theconsumer’s file. The disclosure must be clear and understandable to the consumer in order to allowthem to determine the accuracy of the information. TransUnion’s failure to comply with Section1681g(a) and Section 1681g(c) was not merely procedural or technical. Rather, this failure harmedconsumers’ concrete interests in knowing what is being reported about them and how to correcterroneous information.

Criminal Justice2021

BBBB Bonding Corporation v. Caldwell

NCLC joined Public Counsel, Community Legal Services in East Palo Alto, the Debt Collective, PublicLaw Center, Watsonville Law Center, and East Bay Community Law Center in submitting an amicusbrief to the California Court of Appeal in support of the respondents. The case concerns a bail bondcompany’s violation of the California requirement to notify co-signers—typically friends and familiesof the arrested person in this context—of their obligations when entering into a consumer creditcontract. The amicus brief, which asks the California Court of Appeal to affirm the trial court’spreliminary injunction, (1) outlines the consumer protection framework that contains the co-signernotice requirement, (2) highlights the importance of that statutory requirement for consumers,particularly in credit bail transactions and particularly for vulnerable communities of color, and (3)demonstrates how the bail bond company’s arguments that the credit bail business should beexempt from consumer protection laws that govern all consumer credit transactions in Californiawould vitiate the law.

2020

Scholl v. Mnuchin

NCLC joined a number of other national and California-based organizations in submitting an amicusbrief to the U.S. District Court for the Northern District of California in support of the plaintiffs’motion for preliminary injunction. The lawsuit challenged the Trump administration’s withholding ofCARES Act economic stimulus payments from incarcerated people. The amicus brief argued that,because the COVID-19 pandemic and incarceration are disproportionately affecting the sameeconomically vulnerable Black and Brown communities that have faced historical barriers toemployment, safe working conditions, and the ability to build emergency savings, withholding themuch-needed resources provided by the CARES Act would intensify preexisting inequities and causeirreparable harm to incarcerated people and their communities. The brief also explained how thecosts of incarceration, including the cost of jail and prison phone calls, contribute to the financialprecarity of incarcerated people and strip resources from communities of color and emphasized thatcriminal system-involved people are burdened by enormous financial costs including fines,restitution, debt from cash bail, and probation fees.

The district court ultimately granted the plaintiffs’ motion for preliminary injunction. In support ofits holding that the plaintiffs would be irreparably injured without an injunction, the court pointed to

the amicus brief that NCLC joined and emphasized that incarcerated people often cannot bear theentirety of the costs associated with acquiring basic necessities—food, hygiene, andcommunication—in prison, and that their families often must shoulder these costs. The court alsostated that the harms felt by recently released individuals are particularly acute as they faceuncertain employment as well as additional financial burdens and other collateral consequencesassociated with their time in prison.

Consumer Protection & the CFPB2020

Seila Law v. CFPB

NCLC’s amicus brief was joined by the Center for Consumer Law and Education Center (a jointpartnership between West Virginia University College of Law and Marshall University); the UCBerkeley Center for Consumer Law & Economic Justice; The Housing Clinic of the Jerome N. FrankLegal Services Organization at Yale Law School; Consumer Action; and Professor Craig Cowie (Asst.Professor of Law and Director of the Blewett Consumer Law & Protection Program at the Universityof Montana Alexander Blewett III School of Law). The brief supports the 9th Circuit’s ruling that theDodd-Frank Act provision providing that the Director of the CFPB only can be terminated by thePresident for-cause is constitutional. Because the CFPB has chosen to join the appellant’s challengeto its own management structure, the Supreme Court has appointed former Solicitor General PaulClement to defend the Court of Appeals’ decision. However, since that opinion found that the for-cause termination provision was valid the Court of Appeals did not reach the issue of remedy and,therefore, Mr. Clement has not addressed that issue either. However, the appellant, the CFPB (viathe current Solicitor General), and a number of their supporting amici have argued for variousoutcomes in the event that the provision is found to be unconstitutional, ranging from severance ofthe offending clause to the repeal of Dodd- Franks. NCLC’s brief, therefore, argues that if a remedynonetheless is necessary it only should entail the severance of the current “for-cause” terminationprovision (which, in essence, would result in an “at-will” termination status for the Director). Such aremedy would give effect to the express language of the Dodd-Frank Act’s severability clause andcomport with the traditional doctrine of severability that provides that a court should nullify no moreof a statute than is necessary. We also assert that undoing Congress’s sweeping restructuring offinancial regulation by eliminating the CFPB instead of severing the for-cause removal provisionwould contravene Congress’s intent to establish a sole federal regulator charged with stabilizing themarketplace and protecting consumers.

2018

Ohio v. American Express Co.

NCLC joined a brief also submitted on behalf of the U.S. Public Interest Research Group EducationFund, Inc., the Center for Responsible Lending, Consumer Federation of America, Consumers Union,the National Association of Consumer Advocates, and Public Citizen. The United States and severalstates sued Amex, claiming that its anti-steering provisions (i.e. merchants could not offer if theAmex card as a payment option unless they agreed not to steer customers towards other credit cardsthat provided better financial deals for the merchant) violate §1 of the Sherman Antitrust Act. TheDistrict Court agreed, finding that the credit-card market should be treated as two separatemarkets—one for merchants and one for cardholders—and that Amex’s anti-steering provisions areanticompetitive because they result in higher merchant fees. The Second Circuit reversed. Itdetermined that the credit-card market is one market, not two. The Court of Appeals concluded that

Amex’s anti-steering provisions did not violate federal antitrust law. Our brief was prepared by U.S.PIRG and the firm of Cohen, Milstein, Sellers & Toll and argued that American Express’s merchantrestraint suppresses price competition and thereby harm consumers. The Supreme Court affirmedthe Second Circuit ruling.

Debt Collection2020

Rotkiske v. Klemm

The key question presented in this case is whether the discovery rule applies to toll the Fair DebtCollection Act’s (“FDCPA”) one-year statute of limitations. NCLC filed its own amicus brief in whichwe argued that debt collection, which affects millions of Americans each year, often is accompaniedby deceptive or unfair practices, particularly by the third-party debt collectors that are subject to theFDCPA. We contended that the FDCPA was intended to curb such abuse, but that such a purposewould be impaired if consumers were not given a fair opportunity to pursue violations that goundetected when they occur. Therefore, we supported the proposition that the one-year statute oflimitations should not be construed as an absolute bar to claims that are brought beyond a year fromthe date of the violation.

In an 8-1 opinion authored by Justice Thomas, the Supreme Court ruled that, absent the applicationof an equitable doctrine, the statute of limitations in the FDCPA begins to run on the date on whichthe alleged violation occurs, not the date on which the violation is discovered. The Court recognized,however, the existence of a fraud-based discovery rule, although it found that Rotkiske failed toproperly make that fraud argument on appeal (contrary to the dissent filed by Justice Ginsberg). Weare disappointed that the discovery rule clearly will not apply in FDCPA cases as we argued, but wewere pleased that the Court did not change any of its jurisprudence regarding the availability ofequitable tolling of the applicable statute of limitations under appropriate circumstances.

2019

Obduskey v. McCarthy & Holthus, LLP

NCLC submitted an amicus brief in support of the consumer’s argument that non-judicialforeclosures are covered under the FDCPA, clarifying that mortgages are debts, the law firm inquestion was a debt collector, and the letter in question was in connection with the collection of adebt. The brief also analyzed the mechanics of Colorado foreclosure law and discussed the policyreasons for applying the FDCPA to non-judicial foreclosure.

The Supreme Court, however, affirmed the lower court ruling and held that a business engaged inno more than non-judicial foreclosure proceedings is not a “debt collector” under the FDCPA, exceptfor the limited purpose of enforcing security interests.

2017

Henson v. Santander

NCLC joined with NACA, Tzedek DC, The Legal Aid Society of the District of Columbia, and CivilJustice in an amicus brief to address the question whether a company that regularly attempts tocollect debts it purchased after the debts had fallen into default is a “debt collector” subject to theFair Debt Collection Practices Act. Our amicus builds upon one that we filed in the 4th Circuit,

which was authored by Dick Rubin and Joanne Faulkner. Dan Edelman is the lead author of thisversion of the brief. This amicus brief argues that the ruling below, holding that a bad-debtpurchaser is not subject to the FDCPA because the debt buyer is not seeking to collect “for another”(1) runs afoul of the principles of statutory construction; (2) is inconsistent with congressional intentand legislative history of the FDCPA; (3) is contrary to decades of guidance and enforcement actionsby the federal agency responsible for enforcing the FDCPA; and (4) would exempt the entire debtbuying industry and grant debt buyers a significant competitive advantage over other debt collectorswhose collection efforts must comply with the FDCPA, which would elevate form over substance andweave a technical loophole into the fabric of the FDCPA big enough to devour all of the protectionsCongress intended in enacting that legislation.

The Supreme Court decided, however, that Santander was not a debt collector under the FDCPA’ssecond definition of debt collector. The narrow opinion held that a debt buyer is not subject to theFDCPA as an entity regularly collecting debts “owed or due another,” leaving intact the alternativeapproach of showing that a debt buyer qualifies as a debt collector under the FDCPA because the“principal purpose” of its business is the collection of debts.

2016

Midland Funding v. Johnson

NCLC joined Public Citizen, the Legal Aid Society of DC and NACA in an amicus brief prepared byPublic Citizen in support of the respondent. The case presents two questions: (1) whether filing aproof of claim on a knowingly time-barred debt violates the FDCPA, and (2) whether any such claimunder the FDCPA is impliedly repealed by the Bankruptcy Code. The Public Citizen amicus briefargues: (1) The Court should affirm that a knowing attempt to collect time-barred debt violates theFDCPA, and (2) The least sophisticated consumer standard for assessing whether collection conductis deceptive or misleading under 15 U.S.C. 1692e should be applied to proof of claims in bankruptcy,not what a competent attorney or trustee would believe as argued by Midland Funding.

Sheriff v. Gillie

NCLC coordinated efforts in this FDCPA case to file an amicus brief prepared by Dick Rubin andDeepak Gupta that also was joined by Public Good and NACA. The issues presented are (1) Whetherspecial counsel – lawyers appointed by the Attorney General to undertake his duty to collect debtsowed to the state – are state “officers” within the meaning of 15 U.S.C. § 1692a(6)(C); and (2)whether it is materially misleading under 15 U.S.C. § 1692e for special counsel to use AttorneyGeneral letterhead to convey that they are collecting debts owed to the State on behalf of theAttorney General.

Our amicus focuses on the second issue, including rebutting Petitioner’s argument that the SupremeCourt should reject the least sophisticated consumer standard and instead adopt an “averageconsumer” standard.

2013

Marx v. General Revenue Corp

The court held that when a debt collector wins a Fair Debt Collection Act case brought by aconsumer that the consumer may be made responsible for the debt collector’s court costs,amounting to $ 5443, in this case. Previously most courts had held that the debt collector could onlyrecover its costs if it established that the consumer brought the suit in bad faith and for the purpose

of harassment. The debt collector must establish that to obtain the payment of its attorney fees bythe consumer.

2010

Jerman v. Carlisle

Debt collectors’ legal mistake in the language of a Fair Debt Collection Practices Act notice did notamount to a bona fide error defense letting the debt collector off the hook.

United Student Aid Funds, Inc. v. Espinosa

Argued that the Fair Debt Collection Practices Act’s bona fide error defense was not intended byCongress to apply to mistakes of law by debt collectors. Since the bankruptcy court’s error inconfirming a Ch. 13 plan discharging a portion of the student loan debt without first finding unduehardship in an adversary proceeding was not jurisdictional, the judgment was not void. Becausestudent loan creditor received actual notice of the filing, due process was met. The bankruptcycourt’s legal error in confirming the debtor’s plan absent a finding of undue hardship in anadversary proceeding did not render its judgment void. Bankruptcy courts presented with a planproposing the discharge of student loan debt without a determination of undue hardship in anadversary proceeding should not confirm such a plan, even if the creditor fails to object or to appearat the proceeding at all.

Housing2020

Massachusetts Fair Housing Center and Housing Works, Inc. v. U.S. Department ofHousing and Urban Development (HUD)

The National Consumer Law Center submitted an amicus brief in support of the Massachusetts FairHousing Center and Housing Works, Inc. motion for an order under postponing the effective date ofa rule issued by the Department of Housing and Urban Development (“HUD”), Implementation of theFair Housing Act’s Disparate Impact Standard (the 2020 rule) and for a nationwide preliminaryinjunction barring HUD from implementing the 2020 Rule until the Court has determined whetherthe 2020 Rule is valid. NCLC, as an expert in mortgage financing in general and specifically in issuesof mortgage discrimination, focused its attention on the impact the 2020 Rule would have on theeffective enforcement of the Fair Housing Act on behalf of African American and Hispanicmortgagors.

2015

Texas Department of Housing and Community Affairs v. The Inclusive CommunitiesProject, Inc.

NCLC filed an amicus brief with our colleagues at the ACLU in an appeal in the United StatesSupreme Court in which the disparate impact cause of action under the Fair Housing Act is beingchallenged. The brief is substantially similar to the amicus we filed in the Mt. Holly case prior to thatappeal being settled before a decision was handed down. It is one of approximately a dozen amicusbriefs being coordinated by a coalition of civil rights organizations, including NCLC, to be filed insupport of the appellee. The unique contribution of our amicus brief is that it focuses on disparateimpact as a vital tool for remedying the discriminatory lending practices that fueled the subprime

lending bubble and contributed to the current foreclosure crisis. The brief also argues that disparateimpact analysis is a crucial tool for stopping housing discrimination against domestic and sexualviolence victims. The Supreme Court subsequently upheld the decision of the 5th Circuit Court ofAppeals and ruled that disparate-impact claims are cognizable under the Fair Housing Act.

Jesinoski v. Countrywide Home Loans, Inc

NCLC and amici opposed the respondents’ argument that TILA rescission must be exercised by filinga lawsuit. Rescission gives homeowners the right to cancel a loan transaction for three days after aloan closing. Consumers can exercise this right simply by giving notice to the creditor. The plainlanguage of the statute unmistakably supports this position. Additionally, administrativeinterpretations from the Federal Reserve Board and judicial interpretations from the federal courtsof appeal support rescission through notice. The Truth in Lending Act gives a homeowner the rightto rescind a mortgage loan (other than a purchase-money mortgage) for up to three years if thelender failed to make certain key disclosures about the loan. Some courts had held that thehomeowner had to file suit in court within this three year period. The Supreme Court issued aunanimous decision, agreeing with our amicus brief that the only thing the homeowner has to dowithin the three-year period is notify the creditor that he or she is exercising the right to rescind.The Supreme Court also made another very helpful comment, stating that the consumer could returnthe net amount owing on the loan after rather than before rescinding. The right to rescind under theTruth in Lending Act has been one of the most important tools to fight predatory mortgage lending.This decision will make a difference for many homeowners.

2013

Mount Holly v. Mount Holly Citizens in Action

NCLC wrote the amicus brief with the ACLU and were joined on the brief by the National CoalitionAgainst Domestic Violence; NCRC; the National Center on Homelessness and Poverty; the NationalHousing Law Project; Public Citizen and the National Women’s Law Center. The Mt. Holly caseconcerns the application of the Fair Housing Act disparate impact discrimination cause of action in amunicipal zoning challenge by elderly African Americans and Hispanic Americans whose affordableresidences were consider “blighted” by their town and threatened with demolition to buildunaffordable housing. The case was settled by the parties and dismissed.

2012

First American v. Edwards

NCLC joined AARP, Center For Responsible Lending, and the National Consumers League in aamicus brief prepared primarily by Public Citizen, Inc., arguing that permitting Real EstateSettlement Procedures Act plaintiffs to seek statutory damages without proving their monetary lossdoes not undermine the values of the constitutional requirement of “standing” – that a plaintiff has areal stake in the suit.

The Court dismissed its decision to grant certiorari in Edwards v. First American. Corp. asimprovidently granted. In Edwards the Ninth Circuit held that a homebuyer had standing to assert aviolation of RESPA’s ban on referral fees and kickbacks against a title insurer even though thehomebuyer did not allege that she was overcharged as a result of the illegal conduct. The courtbased its decision on the text of RESPA and legislative history showing that Congress was concernedabout more than just the cost of settlement services. Kickbacks could affect a service provider’simpartiality and willingness to give professional advice. In doing so the Ninth Circuit followed

similar decisions from the Third and Sixth Circuits. No circuit courts have required economic injuryto establish standing under this section of RESPA.

Magner v. Gallaher

NCLC joined an amicus brief prepared by the Lawyers’ Committee for Civil Rights Under Law withother national civil rights organizations arguing that the Fair Housing Act properly is interpreted toauthorize disparate impact claims and that the Eight Circuit applied the correct burden-shiftingapproach to litigating disparate impact claims consistent with current practices and HUD’s proposedregulation. NCLC also consulted with the ACLU (which cites NCLC’s Credit Discrimination manualand references NCLC’s sub-prime mortgage discrimination disparate impact cases brought underthe Fair Housing Act) and the Department of Justice with regard to the preparation of the amicusbriefs they separately prepared.

The Fair Housing Act makes it unlawful “[t]o refuse to sell or rent after the making of a bona fideoffer … or otherwise make unavailable or deny, a dwelling to any person because of race, color,religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(a).

Plaintiffs are owners of rental properties who argue that Petitioners, municipal officials, violated theFair Housing Act by “aggressively” enforcing the City of Saint Paul’s housing code. According toRespondents, because a disproportionate number of renters are African-American, and Respondentsrent to many African-Americans, requiring them to meet the housing code will increase their costsand decrease the number of units they make available to rent to African-American tenants. Thedistrict court granted summary judgment for the City, and the Eighth Circuit reversed holding thatthe lessors should be allowed to proceed to trial because they presented sufficient evidence of a“disparate impact” on African-Americans.

The Supreme Court granted cert on the following critical questions presented:

Are disparate impact claims cognizable under the Fair Housing Act?1.If such claims are cognizable, should they be analyzed under the burden-shifting approach,2.under the balancing test, under a hybrid approach, or by some other test?

Predatory Lending2022

Opportunity Financial LLC v. the Department of Financial Protection and Innovationfor the State of California

NCLC joined the Center for Responsible Lending, California Reinvestment Coalition, ConsumerFederation of California, Public Law Center, and UC Berkeley Center for Consumer Law & EconomicJustice in an amicus brief supporting the California Department of Financial Protection andInnovation in its effort to stop Opportunity Financial from evading California’s interest rate lawsthrough rent-a-bank lending.

2020

People of the State of California, et al. v. The Federal Deposit Insurance Corporation(FDIC)

NCLC joined Center for Responsible Lending and the National Coalition for Asian Pacific American

Community Development in an amicus brief in People of the State of Calif. v. FDIC on the validity ofthe FDIC’s “Madden-fix” rule.

People of the State of California, Illinois, and New York v. The Office of theComptroller of the Currency and Brian P. Brooks

NCLC joined Center for Responsible Lending, East Bay Community Law Center, National Associationfor Community Asset Builders, and the National Coalition for Asian Pacific American CommunityDevelopment in support of the plaintiffs’ petition to the U.S. District Court for Northern California.

2010

Midwest Title Loans v. Mills

NCLC joined AARP, Consumer Federation Of America, Indiana Legal Services, Inc., and The SargentShriver National Center On Poverty Law in an amicus brief primarily prepared by Public Citizen andthe Center For Responsible Lending in support of the Indiana Attorney General’s certiorari petitionto the U.S. Supreme Court. Indiana, which regulates auto-title lending, sought to apply its law totitle loans made by Illinois lenders to Indiana residents when the loans were advertised in Indianaand the lenders registered liens in Indiana and repossessed cars in Indiana– but the loan contractsthemselves were signed over the border in Illinois. A lender brought a commerce clause challengeand was successful arguing that the Indiana law unlawfully interfered with interstate commerce:“The contract was, in short, made and executed in Illinois, and that is enough to show that theterritorial-application provision violates the commerce clause.”

Cert denied leaving intact the 7th Circuit decision that the Indiana law regulating car loans betweenIndiana consumers and Illinois car dealers unlawfully interfered with interstate commerce.

2008

Commonwealth of Massachusetts v. Fremont Investment & Loan, and FremontGeneral Corporation

NCLC joined AARP, Center for Responsible Lending, National Association of Consumer Advocates,and National Association of Consumer Bankruptcy Attorneys in an amicus brief vigorouslydisagreeing with Fremont’s claim that the Superior Court’s injunction “is flawed as a matter ofpublic policy.” Fremont’s lending practices exemplified the “immoral, unethical, oppressive, orunscrupulous” conduct prohibited as unfair by Chapter 93A. Milliken & Co. v. Duro Textiles, LLC,451 Mass. 547, 563 (2008).

The promise of subprime mortgage lending is simple: allowing persons without traditional access tocredit the opportunity to become homeowners and buildlong-term wealth. That promise, however, isfulfilled only when the subprime mortgage is backed by solid underwriting and includes fair termsthat the borrower will be able to meet over the long-term. Unfortunately, some subprime lendersdisregarded the underwriting process and the fairness of loan terms in focusing on short-termprofits that could be gained by catering to Wall Street’s insatiable appetite for subprime loans.Fremont singularly concentrated on the profits to be made by selling more and more loans to WallStreet.

Regulatory Enforcement2020

AMG Capital Management, LLC v FTC

NCLC, along with Professor Craig Cowie from the University of Montana Law School and the legalclinics at Berkeley, Yale, and West Virginia University Law Schools, filed an amicus brief with theSupreme Court in support of the respondent (FTC) asserting the district court’s exercise of its powerto award accounting remedies under Section 13(b) of the Federal Trade Commission Act, 15 U.S.C.53(b)(“Section 13(b)”), is consistent with longstanding notions of a court acting in equity to do“complete justice.”

Consumer redress through Section 13(b) actions, as envisioned by Congress and provided by thecourt, continues to protect American consumers and promote a fair marketplace. Stripping thecourts of their equitable power to provide redress would create perverse market forces that wouldexpose vulnerable populations to fraud while putting lawful market actors at a competitivedisadvantage.

Liu v. SEC

NCLC joined an amicus brief with Better Markets and CRL. The issue presented in Liu is whetherthe SEC has the ability to order disgorgement as a remedy in its cases under the explicit equitableauthority granted by its enabling statute. The certified the question whether, and to what extent, theSEC may seek “disgorgement” in the first instance through its power to award “equitable relief ”under 15 U. S. C. §78u(d)(5), a power that historically excludes punitive sanctions. The appellant’sargument, rejected by both the District Court and the 9th Circuit Court of Appeals, is thatdisgorgement is an unauthorized penalty rather than an equitable remedy. Our amicus briefsupports the position that disgorgement is, in fact, an equitable remedy which falls well within thebroad express powers granted to the agency by Congress. But it goes further in arguing that acontrary ruling would call into question similar remedies available to other agencies throughvirtually identical grants of equitable authority and jeopardize their enforcement efforts byeliminating critical options for effective relief. Without raising the issue directly in the amicus brief,we primarily are concerned that a bad opinion affecting our ability to exercise private rights ofaction under the ECOA, FHA and ERISA, among other consumer protection statutes, where NCLCoften relies upon disgorgement as a viable remedy and a necessary component for successfullycertifying a class The Supreme Court held that a disgorgement award that does not exceed awrongdoer’s net profits and is awarded for victims is equitable relief permissible under§78u(d)(5).

2012

National Meat Ass’n. v. Harris

NCLC joined in an amicus brief with Public Citizen, Center for Responsible Lending, AARP, PublicHealth Law Center and Consumer Federation of America in a case about whether the Federal MeatInspection Act expressly nullifies or preempts a particular California law. The amicus brief arguesthere is a presumption against federal laws preempting state laws. Although the main brief did notchallenge the presumption, the Chamber of Commerce’s amicus brief did challenge it. The SupremeCourt held that the California statute directly conflicted with the federal statute and was preemptedwithout having to address the presumption against preemption.

Student Loans2020

New York Legal Assistance Group v. Devos and U.S. Department of Education

Based on our extensive experience advocating for debt relief on behalf of low-income studentsharmed by abusive schools and consulting with legal aid attorneys across the country who representstudent borrowers, amicus writes to explain how the Department of Education’s 2019 Rulesarbitrarily and capriciously ignored congressional intent and its own prior justification forheightened student protections. Further, it ignored the experience of the students Congressintended the Higher Education Act to help. Legal aid organizations told the Department about theways in which schools deceive borrowers and the struggles borrowers face in getting relief. Insteadof reducing burdens for borrowers and increasing school oversight, the 2019 Rules not only rescindvirtually all of the student protections added by the 2016 Rules, they also give predatory schools afree pass to lie and cheat students, while saddling them with debt they will never be able to repay.

TCPA2020

Lindenbaum v. Realgy, LLC

The National Consumer Law Center submitted an amicus brief, joined by the Electronic PrivacyInformation Center, to the Sixth Circuit Court of Appeals challenging the district court’s decision toput hundreds of private and public enforcement actions at risk of unwinding. Robocallers who areresponsible for the hundreds of millions to billions of calls currently in dispute will be let off thehook for conduct that clearly violated the law. Robocallers will also be able to evade numerous FCCorders against future robocalling that are based on TCPA violations that occurred during thecovered period; this will cause harm to consumers for years to come. A decision to affirm the lowercourt’s decision would reward robocallers at the expense of consumers. This Court should insteadfollow the lead of Congress and the Supreme Court in ensuring the vigorous enforcement of TCPAprotections.

Facebook v. Duguid

The National Consumer Law Center submitted an amicus brief, joined by Consumer Reports and theConsumer Federation of America, to the U.S. Supreme Court in opposition to Facebook’s proposalthat the definition of an automated dialing system (ATDS) under the Telephone Consumer ProtectionAct (TCPA) encompass only equipment that generates and automatically dials random or sequentialtelephone numbers. If the Court agrees with Facebook, autodialed calls and texts to all cell phonesand the other protected lines will be virtually unstoppable–rendering the TCPA’s restriction onautodialing meaningless.

Barr v. American Association of Political Consultants

The National Consumer Law Center, the Consumer Federation of America, and Verizon filed a jointamicus brief in a case in which a group of robocallers is challenging the constitutionality of anexemption provision of the Telephone Consumer Protection Act (TCPA). The amicus brief does notsupport either party in the appeal. Nor does it take any position on the validity of the specific TCPAexemption at issue in the case. Rather the amici argue that the TCPA plays an integral role inprotecting the country’s communications customers as well as the communications system frombeing deluged by automated, unsolicited calls to mobile phones. The purpose of the statuterepresents a compelling interest sufficient to justify any narrow restrictions on speech inherent inprotecting consumers and the communications network from such calls. Therefore, minimalexceptions to the TCPA’s general protections should not in any way justify a ruling from the Court

that would undermine Congress’ ability to adopt the TCPA’s general prohibition on non-consented-tocalls to cellular phones.

2019

Salcedo v. Hanna

NCLC, joined by several consumer groups, prepared an amicus brief asking the 11th Circuit forrehearing en banc in Salcedo v. Hanna, ___ F.3d ___, 2019 WL 4050424 (11th Cir. Aug. 28, 2019).The case holds that a consumer lacked Article III standing under Spokeo to bring a class actionunder the TCPA against a firm that sent him, and thousands of other individuals, an unwantedtelemarketing text message. The opinion says that receipt of a single text message is not a concreteinjury, and some language in the opinion suggests that text messages, no matter their number, nevercause concrete injury. Our brief focused on the ways that the panel decision misinterpreted theTCPA and its history, and would harm consumers. Rehearing subsequently was denied.

2018

Marks v. Crunch San Diego

The National Consumer Law Center and the National Association of Consumer Advocates (NACA)filed a joint amicus brief as consumer protection organizations that work to protect consumers fromthe scourge of unwanted robocalls. The brief argues the Federal Communication Commission’s(FCC) pre-2015 orders are still in effect and are binding on Courts. The effect of ACA International v.FCC, 885 F.3d 687 (D.C. Cir. 2018), on three pre-2015 FCC orders interpreting the definition ofautomated telephone dialing systems (ATDS) under the TCPA, 47 U.S.C. § 227(a)(1), is critical to thisappeal but has not received thorough analysis in the other briefs. All three orders state, amongother things, that a system that dials numbers from a list is an ATDS.

2016

ACA International (Cavalry Portfolio Services) v. FCC

The National Consumer Law Center, the National Association of Consumer Advocates, ConsumersUnion, AARP, Consumer Federation of America, and MFY Legal Services are each non-profit filed ajoint amicus brief, drawing on extensive experience in consumer protection legal issues, includingthe financial impact of onerous policies and practices affecting consumers, and specifically, theburdens and intrusions of increasingly rampant automatically dialed “robocalls” and texts to cellphones. The amicus brief raised the following issues: the distressing—and sometimes financiallyperilous—impacts on consumers subjected to multiple unwanted and unconsented-to robocalls totheir cell phones. Amici support the FCC’s 2015 Order as an entirely legal and justifiedinterpretation of the TCPA, and appropriate safeguarding of consumers’ legal right to decide whoseautodialed and prerecorded calls and texts to their cell phones they will receive.

2011

Mims v. Arrow Financial Services, LLC

NCLC and the National Association of Consumer Advocates (NACA) urged the Supreme Court toreview a lower court decision denying a consumer the right to file their federal Telephone ConsumerProtection Act (TCPA) claim in a federal court by finding that Congress limited TCPA claims to statecourts. On June 27, 2011, the United States Supreme Court granted the petition for review. Oralargument for petitioners is scheduled for November 28, 2011.