Last September, we reported on a 2-1 Ninth Circuit decision holding that even if an arbitration clause appears to be unenforceable under the prospective waiver doctrine, a delegation provision requiring the arbitrator to decide that issue in the first instance is still enforceable. Brice v. Haynes Invs., LLC, 13 F.4th 823 (9th Cir. 2021). This decision reversed the district court’s order denying defendants’ motion to compel arbitration. Because the district court action was not stayed pending the appeal, it proceeded through class certification and pretrial motions. The Ninth Circuit now has vacated the panel decision and decided to rehear the case en banc.
Financial Services
Litigation Between FinTech Companies Follows Class Action Over Cryptocurrency Theft
This past week, co-defendants in a class action related to the theft of cryptocurrency engaged in their own lawsuit over alleged security failures. IRA Financial Trust, a retirement account provider offering crypto-assets, sued class action co-defendant Gemini Trust Company, LLC, a crypto-asset exchange owned by the Winklevoss twins, following a breach of IRA customer accounts. IRA claims that Gemini failed to secure a “master key” to IRA’s accounts, and that hackers were able to exploit this alleged security flaw to steal tens of millions of dollars of cryptocurrency. This lawsuit demonstrates the growing trend of cryptocurrency thefts resulting from cyber breaches, and ensuing litigation activity.…
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A Closer Look: Arbitration Clauses Added to Account Agreements Face Risks After Supreme Court Declines Review of Sixth Circuit’s BB&T Decision
The Supreme Court recently declined to review the Sixth Circuit’s decision in Sevier County Schools Federal Credit Union v. Branch Banking & Trust Co., 990 F.3d 470 (6th Cir. 2021), which presents a potential challenge to enforcing arbitration clauses added to standard account agreements. The cert denial serves as a reminder that companies introducing arbitration agreements should take care to follow all contractual change-of-term requirements and create a record of affirmative customer assent whenever possible.…
Bank Partnership Attacked (Again) Under True Lender Theory
A bank partnership is the target of yet another “true lender” attack in a new class action filed last week. Michael v. Opportunity Fin., LLC, No. 1:22-cv-00529 (W.D. Tex. June 1, 2022). The lawsuit is aimed at the lending partnership between OppFi (a fintech) and FinWise Bank (its bank partner), which was also the target of a recent investigation by California’s banking regulator and another class action earlier this year. This latest development cements a growing trend of true lender attacks after Congress repealed a regulation on the topic last year, dashing hopes of a uniform and predictable standard to identify the “true lender” in bank partnerships.…
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Lawsuit Takes Aim At Fintech’s Handling Of PPP Loan Forgiveness Applications
A recent lawsuit seeks to hold a fintech company liable for failing to adequately service loans made as part of the Paycheck Protection Program (PPP), marking what may be the first putative class action lawsuit challenging the manner in which PPP lenders process loan forgiveness applications.…
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Emotional Distress Is Not Good Enough for Standing in the Seventh Circuit
The Seventh Circuit recently gave defendants another arrow in their quiver to use when arguing that plaintiffs lack Article III standing to assert claims for violations of federal laws, even when the plaintiff demonstrated that she suffered emotional distress as a result of those violations.…
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Ninth Circuit Narrowly Interprets Scope of FCRA Disclosure Obligation
The Ninth Circuit recently rejected an interpretation of the Fair Credit Reporting Act’s disclosure obligation that would have significantly expanded what information credit reporting agencies (CRAs) must disclose upon consumer request.…
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Fintech Lawsuit Highlights True Lender Risk for Bank Partnership Lending Model
In the wake of rulings upholding federal regulators’ “valid when made” rules, a new lawsuit serves as a reminder that state regulators and class-action plaintiffs’ lawyers may continue to challenge the bank partnership lending model under the “true lender” doctrine.…
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A Closer Look: Overdraft Fees Continue to Invite New Legal Challenges and Regulatory Scrutiny
Class-action litigation involving overdraft and nonsufficient funds charges is nothing new to many financial institutions. But in recent years, plaintiffs’ lawyers have shifted tactics and changed the types of practices they are targeting. Financial regulators have also signaled their intention to place increased focus on these charges. Financial institutions should therefore re-examine their account agreements and overdraft disclosure materials to ensure they minimize risk and exposure.…
A Closer Look: Federal Court Upholds OCC’s & FDIC’s Valid-When-Made Rules
Delivering a significant win for the financial services industry, a California federal judge upheld “valid when made” rules promulgated by the Office of the Comptroller of the Currency (OCC) and the Federal Deposit Insurance Corporation (FDIC) in California v. OCC, No. 4:20-cv-05200 (N.D. Cal. Feb. 8, 2022) and California v. FDIC, No. 4:20-cv-05860 (N.D. Cal. Feb. 8, 2022). Those rules sought to undo the Second Circuit’s 2015 decision in Madden v. Midland Funding—a decision that class-action plaintiffs’ lawyers and state regulators have invoked to bring lawsuits challenging so-called “rent-a-bank” schemes between banks and third parties. The rules were finalized in June and July 2020, and established a bright-line rule that the interest rate charged on a bank-made loan may still be charged after the loan is sold to a third party.…
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