The CFPB Rolls Out New Regulations for Debt Collection
By Amy Egerton-Wiley
Debt collectors have for years sought guidance on how and when digital messages could be sent to contact consumers. On Tuesday, the Consumer Financial Protection Bureau (CFPB) announced a notice of proposed debt collection regulations that would provide that guidance. The new regulations would expand the potential avenues by which debt collectors could contact consumers and would establish a host of other regulations that would alter debt collection practices. The proposed rulemaking announced by the CFPB is more than 500-pages long and would be the first substantive rules to interpret the Fair Debt Collection Practices Act, which regulates the debt collection industry.
The CFPB identified several main highlights that the proposed rulemaking would achieve, including establishing a bright-line rule limiting call attempts and telephone conversations, clarifying consumer protection requirements for certain consumer-facing debt collection disclosures, clarifying how debt collectors can communicate with consumers, prohibiting suits on time barred debts, and requiring communication before credit reporting.
The new regulations would allow debt collectors to expand methods of communicating with consumers, such as exploring WhatsApp or other online models. They also, however, restrict the abilities of debt collectors to contact consumers. For example, the proposed rules would cap the number of times a debt collector could call a consumer to seven times in one week, and once the debt collector reached the consumer, it would not be able to contact the individual again for another week. The bureau cited increased clarity and modernizing the legal regime as its goal for the new regulations.
The CFPB’s statement and proposed rules can be found here.
US Supreme Court Holds that Classwide Arbitration is Unavailable Unless the Parties Clearly Agree to It
By: Michael T. Brody, Gabriel K. Gillett, Howard S. Suskin and Adam G. Unikowsky
On April 24, 2019, the US Supreme Court issued its decision in Lamps Plus, Inc. v. Varela, No. 17-988, holding that classwide arbitration is not available unless clearly authorized by the parties. In a 5-4 decision authored by Chief Justice Roberts, the Court reasoned that when an arbitration agreement is ambiguous or silent about classwide arbitration, the parties have not actually agreed to it. As a result, the Federal Arbitration Act (FAA) does not allow a party to be forced into classwide arbitration based on an ambiguous agreement, even if state-law contract interpretation principles would construe ambiguity against the agreement’s drafter.
Lamps Plus is just the latest in a long string of victories for arbitration advocates. Building on prior decisions rejecting classwide arbitration in the consumer and employment contexts, the Court has now suggested that classwide arbitration is presumptively unavailable and that a clear expression of intent is required to overcome that presumption. The practical result is that classwide arbitration may only be available against corporate defendants that specifically subject themselves to it. And that may be a null (or very small) set, at least for companies that take the majority opinion’s view that classwide arbitration “‘sacrifices the principal advantage of arbitration—its informality—and makes the process slower, more costly and more likely to generate procedural morass than final judgment.’”
The Lower Courts Order Classwide Arbitration Based on an Ambiguous Contract
The Lamps Plus case began when a hacker obtained access to tax information for 1,300 Lamps Plus employees. The purloined information was used to file a fraudulent federal income tax return on behalf of one of company’s employees, Frank Varela. Varela then sued his employer in federal court, asserting state and federal claims on behalf of a putative class of employees whose tax information had been disclosed. Lamps Plus moved to compel individual arbitration based on an employment agreement Varela had signed, which said that “arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings relating to my employment.” The district court agreed that the language compelled arbitration but authorized arbitration on a classwide basis.
Lamps Plus appealed, and the Ninth Circuit affirmed. The panel recognized that the agreement did not expressly address classwide arbitration but found that failure rendered the agreement ambiguous rather than silent. Therefore, the panel found its decision was not controlled by Stolt-Nielsen S. A. v. Animal Feeds Int’l Corp., 559 U.S. 662 (2010), which held that a court may not compel classwide arbitration when an agreement is silent on the subject. Instead, the Ninth Circuit followed California law to construe the ambiguity against the drafter. Because Lamps Plus had drafted the ambiguous agreement, the court accepted Varela’s interpretation and allowed classwide arbitration.
The Supreme Court granted cert and reversed. The majority framed the central question as “whether, consistent with the FAA, an ambiguous agreement can provide the necessary ‘contractual basis’ for compelling class arbitration.” No, it held: “Class arbitration is not only markedly different from the ‘traditional individualized arbitration’ contemplated by the FAA, it also undermines the most important benefits of that familiar form of arbitration. The statute therefore requires more than ambiguity to ensure that the parties actually agreed to arbitrate on a classwide basis.” “Like silence,” the majority explained, “ambiguity does not provide a sufficient basis to conclude that parties to an arbitration agreement agreed to ‘sacrifice the principal advantage of arbitration.’” Nor can the doctrine of interpreting ambiguities against the drafter. In the majority’s view, that canon of construction is a rule of public policy that “is by definition triggered only after a court determines that it cannot discern the intent of the parties,” and therefore “cannot be applied to impose class arbitration in the absence of the parties’ consent.”
Justices Ginsburg, Breyer, Sotomayor and Kagan each wrote a dissent. Across nearly three times the number of pages as the majority, they contended that the Court lacks jurisdiction; the FAA is inapplicable for contracts where the parties had unequal bargaining power; classwide arbitration is not fundamentally different from bilateral arbitration; and neutral state-law rules of contract interpretation are not preempted by the FAA because they do not conflict with it.
What’s Next for Arbitration at the Court?
The Court’s pro-arbitration bent is by now well-known and well-established. Earlier this term, the Court surprised some by handing down unanimous decisions in two different arbitration cases. Lamps Plus demonstrates that the Court’s trend of issuing sharply divided, defendant-friendly arbitration decisions is not likely to change any time soon. The Court has not yet added any arbitration-related cases to its docket for October Term 2019, and no notable petitions are currently pending. But a footnote in Lamps Plus may light the way to at least one open issue the Court could address in the future: “whether the availability of class arbitration is a so-called ‘question of arbitrability,’” and is thus a gateway issue to be decided by a court rather than an arbitrator.
Jenner & Block has substantial experience in arbitration and class action disputes and appeals. Partner Adam Unikowsky represented the Retail Litigation Center as amicus curiae at the Supreme Court in Lamps Plus. Both Mr. Unikowsky and Associate Gabriel Gillett, members of Jenner & Block’s Appellate and Supreme Court Practice, have represented clients in cases involving arbitration and class actions across the country. Partners Michael Brody and Howard Suskin, co-chairs of Jenner & Block’s Class Action Practice Group, have represented many clients in efforts to enforce and limit arbitration clauses. Mr. Suskin serves as an arbitrator for the American Arbitration Association, FINRA, CBOE and NFA and has substantial experience interpreting the scope of arbitration clauses.
 -- S. Ct. --, 2019 WL 1780275 (Apr. 24, 2019).
 Slip op. 8.
 See id. at 9-12.
 Id. at 8 (quoting AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 348, 350 (2011)).
 Varela v. Lamps Plus, Inc., 2016 WL 9110161 (C.D. Cal. Jul. 7, 2016).
 Varela v. Lamps Plus, Inc., 701 F. App’x 670 (9th Cir. 2017).
 Slip op. at 6.
 Id. at 8 (quoting Concepcion, 563 U.S. at 348).
 Id. at 10-12.
 See New Prime v. Oliveira, 139 S. Ct. 532 (2019); Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524 (2019).
 See https://www.scotusblog.com/case-files/terms/ot19/.
 See https://www.scotusblog.com/case-files/petitions-were-watching/.
 Slip op. at 9 n.4 (citing Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 569, n. 2 (2013)).
En Banc Ninth Circuit Rejects Compelled-Commercial Speech Ordinance on First Amendment Grounds
By: Gabriel K. Gillett
Last week the en banc Ninth Circuit unanimously struck down San Francisco’s ordinance requiring warnings on ads for certain sugary beverages as a violation of the First Amendment. In American Beverage Ass’n v. City and County of San Francisco, No. 16-16072, the court held that the Ordinance is an “unjustified or unduly burdensome disclosure requirement [that] might offend the First Amendment by chilling protected commercial speech.” Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985). (Jenner & Block filed an amicus brief in the case, on behalf of the Retail Litigation Center.)
Four of the eleven judges who participated joined three special concurrences, however, explaining why they believed the majority had erred even though it reached the right result. Those three concurrences highlight a number of issues related to commercial speech for courts to address in the wake of the Supreme Court’s decision in National Institute of Family & Life Advocates v. Becerra (NIFLA), 138 S. Ct. 2361 (2018).
San Francisco’s “Sugar-Sweetened Beverage” Ordinance
The American Beverage Association v. City and County of San Francisco centers on a 2015 ordinance that required ads for certain “Sugar-Sweetened Beverages” to include the following: “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.” Slip op. 8.
“Sugar-Sweetened Beverages” were defined as “any Nonalcoholic Beverage sold for human consumption, including, without limitation, beverages produced from Concentrate, that has one or more added Caloric Sweeteners and contains more than 25 calories per 12 ounces of beverage.” Id. at 9. The definition did not include “drinks such as milk, plant-based milk alternatives, natural fruit and vegetable juices, infant formulas, and supplements.” Id.
The warning, which was required to take up 20% of the ad space, was mandated on “any advertisement, including, without limitation, any logo, that identifies, promotes, or markets a Sugar-Sweetened Beverage for sale or use that is any of the following: (a) on paper, poster, or a billboard; (b) in or on a stadium, arena, transit shelter, or any other structure; (c) in or on a bus, car, train, pedicab, or any other vehicle; or (d) on a wall, or any other surface or material.” Id. The warning was not required on: “periodicals; television; electronic media; SSB containers or packaging; menus; shelf tags; vehicles used by those in the business of manufacturing, selling, or distributing SSBs; or logos that occupy an area of less than 36 square inches.” Id.
Plaintiffs challenged the ordinance, arguing that it was misleading, placed an undue burden on commercial speech, and was not rationally related to a substantial government interest. Id. at 10. The district court rejected the challenge and denied a preliminary injunction. A panel of the Ninth Circuit reversed. Then the full court agreed to hear the case en banc. Id. at 10-11.
The En Banc Court Unanimously Holds That The Ordinance Is An Undue Burden On Commercial Speech.
In a decision by Judge Susan Graber, the en banc court unanimously agreed with the panel and reversed the district court’s denial of a preliminary injunction. The court relied heavily on National Institute of Family & Life Advocates v. Becerra (NIFLA), 138 S. Ct. 2361 (2018), where the Supreme Court provided a framework for analyzing First Amendment challenges to government-compelled speech.
In the majority opinion, the court held that:
Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) “provides the appropriate framework to analyze a First Amendment claim involving compelled commercial speech—even when the government requires health and safety warnings, rather than warnings to prevent the deception of consumers.” Slip Op. 14.
To pass scrutiny under Zauderer, compelled disclosure notice must be “(1) purely factual, (2) noncontroversial, and (3) not unjustified or unduly burdensome.” Id.
“Defendant has the burden,” including to prove “that the warning is neither unjustified nor unduly burdensome.” Id. at 15.
The court’s decision in CTIA–The Wireless Ass’n v. City of Berkeley, 854 F.3d 1105 (9th Cir. 2017), which had been vacated and remanded in light of NIFLA, had been correctly decided.
Rational-basis review, not intermediate scrutiny, applies “for situations in which speech is restricted or prohibited.” Slip op. 12-14.
“Zauderer provides the appropriate framework to analyze a First Amendment claim involving compelled commercial speech—even when the government requires health and safety warnings, rather than warnings to prevent the deception of consumers.” Id. at 14.
The requirement that the warning cover 20% of the advertisement “is not justified when balanced against its likely burden on protected speech” because the record showed that “a smaller warning—half the size—would accomplish Defendant’s stated goals.” Id. at 15-16.
The court stressed that it did “not hold that a warning occupying 10% of product labels or advertisements necessarily is valid, nor … that a warning occupying more than 10% of product labels or advertisements necessarily is invalid.” Id. at 16-17.
Rather, the court held “only that, on this record, Defendant has not carried its burden to demonstrate that the Ordinance’s requirement is not ‘unjustified or unduly burdensome.’” Id.
Having found that Defendants could not show that the “Ordinance’s requirement is not ‘unjustified or unduly burdensome,’” the court opted not to “decide whether the warning here is factually accurate and noncontroversial.” Id. at 16-17.
Three Concurrences, Joined By Four Judges, Highlight Sharp Disagreement About How To Evaluate Compelled Commercial Speech After NIFLA.
Disagreement lurked behind the unanimous en banc decision. Three special concurrences, joined by four of the eleven judges, explained why the majority had erred even though it had reached the right result.
The US Supreme Court Allows Collection of State Sales Tax From Remote Sellers
Judge Sandra Ikuta concurred in the judgment but dissented from “most of the reasoning” because she believed the “majority fails to follow [NIFLA’s] analytical framework and makes several crucial errors.” Slip op. 18.
Judge Ikuta argued that the court misapplied NIFLA by not first determining whether Zauderer applied (which she found it did not because the warning was not factual or uncontroversial and was unduly burdensome) and then striking down the ordinance under heightened scrutiny. Id. at 18, 24-29.
Judge Ikuta also argued that the majority should not have created “a First Amendment exception for government-compelled health and safety warnings,” because in her view NIFLA held only the “‘health and safety warnings long considered permissible’ would be excepted.” Id. at 25-26.
Judge Morgan Christen, joined by Chief Judge Sidney Thomas, concurred in part and concurred in the judgment.
Judges Christen and Thomas agreed “that Zauderer’s framework applies to the government-compelled speech at issue” and “that the district court’s decision must be reversed.” Id. at 29.
Judges Christen and Thomas would have held that San Francisco could not show that the speech it sought to compel was “purely factual”—because it was not literally accurate and could be misconstrued—rather than “jump[ing] straight to asking whether the proposed warning is ‘unjustified or unduly burdensome.’” Id. at 29-36.
Judges Christen and Thomas emphasized that “[w]hen the government takes the momentous step of mandating that its message be delivered by private parties, it is exceptionally important that the compelled speech be purely factual.” Id. at 36.
Judge Jacqueline Nguyen concurred in the judgment but “disagree[d] with the majority’s expansion of Zauderer’s rational basis review to commercial speech that is not false, deceptive, or misleading.” Id. at 38.
Judge Nguyen would have held that Zauderer’s rational-basis test applies only to deceptive or misleading speech, not all regulations requiring public health disclosures. Id. at 38-40.
By Adam G. Unikowsky and Leonard R. Powell
On June 21, 2018, the US Supreme Court issued its much-anticipated decision in South Dakota v. Wayfair, Inc., No. 17-494. In a 5-4 opinion by Justice Kennedy, the Court held that the Dormant Commerce Clause does not bar a state from requiring an out-of-state seller lacking in-state physical presence to collect and remit sales tax. In reaching this conclusion, the Court took the unusual step of overruling two of its own prior opinions: National Bellas Hess, Inc. v. Department of Revenue of Illinois, 386 U.S. 753 (1967), and Quill Corp. v. North Dakota, 504 U.S. 298 (1992). The Court held that stare decisis was an insufficient basis to uphold a rule it viewed as anachronistic, particularly in light of the explosive growth of e-commerce.
Wayfair is a major victory for states, who can now collect tax from out-of-state sellers and brick-and-mortar retailers, subjecting the latter to the same tax burdens as their online competitors. Wayfair, however, does not hold that all tax regimes will pass constitutional muster. To the contrary, it holds that such regimes will be subject to traditional Dormant Commerce Clause doctrines designed to prevent undue burdens on interstate commerce.
Wayfair's issue was one the Court had decided twice before. In Bellas Hess, the Court held that states could not impose sales tax collection obligations on out-of-state sellers who relied solely on the mail and common carriers to deliver their goods because the sellers “lacked the requisite minimum contacts with the State required by both the Due Process Clause and the Commerce Clause.” In Quill, the Court overruled Bellas Hess’s due process holding, but reaffirmed Bellas Hess’s holding that the Dormant Commerce Clause forbids the imposition of sales tax collection obligations on sellers lacking an in-state physical presence. In a concurring opinion, Justice Scalia, joined by Justices Kennedy and Thomas, emphasized that his vote was based solely on stare decisis.
As the Court noted in Wayfair, criticism of Quill began as soon as it was decided. The Court pointed to one scholar’s view that Quill was “‘premised on assumptions that are unfounded’ and ‘riddled with internal inconsistencies.’” It further explained that “[e]ach year, the physical presence rule be[came] further removed from economic reality and result[ed] in significant revenue losses to the States.”
Against this background, South Dakota enacted the tax at issue, requiring out-of-state sellers to collect and remit sales taxes—with several caveats. First, the tax applied only to sellers with more than $100,000 of annual sales or more than 200 separate transactions in the state in a single year. Second, the tax had no retroactive application. Third, the tax’s application was stayed until its constitutionality was clearly established.
Seeking to establish the tax’s constitutionality, South Dakota then filed a state declaratory judgment action against Wayfair, Inc., Overstock.com, Inc. and Newegg, Inc. As contemplated by the statute and as requested by the state in its pleadings, the trial court granted summary judgment to the online retailers on the grounds that the issue had been decided in Bellas Hess and Quill. The South Dakota Supreme Court affirmed for the same reason.
The Court Discards the Physical Presence Rule
In a 5-4 decision, the Supreme Court reversed the lower court ruling, holding that the Commerce Clause does not foreclose the collection of state sales tax from remote sellers merely because they lack an in-state presence. The majority opinion—written by Justice Kennedy and joined by Justices Thomas, Ginsburg, Alito and Gorsuch—began by noting that “[a]ll agree that South Dakota has the authority to tax these transactions” under the Due Process Clause. But the Court explained that the Dormant Commerce Clause also forbids states from imposing sales tax obligations on sellers unless the sellers have “a substantial nexus with the taxing State”—and in Bellas Hess and Quill, the Court held that a “substantial nexus” requires in-state physical presence.
The Court rejected those holdings, concluding that a seller could have a “substantial nexus” to a state even without a physical presence. It observed that there exists a close relationship between “[t]his nexus requirement” and the minimum-contacts test imposed by the Due Process Clause. And although the two inquiries are not exactly the same, they are not so different as to justify different treatment. Because Quill had already recognized that due process does not impose a physical presence rule, the Court held that the Commerce Clause does not, either.
The Court also emphasized that the physical presence rule was inconsistent with the purpose of the Dormant Commerce Clause. The Dormant Commerce Clause, after all, was meant to prevent states from engaging in “economic discrimination.” But the physical presence rule had become a source of economic discrimination, “guarantee[ing] a competitive benefit to certain firms simply because of the organizational form they choose.” Worse still, the Quill rule “produces an incentive to avoid physical presence in multiple States,” thwarting the Dormant Commerce Clause’s goal of promoting interstate commerce. The Court also pointed out that Quill itself had “acknowledged that the physical presence rule is ‘artificial at its edges.’” In the Court’s opinion, “modern e-commerce does not align analytically with a test that relies on the sort of physical presence defined in Quill.” The Court found it “not clear why a single employee or a single warehouse should create a substantial nexus while ‘physical’ aspects of pervasive modern technology should not.”
The Court emphasized that the Quill rule “is not just a technical legal problem,” but also “an extraordinary imposition by the Judiciary on States’ authority to collect taxes and perform critical public functions.” The Court pointed to Wayfair’s advertising touting the fact that Wayfair does “not have to charge sales tax” and characterized that advertising as a “subtle offer to assist in tax evasion.” The Court concluded that the “physical presence rule … has limited States’ ability to seek long-term prosperity and has prevented market participants from competing on an even playing field.”
Finally, the Court concluded that stare decisis did not warrant retaining the Quill rule. The Court emphasized that the “Internet’s prevalence and power have changed the dynamics of the national economy” and that “[a]ttempts to apply the physical presence rule to online retail sales are proving unworkable.”
The Court concluded that under the “substantial nexus” test, South Dakota’s statute passed constitutional muster: “the nexus is clearly sufficient based on both the economic and virtual contacts respondents have with the State.” The Court remanded for further consideration of whether “some other principle in the Court’s Commerce Clause doctrine might invalidate the Act,” while emphasizing that “South Dakota’s tax system includes several features that appear designed to prevent discrimination against or undue burdens upon interstate commerce.”
Justice Thomas filed a concurring opinion, emphasizing that his views had changed since Quill and expressing disagreement with the Court’s entire body of Dormant Commerce Clause jurisprudence. Justice Gorsuch also filed a concurring opinion questioning the Court’s Dormant Commerce Clause cases. Chief Justice Roberts, joined by Justices Breyer, Sotomayor and Kagan, dissented. While agreeing that Bellas Hess was wrongly decided, he concluded that stare decisis warranted adhering to that precedent. He emphasized the importance of e-commerce to the national economy and concluded that a change to settled law “with the potential to disrupt the development of such a critical segment of the economy should be undertaken by Congress.”
Wayfair is a landmark decision that reshapes decades of settled tax law. But Wayfair will not be the last word in this controversial area. First, the Court observed that state tax laws would still be subject to traditional Dormant Commerce Clause principles barring “discrimination against or undue burdens upon interstate commerce.” The Court explained that several features of the South Dakota law were “designed to prevent” such burdens, including the safe harbor for those who transact limited business in South Dakota; the absence of retroactive tax collection obligations; and a standardized tax administration regime designed to reduce administrative and compliance costs. But the Court did not resolve whether other state laws, lacking these features, may be vulnerable to Dormant Commerce Clause challenges. Moreover, the Court observed that “Congress may legislate to address these problems if it deems it necessary and fit to do so.” Whether Congress takes up that offer remains to be seen.
To learn more about the implications of this case, please contact the authors or a member of Jenner & Block's national, state and local tax practice group.