January 07, 2019

2018 was another busy year for the Consumer Law Round-Up. Launched by the firm’s Consumer Law Practice, the blog updates readers on key developments within consumer law and provides insights that are relevant to companies and individuals that may be affected by the ever-increasing patchwork of federal and state consumer protection statutes. In 2018, the Consumer Law Round-Up featured posts by approximately 20 different authors on a wide array of topics. 

Below is a list of the Top 10 most popular posts of 2018. 

#1 SDNY Rules CFPB Unconstitutional, Creating Split of Authority and Raising New Questions

Since its inception, the Consumer Financial Protection Bureau (CFPB) has faced controversy over its structure as an independent agency headed by a single director who can be removed by the President only for cause. Critics have invoked the unitary executive theory to argue that the Constitution permits an agency to enjoy independence from at-will termination by the President only if the agency is headed by multiple commissioners, directors, or board members...Read more

#2 SEC Take on Tokens Clarifies Some Crypto Community Quandaries

In a June 14 speech, William Hinman, the SEC’s Director of the Division of Corporate Finance, began to place additional definition around the raging debate over whether digital assets, including tokens, are securities. Until that speech, much commentary had focused on the repeat statements by SEC officials that digital assets distributed in initial coin offerings (ICOs) are almost always securities in the SEC’s view, with the possible exception of widely disseminated cryptocurrencies like Bitcoin...Read more

#3 The Supreme Court Reaffirms the Reach and Force of the Federal Arbitration Act, This Time in Employment Cases

On May 21, 2018, the Supreme Court issued its long-awaited decision in the consolidated cases Epic Systems Corp. v. Lewis, No. 16-285; Ernst & Young LLP v. Morris, No. 16-300; and NLRB v. Murphy Oil USA, No. 16-307. In a 5-4 opinion by Justice Gorsuch, the Court held that courts must enforce arbitration agreements requiring employees to bring employment-related claims in individualized arbitration proceedings, and barring them from pursuing those claims...Read more

#4 Congress Upends CFPB’s Indirect Auto Lending Guidance, Spares Payday Lending Rule

On May 21, 2018, President Trump signed into law a resolution disapproving the CFPB’s guidance on Indirect Auto Lending and Compliance with the Equal Credit Opportunity Act. In that guidance, the CFPB expressed the view that certain indirect auto lenders—that is, lenders that coordinate with dealerships to provide auto loans to consumers—are subject to the Equal Credit Opportunity Act...Read more

#5 Recent Activity Brings Further Clarity to Cryptocurrency Enforcement

September saw a flurry of activity that will help further define the cryptocurrency regulatory landscape. The Financial Industry Regulatory Authority (FINRA) brought its first-ever crypto-fraud case and a court ruling by the US District Court for the Eastern District of New York gave backing to the view that digital assets will be viewed as securities. And, in two enforcements actions, the SEC branched out beyond actions against fraudulent crypto-schemes and went after crypto companies for...Read more

#6 Ninth Circuit Reaffirms Narrow Scope of Restitution Under California Consumer Protection Statutes

In the last three years, the Ninth Circuit and the California Court of Appeal have issued a pair of decisions clarifying that restitution under California’s consumer protection statutes is limited to the difference between the price a consumer paid for the product and the value the consumer received from that product—i.e., the “price premium” attributable to the defendant’s conduct...Read more

#7 Supreme Court to Examine Cy Pres Remedy in Google Privacy Case

In April, the Supreme Court granted certiorari to review a decision of the Ninth Circuit approving an $8.5 million class action settlement in which the majority of the settlement proceeds took the form of a cy pres award. Cy pres—which comes from a French expression meaning “as near as possible”—is an equitable doctrine that allows a court to direct unclaimed or non-distributable funds awarded as part of a class action settlement “to an entity whose interests lie ‘as near as possible’ to that group”...Read more

#8 October Term 2018 Preview: The Supreme Court’s Class Action Docket

The US Supreme Court’s new term kicked off in October when the court re-convened for its first oral argument since last April. The Supreme Court term features four cases of interest to the consumer law and class action bar. In Lamps Plus, Inc. v. Varela, a divided panel of the Ninth Circuit construed a provision stating that “arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings relating to my employment” to authorize class arbitration...Read more

#9 SDNY Extends RD Legal Funding Dismissal to the NYAG; CFPB Appeals

On September 12, 2018, Judge Loretta Preska of the District Court for the Southern District of New York dismissed the New York State Attorney General’s suit against RD Legal Funding, LLC, and related entities for allegedly defrauding individuals awaiting payouts from two separate funds—the September 11th Victim Compensation Fund of 2011 and the fund arising out of the NFL Concussion Litigation Settlement Agreement. The Court’s ruling demonstrates the potentially far-reaching...Read more

#10 Crypto Winter Continues With Ongoing Enforcement

Several recent “first of kind” enforcement proceedings continue the flurry of enforcement activity by regulators. In two settled proceedings, the SEC brought two cases for failure to register digital tokens as securities in connection with ICOs, without allegations of fraud. With such enforcement actions now commonplace, a “crypto winter” has clearly set in...Read more

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