On August 17, 2017, the Consumer Financial Protection Bureau (CFPB) and 12 state attorneys general (the Government) filed proposed settlements with Aequitas Capital Management, a now-defunct private equity firm, in connection with loans that Aequitas funded for students of another bankrupt entity, Corinthian Colleges, Inc. The settlements follow the Government’s allegations that Aequitas engaged in “unfair, deceptive, or abusive acts or practices” (UDAAP) under Dodd-Frank and under similar state statutes targeting “unfair and deceptive acts and practices” (UDAP). Corinthian, formerly one of the largest for-profit colleges in the country, suffered a total collapse in 2015 following enforcement actions by both the US Department of Education (ED), for alleged violations of its rules, and the US Securities and Exchange Commission (SEC), for alleged securities fraud. Aequitas itself is currently in receivership following SEC allegations of securities fraud and of Aequitas operating in a “Ponzi-like fashion.”

In a concise panel ruling (CFPB vs. Accrediting Council for Independent Colleges and Schools) that no doubt stings for the Consumer Financial Protection Bureau (CFPB), the US Court of Appeals for the DC Circuit has held that the CFPB failed to provide adequate notice of the purpose of a civil investigative demand (CID) it issued to an accrediting group for for-profit colleges, and has accordingly declined to enforce the CID.

The unanimous decision of the DC Circuit panel comes just a day shy of a year after a district court found that the CID was a “bridge too far.” As we reported at the time, that court also declined to enforce the CID.

In a rare judicial rebuke of the Consumer Financial Protection Bureau’s (CFPB’s) oft-criticized efforts to seek penalties despite no damages for allegedly “unfair, deceptive, or abusive acts or practices” (UDAAP) conduct, the US District Court for the District of North Dakota in CFPB v. Intercept Corporation has dismissed without prejudice a complaint (Complaint) filed by the CFPB against Intercept (a third-party payment processor for payday and title lenders and debt collectors) and two of its officers for failure to state a plausible claim under Fed. R. Civ. P. 12(b)(6).

District Court Decision

The district court held that the CFPB failed to allege any facts suggesting that consumers were injured or likely to be injured by Intercept, or that any potential injury was not counterbalanced by benefits to the consumers in the matter. Accordingly, there was a failure of the most basic form of notice pleading, and the Complaint was dismissed.
While the CFPB may refile its Complaint, one may presume that a sophisticated federal agency like the CFPB is aware of its Rule 12 notice obligations and did what it could to file an actionable complaint in the first place.

Pushing the limits of its already broad and undefined consumer protection authority, the Consumer Financial Protection Bureau (CFPB) issued a Consent Order stating that MasterCard and UniRush, a prepaid card issuer, have engaged in “unfair acts or practices” by failing to conduct adequate testing and preparation for the conversion of UniRush’s RushCard prepaid card onto the Mastercard Payment Transaction Services (MPTS) platform. The CFPB has required the two respondents to pay $10 million in consumer restitution and $3 million in civil penalties, and to create a plan to avoid such problems in the future.

According to the consent settlement reached by MasterCard and UniRush, when technical problems arose during the transfer of RushCard’s operating platform to the MPTS platform in October 2015, many consumers who rely on RushCard for services such as direct deposit of their payroll were unable to access funds in a timely manner. In announcing the action, CFPB Director Richard Cordray stated that this failed systems conversion falls under the CFPB’s authority to penalize unfair, deceptive, and abusive acts and practices (UDAAP) under operative provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act). The CFPB press release announcing the action put the matter prosaically, saying, among other things, that the respondents “botched the processing of deposits and payments” during the conversion.