Alaska Supreme Court holds that foreclosure is "debt collection" covered under the FDCPA

Joining a growing consensus of appellate courts that have addressed this issue in recent years, the Alaska Supreme Court held last week that foreclosure counts as "debt collection" and therefore firms in the business of foreclosing on homeowners are "debt collectors" subject to the restrictions of the FDCPA. As the court explained, "foreclosing on property, selling it, and applying the proceeds to the underlying indebtedness constitute one way of collecting a debt." This is an important victory for consumers; a contrary interpretation would leave a gap in the FDCPA's coverage. (The case was litigated by the firm of our blog's own Deepak Gupta.)

You can read the decision here.

FCC describes proposed limits on government robocalls

The Hill reports:

Government debt collectors could only robocall a person three times per month and would have to stop calling when asked to do so, according to a draft proposal at the Federal Communications Commission. 

The FCC released more details of the draft proposal circulated among the commissioners last month. The new details were included in a series of letters to members of Congress, who opposed a new exemption for government debt collectors and urged the FCC to at least create strict limits on those robocalls.

The full article is here.

FCC chairman proposes new rule on internet choice, security, and privacy

Federal Communications Commission Chairman Tom Wheeler has circulated for consideration by the full Commission a Notice of Proposed Rulemaking "to ensure consumers have the tools they need to make informed choices about how and whether their data is used and shared by their broadband providers." The proposal would apply the privacy requirements of the Communications Act to broadband internet access service.

Chairman Wheeler's fact sheet explains that "Consumers should have effective control over how their personal information is used and shared by their broadband service providers. Telephone networks have had clear, enforceable privacy rules for decades, but broadband networks currently do not. Chairman Wheeler’s proposal to protect consumer privacy is built on three core principles – choice, transparency and security."

The Daily Dot has this summary and reactions.

The proposal will be voted on by the full Commission at the March 31 Open Meeting, and, if adopted, would be followed by a period of public comment.

DC Court of Appeals Holds That Winning Anti-SLAPP Defendant Presumptively Gets Attorney Fees

Resolving an ambiguity in the District of Columbia's Anti-SLAPP law, the DC Court of Appeals held today in Doe No. 1 v. Burke that a defendant who succeeds in a special motion to quash a subpoena for the defendant's identifying information is presumptively entitled to have attorney fees awarded, absent special circumstances rendering such an award unjust.

The issue arose because the fees provision of the anti-SLAPP law simply says that a court "may award" fees to a prevailing defendant, while specifying that a prevailing plaintiff who defeats a special motion can get an award of fees only if the filing of the anti-SLAPP motion was frivolous.  The superior court (whose denial of the Doe defendant's special motion to quash had been overturned by the court of appeals in 2014) denied fees, reasoning that it had broad discretion to award fees or not; indeed, its opinion seemed to suggest that only the plaintiff who had filed a frivolous claim over protected speech had filed a true "SLAPP" suit that could warrant an award of fees.  The court of appeals, however, concluded that the fee provision was modeled on many federal civil statutes whose fee provisions, although similarly permissive, have been construed as setting a norm of fee awards.

The decision should have a salutary effect by giving DC's anti-SLAPP law the same fiscal teeth as other strong anti-SLAPP laws around the country.  Plaintiffs may be deterred from filing lawsuits over speech on issues of public interest unless they are confident that they can present evidence in support of their claims at an early stage of the litigation.  By the same token, speakers will have an extra incentive to stand up for their rights, and lawyers will have a financial incentive to represent defendants whose speech appears to have been sufficiently justified that an anti-SLAPP motion is likely to be granted.  Lawyers handling such cases will have a reasonable expectation of being awarded their attorney fees, and thus being paid, even if the defendant cannot otherwise afford counsel.

Pew animation on the risks of mobile payment

Both cute and informative about the risks to consumers in the mobile economy. The takeaway: Federal regulations to protect consumers aren't evolving fast enough to keep up with technological advances. Watch it here.

U.S. labor force is finally growing again

As Fivethirtyeight explains, February saw the biggest one-month increase in the size of the labor force in over a year and continues the longest streak of gains in eight years. If this is a trend and not a blip, it's a significant reversal:

Labor force participation has been a dark cloud hanging over the economy in recent years, even as other job-market indicators have shown steady improvement. The share of Americans working or looking for work plunged in the recession as people abandoned job searches in the face of overwhelming odds. The rate kept falling even as employers started hiring again. In September, the participation rate hit 62.4 percent, its lowest level since 1977.

Read more here.

Trump admission of malicious reasons for suing a reporter reminds us why we need anti-SLAPP statutes

An article by Paul Farhi in this morning’s Washington Post discusses a lawsuit filed by Donald Trump against the Timothy O'Brien, a financial author who wrote a book about Trump's business career.  Among other things, the book questioned whether Trump is quite as wealthy as he claims; the author’s opinion was that Trump had exaggerated his assets by a factor of 20, and that his net worth was ”only” $150 million to $250 million, not the claimed "five to six billion."  Trump alleged that this low estimate was defamatory and that the low estimate had hurt his business, seeking $5 billion in damages, even though he admitted in a deposition that his contentions about the actual value of his estimates was based on his “feelings . . . about my value to myself.” (The deposition transcript is here).

FDA and pharma company Amarin settle lawsuit on "off-label" promotion

The Food and Drug Administration and Amarin, the manufacturer of a prescription fish-oil drug, have settled Amarin's lawsuit challenging the FDA's authority to restrict the company from touting its product for an unapproved use.

The Washington Post reports that the FDA said the settlement is “specific to this particular case and situation,” and did not mark a new legal precedent." But the settlement leaves in place a district court decision that is skeptical of the FDA's authority to protect patients when drug companies want to promote drugs for uses that have not been approved as safe and effective.

The settlement is here. New York Times coverage of the settlement is here.

Our previous posts about Amarin's first amendment theory and the implications for public health are here, here, and here.

"CFPB Supervision of Banks and Nonbanks Recovers $14.3 Million for Consumers"

The Consumer Financial Protection Bureau yesterday released its latest supervision report where the exams of banks and nonbanks resulted in the remediation of $14.3 million to approximately 228,000 consumers. In its examinations covering the last months of 2015, the Bureau found violations in the student loan market, including illegal automatic defaults by student loan servicers and illegal garnishment threats by debt collectors performing services for the Department of Education. Examiners also found instances of international money transfer companies violating the CFPB’s new remittance rule, banks providing inaccurate information to credit reporting companies about customer checking accounts, and debt collectors illegally contacting consumers.

The CFPB's full press release is here.

LA Times David Lazarus: Lawmakers are fighting efforts to rein in predatory lending. Why?

Here.  It's mostly about Florida Representative and Democratic National Committee chair Debbie Wasserman Schultz's proposal to derail the CFPB's possible payday lending rule that Brian blogged about a few days ago. Excerpt:

[Wasserman's] spokesman, Sean Bartlett, said the legislation "is about preserving the shared goal of implementing strong consumer protections while also preserving access to affordable lending for low-income communities."

Perhaps.

Or maybe it's more about money.

Florida's representatives, from both parties, have been the primary backers of the Consumer Protection and Choice Act since its introduction last November, and most of them are up to their necks in donations from the payday-loan industry.

* * *

Wasserman Schultz climbed aboard in December. She's pocketed $63,000 in contributions from payday lenders, according to the database.

* * * Florida's law has relatively lax standards and no requirement that payday lenders check in advance to make sure borrowers can repay loans in full without becoming mired in perpetual indebtedness.

There are few limits on how many loans a Floridian can receive. People in the state who use payday loans take out an average of nine loans a year, according to the Center for Responsible Lending.

The average loan is $250 with an annual interest rate of 312%. Most borrowers take out a new loan as soon as the previous one is paid off, the center found.