For nearly three decades, the Federal Trade Commission (“FTC”) has made hundreds of its Staff Opinion Letters, Commentary, and Annual Reports available to the public through its website. That transparency was a valuable resource for attorneys practicing in the Fair Debt Collection Practices Act (“FDCPA”) and Fair Credit Reporting Act (“FCRA”) arena. Although the FTC’s opinion letters and commentary did not have the force of law, they served as persuasive authority and generally represented the FTC’s current enforcement position. 16 C.F.R. §§ 1.1–1.4; FTC Staff Commentary § 813(4); Staub v. Harris, 626 F.2d 275 (3d Cir. 1980); Harris v. Home Depot U.S.A., Inc., 114 F. Supp. 3d 868, 869 (N.D. Cal. 2015). So, attorneys had a modicum of comfort in advising clients in compliance matters involving the FDCPA and FCRA.
Those days are gone. Following the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. 111–203, 124 Stat. 1376), the FTC transferred many of its consumer protection responsibilities to the Consumer Financial Protection Bureau (“CFPB”). 12 USC §§ 5481, 5581(b)(5). The CFPB, however, has taken a vastly different approach in sharing its interpretations of the laws it has been tasked to enforce. To be sure, the CFPB has posted some “bulletins” to provide guidance to the industry. And the FTC and CFPB signed a memorandum of understanding, that, among other things, pledges to “formulate policy in a consistent manner.” https://www.ftc.gov/system/files/120123ftc-cfpb-mou.pdf. But in contrast to the FTC’s earlier, more transparent practice, the CFPB is not issuing traditional opinion letters. Instead, the CFPB’s current trend has been to reveal its enforcement position through the litigation it initiates.
The difference is more than just aesthetic. What is to become of all the decisional law that relied on the FTC’s staff opinion letters? Can it all be branded “distinguishable” and cast aside now that the CFPB is tasked with enforcement responsibilities? More importantly, what is a bank to do? What might have been legitimate, good faith compliance when the FTC was at the helm could now be deemed misconduct now that the CFPB is steering the ship.
A few observations that may help navigate these new and uncertain waters:
First, maintain a sense of perspective. Remember that whatever the CFPB’s position about the FDCPA or the FCRA—whether in opinion letters, bulletins, or the very complaints it files—it is the court that will have the last word. Staub, 626 F.2d at 279. Several decades ago, the United States Supreme Court explained that the weight given to an agency’s opinions is determined not by the fact that the opinion happened to come from the agency, but instead, by whether the opinion is actually persuasive. “We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore v. Swift, 323 U.S. 134, 140 (1944) (emphasis added); see also Boydstun v. U.S. Bank Nat’l Ass’n, 2016 WL 2736104, at *4-5 (D. Or. May 11, 2016) (rejecting FTC interpretation of FCRA).
Importantly, as shown above, one factor the court will consider in evaluating an agency’s interpretation is its consistency with earlier pronouncements. Indeed, “[a]n agency interpretation of a relevant provision which conflicts with the agency’s [or perhaps its predecessor’s] earlier interpretation is ‘entitled to considerably less deference’ than a consistently held agency view.” I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 447 n.30 (1987) (quoting Watt v. Alaska, 451 U.S. 259, 273 (1981)). This rule might serve to provide a layer of protection to banks relying on earlier FTC opinion letters.
Second, monitor the CFPB’s website for notifications about new trends and pending enforcement proceedings. In addition to the litigation the CFPB initiates, the CFPB also files amicus briefs in various proceedings that divulge its positions. By staying ahead of the curve, you may be able to mitigate—or even eliminate—your exposure to statutory liability. See, e.g., 15 U.S.C. § 1692k(e) (liability may not be imposed under the FDCPA for violations committed in good faith reliance on a formal CFPB advisory opinion later ruled invalid). At a minimum, keeping abreast of the CFPB’s latest bulletins and enforcement actions will help spotlight the areas in which your bank should focus its compliance efforts.
For more information regarding the CFPB’s enforcement of the FDCPA and the FCRA, please contact Kerry W. Franich at kwf@severson.com.