In 2016, the Department of Health and Human Services’ Office for Civil Rights (OCR) provided a variety of guidance to address the importance of honoring the right of patients to have access to their medical information and not to be over-charged for exercising that right.

Earlier this week, the OCR announced an enforcement action and settlement under its Right of Access Initiative against Bayfront Health St. Petersburg (Bayfront) in Florida. This settlement, the first of its kind under OCR’s initiative to enforce patients’ rights to promptly receive copies of their medical records without being overcharged, has cost Bayfront $85,000. The 480-bed hospital is also required to undertake a corrective action plan that includes a one-year period of monitoring by OCR.

On Monday, July 8th, FINRA and the SEC took the unusual step of issuing a joint statement on broker-dealer custody of digital asset securities. In doing so, the Staffs of the SEC’s Division of Trading and Markets and of FINRA’s Office of General Counsel made clear that the SEC and FINRA will continue to apply…

Members of the SEC’s Strategic Hub for Innovation and Financial Technology (“FinHub”) and experts in Fintech came together on May 31st for the SEC’s public forum focusing on distributed ledger technology and digital assets.  As a whole, the panelists grappled with the challenge of regulating an emerging technology that does not fit neatly within the…

Although not a new practice, the application of geofencing continues to increase in sophistication and expand into personal space on an unprecedented scale, jumping beyond commercial retail advertising schemes and diving into the depths of employment, health care, law enforcement, and politics. As the growth of these applications prompt privacy and security concerns, including government surveillance concerns, regulations lag and may be further delayed considering lawmakers’ very use of geofencing to win a governing seat.

Geofencing is the practice of using wireless internet, cellular data, global positioning system (GPS) or radio-frequency identification (RFID), or a combination of such technologies, to create a virtual boundary around a particular geographic area. When a smart-phone, tablet, or other targeted device crosses over the geofence perimeter, it triggers a response from the geofence software. So-called “active” geofencing technology powers things like home applications or “apps” that automatically adjust ambient temperature and lighting when a person enters their house. “Passive” geofencing technology is used to both (1) push advertising and other information to consumers through social media apps and other channels and (2) monitor or pull information about a consumer’s habits.

This post follows up on our earlier “primer” and flash alert on the Consumer Financial Protection Bureau’s proposed rule (the proposal) to implement the Fair Debt Collection Practices Act, which the CFPB released with a Fact Sheet and a Table of Contents to the proposal. Below, we describe key details of the proposal, and provide further information from stakeholders and the CFPB that has become available since the proposal’s publication.

McGuireWoods also will host a free webinar on the proposal in the coming weeks; a date will be announced soon.

Comments on all aspects of the proposal are due 90 days after it appears in the Federal Register, which should be any day now.
I. Summary of Key Points

  • The proposal would apply only to “debt collectors” as defined by the FDCPA. Importantly, owners of debt — even debt in default when purchased — would continue to fall outside the branch of the “debt collector” definition that covers those who regularly collect debts “owed or due, to another.” As a practical matter, this means that the only “first-party” collectors (i.e., collectors who own the debt) who would generally be regulated as “debt collectors” would continue to be those who operate a “business the principal purpose of which is the collection of debts.”
  • Nonetheless, many of the proposal’s requirements regarding what is unfair, deceptive or abusive under the FDCPA likely would be viewed as informing the UDAAP/UDAP analysis that applies to every person collecting consumer debts.
  • The proposal would regulate communications by debt collectors in several key ways. In particular, it would:
    • cap at seven the number of telephone calls that debt collectors may place to consumers within a seven-day window about a particular debt;
    • impose a waiting period of seven days after a debt collector has a telephone conversation with a person about a particular debt;
    • permit unlimited electronic communications about a debt, but require a debt collector to include in any e-mail, text message or other electronic communication a clear and conspicuous statement describing a way for the consumer to “opt out” from receiving any further messages through that particular medium;
    • prohibit communications about a debt via a workplace email addresses (with exceptions) and through public-facing social media platforms; and
    • create an exception to communications limits and requirements for messages satisfying the definition of a new term, “limited content message.”
  • The proposal would standardize the “debt-validation” disclosures to consumers long required by § 809 of the FDCPA.

On April 30, the U.S. Circuit Court of Appeals for the District of Columbia Circuit vacated a Securities and Exchange Commission order imposing sanctions. The court held that an investment advisory firm and its owners did not violate Section 207 of the Investment Advisers Act of 1930, 15 U.S.C. § 80b-7, by negligently omitting material…

A federal district court recently refused to dismiss a complaint alleging that a real estate marketing company operated its “co-marketing program” among real-estate agents and mortgage lenders in a manner that violated the anti-kickback provision of the Real Estate Settlement Procedures Act (“RESPA”). In particular, the court concluded that plaintiffs in the case had plausibly…

On April 29, the New York Department of Financial Services (NY DFS)—the state’s principal banking and insurance regulator—announced that it is creating a new Consumer Protection and Financial Enforcement (CPFE) division. The new division, described by commentators as a state-level version of the Consumer Financial Protection Bureau (CFPB), or “mini CFPB,” will have responsibility…

As soon as next week, the Consumer Financial Protection Bureau (CFPB) is expected to propose the first substantive regulations under the Fair Debt Collection Practices Act (FDCPA) since the law’s enactment in 1977. This rulemaking has the potential to substantially clarify and modernize many of the FDCPA’s requirements, with important implications not only for debt collection agencies and others who fit the law’s narrow definitions of “debt collector,” but for any entity engaged in the collection or sale of consumer debts.

Interest among industry and consumer-group stakeholders likely will be intense: An earlier agency notice about possible subjects for FDCPA rulemaking drew over 23,000 written comments to the CFPB, and a concrete proposal like the one forthcoming could generate many more. That level of interest is not surprising, given that debt collection activities consistently have ranked either first or second on the list of areas generating the highest number of consumer complaints to the Bureau. According to some press reports, the proposal may be released Wednesday, May 8, in connection with a CFPB Town Hall hosted by Director Kraninger.

Given the likely implications and widespread interest in the proposal, this alert serves as a primer on the anticipated rulemaking, both by placing it in context through a brief summary of its background, and by focusing on topics that the proposal is likely to cover.