• Contacts

    GENE R. ELERDING

    Special Counsel

    Co-Chair, Consumer Financial Services
    Financial Services and Banking
    email

    CHARLES E. WASHBURN, JR.

    Partner

    Co-Chair, Consumer Financial Services
    Financial Services and Banking
    email

    BARRIE VANBRACKLE

    Partner

    Co-Chair, Consumer Financial Services
    Financial Services and Banking
    email

    Consumer Financial Services

    Helping Consumer Financial Services Clients Navigate a Sea of Change
    In the wake of a worldwide economic slowdown—blamed in large part on ineffective regulatory oversight of the mortgage loan and credit card industries and resulting consumer defaults—financial regulation has grown dramatically, with a focus on consumer protection. Financial institutions, as well as nonbank providers of consumer financial products and services, now face increased scrutiny and an expanding universe of new regulations and laws. This expansion will continue unabated for the foreseeable future, as new rules are adopted under the Dodd-Frank Act and as the Bureau of Consumer Financial Protection (the CFPB) begins to exercise its powers. Aggressive investigations and enforcement campaigns by State Attorneys General, along with plaintiffs’ attorneys taking advantage of regulatory changes with a spate of class action lawsuits, will further challenge the financial services industry.

    Manatt’s Consumer Financial Services practice can help you navigate this rapidly evolving regulatory environment. Our interdisciplinary team of lawyers and advisors has extensive experience in—and an in-depth understanding of—the laws and regulations governing consumer financial products and services. We can assist you in developing and implementing compliance programs, as well as defending consumer litigation and regulatory enforcement actions. 

    Experience Across a Broad Spectrum of Financial Services and Products
    Manatt provides practical, sophisticated and comprehensive advice to a wide range of institutions offering financial services and products. Our team is unique in having substantial experience representing not only traditional sources of consumer financial products and services—such as community banks, global financial institutions, mortgage lenders and payment card companies—but also nonfinancial companies offering products and services or engaging in billing and collection practices that fall within the scope of the new regulations. These companies include:

    • Brick-and-mortar, catalog and online consumer goods marketers and retailers
    • Entertainment and media businesses
    • Technology and telecommunications companies 

    Our practice's offices in Washington, D.C., and throughout New York and California allow our attorneys to stay on top of current developments, trends and regulations affecting clients' business objectives and priorities.

    Credit Products
    In today’s heightened regulatory environment, the CFPB scrutinizes and regulates credit products extensively. Our Consumer Financial Services practice closely monitors developments at the Bureau and regularly works with staff attorneys, providing advice regarding the large and growing number of laws that regulate extensions of credit to consumers and assisting clients in submitting comment letters on proposed regulations. Much of our work focuses on the increasing overlap between products and services offered by nonfinancial institutions and the expanding reach of consumer financial protection laws.

    The federal and state consumer credit laws on which we regularly provide guidance include:

    • The Truth in Lending Act and Regulation Z
    • The Real Estate Settlement Procedures Act of 1974 and state mortgage laws and regulations, including loan originator licensing and compensation rules and foreclosure requirements
    • The Fair Credit Reporting Act, advising consumer reporting agencies as well as users of prescreened lists and other consumer reports and scores
    • The provisions of the Electronic Fund Transfer Act and Regulation E impacting upon consumer credit, including recurring payment plans
    • The Fair Debt Collection Practices Act and state debt collection rules
    • State lender licensing and usury laws, including rules targeting payday and other high-rate loans
    • State retail installment sales acts
    • Federal preemption applicable to federally chartered lenders after the Dodd-Frank Act

    Deposit Products and Operations
    Our lawyers are recognized leaders in assisting banks, prepaid card issuers and others offering deposit products through the vast and complex laws and regulations that govern account and operational issues. A particular strength and focus of our practice is the structuring of cash management arrangements.

    We offer insight and advice on the full array of federal and state laws governing consumer finance activities and operations, including:

    • Federal and state laws protecting the privacy of consumer financial information, including the Gramm-Leach-Bliley Act
    • Laws imposing various obligations in the event of a data breach
    • Unclaimed property rules
    • Rules governing the provision of treasury management services
    • Office of Foreign Assets Control and Bank Secrecy Act regulations
    • Restrictions on affiliate transactions and insider loans
    • Anti-tying prohibitions and exceptions
    • UCC provisions and other rules applicable to negotiable instrument disputes

    Payment Cards
    We represent many credit, debit and prepaid card industry members, including issuers, acquirers, payment card networks, processors, independent sales organizations, affinity and co-brand partners, and merchants. Our attorneys can advise you on a broad range of matters related to payment cards and services, including:

    • EFTA and Regulation E, including the Durbin Amendment
    • The Payment Card Industry Data Security Standards, including state laws governing privacy, data breach and codification of the PCI standards
    • Payment card network rules
    • Credit Card Accountability Responsibility and Disclosure Act of 2009 (CARD Act)
    • Federal and state laws that may impact payments

    Our team can also provide advice regarding "prepaid access" products, mobile payments, alternative payment mechanisms (such as Internet, carrier billing and peer-to-peer payments), as well as other new developments in this space. In addition to our regulatory strengths, we have a great deal of experience in negotiating contracts in the payments space, including sponsorship and processing agreements among industry participants, as well as in advising our clients on industry updates and trends. We also represent our clients with respect to transactions among strategic and other buyers interested in joining this burgeoning industry.

    UDAAP/Advertising and Marketing
    In addition to the consumer financial services industry, marketing and advertising for its products and services are also facing closer scrutiny and tighter regulations. Our practice includes several nationally recognized lawyers in advertising, marketing and sales promotion law who regularly review the marketing and advertising campaigns of some of the world’s leading providers of consumer goods and services, including financial-related services.

    Our lawyers regularly work with the FTC, State Attorneys General offices and the newly created CFPB. Our extensive dealings with these enforcement bodies provide keen insight into how the CFPB is likely to exercise its broad rulemaking and enforcement authority or prevent UDAAPs. With that insight, we can advise you as to what representations, omissions, acts or practices the CFPB likely deems unfair, deceptive, or abusive, particularly in regard to the marketing of products through social networking websites and mobile platforms, such as cell phones, apps, e-readers, location-based services and QR codes.

    We regularly provide advice on the full range of marketing laws and regulations, including:

    • The UDAAP provisions of the Dodd-Frank Act
    • Section 5 of the FTC Act
    • State "mini-FTC acts" and other unfair and deceptive acts and practices statutes and unfair competition laws
    • Federal and state telemarketing laws as they relate to the provision of consumer financial products and services
    • Federal and state gift card rules, including the gift card provisions of federal Regulation E

    Firsthand Experience With Government Relations
    Manatt’s bipartisan government relations team is significantly involved in the implementation of the Dodd-Frank Act on behalf of our clients. We monitor issues of interest at the congressional and agency levels, as well as work with a coalition of interest groups who share similar legislative and regulatory goals.

    Our team includes former members of Congress and former congressional committee staff members. Our deep and extensive relationships in the House of Representatives and Senate enable us to advocate for legislative changes, work to block problematic bills, and ask members of Congress to weigh in with respect to matters involving the CFPB. We have also assisted a number of clients in drafting comments to proposed rules, guidance and other agency proposals published by the CFPB and other financial services regulatory agencies.

    Manatt also has significant relationships with state legislators and regulators nationwide through our government relations practices based in our Sacramento, Albany and Los Angeles offices. Our state regulatory attorneys can help you stay abreast of developments on the state law front—particularly as they relate to the partial rollback of federal preemption in the Dodd-Frank Act.

    Defending Against Enforcement Actions
    Our Consumer Financial Services practice includes lawyers with a strong track record of success defending clients in enforcement actions brought by federal banking agencies, the FTC and State Attorneys General offices. We also have a growing base of experience advising clients on issues arising during CFPB examinations.

    Litigation Experience Our Clients Can Rely On
    More than half of Manatt’s professionals are litigators, including some of the most respected trial lawyers in the country. Among them are those who have substantial experience defending actions involving consumer financial products and services, leveraging the knowledge of our consumer compliance attorneys to develop an effective response strategy. A particular area of experience and focus for our team is the drafting and implementation of effective arbitration clauses in the consumer context.

    We have successfully represented banks, finance companies, insurance companies, hedge funds and other institutional lenders, as well as nonfinancial companies offering products and services falling within the sphere of consumer financial protection laws. They include brick-and-mortar and online retailers, publishers and subscription services, telecommunication and satellite television service providers, TV networks and affiliates, and production companies. Matters have ranged from individual consumer and class action suits to civil actions initiated by Attorneys General and regulatory agencies.

    Lawsuits handled by our litigators include matters asserting claims under the following laws, among others: 

    • TILA and Regulation Z
    • FCRA, including amendments made by the Fair and Accurate Credit Transactions Act of 2003
    • EFTA and Regulation E
    • RESPA and state mortgage lending laws
    • Federal and state UDAAP and other unfair competition laws
    • Telephone Consumer Protection Act

    Attorneys & Professionals

    Email
    Name
    Office
    Phone
    Arnold, Steven Orange County 714.371.2545
    Brody, Jesse Los Angeles 310.312.4173
    Elerding, Gene R. Los Angeles 310.312.4158
    Friedman, Clayton S. Orange County 714.338.2704
    Goldstein, Linda A. New York 212.790.4544
    Morrison, Andrew New York 212.790.4581
    Pines, Adam Los Angeles 310.312.4322
    Reilly, Brandon P. Los Angeles 310.312.4330
    Seiling, Brad W. Los Angeles 310.312.4234
    VanBrackle, Barrie Washington, D.C. 202.585.6530
    Washburn, Jr., Charles E. Los Angeles 310.312.4372

    News

    03/25/2014The New Yorker Interviews Manatt Partner on Bitcoin A.T.M's
    03/06/2014National Journal Quotes Manatt Partner on Bitcoin Founder Frenzy
    02/20/2014National Journal Quotes Manatt Partner on Potential Bitcoin Ban
    02/10/2014Fox Quotes Manatt Partner on Computer Chip Security for Credit Cards
    01/29/2014Manatt Partner Discusses Digital Currency Regulation
    01/16/2014Risk.net Interviews Manatt Partner on Why Bitcoin Shouldn't Be Ignored
    09/01/2013Digital Transactions Quotes Manatt Partner on Regulators' ISO Focus
    08/21/2013Manatt Partner Discusses FTC Lawsuits Against Merchant Acquirers
    08/16/2013Manatt Partner Speaks to Industry Trades on ISO Regulation
    08/09/2013Credit Union Times Looks to Manatt Partner on Virtual Currency Ruling
    08/07/2013Manatt Partner Quoted on FTC Enforcement Actions on Payment Processors
    08/01/2013AFP Exchange Looks to Manatt Partner on Virtual Currencies
    05/14/2013Manatt Expands National Financial Services and Banking Group
    11/26/2012Manatt Partner Discusses Possible Transaction Account Guarantee Expiration
    11/20/2012Financial Times Quotes Manatt Partner on Reactions to New Remittance Rules Under CFPB
    11/20/2012Manatt Partner Speaks to Financial Times on Remittance Rule Challenges
    11/05/2012American Banker Interviews Manatt Partner on CFPB Remittance Rule Challenges
    09/03/2012Manatt Partner Discusses Finalized CFPB International Funds Transfer Rule
    09/03/2012Manatt Partner Interviewed on Compliance Challenges Surrounding New CFPB Rule
    07/27/2012Manatt Advertising Chair Quoted on First CFPB Enforcement Action 
    03/19/2012Manatt Anticipates Increase in Consumer Finance Disputes in 2012 and Beyond

    Consumer Financial Services

    Representative Matters

    Credit Products

    • Working with nationwide credit card issuers to revise their account agreements, periodic statements, and billing and other procedures to comply with the significant changes mandated by the Credit Card Accountability Responsibility and Disclosure Act of 2009 and revisions to Regulation Z.
    • Assisting banks, payment processors and telecommunications companies in structuring programs that allow consumers to make purchases using their mobile devices, including via mobile wallets.
    • Advising a leading entertainment company and a major electronics retailer in the structuring of layaway-type programs as an alternative to credit arrangements, including programs that permit consumers to set aside funds for vacations.
    • Advising numerous publishing companies and other sellers regarding the structuring of marketing offers utilizing credit scores and other consumer reports that comply with FCRA requirements.
    • Assisting several consumer reporting agencies in establishing databases that satisfy FCRA.
    • Counseling numerous direct response marketers in establishing processes and procedures for obtaining customer consent to recurring billing arrangements that comply with Regulation E and state laws.
    • Advising marketers regarding developments in federal and state laws restricting "data pass" arrangements that involve the sharing of payment card information.

    Deposit Products and Operation

    • Assisting several processors and merchants in responding to substantial data breaches, including preparing appropriate public disclosures and developing a media damage control plan.
    • Assisted a large financial institution in creating and rolling out several state government electronic benefit payment programs and formulating a federal government debit card benefit payment program.
    • Assisted banks in developing new products following the repeal of Regulation Q.
    • Advised a large, interstate bank on bank power issues post-Dodd-Frank, including new federal preemption standards and state law compliance requirements.

    Payment Cards

    • Representing several affinity groups and other companies in negotiating co-brand payment card relationships, including royalty terms.
    • Representing payment card issuers negotiating the terms of their membership agreements with payment card networks.
    • Advising numerous merchants regarding requirements under their respective payment card networks and NACHA rules governing authorized payments.
    • Negotiating agreements with alternative payment card networks so that issuers could have at least two independent card networks enabled per card as of April 1, 2013.
    • Assisting several merchants in developing a novel payment facilitator arrangement that takes advantage of new rules promulgated by the payment card networks allowing mechanisms for small-ticket transactions.

    UDAAP/Advertising and Marketing

    • Developing a UDAAP compliance training program for the advertising review unit of a multinational financial services corporation to ensure that all of its employees are familiar with all existing and developing federal and state rules.
    • Researching state credit laws for a major provider of health club services and updating their membership agreements accordingly.
    • Developing training materials on marketing and credit practice-related issues for a national provider of broadcast television services.
    • Providing training and ongoing advice to the U.S.'s largest provider of affiliate marketing services on issues ranging from data pass to compliance with state and federal telemarketing requirements.
    • Providing training and ongoing advice to a leading provider of gift card programs regarding compliance with applicable federal and state laws.
    • Advising many of the leading publishing companies in the United States regarding compliance with consumer credit laws, including the FCRA.
    • Advising leading consumer product companies on the establishment of installment payment programs that comply with applicable federal and state laws.
    • Reviewing various companies' advertising and marketing materials involving the offering of consumer credit to ensure compliance with applicable federal and state disclosure laws.

    Enforcement Actions

    • Represented a credit card issuer in connection with an action seeking $3 million in restitution for alleged TILA violations. We successfully argued for our client's position that no violations had occurred, and the regulators imposed no restitution liability.
    • Negotiated an acceptable enforcement order and fines for a bank accused of BSA and OFAC violations.
    • Represented a major consumer electronics marketer in an FTC enforcement action alleging violations of TILA and Regulation E.
    • Represented numerous direct-response marketers in FTC enforcement actions alleging that their recurring billing charges violated Regulation E.
    • Represented a multichannel video programming distributor in a 49-state settlement of a legal action alleging a multitude of violations of state and federal credit and debit card laws, including with respect to our client's automatic renewal practices.
    • Represented several major publishers in state attorneys general actions on a number of issues, including compliance with laws regulating data privacy and auto renewal charges.
    • Represented a major publisher in an FTC enforcement action alleging violations of FCRA which resulted in the FTC closing the matter.
    • Represented an online travel merchant in numerous state attorneys general investigations into the transfer of financia linformation by third-party merchants in cases where, after completion of a purchase, the customer elects to accept an upsell offer.
    • Represented a national fitness center chain in an investigation under Texas UDAP and health club laws relating to debt collection and membership renewal practices.
    • Represented several membership services companies in individual and multistate actions relating to "negative option" marketing, telemarketing and preacquired account marketing.
    • Represented a leading mortgage lender in a matter involving 49 state attorneys general and nearly 30 other state agencies. Critical to our ability to effectively represent and defend our client was our broad expertise in federal and state regulatory schemes governing consumer financial products and services, including with respect to advertising, marketing and disclosures.
    • Represented a national bank in 23-state investigation related to consumer finance issues. Negotiated a unique settlement that recognized the bank for its level of cooperation.

    Litigation

    • Defense of a major bank in a putative class action challenging automobile financing practices under California's UDAP law.
    • Defense of a leading national finance company in a class action seeking to rescind loans based on alleged violations of theCalifornia Finance Lenders Law. Representation of a foreign financial institution after its U.S. representative was arrested by federal authorities on tax and money laundering charges following an undercover investigation.
    • Defense of a national bank in a class action alleging that the fees charged on tax refund anticipation loans constituted precomputed interest that the bank was obligated to repay when borrowers paid off the loans early.
    • Representation of a major telecommunications company in a putative class action alleging that our client violated the Telephone Consumer Protection Act by contacting subscribers on their cell phones in an attempt to collect overdue payments. Defense of a major payday lender in a class action alleging that our client's practice of monitoring customer calls violated California's eavesdropping statute.

     

  • Awards & Rankings

    logo/img/@altRanked Nationally for Financial Services Regulation Law 2011–2014