March is in full swing. I am sad to report that none of my readers sent me PotBelly’s or peppermint tea for Valentine’s Day. Thanks for tuning into our third posting of On Miriah’s Mind. You will notice that there is now a “follow” button at the bottom of the page. Make sure you subscribe to our blog so that each new posting can be delivered directly to your inbox. You won’t want to miss a single blog post!
Consumers and businesses continue to look to the court system to resolve their issues.
Here’s a recap of some of the most recent litigation updates.
- Mitchell v. Buckeye CU: Plaintiff, Walter Mitchell, filed a string of lawsuits against multiple Ohio credit unions, alleging violations of the Americans with Disabilities Act (ADA
),because plaintiff claimed he could not access their websites. Last week on March 5th, the federal judge granted Buckeye CU’s motion to dismiss the complaint against it. In the case, Judge Lioi held that the plaintiff did not have standing to sue, meaning the plaintiff did not suffer an injury. Because the plaintiff was not a member of the credit union, the plaintiff could not have been injured by his alleged inability to access Buckeye CU’s website.
“The fact remains that the information contained on the website is only useful for people who can become members of Buckeye. The removal of these barriers would not have the effect of providing Mitchell with accessibility to product or services of Buckeye as Mitchell is not eligible to take advantages of these benefits.” –Judge Lioi, Mitchell v. Buckeye CU
In Ohio, two credit union specific cases await the court’s decision regarding their motions to dismiss: BMI FCU and Day Met CU. We will continue to monitor their status as the lawsuits proceed.
My take on Mitchell v. Buckeye CU: Credit unions are winning ADA website accessibility lawsuits, but don’t rest on your laurels. Continue to serve all members to the best of your abilities and invest in products and services, including technology, that can enhance the member experience, if you are able.
- Marks v. Crunch San Diego, LLC: Last month, On Miriah’s Mind looked at the Telephone Consumer Protection Act (TCPA). One of the more recent TCPA cases was Marks, which involved a text-messaging system, where the court considered if the system was an auto-dialer. The defendant, Crunch San Diego, had previously requested the U.S. Supreme Court to review the case, which we also discussed last month. Since our last posting, the defendant has abandoned its appeal. The parties filed with the U.S. Supreme Court an Agreement to Dismiss the petition, “in light of a settlement between the parties.”
This means that the prior decision in Marks still exists as valid case-law, as there is no opportunity now for the U.S. Supreme Court to overrule that 9th Circuit decision. Remember, the 9th Circuit’s decision considers a device an auto-dialer if it has the capacity to store numbers to be called.
My take on Marks v. Crunch San Diego, LLC: The TCPA landscape is still turbulent and unclear. Make sure all ducks are in a row. In other words, identify any auto-dialing equipment you are using and track the consent. (“Oh, but Miriah, we wish it was the easy,” you say.)
- First Choice Federal Credit Union v. The Wendy’s Company: The fast food company had a data breach in 2015-2016. Subsequently, OCUL, credit unions, and CUNA filed a class-action lawsuit against the company. Last month, a settlement proposal for $50 million was announced. At the beginning of March, the court preliminarily approved the $50 million Wendy’s settlement for financial institutions that issued payment cards that were alerted on in connection with the data breach. Additionally, Wendy’s will adopt and/or maintain certain data security measures.
My take on First Choice FCU v. Wendy’s: Stay tuned to League communications for more on settlement claims.
Miriah’s Hot Topic: Elder Abuse Suspicious Activity Reports (SARs) Shed Light on Severity of Issue
Would you let someone take advantage of your grandma? I didn’t think so, and the numbers prove that, because reporting elder fraud is at an all time high. Recently, the Consumer Financial Protection Bureau (CFPB) released a comprehensive report on elder abuse, which as, financial institution professionals, we know can take the form of financial abuse, among other behaviors.
As you may recall, the Financial Crimes Enforcement Network (FinCEN) issued a memo in 2011 to advise the financial industry to report instances of financial exploitation of the elderly. [Note that for amounts below the $5,000 threshold, reporting is voluntary.] In 2013, the FinCEN reporting system converted to an on-line portal, making tracking the data more seamless. Most recently, in 2017, the CFPB, The Department of Treasury, and FinCEN issued a joint memo on how financial institutions can help law enforcement combat this type of abuse.
This new, comprehensive report from the CFPB is the first look at aggregated data involving elder financial exploitations SARs, as SARs are non-public data collected by the federal government.
In 2017, financial institutions filed 63,500 SARs reporting elder financial abuse. The CFPB now estimates that these SARs represent a small fraction of the 3.5 million incidents of elder financial exploitation estimated to have happened that year. It suggests that, as the age of the elderly persons increases, the loss of financial assets increases (this is most likely due to increased vulnerability with increased age). According to the report, adults aged 70-79 lost $43,300 on average. When this same demographic reported having known the suspect, the average loss increased to $50,000.
The report also draws attention to the lack of reporting to first responders (state government, law enforcement, adult protective services, etc). Based on the data, fewer than one-third of elder financial exploitation SARs indicate that the financial institutions reported the activity to a first responder, like adult protective services.
This is extremely significant for Ohio. By law, Ohio financial institutions are mandatory reporters of elder abuse, so now Ohio financial institutions should be reporting to their local Department of Jobs and Family Services, which houses Adult Protective Services.
Elder exploitation is defined as the unlawful or improper act of a person using an adult or an adult’s resources for monetary or personal benefit, profit, or gain when the person obtained or exerted control through various ways such as lack of consent, deception, threat, or intimidation (O.R.C. 5101.60) Under Ohio law, reports of elder abuse may be written or oral. For full details, see O.R.C. 5101.63 (C).
This state reporting requirement is new as of September 2018. However, in the last budget bill from December 2018, additional changes were made to elder abuse reporting, which will take effect March 20, 2019. Many of these changes are minimal, such as: increased penalties from theft of a person in a protected class and the requirements for the Ohio Attorney General’s office to distribute at least six public awareness publications each year.
Remember from 2013 to 2017, the CFPB found that many financial institutions (approximately one-third) did not appear to be reporting elder abuse directly to first responders. Because state law changed in 2018, requiring financial institutions to report elder abuse, Ohio financial institutions should be reporting to their local Department of Jobs and Family Services and FinCEN. Moving forward, we should not see many discrepancies in reporting to FinCEN but not adult protective services (under the Department of Jobs and Family Services in Ohio). If this topic is of interest to you, join me and the Association of Certified Anti-Money Laundering Specialist (ACAMS) on Wednesday, May 15 at their panel on elder fraud, where I will be speaking. For more information about this event, as it is announced, check out the Central Ohio ACAMS Chapter on LinkedIn.
The elder abuse law isn’t the only item changing on March 20th. Register for the League’s webinar at 10:00 a.m. on March 20th to hear about state law changes to the credit union charter and new second mortgage debt-collection notices. This webinar will feature legal counsel from the Ohio Division of Financial Institutions.
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