LA-based commercial litigator Arsen Kourinian has provided us with some timely notes from last week’s consumer finance litigation conference in Chicago:
On July 16 and 17, 2018, the American Conference Institute (ACI) hosted its 30th National Forum on Consumer Finance Class Actions and Government Enforcement in Chicago. The 2018 conference was well attended by many legal professionals, including in-house counsel, defendants’ and plaintiffs’ counsel, state and federal prosecutors and regulators, and federal judges. Themes covered at the conference included in-house counsel perspectives on aligning litigation costs with business goals, the nature of federal and state enforcement actions by state attorneys general, and the impact of the U.S. Supreme Court decision in Spokeo, Inc. v. Robins.
On the first day of the conference, McGuireWoods LLP’s Brian Kahn moderated a panel of in-house attorneys from major banks and financial institutions, which featured a lively discussion of strategies for resolving litigation in a cost-effective manner. Some panelists highlighted that providing excellent customer service helps reduce the volume of lawsuits against banks and lenders because consumers are less likely to seek legal action when their concerns are timely addressed. In-house counsel also explained the importance of outside counsel having in-depth knowledge of their organizations, being cognizant of litigation costs, employing efficient billing practices, and fostering an ongoing relationship with clients, particularly when there is a change in leadership. Counsel had differing views on the amount of communication they prefer with their outside counsel, but agreed that they like to establish a strategy and know about potential litigation exposure at the outset of a case so that there are no surprises down the road.
Other panels discussed the regulatory environment under the current administration, and whether a lack of enforcement actions by the federal government means that there will be more enforcement actions by state attorneys general. Counsel in private practice argued that state attorneys general have already stepped in and brought more enforcement actions to fill the void left by the Consumer Financial Protection Bureau (CFPB). Counsel from the offices of the Illinois, Texas, and Virginia state attorneys general, however, did not subscribe to this view, and felt that limited resources preclude them from filing more enforcement actions to fill the void left by the weakened CFPB. They further highlighted how they prioritize enforcement actions, and the importance of defense counsel not stonewalling them with respect to providing information.
On the second day, McGuireWoods LLP’s Bryan A. Fratkin was part of a panel of attorneys who discussed the Fair Credit Reporting Act (FCRA) and the impact of Spokeo on standing and class actions. Bryan and the panel explained that, following Spokeo, the case law is mixed regarding what constitutes sufficient injury-in-fact in FCRA cases. Counsel also discussed various strategies parties employ because of standing issues, including creative pleadings by plaintiffs’ counsel to remain in state court and avoid the implications of Spokeo, and the difficulties defense counsel face in removing an action to federal court and then raising lack of Article III standing to get the case dismissed on jurisdictional grounds. Counsel further identified standing as a basis for defeating class certification by arguing that plaintiffs cannot establish class members’ injuries through common evidence.
In sum, the 2018 ACI conference opened up a fruitful dialogue by legal professionals involved in all aspects of consumer litigation and enforcement actions, and provided great insight on both common and diverging views on important issues in the field.