December 06, 2018

MONTH-IN-BRIEF: Business Regulation & Regulated Industries

Lynette I. Hotchkiss

Consumer Finance Law

FCC Chairman Proposes Creating Reassigned Numbers Database

By Kristina A. Del Vecchio, Joseph & Cohen, P.C.

On November 20, 2018, Federal Communications Commission (FCC) Chairman Ajit Patel announced a proposal to “reduce unwanted robocalls and prevent spam text messaging” by creating a reassigned number database to aid callers in complying with the Telephone Consumer Protection Act (TCPA).  The database would identify phone numbers that have been reassigned so that callers could know whether the number belonged to someone other than the person they are trying to reach and avoid calling the phone number if it has been reassigned. 

He also proposed to make clear that wireless providers are authorized to take measures to stop unwanted text messaging through robo-text blocking, anti-spoofing measures, and other anti-spam features.  The draft Declaratory Ruling on text messaging would rule that text messaging services are “information services” rather than “telecommunications services,” which would allow carriers to continue using robo-text blocking and anti-spoofing measures to protect consumers from unwanted text messages.  The FCC will consider these actions at its December 12, 2018 Open Commission Meeting.

Employment Law

Seventh Circuit Finds that Courts Should Decide Class or Collective Arbitrability

By Eric Tsai, Maurice Wutscher LLP

In a decision that impacts businesses that use arbitration agreements, the U.S. Court of Appeals for the Seventh Circuit recently vacated an order enforcing a $10 million judgment awarded in a collective arbitration.  The plaintiff filed a putative class and collective action against her former employer, alleging wage and hour violations under the Fair Labor Standard Act and breach of her employment contract.  The district court determined that the arbitration clause in the employment agreement was enforceable, but not the class action waiver because at the time the court compelled arbitration, the National Labor Relations Act prohibited class action waivers as a condition of employment.  The arbitrator certified a class and issued the judgment in favor of the plaintiff and the class.  On appeal, the Seventh Circuit held that the district court erred in striking the waiver based on the U.S. Supreme Court’s ruling Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018), which upheld the validity of waiver provisions like the one in the plaintiff’s employment agreement.  Additionally, the Seventh Circuit joined the Fourth, Sixth, Eighth, Ninth, and Eleventh Circuits, and held that determining class or collective arbitrability is a gateway question that is presumptively for the court to decide, rather than the arbitrator.  This ruling may have practical implications for businesses seeking to compel individual arbitration from a court, particularly in the absence of an express class action waiver.

Lynette Hotchkiss

EVP/General Counsel & Corporate Secretary; Rabobank, N.A

Lynette Hotchkiss is EVP/General Counsel & Corporate Secretary for Rabobank, N.A., where she also previously served as Associate General Counsel. Prior to joining Rabobank, Lynette was with OneWest Bank, N.A, where her responsibilities included monitoring and reporting on regulatory developments impacting the bank’s operations and providing legal support for regulatory compliance matters. Before that, Lynette was an attorney in the Financial Practices Division of the Federal Trade Commission, where she focused on mortgage servicing issues. For much of her career, Lynette used her knowledge and experience in consumer finance laws and regulations to build compliance tools to help financial institutions comply with the complex array of federal and state requirements, first acting as the lead compliance attorney at CFI ProServices Inc. (now Finastra) to develop the Laser Pro® loan documentation system and later leading the legal team at Mavent Inc. (now part of Ellie Mae) to develop the Mavent Expert System, an automated compliance system for mortgage origination.