In This Issue

Consumers

Antitrust Considerations in Payments

New payment technologies have received attention in the press, from government agencies, and by the Plaintiffs’ bar. As the payments ecosystem evolves, it is helpful to think about how competition may be evaluated in the payments space, particularly since innovations have been at different functional levels (e.g., merchant point-of-sale (“POS”), payment networks). The concept of two-sided markets has received attention in evaluating competition in payments, notably in the U.S. vs. Visa et al. decision 20 years ago and in the 2018 Ohio vs. AMEX Supreme Court decision.

Consumers

ABA Outlines Best Practices for Third-Party Litigation Funding

In August of 2020, the American Bar Association (ABA) House of Delegates issued “Best Practices for Third-Party Litigation Funding” (the “Report”). Litigation funding, in any of its various forms, is largely unregulated by statute in most states. Accordingly, litigation funding companies with a national presence must navigate a shifting mosaic of common law, regulator guidance, and bar association opinions in order to operate. Amidst this legal uncertainty, self-policing is necessary to avoid regulatory scrutiny and to dissuade legislators from enacting overly onerous statutory limitations. The Report provides a valuable resource for self-policing of the industry.

Consumers

Courts Continue Trend of Increased Scrutiny over Class Action Settlements

Under Federal Rule of Civil Procedure 23(e), courts must ensure that class action settlements are “fair, reasonable, and adequate.” In 2018, Rule 23(e)(2) was amended to include factors courts must consider when analyzing a class settlement, including whether (1) the class representatives and counsel adequately represented the class, (2) the proposal was negotiated at arm’s length, (3) the relief proposed is adequate, and (4) the proposal treats class members equitably. Along with the plain language of Rule 23, courts have developed a litany of other factors when considering whether a class action settlement is fair, reasonable, and adequate, and the Advisory Committee Notes to the 2018 amendments clarify that the new factors are intended to supplement, not displace, any factors developed by the federal Courts of Appeals.

Consumers

What Is an Automatic Telephone Dialing System?

As any good regulatory compliance attorney would do when asked, “What is an automatic telephone dialing system,”, I turn to my litigation partners and say, “well, what is it?” The interplay between regulatory compliance and litigation is important and should be considered early in the development of new products and services. This may be especially true when we talk about the Telephone Consumer Protection Act (“TCPA”) where courts have taken the lead in interpreting key provisions of the law. Moral of the story? Make sure to include your litigation partners when interpreting the TCPA!

Consumers

Membership Minute

CFSC by the Numbers: The ABA has seen overall membership slip, especially during COVID. Often people don’t even realize their membership has lapsed, or they forgot to “join” our committee when they renewed, which means they’re not even receiving this newsletter. Please do everything you can to encourage friends and colleagues to reach out for more information about the CFSC, to review their member profiles, and to check out our fantastic CFSC CLE and non-CLE content, networking, publishing and other opportunities to get involved!