Regulatory Enforcement Actions

Favorably settled a Consumer Financial Protection Bureau (CFPB) enforcement action against an automobile finance company alleging deceptive marketing of ancillary products. In announcing the settlement, the CFPB lauded the client's "responsible" and "proactive" handling of the CFPB's concerns and attributed its decision to impose limited redress (including no civil monetary penalty) to the handling of the case.
Represented credit card issuers in several separate groups of enforcement actions brought by the CFPB, FDIC, OCC and several state attorneys general challenging the marketing and suitability of debt suspension, identity theft and other fee products.
Represented several companies responding to CFPB civil investigative demands concerning payroll card practices.
Represented a national retailer in an investigation by a state attorney general concerning weights and measures issues.
Represented a student loan company in a state attorney general investigation concerning marketing practices.

Lending

Credit Card

Represented several issuers in separate groups of competing class actions concerning debt suspension and other "add-on" fee products. Reached a favorable global settlement for one issuer after successfully consolidating the cases in an MDL, and compelled multiple individual arbitrations for others.
Favorably settled numerous simultaneous class actions brought against a major credit card issuer alleging inadequate disclosure of foreign currency conversion practices. Obtained final approval of class settlement over objections from plaintiffs in competing cases.
Favorably settled class actions against issuers alleging damages based on use of cutoff time for crediting payments by mail. One of the cases, Boehr v. Discover Bank, settled after the plaintiff was compelled to arbitrate on an individual basis after years of highly publicized arbitration appeals, and Discover prevailed at the arbitration hearing.
Represented a major credit card issuer in a putative class action alleging improper expiration of frequent flyer miles. Obtained summary adjudication of the principal claim and then defeated a motion for attorneys' fees after remaining claims were voluntarily dismissed.
Favorably settled a class action alleging inadequate disclosure of interest compounding practices.
Favorably settled numerous separate class actions seeking to invalidate credit card debt incurred through Internet or other gambling activities.
Other successful credit card representations include class actions challenging termination of card reward benefits, gift card expiration practices, and convenience and balance transfer check disclosures.

Residential Mortgage

Favorably settled several separate class actions against large banks alleging systematic misadjustment of adjustable interest rates.
Successfully defended putative class action challenging propriety of prepayment penalties.
Numerous representations of large banks in disputes with other banks or investors over mortgage servicing transfers, indemnification obligations and securitization issues.
Successfully represented national mortgage lenders in class actions and individual cases challenging the lenders' entitlement to earthquake insurance proceeds. One case resulted in a key published opinion on the issue, JEM Enterprises v. Washington Mutual Bank, 99 Cal. App. 4th 638 (2002).
Extensive experience managing portfolios of routine litigation for large banks and mortgage servicers.

Commercial Lending

Obtained a published opinion in Weiss v. Washington Mutual Bank, 147 Cal. App. 4th 72 (2007), confirming that the Home Owners' Loan Act and related regulations pre-empted the plaintiffs' challenge to certain prepayment penalties.
Successfully defended a national bank against RICO and other claims arising out of a dispute between partners in a commercial redevelopment project financed by the bank.
Other successful representations include enforcement of commercial loans and related guaranties, disputes between syndicated loan participants and agent bank, and various lender liability claims.

Marketplace Lending and Alternative Finance

Successfully defended or settled multiple usury class actions alleging that merchant cash advances were disguised loans.
Numerous successful defenses of usury cases alleging "true lender" claims.
Favorably settled class action against a payday lender alleging failure to comply with certain California disclosure requirements.
Favorably settled a class action against a specialty finance firm challenging marketing of ATM lease financing.

Regulatory Compliance Advice

Extensive experience advising participants in marketplace lending programs on bank partnership structures, Madden and true lender risk, state licensing, and other compliance matters.
Extensive experience drafting arbitration agreements with enforceable class action waivers.
Drafted, redrafted or substantially revised agreements for consumer and small business financial products including credit cards and other open-end consumer loans, closed-end unsecured loans, prepaid cards, automobile leases, retail installment sale contracts, business installment loans, merchant cash advances, and payday loans.
Extensive experience advising on compliance systems, including revision of policies, procedures and internal controls.
Advised banks, retailers and other companies on customer loyalty programs and related advertising issues.
Regularly advise national retailers, banks and other consumer-focused companies on privacy-related issues, including Gramm-Leach-Bliley Act and Telephone Consumer Protection Act compliance and issues associated with various marketing practices.
Regularly review advertising materials for FTC compliance issues such as "up to" claims.
Conduct regulatory due diligence for acquisition of financial services companies.

Unfair and Deceptive Business Practices Litigation

Numerous successful representations of defendants other than financial institutions in class and representative actions alleging false or misleading advertising of, or use of unfair business practices with, a wide variety of products and services.
Extensive experience defending claims brought under California Business and Professions Code Section 17200, the California Consumers Legal Remedies Act, and other state UDAP statutes.
Played significant role in the drafting of Proposition 64, a major reform of California's Unfair Competition Law.
Multiple successful representations of companies whose names had been used without permission by scam artists for various illegal purposes, such as to steal money from consumers or generate fraudulent sales leads.

Real Estate

Successfully defended a large REIT against antitrust claims including an allegation that it conditioned lease opportunities at one mall on agreement to lease at another. The plaintiff voluntarily dismissed before the preliminary injunction hearing in response to the demand letter accompanying opposition papers.
Multiple representations of developers in disputes over development fees and profit participations, including a multimillion-dollar recovery in 2012 for a publicly traded real estate developer.
Multiple representations of buyers and sellers of commercial real estate in disputes ranging from breach of purchase agreements to whether broker commissions were owed.
Prevailed after two trials and multiple appeals in a declaratory relief action brought by a bank landlord against a law firm tenant that claimed waiver of a significant market-rent increase. The bank recovered 100 percent of the relief it sought and all of its attorneys' fees and costs before reaching settlement.
Significant experience with judicial and nonjudicial foreclosures, enforcement of guaranties, lot-line adjustments, title issues, ground leases, easement disputes, and California's antideficiency statutes and "one action" rule.

Investment-Related Litigation

Multiple successful representations of private equity firm portfolio companies in "bet the company" cases ranging from a claim that a company's sole product violated applicable building codes to class actions alleging that the company's principal business is prohibited by the federal Fair Debt Collection Practices Act.
Multiple successful representations of private equity firms and their principals in cases brought against directors and shareholders arising out of portfolio company activities.
Multiple successful representations of large financial institutions sued together with the actual wrongdoers in investment fraud cases.
Successfully defended arbitration against a large broker-dealer and broker alleging churning of extremely large municipal bond portfolio.
Extensive experience advising private equity firms and hedge funds on appropriate predistribution litigation reserves.

Privacy and Data Security (Including Telemarketing)

Obtained summary judgment and avoided draconian statutory penalties for a major credit card issuer in a putative class action challenging customer service call recording practices.
Favorably settled a call recording class action on behalf of a national merchant services provider. Client paid (with large insurance contribution) substantially less than 1 percent of $1.7 billion in potential exposure.
Numerous successful representations of defendants in class and individual actions alleging violations of the Telephone Consumer Protection Act.
Represented a major Internet retailer in numerous proceedings arising from the massive theft of customer data by a hacker, including state attorney general statutory notifications and investigations, PCI DSS (payment card network data security rules) compliance, and defense of numerous resultant consumer class actions.
Successfully settled a series of putative class actions brought against national banks and their affiliates challenging the sharing and/or use of customer information for marketing purposes.

Sports and Entertainment

Successfully represented a concert promoter in a class action challenging the marketing of a major music festival.
Represented an NHL club in a grievance proceeding against another club arising out of representations made prior to player trade.
Counsel to NFL, MLB, NHL and MLS clubs on various regulatory compliance issues associated with ticketing and other business operations.
Advised an NHL club on various confidential player issues.
Counsel to entertainment companies on regulatory compliance issues associated with ticket sales and other direct-to-consumer operations.

Intellectual Property and Trade Secrets

Successfully represented an aerospace manufacturer that discovered a former employee had copied voluminous product data onto a thumb drive before taking a job with a competitor. Obtained temporary, preliminary and permanent injunctive relief preventing any use of the data; the court made a criminal referral after a six-week jury trial based on defendants' destruction of evidence.
Represented multiple clients in different industries in trademark infringement actions, employee raiding cases, licensing matters and Internet domain name disputes.

Legal Process Engineering

Worked with a national bank and its outside counsel to re-engineer the process for a category of litigation, resulting in multimillion-dollar annual performance improvement for the bank, as measured by legal spend, recovery on investment and other metrics.
Regularly employ process mapping and other Lean Six Sigma techniques to effect continuous improvement of litigation and other legal processes.

Pro Bono Experience

Clients have included the Green Beret Foundation and the Exotic Feline Conservation Center.

Ten Actions for Effective Data Risk Management

Published On

Author

Jesse M. Brody

Share

Ten Actions for Effective Data Risk Management

Newsletter Subscription