Tennessee has recently enacted some potentially far reaching changes to its data breach notification statutes. These changes could pose substantial burdens on businesses and professional organizations that do business in Tennessee and maintain personal information of Tennessee residents. Effective July 1, 2016, the Tennessee definition of what constitutes a “breach of the security of the system” that triggers notice includes not only the loss of unencrypted data but encrypted data as well (if that data includes personally identifiable information of Tennesseans). Tennessee is the first state in the country to eliminate a safe harbor from data breach notice obligations where the breach involves encrypted data. Read More ›
Despite the presence of an arbitration provision in a loan agreement or other document, a lender may be required to file suit to bring certain claims against individuals or property. For instance, a lender may be forced to file suit either to foreclose on a mortgage, or to obtain a court order to recover, liquidate, and clear title to collateral. If the borrower asserts counterclaims against the lender in response to the suit, the lender may want to compel arbitration with respect to those counterclaims. However, because filing a complaint can constitute a waiver of a party’s right to compel arbitration, lenders must be extremely careful both in filing suit and in responding to counterclaims to prevent a waiver of their arbitration rights. A recent case from the Kentucky Court of Appeals, Kathleen Imhoff v. Lexington Public Library Board of Trustees, 2016 WL 192017, shows just how careful a litigant in Kentucky must be to avoid waiving his or her right to arbitration. Read More ›
On January 1, 2016, the Uniform Voidable Transactions Act (UVTA) was enacted in Kentucky and can be found at KRS 378A.005 e seq. The UVTA replaces KRS 378, which contained KRS 378.010, the Kentucky fraudulent conveyance statute, and KRS 378.060, the Kentucky preference statute. Nationally, the UVTA will replace the Uniform Fraudulent Transfer Act (“UFTA”). According to the Conference of Commissioners on Uniform State Laws, California, Georgia, Idaho, Minnesota, New Mexico, North Carolina, and North Dakota have joined Kentucky in enacting the UVTA. Adoption of the UVTA is anticipated by the remaining states in the coming years. Read More ›
Should state Attorney General’s (AG’s) intrude in the private market place to influence the choice consumers and merchants’ make as to the type of payments they will prefer for credit card transactions? By any account, those are complicated business decisions involving complex cost, risk, marketing, technology and personal preference issues, which are often unique to each business’s situation. But nonetheless, this is exactly what nine Attorneys General recently did. Read More ›
Telemarketers are now prohibited from accepting four methods of payment that the Federal Trade Commission (“FTC”) believes allow fraudulent telemarketers to avoid detection and prevent chargebacks.
“Con artists like payments that are tough to trace and hard for people to reverse,” said Jessica Rich, Director of the FTC’s Bureau of Consumer Protection. “The FTC’s new telemarketing rules ban payment methods that scammers like, but honest telemarketers don’t use.”1 Read More ›
A House Divided: U.S. District Court Splits on Whether Class Has a Private Right of Action Against “Money Transmitters”
Two class action lawsuits, Hucke v. Kubra Data Transfer LTD., Corp., No. 2-15-cv-14232-RLR, and Pincus v. Speedpay, Inc. Case No. 9:15-cv-80164-KAM,  in the U.S. District Court for the Southern District of Florida, seek the determination of whether two credit card processors violated the following Florida statues: Read More ›
In a short but very sweet ruling for the financial institutions suing Target to recover costs associated with mitigating the gigantic data breach suffered by Target in late 2013, Judge Magnuson certified the financial institutions class on Tuesday September 15.
The litigation of which we have previously written on a couple of occasions (see At Risk: Community Banks and the Recovery of Losses Due to Merchant Data Breach and Opening the Rule 23 Floodgates: Did Plaintiffs just hit the Data Breach Bulls-Eye?) stems from a data breach that impacted more than 100 million customers and cost the financial institutions over 30 million in losses primarily due to the reissuance of some 25,000 debit and credit cards. Read More ›
On July 10, 2015, the Federal Communication Commission (FCC) came out with new rules interpreting the Telephone Consumer Protective Act (TCPA). Read More ›
Community Banks need to be aware of the risks posed by cryptocurrencies like Bitcoin, because their prevalence will only increase, writes the Federal Reserve Bank of San Francisco. Wallace Young, the Director of the Federal Reserve Bank of San Francisco, in the recent article “What Community Bankers Should Know About Virtual Currencies” in Community Banking Connections, outlines four risks undertaken by community banks that interact with businesses in the virtual currency ecosystem: Compliance, Reputational, Credit, and Operational. Read More ›
Continuity or Change? How the Supreme Court changed the law for lenders under the FHA without changing it at all.
After leaving the public, press, regulators, and lenders lingering for six months, the Supreme Court finally produced its 5-4 opinion in Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc., a blockbuster case in which the Court concluded that the Fair Housing Act permits statistically-based disparate impact claims. The Supreme Court’s opinion is important for two reasons. First, it finally puts the Supreme Court’s seal of approval on FHA disparate impact claims, a theory of liability that has been universally recognized by the federal courts of appeals. Second, it will likely embolden plaintiffs to file more suits using a disparate impact theory, which means lenders should evaluate their current policies and practices, especially discretionary pricing policies, to avoid engaging in practices that could be interpreted as discriminatory. Read More ›
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Christopher C. Tieke is an associate in Frost Brown Todd's Louisville office, focusing his practice on business litigation. He graduated from the University of Cincinnati College of Law, with magna cum laude honors; served as an Associate Member of the University of Cincinnati Law Review; and participated in the Entrepreneurship and Community Development Clinic.