February 1, 2017
Authored by: Douglas Thompson
CFPB watchers know that since 2013 customer complaints have been solicited and complaint data has been made available on the CFPB website. January is ubiquitous with New Year’s resolutions (perhaps you’ve already broken all of yours, but hopefully not). It is a great time to review the 2016 customer complaint data and see what the Plaintiffs’ Bar sees about your customers and your institution.
Undoubtedly, in due course, the CFPB has contacted your compliance and legal teams directly about these consumer complaints on an individualized basis. And undoubtedly, you have investigated the issue and provided responsive information to the CFPB and the consumer. Hopefully, each individual customer complaint matter is resolved and closed.
As a class action litigator, however, it is important to highlight that there is more here than just each individual complaint. We are living in an age of big data. The CFPB knows it. Your institution knows it. And, guess what, the Plaintiffs’ Bar knows it. The individual complaints posted to the CFPB database may be only the tip of the iceberg, or the issues may not have been fully resolved.
Class action litigation at its core is about proving through one representative plaintiff a course of conduct generally applicable to a sizeable number of other similarly situated persons, dubbed putative class members. Institutions can assert defenses applicable not only to the representative named plaintiff but also to any and all of the putative class members.
Both the CFPB and the Plaintiffs’ Bar may utilize consumer complaint data analysis to identify patterns, trends or repeat issues that may impact large audiences. You should be doing so too. And presumably your audit and compliance and legal teams are already doing this utilizing your own internal data.
The publicly available CFPB consumer compliant data provides an interesting opportunity for you to gauge what the Plaintiffs’ Bar might see. Are complaint volumes increasing? Are complaint volumes coalescing on a handful of products? How does it appear that your institution stacks up against peers in terms of volume of complaints and types of complaints? These are all questions the Plaintiffs’ Bar may be analyzing through the public data.
The data when downloaded can be sorted by institution, date, product, issue, state, resolution, etc. The data also includes the “consumer complaint narrative” is available, as is the “company’s public response.” The particular product types tracked include: bank accounts, credit cards, credit reporting, debt collection, money transfers/virtual currency, mortgage, payday loans, prepaid cards, student loans, and vehicle/consumer loans. The CFPB further explains the additional data fields available.
For 2016, a download of customer complaints for all institutions yields approximately 165,000 complaints across the nation and across all regulated institutions, including at least ten complaint on New Year’s Day (the power of the 24/7 internet…). Numerous institutions and vendors have complaints listed. Certainly the higher the volume of the complaints, the more likely an institution may be targeted by the Plaintiffs’ Bar.
Part of the supervisory (and examination) processes of the CFPB and OCC is to identify new products, process and trends that may present risk to the institution and or its customers. Similarly, the Plaintiffs’ Bar is always looking for its next case — its next theory. Institutions should assume that the Plaintiffs’ Bar may be reviewing and analyzing the publicly available consumer complaint data about your institution. Their interest may be piqued by new complaints involving a particular product or an increase volume trend in the nature of certain complaints. Some members of the Plaintiffs’ Bar advertise and solicit their own firm websites potential clients for particular topics the firm is “investigating.” Sometimes these are topics looking for target institutions. Often, the institution already is identified in the website solicitation material. The genesis of the “investigation” may be the publicly available CFPB consumer complaint data.
If and when the firm obtains a “representative” consumer plaintiff, it is off to the races. A class action litigation claim may be filed. In moving to certify any putative class of similarly situated persons asserting the Plaintiffs’ Bar will seek your own data and records, but on occasion they may also try to rely on publicly available complaint information, such as that from the CFPB. The Plaintiffs’ Bar also may try to leverage other non-governmental sites such as consumer complaint websites or blogs where consumers may have identified the institution and the nature of their complaint. Unfortunately, consumers and advocates have targeted many institutions with “[fill in the institution name] sucks.com” websites or blogs. Similar to the CPFB public data, institutions also can monitor such sites to identify trends, spot hot topic issues, and address consumer challenges.
In driving strategic action items for 2017, it may be a good time to augment your process to monitor and analyze these data sources. Institutions can best mitigate their class action litigation risk by identifying issues first, moving to correct them, and implementing any appropriate policy or procedure enhancements or personnel training, before regulators or the Plaintiff’s Bar comes knocking. In this context, an old adage seems apt — “a stitch in time saves nine.”