For more information, please visit www.lenderlawwatch.com or www.enforcementwatch.com 29 clarified, rather than limited, Section 8(a)’s prohibition on kickbacks. Second, the panel held that even if the CFPB’s interpretation of Section 8 in the PHH decision was permissible, the CFPB could not retroactively apply that interpretation to PHH’s past conduct without violating the due process clause because prior HUD guidance about the legality of captive reinsurance arrangements had been different. This acceptance of the principle that regulated companies can safely rely on administrative guidance is very important, at least when such guidance is clear enough to justify reliance. Third, the panel had held that RESPA’s three-year limitations period applies to administrative enforcement actions just as it does to actions in court. The CFPB’s contrary position was that no limitations period applied to its administrative enforcement actions (though it ultimately argued for the application of the default, five- year federal rule). The panel did not decide whether each “above-reasonable-market value” payment for reinsurance “triggers a new three-year statute of limitation for that payment,” leaving that question for remand. It remains yet to be seen whether either the RESPA or the separation of powers holdings will be appealed to the Supreme Court, or whether the Supreme Court would grant cert if either side were to appeal. We will continue to monitor this case throughout 2018. Statutory Standing. 2017 saw Part II of the Robins v. Spokeo case. On remand from the Supreme Court, the Ninth Circuit (again) found that the plaintiff had standing to pursue his FCRA claims. The plaintiff had filed a putative class action against Spokeo alleging that the company’s publicly-available report about him contained incorrect information regarding, his age, marital status, and employment status. He claimed that this violated FCRA’s requirement that consumer reporting agencies must follow reasonable procedures to ensure the accuracy of information they report. The Supreme Court had concluded that the Ninth Circuit did not fully analyze whether plaintiff suffered a concrete injury. In reaching this conclusion, the Court distinguished concrete injuries from mere “procedural violations” and noted that “not all inaccuracies cause harm or present any material risk of harm.” The Ninth Circuit’s decision on remand articulated a two-part concreteness test to determine standing: “(1) whether the statutory provisions at issue were established to protect [the plaintiff’s] concrete interest (as opposed to purely procedural rights), and if so, (2) whether the specific procedural violations alleged . . . actually harm, or present a material risk of harm to, such interests.” This decision is noteworthy not only because of the case’s protracted history in the Ninth Circuit and the Supreme Court, but because it shows the evaluation of individual claims that courts must undertake in determining whether plaintiffs have standing. Spokeo filed another petition for certiorari, which the Supreme Court denied on January 22, 2018. The Seventh Circuit in Groshek v. Time Warner Cable, Inc. and Groshek v. Great Lakes Higher Education Corp. tackled the issue of standing after Spokeo. The plaintiff alleged that the defendants violated FCRA by failing to provide sufficient disclosures informing him that they were pulling his credit report in connection with his job application. Plaintiff claimed that the disclosures were not “clear and conspicuous” as required by the statute and that he had thus suffered a concrete injury by receiving a non-compliant disclosure. But the court found that the alleged withholding of information was not the kind of injury that FCRA was designed to protect. Rather, Congress intended to protect privacy by ensuring that employers received authorization from prospective job applicants prior to pulling their reports. Like the Supreme Court’s decision in Spokeo, the decision stands for the proposition that an alleged statutory violation does not per se satisfy the concreteness requirements of Article III. Contractually Compelled Arbitration. In Dillon v. BMO Harris Bank, the Fourth Circuit held that an arbitration clause was unenforceable because it amounted to a prospective waiver of the borrower’s federal law rights. The plaintiff had entered into a payday loan agreement in which he agreed to allow the lender to automatically withdraw payments from his bank account. He also agreed to arbitrate any claims he might have under “the law of the Otoe-Missouria Tribe of Indians.” The agreement further specified that the parties were not subject to the laws of the United States—state or federal. The plaintiff eventually sued the processor of the automatic withdrawals, BMO Harris, alleging federal RICO violations. BMO Harris moved to compel arbitration. The District Court denied that motion, and the Fourth Circuit affirmed. The Fourth Circuit held that while there is a strong federal policy favoring