Sean Murray is the President and Chief Editor of deBanked and the founder of the Broker Fair Conference. Connect with me on LinkedIn or follow me on twitter. You can view all future deBanked events here.
Articles by Sean Murray
Yellowstone Capital, FTC Lawsuit Results in Settlement
April 22, 2021
The lawsuit filed by the FTC against Yellowstone Capital et al has resulted in a settlement. The defendants agreed to pay $9,837,000 for the matter to be resolved.
As part of it, the defendants did not admit or deny the allegations of the complaint. They also agreed to have the FTC monitor their compliance with the agreement for varying but long periods of time.
Aside from the cost, the FTC made its point in two areas, the requirement that the defendants comply with a specific system of customer disclosure and that they not debit or cause withdrawals to be made from any customer’s bank account without the customer’s express informed consent. On the former, they must (roughly speaking) disclose clearly and conspicuously the amount and timing of any fees, the specific amount a customer will receive at the time of funding, and the total amount customers will repay.
The announcement coincides with the Supreme Court decision that revoked the agency’s presumed authority to obtain restitution or disgorgement under Section 13(b), the basis that the FTC brought against Yellowstone Capital in August 2020.
The FTC signed and filed the agreement less than 24 hours before the SCOTUS decision.
The FTC is Very Upset With the SCOTUS Decision
April 22, 2021
Responding to the FTC’s devastating loss on AMG Capital Management, LLC et al v Federal Trade Commission before the Supreme Court of the United States in which the agency’s presumed authority to pursue relief such as restitution or disgorgement under Section 13(b) was revoked, Acting Chairwoman Rebecca Kelly Slaughter said:
“The Supreme Court ruled in favor of scam artists and dishonest corporations, leaving average Americans to pay for illegal behavior. With this ruling, the Court has deprived the FTC of the strongest tool we had to help consumers when they need it most. We urge Congress to act swiftly to restore and strengthen the powers of the agency so we can make wronged consumers whole.”
The FTC claims that thanks to 13(b) they had secured billions of dollars over the past four decades “in relief for consumers in a wide variety of cases, including telemarketing fraud, anticompetitive pharmaceutical practices, data security and privacy, scams that target seniors and veterans, and deceptive business practices, among many others.”
Over the past five years alone, the FTC has refunded $11.2B to consumers through awards granted under 13(b).
The FTC has already begun to petition Congress to change the law.
United States Supreme Court Defangs FTC in Explosive Decision
April 22, 2021
The United States Supreme Court issued an explosive decision in AMG Capital Management, LLC et al v Federal Trade Commission, invalidating the Commission’s attempt and assumed power to pursue equitable monetary relief such as restitution or disgorgement under 13(b).
Held: Section 13(b) does not authorize the Commission to seek, or a court to award, equitable monetary relief such as restitution or disgorgement. Pp. 3–15.
The immediate result is that the FTC’s largest judgment in history ($1.3 billion) against the companies belonging to payday lending kingpin Scott Tucker, has been undone.
The larger implication is that all of the FTC’s pending lawsuits seeking such relief against defendants under 13(b) are in mortal peril.
“Nothing we say today, however, prohibits the Commission from using its authority under §5 and §19 to obtain restitution on behalf of consumers,” the Court said. “If the Commission believes that authority too cumbersome or otherwise inadequate, it is, of course, free to ask Congress to grant it further remedial authority.”
Over the past five years alone, the FTC has refunded $11.2B to consumers through awards granted under 13(b).
Scott Tucker is currently in prison serving time for charges related to the FTC lawsuit. He was the subject in a Netflix Series called “Dirty Money” in 2018.
This story will be updated…
Governor Phil Murphy on Fintech in New Jersey
April 14, 2021
In a joint webinar between Choose New Jersey, FinTech Ireland, the New Jersey City University School of Business, and others, NJ Governor Phil Murphy kicked off the event by saying that his state’s object is nothing short of being the state of innovation, where new ventures can take shape, companies can expand, and people can raise a family.
Murphy’s participation in Irish fintech collaboration was steeped in his commitment to international relations and business.
“The fintech business in particular is a big part of our economy,” Murphy said. “We’ve got proximity to New York City’s financial markets and as a result we’ve become sort of the perfect home for fintech companies. We have 145 fintech companies headquartered in New Jersey.”
The island of Ireland, by comparison, is home to nearly 250 indigenous fintech companies, according to the latest Fintech Ireland map. Recently, Irish fintech companies ranked the United States and Canada as their #1 priority region for expansion.
New Jersey is hoping to benefit from transatlantic opportunities this might present.
“There’s no better place in America than to plant your flag here in New Jersey,” Murphy said. “To those who are considering [it], it’ll be the best decision you ever make.”
The Governor also revealed that his family is descended from Donoughmore, County Cork and that he hopes to make a state trip to the republic soon.
Gregory J. Nowak, Partner at Troutman Pepper, Has Passed Away
April 13, 2021
Gregory J. Nowak, a partner at Troutman Pepper, passed away suddenly on April 11th at the age of 61.
The firm’s website introduced Nowak as a veteran attorney that was “sought after for advice on complex securities law matters, particularly on issues arising out of the Investment Company Act of 1940; the Investment Advisers Act of 1940; federal and state securities laws and regulations; broker dealer, FINRA, CFTC and NFA regulatory matters; and corporate and M&A transactions.”
That perfectly sums up the context in which I first encountered Nowak in 2017 when he spoke at a small event put on by the Alternative Finance Bar Association where I was the only non-lawyer in the entire audience. One might expect a presentation on the finer minutiae of securities law of which he gave, to be a mundane, easily forgotten experience for a financial journalist such as myself, but his energetic delivery and fluid command of the subject matter translated complex securities questions into a folksy debate wherein one could feel confident in resolving the Howey Test over the dinner table just as easily as they could in the courtroom.
In fact, I approached him afterwards to thank him on his presentation and even followed up later over email, asking if I might have the honor to list him as a recommended securities attorney on the deBanked website. That was four years ago and as fate would have it, he remained the only recommended attorney that deBanked formally listed under the securities category, despite my coming to know very many accomplished and competent attorneys in the same field of law.
Nowak was one of the earliest public voices in the world of merchant cash advance participations and syndication where the securities question was a consideration some weren’t even sure applied as the industry created new products and investing structures at a furious pace.
He spoke at deBanked’s first major conference in 2018 on the subject of “Syndication and Raising Capital,” and he continued to generate recognition of the need for securities legal support in the burgeoning industry.
He was a co-author of an article published with a colleague at Pepper Hamilton LLP (now Troutman Pepper) that he had given permission to be reprinted on deBanked in December 2018, titled MCA Participations and Securities Law: Recognizing and Managing a Looming Threat. It was read by more than 1,500 people on the deBanked website that first day alone.
Nowak was highly sought out on merchant cash advance issues. “Most judges want to see consistency of treatment and that includes your vocabulary,” Nowak said in an interview with deBanked in April 2019. “The word ‘loan’ should be banned from their email and Word files.”
Although our relationship was one of professional acquaintances, I often told those seeking advice about MCA syndication that they should “probably call Greg Nowak about that.”
In “Does Your Merchant Cash Advance Company Pass The Scrutiny Test?“, Nowak explained that funders that decide for business purposes to solicit money from investors, have to be careful not to run afoul of SEC rules. He said that he recommended funders treat these fundraising efforts as if they are issuing securities and follow the rules accordingly. Otherwise they risk being the subject of an enforcement action where the SEC alleges they are raising money using unregulated securities.
“You need to be very careful here because these rules are unforgiving. You can’t ignore them,” Nowak said.
California’s Business Loan & MCA Disclosure Law Is Nearing Finality
April 13, 2021
Nearly three years after California became the first state to pass a business loan and merchant cash advance disclosure law (SB 1235), the actual disclosure rules themselves are finally nearing completion. The public has until April 26th to submit any comments on the amended portions of the proposed rules.
The 52-page document is the result of years of negotiations between various parties that all have a stake in its implementation. Among the finer details are the characteristics of the fonts permitted in the disclosures, what column a certain disclosure can be placed in, and the aspect ratio of the columns themselves.
But that’s the easy part. Here’s the hard part, according to a brief published in Manatt’s newsletter yesterday.
“The modified regulations continue to require use of the annual percentage rate (APR) metric, rather than annualized cost of capital (ACC), to disclose the total cost of financing as an annualized rate. This appears to be a final decision, which will make it difficult if not impossible for many commercial finance companies to comply given the significant challenges of calculating APR on products with substantial variance in the amounts and timing of payments or remittances.”
Manatt highlights other issues, including that all the necessary disclosures be provided “whenever a payment amount, rate, or price is quoted based on information provided by the proposed recipient of financing…”
This requirement, the firm says, is not even required under Federal Regulation Z for consumer loans.
“Many companies will not be able to comply with this requirement absent radical changes to their California application and underwriting procedures, as it is common today for companies to have preliminary discussions with applicants about potentially available financing terms before full underwriting has been completed.”
Manatt’s newsletter on the issue can be found here.
Any interested person may submit written comments regarding SB 1235’s modifications by written communication addressed as follows:
Commissioner of Financial Protection and Innovation
Attn: Sandra Sandoval, Regulations Coordinator
300 South Spring Street, 15th Floor
Los Angeles, CA 90013
Written comments may also be sent by electronic mail to regulations@dfpi.ca.gov with a copy to jesse.mattson@dfpi.ca.gov and charles.carriere@dfpi.ca.gov.
The last day to submit comments is April 26, 2021
Coinbase Generated $800M Profit in a Single Quarter
April 7, 2021
The emerging powerhouse in the fintech industry isn’t a lending or payments company, it’s a cryptocurrency exchange. One can express as much skepticism as they want about Coinbase, but the company, which goes public on the Nasdaq next week, generated nearly $800 million in profit in Q1 of 2021 alone.
Coinbase has 56 million verified users and holds $223 billion in assets, equal to about 11.3% of the entire crypto market.
The company says it is “building the cryptoeconomy, a more fair, accessible, efficient, and transparent financial system enabled by crypto.”
The company launched in 2012. Its last private market valuation was at about $90 billion.
Facebook Ads Don’t Work For Finance?
March 29, 2021
In an op-ed by Brittney Holcomb in Leasing News, Holcomb wrote that “when it comes to developing lead generation, social networks are not the answer.”
Holcomb breaks down her reasoning, explaining that Likes do not equal leads. It’s worth a read if you have advertised or have thought about advertising on Facebook, but I will respectfully disagree with her on the basis of her arguments.
“People don’t log on to social networks to search for products or services,” she writes, “They use social media to communicate with their friends and family.”
Perhaps so, but there are many different ways in which to approach Facebook advertising, and I say this as someone who has had success advertising in the B2B universe on the platform. Users weren’t searching for my product or service either and I wasn’t advertising for the sake of branding, something I personally do not even consider doing.
You can use social networks like Facebook to convert a lead you almost got or lost. For example, not everybody that comes to your website ends up completing a form and for those that do, fewer yet will end up signing a contract.
What happens is your prospects get distracted, decide to do more research, or get wooed by a competitor. Maybe they just weren’t convinced the timing was right. This is where social network advertising comes into play because you can relay that website visitor data or unclosed leads to Facebook and serve ads ONLY to those prospects. By knowing exactly where your prospect left off with you, you can set your campaigns to target them with the most appropriate advertising. That prospect might not be searching for your product on Facebook (just as Holcomb suggests), but you can appear right there like magic in their feed to remind them of exactly where they left off last time they engaged with you.
You can pretty much do anything you want especially if you’re actively managing and monitoring your web traffic and analytics.
Maybe you only want to serve ads to visitors who didn’t fill anything out on your website but clicked around for more than 2 minutes. Worth a shot, perhaps?
Consider the person shopping around who spent a few minutes researching a financial solution on three different company websites. They don’t fill anything out but instead resolve to make a decision on where to apply in the next couple days. That night and each night thereafter, one of those companies appears in their Facebook feed constantly, telling them why they’re better than the competition or that they’re the goto-brand. It’s an ad, yes, but it creates the impression that this company is everywhere and can place them top of mind when it’s time to decide. That can be money well-spent. It’s also the fundamental way in how social media advertising works these days, which is why we sometimes get creeped out by how well ads seem to know us. Anyone can do this.
Admittedly, one might not have any leads to target on social media if they don’t have website visitors to begin with, hence why paid search would be a better medium to choose if given the option between one versus the other.
I believe the two are not mutually exclusive, however. First get the prospects to your website (be that through paid search or organic means or whatever), and then close those prospects through social network advertising. Your competitors are already doing it and that’s why some of them are doing so well.
Facebook Ads Can Work For Finance. They just have to be properly tailored. And once you get it right, you’ll be kicking yourself for not having taken advantage of it for so many years.
