May 8, 2014 – Insights from ETA Member and Guest Blogger Edward A. Marshall
Operation “Choke Point”: An Aggressive FTC and the Response of the Payment Systems Industry
In an initiative ominously dubbed “Operation Choke Point,” the Federal Trade Commission (the “FTC”) has increasingly targeted players within the payment systems industry for the allegedly deceptive trade practices of their merchants. These legal actions have taken two primary forms.
First, the FTC has pursued payment processors and independent sales organizations (“ISOs”) as co-defendants in civil actions against allegedly untoward merchants, asserting that – by virtue of their facilitation of the merchant’s payment card transactions – these actors should be held jointly liable for the injury that the merchant’s purportedly deceptive practices inflicted on the consuming public. See, e.g., FTC v. WV Universal Mgmt., LLC, Civil Action No. 6:12-cv-1618 (M.D. Fla. June 18, 2013); FTC v. Innovative Wealth Builders, Inc., Civil Action No. 8:13-cv-123 (MD. Fla. Jun. 4, 2013). The argument tends to be that, because the processor had reason to know of unusually high chargeback ratios, high returns, and/or publicly accessible consumer complaints associated with the merchant, it effectively turned a blind eye to “red flags” of alleged consumer fraud. Thus, in the parlance of the FTC, the processors allegedly provided “substantial assistance or support” to the bad actors while “consciously avoid[ing] knowing that the [merchant] is engaged in” deceptive marketing practices, all in violation of the FTC’s Telemarketing Sales Rule. 16 C.F.R. § 310.3(b) (“It is a deceptive telemarketing act or practice and a violation of this Rule for a person to provide substantial assistance or support to any seller or telemarketer when that person knows or consciously avoids knowing that the seller or telemarketer is engaged in any act or practice that violates §§ 310.3(a), (c) or (d), or § 310.4 of this Rule.”).
Second, the FTC has pursued contempt sanctions against processors and ISOs for continuing to honor consumer-initiated chargebacks following a court-imposed “asset freeze” over a merchant’s funds. In such cases, the FTC has argued that once the processor and ISO were put on notice of the asset freeze, it became their responsibility to stop processing chargebacks from reserves associated with the affected merchant. If the processor nevertheless debited the chargebacks from “reserve accounts” linked to the merchant’s transactions, then the FTC takes the position that the processor and ISO violated the asset-freeze order, subjecting them to sanctions – including turning over the original balance of the reserve account to an FTC receiver. Perhaps to soften judicial resistance to such sanctions, moreover, the FTC will often seek to portray the processor and ISO as somehow culpable in bringing about the consumer fraud – e.g., by arguing that the presence of the same “red flags” described above should have alerted them to the merchant’s questionable business activities. The theory is that, by continuing to do business with a merchant whose account reflected such potential indicia of untoward business practices, the processor or ISO should bear the risk for the ensuing chargebacks (no matter what contractual protections were built into their merchant services agreement).
Not surprisingly, the FTC’s enforcement actions – despite their laudatory goals – have been the subject of certain criticisms.
At a high level, some have argued that the FTC is effectively transferring its regulatory enforcement responsibility to payment processors and ISOs – involuntarily deputizing them as watchdogs of consumer fraud perpetrated by the merchants with which they do business and making them unwilling insurers against merchant fraud. And critics have argued that the standards by which the FTC assigns culpability to actors within the payment ecosystem are vague and ill-defined (e.g., at what point do chargebacks become “red flags” of deception versus an indicator of more innocuous consumer frustration?).
There are also certain legal, factual, and policy-based objections to the FTC’s approach.
For example, the alleged failure to more aggressively detect and respond to high chargeback ratios, returns, and consumer complaints could arguably be more accurately characterized as passive negligence rather than “conscious disregard.” And the assignment of culpability in contempt actions (e.g., for continuing to debit consumer chargebacks from reserves) may be jurisdictionally impermissible when the targeted processor or ISO is a non-party to the underlying merchant litigation. Plus, the FTC’s contempt actions arguably misconstrue a processor’s reserves as “merchant funds” when they may, by contract, legally belong to the processor, while at the same time ignoring potential rights of recoupment belonging to the processor.
What is more, much of the FTC’s apparent ire directed at the payment systems industry seems to be predicated on the factual assumption that chargebacks and returns are necessarily (or at least typically) indicative of deceptive business practices. Often, however, that may not be the case. Chargebacks and returns can arise from any number of circumstances, many of which are either innocuous or, at worst, indicative of problems that do not rise to the level of consumer deception or fraud.
There is also the concern that enforcement actions will have unintended and unwanted consequences that will extend beyond the “bad actors” the FTC should want to see shut down. For example, merchants perceived to be working in “high-risk” markets, even legitimate businesses, may be excluded from the payment card market if processors and ISOs are led to conclude that boarding such merchants opens them up to liability. That, in turn, could result in total market exclusion for certain categories of businesses or their migration to payment forms that are far less protective of consumers than credit cards (with their accompanying chargeback rights). And, if high chargebacks and returns are construed as badges of fraud, then it may lead processors and ISOs simply to “drop” merchants (again, even legitimate ones) that experience high chargeback ratios or return rates, which can be the death knell for a merchant that depends on payment card transactions to sustain its business.
The relative nascency of the FTC’s enforcement actions makes it difficult to predict how the FTC’s theories will ultimately be received by the courts. Given that the FTC may choose to pursue more extreme cases in the initial phases of “Operation Choke Point,” early decisions could well produce favorable precedent for the FTC that processors and ISOs will be left to grapple with in actions that present less compelling cases of processor and ISO culpability.
Although continued litigation seems unavoidable, leaders within the payment systems industry have elected to take a proactive approach. For example, in April 2014, the Electronic Transactions Association (the “ETA”) – a global trade association that represents the payments industry – published a 109-page set of “Guidelines on Merchant ISO Underwriting and Risk Monitoring” that sets out dynamic best practices designed to “help eliminate prohibited and undesirable merchants from entering into or remaining in the card acceptance ecosystem.” Among other things, the Guidelines suggest that members establish carefully considered underwriting and monitoring policies adapted to address various merchant types (including “high risk” merchants) and to document the policies and decision-making processes that lead a processor to initiate and retain relationships with its ISOs and merchants.
While the Guidelines are non-binding, and recognize the need for flexibility in the industry, they encourage those within the payment systems ecosystem to “strive to ensure that they are not providing payments acceptance for merchants or ISOs that engage in fraudulent acts or practices that harm consumers”—regardless of whether there is any legal mandate that they do so.
Edward Marshall is a litigation partner at the Atlanta, Georgia law firm of Arnall Golden Gregory LLP and serves as the inaugural chair of the ABA Payment Systems Litigation Subcommittee.