Arthur Rotatori, McGlinchey Stafford, PLLC Jason Romrell, LeadsMarket.com Dustin Alonzo, McGlinchey Stafford, PLLC. #LEND360 LEND360.

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2 Arthur Rotatori, McGlinchey Stafford, PLLC Jason Romrell, LeadsMarket.com Dustin Alonzo, McGlinchey Stafford, PLLC #LEND360 LEND360.org

3 Overview of Federal, State & Industry Regula9on Federal Trade Commission Consumer Financial Protection Bureau State Attorney Generals State Disclosures / Licensing Consult local counsel about state law compliance

4 Basic Adver9sing Principles Prohibition on false, deceptive, or misleading acts or practices Prohibition on UDAAPs Claims, Substantiation, and Disclosures

5 General Best Practices Principles for Online Advertising Fully disclose all loan terms in a transparent and easy to understand way. Promote the responsible use of short-term credit services. Do not engage in any false, misleading or deceptive advertising campaigns. Participate in efforts to educate consumers regarding short term online lending practices.

6 General Best Practices Specific Online Advertising Requirements FTC Act 5 Prohibition on unfair and deceptive acts or practices (UDAPs) in any medium Clear and conspicuous disclaimers Proximity of disclosure to the triggering claim Hyperlinks leading to a disclosure in spaceconstrained ads

7 Mobile Best Practices Issues with small screens on smartphones, tablets, and social media platforms Communication must be formatted for functionality across ALL mobile devices Consumers should not need to pinch the screen to manipulate the display to make the words more legible Violation to disseminate advertisements on platforms that do not provide an opportunity to make clear and conspicuous disclosures

8 Examples of Mobile Best Practices Violations

9 Examples of Mobile Best Practices Violations

10 Mobile Best Practices Adopt a mobile device policy that conforms to all applicable laws The policy should address, at a minimum: Providing and receiving STOP instructions to consumers; Providing and receiving HELP instructions to consumers; Frequency of communications and the ability of the consumer to request a change to that frequency; Customer Service contact information (provide a number); and The fact that message and data rates may apply.

11 Required Disclosures Advertisement must be accurate and offer credit terms that are actually available Advertisements should accurately inform consumers regarding when credit will become available Must disclose if plan to engage in credit check before offering credit

12 Actually Available Credit Actually Available Credit Trigger Terms Loan Terms Telemarketing Compliance Internet / Marketing Affiliate Marketing Publication of Terms and Conditions

13 Trigger Terms Compliance with The Truth in Lending Act ( TILA ) An advertisement for a loan must contain certain required disclosures if it contains any of the following trigger terms : Amount or percentage of any down payment Payment period (number of payments or period or repayment). Payment amount. Finance charge / APR Must disclose if the rate may be increased after consummation

14 Loan Terms Implications of Late Payments Required disclaimer: Late payments of loans may result in additional fees or collection activities, or both. Implications of Non-Payment Required disclaimer: Nonpayment of credit could result in collection activities. Sustained Use / Renewal of Existing Credit Required disclaimer: Every Lender has its own renewal policy, which may differ from Lender to Lender. Please review your Lender s renewal policy. Compliance with Applicable Federal Law

15 Telemarketing Compliance Federal Law (FCC s TCPA and FTC s TSR) State Law Required Compliance: Do Not Call lists. Hours of Solicitation (8 a.m. to 9 p.m., local time) Provide caller information No artificial voices or recordings, except as permitted by law. Specific rules regarding cell phones. Unsolicited faxes prohibited.

16 Internet / Marketing CAN-SPAM Act of 2003 Commercial Messages Prohibition on fraud and deception in marketing practices Unsubscribe / Opt-out requests Advertisers are responsible for ensuring that their own practices as well as the practices of their Lead Generators, and other third parties, are in compliance with the CAN-SPAM requirements

17 Affiliate Marketing These rules apply to all entities involved in the advertising and marketing of a Loan, including lenders, vendors, advertisers, affiliates, and lead generators. Lenders must ensure that all marketing practices conducted by the third parties with whom they do business comply with the applicable laws Ensure your Advertising and Marketing Best Practices are reflected in your agreements with third party vendors

18 Publication of Terms and Conditions Website must include clear and conspicuous terms and conditions that describe your services provided. No text, graphics, or other marketing materials used by your third party vendors should contradict any aspect of the terms and conditions. A third party vendor who is NOT a Lender should also conspicuously state that it does not actually provide online loans, but it refers consumers to lenders who may provide such loans.

19 FTC Guidelines: Customer Testimonials and Endorsements Ad must clearly state if testimonials and endorsements do not reflect the typical experiences of consumers Disclose any connections between an endorser and the company that are unclear or unexpected to the customer Financial arrangements for a favorable endorsement; Employment positions offered with the company. Claims must be substantiated Testimonials and endorsements cannot be used to make a claim that the advertiser cannot substantiate

20 Enforcement Actions 2015 FTC action against online, small-dollar lender FTC alleged that the lender misrepresented the cost of loans to consumers and failed to accurately disclose the APR and other loan terms under TILA 2014 CFPB action against Atlanta-based online mortgage lender CFPB alleged that the lender deceptively advertised low interest rates that were not available and failed to properly disclose its affiliate relationship

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