Antitrust Law Daily Wrap Up, CONSUMER PROTECTION NEWS: Payment Processors Banned from the Business Under FTC Settlement, (Mar 13, 2013)

By William Zale, J.D.

A payment processor and two of its principals are banned from processing electronic payments under a settlement with the FTC, which resolves charges that they debited, or tried to debit, millions of dollars from tens of thousands of consumers’ bank accounts without their consent (FTC v. Automated Electronic Checking, Inc., FTC File No. 122 3102, Case No. 3:13-cv-00056-RCJ-WGC). The FTC’s action in the federal district court in Las Vegas against Automated Electronic Checking Inc. (AEC) and its principals, John P. Lawless and Kenneth Mark Turville, is part of its continuing efforts to protect consumers in financial distress.

Payment processors enable merchants to obtain customer payments for products and services via electronic banking. Processors provide a link between merchants and consumers’ banks. They are compensated by receiving a fee for each consumer transaction that they process. According to the FTC’s complaint, AEC knew, or should have known, that some of its client merchants got consumers’ financial account information through deceptive means and lacked consumers’ authorization to debit their accounts. For example, the FTC has alleged that many consumers thought they were applying for a credit line through one of AEC’s client merchants, but instead they were enrolled in an online “shopping club” with hefty fees. The FTC has also charged that AEC often debited the accounts of consumers who had never heard of its client merchants, had never knowingly bought anything from them, and could least afford unauthorized debits, which resulted in the additional burden of bank overdraft charges.

As alleged in the complaint, the defendants processed payments by using remotely created payment orders (RCPOs), a payment method that allows a processor to reach into and debit a consumer’s bank account. Unlike some payment mechanisms, such as credit cards, RCPOs are not subject to significant oversight and monitoring, making them vulnerable to abuse. As a result, the FTC alleges, they have become a particularly attractive payment method for merchants and processors engaged in fraud and unauthorized debiting.

According to the complaint, AEC encouraged merchants to use RCPOs as a way to avoid the scrutiny other payment methods provide. It processed payments for clients through banks whose risky practices had gotten them into trouble with banking regulators, including First Regional Bank in Century City, California; Metro Phoenix Bank in Phoenix, Arizona; SunFirst Bank in St. George, Utah; and First Bank of Delaware in Wilmington, Delaware. The FTC charges that AEC turned a blind eye to excessively high return rates—the rate of transactions that were rejected and returned by consumers or their banks. AEC also instructed its clients on ways to avoid detection and ignored consumer complaints, the FTC alleged.

The settlement order requires that AEC pay $950,000 it earned from processing for EdebitPay and Platinum. The money will be returned to consumers harmed by AEC’s actions. The order also bans AEC, Lawless, and Turville from processing payments by any means in the future. Per the terms of the settlement, Lawless may work for a financial institution, but only if his job does not involve providing, selling, or arranging payment processing. In addition, the order:

• prohibits the defendants from billing consumers, or telling them they owe money, for telephone-billed transactions that have not been authorized by the consumers;

• bars the defendants from referring defendants’ payment-processing clients to other processors for money; and

• prohibits the defendants from selling or otherwise benefitting from customers’ personal information.

News: ConsumerProtection FederalTradeCommissionNews