WilmerHale’s multidisciplinary consumer protection and defense team helps companies address regulatory investigations and litigation under unfair, deceptive, or abusive acts or practices, including Section 5 of the FTC Act, the Consumer Financial Protection Act, the Lanham Act, and state unfair and deceptive business practices statutes. Our attorneys’ long experience both as defense counsel and as enforcement staff equip us to help clients identify and avoid potential violations of government agencies’ evolving views of what constitutes an unfair, deceptive, or abusive practice. We engage with the FTC, CFPB, and state regulators on behalf of clients under scrutiny for allegedly engaging in UDAAPs and have a long and successful track record of bringing such inquiries to favorable resolution. 

Beyond investigations and advice, WilmerHale has a long history of successfully litigating consumer class actions and government enforcement actions—including notable victories at trial against state attorneys general. We have also handled the first waves of mass arbitrations for clients and can provide guidance in avoiding them altogether or defending against them, as needed. 

Our firm also has an agile, multidisciplinary practice focused on helping clients address the formidable challenges posed by state attorneys general (AGs) and their broad authority to examine and indict the conduct or practices of consumer-facing companies. We have represented clients in complex consumer protection investigations by large groups of AGs, or—as is increasingly the case—in combination with investigations by the FTC’s Bureau of Consumer Protection or other agencies. When needed, our trial teams are ready to go to court, having earned a notable reputation for securing high-stakes victories against the government—defeating claims brought by state AGs, the DOJ, the SEC, and others. And, with a preeminent appellate and US Supreme Court practice, we know how to build the foundation for an effective appellate strategy and have successfully pursued consumer protection claims all the way to the US Supreme Court.

Drawing on years of experience in both the public and private sectors, our lawyers combine their substantive regulatory expertise and familiarity with government investigations and litigation to handle disputes in which clients face claims by federal and/or state government agencies under consumer protection laws. We defend against major government enforcement actions, understanding that the government is not an ordinary civil litigant, that it often has substantial procedural advantages over its targets, and that effective representation in enforcement litigation requires careful consideration of the government’s institutional priorities, resource and other constraints, and decision-making processes. 

We have a long history of successfully navigating these considerations and obtaining favorable outcomes for our clients. Our strategic vision and tactical skills equip us to counter the government’s advantages in major enforcement litigation and tell our clients’ stories, with the goal of resolving litigation at the motion to dismiss or summary judgment stage, obtaining favorable early settlements, or, when necessary, successfully litigating matters through trial and the appeals process.

WilmerHale has a long record of successfully defending our clients in consumer class actions and arbitration proceedings in the consumer products, technology, financial services and entertainment sectors, among others. With our deep understanding of the legal landscape and of our clients’ business priorities, we help clients avoid litigation by mitigating risks in the design and delivery of products and services. When necessary, we aggressively defend against the full range of consumer claims, from federal consumer protection and privacy statutes, to state consumer protection and UDAP law, to common law theories. We frequently obtain dismissal of consumer claims at the pleading stage and, where that is not possible, we are adept at guiding clients through fact development and discovery, identifying and leveraging robust defenses to class certification and vigorously contesting the merits at summary judgment and, if needed, at trial.

Financial institutions and other clients in the consumer financial services sector look to WilmerHale for counsel on a wide range of issues arising from consumer financial protection statutes, rules, and regulations. WilmerHale is proud to count the leading companies in these industries as clients, including many of the largest retail banks, card issuers, captive auto finance companies, mortgage lenders, national consumer reporting agencies, payments firms, and emerging and established technology companies. We have a proven track record of helping our clients navigate complex and often intersecting regulations and respond to investigations and enforcement actions by the major consumer financial services regulators.

We have cultivated one of the preeminent CFPB practices in the United States, founded on the experience of seasoned practitioners, including a former Deputy Enforcement Director who led or supervised dozens of CFPB enforcement matters since the bureau’s earliest days. Our lawyers have represented clients in most of the CFPB’s enforcement actions against large national banks in the last decade, as well as numerous enforcement actions by the OCC, the Federal Reserve, and the FDIC since the 2008 financial crisis. Importantly, some of our biggest successes are the numerous non-public agency investigations where we helped our clients avoid public enforcement actions. We handle the most complex and high-stakes government investigations and enforcement actions, including parallel proceedings instigated by multiple federal regulators in combination with actions brought by state regulators and state attorneys general.

Our success on behalf of clients rests not only on our in-depth insight and understanding of our clients, the marketplace, and the legal and regulatory frameworks around consumer protection, but also on our credibility with federal and state regulators.

Federal government agencies—including the FTC, with its renewed focus on its Section 5 authority—have sharpened their focus on the collection, storage, use, disclosure, and processing of consumer information. States have also established and now police more stringent data privacy laws. In response, companies must navigate a complex web of intersecting privacy and data security regulations and may face government investigations, enforcement actions and high-profile litigation concerning privacy and consumer protection. Our team has significant experience handling many of the most complex consumer privacy issues to arise in recent years, including matters related to online tracking, data collection, leveraging or selling user information through “big data,” and cybersecurity breaches involving consumer data.

We help companies across all industries comply with the many statutes, rules and industry self-regulatory programs that govern privacy and consumer protection in the online ecosystem and beyond. Clients turn to us for counsel on issues ranging from drafting and updating privacy policies and country-specific privacy notices to confidential investigations by the FTC, state attorneys general, and other state regulators, to high-profile enforcement actions or class-action litigation focused on alleged violations of privacy laws. We help companies of all sizes—from startups to Fortune 500 companies—assess their risk profiles and work with them to mitigate the risk of an investigation or enforcement action. Our services include working with companies to develop privacy-compliant business plans, developing investment and acquisition strategies, implementing partner and vendor programs, and providing overall advice on navigating the challenges of the broad range of privacy and data security laws in the United States and around the world. 

With its own specific constellation of federal and state laws geared to privacy and consumer protection, the financial services industry likewise faces escalating scrutiny and enforcement risk. Banks, credit card companies, insurance companies, investment advisors, broker-dealers, online financial services companies, and mobile payments companies and their IT vendors turn to us to help them maintain compliance with the Gramm-Leach-Bliley Act, the Fair Credit Reporting Act, the Fair and Accurate Credit Transactions Act, and the Right to Financial Privacy Act, as well as their implementing regulations and numerous state and foreign analogues. We frequently conduct internal investigations of potential statutory and regulatory violations. When public enforcement actions arise, we represent clients before federal financial regulators as well as the FTC, state attorneys general, and the New York Department of Financial Services.

WilmerHale offers its clients broad experience and exceptional advocacy in all aspects of anti-discrimination and fair lending practice, including litigation, regulatory investigations and fair lending examinations, and compliance and counseling.

Our attorneys have extensive experience representing clients in anti-discrimination and fair lending matters in federal and state courts, as well as before regulatory bodies such as the DOJ, CFPB, Federal Reserve, US Department of the Treasury, FTC, US Department of Housing and Urban Development, and state agencies. We have defended financial institutions, insurance companies, and automobile lenders and dealers in high-profile anti-discrimination and fair lending investigations and litigation against the government and private plaintiffs. 

We routinely counsel clients on compliance with anti-discrimination and fair lending laws—including the Fair Housing Act, Equal Credit Opportunity Act, and other federal and state anti-discrimination and consumer protection statutes—across all types of financial products and services, including mortgage, credit card, auto lending, student loans, and more. Our attorneys have regularly advised and represented financial services clients in CFPB fair lending examinations and enforcement matters since the bureau’s inception in 2011.