The U.S. District Court for the District of Columbia has ruled that the Federal Trade Commission’s Red Flags Rules cannot be enforced against lawyers, saying that the FTC’s interpretation of the Fair and Accurate Credit Transactions Act overreaches, and its application to lawyers is unreasonable. Judge Reggie Walton said he had trouble accepting the FTC’s definition of a creditor. Judge Walton ruled from the bench with a written decision to follow.
The American Bar Association, represented by a Proskauer team led by partner Steven Krane, argued that the rules would impose a serious burden on law firms, and sought an injunction and declaratory judgment finding that lawyers are not covered by the rule. The FTC contended that lawyers should be covered, because many of their billing practices, such as charging clients on a monthly basis rather than up front, made them “creditors.”
The American Bar Association’s complaint, prepared on a pro bono basis by Proskauer Rose, said that the application of the Rule to practicing lawyers is “arbitrary, capricious and contrary to law,” and that the FTC has failed “to articulate, among other things: a rational connection between the practice of law and identity theft; an explanation of how the manner in which lawyers bill their clients can be considered an extension of credit under the FACTA; or any legally supportable basis for application of the Red Flags Rule to lawyers engaged in the practice of law.”
The FTC has not yet indicated whether it will appeal Judge Walton’s ruling.
Here is a link to the ABA’s press release.