A&B ABstract:

On May 27, 2020, the Federal Trade Commission (FTC) announced a complaint and settlement against a New York auto dealer alleging that it charged higher rates to African American and Hispanic customers, advertised prices it refused to honor, and fabricated fees in violation of the Equal Credit Opportunity Act (ECOA), Truth in Lending Act (TILA) and Section 5 of the FTC Act. This is the first time the FTC has alleged ECOA violations against an auto dealer.

The FTC’s Case

The Complaint, filed in the U.S. District Court for Southern District of New York, alleges that Bronx Honda instructed salespeople to charge higher financing markups and fees to African American and Hispanic customers. The Complaint also alleges Bronx Honda advertised deceptive offers for vehicles, which were not honored when customers visited the dealership, and charged unauthorized fees. As part of the settlement, Bronx Honda will pay $1.5 million in equitable monetary relief, agreed to a ceiling on the dealer markup, and will implement a Fair Lending Program.

The vote in favor of the complaint and settlement was 5-0, with the two Democratic commissioners, Rohit Chopra and Rebecca Kelley Slaughter each issuing a concurring statement. Both commissioners called on the agency to use the authority granted under the Dodd Frank Act to promulgate rules to address abuses in the auto lending industry. Commissioner Chopra also advocates use of disparate impact analysis for detecting unlawful discrimination, given what he describes as the difficulties of uncovering direct evidence of discriminatory intent.

The Complaint:

A summary of the FTC’s complaint counts follows:

Violation of the Equal Credit Opportunity Act (Reg. B)

The Complaint alleges Bronx Honda charged the average African American borrower approximately $163 more in interest, and the average Hispanic borrower approximately $211 more in interest, than similarly situated non-Hispanic white borrowers.

According to the Complaint, African American and Hispanic borrowers received the maximum dealer interest rate markup permitted by the financing entity 50% more often than similarly situated non-Hispanic white borrowers. Further, according to the Complaint, employees of Bronx Honda instructed sales personnel to charge higher markups and additional fees to African American and Hispanic customers only.

Violation of Section 5 of the FTC Act

The Complaint alleges Bronx Honda’s website advertised vehicles at specific prices but sales representatives refused to sell those vehicles at those prices when customers came to the dealership. The Complaint also alleges Bronx Honda represented as required certain charges and fees that were either not authorized by customers or were not required.

For example, according to the Complaint, Bronx Honda’s website listed vehicles with a specific price and monthly payment amounts, but in numerous cases sales representatives told customers the price advertised was in error and the vehicle could only be purchased for a higher price.

Further, Bronx Honda charged customers hundreds or thousands of dollars for warranties and repairs to “Certified Pre-Owned” vehicles, which were already covered by the manufacturer. In addition, Bronx Honda changed customers up to $695 in documentation fees that are statutorily capped at $75 by the state of New York and would unilaterally increase the price of finance contracts at closing without disclosing the change to the customer.

Violation of the Truth in Lending Act (Reg. Z)

The Complaint alleges Bronx Honda advertised monthly payment amounts without disclosing required terms and advertised a rate of finance for closed-end credit without using the term “annual percentage rate.” According to the Complaint, Bronx Honda’s online vehicle listings included the monthly payment amounts without disclosing any of the other required terms.

Relief:

In addition to paying the $1.5 million financial judgement, Bronx Honda must adopt a Fair Lending Program which includes written guidance establishing objective, non-discriminatory criteria for assessing (or not assessing) fees and charges. Bronx Honda must designate a qualified senior manager to be responsible for the program, mandate employee training once a year and report its compliance with those requirements to the FTC for the next fifteen years. Finally, Bronx Honda is barred from entering into retail installment contracts that carry an interest rate higher than 185 basis points above the “buy rate,” except for specific, documented reasons.

Takeaways:

This case breaks new ground for the FTC, charging an auto dealer with illegal racial discrimination under ECOA for the first time. Companies should ensure employees are trained to treat all customers equally and review sales data to ensure no class of customer is getting a worse deal. The fact that both Democratic commissioners have called on the FTC to issue rules to address unfair and deceptive abuse and discrimination in auto lending may signal that the agency will become more active in this area.

In addition, this case represents the FTC’s latest effort to enforce advertising disclosure requirements mandated by TILA. The FTC has brought many cases over the last several years against auto dealers for failing to properly disclose credit related terms. If a company advertises vehicle financing along with a “triggering term” (like a sample monthly payment amount or nominal interest rate), it must also clearly and conspicuously disclose addition information like annual percentage rate, term of the loan and any balloon payments.

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