Insights

The FTC’s first “Roundtable” was held on April 12, at Wayne State University Law School in Detroit. The FTC billed it as a “listening tour.”

The event was well attended, as these things go. I’d guess that the crowd numbered perhaps 100, and it included dealers, finance company representatives, class action lawyers, consumer advocates, academics, state and federal regulators and lawyers, like me, who represent the industry.

In order to “listen,” the FTC divided the day into discussions by six panels, each addressing a different subject. The panels, and those who participated on them, were as follows:

Panel 1: Understanding the Motor Vehicle Sale, and Credit Transaction, From Both Prime and Subprime Perspectives

Moderator: Joel Winston, Associate Director, Division of Financial Practices, FTC

Panelists:

J J Hornblass, Executive Editor and Publisher, Auto Finance News

Thomas B. Hudson, Partner, Hudson Cook, LLP

Chris Kukla, Senior Counsel for Government Affairs, Center for Responsible Lending

Thomas A. Moore, Jr., President’ National Automotive Finance Association and President/CEO of First Investors Financial Services

John Van Alst, Attorney, National Consumer Law Center

David W. Westcott, President, Westcott Buick GMC Suzuki

Panel 2: Interest Rates, Dealer Reserves, and Markups

Moderator: Reilly Dolan, Assistant Director, Division of Financial Practices, FTC

Panelists:

Delvin Davis, Research Analyst, Center for Responsible Lending

Randy Henrick, Associate General Counsel, DealerTrack, Inc.

Andrew D. Koblenz, Vice-President and General Counsel, National Automobile Dealers Association

Peter J. Sheptak, Vice-President and General Counsel, World Omni Financial Corp.

John Van Alst, Attorney, National Consumer Law Center

Panel 3: Payment and Locator Devices and Consumer Policy

Moderator: Kate White, Attorney, Division of Privacy and Identity Protection, Inc.

Panelists:

Michael Benoit, Partner, Hudson Cook, LLP

Bill Brauch, Special Assistant Attorney General, Consumer Protection Division Iowa Office of Attorney General

Will Lund, Superintendent, Maine Bureau of Consumer Credit Protection

Charles Pearce, Chief Legal Officer, Credit Acceptance Corp.

Joseph S. Taylor, Vice President, Recovery Industry Services Company

Panel 4: Spot Delivery

Moderator: Carole Reynolds, Attorney, Division of Financial Practices, FTC

Panelists:

Bill Brauch, Special Assistant Attorney General, Consumer Protection Division, Iowa Office of Attorney General

Michael G. Charapp, Partner, Charapp & Weiss, LLP

Ian Lyngklip, Senior Member, Lyngklip & Associates

S. Allen Monello, CEO, Automotive Industry Center for Excellence

Keith Whann, General Counsel, National Independent Automobile Dealers Association

Panel 5: Contract Add-Ons

Moderator: Katie Worthman, Attorney, Division of Financial Practices, FTC

Panelists:

Rob Cohen, President, Auto Advisory Services, Inc.

Greg Grzeskiewicz, Assistant Attorney General, Illinois Office of Attorney General

Christopher M. Leedom, President & CEO, The Leedom Group, Inc.

Community Auto Finance Association, Dani Liblang, Senior Partner, Liblang & Associates, P.C.,

Panel 6: Vehicle Title Problems and Dealer Bankruptcies

Moderator: Robin Thurston, Attorney, Division of Financial Practices, FTC

Panelists:

Greg Grzeskiewicz, Assistant Attorney General, Illinois Office of Attorney General

Keith Kiser, Director, American Association of Motor Vehicle Administrators

J. Peter Kitzmiller, President, Maryland Automobile Dealers Association

Rosemary Shahan, President, Consumers for Auto Reliability and Safety

Keith Whann, General Counsel, National Independent Automobile Dealers Association

I stayed throughout the day, and tried to follow the discussions carefully. Here are my “30,000 – foot” impressions.

Overall, I’d say that the FTC representatives who served as moderators seemed to be neutral on the issues that the panels discussed. That was a welcome development, since the questions that the FTC had published in the Federal Register in advance of the event had seemed, at least in some instances, to be hostile toward industry. The state regulators were also neutral, for the most part. Easily the most effective presenter on the day was NADA’s Andy Koblenz, who made a very cogent argument in support of the current system of dealer participation.

The FTC’s Joel Winston set the tone for the day by stating that the FTC wasn’t very interested in anecdotes, but was instead looking for data – real live facts. That statement set a high bar for the consumer advocates, who seem to have no end of stories about dealers and finance companies abusing widows and orphans, and drowning kittens, but when asked about how frequently such abuses occur in the marketplace, always seem to come up empty-handed.

The consumer advocates didn’t show particularly well. Notwithstanding Joel Winston’s admonition that he was looking for facts, they kept trotting out their anecdotes, many of them years and sometimes even decades old. The industry participants kept pointing out that anecdotes weren’t favored.

One National Consumer Law Center representative tried to point to a recently-issued “survey” by the NCLC (the release of the survey was conveniently timed just before for the first FTC Roundtable) that purported to show that dealer abuses were rampant in all states, but since the “survey” was nothing but a compilation of the answers to a short questionnaire by 48 lawyers who handle auto cases for consumers, no one seemed to pay it much mind. It certainly wasn’t exactly anything that would be seen as either impartial research or scholarship, if you catch my drift.

The consumer advocates staked out the most radical consumer-protection positions, arguing for an end to, or serious limits on, common dealer practices such as dealer participation and spot delivery. In support of their positions, the consumer advocates kept coming back to their stories about dealer misdeeds, only to be countered in nearly every instance by the industry representatives that in nearly every such illustration, the dealer’s actions were already illegal under either state or federal law, and that there was no need for further regulation. At one point, I turned to the person next to me in the audience and whispered that if discussions about practices already banned by federal and state laws had been prohibited, the entire Roundtable would have taken about 15 minutes.

The conflicting agendas of the consumer advocates and the industry representatives produced sparks on the topics of dealer participation, spot deliveries, the sale of ancillary products, and credit discrimination. Other panels were much more sedate, with the surprise of the day being the panel that discussed GPS and starter interrupt devices, where the panel participants seemed to be in general agreement that the use of the devices was OK, but that perhaps there were some privacy issues regarding the safekeeping of location data.

Industry did better than the consumer advocates. In fairness, the industry participants were not very long on data themselves, but the tone of the day seemed to be that the burden of proof was on those asserting bad acts, and not on the industry to show that it behaved well.

If you missed watching the Roundtable (it was streaming live), the video and a transcript will be available shortly on the FTC’s website. OK, Law & Order it’s not, but if you are in the car sale, finance or lease business, you need to see it.

Thomas B. Hudson is a partner in the Maryland office of Hudson Cook, LLP. Tom can be reached at (410) 865-5411 or by email at thudson@hudco.com.