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The Federal Trade Commission's Enforcement of Operation Chokepoint-Related Businesses

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The Federal Trade Commission's Enforcement of Operation Chokepoint-Related Businesses THE FEDERAL TRADE COMMISSION’S ENFORCE- MENT OF OPERATION CHOKEPOINT–RELATED BUSINESSES JOINT HEARING BEFORE THE SUBCOMMITTEE ON NATIONAL SECURITY AND THE SUBCOMMITTEE ON GOVERNMENT OPERATIONS OF THE COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM HOUSE OF REPRESENTATIVES ONE HUNDRED FIFTEENTH CONGRESS SECOND SESSION JULY 26, 2018 Serial No. 115–99 Printed for the use of the Committee on Oversight and Government Reform ( Available via the World Wide Web: http://www.govinfo.gov http://oversight.house.gov U.S. GOVERNMENT PUBLISHING OFFICE 31–425 PDF WASHINGTON : 2018 VerDate Nov 24 2008 15:58 Nov 02, 2018 Jkt 000000 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 H:\31425.TXT APRIL KING-6430 with DISTILLER COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM Trey Gowdy, South Carolina, Chairman John J. Duncan, Jr., Tennessee Elijah E. Cummings, Maryland, Ranking Darrell E. Issa, California Minority Member Jim Jordan, Ohio Carolyn B. Maloney, New York Mark Sanford, South Carolina Eleanor Holmes Norton, District of Columbia Justin Amash, Michigan Wm. Lacy Clay, Missouri Paul A. Gosar, Arizona Stephen F. Lynch, Massachusetts Scott DesJarlais, Tennessee Jim Cooper, Tennessee Virginia Foxx, North Carolina Gerald E. Connolly, Virginia Thomas Massie, Kentucky Robin L. Kelly, Illinois Mark Meadows, North Carolina Brenda L. Lawrence, Michigan Ron DeSantis, Florida Bonnie Watson Coleman, New Jersey Dennis A. Ross, Florida Raja Krishnamoorthi, Illinois Mark Walker, North Carolina Jamie Raskin, Maryland Rod Blum, Iowa Jimmy Gomez, Maryland Jody B. Hice, Georgia Peter Welch, Vermont Steve Russell, Oklahoma Matt Cartwright, Pennsylvania Glenn Grothman, Wisconsin Mark DeSaulnier, California Will Hurd, Texas Stacey E. Plaskett, Virgin Islands Gary J. Palmer, Alabama John P. Sarbanes, Maryland James Comer, Kentucky Paul Mitchell, Michigan Greg Gianforte, Montana Michael Cloud, Texas SHERIA CLARKE, Staff Director WILLIAM MCKENNA, General Counsel SHARON ESHELMAN, National Security Subcommittee Staff Director JULIE DUNNE, Government Operations Subcommittee Staff Director SHARON CASEY, Deputy Chief Clerk DAVID RAPALLO, Minority Staff Director (II) VerDate Nov 24 2008 15:58 Nov 02, 2018 Jkt 000000 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 H:\31425.TXT APRIL KING-6430 with DISTILLER SUBCOMMITTEE ON NATIONAL SECURITY Ron DeSantis, Florida, Chairman Steve Russell, Oklahoma, Vice Chair Stephen F. Lynch, Massachusetts, Ranking John J. Duncan, Jr., Tennessee Minority Member Justin Amash, Michigan Peter Welch, Vermont Paul A. Gosar, Arizona Mark DeSaulnier, California Virginia Foxx, North Carolina Jimmy Gomez, California Jody B. Hice, Georgia John P. Sarbanes, Maryland James Comer, Kentucky Vacancy Vacancy SUBCOMMITTEE ON GOVERNMENT OPERATIONS Mark Meadows, North Carolina, Chairman Jody B. Hice, Georgia, Vice Chair Gerald E. Connolly, Virginia, Ranking Jim Jordan, Ohio Minority Member Mark Sanford, South Carolina Carolyn B. Maloney, New York Thomas Massie, Kentucky Eleanor Holmes Norton, District of Columbia Ron DeSantis, Florida Wm. Lacy Clay, Missouri Dennis A. Ross, Florida Brenda L. Lawrence, Michigan Rod Blum, Iowa Bonnie Watson Coleman, New Jersey (III) VerDate Nov 24 2008 15:58 Nov 02, 2018 Jkt 000000 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 H:\31425.TXT APRIL KING-6430 with DISTILLER VerDate Nov 24 2008 15:58 Nov 02, 2018 Jkt 000000 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 H:\31425.TXT APRIL KING-6430 with DISTILLER C O N T E N T S Page Hearing held on July 26, 2018 ............................................................................... 1 WITNESSES Mr. Andrew Smith, Director of the Bureau of Consumer Protection, U.S. Federal Trade Commission Oral Statement ................................................................................................. 4 Written Statement ............................................................................................ 6 Mr. Jason Oxman, Chief Executive Officer, Electronic Transactions Associa- tion Oral Statement ................................................................................................. 18 Written Statement ............................................................................................ 21 Ms. Lauren Saunders, Associate Director, National Consumer Law Center Oral Statement ................................................................................................. 38 Written Statement ............................................................................................ 40 (V) VerDate Nov 24 2008 15:58 Nov 02, 2018 Jkt 000000 PO 00000 Frm 00005 Fmt 5904 Sfmt 5904 H:\31425.TXT APRIL KING-6430 with DISTILLER VerDate Nov 24 2008 15:58 Nov 02, 2018 Jkt 000000 PO 00000 Frm 00006 Fmt 5904 Sfmt 5904 H:\31425.TXT APRIL KING-6430 with DISTILLER THE FEDERAL TRADE COMMISSION’S EN- FORCEMENT OF OPERATION CHOKEPOINT– RELATED BUSINESSES Thursday, July 26, 2018 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON NATIONAL SECURITY, JOINT WITH THE SUBCOMMITTEE ON GOVERNMENT OPERATIONS, COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, Washington, D.C. The subcommittees met, pursuant to call, at 10:30 a.m., in Room 2154, Rayburn House Office Building, Hon. Ron DeSantis [chair- man of the Subcommittee on National Security] presiding. Present from the Subcommittee on National Security: Represent- atives DeSantis, Amash, Foxx, Comer, Lynch, and Welch. Present from the Subcommittee on Government Operations: Rep- resentatives Meadows, Hice, Massie, Connolly, and Maloney. Mr. DESANTIS. The Subcommittees on Government Operations and National Security will come to order. Without objection, the presiding member is authorized to declare a recess at any time. Mr. Meadows is not here yet. He does have an opening state- ment. I think he is on his way. So if he wants to give it, we will obviously do that. I am second seat here, so I don’t have one. So what I will do is I will recognize the ranking member. Mr. Connolly is not coming, right? Mr. LYNCH. I know he is around, but I know we have a lot going on this morning. Mr. DESANTIS. Okay. So I will recognize the ranking member on my subcommittee, Mr. Lynch, and I will let him do his opening statement. Mr. LYNCH. Thank you very much. Mr. Chairman. I appreciate the courtesy. I want to thank you for holding this hearing, and I also want to thank the witnesses for helping us with our work. This hearing is to examine the anti-consumer-fraud efforts un- dertaken by the Federal Trade Commission following the end of Operation Chokepoint. I would also like to thank all of the staff on both sides for preparing this hearing. The Consumer Protection Branch at the Department of Justice initiated the investigative and enforcement program known as Op- eration Chokepoint in November of 2012. This operation examined efforts of fraudulent practices perpetrated through the U.S. bank- ing system against bank customers by unscrupulous merchants, fi- (1) VerDate Nov 24 2008 15:58 Nov 02, 2018 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 H:\31425.TXT APRIL KING-6430 with DISTILLER 2 nancial institutions, and intermediaries referred to as third-party payment processors. As reported by the Department of Justice, fraudulent online mer- chants would typically unlawfully direct their payment processors to initiate debit transactions against consumer accounts and trans- mit the money back to them. In the most egregious cases, the payment processors had full knowledge that merchant clients were committing those fraudulent transactions and illegally siphoned money from customer accounts anyway as some banks simply looked the other way. In furtherance of Operation Chokepoint, the Department of Jus- tice issued 60 administrative subpoenas from February 2013 through August 2013 to entities that are believed to have evidence pertaining to consumer fraud schemes. One of the most recent settlements that arose out of this oper- ation occurred in March of 2015 when the Department of Justice announced that it had reached a $4.9 million settlement with CommerceWest Bank of California. The civil complaint in the case alleged that the bank had ignored a series of red flags and facilitated consumer fraud by permitting Las Vegas payment processors to make millions of dollars in unau- thorized withdrawals from consumer bank accounts on behalf of fraudulent merchants. The warning signs included an extremely high rate of rejected debit transactions that were returned by customers and their banks as well as inquiries that CommerceWest received from other financial institutions about suspicious illegal activity involving its payment processor. I understand that some Members of Congress expressed concern that the Department of Justice, in cooperation with the financial regulators such as the Federal Deposit Insurance Corporation, was unlawfully targeting certain categories of legitimately operating businesses. In response, the House Financial Services Committee, the House Judiciary Committee, and this committee all conducted extensive investigations of Operation Chokepoint, beginning back in the 113th Congress. In December of last year, the House also passed H.R. 2706, the Financial Institution Consumer Protection Act, by a bipartisan vote of 395 to 2. I voted in favor of this legislation, which seeks to ad- dress concerns stemming from the facts surrounding Operation Chokepoint by prohibiting the FDIC and other financial regulators from terminating their relationship with specific customers without a valid and written justification. As underscored in a letter to Congress sent to the Department of Justice in August
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