Few people remember the landmark Jacobellis v. Ohio case involving a movie theatre owner, Nico Jacobellis, who showed the film, “The Lovers” in his theatre. Jacobellis was fined $2,500 by a county court because the state deemed the movie to be too obscene to be shown in public, and the fine was then upheld by the Ohio Supreme Court, before it was appealed by Mr. Jacobellis to the U.S. Supreme Court arguing that his First Amendment protected his right to show the movie.

However, people do remember a line written by Justice Potter Stewart: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

That catchphrase has come to be used to define all manners of things that are subjectively undefinable. It also can be used to describe how to determine an unfair, deceptive, or abusive acts or practices—or UDAAP violation—when engaging with consumers. UDAAP is a broad sword handed to the Consumer Financial Protection Bureau that gives the agency a wide berth to regulate what it views are activities that are, for the most part, taking advantage of consumers.

A key component of testing a UDAAP policy is to be able to get inside the head of the regulators, said Stefanie Jackman, a partner at the law firm of Ballard Spahr. This is especially important when it comes to UDAAP testing because the specific contours of the UDAAP power are largely undefined; attempting to read the tea leaves from previous CFPB actions as a means to gauging future CFPB behavior is essential to determine whether a UDAAP policy is sufficient. It can be even more difficult for companies that do not have the time or opportunity to step back and look at their operation from a high level to assess potential problem areas.

“Sometimes it’s hard to see things from the perspective you need to see them from,” Jackman said. “UDAAP is one of the biggest risk points right now. Practices can be declared illegal whether the law says so or not.”

Jackman further called UDAAP, “the great unknown.”