Consumer Finance Monitor: Recent Episodes

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Our podcast show being released today is Part 2 of our two-part series featuring two former CFPB senior officers who were key employees in the Enforcement Division under prior directors: Eric Halperin and Craig Cowie. Eric Halperin served as the Enforcement Director at the CFPB from 2010 until former Director, Rohit Chopra, was terminated by President Trump. Craig Cowie was an enforcement attorney at the CFPB from July 2012 until April 2015 and then Assistant Litigation Deputy at the CFPB until June 2018.

Part 1 of our two-part series was released last Thursday, June 12.

The purpose of these podcast shows were primarily to obtain the opinions of Eric and Craig (two of the country’s most knowledgeable and experienced lawyers with respect to CFPB Enforcement) about the legal and practical impact of (i) a Memo to CFPB Staff from Mark Paoletta, Chief Legal Officer, dated April 16, 2025, entitled “2025 Supervision and Enforcement Priorities” (described below) which rescinded prior priority documents and established a whole new set of priorities which in most instances are vastly different than the Enforcement Priority documents which guided former directors, (ii) the dismissal without prejudice of the majority of enforcement lawsuits that were pending when Acting Director Russell Vought was appointed to run the agency, and (iii) other drastic steps taken by CFPB Acting Director Russell Vought to minimize the functions and staffing at the agency. That included, among other things, an order calling a halt to all work at the agency, including the pausing of ongoing investigations and lawsuits and the creation of plans by Vought to reduce the agency’s staff (“RIF”) from about 1,750 employees to about 250 employees (including a reduction of Enforcement staff to 50 employees from 258).

We described in detail the 2025 Supervision and Enforcement Priorities as follows:

· Reduced Supervisory Exams: A 50% decrease in the overall number of exams to ease burdens on businesses and consumers.

· Focus on Depository Institutions: Shifting attention back to banks and credit unions.

· Emphasis on Actual Fraud: Prioritizing cases with verifiable consumer harm and measurable damages.

· Redressing Tangible Harm: Concentrating on direct consumer remediation rather than punitive penalties.

· Protection for Service Members and Veterans:Prioritizing redress for these groups.

· Respect for Federalism: Minimizing duplicative oversight and coordinating with state regulators when possible.

· Collaboration with Federal Agencies: Coordinating with other federal regulators and avoiding overlapping supervision.

· Avoiding Novel Legal Theories: Limiting enforcement to areas clearly within the Bureau's statutory authority.

· Fair Lending Focus: Pursuing only cases of proven intentional racial discrimination with identifiable victims and not using statistical evidence for fair lending assessments.

Key Areas of Focus:

· Mortgages (highest priority)

· FCRA/Regulation V (data furnishing violations)

· FDCPA/Regulation F (consumer contracts/debts)

· Fraudulent overcharges and fees

· Inadequate consumer information protection

Deprioritized Areas:

· Loans for "justice involved" individuals

· Medical debt

· Peer-to-peer lending platforms

· Student loans

· Remittances

· Consumer data

· Digital payments

We also described the status of a lawsuit brought by the union representing CFPB employees and other parties against Vought seeking to enjoin him from implementing the RIF. The Court has granted a preliminary injunction which so far has largely prevented Vought from following through on the RIF. The matter is now on appeal before the DC Circuit Court of Appeals and a ruling is expected soon.

These podcast shows complement the podcast show we released on June 5 which featured two former senior CFPB employees, Peggy Twohig and Paul Sanford who opined about the impact of the April 16 Paoletta memo and proposed RIF on CFPB Supervision.

Eric and Craig considered, among other issues, the following:

1. How do the new Paoletta priorities differ from the previous priorities and what do the new priorities tell us about what we can expect from CFPB Enforcement?

2. What do the new priorities tell us about the CFPB’s new approach toward Enforcement priorities?

3. What can we learn from the fact that the CFPB has dismissed without prejudice at least 22 out of the 38 enforcement lawsuits that were pending when Vought became the Acting Director? What types of enforcement lawsuits are still active and what types of lawsuits were dismissed?

4. What are the circumstances surrounding the nullification of certain consent orders (including the Townstone case) and the implications for other consent orders?

5. Has the CFPB launched any new enforcement lawsuits under Vought?

6. What level and type of enforcement is statutorily required?

7. Realistically, what will 50 employees be able to do in the enforcement area?

8. What will be the impact of the Supervision cutbacks be on Enforcement since Supervision refers many cases to Enforcement?

9. Will the CFPB continue to seek civil money penalties for violations of law?

10. What types of fair lending cases will the CFPB bring in the future?11. Will Enforcement no longer initiate cases based on the unfairness or abusive prongs of UDAAP?

Alan Kaplinsky, former practice group leader for 25 years and now Senior Counsel of the Consumer Financial Group, hosts the podcast show.

Postscript: After the recording of this podcast, Cara Petersen, who succeeded Eric Halperin as head of CFPB Enforcement, resigned abruptly on June 10 from the CFPB after sending out an e-mail message to all its employees (which was shared with the media) which stated, in relevant part: “I have served under every director and acting director in the bureau’s history and never before have I seen the ability to perform our core mission so under attack,” wrote Petersen, who had worked at the agency since it became operational in 2011. She continued: “It has been devastating to see the bureau’s enforcement function being dismantled through thoughtless reductions in staff, inexplicable dismissals of cases, and terminations of negotiated settlements that let wrongdoers off the hook.” “It is clear that the bureau’s current leadership has no intention to enforce the law in any meaningful way,” Petersen wrote in her e-mail. “While I wish you all the best, I worry for American consumers.”

During this part of the podcast show, we discussed the fact that the CFPB has entered into agreements with a few companies that had previously entered into consent agreements with former Director Chopra. After the recording of this podcast, the Federal District Court that presided over the Townstone Financial enforcement litigation involving alleged violations of the Equal Credit Opportunity Act refused to approve the rescission or undoing of the consent agreement based on Rule 60(b)(6) of the Federal Rules of Civil Procedure because of the strong public policy of preserving the finality of judgments.

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Our podcast shows being released today and next Wednesday, June 18 feature two former CFPB senior officers who were key employees in the Enforcement Division under prior directors: Eric Halperin and Craig Cowie. Eric Halperin served as the Enforcement Director at the CFPB from 2010 until former Director, Rohit Chopra, was terminated by President Trump. Craig Cowie was an enforcement attorney at the CFPB from July 2012 until April 2015 and then Assistant Litigation Deputy at the CFPB until June 2018.

The purpose of these podcast shows were primarily to obtain the opinions of Eric and Craig (two of the country’s most knowledgeable and experienced lawyers with respect to CFPB Enforcement) about the legal and practical impact of (i) a Memo to CFPB Staff from Mark Paoletta, Chief Legal Officer, dated April 16, 2025, entitled “2025 Supervision and Enforcement Priorities” (described below) which rescinded prior priority documents and established a whole new set of priorities which in most instances are vastly different than the Enforcement Priority documents which guided former directors, (ii) the dismissal without prejudice of the majority of enforcement lawsuits that were pending when Acting Director Russell Vought was appointed to run the agency, and (iii) other drastic steps taken by CFPB Acting Director Russell Vought to minimize the functions and staffing at the agency. That included, among other things, an order calling a halt to all work at the agency, including the pausing of ongoing investigations and lawsuits and the creation of plans by Vought to reduce the agency’s staff (“RIF”) from about 1,750 employees to about 250 employees (including a reduction of Enforcement staff to 50 employees from 258).

We described in detail the 2025 Supervision and Enforcement Priorities as follows:

· Reduced Supervisory Exams: A 50% decrease in the overall number of exams to ease burdens on businesses and consumers.

· Focus on Depository Institutions: Shifting attention back to banks and credit unions.

· Emphasis on Actual Fraud: Prioritizing cases with verifiable consumer harm and measurable damages.

· Redressing Tangible Harm: Concentrating on direct consumer remediation rather than punitive penalties.

· Protection for Service Members and Veterans:Prioritizing redress for these groups.

· Respect for Federalism: Minimizing duplicative oversight and coordinating with state regulators when possible.

· Collaboration with Federal Agencies: Coordinating with other federal regulators and avoiding overlapping supervision.

· Avoiding Novel Legal Theories: Limiting enforcement to areas clearly within the Bureau's statutory authority.

· Fair Lending Focus: Pursuing only cases of proven intentional racial discrimination with identifiable victims and not using statistical evidence for fair lending assessments.

Key Areas of Focus:

· Mortgages (highest priority)

· FCRA/Regulation V (data furnishing violations)

· FDCPA/Regulation F (consumer contracts/debts)

· Fraudulent overcharges and fees

· Inadequate consumer information protection

Deprioritized Areas:

· Loans for "justice involved" individuals

· Medical debt

· Peer-to-peer lending platforms

· Student loans

· Remittances

· Consumer data

· Digital payments

We also described the status of a lawsuit brought by the union representing CFPB employees and other parties against Vought seeking to enjoin him from implementing the RIF. The Court has granted a preliminary injunction which so far has largely prevented Vought from following through on the RIF. The matter is now on appeal before the DC Circuit Court of Appeals and a ruling is expected soon.

These podcast shows complement the podcast show we released on June 5 which featured two former senior CFPB employees, Peggy Twohig and Paul Sanford who opined about the impact of the April 16 Paoletta memo and proposed RIF on CFPB Supervision.

Eric and Craig considered, among other issues, the following:

1. How do the new Paoletta priorities differ from the previous priorities and what do the new priorities tell us about what we can expect from CFPB Enforcement?

2. What do the new priorities tell us about the CFPB’s new approach toward Enforcement priorities?

3. What can we learn from the fact that the CFPB has dismissed without prejudice at least 22 out of the 38 enforcement lawsuits that were pending when Vought became the Acting Director? What types of enforcement lawsuits are still active and what types of lawsuits were dismissed?

4. What are the circumstances surrounding the nullification of certain consent orders (including the Townstone case) and the implications for other consent orders?

5. Has the CFPB launched any new enforcement lawsuits under Vought?

6. What level and type of enforcement is statutorily required?

7. Realistically, what will 50 employees be able to do in the enforcement area?

8. What will be the impact of the Supervision cutbacks be on Enforcement since Supervision refers many cases to Enforcement?

9. Will the CFPB continue to seek civil money penalties for violations of law?

10. What types of fair lending cases will the CFPB bring in the future?

11. Will Enforcement no longer initiate cases based on the unfairness or abusive prongs of UDAAP?

Alan Kaplinsky, former practice group leader for 25 years and now Senior Counsel of the Consumer Financial Group, hosts the podcast show.

Postscript: After the recording of this podcast, Cara Petersen, who succeeded Eric Halperin as head of CFPB Enforcement, resigned abruptly on June 10 from the CFPB after sending out an e-mail message to all its employees (which was shared with the media) which stated, in relevant part: “I have served under every director and acting director in the bureau’s history and never before have I seen the ability to perform our core mission so under attack,” wrote Petersen, who had worked at the agency since it became operational in 2011. She continued: “It has been devastating to see the bureau’s enforcement function being dismantled through thoughtless reductions in staff, inexplicable dismissals of cases, and terminations of negotiated settlements that let wrongdoers off the hook.” “It is clear that the bureau’s current leadership has no intention to enforce the law in any meaningful way,” Petersen wrote in her e-mail. “While I wish you all the best, I worry for American consumers.”

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Our podcast show being released today features two former CFPB senior officers who were key employees in the Supervision Division under prior directors: Peggy Twohig and Paul Sanford. Peggywas a founding executive of the CFPB when the agency was created in 2010 and led the development of the first federal supervision program over nonbank consumer financial companies. Beginning in 2012, as head of CFPB’s Office of Supervision Policy, Peggy led the office responsible for developing supervision strategy for bank and nonbank markets and ensuring that federal consumer financial laws were applied consistently in supervisory matters across markets and regions.

Paul served as head of the Office of Supervision Examinations for the CFPB from 2012-2020 with responsibility for ensuring the credible conduct of consumer protection examinations.

The purpose of this podcast show was primarily to obtain the opinions of Peggy and Paul about the legal and practical impact of (i) a Memo to CFPB Staff from Mark Paoletta, Chief Legal Officer, dated April 16, 2025, entitled “2025 Supervision and Enforcement Priorities” which rescinded prior priority documents and established a whole new set of priorities which in most instances are vastly different than the Supervision Priority documents which guided former directors and (ii) drastic steps taken by CFPB Acting Director Russell Vought to minimize the functions and staffing at the agency. That included, among other things, an order calling a halt to all work at the agency, the cancellation of all supervisory exams and the creation of plans by Vought to reduce the agency’s staff (“RIF”) from about 1,750 employees to about 250 employees (including a reduction of Supervision’s staff to 50 employees) We also described the status of a lawsuit brought by the union representing CFPB employees and other parties against Vought seeking to enjoin him from implementing the RIF. The Court has granted a preliminary injunction which so far has largely prevented Vought from following through on the RIF. The matter is now on appeal before the DC Circuit Court of Appeals and a ruling is expected soon.

Peggy and Paul describe in detail the CFPB Supervision priorities under Director Chopra and compare and contrast those priorities with the new priorities established by Paoletta which are:

1. “Shift back” CFPB Supervision to the proportions focused on depository institutions to nonbanks to where it was in 2012 -- to a 70% depository and 30% nonbank, compared to the more recent 60% on nonbanks to 40% depositories.

2. Focus CFPB Supervision on “conciliation, correction, and remediation of harms subject to consumer complaints” and “collaborative efforts with the supervised entities to resolve problems so that there are measurable benefits to consumers.”

3. Focus CFPB Supervision on “actual fraud” where there are “identifiable victims with material and measurable consumer damages as opposed to matters where the consumers made “wrong” choices.

4. Focus CFPB Supervision on the following priorities:

· Mortgages as the highest priority

· FCRA/Reg V data furnishing violations

· FDCPA/Reg F relating to consumer contracts/debts

· Fraudulent overcharges, fees, etc.

· Inadequate controls to protect consumer information resulting in actual loss to consumers.

1. Focus CFPB Supervision on providing redress to service members and their families and veterans.

2. The areas that will be deprioritized by CFPB Supervision will be loans for “justice involved” individuals, medical debt, peer-to-peer platforms and lending, student loans, remittances, consumer data and digital payments.

3. Respect Federalism” and not prioritize supervision where States “have and exercise” ample regulatory and supervisory authority and participating in multi-state exams (unless required by statute).

4. Eliminate duplicative supervision where other federal agencies have supervisory jurisdiction

5. Not pursue supervision under “novel legal theories.”

6. For fair lending, ignore redlining or “bias assessment” based solely on statistical evidence, and only pursue matters with “proven actual intentional racial discrimination and actual identified victims.”

Peggy and Paul also discussed their skepticism as to whether CFPB Supervision will be able to comply with its statutory duties if the RIF is carried out and Supervision’s staff is reduced to 50 employees.

Alan Kaplinsky, former longtime Chair of the Consumer Financial Group and now Senior Counsel hosted the podcast.

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We are releasing today on our podcast show a repurposed webinar which we produced on May 13, 2025 entitled “What is happening at the federal agencies (other than the CFPB) that is relevant to the consumer financial services industry.”

During this podcast, we will inform you about recent developments at those other agencies, including the FTC, OCC, FDIC, FRB and DOJ (collectively, the “Agencies”) and the White House (through the issuance of Executive Orders). Some of the issues we consider are:

• What are the strategic priorities of the Agencies, including cryptocurrency (OCC, FRB and DOJ); reducing regulatory burden, promoting financial inclusion, embracing bank-fintech partnerships and expanding responsible bank activities involving digital assets (OCC); adopt a more open-minded approach to innovation and technology adoption (FDIC); public inquiry into anti-competitive regulations (FTC and DOJ); and regulation of AI technology, boosting protections for children and teens online and strengthening enforcement against companies that sell, transfer, or disclose Americans’ geolocation information and other sensitive data to foreign adversaries, more emphasis on antitrust enforcement and less on consumer protection (FTC).

• What is the status of proposed or final regulations of the Agencies? (e.g., FTC CARS Rule, Click-to-Cancel Rule, Junk Fees Rule, and Rule banning Noncompetes; FDIC advertisement and brokered-deposit rules, OCC rule on bank mergers; and the Community Reinvestment Act final rule)?

• What is the status of enforcement investigations and litigation of the Agencies?

• What impact will staff cuts have on supervisory examinations?

• What is the impact of President Trump’s executive order requiring the Agencies to obtain approval from the White House of all proposed and final regulations?

• Will the Supreme Court approve of President Donald Trump’s firing of the Democratic members of the FTC and NCUA and other federal agencies (who have subsequently sued Trump to challenge the firings) and, if so, what are its implications?

• What is the significance of the FDIC and OCC agreeing to eliminate “reputation risk” as a basis for evaluating risks to banks?

• Will the OCC adopt a regulation or other guidance, or will Congress enact legislation pertaining to debanking/fair access?

• Will the OCC and/or FDIC issue any guidance or regulations pertaining to federal preemption of state law in light of the Supreme Court’s opinion last term in Cantero and the impending Courts of Appeal decisions in Cantero, Kivett and Conti?

• What is the significance of the FDIC withdrawing its amicus brief in support of the Colorado Attorney General in the 10th Circuit in the lawsuit brought by industry against him challenging a Colorado statute which purported to opt out of Section 521 of DIDMCA?

• Will there continue to be fair lending and disparate impact enforcement at any of the Agencies?

Alan Kaplinsky, former chair and now senior counsel of Ballard Spahr’s Consumer Financial Services Group, moderated the presentations of the following other members of the Consumer Financial Services Group: Scott Coleman, Ronald Vaske and Kristen Larson.

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Our podcast show being released today will focus on S. 919, the Guiding and Establishing National Innovation for U. S. Stablecoins Act of 2025 or GENIUS Act which was reported out of the Senate Banking, Housing, and Urban Affairs Committee by a bipartisan vote of 18-6. The bill would establish a regime to regulate stablecoins. Our guest today, Professor Art Wilmarth of George Washington University School of Law, published an op-ed on March 6 in the American Banker in which he wrote that the

“..bill would allow stablecoins, which are volatile deposit-like instruments, to be offered to the public without the essential protections provided by federal deposit insurance and other regulatory safeguards regarding banks that are insured by the Federal Deposit Insurance Corp. By placing the federal government's imprimatur on poorly regulated and unstable stablecoins, the …bill would greatly increase the probability that future runs on stablecoins would trigger systemic crises requiring costly federal bailouts to avoid devastating injuries to our financial system and economy.”

Our podcast show was designed to be of interest to both crypto neophytes and experts. During this podcast, we explore the following issues:

1. What are stablecoins, and what are their present and potential use cases?

2. How do stablecoins differ from other types of crypto like bitcoin?

3. How many companies issue stablecoins today?

4. What is the total volume in dollars of outstanding stablecoins? Has it been growing? Do all stablecoin issuers also issue other types of crypto?

5. Do any banks issue stablecoins? If not, why not?

6. Are there any federal or state regulations that apply to stablecoins today? What about state money transmitter laws?

7. Do stablecoins provide a better way to improve the speed and reliability of payments compared to other ways of making payments? Do they offer any benefits that are NOT currently offered by tokenized bank deposits and the instant payment and settlement services offered by FedNow and the Clearing House's Real Time Payment Network? How do stablecoins on public blockchains compare to tokenized deposits held on private electronic bank ledgers, in terms of safety, reliability, and efficiency.

8. Professor Wilmarth describes a typical stablecoin transaction and the fact that stablecoin issuers often pay interest on stablecoins that are the equivalent of money market mutual funds and way more than banks pay on passbook or statement savings accounts or checking accounts.

9. How do stablecoin issuers generate revenue?

10. What are the potential risks of stablecoins, especially if they can be offered by nonbanks and are not covered by federal deposit insurance? Would they present the same risks as money market funds, which the Fed and Treasury bailed out in 2008 and again in 2020? Have there been any examples of these risks being realized? Have there been any failures? What happens if a stablecoin issuer fails? Does bankruptcy law (as amended by the GENIUS Act), provide a feasible process for dealing with failures of stablecoin issuers? If nonbank stablecoin issuers become large financial institutions and get into serious trouble, would the federal government be able to finance another series of massive bailouts similar to those of 2007-09 and 2020-21 without risking a crisis in the Treasury bond market and/or another surge of inflation?

11. Will Big Tech firms issuing stablecoins be able to dominate our banking system and economy and would that necessarily be a bad thing?

12. Which firms are likely to be the most significant issuers of stablecoins if nonbanks are allowed to conduct that activity? If Big Tech firms are allowed to offer stablecoins, could they use stablecoins to offer banking services and eventually dominate the banking industry? What should we learn from China's experience with Ant Financial Group (Alipay) and Tencent (WeChat Pay), China's two largest Big Tech firms, which became dominant providers of financial services to Chinese consumers and households?

13. We then discussed the so-called GENIUS ACT which the Senate Banking Committee passed by an 18-6 bipartisan vote on March 13. What are the major features of the Act?

14. What are your major concerns about the bill?

15. What would the stablecoin market look like if Congress passed the GENIUS Act in the form that it was approved by the Senate Banking Committee?

16. Should we require all issuers and distributors of stablecoins to be FDIC-insured banks? Why do you believe that federal banking laws governing FDIC-insured banks provide a far better approach for regulating issuers of stablecoins?

[After the recording of this podcast, the bill ran into rough sledding on the floor for a couple of weeks with some Senators, like Senator Elizabeth Warren, raising consumer protection issues similar to those raised by Professor Wilmarth and other Senators raising concerns about President Trump’s family substantially benefiting from enactment of the bill. However, on May 19, after negotiations among Senate Democrats and Republicans to amend the Bill to add consumer protections, limits on tech companies issuing stablecoins and ethics standards for special government employees, like Elon Musk, the Bill advanced on a bipartisan procedural vote to prevent filibustering in the Senate, 66-32, making it likely that the Bill will pass the Senate by a super-majority vote. The fate of the Bill in the House is less certain.]

Alan Kaplinsky, Senior Counsel and formerly the Chair for 25 years of the Consumer Financial Services, hosted the podcast show.

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Today’s podcast show is a repurposed webinar that we produced on April 22nd, titled “Navigating State AG Investigations: A Playbook For Financial Services Companies.” State Attorneys General (AG) investigations can present significant challenges for businesses and legal practitioners. We offer a detailed dive into effective strategies and practical tips drawn from our State AG Investigation Playbook. Our speakers, Mike Kilgarriff, Joseph Schuster, and Jenny Perkins from our Consumer Financial Services Group, Adrian King, Jr. from our Government Affairs and Public Policy Group, and Hank Hockeimer from our White Collar Defense and Investigations Group, will guide you through the key aspects of handling these investigations, from initial inquiry to resolution.

Key topics include:

· Understanding the scope and authority of State AGs

· Compliance Readiness: Preparing for State AG scrutiny Before it Starts

· Best practices for responding to State AG inquiries

· Coordination with federal regulators

· Strategies for negotiating settlements and resolutions

· Managing public relations and media during an investigation

· Case studies illustrating successful outcomes

Alan Kaplinsky, Senior Counsel of the Consumer Financial Services Group, hosts the podcast show.

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Today’s podcast features Stephen Calkins, a law professor at Wayne State University in Detroit and former General Counsel of the Federal Trade Commission (the “FTC”).

President Trump recently fired, without good cause, the two Democratic members of the FTC, leaving only two Republican members as commissioners. He did this even though the FTC Act provides that a commissioner may be fired by the President only for good cause and that the commission is to be governed by a bi-partisan 5-member commission This is the third time in the past few weeks that Trump has fired without good cause democratic members of other federal agencies; the other two being the National Labor Relations Board (The “NLRB”) and the Merit Selection Protection Board (The “MSPB”). The statutes governing those two agencies, like the FTC Act, allow the President to fire a member of the governing board for good cause only.

The fired members of all three agencies initiated lawsuits in federal district court for the District of Columbia, seeking mandatory preliminary injunctions requiring those agencies to reinstate them with back pay. We discuss the status of the two lawsuits and how the outcome will turn on whether the Supreme Court will apply or overrule a 1935 Supreme Court opinion in Humphrey’s Executor, which held that the provision in the Constitution allowing the President to fire an FTC commissioner for good cause only did not run afoul of the separation of powers clause in the Constitution. Conversely, the Supreme Court will need to determine whether the Supreme Court opinion in Seila Law, LLC V. Consumer Financial Protection Bureau should apply to these two new cases. In Seila Law, the Supreme Court held on Constitutional grounds, that the President could fire without good cause the sole director of the CFPB even though the Dodd-Frank Act allowed the President to fire the sole director of the CFPB for good cause only.

Until this gets resolved, the FTC will be governed only by two Republican commissioners who will constitute a quorum for purposes of conducting official business. Professor Calkins explains how a Supreme Court ruling in these two new cases upholding Trump’s firing of the Democratic members of the agencies could enable the President to fire without good cause members of other multiple-member agencies, like the Federal Reserve Board.

We then discuss the status of the following four final controversial FTC rule, some of which were challenged in court: the CARS Rule, the Click-to-Cancel Rule, the Junk Fee Rule, and the Non-Compete Rule. We also discuss the impact of President Trump’s Executive Order requiring that all federal agencies, including so-called “independent” agencies, must obtain approval from the White House before taking any significant actions, like proposing or finalizing rules.

Then, we discuss the status of enforcement investigations and litigation and whether any of them have been voluntarily dismissed with prejudice by the FTC under Trump 2.0, whether any new enforcement lawsuits been filed, and what they involve. We discuss our expectation that the FTC will be a lot less active in the consumer protection enforcement area during Trump 2.0.

We then discuss the impact on staffing because of DOGE-imposed reductions-in-force. Finally, we touch upon the status of pending antitrust enforcement lawsuits.

Alan Kaplinsky, former practice group leader for 25 years of the Consumer Financial Services Group and now Senior Counsel, hosts the discussion.

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The podcast we are releasing today is part 2 of a re-purposed webinar we produced on March 25 titled “The Impact of the Election on the CFPB - Part 4.” As a result of the diminishing impact of the CFPB on enforcing the consumer financial services laws, we expect that void to be filled by state government enforcement agencies and private civil litigation, including class and mass actions. Our webinar focused on private civil litigation. Our featured guest for this webinar was Ira Rheingold, Executive Director of the National Association of Consumer Advocates. He was joined on the panel by Thomas Burke, Dan McKenna, Jenny Perkins, Joseph Schuster, and Melanie Vartabedian, litigators in our firm’s Consumer Financial Services Group.

We discussed the following areas where the panelists are predicting an increase in private civil litigation during 2025 and beyond:

1. Solar Litigation Trends (Ira, Melanie).

2. Increased volume of arbitrations and mass arbitrations (Ira, Dan).

3. A general emphasis on “unfair” practices, including a close look at alleged unlawful fees (Ira).

4. Crypto industry practices -fees, deception and third-party responsibility (Ira).

5. National Bank Act preemption and DIDMCA opt-out litigation (Joseph).

If you missed listening to part 1 of this re-purposed webinar, you can access the podcast in the link to the following blog which appears here. The blog describes the topics we covered.

Alan Kaplinsky, the former chair for 25 years and now the Senior Counsel of the Consumer Financial Services Group, hosted the podcast show.

For our podcasts repurposed from webinars that we produced as part of our series entitled “The Impact of the Election on the CFPB” Part 1 (regulations and other written guidance), click here and here; Part 2 (supervision and enforcement), click here and here; Part 3 (state AGs and departments of banking), click here and here.

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The podcast we are releasing today is part 1 of a re-purposed webinar we produced on March 25 titled “The Impact of the Election on the CFPB - Part 4.” As a result of the diminishing impact of the CFPB on enforcing the consumer financial services laws, we expect that void to be filled by state government enforcement agencies and private civil litigation, including class and mass actions. Our webinar will focus on private civil litigation. Our featured guest for this webinar was Ira Rheingold, Executive Director of the National Association of Consumer Advocates. He was joined on the panel by Thomas Burke, Dan McKenna, Jenny Perkins, Joseph Schuster, and Melanie Vartabedian, litigators in our firm’s Consumer Financial Services Group.

The podcast began with Ira observing that state enforcement agencies and plaintiffs’ class action lawyers will be taking a careful look at enforcement actions voluntarily dismissed by the CFPB to ascertain whether the complaints should be re-filed by them in federal or state court.

We then proceeded to discuss the following areas where the panelists are predicting an increase in private civil litigation during 2025 and beyond:

1. Increased FCRA litigation, especially in ID Theft (Jenny, Ira).
2. The use of AI and corporate responsibility for ensuring that it does not create unfair or discriminatory practices (Ira).
3. Increased retail bank litigation, including EFTA claims (Ira, Tom).

Part 2 of this re-purposed webinar will be released next Thursday, May 1.

Alan Kaplinsky, the former chair for 25 years and now Senior Counsel of the Consumer Financial Services Group, hosted the podcast show.

For our podcasts repurposed from webinars that we produced as part of our series entitled “The Impact of the Election on the CFPB” Part 1 (regulations and other written guidance), click here and here; Part 2 (supervision and enforcement), click here and here; Part 3 (state AGs and departments of banking), click here and here.

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Our podcast show being released today is part 2 of a repurposed interactive webinar that we presented on March 24 featuring two of the leading journalists who cover the CFPB - Jon Hill from Law360 and Evan Weinberger from Bloomberg.

Our show begins with Tom Burke, a Ballard Spahr consumer financial services litigator, describing in general terms the status of the 38 CFPB enforcement lawsuits that were pending when Rohit Chopra was terminated. The cases fall into four categories: (a) those which have already been voluntarily dismissed with prejudice by the CFPB; (b) those which the CFPB has notified the courts that it intends to continue to prosecute; (c) those in which the CFPB has sought a stay for a period of time in order for it to evaluate whether or not to continue to prosecute them where the stay has been granted by the courts; and (d) those in which the CFPB’s motion for a stay has been denied by the courts or not yet acted upon.

Alan Kaplinsky then gave a short report describing a number of bills introduced this term related to the CFPB. Alan remarked that the only legislative effort which might bear fruit for the Republicans is to attempt to add to the budget reconciliation bill a provision subjecting the CFPB to funding through Congressional appropriations. Such an effort would need to be approved by the Senate Parliamentarian. Finally, Alan expressed surprise that the Republicans, in seeking to shut down the CFPB, have not relied on the argument that the CFPB has been unlawfully funded by the Federal Reserve Board since September 2022 because there has been no “combined earnings of the Federal Reserve Banks” beginning then through the present. (Dodd-Frank stipulates that the CFPB may be funded only out of such “combined earnings”). For more information about that funding issue, listen to Alan’s recent interview of Professor Hal Scott of Harvard Law School who has written prolifically about it. On Monday of this week, Professor Scott published his third op-ed in the Wall Street Journal, in which he concluded:

“Since the bureau is operating illegally, the president can halt its work immediately by executive order. The order should declare that all work at the CFPB will stop, that all rules enacted since funding became illegal in September 2022 are void, and that no new rules will be enforced.”

Joseph Schuster then briefly described what has been happening at other federal agencies with respect to consumer financial services matters. Joseph and Alan reported on the fact that President Trump recently fired without cause the two Democratic members of the Federal Trade Commission leaving only two Republican members on the Commission. He took that action despite an old Supreme Court case holding that the language in the FTC Act stating that the President may remove an FTC member only for cause does not run afoul of the separation of powers clause in the Constitution. The two Democratic commissioners have sued the Administration for violating the FTC Act provision, stating that the President may only remove an FTC commissioner for cause. The President had previously fired Democratic members at the Merit Systems Selection Board and National Labor Relations Board. President Trump based his firings on the belief that the Supreme Court will overrule the old Supreme Court case on the basis that the “termination for cause” language in the relevant statutes is unconstitutional. After the recording of this webinar, the DC Circuit Court of Appeals stayed, by a 2-1 vote, a District Court order holding that Trump’s firing of the Democratic members of the NLRB and Merit Systems Selection Board was unlawful. That order was subsequently overturned by the court of appeals acting en banc. Subsequently, Chief Justice Roberts stayed that order. In light of these developments, it seems unlikely that the two FTC commissioners will be reinstated, if at all, until the Supreme Court decides the case. Also, after the recording of this webinar, the Senate confirmed a third Republican to be an FTC commissioner. For those of you who want a deeper dive into post-election developments at federal agencies other than the CFPB, please register for our webinar titled “What Is Happening at the Federal Agencies (Other Than the CFPB) That is Relevant to the Consumer Financial Services Industry?” which will occur on May 13, 2025.

Joseph then discussed developments at the FDIC where the FDIC withdrew the very controversial brokered deposits proposal, the 2023 corporate governance proposal, the Change-in-Bank- Control Act proposal and the incentive-based compensation proposal. He also reported that the FDIC rescinded its 2024 Statement of Policy on Bank Merger Transactions and delayed the compliance date for certain provisions in the sign and advertising rule.

Joseph then discussed developments at the OCC where it (and the FDIC) announced that it would no longer use “reputation risk” as a basis for evaluating the safety and soundness of state-chartered banks that it supervises. The OCC, also, conditionally approved a charter for a Fintech business model to be a national bank and withdrew statements relating to crypto currency risk.

Finally, Joseph discussed how state AGs and departments of banking have significantly ramped up their enforcement activities in response to what is happening at the CFPB.

The podcast ended with each participant expressing his view on what the CFPB will look like when the dust settles. The broad consensus is that the CFPB will continue to operate with a greatly reduced staff and will only perform duties that are statutorily required. It is anticipated that there will be very little rulemaking except for rules that the CFPB is required to issue - namely, the small business data collection rule under 1071 of Dodd-Frank and the open banking rule under 1033 of Dodd-Frank. The panel also felt that the number of enforcement lawsuits and investigations will measurably decline with the focus being on companies engaged in blatant fraud or violations of the Military Lending Act.

This podcast show was hosted by Alan Kaplinsky, the former practice group leader for 25 years and now senior counsel of the Consumer Financial Services Group.

If you missed part 1 of our repurposed webinar produced on March 24, click here for a blog describing its content and a link to the podcast itself. In short, part 1 featured Jon Hill from Law360 and Evan Weinberger from Bloomberg, who chronicle the initiatives of CFPB Acting Directors Scott Bessent and Russell Vought and DOGE to dismantle the CFPB and the status of the two lawsuits brought to enjoin those initiatives. Ballard Spahr partners John Culhane and Rich Andreano give a status report on the effort of Acting Director Vought to nullify most of the final and proposed rules and other written guidance issued by Rohit Chopra. The podcast concludes with John and Rich describing the fact that supervision and examinations of banks and non-banks is non-existent.

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Our podcast show being released today is Part 1 of a repurposed interactive webinar that we presented on March 24, featuring two of the leading journalists who cover the CFPB - Jon Hill from Law360 and Evan Weinberger from Bloomberg.

Our show began with Jon and Evan chronicling the initiatives beginning on February 3 by CFPB Acting Directors Scott Bessent, Russell Vought and DOGE to shut down or at least minimize the CFPB. These initiatives were met with two federal district court lawsuits (one in DC brought by the labor unions who represents CFPB employees who were terminated and the other brought in Baltimore, MD by the CFPB and others) challenging one or more of these initiatives. Jon and Evan described the lawsuits in detail. While the Baltimore lawsuit was dismissed on the basis of lack of ripeness under the Administrative Procedure Act, Judge Amy Berman Jackson issued a TRO freezing the CFPB from terminating more CFPB employees through the end of March while she decides whether to enter a further injunction with respect to the CFPB’s initiatives.

Ballard Spahr partners, Rich Andreano and John Culhane, then gave an up-to-date status report on CFPB (a) final rules being challenged in litigation and/or eligible to be challenged under the Congressional Review Act; (b) final rules not being challenged in litigation which may be repealed or amended or whose effective or compliance dates may be extended under the Administrative Procedure Act; (c) proposed rules; and (d) non-rule written guidance. Rich and John paid particular attention to the following final rules:

1. The Small Business Loan Data Collection and Reporting Rule under Section 1071 of Dodd-Frank

2. The Non-bank enforcement order Registry Rule

3. The Fair Credit Reporting Act “Data Broker” Rule

4. The Residential Property Assessed Clean Energy (PACE) Financing Rule

5. The Residential Mortgage Servicing Proposed Rule

6. Credit Card Penalty fees under Reg Z (Late Fee Rule)

7. Personal Financial Data Rights (Open Banking) Rule under Section 1033 of Dodd-Frank

8. Overdraft Lending Rule Applicable to very large financial institutions

9. Prohibition on creditors and consumer reporting agencies reporting medical debt under Reg V

Part 1 of our podcast concludes with Rich and John describing the fact that supervision and examination of banks and non-banks is apparently on hold.

This podcast show was hosted by Alan Kaplinsky, the former practice group leader for 25 years of the Consumer Financial Services Group and now Senior Counsel.

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Our special podcast show today deals primarily with a 112-page opinion and 3-page order issued on March 28 by Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia in a lawsuit brought, among others, by two labor unions representing CFPB employees against Acting Director Russell Vought. The complaint alleged that Acting Director Vought and others were in the process of dismantling the CFPB through various actions taken since Rohit Chopra was fired and replaced by Acting Director Scott Bessent and then Acting Director Russell Vought. This process included, among other things, the termination of probationary and term employees and possibly another 1,300 or so employees through a reduction-in-force , the issuance of a stop work order, the closure of the CFPB’s main office in DC and branch offices throughout the country, the termination of most third-party contracts, the decision not to request any additional funding from the Federal Reserve Board for the balance of the fiscal year and the voluntary dismissal of several enforcement lawsuits.

Alan Kaplinsky, Senior Counsel and former chair of Ballard Spahr’s Consumer Financial Services Group, and Joseph Schuster, a Partner in the Consumer Financial Services Group, discuss each part of the preliminary injunction issued by Judge Jackson which, among other things, required the CFPB to re-hire all probationary and term employees who had been terminated, prohibited the CFPB from terminating any CFPB employee except for just cause (which apparently does not include lack of work because of the change in focus and direction of the CFPB), required the CFPB not to enforce a previous “stop work” order or reduction-in-force. We observed that Judge Jackson’s order has required the CFPB to maintain for now a work force that is not needed for the “new” CFPB.

We also discuss that the preliminary injunction order does not require the CFPB to maintain any of the regulations promulgated or proposed by Rohit Chopra or to continue to prosecute any of the enforcement lawsuits brought by Director Chopra.

DOJ filed a notice of appeal on March 29 and on March 31 filed a motion in the DC Court of Appeals to stay Judge Jackson’s order. (After the recording of this podcast, the DOJ filed in the Court of Appeals a motion seeking a stay of Judge Jackson’s order. Pending a hearing on April 9th, the Court issued an administrative stay of Judge Jackson’s order. The 3-Judge panel is composed of two Trump appointees and one Obama appointee.) A copy of the blog co-authored by Alan and Joseph is linked here.

We also discuss another lawsuit initiated by the City of Baltimore and one other plaintiff against Acting Director Vought in Federal District Court for the District of Maryland seeking to enjoin him from returning to the Federal Reserve Board or the Treasury funds held by the CFPB. The Court denied the motion for preliminary injunction on the basis that it was not ripe for adjudication under the Administrative Procedure Act because the CFPB never actually returned any funds.

Finally, Alan expresses surprise that the Acting Director has not relied on the argument that all funds received by the CFPB after September, 2022 were unlawfully obtained because the Dodd-Frank Act stipulates that the CFPB can be funded only out of “combined earnings of the Federal Reserve Banks” and the fact that there have only been huge combined losses of the Federal Reserve Banks since Sept 2022 which continue through today and are likely to continue through the foreseeable future.

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Today’s podcast show features a discussion with David Dayen, executive editor of the American Prospect, which is an online magazine about ideas, politics, and power. He's the author of “Chain of Title: How Three Ordinary Americans Uncovered Wall Street's Great Foreclosure Fraud,” which was published in 2016. David has written and published about 10 or so articles in which he chronicles in great detail the apparent effort by the Trump Administration, acting through Scott Bessent and Russell Vought, to dismantle the CFPB by abruptly ordering a cessation of all activities and layoffs of probationary and term employees and a plan to layoff 1,300 or so additional employees.

Because this plan would have crippled the CFPB, two lawsuits were initiated in rapid fashion against Acting Director Vought seeking to enjoin him from pursuing this strategy. One lawsuit was brought by the two labor unions representing CFPB employees and others in the U.S. District Court for the District of Columbia and got assigned to Judge Amy Berman Jackson. The second lawsuit was brought by the City of Baltimore and others in the U.S. District Court for the District of Maryland. David describes in detail the case pending before Judge Jackson, including the hearings at which several CFPB employees testified. Those employees painted a very grim picture of the effort to shut down the agency. The DOJ lawyer stated that there was never an intent to shut down the CFPB and that the steps taken by the Acting Directors to “freeze” the CFPB were similar to steps taken by any new Administration in order to provide time to evaluate the situation and decide what changes should be made to reflect the new Administration’s policy objectives.

Shortly after the recording of this podcast, Judge Jackson issued on March 28 a 112-page opinion and 3-page order in which she required the reinstatement with back pay of all CFPB employees that had been terminated, enjoined the CFPB from terminating any employees except for good cause related to the individual employee, fully maintain the consumer complaint portal, ordered the defendants to reinstate all third-party contracts which had been earlier terminated, ordered the defendants to not enforce a February 10 stop-work order and required that the CFPB not destroy any records. The defendants have filed a notice of appeal to the D.C. Circuit Court of Appeals. On March 29. On March 31, the defendants filed a motion in the Court of Appeals to stay Judge Jackson’s order. See this blog for more detail about Judge Jackson’s opinion.

Because of the importance of Judge Jackson’s opinion, Alan Kaplinsky and Joseph Schuster have recorded a special (additional) podcast show, where we dissected Judge Jackson’s opinion and order and the other lawsuit brought by the City of Baltimore against Acting Director, Russell Vought, challenging his consideration of returning operating finds to the Federal Reserve Board or Treasury. That podcast will be released tomorrow, Friday, April 4.

The Judge in the City of Baltimore case, in which the plaintiffs had not established nearly as complete a record as the case before Judge Jackson, denied the motion for a preliminary injunction based on the Court’s belief that there was no final order which could be challenged under the Administrative Procedure Act.

We also discussed the possibility that Congress could subject the CFPB to funding through Congressional appropriations by putting such language in the Budget Reconciliation bill which can be enacted by a simple majority and not 60 votes in the Senate.

Alan Kaplinsky, former Chair for 25 years and now Senior Counsel of the Consumer Financial Services Group, hosts the discussion.

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Our podcast show today features Professor Dan Awrey of Cornell Law School, and Matt Lambert, Deputy General Counsel of the Conference of State Bank Supervisors (“CSBS”) who discuss the pros and cons of Congress enacting a statute which would require federal charter for non-banks engaged in the payments business. At present, such non-banks are generally required to be licensed by state departments of banking under money transmitter laws.

On November 14 of last year, on our podcast show, Professor Awrey discussed his working paper “Money and Federalism” in which he advocates for the enactment of Federal legislation creating a Federal charter for non-banks engaged in the payments business, like PayPal and Venmo. The article may be accessed online at SSRN and will likely be published in a law review at some time in the future. The abstract of Professor Awrey’s article states, in relevant part:

The dual banking system is now under stress. The source of the stress is a new breed of technology-driven financial institutions licensed and regulated almost entirely at the state level that provide money and payments outside the perimeter of both conventional bank regulation and the financial safety net. This article examines the rise of these new monetary institutions, the state-level regulatory frameworks that govern them and the nature of the threats they may one day pose to monetary stability.

It also examines the legal and policy cases for federal supremacy over the regulation of these new institutions and advances two potential models, one based on complete federal preemption, the other more tailored to reflect the narrow yet critical objective of promoting public confidence and trust in our monetary system.

The CSBS on Nov. 12 of last year published an article on its website entitled “The Reality of Money Transmission: Secure, Convenient, and Trusted under State Supervision” in which it purported to dispel several myths about state money transmitter and money services statutes. CSBS stated:

Recent statements about money transmission in the United States have perpetuated myths about consumer protections and the safety and soundness of this vibrant, secure, and trusted part of our country’s payments ecosystem.

It is time that we dispel some of these myths by explaining the realities of the state-developed, nationwide framework for regulation, licensing, and supervision of money transmission.

While targeted reforms made through cooperation between the states and federal government may be appropriate, a complete overhaul of an established, secure, convenient, and stable money transmission ecosystem is an unwarranted federal overreach.

Because of these sharp differences of opinion between Professor Awrey and CSBS, we decided to invite Professor Awrey and Matt Lambert to be our guests on this show and to discuss the following issues:

• The historical background to and rationale for state money transmitter laws
• How the National Multistate Licensing System (“NMLS”) and state supervision work today
• The emergence of new business models: e.g. PayPal, Stripe, Crypto
• A brief history of recent federal proposals: from the OCC fintech charter to the current stablecoin bills
• How state legislatures and regulators have responded to the emergence of new business models (e.g. model act amendments and adoption, new chartering frameworks)
• Where the federal government can meaningfully improve on these state level responses (standardization, bankruptcy protection, payment network access, systemic risk regulation, international coordination)
• Where state regulators have a comparative advantage (novel chartering, supervision)
• Where we think the nonbank payment industry and regulation are heading in 2025 and beyond

Alan Kaplinsky, Senior Counsel and former practice group leader of the Consumer Financial Services Group, hosts the podcast show.

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Today’s podcast show features a discussion with Professor Gregory Klass of Georgetown University Law School about an article he co-authored with Professor Ian Ayres, entitled “How to Use the Restatement of Consumer Contracts: A Guide for Judges.” The article will be published this year in the Harvard Business Law Review (vol 15), and is available here.

The abstract of the article states:

“In the absence of major legislation or regulatory action, U.S. consumers will continue to look to courts and the common law for protection when businesses engage in unfair and deceptive contracting practices. In May 2022, the American Law Institute approved the Restatement of the Law, Consumer Contracts. This new Restatement provides a valuable resource for courts tasked with deciding the legal effects of standard terms that businesses draft and consumers do not read. This essay identifies six pieces of the new Restatement we believe courts should pay special attention to and discusses the importance of each. It also charts several ways courts might go beyond the new Restatement to protect consumers against abusive contracting practices. Unless and until legislators and regulators step in, U.S. courts should continue to reshape the common law to address risks that new technologies of contracting create.”

We discuss the following questions related to this Restatement:

1. The history and scope of the Restatement of Consumer Contracts project
2. Why was there perceived to be a need for a separate restatement for consumer contract law when there has been a Restatement of Contracts for many decades?
3. Was it wise to publish a Restatement of Consumer Contracts as opposed to a Statement of Principles since the document to a large extent focuses on what the law should be, rather than on what the law is?
4. The identification of several parts of the Restatement to which Professor Klass believes the courts should pay special attention:

a. The “reasonable expectations” rule in Section 4;

b. The unconscionability defense in Section 6;

c. The deception defense in Section 7; and,

d. The Parol Evidence rule

Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion.

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On June 6 of last year, Prof. Hal Scott of Harvard Law School was our podcast guest. On that occasion he delved into the thought-provoking question of whether the Supreme Court’s decision on May 16 in the landmark case of CFSA v. CFPB really hands the CFPB a winning outcome, or does the Court’s validation of the agency’s statutory funding structure simply open up another question - namely, whether the CFPB is legally permitted under Dodd-Frank to receive funds from the Federal Reserve even though the Federal Reserve Banks have lost money on a combined basis since September 2022. Dodd-Frank provides that the CFPB is to receive its funding out of the Federal Reserve Banks “combined earnings.” The Wall Street Journal published an op-ed by Prof Scott on May 20 titled “The CFPB’s Pyrrhic Victory in the Supreme Court” in which he explains that even though the CFPB’s funding mechanism as written was upheld in CFSA v. CFPB, this will not help the agency now or at any time in the future when the Federal Reserve operates at a deficit.

A lot has happened since Prof. Scott’s last appearance on our podcast show. Several enforcement lawsuits filed by the CFPB were faced with motions to dismiss filed by the defendants alleging that the lawsuits could not be financed by the CFPB with funds that were unlawfully procured The CFPB gave short shrift to this argument but never could adequately explain how “earnings” as used in Dodd-Frank really means “revenues” and not profits. While 3 courts rejected the motions to dismiss, those courts decided to do so without dealing with the core issue of whether “earnings” means profits or revenues.

President Trump became President on January 20 and, shortly thereafter, Rohit Chopra was terminated. The new Acting Director, Russell Vought, proceeded to shutter the CFPB by, among other things, terminating or putting on administrative leave with instructions to do no work most of its employees and refusing to seek a quarterly funding from the Federal Reserve. Mr. Vought did not base this refusal on the premise that the receipt of such funding would be illegal. Two lawsuits have been filed against the Acting Director challenging the legality of the apparent dismantling of the CFPB. While the CFPB is defending these cases on the basis that the President and the Acting Director have the Constitutional right to downsize and alter the policies of the CFPB, they have surprisingly not made the argument that the CFPB’s funding is unlawful.

Prof. Scott on Feb, 1 published another op-Ed in the Wall Street Journal entitled “Rohit Chopra is out. Now Shutter the CFPB” and two articles on the website of the Committee on Capital Markets Regulation (of which Prof. Scott is the President and Director) entitled “Understanding the CFPB’s Funding Problem” and “The Fed’s Accounting Methodology Cannot Expand its Statutory Authority to Fund the CFOB.” Our podcast show released today takes a very deep dive into those articles and explains Prof. Scott’s position that the Fed’s accounting for the massive losses of the Federal Reserve Banks (which creates a deferred asset account composed of anticipated future earnings of the Federal Reserve Banks which the Federal Reserve Banks will not need to remit to the treasury because the banks may recoup its accumulated losses since September 2022) has no bearing on whether the Fed has been lawfully funding the CFPB out of “combined earnings” of the Federal Reserve Banks. Prof Scott also rebuts several counterarguments made by those who claim that the CFPB has been lawfully funded throughout.

Prof. Scott also discusses why he believes that congress may use a budget appropriations bill whose passage requires only a majority, not 60, vote in the Senate in order to subject the CFPB to funding through the congressional appropriations process.

Our blogs about the Supreme Court decision in CFSA v. CFPB can be found here and here. To read our blog about Professor Scott’s op-ed in the Wall Street Journal, which includes a link to the op-ed, click here. To read his more recent op-ed in the Wall Street Journal, click here to read his two articles published on the website of the Committee on Capital Markets Regulation entitled, click here and here.

A transcript of the recording will be available soon.

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Our special guest is David Horton, Professor of Law at the University of California, Davis, who has written a creative and thought-provoking article analyzing how courts should interpret certain key provisions that are frequently used in consumer arbitration agreements. The article may be accessed online at SSRN and will be published in the Washington University Law Review later this year.

Prof. Horton first contends that courts have misinterpreted the Federal Arbitration Act (FAA) as requiring arbitration clauses to be construed broadly, which in many cases forces consumers to arbitrate disputes they never agreed to because the dispute is not causally related to the consumer’s original transaction with the company. Instead, he argues, courts should be guided by the literal text of the FAA, which limits the statute’s application to disputes that “arise out of” the contract containing the clause. Such an approach would narrow the scope of the arbitration clause to disputes that were contemplated by both parties at the time of contracting. Second, Prof. Horton addresses the issue of third parties who are not signatories to the consumer arbitration agreement but are nevertheless defined as “parties” in the agreement. According to Prof. Horton, such “artificial privity” unduly broadens the scope of the arbitration clause because many courts automatically permit the third parties to enforce the agreement without satisfying more rigorous state law requirements for establishing third-party beneficiary status. Third, Prof. Horton argues that arbitrability questions concerning whether a dispute “arises under” the contract and whether a third party properly has enforcement rights should be decided by a court even if the arbitration clause purports to delegate such issues to the arbitrator.

Mark Levin, Senior Counsel in the Consumer Financial Services Group, who helped pioneer the use of arbitration agreements and class action waivers in bank, credit card and other consumer contracts, provides the industry response to each of the arguments asserted by Prof. Horton. Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion.

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Our podcast show today features Gregory M. Dickinson, Assistant Professor of Law at the University of Nebraska, who was previously a guest on our show on August 3, 2023. Our 2023 episode was based on Professor Dickinson’s article titled “Privately Policing Dark Patterns”, 57 Ga. L. Rev. 1633 (2023). The show today focuses on Professor Dickinson’s more recent article, which builds on his 2023 article, titled “The Patterns of Digital Deception”, 65 B. C. L. Rev. 2457 (2024).

The abstract to this article states:

“Current consumer-protection debates focus on the powerful new data-analysis techniques that have disrupted the balance of power between companies and their customers. Online tracking enables sellers to amass troves of historical data, apply machine-learning tools to construct detailed customer profiles, and target those customers with tailored offers that best suit their interests. It is often a win-win. Sellers avoid pumping dud products and consumers see ads for things they actually want to buy. But the same tools are also used for ill—to target vulnerable members of the population with scams specially tailored to prey on their weaknesses. The result has been a dramatic rise in online fraud that disproportionately impacts those least able to bear the loss.

The law’s response has been technology centric. Lawmakers race to identify those technologies that drive consumer deception and target them for regulatory restrictions. But that approach comes at a major cost. General-purpose data-analysis and communications tools have both desirable and undesirable uses, and uniform restrictions on their use impede the good along with the bad. A superior approach would focus not on the technological tools of deception but on what this Article identifies as the legal patterns of digital deception—those aspects of digital technology that have outflanked the law’s existing mechanisms for redressing consumer harm. This Article reorients the discussion from the power of new technologies to the shortcomings in existing regulatory structures that have allowed for their abuse. Focus on these patterns of deception will allow regulators to reallocate resources to offset those shortcomings and thereby enhance efforts to combat online fraud without impeding technological innovation.”

During the show, we discuss the following questions:

1. What is digital deception?
2. What are some examples of digital deception?
3. How is modern online deception any different from old-fashioned, in-person fraud?
4. What have lawmakers been doing to address this issue? Have they succeeded? What sorts of restrictions are on the horizon?
5. What are the challenges to lawmaking in this area?
6. How do these challenges tie in with the “Patterns of Digital Deception”?
7. Given these challenges, what sort of approach should state and federal lawmakers take?

Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion.

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Our podcast show today features Jason Mikula, publisher of Fintech Business Weekly; a newsletter going beyond the headlines to analyze the technology, regulatory and business model trends, driving the rapidly evolving financial services ecosystem at the intersection of traditional banking, payments, FinTech and crypto. We discuss his recently released book, titled “Banking as a Service: Opportunities, Challenges, and Risks of New Banking Business Models” (Kogan Page 2024).

The publisher describes the book as follows:

“This book provides a comprehensive look at banking-as-a-service (BaaS), equipping readers with an understanding of the origins, evolution, future and applications of BaaS and the key differences across global markets.”

BaaS is a game changer in the financial services sector, radically transforming both how consumers experience financial products and the business models delivering them. “Banking as a Service” cuts through the hype to provide a measured overview of BaaS, helping readers to demystify a complex evolving field, and understand its key opportunities, challenges, and risks. It provides a framework for understanding where BaaS came from, how BaaS changes the economics and business models of banking products and services, its impact on key stakeholders, and its key regulatory implications.

“Banking as a Service” explains how business and operating models work, exploring different models such as interchange, deposit gathering, loan origination-to-distribute, legacy, API-first, own license, match-making and bank service providers, and offers a framework for thinking about whether or not they're sustainable. It explores how BaaS operating and business models compare in different global territories and is supported by real-world examples and cases profiling organizations such as Blue Ridge Bank, Unit, Synapse, Goldman Sachs, Railsr, Starling, Solaris, Cacao Paycard, QNB, OnePipe, Airwallex, Nium and Pomelo. It also explains the differences between BaaS, embedded finance and “open banking.”

Alan and Jason discuss the answers to the following questions and topics:

1. What do we mean when we say "banking as a service"?

2. What are the different BaaS business models/operating models?

3. What led to the explosion in banking-as-a-service?

4. Why have bank/fintech partnerships had a rough go of it lately in the US and is that likely to change with a new administration?

5. What is (or what should be) regulators' role in supervising non-bank entities in the BaaS value chain (eg, middleware, customer-facing fintechs)?

6. What is an FBO and are FBOs the "original sin" of banking-as-a-service?

7. What advice would you give to banks considering getting into the BaaS space? How do you see the market evolving from here - for banks, for technology providers, and for customer-facing companies?

8. What advice would you give to fintechs that rely on a bank partner or are looking for one?

Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion.

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In this episode of the Consumer Finance Monitor Podcast, Ballard Spahr partners Mike Kilgarriff and Joseph Schuster break down the seismic shifts in consumer financial regulation following the dramatic changes at the CFPB. With the Bureau’s enforcement and supervisory activities on hold, state attorneys general are stepping in to fill the regulatory void. Mike and Joseph explore what this means for financial institutions, how businesses should navigate the evolving landscape, and the increasing role of state AGs in consumer protection enforcement. Tune in for insights on what’s next in the world of financial regulation.

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Today’s podcast show is a repurposing of the second half of a webinar we produced on January 17, 2025. That webinar was Part 3 of our webinar series entitled “The Impact of the Election on the CFPB and Others.” In Part 3, we focus on the role of state attorneys general in a rapidly shifting CFPB environment. Our previous podcast show, released on Tuesday February 11th, was a repurposing of the first half of our January 17th webinar in which Alan Kaplinsky had a “fireside chat” with Matthew J. Platkin, the New Jersey Attorney General. See here.

The importance of Part 3 is underscored by the recent actions taken by President Trump to fire Rohit Chopra as Director of the CFPB and to appoint new Treasury Secretary, Scott Bessent, and then new Office of Management and Budget (OMB) Director, Russell Vought, as Acting Directors, Messrs. Bessent, and Vought have essentially stopped all activities of the CFPB for the time being.

During today’s podcast show, Mike Kilgarriff, Joseph Schuster, Adrian King and Jenny Perkins of Ballard Spahr’s Consumer Financial Services Group discussed in detail the following issues, among others:

• CFPB post-election messaging to state attorneys general providing a roadmap to them on powers they may exercise under federal law, including the use of the UDAAP provision of Dodd-Frank (particularly the “abusive” prong)

• The probable decline in collaboration with the CFPB following the change in administration

• More networking of state attorneys general

• What can we expect from state legislatures in enacting new consumer financial services protection laws?

• What can we expect from state attorneys general and other state agencies in promulgating new consumer financial services protection laws?

• The continuing need for companies to maintain a robust compliance management system

Parts 1, 2 and 3 of our webinar series appear here, here, and here. Our podcast shows (repurposing Parts 1 and 2 of our webinar series) appear here, here, here, and here. The title of Part 1 is: “The Impact of the election on the CFPB: Regulations and other written guidance, which featured Alan Kaplinsky’s “fireside chat” with David Silberman who held senior positions at the CFPB for almost 10 years during the Directorships of Cordray, Mulvaney, and Kraninger. Part 2 is: “The Impact of the Election on the CFPB: Supervision and Enforcement, which featured Alan Kaplinsky’s “fireside chat” with former Director Kathy Kraninger during Trump‘s first term in office.

Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion.

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Today’s podcast show is a repurposing of Alan Kaplinsky’s “fireside chat” with Matthew J. Platkin, the New Jersey Attorney General, which was the first half of a webinar we produced on January 17, 2025. That webinar was Part 3 of our webinar series entitled “The Impact of the Election on the CFPB and Others.” In Part 3, we focus on the role of state attorneys general in a rapidly shifting CFPB environment.

The importance of Part 3 is underscored by the recent actions taken by President Trump to fire Rohit Chopra as Director of the CFPB and to appoint new Treasury Secretary, Scott Bessent, and then new Office of Management and Budget (OMB) Director, Russell Vought, as Acting Directors. Messrs, Bessent, and Vought have essentially temporarily stopped all activities of the CFPB for the time being.

During our “fireside chat” with General Platkin, we discussed the following topics, among others:

1. What is General Platkin’s background, including his stint as Chief Counsel to the New Jersey Governor?

2. Since General Platkin has been New Jersey Attorney General, what are some examples of the consent orders or lawsuits he has initiated related to consumer financial services?

3. Has the New Jersey Attorney General previously collaborated with the CFPB and/or FTC in investigating certain companies or segments of the consumer financial services industry, and is that likely to change?

4. What effect will there be on consumers in New Jersey if President Trump appoints (as he did) an Acting Director of the CFPB whose interpretation and enforcement of federal consumer protection laws differs markedly from Rohit Chopra?

5. What will the New Jersey Attorney General’s office do in response to this anticipated shifting CFPB environment?

6. Elon Musk has called for the deletion of the CFPB and Project 2025 has also called for the elimination of the CFPB. If that were to happen, what would the New Jersey Attorney General’s office do to fill this anticipated void?

7. We then looked beyond New Jersey to other state attorney general’s offices similarly situated to the New Jersey Attorney General office – who will have the need to initiate more cases when resources are limited. We discussed how state Attorney General’s (including the New Jersey Attorney General) have networked with each other to investigate and sue companies that are violating consumers’ rights in multiple states. We then discussed why it is anticipated that the networking process is likely to increase.

8. The areas of consumer financial protection law and segments of the consumer financial services industry that will be areas of focus for the New Jersey Attorney General during 2025?

Our next episode will be the second half of our January 17 webinar in which several of our colleagues will explore in depth why we expect state Attorney General’s offices to significantly ramp up their investigations involving and lawsuits filed against banks and other consumer financial services providers.

Parts 1, 2 and 3 of our webinar series appear here, here, and here. Our podcast shows (repurposing Parts 1 and 2 of our webinar series) appear here, here, here, and here. The title of Part 1 is: “The Impact of the election on the CFPB: Regulations and other written guidance, which featured Alan Kaplinsky’s “fireside chat” with David Silberman who held senior positions at the CFPB for almost 10 years during the Directorships of Cordray, Mulvaney, and Kraninger. Part 2 is: “The Impact of the Election on the CFPB: Supervision and Enforcement, which featured Alan Kaplinsky’s “fireside chat” with former Director Kathy Kraninger during Trump‘s first term in office.

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Today’s podcast show features a discussion with Julie Andersen Hill about her law review article titled “Regulating Bank Reputation Risk”, 54 GA. L. Rev. 523 (2023). Professor Hill is the Dean and Wyoming Excellence Chair of the University of Wyoming College of Law.

The abstract to Professor Hill’s article does an excellent job of summarizing her thesis:

This Article surveys reputation risk guidance and enforcement efforts. It shows that reputation risk regulation is usually an ancillary consideration to credit risk, operational risk, or other primary risk. In these instances, reputation risk adds little because regulators have strong tools to address the root problems. Sometimes, however, regulators justify guidance or enforcement primarily in terms of controlling reputation risk. Regulators use reputation risk to weigh in on hot-button political topics afield from safety and soundness like gun rights, payday lending and fossil fuels. Because regulators believe that reputation risk is present in every facet of banking, little prevents them from using it to address other controversies.

This Article argues that expansive regulation of reputation risk is harmful. There is little evidence that can accurately predict and prevent bank reputational losses. Moreover, because reputation risk is largely subjective, regulators can use it to further political agendas apart from bank safety and soundness. Unnecessary politicization of banking regulation undermines faith in the regulatory system and correspondently erodes trust in banks.

During our discussion, Professor Hill addressed the following issues:

• What is reputation risk?
• What legal authority do bank supervisors have to regulate reputation risk?
• Why do you believe that the regulation of reputation risk is unnecessary and harmful?
• What is Operation Choke Point all about and how did it turn out?
• What was the outcome in the U.S. Supreme Court in NRA v. Vullo of the New York State bank regulator urging state banks to manage the reputation risk posed by doing business with the National Rifle Association?
• Has concern over the regulation of reputation risk subsided in light of the termination of Operation Chokepoint and the unanimous Supreme Court opinion in NRA v. Vullo?
• Why does there appear to be renewed worry that regulators are using reputation risk and other justifications to force banks to cut services to people, businesses or industries that they don’t like?
• Is there any credence to the claims of Elon Musk and others that crypto and tech startups are being debanked or denied fair access to banking services?
• In light of the fact that President Trump himself and many members of Congress are troubled by debanking claims, what sort of policy changes are likely to be considered? What is the likelihood of the OCC promulgating a regulation prohibiting debanking in Trump 2.0 similar to the one it almost finalized in Trump 1.0?

The importance of this podcast is underscored by the fact that yesterday, the Senate Committee on Banking, Housing and Urban Affairs held a hearing entitled “Investigating the Real Impacts of Debanking in America.”

Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion.

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Our podcast show today features John Culhane and Mike Kilgarriff, partners in Ballard Spahr’s Consumer Financial Services group. They discuss what supervision and enforcement will look like under a new acting director/director appointed by President Trump. This episode is a repurposing of the second half of a webinar that was produced on January 6. On January 23, we released the first half of the webinar, which consisted of Alan Kaplinsky’s “fireside chat” with Kathy Kraninger, the former Director of the CFPB during Trump 1.0., linked here.

With respect to supervision, we consider, among others, the following issues with respect to the CFPB’s leadership under Trump 2.0:

(a) Will it be business as usual or more relaxed?

(b) Will it focus on compliance with the Federal consumer financial services laws and less on UDAAP?

(c) Will there be reduced staffing and fewer exams?

(d) Will there be fewer PAAR letters and more use of MRAS and MRIAs?

With respect to enforcement, we consider, among others, the following issues with respect to the CFPB’s leadership under Trump 2.0:

(a) Will there be an exhaustive review of all existing investigations and lawsuits and a dismissal of those which involve “regulation by enforcement” or “pushing the envelope”?

(b) Will they focus more on fraud and scams and less on UDAAP?

(c) What position will they take on whether the CFPB has been unlawfully funded because the Federal Reserve Banks have had no combined earnings since September 2022?

Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion.

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Today’s podcast episode is a repurposing of Alan Kaplinsky’s “fireside chat” with Kathy Kraninger, the Director of the CFPB during the second half of President Trump’s presidency from December 2018 until January 2021. (This was originally the first half of a webinar we did on January 6, 2025 which was entitled “The Impact of the Election on the CFPB - Supervision and Enforcement.” The January 6 webinar is Part 2 of a 3-part series. Next Thursday, we will release the second half of that webinar which will feature Ballard Spahr partners, John Culhane and Mike Kilgariff, who will take a deep dive into the expected changes in CFPB supervision and enforcement during President Trump’s second term in office.)

During her “fireside chat” with Alan, Kathy discussed the following things:

(a) How she was nominated by Trump to be the Director and succeeded Mick Mulvaney, the acting Director appointed by Trump to succeed Richard Cordray as Acting Director;

(b) Organizational and other changes made by Mulvaney and/or Kraninger, including a hiring freeze, appointments of new heads of departments, etc;

(c) The practical impact on CFPB operations of the Supreme Court’s opinion in the Seila Law case in which the Court held that the President had the right to remove the CFPB director without cause;

(d) Her priorities as Director, including her regulatory, supervisory and enforcement agendas;

(e) Her policy statements on “abusiveness”, supervisory expectations and COVID-19;

(g) Her thoughts on what she anticipates will change at the CFPB once a new acting director chosen by Trump succeeds Rohit Chopra; and

(h) Her thoughts on whether Congress should re-structure the CFPB’s governance and funding.

The “fireside chat” provides stakeholders in the CFPB insight into what may happen at the CFPB during Trump 2.0. There will, however, be some important differences between the circumstances that existed during the transition from Cordray to Mulvaney Kraninger during Traump 1.0 and the transition from Chopra to a new acting Director during Trump 2.0.. At the time when Mick Mulvaney became Acting Director, there were no pending lawsuits challenging CFPB final regs and other actions. During Mulvaney’s term in office, a trade association of payday lenders sued the CFPB challenging the CFPB’s payday lending rule and, in particular, its “ability to pay” requirement. The acting director appointed by Trump will inherit multiple pending lawsuits against the CFPB challenging many of the regs issued by the CFPB under Rohit Chopra’s last two years as Director. The Acting Director will need to develop legislative (Congressional Review Act), judicial and regulatory strategies for dealing with the slough of regs, proposed regs and other written guidance issued by Chopra. The Acting Director will also need to quickly decide what position the CFPB will take with respect to the defense raised in at least 13 enforcement lawsuits claiming that the CFPB has been disabled from conducting business since September 2022 when there was no longer any “combined earnings of the Federal Reserve Banks” - a prerequisite to the Federal Reserve Board funding the CFPB under the Dodd-Frank Act.

Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion.

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In today’s episode, we discuss the CFPB’s recent proposed data broker rule—a proposal that would greatly expand the reach of the Fair Credit Reporting Act.

On December 3, the CFPB issued a proposed rule promoted as one that would require companies that sell data about income or financial tier, credit history, credit score or debt payments to comply with the Fair Credit Reporting Act. The proposal would make it clear that when data brokers sell certain sensitive consumer information, they are “consumer reporting agencies” under the FCRA. That would require them to comply with accuracy requirements. It also would require them to provide consumers access to their information. However, the proposal is much broader than a data broker rule, and the podcast explores the significant breadth of the proposal.

The rule might face an uncertain future, since it was issued by current CFPB Director Rohit Chopra and pushes beyond the boundaries of the FCRA. Chopra’s aggressive regulatory regime is opposed by the Trump Administration.

Joining us today is Dan Smith, president and CEO of the Consumer Data Industry Association, which represents the consumer data reporting industry.

The host of the discussion is Alan Kaplinsky, the former practice group leader for 25 years, and now senior counsel of the Consumer Financial Services Group at Ballard Spahr. Joining the discussion are two Ballard Spahr partners: Richard Andreano, the practice leader of our mortgage banking group at Ballard Spahr and John Culhane.

In this episode, we will discuss the key aspects of the landmark proposed rule, such as:

1. The proposal being much broader than one addressing the sale of personal information to various parties, including stalkers, spies and scammers.

2. The fact that the proposal does not even define what is a data broker.

3. How the proposal would significantly change the concept of what constitutes a consumer report, including the proposal to treat credit header information as a consumer report.

4. How the proposal would change the concept of what constitutes a consumer reporting agency.

5. Requirements that the proposal would add to the written authorization permissible purpose to obtain a consumer report, including requirements regarding revocation of the authorization.

6. How the proposal would modify the requirements to rely on the legitimate business need permissible purpose to obtain a consumer report.

7. Whether the CFPB actually has legal authority to essentially rewrite the FCRA.

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Today’s podcast episode is part two of our December 16th webinar, where we discussed the impact of the election on CFPB rulemaking. Part one consisted of a “fireside chat” with David Silberman, who held several senior-level positions at the CFPB for almost ten years under both Democratic and Republican administrations.

In part two, Ballard Spahr partners John Culhane and Joseph Schuster address the following questions:

1. What will happen to CFPB regulations issued before January 20, such as the CFPB’s credit card late fee rule, which is currently being challenged in a Texas federal court?

2. What will happen to proposed regulations that may still be finalized before January 20, such as the interpretive rule on earned wage access plans and the proposed contract clause registry?

3. What will happen to other written guidance from the CFPB, such as the circular on unenforceable contract terms and the advisory opinion on requests for information under Section 1034(c) of Dodd-Frank?

4. What will be the impact of the Congressional Review Act?

5. What will be the impact of litigation challenges?

6. What will rulemaking look like under the new Director?

7. What will be the impact of the U.S. Supreme Court’s opinion in Loper Bright Enterprises which repealed the Chevron judicial deference doctrine?

Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Ballard Spahr’s Consumer Financial Services Group, hosts the discussion.

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Today’s podcast episode is a repurposing of part one of our December 16 highly-attended and praised webinar consisting of Alan Kaplinsky’s exclusive interview of David Silberman, who held several senior positions at the CFPB for almost 10 years under both Democratic and Republican administrations. Part two of our December 16 webinar, featuring Ballard Spahr partners John Culhane and Joseph Schuster, is to be released on January 9. They focus their attention on the impact of the election on the CFPB’s regulations (final and proposed). Our December 16 webinar is the first part of our three-part intensive look at this transitional period for the CFPB. The goal of our three-part series is to help us predict what is in store for the CFPB during the next four years.

As a former senior leader at the CFPB during the only other transition of the CFPB from a Democratic to a Republican administration led by former President Trump, Mr. Silberman has special insight about what is likely to happen to the CFPB during Trump 2.0.

While nobody yet knows who Trump will nominate as the next CFPB director, Mr. Silberman makes the point that, of potentially greater importance, at least initially, is who Trump selects as the acting director. If what happened in Trump 1.0 is any indication, the acting director may end up serving for a lengthy period of time just like Mick Mulvaney served as acting director for a lengthy period of time before Kathy Kraninger was nominated by Trump, confirmed by the Senate and sworn-in as director. Under the Vacancy Reform Act, the acting director must be either a current senior officer of the CFPB or someone who has already been confirmed by the Senate for a different position.

Among other things, Mr. Silberman addressed the following topics during his interview:

1. What were some of the first steps that Mr. Mulvaney took when he became acting director and will they be replicated by a new acting director?

2. How will a new acting director deal with the many lawsuits brought by trade groups challenging CFPB final rules issued by Director Chopra? Will there be a distinction made between final rules in which district courts have ruled on motions for preliminary injunction and those where courts have not so ruled. Will there be distinctions made between final rules where courts have granted or denied injunctive relief? Finally, will there be distinctions made between final rules mandated by Dodd-Frank and so-called discretionary rules?

3. Which final rules are still subject to being overridden by the Congressional Review Act and what are the odds of that happening with respect to any of such rules?

4. How will the new acting director deal with proposed rules as of January 20?

5. How will the new acting director deal with CFPB enforcement investigations and lawsuits initiated by Chopra, including those which arguably “push the envelope” with respect to the CFPB’s jurisdiction?

6. Will the new acting director agree with many industry pundits that the CFPB has been unlawfully funded by the Federal Reserve Board since September, 2022 in light of the language in the Dodd-Frank Act which permits funding of the CFPB only out of “combined earnings of the Federal Reserve Banks” and the fact that there have been no such combined earnings since September 2022 and the likelihood that no such combined earnings are anticipated in the near future. Does this impact actions taken by the CFPB since September 2022?

7. What role, if any, will the White House play in directing or influencing CFPB policy? What impact, if any, might the Department of Government Efficiency (DOGE) have on the CFPB?

8. Do you expect the new acting director to initiate any rulemakings other than those required by Dodd-Frank?

9. Will the new acting director be more supportive of innovation than Chopra and, if so, how will that be reflected?

Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion.

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In today’s podcast episode, we’re joined by Alex Johnson, Founder of Fintech Takes, and Paige Paridon, Senior Vice President, Senior Associate General Counsel & Co-Head of Regulatory Affairs at Bank Policy Institute, to take a deep dive into the new Consumer Financial Protection Bureau Open Banking Rule.

The CFPB has issued a groundbreaking final rule implementing Section 1033 of the Dodd-Frank Act, significantly expanding consumer access to their financial data. This new Open Banking Rule will have far-reaching implications for financial institutions, fintech companies, and consumers alike. In this episode, we’ll explore the key aspects of this landmark regulation, such as:

1. The scope, rule requirements, and compliance deadlines

2. Complexities of implementing new interfaces and data security measures

3. Potential pitfalls and best practices to mitigate risks, including a lawsuit challenging the legality of the rule

4. How the rule can foster innovation and enhanced consumer experiences

5. The impact of presidential election and presumed appointment of new Acting Director of CFPB

Alan Kaplinsky, former Practice Leader and Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates today’s episode, and is joined by Gregory Szewczyk and Hilary Lane, Partners in Ballard’s Privacy and Data Security Group.

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In today’s podcast episode, we are joined by Raj Date, who has served in a variety of roles at the Consumer Financial Protection Bureau, including as the acting head of the agency and as it’s first-ever Deputy Director. He recently wrote a thought-provoking article in a new online publication, Open Banker, entitled “Banks Aren’t Over-Regulated, They Are Over-Supervised.”

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion, and is joined by Joseph Schuster, a partner in the Group.

By way of background, Mr. Date described how bankers have almost uniformly complained to him that banks are over-regulated. Mr. Date responds to these complaints in his article as follows:

At the time, in the still-smoldering ruins of the financial crisis, this struck me as bizarre. Banks are the beneficiaries of an array of government privileges: subsidized leverage (through insured deposits), liquidity (through the discount window and the home loan banks), exclusive access to payment rails (both through the central bank and bank-only private networks), and even choice of law (through federal preemption). Given all that, safeguards on capital, liquidity, credit exposure, market and interest rate exposure, cybersecurity, and consumer protection seemed like a fair trade to me.

More than a decade later, I realize that those bank CEOs were not exactly wrong, they were imprecise: Banks are not over-regulated, but they are — quite dramatically — over-supervised.

Mr. Date makes the following points in support of his thesis that the banking industry is over-supervised:

1. Bank examination tries to cover too many areas and, as a result, sometimes fails to see the forest through the trees.

2. Bank examination obsessively focuses on process rather than substance. That focus is evidenced by the supervisors’ requirements that the banks document everything.

3. It takes far too long for banks to receive examination reports after exams are completed, sometimes years later. The final exam reports are often anachronistic.

4. Bank examinations often stultify bank innovation because supervisors’ examinations are often critical of banks offering new products and services and this results in bank management being reluctant to innovate out of fear that they will be downgraded.

5. Examiners’ focus on process rather than risk itself has resulted in a bank management brain drain.

Mr. Date then explains how the examination process should be changed. Mr. Date first calls for immediate changes even though the banking industry is largely thriving.

Mr. Date suggests the following approach in his article and during the podcast:

The regulatory agencies are, probably justifiably, proud of their long histories of public service. But that pride breeds cultures that are strikingly conservative and resistant to change. As importantly, unlike private sector firms, they do not have the crucible of a profit imperative to burn away unproductive practices and orthodoxies. And it shows. It is not as though bank examiners cannot articulate the most important issues facing their regulated charges; it is just that they often just have no reason to stop working on things other than the most important issues.

The only solution is strong top-down leadership that imposes ambitious goals. Without stretch goals that will feel strikingly out of reach at the outset, real change will not be possible. If it were me, I would set out, in a pilot with a handful of mid-sized banks, to structure a supervisory exam strategy that costs 75% less (in combined bank and agency costs) and is 75% faster from first-day letter to final report than today’s norms.[9] I would embrace pilot uses of new technology tools in pursuit of those goals. And then I would iterate on those initial (almost certainly unsuccessful) results.

This will be difficult, and even painful. But I very much believe it will be worth it.

While acknowledging the issues with over-supervision, Joseph directs significant attention to the problem of over-regulation. He argues that modern regulatory practices have become more complex, restrictive, and less clear, creating barriers to innovation and access to credit. Joseph highlights how over-regulation stifles the development and availability of consumer finance products.

Joseph explains how products like "Buy Now, Pay Later" (BNPL) face regulatory hurdles despite addressing consumer needs effectively. Joseph also discusses the potential negative impact of proposed changes to late fee regulations, warning that such measures could limit access to credit and push consumers toward higher-cost alternatives. Joseph criticizes the heavy-handed approach taken by regulators, such as the CFPB’s issuance of circulars, which adds further uncertainty and complexity for institutions attempting to innovate in this space.

Joseph advocates for a return to a more structured and transparent regulatory framework. He suggests that agencies recommit to the principles of the Administrative Procedures Act (APA), emphasizing the importance of notice-and-comment rulemaking. Drawing parallels to the Federal Reserve Board’s process during the implementation of the Credit Card Accountability, Responsibility, and Disclosure (CARD) Act, Joseph argues that meaningful engagement with the industry could lead to clearer regulations that balance consumer protection with innovation and operational feasibility.

Joseph endorses Raj Date’s call for clear and focused priorities in the supervisory process, and emphasizes that both banks and examiners benefit from a more straightforward understanding of the rules. Joseph concludes by warning against the trend of "regulation through enforcement," which undermines transparency and predictability, ultimately harming consumers and financial institutions alike.

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If you work for a bank or other consumer financial services provider, you will want to listen closely to how consumer advocates are reacting to Trump’s election insofar as the CFPB and FTC are concerned. In today’s podcast episode, we’re joined by Erin Witte and Adam Rust (the “CFA Reps”) from CFA.

We focus first on CFPB and FTC regulations that might be finalized during the lame duck session of Congress. The CFA Reps express hope that the FTC would finalize its so-called “junk fee reg” which, as proposed, called for “all-in” pricing (I.e., disclosure of a dollar amount for goods and services that includes all fees that will be charged in connection with the transaction.) They also express hope that the CFPB will finalize its checking account overdraft fees reg, the larger participant rule pertaining to non-bank payment providers and the medical debt rule which, if finalized, would result in unpaid medical debt no longer appearing on credit bureau reports. Of course, there is a risk, with respect to each of these rules as well as any other CFPB and FTC rules finalized roughly after August 1 of this year, which they may be overruled by Congress under the Congressional Review Act.

We then discuss final regs promulgated by the FTC and CFPB which have been challenged in the Circuit Courts of Appeal. For the FTC, this includes the so-called CARS Rule (which imposes restrictions on car dealers’ sales and financing of motor vehicles) and the recent “Click-to-Cancel” Rule which, among other things, requires sellers of goods and services on a subscription basis to be able to cancel subscriptions as easily as signing up for subscriptions. The latter rule has been challenged in four circuit courts of appeal.

We also discuss the status of many CFPB final regs and what a new CFPB’s strategy may be with respect to them. They include: the $8 credit card late fee rule which is currently enjoined by a Federal District Court in Texas; the data collection reg pertaining to small business loans promulgated under Section 1071 of Dodd-Frank, which is currently on appeal before the Fifth Circuit Court of Appeals after a Federal District Court denied a motion by the bank trade associations to grant a preliminary injunction pertaining to the reg; the open-banking reg under Section 1033 of Dodd-Frank (which pertains to consumers having the ability to share information in certain bank accounts with third parties which has been challenged in court; the Buy-Now, Pay-Later interpretive rule which has been challenged in court; and the Earned Wage Access interpretive rule. There is great uncertainty as to whether the new CFPB’s Director will seek to repeal or amend any of these regs or whether he or she will elect to change the CFPB’s position in the litigation to side with the plaintiffs. In order to repeal or change any of the regs (other than the two interpretive rules), the CFPB will need to jump through all the hoops required by the Administrative Procedure Act before effecting a repeal or change and the repeal or change might be challenged in court as being arbitrary or capricious. It would seem that it might be much easier to repeal or change the interpretive rules which would not require publishing them in the Federal Register for notice and comment.

The CFS Reps also express hope that the CFPB issues its final report with respect to the voluminous information it received from auto finance companies in response to market monitoring orders it issued to them. An initial report recently issued by the CFPB and dealt with the incidence of financing negative equity in cars being traded in. While the final report is unlikely to result in new proposed CFPB regulations during the next four years, the report might instigate enforcement actions by state AGs.

As was the case during the first Trump presidency, the CFA Reps believe that whatever consumer protection void is created at the CFPB will largely be filled by state AGs, state departments of banking and consumer protection agencies. They also expect there to be an increase in private civil litigation, including class actions.

Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion.

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Today’s podcast features James Kohm, the Associate Director for the Enforcement Division of the Federal Trade Commission’s Bureau of Consumer Protection. We discuss the FTC’s “Click-to-Cancel” Rule (consisting of significant amendments to the longstanding “Negative Option Rule”) which was promulgated by the FTC on October 16, 2024 by a vote of 3-2 along party lines.

Before discussing the specifics of the new rule, Mr. Kohm describes the FTC’s Negative Option Rule adopted in 1973. It required sellers to clearly disclose the terms of any such negative option plan for the sale of goods before consumers subscribe. In such plans, consumers are notified of upcoming merchandise shipments and have a set period to decline the shipment. Sellers interpret a customer’s silence, or failure to take an affirmative action, as acceptance of an offer. The Negative Option Rule was initially adopted to deal with mail order plans like the “book-of-the-month” club. With the proliferation of sales of goods and services over the Internet, the FTC concluded that it was necessary to update the Negative Option Rule to remedy what it considered to be widespread unfair and deceptive practices related to subscription plans sold over the Internet, particularly the difficulty consumers were often having in canceling subscriptions.

There are several parts of the “Click-to-Cancel Rule. The first part of the Rule prohibits material misrepresentations related not only to the negative option feature, but also any other material feature of the transaction for the goods or services. Another part of the Rule are the disclosure requirements which relate to the cost of the goods or services, the fact that the charges will be assessed periodically, how often the consumer will be charged and how to cancel the subscription. The Rule also requires that the seller obtain the consumer’s express consent to the transaction which the seller must maintain in its records for a prescribed period of time. The centerpiece of the Rule is that the seller must make it as easy to cancel the subscription as it is to enter into the subscription.

Mr. Kohm explains that because the Rule was adopted under the Magnusson Moss Act, the FTC will be able to recover monetary relief and civil money penalties for violations - something which the Supreme Court ruled that the FTC may not recover for enforcement actions brought under section 13 of the FTC Act alleging unfair and deceptive acts or practices. Mr. Kohm also explains that sellers are covered by the Rule to the full extent of the FTC’s jurisdiction. Therefore, the Rule covers business-to-business transactions as well as business-to-consumer transactions. Banks and other depository institutions are not covered by the Rule. There is also no private right of action under the Rule.

Mr. Kohm then describes several petitions to invalidate the Rule which have been filed in four federal circuits courts of appeal. There have not yet been any substantive rulings in any of the cases.

We then ask Mr. Kohm for his opinion as to whether the composition of the Commission would change as a result of the outcome of the Presidential election and whether that might result in the Rule being repealed or amended to satisfy industry concerns. The President has the right to nominate the new Chair who will undoubtedly be a Republican. At that point, the Commission will be controlled 3-2 by Republicans. Since two Republican Commissioners have already dissented from the Rule, there is some possibility that the Rule might be repealed or amended before it goes effective. Mr. Kohm observes that since the rulemaking was launched at a time when Republican Commissioners held a majority of the five seats, it was not a foregone conclusion that the Commission would vote to repeal or amend the Rule. Since the Rule does not prohibit the use of negative options subscription contracts and just about everyone has had difficulty in canceling such contracts, it could very well be that the Rule remains largely intact.

Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion.

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Today’s podcast episode is a re-purposing of a webinar we recorded on November 12, 2024. Our special guests for that webinar were Colin Carr, Vice-President of Congressional affairs at the Consumer Bankers Association and Ian Katz, Managing Director at Capital Alpha Partners. John Culhane, a partner in the Consumer Financial Services Group at our firm.

The webinar begins with Colin giving us an overview of President-Elect Trump’s victory and the Senate and House elections which resulted in the Republicans achieving close majorities in both chambers. As a result, the Republicans may not have too much difficulty in confirming Trump nominees for various positions and may also be able to override final rules published in the Federal Register by the CFPB and other agencies after August 1 of this year under the Congressional Review Act. (This includes the so-called “open banking” rule pertaining to consumer control of their records at banks under Section 133 of Dodd-Frank.

Ian then addresses certain leadership changes at the CFPB, FDIC, OCC, FRB and FTC and the possibility of Trump using recess appointments to nominate the leaders of those agencies.

John Culhane then takes a deep dive into the current status and expected outcome of agency regulations (both legislative and interpretive), proposed regulations and other written but less formal guidance and circulars. This includes the CFPB’s $8. credit card late fee rule, the small business data collection rule under Section 1071 of Dodd-Frank, the Buy-Now, Pay-Later interpretive rule, “open banking “ rule, and the changes to the UDAAP Exam Manual which described any form of discrimination as being an unfair trade practice, all of which are the subject of pending litigation. We also discuss the FTC’s “CARS” rule and the “Click to Cancel” rule, which are also subject to pending litigation. Finally, we discussed the FDIC’s “brokered deposits” rule.

We explain how final legislative rules can only be overturned or modified through Congressional Review Act override (if they were adopted after August 1, 2024) or by proposing a repeal or modification under the Administrative Procedure Act (which is the same lengthy procedure utilized to promulgate the regulation) or by a final judgment of a court invalidating the rule.

We also discuss whether the new CFPB Director may concede that the CFPB has been unlawfully funded under Dodd-Frank since the FRB may only fund the CFPB out of “combined earnings of the Federal Reserve Banks” and because there have been no such combined earnings since September, 2022.

Alan Kaplinsky, Senior Counsel and former practice group leader for 25 years of the Consumer Financial Services Group at Ballard Spahr hosts the episode.

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On January 4 of this year, we released a podcast show entitled; “A look at a new approach to consumer contracts”. Our special guest at that time was Professor Andrea Boyack, a Professor at the University of Missouri School of Law. That podcast was based on a then recent law review article published by Professor Boyack entitled “The Shape of Consumer Contracts, 101 Denv L. Rev. 1 (2023). Today, we are joined again by Professor Boyack who has written a follow-up article entitled: “Abuse of Contract: Boilerplate Erasure of Consumer Counterparty Rights,” University of Missouri School of Law Legal Studies Research Paper No. 2024-03, which is the subject of our new show.

The abstract of her article accurately describes the points that Professor Boyack made during the podcast show:

Contract law and the new Restatement of the Law of Consumer Contracts generally treats the entirety of the company’s boilerplate as presumptively binding. Entrusting the content of consumer contracts to companies creates a fertile legal habitat for abuse through boilerplate design.

There is no consensus on how widespread or severe abuse of contract is. Some consumer law scholars have warned of dangers inherent in granting companies unrestrained power to sneak waivers into their online terms, but others contend that market forces adequately constrain potential abuse. On the other hand, in the absence of adequate consumer knowledge and power, market competition might instead fuel the spread of abusive boilerplate provisions as companies compete to insulate themselves from costs. The new Restatement and several prominent scholars claim that existing protective judicial doctrines siphon off the worst abuses among adhesive contracts. They are willing to accept those abuses that slip through the cracks as the unavoidable cost of a functioning, modern economy.

The raging debate over how to best constrain contractual abuse relies mainly on speculation regarding the proliferation and extent of sneak-in waivers. This article provides some necessary missing data by examining the author’s study of 100 companies’ online terms and conditions (the T&C Study). The T&C Study tracked the extent to which the surveyed companies’ boilerplate purported to erase consumer default rights within four different categories, thereby helping to assess the effectiveness of existing market and judicial constraints on company overreach. Evidence from the T&C Study shows that the overwhelming majority of consumer contracts contain multiple categories of abusive terms. The existing uniformity of boilerplate waivers undermines the theory that competition and reputation currently act as effective bulwarks against abuse. After explaining and discussing the T&C Study and its results, this article suggests how such data can assist scholars and advocates in more effectively protecting and empowering consumers.

We also discuss two separate CFPB initiatives pertaining to consumer contracts. On June 4 of this year, the CFPB issued Circular 2024-03 (“Circular”) warning that the use of unlawful or unenforceable terms and conditions in contracts for consumer financial products or services may violate the prohibition on deceptive acts or practices in the Consumer Financial Protection Act. We previously drafted a blog post and Law360 article about this circular.

The CFPB has also issued a proposed rule to establish a system for the registration of nonbanks subject to CFPB supervision that use “certain terms or conditions that seek to waive consumer rights or other legal protections or limit the ability of consumers to enforce their rights.” Arbitration provisions are among the terms that would trigger registration. The CFPB has not yet finalized this proposed rule and it seems likely that it will never be finalized in light of its very controversial nature and the fact that Director Chopra will be replaced on January 20 with a new Acting Director.

Alan Kaplinsky, the former Chair of Ballard Spahr’s Consumer Financial Services Group for 25 years and now Senior Counsel, hosts this episode.

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In this podcast show, we explore with our repeat guest, Professor Dan Awrey of Cornell University Law School, his working paper “Money and Federalism” in which he advocates for the enactment of Federal legislation creating a Federal charter for non-banks engaged in the payments business, like PayPal and Venmo. The article may be accessed online at SSRN and will likely be published in a law review at some time in the future. The abstract of Professor Awrey’s article describes in general terms what we discussed:

The United States is the only country in the world in which both federal and state governments possess independent and yet overlapping authority for bank chartering, regulation and supervision. The roots of this unique dual banking system can be traced back to the Constitution, written almost a century before banks rose to the apex of the financial system and became the dominant source of money. Beginning with the landmark Supreme Court decision in Maryland v. McCulloch, the system has been a wellspring of jurisdictional conflict. Yet over time, this highly contested and highly fragmented system has also produced strong federal oversight and a financial safety net that protects bank depositors, prevents destabilizing runs, and promotes monetary stability.

This system is now under stress. The source of the stress is a new breed of technology-driven financial institutions licensed and regulated almost entirely at the state level that provide money and payments outside the perimeter of both conventional bank regulation and the financial safety net. This article examines the rise of these new monetary institutions, the state-level regulatory frameworks that govern them and the nature of the threats they may one day pose to monetary stability.

It also examines the legal and policy cases for federal supremacy over the regulation of these new institutions and advances two potential models, one based on complete federal preemption, the other more tailored to reflect the narrow yet critical objective of promoting public confidence and trust in our monetary system.

Professor Awrey explained why existing state money transmitter statutes under which non-bank payments firms are generally licensed provide insufficient protection for consumers who use these firms. State money transfer statutes were created many years ago to protect consumers that were using Western Union. These laws were not designed to protect consumers that deploy non-bank Fintech companies using new technologies to transfer funds. These companies don’t have access to the Federal Reserve’s central payments system that banks have access to. These non-bank companies, unlike banks, are subject to federal bankruptcy law. That increases the likelihood that consumers can lose their funds deposited in one of these non-bank companies in the event of its failure.

Professor Awrey concludes that the answer to this problem is the enactment of federal legislation which would create a federal charter for non-bank companies engaged in transmitting payments. A company that is granted such a charter would have access to the Fed’s payment rails and would be exempt from the federal Bankruptcy Code. Such a company would be very restricted in the types of investments it may hold. The federal charter would ideally preempt many state laws, including state money transmitter laws.

We also spent some time at the beginning of the show discussing the status of FedNow, the instant payments system launched by the Federal Reserve System in July 2023. Professor Awrey was previously a guest on our podcast show on September 14, 2023 entitled “What is FedNow and its Role in the U.S. Payments System.” At that time, Professor Awrey predicted that FedNow was too little, too late and too expensive for small banks. Professor Awrey’s opinion is unchanged. He noted that the Fed has so far refused to share any data about FedNow usage.

Alan Kaplinsky, Senior Counsel and former practice group leader for 25 years of the Consumer Financial Services Group, hosted the podcast show.

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This summer, the CFPB issued its long-awaited proposed rule amending the mortgage servicing rules under Regulation X, with a focus on loss mitigation procedures, foreclosure protections, and language access. These changes were previewed by the CFPB as a means to streamline, and add flexibility to, the loss mitigation process, in light of the industry’s successful efforts during the COVID-19 pandemic. However, the CFPB’s proposal also significantly expands borrower protections during the loss mitigation process, creates extensive new operational challenges for servicers, and leaves many concerning questions based on the proposed language.

The mortgage servicing industry responded by submitting numerous comment letters, appropriately voicing a range of concerns with the proposed changes. We now await further action from the CFPB.

On this episode, Ballard Spahr lawyers discuss the regulatory and litigation impacts of the proposed rule, including:

1. Detailed analysis of the proposed changes

2. Potential approaches to loss mitigation, under the revised scheme

3. Practical impacts on loss mitigation and foreclosure from an operational, cost, and liability standpoint

4. Specific pain points under the proposed language, and topics requiring clarification, refinement, or pushback

5. Language access requirements, and the impact from an operational, cost, and liability standpoint

6. Implications of the rulemaking in a post-Chevron world

Rich Andreano, a Partner and Leader of Ballard Spahr’s Mortgage Banking group, moderates today’s episode, and he is joined by Reid Herlihy and Matt Morr, Partners in the Group.

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Our podcast listeners are very familiar with federal fair lending and anti-discrimination laws that apply in the consumer lending area: the Equal Credit Opportunity Act (ECOA) and Fair Housing Act (FHA). Those statutes prohibit discriminating against certain protected classes of consumer credit applicants. For example, the ECOA makes it unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction, on the basis of race, color, religion, national origin, sex, marital status, or age (provided the applicant has the capacity to contract); the applicant's use of a public assistance program to receive all or part of their income; or the applicant's previous good-faith exercise of any right under the Consumer Credit Protection Act. The FHA prohibits discrimination concerning the sale, rental, or financing of housing based on race, religion, national origin, sex, disability, pregnancy or having children. The FTC sometimes relies on the “unfairness” prong of its UDAP (Unfair or Deceptive Acts and Practices) authority to bring other types of discrimination claims against companies subject to the FTC’s jurisdiction. The CFPB has tried to use the unfairness prong of its UDAAP (Unfair, Deceptive, or Abusive Acts or Practices) authority in a similar manner with respect to companies and banks subject to its jurisdiction. A Federal District Court has invalidated the portion of the CFPB’s UDAAP Exam Manual provision upon which such authority was previously predicated and the case is now being considered by the Fifth Circuit.

Our focus during this podcast show is not on these Federal anti-discrimination statutes, but rather on the fact that an increasing number of states have either enacted or are considering enacting legislation requiring financial institutions to provide persons (both existing customers and prospective customers) who are not ordinarily protected by the federal anti-discrimination statutes with fair access to financial services. The first broad fair access requirements appeared in a Florida statute enacted in 2023, which generally prohibits financial institutions from denying or canceling services to a person or otherwise discriminating against a person in making available services on the basis of enumerated factors, commonly including factors such as political opinions, or any other factor that is not quantitative, impartial, and risk-based.

Because this topic is very controversial, I invited individuals who support and oppose these new types of state statutes: Brian Knight, Senior Research Fellow at Mercatus Center of George Mason University, Professor Peter Conti-Brown of the Wharton School of the University of Pennsylvania, and Peter Hardy who co-leads our Anti-Money Laundering (AML) team at Ballard Spahr. (Brain was previously a guest on our May 23, 2024 podcast which focused on the related topic of Operation Chokepoint.) Brian is generally supportive of these state fair access laws. Professor Conti-Brown and Peter Hardy generally oppose these types of laws.

We cover the following sub-topics, among others:

1. Why were these laws enacted?

2. What financial institutions are subject to these laws? Do they cover only depository institutions or do they also cover non-banks? Do they cover only consumer transactions or do they cover business transactions as well? Do they cover out-of-state financial institutions doing business with residents of the states that have enacted these statutes? Are there exemptions based on small size?

3. Since banks are not public utilities, and have shareholders and employees to whom they owe duties, why should they be forced to do business with people or companies who generate fossil fuel or who manufacture or sell firearms, to take just two examples of industries protected by these statutes?

4. What are the private and public remedies for violating these statutes?

5. Does the National Bank Act, the Home Owners’ Loan Act and the Federal Credit Union Act preempt these state laws?

6. Do these laws run afoul of AML laws as the Treasury suggests?

Brian believes that these state statutes don’t force any financial institution to do business with a particular person or company. The statutes simply say that you must give a good reason for a declination. A good reason would be one based on risk to the institution such as a lack of experience in evaluating the company’s business. Another good reason would be that the company is engaged in an unlawful business. A bad reason for a declination would be that the bank doesn’t like the political or cultural positions of the company.

Peter Conti-Brown believes that banks should be able to decide with whom they desire to do business as long as they don’t violate existing federal laws that prohibit discrimination, like ECOA and the FHA. Peter expresses skepticism that there was or is a need for these statutes. The “bottom line” is that the state statutes are bad public policy. Peter also believes that these state statutes are preempted by the National Bank Act.

Peter Hardy believes that these state statutes throw a monkey wrench into banks’ efforts to comply with AML requirements and the Bank Secrecy Act. He explains how these statutes could help bad actors evade the BSA.

We have previously blogged about these statutes.

Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion.

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Today’s podcast, which repurposes a recent webinar, is the conclusion of a two-part examination of the CFPB’s use of a proposed interpretive rule, rather than a legislative rule, to expand regulatory requirements for earned wage access (EWA) products. Part One, which was released last week, focused on the CFPB’s use of an interpretive rule to expand regulatory requirements for buy-now, pay-later (BNPL) products.

We open with a discussion of EWA products, briefly describing and distinguishing direct-to-consumer EWAs and employer-based EWAS. We review some of the consumer-friendly features that are common to EWAs, including that there is no interest charged and they are typically non-recourse, and discuss expedited funding fees and tips, neither of which is required to access EWAs. We also provide an overview of how some states have attempted to regulate (or specifically not regulate) EWAs.

We then transition into a discussion of the CFPB’s history with EWA products, including the Bureau’s advisory opinion in 2020 that took a markedly different approach to EWAs, essentially taking the position that a certain subset of EWAs fell outside of the definition of “credit” under the Truth in Lending Act (TILA) and Regulation Z. The CFPB’s proposed interpretive rule, on the other hand, states that EWAs are “credit” and that expedited funding fees and optional tips, in most circumstances, are part of the finance charge that must be disclosed under TILA and Regulation Z. We explore the Bureau’s reasoning in support of these conclusions and some of the compliance difficulties that the proposed interpretive rule would create were it to go into effect as written. Since this recording took place, the CFPB has posted over 148,000 comment letters that it has received on the proposed interpretive rule, many of which are from consumers who use EWAs to access a portion of their earned wages prior to their scheduled payday and are concerned that the proposed interpretive rule could limit or jeopardize their access to EWAs. The high number of responses demonstrates the level of interest that the CFPB’s proposed interpretive rule has generated.

We conclude with thoughts about vulnerabilities with both the proposed interpretive rule for EWAs and the interpretive rule for BNPLs that we described in Part One of this podcast, as well as how these rules could potentially be challenged. One notable development that has occurred since our recording is that the Financial Technology Association has filed a complaint asking a D.C. federal court to strike down the interpretive rule for BNPLs because of the alleged violations of the Administrative Procedure Act that we discuss in this episode.

Alan Kaplinsky, former Practice Leader and Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates today’s episode, and is joined by John Culhane and Michael Guerrero, Partners in the Group, and John Kimble, Of Counsel in the Group.

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Today’s podcast, which repurposes a recent webinar, is the first in a two-part examination of the CFPB’s use of an interpretive rule, rather than a legislative rule, to expand regulatory requirements for buy-now, pay-later (BNPL) products. Part Two, which will be available next week, will focus on the CFPB’s use of a proposed interpretive rule to expand regulatory requirements for earned wage access (EWA) products.

We open with an overview of what interpretive rules are and how they differ procedurally and substantively from legislative rules. The intended use of interpretive rules is to explain the meaning of an existing provision of law, while legislative rules, which require a more complicated and time-consuming procedure, including a notice and comment period under the Administrative Procedures Act, are intended to be used to expand or implement a provision of law. We also discuss why the CFPB chose to use an interpretive rule and why they decided to include a request for comments when that is not required for interpretive rules.

We then discuss BNPL products, including how they work and some of the features that have made them popular with consumers and merchants. We point out that the interpretive rule seems to represent a change in the views of the CFPB with regard to BNPL. After providing an overview of the CFPB’s history with the product, including a report issued by the Bureau back in 2022, we delve into the details of the CFPB’s interpretive rule. We discuss how the CFPB seems to be expanding the definition of a “credit card” to include what the Bureau calls a “digital user account,” which is how consumers access their BNPL information.

We conclude with thoughts about the implications of the CFPB’s interpretive rule and some of the difficulties that BNPL providers will have complying with the interpretive rule. This includes a discussion of the timing of billing statements and written notice requirements for billing error disputes and merchant disputes.

Alan Kaplinsky, former Practice Leader and Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates today’s episode, and is joined by John Culhane, Michael Guerrero, and Joseph Schuster, Partners in the Group. The webinar was recorded before the CFPB issued an FAQ, which purports to answer a number of open questions raised by the BNPL interpretive rule. We recommend that you review the FAQ after listening to this podcast.

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Our podcast today focuses on negative option consumer contracts, i.e., agreements that allow a seller to assume a customer’s silence is an acceptance of an offer. Such contracts are ubiquitous in today’s marketplace.

Today’s guests are Kaitlin Caruso, a professor at the University of Maine Law School, and Prentiss Cox, a professor at the University of Minnesota Law School. They have written an article entitled, “Silence as Consumer Consent: Global Regulation of Negative Option Contracts.” The article is available on SSRN and will soon be published in the American University Law Review.

The Professors first describe what they perceive to be some of the consumer harms resulting from the use of negative option contracts – consumers signing up for “free trial” offers that convert to term contracts requiring consumers to pay periodic fees after the free trial period has expired; credit card “add-on” products which are sold through telemarketing, like credit life and disability insurance; subscription contracts which make it difficult for consumers to cancel; subscription contracts for services, which are not used for lengthy periods of time while the consumer continues to pay periodic fees.

The Professors then describe the existing federal and state statutes and FTC regulations and why they are inadequate to protect consumers. They point out that the current FTC negative option rule was promulgated decades before the development of the Internet and obviously does not begin to deal with online sales of goods and services. Instead, the FTC rule is intended to deal with mail order sales like the “Book-of-the-Month” club. While the FTC has proposed a new negative option rule which is a vast improvement over the existing FTC rule, it is unclear when or if a final rule will be promulgated. The Professors also describe the federal Restore Online Shoppers Confidence Act, and the FTC‘s Telemarketing Sales Rule which tangentially pertain to negative option contracts. Finally, the professors discuss a patchwork quilt of state laws (mostly part of state UDAP statutes) which deal with negative option contracts.

After surveying the existing federal and state laws, as well as negative option laws enacted in many foreign countries, the Professors describe the core elements of what a negative option law (be it state or federal) should contain in order to protect consumers. The core elements are:

1. A prohibition against converting a “free trial” offer into a term contract;

2. A prohibition against automatically converting a negative option contract into another term contract with the contract instead becoming a month-to- month contract. Alternatively, the negative option contract could convert to a term contract, which could then be canceled during the first 90 days after the consumer sees a charge on a credit card statement.

3. If a subscription to services is not used by the consumer for at least one year, then the seller must notify the consumer of the dormancy, and if the service remains dormant for another three months thereafter, then the seller must cease charging the consumer for the service.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts today’s episode.

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In today’s podcast, which repurposes a recent webinar, we examine the impact, if any, of a landmark opinion rendered by Judge Daniel Domenico of the Federal District Court for the District of Colorado in a case challenging recently enacted Colorado legislation on interstate loans made from outside Colorado to Colorado residents. We also address the effects this decision and the outcome of this litigation may have on interstate rate exportation by state-chartered banks across the country.

We open with a brief history of the interest rate exportation authority of national and state-chartered banks, and theories developed by opponents to attack those exportation powers. Next, we turn to a discussion of the Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDMCA), the federal legislation adopted to create competitive equality between state-chartered banks and national banks by giving state banks the ability to export the interest rates and late fees allowed by the laws of the state where the bank is located, notwithstanding interest rate and late fee limitations imposed by the borrower’s state. We then focus on the “opt-out rights” conferred on states under Section 525 of DIDMCA, and states that have attempted to exercise (or broaden) this right, including Colorado’s recent adoption of an opt-out statute.

We then delve into the details of the current court challenge to the Colorado opt-out statute, including a close examination of the statute itself, the state’s enforcement position, and the complaint filed by the plaintiff trade associations seeking to strike down the statute. We review the briefs filed and oral arguments made, including amicus briefs filed by the FDIC, supporting the state, and by the American Bankers Association and Consumer Bankers Association, supporting the plaintiffs (the latter of which was submitted on behalf of these amici by Ballard Spahr, LLP). We point out that the position taken by the FDIC in its amicus brief is the exact opposite of the position taken by the FDIC in 1991 in the Greenwood Trust Company v. Commonwealth of Massachusetts case in the 1st Circuit Court of Appeals regarding a Massachusetts opt-out statute. In that case, the FDIC agreed with Greenwood, a Delaware state-chartered bank, that the Massachusetts opt-out statute had no effect on the power of a state-chartered, FDIC-insured bank like Greenwood to charge Massachusetts credit card holders the “interest” permitted by Delaware law. The FDIC never acknowledged or explained this flip-flop in its amicus brief filed or during oral argument in the Colorado statute.

We proceed with an in-depth discussion of the thorough and thoughtful opinion issued by Judge Domenico granting the plaintiffs’ motion for a preliminary injunction preventing Colorado from enforcing its opt-out statute against their members not located in Colorado who are making loans to Colorado residents from outside Colorado, pending the outcome of the litigation, holding that the plaintiffs are substantially likely to succeed on the merits. This order is currently on appeal in the Tenth Circuit and is in the process of being briefed.

We then conclude with thoughts about the potential effect of the Colorado litigation on Iowa’s opt-out statute, in place since 1980, a survey of opt-out legislation pending in other states, and how the Colorado litigation might affect the future of opt-out laws in these and other states.

Alan Kaplinsky, former Practice Leader and Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates today’s episode, and is joined by Burt Rublin, Joseph Schuster, and Ron Vaske, Partners in the Group, and Kristen Larson, Of Counsel in the Group.

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On July 25, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, and the Office of the Comptroller of the Currency (collectively, the agencies) issued a “Joint Statement on Banks’ Arrangements with Third Parties to Deliver Bank Deposit Products and Services” to “note potential risks related to arrangements between banks and third parties to deliver bank deposit products and services to end users”. On the same day, the agencies issued a “Request for Information on Bank-Fintech Arrangements Involving Banking Products and Services Distributed to Consumers and Businesses” (the RFI)

The RFI “solicits input on the nature of bank-fintech arrangements, effective risk management practices regarding bank-fintech arrangements, and the implications of such arrangements, including whether enhancements to existing supervisory guidance may be helpful in addressing risks associated with these arrangements.” The comment period for this RFI has been extended through October 30, 2024.

In today’s podcast episode, hosted by Alan Kaplinsky, former practice leader and current Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, and featuring Ballard Spahr Partners John Culhane, Jr. and Ronald Vaske, we explore the significance of these agency actions, what they may portend for banks and their non-bank partners, and the agencies’ likely next steps and future areas of scrutiny. We also discuss tactics banks may want to consider in response to these actions and in preparation for potential future developments.

Topics addressed in this wide-ranging episode include the scope and coverage of the RFI; which banks and other entities are likely to provide information in response, and why; and the type of input that would be most valuable for banks to provide to the agencies. We review past agency pronouncements, enforcement, and other activity in connection with bank – service provider arrangements. We list and discuss in detail those risks to banks arising in connection with third-party relationships that cause regulators the greatest concerns.

We further provide some practical thoughts as to approaches banks may wish to consider now if they are contemplating a new fintech relationship, as well as ways to shore up practices and procedures in connection with existing third-party arrangements. We then conclude with some thoughts about how fintechs and other bank service providers should react to these agency initiatives

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On June 28, in Loper Bright v. Raimondo, et al., the Supreme Court overturned the Chevron deference doctrine, a long-standing tenet of administrative law established in 1984 in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. This doctrine directed courts to defer to a government agency’s interpretation of ambiguous statutory language as long as the interpretation was reasonable. However, legal scholars now express widely divergent views as to the scope and likely effects of Loper Bright’s overruling of the Chevron doctrine on the future course of regulatory agency interpretive and enforcement authority.

In this two-part episode, which repurposes a recent webinar, a panel of experts delves into the Loper Bright decision, and its underpinnings, rationale, and likely fallout. Our podcast features moderator Alan Kaplinsky, Senior Counsel and former practice leader of Ballard Spahr’s Consumer Financial Services Group; Ballard Spahr Partners Richard Andreano, Jr. and John Culhane, Jr.; and special guests Craig Green, Charles Klein Professor of Law and Government at Temple University Beasley School of Law, and Kent Barnett, recently appointed Dean of the Moritz College of Law at The Ohio State University.

Part II opens with an in-depth discussion of the major questions doctrine (which bars agencies from resolving questions of great economic and political significance without clear statutory authority), how it has evolved, and its interaction with Chevron deference. Our experts offer predictions as to the likely role of the major questions doctrine in post-Chevron jurisprudence, and touch on the non-delegation doctrine (which prevents Congress from delegating legislative power). We also refer to the effects of another recent Supreme Court decision, Corner Post, Inc. v Board of Governors of the Federal Reserve System, which expands the time during which entities new to an industry may challenge longstanding agency rules.

We then consider the practical effects of the Loper Bright and Corner Post decisions on pending and future litigation. Partners Richard Andreano and John Culhane discuss concrete examples of cases currently progressing through the courts that already are evidencing the effects of Loper Bright, and ways in which arguments now are being articulated or might be articulated in litigation challenging a number of regulatory rules and interpretations in the absence of Chevron deference.

We proceed to explore other significant topics including the validity of prior decisions of the Supreme Court and lower courts that were based exclusively on the Chevron doctrine. Our panel then opines on whether Loper Bright, both in its entirety and as to certain of its specific constituent elements, is “good” or “bad” for the consumer financial services industry and for regulated entities in general.

In conclusion, Mr. Andreano cites concerns about how courts may apply alternative deference guidance that remains in place (including Skidmore deference, discussed in Part I of this podcast), and Mr. Culhane expresses hope that the outcome in Loper Bright might move agencies to engage in more thorough, thoughtful, and precise analysis in the rulemaking process.

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On June 28, in Loper Bright v. Raimondo, et al., the Supreme Court overturned the Chevron deference doctrine, a long-standing tenet of administrative law established in 1984 in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. This doctrine directed courts to defer to a government agency’s interpretation of a statute if the statute was ambiguous regarding, or simply did not address, the issue before the court, as long as the interpretation was reasonable.

However, legal scholars now express widely divergent views as to the scope and likely effects of Loper Bright’s overruling of the Chevron doctrine on the future course of regulatory agency interpretive and enforcement authority.

In this two-part episode, which repurposes a recent webinar, a panel of experts delves into the Loper Bright decision, and its underpinnings, rationale, and likely fallout.

Our podcast features moderator Alan Kaplinsky, Senior Counsel and former practice leader of Ballard Spahr’s Consumer Financial Services Group; Ballard Spahr Partners Richard Andreano, Jr. and John Culhane, Jr.; and special guests Craig Green, Charles Klein Professor of Law and Government at Temple University Beasley School of Law, and Kent Barnett, recently appointed Dean of the Moritz College of Law at The Ohio State University.

In Part I, we first review the history of judicial deference to agency interpretations in American courts throughout the nineteenth and twentieth centuries, culminating in the advent of Chevron deference. We then discuss post-Chevron developments, including shifts in judicial and political views of the role courts should play in interpretation of agency action.

Then, we turn to an in-depth discussion of the majority opinion in Loper Bright, authored by Chief Justice Roberts, including its reliance on the Administrative Procedure Act to invalidate Chevron deference and the opinion’s numerous ambiguities that result in a “very, very fuzzy” outcome, leaving regulated industries facing uncertainty as to whether or not courts will uphold agency rules. We then explore other topics including the majority opinion’s endorsement of an approach courts should take to review agency actions as described in a 1940’s case, Skidmore v. Swift & Co.; what deference may or may not be given to agency policy-making and fact-finding in light of Loper Bright; and the divergent views of some legal scholars who suggest that many courts will continue to give broad deference to agency views notwithstanding Loper Bright.

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On May 30, the Supreme Court issued its opinion in Cantero v. Bank of America, reversing and remanding the case to the Second Circuit. Rather than articulating a bright line test for preemption, the Supreme Court instructed the circuit court to conduct a “nuanced analysis” to determine whether the National Bank Act preempts a New York state law that requires the payment of 2% interest on mortgage escrow accounts. Per the Supreme Court, the Second Circuit must apply the preemption standard described in the Dodd-Frank Act, which provides that a state consumer financial law is preempted “only if” it discriminates against national banks in comparison with state banks; is preempted by another Federal law; or “prevents or significantly interferes with the exercise by the national bank of its powers,” as determined “in accordance with the legal standard for preemption in the decision of the Supreme Court of the United States” in Barnett Bank, N.A. v. Nelson. See 12 U.S.C. § 25b(b)(1).

We open today’s podcast episode, which repurposes a recent webinar roundtable covering the Cantero decision, with a new preface by moderator Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group. This preface provides an update on an important post-Cantero development: a Ninth Circuit opinion issued on August 23 in another preemption case, Kivett v. Flagstar Bank. Alan explains why the Ninth Circuit’s new opinion in Kivett applies a standard that is totally inconsistent with the instructions provided by the Supreme Court in Cantero.

Today’s episode then proceeds with a discussion featuring Alan Kaplinsky, Ballard Spahr Partner Joseph Schuster, and four attorneys who each filed an amicus brief in Cantero. These experts share their reactions and explore potential next steps and possible outcomes as the Second Circuit and other courts proceed with efforts to comply with the Supreme Court’s Cantero mandate.

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The CFPB recently issued yet another final rule the agency says will help deter violations of consumer protection laws. This rule requires certain nonbank entities to register with the CFPB upon becoming subject to any order from local, state, or federal agencies or courts involving consumer protection law violations. The registry rule applies to any supervised or non-supervised nonbank that engages in offering or providing a consumer financial product or service and any of its service provider affiliates unless excluded. The CFPB will require the nonbank entities that are subject to the rule to register the specific terms and conditions on an annual basis. There will be public access to this database.

We also address the CFPB’s recent circular in which the agency stated that certain terms in consumer financial product or service contracts may constitute violations of consumer protection law. Notably, the circular states that the use of prefatory language that often appears in consumer contracts—such as “subject to applicable law” or “to the extent permitted by law”—will not immunize contract language from being deceptive.

We explain why practically every consumer contract in use today technically violates the CFPB circular. We also explain how we are helping several clients review and revise their consumer contracts to comply with the circular.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion, and is joined by John Culhane, Richard Andreano, Joseph Schuster, and Reid Herlihy, partners in the Group.

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A great number of fintechs are contemplating owning a bank or obtaining a banking charter—either a national bank charter, a state bank charter or a special purpose charter. In this episode, we are joined by our special guest Michele Alt, co-founder and partner of Klaros Group, an investment and advisory firm, and Scott Coleman, a partner in our Consumer Financial Services Group who leads our banking practice. Both Michele and Scott help banks and fintechs navigate the complicated regulatory issues that are critical to their growth and sustainability.

We discuss the reasons why fintechs might want to become banks, and why regulators are reluctant to grant them charters. Alt says that a bank charter provides a fintech with low-cost funding in the form of FDIC-insured deposits and it eliminates the applicability of myriad state licensing requirements. On the other hand, she says, there are onerous capital requirements and regulators often are reluctant to embrace innovation. We discuss how some regulators fear that fintechs are fueled by growth over profits and how it could lead to lax management practices. Regulators have reason to be concerned about those risks, and if you charter a bank, you are responsible for it.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the conversation.

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The CFPB and state regulators and legislators have medical debt in their crosshairs. In this episode, we’re joined by Chris Eastman, CEO of the Pendrick Group, a Cerberus portfolio company that specializes in financial services solutions for healthcare companies. We discuss the differences between medical debt and other types of debt, as well as how states have been regulating medical debt including the collection of medical debt. Mr. Eastman discusses his company’s efforts to provide cash flows into hospitals and other healthcare providers that are operating at razor-thin margins. We also discuss the CFPB’s assertion that medical debt is less predictive than other sources of debt in determining the creditworthiness of a consumer. Mr. Eastman discusses how medical debt may be a valuable indicator when assessing the financial stress of a consumer.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the conversation, and is joined by Joseph Schuster, a Partner in the group.

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Rewards programs drive consumer choice and activity in connection with credit cards and other financial services. The CFPB has reported the most important element by far that influences a consumer’s decision to apply for a specific credit card is the rewards program associated with the card. Further, rewards can affect the consumer's choice at the point of sale as to which card to use.

In this podcast episode, which repurposes a recent webinar, we explore recent trends in scrutiny of credit card rewards programs and other rewards programs by state and federal regulators and lawmakers. We also address laws and regulations, enforcement, emerging pitfalls, and best practices applicable to rewards programs.

We open with a review of how rewards have been treated in the CFPB's reports on the credit card market since 2013, and the significance of and learnings from these reports. We then focus on complaints and federal regulators’ enforcement activity relating to rewards programs. Next, we turn to state law developments affecting rewards programs, including laws that specifically apply to rewards programs as well as contract, interchange, and UDAP / UDAAP laws. We then delve into other topics including the current focus on airline – credit card rewards programs by the Department of Transportation and the CFPB; the CFPB’s May 2024 report about credit card rewards; and important elements card issuers should keep in mind in the context of co-brand credit card rewards programs. We then conclude with a discussion on best practices to consider in mitigating risks and maximizing the benefits of rewards programs.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates today’s episode, and is joined by Michael Guerrero and Joseph Schuster, Partners in the Group, and Kristen Larson, Of Counsel in the Group.

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Special guest Professor Alan Trammell of Washington and Lee University School of Law joins us today for a deep dive into universal injunctions and the related topics of associational standing and judicial forum shopping, and how these elements come into play in litigation challenging regulations and other government policies and actions.

Recent developments in litigation critical to the consumer financial services industry have brought universal injunctions into the spotlight. We begin today’s episode by providing a working definition of a universal injunction, some historical background, and examples that illustrate the benefits, effects and power of this sweeping remedy. We then turn to an in-depth discussion of objections raised by detractors; real-world concerns that may flow from universal injunctions, including a “one and done problem” cited by Professor Trammell; and various circumstances where Professor Trammell argues universal injunctions are and are not appropriate.

We also cover associational standing and its interaction with universal injunction: whether and when a trade association should have standing to bring an action seeking relief for its members, and how and when the outcome of the action might expand into a universal injunction that also would benefit non-members. Our next areas of focus are forum shopping and judge shopping, particularly in the context of such litigation brought by an association.

We then turn to speculation as to whether and how the U.S. Supreme Court may proceed to bring some uniformity to how the courts are dealing with these issues. Our episode concludes with comments on recent input on these topics from sources such as Congress and the Judicial Conference of the United States.

Alan Kaplinsky, former practice leader and current Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts this week’s episode.

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“Buy Now, Pay Later” (BNPL) products emerged relatively recently as a new approach enabling consumers to enjoy the ability to make a purchase and then pay for it over time. Today’s episode, during which we explore the evolution of BNPL products and important recent developments in BNPL regulation, is hosted by Alan Kaplinsky, former practice leader and current Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, and features Ballard Spahr Partners Michael Guerrero and Joseph Schuster.

We first discuss the structure and mechanics of BNPL products, and the benefits they afford to consumers, merchants, and creditors. Next, we turn to a discussion of regulators’ reactions to BNPL, specifically the activities of the CFPB leading up to its new interpretive rule, effective July 30th, which equates BNPL products with credit cards and characterizes BNPL providers as card issuers or creditors, thus subjecting them to the constraints and requirements of the Truth in Lending Act (TILA) and Regulation Z.

We then explore the CFPB’s BNPL interpretive rule in detail, including an analysis of the concerns raised by the CFPB in connection with BNPL offerings; the CFPB’s introduction of the “digital user account” concept and other theories to bring BNPL into the purview of TILA and Regulation Z; and the complexities and uncertainties now faced by BNPL providers as they struggle to comply.

We conclude with a look at the possibilities of a legal challenge to the CFPB’s BNPL interpretive rule, given recent Supreme Court decisions, and state law considerations for BNPL providers.

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The 1978 landmark opinion in Marquette National Bank v. First of Omaha Service Corp held that under the National Bank Act, a national bank has the right to export the interest rate authorized by the state where the bank is located to borrowers located elsewhere. Section 521 of the Depository Institutions Deregulation and Monetary Control Act of 1980 ("DIDMCA") conferred equivalent rate exportation powers on state-chartered, FDIC-insured banks.

These interest rate exportation powers (which also extend to certain fees), coupled with technological advances in recent years and the advent of “bank-model” and “banking as a service” (BaaS) programs, have created a robust, competitive smorgasbord of credit products for consumers.

However, rate exportation, and the programs it enables, increasingly are subject to challenges from a variety of sources.

In this two-part episode, which repurposes portions of a recent webinar, we describe the nature of these attacks, the defenses being deployed by the industry, and who is winning these contests so far, and address what the future may hold for rate exportation.

We start Part II with a discussion of states that have adopted, or are considering, “true lender” statutes that aim to recharacterize fintechs and other bank service providers as lenders, thus defeating the originating bank’s ability to export rates and fees. We then discuss “true lender” enforcement actions and efforts by state attorneys general, and “true lender” litigation developments including cases where arbitration clauses have been upheld, causing arbitration to be ordered in putative class actions. Next, we talk about attacks on the “valid when made” doctrine (which provides that a loan that was non-usurious when it was made doesn't become usurious after it is transferred to a third party), and “valid when made” regulations adopted by both the OCC and FDIC. We proceed with some tips on how prevailing industry plaintiffs who seek to overturn statutes inimical to rate exportation might recover attorney’s fees. We then conclude with a review of recent and pending Supreme Court cases whose outcomes have the potential to affect rate exportation powers and related regulations.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates episode, joined by John Culhane, Joseph Schuster, and Ronald Vaske, Partners in the Group, and Mindy Harris and Kristen Larson, Of Counsel in the Group.

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The 1978 landmark opinion in Marquette National Bank v. First of Omaha Service Corp held that under the National Bank Act, a national bank has the right to export the interest rate authorized by the state where the bank is located to borrowers located elsewhere. Section 521 of the Depository Institutions Deregulation and Monetary Control Act of 1980 ("DIDMCA") conferred equivalent rate exportation powers on state-chartered, FDIC-insured banks.

These interest rate exportation powers (which also extend to certain fees), coupled with technological advances in recent years and the advent of “bank-model” and “banking as a service” (BaaS) programs, have created a robust, competitive smorgasbord of credit products for consumers.

However, rate exportation, and the programs it enables, increasingly are subject to challenges from a variety of sources.

In this two-part episode, which repurposes portions of a recent webinar, we describe the nature of these attacks, the defenses being deployed by the industry, and who is winning these contests so far, and address what the future may hold for rate exportation.

In Part I, we first review a brief history of rate exportation, and explore the three primary theories used to attack rate exportation. We then focus on current and pending state laws and bills seeking to “opt out” of DIDMCA’s rate exportation authority. Next, we turn to the current court battle being waged in Colorado, where three trade groups recently won a preliminary injunction against enforcement of Colorado’s recently adopted opt-out legislation, and discuss the decision and its ramifications, including potential impacts on existing and pending opt-out legislation in other states, implications for nonmembers of the three trade group plaintiffs, and the prospects for enforcement in Colorado and other opt-out states by the FDIC based on the position (contrary to the preliminary injunction) advocated in its amicus brief.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates episode, joined by Ronald Vaske, a Partner in the Group, and Mindy Harris, Of Counsel in the Group.

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California frequently is in the vanguard of consumer financial issues and legislation, foreshadowing trends that may spread to other states. Today’s episode, during which we explore important hot topics and recent developments in California consumer finance law, is hosted by Ballard Spahr partner Melanie Vartabedian, and features Partners Michael Guerrero and Joel Tasca, and Of Counsel John Kimble.

We first discuss what the future likely holds for proposed rules issued under the California Consumer Financial Protection Law (CCFPL) by the California Department of Financial Protection and Innovation (DFPI). The proposed rules include complex registration and reporting requirements for certain consumer products, and are under revision after rejection by the California Office of Administrative Law for lack of clarity. We then explore the DFPI's most recent annual report on activity under the CCFPL, which recaps the DFPI's rulemaking, enforcement efforts, complaints received, and efforts in connection with education outreach and the Office of Financial Innovation. Highlights include a rule that applies consumer-type “unlawful, unfair, deceptive, or abusive acts and practices” (referred to in the report as “UUDAAP”) prohibitions to financial products and services provided to small businesses; ramped-up enforcement efforts; and high-dollar settlements as well as litigation in progress. Next, we turn to a comparison of California’s Rosenthal Fair Debt Collection Practices with the federal Fair Debt Collection Practices Act, and discuss their similarities, differences, and litigation trends under both laws. We then focus on the California Consumer Credit Reporting Agencies Act, which poses challenges for companies that report consumer data to consumer reporting agencies over and above the requirements of federal law. We conclude with a look at unique issues arising in California with respect to the FTC “holder rule”.

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Special guest Alex J. Pollock, Senior Fellow with the Mises Institute and former Principal Deputy Director of the Office of Financial Research in the U.S. Treasury Department, joins us to discuss his recent blog post published on The Federalist Society website in which he urges Congress to look into the question of whether the Federal Reserve can lawfully continue to fund the CFPB if (as now) the Fed has no earnings. We begin with a review of the Supreme Court’s recent decision in CFSA v. CFPB which held that the CFPB’s funding mechanism does not violate the Appropriations Clause of the U.S. Constitution. Alex follows with an explanation of the CFPB’s statutory funding mechanism as established by the Dodd-Frank Act, which provides that the CFPB is to be funded from the Federal Reserve System’s earnings. Then Alex discusses the Fed’s recent financial statements and their use of non-standard accounting, the source of the Fed’s losses, whether Congress when writing Dodd-Frank considered the impact of Fed losses on the CFPB’s funding, and how the Fed can return to profitability. We conclude the episode by responding to arguments made by observers as to why the Fed’s current losses do not prevent its continued funding of the CFPB, potential remedies if the CFPB has been unlawfully funded by the Fed, and the bill introduced in Congress to clarify the statutory language regarding the CFPB’s funding.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

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On May 16, 2024, the U.S. Supreme Court ruled that the CFPB’s funding mechanism does not violate the Appropriations Clause of the U.S. Constitution. This two-part episode repurposes a recent webinar. In Part II, we first discuss the CFPB’s launch of Fair Credit Reporting Act rulemaking, proposed rule to supervise larger payment providers, proposed rule on personal financial data rights, and interpretive rule on buy-now-pay-later. We next discuss the operation of the Congressional Review Act and its potential impact on final CFPB rules if the November 2024 election results in a change in Administrations. We then discuss the impact of the SCOTUS decision on pending CFPB enforcement actions, the expected proliferation of new CFPB investigations and enforcement actions, and the CFPB’s announced hiring binge. We conclude by sharing our thoughts on what companies can do to prepare for an uptick in CFPB activity and how the CFPB’s increased staffing is likely to impact which companies will be targeted.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates the discussion joined by John Culhane and Joseph Schuster, Partners in the Group, and Kristen Larson, Of Counsel in the Group.

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On May 16, 2024, the U.S. Supreme Court ruled that the CFPB’s funding mechanism does not violate the Appropriations Clause of the U.S. Constitution. This two-part episode repurposes a recent webinar. In Part I, we first discuss the SCOTUS decision, the status of the CFPB’s payday lending rule that was at issue in the underlying case, and a potential new challenge to the CFPB’s funding that has been the focus of recent attention. We then discuss four cases still pending before SCOTUS in which the decisions could impact the CFPB. Next, we discuss the pending lawsuits challenging the CFPB’s final rules on credit card late fees and small business data collection and the changes to the CFPB’s UDAAP exam manual defining “unfairness” to include discrimination, including the background of those cases, their current status, and the non-constitutional legal challenges made by the plaintiffs in those cases. We conclude with a discussion of final and proposed CFPB rules expected to be issued soon and potential non-constitutional legal challenges to those rules.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates the discussion joined by John Culhane, Richard Andreano, and Joseph Schuster, Partners in the Group, and Kristen Larson, Of Counsel in the Group.

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Special guest Professor Hal Scott of Harvard Law School joins us today as we delve into the thought-provoking question of whether the Supreme Court’s recent decision in the landmark case of CFSA v. CFPB really hands the CFPB a winning outcome, or does the Court’s validation of the agency’s statutory funding structure simply open up another question: whether the CFPB is legally permitted to receive funds from the Federal Reserve if (as now) the Fed has no earnings. In other words, was the outcome in CFSA v. CFPB an illusory Pyrrhic victory for the CFPB? And, what happens next?

Our episode begins with a brief discussion of the underlying case. Professor Scott follows with an explanation of the CFPB’s statutory funding mechanism as established by the Dodd-Frank Act, which provides that the CFPB is to receive its funding out of the Federal Reserve System’s “earnings”, and the Supreme Court’s decision upholding that structure.

Then, we turn to an in-depth discussion of the op-ed Professor Scott published in the Wall Street Journal entitled “The CFPB's Pyrrhic Victory in the Supreme Court”, in which Professor Scott explains that even though the CFPB's funding mechanism as written was upheld in CFSA v. CFPB, this will not help the agency now or at any time in the future when the Federal Reserve operates at a deficit – in fact, has no earnings it can legally send to the CFPB. Professor Scott describes how his focus on the Federal Reserve led him to scrutinize and then question the approach taken in the majority opinion; and then turns to an explanation of how a constitutional issue under the Appropriations Clause in fact may persist because in the absence of Fed earnings, funds paid to the CFPB arguably have not been drawn from the Treasury. We then go over possible arguments challenging the CFPB’s issuance and enforcement of regulations, and what might ensue when the federal district court takes up CFSA v. CFPB for further proceedings.

Alan Kaplinsky, former practice leader and current Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts this week’s episode.

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Our special guest this week is John Tonetti. After decades as an industry risk executive, Mr. Tonetti joined the Consumer Financial Protection Bureau (CFPB), where he worked for many years in roles including Debt Collection Program Manager, senior policy analyst, and internal consultant on numerous issues including debt collection and risk management policies and examinations. In this episode, Mr. Tonetti shares his perspectives from the point of view of an agency insider who served under every CFPB director and acting director in office to date.

We first discuss the pitfalls of the CFPB’s leadership structure, which gives a single individual broad regulatory power over “the largest financial system that has ever existed”, and Mr. Tonetti’s observations on the contrasting leadership and rulemaking approaches taken by the various CFPB directors and acting directors. We then turn to consideration of regulations and guidance recently proposed and adopted by the CFPB, including flaws in the agency’s approach to obtaining and utilizing data on which its mandates are based. We ask and respond to the question of whether the CFPB, on more than one occasion, has exceeded its authority, and how the courts have reacted and likely will react.

Alan Kaplinsky, former practice leader and current Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts this week’s episode.

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Our special guests are Professor Dru Stevenson, South Texas College of Law in Houston, and Brian Knight, Senior Research Fellow, Mercatus Center at George Mason University. In this episode, we first discuss the history of “Operation Chokepoint,” the Obama-era initiative in which the FDIC and other federal banking agencies targeted banks serving payday lenders and companies engaged in other “disfavored” industries. We then devote the remainder of the episode to a discussion of what is the appropriate role of bank regulators with regard to banks’ customer relationships, with our guests presenting opposing views on how regulators should use their authority to address reputational and other risks to banks arising from customer relationships.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the conversation.

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Our special guest is Professor Richard Frankel of Drexel University Thomas R. Kline School of Law and the author of a recent article on mass arbitration. In this episode, we first discuss what mass arbitration is, how it relates to class action lawsuits, and the role of public enforcement. We then discuss the industry and consumer positions on the use of mass arbitration and the empirical study conducted by Prof. Frankel for his article. We conclude with a discussion of steps that companies using arbitration provisions in their consumer agreements can take to respond to the use of mass arbitration, the application of the Federal Arbitration Act to arbitration agreements containing provisions that address mass arbitration, and the role of state regulation.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the conversation, joined by Mark Levin, Senior Counsel in the Group.

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Our special guest is Brian Johnson, Managing Director of Patomak Global Partners and former CFPB Deputy Director. In Nov. 2023, the CFPB issued a proposed rule to supervise nonbank companies that qualify as larger participants in a market for “general-use digital consumer payment applications.” We first discuss the CFPB’s authority to supervise nonbank entities considered to be “a larger participant of a market for other consumer financial products or services” and its previous use of that authority. We look next at how the CFPB has defined the relevant market in its current proposal and its rationale for the proposal. We then discuss the deficiencies in the CFPB’s cost benefit analysis of the proposal and how the proposal reflects changes to the CFPB’s approach to rulemaking under Director Chopra. We conclude with a discussion of possible litigation challenges to a final rule and issues companies likely to be covered by a final rule should be considering.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the conversation.

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On February 27, 2024, the U.S. Supreme Court heard oral argument in Cantero v. Bank of America, N.A., a case involving the effect of the Dodd-Frank Act on the scope of preemption under the National Bank Act (NBA). The specific question before the Court is whether, post-Dodd-Frank, the NBA preempts a New York statute requiring banks to pay interest on mortgage escrow accounts. The decision, however, could have ramifications well beyond the specific New York law at issue. This episode repurposes a recent webinar roundtable and brings together as our guests four attorneys who filed amicus briefs with the Supreme Court: Jonathan Y. Ellis, William M. Jay, and Matthew A. Schwartz, partners in private law firms, and Professor Arthur E. Wilmarth, Jr. After we review the procedural history of Cantero, our guests discuss the arguments made in favor of and against preemption in their amicus briefs and share their reactions to the oral argument and predictions for how the Court will rule.

Alan Kaplinsky, Senior Counsel and former Practice Group Leader in the firm’s Consumer Financial Services Group, moderates the discussion.

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Our special guest is Andrew Nigrinis of Legal Economics LLC and former CFPB enforcement economist. The CFPB’s final credit card late fee rule lowers the safe harbor late fee amount that card issuers other than “smaller card issuers” can charge to $8. We first discuss how the final rule differs from the proposed rule and the existing rule, who are “smaller issuers” not subject to the lower safe harbor amount, and the changes made by the final rule for larger issuers. We then look at issuers’ ability to determine late fees based on their costs, permissible fees other than late fees, the CFPB’s economic analysis underlying the final rule, and the final rule’s likely impact on issuers and cardholders. We conclude with a discussion of the Texas lawsuit challenging the final rule and the key arguments for invalidating the rule.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion, joined by John Culhane and Ronald Vaske, Partners in the Group, and Kristen Larson, Of Counsel in the Group.

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Our special guest is Ian Moloney, Senior Vice President and Head of Policy and Regulatory Affairs with the American Fintech Council (AFC). After reviewing how EWA products are used by consumers and the differences between employer- and provider-based products, we discuss the regulatory challenges faced by the EWA industry, the regulatory approaches states have taken to EWA, actions taken by the Consumer Financial Protection Bureau related to EWA, and proposed federal legislation dealing with EWA. We conclude with a discussion of AFC’s letter to the Bureau urging the Bureau to develop a regulatory approach to EWA.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion, joined by Michael Guerrero, a Partner in the Group and Co-Leader of the firm’s Fintech and Payments Solutions Team.

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Our special guest is David Pommerehn, SVP, General Counsel, Head of Regulatory Affairs at the Consumer Bankers Association. In January 2024, the CFPB proposed two new rules: one restricting overdraft fees and the other prohibiting NSF fees on certain declined transactions. The proposals are among the CFPB’s latest moves in furtherance of the Biden Administration’s “junk fees” agenda. In this episode, which repurposes a recent webinar, we discuss the key provisions of each proposal and entities covered, the CFPB’s justification for each proposal, the legal authority relied on by the CFPB for each proposal, business practices impacted by the proposals, and potential legal challenges.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates the discussion, joined by John Culhane, a Partner in the Group, and Kristen Larson, Of Counsel in the Group.

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Our special guest is Malini Mithal, Associate Director of the FTC’s Division of Financial Practices. In this episode, which repurposes a recent webinar, we review highlights of FTC regulatory and enforcement activity in 2023 directed at protecting consumers and small businesses and discuss what to expect from the FTC in 2024 and beyond. After reviewing the FTC’s authority, we discuss important consent orders and enforcement litigation involving: alternate financing mechanisms such as cash advance apps and income share agreements; discriminatory financing and other practices, including the FTC’s use of unfairness; small business financing such as merchant cash advances; telemarketing practices; crypocurrency; and use of dark patterns. Throughout this discussion, Ms. Mithal offers compliance tips and takeaways from the consent orders and enforcement litigation. We also look at the FTC’s final CARS rule, proposed junk fees rule, and artificial intelligence-related initiatives.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion, joined by John Culhane, a partner in the Group.

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Our special guest is Jeff Sovern, Professor at the University of Maryland Francis King Carey School of Law. In March 2022, the CFPB announced that it had revised its exam manual to instruct its examiners to apply the “unfairness” standard under the Consumer Financial Protection Act to conduct considered to be discriminatory, whether or not it is covered by federal laws that expressly prohibit discrimination. The changes were subsequently vacated by a federal district court in a lawsuit brought by several trade groups challenging the changes and the Fifth Circuit has stayed the CFPB’s appeal from that decision pending the U.S. Supreme Court’s decision in CFSA v. CFPB. In this episode, we first review the background of the exam manual changes, the industry response, and the district court’s decision. We then take a close look at the key arguments both in support of and against upholding the decision. We conclude with a discussion of the use of disparate impact in applying the unfairness standard to discriminatory conduct and the appropriateness of the CFPB’s use of changes to its exam manual to announce its new interpretation of the standard.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion, joined by Richard Andreano, a Partner in the Group and Practice Leader of the firm’s Mortgage Banking Group.

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New Federal Communications Commission TCPA rules will mean big changes for businesses, particularly comparison shopping websites, lead generators, and other companies that regularly contact consumers via phone or text message. This episode repurposes a recent webinar. After reviewing TCPA consent requirements for calls and texts and exceptions, we look at the impact of the U.S. Supreme Court’s 2021 Facebook decision on TCPA compliance. We then look at post-Facebook TCPA litigation, post-Facebook state law litigation involving unwanted calls and texts, and recent state legislative developments. We follow with a discussion of the FCC’s new TCPA rules addressing (1) how consumers may revoke consent to receive calls or texts and the obligations of callers and texters to honor revocation of consent requests, and (2) the application of TCPA consent requirements to lead generators. We conclude with a discussion of compliance and litigation considerations arising from the new TCPA rules.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates the discussion, joined by Michael Guerrero, Daniel McKenna, Jenny Perkins, and Joel Tasca, Partners in the Group.

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On January 17, 2024, the U.S. Supreme Court heard oral argument in two cases in which the question presented is whether the Court should overrule its 1984 decision in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. That decision produced what became known as the "Chevron judicial deference framework" - the two-step analysis that courts typically invoke when reviewing a federal agency’s interpretation of a statute. This two-part episode repurposes our webinar held in February 2024 and brings together as our guests three renowned administrative law professors, Kent Barnett, Jack Beermann, and Craig Green, and a leading Supreme Court practitioner, Carter Phillips, all of whom are experts on Chevron. In Part II, our guests share their reactions to the oral arguments, including their views on what the Justices’ questions and comments reveal about the Justices’ thinking, their predictions for how the Court will rule, and potential implications of the Court’s ruling on existing and future regulations.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion.

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On January 17, 2024, the U.S. Supreme Court heard oral argument in two cases in which the question presented is whether the Court should overrule its 1984 decision in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. That decision produced what became known as the "Chevron judicial deference framework" - the two-step analysis that courts typically invoke when reviewing a federal agency’s interpretation of a statute. This two-part episode repurposes our webinar held in February 2024 and brings together as our guests three renowned administrative law professors, Kent Barnett, Jack Beermann, and Craig Green, and a leading Supreme Court practitioner, Carter Phillips, all of whom are experts on Chevron. In Part I, we first review the Chevron decision and judicial deference framework and the background of the two cases now before the Supreme Court. We then look at the history of judicial review of agency action culminating with the current challenge to Chevron deference, including the origins of judicial deference to agency action, the political shift away from judicial deference, and key post-Chevron decisions. We conclude with a discussion of the principal arguments made to the Supreme Court for upholding Chevron and for overruling Chevron.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion.

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Our special guest is Brad Blower, Principal and Founder of Inclusive-Partners LLC, and author of a recent blog post titled “The CFPB Has An Opportunity to Greatly Advance the Ethical and Non-Discriminatory Use of AI in Financial Services and Should Take It.” We first discuss the lack of clear guidance from the CFPB on the non-discriminatory use of AI and the possible reasons for the CFPB’s apparent reticence to provide more specific guidance. We then identify the specific areas where additional guidance from the CFPB could be helpful and specific steps the CFPB could take to address the lack of clarity. We conclude with a discussion of where industry, in the absence of clear guidance from the CFPB, is heading in its efforts to achieve fairness when using AI without compromising the accuracy of underwriting models and what the CFPB will likely be doing over the next year to address fairness concerns.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

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Our special guest is Richard (“Rick”) Hackett, former Assistant CFPB Director responsible for auto finance regulation and presently a member of the Board of F&I Sentinel, which supports lender compliance in the auto finance and insurance industry. In December 2023, the FTC announced its final Combatting Auto Retail Scams Rule, otherwise known as the “CARS Rule,” which sets new requirements on the sale, financing, and leasing of new and used vehicles by motor vehicle dealers. This two-part podcast episode repurposes a recent webinar. In Part II, we begin with a discussion of how the Rule impacts the sale of add-on products. We then discuss the Rule’s impact beyond motor vehicle dealers covered by the Rule and the Rule’s intersection with other laws and regulations, including state law and the FTC’s Used Car Rule and Proposed Rule on Unfair or Deceptive Fees. We conclude with a discussion of best practices for auto sales finance companies to help navigate the Rule’s new requirements.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates the discussion, joined by John Culhane and Michael Guerrero, Partners in the Group, and Brian Turetsky, Of Counsel in the Group.

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Our special guest is Richard (“Rick”) Hackett, former Assistant CFPB Director responsible for auto finance regulation and presently a member of the Board of F&I Sentinel, which supports lender compliance in the auto finance and insurance industry. In December 2023, the FTC announced its Combatting Auto Retail Scams Rule, otherwise known as the “CARS Rule,” which sets new requirements on the sale, financing, and leasing of new and used vehicles by motor vehicle dealers. This two-part podcast episode repurposes a recent webinar. In Part I, we begin with a discussion of the legal challenge filed by the National Automobile Dealers Association seeking judicial review of the CARS Rule, the FTC’s postponement of the Rule’s effective date, and potential legislative challenges to the Rule. We then discuss the Rule’s scope and key definitions, the misrepresentations that are expressly prohibited under the Rule, and the Rule’s new disclosure requirements on dealer advertising and sales communications.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates the discussion, joined by John Culhane and Michael Guerrero, Partners in the Group, and Brian Turetsky, Of Counsel in the Group.

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In October 2023, the CFPB issued a groundbreaking proposal on personal financial data. This episode, which repurposes a webinar, begins with a review of the background of the rulemaking. We then discuss key provisions of the proposal, including the entities, data, and financial products and services that would be covered, the obligations that would be imposed on covered entities, and exceptions to the proposal’s requirements. We also look at the compliance timeline, practical takeaways, and the proposal’s operational impact on covered entities. We conclude with a discussion of the CFPB’s advisory opinion dealing with consumer requests for information.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates the discussion joined by Ronald Vaske, a partner in the Group, Kristen Larson, Of Counsel in the Group, and Gregory Szewczyk, a Ballard Spahr partner and Practice Leader of the firm’s Privacy and Data Security Group.

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Our special guest is Zarik Khan, Founder of Finsolute Advisors. In October 2023, the Federal Reserve Board issued a proposal to lower the maximum interchange fee that a large debit card issuer can receive for a debit card transaction. We first look at the roles of the various parties involved in a typical transaction in which a consumer uses a debit card to make a purchase from a merchant and the various fees imposed in connection with the transaction. We then discuss how the current debit interchange fee cap contained in the Fed’s final rule implementing the Durbin Amendment (Regulation II) that went into effect in October 2011 has impacted each of the parties involved in a typical debit card transaction, the Fed’s rationale for its new proposal and related study, and the proposal’s implications for each of the parties. We conclude with a discussion of the proposal’s prospects and the potential impact of a U.S. Supreme Court decision overruling Chevron on the proposal if implemented.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

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This special podcast episode, hosted by Senior Counsel and former Consumer Financial Services Practice Leader Alan Kaplinsky, sets the stage for the upcoming oral argument in the two U.S. Supreme Court cases where the fate of Chevron deference hangs in the balance. This episode provides an essential roadmap for anyone who will listen to the oral argument or is following this critical challenge to this important doctrine.

Our special guest is Kent Barnett, Associate Dean of Academic Affairs and J. Alton Hosch Professor at the University of Georgia School of Law.

On January 17th, the U.S. Supreme Court will hear oral argument in two cases, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. U.S. Department of Commerce, presenting the question of whether the Court should overrule, or at least clarify, its 1984 decision in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. As discussed in our earlier blog, that decision established what became known as “Chevron deference”, which requires judges to accept an agency’s interpretation of federal law if indicated by the outcome of a two-step analysis defined in the Chevron decision.

In this special podcast, we first discuss the importance of Chevron deference, specifically with respect to the consumer financial services industry. We follow with an explanation of the background of the two cases to be argued, and a detailed explanation of the question now before the Court. Professor Barnett provides fascinating historical insights about the Chevron doctrine, and the political influences that first elevated it and then, more recently, have called it into question. We then explore why the Court now has agreed to reconsider Chevron, and the impact of the Chevron doctrine on the courtroom success of federal agencies.

Finally, we venture predictions as to the likely outcome of the Loper Bright and Raimondo cases, including possible clarifications that would give courts further guidance on how to apply the Chevron framework, and the potentially seismic effects that might ensue if the Court should decide to overrule Chevron completely.

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We discuss various issues faced by lenders and servicers when attempting to foreclose on “zombie” mortgages, meaning second mortgages on which the borrower has not made a payment for a considerable length of time and the lender or servicer has not previously taken action to foreclose. First, we look at the CFPB’s May 2023 advisory guidance on the enforcement of time-barred mortgage loans. We then discuss defenses to foreclosure raised by borrowers, specifically that the loan was charged-off, discharged in a bankruptcy, or time-barred, and look at decisions in the states of Washington, Colorado, and Utah in which courts have addressed these defenses. We conclude with a discussion of steps that lenders and servicers should consider taking before attempting to foreclose on a “zombie” mortgage.

Melanie Vartabedian and Matthew Morr, partners in Ballard Spahr’s Consumer Financial Services Group, discuss the issues.

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Our special guest is Andrea Boyack, Professor, University of Missouri School of Law. We first discuss the principles that underlie our current system of consumer contracts and the system’s role in promoting transactional efficiency and other objectives. Prof. Boyack then provides her views on why the application of traditional contract law to the modern consumer contract context is not in the best interests of consumers and offers a different approach to consumer contracts in which a consumers can shape the terms of their contracts. In particular, she explains how this approach would treat a consumer’s choice to do business with a company as legally distinct from assent to particular terms in the company’s contracts. Prof. Boyack also shares her views on the recent Restatement of the Law of Consumer Contracts. We conclude with a discussion of the controversy that surrounds arbitration provisions, how Prof. Boyack’s new approach to consumer contracts would impact the use of such provisions, and what legal changes would be necessary to implement her approach.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

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On October 24, 2023, the OCC, FDIC and Board of Governors of the Federal Reserve System jointly adopted final amendments to their regulations implementing the Community Reinvestment Act of 1977 (CRA). In this episode, which repurposes a webinar, we are joined by guest speaker Kenneth H. Thomas, Ph.D., Founder/CEO of Community Development Fund Advisors. After reviewing the background of the adoption of the CRA and implementing rules by the banking agencies, we discuss the key elements of the final rule. We look at the requirement for banks to delineate assessment areas in which their CRA performance will be evaluated, the tests under which banks’ CRA performance will be evaluated, the strategic plan option, and data collection and reporting requirements. In discussing the final rule’s requirements, we also consider how they apply to banks of different sizes. Throughout our discussion, Dr. Thomas provides his commentary on the final rule’s impact on the goals of CRA and CRA evaluations.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion, joined by Scott Coleman, a partner in the Group, and Sarah Dannecker, an associate in the Group.

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Providers of consumer financial services that rely on federal preemption to charge customers uniform interest rates and fees on a nationwide basis are currently facing a series of legislative and litigation challenges. In this episode, which repurposes a recent webinar, we first discuss the U.S. Supreme Court’s grant of certiorari in Cantero v. Bank of America on the question whether the National Bank Act preempts state laws requiring the payment of interest on mortgage escrow accounts and look at the competing arguments and preemption standards under consideration. We then look at the Dodd-Frank Act’s provisions on federal preemption for national banks and federal savings associations, OCC regulations addressing the scope of federal preemption, and federal statutes providing interest rate exportation authority for national and state-chartered banks and other institutions. We then turn to current legal challenges to rate exportation authority, focusing on state laws opting out of federal law allowing interest rate exportation by state banks, state laws defining “true lender” to target nonbank/bank partnerships seeking to take advantage of federal interest rate exportation authority, and the California trial court’s recent ruling in a very important “true lender” lawsuit. We conclude with a discussion of the potential implications of a U.S. Supreme Court override of the Chevron deference framework for OCC and FDIC regulations interpreting federal statutes on interest rate authority of national and state banks.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion, joined by John Culhane, Reid Herlihy, and Ronald Vaske, partners in the Group, and Mindy Harris, Of Counsel in the Group.

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This two-part podcast repurposes our most recent webinar on the latest salvo of actions in the Biden Administration’s initiative directed at combatting so-called “junk fees.” Launched in January 2022, the initiative shows no signs of abating.

In Part II, we first look at the Consumer Financial Protection Bureau’s advisory opinion on fees charged by large banks and credit unions to respond to information requests, including the Bureau’s discussion of non-fee obstacles such as chatbots that could unlawfully impede consumers’ ability to make an information request. We then discuss the CFPB’s second edition of Supervisory Highlights focused on “junk fees,” taking a close look at the CFPB’s findings regarding deposit account fees, auto servicing fees, and remittance transfer fees and its discussion of the CFPB’s circular on reopening closed deposit accounts, a remedial action against an auto servicer, and risks in connection with payment processing platforms for student meal accounts. We also discuss CFPB “junk fees” enforcement actions involving NSF fees, fees for add-on products charged by an installment loan lender, and refinancing costs imposed by a high-cost installment lender, as well as state law activity in California and elsewhere related to “junk fees.” We conclude with a discussion of potential future CFPB rulemaking and other actions involving “junk fees,” steps providers should consider to reduce “junk fees” compliance risk, and the preemptive effect on state law of an FTC “junk fees” rule.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates the discussion, joined by John Culhane and Reid Herlihy, Partners in the Group, Michael Gordon and Kristen Larson, Of Counsel in the Group, and Roger Winston, a Partner in the firm and Leader of its Mixed-Use, Condominium, and Multifamily Development Team.

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This two-part podcast repurposes our most recent webinar on the latest salvo of actions in the Biden Administration’s initiative directed at combatting so-called “junk fees.” Launched in January 2022, the initiative shows no signs of abating. In Part I, we first review the background of the initiative, the range of fees the Administration has labeled “junk fees,” and discuss the Administration’s focus on competition and its related guidance and directives to federal agencies. We then take a close look at the Federal Trade Commission’s proposed rule to regulate “junk fees,” including the rationale for the FTC’s decision to engage in rulemaking, the price and fee disclosures that would be required by the proposal, and how an FTC “junk fees” rule could be used in support of Consumer Financial Protection Bureau actions targeting “junk fees.” We conclude with a discussion of the impact of the Administration’s initiative and FTC proposal on “junk fees” related to rental housing.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates the discussion, joined by John Culhane and Reid Herlihy, Partners in the Group, Michael Gordon and Kristen Larson, Of Counsel in the Group, and Roger Winston, a Partner in the firm and Leader of its Mixed-Use, Condominium, and Multifamily Development Team.

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In October 2023, the FTC issued a proposed “Rule on Unfair or Deceptive Fees” targeting so-called “junk fees.” Our special guest is Stacy Cammarano, Staff Attorney in the FTC’s Bureau of Consumer Protection, Division of Advertising Practices, and a lead attorney on the proposal. After reviewing how the FTC has previously used its enforcement authority to address “junk fees,” we discuss some of the key issues identified in comments received by the FTC on its October 2022 Advance Notice of Proposed Rulemaking on “junk fees.” We then look at the price and fee disclosures that would be required by the proposal, the businesses that would be covered, and examples of charges for mandatory ancillary goods or services by various industries that would have to be included in disclosed pricing. We also look at the relationship of the FTC’s proposal to “junk fees” initiatives of other federal agencies, such as the CFPB, and to state initiatives, and consider the impact of the U.S. Supreme Court’s AMG decision on the FTC’s use of rulemaking. We conclude with a discussion of likely next steps in the rulemaking process and what businesses can be doing now to reduce compliance risk.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion.

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Switching from his usual role as frequent host of the Consumer Finance Monitor Podcast, Alan Kaplinsky, Senior Counsel in and former Practice Group Leader of Ballard Spahr’s Consumer Financial Services Group, was recently the special guest of Bloomberg Intelligence analysts Elliott Stein and Nathan Dean on their podcast, Votes and Verdicts. The episode begins with a discussion of (1) the CFPB’s impact on consumer financial services providers, (2) how, since the CFPB’s creation in 2010, its three Directors have used the CFPB’s supervisory, enforcement, and regulatory authorities, and (3) the differences in the three Directors’ approaches. This is followed by a discussion of the case pending before the U.S. Supreme Court involving a challenge to the constitutionality of the CFPB’s funding mechanism in which Alan shares his reactions to the oral argument in the Supreme Court and discusses potential remedies if the Court rules that the CFPB’s funding is unconstitutional. The episode concludes with a discussion of how the case has impacted ongoing CFPB activity, the potential impact of a Supreme Court ruling in favor of the CFPB on future CFPB activity, and potential future challenges the CFPB may face from industry.

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Our special guest is David Sherwyn, Professor of Law at Cornell University's School of Hotel Administration. In Sept. 2023, a group of consumer advocate organizations filed a Petition for Rulemaking with the CFPB that would prohibit the use of pre-dispute arbitration clauses in consumer contracts in favor of arbitration clauses that would permit consumers to choose between arbitration and litigation only after a dispute has arisen. In response, the CFPB indicated it is carefully considering the petition, and will be opening a public docket and taking comment from the public on the petition.

We first discuss the results of Prof. Sherwyn’s study which concluded, in the context of employment disputes, that while superficially appealing, post-dispute arbitration fails in reality and hurts both businesses and individuals, and explain why these study results are applicable in the context of consumer finance. We then offer compelling reasons why the CFPB should not engage in such a rulemaking, including why the petition is a clear attempt to make an end-run around the CFPB’s prior arbitration rulemaking that would have prohibited class action waivers in consumer arbitration agreements and was overridden by Congress and why the petition is premature. We conclude by responding to arguments made by opponents of pre-dispute arbitration agreements that consumers are uninformed about arbitration and are “forced” to enter into such agreements.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion, joined by Mark Levin, Senior Counsel in the Group.

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The CFPB recently issued a policy statement in which it provided a framework for determining what constitutes abusive conduct under the CFPA. After reviewing the definition of abusive in the CFPA and the historical background of the adoption of an abusive standard in the CFPA, we examine how the policy statement addresses each element of the abusive standard and share our observations as to the policy statement’s implications. We then look at past CFPB enforcement actions and supervisory findings in which conduct was alleged to be abusive. We also look at the overlap between abusive conduct and unfair or deceptive conduct and the relationship between “dark patterns” and abusive conduct and identify conduct that the CFPB might consider to be abusive. We conclude with a discussion of best practices for companies to consider to avoid engaging in conduct that the CFPB might find to be abusive.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the discussion joined by Michael Guerrero, a partner in the Group, Michael Gordon, Of Counsel in the Group, and Brian Turetsky, Of Counsel in the Group.

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On October 3, 2023, the U.S. Supreme Court held oral argument in CFSA v. CFPB, a case with profound potential implications for the future of the CFPB. The Court will rule on whether the CFPB’s funding mechanism violates the U.S. Constitution’s Appropriations Clause and, if so, what the appropriate remedy should be. Our special guests are six renowned attorneys who filed amicus briefs in the case: Michael Williams, Principal Deputy Solicitor General, Office of the West Virginia Attorney General; Adam Levitin, Professor, Georgetown University of Law Center; Scott Nelson, Public Citizen Litigation Group; Jeffrey Naimon, Orrick, Herrington & Sutcliffe LLP; Joshua Katz, Research Fellow, Cato Institute; and John Masslon, Counsel, Washington Legal Foundation.

This two-part episode repurposes our widely-attended and highly interactive webinar held on October 17. In Part II, each of our guests offers his predictions for how the Court is likely to rule in CFSA v. CFPB. We then discuss each party’s position regarding what remedy the Court should impose if it rules that that the CFPB’s funding mechanism is unconstitutional, including whether the relevant provisions of the Dodd-Frank Act are severable and how a ruling against the CFPB should impact existing CFPB regulations. We conclude with a discussion of the kinds of non-constitutional legal challenges the CFPB is currently facing or is likely to face in the future, including the potential impact of a Supreme Court decision overruling its 1984 Chevron decision dealing with judicial deference to federal agency rules.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates the discussion.

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On October 3, 2023, the U.S. Supreme Court held oral argument in CFSA v. CFPB, a case with profound potential implications for the future of the CFPB. The Court will rule on whether the CFPB’s funding mechanism violates the U.S. Constitution’s Appropriations Clause and, if so, what the appropriate remedy should be. Our special guests are six renowned attorneys who filed amicus briefs in the case: Michael Williams, Principal Deputy Solicitor General, Office of the West Virginia Attorney General; Adam Levitin, Professor, Georgetown University of Law Center; Scott Nelson, Public Citizen Litigation Group; Jeffrey Naimon, Orrick, Herrington & Sutcliffe LLP; Joshua Katz, Research Fellow, Cato Institute; and John Masslon, Counsel, Washington Legal Foundation.

This two-part episode repurposes our widely-attended and highly interactive webinar held on October 17. In Part I, we first discuss some of the key questions asked by each of the Justices that could be indicative of how he or she may vote on the case and summarize the positions of each of the parties. We then discuss the major arguments made by each of the parties in support of their positions and examine the strength of those arguments.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates the discussion.

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Our special guest is Zarik Khan, Founder and Managing Director of Finsolute Advisors. Congress is now considering whether to enact the CCCA, a bill that would require credit card issuers with assets over $100 billion to include at least two possible network processors on each card. We first look at the roles of the various parties involved in a typical transaction in which a consumer makes a purchase from a merchant using a credit card. We then discuss how the CCCA requirement for at least two networks would operate, its potential implications for smaller banks and credit unions, and its implications for each of the parties involved in a typical credit card transaction. After discussing the bill’s political prospects, we assess the principal arguments made in support of or opposition to the bill, including the arguments made by the bill’s opponents that the CCCA will reduce access to consumer benefits such as rewards programs and zero fraud liability protection.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

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Our special guest is Mark Budnitz, Professor Emeritus, Georgia State University College of Law. In an article recently published in the Georgetown Journal on Poverty Law and Policy, Prof. Budnitz explores the impact on low-income consumers of the increasing use of digital technology for consumer payments. Prof. Budnitz first explains why, in his view, the current laws governing digital financial services, particularly the Electronic Funds Transfer Act and Reg. E, do not adequately protect low-income consumers. We then discuss the benefits of various methods he believes could provide protection for low-income consumers using payment systems, such as agency enforcement of existing laws, amendments to existing laws, and enactment of new laws, as well as the limitations of those methods. We also discuss the use of government-run consumer financial services to help low-income consumers, such as the recently-launched FedNow instant payments system, proposed legislation to allow the U.S. Postal Service to offer banking services, and a proposal for the Federal Reserve to issue a central bank digital currency. We conclude with a discussion of Prof. Budnitz’s recommendations for how agencies can better address the needs of low-income consumers when considering new initiatives.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

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Our special guest is Michael Ostheimer, Senior Consumer Protection Attorney in the FTC’s Division of Advertising Practices. In June 2023, the FTC updated its guides that set forth the FTC’s position on how Section 5 of the FTC Act, which prohibits unfair or deceptive acts or practices, applies to the use of endorsements and testimonials in advertising. The updates are intended to address the increasing use of digital and social media marketing. We begin with a detailed review of the most significant changes made by the updates, such as those concerning the definitions of “endorser” and “endorsement,” the definition of a “clear and conspicuous” disclosure, suppression or boosting of consumer reviews, the use of incentivized and employee reviews and fake negative reviews of competitors, and the potential liability of advertisers, endorsers, and third parties such as advertising agencies. We then discuss how the FTC identifies potential violations and the relief it may seek, including the use of notices of penalty offenses to obtain civil penalties, and look at examples of practices involving endorsements and testimonials challenged by the FTC. We also look at potential sources of legal risk arising from the use of influencer advertising other than the FTC Act and suggest steps companies can take to protect themselves from legal risk when using reviews and testimonials. We conclude with a discussion of the FTC’s proposed new trade regulation rule which would prohibit certain practices involving consumer reviews or testimonials, including many of the practices described as deceptive in the updated guides.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the conversation, joined by Aliza Karetnick, a partner in the firm and Practice Leader of the firm’s Commercial Litigation and Dispute Resolution Group.

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In March 2022, the Consumer Financial Protection Bureau announced that it had revised its examination manual to instruct its examiners to apply the “unfairness” standard under the Consumer Financial Protection Act to conduct considered to be discriminatory, whether or not it is covered by the Equal Credit Opportunity Act. We first review the changes that the CFPB made to the manual, its rationale for the changes, and how those changes would allow the CFPB to target discrimination more broadly than the circumstances covered by the ECOA. We also review the industry lawsuit challenging the changes, including the reasons asserted for invalidating the changes and the relief sought. We then look at the court decision vacating the changes, including the court’s application of the “major questions” doctrine and the relief granted. We conclude with a discussion of the CFPB’s possible next steps and the decision’s implications for pending CFPB rulemakings and other CFPB actions.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the conversation, joined by Richard Andreano, a partner in the Group and Practice Leader of the firm’s Mortgage Banking Group.

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Our special guest is Andrew Nigrinis, PhD, who formerly served as Enforcement Economist for the Consumer Financial Protection Bureau. We first discuss what is meant by “dark patterns” and the types of digital practices identified by the CFPB and Federal Trade Commission as “dark patterns.” We then look at the CFPB ‘s position regarding the use of “dark patterns” as an unfair, deceptive, or abusive act or practice under the Consumer Financial Protection Act, the FTC’s position regarding the use of “dark patterns” as anticompetitive and/or a violation of the FTC Act prohibition of unfair or deceptive acts or practices, and the relationship between “dark patterns” and behavioral economics. We also look at other federal laws that may be used to target “dark patterns,” CFPB and FTC enforcement actions involving “dark patterns,” and state regulation of “dark patterns.” We conclude with a discussion of best practices for companies to consider in avoiding legal challenges based on “dark patterns” claims.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation, joined by Michael Gordon, Of Counsel in the Group, and Ed Rodgers, a partner in the firm’s Antitrust and Competition Group.

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Our special guest is Professor Dan Awrey of Cornell Law School. In July 2023, the Federal Reserve launched FedNow, its instant payments system. After reviewing what FedNow is (and is not), we discuss FedNow’s design features and pricing schedule, the obstacles that currently exist for usage of FedNow by community banks, and what changes can be made to increase FedNow usage by community banks. We next look at the history of FedNow’s creation and how consumer groups have responded to FedNow’s launch, including FedNow’s impact on concerns about liability for peer to peer on-line payments in which the consumer who authorized the payment subsequently claims it was made to a scammer. Prof. Awrey then shares his expectations regarding the success of FedNow. We conclude with a discussion of the need for federal legislation to modernize the U.S. payments system and how a central bank digital currency would impact the role of FedNow.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation joined by Ron Vaske, a partner in the Group.

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We first review the Fair Credit Reporting Act provisions that establish the different requirements for how a creditor or other furnisher of information to a credit bureau must respond to direct and indirect identify theft disputes involving credit report information reported by the furnisher to a credit bureau. A direct dispute is one made directly by the consumer to the furnisher and an indirect dispute is one made by the consumer to the credit bureau and then submitted to the furnisher by the credit bureau. In particular, we focus on the information that a furnisher may require from a consumer before investigating each type of dispute. We then look at the factors courts have considered in decisions involving whether, in connection with an indirect identity theft dispute, a furnisher satisfied the FCRA requirement to conduct a reasonable investigation. We conclude with a discussion of best practices for furnishers to consider when handling investigations of indirect identity theft disputes.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the conversation joined by Melanie Vartabedian and Joel Tasca, partners in the Group.

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Section 5 of the FTC Act, which prohibits unfair or deceptive acts or practices, does not include a private right of action. Our special guest, Professor Myriam E. Gilles of Cardozo Law School, has written a law review article in which she makes the case for adding a private right of action to Section 5. We begin with a discussion of the origins of federal consumer protection law, including the connection to the rise of private antitrust enforcement, the legislative debate regarding the creation of a private right of action in connection with the FTC Act’s enactment and later addition of a UDAP prohibition to Section 5, and the FTC’s role in the enactment of state UDAP laws. We then discuss the arguments advanced by Prof. Giles in support of private enforcement of the FTC Act, including the need to counter efforts to limit state UDAP laws and the effects of political polarization on government enforcement, and issues relating to class actions that legislators would need to address in creating a private right of action.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

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We first look at what generative AI is and how it differs from other types of AI and technology such as machine learning. We then look at the ways in which banks and fintech companies can deploy AI tools and the business use case for banks and fintechs considering the addition of chatbots, including how chatbots differ from voice response units. Our discussion considers the potential purposes for which banks and fintechs can use chatbots and the potential benefits to employees and customers. It also considers the potential legal risks in using chatbots for certain purposes such as in connection with deposit accounts, credit products, or consumer complaints. We also look at the potential for more sophisticated use of AI in trend and sentiment analysis. We conclude by looking at how the use of generative AI and chatbots may develop in the future and the regulatory environment these technologies may face.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

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The CFPB’s final rule implementing Section 1071 requires financial institutions to collect and report certain data in connection with credit applications made by small businesses, including women-, minority- or LGBTQI+-owned small businesses. In this episode, we respond to questions received from attendees of our April 2023 attendance-breaking webinar about the final rule. The issues our responses address include: what is a “covered transaction” and distinguishing business/consumer purpose transactions; determining the applicable compliance date, applying the “grace period,” and pre-compliance date data collection; which originations must be reported, which are excluded, who has reporting obligations in multiple party transactions such as indirect auto loans, and identifying who is a small business; reliance on broker-collected data and data collection when small business status is uncertain; complying with data segregation and “firewall” requirements; reporting issues for securities-backed loans; CFPB identification/treatment of underperforming originators; and data to be publicly disclosed and CFPB approach to data analysis. We also discuss the preliminary injunction issued by a Texas federal court staying the rule’s compliance dates for the plaintiffs only and how other entities subject to the rule have reacted.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion joined by John Culhane and Richard Andreano, partners in the Group, and Loran Kilson and Kaley Schafer, associates in the Group.

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After discussing what fluctuating- value cryptocurrencies and stablecoins are, their differences, and their primary uses and risks, we discuss the factors that led to the crypto boom and crash of 2020-22. We then look at the role of banks in crypto-related activities, the response of federal and state bank regulators, and the role of crypto in recent bank failures. We follow with a discussion of Prof. Wilmarth’s recommendations for responding to the risks posed by crypto, including recognizing the Securities and Exchange Commission as the primary federal regulator of most fluctuating-value cryptocurrencies, protecting the banking system by having federal bank regulators prohibit FDIC-insured banks and their affiliates from investing and trading in fluctuating-value cryptocurrencies, and requiring all issuers and distributors of stablecoins to be FDIC-insured banks. We conclude by looking at recent crypto-related SEC enforcement actions and court decisions and what they mean for future SEC crypto-related activity.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

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After discussing what are “dark patterns” and the most common forms they can take, we consider whether and how “dark patterns” used to influence consumers’ online behavior differ from traditional scams directed at consumers involving the use of deception. We then discuss the federal and state statutes and common law claims currently being used to challenge the use of “dark patterns” as well as current legislative action to more directly target “dark patterns” and the challenges lawmakers face in crafting new legislation. We also assess the effectiveness of using private lawsuits rather than government enforcement to police the use of “dark patterns.” We conclude with practical steps companies should consider taking to avoid the risk of enforcement or private actions arising from claims that “dark patterns” are present in their user interface designs.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

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Professor Hoffman first explains his thesis that falling transaction costs has led to the proliferation of form contracts into areas where they little have social value, resulting in social harms that require a new approach. We then discuss his proposal that states deny enforcement of written contracts for small dollar transactions by adopting what he calls a “Statute Against Forms.” Under such a statute, for contracts at the lowest dollar amount (e.g. $100 or less), only oral contracts would be enforceable. In our discussion, we consider the potential benefits of this approach for industry and consumers, why this approach might be preferable to the current regime of policing contract terms using doctrines such as unfairness and unconscionability or to an approach that focuses on adhesion, and whether it would be preferable to address this issue on the federal rather than the state level. We also discuss reactions to Professor Hoffman’s proposal.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

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The Biden Administration has launched an initiative directed at combatting so-called “junk fees,” with the CFPB and FTC leading the Administration’s efforts. In Part II of this two-part episode, we first look at CFPB supervisory activity relating to auto servicing, mortgage servicing, payday and small dollar loans, and student loan servicing. We then discuss likely CFPB next steps relating to its credit card late fees proposal and potential future actions by the CFPB, FTC, and state regulators to address “junk fees.” We conclude with a discussion of steps providers should consider to reduce compliance risks, including the Ballard Spahr Analytical Framework for identifying fees that the CFPB will not like.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion, joined by John Culhane, a partner in the Group, and Michael Gordon and Kristen Larson, both Of Counsel in the Group.

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The Biden Administration has launched an initiative directed at combatting so-called “junk fees,” with the CFPB and FTC leading the Administration’s efforts. In Part I of this two-part episode, we first discuss the various definitions offered by the White House, CFPB, and FTC for what constitutes a “junk fee” and the types of fees they have labeled “junk fees.” We then discuss the CFPB’s credit card late fees proposal and criticisms of the proposal set forth in comment letters. We conclude with a discussion of guidance on overdraft and non-sufficient funds fees issued by the CFPB, OCC, and FDIC and by state regulators and CFPB enforcement activity related to overdraft and NSF fees.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion, joined by John Culhane, a partner in the Group, and Kristen Larson, Of Counsel in the Group.

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Last Friday, the U.S. Supreme Court ruled that the Biden Administration did not have the legal authority to proceed with its plan to forgive approximately $400 billion in federal student loans. After reviewing the background of the two cases, we first look at the majority opinion authored by Chief Justice Roberts and discuss the majority’s legal analysis for concluding that the Missouri Attorney General had standing to challenge the plan, that the HEROES Act’s text did not authorize the Secretary of Education to forgive the loans, and that the “major questions” doctrine should be applied to assess whether Congress had given loan forgiveness authority to the Secretary. We also look at Justice Kagan’ dissenting opinion and the dissent’s rationale for rejecting the majority’s conclusions. We then look at the decision’s potential repercussions for future challenges by state agencies to actions by federal agencies and for the application of the “major questions” doctrine to such challenges. We conclude by discussing the decision’s impact on borrowers, including the ending of the moratorium on federal student loan payments and actions already announced by the Administration or that might be taken to provide relief to borrowers facing the resumption of payments.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation joined by Tom Burke, a partner in the Group.

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The use of enforcement by the Consumer Financial Protection Bureau and other federal agencies rather than administrative rulemaking to advance novel legal theories has been widely criticized. After discussing the meaning of “regulation by enforcement,” we look at examples of the use of regulation by enforcement by the CFPB and other agencies, U.S. Supreme Court precedent regarding the legality of this approach, the choice of enforcement targets by agencies, and the role of consent orders. We conclude with a discussion of best practices that agencies should consider to broaden stakeholder participation when using enforcement to combat what they perceive to be undesirable market trends.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

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The report examines the vulnerabilities in DeFi, including potential gaps in the United States’ Bank Secrecy Act/anti-money laundering regulatory, supervisory, and enforcement regimes for DeFi. We first discuss how Treasury defines DeFi, the report’s findings regarding the use of DeFi services in the process of transferring and laundering illicit proceeds, the BSA’s application to DeFi services and the impact of decentralization on BSA coverage, and the report’s recommendations. We then discuss state efforts to regulate digital assets and federal enforcement actions against cryptomixers, including the challenge to OFAC’s authority. We conclude with a discussion of the focus of state regulators on BSA/AML policies and procedures and steps businesses in the digital asset space can take to mitigate compliance risk.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the conversation, joined by Lisa Lanham, a partner in the Group, and Peter Hardy, a partner in and Co-Leader of the firm’s Anti-Money Laundering Group.

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Since the U.S. Supreme Court’s 1984 Chevron decision, federal courts have typically applied a two-step analysis known as the “Chevron framework” to determine whether a court should defer to a federal agency’s interpretation of a statute. SCOTUS has now agreed to hear the Loper case next Term in which the continued viability of the Chevron framework is being directly challenged. We first discuss the origins of the concept of judicial deference to federal agencies and the Chevron decision. We then discuss the background of the Loper case, the two recent SCOTUS decisions rejecting EPA interpretations, what the decisions could mean for challenges to CFPB and FTC regulations, what the decisions signal for how the Justices will rule in Loper, and possible outcomes in Loper. We conclude by considering the potential impact on federal agencies of a SCOTUS decision overruling Chevron, including the potential retroactive effect of such a decision.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

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At the end of March 2023, the CFPB issued its long-awaited final rule to implement Section 1071 of the Dodd-Frank Act. Section 1071 amended the Equal Credit Opportunity Act to require financial institutions to collect and report certain data in connection with credit applications made by small businesses, including women- or minority-owned small businesses. Although the final rule will be effective on August 29, 2023, it contains a tiered compliance date schedule, with an earliest compliance date of October 1, 2024 for financial institutions that originate the most covered credit transactions and later compliance dates for institutions with lower transaction volumes.

In Part II of this two-part episode, we first take a close look at the final rule’s tiered compliance dates and related volume thresholds and the CFPB’s grace period policy statement. We next discuss our expectations for CFPB enforcement of the final rule, including the CFPB’s statement on supervisory and enforcement practices, how the collected data is likely to be analyzed and used, and the potential for data analysis to produce unwarranted conclusions. We also look at the operational issues and challenges that lenders should consider in implementing the final rule and satisfying the requirement for lenders to have procedures that are “reasonably designed to collect applicant-provided data.” We conclude with a discussion of the final rule’s implications for fair lending risk, including likely areas of CFPB scrutiny and the expected need for lenders to have additional data to explain lending disparities that may appear in exams.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the conversation, joined by Michael Gordon, Of Counsel in the Group.

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At the end of March 2023, the CFPB issued its long-awaited final rule to implement Section 1071 of the Dodd-Frank Act. Section 1071 amended the Equal Credit Opportunity Act to require financial institutions to collect and report certain data in connection with credit applications made by small businesses, including women- or minority-owned small businesses. Although the final rule will be effective on August 29, 2023, it contains a tiered compliance date schedule, with an earliest compliance date of October 1, 2024 for financial institutions that originate the most covered credit transactions and later compliance dates for institutions with lower transaction volumes.

In Part I of this two-part episode, we first take a close look at the final rule’s key definitions, specifically those for “covered application,” “covered financial institution,” “covered credit transaction,” and “small business.” We then discuss the data points that must be collected about the credit applied for, the borrower, and the borrower’s principal owners and consider how the data points are similar to or different from the data points required to be collected pursuant to the Home Mortgage Disclosure Act. We conclude with a discussion of the rule’s provisions regarding procedures for the collection of data, such as the restrictions on employee and officer access to data.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the conversation, joined by John Culhane and Richard Andreano, Partners in the Group.

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After discussing what mass arbitration is and its growing use for claims against companies in the consumer finance industry, we discuss the factors that make companies most vulnerable to mass arbitration claims. We then identify drafting strategies for arbitration agreements to deter the initiation of mass arbitration claims. We look next at how companies can benefit from the use of bellwether procedures, address criticism of such procedures, and discuss ethical issues that have been raised regarding the use of mass arbitration by plaintiffs’ attorneys. We conclude by discussing how the most widely used arbitration administrators have responded to the growing use of mass arbitration and how alternative administrators have approached mass arbitration, addressing criticism of industry for challenging the use of mass arbitration, and looking at whether companies should consider abandoning the use of arbitration agreements in response to mass arbitration.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the conversation, joined by Mark Levin, Senior Counsel in the Group.

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Our discussion looks at the role of in-house and outside counsel in the development and launch of new consumer financial products. We first discuss the range of issues to be considered as part of the preliminary scoping process, including state licensing, marketing, underwriting, servicing, and collection issues. We turn next to the process of addressing potential legal obstacles and problems that are identified in scoping, including what consideration should be given to competitors’ approaches and when consultation with regulators should be considered. Our discussion then looks at counsel’s role in moving forward towards product launch, including operational considerations in drafting the consumer agreement and meeting regulatory requirements. We conclude by discussing counsel’s role post-product launch, including the use of consumer complaints and moving beyond the minimum viable product.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation joined by Mike Guerrero, a partner in the Group and co-head of the firm’s Fintech and Payment Solutions Industry Group.

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The consumer financial services industry has become the target of increasing regulatory scrutiny under antitrust laws as well as class action antitrust litigation that challenges industry practices on the grounds that they undermine competition. We first provide an overview of the federal antitrust laws, discuss the Biden Administration’s focus on competition, and the wide remedies available under antitrust laws. We then look at how the current FTC, DOJ, and CFPB leadership are attempting to expand the use of antitrust laws through their enforcement authority and how the agencies’ antitrust focus informs private litigation. We also look at the special antitrust issues presented by fintech companies and the FTC’s efforts to use antitrust laws to challenge data aggregation and data use as anticompetitive practices. We conclude with a discussion of steps companies can take to reduce antitrust risk, including through internal policing and consultation with antitrust counsel in connection with the development of new products and services, the significance for the consumer financial services industry of the FTC’s expanded use of Section 5 to target anticompetitive practices, and the role of state antitrust laws.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the conversation, joined by Ed Rogers, a partner in the firm’s Litigation Group, and Erin Fischer, an associate in the Litigation Group.

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The U.S. Supreme Court has agreed to review the Fifth Circuit decision in CFSA v. CFPB that held the CFPB’s funding violates the Appropriations Clause of the U.S. Constitution. After reviewing the history of the case from its initial filing to the Supreme Court’s grant of certiorari, we discuss the Fifth Circuit’s interpretation of the Appropriations Clause and the Second Circuit’s conflicting interpretation in its recent decision holding that the CFPB’s funding is constitutional and assess the strength of each interpretation and the reasoning of each decision. We then turn to how the Supreme Court might analyze the case, including how its analysis might differ from that of the Fifth Circuit but still conclude the CFPB’s funding is unconstitutional and whether the views expressed by several of the conservative justices on the “administrative state” are likely to factor into those justices’ interpretations of the Appropriations Clause.

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Third-party debt collectors, first-party creditors, and debt buyers face an ever-evolving federal and state regulatory landscape as well as ongoing private litigation. We first look at the impact of the CFPB’s most recent rulemaking agenda on debt collectors. We then discuss compliance and licensing issues under District of Columbia, California, Utah, and New York debt collection laws and the Wyoming “debt buyer” licensing requirement. We conclude with a discussion of 2022 debt collection litigation statistics and state law developments related to the collection of student loans, including the California Student Loan Collections Reform Act.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation joined by Lisa Lanham and John Culhane, partners in the Group, and Abigail Pressler, Of Counsel in the Group.

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Our discussion focuses on generative artificial intelligence, a new and emerging category of AI. We first discuss what generative AI is, its use of large language models, and the role of supervised training in developing generative AI models. We then discuss the potential benefits and limitations of generative AI in the following use cases in the consumer finance industry: marketing, fraud management, underwriting, collections, customer service, and back office functions. We conclude by discussing what additional steps are needed to expand the use of generative AI in the industry, why companies may choose to build their own AI models, expectations for how generative AI is likely to impact the industry in the coming years, and consumer use of AI.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion.

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Professor Willis advocates the adoption of a performance-based approach to regulation to replace or supplement the current approach of disclosure and design regulation. We first discuss how benchmarks would be used in a performance-based approach and discuss the shortcomings of the current disclosure and design approach as well as behavioral economics in designing regulations. We then discuss how benchmarks would be determined in a performance-based approach and how audits would be conducted. We conclude by looking at use cases involving overdrafts and data privacy, the role of legislation and regulation in implementing the new approach, and how the new approach is being used in other countries.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the conversation.

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The CFPB and FTC have targeted the use of “dark patterns” on websites to influence consumer behavior. We first discuss what regulators consider to be dark patterns and why they are a focus of regulatory concern and look at examples. We then discuss the empirical issues and behavioral theories a company should expect regulators to raise if it is the target of a dark patterns investigation or enforcement action, what proactive steps a company can take to reduce the risk of a dark patterns challenge and the role of A/B testing, the practices most likely to be the focus of future dark pattern challenges by regulators, and principles to consider when designing online interactions with consumers so as to avoid potential dark patterns.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the conversation.

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After reviewing the circumstances leading to the failure of SVB and historic parallels, we discuss the merits of the regulators’ decision to invoke the Systemic Risk Exception and protect all SVB deposit accounts, notwithstanding the $250,000 FDIC insurance limitation, alternate approaches that regulators might have considered for protecting uninsured funds, and the Fed’s creation of the Bank Term Funding Program to make available additional funding to eligible depository institutions. We also discuss the impact of the mark-to-market accounting standard on bank liquidity and the role of the Fed’s monetary and regulatory policies in SVB’s failure. Finally, we discuss how the regulators could stop further runs on banks by temporarily covering all deposits, regardless of amount, or guaranteeing the full amount of demand noninterest-bearing transaction deposits and certain other accounts as the FDIC did during the recession of 2008-09.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion, joined by Scott Coleman, a partner in the firm and member of the firm’s Banking and Financial Services team and the Distressed Financial Institutions and Counterparties component of the firm’s Distressed Assets and Opportunities Initiative.

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On February 28, 2023, the U.S. Supreme Court heard nearly four hours of oral argument in two separate cases challenging the Biden Administration’s authority to proceed with its plan to forgive approximately $400 billion in federal student loans. After reviewing the background of the two cases, we look at the three key issues: the plaintiffs’ theories for why they have standing to challenge the plan, the Administration’s reliance on the HEROES Act as authority for the plan, and the applicability of the “major questions” doctrine to the Court’s analysis. We then discuss the questions asked and views expressed by the Justices about these issues, what they portend for how individual Justices are likely to rule, how the Administration is likely to proceed if it prevails, potential Administration actions in response to an adverse decision, and when we expect SCOTUS to issue its decision. We conclude with a discussion of a new lawsuit challenging the Administration’s moratorium on federal student loan payments.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation joined by Tom Burke, a partner in the firm’s Consumer Financial Services Litigation Group.

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In recent months, debt relief law firms have mailed volumes of cease and desist letters, credit reporting disputes, and debt validation requests to creditors. These mailings, which are typically lacking in credibility, place an undue burden on businesses. We first discuss responsive strategies creditors should consider for each type of mailing, including what obligations, if any, a creditor has to respond and the impact of state law. We then discuss consumer litigation filed against the debt relief law firms, potential industry-wide responses to the use of mass mailings, and how Ballard Spahr attorneys can assist creditors and servicers in crafting and implementing a strategy for handling mass mailings.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation, joined by Joel Tasca and Jenny Perkins, Partners in the Group.

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The CFPB has issued a proposal that would make significant changes to the current rules for credit card late fees, including substantially reducing the safe harbor late fee amounts that card issuers can charge and eliminating annual inflation adjustments. After reviewing the legislative and regulatory history of the current rules, we look at the CFPB’s flawed rationale for reducing the safe harbor to a flat $8 for all late payments, identify the serious flaws in its economic analysis of the likely effects of the reduction, and discuss how the proposal relates to the Biden Administration’s junk fees initiative. We also discuss the likelihood of the proposal’s adoption in its current form and potential legal challenges to a final regulation. We conclude by looking at other major changes on which the CFPB seeks comment in the proposal, such as whether to require issuers using the safe harbor to provide a 15-day courtesy period before imposing a late charge and offer automatic payment options.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

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The CFPB recently issued two proposals that would require nonbanks to register with and submit information to the CFPB for publication in an online, publicly available database. The proposals represent an aggressive attempt by the CFPB to enhance its supervisory and enforcement authorities and carry significant potential implications for nonbanks that would be required to register.

In Part II, we look at the proposal that would require companies to register that “enter into covered form contracts,” meaning consumer contracts that use “covered terms or conditions” (regardless of legal validity or enforceability). After discussing the background of the registry and its relationship to the CFPB’s final arbitration rule that was overturned by Congress, we look at which nonbanks would be required to register, what is a “covered form contract,” when does a company “enter into” such a contract, and what kinds of waivers or limitations are “covered terms or conditions.” We also look at the registration requirements and state level corollaries.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation, joined by Richard Andreano, Michael Gordon, John Culhane, and Lisa Lanham, partners in the Group.

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The CFPB recently issued two proposals that would require nonbanks to register with and submit information to the CFPB for publication in an online, publicly available database. The proposals represent an aggressive attempt by the CFPB to enhance its supervisory and enforcement authorities and carry significant potential implications for nonbanks that would be required to register.

In Part I, we look at the proposal that would require companies to register when, as a result of settlements or otherwise, they become subject to orders from local, state, or federal agencies and courts involving violations of consumer protection laws. After discussing the background and purpose of the registry and the Dodd-Frank Act authorities relied on by the CFPB for the proposal, we look at which nonbanks would be required to register, what is a “covered order” that would trigger registration, and the requirements for registration, recordkeeping, and annual attestation by an executive officer. We also look at state law requirements for licensed entities to disclose regulatory actions taken against them.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation, joined by Richard Andreano, Michael Gordon, John Culhane, and Lisa Lanham, partners in the Group.

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Using data for the last quarter of 2020 and first three quarters of 2021, the study examined the effects of the 36% rate cap imposed by the Illinois Predatory Loan Prevention Act which became effective in March 2021. The study found that the cap significantly decreased the availability of small-dollar credit in Illinois. We first discuss the types of loans affected by the rate cap, the users of such loans, and the data sets used to study the cap’s effects. We then discuss the study’s results, the authors’ response to criticism of the study, and the issues raised by a potential national rate cap.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

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With one Republican Commissioner dissenting, the FTC has issued a notice of proposed rulemaking that would ban non-compete agreements between employers and workers nationwide, both prospectively and retroactively. If finalized, the proposal would impact nearly all nonbanks in the consumer financial services industry. We first review the practices that the proposal would prohibit, the types of employers and categories of workers it covers, and the types of agreements it covers, including the proposal’s narrow exceptions. We then discuss the current state law approach to non-compete agreements, existing protections for trade secrets and confidential information, likely policy and legal challenges to the FTC’s proposed exercise of rulemaking authority, and alternative approaches proposed by the FTC. We conclude with a discussion of steps employers should consider taking to be prepared if the FTC finalizes the proposal.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation, joined by David Fryman, a Partner in the firm’s Labor and Employment Group, and Karli Lubin, an Associate in the Labor and Employment Group.

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After reviewing the licensing/chartering/approval structures that DFS uses for entities seeking to engage in virtual currency activities, we discuss the role of guidance in DFS’s regulation and oversight of virtual currency, particularly new DFS guidance on digital asset custody practices and DFS expectations for how entities acting as digital asset custodians can better protect customers in the event of an insolvency or similar proceeding. We also discuss feedback DFS has received from other regulators and industry, steps DFS takes to ensure accountability and compliance with its guidance, the role of industry engagement with DFS in compliance programs, DFS recruiting and training efforts, likely areas of focus for future DFS guidance, including the role of disclosures and suitability requirements, and DFS engagement with federal and state regulators in establishing uniform standards for regulation of virtual currency.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation, joined by Lisa Lanham, a partner in the Group.

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The eyes of the consumer finance world are now on the Supreme Court as it decides whether to grant the CFPB’s certiorari petition in Consumer Financial Services Association Ltd. v. CFPB. In the decision, a Fifth Circuit panel held the CFPB’s funding mechanism violates the Appropriations Clause of the U.S. Constitution. In Part I, we focused on the legal arguments underlying the Fifth Circuit decision and potential outcomes. In Part II, we discuss the potential practical effects of a Supreme Court decision that holds the CFPB’s funding is unconstitutional on existing CFPB mortgage and other regulations and on pending and future CFPB enforcement actions. In particular, we consider how the current legal uncertainty might factor into the litigation strategy of companies that are the targets of CFPB enforcement activity as well as companies’ compliance strategy. We also consider the uncertainty’s impact on the CFPB’s ongoing operations and conclude with a discussion of how Congress might react if the Supreme Court holds that the CFPB’s funding is unconstitutional.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates the discussion, joined by John Culhane, Richard Andreano, and Michael Gordon, partners in the Group.

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The eyes of the consumer finance world are now on the Supreme Court as it decides whether to grant the CFPB’s certiorari petition in CFSA v. CFPB. In the decision, a Fifth Circuit panel held the CFPB’s funding mechanism violates the Appropriations Clause of the U.S. Constitution. We first review the background of CFSA’s lawsuit, the mechanism through which the CFPB is funded, and Congress’s policy rationale for the mechanism. We then examine the reasoning behind the Fifth Circuit’s conclusion that the funding mechanism is unconstitutional, the CFPB’s strategy in response to the decision, and the issues CFSA is expected to raise in a cross-petition for certiorari. We conclude with Adam’s predictions on the outcome of the cert petitions, how SCOTUS is likely to rule if it grants the CFPB’s petition, potential remedies if SCOTUS rules the funding is unconstitutional, and the impact of such a ruling on pending and future litigation challenging CFPB actions.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates the discussion, joined by John Culhane, Richard Andreano, and Michael Gordon, partners in the Group.

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We first discuss the multiple benefits of diversity, equity, and inclusion (DEI) for financial institutions, the challenges and opportunities institutions face in implementing a DEI strategy, and how DEI applies beyond an institution’s workforce. We then consider the risk of discrimination claims arising from DEI programs and the role of legal counsel in the development and implementation of DEI strategies. We also discuss diversity self-assessments and the role of Offices of Minority and Women Inclusion and the potential impact on DEI programs of a ruling by the U.S. Supreme Court that the higher education affirmative action programs at issue in the cases pending before it are unlawful. We conclude by looking at the characteristics of a successful DEI program.

Dee Spagnuolo, a partner in Ballard Spahr’s White Collar Group moderates the discussion, joined by Brian Pedrow, a partner in the firm’s Labor and Employment Group. Dee and Brian are co-leaders of the firm’s DEI Counseling Team.

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After discussing the core features of the U.S. payments systems, we look at how those features have impacted the experience of U.S. business and consumers and why Prof. Awrey believes they have resulted in a payments system that is worse, more expensive, and slower than payments systems in other large, developed countries. We also explore the types of changes that are needed to improve the U.S. payments system, including how the Federal Reserve System can take a more proactive approach to spurring the development of new payments technologies, assess the likely impact of the FedNow real-time settlement service on the payments system, and consider the overall prospects for improvements to the payments system.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation, joined by Ron Vaske, a partner in the Group.

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The FTC’s proposal would impose a number of new substantive and disclosure requirements on auto dealers in connection with the car buying or leasing process. We first discuss NADA’s comment letter to the FTC on the proposal, including NADA’s concerns with the process used by the FTC to issue the proposal and with the proposal’s disclosure, recordkeeping, website posting, and other requirements. We then discuss the auto finance industry’s concerns with the proposal, including the risks arising from the FTC Holder Rule, the industry’s call for safe harbors, and other steps auto finance companies can take to mitigate risks in connection with ancillary products. We conclude with a discussion of the CFPB’s focus on ancillary products, including CFPB supervisory activity, potential areas of CFPB scrutiny, and the CFPB’s use of its authority to supervise auto finance companies to influence dealer behavior.

John Culhane, a partner in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

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We begin with a discussion of the goals and themes of FTA’s recent summit and AFC’s advocacy regarding retention of the strategic plan option under the Community Reinvestment Act. We then discuss consumer benefits of buy-now-pay-later (BNPL) and regulatory concerns raised by the CFPB in its BNPL report, state level regulatory issues facing fintechs, the Treasury’s report on bank/fintech relationships and takeaways for fintechs, consumer benefits of earned wage access products and artificial intelligence and regulatory concerns raised by the CFPB, and reactions to the CFPB’s Section 1033 rulemaking.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion.

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Payactiv, which as the first EWA provider began an EWA program about 13 years ago, partners with employers to offer their employees EWA. We first discuss what EWA is, the structure of the employer model used by Payactiv and other EWA providers, and how employers participate in and employees access their wages in the employer model. We next look at the structure of direct consumer advance EWA products, the fee structures of employer model and direct consumer advance products, employee usage and benefits of EWA, the CFPB’s advisory opinion on EWA, Payactiv’s participation in the CFPB’s sandbox program, and tax issues raised by EWA. We conclude with a discussion of federal and state regulatory activity directed at EWA and the future outlook for EWA.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

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SaverLife is a national non-profit sponsored by some of the nation’s leading financial institutions that uses financial technology to improve the financial health of low- to-moderate income consumers by incentivizing savings through prizes, rewards, expert resources,  and gameplay. We first discuss SaverLife’s objectives and how its online platform operates. We then discuss a range of issues, including the goals of the CFPB’s Section 1033 rulemaking, Saverlife’s perspective on the growing use of earned wage access and buy-now-pay later products, and the role of the CAB and issues under consideration by the CAB.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

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While most attention is focused on the CFPB, state attorneys general are very active in investigating and enforcing state laws relating to consumer financial services (and often federal laws when incorporated into state law or when using their Dodd-Frank authority). We first discuss the CPD’s priorities and how they are determined; use of its state law UDAP authority and available remedies; enforcement of federal law; and collaboration with the CFPB and other state AGs. We also discuss how a company’s self-identification/self-remediation of violations factors into the CPD’s enforcement approach. We then discuss key issues of CPD concern and enforcement activity in specific areas, including mortgage servicing, auto sales and financing, debt collection, fintech/new technologies, and buy-now-pay-later.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation joined by John Grugan and Adrian King, partners in the firm’s Litigation Group, who defend companies facing state Attorneys General enforcement initiatives.

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We first review the origins of mortgage redlining and discuss the concept of reverse redlining and new theories of redlining. We then look at a wide range of topics including: the application of redlining enforcement to non-banks; the use of the Equal Credit Opportunity Act and Fair Housing Act to challenge redlining; activity at state level targeting redlining; the types of evidence regulators will look for when examining for redlining or bringing an enforcement action; potential penalties for redlining violations; what steps may be required for remediation of redlining; and how a bank or non-bank can build a compliance program to avoid redlining.

Alan Kaplinsky, Ballard Spahr Senior Counsel in the firm’s Consumer Financial Services Group, hosts the conversation joined by Richard Andreano, a partner in the Group and Leader of the firm’s Mortgage Banking Group.

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After reviewing the background of the current moratorium on federal student loan payments and the Biden Administration’s decision to grant loan forgiveness, we discuss two recent decisions that have paused the Administration’s ability to proceed with forgiveness. We first analyze the Texas federal district court decision vacating the forgiveness program, including the court’s standing analysis and application of the “major questions doctrine.” Next, we discuss the Eighth Circuit Court of Appeals panel decision enjoining the forgiveness program pending resolution of an appeal filed by six state attorneys general whose challenge to the program had been dismissed by a Missouri federal district court for lack of standing. We also look at the Administration’s likely next steps in the two cases, the prospects for Supreme Court review, and whether the payments moratorium is likely to continue beyond its scheduled January 2023 expiration.

Alan Kaplinsky, Ballard Spahr Senior Counsel in the firm’s Consumer Financial Services Group, hosts the conversation, joined by Tom Burke, a partner in the Group.

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E-commerce and electronic contracting are more important than ever as we move into the post-COVID 19 era. We first review legal requirements for electronic contracting and disclosures including the E-SIGN Act, state Uniform Electronic Transactions Acts, FTC guidance on delivery of disclosures and comments on use of “dark patterns,” and DOJ comments on website accessibility. We then review recent case law on e-contracting and disclosures and the Restatement’s provisions on contract adoption and manifestation of consumer assent. We conclude with a discussion of best practices for establishing an e-contracting process that clearly evidences the consumer’s manifestation of assent.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation, joined by Michael Guerrero, a partner in the Group, and Mark Levin, Senior Counsel in the Group.

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The CFPB’s growing interest in and scrutiny of BNPL comes at a time when the BNPL industry is experiencing rapid growth. That makes it imperative for both companies currently offering BNPL products and companies considering whether to enter into the BNPL market to be aware of the practices that are likely to receive increased CFPB scrutiny and how future CFPB initiatives involving BNPL could impact the industry. After providing an overview of the report, we discuss its key findings, the discrete consumer harms and risks identified by the CFPB, how the CFPB might use its supervisory, regulatory, and enforcement authority in the BNPL market and the likelihood of such use, and state law enforcement and other state activity involving BNPL.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation, joined by Michael Guerrero, John Culhane, Lisa Lanham, and Michael Gordon, partners in the Group.

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In a decision with enormous potential implications, a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit has ruled that the manner in which the CFPB is funded violates the Appropriations Clause of the U.S. Constitution. After reviewing the decision, we discuss: the CFPB’s strategic options for next litigation steps; the decision’s potential impact on existing regulations and ongoing rulemakings, ongoing and future enforcement litigation and investigations, and consent orders; and possible legislative fixes and the likelihood of bipartisan support.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Service Group, leads the discussion, joined by John Culhane, Richard Andreano, and Michael Gordon, partners in the Group.

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After reviewing how the AMLA expands the BSA’s goals, we look at which AMLA provisions have the most impact on BSA compliance, including the AMLA’s emphasis on information sharing, the Financial Crimes Enforcement Network’s “national priorities” and the value of threat pattern and trend information to bank compliance efforts, and the AMLA’s expansion of the U.S. government’s authority to subpoena information from foreign financial institutions that maintain correspondent banking relationships with U.S. banks. We also review the CTA’s new beneficial ownership reporting requirements and discuss how they interact with existing customer due diligence (CDD) requirements and the need to align CTA and CDD regulations.

Peter Hardy and Terence Grugan, Ballard Spahr partners and co-leaders of the firm’s AML Team, host the conversation.

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We discuss the FDIC’s final rule on misuse of the FDIC name or logo, advisory to insured banks on deposit insurance and dealings with crypto companies, and cease and desist letters to five crypto companies alleging they made false and misleading statements about deposit insurance. We also discuss the CFPB’s circular warning that a misrepresentation involving the FDIC name or logo can constitute a UDAAP violation. We then identify key takeaways for banks and non-banks, including action items that should be considered for relationships involving pass-through insurance and the extent to which the FDIC name or logo can be used in advertising of credit products.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation joined by Ron Vaske, a partner in the firm’s Consumer Financial Services Group, and Mindy Harris, Of Counsel in the Group.

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After discussing what the Metaverse is and its possible uses by providers of legal and other services, we look at an array of legal issues that should be considered by lawyers and their clients operating in the Metaverse or contemplating doing so. Issues discussed include privacy rights of users of Metaverse platforms, data security, moderation of content, preservation of data for litigation, e-discovery implications such as what information is discoverable and access to user communications, and ethical considerations for lawyers.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation joined by Phil Yannella, Co-Practice Leader of the firm’s Privacy and Data Security Group.

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After reviewing the roles of data aggregators and other key players in the data aggregation market, we discuss the implications of the transition from screen scraping to application programming interfaces (API), how aggregators can enhance consumer financial services, and the risks associated with data aggregators. We also discuss the CFPB’s Section 1033 rulemaking on providing data access to consumers, including the expected timetable and issues the CFPB is likely to address in its proposed rule, and potential larger participant rulemaking for aggregators.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation.

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We discuss each of the three categories of risk identified in the guidance (consumer compliance, third-party, and litigation), plaintiffs’ legal theories in class actions challenging NSF fees, the role of arbitration clauses and contract language in defending class actions, the FDIC’s suggested risk mitigation practices, issues to consider in navigating FDIC expectations for remediation of self-identified NSF fee issues and plaintiffs’ demands in class action settlements, the position of other federal regulators on re-presentment NSF fees, and state focus on NSF fees.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation joined by Martin Bryce, a partner and senior litigator in the firm’s Consumer Financial Services Group, and Kristen Larson, Of Counsel in the CFS Group.

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Jon Hill was among a group of reporters to whom Director Chopra recently gave a series of interviews in which he provided significant insights into his views on a range of topics. We review recent CFPB and other agency developments that provide context for Mr. Chopra’s comments, discuss what his comments reveal about his approach to use of CFPB authorities, and highlight the important takeaways for banks and other companies. Topics covered include entry of big tech into financial services, Section 1033 rulemaking, application of UDAAP to discrimination, Military Lending Act, bank/nonbank partnerships, buy-now-pay-later, payday lending, overdraft/NSF fees, and artificial intelligence/machine learning.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation joined by Michael Gordon and Ronald Vaske, partners in the firm’s Consumer Financial Services Group, and Mindy Harris, Brian Turetsky, and Rinaldo Martinez, Of Counsel to the Group.

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Our discussion examines the FTC’s Advanced Notice of Proposed Rulemaking relating to what it describes as “commercial surveillance” and the CFPB’s circular confirming that covered persons and service providers may violate the Consumer Financial Protection Act’s prohibition against unfair acts or practices when they fail to adequately safeguard consumer information.  We consider the ANPR’s scope, its areas of focus, and potential federal and state obstacles to the FTC’s initiative. After providing an overview of the CFPB’s circular, we look at the data security measures highlighted by the CFPB, the CFPB’s authority to address data security, precedents to which companies can look in assessing the adequacy of their data security measures and potential exposure, and steps to mitigate risk.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation, joined by Greg Szewczyk, Co-Leader of the firm’s Privacy and Data Security Group, and Tim Dickens, an associate in the firm’s Litigation Department focusing on privacy and data security.

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In Bibbs, the Third Circuit ruled that in determining whether a credit report is inaccurate or misleading under the FCRA’s “maximum possible accuracy” requirement, a district court should apply a “reasonable reader” standard. After reviewing the background of Bibbs, we discuss the analysis that Bibbs’ requires a district court to perform in determining whether a credit report is inaccurate or misleading, how Bibbs broadly undercuts the claims of plaintiff’s lawyers in FCRA cases alleging pay status information is misleading, Bibbs’ implications for data furnishers that follow Metro 2 guidelines or other industry standards, and Bibbs’ impact on defendants’ litigation strategy and the threat of plaintiffs’ attorney fees.

Dan McKenna, Co-Chair of Ballard Spahr’s Consumer Financial Services Group, hosts the conversation, joined by Abigail Pressler, Of Counsel in the Group.

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Joined by two experts on the BNPL industry, we first review the types of BNPL products currently available, how they are accessed by consumers, how they generate revenue for industry participants, and potential consumer risks. We then discuss the federal and state laws applicable to BNPL, expectations for CFPB rulemaking or other action, how the U.S. regulatory approach to BNPL compares to the UK approach, and the growing nexus between BNPL and social media platforms.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation.

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In our discussion of regulatory challenges, we consider the continuing impact of “true lender” challenges on bank-nonbank partnerships, how regulators approach industry innovation, and whether regulators should face stronger challenges from industry (including what the SCOTUS EPA decision could mean for such challenges). In our discussion of economic challenges, we consider the impact of inflation and recession fears on bank activity. Other topics include the role of bank mergers in the marketplace for banking services and issues faced by regulators in addressing crypto assets.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation.

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The FTC’s proposal would impose a number of new substantive and disclosure requirements on motor vehicle dealers in connection with the car buying or leasing process. The topics we cover include: the FTC’s statutory authority for the proposal and the proposal’s coverage (including buy-here-pay-here dealers); the specific new requirements the proposal would impose; how the proposal interacts with existing federal and state laws; the proposal’s impact on auto finance companies; potential remedies for violations; and timing of next rulemaking steps.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation.

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We first review the views expressed by Director Chopra and CFPB actions taken under his leadership that led the Chamber to launch its campaign. We then discuss the campaign’s specific components, which consist of digital ads, Freedom of Information Act requests, and letters to Director Chopra. Our discussion includes an in-depth look at the basis for the Chamber’s view that the CFPB has acted unlawfully in connection with changes to its UDAAP examination procedures, revisions to its rules for administrative proceedings, rule change to make public a decision establishing risk-based supervision of a company, and its interpretive rule on enforcement of federal consumer financial protection laws by state attorney generals. We also discuss the litigation challenging the constitutionality of the CFPB’s funding.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation.

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In a recent consent order with a national bank, the CFPB found that the bank committed UDAAP violations in its process for handling garnishment orders and by including certain waiver language in its deposit account agreements. We discuss the specific aspects of the bank’s process that the CFPB found to be improper and what banks should consider when reviewing their own garnishment procedures in light of the consent order. We also look at what the consent order means for how banks can address liability concerns arising out of the handling of garnishment orders in deposit account agreements.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation, joined by Mike Gordon, a partner in the firm’s Consumer Financial Services Group, and Jessica Simon, Of Counsel in the firm’s Bankruptcy and Restructuring Group.

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We first discuss the practicalities and potential impact of implementing Director Chopra’s call in a recent blog post for simplification of consumer finance regulations and simple bright-line rules. We then examine the role and objectives of regulation such as predictability and responsiveness to stakeholder input and consider whether the CFPB’s current approach to regulation, including its abandonment of official staff commentary updates, furthers those objectives. We also discuss the recent SCOTUS decision in EPA v. West Virginia and consider its implications for future challenges to CFPB actions. 

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation.

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After reviewing the developments leading up to the settlement, we examine the aspects of Facebook’s advertising delivery system that were alleged to be discriminatory. We then discuss the terms of the settlement, including the variance reduction system that Facebook must develop to address disparities for race, ethnicity and sex between advertisers’ targeted audiences and the group of Facebook users to whom Facebook’s personalization algorithms actually deliver the advertisements, how variances will be measured, the role of an independent third-party reviewer, and the timetable for implementation.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation, joined by Richard Andreano, Practice Leader of the firm's Mortgage Banking Group.

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Together with our special guest whose company provides software enabling lenders to use AI to underwrite loans, we explore a wide range of issues of importance to lenders using AI to underwrite loans. Our discussion topics include: the CFPB’s position on how ECOA adverse action notice requirements apply to credit decisions based on the use of AI; what is meant by explainability and interpretability of AI; fair lending and other compliance risks and steps to reduce risk; preparing for CFPB exams; and the CFPB’s call for tech workers to act as whistleblowers to report potential discrimination arising from the use of AI.

Alan Kaplinsky, Ballard Spahr Senior Counsel hosts the conversation, joined by John Culhane and Michael Gordon, partners in the firm's Consumer Financial Services Group.

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We discuss key regulatory issues for innovative products such as buy-now-pay later, longer term installment loans, delay pay, and card-based products (such as “virtual cards.”) We look at the different ways these products can be structured and the impact of  these differences on applicable legal requirements, such as disclosures and licensing. We also look at secondary market considerations, legal issues arising from the offering of products through non-bank/bank partnerships including enforcement trends, and recent CFPB developments impacting innovative products.

Participating in the podcast are Michael Guerrero, Lisa Lanham, and Michael Gordon, partners in Ballard Spahr’s Consumer Financial Services Group, and Rinaldo Martinez, Of Counsel in the Group.

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Mr. Thomas is widely-viewed as the nation’s leading CRA expert and has advised federal regulators on CRA reform. After reviewing CRA’s origins and purpose, we discuss how the new proposal differs from the OCC’s rescinded 2020 final CRA rule and the current CRA rules, including the proposal’s higher asset threshold for small banks and approach to assessment areas, how industry and consumer groups have reacted to the proposal, and next steps and possible timetable for issuance of final rules. We also discuss state efforts to enact CRA-like laws and the concept that the CFPB should have a role in approving bank mergers.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation joined by Scott Coleman, a partner in the firm’s Consumer Financial Services Group.

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Ms. Twohig, a recognized consumer finance expert, shares her insights regarding the CFPB’s supervisory program. Our discussion topics include: the differences between the CFPB’s supervisory program and the programs of the federal and state banking regulators; the CFPB’s approach to allocating resources, conducting exams, and examiner training; the origins and objectives of Supervisory Highlights; how the CFPB’s supervisory focus has changed over time and the impact of leadership changes; and the CFPB’s recent announcements regarding use of its risk-based supervisory authority for nonbanks and use of UDAAP to combat non-credit discrimination.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation.

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We first share our perspective on Director Chopra’s approach to his leadership role and use of the CFPB’s authority, his priorities, and political dynamics impacting the CFPB. We then discuss the CFPB’s activity during Director Chopra’s initial months in office, including its request for information on “junk fees” and criticism of overdraft and credit card late fee practices, requests to large tech firms regarding payment services, fintech focus (and use of risk-based supervision), use of UDAAP to address market competition, orders seeking information from buy-now-pay-later companies, changes to UDAAP exam procedures to target non-credit discrimination, encouragement of state AGs, exams of institutional student lending, and injunctive relief focus.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation, joined by Michael Gordon and Tom Burke, partners in the firm’s Consumer Financial Services Group, and Michelle Hogan, an associate in the firm’s Litigation Group.

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We discuss the Biden Administration’s recent change in tone on forgiveness, alternative approaches to full forgiveness the President might take, potential legal sources of the President’s authority to take such actions, including the status of the Education Dept.’s analysis of the President’s forgiveness authority, and likely timetable for Presidential action. We also look at the Administration’s recent initiatives involving income driven repayment plans and public service student loan forgiveness and explore the perspective of interests opposed to forgiveness.

Ballard Spahr Senior Counsel Alan Kaplinsky hosts the conversation joined by Tom Burke, a partner in the firm’s Consumer Financial Services Litigation Group.

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AG Weiser discusses the areas of consumer financial services that are a current focus of his office’s efforts. After discussing the role of the newly-created Office of Financial Empowerment in addressing the needs of unbanked consumers, AG Weiser discusses his office’s activities concerning deceptive fees (including the types of fees of primary concern and the requirements of Colorado’s new automatic renewal law), robocalls, and student loans.  AG Weiser also shares his office’s approach to innovation and privacy issues (including the timetable for rulemaking under Colorado’s new privacy law) and offers his suggestions for steps companies can take to reduce their compliance risk.

Matt Morr, a partner in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

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With ALI’s members poised to approve the current draft of the new Restatement, providers need to understand the Restatement’s impact on their consumer agreements, particularly those entered into online. After reviewing the rationale for the new Restatement and ALI’s approach to developing the rules it contains, we look at the issues covered by each section, such as the rules that deal with assent to contract terms, change in terms, unconscionability, and deception. We also discuss how businesses can use the Restatement to their benefit and ALI’s next steps for finalizing the draft.

Alan Kaplinsky, Ballard Spahr Senior Counsel, leads the conversation.

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We first review the scope of the CFPB’s supervisory authority granted by Dodd-Frank and the source of its authority to supervise nonbanks that present risks to consumers. We then discuss how we expect the CFPB to use its risk-based authority, including the types of products it may target and its decision to make public the identities nonbanks. We also look at the practical impact of CFPB supervision for targeted nonbanks and what steps companies can take both to avoid becoming a CFPB target and to prepare for the possibility of a CFPB examination.  Finally, we consider how the CFPB’s action could impact the approach of state regulators to nonbank providers of alternative credit products.

John Grugan, a partner in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation, joined by Michael Gordon and Lisa Lanham, partners in the Group.

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We discuss the industries and practices that have been the subject of recent FTC enforcement focus, including: marketing, servicing, and collection practices involving small business financing such as merchant cash advances; auto add-on product sales practices; product endorsements and reviews; dark patterns; marketing practices of for-profit schools; lead generation; and COVID fraud. We also discuss the role of the FTC’s Holder Rule in consumer transactions, the impact of the SCOTUS AMG Management decision on FTC enforcement strategy, including the use of Notices of Penalty Offenses, and likely key agenda items under FTC Chair Lina Khan.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation.

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We discuss the growing trends in privacy litigation, particularly litigation targeting company practices regarding the sharing and sale of consumer personal data, plaintiffs’ liability theories, including the right of publicity, and best practices for companies to consider in order to reduce the risk of privacy claims.

Aliza Karetnick, a Ballard Spahr partner and Leader of the firm’s cross-practice Consumer Products and Retail Team, leads the conversation, joined by Phil Yannella, a Ballard partner and Practice Leader of the firm’s Privacy and Data Security Group, and Greg Szewczyk, a Ballard partner and member of the firm’s Privacy and Data Security Group.

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We first look at NCLC’s legislative priorities, which include a 36% national interest rate cap and credit reporting reform, and the prospects for Congressional action. Ms. Saunders then provides NCLC’s perspective on areas of potential CFPB regulatory action including overdraft and other fees labeled “junk fees” by the CFPB, earned wage access programs, buy-now-pay later products, income share agreements, the use of artificial intelligence in underwriting and collections, fraud in peer-to-peer payment services, the use of unfairness to challenge non-credit discrimination, and mandatory arbitration.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation.

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The CFPB recently announced that it is updating its exam manual to direct its examiners to consider discriminatory conduct an “unfair” act or practice represents a significant expansion of its UDAAP authority. We discuss: the CFPB’s legal theory; types of products/services/bases for discrimination the CFPB could reach using unfairness and role of disparate impact analysis; what manual updates tell examiners to ask about and look at; implications for entities the CFPB does not supervise or have jurisdiction over; likely legal challenges to the Bureau’s theory; and how companies can prepare.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation, joined by John Culhane and Ron Vaske, partners in the firm’s Consumer Financial Services Group, and Heather Klein, Of Counsel in the Group.

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Our special guests are the authors of a 259-page study, “Reboot Required: The Civil Justice System Has Crashed,” which makes the case that the civil justice system has been corrupted by corporations and no longer protects average Americans from corporate abuse. The study is accompanied by a draft model law intended to create new rights and protections for consumers. The authors explain the basis for their view that fundamental change is needed, including the elimination of a company’s ability to assert a “duty to read” defense or use mandatory arbitration provisions in consumer contracts. They also discuss their plans for promoting the model law.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation.

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Professor Peterson, who served at the CFPB under former Director Cordray, shares his perspective on the CFPB’s publicly-announced enforcement activities and initiatives under Director Chopra and what they might signal for future enforcement and supervisory activities. The matters discussed include the UDAAP implications of the CFPB’s focus on pricing in its enforcement action against JPay, the CFPB’s use of UDAAP to challenge discrimination not involving credit, and the CFPB’s junk fees initiative and approach to technology. We also discuss the current status of federal and state rate cap legislation and “true lender” challenges to bank/nonbank partnerships.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation.

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Although the decision narrowed the technology covered by the TCPA’s automatic telephone dialing system definition, the TCPA continues to be very dangerous. We first discuss the plaintiff bar’s case strategy in response to the decision and the decision’s implications for defendants’ case strategy. We then look at the increasing volume of cases alleging violations of the TCPA provisions on calls using an artificial or prerecorded voice and do-not-call, identify the most significant remaining TCPA risks companies face, and offer thoughts on steps companies can take to reduce TCPA risk.

Dan McKenna, Co-Chair of Ballard Spahr’s Consumer Financial Services Group, moderates the conversation, joined by Matt Morr, a partner in the Group.

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We discuss how lead generation works, the roles of the various players in the lead generation marketplace, the key regulatory risks arising under the Fair Credit Reporting Act, Telephone Consumer Protection Act, and Telemarketing Sales Rule, FTC enforcement cases, and CFPB supervisory concerns. We also discuss the impact of the Real Estate Settlement Procedures Act’s referral fee prohibition and fair lending/fair housing laws on lead generation involving mortgage-related services and state licensing issues triggered by lead generation.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation joined by Matthew Morr, Richard Andreano, and John Socknat, partners in the firm’s Consumer Financial Services Group.

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The CFPB’s recently-issued request for information takes aim at what the CFPB labels “junk fees” charged by consumer financial services providers. We discuss the types of fees targeted in the RFI, particularly fees related to deposit accounts and mortgages, and the impact of existing regulatory requirements on the CFPB’s initiative. We also examine the CFPB’s authority to address so-called “junk fees,” consider possible short- and long-term actions the CFPB could take in response to the RFI, offer steps providers can take to prepare for greater scrutiny of ancillary fees and possible legal challenges, and describe the CFPB readiness reviews that Ballard Spahr attorneys are conducting to assist providers in assessing the permissibility and disclosure of fees charged in connection with their consumer products and services.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation, joined by John Culhane, Richard Andreano, and Ron Vaske, partners in the firm’s Consumer Financial Services Group.

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In addition to discussing what cryptocurrency is, we look at some of the regulatory rules that apply to this increasingly popular but complicated financial instrument, including registration and compliance program requirements, and consider how crypto exchanges, financial institutions, and other businesses should address crypto transactions involving unhosted digital wallets and requirements for the identification and reporting of counter-parties to transactions.

Mike Robotti, a partner in Ballard Spahr’s White Collar and Internal Investigations Group hosts the conversation, joined by Peter Hardy and Marjorie Peerce, partners in the Group.

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Prof. Glover is the author of the first major academic study of mass arbitration, which is soon to be published as a law review article. In Part II of this two-part podcast, we discuss the economics of mass arbitration, including the minimum claim amount necessary to make mass arbitration viable and how consumers’ recovery in arbitration compares with their recovery in class actions, the use of targeted advertising and other methods by plaintiffs’ attorneys to reach potential claimants, and changes companies might consider to their arbitration agreements to address the growing use of mass arbitration, such as changes addressing cost sharing and carve outs for claims eligible for adjudication in small claims court.

Ballard Spahr Senior Counsel Alan Kaplinsky hosts the conversation.

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Prof. Glover is the author of the first major academic study of mass arbitration, which is soon to be published as a law review article. In Part I of this two-part podcast, after reviewing the historical background of the Federal Arbitration Act, key SCOTUS arbitration decisions, and the evolution of mass arbitration, Prof. Glover discusses the findings of her case study, the legal viability of mass arbitration, investments being made by the plaintiffs’ bar in the use of mass arbitration, and the how arbitration administrators are responding to mass arbitration.

Ballard Spahr Senior Counsel Alan Kaplinsky hosts the conversation. 

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Profs. Zywicki and Miller have co-authored a soon-to-be published study, “The Effects on Consumers from Two State-Level Regulations of the Payday Loan Market,” in which they analyzed 15.6 million storefront payday loans made to 1.8 million unique borrowers in 2013 to determine whether the number of loans a consumer takes in a year is a meaningful assessment of consumer welfare. They explain how the results of their analysis demonstrates that the CFPB’s prohibition on more than six loans a year in its payday loan rule was arbitrary and did not represent a reasonable consumer protection policy. They also discuss their expectations for how the CFPB under Director Chopra is likely to approach payday and other small dollar loans and respond to criticism of their study by consumer advocates.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation.

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Rising interest rates and inflation are two key factors that are expected to create a more challenging business environment in 2022.  Based on his work at the intersection of technology and financial services, Todd shares his perspective on how this new environment is likely to impact providers of various types of consumer financial services, particularly non-bank fintech companies.  We also discuss the new environment’s likely impact on earned wage access products, income share agreements, and buy-now-pay-later products and expectations for regulatory scrutiny of those products. Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation.

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The topics discussed include the historic changes made by the AML Act at the beginning of 2021, including the Corporate Transparency Act (CTA); the proposed FinCEN rules to implement the CTA’s beneficial ownership reporting requirements; the CTA’s implications for financial institutions’ customer due diligence compliance obligations; FinCEN’s list of priorities for AML and countering the financing of terrorism; potential AML regulation of the real estate industry; and expectations for future BSA/AML regulation and enforcement concerning virtual currency and digital assets.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts a conversation with Peter Hardy, a partner in the firm.  A former federal prosecutor, Peter is a co-leader of the firm’s Anti-Money Laundering Team.

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In this wide-ranging conversation with two experienced reporters on the consumer finance industry, we discuss differences between the current CFPB and the Trump-era CFPB, including with regard to areas of regulatory and enforcement focus such as UDAAP, consumer access to financial information, small business issues, and fair lending. We also discuss the potential implications of the current CFPB’s interest in buy-now-pay-later and its inquiry into large technology companies that offer payment services. Other topics include the potential impact of the recent leadership turmoil at the FDIC and expectations for activity by state regulators and attorneys general.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation.

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We look at the legal considerations that should be addressed when developing subscriptions for consumer financial products and services. After reviewing the practices addressed by federal and state automatic renewal/subscription laws and the types of products and services covered by such laws, we discuss legal requirements for subscriptions and renewals such as up-front disclosures, notification obligations, and cancellation options, federal and state enforcement actions, and private litigation.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation joined by Kim Phan and Jason Cover, partners in the firm’s Consumer Financial Services Group, and Jill Dolan, an associate in the Group.

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Professor Zywicki shares his views on the current trend of denying access to financial services to politically-disfavored industries or based on political views, whether through the actions of banking regulators, most notably Operation Choke Point, or actions taken by banks on their own initiative. We discuss the appropriateness of possible responses to these tactics, such as the OCC’s final fair access rule that did not become effective due to the change in Administrations. Professor Zywicki, who chaired the CFPB’s Taskforce on Federal Consumer Financial Law, also shares his reaction to the settlement of the lawsuit challenging the Taskforce’s creation and its impact on the Taskforce’s recommendations in its report.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation.

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Having previously worked closely with CFPB Director Chopra while he served as the CFPB's Acting Director and its first Deputy Director, Mr. Date provides a unique perspective on Director Chopra’s views and likely actions as CFPB Director. We discuss how the CFPB is likely to approach key areas under Mr. Chopra’s leadership, including fair lending and digital redlining, technology/fintech, and mortgage lending and servicing. We also discuss whether Director Chopra will revisit CFPB rulemaking for small-dollar lending, debt collection, or arbitration.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation joined by Chris Willis, Co-Chair of the firm’s Consumer Financial Services Group, James Kim, a partner in the Group and co-leader of the firm’s Fintech and Payments Team, and Richard Andreano, co-leader of the firm’s Mortgage Banking Group.

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The FTC’s recently updated rule implementing GLB standards for safeguarding customer information replaces the flexibility previously given to financial institutions in developing an information security program with new prescriptive requirements. Our discussion topics include what these new requirements mean for specific aspects of such programs, assigning employee responsibility, conducting risk assessments, installing access controls, using encryption, and who is covered by the rule. We also offer suggestions for what issues financial institutions should consider in preparing to implement the new requirements and our expectations for enforcement.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation, joined by Kim Phan, a partner in the firm’s Consumer Financial Services Group, and Doris Yuen, an associate in the Group.

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We discuss the new notification requirements that the final rule places on both U.S. banking organizations and bank service providers relating to ransomware and similar computer security incidents, including the mandated timing for providing notice, and how the final rule differs from the agencies’ proposal.  We also look at the compliance challenges presented by the final rule and offer suggestions for covered entities to consider in preparing for compliance with the new requirements.

Chris Willis, Co-Chair of Ballard Spahr’s Consumer Financial Services Group, hosts the conversation, joined by Kim Phan and Phil Yannella, partners in the firm’s Privacy and Data Security Group.

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Joined by two CBA representatives who previously served at the CFPB, we discuss the key arguments advanced in the white paper for why rulemaking and informal written guidance are more effective tools than enforcement for the Bureau to use to create new standards and expectations for industry and to carry out its consumer protection mission. We also discuss how CBA plans to use the white paper to address industry concerns that may arise from the CFPB’s expected strong reliance on its enforcement authority under its current leadership.

Chris Willis, Co-Chair of Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

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After reviewing federal regulators’ traditional theory of redlining, we discuss the types of underwriting practices that are likely targeted by Director Chopra’s recent comments expressing concern about “algorithmic redlining”, examine how the use of machine learning (ML) underwriting models incorporating alternative data can be more inclusive than traditional logistic regression models and result in more approvals for protected class members and “credit invisibles”, and offer our thoughts on actions that technology and credit providers should take in response to Director Chopra’s comments when developing and using ML models.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation, joined by Chris Willis, Co-Chair of the firm’s Consumer Financial Services Group.

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Targeted advertising has become an important marketing tool for many providers of consumer financial services. After discussing the primary screening methods offered to providers for identifying consumers to receive their advertising, we look at claims made in private lawsuits involving the intersection of targeted marketing and anti-discrimination laws and how the courts have responded to such claims, the status of regulatory activity, whether advertisers using targeted marketing are vulnerable to redlining claims, and issues for providers to consider before engaging in targeted marketing.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation, joined by Chris Willis, Co-Chair of the firm’s Consumer Financial Services Group.

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In Part II of this two-part podcast, we continue our examination of the CFPB’s proposed rule implementing Sec. 1071 of the Dodd-Frank Act which would impose significant new data collection and reporting requirements on lenders in connection with credit applications made by small businesses, including women- or minority-owned small businesses. We discuss the “firewall provision” restricting employee access to data, the proposal’s intersection with HMDA reporting requirements, the likely timeline for issuance of a final rule and compliance deadlines, the outlook for CFPB supervision and enforcement of the final rule, operational considerations in preparing for implementation, and fair lending risk management implications and mitigants.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation, joined by John Culhane, a partner in the firm’s Consumer Financial Services Group, Lori Sommerfield, Of Counsel in the Group, Heather Klein, an associate in the Group, and Richard Andreano, a partner in the firm’s Mortgage Banking Group.

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In Part I of this two-part podcast, we examine the CFPB’s proposed rule implementing Sec. 1071 of the Dodd-Frank Act which would impose significant new data collection and reporting requirements on lenders in connection with credit applications made by women- or minority-owned small businesses. After reviewing the history of Sec. 1071 rulemaking (including the lawsuit that prompted the CFPB to act under a court-imposed deadline), we discuss the proposal’s key definitions and data collection requirements (including timing and related procedures and reuse of previously collected data).

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation, joined by John Culhane, a partner in the firm’s Consumer Financial Services Group, Lori Sommerfield, Of Counsel in the Group, and Heather Klein, an associate in the Group.

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CFPB enforcement activity has already ramped up and the pace is expected to increase with Director Chopra now at the helm. We look at the areas expected to be the focus of intensified enforcement activity, such as military lending, fair lending, and treatment of LEP consumers, and new areas under consideration by CFPB enforcement staff, such as machine learning models, use of alternative data, and fair lending related to servicing and loss mitigation (particularly in light of the end of pandemic-related forbearances). Other issues discussed include the CFPB’s use of aiding and abetting liability to reach service providers and the implications of a recent 7th Circuit decision on judicial relief available to the CFPB.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation, joined by Chris Willis, Co-Chair of Ballard Spahr’s Consumer Financial Services Group, James Kim, a partner in the Group, Sarah Reise, Of Counsel in the Group, and Sarah Pruett, an associate in the Group.

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We discuss recent developments concerning fair lending and ancillary products, including the potential industry-wide implications of recent New York and Massachusetts consent orders and our expectations for future CFPB scrutiny in these areas.  We also discuss the CFPB’s recent report that looks at whether the variation in interest rates among subprime auto loans can be explained by differences in borrower creditworthiness and share our thoughts on how the report’s finding are likely to impact future CFPB activity.

Chris Willis, Co-Chair of Ballard Spahr’s Consumer Financial Services Group hosts the conversation, joined by Stefanie Jackman, a partner in the Group.

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We look at the issues creditors and debt collectors should be considering in preparation for the surge in delinquencies that is expected to occur once consumers are required to fully resume making payments that had been suspended or reduced during the pandemic, including: operational and compliance considerations arising from increased delinquencies, likely sources of regulatory scrutiny, and potential compliance issues that could cause a regulator to initiate enforcement.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation, joined by Chris Willis, Co-Chair of Ballard Spahr’s Consumer Financial Services Group.

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Despite having been a target for over a decade, bank overdraft practices still remain a focus of regulators and plaintiffs’ class action attorneys. We discuss federal and state legislative, regulatory, and enforcement developments; theories currently used by plaintiffs’ attorneys to challenge overdraft practices, including retry payment claims; litigation involving alleged Regulation E violations; and the use of arbitration provisions to help avoid class action exposure.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation, joined by Marty Bryce and Mark Levin, partners in the firm’s Consumer Financial Services Group, and Amy Schwartz, Of Counsel and Co-Leader of the firm’s Retail Customer Litigation Team.

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Marketing by nonbanks of products and services offered with bank partners is coming under increasing scrutiny that focuses on the potential for consumers to be led to believe that the nonbank is a bank, or is FDIC insured. We discuss recent state and federal regulatory and enforcement developments, including the FDIC’s proposed rule addressing false advertising, misuse of the FDIC logo, and misrepresentation of insured status, and state regulators’ and federal lawmakers’ interest in the issue, and offer takeaways for banks and nonbank partners on what these developments mean for their marketing efforts.

Chris Willis, Co-Chair of Ballard Spahr’s Consumer Financial Services Group, hosts the conversation, joined by Mindy Harris, Of Counsel in the Group.

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We discuss recent and ongoing enforcement activity of the PA AG involving consumer financial services. Our conversation focuses on activity directed at: Auto title lenders for alleged violations of PA usury law; national banks for alleged CARD Act violations; furniture retailers for alleged “hang tag” law violations; home sellers for alleged violations of mortgage laws arising from the use of contracts for deed; and phone scams.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation.

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The OCC’s true lender rule was intended to create a bright line test for when a national bank or federal savings association should be considered the “true lender” in the context of third party partnerships but Congress overturned the rule. After reviewing the relevant background, we examine the Congressional override’s implications for future federal true lender rulemaking and its impact on existing law, key federal and state court challenges and decisions, state legislative and administrative developments, and risk mitigants for bank/nonbank partnerships, including potential loan program structures.

Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conversation, joined by Jeremy Rosenblum and Ron Vaske, partners in the firm’s Consumer Financial Services Group, and Mindy Harris, Of Counsel in the Group.

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We discuss a range of practical issues related to the rule’s rapidly-approaching effective date, including: the prospects for further CFPB rulemaking or guidance; the aspects of the rule that should be prioritized by third-party collectors and debt buyers; the rule’s impact on creditors (for internal collections and third-party collector/debt buyer oversight), state law considerations, and steps being taken to mitigate risk; and greatest risks for third-party collectors and creditors once the rule is effective.

Chris Willis, Co-Chair of Ballard Spahr’s Consumer Financial Services Group, hosts the conversation, joined by Stefanie Jackman and John Culhane, partners in the Group.

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This episode covers upcoming changes to the NACHA Operating Rules as part of the Meaningful Modernization rule which takes effect September 17, 2021. We discuss the payments environment leading to the changes, new disclosures for consumer ACH authorizations, use cases and requirements for Standing Authorizations and changes for Oral Authorizations. We also touch on the amendments related to proofs of authorization and Written Statements for Unauthorized Debits.

Ballard Spahr Senior Counsel Alan Kaplinsky hosts the conversation, joined by Jennifer Aguilar, an associate in the firm’s Consumer Financial Services Group.

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We discuss: the compliance challenges that could give rise to enforcement actions against PPP lenders and current and potential future investigatory activity; fair lending guidance for PPP lenders, key fair lending risks, and steps to mitigate fair lending risk; the status of examinations and reviews related to PPP loans; sources of compliance risk for PPP lenders; and suggested best practices for risk mitigation.

Ballard Spahr Senior Counsel Alan Kaplinsky hosts the conversation, joined by Lori Sommerfield, Of Counsel in the firm’s Consumer Financial Services Group, and Terence Grugan, a partner in the firm’s White Collar Defense/Internal Investigations and Securities Enforcement/Corporate Governance Litigation Groups.

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We look at the practices found to be unlawful by CFPB examiners in these markets, discuss what the findings signal for future scrutiny of these markets by the “new CFPB”, and share practical takeaways for companies operating in these markets. Issues highlighted in our conversation include the CFPB’s findings regarding “unreliable furnishers,” furnisher handling of “frivolous or irrelevant” disputes, interest accrual on debts in collection, and mortgage servicer consideration of private mortgage insurance termination dates when estimating disbursements in an annual escrow analysis.

Ballard Spahr Senior Counsel Alan Kaplinsky hosts the conversation, joined by Chris Willis, Co-Chair of the firm’s Consumer Financial Services Group, and Reid Herlihy, a partner in the firm’s Mortgage Banking Group.

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We look at the practices found to be unlawful by CFPB examiners. In addition to “as low as” rate advertising by providers of private student loans that did not disclose rates were dependent on borrower creditworthiness, we discuss servicer practices involving: providing inaccurate information about eligibility for the Public Service Loan Forgiveness program, automatic placement in a natural disaster forbearance, failing to waive or refund overcharges imposed after servicing transfers of loans owed by borrowers enrolled in income-based repayment plans, and failing to honor borrowers’ standing instructions on payment allocation.

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We discuss the practices found to be unlawful by CFPB examiners in the areas of deposits, auto servicing and payday lending, identify practical takeaways for avoiding criticism by the “new CFPB,” and share our thoughts on what the findings signal for future scrutiny in these areas by the “new CFPB.”

Ballard Spahr Senior Counsel Alan Kaplinsky hosts the conversation, joined by Chris Willis, Co-Chair of the firm’s Consumer Financial Services Group, and Jason Cover, a partner in the Group.

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After reviewing the facts and holding in Ramirez, we discuss how the decision clarifies the concrete harm requirement established by SCOTUS’s Spokeo decision, Ramirez’s implications for class action and individual lawsuits alleging violations of federal consumer financial protection laws, and the potential impact on state court litigation.

Chris Willis, Co-Chair of Ballard Spahr’s Consumer Financial Services Group, hosts the conversation, joined by Dan McKenna, Practice Group Leader of the firm’s Consumer Financial Services Litigation Group.

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Tom Vartanian is a former federal banking regulator and law professor. In Part II of this two-part podcast, we discuss technology’s impact on the banking system, how a new cyberspace infrastructure can increase security, the current financial conditions that could spark the next financial crisis, cryptocurrency’s role in building new networks for the creation and delivery of financial services, and quantum computing’s impact on encryption.

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Tom Vartanian is a former federal banking regulator and law professor. In Part I of this two-part podcast, we discuss the government policies that have contributed to or caused the financial crises faced by the U.S. over the past 200 years, how the consumer financial services industry can benefit from smarter regulation and a principles-based rather than a rules-based regulatory system, and how regulators can better utilize technological innovation. Tom also shares his thoughts on the multiplicity of federal regulators and the dual banking system.

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After discussing the current state of the regulators’ knowledge about artificial intelligence and machine learning (ML) in underwriting models, we examine the regulators’ key areas of focus for ML models (explainability/accuracy in adverse action notices, potential hidden bias, testing for disparate impact), discuss how to test for and counteract disparate impact and how to search for less discriminatory alternatives in ML model development, and consider regulators’ possible next steps.

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In AMG, SCOTUS ruled that Sec. 13(b) of the FTC Act does not give the FTC authority to seek equitable monetary relief (e.g. restitution or disgorgement). After reviewing AMG’s history and SCOTUS’s analysis, we discuss the reasons for the FTC’s infrequent use of administrative hearings, AMG’s implications for pending and settled cases, the FTC’s current authority to seek civil money penalties, efforts to amend the FTC Act, and the FTC’s approach to new cases, including potential partnering with state AGs, the CFPB, and plaintiff’s attorneys. Ballard Spahr Senior Counsel Alan Kaplinsky hosts the conversation.

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After reviewing a brief history of the ADA and the U.S. Department of Justice’s (DOJ) interpretation that Title III’s public accommodation accessibility requirements apply to websites, we look at DOJ’s approach to enforcing the ADA during the Biden Administration. We also review recent ADA litigation trends, the 11th Circuit’s landmark Winn-Dixie decision and its likely impact on future ADA litigation, how businesses are approaching ADA compliance in the absence of clear DOJ guidance setting a technical accessibility standard, and the prospects for federal legislation that would create a safe harbor from litigation. We also share our thoughts on best practices businesses can implement to avoid ADA liability.

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Mr. Dougherty recently authored an article calling for the OCC’s abolishment and merger into the Federal Deposit Insurance Corp.  After reviewing the history of the creation of the OCC and Federal Reserve Banks, we examine and debate Mr. Dougherty’s arguments in support of his position.  We also discuss and respond to Mr. Dougherty’s criticism of the OCC’s “true lender,” Community Reinvestment Act, and fair access rules.

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After reviewing how blockchain technology operates and the pandemic’s impact on its use, we discuss the technology’s main benefits and regulatory risks; its use in digital identity, anti-money laundering compliance, preventing wire transfer fraud, peer-to-peer lending, and decentralized finance; the role of “smart contracts” in consumer finance; how various companies are using the technology; and the technology’s link to cryptocurrency protocols.

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We take a close look at the CDIA code options available for direct and indirect consumer disputes, their relationship to FCRA compliance, CFPB scrutiny of code use in FCRA compliance exams of furnishers, and court decisions involving alleged improper coding of disputed accounts. We also share our thoughts on best practices for furnishers in coding disputed accounts. 

Chris Willis, Co-Chair of Ballard Spahr’s Consumer Financial Services Practice Group, hosts the conversation, with Stefanie Jackman and Joel Tasca, partners in the firm’s Consumer Financial Services Litigation Group.

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With the U.S. Treasury Department now completing the process of issuing the third round of EIPs, financial institutions must navigate a maze of federal and state garnishment protections. After looking at the protection provided by the three federal pandemic relief laws, we discuss the actions states have taken to protect EIPs and offer our thoughts on the approach banks should take when responding to garnishment orders and analyzing the impact of state laws, executive orders, guidance, and directives.

Ballard Spahr Senior Counsel Alan Kaplinsky hosts the conversation joined by Lori Sommerfield, Of Counsel in the firm’s Consumer Financial Services Group.

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After reviewing the existing types of federal student loans and forgiveness programs, we discuss the current political debate over forgiveness, including the Education Dept.’s upcoming analysis of the President’s forgiveness authority and other analyses of such authority, potential legal sources of such authority, and how courts might respond to challenges to any Presidential action to forgive federal student loans.

Ballard Spahr Senior Counsel Alan Kaplinsky hosts the conversation joined by Tom Burke, a partner in the firm’s Consumer Financial Services Litigation Group.

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The ruling that a debt collector’s transmittal of debt information to its letter vendor could violate the FDCPA’s limits on third party communications has produced shock waves. After reviewing the court’s FDCPA analysis, we discuss the decision’s potential application to a range of third party service providers and to first-party creditors and the prospects for rehearing or SCOTUS review. We also share our thoughts on possible industry strategies for responding to the decision and look at the court’s analysis finding that the plaintiff had standing to bring his FDCPA claim.

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After discussing the pandemic’s impact on the DFPI’s activities, Commissioner Alvarez discusses the DFPI’s focus on diversity and inclusion, its creation of a new registration system for financial services companies, and its approach to enforcement priorities. The Commissioner also spoke to the impact of a Biden Administration, including possible areas of collaboration with the CFPB, and the role of its new Office of Financial Technology Innovation.

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After looking at CSBS’s role in the system of state financial supervision, we discuss its initiatives to coordinate state licensing and supervision of multi-state non-bank companies, such as by implementing a “one company-one exam” approach and multi-state licensing program, its work on a model law for money services businesses, why CSBS opposes an OCC fintech charter for non-depository companies, and its position on the OCC/FDIC “Madden-fix” rules and OCC “true lender” rule.

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Mr. Hunt shares his perspective on a range of issues, including how Rohit Chopra, CFPB Director-nominee, is likely to approach his new role, the CFPB’s likely approach to innovation and overdraft rulemaking under Mr. Chopra’s leadership, how banks are engaging with data aggregators, the OCC’s role and expectations for a new Comptroller, the status of Community Reinvestment Act rulemaking, and the potential for legislative changes.

Ballard Spahr Senior Counsel Alan Kaplinsky hosts the conversation.

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After looking at how the decision narrows the technology covered by the Telephone Consumer Protection Act’s automatic telephone dialing system definition, we discuss its implications for TCPA litigation going forward, including do-not-call and prerecorded call claims and the intersection with debt collection claims, and for regulatory compliance when making calls for telemarketing or lead generation, as well as possible Congressional responses to the decision.

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After reviewing the legal developments leading to this surging litigation phenomenon and describing its use by plaintiffs’ attorneys, we discuss the courts’ position on mass arbitration, short-and long-term strategies for companies to consider in addressing the risks of mass arbitration demands, including revisions to arbitration agreements, changes to AAA’s fee schedule, and policy implications.

Ballard Spahr Senior Counsel Alan Kaplinsky hosts the conversation joined by Mark Levin, Senior Counsel in the firm’s Consumer Financial Services Litigation Group.

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NACA is one of the plaintiffs in the Massachusetts lawsuit challenging the CFPB’s creation of its Taskforce on Federal Consumer Financial Law. Mr. Rheingold discusses the legal basis for the lawsuit, NACA’s views on how the CFPB should approach modernization of federal consumer financial laws, and NACA’s support for federal legislation or new CFPB rulemaking restricting mandatory arbitration.

Ballard Spahr Senior Counsel Alan Kaplinsky hosts the conversation.

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After examining why TCPA cases alleging autodialer claims have fallen into disfavor with plaintiffs’ attorneys, we discuss the increasing volume of TCPA cases involving do-not-call (DNC) claims. Topics include how the DNC registries operate, coverage of the TCPA DNC prohibitions, elements of a DNC claim, exceptions and defenses, penalties and other available relief, and arguments available to defendants for defeating DNC class actions.

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We are joined by Ena Koukourinis, Senior Counsel in the Bureau’s Office of Fair Lending and Equal Opportunity, and Frank Vespa-Papaleo, the Office’s Deputy Director. We discuss the statement’s background and goals, the fair lending and UDAAP concerns the statement seeks to address, key aspects of the guidance it provides, and Bureau resources available to industry concerning LEP consumers. 

Chris Willis, Co-Chair of Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

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We first review recent studies finding racial disparities in connection with consumer complaints and look at the methodology used for those studies and its limitations. We then discuss how the CFPB uses complaint data, the risks faced by companies that are the subject of complaints, and the key components of an effective complaint management system that companies should have in place.

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In Part II of our two-part podcast, we discuss how we expect Rohit Chopra, if confirmed by the Senate, to approach his new role as CFPB Director.  We look at the possible implications of positions taken by Mr. Chopra as FTC Commissioner for how he will use the CFPB’s statutory authorities, his likely approach to student lending based on his tenure as CFPB Student Loan Ombudsman, and how his approach to enforcement is likely to differ from that of former Director Kraninger.

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In Part I of our two-part podcast, we are joined by special guest former CFPB Director Richard Cordray. After discussing the process of transitioning to new leadership, Mr. Cordray shares his thoughts on how Mr. Uejio and, if confirmed by the Senate, Mr. Chopra, are likely to approach their new leadership roles at the CFPB and their expected priorities.

Ballard Spahr attorney Alan Kaplinsky hosts the conversation.

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Unless vetoed by Governor Pritzker, SB 1792 will soon become law and overhaul the state’s consumer finance laws.  After discussing the lenders and loans covered by the 36% APR cap, the types of charges included in the cap, and the penalties for violations, we look at what SB 1792 means for loans made via a bank partnership model, including when an agent or service provider would be considered the lender and the interaction with federal law.

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After discussing the pandemic’s impact on 2020 litigation, we share our expectations for 2021, including pandemic-related and other types of claims most likely to be alleged in private litigation and enforcement actions, how litigation could be impacted by possible legislative changes, and the potential implications of a more aggressive CFPB for case resolution. We also discuss two federal appellate decisions of significance to class action defendants.

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In Part II of our two-part podcast, we look at the recommendations in the Taskforce’s report concerning the use of principles-based (rather than prescriptive) regulations and CFPB licensing of non-depository institutions providing lending, money transmission or payment services. We share our reactions to the recommendations, consider their practical implications for the industry, and discuss how the CFPB under new leadership may react to the Taskforce’s report.

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In Part I of our two-part podcast, after discussing the Taskforce’s goals and background, we look at the recommendations in the Taskforce’s report concerning artificial intelligence, limited English proficiency consumers, and fair lending, share our reactions to the recommendations, and consider the recommendations’ practical implications for the consumer finance industry.

Ballard Spahr attorney Alan Kaplinsky hosts the conversation with Prof. Zywicki and Chris Willis, Co-Chair of Ballard Spahr’s Consumer Financial Services Practices Group.

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After reviewing what EWA is and the different models used for EWA programs, we discuss federal and state regulatory issues raised by such programs, the CFPB’s advisory opinion on such programs and the questions it raises, how a change in CFPB leadership under the Biden Administration could impact such programs, and the future of such programs. Ballard Spahr attorney Alan Kaplinsky hosts with Mr. Silverman and James Kim, co-leader of the firm’s Fintech and Payments Team.

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After reviewing the proposal’s statutory basis, coverage, and operative requirements, Mr. Court explains the basis for BPI’s position that the proposal is inconsistent with how banking is regularly conducted and will undermine rather than promote safety and soundness, provides examples of how the proposal would impose unworkable requirements, and discusses BPI’s Freedom of Information Act request to the OCC for data supporting its assertions about banks in the proposal.

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Kate joined American Banker in 2006 and has covered the CFPB since 2016. Kate shares her perspective on the controversy over Leandra English’s appointment as Acting Director, Director Kraninger’s approach to her leadership role, the Seila Law decision’s impact, President-elect Biden’s possible candidates for CFPB Director, the fate of the CFPB’s small dollar loan rule, and likely areas of CFPB focus in 2021.

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After discussing what real-time payments are and how they differ from fast payments, we look at the benefits of RTPs and potential for fraud, issues arising from the Fed’s plans to launch a RTP service, the laws and rules applicable to RTPs and how they bear on loss allocation, the pandemic’s effect on RTPs, and our expectations for the use of RTPs and the impact on fast payments generally.

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After looking at the differing approaches of the former and current CFPB Directors to using the CFPB’s authorities, we look ahead to how the CFPB’s leadership is expected to change in a Biden Administration. Topics discussed include how the choice of a new Director will be made (including the impact of the Georgia Senate runoff elections), who can serve as Acting Director pending a new Director’s confirmation, and what approach a new Director will take to using the CFPB’s authorities and how it will differ most from the current Director’s approach.

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We are joined by Bret Ladine, the DFPI’s General Counsel. We discuss the DFPI’s plans for adding new staff, promoting innovation through the new Financial Technology Innovation Office, providing guidance on CFPL exemptions, and handling complaints. Other topics include the DFPI’s approach to its new authority regarding UDAAPs (which covers small business financing), registration of covered persons, and civil penalties.

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We take a close look at the role of the new Office of SEFL Policy & Strategy to be created by the plan and how the plan would change the CFPB’s current enforcement decision-making process. We also look at how the plan aligns with the approach of federal banking regulators, share our reactions to criticism of the plan by Democratic lawmakers and thoughts on the new Office’s expected leadership, and discuss the Presidential election’s potential impact.

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Our discussion looks at the CFPB’s rulemaking activities before issuing its Advance Notice of Proposed Rulemaking (ANPR), the ANPR’s focus points, and differences from the California Consumer Privacy Act. Other topics include the role of data aggregators and how banks are responding to them, technical and other issues arising from third party access to consumer data, and the application of the FCRA and other federal consumer financial protection laws to data aggregators.

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Special guest Isaac Boltansky, Director of Policy Research at Compass Point Research & Trading, joins for a discussion of the potential implications for the consumer financial services industry should Joe Biden win the Presidency and Democrats win control of the Senate while retaining control of the House. Topics include how a blue wave could impact the regulatory agendas of federal and state agencies and the legislative agenda of the next Congress and what risks those agendas could create for the industry.

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After reviewing the legal foundation for federal preemption of state law limits on interest, we discuss the OCC’s proposed approach for determining when a bank is the “true lender” in programs with non-bank agents, our arguments in support of the proposal made in our comment letter to the OCC, key arguments made in support of or against the proposal by other commenters, the OCC’s likely next steps, and the 2020 election’s potential impact.

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Topics discussed include: CFPB plans to conduct a new study on credit reporting accuracy; FTC efforts to address unlawful practices by credit repair companies and abuse of identity theft reports; FTC focus on FCRA Red Flags Rule enforcement and how companies can avoid FTC scrutiny; considerations for companies in approaching CARES Act compliance through suppression or reporting accounts in accommodation; and assessment of rationales for creating a public credit bureau.

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We review the following and discuss compliance implications: FCRA violations based on obtaining credit reports without a permissible purpose, incorrectly reporting the date of first delinquency, failing to conduct reasonable dispute investigations; Reg. E violations based on waivers of consumers’ dispute rights, use of incorrect date to determine timeliness of error notices, providing inadequate notices of error investigation results; and Reg. DD violations based on failing to provide advertised bonuses.

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We review the CFPB’s findings that lenders engaged in deceptive practices and violated Reg. Z advertising rules based on the following conduct and discuss compliance implications: false representations about consumers’ ability to apply for loans online and the absence of credit checks; false threats of liens, asset seizures and late fees in collection letters; and advertising “free loans” without including additional information required when using a “triggering term” or where loan was free only if prepaid.

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Mortgage origination and servicing continue to be a supervisory focus. We review the CFPB’s findings in the following areas and discuss compliance implications: redlining based on nonbank lenders’ advertising practices, improper consideration of applicants’ public assistance income in determining eligibility for mortgage modifications, and servicing requirement violations relating to providing periodic statements to consumers in bankruptcy, force-placed insurance, escrow accounts, and servicing transfers.

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Topics include how banking regulators and FinCEN will approach the decision whether to bring an enforcement action (including what BSA/AML program failures typically would (or would not) result in cease and desist orders), how the regulators’ statement differs from 2007 guidance, how the statements relate to recent updates to the BSA/AML examination manual, suggested practices for reducing compliance risk for institutions and individuals, and the Presidential election’s potential impact on enforcement.

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We are joined by Prentiss Cox, a University of Minnesota Law School Professor formerly of the MN AG’s office and the CFPB’s Consumer Advisory Board. After discussing whether the CFPB’s structure should change in the wake of SCOTUS’s Seila Law decision, we look at the different approaches of the CFPB’s past and current leadership to the use of its authorities, the merits and drawbacks of such approaches, and the skill sets of possible candidates to serve as the next Director in a Biden Administration.

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We are joined by Kelly Cochran, Deputy Director of FinRegLab, a non-profit focused on the use of data and technology in financial services. We examine credit reporting, credit scoring, and underwriting issues arising from COVID-19 and CARES Act requirements, including use of comment codes by furnishers, treatment of forbearance-related information by creditors, and that are likely to arise in the transition from short-term forbearances to long-term arrangements.

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After reviewing how the CFPB has changed since 2017 (and dispel some misconceptions), we share our expectations if Joe Biden becomes President. Topics discussed include the CFPB’s approach to enforcement and supervision (including possible new larger participant rules), the fate of the payday loan rule and ongoing rulemakings, possible candidates to serve as new Director, the CFPB’s position on new technologies, and lawmakers’ views on changing the CFPB’s leadership structure.

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After a recap of industry’s successful history in defeating challenges to the use of arbitration agreements to limit class action exposure, we discuss the threat of public injunctive relief claims to the use of arbitration resulting from recent CA and 9th Cir. decisions, efforts to distinguish such claims from claims for other relief, drafting strategies to address the decisions, the decisions’ potential impact outside CA, and mass arbitrations and response strategies.

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After we recap the 2017 final rule and its implications for industry, we discuss the CFPB’s actions to eliminate its ability-to-repay provisions but keep its payment provisions, possible use of the Congressional Review Act to restore the entire 2017 rule, status of the Texas litigation challenging the 2017 rule, potential impact of the 2020 presidential election, and our thoughts on preparing for the advent of the payment provisions.

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Acting Comptroller Brooks recently revealed the OCC’s plans to create a national payments charter for payment processing companies. After discussing the new charter’s intended purpose and benefits, we look at the OCC’s planned two-phase roll-out, how a payments charter would differ from the OCC’s fintech charter, other charter options for non-bank payment processors, and possible legal challenges.

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Recent amendments to NYC’s debt collection rules impose new requirements relating to consumers’ language proficiency.  Following an overview, we take a close look at the specific requirements and their applicability to first- and third-party collections, discuss the DCA’s authority, availability of federal preemption, and compliance challenges, and offer thoughts on best compliance practices.

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After reviewing the legal foundation for federal preemption of state law limits on interest, we discuss the final OCC/FDIC “Madden fix” rules, the “true lender” issue, potential Congressional or litigation challenges to OCC/FDIC “Madden fix” and “true lender” rules, and recent developments in litigation involving Madden or “true lender” challenges to bank/nonbank partnerships and securitizations.

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The topics we discuss are: implications of the SCOTUS Seila Law decision on CFPB rules, past consent orders, ongoing enforcement, and the Texas lawsuit challenging the CFPB payday loan rule; DOJ/FTC auto dealer fair lending actions, status of disparate impact, and Google targeted advertising changes; the CFPB’s new advisory opinion program; timing of CFPB debt collection final rule; and OCC/FDIC final rules to undo Madden and plans to address “true lender.”

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We are joined by Deepak Gupta, a renowned consumer advocate who has argued multiple cases before the Supreme Court. After reviewing the history of the controversy over the CFPB’s constitutionality, our discussion focuses on the decision’s potential impact on past, ongoing, and future CFPB rulemaking and enforcement activities, including what steps the CFPB may take to preserve or reverse its pre-Seila Law actions, and the decision’s potential significance for other agencies.

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The recent announcement by a consumer lender in an SEC filing that it had earmarked $21.7 million to resolve an SEC probe into its FCPA compliance could signal new interest by regulators in enforcing the FCPA against consumer financial services providers with operations outside of the U.S. In this podcast, we review what practices are prohibited by the FCPA, which regulators enforce the FCPA, how the FCPA can be enforced and penalties for non-compliance, and tips for avoiding FCPA liability.

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The issue of whether a consumer can unilaterally revoke consent to receive automated remains a significant concern for industry. We look at how the FCC and courts have approached the issue and discuss recent significant decisions from federal appeals courts holding that the TCPA does not allow a consumer to unilaterally revoke consent when it is given as part of a bargained-for exchange.

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In Part II of our podcast, we discuss the following with Andrew Smith, Director of the FTC’s Bureau of Consumer Protection, and Malini Mithal, Associate Director of the FTC’s Division of Financial Practices: recent FTC enforcement and regulatory activity in the areas of data security, privacy, lead generation, and payments; highlights of the FTC’s workshop on credit reporting accuracy; status of litigation challenging the FTC’s restitution authority; and coordination with CFPB and state attorneys general.

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In Part I of our two-part podcast, we discuss the following topics with Andrew Smith, Director of the FTC’s Bureau of Consumer Protection, and Malini Mithal, Associate Director of the FTC’s Division of Financial Practices: the FTC’s response to COVID-19, important recent FTC enforcement actions and priorities going forward, Director Smith’s recent blog post on using artificial intelligence and algorithms, and recent FTC activity involving fintech and small business lending.

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We explore a wide range of topics with AG Weiser including: who are his key staff members and their backgrounds; his office’s actions in response to COVID-19; recent changes to the CO Consumer Protection Act; and his office’s activities concerning student loans, robocalls, payday lending, and data privacy and security and its approach to consumer complaints.

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We look at why compliance with the compensation provisions remains a high risk area for the mortgage industry. Discussion topics include how the Bureau identifies violations, litigation and enforcement liability, secondary market considerations, the Bureau’s increasing enforcement activity, and the areas likely to be revisited by the Bureau in proposed revisions to the compensation provisions.

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We look at the impact of federal and state law including relevant CARES Act provisions, state garnishment directives, and federal preemption, identify issues banks should consider in handling garnishments or exercising setoff rights, and offer suggestions for mitigation measures banks can take as they decide how to address the challenges in this area.

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We are joined by Kenneth Thomas, who is widely-viewed as the nation’s leading CRA expert and has advised federal regulators on CRA reform. After reviewing CRA’s origins and previous reforms, Ken shares his views on the current OCC/FDIC proposed changes, including why reform is a White House priority, differences in perspectives among CRA regulators, the proposal’s deposit-based approach to assessment areas and performance standards for larger banks, using a phased-in approach to reform, and the Presidential election’s impact on reform.

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Increasing regulatory, competitive and economic challenges are causing a new focus on credit cards by medium and smaller-sized financial institutions. We are joined by Robert Curry, Managing Partner and Chief Business Officer of Bassett Capital Group, LLC, an expert on credit card portfolio management, acquisition and divestiture, for a discussion of the types of business structures available to institutions seeking to offer credit cards for the first time and the associated contractual, compliance and implementation issues. We also examine issues that institutions now offering credit cards should consider in deciding how to operationally move forward during an economic downturn and heightened competition.

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After looking at how the 2008 financial crisis and its aftermath might inform regulators’ response to the pandemic, we discuss how collections, loss mitigation/hardship programs, and originations of existing products and new programs designed to assist pandemic-impacted consumers (including changes to credit risk/fraud models to address the pandemic’s effects) can create UDAP and fair lending risk.

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Our discussion examines a range of issues, including how the wording of the model forms could create consumer confusion, challenges in determining whether a debt is time-barred, and questions arising from use of a “know or reason to know” that a debt is time-barred standard to trigger disclosures. We also look at industry’s reaction and how the proposal’s finalization is likely to fit with the CFPB's issuance of a final larger debt collection rule.

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We are joined by Richard Cordray, former CFPB Director, and John Roddy, prominent plaintiffs’ class action lawyer, for a discussion of regulatory and litigation risks the crisis is expected to create for the consumer financial services industry. Topics include: industry practices that could trigger regulators’ scrutiny; operational areas impacted by working remotely that create compliance risks; fair lending issues arising from loan modifications/forbearances; state authority to change credit terms.

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We are joined by Nitin Shah of Democracy Forward, attorney for the plaintiffs in the lawsuit brought to compel the CFPB to issue rules implementing Sec. 1071 which requires financial institutions to collect and report race, ethnicity, and other data in connection with credit applications made by women-or minority-owned and small businesses. We discuss the lawsuit’s basis, the rulemaking deadlines in the settlement and expected rulemaking timeline, and substantive issues the rules are likely to address.

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In our examination of two recent OCC BSA/AML consent orders, one with a bank and another with an individual in-house professional, we review the OCC’s allegations underlying the orders and how the OCC focuses on the core pillars of BSA/AML compliance when choosing to pursue enforcement. We also discuss the takeaways for boards and management of financial institutions when accepting higher-risk customers, including digital currency exchanges, and what is the AML liability risk for individuals – including how such risk can be minimized, and the inherent tension between the interests of institutions and their executives and compliance officers. Finally, we discuss how the use of third-party consultants and advisors regarding AML compliance can be a double-edged sword for financial institutions and individuals facing downstream enforcement actions.

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We are joined by Richard Cordray whose book about his CFPB tenure, Watchdog, was recently-released. Among other topics, Mr. Cordray shares what he considers to be his key successes and disappointments as Director, describes his relationship with the Trump Administration, responds to criticism of his use of the CFPB’s enforcement authority, offers his prediction for how SCOTUS will rule in Seila Law, and discusses the abusiveness standard and creation of state mini-CFPBs.

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We discuss the modifications with Lauren Valenzuela, Corporate Counsel for Performant Financial, a provider of technology-based solutions to assist debt recovery. Our topics relevant to the debt industry include the potential impact for debt collectors/other service providers indirectly collecting consumer data; changes for processing household requests; availability of GLBA/other exemptions; issues for users of artificial intelligence; relationship of CCPA opt-outs and FDCPA C&D requests; areas needing more clarification.

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We look at the CFPB's key findings related to payday lending and mortgage servicing, discuss their implications for the CFPB's approach to supervision and enforcement, and share practical takeaways for lenders and servicers, including how the CFPB's findings related to loss mitigation requirements might be used by servicers to inform how they approach disruptions arising from the current coronavirus outbreak.

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The Act, which has been introduced in the House (H.R. 5050) and Senate (S. 2833), would impose a 36% national usury limit on most forms of consumer credit. Bill Himpler responds to claims that the rate limit will not reduce credit access for creditworthy consumers and discusses relevant studies, the bill’s status and political prospects, AFSA's efforts to educate lawmakers and their staff about consumer finance, and other current federal and state issues of concern to industry members.

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With oral argument just days away, we interview Prof. Morrison who filed an amicus brief urging SCOTUS not to decide whether Dodd-Frank’s limits on the President’s authority to remove the CFPB Director are constitutional and dismiss the case. We examine his arguments that Seila Law has no standing to challenge the limits' constitutionality and there is no longer a case or controversy that gives a federal court jurisdiction to hear the challenge.

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We look at key issues and provide practical pointers that sellers and buyers should consider, including (1) seller due diligence to prepare for a sale, such as identifying and creating relevant policies and procedures and reviewing documentation for debts to be sold, (2) important contractual issues for buyers and sellers when negotiating sales agreements, such as debt repurchase rights, resales and assignments, buyer responsibility for its providers’ activities, and seller post-sale obligations regarding buyer information requests, and (3) seller monitoring of such requests.

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The Act, which has been introduced in the House and Senate, would impose a 36% national usury limit on most forms of consumer credit. We are joined by the bill's drafter, Professor Chris Peterson of the University of Utah S.J. Quinney College of Law, for a discussion of the rationale for the cap, its potential impact on credit access, the implementation process if enacted, and the bill’s status and political prospects.

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After reviewing how the CFPB has used its abusiveness authority, we look at why such authority has created industry concern, consider implications of the CFPB's decision to forego rulemaking, discuss the policy statement’s three parts and likely practical impact on the CFPB's behavior and industry's assessment of risk, and examine continuing industry concerns about the Bureau's unfairness and deceptiveness authority.