Consumer Finance Monitor
The Consumer Financial Services industry is changing quickly. This weekly podcast from national law firm Ballard Spahr focuses on the consumer finance issues that matter most, from new product development and emerging technologies to regulatory compliance and enforcement and the ramifications of private litigation. Our legal team—recognized as one of the industry's finest— will help you make sense of breaking developments, avoid risk, and make the most of opportunity.
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Fair Lending Developments Under Trump 2.0 – Part 2
11/20/2025
Fair Lending Developments Under Trump 2.0 – Part 2
Today’s episode marks the second of a two-part series, with Part One having been released on November 13th. In this installment, we continue our conversation on the many changes in fair lending policy and enforcement under the second Trump administration. The discussion is moderated by Alan Kaplinsky, Senior Counsel, founder and former chair for 25 years of Ballard Spahr’s Consumer Financial Services Group, and features these distinguished experts in the field: Bradley Blower, Founder of Inclusive Partners LLC. John Culhane, Jr., Senior Partner and charter member of Ballard Spahr’s fair lending team. Richard Andreano, Jr., Practice Group Leader for Ballard Spahr’s Mortgage Banking Group and the head of Ballard Spahr’s fair lending team. In this week’s episode our expert panel unpacks the fast-changing landscape of fair lending in consumer finance. With candid discussion from leading attorneys and industry insiders, we cover how federal policy swings, especially between recent administrations, have left lenders and businesses searching for direction on compliance, risk management, and best practices. Hear insights on the evolving standards for disparate impact claims, the high stakes of Supreme Court challenges, and how regulatory shifts are changing the rules of the road for everyone. Learn why the future of lending is increasingly tied to artificial intelligence, what it means for fairness and oversight, and why receiving clear guidance is more vital than ever. Our hosts tackle the challenges posed by executive orders on ‘de-banking’ and fair access, ongoing delays and debates surrounding the small business lending data rule, and the persistent struggle to address appraisal bias. Find out how states are stepping up where federal agencies may leave gaps and get practical advice for keeping your compliance management systems strong in uncertain times, particularly in view of how a future Presidential Administration may seek to reverse Trump Administration initiatives. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.
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Fair Lending Developments Under Trump 2.0 – Part 1
11/13/2025
Fair Lending Developments Under Trump 2.0 – Part 1
Today’s episode marks the first of a two-part series, with Part Two scheduled for release on November 20th. In this installment, we examine the sweeping changes in fair lending policy and enforcement under the second Trump administration. The discussion is moderated by Alan Kaplinsky, Senior Counsel, founder and former chair for 25 years of Ballard Spahr’s Consumer Financial Services Group, and features these distinguished experts in the field: Bradley Blower, Founder of Inclusive Partners LLC. John Culhane, Jr., Senior Partner and charter member of Ballard Spahr’s fair lending team. Richard Andreano, Jr., Practice Group Leader for Ballard Spahr’s Mortgage Banking Group and the head of Ballard Spahr’s fair lending team. Listeners will gain essential insights on how federal agencies are scaling back oversight, phasing out the use of statistical disparities and disparate impact theory in fair lending cases. The conversation illuminates how redlining investigations are now driven by clearly expressed intent rather than just the numbers, and why states are stepping in as the federal role diminishes. The episode also tackles potential regulatory changes, the move back to the 1995 Community Reinvestment Act rule, and what these shifts mean for institutions and the communities they serve. In addition, the hosts unpack high-profile cases like Townstone Financial, diving into the ongoing debate about whether discouraging would-be applicants is covered under the Equal Credit Opportunity Act. They also address the intersection of AI and the economy, examining the Trump administration’s focus on rapid innovation over regulatory restrictions and its implications for consumer protection. With actionable information for professionals in consumer financial services, banking, compliance, and advocacy, this episode keeps you informed on the latest policies shaping fair lending in 2025 and beyond. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.
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A New Era for Banking: What President Trump’s Debanking Executive Order and Related State Laws Mean for Financial Institutions, Government, and Banking Customers – Part 2
11/06/2025
A New Era for Banking: What President Trump’s Debanking Executive Order and Related State Laws Mean for Financial Institutions, Government, and Banking Customers – Part 2
Today’s podcast features the second part of a recent webinar produced on September 24, 2025, titled: "A New Era for Banking: What President Trump's Debanking Executive Order and Related State Laws Mean for Financial Institutions, Government, and Banking Customers." In Part 2, we discuss the following topics: 1. What are the areas of uncertainty with respect to the Executive Order, including: · Defining an “unlawful business” or “religion and why those definitions are important. · What regulator or regulators will issue regulations or other guidance? 2. What is the role of the Small Business Administration (“SBA”) 3. Intersection with AML/BSA 4. Intersection with state debanking statutes and experience of the states 5. Pending Federal legislation 6. What should financial institutions be doing now to prepare for regulator review? 7. Is the Executive Order good or bad policy? 8. Is there a proven need for the Executive Order? Is there any empirical evidence of need based on complaints submitted to states with debanking statutes, SBA or other federal banking prudential regulators or is it all anecdotal? Our presenters, who hold diverse views on the wisdom of the Executive Order, are: · Jason Mikula Founder and Publisher, Fintech Business Weekly Jason Mikula is an independent fintech and banking advisor, consultant, and investor. He also publishes Fintech Business Weekly, a newsletter analyzing trends in banking and fintech. He opposes the Executive Order. · Brian Knight Senior Counsel, Corporate Engagement, Alliance Defending Freedom Brian Knight serves as Senior Counsel on the Corporate Engagement Team at Alliance Defending Freedom. His work focuses on issues of financial access, debanking, and preventing the politicization of financial services. He opposes the Executive Order. · Todd Phillips Assistant Professor of Law, J. Mack Robinson College of Business, Georgia State University Todd Phillips is an assistant professor of law at Georgia State University. His areas of expertise include bank capital and prudential regulation, deposit insurance, and the laws governing federal regulators. He opposes the Executive Order. · Will Hild Executive Director, Consumers’ Research Will Hild is the Executive Director of Consumers’ Research, the nation’s oldest consumer protection organization. He has led efforts to combat ESG and what he considers “woke capitalism,” including launching the Consumers First campaign. He supports the Executive Order. · Graham Steele Assistant Secretary for Financial Institutions, U.S. Department of the Treasury Graham Steele serves as the Assistant Secretary for Financial Institutions at the U.S. Department of the Treasury. He is an expert on financial regulation and financial institutions, with over a decade of experience working at the highest levels of law and policy in Washington, D.C. He opposes the Executive Order. Alan Kaplinsky, the founder and first practice group leader and now Senior Counsel of the Consumer Financial Services Group at our firm, moderated the webinar. We released Part 1of this webinar on October 30, 2025
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A New Era for Banking: What President Trump’s Debanking Executive Order and Related State Laws Mean for Financial Institutions, Government, and Banking Customers – Part 1
10/30/2025
A New Era for Banking: What President Trump’s Debanking Executive Order and Related State Laws Mean for Financial Institutions, Government, and Banking Customers – Part 1
Today’s podcast features the first part of a recent webinar produced on September 24, 2025, titled: "A New Era for Banking: What President Trump's Debanking Executive Order and Related State Laws Mean for Financial Institutions, Government, and Banking Customers." In Part 1, we discuss the following topics: 1. History of Debanking, including: o Operation Chokepoint: An initiative by federal prudential banking regulators during the Obama administration aimed at discouraging banks supervised by them from providing services to companies engaged in payday lending. o OCC Final Regulation on Debanking: Issued by Acting Comptroller Brian Brooks toward the end of President Trump’s first term, this regulation applied only to the largest banks in the country. It was sent to the Federal Register but never published and, therefore, never became effective. 2. Elements and Scope of the Debanking Executive Order 3. Statutory Authority (or Lack Thereof) of the Executive Order, which was largely based on the unfairness prongs of UDAAP and UDAP, even though a federal district court in Alabama held a few years ago that such unfairness prongs do not cover discrimination. Our presenters, who hold diverse views on the wisdom of the Executive Order, are: · Jason Mikula Founder and Publisher, Fintech Business Weekly Jason Mikula is an independent fintech and banking advisor, consultant, and investor. He also publishes Fintech Business Weekly, a newsletter analyzing trends in banking and fintech. He opposes the Executive Order. · Brian Knight Senior Counsel, Corporate Engagement, Alliance Defending Freedom Brian Knight serves as Senior Counsel on the Corporate Engagement Team at Alliance Defending Freedom. His work focuses on issues of financial access, debanking, and preventing the politicization of financial services. He opposes the Executive Order. · Todd Phillips Assistant Professor of Law, J. Mack Robinson College of Business, Georgia State University Todd Phillips is an assistant professor of law at Georgia State University. His areas of expertise include bank capital and prudential regulation, deposit insurance, and the laws governing federal regulators. He opposes the Executive Order. · Will Hild Executive Director, Consumers’ Research Will Hild is the Executive Director of Consumers’ Research, the nation’s oldest consumer protection organization. He has led efforts to combat ESG and what he considers “woke capitalism,” including launching the Consumers First campaign. He supports the Executive Order. · Graham Steele Assistant Secretary for Financial Institutions, U.S. Department of the Treasury Graham Steele serves as the Assistant Secretary for Financial Institutions at the U.S. Department of the Treasury. He is an expert on financial regulation and financial institutions, with over a decade of experience working at the highest levels of law and policy in Washington, D.C. He opposes the Executive Order. Alan Kaplinsky, the founder and first practice group leader and now Senior Counsel of the Consumer Financial Services Group at our firm, moderated the webinar. We will be releasing Part 2 of this webinar on November 6, 2025.
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The GENIUS Act and the Future of Stablecoins: What Banks and Fintechs Need to Know - Part 2
10/23/2025
The GENIUS Act and the Future of Stablecoins: What Banks and Fintechs Need to Know - Part 2
Today’s podcast features the second part of a repurposed webinar produced on September 3, 2025, which dives into the legal risks, compliance challenges, and emerging constitutional questions stemming from the GENIUS Act. The conversation examines the strict prohibition of deceptive claims regarding federal backing or insurance for stablecoins, highlighting the significant civil liabilities and penalty provisions attached to violations. Art Wilmarth delves deeply into areas such as federal preemption of state laws, consumer protections, and the power dynamics introduced by big tech and non-bank entities in the stablecoin market. Richard Rosenthal outlines the importance of building cross-functional teams, updating risk taxonomies, and adapting existing safety and soundness frameworks to the new environment presented by stablecoins. Peter Jaslow highlights legal risks for stablecoin issuers, such as the lack of explicit federal insurance, the reliance on monthly attestations of reserves, complex issues surrounding redemption policies, and significant civil and criminal penalties for non-compliance. The speakers articulate the importance of rigorous compliance frameworks and the critical role finance teams will play in adapting to the new regulatory demands. Additionally, there is emphasis on the GENIUS Act’s consumer protection priorities and its alignment with administration policy objectives. This episode also explores the business model impact of the GENIUS Act, discussing the growing demand for stablecoin and tokenized deposit solutions, and how institutions might leverage these technologies for treasury management and cross-border payments. Panelists provide perspectives on how innovation is being fostered, the implications for privately-held stablecoins, and the ways the GENIUS Act reflects the desires of the crypto industry. This session offers a holistic look at both the challenges and opportunities that financial institutions must consider as regulatory and market landscapes evolve. Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.
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The GENIUS Act and the Future of Stablecoins: What Banks and Fintechs Need to Know - Part 1
10/16/2025
The GENIUS Act and the Future of Stablecoins: What Banks and Fintechs Need to Know - Part 1
Today’s podcast features the first part of a recent webinar produced on September 3, 2025, which examined the key provisions of the GENIUS Act (“The Guiding and Establishing National Innovation for U.S. Stablecoins Act”) and its regulatory impact on banks, fintechs and the future of stablecoins. The discussion covers critical definitions, licensing, oversight and enforcement requirements, the relationship to state stablecoin laws. Panelists offer insights into the role of federal banking regulators such as the Comptroller of the Currency, the Federal Reserve, and the Financial Stability Oversight Council (“FSOC”), highlighting the Act’s efforts to establish a uniform regulatory framework and how financial institutions are responding to the new rules. The webinar features three expert speakers: Art Wilmarth, Professor Emeritus at George Washington University Law School, Richard Rosenthal, Principal in Deloitte's Risk and Financial Advisory practice and Peter Jaslow, Practice Co-Leader of Ballard Spahr’s Blockchain Technology and Cryptocurrency group Listeners will gain an understanding of how the GENIUS Act may reshape business stablecoin models. The episode touches on compliance timelines, emphasizing the rapid pace of regulation, and previews issues of consumer protection and its ban on making interest payments. This dialogue sets the foundation for deeper analysis of legal risks and constitutional challenges, which will be explored in the upcoming second part of the series. Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.
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Recent Consumer Financial Services Developments at the Federal Trade Commission
10/09/2025
Recent Consumer Financial Services Developments at the Federal Trade Commission
We are pleased to share a new podcast episode, which was taken from our September 9, 2025, webinar featuring Malini Mithal, Associate Director of the Federal Trade Commission’s Division of Financial Practices. Malini has been a valued guest on our podcast in past years, and this session provided another timely and insightful discussion. In today’s episode she gives her thoughts on the FTC’s recent non-antitrust consumer protection initiatives. Major Key Topics Discussed 1. Fintech oversight – Malini began with FTC activity involving fintechs, particularly companies promoting faster access to cash, and addressed related lending and payments cases. 2. Subscription practices under ROSCA – She highlighted the FTC’s enforcement of the Restore Online Confidence Shoppers Act, including lawsuits against Uber and LA Fitness and a settlement with Match. 3. Unfair and Deceptive Fees Rule – Effective May 12, 2025, this rule bans bait-and-switch pricing and hidden fees in industries such as live-event ticketing and short-term lodging. Malini explained how these practices harm consumers and distort competition. 4. Auto finance transparency – Another area of focus for the FTC, reflecting the agency’s broader emphasis on price transparency. 5. Debt collection, debt relief, and credit repair – Malini reviewed recent FTC enforcement activity in these high-risk sectors. 6. Crypto platforms – She concluded with a discussion of the FTC’s work addressing crypto platforms that market banking-like services to consumers. After Malini left the webinar, John Culhane, a partner in our Consumer Financial Services Group, provided an update on developments at the FTC in terms of budget and staffing and the ongoing litigation challenging the Trump Administration’s removal of two Democratic FTC Commissioners without cause and then discussed areas where we expect to see more FTC “regulation by enforcement” activity. Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm’s Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.
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The Supreme Court’s Landmark Ruling on Universal Injunctions in the Birthright Citizenship Cases - Part 1
10/02/2025
The Supreme Court’s Landmark Ruling on Universal Injunctions in the Birthright Citizenship Cases - Part 1
The podcast show we are releasing today is a repurposing of part 2 of a webinar we produced on August 13, 2025, which explored the U.S. Supreme Court’s pivotal 6-3 decision in Trump v. CASA, Inc., a ruling that significantly curtails the use of nationwide or “universal” injunctions. A universal injunction is one which confers benefits on non-parties to the lawsuit. This case marks a turning point in federal court jurisprudence, with profound implications for equitable relief, national policy, and governance. Our distinguished panel of legal scholars, Suzette Malveaux (Roger D. Groot Professor of Law, Washington and Lee University School of Law), Portia Pedro (Associate Professor of Law, Boston University School of Law), and Alan Trammell (Professor of Law, Washington and Lee University School of Law) are joined by experienced litigators Alan Kaplinsky, Carter G. Phillips (Former Assistant to the Solicitor General of the United States & Partner, Sidley Austin LLP), and Burt M. Rublin (Senior Counsel and Appellate Group Practice Leader, Ballard Spahr LLP). These panelists dive deep into the Court’s decision, unpacking its historical foundation, analyzing the majority, concurring, and dissenting opinions, and evaluating its far-reaching effects on all stakeholders, including industry groups, trade associations, federal agencies, the judiciary, the executive branch, and everyday citizens. This podcast show and the one we released last , cover these critical topics: · The originalist and historical reasoning behind the Court’s rejection of universal injunctions · A detailed analysis of the majority, concurring, and dissenting opinions · The ruling’s impact on legal challenges to federal statutes, regulations, and executive orders · The potential role of Federal Rule of Civil Procedure 23(a) and 23(b)(2) class actions as alternatives to universal injunctions, including the status of the CASA case and other cases where plaintiffs have pursued class actions · The use of Section 706 of the Administrative Procedure Act (the “APA”) to “set aside” or “vacate” unlawful regulations and Section 705 of the APA to seek stays of regulation effective dates · The viability of associational standing for trade groups challenging regulations on behalf of their members · The ruling’s influence on forum selection and judicial assignment strategies, including “judge-shopping” · The Supreme Court’s increasing use of its emergency or “shadow” docket, rather than its conventional certiorari docket, to render extraordinarily important opinions This is a unique opportunity to hear from leading experts as they break down one of the most consequential and controversial Supreme Court decisions of this Supreme Court Term. These podcast shows will provide you with valuable insights into how this ruling reshapes the legal landscape. Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm’s Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.
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First Circuit Rules National Bank Act Does Not Preempt Rhode Island State Law: Is There Still Any Advantage to Having A National Bank Charter?
10/01/2025
First Circuit Rules National Bank Act Does Not Preempt Rhode Island State Law: Is There Still Any Advantage to Having A National Bank Charter?
As our regular podcast listeners know, we ordinarily release a new regular podcast show once each week on Thursday. On a very few occasions, we have released a special extra podcast show during the same week. We have only done that when a development occurs which we feel is of extraordinary importance and time sensitive. On September 22, the United States Court of Appeals for the First Circuit issued its unanimous opinion in Conti v. Citizens Bank, N.A. in which it held, in the context of a motion to dismiss a putative class action alleging that the Bank failed to pay interest on mortgage escrow accounts in violation of a Rhode Island statute which requires the payment of interest on mortgage escrow accounts, that the National Bank Act does not preempt the Rhode Island statute. The Bank had argued that the National Bank Act preempts the Rhode Island statute and that, as such, it was not required to pay any interest on mortgage escrow accounts. The District Court had also held that such Rhode Island statute was preempted. See our recently published blog about While the Conti case involves the narrow question described above, the implications of the opinion are sweeping in nature and will require national banks to comply with a vast litany of state consumer protection laws throughout the country which may no longer be preempted by the National Bank Act. Since 2004, the OCC has had a regulation which expressly purports to preempt state statutes, like the Rhode Island statute, which requires the payment of interest on mortgage escrow accounts That same regulation purports to preempt most categories of other state consumer protection laws. Most national banks have been reasonably relying on the OCC preemption regulations and have not complied with most state consumer protection laws. The Conti opinion implicitly concludes that the OCC preemption regulations are invalid. During our podcast show, we explain the history of the Conti case and the holding and reasoning of the First Circuit. We also discuss the Cantero opinion in the Supreme Court which led to the First Circuit opinion and similar cases in the Second and Ninth Circuits dealing with the same preemption issues. Most importantly, we will explain how we are helping national banks comply with state laws that are probably not preempted by the National Bank Act. Alan Kaplinsky, the founder and practice leader of the Consumer Financial Services Group, hosted the webinar. He was joined by Joseph Schuster and Ron Vaske, partners in the Group who focus their practices in part on National Bank Act Preemption.
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The Supreme Court’s Landmark Ruling on Universal Injunctions in the Birthright Citizenship Cases - Part 1
09/25/2025
The Supreme Court’s Landmark Ruling on Universal Injunctions in the Birthright Citizenship Cases - Part 1
The podcast show we are releasing today is a repurposing of part 1 of a webinar we produced on August 13, 2025, which explored the U.S. Supreme Court’s pivotal 6-3 decision in Trump v. CASA, Inc., a ruling that significantly curtails the use of nationwide or “universal” injunctions. A universal injunction is one which confers benefits on non-parties to the lawsuit. This case marks a turning point in federal court jurisprudence, with profound implications for equitable relief, national policy, and governance. Our distinguished panel of legal scholars, Suzette Malveaux (Roger D. Groot Professor of Law, Washington and Lee University School of Law), Portia Pedro (Associate Professor of Law, Boston University School of Law), and Alan Trammell (Professor of Law, Washington and Lee University School of Law) are joined by experienced litigators Alan Kaplinsky, Carter G. Phillips (Former Assistant to the Solicitor General of the United States & Partner, Sidley Austin LLP), and Burt M. Rublin (Senior Counsel and Appellate Group Practice Leader, Ballard Spahr LLP). These panelists dive deep into the Court’s decision, unpacking its historical foundation, analyzing the majority, concurring, and dissenting opinions, and evaluating its far-reaching effects on all stakeholders, including industry groups, trade associations, federal agencies, the judiciary, the executive branch, and everyday citizens. This podcast show and the one we release one week from today cover these critical topics: · The originalist and historical reasoning behind the Court’s rejection of universal injunctions · A detailed analysis of the majority, concurring, and dissenting opinions · The ruling’s impact on legal challenges to federal statutes, regulations, and executive orders · The potential role of Federal Rule of Civil Procedure 23(a) and 23(b)(2) class actions as alternatives to universal injunctions, including the status of the CASA case and other cases where plaintiffs have pursued class actions · The use of Section 706 of the Administrative Procedure Act (the “APA”) to “set aside” or “vacate” unlawful regulations and Section 705 of the APA to seek stays of regulation effective dates · The viability of associational standing for trade groups challenging regulations on behalf of their members · The ruling’s influence on forum selection and judicial assignment strategies, including “judge-shopping” · The Supreme Court’s increasing use of its emergency or “shadow” docket, rather than its conventional certiorari docket, to render extraordinarily important opinions This is a unique opportunity to hear from leading experts as they break down one of the most consequential and controversial Supreme Court decisions of this Supreme Court Term. These podcast shows will provide you with valuable insights into how this ruling reshapes the legal landscape. Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.
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Current State Statutes That Apply to AI in the Consumer Financial Services Industry
09/18/2025
Current State Statutes That Apply to AI in the Consumer Financial Services Industry
In this episode of the Consumer Finance Monitor podcast, host Alan Kaplinsky welcomes Pat Utz, CEO and co-founder of Abstract, a venture capital-backed AI company headquartered in New York. Pat brings extensive expertise on artificial intelligence. The podcast focuses on current developments in AI regulation and implementation, first covering President Trump's recent "Winning the Race: America's AI Action Plan" and its potential impact on federal policy. Alan and Pat discuss the evolving landscape of AI statutes, and developments at the state-level in places like Utah and Colorado. Pat and Alan Kaplinsky provide insights into bipartisan efforts at both state and federal levels to address issues ranging from consumer safety to business innovation. They highlight the practical challenges and opportunities for businesses leveraging AI, such as the need for transparency when AI is used in customer interactions and compliance with state-level enforcement. Pat explains how open-source models are increasingly being promoted, pointing to Trump's executive order and shifts in the industry. He also underscores the importance for businesses to track where data is processed—whether with major vendors or proprietary systems—and adapt to varying regulatory frameworks, notably those set by states like California that tend to influence national practice. The episode concludes by focusing on the wide array of AI usage in financial services, specifically credit scoring and underwriting; lending; and fraud detection. Pat provides key lessons institutions should be mindful of as AI adoption continues to grow in the industry Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.
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New Consumer Financial Services Fintech Business Opportunities Arising from Deregulation at the CFPB during Trump 2.0 – Part 2
09/11/2025
New Consumer Financial Services Fintech Business Opportunities Arising from Deregulation at the CFPB during Trump 2.0 – Part 2
Today’s podcast episode is a continuation of a previous repurposed webinar held on August 12th, focusing on emerging opportunities in the consumer financial services sector under the Trump administration. The session aims to provide insights into the evolving regulatory landscape and its implications for businesses and consumers. The of the webinar, released last Thursday, September 4, covered the recently-passed GENIUS Act (which creates a federal infrastructure for Stablecoin); developments in crypto-backed lending and credit builder loans; the mortgage industry; developments in earned wage access and rent-to-own and lease-to-own financing products; and insights on income share agreements. Joining the podcast today are the following members of Ballard Spahr’s Consumer Financial Services Group: Kristen Larson, of counsel, provides insights into the open banking rule; John Socknat, co-leader of the Group, speaks on home equity investment products; John Culhane, a partner in the group, relays insights on large installment loans at point of sale; and Dan Wilkinson, an associate, provides an overview of digital wallets. Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group for 25 years. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.
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New Consumer Financial Services Fintech Business Opportunities Arising from Deregulation at the CFPB during Trump 2.0 – Part 1
09/04/2025
New Consumer Financial Services Fintech Business Opportunities Arising from Deregulation at the CFPB during Trump 2.0 – Part 1
In the latest episode of our podcast, we explore the significant shifts in the regulatory landscape under the second Trump administration and how these recent deregulatory actions have opened new pathways for banks and FinTech companies by reducing barriers to entry and compliance costs. This evolving environment presents opportunities for innovation and market expansion, although state law oversight, including licensing and regulatory requirements. Today’s episode is part one of a two-part series. Joining the podcast today are the following members of Ballard Spahr’s Consumer Financial Services Group: Kristen Larson, of counsel, provides insights into the recently-passed GENIUS Act (which creates a federal infrastructure for Stablecoin); Ron Vaske, a partner, covers developments in crypto-backed lending and credit builder loans; John Socknat, co-leader of the Group, speaks on crypto and the mortgage industry; Dan Wilkinson, an associate, provides an overview of developments in earned wage access and rent-to-own and lease-to-own financing products; and John Culhane, a partner in the group, relays insights on income share agreements. Part two of this webinar will be released next Thursday, September 11. In that episode, Kristen Larson, John Socknat, John Culhane, and Dan Wilkinson, return to continue the conversation, discussing open banking; home equity investment products; home equity loans; buy now, pay later; large installment loans at point of sale; payday loans; and digital wallets to access credit-like features. Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group for 25 years. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.
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A Deep Dive into the Fight for the CFPB’s Survival
08/28/2025
A Deep Dive into the Fight for the CFPB’s Survival
We recently about the August 15th D.C. Circuit Court of Appeals decision in the lawsuit brought by the labor unions representing CFPB employees against Acting Director Russell Vought. The unions sought injunctive relief in response to what they described as an attempted “shutdown” of the Bureau. In a 2–1 ruling, the Court of Appeals vacated a preliminary injunction issued by the District Court. That injunction had temporarily blocked the CFPB from carrying out a reduction-in-force (“RIF”) that would have left the Bureau with only about 200 employees to carry out its statutory responsibilities. Today, our Consumer Finance Monitor podcast takes a deep dive into this critical decision and its implications. Alan Kaplinsky (founder and former practice group leader, now Senior Counsel in our Consumer Financial Services Group) joins Joseph Schuster (a partner in the Group) for a wide-ranging conversation covering: The majority opinion by Judge Katsos The dissenting opinion by Judge Pillard The plaintiffs’ options for further review — and why the odds may be at least 50–50 that the full D.C. Circuit (with 11 judges, 7 appointed by Democratic presidents) will grant en banc review Why plaintiffs might choose to continue litigating in the District Court as the CFPB implements the RIF and scales back activities to only those that are statutorily mandated How the CFPB’s sharply reduced budget (cut nearly in half by the “Big Beautiful Bill”) shapes the Bureau’s future functions What the CFPB could look like once litigation ends and “the dust settles” The impact of the just-released semiannual regulatory agenda The current status of the complaint portal What’s happening with the CFPB’s supervision and enforcement efforts How the DOJ and FTC are approaching consumer financial services issues Whether state attorneys general are stepping up enforcement to fill the gap left by a diminished CFPB This is a must-listen episode for anyone following the future of the CFPB, the role of other federal agencies, and the actions of state AGs in regulating consumer financial services.
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Do Arbitrators Follow the Law? A New Study Provides Data, But the Debate Continues
08/21/2025
Do Arbitrators Follow the Law? A New Study Provides Data, But the Debate Continues
Today’s episode of the Consumer Finance Monitor podcast is centered around a novel and thought-provoking article by David Horton, a professor of law at the University of California, Davis. The article, titled "Do Arbitrators Follow the Law? Evidence from Clause Construction," dives into the intriguing question of whether arbitrators render decisions that align with judicial rulings. Horton explores the longstanding debate on arbitration's adherence to legal standards, focusing on whether arbitrators have followed the Supreme Court’s 2019 decision in Lamps Plus, Inc. v. Varela (2019) that class-wide arbitration is not permitted when an arbitration clause is silent or ambiguous on the matter. The podcast episode explores the ramifications of Horton's finding that in about 27% of the arbitrations studied, the arbitrators did not follow Lamps Plus. Horton interprets that finding as suggesting that a significant minority of arbitrators may be motivated by financial considerations in allowing a class arbitration to proceed, notwithstanding Lamps Plus, because it is more lucrative for them than an individual arbitration. Mark Levin, Senior Counsel at Ballard Spahr, also joins the program. Mark interprets Horton’s findings differently, emphasizing that in his view Horton’s data strongly supports the conclusion that arbitration is not lawless since an overwhelming majority of the arbitrators (73%) did follow Lamps Plus. Mark also dismisses Horton’s suggestion that some arbitrators’ rulings may be swayed by financial considerations as pure speculation. On the contrary, he observes, the fact that some arbitrators have not strictly followed Lamps Plus does not show they were not following the law since the issue of clause construction has a lengthy complex history and prominent courts such as the Second Circuit have themselves found reasons for distinguishing Lamps Plus. Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.
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Student Lending Legislation and Litigation: 2025 Mid-Year Review
08/14/2025
Student Lending Legislation and Litigation: 2025 Mid-Year Review
Today on our podcast, we’re releasing a repurposed recording of our July 23, 2025 webinar titled “Student Lending Legislation and Litigation: 2025 Mid-Year Review.” The webinar features esteemed partners John Culhane and Tom Burke, who dive into the intricacies of student lending litigation and regulatory developments. As a senior partner in the Consumer Financial Services Group, John Culhane shares his extensive knowledge on higher education finance, focusing on state legislation and private student loan litigation. Tom Burke, also a partner in the same group, brings his expertise in private class actions and state enforcement actions, providing insights into the One Big Beautiful Bill Act and its significant impact on federal loan servicers and discussing federal student loan litigation. Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.
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The Legality of Trump’s Terminations Without Cause of Members and Commissioners of Federal “Independent” Agencies
08/07/2025
The Legality of Trump’s Terminations Without Cause of Members and Commissioners of Federal “Independent” Agencies
Today’s episode of the Consumer Finance Monitor podcast offers an in-depth analysis of the unitary executive theory and its implications for terminations by President Trump of the Democratic members/commissioners of several so-called independent Federal agencies. The episode features Lev Menand, an associate professor of law at Columbia Law School, who provides expert insights into financial institutions and administrative law and the validity of the Trump terminations. Professor Menand discusses the theory that President Trump may exercise complete control over independent federal agencies (which includes such terminations), despite statutes which permit terminations only for cause and a 1935 Supreme Court opinion in Humphries Executor which upheld the constitutionality of the “for cause” limitation on such terminations. Professor Menand also discusses (i) the stay orders issued by the Supreme Court which have frozen preliminary injunctions issued by lower courts in litigation initiated by the terminated individuals which required the reinstatement of Democratic members of two agencies who had been fired by Trump and (ii) the dictum in such stay orders saying that the reasoning behind the stay orders does not apply to the members of the Federal Reserve Board. This episode builds on another released by Consumer Finance Monitor on July 10 featuring Patrick Sobkowski of Marquette University. Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.
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Loper Bright Enterprises One Year Later: The Practical Impact on Business, Consumers and Federal Agencies
07/31/2025
Loper Bright Enterprises One Year Later: The Practical Impact on Business, Consumers and Federal Agencies
Our podcast show being released today commemorates the one-year anniversary of the U.S. Supreme Court’s opinion in Loper Bright Enterprises - the opinion in which the Court overturned the Chevron Deference Doctrine. The Chevron Deference Doctrine stems from the Supreme Court's 1984 decision in Chevron v. Natural Resources Defense Council. The decision basically held that if federal legislation is ambiguous the courts must defer to the regulatory agency's interpretation if the regulation is reasonable. My primary goal was to identify a person who would be universally considered one of the country’s leading experts on administrative law and, specifically the Chevron Deference Doctrine and how the courts have applied the Roper opinion. I was very fortunate to recruit , Edward B. Shils Professor of Law at Penn Law School and Director of the . In this episode we explore two of his recent and widely discussed papers, titled “” and “” Here are the questions that we discussed with Professor Coglianese: Let’s start at the beginning. What is the Chevron case all about? How did the Court in Loper Bright explain why it was overruling Chevron? You have a new article coming out later this year in the University of Pennsylvania Law Review called “Loper Bright’s Disingenuity,” co-authored with David Froomkin of the University of Houston. What do you and Professor Froomkin mean by the title of your article? In your article, you critique what you call the Court’s “facile formalism.” What do you mean by that? You also criticize the way the Court based its decision in Loper Bright on the Administrative Procedure Act or APA. What exactly was problematic about the Court’s APA analysis? Let’s shift gears from your analysis of the logic of the Loper Bright opinion to talk about what the decision’s effects have been so far and what its effects ultimately might be on the future of administrative government in the United States. You have another article on Loper Bright that was recently published in the Administrative Law Review and coauthored with Dan Walters of Texas A&M Law School. It has another provocative title: “The Great Unsettling: Administrative Governance After Loper Bright.” What do you mean by the “Great Unsettling”? Although you say that it is hard to predict exactly what impact Loper Bright will have on the future of administrative government, you also acknowledge that the decision has created a “symbolic shock” and is likely to “punctuate the equilibrium of the administrative governance game as we have come to know it.” Can we see any effects so far in terms of how Loper Bright is affecting court decisions? For example, let’s start with the Supreme Court itself. Has it had anything more to say about Loper Bright in decisions it’s handed down this past year? If we look at the lower courts, what can we discern about how Loper Bright has been received in federal district courts or courts of appeals? Are there any trends that can be observed? I’d like to bring things full circle by raising a metaphor you and Professor Walters use in your article, “The Great Unsettling.” You say there that the Loper Bright “decision might best be thought of as something of a Rorschach test inside a crystal ball.” What do you mean? Can you tell us what you see inside your crystal ball? Alan Kaplinsky, the founder and former chair and now Senior Counsel of the Consumer Financial Services Group hosted the podcast show.
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The Hidden Costs of Financial Services: Consumer Complaints and Financial Restitution
07/24/2025
The Hidden Costs of Financial Services: Consumer Complaints and Financial Restitution
We are releasing today a very interesting podcast show which is also breaking news. Before I read an article by Professor Charlotte Haendler of Southern Methodist University and Professor Rawley Z. Heimer of Arizona State University titled I never knew that the CFPB authorized outside third-parties access to non-public data collected about consumer complaints that it received so that those third-parties could conduct studies. Professors Haendler and Heimer used that data to determine the demographics of complainants who received the most restitution versus the demographics of those who received no or little restitution. The study they conducted is described in the abstract of the article which is available here on SSRN: Financial disputes are a widespread but understudied feature of consumer financial markets. Using confidential data from the Consumer Financial Protection Bureau (CFPB), we analyze nearly two million consumer complaints filed since 2014, which have led to an average payout of $1,470 per successful complaint. The volume of complaints and total restitution have increased substantially over time, suggesting significant scope for additional compensation. When understanding who secures restitution—and why—we find little evidence that differences across firms systematically drive restitution outcomes. Instead, product complexity and consumer engagement play key roles—consumers with higher income and education (high-SES) are more likely to explicitly request refunds, claim fraud, and submit supporting documentation, making firms more responsive. Leveraging previously unexamined CFPB monitoring reviews, where the agency systematically screens company responses and issues confidential reports highlighting deficiencies, we show that regulatory scrutiny increases restitution but disproportionately benefits high-SES consumers, reinforcing individual-specific mechanisms. Our results highlight the complementary nature of regulatory interventions and suggest that financial sophistication and self-advocacy are critical determinants of consumer redress. During the webinar, the Professors answered the following questions: 1. Why did you conduct an in-depth CFPB consumer complaints study in the first place? 2. Why did you basically use the CFPB complaint data as a proxy for consumer disputes in the entire industry? 3. In your paper you mostly focus on the likelihood of a complaint resulting in financial restitution (i.e., some sort of monetary relief for the troubles endured). The title of your paper is “The hidden costs of financial services: consumer complaints and financial restitution”. First of all, what do you mean by hidden costs? 4. Was the confidential data you received from the CFPB essential in better understanding the mechanisms behind the resolution of these consumer disputes? 5. Did you find differences in complaint outcomes depending on the type of product involved? 6. Is there a lot of variation across companies in the likelihood to award financial restitution to a complainant? 7. Is the likelihood of a complainant receiving restitution more about the complexity of the product and potentially how the consumer relates to it than about there being some rogue companies? 8. Do certain consumer characteristics—like income, education, and even racial and ethnic background—correlate with greater likelihood of financial restitution. 9. How do consumer characteristics end up influencing the likelihood of restitution? 10. Does oversight from the CFPB change how firms handle disputes and award financial restitution? 11. What should regulators, firms, and consumers take away from this research? This is how they answered that question: (a) It is critical to recognize that the capabilities to navigate the dispute process aren’t equal across consumers. (b) For regulators, we see that scrutiny and nudging alone do not substitute for consumer engagement. Hence the challenge is to design systems that help level the playing field, perhaps by educating the consumer more, or by flagging poorly-articulated but potentially valid complaints for extra review and documentation. (c) For companies, this study highlights the negotiating power of the consumer in disputes, and how this negotiating power hinges on self-advocacy and financial sophistication. It could also be a wakeup call to consider how certain demographics might be struggling to understand the financial product offered and how to cater to them to reach a greater customer base and higher levels of consumer satisfaction. (d) For consumers, it's a reminder that being specific, using strong language, and submitting documentation really matters in getting your voice heard. Alan Kaplinsky, founder and former Chair and now Senior Counsel of the Consumer Financial Services Group hosted this podcast show.
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Legislating for the Future
07/17/2025
Legislating for the Future
The podcast show we are releasing today features Professor Jonathan Gould of University of California (Berkeley) Law School who discusses his recent article co-written with Professor Rory Van Loo of Boston University School of Law which was recently published in the University of Chicago Law Review titled . The introduction of the article describes “legislating for the future” as follows: Public policy must address threats that will manifest in the future. Legislation enacted today affects the severity of tomorrow’s harms arising from biotechnology, climate change, and artificial intelligence. This Essay focuses on Congress’s capacity to confront future threats. It uses a detailed case study of financial crises to show the limits and possibilities of legislation to prevent future catastrophes. By paying insufficient attention to Congress, the existing literature does not recognize the full nature and extent of the institutional challenges in regulating systemic risk. Fully recognizing those challenges reveals important design insights for future-risk legislation. During the podcast, we discuss the dynamics around enacting legislation through Congress that aims to increase the stability of the financial system and prevent financial crises. We discuss with Professor Gould about why passing this sort of legislation is so difficult and what Congress might be able to do about that. We consider the following questions: 1. What are the basic dynamics that make it so hard to pass financial stability legislation? 2. How does the structure of Congress affect the difficulty of passing financial stability legislation? 3. We have seen some big bills lately, like Biden’s Inflation Reduction Act and the big taxing and spending bill from Trump this year. Why is financial regulation harder to enact than these other types of legislation? 4. Has it gotten easier or harder over time to enact financial regulation? 5. What happens after financial stability legislation is enacted? 6. What can Congress do to enhance its capacity in this area? 7. What types of legislative drafting techniques are likely to be especially promising? 8. What role is there for federal agencies to play in augmenting congressional capacity? 9. What role is there for states or private plaintiffs to play in augmenting congressional capacity? 10. What relevance does this all have beyond financial regulation? 11. In light of the fact that the article was published before the 2024 election and change in administration are any of Professor Gould’s conclusions altered by more recent events? This podcast was hosted by Alan Kaplinsky, the founder and former chair for 25 years and now Senior Counsel of the Consumer Financial Services Group.
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Can the President Remove Governors of Federal Independent Agencies Without Cause?
07/10/2025
Can the President Remove Governors of Federal Independent Agencies Without Cause?
The podcast show we are releasing this week focuses generally on the so-called “Unitary Executive Theory” and specifically on the legality of President Trump firing without cause the Democratic Commissioners of the Federal Trade Commission and the members of other independent agencies, despite language in the governing statutes that prohibit the President from firing a member without cause and a 1935 Supreme Court opinion in Humphrey’s Executor holding that the firing of an FTC Commissioner by the President is unlawful if done without cause. Our guest is Patrick Sobkowski who teaches constitutional law, courts and public policy, and American politics at Marquette University. His scholarship focuses on constitutional and administrative law, specifically the administrative state and its relationship to the other branches of government. Our show began with an explanation of the “Unitary Executive Theory” which is defined as a constitutional law theory according to which the President has sole authority over the executive branch including independent federal agencies. It is based on the so-called “vesting clause “of the Constitution which vests all executive power in the President. The theory often comes up in disagreements about the president's ability to remove employees within the executive branch (including Federal agencies); transparency and access to information; discretion over the implementation of new laws; and the ability to control agencies' rule-making. There is disagreement about the doctrine's strength and scope. More expansive versions are controversial for both constitutional and practical reasons. Since the Reagan Administration, the Supreme Court has embraced a stronger unitary executive, which has been championed primarily by its conservative justices. We then discussed a litany of Supreme Court opinions dealing with the question of whether the President has the unfettered right to remove executive agency employees: a. Myers v. US (1926) b. Humphrey’s Executor (1935) c. Morrison v. Olson (1988) d. Seila Law (2020) We then discussed Trump’s removals of the Democratic members of the National Labor Relations Board and Merit Systems Protection Board and the Supreme Court’s opinion and order staying the lower court’s order that the removals were unlawful. In addition to casting doubt on the continued viability of Humphrey’s Executor, the Court included dicta to the effect that the logic of its opinion about the NLRB and the MSPB would not apply to the Federal Reserve Board because the Fed is not really an executive agency and that its functions are more akin to the functions performed by the First Bank and Second Bank of the United States. Alan Kaplinsky, the founder and former practice group leader for 25 years and now Senior Counsel of the Consumer Financial Services Group hosted the podcast. The podcast recording is here.
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Aspen Institute Seems to be Making Great Strides in Fixing Our Online Scams Problem
07/03/2025
Aspen Institute Seems to be Making Great Strides in Fixing Our Online Scams Problem
The genesis of the podcast show we are releasing today was an article written by Nick Bourke titled “” published on April 12, 2025 in Open Banker. We learned from that article about the great work being done by Aspen Institute’s National Task Force on Fraud and Scam Prevention. The purpose of the podcast is to describe the work of this Task Force The Aspen Institute states the following about the Task Force: Every day, criminals steal $430 million from American families, with total fraud proceeds reaching $158 billion annually. They are a critical funding source for transnational criminal organizations, fueling drug cartels, human trafficking, and terrorism. Fraud losses reported to the FBI increased 15-fold over roughly the last decade, and the rise of new technologies like AI has made scams more sophisticated and easier to perpetuate to harm American families. The Aspen Institute Financial Security Program launched the National Task Force on Fraud and Scam Prevention in 2024 to develop the first coordinated U.S. national strategy aimed at stopping financial fraud at its root. The guiding purpose of the Task Force is to bring together all parties with an interest in protecting consumers and restoring trust in our financial system. This is the first time such a broad collection of leaders from across government, law enforcement, private industry, and civil society are coming together to develop a nationwide strategy aimed at helping prevent fraud and scams. Our guests on this podcast are: Kate Griffin, Director of Programs, Aspen Institute Financial Security Program and Nick Bourke, Senior Policy Adviser, The Aspen Institute. Our guests covered the following topics: 1. What is the Aspen Institute's Financial Security Program and how did the Aspen Institute come to launch the National Task Force on Fraud and Scam Prevention? Who is participating in the Task Force? Why is such a cross-sector (industry, consumer advocates and government) very important? What is standing in the way of more robust, secure, cross-sector data-sharing today? 2. How big is the fraud and scams problem in the United States right now? How has it changed over time? 3. What are some of the implications of this problem? How should we be thinking about this beyond the consumer-level financial impacts? Where is all this money going, and what does that mean for our national security? How do fraud/scams compare to other forms of organized crime? Why is it so difficult for victims to recover their financial losses? Are there any efforts ongoing in Congress to alleviate this? Despite all the anti-fraud measures, educational resources, and even public media coverage, why do scammers still seem to be gaining ground? What are some of the biggest gaps or weaknesses in the U.S. system that scammers exploit? Are there promising models from other countries or sectors the U.S. can learn from? How is AI changing the landscape of scams — both in how they’re perpetrated and how we might stop them? 4. What's the right balance between imposing duties on companies and offering legal safe harbors so they're not afraid to act? 5. Some people still feel a stigma around sharing when they have been the victim of a scam. How do we shift the environment away from victim-blaming and toward support? 6. The Task Force is driving toward developing a "national strategy" for fighting fraud and scams. What are some of the necessary components to make this truly effective? What do you mean by the need for a "national front door for reporting”? 7. Consumer education has to continue playing a role here. What kinds of public awareness campaigns or interventions have proven effective? What kinds of leadership or investment are needed from Congress, the White House, or federal agencies? 8. Are there any incentives that could better align corporate interests around fraud and scam prevention? Are there examples of companies that are leading the way on this issue? 9. What are the Task Force's next steps? When should we expect to hear more about the national strategy that's coming together? Alan Kaplinsky, founder of and former Chair for 25 years of the Consumer Financial Services Group, hosted the podcast show.
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What is Happening at the Federal Agencies That is Relevant to the Residential Mortgage and Settlement Service Industries
06/26/2025
What is Happening at the Federal Agencies That is Relevant to the Residential Mortgage and Settlement Service Industries
We are releasing today on our podcast show a repurposed webinar that we produced on June 11, 2025 entitled “What is happening at the federal agencies that is relevant to the residential mortgage and settlement service industries.” During this podcast, we will inform you about recent developments at federal agencies, including the CFPB, HUD/FHA, OCC, FDIC, FRB and USDA (collectively, the “Agencies”), as well as Congress, the White House, states and the courts. Some of the issues we consider are: • Changes in leadership and priorities at the CFPB, as well as efforts to significantly reduce the funding and staffing at the CFPB and related lawsuits. • House Republican criticism of various CFPB actions under former Director Chopra. • The rescission and revisiting of CFPB final rules, proposed rules and informal guidance, including the Nonbank Enforcement Order Registry final rule, Residential Property Assessed Clean Energy (PACE) Financing final rule, Residential Mortgage Servicing proposed rule, and FCRA “Data Broker” proposed rule. • The termination of CFPB enforcement efforts and revisiting of CFPB redlining consent orders. • The rescission of Community Reinvestment Act rule amendments. • The White House directive for the federal government to eliminate the use of disparate-impact liability. • The status of the HUD disparate impact rule under the Fair Housing Act. • HUD’s reversal of various FHA policies adopted during the Biden Administration, including guidance regarding appraisal bias and reconsideration of value. • Trigger leads bills. • White House firings of independent agency board/commission members and efforts to exert control over independent agencies. • State efforts to fill the void left by the actions at the CFPB. John Socknat, co-head of our Consumer Financial Services Group, moderated and participated in the presentation, along with the following other members of the Consumer Financial Services and Mortgage Banking Groups: Richard Andreano, Jr., John Culhane and Matthew Morr.
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The Impact of the Newly Established Priorities and Massive Proposed Reduction in Force (RIF) on CFPB Enforcement (Part 2)
06/18/2025
The Impact of the Newly Established Priorities and Massive Proposed Reduction in Force (RIF) on CFPB Enforcement (Part 2)
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. 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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The Impact of the Newly Established Priorities and Massive Proposed Reduction in Force (RIF) on CFPB Enforcement (Part 1)
06/12/2025
The Impact of the Newly Established Priorities and Massive Proposed Reduction in Force (RIF) on CFPB Enforcement (Part 1)
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 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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The Impact of the Newly Established Priorities and Massive Proposed Reduction in Force (RIF) on CFPB Supervision
06/05/2025
The Impact of the Newly Established Priorities and Massive Proposed Reduction in Force (RIF) on CFPB Supervision
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. 5. Focus CFPB Supervision on providing redress to service members and their families and veterans. 6. 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. 7. 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). 8. Eliminate duplicative supervision where other federal agencies have supervisory jurisdiction 9. Not pursue supervision under “novel legal theories.” 10. 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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What Is Happening at the Federal Agencies (Other Than the CFPB) That is Relevant to the Consumer Financial Services Industry
05/29/2025
What Is Happening at the Federal Agencies (Other Than the CFPB) That is Relevant to the Consumer Financial Services Industry
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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Everything You Should Know About the Stablecoin Bill
05/22/2025
Everything You Should Know About the Stablecoin Bill
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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Navigating State AG Investigations: A Playbook For Financial Services Companies
05/15/2025
Navigating State AG Investigations: A Playbook For Financial Services Companies
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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The Impact of the Election on the FTC
05/08/2025
The Impact of the Election on the FTC
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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