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.

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. /episode/index/show/consumerfinancemonitor/id/37904020

Student Lending Legislation and Litigation: 2025 Mid-Year Review 08/14/2025

The Legality of Trump’s Terminations Without Cause of Members and Commissioners of Federal “Independent” Agencies 08/07/2025

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. /episode/index/show/consumerfinancemonitor/id/37620715

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. /episode/index/show/consumerfinancemonitor/id/37532815

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. /episode/index/show/consumerfinancemonitor/id/37440115

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. /episode/index/show/consumerfinancemonitor/id/37361560

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. /episode/index/show/consumerfinancemonitor/id/37271510

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. /episode/index/show/consumerfinancemonitor/id/37161080

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. /episode/index/show/consumerfinancemonitor/id/37055480

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.” /episode/index/show/consumerfinancemonitor/id/36969915

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. /episode/index/show/consumerfinancemonitor/id/36861455

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. /episode/index/show/consumerfinancemonitor/id/36769585

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. /episode/index/show/consumerfinancemonitor/id/36669540

Navigating State AG Investigations: A Playbook For Financial Services Companies 05/15/2025

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. /episode/index/show/consumerfinancemonitor/id/36486155

Private Civil Consumer Financial Services Litigation to Partially Fill CFPB Void - Part 2 05/01/2025

Private Civil Consumer Financial Services Litigation to Partially Fill CFPB Void - Part 2 The podcast we are releasing today is part 2 of a re-purposed webinar we produced on March 25 titled “The Impact of the Election on the CFPB - Part 4.” As a result of the diminishing impact of the CFPB on enforcing the consumer financial services laws, we expect that void to be filled by state government enforcement agencies and private civil litigation, including class and mass actions. Our webinar focused on private civil litigation. Our featured guest for this webinar was Ira Rheingold, Executive Director of the National Association of Consumer Advocates. He was joined on the panel by Thomas Burke, Dan McKenna, Jenny Perkins, Joseph Schuster, and Melanie Vartabedian, litigators in our firm’s Consumer Financial Services Group. We discussed the following areas where the panelists are predicting an increase in private civil litigation during 2025 and beyond: 1. Solar Litigation Trends (Ira, Melanie). 2. Increased volume of arbitrations and mass arbitrations (Ira, Dan). 3. A general emphasis on “unfair” practices, including a close look at alleged unlawful fees (Ira). 4. Crypto industry practices -fees, deception and third-party responsibility (Ira). 5. National Bank Act preemption and DIDMCA opt-out litigation (Joseph). If you missed listening to part 1 of this re-purposed webinar, you can access the podcast in the link to the following blog which appears here. The blog describes the topics we covered. Alan Kaplinsky, the former chair for 25 years and now the Senior Counsel of the Consumer Financial Services Group, hosted the podcast show. For our podcasts repurposed from webinars that we produced as part of our series entitled “The Impact of the Election on the CFPB” Part 1 (regulations and other written guidance), click and ; Part 2 (supervision and enforcement), click and ; Part 3 (state AGs and departments of banking), click and . /episode/index/show/consumerfinancemonitor/id/36387010

Private Civil Consumer Financial Services Litigation to Partially Fill CFPB Void - Part 1 04/24/2025

Private Civil Consumer Financial Services Litigation to Partially Fill CFPB Void - Part 1 The podcast we are releasing today is part 1 of a re-purposed webinar we produced on March 25 titled “The Impact of the Election on the CFPB - Part 4.” As a result of the diminishing impact of the CFPB on enforcing the consumer financial services laws, we expect that void to be filled by state government enforcement agencies and private civil litigation, including class and mass actions. Our webinar will focus on private civil litigation. Our featured guest for this webinar was Ira Rheingold, Executive Director of the National Association of Consumer Advocates. He was joined on the panel by Thomas Burke, Dan McKenna, Jenny Perkins, Joseph Schuster, and Melanie Vartabedian, litigators in our firm’s Consumer Financial Services Group. The podcast began with Ira observing that state enforcement agencies and plaintiffs’ class action lawyers will be taking a careful look at enforcement actions voluntarily dismissed by the CFPB to ascertain whether the complaints should be re-filed by them in federal or state court. We then proceeded to discuss the following areas where the panelists are predicting an increase in private civil litigation during 2025 and beyond: Increased FCRA litigation, especially in ID Theft (Jenny, Ira). The use of AI and corporate responsibility for ensuring that it does not create unfair or discriminatory practices (Ira). Increased retail bank litigation, including EFTA claims (Ira, Tom). Part 2 of this re-purposed webinar will be released next Thursday, May 1. Alan Kaplinsky, the former chair for 25 years and now Senior Counsel of the Consumer Financial Services Group, hosted the podcast show. For our podcasts repurposed from webinars that we produced as part of our series entitled “The Impact of the Election on the CFPB” Part 1 (regulations and other written guidance), click and ; Part 2 (supervision and enforcement), click and ; Part 3 (state AGs and departments of banking), click and . /episode/index/show/consumerfinancemonitor/id/36293970

Everything You Want to Know About the CFPB as Things Stand Today, and Lots More - Part 2 04/17/2025

Everything You Want to Know About the CFPB as Things Stand Today, and Lots More - Part 2 Our podcast show being released today is part 2 of a repurposed interactive webinar that we presented on March 24 featuring two of the leading journalists who cover the CFPB - Jon Hill from Law360 and Evan Weinberger from Bloomberg. Our show begins with Tom Burke, a Ballard Spahr consumer financial services litigator, describing in general terms the status of the 38 CFPB enforcement lawsuits that were pending when Rohit Chopra was terminated. The cases fall into four categories: (a) those which have already been voluntarily dismissed with prejudice by the CFPB; (b) those which the CFPB has notified the courts that it intends to continue to prosecute; (c) those in which the CFPB has sought a stay for a period of time in order for it to evaluate whether or not to continue to prosecute them where the stay has been granted by the courts; and (d) those in which the CFPB’s motion for a stay has been denied by the courts or not yet acted upon. Alan Kaplinsky then gave a short report describing a number of bills introduced this term related to the CFPB. Alan remarked that the only legislative effort which might bear fruit for the Republicans is to attempt to add to the budget reconciliation bill a provision subjecting the CFPB to funding through Congressional appropriations. Such an effort would need to be approved by the Senate Parliamentarian. Finally, Alan expressed surprise that the Republicans, in seeking to shut down the CFPB, have not relied on the argument that the CFPB has been unlawfully funded by the Federal Reserve Board since September 2022 because there has been no “combined earnings of the Federal Reserve Banks” beginning then through the present. (Dodd-Frank stipulates that the CFPB may be funded only out of such “combined earnings”). For more information about that funding issue, listen to who has written prolifically about it. On Monday of this week, Professor Scott published his third op-ed in the , in which he concluded: “Since the bureau is operating illegally, the president can halt its work immediately by executive order. The order should declare that all work at the CFPB will stop, that all rules enacted since funding became illegal in September 2022 are void, and that no new rules will be enforced.” Joseph Schuster then briefly described what has been happening at other federal agencies with respect to consumer financial services matters. Joseph and Alan reported on the fact that President Trump recently fired without cause the two Democratic members of the Federal Trade Commission leaving only two Republican members on the Commission. He took that action despite an old Supreme Court case holding that the language in the FTC Act stating that the President may remove an FTC member only for cause does not run afoul of the separation of powers clause in the Constitution. The two Democratic commissioners have sued the Administration for violating the FTC Act provision, stating that the President may only remove an FTC commissioner for cause. The President had previously fired Democratic members at the Merit Systems Selection Board and National Labor Relations Board. President Trump based his firings on the belief that the Supreme Court will overrule the old Supreme Court case on the basis that the “termination for cause” language in the relevant statutes is unconstitutional. After the recording of this webinar, the DC Circuit Court of Appeals stayed, by a 2-1 vote, a District Court order holding that Trump’s firing of the Democratic members of the NLRB and Merit Systems Selection Board was unlawful. That order was subsequently overturned by the court of appeals acting en banc. Subsequently, Chief Justice Roberts stayed that order. In light of these developments, it seems unlikely that the two FTC commissioners will be reinstated, if at all, until the Supreme Court decides the case. Also, after the recording of this webinar, the Senate confirmed a third Republican to be an FTC commissioner. For those of you who want a deeper dive into post-election developments at federal agencies other than the CFPB, please register for our webinar titled which will occur on May 13, 2025. Joseph then discussed developments at the FDIC where the FDIC withdrew the very controversial brokered deposits proposal, the 2023 corporate governance proposal, the Change-in-Bank- Control Act proposal and the incentive-based compensation proposal. He also reported that the FDIC rescinded its 2024 Statement of Policy on Bank Merger Transactions and delayed the compliance date for certain provisions in the sign and advertising rule. Joseph then discussed developments at the OCC where it (and the FDIC) announced that it would no longer use “reputation risk” as a basis for evaluating the safety and soundness of state-chartered banks that it supervises. The OCC, also, conditionally approved a charter for a Fintech business model to be a national bank and withdrew statements relating to crypto currency risk. Finally, Joseph discussed how state AGs and departments of banking have significantly ramped up their enforcement activities in response to what is happening at the CFPB. The podcast ended with each participant expressing his view on what the CFPB will look like when the dust settles. The broad consensus is that the CFPB will continue to operate with a greatly reduced staff and will only perform duties that are statutorily required. It is anticipated that there will be very little rulemaking except for rules that the CFPB is required to issue - namely, the small business data collection rule under 1071 of Dodd-Frank and the open banking rule under 1033 of Dodd-Frank. The panel also felt that the number of enforcement lawsuits and investigations will measurably decline with the focus being on companies engaged in blatant fraud or violations of the Military Lending Act. This podcast show was hosted by Alan Kaplinsky, the former practice group leader for 25 years and now senior counsel of the Consumer Financial Services Group. If you missed part 1 of our repurposed webinar produced on March 24, for a blog describing its content and a itself. In short, part 1 featured Jon Hill from Law360 and Evan Weinberger from Bloomberg, who chronicle the initiatives of CFPB Acting Directors Scott Bessent and Russell Vought and DOGE to dismantle the CFPB and the status of the two lawsuits brought to enjoin those initiatives. Ballard Spahr partners John Culhane and Rich Andreano give a status report on the effort of Acting Director Vought to nullify most of the final and proposed rules and other written guidance issued by Rohit Chopra. The podcast concludes with John and Rich describing the fact that supervision and examinations of banks and non-banks is non-existent. /episode/index/show/consumerfinancemonitor/id/36204950

Everything You Want to Know About the CFPB as Things Stand Today and Lots More - Part 1 04/10/2025

Everything You Want to Know About the CFPB as Things Stand Today and Lots More - Part 1 Our podcast show being released today is Part 1 of a repurposed interactive webinar that we presented on March 24, featuring two of the leading journalists who cover the CFPB - Jon Hill from Law360 and Evan Weinberger from Bloomberg. Our show began with Jon and Evan chronicling the initiatives beginning on February 3 by CFPB Acting Directors Scott Bessent, Russell Vought and DOGE to shut down or at least minimize the CFPB. These initiatives were met with two federal district court lawsuits (one in DC brought by the labor unions who represents CFPB employees who were terminated and the other brought in Baltimore, MD by the CFPB and others) challenging one or more of these initiatives. Jon and Evan described the lawsuits in detail. While the Baltimore lawsuit was dismissed on the basis of lack of ripeness under the Administrative Procedure Act, Judge Amy Berman Jackson issued a TRO freezing the CFPB from terminating more CFPB employees through the end of March while she decides whether to enter a further injunction with respect to the CFPB’s initiatives. Ballard Spahr partners, Rich Andreano and John Culhane, then gave an up-to-date status report on CFPB (a) final rules being challenged in litigation and/or eligible to be challenged under the Congressional Review Act; (b) final rules not being challenged in litigation which may be repealed or amended or whose effective or compliance dates may be extended under the Administrative Procedure Act; (c) proposed rules; and (d) non-rule written guidance. Rich and John paid particular attention to the following final rules: 1. The Small Business Loan Data Collection and Reporting Rule under Section 1071 of Dodd-Frank 2. The Non-bank enforcement order Registry Rule 3. The Fair Credit Reporting Act “Data Broker” Rule 4. The Residential Property Assessed Clean Energy (PACE) Financing Rule 5. The Residential Mortgage Servicing Proposed Rule 6. Credit Card Penalty fees under Reg Z (Late Fee Rule) 7. Personal Financial Data Rights (Open Banking) Rule under Section 1033 of Dodd-Frank 8. Overdraft Lending Rule Applicable to very large financial institutions 9. Prohibition on creditors and consumer reporting agencies reporting medical debt under Reg V Part 1 of our podcast concludes with Rich and John describing the fact that supervision and examination of banks and non-banks is apparently on hold. This podcast show was hosted by Alan Kaplinsky, the former practice group leader for 25 years of the Consumer Financial Services Group and now Senior Counsel. /episode/index/show/consumerfinancemonitor/id/36082560

A Deep Dive Into Judge Jackson’s Preliminary Injunction Order Against CFPB Acting Director Vought 04/04/2025

A Deep Dive Into Judge Jackson’s Preliminary Injunction Order Against CFPB Acting Director Vought Our special podcast show today deals primarily with a 112-page opinion and 3-page order issued on March 28 by Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia in a lawsuit brought, among others, by two labor unions representing CFPB employees against Acting Director Russell Vought. The complaint alleged that Acting Director Vought and others were in the process of dismantling the CFPB through various actions taken since Rohit Chopra was fired and replaced by Acting Director Scott Bessent and then Acting Director Russell Vought. This process included, among other things, the termination of probationary and term employees and possibly another 1,300 or so employees through a reduction-in-force , the issuance of a stop work order, the closure of the CFPB’s main office in DC and branch offices throughout the country, the termination of most third-party contracts, the decision not to request any additional funding from the Federal Reserve Board for the balance of the fiscal year and the voluntary dismissal of several enforcement lawsuits. Alan Kaplinsky, Senior Counsel and former chair of Ballard Spahr’s Consumer Financial Services Group, and Joseph Schuster, a Partner in the Consumer Financial Services Group, discuss each part of the preliminary injunction issued by Judge Jackson which, among other things, required the CFPB to re-hire all probationary and term employees who had been terminated, prohibited the CFPB from terminating any CFPB employee except for just cause (which apparently does not include lack of work because of the change in focus and direction of the CFPB), required the CFPB not to enforce a previous “stop work” order or reduction-in-force. We observed that Judge Jackson’s order has required the CFPB to maintain for now a work force that is not needed for the “new” CFPB. We also discuss that the preliminary injunction order does not require the CFPB to maintain any of the regulations promulgated or proposed by Rohit Chopra or to continue to prosecute any of the enforcement lawsuits brought by Director Chopra. DOJ filed a notice of appeal on March 29 and on March 31 filed a motion in the DC Court of Appeals to stay Judge Jackson’s order. (After the recording of this podcast, the DOJ filed in the Court of Appeals a motion seeking a stay of Judge Jackson’s order. Pending a hearing on April 9th, the Court issued an administrative stay of Judge Jackson’s order. The 3-Judge panel is composed of two Trump appointees and one Obama appointee.) A copy of the blog co-authored by Alan and Joseph is linked . We also discuss another lawsuit initiated by the City of Baltimore and one other plaintiff against Acting Director Vought in Federal District Court for the District of Maryland seeking to enjoin him from returning to the Federal Reserve Board or the Treasury funds held by the CFPB. The Court denied the motion for preliminary injunction on the basis that it was not ripe for adjudication under the Administrative Procedure Act because the CFPB never actually returned any funds. Finally, Alan expresses surprise that the Acting Director has not relied on the argument that all funds received by the CFPB after September, 2022 were unlawfully obtained because the Dodd-Frank Act stipulates that the CFPB can be funded only out of “combined earnings of the Federal Reserve Banks” and the fact that there have only been huge combined losses of the Federal Reserve Banks since Sept 2022 which continue through today and are likely to continue through the foreseeable future. /episode/index/show/consumerfinancemonitor/id/36004720

Prominent Journalist, David Dayen, Describes his Reporting on the Efforts of Trump 2.0 to Curb CFPB 04/03/2025

Prominent Journalist, David Dayen, Describes his Reporting on the Efforts of Trump 2.0 to Curb CFPB Today’s podcast show features a discussion with David Dayen, executive editor of the American Prospect, which is an online magazine about ideas, politics, and power. He's the author of “Chain of Title: How Three Ordinary Americans Uncovered Wall Street's Great Foreclosure Fraud,” which was published in 2016. David has written and published about 10 or so articles in which he chronicles in great detail the apparent effort by the Trump Administration, acting through Scott Bessent and Russell Vought, to dismantle the CFPB by abruptly ordering a cessation of all activities and layoffs of probationary and term employees and a plan to layoff 1,300 or so additional employees. Because this plan would have crippled the CFPB, two lawsuits were initiated in rapid fashion against Acting Director Vought seeking to enjoin him from pursuing this strategy. One lawsuit was brought by the two labor unions representing CFPB employees and others in the U.S. District Court for the District of Columbia and got assigned to Judge Amy Berman Jackson. The second lawsuit was brought by the City of Baltimore and others in the U.S. District Court for the District of Maryland. David describes in detail the case pending before Judge Jackson, including the hearings at which several CFPB employees testified. Those employees painted a very grim picture of the effort to shut down the agency. The DOJ lawyer stated that there was never an intent to shut down the CFPB and that the steps taken by the Acting Directors to “freeze” the CFPB were similar to steps taken by any new Administration in order to provide time to evaluate the situation and decide what changes should be made to reflect the new Administration’s policy objectives. Shortly after the recording of this podcast, Judge Jackson issued on March 28 a 112-page opinion and 3-page order in which she required the reinstatement with back pay of all CFPB employees that had been terminated, enjoined the CFPB from terminating any employees except for good cause related to the individual employee, fully maintain the consumer complaint portal, ordered the defendants to reinstate all third-party contracts which had been earlier terminated, ordered the defendants to not enforce a February 10 stop-work order and required that the CFPB not destroy any records. The defendants have filed a notice of appeal to the D.C. Circuit Court of Appeals. On March 29. On March 31, the defendants filed a motion in the Court of Appeals to stay Judge Jackson’s order. See for more detail about Judge Jackson’s opinion. Because of the importance of Judge Jackson’s opinion, Alan Kaplinsky and Joseph Schuster have recorded a special (additional) podcast show, where we dissected Judge Jackson’s opinion and order and the other lawsuit brought by the City of Baltimore against Acting Director, Russell Vought, challenging his consideration of returning operating finds to the Federal Reserve Board or Treasury. That podcast will be released tomorrow, Friday, April 4. The Judge in the City of Baltimore case, in which the plaintiffs had not established nearly as complete a record as the case before Judge Jackson, denied the motion for a preliminary injunction based on the Court’s belief that there was no final order which could be challenged under the Administrative Procedure Act. We also discussed the possibility that Congress could subject the CFPB to funding through Congressional appropriations by putting such language in the Budget Reconciliation bill which can be enacted by a simple majority and not 60 votes in the Senate. Alan Kaplinsky, former Chair for 25 years and now Senior Counsel of the Consumer Financial Services Group, hosts the discussion. /episode/index/show/consumerfinancemonitor/id/35990160

A Debate About The Need, If Any, For a Federal Charter for Non-Banks Engaged in the Payments Business 03/27/2025

A Debate About The Need, If Any, For a Federal Charter for Non-Banks Engaged in the Payments Business Our podcast show today features Professor Dan Awrey of Cornell Law School, and Matt Lambert, Deputy General Counsel of the Conference of State Bank Supervisors (“CSBS”) who discuss the pros and cons of Congress enacting a statute which would require federal charter for non-banks engaged in the payments business. At present, such non-banks are generally required to be licensed by state departments of banking under money transmitter laws. On November 14 of last year, , Professor Awrey discussed his working paper “Money and Federalism” in which he advocates for the enactment of Federal legislation creating a Federal charter for non-banks engaged in the payments business, like PayPal and Venmo. The article may be accessed online at and will likely be published in a law review at some time in the future. The abstract of Professor Awrey’s article states, in relevant part: The dual banking system is now under stress. The source of the stress is a new breed of technology-driven financial institutions licensed and regulated almost entirely at the state level that provide money and payments outside the perimeter of both conventional bank regulation and the financial safety net. This article examines the rise of these new monetary institutions, the state-level regulatory frameworks that govern them and the nature of the threats they may one day pose to monetary stability. It also examines the legal and policy cases for federal supremacy over the regulation of these new institutions and advances two potential models, one based on complete federal preemption, the other more tailored to reflect the narrow yet critical objective of promoting public confidence and trust in our monetary system. The CSBS on Nov. 12 of last year published an article on its website entitled “” in which it purported to dispel several myths about state money transmitter and money services statutes. CSBS stated: Recent statements about money transmission in the United States have perpetuated myths about consumer protections and the safety and soundness of this vibrant, secure, and trusted part of our country’s payments ecosystem. It is time that we dispel some of these myths by explaining the realities of the state-developed, nationwide framework for regulation, licensing, and supervision of money transmission. While targeted reforms made through cooperation between the states and federal government may be appropriate, a complete overhaul of an established, secure, convenient, and stable money transmission ecosystem is an unwarranted federal overreach. Because of these sharp differences of opinion between Professor Awrey and CSBS, we decided to invite Professor Awrey and Matt Lambert to be our guests on this show and to discuss the following issues: The historical background to and rationale for state money transmitter laws How the National Multistate Licensing System (“NMLS”) and state supervision work today The emergence of new business models: e.g. PayPal, Stripe, Crypto A brief history of recent federal proposals: from the OCC fintech charter to the current stablecoin bills How state legislatures and regulators have responded to the emergence of new business models (e.g. model act amendments and adoption, new chartering frameworks) Where the federal government can meaningfully improve on these state level responses (standardization, bankruptcy protection, payment network access, systemic risk regulation, international coordination) Where state regulators have a comparative advantage (novel chartering, supervision) Where we think the nonbank payment industry and regulation are heading in 2025 and beyond Alan Kaplinsky, Senior Counsel and former practice group leader of the Consumer Financial Services Group, hosts the podcast show. /episode/index/show/consumerfinancemonitor/id/35886235

How to use the Restatement of Consumer Contracts: A Guide for Judges 03/20/2025

How to use the Restatement of Consumer Contracts: A Guide for Judges Today’s podcast show features a discussion with Professor Gregory Klass of Georgetown University Law School about an article he co-authored with Professor Ian Ayres, entitled “How to Use the Restatement of Consumer Contracts: A Guide for Judges.” The article will be published this year in the Harvard Business Law Review (vol 15), and is available The abstract of the article states: “In the absence of major legislation or regulatory action, U.S. consumers will continue to look to courts and the common law for protection when businesses engage in unfair and deceptive contracting practices. In May 2022, the American Law Institute approved the Restatement of the Law, Consumer Contracts. This new Restatement provides a valuable resource for courts tasked with deciding the legal effects of standard terms that businesses draft and consumers do not read. This essay identifies six pieces of the new Restatement we believe courts should pay special attention to and discusses the importance of each. It also charts several ways courts might go beyond the new Restatement to protect consumers against abusive contracting practices. Unless and until legislators and regulators step in, U.S. courts should continue to reshape the common law to address risks that new technologies of contracting create.” We discuss the following questions related to this Restatement: The history and scope of the Restatement of Consumer Contracts project Why was there perceived to be a need for a separate restatement for consumer contract law when there has been a Restatement of Contracts for many decades? Was it wise to publish a Restatement of Consumer Contracts as opposed to a Statement of Principles since the document to a large extent focuses on what the law should be, rather than on what the law is? The identification of several parts of the Restatement to which Professor Klass believes the courts should pay special attention: a. The “reasonable expectations” rule in Section 4; b. The unconscionability defense in Section 6; c. The deception defense in Section 7; and, d. The Parol Evidence rule Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion. /episode/index/show/consumerfinancemonitor/id/35789350

Prof. Hal Scott Doubles Down on His Argument That CFPB is Unlawfully Funded Because of Combined Losses at Federal Reserve Banks 03/13/2025

Prof. Hal Scott Doubles Down on His Argument That CFPB is Unlawfully Funded Because of Combined Losses at Federal Reserve Banks On June 6 of last year, Prof. Hal Scott of Harvard Law School was our podcast guest. On that occasion he delved into the thought-provoking question of whether the Supreme Court’s decision on May 16 in the landmark case of CFSA v. CFPB really hands the CFPB a winning outcome, or does the Court’s validation of the agency’s statutory funding structure simply open up another question - namely, whether the CFPB is legally permitted under Dodd-Frank to receive funds from the Federal Reserve even though the Federal Reserve Banks have lost money on a combined basis since September 2022. Dodd-Frank provides that the CFPB is to receive its funding out of the Federal Reserve Banks “combined earnings.” The Wall Street Journal published an op-ed by Prof Scott on May 20 titled “The CFPB’s Pyrrhic Victory in the Supreme Court” in which he explains that even though the CFPB’s funding mechanism as written was upheld in CFSA v. CFPB, this will not help the agency now or at any time in the future when the Federal Reserve operates at a deficit. A lot has happened since Prof. Scott’s last appearance on our podcast show. Several enforcement lawsuits filed by the CFPB were faced with motions to dismiss filed by the defendants alleging that the lawsuits could not be financed by the CFPB with funds that were unlawfully procured The CFPB gave short shrift to this argument but never could adequately explain how “earnings” as used in Dodd-Frank really means “revenues” and not profits. While 3 courts rejected the motions to dismiss, those courts decided to do so without dealing with the core issue of whether “earnings” means profits or revenues. President Trump became President on January 20 and, shortly thereafter, Rohit Chopra was terminated. The new Acting Director, Russell Vought, proceeded to shutter the CFPB by, among other things, terminating or putting on administrative leave with instructions to do no work most of its employees and refusing to seek a quarterly funding from the Federal Reserve. Mr. Vought did not base this refusal on the premise that the receipt of such funding would be illegal. Two lawsuits have been filed against the Acting Director challenging the legality of the apparent dismantling of the CFPB. While the CFPB is defending these cases on the basis that the President and the Acting Director have the Constitutional right to downsize and alter the policies of the CFPB, they have surprisingly not made the argument that the CFPB’s funding is unlawful. Prof. Scott on Feb, 1 published another op-Ed in the Wall Street Journal entitled “Rohit Chopra is out. Now Shutter the CFPB” and two articles on the website of the Committee on Capital Markets Regulation (of which Prof. Scott is the President and Director) entitled “Understanding the CFPB’s Funding Problem” and “The Fed’s Accounting Methodology Cannot Expand its Statutory Authority to Fund the CFOB.” Our podcast show released today takes a very deep dive into those articles and explains Prof. Scott’s position that the Fed’s accounting for the massive losses of the Federal Reserve Banks (which creates a deferred asset account composed of anticipated future earnings of the Federal Reserve Banks which the Federal Reserve Banks will not need to remit to the treasury because the banks may recoup its accumulated losses since September 2022) has no bearing on whether the Fed has been lawfully funding the CFPB out of “combined earnings” of the Federal Reserve Banks. Prof Scott also rebuts several counterarguments made by those who claim that the CFPB has been lawfully funded throughout. Prof. Scott also discusses why he believes that congress may use a budget appropriations bill whose passage requires only a majority, not 60, vote in the Senate in order to subject the CFPB to funding through the congressional appropriations process. Our blogs about the Supreme Court decision in CFSA v. CFPB can be found and . To read our blog about Professor Scott’s op-ed in the Wall Street Journal, which includes a link to the op-ed, click . To read his more recent op-ed in the Wall Street Journal, click to read his two articles published on the website of the Committee on Capital Markets Regulation entitled, click and A transcript of the recording will be available soon. /episode/index/show/consumerfinancemonitor/id/35670305

“Accidental Arbitration” -- A New Theory that Would Rein in Consumer Arbitration Clauses and the Scope of the FAA 03/06/2025

“Accidental Arbitration” -- A New Theory that Would Rein in Consumer Arbitration Clauses and the Scope of the FAA Our special guest is David Horton, Professor of Law at the University of California, Davis, who has written a creative and thought-provoking article analyzing how courts should interpret certain key provisions that are frequently used in consumer arbitration agreements. and will be published in the Washington University Law Review later this year. Prof. Horton first contends that courts have misinterpreted the Federal Arbitration Act (FAA) as requiring arbitration clauses to be construed broadly, which in many cases forces consumers to arbitrate disputes they never agreed to because the dispute is not causally related to the consumer’s original transaction with the company. Instead, he argues, courts should be guided by the literal text of the FAA, which limits the statute’s application to disputes that “arise out of” the contract containing the clause. Such an approach would narrow the scope of the arbitration clause to disputes that were contemplated by both parties at the time of contracting. Second, Prof. Horton addresses the issue of third parties who are not signatories to the consumer arbitration agreement but are nevertheless defined as “parties” in the agreement. According to Prof. Horton, such “artificial privity” unduly broadens the scope of the arbitration clause because many courts automatically permit the third parties to enforce the agreement without satisfying more rigorous state law requirements for establishing third-party beneficiary status. Third, Prof. Horton argues that arbitrability questions concerning whether a dispute “arises under” the contract and whether a third party properly has enforcement rights should be decided by a court even if the arbitration clause purports to delegate such issues to the arbitrator. Mark Levin, Senior Counsel in the Consumer Financial Services Group, who helped pioneer the use of arbitration agreements and class action waivers in bank, credit card and other consumer contracts, provides the industry response to each of the arguments asserted by Prof. Horton. Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion. /episode/index/show/consumerfinancemonitor/id/35558885

The Patterns of Digital Deception 02/27/2025

The Patterns of Digital Deception Our podcast show today features Gregory M. Dickinson, Assistant Professor of Law at the University of Nebraska, who was previously a guest on our show on . Our 2023 episode was based on Professor Dickinson’s article titled “Privately Policing Dark Patterns”, 57 Ga. L. Rev. 1633 (2023). The show today focuses on Professor Dickinson’s more recent article, which builds on his 2023 article, titled “The Patterns of Digital Deception”, 65 B. C. L. Rev. 2457 (2024). The abstract to this article states: “Current consumer-protection debates focus on the powerful new data-analysis techniques that have disrupted the balance of power between companies and their customers. Online tracking enables sellers to amass troves of historical data, apply machine-learning tools to construct detailed customer profiles, and target those customers with tailored offers that best suit their interests. It is often a win-win. Sellers avoid pumping dud products and consumers see ads for things they actually want to buy. But the same tools are also used for ill—to target vulnerable members of the population with scams specially tailored to prey on their weaknesses. The result has been a dramatic rise in online fraud that disproportionately impacts those least able to bear the loss. The law’s response has been technology centric. Lawmakers race to identify those technologies that drive consumer deception and target them for regulatory restrictions. But that approach comes at a major cost. General-purpose data-analysis and communications tools have both desirable and undesirable uses, and uniform restrictions on their use impede the good along with the bad. A superior approach would focus not on the technological tools of deception but on what this Article identifies as the legal patterns of digital deception—those aspects of digital technology that have outflanked the law’s existing mechanisms for redressing consumer harm. This Article reorients the discussion from the power of new technologies to the shortcomings in existing regulatory structures that have allowed for their abuse. Focus on these patterns of deception will allow regulators to reallocate resources to offset those shortcomings and thereby enhance efforts to combat online fraud without impeding technological innovation.” During the show, we discuss the following questions: What is digital deception? What are some examples of digital deception? How is modern online deception any different from old-fashioned, in-person fraud? What have lawmakers been doing to address this issue? Have they succeeded? What sorts of restrictions are on the horizon? What are the challenges to lawmaking in this area? How do these challenges tie in with the “Patterns of Digital Deception”? Given these challenges, what sort of approach should state and federal lawmakers take? Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion. /episode/index/show/consumerfinancemonitor/id/35456865

Banking as a Service 02/20/2025

Banking as a Service Our podcast show today features Jason Mikula, publisher of Fintech Business Weekly; a newsletter going beyond the headlines to analyze the technology, regulatory and business model trends, driving the rapidly evolving financial services ecosystem at the intersection of traditional banking, payments, FinTech and crypto. We discuss his recently released book, titled “Banking as a Service: Opportunities, Challenges, and Risks of New Banking Business Models” (Kogan Page 2024). The publisher describes the book as follows: “This book provides a comprehensive look at banking-as-a-service (BaaS), equipping readers with an understanding of the origins, evolution, future and applications of BaaS and the key differences across global markets.” BaaS is a game changer in the financial services sector, radically transforming both how consumers experience financial products and the business models delivering them. “Banking as a Service” cuts through the hype to provide a measured overview of BaaS, helping readers to demystify a complex evolving field, and understand its key opportunities, challenges, and risks. It provides a framework for understanding where BaaS came from, how BaaS changes the economics and business models of banking products and services, its impact on key stakeholders, and its key regulatory implications. “Banking as a Service” explains how business and operating models work, exploring different models such as interchange, deposit gathering, loan origination-to-distribute, legacy, API-first, own license, match-making and bank service providers, and offers a framework for thinking about whether or not they're sustainable. It explores how BaaS operating and business models compare in different global territories and is supported by real-world examples and cases profiling organizations such as Blue Ridge Bank, Unit, Synapse, Goldman Sachs, Railsr, Starling, Solaris, Cacao Paycard, QNB, OnePipe, Airwallex, Nium and Pomelo. It also explains the differences between BaaS, embedded finance and “open banking.” Alan and Jason discuss the answers to the following questions and topics: 1. What do we mean when we say "banking as a service"? 2. What are the different BaaS business models/operating models? 3. What led to the explosion in banking-as-a-service? 4. Why have bank/fintech partnerships had a rough go of it lately in the US and is that likely to change with a new administration? 5. What is (or what should be) regulators' role in supervising non-bank entities in the BaaS value chain (eg, middleware, customer-facing fintechs)? 6. What is an FBO and are FBOs the "original sin" of banking-as-a-service? 7. What advice would you give to banks considering getting into the BaaS space? How do you see the market evolving from here - for banks, for technology providers, and for customer-facing companies? 8. What advice would you give to fintechs that rely on a bank partner or are looking for one? Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion. /episode/index/show/consumerfinancemonitor/id/35363615

The Fall of The CFPB, The Rise of The State AG 02/14/2025

Will the State Attorneys General and Other State Agencies Fill the Void Left by the CFPB? 02/12/2025

Will the State Attorneys General and Other State Agencies Fill the Void Left by the CFPB? Today’s podcast show is a repurposing of the second half of a webinar we produced on January 17, 2025. That webinar was Part 3 of our webinar series entitled “The Impact of the Election on the CFPB and Others.” In Part 3, we focus on the role of state attorneys general in a rapidly shifting CFPB environment. Our previous podcast show, released on Tuesday February 11th, was a repurposing of the first half of our January 17th webinar in which Alan Kaplinsky had a “fireside chat” with Matthew J. Platkin, the New Jersey Attorney General. See . The importance of Part 3 is underscored by the recent actions taken by President Trump to fire Rohit Chopra as Director of the CFPB and to appoint new Treasury Secretary, Scott Bessent, and then new Office of Management and Budget (OMB) Director, Russell Vought, as Acting Directors, Messrs. Bessent, and Vought have essentially stopped all activities of the CFPB for the time being. During today’s podcast show, Mike Kilgarriff, Joseph Schuster, Adrian King and Jenny Perkins of Ballard Spahr’s Consumer Financial Services Group discussed in detail the following issues, among others: • CFPB post-election messaging to state attorneys general providing a roadmap to them on powers they may exercise under federal law, including the use of the UDAAP provision of Dodd-Frank (particularly the “abusive” prong) • The probable decline in collaboration with the CFPB following the change in administration • More networking of state attorneys general • What can we expect from state legislatures in enacting new consumer financial services protection laws? • What can we expect from state attorneys general and other state agencies in promulgating new consumer financial services protection laws? • The continuing need for companies to maintain a robust compliance management system Parts 1, 2 and 3 of our webinar series appear , , and . Our podcast shows (repurposing Parts 1 and 2 of our webinar series) appear , , , and . The title of Part 1 is: “The Impact of the election on the CFPB: Regulations and other written guidance, which featured Alan Kaplinsky’s “fireside chat” with David Silberman who held senior positions at the CFPB for almost 10 years during the Directorships of Cordray, Mulvaney, and Kraninger. Part 2 is: “The Impact of the Election on the CFPB: Supervision and Enforcement, which featured Alan Kaplinsky’s “fireside chat” with former Director Kathy Kraninger during Trump‘s first term in office. Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion. /episode/index/show/consumerfinancemonitor/id/35257385

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