Consumer Finance Monitor
The Consumer Financial Services industry is changing quickly. This weekly podcast from national law firm Ballard Spahr focuses on the consumer finance issues that matter most, from new product development and emerging technologies to regulatory compliance and enforcement and the ramifications of private litigation. Our legal team—recognized as one of the industry's finest— will help you make sense of breaking developments, avoid risk, and make the most of opportunity.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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“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.
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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.
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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.
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The Fall of The CFPB, The Rise of The State AG
02/14/2025
The Fall of The CFPB, The Rise of The State AG
In this episode of the Consumer Finance Monitor Podcast, Ballard Spahr partners Mike Kilgarriff and Joseph Schuster break down the seismic shifts in consumer financial regulation following the dramatic changes at the CFPB. With the Bureau’s enforcement and supervisory activities on hold, state attorneys general are stepping in to fill the regulatory void. Mike and Joseph explore what this means for financial institutions, how businesses should navigate the evolving landscape, and the increasing role of state AGs in consumer protection enforcement. Tune in for insights on what’s next in the world of financial regulation.
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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.
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Alan Kaplinsky’s “Fireside Chat” with Matthew J. Platkin, New Jersey Attorney General
02/11/2025
Alan Kaplinsky’s “Fireside Chat” with Matthew J. Platkin, New Jersey Attorney General
Today’s podcast show is a repurposing of Alan Kaplinsky’s “fireside chat” with Matthew J. Platkin, the New Jersey Attorney General, which was the first half of a webinar we produced on January 17, 2025. That webinar was Part 3 of our webinar series entitled “The Impact of the Election on the CFPB and Others.” In Part 3, we focus on the role of state attorneys general in a rapidly shifting CFPB environment. The importance of Part 3 is underscored by the recent actions taken by President Trump to fire Rohit Chopra as Director of the CFPB and to appoint new Treasury Secretary, Scott Bessent, and then new Office of Management and Budget (OMB) Director, Russell Vought, as Acting Directors. Messrs, Bessent, and Vought have essentially temporarily stopped all activities of the CFPB for the time being. During our “fireside chat” with General Platkin, we discussed the following topics, among others: 1. What is General Platkin’s background, including his stint as Chief Counsel to the New Jersey Governor? 2. Since General Platkin has been New Jersey Attorney General, what are some examples of the consent orders or lawsuits he has initiated related to consumer financial services? 3. Has the New Jersey Attorney General previously collaborated with the CFPB and/or FTC in investigating certain companies or segments of the consumer financial services industry, and is that likely to change? 4. What effect will there be on consumers in New Jersey if President Trump appoints (as he did) an Acting Director of the CFPB whose interpretation and enforcement of federal consumer protection laws differs markedly from Rohit Chopra? 5. What will the New Jersey Attorney General’s office do in response to this anticipated shifting CFPB environment? 6. Elon Musk has called for the deletion of the CFPB and Project 2025 has also called for the elimination of the CFPB. If that were to happen, what would the New Jersey Attorney General’s office do to fill this anticipated void? 7. We then looked beyond New Jersey to other state attorney general’s offices similarly situated to the New Jersey Attorney General office – who will have the need to initiate more cases when resources are limited. We discussed how state Attorney General’s (including the New Jersey Attorney General) have networked with each other to investigate and sue companies that are violating consumers’ rights in multiple states. We then discussed why it is anticipated that the networking process is likely to increase. 8. The areas of consumer financial protection law and segments of the consumer financial services industry that will be areas of focus for the New Jersey Attorney General during 2025? Our next episode will be the second half of our January 17 webinar in which several of our colleagues will explore in depth why we expect state Attorney General’s offices to significantly ramp up their investigations involving and lawsuits filed against banks and other consumer financial services providers. Parts 1, 2 and 3 of our webinar series appear , , 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.
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Regulating Bank Reputation Risk
02/06/2025
Regulating Bank Reputation Risk
Today’s podcast show features a discussion with Julie Andersen Hill about her law review article titled “”, 54 GA. L. Rev. 523 (2023). Professor Hill is the Dean and Wyoming Excellence Chair of the University of Wyoming College of Law. The abstract to Professor Hill’s article does an excellent job of summarizing her thesis: This Article surveys reputation risk guidance and enforcement efforts. It shows that reputation risk regulation is usually an ancillary consideration to credit risk, operational risk, or other primary risk. In these instances, reputation risk adds little because regulators have strong tools to address the root problems. Sometimes, however, regulators justify guidance or enforcement primarily in terms of controlling reputation risk. Regulators use reputation risk to weigh in on hot-button political topics afield from safety and soundness like gun rights, payday lending and fossil fuels. Because regulators believe that reputation risk is present in every facet of banking, little prevents them from using it to address other controversies. This Article argues that expansive regulation of reputation risk is harmful. There is little evidence that can accurately predict and prevent bank reputational losses. Moreover, because reputation risk is largely subjective, regulators can use it to further political agendas apart from bank safety and soundness. Unnecessary politicization of banking regulation undermines faith in the regulatory system and correspondently erodes trust in banks. During our discussion, Professor Hill addressed the following issues: What is reputation risk? What legal authority do bank supervisors have to regulate reputation risk? Why do you believe that the regulation of reputation risk is unnecessary and harmful? What is Operation Choke Point all about and how did it turn out? What was the outcome in the U.S. Supreme Court in NRA v. Vullo of the New York State bank regulator urging state banks to manage the reputation risk posed by doing business with the National Rifle Association? Has concern over the regulation of reputation risk subsided in light of the termination of Operation Chokepoint and the unanimous Supreme Court opinion in NRA v. Vullo? Why does there appear to be renewed worry that regulators are using reputation risk and other justifications to force banks to cut services to people, businesses or industries that they don’t like? Is there any credence to the claims of Elon Musk and others that crypto and tech startups are being debanked or denied fair access to banking services? In light of the fact that President Trump himself and many members of Congress are troubled by debanking claims, what sort of policy changes are likely to be considered? What is the likelihood of the OCC promulgating a regulation prohibiting debanking in Trump 2.0 similar to the one it almost finalized in Trump 1.0? The importance of this podcast is underscored by the fact that yesterday, the Senate Committee on Banking, Housing and Urban Affairs held a hearing entitled “Investigating the Real Impacts of Debanking in America.” Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion.
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The Impact of the Election on the CFPB: What to Expect with Supervision and Enforcement During Trump 2.0
01/30/2025
The Impact of the Election on the CFPB: What to Expect with Supervision and Enforcement During Trump 2.0
Our podcast show today features John Culhane and Mike Kilgarriff, partners in Ballard Spahr’s Consumer Financial Services group. They discuss what supervision and enforcement will look like under a new acting director/director appointed by President Trump. This episode is a repurposing of the second half of a webinar that was produced on January 6. On January 23, we released the first half of the webinar, which consisted of Alan Kaplinsky’s “fireside chat” with Kathy Kraninger, the former Director of the CFPB during Trump 1.0., linked . With respect to supervision, we consider, among others, the following issues with respect to the CFPB’s leadership under Trump 2.0: (a) Will it be business as usual or more relaxed? (b) Will it focus on compliance with the Federal consumer financial services laws and less on UDAAP? (c) Will there be reduced staffing and fewer exams? (d) Will there be fewer PAAR letters and more use of MRAS and MRIAs? With respect to enforcement, we consider, among others, the following issues with respect to the CFPB’s leadership under Trump 2.0: (a) Will there be an exhaustive review of all existing investigations and lawsuits and a dismissal of those which involve “regulation by enforcement” or “pushing the envelope”? (b) Will they focus more on fraud and scams and less on UDAAP? (c) What position will they take on whether the CFPB has been unlawfully funded because the Federal Reserve Banks have had no combined earnings since September 2022? Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion.
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Alan Kaplinsky’s “Fireside Chat” with Kathy Kraninger, Former Director of the CFPB During Trump 1.0
01/23/2025
Alan Kaplinsky’s “Fireside Chat” with Kathy Kraninger, Former Director of the CFPB During Trump 1.0
Today’s podcast episode is a repurposing of Alan Kaplinsky’s “fireside chat” with Kathy Kraninger, the Director of the CFPB during the second half of President Trump’s presidency from December 2018 until January 2021. (This was originally the first half of a webinar we did on January 6, 2025 which was entitled “The Impact of the Election on the CFPB - Supervision and Enforcement.” The January 6 webinar is Part 2 of a 3-part series. Next Thursday, we will release the second half of that webinar which will feature Ballard Spahr partners, John Culhane and Mike Kilgariff, who will take a deep dive into the expected changes in CFPB supervision and enforcement during President Trump’s second term in office.) During her “fireside chat” with Alan, Kathy discussed the following things: (a) How she was nominated by Trump to be the Director and succeeded Mick Mulvaney, the acting Director appointed by Trump to succeed Richard Cordray as Acting Director; (b) Organizational and other changes made by Mulvaney and/or Kraninger, including a hiring freeze, appointments of new heads of departments, etc; (c) The practical impact on CFPB operations of the Supreme Court’s opinion in the Seila Law case in which the Court held that the President had the right to remove the CFPB director without cause; (d) Her priorities as Director, including her regulatory, supervisory and enforcement agendas; (e) Her policy statements on “abusiveness”, supervisory expectations and COVID-19; (g) Her thoughts on what she anticipates will change at the CFPB once a new acting director chosen by Trump succeeds Rohit Chopra; and (h) Her thoughts on whether Congress should re-structure the CFPB’s governance and funding. The “fireside chat” provides stakeholders in the CFPB insight into what may happen at the CFPB during Trump 2.0. There will, however, be some important differences between the circumstances that existed during the transition from Cordray to Mulvaney Kraninger during Traump 1.0 and the transition from Chopra to a new acting Director during Trump 2.0.. At the time when Mick Mulvaney became Acting Director, there were no pending lawsuits challenging CFPB final regs and other actions. During Mulvaney’s term in office, a trade association of payday lenders sued the CFPB challenging the CFPB’s payday lending rule and, in particular, its “ability to pay” requirement. The acting director appointed by Trump will inherit multiple pending lawsuits against the CFPB challenging many of the regs issued by the CFPB under Rohit Chopra’s last two years as Director. The Acting Director will need to develop legislative (Congressional Review Act), judicial and regulatory strategies for dealing with the slough of regs, proposed regs and other written guidance issued by Chopra. The Acting Director will also need to quickly decide what position the CFPB will take with respect to the defense raised in at least 13 enforcement lawsuits claiming that the CFPB has been disabled from conducting business since September 2022 when there was no longer any “combined earnings of the Federal Reserve Banks” - a prerequisite to the Federal Reserve Board funding the CFPB under the Dodd-Frank Act. Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion.
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The CFPB’s Proposed Data Broker Rule
01/16/2025
The CFPB’s Proposed Data Broker Rule
In today’s episode, we discuss the CFPB’s recent proposed data broker rule—a proposal that would greatly expand the reach of the Fair Credit Reporting Act. On December 3, the CFPB issued a proposed rule promoted as one that would require companies that sell data about income or financial tier, credit history, credit score or debt payments to comply with the Fair Credit Reporting Act. The proposal would make it clear that when data brokers sell certain sensitive consumer information, they are “consumer reporting agencies” under the FCRA. That would require them to comply with accuracy requirements. It also would require them to provide consumers access to their information. However, the proposal is much broader than a data broker rule, and the podcast explores the significant breadth of the proposal. The rule might face an uncertain future, since it was issued by current CFPB Director Rohit Chopra and pushes beyond the boundaries of the FCRA. Chopra’s aggressive regulatory regime is opposed by the Trump Administration. Joining us today is Dan Smith, president and CEO of the Consumer Data Industry Association, which represents the consumer data reporting industry. The host of the discussion is Alan Kaplinsky, the former practice group leader for 25 years, and now senior counsel of the Consumer Financial Services Group at Ballard Spahr. Joining the discussion are two Ballard Spahr partners: Richard Andreano, the practice leader of our mortgage banking group at Ballard Spahr and John Culhane. In this episode, we will discuss the key aspects of the landmark proposed rule, such as: 1. The proposal being much broader than one addressing the sale of personal information to various parties, including stalkers, spies and scammers. 2. The fact that the proposal does not even define what is a data broker. 3. How the proposal would significantly change the concept of what constitutes a consumer report, including the proposal to treat credit header information as a consumer report. 4. How the proposal would change the concept of what constitutes a consumer reporting agency. 5. Requirements that the proposal would add to the written authorization permissible purpose to obtain a consumer report, including requirements regarding revocation of the authorization. 6. How the proposal would modify the requirements to rely on the legitimate business need permissible purpose to obtain a consumer report. 7. Whether the CFPB actually has legal authority to essentially rewrite the FCRA.
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The Impact of the Election on the CFPB: What to Expect on Key Regulatory Issues During Trump 2.0
01/09/2025
The Impact of the Election on the CFPB: What to Expect on Key Regulatory Issues During Trump 2.0
Today’s podcast episode is part two of our December 16th webinar, where we discussed the impact of the election on CFPB rulemaking. Part one consisted of a “fireside chat” with David Silberman, who held several senior-level positions at the CFPB for almost ten years under both Democratic and Republican administrations. In part two, Ballard Spahr partners John Culhane and Joseph Schuster address the following questions: 1. What will happen to CFPB regulations issued before January 20, such as the CFPB’s credit card late fee rule, which is currently being challenged in a Texas federal court? 2. What will happen to proposed regulations that may still be finalized before January 20, such as the interpretive rule on earned wage access plans and the proposed contract clause registry? 3. What will happen to other written guidance from the CFPB, such as the circular on unenforceable contract terms and the advisory opinion on requests for information under Section 1034(c) of Dodd-Frank? 4. What will be the impact of the Congressional Review Act? 5. What will be the impact of litigation challenges? 6. What will rulemaking look like under the new Director? 7. What will be the impact of the U.S. Supreme Court’s opinion in Loper Bright Enterprises which repealed the Chevron judicial deference doctrine? Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Ballard Spahr’s Consumer Financial Services Group, hosts the discussion.
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Alan Kaplinsky’s “Fireside Chat” with Former CFPB Leader David Silberman: His Experience During the Prior Transition from the Obama Administration to Trump 1.0
01/02/2025
Alan Kaplinsky’s “Fireside Chat” with Former CFPB Leader David Silberman: His Experience During the Prior Transition from the Obama Administration to Trump 1.0
Today’s podcast episode is a repurposing of part one of our December 16 highly-attended and praised webinar consisting of Alan Kaplinsky’s exclusive interview of David Silberman, who held several senior positions at the CFPB for almost 10 years under both Democratic and Republican administrations. Part two of our December 16 webinar, featuring Ballard Spahr partners John Culhane and Joseph Schuster, is to be released on January 9. They focus their attention on the impact of the election on the CFPB’s regulations (final and proposed). Our December 16 webinar is the first part of our three-part intensive look at this transitional period for the CFPB. The goal of our three-part series is to help us predict what is in store for the CFPB during the next four years. As a former senior leader at the CFPB during the only other transition of the CFPB from a Democratic to a Republican administration led by former President Trump, Mr. Silberman has special insight about what is likely to happen to the CFPB during Trump 2.0. While nobody yet knows who Trump will nominate as the next CFPB director, Mr. Silberman makes the point that, of potentially greater importance, at least initially, is who Trump selects as the acting director. If what happened in Trump 1.0 is any indication, the acting director may end up serving for a lengthy period of time just like Mick Mulvaney served as acting director for a lengthy period of time before Kathy Kraninger was nominated by Trump, confirmed by the Senate and sworn-in as director. Under the Vacancy Reform Act, the acting director must be either a current senior officer of the CFPB or someone who has already been confirmed by the Senate for a different position. Among other things, Mr. Silberman addressed the following topics during his interview: 1. What were some of the first steps that Mr. Mulvaney took when he became acting director and will they be replicated by a new acting director? 2. How will a new acting director deal with the many lawsuits brought by trade groups challenging CFPB final rules issued by Director Chopra? Will there be a distinction made between final rules in which district courts have ruled on motions for preliminary injunction and those where courts have not so ruled. Will there be distinctions made between final rules where courts have granted or denied injunctive relief? Finally, will there be distinctions made between final rules mandated by Dodd-Frank and so-called discretionary rules? 3. Which final rules are still subject to being overridden by the Congressional Review Act and what are the odds of that happening with respect to any of such rules? 4. How will the new acting director deal with proposed rules as of January 20? 5. How will the new acting director deal with CFPB enforcement investigations and lawsuits initiated by Chopra, including those which arguably “push the envelope” with respect to the CFPB’s jurisdiction? 6. Will the new acting director agree with many industry pundits that the CFPB has been unlawfully funded by the Federal Reserve Board since September, 2022 in light of the language in the Dodd-Frank Act which permits funding of the CFPB only out of “combined earnings of the Federal Reserve Banks” and the fact that there have been no such combined earnings since September 2022 and the likelihood that no such combined earnings are anticipated in the near future. Does this impact actions taken by the CFPB since September 2022? 7. What role, if any, will the White House play in directing or influencing CFPB policy? What impact, if any, might the Department of Government Efficiency (DOGE) have on the CFPB? 8. Do you expect the new acting director to initiate any rulemakings other than those required by Dodd-Frank? 9. Will the new acting director be more supportive of innovation than Chopra and, if so, how will that be reflected? Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion.
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Navigating the New CFPB Open Banking Rule
12/26/2024
Navigating the New CFPB Open Banking Rule
In today’s podcast episode, we’re joined by Alex Johnson, Founder of Fintech Takes, and Paige Paridon, Senior Vice President, Senior Associate General Counsel & Co-Head of Regulatory Affairs at Bank Policy Institute, to take a deep dive into the new Consumer Financial Protection Bureau Open Banking Rule. The CFPB has issued a groundbreaking final rule implementing Section 1033 of the Dodd-Frank Act, significantly expanding consumer access to their financial data. This new Open Banking Rule will have far-reaching implications for financial institutions, fintech companies, and consumers alike. In this episode, we’ll explore the key aspects of this landmark regulation, such as: 1. The scope, rule requirements, and compliance deadlines 2. Complexities of implementing new interfaces and data security measures 3. Potential pitfalls and best practices to mitigate risks, including a lawsuit challenging the legality of the rule 4. How the rule can foster innovation and enhanced consumer experiences 5. The impact of presidential election and presumed appointment of new Acting Director of CFPB Alan Kaplinsky, former Practice Leader and Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates today’s episode, and is joined by Gregory Szewczyk and Hilary Lane, Partners in Ballard’s Privacy and Data Security Group.
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Banks Aren’t Over-Regulated, They Are Over-Supervised
12/19/2024
Banks Aren’t Over-Regulated, They Are Over-Supervised
In today’s podcast episode, we are joined by Raj Date, who has served in a variety of roles at the Consumer Financial Protection Bureau, including as the acting head of the agency and as it’s first-ever Deputy Director. He recently wrote a thought-provoking article in a new online publication, Open Banker, entitled “Banks Aren’t Over-Regulated, They Are Over-Supervised.” Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion, and is joined by Joseph Schuster, a partner in the Group. By way of background, Mr. Date described how bankers have almost uniformly complained to him that banks are over-regulated. Mr. Date responds to these complaints in his article as follows: More than a decade later, I realize that those bank CEOs were not exactly wrong, they were imprecise: Banks are not over-regulated, but they are — quite dramatically — over-supervised. Mr. Date makes the following points in support of his thesis that the banking industry is over-supervised: 1. Bank examination tries to cover too many areas and, as a result, sometimes fails to see the forest through the trees. 2. Bank examination obsessively focuses on process rather than substance. That focus is evidenced by the supervisors’ requirements that the banks document everything. 3. It takes far too long for banks to receive examination reports after exams are completed, sometimes years later. The final exam reports are often anachronistic. 4. Bank examinations often stultify bank innovation because supervisors’ examinations are often critical of banks offering new products and services and this results in bank management being reluctant to innovate out of fear that they will be downgraded. 5. Examiners’ focus on process rather than risk itself has resulted in a bank management brain drain. Mr. Date then explains how the examination process should be changed. Mr. Date first calls for immediate changes even though the banking industry is largely thriving. Mr. Date suggests the following approach in his article and during the podcast: The only solution is strong top-down leadership that imposes ambitious goals. Without stretch goals that will feel strikingly out of reach at the outset, real change will not be possible. If it were me, I would set out, in a pilot with a handful of mid-sized banks, to structure a supervisory exam strategy that costs 75% less (in combined bank and agency costs) and is 75% faster from first-day letter to final report than today’s norms.[9] I would embrace pilot uses of new technology tools in pursuit of those goals. And then I would iterate on those initial (almost certainly unsuccessful) results. This will be difficult, and even painful. But I very much believe it will be worth it. While acknowledging the issues with over-supervision, Joseph directs significant attention to the problem of over-regulation. He argues that modern regulatory practices have become more complex, restrictive, and less clear, creating barriers to innovation and access to credit. Joseph highlights how over-regulation stifles the development and availability of consumer finance products. Joseph explains how products like "Buy Now, Pay Later" (BNPL) face regulatory hurdles despite addressing consumer needs effectively. Joseph also discusses the potential negative impact of proposed changes to late fee regulations, warning that such measures could limit access to credit and push consumers toward higher-cost alternatives. Joseph criticizes the heavy-handed approach taken by regulators, such as the CFPB’s issuance of circulars, which adds further uncertainty and complexity for institutions attempting to innovate in this space. Joseph advocates for a return to a more structured and transparent regulatory framework. He suggests that agencies recommit to the principles of the Administrative Procedures Act (APA), emphasizing the importance of notice-and-comment rulemaking. Drawing parallels to the Federal Reserve Board’s process during the implementation of the Credit Card Accountability, Responsibility, and Disclosure (CARD) Act, Joseph argues that meaningful engagement with the industry could lead to clearer regulations that balance consumer protection with innovation and operational feasibility. Joseph endorses Raj Date’s call for clear and focused priorities in the supervisory process, and emphasizes that both banks and examiners benefit from a more straightforward understanding of the rules. Joseph concludes by warning against the trend of "regulation through enforcement," which undermines transparency and predictability, ultimately harming consumers and financial institutions alike.
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Consumer Federation of America (“CFA”) Speaks Out About CFPB’s and FTC’s Direction During the Trump Administration
12/12/2024
Consumer Federation of America (“CFA”) Speaks Out About CFPB’s and FTC’s Direction During the Trump Administration
If you work for a bank or other consumer financial services provider, you will want to listen closely to how consumer advocates are reacting to Trump’s election insofar as the CFPB and FTC are concerned. In today’s podcast episode, we’re joined by Erin Witte and Adam Rust (the “CFA Reps”) from CFA. We focus first on CFPB and FTC regulations that might be finalized during the lame duck session of Congress. The CFA Reps express hope that the FTC would finalize its so-called “junk fee reg” which, as proposed, called for “all-in” pricing (I.e., disclosure of a dollar amount for goods and services that includes all fees that will be charged in connection with the transaction.) They also express hope that the CFPB will finalize its checking account overdraft fees reg, the larger participant rule pertaining to non-bank payment providers and the medical debt rule which, if finalized, would result in unpaid medical debt no longer appearing on credit bureau reports. Of course, there is a risk, with respect to each of these rules as well as any other CFPB and FTC rules finalized roughly after August 1 of this year, which they may be overruled by Congress under the Congressional Review Act. We then discuss final regs promulgated by the FTC and CFPB which have been challenged in the Circuit Courts of Appeal. For the FTC, this includes the so-called CARS Rule (which imposes restrictions on car dealers’ sales and financing of motor vehicles) and the recent “Click-to-Cancel” Rule which, among other things, requires sellers of goods and services on a subscription basis to be able to cancel subscriptions as easily as signing up for subscriptions. The latter rule has been challenged in four circuit courts of appeal. We also discuss the status of many CFPB final regs and what a new CFPB’s strategy may be with respect to them. They include: the $8 credit card late fee rule which is currently enjoined by a Federal District Court in Texas; the data collection reg pertaining to small business loans promulgated under Section 1071 of Dodd-Frank, which is currently on appeal before the Fifth Circuit Court of Appeals after a Federal District Court denied a motion by the bank trade associations to grant a preliminary injunction pertaining to the reg; the open-banking reg under Section 1033 of Dodd-Frank (which pertains to consumers having the ability to share information in certain bank accounts with third parties which has been challenged in court; the Buy-Now, Pay-Later interpretive rule which has been challenged in court; and the Earned Wage Access interpretive rule. There is great uncertainty as to whether the new CFPB’s Director will seek to repeal or amend any of these regs or whether he or she will elect to change the CFPB’s position in the litigation to side with the plaintiffs. In order to repeal or change any of the regs (other than the two interpretive rules), the CFPB will need to jump through all the hoops required by the Administrative Procedure Act before effecting a repeal or change and the repeal or change might be challenged in court as being arbitrary or capricious. It would seem that it might be much easier to repeal or change the interpretive rules which would not require publishing them in the Federal Register for notice and comment. The CFS Reps also express hope that the CFPB issues its final report with respect to the voluminous information it received from auto finance companies in response to market monitoring orders it issued to them. An initial report recently issued by the CFPB and dealt with the incidence of financing negative equity in cars being traded in. While the final report is unlikely to result in new proposed CFPB regulations during the next four years, the report might instigate enforcement actions by state AGs. As was the case during the first Trump presidency, the CFA Reps believe that whatever consumer protection void is created at the CFPB will largely be filled by state AGs, state departments of banking and consumer protection agencies. They also expect there to be an increase in private civil litigation, including class actions. Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion.
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A Look at the FTC’s Click-to-Cancel Rule, with James Kohm, Associate Director of Enforcement Division of the FTC’s Bureau of Consumer Protection
12/05/2024
A Look at the FTC’s Click-to-Cancel Rule, with James Kohm, Associate Director of Enforcement Division of the FTC’s Bureau of Consumer Protection
Today’s podcast features James Kohm, the Associate Director for the Enforcement Division of the Federal Trade Commission’s Bureau of Consumer Protection. We discuss the FTC’s “Click-to-Cancel” Rule (consisting of significant amendments to the longstanding “Negative Option Rule”) which was promulgated by the FTC on October 16, 2024 by a vote of 3-2 along party lines. Before discussing the specifics of the new rule, Mr. Kohm describes the FTC’s Negative Option Rule adopted in 1973. It required sellers to clearly disclose the terms of any such negative option plan for the sale of goods before consumers subscribe. In such plans, consumers are notified of upcoming merchandise shipments and have a set period to decline the shipment. Sellers interpret a customer’s silence, or failure to take an affirmative action, as acceptance of an offer. The Negative Option Rule was initially adopted to deal with mail order plans like the “book-of-the-month” club. With the proliferation of sales of goods and services over the Internet, the FTC concluded that it was necessary to update the Negative Option Rule to remedy what it considered to be widespread unfair and deceptive practices related to subscription plans sold over the Internet, particularly the difficulty consumers were often having in canceling subscriptions. There are several parts of the “Click-to-Cancel Rule. The first part of the Rule prohibits material misrepresentations related not only to the negative option feature, but also any other material feature of the transaction for the goods or services. Another part of the Rule are the disclosure requirements which relate to the cost of the goods or services, the fact that the charges will be assessed periodically, how often the consumer will be charged and how to cancel the subscription. The Rule also requires that the seller obtain the consumer’s express consent to the transaction which the seller must maintain in its records for a prescribed period of time. The centerpiece of the Rule is that the seller must make it as easy to cancel the subscription as it is to enter into the subscription. Mr. Kohm explains that because the Rule was adopted under the Magnusson Moss Act, the FTC will be able to recover monetary relief and civil money penalties for violations - something which the Supreme Court ruled that the FTC may not recover for enforcement actions brought under section 13 of the FTC Act alleging unfair and deceptive acts or practices. Mr. Kohm also explains that sellers are covered by the Rule to the full extent of the FTC’s jurisdiction. Therefore, the Rule covers business-to-business transactions as well as business-to-consumer transactions. Banks and other depository institutions are not covered by the Rule. There is also no private right of action under the Rule. Mr. Kohm then describes several petitions to invalidate the Rule which have been filed in four federal circuits courts of appeal. There have not yet been any substantive rulings in any of the cases. We then ask Mr. Kohm for his opinion as to whether the composition of the Commission would change as a result of the outcome of the Presidential election and whether that might result in the Rule being repealed or amended to satisfy industry concerns. The President has the right to nominate the new Chair who will undoubtedly be a Republican. At that point, the Commission will be controlled 3-2 by Republicans. Since two Republican Commissioners have already dissented from the Rule, there is some possibility that the Rule might be repealed or amended before it goes effective. Mr. Kohm observes that since the rulemaking was launched at a time when Republican Commissioners held a majority of the five seats, it was not a foregone conclusion that the Commission would vote to repeal or amend the Rule. Since the Rule does not prohibit the use of negative options subscription contracts and just about everyone has had difficulty in canceling such contracts, it could very well be that the Rule remains largely intact. Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion.
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Post-Election Insights: Impacts on the Banking and Consumer Financial Services Industry
11/27/2024
Post-Election Insights: Impacts on the Banking and Consumer Financial Services Industry
Today’s podcast episode is a re-purposing of a webinar we recorded on November 12, 2024. Our special guests for that webinar were Colin Carr, Vice-President of Congressional affairs at the Consumer Bankers Association and Ian Katz, Managing Director at Capital Alpha Partners. John Culhane, a partner in the Consumer Financial Services Group at our firm. The webinar begins with Colin giving us an overview of President-Elect Trump’s victory and the Senate and House elections which resulted in the Republicans achieving close majorities in both chambers. As a result, the Republicans may not have too much difficulty in confirming Trump nominees for various positions and may also be able to override final rules published in the Federal Register by the CFPB and other agencies after August 1 of this year under the Congressional Review Act. (This includes the so-called “open banking” rule pertaining to consumer control of their records at banks under Section 133 of Dodd-Frank. Ian then addresses certain leadership changes at the CFPB, FDIC, OCC, FRB and FTC and the possibility of Trump using recess appointments to nominate the leaders of those agencies. John Culhane then takes a deep dive into the current status and expected outcome of agency regulations (both legislative and interpretive), proposed regulations and other written but less formal guidance and circulars. This includes the CFPB’s $8. credit card late fee rule, the small business data collection rule under Section 1071 of Dodd-Frank, the Buy-Now, Pay-Later interpretive rule, “open banking “ rule, and the changes to the UDAAP Exam Manual which described any form of discrimination as being an unfair trade practice, all of which are the subject of pending litigation. We also discuss the FTC’s “CARS” rule and the “Click to Cancel” rule, which are also subject to pending litigation. Finally, we discussed the FDIC’s “brokered deposits” rule. We explain how final legislative rules can only be overturned or modified through Congressional Review Act override (if they were adopted after August 1, 2024) or by proposing a repeal or modification under the Administrative Procedure Act (which is the same lengthy procedure utilized to promulgate the regulation) or by a final judgment of a court invalidating the rule. We also discuss whether the new CFPB Director may concede that the CFPB has been unlawfully funded under Dodd-Frank since the FRB may only fund the CFPB out of “combined earnings of the Federal Reserve Banks” and because there have been no such combined earnings since September, 2022. Alan Kaplinsky, Senior Counsel and former practice group leader for 25 years of the Consumer Financial Services Group at Ballard Spahr hosts the episode.
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An Empirical Study of Boilerplate in Consumer Contracts
11/21/2024
An Empirical Study of Boilerplate in Consumer Contracts
On January 4 of this year, we released a podcast show entitled; “A look at a new approach to consumer contracts”. Our special guest at that time was Professor Andrea Boyack, a Professor at the University of Missouri School of Law. That podcast was based on a then recent law review article published by Professor Boyack entitled “The Shape of Consumer Contracts, 101 Denv L. Rev. 1 (2023). Today, we are joined again by Professor Boyack who has written a follow-up article entitled: “Abuse of Contract: Boilerplate Erasure of Consumer Counterparty Rights,” University of Missouri School of Law Legal Studies Research Paper No. 2024-03, which is the subject of our new show. The abstract of her article accurately describes the points that Professor Boyack made during the podcast show: Contract law and the new Restatement of the Law of Consumer Contracts generally treats the entirety of the company’s boilerplate as presumptively binding. Entrusting the content of consumer contracts to companies creates a fertile legal habitat for abuse through boilerplate design. There is no consensus on how widespread or severe abuse of contract is. Some consumer law scholars have warned of dangers inherent in granting companies unrestrained power to sneak waivers into their online terms, but others contend that market forces adequately constrain potential abuse. On the other hand, in the absence of adequate consumer knowledge and power, market competition might instead fuel the spread of abusive boilerplate provisions as companies compete to insulate themselves from costs. The new Restatement and several prominent scholars claim that existing protective judicial doctrines siphon off the worst abuses among adhesive contracts. They are willing to accept those abuses that slip through the cracks as the unavoidable cost of a functioning, modern economy. The raging debate over how to best constrain contractual abuse relies mainly on speculation regarding the proliferation and extent of sneak-in waivers. This article provides some necessary missing data by examining the author’s study of 100 companies’ online terms and conditions (the T&C Study). The T&C Study tracked the extent to which the surveyed companies’ boilerplate purported to erase consumer default rights within four different categories, thereby helping to assess the effectiveness of existing market and judicial constraints on company overreach. Evidence from the T&C Study shows that the overwhelming majority of consumer contracts contain multiple categories of abusive terms. The existing uniformity of boilerplate waivers undermines the theory that competition and reputation currently act as effective bulwarks against abuse. After explaining and discussing the T&C Study and its results, this article suggests how such data can assist scholars and advocates in more effectively protecting and empowering consumers. We also discuss two separate CFPB initiatives pertaining to consumer contracts. On June 4 of this year, the CFPB issued Circular 2024-03 (“Circular”) warning that the use of unlawful or unenforceable terms and conditions in contracts for consumer financial products or services may violate the prohibition on deceptive acts or practices in the Consumer Financial Protection Act. We previously drafted a blog post and Law360 article about this circular. The CFPB has also issued a proposed rule to establish a system for the registration of nonbanks subject to CFPB supervision that use “certain terms or conditions that seek to waive consumer rights or other legal protections or limit the ability of consumers to enforce their rights.” Arbitration provisions are among the terms that would trigger registration. The CFPB has not yet finalized this proposed rule and it seems likely that it will never be finalized in light of its very controversial nature and the fact that Director Chopra will be replaced on January 20 with a new Acting Director. Alan Kaplinsky, the former Chair of Ballard Spahr’s Consumer Financial Services Group for 25 years and now Senior Counsel, hosts this episode.
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Should Congress Create a New Federal Charter for Non-Bank Payments Companies?
11/14/2024
Should Congress Create a New Federal Charter for Non-Bank Payments Companies?
In this podcast show, we explore with our repeat guest, Professor Dan Awrey of Cornell University Law School, his working paper “Money and Federalism” in which he advocates for the enactment of Federal legislation creating a Federal charter for non-banks engaged in the payments business, like PayPal and Venmo. The and will likely be published in a law review at some time in the future. The abstract of Professor Awrey’s article describes in general terms what we discussed: The United States is the only country in the world in which both federal and state governments possess independent and yet overlapping authority for bank chartering, regulation and supervision. The roots of this unique dual banking system can be traced back to the Constitution, written almost a century before banks rose to the apex of the financial system and became the dominant source of money. Beginning with the landmark Supreme Court decision in Maryland v. McCulloch, the system has been a wellspring of jurisdictional conflict. Yet over time, this highly contested and highly fragmented system has also produced strong federal oversight and a financial safety net that protects bank depositors, prevents destabilizing runs, and promotes monetary stability. This system is now under stress. The source of the stress is a new breed of technology-driven financial institutions licensed and regulated almost entirely at the state level that provide money and payments outside the perimeter of both conventional bank regulation and the financial safety net. This article examines the rise of these new monetary institutions, the state-level regulatory frameworks that govern them and the nature of the threats they may one day pose to monetary stability. It also examines the legal and policy cases for federal supremacy over the regulation of these new institutions and advances two potential models, one based on complete federal preemption, the other more tailored to reflect the narrow yet critical objective of promoting public confidence and trust in our monetary system. Professor Awrey explained why existing state money transmitter statutes under which non-bank payments firms are generally licensed provide insufficient protection for consumers who use these firms. State money transfer statutes were created many years ago to protect consumers that were using Western Union. These laws were not designed to protect consumers that deploy non-bank Fintech companies using new technologies to transfer funds. These companies don’t have access to the Federal Reserve’s central payments system that banks have access to. These non-bank companies, unlike banks, are subject to federal bankruptcy law. That increases the likelihood that consumers can lose their funds deposited in one of these non-bank companies in the event of its failure. Professor Awrey concludes that the answer to this problem is the enactment of federal legislation which would create a federal charter for non-bank companies engaged in transmitting payments. A company that is granted such a charter would have access to the Fed’s payment rails and would be exempt from the federal Bankruptcy Code. Such a company would be very restricted in the types of investments it may hold. The federal charter would ideally preempt many state laws, including state money transmitter laws. We also spent some time at the beginning of the show discussing the status of FedNow, the instant payments system launched by the Federal Reserve System in July 2023. Professor Awrey was previously a guest on our podcast show on September 14, 2023 entitled “.” At that time, Professor Awrey predicted that FedNow was too little, too late and too expensive for small banks. Professor Awrey’s opinion is unchanged. He noted that the Fed has so far refused to share any data about FedNow usage. Alan Kaplinsky, Senior Counsel and former practice group leader for 25 years of the Consumer Financial Services Group, hosted the podcast show.
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CFPB’s Proposed Mortgage Servicing Rule Amendments: Understanding the Impact on Loss Mitigation, Foreclosure, and Language Access
11/07/2024
CFPB’s Proposed Mortgage Servicing Rule Amendments: Understanding the Impact on Loss Mitigation, Foreclosure, and Language Access
This summer, the CFPB issued its long-awaited proposed rule amending the mortgage servicing rules under Regulation X, with a focus on loss mitigation procedures, foreclosure protections, and language access. These changes were previewed by the CFPB as a means to streamline, and add flexibility to, the loss mitigation process, in light of the industry’s successful efforts during the COVID-19 pandemic. However, the CFPB’s proposal also significantly expands borrower protections during the loss mitigation process, creates extensive new operational challenges for servicers, and leaves many concerning questions based on the proposed language. The mortgage servicing industry responded by submitting numerous comment letters, appropriately voicing a range of concerns with the proposed changes. We now await further action from the CFPB. On this episode, Ballard Spahr lawyers discuss the regulatory and litigation impacts of the proposed rule, including: 1. Detailed analysis of the proposed changes 2. Potential approaches to loss mitigation, under the revised scheme 3. Practical impacts on loss mitigation and foreclosure from an operational, cost, and liability standpoint 4. Specific pain points under the proposed language, and topics requiring clarification, refinement, or pushback 5. Language access requirements, and the impact from an operational, cost, and liability standpoint 6. Implications of the rulemaking in a post-Chevron world Rich Andreano, a Partner and Leader of Ballard Spahr’s Mortgage Banking group, moderates today’s episode, and he is joined by Reid Herlihy and Matt Morr, Partners in the Group.
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State Fair Access and Debanking Laws Bring Country’s Political and Cultural Divisions to the Fore
10/31/2024
State Fair Access and Debanking Laws Bring Country’s Political and Cultural Divisions to the Fore
Our podcast listeners are very familiar with federal fair lending and anti-discrimination laws that apply in the consumer lending area: the Equal Credit Opportunity Act (ECOA) and Fair Housing Act (FHA). Those statutes prohibit discriminating against certain protected classes of consumer credit applicants. For example, the ECOA makes it unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction, on the basis of race, color, religion, national origin, sex, marital status, or age (provided the applicant has the capacity to contract); the applicant's use of a public assistance program to receive all or part of their income; or the applicant's previous good-faith exercise of any right under the Consumer Credit Protection Act. The FHA prohibits discrimination concerning the sale, rental, or financing of housing based on race, religion, national origin, sex, disability, pregnancy or having children. The FTC sometimes relies on the “unfairness” prong of its UDAP (Unfair or Deceptive Acts and Practices) authority to bring other types of discrimination claims against companies subject to the FTC’s jurisdiction. The CFPB has tried to use the unfairness prong of its UDAAP (Unfair, Deceptive, or Abusive Acts or Practices) authority in a similar manner with respect to companies and banks subject to its jurisdiction. A the portion of the CFPB’s UDAAP Exam Manual provision upon which such authority was previously predicated and the case is now being considered by the Fifth Circuit. Our focus during this podcast show is not on these Federal anti-discrimination statutes, but rather on the fact that an increasing number of states have either enacted or are considering enacting legislation requiring financial institutions to provide persons (both existing customers and prospective customers) who are not ordinarily protected by the federal anti-discrimination statutes with fair access to financial services. The first broad fair access requirements appeared in a Florida statute enacted in 2023, which generally prohibits financial institutions from denying or canceling services to a person or otherwise discriminating against a person in making available services on the basis of enumerated factors, commonly including factors such as political opinions, or any other factor that is not quantitative, impartial, and risk-based. Because this topic is very controversial, I invited individuals who support and oppose these new types of state statutes: Brian Knight, Senior Research Fellow at Mercatus Center of George Mason University, Professor Peter Conti-Brown of the Wharton School of the University of Pennsylvania, and Peter Hardy who co-leads our Anti-Money Laundering (AML) team at Ballard Spahr. (Brain was previously a guest on our May 23, 2024 podcast which focused on the related topic of .) Brian is generally supportive of these state fair access laws. Professor Conti-Brown and Peter Hardy generally oppose these types of laws. We cover the following sub-topics, among others: 1. Why were these laws enacted? 2. What financial institutions are subject to these laws? Do they cover only depository institutions or do they also cover non-banks? Do they cover only consumer transactions or do they cover business transactions as well? Do they cover out-of-state financial institutions doing business with residents of the states that have enacted these statutes? Are there exemptions based on small size? 3. Since banks are not public utilities, and have shareholders and employees to whom they owe duties, why should they be forced to do business with people or companies who generate fossil fuel or who manufacture or sell firearms, to take just two examples of industries protected by these statutes? 4. What are the private and public remedies for violating these statutes? 5. Does the National Bank Act, the Home Owners’ Loan Act and the Federal Credit Union Act preempt these state laws? 6. Do these laws run afoul of AML laws as the Treasury suggests? Brian believes that these state statutes don’t force any financial institution to do business with a particular person or company. The statutes simply say that you must give a good reason for a declination. A good reason would be one based on risk to the institution such as a lack of experience in evaluating the company’s business. Another good reason would be that the company is engaged in an unlawful business. A bad reason for a declination would be that the bank doesn’t like the political or cultural positions of the company. Peter Conti-Brown believes that banks should be able to decide with whom they desire to do business as long as they don’t violate existing federal laws that prohibit discrimination, like ECOA and the FHA. Peter expresses skepticism that there was or is a need for these statutes. The “bottom line” is that the state statutes are bad public policy. Peter also believes that these state statutes are preempted by the National Bank Act. Peter Hardy believes that these state statutes throw a monkey wrench into banks’ efforts to comply with AML requirements and the Bank Secrecy Act. He explains how these statutes could help bad actors evade the BSA. We have about these statutes. Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion.
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How the CFPB Is Using Interpretive Rules to Expand Regulatory Requirements for Innovative Consumer Financial Products; Part Two—Earned Wage Access
10/24/2024
How the CFPB Is Using Interpretive Rules to Expand Regulatory Requirements for Innovative Consumer Financial Products; Part Two—Earned Wage Access
Today’s podcast, which repurposes a recent webinar, is the conclusion of a two-part examination of the CFPB’s use of a proposed interpretive rule, rather than a legislative rule, to expand regulatory requirements for earned wage access (EWA) products. Part One, which was released last week, focused on the CFPB’s use of an interpretive rule to expand regulatory requirements for buy-now, pay-later (BNPL) products. We open with a discussion of EWA products, briefly describing and distinguishing direct-to-consumer EWAs and employer-based EWAS. We review some of the consumer-friendly features that are common to EWAs, including that there is no interest charged and they are typically non-recourse, and discuss expedited funding fees and tips, neither of which is required to access EWAs. We also provide an overview of how some states have attempted to regulate (or specifically not regulate) EWAs. We then transition into a discussion of the CFPB’s history with EWA products, including the Bureau’s advisory opinion in 2020 that took a markedly different approach to EWAs, essentially taking the position that a certain subset of EWAs fell outside of the definition of “credit” under the Truth in Lending Act (TILA) and Regulation Z. The CFPB’s proposed interpretive rule, on the other hand, states that EWAs are “credit” and that expedited funding fees and optional tips, in most circumstances, are part of the finance charge that must be disclosed under TILA and Regulation Z. We explore the Bureau’s reasoning in support of these conclusions and some of the compliance difficulties that the proposed interpretive rule would create were it to go into effect as written. Since this recording took place, the CFPB has posted over 148,000 comment letters that it has received on the proposed interpretive rule, many of which are from consumers who use EWAs to access a portion of their earned wages prior to their scheduled payday and are concerned that the proposed interpretive rule could limit or jeopardize their access to EWAs. The high number of responses demonstrates the level of interest that the CFPB’s proposed interpretive rule has generated. We conclude with thoughts about vulnerabilities with both the proposed interpretive rule for EWAs and the interpretive rule for BNPLs that we described in Part One of this podcast, as well as how these rules could potentially be challenged. One notable development that has occurred since our recording is that the Financial Technology Association has filed a complaint asking a D.C. federal court to strike down the interpretive rule for BNPLs because of the alleged violations of the Administrative Procedure Act that we discuss in this episode. Alan Kaplinsky, former Practice Leader and Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates today’s episode, and is joined by John Culhane and Michael Guerrero, Partners in the Group, and John Kimble, Of Counsel in the Group.
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How the CFPB Is Using Interpretive Rules to Expand Regulatory Requirements for Innovative Consumer Financial Products; Part One - Buy-Now, Pay-Later
10/17/2024
How the CFPB Is Using Interpretive Rules to Expand Regulatory Requirements for Innovative Consumer Financial Products; Part One - Buy-Now, Pay-Later
Today’s podcast, which repurposes a recent webinar, is the first in a two-part examination of the CFPB’s use of an interpretive rule, rather than a legislative rule, to expand regulatory requirements for buy-now, pay-later (BNPL) products. Part Two, which will be available next week, will focus on the CFPB’s use of a proposed interpretive rule to expand regulatory requirements for earned wage access (EWA) products. We open with an overview of what interpretive rules are and how they differ procedurally and substantively from legislative rules. The intended use of interpretive rules is to explain the meaning of an existing provision of law, while legislative rules, which require a more complicated and time-consuming procedure, including a notice and comment period under the Administrative Procedures Act, are intended to be used to expand or implement a provision of law. We also discuss why the CFPB chose to use an interpretive rule and why they decided to include a request for comments when that is not required for interpretive rules. We then discuss BNPL products, including how they work and some of the features that have made them popular with consumers and merchants. We point out that the interpretive rule seems to represent a change in the views of the CFPB with regard to BNPL. After providing an overview of the CFPB’s history with the product, including a report issued by the Bureau back in 2022, we delve into the details of the CFPB’s interpretive rule. We discuss how the CFPB seems to be expanding the definition of a “credit card” to include what the Bureau calls a “digital user account,” which is how consumers access their BNPL information. We conclude with thoughts about the implications of the CFPB’s interpretive rule and some of the difficulties that BNPL providers will have complying with the interpretive rule. This includes a discussion of the timing of billing statements and written notice requirements for billing error disputes and merchant disputes. Alan Kaplinsky, former Practice Leader and Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates today’s episode, and is joined by John Culhane, Michael Guerrero, and Joseph Schuster, Partners in the Group. The webinar was recorded before the CFPB issued an , which purports to answer a number of open questions raised by the BNPL interpretive rule. We recommend that you review the FAQ after listening to this podcast.
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