Afleveringen
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On June 28, in Loper Bright v. Raimondo, et al., the Supreme Court overturned the Chevron deference doctrine, a long-standing tenet of administrative law established in 1984 in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. This doctrine directed courts to defer to a government agencyâs interpretation of ambiguous statutory language as long as the interpretation was reasonable. However, legal scholars now express widely divergent views as to the scope and likely effects of Loper Brightâs overruling of the Chevron doctrine on the future course of regulatory agency interpretive and enforcement authority.
In this two-part episode, which repurposes a recent webinar, a panel of experts delves into the Loper Bright decision, and its underpinnings, rationale, and likely fallout. Our podcast features moderator Alan Kaplinsky, Senior Counsel and former practice leader of Ballard Spahrâs Consumer Financial Services Group; Ballard Spahr Partners Richard Andreano, Jr. and John Culhane, Jr.; and special guests Craig Green, Charles Klein Professor of Law and Government at Temple University Beasley School of Law, and Kent Barnett, recently appointed Dean of the Moritz College of Law at The Ohio State University.
Part II opens with an in-depth discussion of the major questions doctrine (which bars agencies from resolving questions of great economic and political significance without clear statutory authority), how it has evolved, and its interaction with Chevron deference. Our experts offer predictions as to the likely role of the major questions doctrine in post-Chevron jurisprudence, and touch on the non-delegation doctrine (which prevents Congress from delegating legislative power). We also refer to the effects of another recent Supreme Court decision, Corner Post, Inc. v Board of Governors of the Federal Reserve System, which expands the time during which entities new to an industry may challenge longstanding agency rules.
We then consider the practical effects of the Loper Bright and Corner Post decisions on pending and future litigation. Partners Richard Andreano and John Culhane discuss concrete examples of cases currently progressing through the courts that already are evidencing the effects of Loper Bright, and ways in which arguments now are being articulated or might be articulated in litigation challenging a number of regulatory rules and interpretations in the absence of Chevron deference.
We proceed to explore other significant topics including the validity of prior decisions of the Supreme Court and lower courts that were based exclusively on the Chevron doctrine. Our panel then opines on whether Loper Bright, both in its entirety and as to certain of its specific constituent elements, is âgoodâ or âbadâ for the consumer financial services industry and for regulated entities in general.
In conclusion, Mr. Andreano cites concerns about how courts may apply alternative deference guidance that remains in place (including Skidmore deference, discussed in Part I of this podcast), and Mr. Culhane expresses hope that the outcome in Loper Bright might move agencies to engage in more thorough, thoughtful, and precise analysis in the rulemaking process.
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On June 28, in Loper Bright v. Raimondo, et al., the Supreme Court overturned the Chevron deference doctrine, a long-standing tenet of administrative law established in 1984 in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. This doctrine directed courts to defer to a government agencyâs interpretation of a statute if the statute was ambiguous regarding, or simply did not address, the issue before the court, as long as the interpretation was reasonable.
However, legal scholars now express widely divergent views as to the scope and likely effects of Loper Brightâs overruling of the Chevron doctrine on the future course of regulatory agency interpretive and enforcement authority.
In this two-part episode, which repurposes a recent webinar, a panel of experts delves into the Loper Bright decision, and its underpinnings, rationale, and likely fallout.
Our podcast features moderator Alan Kaplinsky, Senior Counsel and former practice leader of Ballard Spahrâs Consumer Financial Services Group; Ballard Spahr Partners Richard Andreano, Jr. and John Culhane, Jr.; and special guests Craig Green, Charles Klein Professor of Law and Government at Temple University Beasley School of Law, and Kent Barnett, recently appointed Dean of the Moritz College of Law at The Ohio State University.
In Part I, we first review the history of judicial deference to agency interpretations in American courts throughout the nineteenth and twentieth centuries, culminating in the advent of Chevron deference. We then discuss post-Chevron developments, including shifts in judicial and political views of the role courts should play in interpretation of agency action.
Then, we turn to an in-depth discussion of the majority opinion in Loper Bright, authored by Chief Justice Roberts, including its reliance on the Administrative Procedure Act to invalidate Chevron deference and the opinionâs numerous ambiguities that result in a âvery, very fuzzyâ outcome, leaving regulated industries facing uncertainty as to whether or not courts will uphold agency rules. We then explore other topics including the majority opinionâs endorsement of an approach courts should take to review agency actions as described in a 1940âs case, Skidmore v. Swift & Co.; what deference may or may not be given to agency policy-making and fact-finding in light of Loper Bright; and the divergent views of some legal scholars who suggest that many courts will continue to give broad deference to agency views notwithstanding Loper Bright.
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Zijn er afleveringen die ontbreken?
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On May 30, the Supreme Court issued its opinion in Cantero v. Bank of America, reversing and remanding the case to the Second Circuit. Rather than articulating a bright line test for preemption, the Supreme Court instructed the circuit court to conduct a ânuanced analysisâ to determine whether the National Bank Act preempts a New York state law that requires the payment of 2% interest on mortgage escrow accounts. Per the Supreme Court, the Second Circuit must apply the preemption standard described in the Dodd-Frank Act, which provides that a state consumer financial law is preempted âonly ifâ it discriminates against national banks in comparison with state banks; is preempted by another Federal law; or âprevents or significantly interferes with the exercise by the national bank of its powers,â as determined âin accordance with the legal standard for preemption in the decision of the Supreme Court of the United Statesâ in Barnett Bank, N.A. v. Nelson. See 12 U.S.C. § 25b(b)(1).
We open todayâs podcast episode, which repurposes a recent webinar roundtable covering the Cantero decision, with a new preface by moderator Alan Kaplinsky, Senior Counsel in Ballard Spahrâs Consumer Financial Services Group. This preface provides an update on an important post-Cantero development: a Ninth Circuit opinion issued on August 23 in another preemption case, Kivett v. Flagstar Bank. Alan explains why the Ninth Circuitâs new opinion in Kivett applies a standard that is totally inconsistent with the instructions provided by the Supreme Court in Cantero.
Todayâs episode then proceeds with a discussion featuring Alan Kaplinsky, Ballard Spahr Partner Joseph Schuster, and four attorneys who each filed an amicus brief in Cantero. These experts share their reactions and explore potential next steps and possible outcomes as the Second Circuit and other courts proceed with efforts to comply with the Supreme Courtâs Cantero mandate.
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The CFPB recently issued yet another final rule the agency says will help deter violations of consumer protection laws. This rule requires certain nonbank entities to register with the CFPB upon becoming subject to any order from local, state, or federal agencies or courts involving consumer protection law violations. The registry rule applies to any supervised or non-supervised nonbank that engages in offering or providing a consumer financial product or service and any of its service provider affiliates unless excluded. The CFPB will require the nonbank entities that are subject to the rule to register the specific terms and conditions on an annual basis. There will be public access to this database.
We also address the CFPBâs recent circular in which the agency stated that certain terms in consumer financial product or service contracts may constitute violations of consumer protection law. Notably, the circular states that the use of prefatory language that often appears in consumer contractsâsuch as âsubject to applicable lawâ or âto the extent permitted by lawââwill not immunize contract language from being deceptive.
We explain why practically every consumer contract in use today technically violates the CFPB circular. We also explain how we are helping several clients review and revise their consumer contracts to comply with the circular.
Alan Kaplinsky, Senior Counsel in Ballard Spahrâs Consumer Financial Services Group, leads the discussion, and is joined by John Culhane, Richard Andreano, Joseph Schuster, and Reid Herlihy, partners in the Group.
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A great number of fintechs are contemplating owning a bank or obtaining a banking charterâeither a national bank charter, a state bank charter or a special purpose charter. In this episode, we are joined by our special guest Michele Alt, co-founder and partner of Klaros Group, an investment and advisory firm, and Scott Coleman, a partner in our Consumer Financial Services Group who leads our banking practice. Both Michele and Scott help banks and fintechs navigate the complicated regulatory issues that are critical to their growth and sustainability.
We discuss the reasons why fintechs might want to become banks, and why regulators are reluctant to grant them charters. Alt says that a bank charter provides a fintech with low-cost funding in the form of FDIC-insured deposits and it eliminates the applicability of myriad state licensing requirements. On the other hand, she says, there are onerous capital requirements and regulators often are reluctant to embrace innovation. We discuss how some regulators fear that fintechs are fueled by growth over profits and how it could lead to lax management practices. Regulators have reason to be concerned about those risks, and if you charter a bank, you are responsible for it.
Alan Kaplinsky, Senior Counsel in Ballard Spahrâs Consumer Financial Services Group, leads the conversation.
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The CFPB and state regulators and legislators have medical debt in their crosshairs. In this episode, weâre joined by Chris Eastman, CEO of the Pendrick Group, a Cerberus portfolio company that specializes in financial services solutions for healthcare companies. We discuss the differences between medical debt and other types of debt, as well as how states have been regulating medical debt including the collection of medical debt. Mr. Eastman discusses his companyâs efforts to provide cash flows into hospitals and other healthcare providers that are operating at razor-thin margins. We also discuss the CFPBâs assertion that medical debt is less predictive than other sources of debt in determining the creditworthiness of a consumer. Mr. Eastman discusses how medical debt may be a valuable indicator when assessing the financial stress of a consumer.
Alan Kaplinsky, Senior Counsel in Ballard Spahrâs Consumer Financial Services Group, leads the conversation, and is joined by Joseph Schuster, a Partner in the group.
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Rewards programs drive consumer choice and activity in connection with credit cards and other financial services. The CFPB has reported the most important element by far that influences a consumerâs decision to apply for a specific credit card is the rewards program associated with the card. Further, rewards can affect the consumer's choice at the point of sale as to which card to use.
In this podcast episode, which repurposes a recent webinar, we explore recent trends in scrutiny of credit card rewards programs and other rewards programs by state and federal regulators and lawmakers. We also address laws and regulations, enforcement, emerging pitfalls, and best practices applicable to rewards programs.
We open with a review of how rewards have been treated in the CFPB's reports on the credit card market since 2013, and the significance of and learnings from these reports. We then focus on complaints and federal regulatorsâ enforcement activity relating to rewards programs. Next, we turn to state law developments affecting rewards programs, including laws that specifically apply to rewards programs as well as contract, interchange, and UDAP / UDAAP laws. We then delve into other topics including the current focus on airline â credit card rewards programs by the Department of Transportation and the CFPB; the CFPBâs May 2024 report about credit card rewards; and important elements card issuers should keep in mind in the context of co-brand credit card rewards programs. We then conclude with a discussion on best practices to consider in mitigating risks and maximizing the benefits of rewards programs.
Alan Kaplinsky, Senior Counsel in Ballard Spahrâs Consumer Financial Services Group, moderates todayâs episode, and is joined by Michael Guerrero and Joseph Schuster, Partners in the Group, and Kristen Larson, Of Counsel in the Group.
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Special guest Professor Alan Trammell of Washington and Lee University School of Law joins us today for a deep dive into universal injunctions and the related topics of associational standing and judicial forum shopping, and how these elements come into play in litigation challenging regulations and other government policies and actions.
Recent developments in litigation critical to the consumer financial services industry have brought universal injunctions into the spotlight. We begin todayâs episode by providing a working definition of a universal injunction, some historical background, and examples that illustrate the benefits, effects and power of this sweeping remedy. We then turn to an in-depth discussion of objections raised by detractors; real-world concerns that may flow from universal injunctions, including a âone and done problemâ cited by Professor Trammell; and various circumstances where Professor Trammell argues universal injunctions are and are not appropriate.
We also cover associational standing and its interaction with universal injunction: whether and when a trade association should have standing to bring an action seeking relief for its members, and how and when the outcome of the action might expand into a universal injunction that also would benefit non-members. Our next areas of focus are forum shopping and judge shopping, particularly in the context of such litigation brought by an association.
We then turn to speculation as to whether and how the U.S. Supreme Court may proceed to bring some uniformity to how the courts are dealing with these issues. Our episode concludes with comments on recent input on these topics from sources such as Congress and the Judicial Conference of the United States.
Alan Kaplinsky, former practice leader and current Senior Counsel in Ballard Spahrâs Consumer Financial Services Group, hosts this weekâs episode.
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âBuy Now, Pay Laterâ (BNPL) products emerged relatively recently as a new approach enabling consumers to enjoy the ability to make a purchase and then pay for it over time. Todayâs episode, during which we explore the evolution of BNPL products and important recent developments in BNPL regulation, is hosted by Alan Kaplinsky, former practice leader and current Senior Counsel in Ballard Spahrâs Consumer Financial Services Group, and features Ballard Spahr Partners Michael Guerrero and Joseph Schuster.
We first discuss the structure and mechanics of BNPL products, and the benefits they afford to consumers, merchants, and creditors. Next, we turn to a discussion of regulatorsâ reactions to BNPL, specifically the activities of the CFPB leading up to its new interpretive rule, effective July 30th, which equates BNPL products with credit cards and characterizes BNPL providers as card issuers or creditors, thus subjecting them to the constraints and requirements of the Truth in Lending Act (TILA) and Regulation Z.
We then explore the CFPBâs BNPL interpretive rule in detail, including an analysis of the concerns raised by the CFPB in connection with BNPL offerings; the CFPBâs introduction of the âdigital user accountâ concept and other theories to bring BNPL into the purview of TILA and Regulation Z; and the complexities and uncertainties now faced by BNPL providers as they struggle to comply.
We conclude with a look at the possibilities of a legal challenge to the CFPBâs BNPL interpretive rule, given recent Supreme Court decisions, and state law considerations for BNPL providers.
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The 1978 landmark opinion in Marquette National Bank v. First of Omaha Service Corp held that under the National Bank Act, a national bank has the right to export the interest rate authorized by the state where the bank is located to borrowers located elsewhere. Section 521 of the Depository Institutions Deregulation and Monetary Control Act of 1980 ("DIDMCA") conferred equivalent rate exportation powers on state-chartered, FDIC-insured banks.
These interest rate exportation powers (which also extend to certain fees), coupled with technological advances in recent years and the advent of âbank-modelâ and âbanking as a serviceâ (BaaS) programs, have created a robust, competitive smorgasbord of credit products for consumers.
However, rate exportation, and the programs it enables, increasingly are subject to challenges from a variety of sources.
In this two-part episode, which repurposes portions of a recent webinar, we describe the nature of these attacks, the defenses being deployed by the industry, and who is winning these contests so far, and address what the future may hold for rate exportation.
We start Part II with a discussion of states that have adopted, or are considering, âtrue lenderâ statutes that aim to recharacterize fintechs and other bank service providers as lenders, thus defeating the originating bankâs ability to export rates and fees. We then discuss âtrue lenderâ enforcement actions and efforts by state attorneys general, and âtrue lenderâ litigation developments including cases where arbitration clauses have been upheld, causing arbitration to be ordered in putative class actions. Next, we talk about attacks on the âvalid when madeâ doctrine (which provides that a loan that was non-usurious when it was made doesn't become usurious after it is transferred to a third party), and âvalid when madeâ regulations adopted by both the OCC and FDIC. We proceed with some tips on how prevailing industry plaintiffs who seek to overturn statutes inimical to rate exportation might recover attorneyâs fees. We then conclude with a review of recent and pending Supreme Court cases whose outcomes have the potential to affect rate exportation powers and related regulations.
Alan Kaplinsky, Senior Counsel in Ballard Spahrâs Consumer Financial Services Group, moderates episode, joined by John Culhane, Joseph Schuster, and Ronald Vaske, Partners in the Group, and Mindy Harris and Kristen Larson, Of Counsel in the Group.
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The 1978 landmark opinion in Marquette National Bank v. First of Omaha Service Corp held that under the National Bank Act, a national bank has the right to export the interest rate authorized by the state where the bank is located to borrowers located elsewhere. Section 521 of the Depository Institutions Deregulation and Monetary Control Act of 1980 ("DIDMCA") conferred equivalent rate exportation powers on state-chartered, FDIC-insured banks.
These interest rate exportation powers (which also extend to certain fees), coupled with technological advances in recent years and the advent of âbank-modelâ and âbanking as a serviceâ (BaaS) programs, have created a robust, competitive smorgasbord of credit products for consumers.
However, rate exportation, and the programs it enables, increasingly are subject to challenges from a variety of sources.
In this two-part episode, which repurposes portions of a recent webinar, we describe the nature of these attacks, the defenses being deployed by the industry, and who is winning these contests so far, and address what the future may hold for rate exportation.
In Part I, we first review a brief history of rate exportation, and explore the three primary theories used to attack rate exportation. We then focus on current and pending state laws and bills seeking to âopt outâ of DIDMCAâs rate exportation authority. Next, we turn to the current court battle being waged in Colorado, where three trade groups recently won a preliminary injunction against enforcement of Coloradoâs recently adopted opt-out legislation, and discuss the decision and its ramifications, including potential impacts on existing and pending opt-out legislation in other states, implications for nonmembers of the three trade group plaintiffs, and the prospects for enforcement in Colorado and other opt-out states by the FDIC based on the position (contrary to the preliminary injunction) advocated in its amicus brief.
Alan Kaplinsky, Senior Counsel in Ballard Spahrâs Consumer Financial Services Group, moderates episode, joined by Ronald Vaske, a Partner in the Group, and Mindy Harris, Of Counsel in the Group.
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California frequently is in the vanguard of consumer financial issues and legislation, foreshadowing trends that may spread to other states. Todayâs episode, during which we explore important hot topics and recent developments in California consumer finance law, is hosted by Ballard Spahr partner Melanie Vartabedian, and features Partners Michael Guerrero and Joel Tasca, and Of Counsel John Kimble.
We first discuss what the future likely holds for proposed rules issued under the California Consumer Financial Protection Law (CCFPL) by the California Department of Financial Protection and Innovation (DFPI). The proposed rules include complex registration and reporting requirements for certain consumer products, and are under revision after rejection by the California Office of Administrative Law for lack of clarity. We then explore the DFPI's most recent annual report on activity under the CCFPL, which recaps the DFPI's rulemaking, enforcement efforts, complaints received, and efforts in connection with education outreach and the Office of Financial Innovation. Highlights include a rule that applies consumer-type âunlawful, unfair, deceptive, or abusive acts and practicesâ (referred to in the report as âUUDAAPâ) prohibitions to financial products and services provided to small businesses; ramped-up enforcement efforts; and high-dollar settlements as well as litigation in progress. Next, we turn to a comparison of Californiaâs Rosenthal Fair Debt Collection Practices with the federal Fair Debt Collection Practices Act, and discuss their similarities, differences, and litigation trends under both laws. We then focus on the California Consumer Credit Reporting Agencies Act, which poses challenges for companies that report consumer data to consumer reporting agencies over and above the requirements of federal law. We conclude with a look at unique issues arising in California with respect to the FTC âholder ruleâ.
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Special guest Alex J. Pollock, Senior Fellow with the Mises Institute and former Principal Deputy Director of the Office of Financial Research in the U.S. Treasury Department, joins us to discuss his recent blog post published on The Federalist Society website in which he urges Congress to look into the question of whether the Federal Reserve can lawfully continue to fund the CFPB if (as now) the Fed has no earnings. We begin with a review of the Supreme Courtâs recent decision in CFSA v. CFPB which held that the CFPBâs funding mechanism does not violate the Appropriations Clause of the U.S. Constitution. Alex follows with an explanation of the CFPBâs statutory funding mechanism as established by the Dodd-Frank Act, which provides that the CFPB is to be funded from the Federal Reserve Systemâs earnings. Then Alex discusses the Fedâs recent financial statements and their use of non-standard accounting, the source of the Fedâs losses, whether Congress when writing Dodd-Frank considered the impact of Fed losses on the CFPBâs funding, and how the Fed can return to profitability. We conclude the episode by responding to arguments made by observers as to why the Fedâs current losses do not prevent its continued funding of the CFPB, potential remedies if the CFPB has been unlawfully funded by the Fed, and the bill introduced in Congress to clarify the statutory language regarding the CFPBâs funding.
Alan Kaplinsky, Senior Counsel in Ballard Spahrâs Consumer Financial Services Group, hosts the conversation.
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On May 16, 2024, the U.S. Supreme Court ruled that the CFPBâs funding mechanism does not violate the Appropriations Clause of the U.S. Constitution. This two-part episode repurposes a recent webinar. In Part II, we first discuss the CFPBâs launch of Fair Credit Reporting Act rulemaking, proposed rule to supervise larger payment providers, proposed rule on personal financial data rights, and interpretive rule on buy-now-pay-later. We next discuss the operation of the Congressional Review Act and its potential impact on final CFPB rules if the November 2024 election results in a change in Administrations. We then discuss the impact of the SCOTUS decision on pending CFPB enforcement actions, the expected proliferation of new CFPB investigations and enforcement actions, and the CFPBâs announced hiring binge. We conclude by sharing our thoughts on what companies can do to prepare for an uptick in CFPB activity and how the CFPBâs increased staffing is likely to impact which companies will be targeted.
Alan Kaplinsky, Senior Counsel in Ballard Spahrâs Consumer Financial Services Group, moderates the discussion joined by John Culhane and Joseph Schuster, Partners in the Group, and Kristen Larson, Of Counsel in the Group.
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On May 16, 2024, the U.S. Supreme Court ruled that the CFPBâs funding mechanism does not violate the Appropriations Clause of the U.S. Constitution. This two-part episode repurposes a recent webinar. In Part I, we first discuss the SCOTUS decision, the status of the CFPBâs payday lending rule that was at issue in the underlying case, and a potential new challenge to the CFPBâs funding that has been the focus of recent attention. We then discuss four cases still pending before SCOTUS in which the decisions could impact the CFPB. Next, we discuss the pending lawsuits challenging the CFPBâs final rules on credit card late fees and small business data collection and the changes to the CFPBâs UDAAP exam manual defining âunfairnessâ to include discrimination, including the background of those cases, their current status, and the non-constitutional legal challenges made by the plaintiffs in those cases. We conclude with a discussion of final and proposed CFPB rules expected to be issued soon and potential non-constitutional legal challenges to those rules.
Alan Kaplinsky, Senior Counsel in Ballard Spahrâs Consumer Financial Services Group, moderates the discussion joined by John Culhane, Richard Andreano, and Joseph Schuster, Partners in the Group, and Kristen Larson, Of Counsel in the Group.
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Special guest Professor Hal Scott of Harvard Law School joins us today as we delve into the thought-provoking question of whether the Supreme Courtâs recent decision in the landmark case of CFSA v. CFPB really hands the CFPB a winning outcome, or does the Courtâs validation of the agencyâs statutory funding structure simply open up another question: whether the CFPB is legally permitted to receive funds from the Federal Reserve if (as now) the Fed has no earnings. In other words, was the outcome in CFSA v. CFPB an illusory Pyrrhic victory for the CFPB? And, what happens next?
Our episode begins with a brief discussion of the underlying case. Professor Scott follows with an explanation of the CFPBâs statutory funding mechanism as established by the Dodd-Frank Act, which provides that the CFPB is to receive its funding out of the Federal Reserve Systemâs âearningsâ, and the Supreme Courtâs decision upholding that structure.
Then, we turn to an in-depth discussion of the op-ed Professor Scott published in the Wall Street Journal entitled âThe CFPB's Pyrrhic Victory in the Supreme Courtâ, in which Professor Scott explains that even though the CFPB's funding mechanism as written was upheld in CFSA v. CFPB, this will not help the agency now or at any time in the future when the Federal Reserve operates at a deficit â in fact, has no earnings it can legally send to the CFPB. Professor Scott describes how his focus on the Federal Reserve led him to scrutinize and then question the approach taken in the majority opinion; and then turns to an explanation of how a constitutional issue under the Appropriations Clause in fact may persist because in the absence of Fed earnings, funds paid to the CFPB arguably have not been drawn from the Treasury. We then go over possible arguments challenging the CFPBâs issuance and enforcement of regulations, and what might ensue when the federal district court takes up CFSA v. CFPB for further proceedings.
Alan Kaplinsky, former practice leader and current Senior Counsel in Ballard Spahrâs Consumer Financial Services Group, hosts this weekâs episode.
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Our special guest this week is John Tonetti. After decades as an industry risk executive, Mr. Tonetti joined the Consumer Financial Protection Bureau (CFPB), where he worked for many years in roles including Debt Collection Program Manager, senior policy analyst, and internal consultant on numerous issues including debt collection and risk management policies and examinations. In this episode, Mr. Tonetti shares his perspectives from the point of view of an agency insider who served under every CFPB director and acting director in office to date.
We first discuss the pitfalls of the CFPBâs leadership structure, which gives a single individual broad regulatory power over âthe largest financial system that has ever existedâ, and Mr. Tonettiâs observations on the contrasting leadership and rulemaking approaches taken by the various CFPB directors and acting directors. We then turn to consideration of regulations and guidance recently proposed and adopted by the CFPB, including flaws in the agencyâs approach to obtaining and utilizing data on which its mandates are based. We ask and respond to the question of whether the CFPB, on more than one occasion, has exceeded its authority, and how the courts have reacted and likely will react.
Alan Kaplinsky, former practice leader and current Senior Counsel in Ballard Spahrâs Consumer Financial Services Group, hosts this weekâs episode.
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Our special guests are Professor Dru Stevenson, South Texas College of Law in Houston, and Brian Knight, Senior Research Fellow, Mercatus Center at George Mason University. In this episode, we first discuss the history of âOperation Chokepoint,â the Obama-era initiative in which the FDIC and other federal banking agencies targeted banks serving payday lenders and companies engaged in other âdisfavoredâ industries. We then devote the remainder of the episode to a discussion of what is the appropriate role of bank regulators with regard to banksâ customer relationships, with our guests presenting opposing views on how regulators should use their authority to address reputational and other risks to banks arising from customer relationships.
Alan Kaplinsky, Senior Counsel in Ballard Spahrâs Consumer Financial Services Group, leads the conversation.
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Our special guest is Professor Richard Frankel of Drexel University Thomas R. Kline School of Law and the author of a recent article on mass arbitration. In this episode, we first discuss what mass arbitration is, how it relates to class action lawsuits, and the role of public enforcement. We then discuss the industry and consumer positions on the use of mass arbitration and the empirical study conducted by Prof. Frankel for his article. We conclude with a discussion of steps that companies using arbitration provisions in their consumer agreements can take to respond to the use of mass arbitration, the application of the Federal Arbitration Act to arbitration agreements containing provisions that address mass arbitration, and the role of state regulation.
Alan Kaplinsky, Senior Counsel in Ballard Spahrâs Consumer Financial Services Group, leads the conversation, joined by Mark Levin, Senior Counsel in the Group.
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Our special guest is Brian Johnson, Managing Director of Patomak Global Partners and former CFPB Deputy Director. In Nov. 2023, the CFPB issued a proposed rule to supervise nonbank companies that qualify as larger participants in a market for âgeneral-use digital consumer payment applications.â We first discuss the CFPBâs authority to supervise nonbank entities considered to be âa larger participant of a market for other consumer financial products or servicesâ and its previous use of that authority. We look next at how the CFPB has defined the relevant market in its current proposal and its rationale for the proposal. We then discuss the deficiencies in the CFPBâs cost benefit analysis of the proposal and how the proposal reflects changes to the CFPBâs approach to rulemaking under Director Chopra. We conclude with a discussion of possible litigation challenges to a final rule and issues companies likely to be covered by a final rule should be considering.
Alan Kaplinsky, Senior Counsel in Ballard Spahrâs Consumer Financial Services Group, leads the conversation.
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