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...more
Our recent webinar featured a conversation with noted legal scholars Craig Green, Charles Klein Professor of Law and Government at Temple University Beasley School of Law, and Kent Barnett, recently appointed Dean of the...more
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...more
On August 27, we blogged about the Ninth Circuit unpublished panel opinion in Kivett v. Flagstar Bank issued upon remand of the case from the Supreme Court with instructions to follow the guidance of the Supreme Court...more
9/3/2024
/ Amicus Briefs ,
Bank of America ,
Cantero v Bank of America NA ,
Consumer Financial Products ,
Dodd-Frank ,
Escrow Accounts ,
Financial Institutions ,
Financial Services Industry ,
Mortgages ,
National Bank Act ,
OCC ,
Petition For Rehearing ,
Preemption ,
SCOTUS ,
Truth in Lending Act (TILA)
In a tentative win for the CFPB, a federal judge in Texas ruled on August 26, 2024, that the agency did not exceed its authority when it issued its final Section 1071 small business lending rule. The court also rejected...more
8/30/2024
/ Administrative Procedure Act ,
Consumer Financial Products ,
Consumer Financial Protection Bureau (CFPB) ,
Consumer Financial Protection Bureau v Community Financial Services Association of America Ltd ,
Data Collection ,
Dodd-Frank ,
ECOA ,
Final Rules ,
Financial Institutions ,
Financial Regulatory Reform ,
Financial Services Industry ,
Motion to Amend ,
Regulatory Agenda ,
Regulatory Authority ,
Reporting Requirements ,
SCOTUS ,
Section 1071 ,
Small Business
In a surprising quick turn of events, on remand from SCOTUS, the 9th Circuit, on August 23, 2024, issued its unanimous unpublished panel opinion in Kivett v. Flagstar Bank, FSB (Kivett II) in which it essentially re-affirmed...more
8/28/2024
/ Amicus Briefs ,
Bank of America ,
Cantero v Bank of America NA ,
Dodd-Frank ,
Escrow Accounts ,
Financial Services Industry ,
Flagstar Bank NA v Kivett ,
Mortgages ,
National Bank Act ,
OCC ,
Preemption ,
Regulatory Agenda ,
SCOTUS
We have previously blogged about how targets of CFPB enforcement actions have asserted that the actions must be dismissed because the investigations were conducted and the lawsuits were brought and are being prosecuted with...more
8/26/2024
/ Consumer Financial Products ,
Consumer Financial Protection Bureau (CFPB) ,
Consumer Financial Protection Bureau v Community Financial Services Association of America Ltd ,
Consumer Lenders ,
Data Collection ,
Dodd-Frank ,
Enforcement Actions ,
Final Rules ,
Financial Institutions ,
Financial Regulatory Reform ,
Financial Services Industry ,
Motion to Amend ,
Preliminary Injunctions ,
SCOTUS ,
Section 1071 ,
Small Business
The plaintiffs challenging the CFPB payday lending rule should not be entitled to an en banc rehearing because the issues they cite already have become final and the time for rehearing has lapsed, the CFPB said last week...more
8/13/2024
/ Administrative Procedure Act ,
Borrowers ,
Consumer Financial Products ,
Consumer Financial Protection Bureau (CFPB) ,
Consumer Financial Protection Bureau v Community Financial Services Association of America Ltd ,
Dodd-Frank ,
En Banc Review ,
Financial Institutions ,
Financial Regulatory Reform ,
Financial Services Industry ,
Payday Lending Rule ,
Payday Loans ,
SCOTUS ,
UDAAP
On July 19, we blogged about comments Acting Comptroller Hsu made before the Exchequer Club on July 17 particularly his decision to review prior OCC preemption determinations in light of the Supreme Court’s recent opinion in...more
8/7/2024
/ Cantero v Bank of America NA ,
Consumer Financial Products ,
Dodd-Frank ,
Financial Services Industry ,
Interest Rates ,
Mortgage Escrow Account ,
National Bank Act ,
New Regulations ,
OCC ,
Preemption ,
SCOTUS ,
State Banks
On July 17, Acting Comptroller of the Currency Michael Hsu delivered prepared remarks before the Exchequer Club entitled “Size, Complexity, and Polarization in Banking.”...more
7/22/2024
/ Bank of America ,
Banks ,
Cantero v Bank of America NA ,
Chevron Deference ,
Comptroller ,
Discriminatory Lending Practices ,
Dodd-Frank ,
ECOA ,
Electronic Fund Transfer Act ,
FDCPA ,
Financial Institutions ,
Financial Regulatory Reform ,
Financial Services Industry ,
National Bank Act ,
OCC ,
Preemption ,
SCOTUS
On August 6, 2024, we will be holding a 90 minute webinar roundtable featuring 3 administrative law professors who are among the country’s leading experts on the Chevron Deference Doctrine....more
The U.S. Supreme Court’s 6-3 decision in Securities and Exchange Commission v. Jarkesy, et al. significantly curtails the SEC’s enforcement powers by ruling that the agency’s administrative adjudication of securities fraud...more
On July 1, 2024, the Supreme Court issued its opinion in Corner Post, Inc. v Board of Governors of the Federal Reserve System in which the Court determined when a Section 702 claim under the Administrative Procedure Act (APA)...more
7/5/2024
/ Administrative Procedure Act ,
Anti-Money Laundering ,
Bank Secrecy Act ,
BSA/AML ,
Corner Post Inc v Board of Governors of the Federal Reserve System ,
Debit Cards ,
Federal Reserve ,
Final Rules ,
Financial Crimes ,
Financial Industry Regulatory Authority (FINRA) ,
Financial Services Industry ,
FinCEN ,
Interchange Fees ,
Regulation II ,
SCOTUS ,
Securities and Exchange Commission (SEC) ,
Statute of Limitations
On July 1, 2024, the Supreme Court issued its opinion in Corner Post, Inc. v Board of Governors of the Federal Reserve System in which the Court determined when a Section 702 claim under the Administrative Procedure Act (APA)...more
We already have published a short blog about the Supreme Court’s opinion issued on Friday, July 28 in Loper Bright Enterprises et al v. Raimondo, Secretary of Commerce, et al, No. 22-451....more
7/3/2024
/ Administrative Procedure Act ,
Chevron ,
Chevron Deference ,
Chevron v NRDC ,
Consumer Financial Protection Bureau (CFPB) ,
ECOA ,
Final Rules ,
Financial Institutions ,
Financial Services Industry ,
Loper Bright Enterprises v Raimondo ,
SCOTUS ,
Section 7 ,
Statutory Interpretation
The U.S. Supreme Court on Friday overturned the long-standing Chevron Deference Doctrine, saying that judges—not federal agencies—should interpret federal laws....more
6/28/2024
/ Administrative Procedure Act ,
Chevron Deference ,
Chevron v NRDC ,
Government Agencies ,
Judicial Authority ,
Loper Bright Enterprises v Raimondo ,
Magnuson-Stevens Act (MSA) ,
National Marine Fisheries Service ,
Popular ,
Regulatory Authority ,
Relentless Inc v US Department of Commerce ,
SCOTUS ,
Statutory Interpretation ,
Vessels
On June 10, 2024, the Supreme Court granted the petition for a writ of certiorari and issued a summary disposition in Flagstar Bank, N.A. v. Kivett. The Supreme Court vacated the judgment and remanded the case to the Ninth...more
6/19/2024
/ Consumer Financial Products ,
Dodd-Frank ,
Escrow Accounts ,
Financial Services Industry ,
Flagstar Bank ,
Flagstar Bank NA v Kivett ,
Mortgages ,
National Bank Act ,
Preemption ,
Real Estate Transactions ,
SCOTUS
In a blog post published at the end of last week, the CFPB announced that its payday lending rule (Rule) would go into effect on March 30, 2025. Because the Rule’s ability to pay requirements were rescinded, the only...more
6/18/2024
/ Administrative Procedure Act ,
Constitutional Challenges ,
Consumer Financial Products ,
Consumer Financial Protection Bureau (CFPB) ,
Consumer Financial Protection Bureau v Community Financial Services Association of America Ltd ,
Federal Funding ,
Final Rules ,
Financial Institutions ,
Financial Regulatory Reform ,
Financial Services Industry ,
Payday Lending Rule ,
SCOTUS
Special guest Professor Hal Scott of Harvard Law School joins us today as we delve into the thought-provoking question of whether the Supreme Court’s recent decision in the landmark case of CFSA v. CFPB really hands the CFPB...more
On May 30, 2024, in a unanimous decision, the Supreme Court reversed Cantero v. Bank of America, N.A., and remanded it back to the Second Circuit and instructed the appellate court to analyze whether New York’s law requiring...more
6/3/2024
/ Bank of America ,
Cantero v Bank of America NA ,
Dodd-Frank ,
Escrow Accounts ,
Financial Services Industry ,
Interest Rates ,
National Bank Act ,
Preemption ,
Remand ,
Reversal ,
SCOTUS
On Friday May 24, in response to the CFPB’s motion requesting the Fifth Circuit to accelerate the issuance of its mandate from July 9, 2024 with respect to its earlier dismissal of the plaintiffs’ appeal, the Fifth Circuit...more
5/28/2024
/ Administrative Procedure Act ,
CARD Act ,
Consumer Financial Products ,
Consumer Financial Protection Bureau (CFPB) ,
Consumer Financial Protection Bureau v Community Financial Services Association of America Ltd ,
Credit Cards ,
Debt Collection ,
Final Rules ,
Financial Institutions ,
Financial Services Industry ,
Late Fees ,
Motion to Transfer ,
Preliminary Injunctions ,
SCOTUS ,
Truth in Lending Act (TILA) ,
Venue
On May 16, Justice Thomas issued the majority opinion in which the Supreme Court held, by a 7-2 vote, that the CFPB’s funding mechanism comported with the Appropriations Clause of the Constitution which states, in relevant...more
5/23/2024
/ Banks ,
Constitutional Challenges ,
Consumer Financial Products ,
Consumer Financial Protection Bureau (CFPB) ,
Consumer Financial Protection Bureau v Community Financial Services Association of America Ltd ,
Dodd-Frank ,
Federal Funding ,
Final Rules ,
Financial Institutions ,
Financial Services Industry ,
SCOTUS
The U.S. Supreme Court’s ruling last week in CFSA v. CFPB that the CFPB’s funding mechanism does not violate the Appropriations Clause of the U.S. Constitution removes what many observers consider to be the last remaining...more
5/22/2024
/ Constitutional Challenges ,
Consumer Financial Protection Bureau (CFPB) ,
Consumer Financial Protection Bureau v Community Financial Services Association of America Ltd ,
Credit Cards ,
Dodd-Frank ,
Financial Services Industry ,
Late Fees ,
Payday Loans ,
Proposed Rules ,
Regulatory Agenda ,
SCOTUS ,
Small Business Loans ,
UDAAP
After bouncing from the Texas federal district court to the D.C. federal district court to the Fifth Circuit and back again to the Texas federal district court, the industry lawsuit challenging the CFPB’s credit card late fee...more
5/21/2024
/ Consumer Financial Products ,
Consumer Financial Protection Bureau (CFPB) ,
Consumer Financial Protection Bureau v Community Financial Services Association of America Ltd ,
Credit Cards ,
Debt Collection ,
Final Rules ,
Financial Institutions ,
Financial Services Industry ,
Late Fees ,
Preliminary Injunctions ,
SCOTUS
The U.S. Supreme Court, in a 7-2 decision, ruled yesterday that the CFPB’s funding mechanism does not violate the Appropriations Clause of the U.S. Constitution....more
5/17/2024
/ Constitutional Challenges ,
Consumer Financial Products ,
Consumer Financial Protection Bureau (CFPB) ,
Consumer Financial Protection Bureau v Community Financial Services Association of America Ltd ,
Credit Cards ,
Dodd-Frank ,
Federal Funding ,
Financial Institutions ,
Financial Regulatory Reform ,
Financial Services Industry ,
Late Fees ,
Preliminary Injunctions ,
SCOTUS