The Consumer Financial Protection Bureau’s Final Section 1071 Rule on Small Business Data Collection: What You Need to Know, Part I

Consumer Finance Monitor

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Uncuffed

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S4, E1 - Day One 7:38

5 weeks 전7:38

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7:38

Last summer, something monumental happened. One of Uncuffed's founding producers, Greg Eskridge, came home after more than 30 years in prison. In this episode we’ll bring you back to that emotional day last summer when he walked out of the San Quentin gates, free at last. Our work in prisons is supported by the California Arts Council, the California Department of Corrections and Rehabilitation, independent foundations, and donations from listeners like you. Learn more, sign up for Uncuffed news, and support the program at www.weareuncuffed.org Follow us @WeAreUncuffed on Instagram and Facebook Transcripts are available within a week of the episode coming out at www.kalw.org/podcast/uncuffed…

2년 전 38:42

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At the end of March 2023, the CFPB issued its long-awaited final rule to implement Section 1071 of the Dodd-Frank Act. Section 1071 amended the Equal Credit Opportunity Act to require financial institutions to collect and report certain data in connection with credit applications made by small businesses, including women- or minority-owned small businesses. Although the final rule will be effective on August 29, 2023, it contains a tiered compliance date schedule, with an earliest compliance date of October 1, 2024 for financial institutions that originate the most covered credit transactions and later compliance dates for institutions with lower transaction volumes.

In Part I of this two-part episode, we first take a close look at the final rule’s key definitions, specifically those for “covered application,” “covered financial institution,” “covered credit transaction,” and “small business.” We then discuss the data points that must be collected about the credit applied for, the borrower, and the borrower’s principal owners and consider how the data points are similar to or different from the data points required to be collected pursuant to the Home Mortgage Disclosure Act. We conclude with a discussion of the rule’s provisions regarding procedures for the collection of data, such as the restrictions on employee and officer access to data.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the conversation, joined by John Culhane and Richard Andreano, Partners in the Group.

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#Business News #Government #Consumerfinancialservices #Financialservices #Legal #Ballard Spahr LLP #News

Consumer Finance Monitor

The Consumer Financial Protection Bureau’s Final Section 1071 Rule on Small Business Data Collection: What You Need to Know, Part I

Consumer Finance Monitor

16 subscribers

published 2년 전

MP3•에피소드 홈

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the conversation, joined by John Culhane and Richard Andreano, Partners in the Group.

128 에피소드

#Business News #Government #Consumerfinancialservices #Financialservices #Legal #Ballard Spahr LLP #News

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Consumer Finance Monitor

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The Patterns of Digital Deception 35:24

6일 전35:24

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35:24

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 August 3, 2023 . 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.…

Consumer Finance Monitor

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Banking as a Service 1:13:57

13일 전1:13:57

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1:13:57

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.…

Consumer Finance Monitor

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The Fall of The CFPB, The Rise of The State AG 35:54

19일 전35:54

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35:54

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.…

Consumer Finance Monitor

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Will the State Attorneys General and Other State Agencies Fill the Void Left by the CFPB? 1:05:01

20일 전1:05:01

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1:05:01

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 here . 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 here , here , and here . Our podcast shows (repurposing Parts 1 and 2 of our webinar series) appear here , here , here , and here . 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.…

Consumer Finance Monitor

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Alan Kaplinsky’s “Fireside Chat” with Matthew J. Platkin, New Jersey Attorney General 29:39

21일 전29:39

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29:39

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 here , here , and here . Our podcast shows (repurposing Parts 1 and 2 of our webinar series) appear here , here , here , and here . 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.…

Consumer Finance Monitor

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Regulating Bank Reputation Risk 55:50

27일 전55:50

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55:50

Today’s podcast show features a discussion with Julie Andersen Hill about her law review article titled “ Regulating Bank Reputation Risk ”, 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.…

Consumer Finance Monitor

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The Impact of the Election on the CFPB: What to Expect with Supervision and Enforcement During Trump 2.0 41:35

5 weeks 전41:35

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41:35

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 here . 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.…

Consumer Finance Monitor

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Alan Kaplinsky’s “Fireside Chat” with Kathy Kraninger, Former Director of the CFPB During Trump 1.0 1:00:05

6 weeks 전1:00:05

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1:00:05

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.…

Consumer Finance Monitor

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The CFPB’s Proposed Data Broker Rule 1:07:11

7 weeks 전1:07:11

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1:07:11

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.…

Consumer Finance Monitor

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The Impact of the Election on the CFPB: What to Expect on Key Regulatory Issues During Trump 2.0 56:15

8 weeks 전56:15

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56:15

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.…

Consumer Finance Monitor

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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 38:07

9 weeks 전38:07

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38:07

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.…

Consumer Finance Monitor

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Navigating the New CFPB Open Banking Rule 1:03:43

10 weeks 전1:03:43

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1:03:43

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.…

Consumer Finance Monitor

1
Banks Aren’t Over-Regulated, They Are Over-Supervised 52:11

11 weeks 전52:11

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52:11

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: At the time, in the still-smoldering ruins of the financial crisis, this struck me as bizarre. Banks are the beneficiaries of an array of government privileges: subsidized leverage (through insured deposits), liquidity (through the discount window and the home loan banks), exclusive access to payment rails (both through the central bank and bank-only private networks), and even choice of law (through federal preemption). Given all that, safeguards on capital, liquidity, credit exposure, market and interest rate exposure, cybersecurity, and consumer protection seemed like a fair trade to me. 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 regulatory agencies are, probably justifiably, proud of their long histories of public service. But that pride breeds cultures that are strikingly conservative and resistant to change. As importantly, unlike private sector firms, they do not have the crucible of a profit imperative to burn away unproductive practices and orthodoxies. And it shows. It is not as though bank examiners cannot articulate the most important issues facing their regulated charges; it is just that they often just have no reason to stop working on things other than the most important issues. 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.…

Consumer Finance Monitor

1
Consumer Federation of America (“CFA”) Speaks Out About CFPB’s and FTC’s Direction During the Trump Administration 1:04:50

12 weeks 전1:04:50

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리스트

1:04:50

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.…

Consumer Finance Monitor

1
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 51:36

13 weeks 전51:36

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리스트

51:36

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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Consumer Finance Monitor « » The Consumer Financial Protection Bureau’s Final Section 1071 Rule on Small Business Data Collection: What You Need to Know, Part I

The Consumer Financial Protection Bureau’s Final Section 1071 Rule on Small Business Data Collection: What You Need to Know, Part I

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The Consumer Financial Protection Bureau’s Final Section 1071 Rule on Small Business Data Collection: What You Need to Know, Part I