This New Year is setting up to be a momentous one for the consumer financial services industry in the United States Supreme Court. In 2024, the Supreme Court is expected to decide four impactful cases that may hold that the CFPB’s funding is unconstitutional, eliminate giving deference to CFPB, FTC and federal banking agency regulations, severely narrow National Bank Act (NBA) preemption of state laws, and limit the time during which a plaintiff may sue an agency to facially challenge an agency rule.… Continue Reading

The scope of national bank preemption is currently before the U.S. Supreme Court in Cantero v. Bank of America, N.A.  A New York statute requires the payment of interest on mortgage escrow accounts and the question before the Supreme Court is whether the National Bank Act (NBA) preempts application of the New York statute to national banks. … Continue Reading

District of Columbia Council Bill B 25-0609, which would opt out of Section 27 of the Federal Deposit Insurance Act (“FDIA”) with respect to loans made in the District of Columbia, was introduced in the District of Columbia Council on November 30, 2023, and referred to the Council’s Committee on Business and Economic Development on December 5, 2023.… Continue Reading

Recently, 93 members of Congress (all Democrats) signed a letter in support of the pending Petition for Rulemaking filed by consumer advocacy groups in September that would prohibit pre-dispute consumer arbitration clauses and permit only post-dispute clauses.  The letter argues that the proposed rulemaking is “much-needed” to protect consumers from “forced arbitration clauses in the fine print, take-it-or-leave-it terms accompanying many financial products and services.”… Continue Reading

Recently, Professor Sovern replied to our blog post that commented on the letter that he and 160 other law academicians submitted to the CFPB in support of the pending Petition for Rulemaking that would prohibit pre-dispute consumer arbitration clauses and permit only post-dispute clauses. 

In response, we would like to acknowledge that two of Professor Sovern’s statements are accurate. … Continue Reading

As we reported, the CFPB just released its Fall 2023 rulemaking agenda as part of the Fall 2023 Unified Agenda of Federal Regulatory and Deregulatory Actions.  

I have been contacted by many clients who have asked me whether we should read any significance into the fact that the anti-arbitration Petition for Rulemaking submitted to the CFPB by a consortium of consumer advocacy groups on September 13 is not mentioned in the new rulemaking agenda. … Continue Reading

The CFPB has released its Fall 2023 rulemaking agenda as part of the Fall 2023 Unified Agenda of Federal Regulatory and Deregulatory Actions.  The agenda’s preamble indicates that “[t]he Bureau reasonably anticipates having the regulatory matters identified [in the agenda] under consideration during the period from November 2023 to October 2024.”… Continue Reading

We previously reported and released a podcast episode on comments that we and Professor David Sherwyn of Cornell University submitted in opposition to the Petition for Rulemaking filed by a number of consumer advocacy groups urging the CFPB to prohibit pre-dispute consumer arbitration clauses and allow only post-dispute clauses.  Among other things, we argued that the  rule proposed by the Petitioners would be prohibited by the Congressional Review Act (CRA) because it is substantially the same as the Final Arbitration Rule promulgated by the CFPB in July 2017 that Congress overrode in November 2017. … Continue Reading

Last week, by a vote of 221-202, the House of Representatives voted to approve S.J. 32, the resolution introduced under the Congressional Review Act to override the CFPB’s final Section 1071 small business lending rule (1071 Rule).  The Senate voted to approve S.J. 32 in October 2023.  President Biden is expected to veto the resolution and there is unlikely to be sufficient votes to override his veto. … Continue Reading