Barbara S. Mishkin

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The CFPB  recently issued a policy statement in which it provided a framework for determining what constitutes abusive conduct under the CFPA.  After reviewing the definition of abusive in the CFPA and the historical background of the adoption of an abusive standard in the CFPA, we examine how the policy statement addresses each element of the abusive standard and share our observations as to the policy statement’s implications. … Continue Reading

On October 3, 2023, the U.S. Supreme Court held oral argument in CFSA v. CFPB, a case with profound potential implications for the future of the CFPB.  The Court will rule on whether the CFPB’s funding mechanism violates the U.S. Constitution’s Appropriations Clause and, if so, what the appropriate remedy should be. … Continue Reading

Alan Kaplinsky, Senior Counsel in and former Practice Group Leader of Ballard Spahr’s Consumer Financial Services Group and frequent host of the Consumer Finance Monitor Podcast (a weekly podcast episode sponsored by our Consumer Financial Services Group) was recently the special guest of Bloomberg Intelligence analysts Elliott Stein and Nathan Dean on their podcast, Votes and Verdicts. … Continue Reading

On October 3, 2023, the U.S. Supreme Court heard oral argument in CFSA v. CFPB, a case with profound potential implications for the future of the CFPB.  The Court will rule on whether the CFPB’s funding mechanism violates the U.S. Constitution’s Appropriations Clause and, if so, what the appropriate remedy should be. … Continue Reading

Our special guest is Zarik Khan, Founder and Managing Director of Finsolute Advisors.  Congress is now considering whether to enact the CCCA, a bill that would require credit card issuers with assets over $100 billion to include at least two possible network processors on each card.  We first look at the roles of the various parties involved in a typical transaction in which a consumer makes a purchase from a merchant using a credit card. … Continue Reading

Our special guest is Mark Budnitz, Professor Emeritus, Georgia State University College of Law.  In an article recently published in the Georgetown Journal on Poverty Law & Policy, Prof. Budnitz explores the impact on low-income consumers of the increasing use of digital technology for consumer payments.  Prof. Budnitz first explains why, in his view, the current laws governing digital financial services, particularly the Electronic Funds Transfer Act and Reg.… Continue Reading

Our special guest is Michael Ostheimer, Senior Consumer Protection Attorney in the FTC’s Division of Advertising Practices.  In June 2023, the FTC updated its guides that set forth the FTC’s position on how Section 5 of the FTC Act, which prohibits unfair or deceptive acts or practices, applies to the use of endorsements and testimonials in advertising. … Continue Reading

Tomorrow, the U.S. Supreme Court will hear oral argument in CFPB v. CFSA, in which the question presented is whether the CFPB’s funding mechanism violates the Appropriations Clause of the U.S. Constitution.

In an article requested by and published today in American Banker’s BankThink, Alan Kaplinsky, Senior Counsel (and former practice group leader) in Ballard Spahr’s Consumer Financial Services Group, argues that the Supreme Court should rule that the CFPB’s funding mechanism is unconstitutional. … Continue Reading

In March 2022, the Consumer Financial Protection Bureau announced that it had revised its examination manual to instruct its examiners to apply the “unfairness” standard under the Consumer Financial Protection Act to conduct considered to be discriminatory, whether or not it is covered by the Equal Credit Opportunity Act.  We first review the changes that the CFPB made to the manual, its rationale for the changes, and how those changes would allow the CFPB to target discrimination more broadly than the circumstances covered by the ECOA. … Continue Reading

Our special guest is Andrew Nigrinis, PhD, who formerly served as Enforcement Economist for the Consumer Financial Protection Bureau.  We first discuss what is meant by “dark patterns” and the types of digital practices identified by the CFPB and Federal Trade Commission as “dark patterns.”  We then look at the CFPB ‘s position regarding the use of “dark patterns” as an unfair, deceptive, or abusive act or practice under the Consumer Financial Protection Act, the FTC’s position regarding the use of “dark patterns” as anticompetitive and/or a violation of the FTC Act prohibition of unfair or deceptive acts or practices, and the relationship between “dark patterns” and behavioral economics. … Continue Reading