On September 14, 2023, the CFPB released Frequently Asked Questions (FAQs) regarding the Small Business Data Collection Rule (the “Rule”). These FAQs are in addition to the set published in June 2023, which are dated. Some, but not all, of the FAQs are discussed below.

Covered Credit Transactions

A few of the updated FAQs relate to the definition of a “covered credit transaction,” which includes the following topics:

  • Consumer-designated credit: The FAQs reiterate that consumer-designated credit is excluded from the Rule, even if the proceeds are used for business or agricultural purposes, as long as the credit is offered or extended primarily for personal, family or household purposes.
… Continue Reading

The CFPB recently released a report regarding higher education tuition payment plans that discusses prevailing practices and highlights certain CFPB concerns regarding consumer impact. The CFPB’s report was based upon (a) a review of hundreds of postsecondary school and college websites that contain publicly available information on tuition plans and related contracts, (b) consumer complaints submitted to the CFPB and Department of Education, and (c) interviews with consumers and meetings with industry participants.… 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

On September 21, 2023, with limited time to digest the comments received by September 11, 2023 from the request for information regarding medical payment products, the Consumer Financial Protection Bureau (CFPB) started the FCRA rulemaking process. The press release describes a “rulemaking process to remove medical bills from Americans’ credit reports.”… Continue Reading

The Financial Crimes Enforcement Network (“FinCEN”) has published a Small Entity Compliance Guide (the “Guide”) for beneficial ownership information (“BOI”) reporting under the Corporate Transparency Act (“CTA”), as well as updated FAQs regarding CTA compliance.

The Guide contains six chapters and an appendix. It is 56 pages long. It appears to be useful to its apparent target audience, which is small businesses confronting relatively simple issues under the CTA.… Continue Reading

More than ten years after the filing of the initial complaint challenging the 2013 disparate impact rule (Rule) adopted by the U.S. Department of Housing and Urban Development (HUD) under the Fair Housing Act (Act), the federal district court in Washington, DC granted HUD’s motion for summary judgment.  The two plaintiffs that filed the lawsuit are the insurance industry trade associations, the American Insurance Association and the National Association of Mutual Insurance Companies (NAMIC), although ultimately the case was pursued only by NAMIC. … Continue Reading

The FDIC has filed motion to dismiss the lawsuit filed in July 2023 in a Minnesota federal district against the FDIC and its Chairman seeking to invalidate the FDIC’s supervisory guidance on charging multiple non-sufficient funds (NSF) fees for the same unpaid item. See our prior blog here.

Last August, the FDIC-issued Financial Institutions Letter 40-2022: Supervisory Guidance on Multiple Re-Presentment NSF Fees (“FIL 40”).… 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

In May 2022, the CFPB issued Circular 2022-3 addressing Equal Credit Opportunity Act (ECOA) adverse action notice requirements in connection with credit decisions based on algorithms. The CFPB is now revisiting the issue in Circular 2023-3.

The recent Circular begins with the following question presented: “When using artificial intelligence or complex credit models, may creditors rely on the checklist of reasons provided in CFPB sample forms for adverse action notices even when those sample reasons do not accurately or specifically identify the reasons for the adverse action?”… Continue Reading

The Secretary of Commerce and the other respondents in Loper Bright Enterprises, et al. v. Raimondo have filed their merits brief in the U.S. Supreme Court urging the Court not to overrule its 1984 decision in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.  The petitioners filed their merits brief on July 17, 2023 and numerous amicus briefs in support of the petitioners have been filed. … Continue Reading