Consumer Finance Monitor
Ballard Spahr LLP
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Top 10 Consumer Finance Monitor Episodes
Goodpods has curated a list of the 10 best Consumer Finance Monitor episodes, ranked by the number of listens and likes each episode have garnered from our listeners. If you are listening to Consumer Finance Monitor for the first time, there's no better place to start than with one of these standout episodes. If you are a fan of the show, vote for your favorite Consumer Finance Monitor episode by adding your comments to the episode page.
The Consumer Financial Protection Bureau’s Use of Unfairness to Regulate Discriminatory Conduct: A Discussion of the Consumer and Industry Perspectives
Consumer Finance Monitor
03/28/24 • 62 min
Our special guest is Jeff Sovern, Professor at the University of Maryland Francis King Carey School of Law. In March 2022, the CFPB announced that it had revised its exam 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 federal laws that expressly prohibit discrimination. The changes were subsequently vacated by a federal district court in a lawsuit brought by several trade groups challenging the changes and the Fifth Circuit has stayed the CFPB’s appeal from that decision pending the U.S. Supreme Court’s decision in CFSA v. CFPB. In this episode, we first review the background of the exam manual changes, the industry response, and the district court’s decision. We then take a close look at the key arguments both in support of and against upholding the decision. We conclude with a discussion of the use of disparate impact in applying the unfairness standard to discriminatory conduct and the appropriateness of the CFPB’s use of changes to its exam manual to announce its new interpretation of the standard.
Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion, joined by Richard Andreano, a Partner in the Group and Practice Leader of the firm’s Mortgage Banking Group.
The U.S. Supreme Court Hears Two Cases in Which the Plaintiffs Seek to Overturn the Chevron Judicial Deference Framework: Who Will Win and What Does It Mean? Part I
Consumer Finance Monitor
03/07/24 • 46 min
On January 17, 2024, the U.S. Supreme Court heard oral argument in two cases in which the question presented is whether the Court should overrule its 1984 decision in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. That decision produced what became known as the "Chevron judicial deference framework" - the two-step analysis that courts typically invoke when reviewing a federal agency’s interpretation of a statute. This two-part episode repurposes our webinar held in February 2024 and brings together as our guests three renowned administrative law professors, Kent Barnett, Jack Beermann, and Craig Green, and a leading Supreme Court practitioner, Carter Phillips, all of whom are experts on Chevron. In Part I, we first review the Chevron decision and judicial deference framework and the background of the two cases now before the Supreme Court. We then look at the history of judicial review of agency action culminating with the current challenge to Chevron deference, including the origins of judicial deference to agency action, the political shift away from judicial deference, and key post-Chevron decisions. We conclude with a discussion of the principal arguments made to the Supreme Court for upholding Chevron and for overruling Chevron.
Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion.
The Biden Administration’s “Junk Fees” Initiative Continues: What the Latest Actions Mean for the Consumer Financial Services and Rental Housing Industries, Part II
Consumer Finance Monitor
12/14/23 • 44 min
This two-part podcast repurposes our most recent webinar on the latest salvo of actions in the Biden Administration’s initiative directed at combatting so-called “junk fees.” Launched in January 2022, the initiative shows no signs of abating.
In Part II, we first look at the Consumer Financial Protection Bureau’s advisory opinion on fees charged by large banks and credit unions to respond to information requests, including the Bureau’s discussion of non-fee obstacles such as chatbots that could unlawfully impede consumers’ ability to make an information request. We then discuss the CFPB’s second edition of Supervisory Highlights focused on “junk fees,” taking a close look at the CFPB’s findings regarding deposit account fees, auto servicing fees, and remittance transfer fees and its discussion of the CFPB’s circular on reopening closed deposit accounts, a remedial action against an auto servicer, and risks in connection with payment processing platforms for student meal accounts. We also discuss CFPB “junk fees” enforcement actions involving NSF fees, fees for add-on products charged by an installment loan lender, and refinancing costs imposed by a high-cost installment lender, as well as state law activity in California and elsewhere related to “junk fees.” We conclude with a discussion of potential future CFPB rulemaking and other actions involving “junk fees,” steps providers should consider to reduce “junk fees” compliance risk, and the preemptive effect on state law of an FTC “junk fees” rule.
Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates the discussion, joined by John Culhane and Reid Herlihy, Partners in the Group, Michael Gordon and Kristen Larson, Of Counsel in the Group, and Roger Winston, a Partner in the firm and Leader of its Mixed-Use, Condominium, and Multifamily Development Team.
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. Our special guests are six renowned attorneys who filed amicus briefs in the case: Michael Williams, Principal Deputy Solicitor General, Office of the West Virginia Attorney General; Adam Levitin, Professor, Georgetown University of Law Center; Scott Nelson, Public Citizen Litigation Group; Jeffrey Naimon, Orrick, Herrington & Sutcliffe LLP; Joshua Katz, Research Fellow, Cato Institute; and John Masslon, Counsel, Washington Legal Foundation.
This two-part episode repurposes our widely-attended and highly interactive webinar held on October 17. In Part I, we first discuss some of the key questions asked by each of the Justices that could be indicative of how he or she may vote on the case and summarize the positions of each of the parties. We then discuss the major arguments made by each of the parties in support of their positions and examine the strength of those arguments.
Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates the discussion.
An Even Deeper Dive into the CFPB’s Final Dodd-Frank Section 1071 Rule on Small Business Data Collection
Consumer Finance Monitor
08/17/23 • 63 min
The CFPB’s final rule implementing Section 1071 requires financial institutions to collect and report certain data in connection with credit applications made by small businesses, including women-, minority- or LGBTQI+-owned small businesses. In this episode, we respond to questions received from attendees of our April 2023 attendance-breaking webinar about the final rule. The issues our responses address include: what is a “covered transaction” and distinguishing business/consumer purpose transactions; determining the applicable compliance date, applying the “grace period,” and pre-compliance date data collection; which originations must be reported, which are excluded, who has reporting obligations in multiple party transactions such as indirect auto loans, and identifying who is a small business; reliance on broker-collected data and data collection when small business status is uncertain; complying with data segregation and “firewall” requirements; reporting issues for securities-backed loans; CFPB identification/treatment of underperforming originators; and data to be publicly disclosed and CFPB approach to data analysis. We also discuss the preliminary injunction issued by a Texas federal court staying the rule’s compliance dates for the plaintiffs only and how other entities subject to the rule have reacted.
Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion joined by John Culhane and Richard Andreano, partners in the Group, and Loran Kilson and Kaley Schafer, associates in the Group.
The Regulation of Negative Option Consumer Contracts – Silence as Consent
Consumer Finance Monitor
10/10/24 • 59 min
Our podcast today focuses on negative option consumer contracts, i.e., agreements that allow a seller to assume a customer’s silence is an acceptance of an offer. Such contracts are ubiquitous in today’s marketplace.
Today’s guests are Kaitlin Caruso, a professor at the University of Maine Law School, and Prentiss Cox, a professor at the University of Minnesota Law School. They have written an article entitled, “Silence as Consumer Consent: Global Regulation of Negative Option Contracts.” The article is available on SSRN and will soon be published in the American University Law Review.
The Professors first describe what they perceive to be some of the consumer harms resulting from the use of negative option contracts – consumers signing up for “free trial” offers that convert to term contracts requiring consumers to pay periodic fees after the free trial period has expired; credit card “add-on” products which are sold through telemarketing, like credit life and disability insurance; subscription contracts which make it difficult for consumers to cancel; subscription contracts for services, which are not used for lengthy periods of time while the consumer continues to pay periodic fees.
The Professors then describe the existing federal and state statutes and FTC regulations and why they are inadequate to protect consumers. They point out that the current FTC negative option rule was promulgated decades before the development of the Internet and obviously does not begin to deal with online sales of goods and services. Instead, the FTC rule is intended to deal with mail order sales like the “Book-of-the-Month” club. While the FTC has proposed a new negative option rule which is a vast improvement over the existing FTC rule, it is unclear when or if a final rule will be promulgated. The Professors also describe the federal Restore Online Shoppers Confidence Act, and the FTC‘s Telemarketing Sales Rule which tangentially pertain to negative option contracts. Finally, the professors discuss a patchwork quilt of state laws (mostly part of state UDAP statutes) which deal with negative option contracts.
After surveying the existing federal and state laws, as well as negative option laws enacted in many foreign countries, the Professors describe the core elements of what a negative option law (be it state or federal) should contain in order to protect consumers. The core elements are:
1. A prohibition against converting a “free trial” offer into a term contract;
2. A prohibition against automatically converting a negative option contract into another term contract with the contract instead becoming a month-to- month contract. Alternatively, the negative option contract could convert to a term contract, which could then be canceled during the first 90 days after the consumer sees a charge on a credit card statement.
3. If a subscription to services is not used by the consumer for at least one year, then the seller must notify the consumer of the dormancy, and if the service remains dormant for another three months thereafter, then the seller must cease charging the consumer for the service.
Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts today’s episode.
Alan Kaplinsky’s “Fireside Chat” with Matthew J. Platkin, New Jersey Attorney General
Consumer Finance Monitor
02/11/25 • 29 min
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.
Universal Injunctions, Associational Standing, and Forum Shopping - Their Effects on Legal Challenges to Regulations
Consumer Finance Monitor
08/01/24 • 54 min
Special guest Professor Alan Trammell of Washington and Lee University School of Law joins us today for a deep dive into universal injunctions and the related topics of associational standing and judicial forum shopping, and how these elements come into play in litigation challenging regulations and other government policies and actions.
Recent developments in litigation critical to the consumer financial services industry have brought universal injunctions into the spotlight. We begin today’s episode by providing a working definition of a universal injunction, some historical background, and examples that illustrate the benefits, effects and power of this sweeping remedy. We then turn to an in-depth discussion of objections raised by detractors; real-world concerns that may flow from universal injunctions, including a “one and done problem” cited by Professor Trammell; and various circumstances where Professor Trammell argues universal injunctions are and are not appropriate.
We also cover associational standing and its interaction with universal injunction: whether and when a trade association should have standing to bring an action seeking relief for its members, and how and when the outcome of the action might expand into a universal injunction that also would benefit non-members. Our next areas of focus are forum shopping and judge shopping, particularly in the context of such litigation brought by an association.
We then turn to speculation as to whether and how the U.S. Supreme Court may proceed to bring some uniformity to how the courts are dealing with these issues. Our episode concludes with comments on recent input on these topics from sources such as Congress and the Judicial Conference of the United States.
Alan Kaplinsky, former practice leader and current Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts this week’s episode.
Banking as a Service
Consumer Finance Monitor
02/20/25 • 73 min
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.
California Consumer Finance Law - Hot Topics and Recent Developments
Consumer Finance Monitor
07/03/24 • 54 min
California frequently is in the vanguard of consumer financial issues and legislation, foreshadowing trends that may spread to other states. Today’s episode, during which we explore important hot topics and recent developments in California consumer finance law, is hosted by Ballard Spahr partner Melanie Vartabedian, and features Partners Michael Guerrero and Joel Tasca, and Of Counsel John Kimble.
We first discuss what the future likely holds for proposed rules issued under the California Consumer Financial Protection Law (CCFPL) by the California Department of Financial Protection and Innovation (DFPI). The proposed rules include complex registration and reporting requirements for certain consumer products, and are under revision after rejection by the California Office of Administrative Law for lack of clarity. We then explore the DFPI's most recent annual report on activity under the CCFPL, which recaps the DFPI's rulemaking, enforcement efforts, complaints received, and efforts in connection with education outreach and the Office of Financial Innovation. Highlights include a rule that applies consumer-type “unlawful, unfair, deceptive, or abusive acts and practices” (referred to in the report as “UUDAAP”) prohibitions to financial products and services provided to small businesses; ramped-up enforcement efforts; and high-dollar settlements as well as litigation in progress. Next, we turn to a comparison of California’s Rosenthal Fair Debt Collection Practices with the federal Fair Debt Collection Practices Act, and discuss their similarities, differences, and litigation trends under both laws. We then focus on the California Consumer Credit Reporting Agencies Act, which poses challenges for companies that report consumer data to consumer reporting agencies over and above the requirements of federal law. We conclude with a look at unique issues arising in California with respect to the FTC “holder rule”.
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FAQ
How many episodes does Consumer Finance Monitor have?
Consumer Finance Monitor currently has 157 episodes available.
What topics does Consumer Finance Monitor cover?
The podcast is about News, Business News, Legal, Podcasts and Government.
What is the most popular episode on Consumer Finance Monitor?
The episode title 'The U.S. Supreme Court’s Pending Ruling on National Bank Preemption: A Discussion of Cantero v. Bank of America, N.A.' is the most popular.
What is the average episode length on Consumer Finance Monitor?
The average episode length on Consumer Finance Monitor is 53 minutes.
How often are episodes of Consumer Finance Monitor released?
Episodes of Consumer Finance Monitor are typically released every 7 days.
When was the first episode of Consumer Finance Monitor?
The first episode of Consumer Finance Monitor was released on Jun 16, 2022.
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