The consumer financial services industry has become the target of increasing regulatory scrutiny under antitrust laws as well as class action antitrust litigation that challenges industry practices on the grounds that they undermine competition. We first provide an overview of the federal antitrust laws, discuss the Biden Administration’s focus on competition, and the wide remedies available under antitrust laws. We then look at how the current FTC, DOJ, and CFPB leadership are attempting to expand the use of antitrust laws through their enforcement authority and how the agencies’ antitrust focus informs private litigation. We also look at the special antitrust issues presented by fintech companies and the FTC’s efforts to use antitrust laws to challenge data aggregation and data use as anticompetitive practices. We conclude with a discussion of steps companies can take to reduce antitrust risk, including through internal policing and consultation with antitrust counsel in connection with the development of new products and services, the significance for the consumer financial services industry of the FTC’s expanded use of Section 5 to target anticompetitive practices, and the role of state antitrust laws.

Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the conversation, joined by Ed Rogers, a partner in the firm’s Litigation Group, and Erin Fischer, an associate in the Litigation Group.