Since the U.S. Supreme Court’s 1984 Chevron decision, federal courts have typically applied a two-step analysis known as the “Chevron framework” to determine whether a court should defer to a federal agency’s interpretation of a statute.  SCOTUS has now agreed to hear the Loper case next Term in which the continued viability of the Chevron framework is being directly challenged. We first discuss the origins of the concept of judicial deference to federal agencies and the Chevron decision. We then discuss the background of the Loper case, the two recent SCOTUS decisions rejecting EPA interpretations, what the decisions could mean for challenges to CFPB and FTC regulations, what the decisions signal for how the Justices will rule in Loper, and possible outcomes in Loper. We conclude by considering the potential impact on federal agencies of a SCOTUS decision overruling Chevron, including the potential retroactive effect of such a decision. Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation.

A Look at the Current Challenge to Judicial Deference to Federal Agencies and What it Means for the Consumer Financial Services Industry, With Special Guest, Craig Green, Professor, Temple University 

The Consumer Financial Services industry is changing quickly. This weekly podcast from national law firm Ballard Spahr focuses on the consumer finance issues that matter most, from new product development and emerging technologies to regulatory compliance and enforcement and the ramifications of private litigation. Our legal team—recognized as one of the industry's finest— will help you make sense of breaking developments, avoid risk, and make the most of opportunity.

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On February 27, 2024, the U.S. Supreme Court heard oral argument in Cantero v. Bank of America, N.A., a case involving the effect of the Dodd-Frank Act on the scope of preemption under the National Bank Act (NBA). The specific question before the Court is whether, post-Dodd-Frank, the NBA preempts a New York statute requiring banks to pay interest on mortgage escrow accounts. The decision, however, could have ramifications well beyond the specific New York law at issue. This episode repurposes a recent webinar roundtable and brings together as our guests four attorneys who filed amicus briefs with the Supreme Court: Jonathan Y. Ellis, William M. Jay, and Matthew A. Schwartz, partners in private law firms, and Professor Arthur E. Wilmarth, Jr. After we review the procedural history of Cantero, our guests discuss the arguments made in favor of and against preemption in their amicus briefs and share their reactions to the oral argument and predictions for how the Court will rule. Alan Kaplinsky, Senior Counsel and former Practice Group Leader in the firm’s Consumer Financial Services Group, moderates the discussion.

The U.S. Supreme Court’s Pending Ruling on National Bank Preemption: A Discussion of Cantero v. Bank of America, N.A.

Our special guest is Andrew Nigrinis of Legal Economics LLC and former CFPB enforcement economist. The CFPB’s final credit card late fee rule lowers the safe harbor late fee amount that card issuers other than “smaller card issuers” can charge to $8. We first discuss how the final rule differs from the proposed rule and the existing rule, who are “smaller issuers” not subject to the lower safe harbor amount, and the changes made by the final rule for larger issuers. We then look at issuers’ ability to determine late fees based on their costs, permissible fees other than late fees, the CFPB’s economic analysis underlying the final rule, and the final rule’s likely impact on issuers and cardholders. We conclude with a discussion of the Texas lawsuit challenging the final rule and the key arguments for invalidating the rule. Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion, joined by John Culhane and Ronald Vaske, Partners in the Group, and Kristen Larson, Of Counsel in the Group.

A Close Look at the Consumer Financial Protection Bureau’s Final Credit Card Late Fee Rule: Have Cardholders Been Dealt a Winning or Losing Hand?

Our special guest is Ian Moloney, Senior Vice President and Head of Policy and Regulatory Affairs with the American Fintech Council (AFC). After reviewing how EWA products are used by consumers and the differences between employer- and provider-based products, we discuss the regulatory challenges faced by the EWA industry, the regulatory approaches states have taken to EWA, actions taken by the Consumer Financial Protection Bureau related to EWA, and proposed federal legislation dealing with EWA. We conclude with a discussion of AFC’s letter to the Bureau urging the Bureau to develop a regulatory approach to EWA. Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion, joined by Michael Guerrero, a Partner in the Group and Co-Leader of the firm’s Fintech and Payments Solutions Team.

An Update on Earned Wage Access Products

Our special guest is David Pommerehn, SVP, General Counsel, Head of Regulatory Affairs at the Consumer Bankers Association. In January 2024, the CFPB proposed two new rules: one restricting overdraft fees and the other prohibiting NSF fees on certain declined transactions. The proposals are among the CFPB’s latest moves in furtherance of the Biden Administration’s “junk fees” agenda. In this episode, which repurposes a recent webinar, we discuss the key provisions of each proposal and entities covered, the CFPB’s justification for each proposal, the legal authority relied on by the CFPB for each proposal, business practices impacted by the proposals, and potential legal challenges. Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates the discussion, joined by John Culhane, a Partner in the Group, and Kristen Larson, Of Counsel in the Group.

A Close Look at the Consumer Financial Protection Bureau’s Proposed Rules on Overdraft and Nonsufficient Funds Fees

Our special guest is Malini Mithal, Associate Director of the FTC’s Division of Financial Practices. In this episode, which repurposes a recent webinar, we review highlights of FTC regulatory and enforcement activity in 2023 directed at protecting consumers and small businesses and discuss what to expect from the FTC in 2024 and beyond. After reviewing the FTC’s authority, we discuss important consent orders and enforcement litigation involving: alternate financing mechanisms such as cash advance apps and income share agreements; discriminatory financing and other practices, including the FTC’s use of unfairness; small business financing such as merchant cash advances; telemarketing practices; crypocurrency; and use of dark patterns. Throughout this discussion, Ms. Mithal offers compliance tips and takeaways from the consent orders and enforcement litigation. We also look at the FTC’s final CARS rule, proposed junk fees rule, and artificial intelligence-related initiatives. Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion, joined by John Culhane, a partner in the Group.

A Look at the Current Challenge to Judicial Deference to Federal Agencies and What it Means for the Consumer Financial Services Industry, With Special Guest, Craig Green, Professor, Temple University

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