Consumer Finance Monitor

On January 4 of this year, we released a podcast show entitled; “A look at a new approach to consumer contracts”. Our special guest at that time was Professor Andrea Boyack, a Professor at the University of Missouri School of Law. That podcast was based on a then recent law review article published by Professor Boyack entitled “The Shape of Consumer Contracts, 101 Denv L. Rev. 1 (2023). Today, we are joined again by Professor Boyack who has written a follow-up article entitled: “Abuse of Contract: Boilerplate Erasure of Consumer Counterparty Rights,” University of Missouri School of Law Legal Studies Research Paper No. 2024-03, which is the subject of our new show.

The abstract of her article accurately describes the points that Professor Boyack made during the podcast show:

Contract law and the new Restatement of the Law of Consumer Contracts generally treats the entirety of the company’s boilerplate as presumptively binding. Entrusting the content of consumer contracts to companies creates a fertile legal habitat for abuse through boilerplate design.

There is no consensus on how widespread or severe abuse of contract is. Some consumer law scholars have warned of dangers inherent in granting companies unrestrained power to sneak waivers into their online terms, but others contend that market forces adequately constrain potential abuse. On the other hand, in the absence of adequate consumer knowledge and power, market competition might instead fuel the spread of abusive boilerplate provisions as companies compete to insulate themselves from costs. The new Restatement and several prominent scholars claim that existing protective judicial doctrines siphon off the worst abuses among adhesive contracts. They are willing to accept those abuses that slip through the cracks as the unavoidable cost of a functioning, modern economy.

The raging debate over how to best constrain contractual abuse relies mainly on speculation regarding the proliferation and extent of sneak-in waivers. This article provides some necessary missing data by examining the author’s study of 100 companies’ online terms and conditions (the T&C Study). The T&C Study tracked the extent to which the surveyed companies’ boilerplate purported to erase consumer default rights within four different categories, thereby helping to assess the effectiveness of existing market and judicial constraints on company overreach. Evidence from the T&C Study shows that the overwhelming majority of consumer contracts contain multiple categories of abusive terms. The existing uniformity of boilerplate waivers undermines the theory that competition and reputation currently act as effective bulwarks against abuse. After explaining and discussing the T&C Study and its results, this article suggests how such data can assist scholars and advocates in more effectively protecting and empowering consumers.

We also discuss two separate CFPB initiatives pertaining to consumer contracts. On June 4 of this year, the CFPB issued Circular 2024-03 (“Circular”) warning that the use of unlawful or unenforceable terms and conditions in contracts for consumer financial products or services may violate the prohibition on deceptive acts or practices in the Consumer Financial Protection Act. We previously drafted a blog post and Law360 article about this circular.

The CFPB has also issued a proposed rule to establish a system for the registration of nonbanks subject to CFPB supervision that use “certain terms or conditions that seek to waive consumer rights or other legal protections or limit the ability of consumers to enforce their rights.” Arbitration provisions are among the terms that would trigger registration. The CFPB has not yet finalized this proposed rule and it seems likely that it will never be finalized in light of its very controversial nature and the fact that Director Chopra will be replaced on January 20 with a new Acting Director.

Alan Kaplinsky, the former Chair of Ballard Spahr’s Consumer Financial Services Group for 25 years and now Senior Counsel, hosts this episode.

In this podcast show, we explore with our repeat guest, Professor Dan Awrey of Cornell University Law School, his working paper “Money and Federalism” in which he advocates for the enactment of Federal legislation creating a Federal charter for non-banks engaged in the payments business, like PayPal and Venmo. The article may be accessed online at SSRN and will likely be published in a law review at some time in the future. The abstract of Professor Awrey’s article describes in general terms what we discussed:

The United States is the only country in the world in which both federal and state governments possess independent and yet overlapping authority for bank chartering, regulation and supervision. The roots of this unique dual banking system can be traced back to the Constitution, written almost a century before banks rose to the apex of the financial system and became the dominant source of money. Beginning with the landmark Supreme Court decision in Maryland v. McCulloch, the system has been a wellspring of jurisdictional conflict. Yet over time, this highly contested and highly fragmented system has also produced strong federal oversight and a financial safety net that protects bank depositors, prevents destabilizing runs, and promotes monetary stability.

This system is now under stress. The source of the stress is a new breed of technology-driven financial institutions licensed and regulated almost entirely at the state level that provide money and payments outside the perimeter of both conventional bank regulation and the financial safety net. This article examines the rise of these new monetary institutions, the state-level regulatory frameworks that govern them and the nature of the threats they may one day pose to monetary stability.

It also examines the legal and policy cases for federal supremacy over the regulation of these new institutions and advances two potential models, one based on complete federal preemption, the other more tailored to reflect the narrow yet critical objective of promoting public confidence and trust in our monetary system.

Professor Awrey explained why existing state money transmitter statutes under which non-bank payments firms are generally licensed provide insufficient protection for consumers who use these firms. State money transfer statutes were created many years ago to protect consumers that were using Western Union. These laws were not designed to protect consumers that deploy non-bank Fintech companies using new technologies to transfer funds. These companies don’t have access to the Federal Reserve’s central payments system that banks have access to. These non-bank companies, unlike banks, are subject to federal bankruptcy law.  That increases the likelihood that consumers can lose their funds deposited in one of these non-bank companies in the event of its failure.

Professor Awrey concludes that the answer to this problem is the enactment of federal legislation which would create a federal charter for non-bank companies engaged in transmitting payments. A company that is granted such a charter would have access to the Fed’s payment rails and would be exempt from the federal Bankruptcy Code. Such a company would be very restricted in the types of investments it may hold. The federal charter would ideally preempt many state laws, including state money transmitter laws.

We also spent some time at the beginning of the show discussing the status of FedNow, the instant payments system launched by the Federal Reserve System in July 2023. Professor Awrey was previously a guest on our podcast show on September 14, 2023 entitled “What is FedNow and its Role in the U.S. Payments System.” At that time, Professor Awrey predicted that FedNow was too little, too late and too expensive for small banks. Professor Awrey’s opinion is unchanged. He noted that the Fed has so far refused to share any data about FedNow usage.

Alan Kaplinsky, Senior Counsel and former practice group leader for 25 years of the Consumer Financial Services Group, hosted the podcast show.

This summer, the CFPB issued its long-awaited proposed rule amending the mortgage servicing rules under Regulation X, with a focus on loss mitigation procedures, foreclosure protections, and language access. These changes were previewed by the CFPB as a means to streamline, and add flexibility to, the loss mitigation process, in light of the industry’s successful efforts during the COVID-19 pandemic. However, the CFPB’s proposal also significantly expands borrower protections during the loss mitigation process, creates extensive new operational challenges for servicers, and leaves many concerning questions based on the proposed language.

The mortgage servicing industry responded by submitting numerous comment letters, appropriately voicing a range of concerns with the proposed changes. We now await further action from the CFPB.

On this episode, Ballard Spahr lawyers discuss the regulatory and litigation impacts of the proposed rule, including:

1.         Detailed analysis of the proposed changes

2.         Potential approaches to loss mitigation, under the revised scheme

3.         Practical impacts on loss mitigation and foreclosure from an operational, cost, and liability standpoint

4.         Specific pain points under the proposed language, and topics requiring clarification, refinement, or pushback

5.         Language access requirements, and the impact from an operational, cost, and liability standpoint

6.         Implications of the rulemaking in a post-Chevron world

Rich Andreano, a Partner and Leader of Ballard Spahr’s Mortgage Banking group, moderates today’s episode, and he is joined by Reid Herlihy and Matt Morr, Partners in the Group.

Our podcast listeners are very familiar with federal fair lending and anti-discrimination laws that apply in the consumer lending area: the Equal Credit Opportunity Act (ECOA) and Fair Housing Act (FHA). Those statutes prohibit discriminating against certain protected classes of consumer credit applicants. For example, the ECOA makes it unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction, on the basis of race, color, religion, national origin, sex, marital status, or age (provided the applicant has the capacity to contract); the applicant's use of a public assistance program to receive all or part of their income; or the applicant's previous good-faith exercise of any right under the Consumer Credit Protection Act. The FHA prohibits discrimination concerning the sale, rental, or financing of housing based on race, religion, national origin, sex, disability, pregnancy or having children. The FTC sometimes relies on the “unfairness” prong of its UDAP (Unfair or Deceptive Acts and Practices) authority to bring other types of discrimination claims against companies subject to the FTC’s jurisdiction. The CFPB has tried to use the unfairness prong of its UDAAP (Unfair, Deceptive, or Abusive Acts or Practices) authority in a similar manner with respect to companies and banks subject to its jurisdiction. A Federal District Court has invalidated the portion of the CFPB’s UDAAP Exam Manual provision upon which such authority was previously predicated and the case is now being considered by the Fifth Circuit.

Our focus during this podcast show is not on these Federal anti-discrimination statutes, but rather on the fact that an increasing number of states have either enacted or are considering enacting legislation requiring financial institutions to provide persons (both existing customers and prospective customers) who are not ordinarily protected by the federal anti-discrimination statutes with fair access to financial services. The first broad fair access requirements appeared in a Florida statute enacted in 2023, which generally prohibits financial institutions from denying or canceling services to a person or otherwise discriminating against a person in making available services on the basis of enumerated factors, commonly including factors such as political opinions, or any other factor that is not quantitative, impartial, and risk-based.

Because this topic is very controversial, I invited individuals who support and oppose these new types of state statutes: Brian Knight, Senior Research Fellow at Mercatus Center of George Mason University, Professor Peter Conti-Brown of the Wharton School of the University of Pennsylvania, and Peter Hardy who co-leads our Anti-Money Laundering (AML) team at Ballard Spahr. (Brain was previously a guest on our May 23, 2024 podcast which focused on the related topic of Operation Chokepoint.) Brian is generally supportive of these state fair access laws. Professor Conti-Brown and Peter Hardy generally oppose these types of laws.

We cover the following sub-topics, among others:

1.              Why were these laws enacted?

2.              What financial institutions are subject to these laws? Do they cover only depository institutions or do they also cover non-banks? Do they cover only consumer transactions or do they cover business transactions as well? Do they cover out-of-state financial institutions doing business with residents of the states that have enacted these statutes? Are there exemptions based on small size?

3.              Since banks are not public utilities, and have shareholders and employees to whom they owe duties, why should they be forced to do business with people or companies who generate fossil fuel or who manufacture or sell firearms, to take just two examples of industries protected by these statutes?

4.              What are the private and public remedies for violating these statutes?

5.              Does the National Bank Act, the Home Owners’ Loan Act and the Federal Credit Union Act preempt these state laws?

6.              Do these laws run afoul of AML laws as the Treasury suggests?

Brian believes that these state statutes don’t force any financial institution to do business with a particular person or company. The statutes simply say that you must give a good reason for a declination. A good reason would be one based on risk to the institution such as a lack of experience in evaluating the company’s business. Another good reason would be that the company is engaged in an unlawful business. A bad reason for a declination would be that the bank doesn’t like the political or cultural positions of the company.

Peter Conti-Brown believes that banks should be able to decide with whom they desire to do business as long as they don’t violate existing federal laws that prohibit discrimination, like ECOA and the FHA. Peter expresses skepticism that there was or is a need for these statutes. The “bottom line” is that the state statutes are bad public policy. Peter also believes that these state statutes are preempted by the National Bank Act.

Peter Hardy believes that these state statutes throw a monkey wrench into banks’ efforts to comply with AML requirements and the Bank Secrecy Act. He explains how these statutes could help bad actors evade the BSA.

We have previously blogged about these statutes.

Alan Kaplinsky, Senior Counsel and former chair for 25 years of the Consumer Financial Services Group, hosts the discussion.

Today’s podcast, which repurposes a recent webinar, is the conclusion of a two-part examination of the CFPB’s use of a proposed interpretive rule, rather than a legislative rule, to expand regulatory requirements for earned wage access (EWA) products. Part One, which was released last week, focused on the CFPB’s use of an interpretive rule to expand regulatory requirements for buy-now, pay-later (BNPL) products.

We open with a discussion of EWA products, briefly describing and distinguishing direct-to-consumer EWAs and employer-based EWAS. We review some of the consumer-friendly features that are common to EWAs, including that there is no interest charged and they are typically non-recourse, and discuss expedited funding fees and tips, neither of which is required to access EWAs. We also provide an overview of how some states have attempted to regulate (or specifically not regulate) EWAs.

We then transition into a discussion of the CFPB’s history with EWA products, including the Bureau’s advisory opinion in 2020 that took a markedly different approach to EWAs, essentially taking the position that a certain subset of EWAs fell outside of the definition of “credit” under the Truth in Lending Act (TILA) and Regulation Z. The CFPB’s proposed interpretive rule, on the other hand, states that EWAs are “credit” and that expedited funding fees and optional tips, in most circumstances, are part of the finance charge that must be disclosed under TILA and Regulation Z. We explore the Bureau’s reasoning in support of these conclusions and some of the compliance difficulties that the proposed interpretive rule would create were it to go into effect as written. Since this recording took place, the CFPB has posted over 148,000 comment letters that it has received on the proposed interpretive rule, many of which are from consumers who use EWAs to access a portion of their earned wages prior to their scheduled payday and are concerned that the proposed interpretive rule could limit or jeopardize their access to EWAs. The high number of responses demonstrates the level of interest that the CFPB’s proposed interpretive rule has generated.

We conclude with thoughts about vulnerabilities with both the proposed interpretive rule for EWAs and the interpretive rule for BNPLs that we described in Part One of this podcast, as well as how these rules could potentially be challenged. One notable development that has occurred since our recording is that the Financial Technology Association has filed a complaint asking a D.C. federal court to strike down the interpretive rule for BNPLs because of the alleged violations of the Administrative Procedure Act that we discuss in this episode.

Alan Kaplinsky, former Practice Leader and Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates today’s episode, and is joined by John Culhane and Michael Guerrero, Partners in the Group, and John Kimble, Of Counsel in the Group.

Today’s podcast, which repurposes a recent webinar, is the first in a two-part examination of the CFPB’s use of an interpretive rule, rather than a legislative rule, to expand regulatory requirements for buy-now, pay-later (BNPL) products. Part Two, which will be available next week, will focus on the CFPB’s use of a proposed interpretive rule to expand regulatory requirements for earned wage access (EWA) products.

We open with an overview of what interpretive rules are and how they differ procedurally and substantively from legislative rules. The intended use of interpretive rules is to explain the meaning of an existing provision of law, while legislative rules, which require a more complicated and time-consuming procedure, including a notice and comment period under the Administrative Procedures Act, are intended to be used to expand or implement a provision of law. We also discuss why the CFPB chose to use an interpretive rule and why they decided to include a request for comments when that is not required for interpretive rules.

We then discuss BNPL products, including how they work and some of the features that have made them popular with consumers and merchants. We point out that the interpretive rule seems to represent a change in the views of the CFPB with regard to BNPL. After providing an overview of the CFPB’s history with the product, including a report issued by the Bureau back in 2022, we delve into the details of the CFPB’s interpretive rule. We discuss how the CFPB seems to be expanding the definition of a “credit card” to include what the Bureau calls a “digital user account,” which is how consumers access their BNPL information.

We conclude with thoughts about the implications of the CFPB’s interpretive rule and some of the difficulties that BNPL providers will have complying with the interpretive rule. This includes a discussion of the timing of billing statements and written notice requirements for billing error disputes and merchant disputes.

Alan Kaplinsky, former Practice Leader and Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates today’s episode, and is joined by John Culhane, Michael Guerrero, and Joseph Schuster, Partners in the Group. The webinar was recorded before the CFPB issued an FAQ, which purports to answer a number of open questions raised by the BNPL interpretive rule. We recommend that you review the FAQ after listening to this podcast.

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.

In today’s podcast, which repurposes a recent webinar, we examine the impact, if any, of a landmark opinion rendered by Judge Daniel Domenico of the Federal District Court for the District of Colorado in a case challenging recently enacted Colorado legislation on interstate loans made from outside Colorado to Colorado residents. We also address the effects this decision and the outcome of this litigation may have on interstate rate exportation by state-chartered banks across the country.

We open with a brief history of the interest rate exportation authority of national and state-chartered banks, and theories developed by opponents to attack those exportation powers. Next, we turn to a discussion of the Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDMCA), the federal legislation adopted to create competitive equality between state-chartered banks and national banks by giving state banks the ability to export the interest rates and late fees allowed by the laws of the state where the bank is located, notwithstanding interest rate and late fee limitations imposed by the borrower’s state. We then focus on the “opt-out rights” conferred on states under Section 525 of DIDMCA, and states that have attempted to exercise (or broaden) this right, including Colorado’s recent adoption of an opt-out statute.

We then delve into the details of the current court challenge to the Colorado opt-out statute, including a close examination of the statute itself, the state’s enforcement position, and the complaint filed by the plaintiff trade associations seeking to strike down the statute. We review the briefs filed and oral arguments made, including amicus briefs filed by the FDIC, supporting the state, and by the American Bankers Association and Consumer Bankers Association, supporting the plaintiffs (the latter of which was submitted on behalf of these amici by Ballard Spahr, LLP). We point out that the position taken by the FDIC in its amicus brief is the exact opposite of the position taken by the FDIC in 1991 in the Greenwood Trust Company v. Commonwealth of Massachusetts case in the 1st Circuit Court of Appeals regarding a Massachusetts opt-out statute. In that case, the FDIC agreed with Greenwood, a Delaware state-chartered bank, that the Massachusetts opt-out statute had no effect on the power of a state-chartered, FDIC-insured bank like Greenwood to charge Massachusetts credit card holders the “interest” permitted by Delaware law. The FDIC never acknowledged or explained this flip-flop in its amicus brief filed or during oral argument in the Colorado statute.

We proceed with an in-depth discussion of the thorough and thoughtful opinion issued by Judge Domenico granting the plaintiffs’ motion for a preliminary injunction preventing Colorado from enforcing its opt-out statute against their members not located in Colorado who are making loans to Colorado residents from outside Colorado, pending the outcome of the litigation, holding that the plaintiffs are substantially likely to succeed on the merits. This order is currently on appeal in the Tenth Circuit and is in the process of being briefed.

We then conclude with thoughts about the potential effect of the Colorado litigation on Iowa’s opt-out statute, in place since 1980, a survey of opt-out legislation pending in other states, and how the Colorado litigation might affect the future of opt-out laws in these and other states.

Alan Kaplinsky, former Practice Leader and Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, moderates today’s episode, and is joined by Burt Rublin, Joseph Schuster, and Ron Vaske, Partners in the Group, and Kristen Larson, Of Counsel in the Group.

On July 25, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, and the Office of the Comptroller of the Currency (collectively, the agencies) issued a “Joint Statement on Banks’ Arrangements with Third Parties to Deliver Bank Deposit Products and Services” to “note potential risks related to arrangements between banks and third parties to deliver bank deposit products and services to end users”. On the same day, the agencies issued a “Request for Information on Bank-Fintech Arrangements Involving Banking Products and Services Distributed to Consumers and Businesses” (the RFI)

The RFI “solicits input on the nature of bank-fintech arrangements, effective risk management practices regarding bank-fintech arrangements, and the implications of such arrangements, including whether enhancements to existing supervisory guidance may be helpful in addressing risks associated with these arrangements.” The comment period for this RFI has been extended through October 30, 2024.

In today’s podcast episode, hosted by Alan Kaplinsky, former practice leader and current Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, and featuring Ballard Spahr Partners John Culhane, Jr. and Ronald Vaske, we explore the significance of these agency actions, what they may portend for banks and their non-bank partners, and the agencies’ likely next steps and future areas of scrutiny. We also discuss tactics banks may want to consider in response to these actions and in preparation for potential future developments.

Topics addressed in this wide-ranging episode include the scope and coverage of the RFI; which banks and other entities are likely to provide information in response, and why; and the type of input that would be most valuable for banks to provide to the agencies. We review past agency pronouncements, enforcement, and other activity in connection with bank – service provider arrangements. We list and discuss in detail those risks to banks arising in connection with third-party relationships that cause regulators the greatest concerns.

We further provide some practical thoughts as to approaches banks may wish to consider now if they are contemplating a new fintech relationship, as well as ways to shore up practices and procedures in connection with existing third-party arrangements. We then conclude with some thoughts about how fintechs and other bank service providers should react to these agency initiatives

On June 28, in Loper Bright v. Raimondo, et al., the Supreme Court overturned the Chevron deference doctrine, a long-standing tenet of administrative law established in 1984 in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. This doctrine directed courts to defer to a government agency’s interpretation of ambiguous statutory language as long as the interpretation was reasonable. However, legal scholars now express widely divergent views as to the scope and likely effects of Loper Bright’s overruling of the Chevron doctrine on the future course of regulatory agency interpretive and enforcement authority.

In this two-part episode, which repurposes a recent webinar, a panel of experts delves into the Loper Bright decision, and its underpinnings, rationale, and likely fallout. Our podcast features moderator Alan Kaplinsky, Senior Counsel and former practice leader of Ballard Spahr’s Consumer Financial Services Group; Ballard Spahr Partners Richard Andreano, Jr. and John Culhane, Jr.; and special guests Craig Green, Charles Klein Professor of Law and Government at Temple University Beasley School of Law, and Kent Barnett, recently appointed Dean of the Moritz College of Law at The Ohio State University.

Part II opens with an in-depth discussion of the major questions doctrine (which bars agencies from resolving questions of great economic and political significance without clear statutory authority), how it has evolved, and its interaction with Chevron deference. Our experts offer predictions as to the likely role of the major questions doctrine in post-Chevron jurisprudence, and touch on the non-delegation doctrine (which prevents Congress from delegating legislative power). We also refer to the effects of another recent Supreme Court decision, Corner Post, Inc. v Board of Governors of the Federal Reserve System, which expands the time during which entities new to an industry may challenge longstanding agency rules.

We then consider the practical effects of the Loper Bright and Corner Post decisions on pending and future litigation. Partners Richard Andreano and John Culhane discuss concrete examples of cases currently progressing through the courts that already are evidencing the effects of Loper Bright, and ways in which arguments now are being articulated or might be articulated in litigation challenging a number of regulatory rules and interpretations in the absence of Chevron deference.

We proceed to explore other significant topics including the validity of prior decisions of the Supreme Court and lower courts that were based exclusively on the Chevron doctrine. Our panel then opines on whether Loper Bright, both in its entirety and as to certain of its specific constituent elements, is “good” or “bad” for the consumer financial services industry and for regulated entities in general.

In conclusion, Mr. Andreano cites concerns about how courts may apply alternative deference guidance that remains in place (including Skidmore deference, discussed in Part I of this podcast), and Mr. Culhane expresses hope that the outcome in Loper Bright might move agencies to engage in more thorough, thoughtful, and precise analysis in the rulemaking process.