Federal Court Rules CFPB Cannot Use UDAAP Authority to Regulate Discrimination: A Close Look at the Decision and its Implications

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. We also review the industry lawsuit challenging the changes, including the reasons asserted for invalidating the changes and the relief sought. We then look at the court decision vacating the changes, including the court’s application of the “major questions” doctrine and the relief granted. We conclude with a discussion of the CFPB’s possible next steps and the decision’s implications for pending CFPB rulemakings and other CFPB actions. Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the conversation, joined by Richard Andreano, a partner in the Group and Practice Leader of the firm’s Mortgage Banking Group.