Season 2 | Episode 50 A Discussion of Alternative Payments

In this podcast, we examine the features of different forms of alternative payments, factors driving consumer demand, contractual and other issues in business transactions involving such payments, including the role of gateways and payment aggregators.

Season 2 | Episode 49 – HUD’s Proposed Changes to its Fair Housing Act Disparate Impact Rule

Our podcast looks at the proposed changes to HUD’s rule for establishing liability under the FHA for discriminatory practices based on disparate impact even without discriminatory intent. We discuss the proposal’s history, five-part burden-shifting framework, available defenses (looking closely at those for models used to assess credit risk), and HUD’s likely next steps.

Season 2 | Episode 48 – Do we need a National Financial Technology Commission?

In this podcast, we are joined by Tom Vartanian, who leads the Financial Regulation & Technology Institute of George Mason University Antonin Scalia Law School, to discuss his proposal for the President and Congress to establish a National Financial Technology Commission. The issues we examine include the security and other risks financial institutions face from new technologies such as artificial intelligence, the Commission’s role in protecting the nation’s economic infrastructure, and how regulators’ use of technology can result in a better regulatory scheme.

Season 2 | Episode 47 – Targeted Marketing and Fair Lending Risk

In this podcast, we examine the fair lending risk to financial services providers that use targeted marketing. After reviewing what targeted marketing is, the forms it can take, and current litigation, we discuss the potential fair lending claims and the options available to providers to reduce the fair lending risk created by the use of third-party targeted marketing platforms.

Season 2 | Episode 46 – A Look at the California Consumer Privacy Act Proposed Regulations

In this podcast, we discuss the key aspects of the recently-proposed regulations to implement the CCPA, identify issues clarified by the proposal or left unresolved, compliance challenges raised by CCPA requirements for financial incentives and consumer requests received by large businesses, next steps (including the likely timeline for final regulations and enforcement), and activity in other states to adopt similar privacy laws.

Season 2 | Episode 45 – The Battle Over the CFPB's Constitutionality Moves to the U.S. Supreme Court: What It Means for You

SCOTUS has agreed to hear the Seila Law case to decide if the CFPB’s structure violates the U.S. Constitution because the President cannot remove the Director at will. In this podcast, Professor Kent Barnett, University of Georgia School of Law, joins us for a discussion of the current appellate opinions on this issue, the key SCOTUS opinions on the President’s removal authority, the arguments for and against the CFPB’s constitutionality, and the potential remedies for a violation.

Season 2 | Episode 44 – Using Machine Learning and Artificial Intelligence in Debt Collection

In this podcast, we are joined by Scott Ferris, CEO of Attunely, a provider of machine learning (ML) and artificial intelligence (AI) technology to the debt collection industry. We look at how changes in consumer behavior have impacted collections, technology’s role in collections, state law’s/GDPR’s impact on ML/AI and compliance strategies, how ML/AI can improve profitability, and perceived impediments to adopting ML/AI.

Season 2 | Episode 43 – Website accessibility: What Are the Risks and How to Address Them?

In this podcast, we discuss the obligation of businesses to make websites accessible to persons with disabilities under federal and state law; enforcement, private litigation and other risks of non-compliance; strategies used by advocacy groups and plaintiffs’ firms to assert claims; litigation trends, including the targeting of mobile apps and video/audio website content; and the use of privileged reviews and other best practices to reduce the risk of litigation in an increasingly litigious climate or limit exposure when defending a lawsuit.

Season 2 | Episode 42 – The CFPB’s Final Innovation Policies: What You Need to Know

In this podcast, Paul Watkins, Director of the CFPB’s Office of Innovation, joins us to discuss the CFPB’s final trial disclosures, no-action letter, and FinTech sandbox policies. Topics covered include the elements of each policy and the protection from liability available, the role of pre-application discussions between the CFPB and applicants, and the CFPB’s plans to engage in outreach to other federal and state regulators to maximize the value of approvals.

Season 2 | Episode 41 – An Update on Consumer Arbitration in Financial Services Contracts

In this podcast, we look at the current state of consumer arbitration law, discuss recent CA state and federal court decisions involving the enforceability of arbitration agreements with respect to requests for public injunctive relief, whether similar issues may arise in other states, the prospects for SCOTUS review, and the need to revisit arbitration agreements in light of those decisions, and review the status of federal legislative activity to restrict arbitration.

Season 2 | Episode 40 – A discussion of the CCPA for Financial Institutions

The CCPA takes effect on Jan. 1, 2020. In this podcast, we take a close look at the CCPA’s coverage and unique features, the scope of its “GLBA exemption,” third party issues, private actions and enforcement remedies, federal privacy law initiatives and the CCPA’s influence on state initiatives, and steps for companies facing CCPA compliance.

Season 2 | Episode 39 – The Community Reinvestment Act: Its Usefulness and Approaches to Reform

In this podcast, Diego Zuluaga, a Cato Institute policy analyst, joins us for a discussion of the CRA's history, its effectiveness in increasing access to credit and addressing discrimination, the role of community groups, calls to expand CRA coverage to credit unions and fintech lenders, how regulators are approaching CRA reform, and creating a system of tradeable obligations to simplify compliance.

Season 2 | Episode 38 – Implementing the Proposed CFPB Debt Collection Rule: Operational and Legal Issues

In this podcast, we team with Bridgeforce, a leading financial services consultancy, to discuss how companies can prepare their operations should the CFPB’s proposed debt collection rule become final. We look at the operational approaches available to companies in implementing the rule and legal considerations raised by each, the need for an assessment of assets before selecting an approach and the role of legal advice, and the role of future planning.

Season 2 | Episode 37 – Credit Invisibles: Who Are They and How Can Lenders Better Serve Them By Using Artificial Intelligence?

In this podcast, we look at the opportunities for lenders to provide access to credit to "credit invisible" consumers through the use of AI underwriting tools. We discuss these consumers' characteristics, how AI can increase approval rates but not credit risk, risks of alternative data, the need for explainability of AI, and real world results from using AI.

Season 2 | Episode 36 – Limited Content Messages under the CFPB’s Proposed Debt Collection Rule

In this podcast, we examine the compliance challenges arising from the provision of the CFPB’s proposed debt collection rule that allows collectors to leave a limited content phone message that would not violate the FDCPA’s third party disclosure prohibition. In addition to the requirement for a collector to leave the name of a natural person for the consumer to contact, we discuss the proposal’s prohibition on leaving the collector’s name, the CFPB’s rationale for the prohibition, potential state law concerns, and implications for first party collections.

Season 2 | Episode 35 – A Look at the FDIC’s First Consumer Compliance Supervisory Highlights

In this podcast, we discuss the FDIC’s observations about its “most salient” consumer compliance exam findings during 2018, including issues relating to Overdraft Programs, Real Estate Settlement Procedures Act (“RESPA”) Section 8, Regulation E, “Skip-A-Payment” or Deferment Loan Programs, and Lines of Credit.

Season 2 | Episode 34 – Electronic Disclosures and Communications under CFPB’s Proposed Debt Collection Rule

In this podcast, we discuss in detail certain provisions of the CFPB's Proposed Debt Collection Rule that create the possibility of a collector providing disclosures to consumers by means of electronic communications. Among other things, we detail the scope, requirements and limitations related to such electronic communications, review the logistical challenges the Rule poses as to electronic communications and compare and contrast these requirements to those of the ESIGN Act.

Season 2 | Episode 33 – A Discussion of the CFPB's Authority to Prohibit Abusive Acts or Practices

In this podcast, Alan Kaplinsky, who leads our Consumer Financial Services Group, interviews Todd Zywicki, a Professor of Law at George Mason University and leading consumer finance expert, on the CFPB’s authority to prohibit abusive conduct. After reviewing how the CFPB has used its authority, Todd shares his views on what abusive means, how it differs from unfair or deceptive, what products or services can involve abusiveness, how the CFPB can best provide clarity, and the CFPB’s likely next steps in the wake of its symposium (at which Todd was a panelist).

Season 2 | Episode 32 – A Look at how the CFPB's Proposed Debt Collection Rules Could Impact the Student Loan Industry

In this podcast, we look at the unique challenges that the CFPB's proposal may create for student loans. Our discussion focuses on how the proposal's call attempt limits, time/place limits for calls, texts, and e-mails, and special restrictions that apply to the aggregation of multiple student loans could impact communications with borrowers.

Season 2 | Episode 31 – What the CFPB's Proposed Debt Collection Rules Mean for the Mortgage Industry

In this podcast, we focus on provisions of the proposed rules that are of particular interest to the mortgage industry. In addition to the special consumer definition, we look at the alternative content allowed in the validation notice and issues raised by the need to include the amount of the debt. We also highlight areas where additional CFPB guidance would be helpful.

Season 2 | Episode 30 – A Close Look at the Call Frequency Limits in the CFPB’s Proposed Debt Collection Rules

In this podcast, we review what's in the proposed limits and examine the challenges they present for collectors, including the retroactive lookback for call attempts and successful contacts, the treatment of ringless calls, calls placed at the consumer's request, and the impact of call blocking technology. We also discuss the implications for first party collections and what collectors should be doing now to prepare to comply with the limits.

Season 2 | Episode 29 – A Discussion of Credit Reporting Issues Arising From the CFPB's Proposed Debt Collection Rules

In this podcast, we discuss the CFPB's proposed requirement for a collector to communicate with a debtor before furnishing information about the debt to a consumer reporting agency and proposed prohibition on selling or transferring a debt that is the subject of an identity theft report. We also look at the challenges collectors would face in complying with both the proposed FDCPA dispute rules and the current FCRA dispute process and the proposal's implications for the credit reporting system.

Season 2 | Episode 28 –A Close Look at the Changes to the FDCPA Validation Notice in the CFPB's Proposed Debt Collection Rules

In this podcast, we look at the changes to the FDCPA validation notice that the CFPB's proposed debt collection rules would make and discuss compliance challenges and other issues raised by the changes, including the requirement to itemize the debt, the dispute "tear-off" form, the option to provide Spanish and other foreign language translations of the notice, and electronic delivery of the notice.

Season 2 | Episode 27 – A Close Look at Utah’s New Regulatory Sandbox Program

Utah is now taking applications for its new regulatory sandbox program. In this podcast, we interview Rep. Marc Roberts, the sponsor of the bill that created the program, and Bryan Cowley, the Utah regulator who will oversee the program’s administration. Topics discussed include the bill’s history and objectives, implementation plans, reciprocity with other sandbox programs, the physical location requirement, confidentiality of applicant information, and liability exposure.

Season 2 | Episode 26 – How the CFPB’s proposed debt collection rules would impact creditors and first party collections

While directed at third party debt collectors, the CFPB’s proposed rules, if adopted, would significantly impact creditors and their first party collection partners. In this podcast, we look at the actions the proposal would require creditors to take before assigning a debt for collection, what the proposal would mean for third party oversight, and how the CFPB or state regulators might apply the proposal directly to first party collections.

Season 2 | Episode 25 – A Close Look at the CFPB Payday Loan Rule's Payment Provisions

In this week’s podcast, we take a close look at the CFPB payday loan rule’s payment provisions that could become effective as early as this August if the current court stay is lifted. After reviewing the limits and disclosures mandated by the payment provisions, we explain why the provisions are deeply flawed and discuss the court stay’s status and impact on lenders’ implementation of the provisions.

Season 2 | Episode 24 – Using Artificial Intelligence for Consumer Finance: A Look at the Opportunities and Challenges

In this podcast, we discuss the opportunities and challenges created by the use of AI models in consumer financial services, including the benefits of explainable AI and its implications for the consumer financial services industry, especially for applications where understanding the model’s reasons for returning a score or decision are necessary.

Season 2 | Episode 23 – OCC Fintech Charter: Assessing the Opposition and Looking Ahead to Possible Next Steps for the OCC

Opposition from state regulators to the OCC’s decision to issue special purpose national bank (or fintech) charters continues to be vigorous. In this podcast, we review the charter’s potential benefits, assess the legal arguments made by its opponents, discuss the federal court decision refusing to dismiss the NY banking regulator’s lawsuit, why we think it’s incorrect, and possible next steps for the OCC, and look at fintech charter alternatives.

Season 2 | Episode 22 – A close look at the changes to the CFPB’s civil investigative demand policies

In this podcast, we discuss the recently-announced changes to the CFPB’s CID policies, how those changes reflect recent court decisions, and the practical implications of the changes (including their utility to companies in responding to CIDs).

Season 2 | Episode 21 – The Restatement of the Law, Consumer Contracts: A response to the criticism

In this podcast, Alan Kaplinsky, who leads our Consumer Financial Services Group, interviews Steven Weise, a member of ALI’s Council, about the criticism of the Restatement from businesses and consumer advocates. In addition to explaining the Restatement’s background and rationale, Steven responds to criticism of the research methodology and specific substantive provisions.

Season 2 | Episode 20 – The Restatement of the Law, Consumer Contracts: What is it and why you should be concerned about it

In this podcast, Alan Kaplinsky, who leads our Consumer Financial Services Group, interviews Professor Adam Levitin of Georgetown University Law School about why businesses and consumer advocates are both opposed to the proposed Restatement, which would change the law in ways that will harm businesses and consumers.

Season 2 | Episode 19 – A Consumer Arbitration Update

In this podcast, we discuss significant developments since Congress’ Oct. 2017 override of the CFPB’s arbitration rule, including proposed federal legislation, litigation developments, and how arbitration agreements can be revised to address risks created by those developments. We also review best practices for drafting such agreements and hear from Alan Kaplinsky about his experience as a witness at the Senate’s Apr. 2019 arbitration hearing and current political dynamics surrounding arbitration.

Season 2 | Episode 18 – An Update on Cannabis in the Financial Services Industry

In this podcast, we review recent developments dealing with the provision of financial services to the cannabis industry, including state approaches to banking services, the status of hemp legalization, the interplay between federal and state cannabis law, FinCEN guidance on BSA expectations, the status of federal regulatory and enforcement activity, and the status and prospects of proposed federal legislation.

Season 2 | Episode 17 - A Look at the FTC’s Proposed GLBA Rules

We explore the affect of the FTC’s proposed amendments to the GLBA Privacy Rule, which affects only motor vehicle dealers, and the broader GLBA Safeguards Rule, which applies to all non-bank financial institutions under FTC jurisdiction. The FTC has shifted from a flexible approach to data security to a more prescriptive one that mandates specific elements for information security programs. We will discuss the potential impact of this shift and opportunities for companies to influence the final rules.

Season 2 | Episode 16 - A Close Look at the CFPB’s Mortgage Loan Servicing Exam Findings in Winter 2018 Supervisory Highlights

Mortgage servicing continues to be a CFPB supervisory focus. In this podcast, we take a close look at the CFPB’s findings involving late fees, PMI cancellation requests, handling of loss mitigation applications, and notices to successors of deceased reverse mortgage borrowers regarding foreclosure avoidance, share observations on what the findings indicate about the CPPB’s approach to these issues, and discuss the findings’ compliance implications.

Season 2 | Episode 15 - A Close Look at the CFPB’s Auto Loan Servicing Exam Findings in Winter 2018 Supervisory Highlights

In this podcast, we take a close look at the CFPB’s findings on ancillary product refunds by auto loan servicers in the event of total loss or repossession, consider such findings’ implications for early payoffs and a servicer’s duty to request refunds, and share observations on how the CPPB’s use of its UDAAP authority has changed under post-Cordray leadership and what that means for a company’s approach to compliance.

Season 2 | Episode 14 - A Lobbyist’s Perspective on the Consumers First Act and Other Legislative Initiatives Impacting Consumer Financial Services

In this podcast, a member of Ballard Spahr’s federal lobbying and government relations team discusses what’s in the Consumers First Act (H.R. 1500, intended to undo Mick Mulvaney’s CFPB actions), the impact of current House dynamics on the bill’s or specific provisions’ prospects for passage, the topics of other financial services bills likely to have bipartisan support, and how CFPB Director Kraninger’s approach is likely to compare to Mr. Mulvaney’s.

Season 2 | Episode 13 - A Discussion of Co-Brand Credit Card Rewards and Loyalty Programs

In this podcast, we look at co-brand credit card rewards and loyalty programs from the differing perspectives of banks and their merchant partners, including why these programs are important and the issues and challenges they present. We also discuss marketplace trends, assess the risks created by the current regulatory environment, and offer steps for reducing such risks.

Season 2 | Episode 12 - The CFPB’s Final Prepaid Card Rule: Top Ten Compliance Considerations

The CFPB’s final prepaid rule takes effect on April 1. In this podcast, we look at the top ten issues companies should be considering to confirm compliance and discuss how the CFPB and federal banking regulators are likely to approach compliance using their supervisory and enforcement authorities.

Season 2 | Episode 11 – Diversity and Inclusion: An Update for Financial Institutions

In this podcast, we review the four key focus areas of the 2015 diversity and inclusion standards adopted by the Offices of Minority and Women Inclusion at the CFPB and other federal financial regulators, identify issues regulated entities should consider in addressing those areas and deciding whether to conduct D&I self-assessments, and discuss the evolving Congressional and regulatory D&I landscape since 2015, including recent letters sent to regulated entities regarding D&I efforts and self-assessments.

Season 2 | Episode 10 - The CFPB’s Innovation Proposals: Criticisms and Next Steps

The CFPB has issued proposals to revise its disclosure sandbox and no action letter policy and create a product sandbox. In this podcast, we review what the CFPB has proposed, assess the criticism advanced by state attorneys general and consumer advocates, and discuss the CFPB’s likely next steps and how the proposals' critics are apt to respond.

Season 2 | Episode 9 - A discussion of the CFPB’s annual report on servicemember complaints

Servicemembers are the subject of heightened legal protections. In this podcast, we look at the products that received the most complaints from servicemembers, the specific issues complained about, and the litigation and regulatory risks to consumer financial service providers the report could generate.

Season 2 | Episode 8 - A Discussion of the CFPB’s Proposed Changes to its Payday Loan Rule

In this podcast, we look at the CFPB’s rationale for its proposal to rescind the ability to repay provisions of its payday loan rule, what the payment provisions still set to take effect on Aug. 19 require and the implementation challenges, how industry input could improve the final outcome, the potential impact of pending litigation challenging the rule, and possible legal challenges to the proposals.

Season 2 | Episode 7 - A Discussion of the CFPB’s TRID Rule Guidance

Last month, after more than three years of urging by the industry to provide written guidance, the CFPB issued four FAQs on its TILA/RESPA Integrated Disclosure (TRID) Rule. In this podcast, we take a close look at the FAQs and what they tell creditors, particularly its guidance on when a corrected Closing Disclosure and new three-day waiting period are required (with a caution for those selling to investors) and the safe harbor for using a model form.

Season 2 | Episode 6 - A Primer on the FCC’s Disconnected Phone Number Database

The FCC’s creation of a database of disconnected phone numbers is expected to significantly reduce the potential TCPA exposure companies face for unknowingly calling a customer at a reassigned phone number. In this podcast, we review the relevant TCPA legal background, explain how the database will operate, review the requirements for obtaining a safe harbor from TCPA liability, and discuss proactive steps companies can take in advance of the database launch.

Season 2 | Episode 5 - Nevada’s New Democratic Attorney General: What To Expect

The “Blue Wave” hit Nevada last November as well, resulting in the election of Democrats to serve as Governor and Attorney General. More aggressive enforcement and increased legislative activity are expected. In this podcast, we discuss the new AG’s likely enforcement priorities, the federal and state law enforcement tools available to him, and state legislation of interest to financial institutions that is likely to be considered in the next session.

Season 2 | Episode 4 - Key Issues for Credit Card Co-Branding Relationships

In this week’s podcast, we discuss key issues that need to be considered by banks and their merchant partners when entering into credit card co-branding relationships, including defining the scope of exclusivity, the terms of second-look programs, the role of the payment networks, and the handling of consumer data ownership and usage rights.

Season 2 | Episode 3 - Expectations for Colorado’s new Democratic Attorney General, Phil Weiser

Having declared the Consumer Financial Protection Bureau eviscerated by President Trump, Colorado’s newly elected Democratic Attorney General, Phil Weiser, is expected to take an active approach to consumer protection. In this week’s podcast, Ballard Spahr Partner Matt Morr, based in the firm’s Denver office, discusses Mr. Weiser’s background, key appointees, and likely areas of focus.

Season 2 | Episode 2 - The Eighth Amendment’s Excessive Fines Prohibition: Implications for Consumer Financial Services Providers

In November, the U.S. Supreme Court heard arguments in a case over whether the Eighth Amendment’s excessive-fines prohibition applies to states under the 14th Amendment. In this week’s podcast, we review the litigation and lower court decisions and discuss how the case could provide companies with a constitutional basis for challenging fines and penalties sought by state attorneys general and regulators as they ramp up their supervision and enforcement to fill the void created by a less aggressive CFPB.

Season 2 | Episode 1 - A conversation with Paul Watkins, Director of the CFPB’s Office of Innovation

In this week’s podcast, we speak with Paul Watkins, Director of the CFPB’s Office of Innovation, about the Bureau’s recent proposals to revise its policies on trial disclosure programs and no-action letters and to create a new “BCFP Product Sandbox.” Highlights include discussions of key differences between the revised and current policies, the background and objectives of the BCFP Product Sandbox, confidentiality concerns, and the scope of protections from liability..

Season 1 Episodes

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This podcast is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.