Mortgage Banking Update - August 24, 2023
In This Issue:
- More Than 200 Ballard Spahr Attorneys Recognized in Best Lawyers 2024
- CFPB Files Reply Brief With SCOTUS in Case Challenging Constitutionality of CFPB’s Funding
- SCOTUS Denies Motion of Republican State Attorneys General to Participate in Oral Argument in Case Challenging Constitutionality of CFPB’s Funding
- Townstone Mortgage Files Brief With Seventh Circuit in CFPB Appeal From District Court Ruling That ECOA Only Applies to Applicants
- August 17 Podcast Episode: An Even Deeper Dive Into the CFPB’s Final Dodd-Frank Section 1071 Rule on Small Business Data Collection
- CFPB Releases Update for Small Business Lending Data Filing Instructions Guide
- Further Thoughts on the Lawsuit Filed in Kentucky Challenging the CFPB’s Final Small Business Lending Rule
- Credit Union Intervenors Join Motion for Preliminary Injunction Filed by Community Bank Intervenors in Texas Lawsuit Challenging CFPB Final Small Business Lending Rule
- Texas Federal Court Grants Motion of Community Bank and Community Bank Trade Groups for Leave to Intervene in Lawsuit Challenging CFPB Final Small Business Lending Rule; Motion for Preliminary Injunction Filed by Community Bank and Community Bank Trade Groups
- Extending Relief Granted in Lawsuit Challenging CFPB Small Business Lending Rule to All Covered Entities Will Require More Intervenors
- Trade Groups Urge CFPB to Extend Texas Federal Court’s Stay of Small Business Lending Rule Compliance Dates to All FDIC-Insured Banks
- Why the Texas Federal Court Should Have Gone Further in Preliminarily Enjoining the CFPB From Implementing and Enforcing Its Small Business Lending Rule
- August 3 Podcast Episode: The Challenges of Using the Current Law to Address “Dark Patterns,” a Conversation With Special Guest Gregory Dickinson, Assistant Professor, St. Thomas University, Benjamin L. Crump College of Law
- Nebraska Enacts New Licensing Requirement for Small-Dollar Loans
- NLRB Returns to a More Stringent Framework for Workplace Rules
- New York Federal Court Stays Lawsuit Filed Jointly by CFPB and New York Attorney General Pending SCOTUS Decision in CFSA
- Republican and Democratic Attorneys General Spar Over Implications for Private Employers of SCOTUS Ruling on Affirmative Action; Ballard Spahr to Hold Webinar on SCOTUS Ruling on Sept. 13
- Ninth Circuit Rules Text Messages Not “Prerecorded Voice Messages” Under TCPA
- Bipartisan Group of Senators Re-Introduce Digital Asset Money Laundering Act
- American Bar Association Revises Model Rule of Professional Conduct to Combat Money Laundering
- Courts Split on Whether Cryptocurrency Is a Security
- Did You Know?
- Looking Ahead
The recently released 2024 edition of The Best Lawyers in America recognizes 219 Ballard Spahr attorneys in offices across the country, including many recognized in multiple practice areas, for a total of 351 total listings in the annual guide.
The 150 Ballard Spahr attorneys listed in the “Best Lawyers” category received 249 total recognitions, including 11 attorneys named 2024 “Lawyers of the Year” for their practices and locations. Only one attorney receives the designation in each location for a given practice area.
In addition, 69 Ballard Spahr attorneys are listed in the “Ones to Watch” category for attorneys in private practice less than 10 years. Together, they garnered 102 total recognitions.
The Best Lawyers methodology uses annual surveys asking lawyers across the nation to evaluate their peers based on legal skill, professionalism, and integrity. From the results of those extensive surveys, the publication chooses the top attorneys in the most high-profile practices. Lawyers of the Year received the highest overall peer feedback for a specific practice area and geographic region.
Click here to read the full press release.
The CFPB has filed its reply brief with the U.S. Supreme Court in Community Financial Services Association of America Ltd. v. CFPB. In the case, CFSA has asked the Supreme Court to affirm the Fifth Circuit panel’s decision which held that the CFPB’s funding mechanism violates the Appropriations Clause of the U.S. Constitution. As a remedy for the constitutional violation, the panel vacated the CFPB’s payday lending rule which CFSA challenged in its lawsuit. The CFPB filed its brief defending the constitutionality of its funding with the Supreme Court on May 8, 2023 and CFSA filed its brief asking the Court to affirm the Fifth Circuit panel decision on July 3. The Supreme Court has scheduled oral argument on October 3, 2023.
Numerous amicus briefs have been filed in support of each of the parties. A group of 27 Republican State Attorney Generals who filed an amicus brief in support of CFSA also filed a motion with the Supreme Court asking for leave to participate in oral argument as amicus curiae supporting CFSA. CFSA has filed a response in opposition to the AGs’ motion in which it asserts that “undivided argument would be most appropriate and beneficial for this Court.” The Supreme Court has not yet ruled on the motion.
In its reply brief, the CFPB makes the following principal arguments:
- The Appropriations Clause does not require Congress to specify the precise dollar amount to be spent. Beginning with the Founders and continuing into the 1900s, Congress has made standing uncapped appropriations for agencies that include the Office of the Comptroller of the Currency (OCC) and Federal Reserve Board (FRB). Congress satisfied any dollar amount requirement by specifying a cap on the CFPB’s funding. The CFPB does not have unilateral authority to self-determine the amount of its funding as charged by CFSA. Rather the only discretion that the CFPB has is to request less than the congressionally-determined amount.
- Congress did not impermissibly cede its appropriations power to the CFPB by not setting a temporal limit on the CFPB’s appropriation as charged by CFSA. The Appropriations Clause does not restrict Congress’s authority to choose the duration of the “Appropriations” it makes “by Law.” Congress could repeal or revise the CFPB’s funding mechanism at any time—something it has repeatedly done with other standing appropriations.
- The CFPB’s funding mechanism is far from novel. The agencies from which the CFPB inherited most of its authorities (the OCC, FRB, and FDIC) have standing sources of uncapped funding, larger budgets, and significant regulatory and enforcement authority. Both the FRB and CFPB are funded from the “earnings of the Federal Reserve System.” While CFSA argues that the Federal Reserve System is sui generis due to its hybrid private-public status. CFSA’s argument conflates the FRB with the Federal Reserve System. The FRB is an agency exercising executive powers that include regulating banks and financial holding companies. In contrast, the Federal Reserve System encompasses the public-private Federal Reserve Banks. The Federal Reserve System’s hybrid nature does not change the FRB’s status as an executive agency with a funding mechanism that largely mirrors the CFPB’s.
- With respect to CFSA’s attempt to distinguish the CFPB on the ground that unlike the CFPB, the OCC, FRB, and FDIC are funded through fees or assessments and thus subject to market constraints, CFSA’s market-constraint theory is conceptually flawed and descriptively inaccurate. The purpose of the Appropriations Clause is to assure that public funds will be spent as decided by Congress and that purpose is fulfilled when Congress passes a law funding an agency and the agency spends the funding in accordance with that law. Nothing in the Clause’s text or history suggests any concern with whether an agency’s funding is sufficiently constrained by the private parties regulated by the agency. Also, the CFSA’s market-constraint theory relies almost exclusively on the practice of bank “charter shopping,” which affects only the OCC and not the FRB or FDIC. The theory also does not account for the FRB which funds its expenses through assessments that are not levied on private parties but on Federal Reserve Banks who do not have the option to exit the market in response to FRB regulations they disfavor.
- Vacating the payday lending rule would not be a proper remedy. In addition to CFSA having failed to show that an Appropriations Clause violation could not be cured by severing portions of the funding provision, CFSA has not shown that it is entitled to retrospective relief. While a valid appropriation is a precondition to every expenditure of federal funds, it does not follow that an executive action carried out using unappropriated funds is itself unconstitutional or must necessarily be treated as a nullity. Any lack of properly appropriated funds did not deprive the CFPB Director of the power to promulgate the rule.
- A decision invalidating the CFPB’s past actions would be deeply destabilizing. Even if, as suggested by CFSA, defenses such as laches and statutes of limitation would prevail in some cases, the widespread uncertainty about the validity of the CFPB’s past actions would be profoundly disruptive.
The U.S. Supreme Court has denied the motion filed by the 27 Republican State Attorneys General who filed an amicus brief in support of Community Financial Services Association in CFSA v. CFPB asking for leave to participate in oral argument. No explanation for the denial was given by the Court. While the Supreme Court almost routinely grants requests by the Solicitor General to participate in oral argument as amicus, it grants requests from State Attorneys General to argue as amici with much less frequency.
In the case, CFSA has asked the Supreme Court to affirm the Fifth Circuit panel’s decision which held that the CFPB’s funding mechanism violates the Appropriations Clause of the U.S. Constitution. CFSA filed a response in opposition to the AGs’ motion in which it asserted that “undivided argument would be most appropriate and beneficial for this Court.” Oral argument is scheduled for October 3, 2023.
Townstone Mortgage (Townstone) has filed its brief in the CFPB’s appeal to the U.S. Court of Appeals for the Seventh Circuit from the district court’s decision in the CFPB’s enforcement action against Townstone. In the decision, the district court ruled that a redlining claim may not be brought under the Equal Credit Opportunity Act (ECOA) because the statute only applies to applicants.
The CFPB’s lawsuit against Townstone represented the Bureau’s first ever redlining complaint against a nonbank mortgage company. In its complaint, the CFPB alleged violations of the ECOA and Consumer Financial Protection Act (CFPA). The U.S. District Court for the Northern District of Illinois granted Townstone’s motion to dismiss the CFPB’s complaint on the grounds that the ECOA applies to applicants and not to prospective applicants. It also dismissed the CFPA claim because it was dependent on the ECOA claim.
ECOA Section 1691(a) makes it unlawful for a creditor to discriminate “against any applicant, with respect to any aspect of a credit transaction” on a prohibited basis. While Section 1691(a) refers only to “applicants,” Regulation B provides that a “creditor shall not make any oral or written statement, in advertising or otherwise, to applicants or prospective applicants that would discourage on a prohibited basis a reasonable person from making or pursuing an application.” (emphasis added.) The CFPB argued that the court, applying the Chevron framework, should defer to its interpretation of the ECOA in Regulation B.
Since the U.S. Supreme Court’s 1984 decision in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., the “Chevron framework” has typically been invoked by courts when reviewing a federal agency’s interpretation of a statute. Under the Chevron framework, a court must use a two-step analysis to determine if it must defer to an agency’s interpretation. In step one, the court looks at whether the statute directly addresses the precise question before the court. If the statute is ambiguous or silent, the court will proceed to step two and determine whether the agency’s interpretation is reasonable. If it determines the interpretation is reasonable, the court will ordinarily defer to the agency’s interpretation.
The district court, applying step one of the Chevron framework, concluded that the “plain text of the ECOA . . . clearly and unambiguously prohibits discrimination against applicants, which the ECOA clearly and unambiguously defines as a person who applies to a creditor for credit.” As a result, the court concluded that it “need not move on to the second step of the Chevron analysis because it is clear that the ECOA does not apply to prospective applicants.” (Internal quotation marks and citations removed.)
The CFPB filed its brief in the Seventh Circuit in which it argues that the Seventh Circuit should reverse the district court’s decision.
In its brief filed in the Seventh Circuit, Townstone refers to the Regulation B provision prohibiting discouragement of “prospective applicants” on a prohibited basis as the “anti-discouragement rule.” Townstone makes the following key arguments in support of affirming the district court’s decision:
- Under step one of the Chevron framework, the ECOA unambiguously bars discrimination only against “applicants” with respect to any aspect of a “credit transaction.” The ECOA definition of “applicant” is limited to an identifiable person who requests credit from a creditor. Adding “prospective” to “applicant,” as the CFPB does in its anti-discouragement rule, obliterates this limitation. Also, the anti-discouragement rule cannot be reconciled with the unambiguous meaning of “discrimination” and “credit transaction” in the ECOA. Section 1691(a) prohibits discrimination “with respect to any aspect of a credit transaction.” As defined by Regulation B, a “credit transaction” includes “every aspect of an applicant’s dealings with a creditor regarding an application for credit or an existing extension of credit.” Thus, a “credit transaction” requires two or more identifiable individuals acting in concert with the goal of obtaining credit from the other. While the ECOA does not define “discrimination,” Regulation B defines “discriminate against an applicant” as “treat[ing] an applicant less favorably than other applicants.” Thus, to discriminate on a prohibited basis, a creditor must treat an applicant differently than other applicants because of the applicant’s race or other protected characteristics. “Discourage” is a far broader term that is much less susceptible to an objective definition than “discrimination.” Discrimination under section 1691(a) turns on the actions of the creditor and is fact-based and objective. Discouragement, under the rule, turns entirely on the listener’s subjective reaction.
- To be entitled to reach step two of the Chevron framework, an agency must show either ambiguity in the statute or an explicit gap that Congress left for the agency to fill. The ECOA provision that directs the CFPB to enact regulations that “are necessary or proper to effectuate the purposes of [the ECOA] [and] prevent circumvention or evasion thereof” is a general rulemaking provision and not a gap-filling provision because it did not direct the CFPB to elaborate on a particular statutory term or provision. If a statement that an agency can issue rules to prevent “evasion or circumvention” can justify the anti-discouragement rule, it could be used to justify virtually any change to the ECOA.
- Congress did not authorize the anti-discouragement rule by amending the ECOA in 1991 to add a referral provision that states specified agencies shall “refer [a] matter to the Attorney General whenever the agency has reason to believe that 1 or more creditors has engaged in a pattern or practice of discouraging or denying applications for credit in violation of section 1691(a) of this title.” This provision should be read to require referrals to the Attorney General only when an agency believes that creditors are engaging in a pattern or practice of turning away individuals who are requesting credit because of their race or other prohibited basis. This is the best reading of the referral provision because it is based on the actual language used by Congress and does not require the court to conclude that Congress intended one word in the provision to effect a sea-change in the ECOA. While the phrase “discouraging or denying applications” in this provision, standing alone, could be interpreted to include more than “discrimination” against applicants, including language that is broader than “discrimination” makes sense in a provision whose purpose is to ensure that agencies are referring matters, which might be pattern or practice violations, for investigation. However, such language does not stand alone in the referral provision and is limited by “in violation of section 1691(a),” and there is no indication that Congress intended to change the meaning of section 1691(a).
- Even if the court concludes Congress did not speak to the precise issue at hand, the anti-discouragement rule still fails under step two of the Chevron framework. It is not a permissible interpretation of the ECOA because it fundamentally changes the ECOA’s core liability provision, section 1691(a), under which a creditor is liable only by taking a specific action—discrimination—against a known individual—an applicant—with whom the creditor knows it is dealing in a credit transaction. The anti-discouragement rule changes this dynamic entirely by imposing liability on creditors simply for making public statements that, based on the listener’s subjective reaction, would discourage them from seeking credit from anyone.
- If the court concludes that the anti-discouragement rule is valid, it should hold that the rule is unconstitutional because it violates the First and Fifth Amendments. It violates the First Amendment for reasons that include (1) it gives the CFPB unbridled discretion to decide who may speak and what they may say because violations of the anti-discouragement rule turn entirely on the subjective views of the listener, which is no standard at all, and (2) the CFPB is enforcing the anti-discouragement rule against Townstone because of its views. It is unconstitutionally vague and overboard in violation of the First and Fifth Amendments because a person of ordinary intelligence cannot know, in advance, what it prohibits.
The Supreme Court has agreed to hear a case next Term (Loper Bright Enterprises, et al. v. Raimondo) in which the petitioners are directly challenging the continued viability of the Chevron framework. There is considerable speculation that the Court’s conservative majority will curtail, if not overrule, Chevron. Accordingly, the Seventh Circuit might defer any ruling in Townstone pending the Supreme Court’s decision in Loper. (To listen to our recent podcast episode in which we discuss Loper, click here.)
At the ABA Section of Business Law Annual Meeting in Chicago on September 7, 2023, Alan Kaplinsky will be moderating a program titled, “U.S. Supreme Court to Revisit Chevron Deference: What the SCOTUS Decision Could Mean for CFPB, FTC, and Federal Banking Agency Regulations.”
The CFPB’s final rule implementing Section 1071 requires financial institutions to collect and report certain data in connection with credit applications made by small businesses, including women-, minority- or LGBTQI+-owned small businesses. In this episode, we respond to questions received from attendees of our April 2023 attendance-breaking webinar about the final rule. The issues our responses address include: what is a “covered transaction” and distinguishing business/consumer purpose transactions; determining the applicable compliance date, applying the “grace period,” and pre-compliance date data collection; which originations must be reported, which are excluded, who has reporting obligations in multiple party transactions such as indirect auto loans, and identifying who is a small business; reliance on broker-collected data and data collection when small business status is uncertain; complying with data segregation and “firewall” requirements; reporting issues for securities-backed loans; CFPB identification/treatment of underperforming originators; and data to be publicly disclosed and CFPB approach to data analysis. We also discuss the preliminary injunction issued by a Texas federal court staying the rule’s compliance dates for the plaintiffs only and how other entities subject to the rule have reacted.
Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, leads the discussion joined by John Culhane and Richard Andreano, partners in the Group, and Loran Kilson and Kaley Schafer, associates in the Group.
A transcript of the recording will be available soon.
To listen to the two-part episode of our podcast that replays the audio recording of our April 2023 webinar titled “The CFPB’s Final Section 1071 Rule on Small Business Data Collection: What You Need to Know,” click here and here.
The CFPB has released an update to the Filing Instructions Guide for Small Business Lending Data. The Guide is intended to serve as a set of resources for entities who will be required to file small business lending data with the CFPB in 2025 covering the period from October 1, 2024 to December 31, 2024. The CFPB’s final rule on small business lending data (Rule) requires a financial institution to begin collecting data and otherwise complying with the final rule on October 1, 2024 if it originated at least 2,500 covered originations in both 2022 and 2023.
The updates include:
- Reordering certain demographic information codes to better correlate with Home Mortgage Disclosure Act data, per request from industry,
- Minor wording clarifications to the pricing information data point, and
- Minor administrative updates to the validation IDs.
The changes were also incorporated into the Small Business Lending Rule Data Points Chart.
More information about the updates to the Filing Instructions Guide can be found on the Small Business Lending Data Updates page on the CFPB’s website.
The Rule is the subject of ongoing litigation in federal district courts in Texas and Kentucky which we are following closely. On July 31, the Texas federal court entered an order that preliminarily enjoins the CFPB from implementing and enforcing the Rule “pending the Supreme Court’s reversal of [Community Financial Services Association of America Ltd. v. CFPB], a trial on the merits of this action, or until further order of this Court.” The order also stays the deadlines for compliance with the Rule’s requirements pending the Supreme Court’s decision in CFSA and extends the deadlines for compliance in the event of a reversal in CFSA. However, the relief granted by the court is limited to the plaintiffs in the lawsuit, Texas Bankers Association (TBA), the American Bankers Association (ABA), and Rio Bank, McAllen, Texas, and members of TBA or ABA.
The Texas federal court has allowed trade associations representing community banks and credit unions to intervene in the lawsuit. The associations have asked the court to extend the preliminary relief on a nationwide basis or, in the alternative, extend the relief to the intervenors and their members. In the separate lawsuit filed in a Kentucky federal court by a Kentucky banking trade group and several Kentucky banks, the plaintiffs also intend to seek preliminary injunctive relief from the Rule.
We recently reported that the Kentucky Bankers Association and several Kentucky banks filed a lawsuit against the CFPB in the U.S. District Court for the Eastern District of Kentucky alleging that the CFPB’s final small business lending rule (Rule) is invalid because, among other reasons, the CFPB is unconstitutionally funded. We expressed surprise that the plaintiffs chose that path instead of seeking leave to intervene in the lawsuit challenging the Rule that was filed by the American Bankers Association (ABA), Texas Bankers Association (TBA) and Rio Grande Bank and is pending in the U.S. District Court for the Northern District of Texas.
In the Texas lawsuit, the court issued an order preliminarily enjoining the CFPB from implementing and enforcing the Rule pending the outcome in the Supreme Court of Community Financial Services Association of America Ltd. v. CFPB. At the CFPB’s urging, the court unfortunately denied the nationwide relief requested by the plaintiffs and only granted relief to the plaintiffs and their members. As a result, trade associations for community banks nationally and in Texas filed a motion to intervene in the Texas case which was soon followed by a motion to intervene filed by a national and regional trade association for credit unions. In our view, the intervention motions were the right strategy for entities subject to the Rule but not covered by the preliminary relief granted by the Texas federal court because the Texas federal court had already concluded that the plaintiffs had satisfied the requirements for a preliminary injunction and sits in the Fifth Circuit which has already ruled that the CFPB is unconstitutionally funded.
Given the favorable setting provided by the Texas federal court, I questioned why the Kentucky plaintiffs decided to take an entirely different path by filing a new lawsuit in a Kentucky federal court that sits in the Sixth Circuit which has not previously addressed the constitutional issue and in front of a judge who is unlikely to have experience with the Rule or the constitutional issue. In discussing this question with my colleagues, some thought that perhaps the Kentucky plaintiffs would not have been able to establish venue in the Texas federal court because they lacked Texas contacts. However, my colleague Burt Rublin found clear authority on which the Kentucky plaintiffs could have relied if they had sought to intervene in the Texas federal court. That authority provides that because venue has already been established in the Texas federal court by the ABA, TBA, and Rio Grande Bank, proposed intervenors such as the Kentucky plaintiffs would not be required to separately establish venue in the Texas federal court. In East Tex. Baptist Univ. v. Sebelius, No. 12-cv-3009, 2013 U.S. Dist. LEXIS 124347, 2013 WL 4678016 (S.D. Tex. Aug. 30, 2013), the Texas federal district court allowed a Pennsylvania graduate theological seminary to intervene in an action against U.S. Dept. of Health and Human Services and HHS Secretary Sebelius even though the intervenor “has no evident connection to the Southern District of Texas.” In rejecting the government’s venue objection, the court stated that “[b]ecause venue in the Southern District of Texas is proper for the existing plaintiffs, it is also proper for [the seminary].”
Thus, my question regarding why the Kentucky plaintiffs chose to file a new lawsuit in Kentucky rather than seek to intervene in the Texas lawsuit remains unanswered. Hopefully, other banks, credit unions, and non-banks that are not covered by the preliminary relief granted by the Texas federal court will file motions seeking leave to intervene in the Texas lawsuit rather than file separate lawsuits elsewhere. The situation is already complicated enough. Filing separate lawsuits will only create further, unnecessary complications.
Rally Credit Union, the Credit Union National Association, and Cornerstone Credit Union League (Credit Union Intervenors) have filed a joinder to the motion for preliminary injunction filed by Texas First Bank, Independent Bankers Association of Texas, and Independent Community Bankers of America (Community Bank Intervenors) in the Texas lawsuit challenging the CFPB’s final small business lending rule (Rule).
After the court granted the motions for leave to intervene filed by the Credit Union Intervenors and the Community Bank Intervenors, the Community Bank Intervenors filed a motion for preliminary injunction. In their motion, the Community Bank Intervenors have asked the court to enter a preliminary injunction prohibiting the CFPB from enforcing the Rule nationwide or, alternatively, as to the Community Bank Intervenors and their members. In their joinder to the preliminary injunction motion, the Credit Union Intervenors state that “[t]o avoid duplicating efforts and unnecessarily compounding these proceedings, Credit Union Intervenors join, in full, Community Bank Intervenors’ motion for preliminary injunction.”
The CFPB will now have an opportunity to respond to the preliminary injunction motion and the court will need to decide if the two sets of intervenors have standing and are entitled to the relief they seek. The Certificates of Conference or Conferral attached to the Community Bank Intervenors’ preliminary injunction motion and the Credit Union Intervenors’ Joinder state that counsel for the CFPB has advised that the CFPB opposes the preliminary injunction motion. We will be interested to see whether, in its opposition to the preliminary injunction motion, the CFPB again argues, as it did in opposing the preliminary injunction granted to plaintiffs and their members (i.e. Texas Bankers Association, the American Bankers Association, and Rio Bank), that any relief granted should be limited to the Credit Union Intervenors, the Community Bank Intervenors, and their members. Hopefully, regardless of the CFPB’s position, the court will now be willing to grant nationwide preliminary relief as requested by the Credit Union Intervenors and the Community Bank Intervenors.
Texas Federal Court Grants Motion of Community Bank and Community Bank Trade Groups for Leave to Intervene in Lawsuit Challenging CFPB Final Small Business Lending Rule; Motion for Preliminary Injunction Filed by Community Bank and Community Bank Trade Groups
Two new developments occurred yesterday in the Texas lawsuit challenging the CFPB’s final small business lending rule (Rule).
First, the Texas federal district court granted the unopposed emergency motion of Texas First Bank (Texas First), Independent Bankers Association of Texas (IBAT), and Independent Community Bankers of America (ICBA) seeking leave to intervene in the lawsuit. Texas First is a Texas community bank, IBAT is a trade association that represents Texas community banks, and ICBA is a national trade association that represents community banks. The court also granted the movants leave to file the Complaint in Intervention attached to their motion.
Second, as expected, Texas First, IBAT, and ICBA filed a motion for preliminary injunction. The Texas federal court, in ruling on the preliminary injunction filed by the Texas Bankers Association (TBA), the American Bankers Association (ABA), and Rio Bank, McAllen, Texas, declined to grant the nationwide relief requested by the plaintiffs and instead granted preliminary relief that is limited to Rio Bank, ABA, and TBA and members of ABA or TBA. In their preliminary injunction motion, Texas First, IBAT, and ICBA “respectfully suggest that even if nationwide relief was not appropriate previously, it is now.” Among the arguments they make in favor of nationwide relief is that the current limited relief “only has the effect of disproportionately favoring larger financial institutions over smaller ones based on their trade association.” They argue further that “even were the injunction extended to Plaintiff-Intervenors and their members, it would still arbitrarily exclude those financial institutions that are not members of the organizations currently in the case.” They also assert:
Before the recent intervention motions, it could have been argued that Plaintiffs did not represent the whole of the regulated industry. But the recent interventions make clear that…all of the regulated industry believes that the rule was invalidly promulgated. Between Plaintiffs and Intervenors, nearly all of the covered institutions in the country are now represented in this case. This Court need not, and should not, require every such institution to intervene or bring suit to conclude…that a nationwide injunction is therefore appropriate. (emphasis included.)
Accordingly, Texas First, IBAT, and ICBA ask the court to enter a preliminary injunction prohibiting the CFPB from enforcing the Rule nationwide or, alternatively, as to Texas First, IBAT, ICBA, and members of IBAT or ICBA.
The Texas federal court has already granted the Unopposed Emergency Motion for Leave to Intervene filed by Rally Credit Union (Rally), a Texas-chartered credit union, the Credit Union National Association (CUNA), a national credit union trade association, and Cornerstone Credit Union League (CCUL), a regional credit union trade association. We expect Rally, CUNA and CCUL to now also file a Motion for Preliminary Injunction to obtain relief for Rally, CUNA, and CCUL and members of CUNA or CCUL.
The CFPB will have an opportunity to respond to the preliminary injunction motions and the court will need to decide if the intervenors have standing and are entitled to the relief they seek. In responding to the preliminary injunction motion filed by Texas First, IBAT, and ICBA, the CFPB will also have an opportunity to revisit its decision to oppose nationwide preliminary injunctive relief.
Last week, we published a blog post urging the CFPB to agree to extend the relief granted by the Texas federal district court in the lawsuit challenging the CFPB’s final small business lending rule (Rule) to all entities covered by the Rule. The plaintiffs in the case are the Texas Bankers Association (TBA), the American Bankers Association (ABA), and Rio Bank, McAllen, Texas. In addition to preliminarily enjoining the CFPB from implementing and enforcing the Rule pending the Supreme Court’s reversal of [Community Financial Services Association of America Ltd. v. CFPB], a trial on the merits of this action, or until further order of this Court,” the court stayed the deadlines for compliance with the Rule’s requirements pending the Supreme Court’s decision in CFSA and extended the deadlines for compliance in the event of a reversal in CFSA. However, instead of the nationwide relief requested by the plaintiffs, the court limited the relief it granted to Rio Bank, ABA, and TBA and members of ABA or TBA.
Since publishing the blog post, I recalled that in 2017, the U.S. Court of Appeals for the D.C. Circuit, in Clean Air Council v. Pruitt, addressed the issue of whether a federal agency can unilaterally stay the effective date of a regulation it has issued. In the case, the D.C. Circuit ruled that the Environmental Protection Agency (EPA) lacked authority to stay the compliance date of an EPA rule concerning methane and other greenhouse gas emissions and vacated the stay. According to the D.C. Circuit, by suspending the rule’s compliance date, the EPA’s stay was essentially an order delaying the rule’s effective date and therefore “tantamount to amending or revoking a rule.” As a result, the D.C. Circuit concluded that the EPA could only take such action by complying with the Administrative Procedure Act (APA), including its notice and comment requirements.
Also since publishing the blog post, Texas First Bank (Texas First), Independent Bankers Association of Texas (IBAT), and Independent Community Bankers of America (ICBA) (collectively, Proposed Intervenors) filed an unopposed motion seeking leave from the Texas federal district court to intervene in the lawsuit challenging the Rule. Texas First is a Texas community bank, IBAT is a trade association that represents Texas community banks, and ICBA is a national trade association that represents community banks. We assume the Proposed Intervenors, if granted leave to file the proposed Complaint in Intervention attached to their motion for leave to intervene, will file a motion to obtain the same preliminary relief granted to the plaintiffs. The CFPB will have an opportunity to respond to that motion and the court will need to decide if the Proposed Intervenors have standing and are entitled to the relief they seek.
Based on the D.C. Circuit’s Clean Air Council decision, it appears that Director Chopra, even if so inclined, would be unable to unilaterally extend the court-ordered stay of the compliance date to all entities covered by the Rule. Instead, it would be necessary for Director Chopra to propose a regulation that stays the Rule and that would be subject to notice and comment pursuant to the APA. In the absence of such a proposal by the CFPB, the relief granted by the Texas federal district court can only be extended by court order. Unless the court is willing to reconsider its order (either pursuant to a motion filed by one of the parties or sua sponte), entities not covered by the order will need to follow the approach of the Proposed Intervenors and also seek leave to intervene in the lawsuit and, if granted leave, move to obtain the same preliminary relief granted to the plaintiffs.
We continue to believe that the relief granted by the court should be available to all banks, credit unions, and non-banks covered by the Rule. Accordingly, we hope that motions to intervene will be filed by other trade associations whose members include those entities.
Yesterday, we published a blog post in which I urged the CFPB to agree to extend the relief granted by the Texas federal district court in the lawsuit challenging the CFPB’s final small business lending rule (Rule) to all entities covered by the Rule.
The court issued an order that preliminarily enjoins the CFPB from implementing and enforcing the Rule “pending the Supreme Court’s reversal of [Community Financial Services Association of America Ltd. v. CFPB], a trial on the merits of this action, or until further order of this Court.” However, the court denied the plaintiffs’ request for nationwide injunctive relief and granted injunctive relief only to the plaintiffs and their members. The plaintiffs are the Texas Bankers Association (TBA), the American Bankers Association (ABA), and Rio Bank, McAllen, Texas. Thus, in addition to Rio Bank, the injunctive relief granted by the court extends only to the TBA, ABA, and members of TBA or ABA. The court also stayed the deadlines for compliance with the Rule’s requirements pending the Supreme Court’s decision in CFSA and extended the deadlines for compliance in the event of a reversal in CFSA but also limited that relief to the plaintiffs and their members.
In my blog post, I discussed the various problems created by the limited relief, such as disparate treatment of the many non-banks, credit unions, and small community banks that are unlikely to be members of the ABA or TBA. I commented that all of these problems could easily be avoided by the CFPB doing the right thing — namely extending the relief to everyone covered by the Rule, regardless of whether they are members of the ABA or TBA.
I learned today that, unbeknownst to me when I wrote my blog post, the ABA and TBA have sent a letter to Director Chopra in which they urge the CFPB to extend the stay granted by the court to all FDIC-insured banks. They state that “[w]hile most FDIC-insured banks fall within our membership, there are some that do not.” The associations do not ask the CFPB to extend the relief to non-banks or credit unions. Instead, they state: “[w]e recognize the Bureau’s desire to continue pressing forward with certain covered institutions and so are only asking for your consideration of extending the stay to the banking industry.” The trade groups comment that “[n]ot only would a stay from the Bureau streamline administration for the agency after the Supreme Court’s ruling in the Community Financial case, it could also address concerns of other potential banking plaintiffs who may consider bringing additional litigation under current circumstances.”
While we support the trade groups’ letter, we believe that the relief should also be available to credit unions and non-banks. I would hope that other trade associations whose members include these entities will also reach out to Director Chopra to urge the CFPB to extend the relief to include all entities covered by the Rule.
On Monday, the Texas federal district court hearing the lawsuit challenging the validity of the CFPB’s final rule implementing Section 1071 of the Dodd-Frank Act (Rule) issued an order that preliminarily enjoins the CFPB from implementing and enforcing the Rule “pending the Supreme Court’s reversal of [Community Financial Services Association of America Ltd. v. CFPB], a trial on the merits of this action, or until further order of this Court.” However, to the great disappointment of many observers including myself, the court denied the plaintiffs’ request for nationwide injunctive relief and granted injunctive relief only to the plaintiffs and their members. The plaintiffs are the Texas Bankers Association (TBA), the American Bankers Association (ABA), and Rio Bank, McAllen, Texas. Thus, in addition to Rio Bank, the relief granted by the court extends only to the TBA, ABA, and members of TBA or ABA.
In limiting the injunctive relief, the court accepted the CFPB’s alternative argument that if the court were to grant the preliminary injunctive relief requested by the plaintiffs, such relief should be limited to the plaintiffs and their members. As the plaintiffs’ argued in their reply brief, the CFPB’s argument failed to address the controlling precedent in the CFSA case. In that case, the Fifth Circuit panel vacated the CFPB’s payday lending rule once it determined that the CFPB is unconstitutionally funded and that the payday lending rule would not have been issued were it not for the unconstitutional funding. Given that the court found a substantial likelihood that the plaintiffs would prevail in asserting that the Rule is invalid because it was promulgated using the CFPB’s unconstitutional funding, it does not make sense for the court to have granted anything less than nationwide injunctive relief. As the plaintiffs asserted, an invalid rule would have no force of law anywhere.
The plaintiffs also argued that limiting the injunctive relief as argued by the CFPB would create the potential for unequal enforcement of the Rule. The court stayed the deadlines for compliance with the Rule’s requirements pending the Supreme Court’s decision in CFSA and extended the deadlines for compliance in the event of a reversal in CFSA but also limited that relief to the plaintiffs and their members. Thus, entities subject to the Rule but not covered by the preliminary injunction have no choice (except at their peril) other than to continue to spend significant sums preparing to comply with the Rule. Given that the court recognized as to Rio Bank that such expenditures constitute irreparable harm, the limited scope of the relief granted means entities not covered by the preliminary injunction order will suffer irreparable harm that could be avoided through an order that provides nationwide relief.
Hopefully, the CFPB will quickly recognize that, despite having argued for a limited injunction, the relief granted by the court is fraught with problems. Because of those problems, the CFPB should act without further court order to eliminate the disparate treatment that results from the court’s order and agree to extend to all other entities affected by the Rule the same relief that the court granted to the plaintiffs and members of the ABA or TBA. After all, why would the CFPB want to determine which banks are covered by the injunction and which are not? That would be an administrative headache. And since non-banks, credit unions, and small community banks are unlikely to be members of the ABA or TBA, treating non-members differently would run counter to Director Chopra’s mantra of maintaining a thriving competitive market and a level playing field.
The illogic of a limited injunction is further evidenced by the uncertainty of how it would even be applied. For example, does the court’s order cover banks that join the ABA or TBA after the injunction issued or does it only cover members as of the date of the injunction? Does it cover affiliate members of the ABA or TBA? How would the CFPB even determine who is a member of the ABA or TBA in light of the natural reluctance of those trade associations to disclose who their members are? I am sure that those associations will not release their membership lists to the CFPB. Why should a member, as a condition of being covered by the injunction, need to disclose to the CFPB, or anyone else, that it is a member of the ABA or TBA?
All of these problems could easily be avoided by the CFPB doing the right thing here — namely extending the relief to everyone covered by the Rule, regardless of whether they are members of the ABA or TBA.
August 3 Podcast Episode: The Challenges of Using the Current Law to Address “Dark Patterns,” a Conversation With Special Guest Gregory Dickinson, Assistant Professor, St. Thomas University, Benjamin L. Crump College of Law
After discussing what are “dark patterns” and the most common forms they can take, we consider whether and how “dark patterns” used to influence consumers’ online behavior differ from traditional scams directed at consumers involving the use of deception. We then discuss the federal and state statutes and common law claims currently being used to challenge the use of “dark patterns” as well as current legislative action to more directly target “dark patterns” and the challenges lawmakers face in crafting new legislation. We also assess the effectiveness of using private lawsuits rather than government enforcement to police the use of “dark patterns.” We conclude with practical steps companies should consider taking to avoid the risk of enforcement or private actions arising from claims that “dark patterns” are present in their user interface designs.
Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, hosts the conversation. To listen to the episode, click here.
Professor Dickinson is the author of an article titled “Privately Policing Dark Patterns,” to be published in the Georgia Law Review. The article is available here.
On August 16, 2023, from 12:00 p.m. to 1:00 p.m. ET, Ballard Spahr attorneys will hold a webinar, “Shining a Bright Light on Digital Dark Patterns.” For more information and to register, click here.
We recently discussed “dark patterns,” including what regulators consider to be “dark patterns” and why they are a focus of regulatory concern, in an episode of our Consumer Finance Monitor podcast for which our special guest was Andrew Nigrinis, PhD, the Managing Principal of Edgeworth Economics and a former CFPB enforcement economist. “Dark patterns “were also discussed in an episode of our Consumer Finance Monitor podcast for which our special guest was Malini Mithal, Associate Director, FTC Division Of Financial Practices. To listen to those episodes, click here and here.
Nebraska Enacts New Licensing Requirement for Small-Dollar Loans
Nebraska Governor, Jim Pillen, signed into law Legislative Bill 92 on June 6, 2023, which amended the Nebraska Installment Loan Act (the Act) effective June 7, 2023 (the Effective Date). As amended, the licensing requirement under the Act includes “any person that is not a financial institution who, at or after the time a loan [of $25,000 or less with rates exceeding the Nebraska general usury limit] is made by a financial institution, markets, owns in whole or in part, holds, acquires, services, or otherwise participates in such loan.” The term “financial institution” is broadly defined to include all federally insured depository institutions.
Accordingly, on and after the Effective Date, marketers, servicers, and purchasers of such loans or limited interests in such loans are required to hold a Nebraska Installment Loan License. The measure is aimed ensuring consumer protection, fair lending practices, and transparency in Nebraska’s loan industry, and is particularly aimed at further regulating the activities non-bank partners in bank partnerships.
Specifically, the amended Act requires the following entities to obtain an Installment Loan Company License:
- Marketers: Any individual or entity engaged in marketing or soliciting loan products , including companies involved in advertising, lead generation, or non-bank partners in bank partnerships referring loans to their bank partners.
- Servicers: Entities responsible for collecting loan payments, handling customer inquiries, and managing loan accounts. Importantly, the licensing process for servicer involves meeting specific criteria set by regulatory authorities, including financial stability and compliance with servicing standards.
- Purchasers of Bank Loans, Participation Interests, or Other Limited Interests Therein: Entities that purchase covered loans, participation interests, or other limited interests in such loans, including non-bank partners that purchase such loans or interests therein from their bank partners. Be advised that this differs from other state measures, such as New Mexico’s amended Small Loan Act, that are aimed at licensing persons that hold the “predominant economic interest” in covered loans.
All licensees, including the above-described entities, will be obligated to comply with state and federal laws and regulations governing the industry, including the Truth in Lending Act/Regulation Z, Fair Debt Collection Practice Act/Regulation F, and other relevant state and Federal consumer protection laws and regulations. Licensees will be subject to periodic reporting and auditing to ensure ongoing compliance with licensing requirements and regulatory standards.
Nebraska joins a growing number of states, including Connecticut and Minnesota, that are seeking to further regulate bank partnerships. Entities engaged in any business activities covered in Legislative Bill 92 are encouraged to promptly apply for this license and consult the bill’s full text to determine how such changes will affect their business operations.
NLRB Returns to a More Stringent Framework for Workplace Rules
On Wednesday, August 2, 2023, the National Labor Relations Board (“the Board”) continued its retreat from many of the decisions issued by its Trump-era iteration. In Stericycle, Inc, 372 NLRB No. 113 (2023), the Board abandoned its decision in Boeing Co., 365 NLRB No. 154 (2017), which had announced a new business-friendly test for workplace rules, in favor of a framework derived by the Obama Board from Lutheran Heritage Village-Livonia, 343 NLRB No. 646 (2004).
Work rules, such as those addressing employee use of social media, interactions with co-workers, confidentiality, and use of employer’s logos, may be challenged as unlawfully infringing on employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”). The 2017 Boeing framework balanced the nature and extent of a potential impact on those rights with the legitimate business justifications associated with the work rule. However, in Stericycle, Inc, the Board said that Boeing’s balancing test gives “too much weight to employer interests” by adopting overbroad work rules and “too little weight to the burden a work rule could impose on employees’ Section 7 rights.”
Instead, the Board modified the 2004 Lutheran Heritage standard, which primarily focused on NLRA protected rights, and clarified in the new standard how an employer’s interest is factored into the Board’s evaluation of the challenged rule.
Moving forward, the Board will interpret the work rule from the perspective of a “reasonable employee”– a layperson – and not a lawyer. If the employee could reasonably interpret the work rule to prohibit employees from engaging in protected activities, the work rule is presumptively unlawful. The employer may rebut the presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule.
The Board further opined that the new standard does not place an unreasonable burden on the employer, as employers are the drafters of their work rules, and should know what their employees’ rights are under the NLRA and factor that into the writing of their rules.
In his dissent, Member Marvin E. Kaplan argued that the majority’s opinion “fails to pay more than lip service to the required balancing of employees’ rights and employers’ legitimate interests,” because the new standard makes it “nearly impossible for employers to defend their rules in furtherance of legitimate employer interests” as it “inherently privileges employee rights” over the employers. (Emphasis in original).
How Stericycle is applied in practice, and how employee-friendly it turns out to be, of course, remains to be seen, but there is no question that its application will result in far more successful challenges to employer work rules than occurred under Boeing. Ballard Spahr regularly advises and reviews its clients’ workplace policies for compliance with not only the National Labor Relations Act, but with relevant state and federal laws.
New York Federal Court Stays Lawsuit Filed Jointly by CFPB and New York Attorney General Pending SCOTUS Decision in CFSA
In January 2023, the CFPB filed a lawsuit in a New York federal district court jointly with the New York Attorney General (NYAG) against an auto finance company alleging violations of the Consumer Financial Protection Act (CFPA) and New York law. The CFPB and NYAG both allege that the defendant violated the CFPA by engaging in deceptive and abusive acts or practices and substantial assisting CFPA violations by the defendant’s affiliated auto dealers. Only the NYAG alleges violations of New York law by the defendant. All of the claims are based on allegations that the terms of the financing provided by the defendant were predatory. The defendant filed a motion to dismiss the complaint in which it argued that the CFPB should be dismissed from the case because its funding mechanism is unconstitutional.
While the motion to dismiss was pending, the defendant filed a motion to stay the lawsuit pending the U.S. Supreme Court’s decision in Community Financial Services Association of America Ltd. v. CFPB. In the motion, the defendant argued that a stay would avoid unnecessary litigation concerning the constitutional issue. It also argued that continued litigation with the NYAG would create uncertainty as to whether, and how, discovery (among other aspects of the case) could be limited to claims asserted by the NYAG. The defendant also contended that proceeding with the lawsuit while CFSA is pending in the Supreme Court would lead to duplication and inefficiencies due to the substantial overlap between the CFPB’s and NYAG’s claims.
The CFPB and NYAG opposed the stay on the ground that the CFPB’s funding was not relevant to the NYAG’s ability to pursue all eight causes of action on its own. In addition, they disputed the defendant’s judicial efficiency concerns on the basis that the scope of the alleged CFPA violations were the same inside and outside of New York and that the parties could address any concerns about discovery specific to non-New York consumers without a stay.
The district court granted the stay sought by the defendant and ordered the parties to file a joint letter updating the court by the earlier of November 3, 2023 or one week after a major development in CFSA. The Supreme Court has scheduled oral argument in CFSA for October 3, 2023.
In granting the stay, the district court found that the factors to be considered by the court favored staying the lawsuit. More specifically, the court found:
- A stay would not unduly prejudice the CFPB or NYAG.
- The defendant’s interests are met by a stay because waiting for the Supreme Court’s decision in CFSA will clarify the legal issues and may help the defendant avoid unnecessary legal costs.
- A stay is in the interest of the court because if the court denied the stay and adjudicated the motion to dismiss, it would need to decide the constitutional challenge to the CFPB’s authority “to pass and enforce the laws directly implicated by the three federal claims in this case.” Since the Supreme Court’s decision “may dispose of at least some of Plaintiffs’ claims,” proceeding with discovery would not advance interests of judicial economy. Premature discovery would potentially be duplicative and costly because “Plaintiffs concede there is substantial factual and legal overlap among the New York and non-New York-specific causes of action, each of which alleges that Defendant engaged in the same core deceptive auto lending practices, employed throughout the United States, in violating consumer protection laws.” Even if the question before the Supreme Court does not bear on the NYAG’s ability to pursue its claims, a stay can still be warranted when it would serve the interest of the court and judicial efficiency.
- A stay is in the interest of persons not parties to the lawsuit and is in the public interest because considerations of judicial economy are relevant to the public interest. Any risk that a stay could impact consumers by creating a risk that evidence will become stale is mitigated by the parties’ obligation to preserve potentially relevant documents and the likelihood the stay will be of relatively short duration. Also, even though there is a public interest in the enforcement of consumer protection laws, the CFPB has not denied that the Supreme Court’s ruling could substantially impact its ability to proceed with the lawsuit.
Republican and Democratic Attorneys General Spar Over Implications for Private Employers of SCOTUS Ruling on Affirmative Action; Ballard Spahr to Hold Webinar on SCOTUS Ruling on Sept. 13
As expected, the U.S. Supreme Court’s ruling in the Students for Fair Admissions Inc.’s lawsuit against Harvard University and the University of North Carolina, which challenged the constitutionality of the universities’ race conscious admission policies, has quickly created a division along ideological lines as to what the ruling means for workplace diversity, equity, and inclusion (DEI) initiatives, including in the financial services industry.
On September 13, 2023, from 12:00 p.m. ET to 1:00 p.m. ET, Ballard Spahr attorneys will hold a webinar titled “How the U.S. Supreme Court’s Decision in College Admissions Could Impact Diversity, Equity & Inclusion Programs in Financial Institutions.” For more information and to register, click here.
Unlike college affirmative actions which are governed by Title VI of the 1964 Civil Rights Act, private workplace DEI programs are governed by Title VII of the Act as well as other federal and state employment anti-discrimination laws. Using protected characteristics, such as race, to make employment decisions is generally illegal under these laws.
On July 13, 2023, a group of 13 Republican state attorneys general sent a letter to the CEOs of Fortune 100 companies to “remind you of your obligations as an employer under federal and state law to refrain from discriminating on the basis of race, whether under the label of ‘diversity, equity, and inclusion’ or otherwise.” The Republican AGs assert that “racial discrimination in employment and contracting is all too common among Fortune 100 companies and other large businesses” and that discriminatory practices include “explicit racial quotas and preference in hiring, recruiting, retention, promotion, and advancement” as well as “race-based contracting practices, such as racial preferences and quotas in selecting suppliers.”
The AGs assert that the Supreme Court’s rationale for striking down the universities’ affirmative action programs under Title VI applies equally to Title VII and other laws restricting race-based discrimination in employment and contracting. They observe that “[c]ourts routinely interpret Title VI and Title VII in conjunction with each other, adopting the same principles and interpretations for both statutes.” They further observe that “State courts frequently look to Title VII to interpret their own prohibitions against race discrimination in employment practices.” The AGs conclude their letter by urging the CEOs “to immediately cease any unlawful race-based quotas or preferences your company has adopted for its employment and contracting practices” and by warning the CEOs that “if you choose not to do so, know that you will be held accountable—sooner rather than later—for your decision to continue treating people differently because of the color of their skin.
Reacting to the Republican AGs’ letter, a group of 21 Democratic state attorneys general, on July 19, sent a letter to the Fortune 100 CEOs “to reassure you that corporate efforts to recruit diverse workforces and create inclusive work environments are legal and reduce corporate risk for claims of discrimination.” Going further, the Democratic AGs call the Republican AGs’ letter “an attempt to intimidate the businesses and workers of America” and urge businesses “to double-down on diversity-focused programs because there is still much more work to be done.” The Democratic AGs stress that the SCOTUS decision “does not directly address or govern the behavior or the initiatives of private sector businesses.” They point out that Title VII, not Title VI, applies to private sector employers and assert that “it is irresponsible and misleading to suggest that [the SCOTUS decision] imposes additional prohibitions on the diversity, equity, and inclusion initiatives of private employers.”
The Democratic AGs note that following the SCOTUS decision, the Equal Employment Opportunity Commission issued a statement clarifying that it remains lawful for employers to implement DEI and accessibility programs. The Democratic AGs state that private employers “should continue to be aware of the demographics of their workforce and their contracting partners, and make efforts to recruit, attract , and retain diverse workforces consistent with the strictures of Title VII and [42 U.S.C.] Section 1981.” The AGs indicate that “[c]ompanies remain free to remedy historic inequities” by: (a) adjusting recruiting practices, (b) developing better promotion and retention strategies, and/or (c) furthering leadership development and accountability.”
Most recently, Rep. Maxine Waters (D-Calif.), who is the Ranking Member of the House Financial Services Committee, joined the public discourse on the implications of the SCOTUS decision on the financial services industry. Rep. Waters was the chief architect of Section 342 of the Dodd-Frank Wall Street Reform Act, which established the Offices of Women and Inclusion within financial regulatory agencies and was designed to create fair and inclusive work environments within the financial services industry. In her August 7, 2023 letter to the CEOs of the Fortune 100 financial services companies, Rep. Waters discusses the continued need for workplace diversity initiatives and expresses her hope that the Democratic AGs’ letter “reassures you that efforts to achieve a diverse workforce and inclusive workforce environment is not only legal, but also avoids discriminating against diverse groups who have long been excluded from top companies.”
Beyond the public exchange of letters, we anticipate increased litigation that ultimately may impact the legality of certain DEI initiatives that have become best practices under Section 342 and beyond. Ballard Spahr is tracking these issues closely. We recently released an episode of Ballard Spahr’s Business Better Podcast in which we discuss the SCOTUS decision. Titled “Is DEI at Risk? Considerations on the U.S. Supreme Court Ruling Against Affirmative Action Programs,” the episode looks at the decision’s potential implications across multiple settings, from university admissions policies, to workplace and other DEI programs. To listen to the episode, click here.
Ninth Circuit Rules Text Messages Not “Prerecorded Voice Messages” Under TCPA
A unanimous panel of the U.S. Court of Appeals for the Ninth Circuit has ruled that text messages are not “prerecorded voice messages” for purposes of the Telephone Consumer Protection Act’s (TCPA) prohibition on using “an artificial or prerecorded voice” to make non-emergency calls to cell phone numbers without the called party’s consent.
In Trim v. Reward Zone USA LLC, the plaintiff received three text messages from the defendant directing her to a promotional website where she could complete “deals” to claim prizes. The plaintiff was never a customer of the defendant and never provided her cell number to the defendant or its lead vendor. She filed a class action lawsuit containing two TCPA causes of action. One cause of action alleged that the defendant violated the TCPA because the messages were sent using an automatic telephone dialing system (ATDS). The other cause of action alleged that the text messages violated the TCPA because they constituted “prerecorded voice messages.” To support her second cause of action, the plaintiff argued that one definition of “voice” in Meriam Webster’s dictionary is “an instrument or medium of expression.”
The district court dismissed the plaintiff’s third amended complaint. As to the first cause of action, the district court held that the plaintiff failed to plead the use of an ATDS. As to the second cause of action, the district court held that the text messages did not use voices and therefore did not violate the applicable section of the TCPA. The plaintiff subsequently filed an unopposed motion to certify for appeal the two causes of action. The district court granted the motion and entered partial judgment for the defendant on the two TCPA claims. The plaintiff’s appeal to the Ninth Circuit followed.
With regard to the plaintiff’s first TCPA cause of action, the Ninth Circuit panel cited a 2022 Ninth Circuit decision that held that a system constitutes an ATDS under the TCPA only if it generates and dials random or sequential numbers. Because the plaintiff conceded that the dialing equipment used to send the defendant’s text messages did not generate telephone numbers using a random or sequential number generator, the panel ruled that the defendant’s text messages were not sent using an ATDS in violation of the TCPA.
With regard to the plaintiff’s second TCPA cause of action, the Ninth Circuit panel held that Congress clearly intended “voice” in the relevant TCPA prohibition “to encompass only audible sounds, because the ordinary meaning of voice and the statutory context of the TCPA establish that voice refers to an audible sound.” The panel first looked at various definitions and concluded that they showed “that the ordinary meaning of voice relates only to audible sound.” The panel found that the plaintiff had failed to provide any evidence that Congress intended an “idiosyncratic definition” and stated that “we presume Congress intended to legislate the primary meeting of voice which requires an audible component.” The panel also found that because Congress used the term “voice” elsewhere in the TCPA “in the standard way,” “the context of the statute bolsters that Congress did not understand the meaning of voice to include a metaphorical component such as medium of expression.”
The plaintiff also argued that FCC rules precluded a definition of voice that requires an audible component because the Ninth Circuit had deferred to the FCC’s interpretation that a text message is a “call” under the TCPA. According to the plaintiff, because the FCC has determined that a text message is a call, a text message must have a “voice.” In rejecting this argument, the panel observed that if a statute is unambiguous, the court does not defer to the agency’s interpretation. The panel noted that in the decisions cited by the plaintiff in support of her argument, the Ninth Circuit deferred to FCC reports and orders only after finding ambiguity in the term “call.” The panel also noted that because the FCC has distinguished between “voice calls” and “text messages,” even if they deferred to the FCC because the term voice were ambiguous, it would support the panel’s interpretation.
Accordingly, the panel affirmed the district court’s dismissal of both of the plaintiff’s TCPA causes of action.
Bipartisan Group of Senators Re-Introduce Digital Asset Money Laundering Act
On July 28th, Senators Elizabeth Warren (D-Mass), Roger Marshall (R-Kan.), Joe Manchin (D-W.Va.) and Lindsey Graham (R-S.C.), reintroduced the Digital Asset Anti-Money Laundering Act (the “Act“), legislation aimed at closing gaps in the existing anti-money laundering and countering of the financing of terrorism (AML/CFT) framework as it applies to digital assets. Senators Warren and Marshall previously had introduced the same piece of legislation in December 2022, but at that time it lacked widespread support and stalled in the Senate.
Now, potentially in response to crypto-friendly legislation that recently passed in the House, the Act gained momentum with a larger group of bipartisan legislators and may have a more promising future. The Act also was reintroduced immediately on the heels of a successful amendment to the 2024 National Defense Authorization Act (NDAA) pertaining to AML compliance examinations for financial institutions under the Bank Secrecy Act (BSA) and the future regulation of anonymity-enhancing technologies, such as mixers or tumblers. According to Senator Warren’s press release the Act currently enjoys the support of the Bank Policy Institute, the National District Attorneys Association, Major County Sheriffs of America, and the National Consumers League, among other groups.
As we discuss immediately below, the Act would make major changes to the current BSA/AML regulatory regime as it applies to digital assets.
The Act: Unhosted Wallet Providers and Validators
Big picture, the goal of the Act is to apply broadly the existing BSA framework to many aspects of digital assets.
Perhaps most importantly, the Act would amend the BSA to expand its definition of a covered “financial institution” to include the following:
Unhosted wallet providers, digital asset miners, validators, or other nodes that may act to validate or secure third-party transactions, independent network participants (including maximal extractable value searchers), miner extractable value searchers, other validators or network participants with control over network protocols, or any other person facilitating or providing services related to the exchange, sale, custody, or lending of digital assets that the Secretary shall prescribe by regulation.
Accordingly, unhosted wallet providers, as well as “validators,” would become BSA-regulated financial institutions, subject to implementing regulations by the Financial Crimes Enforcement Network (FinCEN).
The Act defines an “unhosted wallet” as “software or hardware that facilitates the storage of public and private keys used to digitally sign and securely transact digital assets, such that the stored value is the property of the wallet owner and the wallet owner has total independent control over the value.” It defines a “validator” as a person or entity that “processes and validates, approves or verifies transactions, or produces blocks of digital asset transactions to be recorded on a cryptographically secured distributed ledger or any similar technology.” This latter definition appears broad enough to include digital asset miners. If so, and depending upon how FinCEN crafted the implementing regulations, this could be in significant tension with FinCEN’s 2014 guidance which opined that miners need not register with FinCEN as money service businesses (MSBs) covered by the BSA, so long as the miner used the digital assets for its own purposes.
The inclusion of unhosted wallet providers and validators within the ambit of BSA-regulated financial institutions would be a major change to digital asset regulation. The Act directs FinCEN to promulgate regulations imposing BSA obligations upon these new financial institutions, including requiring them to register with FinCEN as MSBs. The Act provides certain potential exemptions from such regulations, such as for technologies “used solely for internal business applications,” assets “not offered for sale, traded or otherwise converted to fiat currency or another digital asset,” or assets “otherwise deemed to pose little illicit finance risk.” But those exemptions (depending upon how FinCEN crafted the implementing regulations) likely would not apply to miners or validators on the biggest, public-facing blockchains, including those for Ether and Bitcoin.
Relatedly, the Act would require FinCEN to finalize its December 2020 proposed rule to require banks and MSBs to verify customer identities, keep records, and file reports in relation to certain digital asset transactions involving unhosted wallets or wallets hosted in certain riskier jurisdictions. FinCEN’s rulemaking proposal appears to target transactions involving a counterparty that does not have an account with, or wallet hosted by, either: (i) a financial institution regulated under the BSA; or (ii) certain foreign financial institutions located in “problematic” jurisdictions (i.e., “jurisdictions of primary money laundering concern,” including Iran and North Korea). In this respect, differentiating between hosted and unhosted wallets is something of an open question. FinCEN proposes that affected institutions will need a “reasonable basis” to conclude that a counterparty has an account or wallet hosted by a BSA-regulated institution or covered foreign financial institution. For transactions involving an unhosted or otherwise covered wallet, and among other new obligations, the proposed rule would require affected institutions to submit a report to FinCEN, analogous to the current Currency Transaction Report requirement and form, if the value of the transaction is greater than $10,000.
The Act: Digital Asset Kiosks
The Act would require FinCEN to engage in rulemaking for digital asset kiosks – “digital assets automated teller machine[s] that facilitate the buying, selling, and exchanging of digital assets.” Specifically, the Act would seek regulations requiring digital asset kiosk owners and administrators to verify customer identity, and collect the name of physical address of each counterparty to a transaction. FinCEN also would have to require digital asset kiosk owners and administrators to submit and update the physical addresses of the kiosks that they own or operate every 90 days. Further, the Act would require FinCEN to issue a report identifying all “digital asset kiosk networks” operating as unregistered MSBs and assess whether “any additional resources [are] . . . necessary to investigate the unlicensed digital asset kiosk networks.”
Expanding the FBAR Filing Requirement to Digital Assets
The BSA currently requires U.S. taxpayers to file a BSA Form 114, Report of Foreign Bank and Financial Accounts (“FBAR“), if they hold a financial interest or signatory authority over one or more “financial accounts” located outside the United States, when the aggregated value of the accounts exceeds $10,000. Notably, that requirement does not currently apply to digital assets. If passed, the Act would expand the FBAR filing requirements to include digital assets. This sort of expansion has been discussed for years.
The Act also specifically calls on FinCEN to implement regulations or take steps over the next two-year period to accomplish the following:
- Promulgate regulations requiring financial institutions covered by the BSA to establish controls to mitigate the illicit finance risks of transacting with digital assets that have been anonymized using digital asset mixers and other anonymity-enhancing technologies (on which we have blogged here, here, here and here);
- Establish a risk-based AML/CFT compliance examination and review process regarding digital assets for MSBs and other entities covered by the BSA; and
- Similarly, direct the Securities and Exchange Commission (SEC) and Commodity Futures Trading Commission (CFTC) to establish a risk-based AML/CFT compliance examination and review processes for the entities they regulate.
FinCEN already faces a daunting list of projects, coupled with budgetary restraints and mounting pressure from Congress regarding the slow roll-out of implementing regulations for the Corporate Transparency Act. This new legislation, if passed, would add considerably to FinCEN’s current burdens.
Timing Is Everything
Framing the issue as a matter of national security, the group of senators who reintroduced the Act spoke about the risks of countries like Iran, Russia, and North Korea committing cybercrimes and laundering billions of dollars from U.S. financial institutions. Senator Warren previously has spoken about the need for tougher regulations over digital assets in other contexts as well – like crypto’s role in fueling the fentanyl crisis, and crypto as the method of choice for countries to evade sanctions and fund weapons programs.
While these topical issues likely helped garner support for reintroducing the Act, the timing of the Act’s reintroduction also corresponds to several pieces of legislation that have major implications in the realm of digital assets. Most notably, the Act was reintroduced on the day after the Senate approved a bi-partisan amendment to the 2024 NDAA (the “Amendment“). The Amendment has two parts: one, entitled “Crypto Asset Anti-Money Laundering Examination Standards;” the other, “Combatting Anonymous Crypto Asset Transactions.”
Similar to a provision in the Act, the first part to the Amendment requires the Secretary of the Treasury to “establish a risk-focused examination and review process for financial institutions” under the BSA within one year of the NDAA’s passage. This examination process should focus on the adequacy of a financial institution’s Suspicious Activity Report filings and its overall BSA/AML and CFT compliance program, as they relate to digital assets. Although the Amendment, as styled, would apply to any business qualifying as a “financial institution” under the BSA, as a practical matter it would apply primarily to crypto exchanges and other entities qualifying as MSBs under the BSA.
The second part to the Amendment requires the Secretary of the Treasury to submit a report within a year to Congress and the Senate on anonymity-enhancing technologies, such as mixers and tumblers, used in connection with digital assets. The report should include data on how such technologies are used to conduct illicit financial transactions and violate U.S. sanctions law, as well as related recommendations for legislation or regulation. As we have blogged (here, here, here and here), the U.S. government views mixers and tumblers as frequent tools for illicit finance.
Also on July 27th, the House advanced a bill entitled the “Keep Your Coins Act of 2023,” which would allow consumers to host their own digital wallets in order to purchase goods and services. Largely described as a matter of privacy, and praised by many in the crypto industry, this bill would prevent certain governmental restrictions on self-hosted wallets.
Again, on July 27th, the House advanced the “Clarity for Payment of Stablecoins Act of 2023,” which grants oversight of stablecoins to state-level regulators, rather than the federal government. Passing this legislation would render the SEC and CFTC largely irrelevant in the regulation of stablecoins – the ever-popular fiat-backed type of cryptocurrency – that otherwise would fall under either (if not both) of their authorities.
In contrast to the bipartisan-backed Act and NDAA Amendment in the Senate, these House bills largely progressed on party lines, with Republican lawmakers more willing to curtail the regulatory schemas surrounding digital assets and Democrats seeking the opposite. In contrast, because much of the rhetoric surrounding the Act is geared at national security and preventing the illicit drug trade, it may be a key exception to the current partisan nature of crypto legislation. Likewise, now that it is attached to the NDAA, which must be passed every year, the Amendment may have a promising future.
Ultimately, the timing of these legislative reforms is critical, because lawmakers in this space need to keep up with an ever-changing landscape of both market forces and technological advancements – both of which have been in massive flux in recent years.
American Bar Association Revises Model Rule of Professional Conduct to Combat Money Laundering
On August 8, 2023, the American Bar Association (“ABA”) House of Delegates voted overwhelmingly (216–102) to pass Revised Resolution 100 (the “Resolution”), which in turn revised ABA Model Rule of Professional Conduct 1.16 and its Comments (the “Rule”) to explicitly recognize a lawyer’s duty to assess the facts and circumstances of a representation at the time the lawyer is engaged and throughout the representation to ensure that the lawyer’s services are not used to “commit or further a crime or fraud.”
The Comments to the Rule clearly illustrate that the ABA is concerned with the use of a lawyer’s services to—wittingly or unwittingly—assist clients in laundering money. The Resolution itself acknowledges this, stating “the impetus for these proposed amendments was lawyers’ unwitting involvement in or failure to pay appropriate attention to signs or warnings of danger . . . relating to a client’s use of a lawyer’s services to facilitate possible money laundering and terrorist financing activities.” And the ABA’s press release echoes this concern, noting the Rule was revised “because of concern that lawyers’ services can be used for money laundering and other criminal and fraudulent activity.”
The Resolution’s Revisions to the Rule
The Resolution addresses these concerns by imposing an obligation on lawyers to inquire into and assess the facts and circumstances of the representation of their client and requiring or permitting—depending upon what is uncovered—the lawyer to withdraw their representation of the client. The Resolution revises the Rule in the following ways:
- The Rule now explicitly requires lawyers to “assess the facts and circumstances of each representation to determine whether the lawyer may accept or continue the representation”;
- The Rule now explicitly requires lawyers to reject or discontinue the representation if, after advising the client or prospective client that the lawyer cannot perform the services asked, the client “seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud”; and
- The Rule now explicitly permits lawyers to reject or discontinue the representation if the “client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent.” (emphasis added).
The Resolution also revises the Comments to the Rule in the following ways:
- Explaining that a lawyer has “an obligation . . . to inquire into and assess the facts and circumstances of the representation before accepting it.”
- Explaining that the lawyer has a continuing obligation to inquire if the facts and circumstances of the representation change during the representation, which can include a change in historic client behavior or the addition of a new party or entity.
- Explaining that the obligation to inquire is “informed by the risk that the client or prospective client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud . . . . [which] means that the required level of a lawyer’s inquiry and assessment will vary for each client or prospective client, depending on the nature of the risk posed by each situation.”
The Rule’s Risk-Based Inquiry
As indicated above, the Rule leaves the level of inquiry to be determined on a case-by-case basis dependent upon the risks presented by the representation. The rule of reason now written into the Rule is flexible, depending upon a list of five non-exclusive factors added to the Comments. These five factors provide a rough guide to lawyers on what to inquire upon and how deeply to do so. The factors include:
- The identity of the client, including the beneficial owners of the client if it is an entity;
- The lawyer’s “experience and familiarity with the client”;
- The “nature of the requested legal services”;
- The “relevant jurisdictions involved in the representation,” and specifically, “whether a jurisdiction is considered at high risk for money laundering or terrorist financing”; and
- The “identities of those depositing into or receiving funds from the lawyer’s client trust account, or any other accounts in which client funds are held.”
In addition to these factors, the Comments point to a number of documents to assist lawyers in “assessing risk” including the Financial Action Task Force’s (“FATF”) Guidance for a Risk-Based Approach for Legal Professionals, the Organization for Economic Cooperation and Development’s (“OECD”) Due Diligence Guidance for Responsible Business Conduct, the U.S. Department of Treasury’s (“Treasury Department”) Specially Designated Nationals and Blocked Persons List, and ABA publications on the topic.
U.S. Efforts to Regulate Lawyers Spurred Passage of the Resolution
At least some members of the ABA HOD believed that making the Rule more explicit was unnecessary. Back in April 2020—as we discussed here—the ABA issued Opinion 491, which provided guidance to lawyers that closely mirrors the newly revised Model Rule 1.16. For some HOD members, what was implicit in former Model Rule 1.16 and explicit in Opinion 491 need not be rehashed again: a lawyer’s ethical duty was clear. The Revised Report appended to the Resolution largely supports a part of that perception, stating that the Resolution does not impose “new obligations.”
The Resolution is part of a larger conversation by U.S. lawmakers and regulators with the legal profession on how gatekeepers can close the so-called gates of the U.S. financial system to would-be money launderers. In July 2022, the US House of Representatives attempted to pass a “scaled back” ENABLERS Act (as we wrote about here) that could have required lawyers to comply with aspects of the Bank Secrecy Act (“BSA”). And the ABA noted that it was successful in persuading Congress to remove the regulation of lawyers in initial versions of the Corporate Transparency Act. Recently, federal prosecutors were successful in securing a guilty plea against a New York attorney accused of money laundering conspiracy in connection with an indicted Russian oligarch and in defending, on appeal to the Court of Appeals for the Fourth Circuit, a money laundering conspiracy conviction won against a Baltimore attorney accused of assisting two drug dealers in laundering funds (as we wrote about here and here, respectively). While prosecutions involving attorneys are rare and U.S. lawmakers and regulators have not imposed additional requirements on lawyers, the ABA has felt public pressure on legal professionals mounting.
Ultimately, however, it appears that the Treasury Department forced the ABA’s hand to pass the Resolution. In a speech to the ABA HOD prior to the vote, Kevin Shepherd, the ABA’s Treasurer and representative to the Treasury Department and the FATF, explained the impetus for passing the Resolution. He stated that a failure to pass the Resolution would:
Invite federal regulation of the legal profession. If this House does not adopt Resolution 100, Treasury will press Congress to pass the ENABLERS Act. The ENABLERS Act will regulate lawyers as banks, meaning lawyers would have to file suspicious activity reports on their clients, and the lawyers would be forbidden to tell their clients that they have done so . . . . As a wake-up call, Treasury informed me last Friday that the failure of the ABA to adopt Resolution 100 will cause Treasury to explore every means available in its regulatory toolkit to impose anti-money laundering regulations on the legal profession.
As Shepherd put it, the “political reality” was that the ABA HOD either pass the Resolution or the system the ABA has long-supported of state-based, judicial regulation of lawyers would be dismantled by the Treasury Department via regulation or passage of the ENABLERS Act.
Passage of the Resolution preserves—for now—the status quo that lawyers need not report to federal regulators or law enforcement on their clients or engage in client due diligence for every engagement, regardless of potential risk. The new Rule explicitly imposes an ethical duty on lawyers to withdraw from representation when clients wish to use their services to further a crime or fraud and a duty to complete a “risk-based” inquiry commensurate with the particulars of the situation.
It remains an open question whether U.S. lawmakers and regulators see this as only one part of a broader regulatory push. The Paradise Papers, Panama Papers, and Pandora Papers and FinCEN Files have pushed legislators and regulators closer to acting upon further regulation of the legal profession as gatekeepers of the U.S. financial system. Although lawyers are subject to discipline and prosecution, those cases remain rare and may be perceived as insufficient to lawmakers and the Treasury Department—even though they carry disastrous consequences like disbarment or even jail time. It is unclear whether Congress can conceive of legislation (and pass it) or the Treasury Department can write regulations that can control money laundering risk while preserving the careful balance of judicial, state-based regulation of the legal profession and the sanctity of the attorney-client relationship and its corresponding privileges.
If you would like to remain updated on these issues, please click here to subscribe to Money Laundering Watch. Please click here to find out about Ballard Spahr’s Anti-Money Laundering Team. Please click here to read our article on potential money laundering and client due diligence issues facing attorneys.
Andrew N. D'Aversa
Courts Split on Whether Cryptocurrency Is a Security
To understand the regulatory requirements for cryptocurrency, one must first ask the question what is money. This question is of paramount importance because the federal law definition of “money transmitting” depends in large part on state law definitions and regulator interpretations, and there is no uniform legislation that defines cryptocurrency as money for the purposes of state licensing requirements. Moreover, financial companies regulated by the SEC or the CFTC are generally exempt from money transmitter registration.
If federal courts were to determine that cryptocurrency is a security (not money), there could be much change in the way cryptocurrencies are regulated across the states. We are keeping a close eye on developments here, and look forward to seeing how this all turns out.
Our Ballard Spahr colleagues have published a legal alert that discusses two recent decisions that reached different results on the question of whether cryptocurrency is a security. The decisions show the continuing lack of clarity in the law regarding this question and the need for financial companies involved in crypto-related activity to engage experienced legal counsel to help mitigate litigation and compliance risks. To read the alert, click here.
As of August 1st, North Dakota has shifted the applicable license-type for conducting residential mortgage lending from the previously required North Dakota Money Broker License to a new Residential Mortgage License. However, existing Money Broker Licensee have until December 31, 2023, to transition to the new license type. For more information regarding the requirements for license transition, please see the NMLS transition checklist here and our prior article covering the new North Dakota licenses here.
Remote Work Super Session: Legal, Operational, and Tax and Accounting Perspectives, September 6, 2023 - 9 AM EST
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Fair Labor Standards Act Update, September 6, 2023 - 11:15 AM EST
Speaker: Meredith S. Dante
Loan Originator Compensation and Other Mortgage-Specific Legal Issues Affecting HR Managers, September 6, 2023 - 1 PM EST
Speaker: Richard J. Andreano, Jr.
COMPLIANCE ROUNDTABLE: State Licensing and Examination Trends, September 10, 2023 – 2:15 PM EST
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TRENDING COMPLIANCE ISSUES TRACK: Servicing – Key Compliance Considerations, September 12, 2023 – 9:15 AM EST
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CLOSING SUPER SESSION: Regulatory Compliance, September 12, 2023 – 11:45 AM EST
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