- Ballard Spahr Lawyers to Speak at ABA Meeting on September 13 Regarding CFPB Contracts Circular
- Last Chance to Register for the 2024 HR Legal Summit!
- FinCEN Issues Final BSA Reporting Requirements for Residential Real Estate Deals
- This Week’s Podcast: The CFPB’s Registry of Nonbanks and Circular That Certain Contract Terms Violate Law
- This Week’s Podcast Episode: The Cantero Opinion - The U.S. Supreme Court Leaves National Bank Preemption in Limbo
- Texas Judge Rules the CFPB Did Not Exceed Authority in Issuing Small Business Reporting Rule
- The CFPB Announces the Beta Platform for Small Business Lending Data Reporting
- House Republican Introduces Resolution to Nullify the CFPB Nonbank Registry Rule
- ‘Very, Very Fuzzy’: Opinion Overruling Chevron Creates Uncertainty for Regulated Industries
- NCLC Asks the CFPB to Consider Residential Leases as Credit for Specific Purposes
- DC Attorney General Settles With Four Title Company Joint Venture Organizers
- Petition for Rehearing to Be Filed in Ninth Circuit in National Bank Act Preemption Case Related to Mortgage Escrow Accounts
- FinCEN’s Notice of Proposed Regulations to Strengthen and Modernize AML/CFT Compliance Programs: A Podcast
- Defendant Challenges FDIC Enforcement Proceeding, Citing Jarkesy
- Appeals Court: No FCRA Informational Injury Standing
- Looking Ahead
Ballard Spahr Lawyers to Speak at ABA Meeting on September 13 Regarding CFPB Contracts Circular
On June 4, the CFPB issued Circular 2024-03 (Circular), warning that the use of unlawful or unenforceable terms and conditions in contracts for consumer financial products or services may violate the prohibition on deceptive acts or practices in the Consumer Financial Protection Act. We previously drafted a blog post and Law360 article about this circular. Since the publication of the Circular, our Consumer Financial Services Group has been engaging with many clients to evaluate their consumer contracts and processes to determine ways to comply with the Circular.
If you will be attending the meeting in San Diego later this week of the American Bar Association Committee on Consumer Financial Services and you would like to accompany us on a one hour deep dive in which we explain the methods we are using to conduct reviews of consumer contracts to make them compliant with the Circular, we will be leading a roundtable discussion on Friday, August 13 at Noon, PT at the Marriott Marquis Marina District in Marine Ballroom D, South Tower.
Alan S. Kaplinsky & Joseph Schuster
Last Chance to Register for the 2024 HR Legal Summit!
September 19, 2024 | 8:00 AM – 4:30 PM
Are you an HR professional, employment attorney, or organizational leader? Don’t forget to register for one of the most anticipated events of the year—the 12th Annual HR Legal Summit. Co-sponsored by Ballard Spahr and SEPA SHRM, this must-attend summit will help you stay abreast of critical legal developments affecting human resources departments, earn SHRM/HRCI recertification credits or CLE credits, and connect with other HR professionals. Attendees also will be entered to win exciting prizes—including a SHRM certification course, courtesy of our Platinum Sponsor, Villanova.
Seats are limited, so reserve your spot now!
Event Highlights
Keynote Session:
How Ted Lasso’s Leadership Style Can Help You Build Psychological Safety
Led by Jeff Harry, an international speaker and recent SHRM National presenter, this keynote session explores how major issues in the workplace can be solved through play.
Plenary Sessions:
- HR Collaboration: The Business and the Law (Brian D. Pedrow)
- What’s New (and Worrisome) at the EEOC? (Denise M. Keyser)
Break-Out Sessions:
- I, Robot: Artificial Intelligence and the Workplace (Michele Solari)
- #$%&! Civility, Bullying and Respect in the Workplace (Louis L. Chodoff)
- Charting the Course: The Future of Diversity, Equity, and Inclusion After the Harvard/UNC Decision (Elliot I. Griffin)
- Regulate or De-Regulate?: The HR Regulatory Environment and Impact of Loper Bright (Shannon D. Farmer)
Sponsor and Exhibitor Hall:
Explore a variety of companies offering tools and resources to support you and your organization. This is an excellent opportunity to discover solutions that can streamline and enhance your HR practices.
Don’t Miss Out!
The 12th Annual HR Legal Summit offers a robust platform for learning, networking, and professional growth. We look forward to seeing you there!
Location
Presidential Caterers
2910 Dekalb Pike
East Norriton, PA 19401
Additional Details
View the 2024 Summit Schedule
View Session Descriptions
View Exhibitor and Sponsor Opportunities
FinCEN Issues Final BSA Reporting Requirements for Residential Real Estate Deals
On August 29, the Financial Crimes Enforcement Center (FinCEN) published Anti-Money Laundering Regulations for Residential Real Estate Transfers (Final Rule) regarding residential real estate. The Federal Register publication is 37 pages long. We have created a separate document which sets forth only the provisions of the Final Rule, at 31 C.F.R. § 1031.320, here.
The Final Rule institutes a new BSA reporting form – the “Real Estate Report” (Report) –which imposes a nation-wide reporting requirement for the details of residential real estate transactions, subject to some exceptions, in which the buyer is a covered entity or trust. As expected, FinCEN has adopted a “cascade” approach to who is responsible for filing a Report, specifically implicating – among others – title agencies, escrow companies, settlement agents, and lawyers.
Importantly, the person filing the Report may reasonably rely on information provided by others. Parties involved in a covered transaction also may agree as to who must file the Report. However, the Final Rule does not allow for incomplete reports, which likely will create practical problems.
The Final Rule does not require covered businesses to implement and maintain comprehensive anti-money laundering (AML) compliance programs or file Suspicious Activity Reports (SARs), like many other institutions covered by the Bank Secrecy Act (BSA). FinCEN has indicated that separate proposed rulemaking on commercial real estate transactions is forthcoming. However, the existence of a commercial element with a property does not automatically except a transfer from the Final Rule. For example, the transfer of a property that consists of a single-family residence that is located above a commercial enterprise is covered if all of the other reporting criteria are met.
FinCEN has published a Fact Sheet which summarizes the basics of the Final Rule. FinCEN also has published an eight-page set of FAQs on the Final Rule. The Final Rule will be effective on December 1, 2025. FinCEN has not yet issued a proposed form of the Report.
Background
The Final Rule has been long anticipated. For years, FinCEN issued and expanded Geographic Targeting Orders (GTOs), which have accumulated Beneficial Owner (BO) information through reports regarding the purchases of certain real estate by entities in designated U.S. jurisdictions, if they exceeded certain monetary thresholds. The GTOs were a precursor to, and instruments to obtain data to support, the newly-published Final Rule.
FinCEN issued a lengthy Advanced Notice of Proposed Rule Making (ANPRM) in December 2021 and Notice of Proposed Rule Making (NPRM) in February 2024 regarding the real estate industry. FinCEN received 164 unique comments to the NPRM from a variety of stakeholders. The Final Rule does not diverge significantly from the proposals in the NPRM.
Contents of the Real Estate Report
A Report must identify the following information:
- The reporting person;
- The legal entity or trust receiving ownership of the property;
- The BOs of the transferee entity or transferee trust;
- Certain individuals signing documents on behalf of the transferee entity or transferee trust during the reportable transfer;
- The transferor;
- The residential real property being transferred; and
- Total consideration and certain information about any payments made.
Generalizing, the definition of a reportable BO for a transferee entity approximates the definition of a reportable BO for the purposes of the Corporate Transparency Act (CTA): a person who owns or controls at least 25 percent of the transferee’s ownership interests, or anyone who exercises “substantial control” over the transferee entity – a concept that is very broadly defined. For a transferee trust, a BO would be any individual who is a trustee or who has other, various and specifically-defined rights and powers regarding the trust or its assets. As a practical matter, many entities conducting residential real estate transactions will need to file BO information reports under the CTA upon their creation, and also will have their transactions reported under the Final Rule.
Although both the Final Rule and the CTA require collection of a BO’s name, date of birth, and address, the Final Rule differs from the CTA in that the Final Rule, unlike the CTA, (i) relies largely on TINs rather than passport numbers, and (ii) collects BOs’ citizenship information.
Importantly, the Final Rule incorporates a “reasonable reliance” standard for reporting persons, who may rely on information provided by other persons, but only if the reporting person does not know facts that would reasonably call into question the reliability of the information. The reasonable reliance standard appears to be meaningful. According to FinCEN:
FinCEN recognizes the necessity of permitting reliance on information supplied to the reporting person, considering the time and effort it would take for the reporting person to verify each piece of information independently. FinCEN believes that the reasonable reliance standard is significantly less burdensome than an alternative full verification standard, while still ensuring that obviously false or fraudulent information would not be reported.
However, as to BO information, the reasonable reliance standard applies more narrowly to information provided by the transferee or the transferee’s representative and only if the person providing the information certifies its accuracy in writing to the best of their knowledge.
Perhaps more importantly, the Final Rule does not allow the filing of incomplete reports:
[T]here is no exception from reporting under the final rule should a transferee fail to cooperate in providing information about a reportable transfer . . . [and] a reporting person who fails to report the required information about a reportable transfer could be subject to penalties. However, FinCEN will consider issuing additional public guidance to assist the financial institutions subject to these regulations in complying with their reporting obligations.
The Report: Application and Exceptions
The Report does not apply to transactions only between individuals, or to transactions in which the transferee is an individual. Rather, the Report applies only to transactions involving a covered entity or trust as the transferee, including foreign entities and trusts.
Reportable deals involve transfers pertaining to single-family houses, townhouses, condominiums, cooperatives, and buildings designed for occupancy by one to four families. The final prong of this definition (buildings designed for occupancy by one to four families) tracks language in the previously-existing definition of real estate transactions involving residential mortgage lenders and originators, to which the BSA and implementing FinCEN regulations already apply. Reportable deals also include vacant or unimproved land (depending upon whether the transferee intends to build upon the property), and shares in a cooperative housing corporation. As FAQ B.2 explains, property may fall within the parameters of the Final Rule in one of four ways:
- It is real property located in the United States that includes a structure designed principally for occupancy by one to four families;
- It is land in the United States on which the transferee intends to build a structure designed principally for occupancy by one to four families;
- It is a unit designed principally for occupancy by one to four families within a structure on land located in the United States; and/or
- It is a share in a cooperative housing corporation for which the underlying property is located on land within the United States.
The Final Rule “is not designed to require reporting of the transfer of contractual obligations other than those demonstrated by a deed or, in the case of a cooperative housing corporation, through stock, shares, membership, certificate, or other contractual agreement evidencing ownership. Therefore, the transfer of an interest in an assignment contract would not be reportable.”
The Final Rule only applies to “non-financed” transactions. That means that a covered transaction does not involve an extension of credit that is secured by the transferred property and extended by a financial institution already subject to AML program and SAR filing requirements. Stated otherwise, if the transaction involves financing by an entity which the BSA already covers, then the Final Rule does not apply. FinCEN explains:
As non-financed transfers do not involve such financial institutions, such transfers can be and have been exploited by illicit actors of all varieties, including those that pose domestic threats, such as persons engaged in fraud or organized crime, and foreign threats, such as international drug cartels, human traffickers, and corrupt political or business figures. Non-financed transfers to legal entities and trusts heighten the risk that such transfers will be used for illicit purposes. Numerous public law enforcement actions illustrate this point.
Unlike the GTOs, there is no minimum dollar threshold for a transfer to be subject to the reporting requirement. Even transfers for no consideration are covered, subject to an exception for transfers to trusts when certain criteria are met. As a result, gift transfers are covered, unless an exception applies.
A potential reporting person can rely reasonably on representations made by a financial institution that it has the requisite AML program obligations, thereby rendering the Final Rule inapplicable.
FAQ B.5 summarizes the transfers which are not subject to reporting:
- A transfer that is a grant, transfer, or revocation of an easement.
- A transfer resulting from the death of an individual, whether pursuant to the terms of a will, the terms of a trust, the operation of law (such as transfers resulting from intestate succession, surviving joint owners, and transfer-on-death deeds), or by contractual provision (such as transfers resulting from beneficiary designations).
- A transfer incident to divorce or dissolution of a marriage or civil union (such as transfers required by a divorce settlement agreement).
- A transfer made to a bankruptcy estate.
- A transfer supervised by a court in the United States.
- A transfer for no consideration made by an individual, either alone or with their spouse, to a trust of which that individual, that individual’s spouse, or both, are the settlors or grantors.
- A transfer to a qualified intermediary for the purposes of a like-kind exchange for purposes of Section 1031 of the Internal Revenue Code.
- A transfer for which there is no reporting person.
Although transferee entities are defined broadly, there are 16 exceptions for highly regulated types of entities that, in FinCEN’s view, illicit actors are less likely to use to launder funds through residential real estate. These exceptions to the definition of transferee entities include but are not limited to entities the BSA already covers (such as banks, credit unions, money services business, and broker-dealers in securities) and securities reporting issuers – i.e., U.S. public companies. Thus, although there is no “large entity” exception, the exception for securities reporting issuers serves de facto as such an exception. Subsidiaries of exempted entities are themselves exempt. Specifically, a “legal entity controlled or wholly owned, directly or indirectly, by” an excepted legal entity is itself excluded from the definition of a transferee entity.
Transferee trusts are also defined very broadly. Unlike the CTA, trusts are covered by the Final Rule even if they are not created through a filing with a state or tribal entity. Rather, a transferee trusts is defined to mean “any legal arrangement created when a person (generally known as a settlor or grantor) places assets under the control of a trustee for the benefit of one or more persons (each generally known as a beneficiary) or for a specified purpose, as well as any legal arrangement similar in structure or function to the above, whether formed under the laws of the United States or a foreign jurisdiction.” Similarly, the proposed exceptions for transferee trusts are limited: trusts which are securities reporting issuers, trusts in which the trustee is a securities reporting issuer, or statutory trusts. Again, subsidiaries of exempt trusts are also exempt.
The Final Rule makes clear that a transferee entity can include a non-profit organization – although the reportable beneficial owners are limited to only the individuals who exercise substantial control because the owners or directors of such organizations do not have direct ownership. In regards to pooled investment vehicles (PIVs), FinCEN emphasizes that PIVs which are not registered with the SEC, such as private real estate investment trusts, certain real estate funds, special purpose financing vehicles, and private funds, may be transferee entities.
The Report: Who Files
Only one entity or person must file a Report for a particular covered transaction. As expected, the Final Rule imposes a “cascading” reporting regime by listing seven different functions which could occur in a real estate deal – the business that performs the function that appears highest on the list must file the Report. Here is the “cascading” list of responsible filers:
- The person listed as the closing or settlement agent on the closing or settlement statement for the transfer;
- The person that prepares the closing or settlement statement for the transfer;
- The person that files with the recordation office the deed or other instrument that transfers ownership of the residential real property;
- The person that underwrites an owner’s title insurance policy for the transferee with respect to the transferred residential real property, such as a title insurance company;
- The person that disburses in any form, including from an escrow account, trust account, or lawyers’ trust account, the greatest amount of funds in connection with the residential real property transfer;
- The person that provides an evaluation of the statute of the title; or
- The person who prepares the deed or, if no deed is involved, any other legal instrument that transfers ownership of the residential real property.
If none of the above functions are performed for a particular transfer, then no Report has to be filed. A financial institution with an obligation to maintain an AML program is excluded from the definition of a reporting person.
Importantly, the Final Rule provides that parties may enter into written agreements with each other in order to designate exactly who must file the Report, so long as the designated filer is one of the type of entities identified above in the cascading list (which means that a financial institution with a required AML program cannot be designated). There is no required format for a designation agreement, but the agreement must include specified information. The Final Rule “does not allow for third-party vendors who are not described in the reporting cascade to be designated as a reporting person, as such vendors are not financial institutions that can be regulated by FinCEN; a reporting person could outsource the preparation of the form to a third-party vendor, but the ultimate responsibility for the completion and filing of the report would lie with the reporting person.” A separate agreement is required for each reportable transfer.
Attorneys as Reporting Persons
The Final Rule does not exclude attorneys involved in real estate transactions from being potential reporting persons, despite commentators who urged otherwise. In the Federal Register, FinCEN explains:
. . . . FinCEN does not believe that attorneys would violate their professional ethical obligations by filing a Real Estate Report. . . . FinCEN believes that the information required in the Real Estate Report (e.g., client identity and fee information) is of a type not generally protected by the attorney-client privilege, and accordingly FinCEN is not persuaded that attorneys should be categorically excluded from the reporting cascade on that basis. . . . Similarly, FinCEN is not persuaded by commentators who argues that FinCEN lacks the authority to regulate attorneys under the BSA, claiming that the BSA does not clearly evince an intention to regulate attorneys.
Nonetheless, FinCEN states that it “expects to issue guidance that will address the rare circumstance in which an attorney is concerned about the disclosure of potentially privileged information, which will provide further information on the mechanism for asserting the attorney-client privilege and appropriately filing the relevant Real Estate Report.”
The Report: When (and Required Records)
A Report must filed by the last day of the month following the month in which the date of closing occurred, or within 30 calendar days after the date of closing, whichever is later. Thus, as a practical matter, Reports must be filed within 30 to 60 days.
The Final Rule has reduced the record keeping requirements initially proposed by the NPRM. The reporting person must maintain a copy of the BO certification by the transferee or transferee’s representative for a period of five years. The reporting person is not required to retain a copy of the filed Report, although a reporting person may want to retain a copy for its own record-keeping purposes. Any parties to a designation agreement, including the reporting person, must retain a copy of the designation agreement for a period of five years.
Penalties
The Final Rule does not set forth potential penalties for not filing Reports or filing inaccurate Reports. Rather, penalties for Report violations will track the general civil and criminal penalty regime for BSA reporting violations under 31 U.S.C. §§ 5321 and 5322. Current civil penalties (as adjusted for inflation and effective as of January 25, 2024) are $1,394 for each “negligent” violation; up to $108,489 for a pattern of negligent activity; up to $69,733 for each “willful” violation; or up to the total amount involved in a willful violation, not to exceed $278,937, if it is greater than $69,733. Criminal penalties include up to five years of imprisonment and a criminal fine of up to $250,000.
Peter D. Hardy, Richard J. Andreano, Jr. & Kaley N. Schafer
The CFPB recently issued yet another final rule the agency says will help deter violations of consumer protection laws. This rule requires certain nonbank entities to register with the CFPB upon becoming subject to any order from local, state, or federal agencies or courts involving consumer protection law violations.
The registry rule applies to any supervised or non-supervised nonbank that engages in offering or providing a consumer financial product or service and any of its service provider affiliates unless excluded.
The CFPB will require the nonbank entities that are subject to the rule to register the specific terms and conditions on an annual basis. There will be public access to this database.
We also address the CFPB’s recent circular in which the agency stated that certain terms in consumer financial product or service contracts may constitute violations of consumer protection law. Notably, the circular states that the use of prefatory language that often appears in consumer contracts—such as “subject to applicable law” or “to the extent permitted by law”—will not immunize contract language from being deceptive.
We explain why practically every consumer contract in use today technically violates the CFPB circular. We also explain how we are helping several clients review and revise their consumer contracts to comply with the circular.
Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, Alan Kaplinsky, leads the discussion, and is joined by John Culhane, Richard J. Andreano, Jr., Joseph Schuster, and Reid F. Herlihy, partners in the group.
To listen to this episode, click here.
On May 30, the Supreme Court issued its opinion in Cantero v. Bank of America, reversing and remanding the case to the Second Circuit. Rather than articulating a bright line test for preemption, the Supreme Court instructed the circuit court to conduct a “nuanced analysis” to determine whether the National Bank Act preempts a New York state law that requires the payment of 2 percent interest on mortgage escrow accounts. Per the Supreme Court, the Second Circuit must apply the preemption standard described in the Dodd-Frank Act, which provides that a state consumer financial law is preempted “only if” it discriminates against national banks in comparison with state banks; is preempted by another Federal law; or “prevents or significantly interferes with the exercise by the national bank of its powers,” as determined “in accordance with the legal standard for preemption in the decision of the Supreme Court of the United States” in Barnett Bank, N.A. v. Nelson. See 12 U.S.C. § 25b(b)(1).
We open today’s podcast episode, which repurposes a recent webinar roundtable covering the Cantero decision, with a new preface by moderator Alan Kaplinsky, Senior Counsel in Ballard Spahr’s Consumer Financial Services Group. This preface provides an update on an important post-Cantero development: a Ninth Circuit opinion issued on August 23 in another preemption case, Kivett v. Flagstar Bank. Alan explains why the Ninth Circuit’s new opinion in Kivett applies a standard that is totally inconsistent with the instructions provided by the Supreme Court in Cantero.
Today’s episode then proceeds with a discussion featuring Alan Kaplinsky, Ballard Spahr Partner Joseph Schuster, and four attorneys who each filed an amicus brief in Cantero. These experts share their reactions and explore potential next steps and possible outcomes as the Second Circuit and other courts proceed with efforts to comply with the Supreme Court’s Cantero mandate.
We first review of Cantero’s procedural history, followed by an overview of the Supreme Court’s unanimous Cantero opinion, including an in-depth discussion of the Court’s reasoning and its reliance on Barnett Bank and other precedent.
We then focus on two other preemption cases pending in the Ninth Circuit (Kivett v. Flagstar Bank) and the First Circuit (Conti v. Citizens Bank), respectively, and the anticipated effects of Cantero on the outcome in these cases.
Our roundtable panel then explores the overarching question of what will happen now in the three circuit courts that must conduct a “nuanced analysis” to determine whether the respective state laws at issue “prevent or significantly interfere” with the exercise of national bank powers. The speakers share differing views as to what these courts might do, and whether or not, and to what extent, courts must engage in analysis of the facts of each specific case in order to determine the nature and degree of the interference.
We also consider the effect of the Cantero opinion on the preemption regulations of the Office of the Comptroller of the Currency (OCC), with the speakers explaining their divergent opinions as to the risks now posed to these regulations given the Cantero Court’s interpretation of Dodd-Frank, as well as the demise of Chevron deference.
It is essential that national banks remain focused on these issues and the evolving circuit court outcomes in the coming months in order to determine to what extent they might or might not remain insulated from the 50-state patchwork of consumer financial laws previously considered preempted. We conclude with some practical thoughts and actionable pointers about steps national banks should take now in light of Cantero, including ways to develop an understanding of the state laws that exist in this space, their possible applicability to national bank products, whether or not they “significantly interfere” with national bank powers, and what compliance efforts might be advisable.
To listen to this episode, click here.
Texas Judge Rules the CFPB Did Not Exceed Authority in Issuing Small Business Reporting Rule
In a tentative win for the CFPB, a federal judge in Texas ruled on August 26, 2024, that the agency did not exceed its authority when it issued its final Section 1071 small business lending rule. The court also rejected other Administrative Procedure Act (APA) challenges to the rule. However, the court did not issue a final judgment, as it still has to rule on the motion of certain intervenors to amend their complaint to add a claim focused on the legality of the CFPB being funded by the Federal Reserve Board, when since September, 2022, the combined earnings of the Federal Reserve System has been negative. That is contrary to the language of the Dodd-Frank Act.
Addressing the claim that the Section 1071 rule is beyond the authority of the CFPB, Judge Randy Crane of the U.S. District Court for the Southern District of Texas determined that “[t]he Final Rule was promulgated in accordance with the CFPB’s authority to do so, and the agency enacted the rule with the intent of furthering the purposes of Section 1071.”
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 whether the businesses are women-, minority- or LGBTQI+-owned, and the race and ethnicity of the principal owners of the businesses.
Banking trade groups, including the American Bankers Association had filed suit, arguing that the CFPB’s funding mechanism was unconstitutional based on the Fifth Circuit’s opinion in the CFSA case and that the CFPB had violated the APA in promulgating the rule.
Judge Crane noted that the U.S. Supreme Court has decided the funding question and ruled that the agency’s funding does not have to go through the annual congressional appropriations process.
On August 26, he ruled that the agency did not violate the APA when it issued the rule. In addition to asserting that the Section 1071 rule was beyond the statutory authority of the CFPB, the banking groups also argued that the agency relied on flawed calculations to determine the costs and benefits of the rule. However, Judge Crane ruled that the bureau had considered the costs and benefits and had done so at length.
Judge Crane also found that the CFPB has the authority to demand financial institutions collect information that it otherwise might not collect during the loan application process. Judge Crane noted that Section 1071 of Dodd-Frank, which amended the Equal Credit Opportunity Act to provide for the small business lending data collection and reporting requirements, not only sets forth specific items of data to be collected, but also authorizes the CFPB to require that lenders compile and maintain “any additional data that the Bureau determines would aid in fulfilling the purposes of this section.”
The judge said he was not passing judgment on the rule and noted”[i]t may well be that the Final Rule proves ill-advised as a policy matter, but that possibility does not itself make the Final Rule unlawful under the APA.”
However, as noted above, Judge Crane did not close the case. Intervenors from the farm credit industry have raised a new issue following the Supreme Court decision on the CFPB’s funding structure. Those groups, including the Farm Credit Council, Texas Farm Credit and Capital Farm Credit (the Farm Credit Intervenor/Plaintiffs) contend, as discussed above, that the CFPB was unlawfully funded since September, 2022 because of combined losses of the Federal Reserve System after September 2023,
This is not a final judgment, and is not appealable unless: (1) the Farm Credit Intervenor-Plaintiffs withdraw their motion to amend the complaint to include a separate claim that the rule was unlawfully funded by virtue of the fact that the CFPB used funds obtained from the Fed when the “combined earnings of the Federal Reserve System was and continues to be negative; (2) the partial judgment is certified for interlocutory appeal; or (3) the plaintiffs file a petition for writ of mandamus and the Fifth Circuit entertains it.
Judge Crane issued two additional orders. In the first order, he stayed indefinitely any obligation of the CFPB to respond to the motion for judgment on the pleadings filed by the Farm Credit Intervenor-Plaintiffs. Second, he issued an order scheduling a status conference for September 24th.
The CFPB filed an opposition to the Farm Credit Intervenor-Plaintiff’s motion to amend the complaint stating that the issue raised could have been raised at any time, relies on facts predating the original complaint, and such delay is egregious. In addition, the CFPB asserts that the Intervenor-Plaintiffs failed to show that their delay resulted from oversight, inadvertence, or excusable neglect. This argument seems off base since the new argument would have been unnecessary if the Supreme Court had affirmed the Fifth Circuit in the CFSA case.
Richard J. Andreano, Jr., Alan S. Kaplinsky, Loran Kilson & Kaley N. Schafer
The CFPB Announces the Beta Platform for Small Business Lending Data Reporting
The CFPB announced the availability of its beta platform for the small business lending data collection rule pursuant to section 1071 of the Dodd-Frank Act.
The CFPB has invited financial institutions to test the platform by uploading and using test files provided in the CFPB’s test file repository, or by uploading the financial institution’s own test or sample files. However, the CFPB notes that it is imperative that test files or samples do not contain actual customer data. The data submitted on the beta platform will not be considered for compliance with small business lending data reporting requirements, and can be removed from the platform at any time.
In order to begin using the testing platform, the following steps must be taken by the employee responsible for filing reports:
- Confirm the financial institution has a Legal Entity Identifier.
- Create an account with Login.gov using a financial institution email address. Personal email addresses will not be accepted.
- Select the financial institution for which the employee is authorized to file reports.
The CFPB requests feedback regarding use of the Small Business Lending Data Filing Platform and any questions regarding the platform be sent to SBLHelp@cfpb.gov.
As a reminder, the CFPB issued an updated 2025 Small Business Lending Filing Instructions Guide (the Guide), which includes the new compliance dates for submitting required data.
It should be noted that the District Court, on August 26, rejected the trade group’s arguments attacking the CFPB’s small business data regulation. It will likely be appealed to the Fifth Circuit where the outcome is uncertain.
Loran Kilson & Kaley N. Schafer
House Republican Introduces Resolution to Nullify the CFPB Nonbank Registry Rule
Rep. Andy Ogles, R-Tenn., on August 30, 2024 introduced in the House of Representatives a resolution under the Congressional Review Act (CRA) that would nullify the CFPB’s final nonbank registry rule.
The rule, issued in June, will require certain nonbank entities to register certain covered enforcement or court orders. Additionally, CFPB-supervised covered nonbanks must comply with ongoing attestation reporting requirements on their compliance with such orders. The rule is effective on September 16, 2024, with registration available beginning on October 16, 2024 and then mandatory pursuant to a tiered implementation approach, with the deadlines based on the nature of the entity that is required to register.
Under the Congressional Review Act, Congress may nullify federal agency rules within a prescribed period after they are adopted. The resolution doing so would have to pass the House and Senate and would have to be signed by the President. Here President Biden, a supporter of the CFPB’s regulatory regime, would likely veto the resolution. (In December 2023, President Biden vetoed legislation adopted under the CRA to override the CFPB’s final Section 1071 small business lending rule.)
In May, as the CFPB was finalizing the rule, Ogles and 11 of his House Republican colleagues sent a letter to CFPB Director Rohit Chopra contending that the CFPB did not have the authority to “promulgate a registration rulemaking this robust.”
The Republicans, all members of the House Financial Services Committee, asserted that “When Congress intends to create a database, it explicitly and clearly does so. Furthermore, the Bureau explicitly cannot require financial institutions to register.”
Somewhat surprisingly, to date no trade association or covered nonbank entity has filed a lawsuit challenging the validity of the rule.
John L. Culhane, Jr., Richard J. Andreano, Jr. & Alan S. Kaplinsky
‘Very, Very Fuzzy’: Opinion Overruling Chevron Creates Uncertainty for Regulated Industries
Our recent webinar featured a conversation with noted legal scholars Craig Green, Charles Klein Professor of Law and Government at Temple University Beasley School of Law, and Kent Barnett, recently appointed Dean of the Moritz College of Law at The Ohio State University. Both said regulated industries and their counsel are in for a period of severe unpredictability due to the U.S. Supreme Court's ruling in Loper Bright v. Raimondo, et al. and the majority opinion authored by Chief Justice John Roberts.
“What comes next, I think, is at least as uncertain as anything we’ve encountered in the administrative law field,” Professor Green said. “And there’s almost no guidance at all from Chief Justice Roberts’ opinion.”
Dean Barnett added that the majority opinion “didn’t feel as much like law as it felt like trying to just press a certain policy view.”
The Chevron Deference Doctrine, established in the landmark 1984 Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., was a cornerstone of administrative law that directed courts to defer to a government agency’s interpretation of ambiguous statutory language as long as the interpretation was reasonable. The Supreme Court’s recent ruling in Loper Bright overturned that required deference.
And the majority opinion makes it difficult to predict the future course of government regulatory and enforcement authority, the legal scholars said.
Ruling on Constitutional Grounds Would Have Been 'Much More Disruptive'
Both experts noted with encouragement that the Court’s majority relied on the Administrative Procedures Act (APA) in overruling Chevron, and not on Article III constitutional grounds—which “would’ve been much more disruptive,” Dean Barnett said.
Professor Green added that “one big surprise is that Chief Justice Roberts’ opinion, although it says the words Article III, it actually relied on the APA. It’s a statutory opinion. And it claims that the APA, which had been hanging around this whole time since the 1940s…actually bans all of Chevron deference. The APA actually renders all of that illegal. And this is the (Court’s) fundamental basis for overturning this … 40-year-old opinion by the Supreme Court, applied time and time again.”
Because the Loper Bright ruling stands on statutory grounds, Congress could enact legislation reinstating Chevron, the experts noted. In fact, such a bill has been introduced, but its prospects are unclear.
“I’m glad they left this as a statutory matter so that Congress can deal with this either globally or in specific areas,” Dean Barnett said.
Skidmore Takes Center Stage
In negating Chevron, the majority opinion points to a different case, Skidmore v. Swift & Co., for guidance on how courts can exercise independent judgment in determining the meaning of statutory provisions consistent with the APA.
“So Chevron has been overruled, leaving in place Skidmore,” Professor Green said. “Skidmore, we are told, is appropriate under the APA.”
Under Skidmore, the court would “look at the thoroughness of the agency’s decision-making, the validity of its reasoning, the consistency of its reasoning, the contemporaneity of the interpretation with the statutory provision that had been enacted by Congress, and perhaps some other factors,” Dean Barnett said. “And of course, the catch-all in Skidmore, which it’s famous for—it’s a bit of a tautology: all of those other factors that persuade.”
The lack of clarity in Skidmore, along with ambiguous language in the Loper Bright opinion saying that courts should give federal agencies “due respect,” “the most respectful consideration,” and “great weight,” blurs the picture of what to expect going forward, they said.
“So there is a really, a very, very fuzzy, difficult set of words on the back end of the Roberts opinion that make it very, very challenging to understand where all this is headed,” Professor Green said. “I think that’ll be a pervasive theme as we move forward.”
“The unknown … that really is the effect,” Dean Barnett said. “Now that Chevron is gone, I think of it like an ecosystem where you have an organism that is removed. Well, what happens when that organism is removed? Does everybody still act the same or do the other organisms start acting in different ways?”
The Major Question Doctrine Lives On
Another aspect of that ecosystem is the Major Question Doctrine, a judicial doctrine that holds that, for questions of “vast economic and political importance,” any authority afforded to agencies must be clearly delegated by Congress. Dean Barnett and Professor Green expect the Major Question doctrine to play a larger role in light of Loper Bright.
“The big takeaway from all this is the Major Question Doctrine is alive and well,” Dean Barnett said. “We still don’t know exactly how it functions; it often seems to be in the eye of the beholder, whether good or bad, conservative, liberal. But it’s here to stay, and it’s likely going to have much more effect, I think, on major regulatory actions than the debate over whether or not Chevron or Loper Bright was the correct decision.”
This despite the main criticism regarding the Major Question Doctrine: “The Court … hasn’t told us what a ‘major question’ is,” Dean Barnett said. “How do you know whether something is of vast economic or political significance? There has been absolutely no further definition of what that means.”
Uncertainty: Not General Counsels' Friend
All these evolving factors add up to uncertainty. That’s a reason to question the conventional wisdom that businesses in regulated industries are happy about the demise of Chevron.
“I’m not sure this is good for regulated parties at all, along with other decisions that the Court has decided that concern adjudication and rulemaking,” Dean Barnett said. “I think what you’re going to see agencies doing is issuing much more in the realm of guidance documents as opposed to rulemakings or adjudications. And if I’m the general counsel of a regulated party, I don’t like that because I don’t have nearly as much certainty about what an agency is going to do.”
“As somebody who has practiced in this area for decades, what I have found is that our clients need certainty,” said Ballard Spahr Senior Counsel Alan Kaplinsky, former longtime leader of the firm’s Consumer Financial Services (CFS) Group. “Actually, certainty is more important to them than what the regulation actually says. They may not like the regulation, but if they know the odds are very, very high that the courts are going to uphold it, that’s what they want.
“They figure, ‘My competition is all subject to the same regulation that I’m subject to, and we all probably don’t like it, but we’ll all comply with it, and at least we’re not going to risk some draconian judgment in a class action lawsuit down the road.’ “
Richard J. Andreano, Jr., leader of the firm’s Mortgage Banking Group, said he and Ballard Spahr colleagues are closely watching cases challenging regulations from the Consumer Financial Protection Bureau (CFPB) now that Chevron is reversed—including when a statute authorizes the CFPB to adopt regulations to implement the law.
“So (what) this is really going to come down to in the post-Chevron world, with a direct congressional directive to adopt a rule and a congressional authorization to go beyond the statute, what are the courts going to do?” he said.
John L. Culhane, Jr., partner in the CFS Group, expressed a hope that has been voiced by many: that the ultimate effect of the demise of Chevron will be to spur agencies to engage in more thoughtful and specific rulemaking.
“I would really like to see this result in a more thorough and thoughtful analysis by federal agencies and the rulemaking process so that we don’t see … an agency just ignoring the provisions of its prior regulation and commentary,” he said. “Hopefully this will force agencies to be more thorough in their decision-making and more precise in their analysis.”
To listen to the full webinar recording, The Demise of the Chevron Deference Doctrine and the Impact on the Consumer Finance Industry, click here.
John L. Culhane, Jr., Richard J. Andreano, Jr. & Alan S. Kaplinsky
NCLC Asks the CFPB to Consider Residential Leases as Credit for Specific Purposes
The National Consumer Law Center is asking the CFPB, by way of a petition, for rulemaking that is long on policy arguments but woefully short on legal support, as we note below, to define residential leases as “credit” under the Equal Credit Opportunity Act (ECOA) and landlords as “creditors” for two purposes. One is for purposes of the adverse action notice requirement in the ECOA, and the other is for purposes of the ban against inclusion of medical debt on consumer reports in proposed § 1022.38 of Regulation V, which implements portions of the Fair Credit Reporting Act (FCRA).
“We are thrilled and excited that the CFPB has proposed a rule that would ban medical debt from appearing in credit reports used by creditors,” the NCLC said in the petition submitted to the agency earlier this month. “But we urge the CFPB to go further and extend this ban to credit reports used for tenant screening.”
The NCLC said that if medical debt is not a good predictor of creditworthiness, it is even less likely to be predictive of whether a person will pay their rent. “The fact that someone got sick should never be used to keep them from getting a roof over their heads,” the NCLC said, in its petition.
As required under Section 553(e) of the Administrative Procedure Act, the CFPB has a formal process that allows organizations and individuals to submit petitions asking the agency to address a specific issue.
The NCLC said that there are disparities in medical debt statistics when race and disability status are considered. The group cited its 2022 report that showed that 27.9 percent of Black households had medical debts, compared to 17.2 percent of white non-Hispanic households. The group said that the Census Bureau’s 2021 Survey of Income and Program Participation showed that 13 percent of consumers with disabilities had medical debts, compared with 6 percent of those without a disability.
“Given that the ECOA is an anti-discrimination statute, it is especially appropriate to prohibit the consideration of medical debt, with its significant disparities by race and disability,” the NCLC said. It is interesting to note that while there are anti-discrimination statutes that expressly include disability or handicap as a prohibited basis of discrimination, the ECOA is not one of them. (However, the ECOA does prohibit discrimination based on the receipt of public assistance, which prohibits discrimination, for example, based on the receipt of Social Security disability income.)
With regard to the adverse action notice request, the NCLC stated, “The purpose of the ECOA is to address financial discrimination in the marketplace. Congress designed the adverse action requirement to fulfill the dual goals of consumer protection and education.”
Consistent with the adverse action notice requirements for credit, the NCLC also asked the bureau to require landlords to provide reasons why an individual is rejected for property rental. The council noted that “There is a troubling lack of transparency in tenant screening regarding screening criteria.”
The NCLC said that aside from subsidized housing providers, there is no federal requirement for providers to provide screening criteria in advance or a statement of reasons when they deny an application. The NCLC asserted that the extension of the ECOA adverse action notice requirements to rental housing leases would provide much-needed transparency in tenant screening.
However, the NCLC’s legal support for the position that such an interpretation would be reasonable strikes us as less than robust. In effect, the NCLC argues that the term of a residential lease should be the controlling factor in the analysis.
The NCLC fails to distinguish a 1985 statement by the Federal Reserve Board, in the preamble to a final rule amending Regulation B, in which the Board stated its belief that “Congress did not intend the ECOA, which on its face applies only to credit transactions, to cover lease transactions unless the transaction results in a credit sale as defined in the Truth in Lending Act and Regulation Z.”
Moreover, the NCLC fails to even mention that the CFPB only recently rejected the argument it makes when it concluded as set in the preamble to its Small Business Lending Data Collection Rule that “[b]ased on its review of business purpose leases and its expertise with respect to the meaning of ‘credit’ … the term credit does not encompass … business leases” regardless of their duration.
Instead, the NCLC relies heavily on an unreported decision by the U.S. District Court for the Northern District of Illinois, Ferguson v. Park City Mobile Homes, holding that certain leases of mobile home lots are subject to the ECOA and Regulation B. But the Ferguson court’s decision is by no means comparable to the existing body of cases to the contrary and its superficial analysis was later rejected by the 7th Circuit in Laramore v. Richie Realty Management Company, holding that apartment leases are not subject to the ECOA and Regulation B and rejecting the argument made by the NCLC that the term of a residential lease should dictate a different result.
Under the circumstances, even if the CFPB were to adopt an amendment to Regulation B purporting to deem residential leases to be extensions of credit, it seems highly unlikely to us, in the wake of Loper Bright and the death of Chevron deference, that any reviewing court would uphold that decision.
John L. Culhane, Jr., Richard J. Andreano, Jr. & Alan S. Kaplinsky
DC Attorney General Settles With Four Title Company Joint Venture Organizers
The District of Columbia (DC) Office of the Attorney General (OAG) recently entered into settlements with four title companies in connection with title company joint ventures that included the companies and real estate agents as owners. The basic allegation of the OAG is that real estate agents were offered the opportunity to purchase interests in title company joint ventures, and that the referral of consumers to the ventures by the agents for title and escrow business violated the DC anti-inducement provision applicable to title insurance, and also the unfair and deceptive trade practice prohibition under the DC Consumer Protection Procedures Act (CCPA). It is interesting to note that, subject to conditions, the federal Real Estate Settlement Procedures Act (RESPA) contains an exception that expressly authorizes title company and other joint venture arrangements notwithstanding the RESPA prohibition on referral fee arrangements, and that DC’s similar anti-inducement provision applicable to title insurance simply does not have the express exception that is contained in RESPA.
In announcing the settlement, the OAG states that “[t]hese conflict of interest-plagued, anticompetitive arrangements limited District homebuyers’ ability to shop for the best price and service when purchasing title insurance and escrow services and hurt law-abiding competitors in the title insurance industry, in violation of the District’s [CCPA].” However, the OAG also admits that “[w]hile federal law allows for certain affiliated business arrangements that meet specific requirements, District law is more stringent and does not have such an exception.” Thus, what the OAG asserts to be an improper arrangement is an arrangement that RESPA actually authorizes.
The OAG also announced that the total amount that the four title companies will pay in connection with the settlements is $3.29 million, ranging from $65,000 to $1.9 million. We understand that other OAG investigations in this area are proceeding and that there may be additional settlements forthcoming.
On July 19, we blogged about comments Acting Comptroller Hsu made before the Exchequer Club on July 17 particularly his decision to review prior OCC preemption determinations in light of the U.S. Supreme Court’s recent opinion in Cantero v. Bank of America reversing the Second Circuit’s holding that a New York State law which requires the payment of 2 percent interest on mortgage escrow accounts is preempted because such law exercises control over a federal power, regardless of the magnitude of its effects. Cantero, 144 S. Ct. at 1296. According to the Supreme Court, the Second Circuit’s approach did not comply with the Dodd-Frank Act because, instead of conducting a “nuanced comparative analysis,” the Second Circuit “relied on a line of cases going back to McCulloch v. Maryland to distill a categorical test that would preempt virtually all state laws that regulate national banks, at least other than generally applicable laws such as contract or property laws.” Id at 1301.
On July 19, the Americans for Financial Reform Education Fund, the Center for Responsible Lending, Consumer Federation of America, Consumer Reports, National Association of Consumer Advocates, the National Consumer Law Center and Public Citizen (collectively, the Consumer Groups), in response to the Acting Comptroller’s speech, wrote a letter.
In their letter, the Consumer Groups demanded that the OCC “conduct a [case-by-case] nuanced assessment of those [state consumer financial] laws” and determine which ones “prevent or significantly interfere with the powers of national banks or federal savings associations.” The OCC must also “conduct the five-year review of any regulations and other determinations that remain on the books. The current preemption regulations impermissibly draw categorical lines. The OCC might prefer “a clearer preemption line… But Congress expressly incorporated Barnett Bank into the U.S. Code [,and] … Barnett Bank did not draw a bright line.” Instead, the OCC must “carefully account for and navigate [the Supreme] Court’s prior bank preemption cases” and “may find a state law preempted ‘only if,’ ‘in accordance with the legal standard’ from Barnett Bank, the law ‘prevents or significantly interferes with the exercise by the national bank of its powers.’”“ Cantero, 144 S. Ct. at 1301
On July 26, 2024, the Conference of State Bank Supervisors wrote a similar letter to the Acting Comptroller.
This may be one of the few times that we have agreed with the Consumer Groups about any policy interpretation. As we have stated in other blogs, the same preemption issue in pending before the Second, First, and Ninth Circuits. As things stand now, none of those courts will defer to the OCC’s preemption regulations because they are clearly not in accordance with Cantero, Barnett Bank and Dodd-Frank. If, however, the OCC conducts a “nuanced “ review of its preemption regulations in accordance with Cantero, Barnett Bank and Dodd-Frank, the circuit courts and the U.S. Supreme Court may give them Skidmore deference. We think that the end result of having the OCC conduct its review in advance of the three circuits deciding the preemption cases before them is likely to be more satisfactory to the industry than having the three courts decide the cases without the expert guidance from the OCC. We hope that the parties will jointly seek stays from the circuit courts and that the courts will grant stays pending the outcome of the OCC review.
Alan S. Kaplinsky, Joseph Schuster, and John L. Culhane, Jr.
We are very fortunate to have Nick St. John, Director of Federal Compliance at America’s Credit Unions, as our guest speaker in this podcast on the Notice of Proposed Rulemaking issued by the Financial Crimes Enforcement Network and federal banking regulators regarding the enhancement and modernization of anti-money laundering/countering the financing of terrorism (AML/CFT) compliance programs under the Bank Secrecy Act (BSA).
Nick joined the credit union industry in 2020 and continues to serve the industry with America’s Credit Unions as the Director of Federal Compliance, where he helps credit unions with a variety of compliance issues. He is particularly passionate about BSA compliance. Previously, St. John managed banking and finance content for Bloomberg Law. He graduated from The University of Georgia School of Law and has a bachelor’s degree from CUNY John Jay College.
Our discussion focuses on a variety of issues, including: the risk assessment process, the NPRM’s impact on the industry, “de-risking” strategies, technological innovation, feedback from law enforcement on the utility of BSA filings, hiring qualified compliance officers, and what it means for an AML/CFT program to be “effective.” We previously blogged on both NPRMs here and here.
We hope you enjoy the podcast.
Peter D. Hardy & Kaley N. Schafer
Defendant Challenges FDIC Enforcement Proceeding, Citing Jarkesy
In one of the first tests of the implications of the Jarkesy decision for other federal regulatory agencies, an individual accused by the FDIC of participating in fraudulent loan activity is asking a federal judge to dismiss the administrative proceeding the FDIC brought against him, contending, among other things, that he is being denied his right to a jury trial.
The FDIC has accused John C. Ponte of engaging in a pattern of misconduct in connection with a loan referral agreement, including by providing undisclosed bridge loans intended to make small businesses look more creditworthy when applying for SBA loans through Independence Bank of Rhode Island. (The bridge loans were then immediately repaid from the SBA loan proceeds, according to the FDIC.)
Ponte has now responded by challenging the constitutionality of the administrative proceeding based on the Supreme Court’s decision in Jarkesy.
“Being deprived of the right to a jury trial by an administrative agency charging fraud and seeking legal remedies in its in-house tribunal is a violation of a constitutional right,” Ponte’s attorneys wrote on Aug. 19, when they requested the U.S. District Court for the District of Columbia to issue a temporary restraining order while he also challenges the constitutionality of the FDIC and its ALJ program on other grounds. “The Jarkesy decision is fatal to the continued proceeding against Mr. Ponte before the FDIC. The enforcement proceeding violates the Seventh Amendment because it deprives Ponte of his right to a jury trial.”
In the Jarkesy case, decided in June, the Supreme Court said that the SEC’s use of administrative hearings before ALJs to pursue civil penalties for securities fraud was unconstitutional, since it deprived a person accused of violating agency rules the right to a jury trial. Rather than using ALJs, the SEC must file such cases in federal court, where defendants may request a jury trial, the court said.
Initially, the FDIC sought civil penalties against Ponte, but withdrew that request following the Jarkesy decision. The agency is now asking for restitution of more than $4.5 million—the amount of the loans, with some fees attached.
The agency, in its Aug. 23 response to the request for a TRO contended that “The salient difference between this case and Jarkesy is simple: the FDIC’s enforcement proceeding against Ponte involves restitutionary remedies, not damages or penalties. The FDIC seeks to require Ponte to repay the SBA loan applicants who were charged fees that violated the SBA’s regulations. That restitutionary remedy is equitable and does not require a jury.”
Appeals Court: No FCRA Informational Injury Standing
A job applicant who claims he was not fully informed about adverse information that appeared on a background check is not entitled to relief under the Fair Credit Reporting Act (the FCRA), the Sixth Circuit Court of Appeals ruled on Aug. 20.
The court cited the Supreme Court’s decision in TransUnion LLC v. Ramirez, in holding that Thomas Merck was not entitled to relief because he alleged no injury other than a statutory violation of the FCRA. In doing so, the appeals court affirmed the federal district court’s granting summary judgment for lack of standing.
Merck had applied for a position at Walmart and was offered a job as long as he had a successful background check. Merck failed to disclose a misdemeanor conviction, which showed up on his background report.
Walmart received a report indicating that Merck failed to disclose a negative item on his job application. Merck, however, received a report stating that he was not competitive for the job, and not disclosing a specific reason why.
Merck filed suit arguing that Walmart violated the FCRA by willfully failing to provide applicants with a full copy of their consumer report before taking adverse action against them.
The appeals court said that Merck had not established an “informational injury” based on Ramirez. The court said that even if Merck had had the full information, it would not have helped him, since his application was rejected because he failed to discuss his misdemeanor conviction.
“Merck has failed to point to sufficient evidence of adverse effects to survive summary judgment on his informational-injury theory of standing,” the appeals court said.
Alan S. Kaplinsky & John L. Culhane, Jr.
MBA Human Resources Symposium 2024
September 18-19, 2024 | MBA Headquarters, Washington, D.C.
Fair Labor Standards Act and 2024: New Rules, New Headaches
September 18, 2024 – 9:15 AM ET
Speaker: Meredith S. Dante
The Loan Originator Compensation and Other Regulatory and Legal Developments
September 18, 2024 – 1:00 PM ET
Speaker: Richard J. Andreano, Jr.
MBA Compliance and Risk Management Conference
September 22-24, 2024 | Grand Hyatt, Washington, D.C.
Compliance Conversations Track: RESPA Section 8
September 22, 2024 – 2:15 PM ET
Speaker: Richard J. Andreano, Jr.
Trending Compliance Issues Track: Servicing Compliance Part 1 Loss Mitigation Updates
September 24, 2024 – 9:15 AM ET
Speaker: Reid F. Herlihy
October 7-8, 2024 | AC Hotel, Washington, D.C.
October 7, 2024 – 3:30 PM ET
Speaker: Richard J. Andreano, Jr.
RESPA Compliance Conclave: Mastering Section 8 with Legal Experts
October 8, 2024 – 3:45 PM ET
Speaker: Richard J. Andreano, Jr.
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