Shows
Business BetterBridging Campuses: Legal Insights on Education Industry Consolidation – Privacy and Data SecurityThis episode is part of our “Bridging Campuses: Legal Insights on Education Industry Consolidation” series, where we discuss trends in higher education consolidation and closures, and outline common characteristics of at-risk institutions. In today’s episode, we discuss rapidly evolving state privacy laws, and compliance regulations such as FERPA and GLBA, that are creating a complex landscape in higher education. We also consider post-consolidation integration challenges, as new cybersecurity requirements need to be implemented across combined organizations. Laura Giles, a partner in Ballard Spahr’s Mergers and Acquisitions Group and a member of the Education Team, ho...2025-04-3014 min
Business BetterBridging Campuses: Legal Insights on Education Industry Consolidation - Intellectual PropertyThis episode is part of our “Bridging Campuses: Legal Insights on Education Industry Consolidation” series, where we discuss trends in higher education consolidation and closures, and outline common characteristics of at-risk institutions. In today’s episode, we focus on intellectual property developed at and managed by systems of higher education. We discuss how universities can best manage and leverage their portfolios, including intellectual property assets that they can package together to optimize and increase value of these assets. We also review federal funding and policies that could impact universities, such as potential changes to Bayh-Dole and diversity initia...2025-04-2318 min
Business BetterBridging Campuses: Legal Insights on Education Industry Consolidation – Mergers, Acquisitions, and AntitrustThis episode is part of our “Bridging Campuses: Legal Insights on Education Industry Consolidation” series, where we discuss trends in the consolidation and closures in higher education, and outline common characteristics of at-risk institutions. To kick-off this series, we focus on mergers and acquisitions, and antitrust considerations in the higher education industry. We explore obstacles that institutions face when considering consolidation, such as cultural and academic alignment, and regulatory approvals. We also discuss the impact of antitrust regulations, including changes to the Hart-Scott-Rodino filing requirements. Bill Rhodes, a partner and leader of Ballard Spahr’s Educat...2025-04-0224 min
Business BetterAn Introduction to Bridging Campuses: Legal Insights on Education Industry ConsolidationThis episode is an introduction of our new series “Bridging Campuses: Legal Insights on Education Industry Consolidation,” where we will discuss trends in the consolidation and closures in higher education, and outline common characteristics of at-risk institutions. In today’s episode, we focus on key factors driving these trends, including declines in demographic and enrollment, and the outline the challenges institutions face in making difficult strategic decisions due to competing interests of various constituencies. Bill Rhodes, a partner and leader of Ballard Spahr’s Education Industry Team, and Laura Giles, a partner in Ballard Spahr’s Mergers...2025-04-0113 min
Consumer Finance MonitorThe CFPB’s Proposed Data Broker Rule In today’s episode, we discuss the CFPB’s recent proposed data broker rule—a proposal that would greatly expand the reach of the Fair Credit Reporting Act. On December 3, the CFPB issued a proposed rule promoted as one that would require companies that sell data about income or financial tier, credit history, credit score or debt payments to comply with the Fair Credit Reporting Act. The proposal would make it clear that when data brokers sell certain sensitive consumer information, they are “consumer reporting agencies” under the FCRA. That would require them to comply with accuracy requiremen...2025-01-161h 07
Consumer Finance MonitorCFPB’s Proposed Mortgage Servicing Rule Amendments: Understanding the Impact on Loss Mitigation, Foreclosure, and Language AccessThis summer, the CFPB issued its long-awaited proposed rule amending the mortgage servicing rules under Regulation X, with a focus on loss mitigation procedures, foreclosure protections, and language access. These changes were previewed by the CFPB as a means to streamline, and add flexibility to, the loss mitigation process, in light of the industry’s successful efforts during the COVID-19 pandemic. However, the CFPB’s proposal also significantly expands borrower protections during the loss mitigation process, creates extensive new operational challenges for servicers, and leaves many concerning questions based on the proposed language. The mortgage servicing industry resp...2024-11-0754 min
Consumer Finance MonitorHave State-Chartered, FDIC-Insured Banks Finally Achieved Interstate Usury Parity with National Banks?In today’s podcast, which repurposes a recent webinar, we examine the impact, if any, of a landmark opinion rendered by Judge Daniel Domenico of the Federal District Court for the District of Colorado in a case challenging recently enacted Colorado legislation on interstate loans made from outside Colorado to Colorado residents. We also address the effects this decision and the outcome of this litigation may have on interstate rate exportation by state-chartered banks across the country. We open with a brief history of the interest rate exportation authority of national and state-chartered banks, and theories developed by...2024-10-031h 05
Consumer Finance MonitorRegulators Escalate Focus on the Risks of Bank Relationships with Fintechs and Other Third PartiesOn July 25, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, and the Office of the Comptroller of the Currency (collectively, the agencies) issued a “Joint Statement on Banks’ Arrangements with Third Parties to Deliver Bank Deposit Products and Services” to “note potential risks related to arrangements between banks and third parties to deliver bank deposit products and services to end users”. On the same day, the agencies issued a “Request for Information on Bank-Fintech Arrangements Involving Banking Products and Services Distributed to Consumers and Businesses” (the RFI) The RFI “solicits input on the nature of...2024-09-2655 min
Consumer Finance MonitorThe Demise of the Chevron Doctrine – Part IIOn June 28, in Loper Bright v. Raimondo, et al., the Supreme Court overturned the Chevron deference doctrine, a long-standing tenet of administrative law established in 1984 in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. This doctrine directed courts to defer to a government agency’s interpretation of ambiguous statutory language as long as the interpretation was reasonable. However, legal scholars now express widely divergent views as to the scope and likely effects of Loper Bright’s overruling of the Chevron doctrine on the future course of regulatory agency interpretive and enforcement authority. In this two...2024-09-191h 02
Consumer Finance MonitorThe Demise of the Chevron Doctrine Part IOn June 28, in Loper Bright v. Raimondo, et al., the Supreme Court overturned the Chevron deference doctrine, a long-standing tenet of administrative law established in 1984 in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. This doctrine directed courts to defer to a government agency’s interpretation of a statute if the statute was ambiguous regarding, or simply did not address, the issue before the court, as long as the interpretation was reasonable. However, legal scholars now express widely divergent views as to the scope and likely effects of Loper Bright’s overruling of the Chev...2024-09-1244 min
Consumer Finance MonitorThe Cantero Opinion: The Supreme Court Leaves National Bank Preemption in LimboOn 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% 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...2024-09-051h 03
Consumer Finance MonitorThe CFPB’s Registry of Nonbanks and Circular that Certain Contract Terms Violate LawThe 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...2024-08-2958 min
Consumer Finance MonitorWhy do Fintechs Want to Become Banks?A great number of fintechs are contemplating owning a bank or obtaining a banking charter—either a national bank charter, a state bank charter or a special purpose charter. In this episode, we are joined by our special guest Michele Alt, co-founder and partner of Klaros Group, an investment and advisory firm, and Scott Coleman, a partner in our Consumer Financial Services Group who leads our banking practice. Both Michele and Scott help banks and fintechs navigate the complicated regulatory issues that are critical to their growth and sustainability. We discuss the reasons why fintechs might want to...2024-08-2259 min
Consumer Finance MonitorShould Medical Debt Be Included in Creditworthiness Measures?The CFPB and state regulators and legislators have medical debt in their crosshairs. In this episode, we’re joined by Chris Eastman, CEO of the Pendrick Group, a Cerberus portfolio company that specializes in financial services solutions for healthcare companies. We discuss the differences between medical debt and other types of debt, as well as how states have been regulating medical debt including the collection of medical debt. Mr. Eastman discusses his company’s efforts to provide cash flows into hospitals and other healthcare providers that are operating at razor-thin margins. We also discuss the CFPB’s assertion that medica...2024-08-1546 min
Consumer Finance MonitorCredit Card and Other Rewards Programs in the CrosshairsRewards programs drive consumer choice and activity in connection with credit cards and other financial services. The CFPB has reported the most important element by far that influences a consumer’s decision to apply for a specific credit card is the rewards program associated with the card. Further, rewards can affect the consumer's choice at the point of sale as to which card to use. In this podcast episode, which repurposes a recent webinar, we explore recent trends in scrutiny of credit card rewards programs and other rewards programs by state and federal regulators and lawmakers. We al...2024-08-0854 min
Business BetterSustainability Spotlight – A Conversation with Vicinity EnergyThis episode is part of our Sustainability Spotlight series, which highlights the sustainability efforts that businesses are making to combat climate change and other environmental challenges. This episode features a discussion with Matt O'Malley, Chief Sustainability Officer, and Jeannie Morris, Vice President of Government Affairs at Vicinity Energy. Vicinity Energy is the largest owner and operator of district energy systems in the U.S. and the first in the nation to offer carbon-free eSteam™ to rapidly decarbonize customers and achieve net zero carbon emissions across all operations. Our guests share the ways Vicinity is combating the climate cr...2024-08-0636 min
Consumer Finance MonitorUniversal Injunctions, Associational Standing, and Forum Shopping - Their Effects on Legal Challenges to RegulationsSpecial guest Professor Alan Trammell of Washington and Lee University School of Law joins us today for a deep dive into universal injunctions and the related topics of associational standing and judicial forum shopping, and how these elements come into play in litigation challenging regulations and other government policies and actions. Recent developments in litigation critical to the consumer financial services industry have brought universal injunctions into the spotlight. We begin today’s episode by providing a working definition of a universal injunction, some historical background, and examples that illustrate the benefits, effects and power of this sw...2024-08-0154 min
Business BetterCyber Adviser – A Comparison of AI Regulatory FrameworksThis episode is part of our Cyber Adviser series, where we discuss emerging issues in the world of privacy and data security. Today, we’re joined by Paolo Sbuttoni, a partner at Foot Anstey with years of experience specializing in technology and data. We compare the AI regulatory landscape in the European Union, the United Kingdom, and the United States. We also provide insight on the scope of recent regulations that have been enacted in the EU and U.K., and those that will be enacted on a state by state basis in the U.S. 2024-07-3037 min
Consumer Finance MonitorBuy Now, Pay Later – Evolution, Regulation, and What You Need to Know about the CFPB Interpretive Rule Effective July 30“Buy Now, Pay Later” (BNPL) products emerged relatively recently as a new approach enabling consumers to enjoy the ability to make a purchase and then pay for it over time. Today’s episode, during which we explore the evolution of BNPL products and important recent developments in BNPL regulation, is hosted by Alan Kaplinsky, former practice leader and current Senior Counsel in Ballard Spahr’s Consumer Financial Services Group, and features Ballard Spahr Partners Michael Guerrero and Joseph Schuster. We first discuss the structure and mechanics of BNPL products, and the benefits they afford to consumers, merchants, and cred...2024-07-251h 00
Consumer Finance MonitorInterest Rate Exportation Under Attack Part IIThe 1978 landmark opinion in Marquette National Bank v. First of Omaha Service Corp held that under the National Bank Act, a national bank has the right to export the interest rate authorized by the state where the bank is located to borrowers located elsewhere. Section 521 of the Depository Institutions Deregulation and Monetary Control Act of 1980 ("DIDMCA") conferred equivalent rate exportation powers on state-chartered, FDIC-insured banks. These interest rate exportation powers (which also extend to certain fees), coupled with technological advances in recent years and the advent of “bank-model” and “banking as a service” (BaaS) programs, have created a robust...2024-07-1841 min
Consumer Finance MonitorInterest Rate Exportation Under Attack Part IThe 1978 landmark opinion in Marquette National Bank v. First of Omaha Service Corp held that under the National Bank Act, a national bank has the right to export the interest rate authorized by the state where the bank is located to borrowers located elsewhere. Section 521 of the Depository Institutions Deregulation and Monetary Control Act of 1980 ("DIDMCA") conferred equivalent rate exportation powers on state-chartered, FDIC-insured banks. These interest rate exportation powers (which also extend to certain fees), coupled with technological advances in recent years and the advent of “bank-model” and “banking as a service” (BaaS) programs, have created a robust...2024-07-1129 min
Consumer Finance MonitorCalifornia Consumer Finance Law - Hot Topics and Recent DevelopmentsCalifornia frequently is in the vanguard of consumer financial issues and legislation, foreshadowing trends that may spread to other states. Today’s episode, during which we explore important hot topics and recent developments in California consumer finance law, is hosted by Ballard Spahr partner Melanie Vartabedian, and features Partners Michael Guerrero and Joel Tasca, and Of Counsel John Kimble. We first discuss what the future likely holds for proposed rules issued under the California Consumer Financial Protection Law (CCFPL) by the California Department of Financial Protection and Innovation (DFPI). The proposed rules include complex registration and reporting re...2024-07-0354 min
Consumer Finance MonitorConsumer Financial Protection Bureau Wins in Supreme Court But Can the Fed Continue to Fund the CFPB Without Earnings?Special guest Alex J. Pollock, Senior Fellow with the Mises Institute and former Principal Deputy Director of the Office of Financial Research in the U.S. Treasury Department, joins us to discuss his recent blog post published on The Federalist Society website in which he urges Congress to look into the question of whether the Federal Reserve can lawfully continue to fund the CFPB if (as now) the Fed has no earnings. We begin with a review of the Supreme Court’s recent decision in CFSA v. CFPB which held that the CFPB’s funding mechanism does not violate the...2024-06-2756 min
Consumer Finance MonitorWhat Banking Leaders Need to Know About the U.S. Supreme Court Ruling That the CFPB’s Funding Mechanism is Constitutional Part IIOn May 16, 2024, the U.S. Supreme Court ruled that the CFPB’s funding mechanism does not violate the Appropriations Clause of the U.S. Constitution. This two-part episode repurposes a recent webinar. In Part II, we first discuss the CFPB’s launch of Fair Credit Reporting Act rulemaking, proposed rule to supervise larger payment providers, proposed rule on personal financial data rights, and interpretive rule on buy-now-pay-later. We next discuss the operation of the Congressional Review Act and its potential impact on final CFPB rules if the November 2024 election results in a change in Administrations. We then discuss the impac...2024-06-2033 min
Consumer Finance MonitorWhat Banking Leaders Need to Know About the U.S. Supreme Court Ruling That the CFPB’s Funding Mechanism is Constitutional Part IOn May 16, 2024, the U.S. Supreme Court ruled that the CFPB’s funding mechanism does not violate the Appropriations Clause of the U.S. Constitution. This two-part episode repurposes a recent webinar. In Part I, we first discuss the SCOTUS decision, the status of the CFPB’s payday lending rule that was at issue in the underlying case, and a potential new challenge to the CFPB’s funding that has been the focus of recent attention. We then discuss four cases still pending before SCOTUS in which the decisions could impact the CFPB. Next, we discuss the pending lawsuits challe...2024-06-1352 min
Consumer Finance MonitorDid the Supreme Court Hand the CFPB a Pyrrhic Victory?Special guest Professor Hal Scott of Harvard Law School joins us today as we delve into the thought-provoking question of whether the Supreme Court’s recent decision in the landmark case of CFSA v. CFPB really hands the CFPB a winning outcome, or does the Court’s validation of the agency’s statutory funding structure simply open up another question: whether the CFPB is legally permitted to receive funds from the Federal Reserve if (as now) the Fed has no earnings. In other words, was the outcome in CFSA v. CFPB an illusory Pyrrhic victory for the CFPB? And, what h...2024-06-0643 min
Consumer Finance MonitorAn Insider’s View of the CFPBOur special guest this week is John Tonetti. After decades as an industry risk executive, Mr. Tonetti joined the Consumer Financial Protection Bureau (CFPB), where he worked for many years in roles including Debt Collection Program Manager, senior policy analyst, and internal consultant on numerous issues including debt collection and risk management policies and examinations. In this episode, Mr. Tonetti shares his perspectives from the point of view of an agency insider who served under every CFPB director and acting director in office to date. We first discuss the pitfalls of the CFPB’s leadership structure, which gi...2024-05-3059 min
Consumer Finance MonitorBanks and Their Customer Relationships: What is the Appropriate Role of Bank Regulators?Our special guests are Professor Dru Stevenson, South Texas College of Law in Houston, and Brian Knight, Senior Research Fellow, Mercatus Center at George Mason University. In this episode, we first discuss the history of “Operation Chokepoint,” the Obama-era initiative in which the FDIC and other federal banking agencies targeted banks serving payday lenders and companies engaged in other “disfavored” industries. We then devote the remainder of the episode to a discussion of what is the appropriate role of bank regulators with regard to banks’ customer relationships, with our guests presenting opposing views on how regulators should use their authority t...2024-05-2358 min
Consumer Finance MonitorA Discussion of Industry and Consumer Perspectives on Mass ArbitrationOur special guest is Professor Richard Frankel of Drexel University Thomas R. Kline School of Law and the author of a recent article on mass arbitration. In this episode, we first discuss what mass arbitration is, how it relates to class action lawsuits, and the role of public enforcement. We then discuss the industry and consumer positions on the use of mass arbitration and the empirical study conducted by Prof. Frankel for his article. We conclude with a discussion of steps that companies using arbitration provisions in their consumer agreements can take to respond to the use of mass...2024-05-161h 02
Consumer Finance MonitorA Close Look at the Consumer Financial Protection Bureau’s Proposal to Supervise Large Nonbank Providers of Digital Wallets and Payment AppsOur special guest is Brian Johnson, Managing Director of Patomak Global Partners and former CFPB Deputy Director. In Nov. 2023, the CFPB issued a proposed rule to supervise nonbank companies that qualify as larger participants in a market for “general-use digital consumer payment applications.” We first discuss the CFPB’s authority to supervise nonbank entities considered to be “a larger participant of a market for other consumer financial products or services” and its previous use of that authority. We look next at how the CFPB has defined the relevant market in its current proposal and its rationale for the proposal. We then dis...2024-05-0953 min
Consumer Finance MonitorA Close Look at the Consumer Financial Protection Bureau’s Final Credit Card Late Fee Rule: Have Cardholders Been Dealt a Winning or Losing Hand?Our special guest is Andrew Nigrinis of Legal Economics LLC and former CFPB enforcement economist. The CFPB’s final credit card late fee rule lowers the safe harbor late fee amount that card issuers other than “smaller card issuers” can charge to $8. We first discuss how the final rule differs from the proposed rule and the existing rule, who are “smaller issuers” not subject to the lower safe harbor amount, and the changes made by the final rule for larger issuers. We then look at issuers’ ability to determine late fees based on their costs, permissible fees other than late fees, t...2024-04-251h 07
Consumer Finance MonitorAn Update on Earned Wage Access ProductsOur special guest is Ian Moloney, Senior Vice President and Head of Policy and Regulatory Affairs with the American Fintech Council (AFC). After reviewing how EWA products are used by consumers and the differences between employer- and provider-based products, we discuss the regulatory challenges faced by the EWA industry, the regulatory approaches states have taken to EWA, actions taken by the Consumer Financial Protection Bureau related to EWA, and proposed federal legislation dealing with EWA. We conclude with a discussion of AFC’s letter to the Bureau urging the Bureau to develop a regulatory approach to EWA. Al...2024-04-1851 min
Consumer Finance MonitorA Close Look at the Consumer Financial Protection Bureau’s Proposed Rules on Overdraft and Nonsufficient Funds FeesOur special guest is David Pommerehn, SVP, General Counsel, Head of Regulatory Affairs at the Consumer Bankers Association. In January 2024, the CFPB proposed two new rules: one restricting overdraft fees and the other prohibiting NSF fees on certain declined transactions. The proposals are among the CFPB’s latest moves in furtherance of the Biden Administration’s “junk fees” agenda. In this episode, which repurposes a recent webinar, we discuss the key provisions of each proposal and entities covered, the CFPB’s justification for each proposal, the legal authority relied on by the CFPB for each proposal, business practices impacted by the pro...2024-04-1151 min
Consumer Finance MonitorThe Federal Trade Commission: Looking Back at 2023 and Looking Ahead to 2024 and BeyondOur special guest is Malini Mithal, Associate Director of the FTC’s Division of Financial Practices. In this episode, which repurposes a recent webinar, we review highlights of FTC regulatory and enforcement activity in 2023 directed at protecting consumers and small businesses and discuss what to expect from the FTC in 2024 and beyond. After reviewing the FTC’s authority, we discuss important consent orders and enforcement litigation involving: alternate financing mechanisms such as cash advance apps and income share agreements; discriminatory financing and other practices, including the FTC’s use of unfairness; small business financing such as merchant cash advances; telema...2024-04-041h 00
Consumer Finance MonitorThe Consumer Financial Protection Bureau’s Use of Unfairness to Regulate Discriminatory Conduct: A Discussion of the Consumer and Industry PerspectivesOur special guest is Jeff Sovern, Professor at the University of Maryland Francis King Carey School of Law. In March 2022, the CFPB announced that it had revised its exam manual to instruct its examiners to apply the “unfairness” standard under the Consumer Financial Protection Act to conduct considered to be discriminatory, whether or not it is covered by federal laws that expressly prohibit discrimination. The changes were subsequently vacated by a federal district court in a lawsuit brought by several trade groups challenging the changes and the Fifth Circuit has stayed the CFPB’s appeal from that decision pending the U...2024-03-281h 02
Business BetterCyber Adviser – Your Data, My Headache: Consumer Health Data LawsThis episode is part of our Cyber Adviser series, where we discuss emerging issues in the world of privacy and data security. Today, our lawyers discuss new state consumer health data laws in Connecticut, Nevada, and Washington, highlighting the laws’ scope, obligations for regulated entities, and enforcement mechanisms. Greg Szewczyk, Leader of Ballard Spahr’s Privacy and Data Security Group, and Kelsey Fayer, an Associate in the Privacy and Data Security Group, host the discussion.2024-03-2618 min
Consumer Finance MonitorTelephone Consumer Protection Act Update: Developments Impacting Consent and Lead GenerationNew Federal Communications Commission TCPA rules will mean big changes for businesses, particularly comparison shopping websites, lead generators, and other companies that regularly contact consumers via phone or text message. This episode repurposes a recent webinar. After reviewing TCPA consent requirements for calls and texts and exceptions, we look at the impact of the U.S. Supreme Court’s 2021 Facebook decision on TCPA compliance. We then look at post-Facebook TCPA litigation, post-Facebook state law litigation involving unwanted calls and texts, and recent state legislative developments. We follow with a discussion of the FCC’s new TCPA rules addressing (1) how cons...2024-03-2153 min
Business BetterSustainability Spotlight – A Conversation with AramarkThis is the first episode in our new Sustainability Spotlight series, highlighting the sustainability efforts that businesses are taking to combat climate change and other environmental challenges. This episode features a discussion with Alan Horowitz, Vice President of Sustainability at Aramark, a leading global provider of food and facilities services. Alan provides insight on Aramark’s “Be Well. Do Well.” ESG platform. We also discuss Aramark’s goal to reach net-zero emissions by 2050, and what they’re focusing on in order to reach this goal. Brendan K. Collins, a partner in Ballard Spahr’s Philadelphia Office and l...2024-03-1931 min
Consumer Finance MonitorThe U.S. Supreme Court Hears Two Cases in Which the Plaintiffs Seek to Overturn the Chevron Judicial Deference Framework: Who Will Win and What Does It Mean? Part IIOn January 17, 2024, the U.S. Supreme Court heard oral argument in two cases in which the question presented is whether the Court should overrule its 1984 decision in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. That decision produced what became known as the "Chevron judicial deference framework" - the two-step analysis that courts typically invoke when reviewing a federal agency’s interpretation of a statute. This two-part episode repurposes our webinar held in February 2024 and brings together as our guests three renowned administrative law professors, Kent Barnett, Jack Beermann, and Craig Green, and a leading Supreme Co...2024-03-1444 min
Consumer Finance MonitorThe U.S. Supreme Court Hears Two Cases in Which the Plaintiffs Seek to Overturn the Chevron Judicial Deference Framework: Who Will Win and What Does It Mean? Part IOn January 17, 2024, the U.S. Supreme Court heard oral argument in two cases in which the question presented is whether the Court should overrule its 1984 decision in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. That decision produced what became known as the "Chevron judicial deference framework" - the two-step analysis that courts typically invoke when reviewing a federal agency’s interpretation of a statute. This two-part episode repurposes our webinar held in February 2024 and brings together as our guests three renowned administrative law professors, Kent Barnett, Jack Beermann, and Craig Green, and a leading Supreme Co...2024-03-0746 min
Business BetterTax Audits, Investigations, and Global Enforcement: A Conversation with IRS Special Agent Jonathan SchnatzIn this episode, we are joined by Special Agent Jonathan Schnatz, Senior Analyst with IRS Criminal Investigation. Special Agent Schnatz will discuss his work with an international law enforcement and tax compliance group, and how that work directly impacts U.S. businesses and individuals. Peter Hardy and Chris Jones, co-leaders of Ballard Spahr's Tax Controversy team, are joined by team member Siana Danch to lead this discussion.2024-03-0533 min
Consumer Finance MonitorHow the Consumer Financial Protection Bureau Can Advance the Use of Artificial Intelligence in Consumer Financial ServicesOur special guest is Brad Blower, Principal and Founder of Inclusive-Partners LLC, and author of a recent blog post titled “The CFPB Has An Opportunity to Greatly Advance the Ethical and Non-Discriminatory Use of AI in Financial Services and Should Take It.” We first discuss the lack of clear guidance from the CFPB on the non-discriminatory use of AI and the possible reasons for the CFPB’s apparent reticence to provide more specific guidance. We then identify the specific areas where additional guidance from the CFPB could be helpful and specific steps the CFPB could take to address the lack o...2024-02-2943 min
Consumer Finance MonitorThe CARS Rule: What You Need To Know About the Federal Trade Commission’s Final Motor Vehicle Dealer Trade Regulation Rule, Part IIOur special guest is Richard (“Rick”) Hackett, former Assistant CFPB Director responsible for auto finance regulation and presently a member of the Board of F&I Sentinel, which supports lender compliance in the auto finance and insurance industry. In December 2023, the FTC announced its final Combatting Auto Retail Scams Rule, otherwise known as the “CARS Rule,” which sets new requirements on the sale, financing, and leasing of new and used vehicles by motor vehicle dealers. This two-part podcast episode repurposes a recent webinar. In Part II, we begin with a discussion of how the Rule impacts the sale of add-on p...2024-02-2246 min
Consumer Finance MonitorThe CARS Rule: What You Need To Know About the Federal Trade Commission’s Final Motor Vehicle Dealer Trade Regulation Rule, Part IOur special guest is Richard (“Rick”) Hackett, former Assistant CFPB Director responsible for auto finance regulation and presently a member of the Board of F&I Sentinel, which supports lender compliance in the auto finance and insurance industry. In December 2023, the FTC announced its Combatting Auto Retail Scams Rule, otherwise known as the “CARS Rule,” which sets new requirements on the sale, financing, and leasing of new and used vehicles by motor vehicle dealers. This two-part podcast episode repurposes a recent webinar. In Part I, we begin with a discussion of the legal challenge filed by the National Automobile Dealers...2024-02-1549 min
Business BetterCyber Adviser – Financial Services 2024 Privacy and Cybersecurity PreviewThis episode is part of our Cyber Adviser series, where we discuss emerging issues in the world of privacy and data security. The privacy and cybersecurity landscape is evolving in the financial sector, from more specific data security reporting requirements, to potential data subject rights and the use of artificial intelligence. Today, our lawyers will highlight key developments and provide practical insights on how to stay ahead of the regulatory, litigation, and hacker threats. Greg Szewczyk, Leader of Ballard Spahr’s Privacy and Data Security Group, and Sarah Dannecker, an Associate in the Privacy and Da...2024-02-0625 min
Consumer Finance MonitorNavigating the Consumer Financial Protection Bureau’s Proposed Personal Financial Data RuleIn October 2023, the CFPB issued a groundbreaking proposal on personal financial data. This episode, which repurposes a webinar, begins with a review of the background of the rulemaking. We then discuss key provisions of the proposal, including the entities, data, and financial products and services that would be covered, the obligations that would be imposed on covered entities, and exceptions to the proposal’s requirements. We also look at the compliance timeline, practical takeaways, and the proposal’s operational impact on covered entities. We conclude with a discussion of the CFPB’s advisory opinion dealing with consumer requests for inform...2024-02-0153 min
Consumer Finance MonitorUnderstanding the Federal Reserve Board Proposal to Lower Interchange Fee Cap for Debit Card TransactionsOur special guest is Zarik Khan, Founder of Finsolute Advisors. In October 2023, the Federal Reserve Board issued a proposal to lower the maximum interchange fee that a large debit card issuer can receive for a debit card transaction. We first look at the roles of the various parties involved in a typical transaction in which a consumer uses a debit card to make a purchase from a merchant and the various fees imposed in connection with the transaction. We then discuss how the current debit interchange fee cap contained in the Fed’s final rule implementing the Durbin Amendment (Re...2024-01-2559 min
Business BetterUnderstanding the Federal Reserve Board Proposal to Lower Interchange Fee Cap for Debit Card TransactionsOur special guest is Zarik Khan, Founder of Finsolute Advisors. In October 2023, the Federal Reserve Board issued a proposal to lower the maximum interchange fee that a large debit card issuer can receive for a debit card transaction. We first look at the roles of the various parties involved in a typical transaction in which a consumer uses a debit card to make a purchase from a merchant and the various fees imposed in connection with the transaction. We then discuss how the current debit interchange fee cap contained in the Fed’s final rule implementing the Durbin Amendment (Re...2024-01-2559 min
Consumer Finance MonitorForeclosing on “Zombie” Mortgages: What Lenders and Servicers Should KnowWe discuss various issues faced by lenders and servicers when attempting to foreclose on “zombie” mortgages, meaning second mortgages on which the borrower has not made a payment for a considerable length of time and the lender or servicer has not previously taken action to foreclose. First, we look at the CFPB’s May 2023 advisory guidance on the enforcement of time-barred mortgage loans. We then discuss defenses to foreclosure raised by borrowers, specifically that the loan was charged-off, discharged in a bankruptcy, or time-barred, and look at decisions in the states of Washington, Colorado, and Utah in which courts have a...2024-01-1125 min
Consumer Finance MonitorA Look at a New Approach to Consumer ContractsOur special guest is Andrea Boyack, Professor, University of Missouri School of Law. We first discuss the principles that underlie our current system of consumer contracts and the system’s role in promoting transactional efficiency and other objectives. Prof. Boyack then provides her views on why the application of traditional contract law to the modern consumer contract context is not in the best interests of consumers and offers a different approach to consumer contracts in which a consumers can shape the terms of their contracts. In particular, she explains how this approach would treat a consumer’s choice to do b...2024-01-041h 02
Consumer Finance MonitorCommunity Reinvestment Act Reform: A Close Look at the Final RuleOn October 24, 2023, the OCC, FDIC and Board of Governors of the Federal Reserve System jointly adopted final amendments to their regulations implementing the Community Reinvestment Act of 1977 (CRA). In this episode, which repurposes a webinar, we are joined by guest speaker Kenneth H. Thomas, Ph.D., Founder/CEO of Community Development Fund Advisors. After reviewing the background of the adoption of the CRA and implementing rules by the banking agencies, we discuss the key elements of the final rule. We look at the requirement for banks to delineate assessment areas in which their CRA performance will be evaluated, the...2023-12-281h 15
Consumer Finance MonitorWhat the Recent Developments in Federal Preemption for National and State Banks Mean for Bank and Nonbank Consumer Financial Services ProvidersProviders of consumer financial services that rely on federal preemption to charge customers uniform interest rates and fees on a nationwide basis are currently facing a series of legislative and litigation challenges. In this episode, which repurposes a recent webinar, we first discuss the U.S. Supreme Court’s grant of certiorari in Cantero v. Bank of America on the question whether the National Bank Act preempts state laws requiring the payment of interest on mortgage escrow accounts and look at the competing arguments and preemption standards under consideration. We then look at the Dodd-Frank Act’s provisions on fede...2023-12-211h 04
Consumer Finance MonitorThe Biden Administration’s “Junk Fees” Initiative Continues: What the Latest Actions Mean for the Consumer Financial Services and Rental Housing Industries, Part IIThis two-part podcast repurposes our most recent webinar on the latest salvo of actions in the Biden Administration’s initiative directed at combatting so-called “junk fees.” Launched in January 2022, the initiative shows no signs of abating. In Part II, we first look at the Consumer Financial Protection Bureau’s advisory opinion on fees charged by large banks and credit unions to respond to information requests, including the Bureau’s discussion of non-fee obstacles such as chatbots that could unlawfully impede consumers’ ability to make an information request. We then discuss the CFPB’s second edition of Supervisory Highlights foc...2023-12-1444 min
Consumer Finance MonitorThe Biden Administration’s “Junk Fees” Initiative Continues: What the Latest Actions Mean for the Consumer Financial Services and Rental Housing Industries, Part IThis two-part podcast repurposes our most recent webinar on the latest salvo of actions in the Biden Administration’s initiative directed at combatting so-called “junk fees.” Launched in January 2022, the initiative shows no signs of abating. In Part I, we first review the background of the initiative, the range of fees the Administration has labeled “junk fees,” and discuss the Administration’s focus on competition and its related guidance and directives to federal agencies. We then take a close look at the Federal Trade Commission’s proposed rule to regulate “junk fees,” including the rationale for the FTC’s decision to engage i...2023-12-0746 min
Consumer Finance MonitorA Close Look at the Federal Trade Commission’s Proposed Rule to Regulate “Junk Fees”In October 2023, the FTC issued a proposed “Rule on Unfair or Deceptive Fees” targeting so-called “junk fees.” Our special guest is Stacy Cammarano, Staff Attorney in the FTC’s Bureau of Consumer Protection, Division of Advertising Practices, and a lead attorney on the proposal. After reviewing how the FTC has previously used its enforcement authority to address “junk fees,” we discuss some of the key issues identified in comments received by the FTC on its October 2022 Advance Notice of Proposed Rulemaking on “junk fees.” We then look at the price and fee disclosures that would be required by the proposal, the busi...2023-11-2848 min
Consumer Finance MonitorConsumer Finance Impact of a CFPB Run AmokSwitching from his usual role as frequent host of the Consumer Finance Monitor Podcast, Alan Kaplinsky, Senior Counsel in and former Practice Group Leader of Ballard Spahr’s Consumer Financial Services Group, was recently the special guest of Bloomberg Intelligence analysts Elliott Stein and Nathan Dean on their podcast, Votes and Verdicts. The episode begins with a discussion of (1) the CFPB’s impact on consumer financial services providers, (2) how, since the CFPB’s creation in 2010, its three Directors have used the CFPB’s supervisory, enforcement, and regulatory authorities, and (3) the differences in the three Directors’ approaches. This is followed by a discu...2023-11-221h 01
Consumer Finance MonitorProhibited by Law and Totally Ineffective—Just Two of the Many Reasons Why the CFPB Should Deny the Petition for Rulemaking on Post-Dispute Consumer Arbitration AgreementsOur special guest is David Sherwyn, Professor of Law at Cornell University's School of Hotel Administration. In Sept. 2023, a group of consumer advocate organizations filed a Petition for Rulemaking with the CFPB that would prohibit the use of pre-dispute arbitration clauses in consumer contracts in favor of arbitration clauses that would permit consumers to choose between arbitration and litigation only after a dispute has arisen. In response, the CFPB indicated it is carefully considering the petition, and will be opening a public docket and taking comment from the public on the petition. We first discuss the results...2023-11-161h 03
Consumer Finance MonitorA Deep Dive Into the Consumer Financial Protection Bureau’s Policy Statement on Abusive Acts and Practices Under the Consumer Financial Protection ActThe CFPB recently issued a policy statement in which it provided a framework for determining what constitutes abusive conduct under the CFPA. After reviewing the definition of abusive in the CFPA and the historical background of the adoption of an abusive standard in the CFPA, we examine how the policy statement addresses each element of the abusive standard and share our observations as to the policy statement’s implications. We then look at past CFPB enforcement actions and supervisory findings in which conduct was alleged to be abusive. We also look at the overlap between abusive conduct and unfair or...2023-11-091h 00
Consumer Finance MonitorThe U.S. Supreme Court’s Decision in Community Financial Services Association of America Ltd. v. Consumer Financial Protection Bureau: Who Will Win and What Does It Mean? Part IIOn October 3, 2023, the U.S. Supreme Court held oral argument in CFSA v. CFPB, a case with profound potential implications for the future of the CFPB. The Court will rule on whether the CFPB’s funding mechanism violates the U.S. Constitution’s Appropriations Clause and, if so, what the appropriate remedy should be. Our special guests are six renowned attorneys who filed amicus briefs in the case: Michael Williams, Principal Deputy Solicitor General, Office of the West Virginia Attorney General; Adam Levitin, Professor, Georgetown University of Law Center; Scott Nelson, Public Citizen Litigation Group; Jeffrey Naimon, Orrick, Herrington & Sutcl...2023-11-0245 min
Consumer Finance MonitorThe U.S. Supreme Court’s Decision in Community Financial Services Association of America Ltd. v. Consumer Financial Protection Bureau: Who Will Win and What Does It Mean? Part IOn October 3, 2023, the U.S. Supreme Court held oral argument in CFSA v. CFPB, a case with profound potential implications for the future of the CFPB. The Court will rule on whether the CFPB’s funding mechanism violates the U.S. Constitution’s Appropriations Clause and, if so, what the appropriate remedy should be. Our special guests are six renowned attorneys who filed amicus briefs in the case: Michael Williams, Principal Deputy Solicitor General, Office of the West Virginia Attorney General; Adam Levitin, Professor, Georgetown University of Law Center; Scott Nelson, Public Citizen Litigation Group; Jeffrey Naimon, Orrick, Herrington & Sutc...2023-10-2651 min
Consumer Finance MonitorUnderstanding the Credit Card Competition Act a/k/a Durbin 2.0Our special guest is Zarik Khan, Founder and Managing Director of Finsolute Advisors. Congress is now considering whether to enact the CCCA, a bill that would require credit card issuers with assets over $100 billion to include at least two possible network processors on each card. We first look at the roles of the various parties involved in a typical transaction in which a consumer makes a purchase from a merchant using a credit card. We then discuss how the CCCA requirement for at least two networks would operate, its potential implications for smaller banks and credit unions, and its...2023-10-1948 min
Consumer Finance MonitorA Look at the Impact of New Developments in Payment Systems on Low-Income ConsumersOur special guest is Mark Budnitz, Professor Emeritus, Georgia State University College of Law. In an article recently published in the Georgetown Journal on Poverty Law and Policy, Prof. Budnitz explores the impact on low-income consumers of the increasing use of digital technology for consumer payments. Prof. Budnitz first explains why, in his view, the current laws governing digital financial services, particularly the Electronic Funds Transfer Act and Reg. E, do not adequately protect low-income consumers. We then discuss the benefits of various methods he believes could provide protection for low-income consumers using payment systems, such as agency enforcement...2023-10-1245 min
Consumer Finance MonitorA Close Look at the Federal Trade Commission’s Updates to its Guides on the Use of Endorsements and Testimonials in Advertising and Proposed Rule on the Use of Consumer Reviews and TestimonialsOur special guest is Michael Ostheimer, Senior Consumer Protection Attorney in the FTC’s Division of Advertising Practices. In June 2023, the FTC updated its guides that set forth the FTC’s position on how Section 5 of the FTC Act, which prohibits unfair or deceptive acts or practices, applies to the use of endorsements and testimonials in advertising. The updates are intended to address the increasing use of digital and social media marketing. We begin with a detailed review of the most significant changes made by the updates, such as those concerning the definitions of “endorser” and “endorsement,” the definition of a “clear...2023-10-0554 min
Consumer Finance MonitorFederal Court Rules CFPB Cannot Use UDAAP Authority to Regulate Discrimination: A Close Look at the Decision and its ImplicationsIn March 2022, the Consumer Financial Protection Bureau announced that it had revised its examination manual to instruct its examiners to apply the “unfairness” standard under the Consumer Financial Protection Act to conduct considered to be discriminatory, whether or not it is covered by the Equal Credit Opportunity Act. We first review the changes that the CFPB made to the manual, its rationale for the changes, and how those changes would allow the CFPB to target discrimination more broadly than the circumstances covered by the ECOA. We also review the industry lawsuit challenging the changes, including the reasons asserted for inva...2023-09-2856 min
Consumer Finance MonitorShining a Bright Light on Digital Dark PatternsOur special guest is Andrew Nigrinis, PhD, who formerly served as Enforcement Economist for the Consumer Financial Protection Bureau. We first discuss what is meant by “dark patterns” and the types of digital practices identified by the CFPB and Federal Trade Commission as “dark patterns.” We then look at the CFPB ‘s position regarding the use of “dark patterns” as an unfair, deceptive, or abusive act or practice under the Consumer Financial Protection Act, the FTC’s position regarding the use of “dark patterns” as anticompetitive and/or a violation of the FTC Act prohibition of unfair or deceptive acts or practices, a...2023-09-211h 03
Consumer Finance MonitorWhat is FedNow and its Role in the U.S. Payments System?Our special guest is Professor Dan Awrey of Cornell Law School. In July 2023, the Federal Reserve launched FedNow, its instant payments system. After reviewing what FedNow is (and is not), we discuss FedNow’s design features and pricing schedule, the obstacles that currently exist for usage of FedNow by community banks, and what changes can be made to increase FedNow usage by community banks. We next look at the history of FedNow’s creation and how consumer groups have responded to FedNow’s launch, including FedNow’s impact on concerns about liability for peer to peer on-line payments in which th...2023-09-1452 min
Consumer Finance MonitorResponding to Direct and Indirect Identity Theft Disputes Under the FCRA: What Are The Differences?We first review the Fair Credit Reporting Act provisions that establish the different requirements for how a creditor or other furnisher of information to a credit bureau must respond to direct and indirect identify theft disputes involving credit report information reported by the furnisher to a credit bureau. A direct dispute is one made directly by the consumer to the furnisher and an indirect dispute is one made by the consumer to the credit bureau and then submitted to the furnisher by the credit bureau. In particular, we focus on the information that a furnisher may require from a...2023-09-0744 min
Consumer Finance MonitorShould Section 5 of the FTC Act be Amended to add a Private Right of Action?Section 5 of the FTC Act, which prohibits unfair or deceptive acts or practices, does not include a private right of action. Our special guest, Professor Myriam E. Gilles of Cardozo Law School, has written a law review article in which she makes the case for adding a private right of action to Section 5. We begin with a discussion of the origins of federal consumer protection law, including the connection to the rise of private antitrust enforcement, the legislative debate regarding the creation of a private right of action in connection with the FTC Act’s enactment and later addition of...2023-08-3151 min
Consumer Finance MonitorA Look at the Growing Use of Generative Artificial Intelligence and Chatbots in Consumer Financial Services, with Special Guests Ron Shevlin, Chief Research Officer, Cornerstone Advisors, and Reggie Young, Product Counsel, LithicWe first look at what generative AI is and how it differs from other types of AI and technology such as machine learning. We then look at the ways in which banks and fintech companies can deploy AI tools and the business use case for banks and fintechs considering the addition of chatbots, including how chatbots differ from voice response units. Our discussion considers the potential purposes for which banks and fintechs can use chatbots and the potential benefits to employees and customers. It also considers the potential legal risks in using chatbots for certain purposes such as in...2023-08-2457 min
Consumer Finance MonitorAn Even Deeper Dive into the CFPB’s Final Dodd-Frank Section 1071 Rule on Small Business Data CollectionThe 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 in...2023-08-171h 03
Consumer Finance MonitorA Deep Dive Into Cryptocurrency and its Risks to Investors and the Banking System, with Special Guest, Arthur E. Wilmarth, Professor Emeritus, George Washington University Law SchoolAfter discussing what fluctuating- value cryptocurrencies and stablecoins are, their differences, and their primary uses and risks, we discuss the factors that led to the crypto boom and crash of 2020-22. We then look at the role of banks in crypto-related activities, the response of federal and state bank regulators, and the role of crypto in recent bank failures. We follow with a discussion of Prof. Wilmarth’s recommendations for responding to the risks posed by crypto, including recognizing the Securities and Exchange Commission as the primary federal regulator of most fluctuating-value cryptocurrencies, protecting the banking system by having fe...2023-08-101h 18
Consumer Finance MonitorThe 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 LawAfter 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...2023-08-0348 min
Consumer Finance MonitorShould Written Contracts be Eliminated for Small Dollar Transactions? A Conversation with Special Guest David Hoffman, Professor and Deputy Dean, University of Pennsylvania Carey Law SchoolProfessor Hoffman first explains his thesis that falling transaction costs has led to the proliferation of form contracts into areas where they little have social value, resulting in social harms that require a new approach. We then discuss his proposal that states deny enforcement of written contracts for small dollar transactions by adopting what he calls a “Statute Against Forms.” Under such a statute, for contracts at the lowest dollar amount (e.g. $100 or less), only oral contracts would be enforceable. In our discussion, we consider the potential benefits of this approach for industry and consumers, why this approach migh...2023-07-2746 min
Consumer Finance MonitorWhat the Biden Administration’s “Junk Fees” Initiative Means for the Consumer Financial Services Industry: A Look at the Fees Under Attack, Part IIThe Biden Administration has launched an initiative directed at combatting so-called “junk fees,” with the CFPB and FTC leading the Administration’s efforts. In Part II of this two-part episode, we first look at CFPB supervisory activity relating to auto servicing, mortgage servicing, payday and small dollar loans, and student loan servicing. We then discuss likely CFPB next steps relating to its credit card late fees proposal and potential future actions by the CFPB, FTC, and state regulators to address “junk fees.” We conclude with a discussion of steps providers should consider to reduce compliance risks, including the Ballard Spahr Anal...2023-07-2044 min
Consumer Finance MonitorWhat the Biden Administration’s “Junk Fees” Initiative Means for the Consumer Financial Services Industry: A Look at the Fees Under Attack, Part IThe Biden Administration has launched an initiative directed at combatting so-called “junk fees,” with the CFPB and FTC leading the Administration’s efforts. In Part I of this two-part episode, we first discuss the various definitions offered by the White House, CFPB, and FTC for what constitutes a “junk fee” and the types of fees they have labeled “junk fees.” We then discuss the CFPB’s credit card late fees proposal and criticisms of the proposal set forth in comment letters. We conclude with a discussion of guidance on overdraft and non-sufficient funds fees issued by the CFPB, OCC, and FDIC and by...2023-07-1345 min
Business BetterIs DEI at Risk? Considerations on the US Supreme Court Ruling Against Affirmative Action ProgramsIn this episode, we discuss the recent US Supreme Court ruling in the Students for Fair Admissions Inc.'s lawsuits against Harvard University and the University of North Carolina, which challenged the constitutionality of their race conscious admission policies. We'll consider the potential implications across multiple settings, from university admissions policies, to workplace and other DEI programs. Bill Rhodes, a Partner in Ballard Spahr’s Public Finance Group and Leader of the firm’s Education Industry Team, hosts the discussion. Bill is joined by Brian Pedrow, a Partner in our Labor and Employment Group, and Co-Leader of the...2023-07-1132 min
Consumer Finance MonitorA Close Look at the U.S. Supreme Court’s Decision Invalidating the Biden Administration’s Student Loan Forgiveness Plan and its Potential Legal Repercussions and Impact on Student Loan BorrowersLast Friday, the U.S. Supreme Court ruled that the Biden Administration did not have the legal authority to proceed with its plan to forgive approximately $400 billion in federal student loans. After reviewing the background of the two cases, we first look at the majority opinion authored by Chief Justice Roberts and discuss the majority’s legal analysis for concluding that the Missouri Attorney General had standing to challenge the plan, that the HEROES Act’s text did not authorize the Secretary of Education to forgive the loans, and that the “major questions” doctrine should be applied to assess whether...2023-07-0644 min
Business BetterCyber Adviser – An Overview of Artificial Intelligence in the U.S. and EU Regulatory LandscapeThis episode is part of our Cyber Adviser series, where we discuss emerging issues in the world of data privacy and security. The emergence of tools like ChatGPT has demonstrated the tremendous business potential for artificial intelligence. At the same time, businesses need to be aware of the growing patchwork of laws and regulations in the U.S. and EU governing the development and use of AI. Our lawyers will provide an overview of the current regulatory landscape for AI in the U.S. and EU and identify some best practices for businesses to employ as they...2023-03-3046 min
Business BetterCyber Adviser – 2023 Preview for Privacy and Data SecurityThis episode is part of our Cyber Adviser series, where we discuss emerging issues in the world of data privacy and security. 2022 proved to be a historic year for privacy and data security, and 2023 is likely to follow suit. With privacy compliance deadlines looming under three state laws, a surge in data privacy litigation, new federal cyber-regulations, new state laws governing children’s data, and new EU legislation regulating digital services – privacy lawyers will be busy this year. We discuss the main privacy issues that are likely to dominate headlines in 2023. Phil Yannella and Greg Szew...2023-02-1438 min
Business BetterInvesting in Communities: A Conversation with Marcus Randolph, CEO of Invest NewarkIn today’s episode, we’re joined by special guest Marcus Randolph, CEO and President of Invest Newark. Invest Newark is a nonprofit development agency who work to propel the City’s strong and diverse economy, build vibrant communities, and create opportunities for all residents of Newark. Invest Newark supports small, women and minority-owned businesses, invests in world-class internet service, spurs real estate development and executes economic development activities to produce and sustain economic growth, generate jobs and create wealth for the citizens of Newark. Krishana Pleasant, Of Counsel in Ballard Spahr's New York office, hosts the conver...2023-01-0330 min
Business BetterCyber Adviser – The Colorado Privacy Act and Draft RulesThis episode is part of our Cyber Adviser series, where we discuss emerging issues in the world of data privacy and security. With its draft rules, Colorado has set forth a new model for state privacy laws. While there are many areas that are interoperable with the California model, the Colorado draft rules include important differences, as well as rules on topics that have been notably absent from California’s draft rules. We discuss the highlights of the Colorado draft rules, differences with California, and practical steps for developing a comprehensive compliance plan for all of the up...2022-12-0637 min
Business BetterCyber Adviser – Assessing the Surge in Wiretap LitigationThis episode is part of our Cyber Adviser series, where we discuss emerging issues in the world of data privacy and security. In the past several months, plaintiffs lawyers have filed dozens of class action lawsuits under state wiretap laws, some of which provide for statutory damages of $5,000 or more per occurrence. The lawsuits focus on the use of chatbots, “session replay” software, and tracking code embedded in websites. Plaintiffs contend these tools enable the surreptitious sharing of personal information with third parties and are illegal wiretaps. In this episode, we discuss the reason for this surge in l...2022-10-2625 min
Business BetterConversations with Women in Finance, with Special Guest Natasha Holiday from RBC Capital MarketsThis episode is part of our Women in Finance series, and features an interview with Natasha Holiday, Managing Director at RBC Capital Markets with a focus on U.S. public infrastructure finance. Ms. Holiday talks about her career journey into finance, the current state of the market, and navigating the opportunities and challenges that come with integrating family life with a hybrid work environment in a post-George Floyd world. Emilie Ninan, a Partner in our Wilmington, Delaware, and Washington, DC offices, and co-chair of Ballard Spahr’s Finance department, hosts the conversation.2022-10-0438 min
Business BetterBASE – A Legal Accelerator That Has Been Boosting Dorm Room Startups For The Past DecadeIn today’s episode, we celebrate the 10th anniversary of the Ballard Academy for Student Entrepreneurs (BASE) program, an in-house legal accelerator that Ballard Spahr developed in 2013 to support student owned and operated ventures. We’re joined by the founders of mental wellness platform NeuroFlow, a fast-growing Philadelphia based startup, who participated in the BASE 3.0. Christopher Molaro, CEO, and Adam Pardes, COO, discuss starting a company during graduate school, leveraging BASE as a resource, and how they are continuing to grow the company today. Kimberly Klayman, a Partner in our Philadelphia office, hosts the conversation.2022-09-2725 min
Business BetterRespect the Razorblade: How to Protect Your IP When Your Business’s Business Is Repeat CustomersIn this episode, we discuss how your intellectual property can be leveraged to maximize the profitability of nonconsumable devices and their complementary consumable products. While profits can be made via the initial sale of larger items—like printers, video game consoles, or razor handles—even greater profits are possible with the repeat sale of complementary consumable items—like ink cartridges, video games, and razor blades. Establishing a strong IP portfolio that captures both the device and its complement is crucial to the profitability of the product pair and your company’s success. Ballard Spahr intellectual property...2022-07-1918 min
Business BetterSupply Chain Disruptions with Special Guest Benjamin Siegrist, Director of Infrastructure, Innovation and Human Resources Policy at the National Association of ManufacturersThis is the first episode in our new series “Supply Chain Disruptions,” where we explore how supply chain issues are affecting businesses everywhere, and when the flow of goods and services may settle into a new normal. In this episode, Ben Siegrist shares his knowledge of port shipments, trucking and driver shortages, and how Congress, the Biden Administration, and other leaders are working together to address the effects of disruption. Ben also reveals recent survey information from NAM membership about how long the disruption could continue and what the future may hold. Brendan Collins, a Ball...2022-05-1735 min
Business BetterTrauma-Informed Investigations, Part Four: Full DisclosureThis is episode four of the “Trauma Informed Investigations” series, where we follow a fictitious story to address the legal and human issues that arise in an organization when confronted with allegations of sexual abuse. In today’s episode, we discuss the process of conducting an internal investigation and retaining outside counsel, notification processes, and mandatory reporting and communications with law enforcement. Leading the discussion is my Ballard Spahr colleague Jill Steinberg, a Partner in Ballard’s Philadelphia Office. Jill is joined by Katharine Manning. Katharine is the author of “The Empathetic Workplace: Five Steps to a Compassion...2022-05-1038 min
Business BetterTrauma-Informed Investigations, Part Three: The Brain and TraumaThis is episode three of the “Trauma-Informed Investigations” series. Today’s episode features a discussion on the impacts that trauma can have on the brain, with special guest Anne DePrince, a clinical psychologist and professor of psychology at the University of Denver and author of “Every 90 Seconds: Our Common Cause Ending Violence against Women”. Speaking with Ms. DePrince is my Ballard Spahr colleague Jill Steinberg, a Partner in Ballard’s Philadelphia Office; and Katharine Manning, author of “The Empathetic Workplace: Five Steps to a Compassionate, Calm, and Confident Response to Trauma on the Job,” and the President of Blackbird DC.2022-04-1930 min
Business BetterA Conversation with Liz Bentley, Founder and President of Liz Bentley AssociatesToday's episode features a conversation with Liz Bentley, founder and President of Liz Bentley Associates, a consulting firm specializing in leadership development programs. Ms. Bentley discusses her own background and career path, the role and importance of outside interests, dealing with failure, developing self-discipline, courage and confidence, how to advance in one’s career, and some thoughts on the return to the workplace. Speaking with Ms. Bentley is Emilie Ninan, a Partner at the firm and Co-Chair of Ballard Spahr’s Finance Department.2021-10-0735 min
Business BetterConversations with Women Leaders in Finance, with Special Guest Mary DiMartino from J.P. MorganIn this series, we profile women in finance to learn about their leadership roles in financial services and capital markets. This episode features an interview with Mary DiMartino, Executive Director at J.P. Morgan Securities, where she focuses on public finance. Ms. DiMartino talks about her background and career path, the kinds of projects she works on, her experience in recruiting, and the impact of the pandemic on the work environment and the use of technology. Speaking with Ms. DiMartino is Emilie Ninan, Co-Chair of Ballard Spahr’s Finance Department.2021-09-1628 min
Business BetterCongress Overrides the OCC’s True Lender Rule: What Are the Risks for Banks and Their Loan Program Nonbank Partners?The OCC’s true lender rule was intended to create a bright line test for when a national bank or federal savings association should be considered the “true lender” in the context of third party partnerships but Congress overturned the rule. After reviewing the relevant background, we examine the Congressional override’s implications for future federal true lender rulemaking and its impact on existing law, key federal and state court challenges and decisions, state legislative and administrative developments, and risk mitigants for bank/nonbank partnerships, including potential loan program structures. Alan Kaplinsky, Ballard Spahr Senior Counsel, hosts the conv...2021-09-091h 01
Business BetterA Conversation with Jane Hyun, Founder and President of Hyun & AssociatesToday’s episode features a conversation with Jane Hyun, leadership strategist and author, and Founder and President of Hyun & Associates, a professional training and coaching firm. Ms. Hyun talks about her background and career path, her books, and her thoughts on the challenges and experience of Asian-Americans striving for success in the corporate environment. Speaking with Ms. Hyun is Emilie Ninan, a Partner at the firm and Co-Chair of Ballard Spahr’s Finance Department.2021-07-2835 min
Business BetterThe New BSA Whistleblower Law: What You Need to KnowToday’s episode features a discussion of the new whistleblower provisions in the Anti-Money Laundering Act of 2020. We’ll discuss the types of businesses covered, who can be a whistleblower under the Act, the increased incentives now provided, new protections against retaliation, the impact of a whistleblower being involved in the conduct, and practical advice for affected institutions. Peter Hardy, co-practice leader of the firm’s Anti-Money Laundering Team is joined by Ballard Spahr attorneys Meredith Dante and Diana Joskowicz.2021-04-2335 min
Business BetterMarijuana Use in the Workplace: What Employers Need to KnowToday’s episode is a conversation on the legalization of marijuana in certain states and its impact on the workplace. Ballard Spahr Labor and Employment attorneys Jay Zweig, Emily Daher, and Joseph Wiltse review what they’re seeing in their specific states and discuss other topics, including: what employers can and can’t do in regulating marijuana use by their employees, guidelines for the implementation of drug testing policies, how to deal with so-called “safety sensitive” positions, and the interplay of state and federal law.2021-04-1233 min
Business BetterOh the Places You’ll Go: A Discussion Regarding the American Jobs PlanRecently, President Biden announced a historic and ambitious plan to invest in infrastructure, the biggest investment in infrastructure in over five decades. To discuss the proposed package Ballard Spahr Partner BJ Clark is joined by three guests with extensive knowledge and experience in the space: Gov. Ed Rendell, the former Governor of Pennsylvania and former Mayor of Philadelphia, Brian Kirby, General Counsel at Sacyr, a large international infrastructure company, and John Smolen, Of Counsel in Ballard Spahr’s P3/Infrastructure Group in the firm’s Baltimore Office.2021-04-0859 min
Business BetterDissecting the ESG Landscape for Companies and Investors with Zally Ahmadi from D.F. KingIn this episode, we highlight Environmental, Social and Governance (ESG) concerns from the perspective of companies and investors, including recent trends in ESG investing, the impact of the pandemic, and the ESG issues that have been the focus of companies, boards, shareholders and proxy advisory firms in recent years. Ballard Spahr attorneys Mary Mullany and Jaryn Fields are joined by Zally Ahmadi, who oversees the Corporate Governance & Executive Compensation advisory services at D.F. King.2021-03-1540 min
Business BetterThe Impact of COVID-19 on the Executive Liability Landscape with HUB InternationalDoug Christian, leader of Ballard Spahr’s Insurance Practice Group is joined by Adrian Atilano and Dave Garrigus from insurance brokerage firm HUB International. Adrian and Dave lead HUB’s executive liability practice and, along with Doug, discuss how the COVID-19 pandemic has impacted the management liability landscape. After summarizing the current market, the group touches on the main issues underwriters are paying attention to at the moment and how to maximize coverage in a cost-effective manner.2021-02-2541 min
Business BetterThe Next Wave of Employer LiabilityOn this episode, Ballard Spahr Partner Louis Chodoff leads a discussion with his Labor and Employment attorney colleagues Karli Lubin and Tara Humma. The group discusses the various liability issues that may arise as employers work to bring employees back to the physical workplace, including claims about workplace safety, vaccination policies, overtime claims arising from work from home, and activity created by the new Biden administration’s Labor and Employment Policies.2021-02-1044 min
Business BetterRecent Developments at the National Labor Relations Board under the Biden AdministrationBallard Spahr attorneys Meredith Dante and Steve Suflas summarize developments at the National Labor Relations Board (NLRB) put in place by the Biden Administration. Meredith and Steve discuss the challenges Non-union and unionized employers alike will face as we return to the activist NLRB that tried to remake the rules of the workplace during the Obama Administration. Register for the webinar here: https://www.ballardspahr.com/eventsnews/events/2021-02-10-lets-talk-labor-law-under-the-biden-administration2021-02-0418 min
Business BetterConversations with Women Leaders in Finance, with Special Guest Carla Harris of Morgan StanleyIn this series, we profile women in finance to learn about their leadership roles in financial services and capital markets. Emilie Ninan, Co-Chair of Ballard Spahr’s Finance Department, is joined by Carla Harris, Vice Chairman and Head of Multicultural Client Strategy at Morgan Stanley. Ms. Harris talks about her multifaceted career path as investment banker, author and gospel singer, advice on how to navigate one’s career and change careers, and her thoughts on leadership in the current chaotic environment.2021-01-2840 min