Consumer Finance Monitor

A 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’ ...

An Update on Earned Wage Access Products

Our 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...

A Close Look at the Consumer Financial Protection Bureau’s Proposed Rules on Overdraft and Nonsufficient Funds Fees

Our 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 entiti...

The Federal Trade Commission: Looking Back at 2023 and Looking Ahead to 2024 and Beyond

Our 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 ad...

The Consumer Financial Protection Bureau’s Use of Unfairness to Regulate Discriminatory Conduct: A Discussion of the Consumer and Industry Perspectives

Our 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 broug...

Telephone Consumer Protection Act Update: Developments Impacting Consent and Lead Generation

New 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-Face...

The 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 II

On 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 b...

The 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 I

On 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 b...

How the Consumer Financial Protection Bureau Can Advance the Use of Artificial Intelligence in Consumer Financial Services

Our 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 additio...

The CARS Rule: What You Need To Know About the Federal Trade Commission’s Final Motor Vehicle Dealer Trade Regulation Rule, Part II

Our 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 po...

The CARS Rule: What You Need To Know About the Federal Trade Commission’s Final Motor Vehicle Dealer Trade Regulation Rule, Part I

Our 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 ...

Recent Developments Affecting Student Loan Origination and Servicing

Navigating the Consumer Financial Protection Bureau’s Proposed Personal Financial Data Rule

In 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 ...

Understanding the Federal Reserve Board Proposal to Lower Interchange Fee Cap for Debit Card Transactions

Our 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 i...

Will Chevron Deference Survive in the U.S. Supreme Court? An Important Discussion to Hear in Advance of the January 17th Oral Argument

This special podcast episode, hosted by Senior Counsel and former Consumer Financial Services Practice Leader Alan Kaplinsky, sets the stage for the upcoming oral argument in the two U.S. Supreme Court cases where the fate of Chevron deference hangs in the balance. This episode provides an essential roadmap for anyone who will listen to the oral argument or is following this critical challenge to this important doctrine. Our special guest is Kent Barnett, Associate Dean of Academic Affairs...

Foreclosing on “Zombie” Mortgages: What Lenders and Servicers Should Know

We 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,...

A Look at a New Approach to Consumer Contracts

Our 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 consume...

Community Reinvestment Act Reform: A Close Look at the Final Rule

On 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 ...

What the Recent Developments in Federal Preemption for National and State Banks Mean for Bank and Nonbank Consumer Financial Services Providers

Providers 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 l...

The Biden Administration’s “Junk Fees” Initiative Continues: What the Latest Actions Mean for the Consumer Financial Services and Rental Housing Industries, Part II

This 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 ...

The Biden Administration’s “Junk Fees” Initiative Continues: What the Latest Actions Mean for the Consumer Financial Services and Rental Housing Industries, Part I

This 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 ...

A 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 Pro...

Consumer Finance Impact of a CFPB Run Amok

Switching 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 t...

Prohibited 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 Agreements

Our 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 ...

A Deep Dive Into the Consumer Financial Protection Bureau’s Policy Statement on Abusive Acts and Practices Under the Consumer Financial Protection Act

The 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 fin...

The 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 II

On 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 Gene...

The 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 I

On 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 Gener...

Understanding the Credit Card Competition Act a/k/a Durbin 2.0

Our 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 t...

A Look at the Impact of New Developments in Payment Systems on Low-Income Consumers

Our 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 lo...

A 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 Testimonials

Our 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 sig...

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

In March 2022, the Consumer Financial Protection Bureau announced that it had revised its examination manual to instruct its examiners to apply the “unfairness” standard under the Consumer Financial Protection Act to conduct considered to be discriminatory, whether or not it is covered by the Equal Credit Opportunity Act. We first review the changes that the CFPB made to the manual, its rationale for the changes, and how those changes would allow the CFPB to target discrimination more broadl...

Shining a Bright Light on Digital Dark Patterns

Our 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 u...

What 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 ...

Responding 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 ...

Should 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 crea...

A 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, Lithic

We 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....

An Even Deeper Dive into the CFPB’s Final Dodd-Frank Section 1071 Rule on Small Business Data Collection

The CFPB’s final rule implementing Section 1071 requires financial institutions to collect and report certain data in connection with credit applications made by small businesses, including women-, minority- or LGBTQI+-owned small businesses. In this episode, we respond to questions received from attendees of our April 2023 attendance-breaking webinar about the final rule. The issues our responses address include: what is a “covered transaction” and distinguishing business/consumer purpose t...

A 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 School

After 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 recognizi...

The Challenges of Using the Current Law to Address Dark Patterns, A Conversation with Special Guest Gregory Dickinson, Assistant Professor, St. Thomas University, Benjamin L. Crump College of Law

After discussing what are “dark patterns” and the most common forms they can take, we consider whether and how “dark patterns” used to influence consumers’ online behavior differ from traditional scams directed at consumers involving the use of deception. We then discuss the federal and state statutes and common law claims currently being used to challenge the use of “dark patterns” as well as current legislative action to more directly target “dark patterns” and the challenges lawmakers fac...

Should Written Contracts be Eliminated for Small Dollar Transactions? A Conversation with Special Guest David Hoffman, Professor and Deputy Dean, University of Pennsylvania Carey Law School

Professor 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 woul...

What the Biden Administration’s “Junk Fees” Initiative Means for the Consumer Financial Services Industry: A Look at the Fees Under Attack, Part II

The 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 regulato...

What the Biden Administration’s “Junk Fees” Initiative Means for the Consumer Financial Services Industry: A Look at the Fees Under Attack, Part I

The 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 w...

A 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 Borrowers

Last 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 Secr...

The Legality of “Regulation by Enforcement” and Other Considerations, A Discussion with Special Guest, David Zaring, Professor, Wharton School of the University of Pennsylvania

The use of enforcement by the Consumer Financial Protection Bureau and other federal agencies rather than administrative rulemaking to advance novel legal theories has been widely criticized. After discussing the meaning of “regulation by enforcement,” we look at examples of the use of regulation by enforcement by the CFPB and other agencies, U.S. Supreme Court precedent regarding the legality of this approach, the choice of enforcement targets by agencies, and the role of consent orders. We...

A Look at the Treasury Department's April 2023 Report on Decentralized Finance or "DeFi"

The report examines the vulnerabilities in DeFi, including potential gaps in the United States’ Bank Secrecy Act/anti-money laundering regulatory, supervisory, and enforcement regimes for DeFi. We first discuss how Treasury defines DeFi, the report’s findings regarding the use of DeFi services in the process of transferring and laundering illicit proceeds, the BSA’s application to DeFi services and the impact of decentralization on BSA coverage, and the report’s recommendations. We then disc...

A Look at the Current Challenge to Judicial Deference to Federal Agencies and What it Means for the Consumer Financial Services Industry, With Special Guest, Craig Green, Professor, Temple University School of Law

Since the U.S. Supreme Court’s 1984 Chevron decision, federal courts have typically applied a two-step analysis known as the “Chevron framework” to determine whether a court should defer to a federal agency’s interpretation of a statute.  SCOTUS has now agreed to hear the Loper case next Term in which the continued viability of the Chevron framework is being directly challenged. We first discuss the origins of the concept of judicial deference to federal agencies and the Chevron decision. We...

The Consumer Financial Protection Bureau’s Final Section 1071 Rule on Small Business Data Collection: What You Need to Know, Part II, with Special Guest David Skanderson, Vice President, Charles River Associates

At the end of March 2023, the CFPB issued its long-awaited final rule to implement Section 1071 of the Dodd-Frank Act. Section 1071 amended the Equal Credit Opportunity Act to require financial institutions to collect and report certain data in connection with credit applications made by small businesses, including women- or minority-owned small businesses. Although the final rule will be effective on August 29, 2023, it contains a tiered compliance date schedule, with an earliest compliance...

The Consumer Financial Protection Bureau’s Final Section 1071 Rule on Small Business Data Collection: What You Need to Know, Part I

At the end of March 2023, the CFPB issued its long-awaited final rule to implement Section 1071 of the Dodd-Frank Act. Section 1071 amended the Equal Credit Opportunity Act to require financial institutions to collect and report certain data in connection with credit applications made by small businesses, including women- or minority-owned small businesses. Although the final rule will be effective on August 29, 2023, it contains a tiered compliance date schedule, with an earliest compliance...

A Deep Dive into Mass Arbitration, with Special Guest Andrew Pincus, Partner, Mayer Brown

After discussing what mass arbitration is and its growing use for claims against companies in the consumer finance industry, we discuss the factors that make companies most vulnerable to mass arbitration claims. We then identify drafting strategies for arbitration agreements to deter the initiation of mass arbitration claims. We look next at how companies can benefit from the use of bellwether procedures, address criticism of such procedures, and discuss ethical issues that have been raised ...

Perspectives on Counseling on the Creation of Consumer Finance Products, with Special Guest Joseph Schuster, Managing Director and Senior Counsel, Goldman Sachs

Our discussion looks at the role of in-house and outside counsel in the development and launch of new consumer financial products. We first discuss the range of issues to be considered as part of the preliminary scoping process, including state licensing, marketing, underwriting, servicing, and collection issues. We turn next to the process of addressing potential legal obstacles and problems that are identified in scoping, including what consideration should be given to competitors’ approac...