Archive: 2017

1
Dodd-Frank Reform Efforts Intensify
2
Supreme Court Again Declines to Review Ruling That Courts Determine Availability of Classwide Arbitration
3
President Signs Congressional Resolution Overturning CFPB Arbitration Rule
4
“True Lender” Litigation Heats Up: Small Business Sues Marketplace Lender and Partner Bank, Alleging Conspiracy to Evade Usury Laws
5
Treasury Reports Continue to Inform Dodd-Frank Reform Efforts
6
Senate Joins House in Resolution Overturning CFPB Arbitration Rule; President Trump Is Likely to Sign
7
The Screen Scrape Debate will not Abate
8
With Senate on the Sidelines So Far, Financial Services Trade Groups Launch Challenge to CFPB Arbitration Rule
9
Marketplace Lender Seeking Fair Lending Guidance Receives CFPB’s First No-Action Letter
10
Final 2017 TRID Rule Does Little To Ease Liability Concerns; Proposed Legislation Already In The Works To Address Shortcomings

Dodd-Frank Reform Efforts Intensify

By Daniel F. C. Crowley, Bruce J. Heiman, William A. Kirk, Karishma Shah Page, Eric A. Love, Dean A. Brazier

On November 16, Senate Banking Committee (“SBC”) Chairman Mike Crapo (R-ID) introduced S. 2155, the “Economic Growth, Regulatory Relief and Consumer Protection Act,” long-awaited Senate legislation designed to foster economic growth and reduce regulatory burdens for small- and medium-sized financial institutions. A SBC section-by-section summary of the bill is available here. Earlier this year, the House passed on a party-line vote H.R. 10, the “Financial CHOICE Act of 2017” (the “FCA”), House Financial Services Committee Chairman Jeb Hensarling’s (R-TX) bill to comprehensively reform the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). S. 2155 is narrower in scope than the House bill and has to date garnered the support of nine Democratic Senators.

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Supreme Court Again Declines to Review Ruling That Courts Determine Availability of Classwide Arbitration

By Andrew C. Glass, Robert W. Sparkes III, Roger L. Smerage, Elma Delic

The United States Supreme Court recently declined to review a ruling that courts, not arbitrators, determine the availability of classwide arbitration. Previous attempts by putative collective or class representatives to obtain certiorari on the issue were unsuccessful. See, e.g., Opalinski v. Robert Half International Inc., 61 F.3d 326, 330-35 (3d Cir. 2014) (“Opalinski I”) (For K&L Gates’ coverage on the denials of the prior petitions see here and here). The Court’s most recent decision in Opalinski v. Robert Half International Inc. suggests that the Court still does not perceive sufficient disagreement, if any, among the federal courts of appeals on the issue. 677 F. App’x 738, 740 (3d Cir. 2017) (“Opalinski II”). As a result, the trend continues that the availability of classwide arbitration is a gateway issue for the courts.

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President Signs Congressional Resolution Overturning CFPB Arbitration Rule

By Andrew C. Glass, Robert W. Sparkes III, Roger L. Smerage, Elma Delic

The President signed this week the congressional joint resolution nullifying the Consumer Financial Protection Bureau (“CFPB”) arbitration agreements rule. Following adoption by the House, the Senate, in a 50-50 split with the Vice President breaking the tie, voted last week to approve the resolution (noted in a previous post here). The CFPB can only reinstate the rule, or one that is similar, if Congress expressly authorizes it to do so in subsequent legislation.

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“True Lender” Litigation Heats Up: Small Business Sues Marketplace Lender and Partner Bank, Alleging Conspiracy to Evade Usury Laws

By David D. Christensen and Jennifer Janeira Nagle

Over the last several years, a number of U.S. state and federal government enforcement actions have challenged the viability of the bank partnership model that many marketplace lenders have used to fund consumer and small business loans. Specifically, regulators have argued that, in partnerships where the non-bank entity controls much of the funding process or the bank has little-to-no risk of loss, the non-bank entity is the “true lender.”

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Treasury Reports Continue to Inform Dodd-Frank Reform Efforts

By Daniel F. C. Crowley, Bruce J. Heiman, William A. Kirk, Karishma Shah Page, Eric A. Love, Dean A. Brazier

On October 26, 2017, the U.S. Department of the Treasury (the “Treasury”) released a report entitled “A Financial System That Creates Economic Opportunities: Asset Management and Insurance,” the third in a series of reports that President Trump’s Executive Order 13772 on Core Principles for Regulating the U.S. Financial System (the “Core Principles”) requires Treasury to issue about potential ways to legislatively and administratively reform the U.S. financial system, consistent with the Core Principles. Earlier this month, Treasury released its second such report, which outlined recommendations concerning the capital markets. Treasury’s first report on banks and credit unions was released in June 2017 (See K&L Gates Alert: Dodd-Frank Reform; What Comes Next?), and one additional report is expected to be released in the near future. Treasury’s recommendations are likely to inform the efforts currently underway in Congress to advance financial regulatory reform legislation. This alert highlights a number of notable recommendations contained in the asset management and insurance report, as well as the capital markets report.

To read the full alert, click here.

Senate Joins House in Resolution Overturning CFPB Arbitration Rule; President Trump Is Likely to Sign

By Andrew C. Glass, Robert W. Sparkes III, Roger L. Smerage, Elma Delic

After weeks of speculation, the U.S. Senate voted on Tuesday night to join the House of Representatives in passing a Congressional Review Act (“CRA”) resolution to nullify the Consumer Financial Protection Bureau’s (“CFPB”) recent arbitration agreements rule. The Senate vote split 50-50, with two Republican senators—Senators Lindsey Graham (SC) and John Kennedy (LA)—voting against the resolution. The split vote set the stage for Vice President Mike Pence to cast the tie-breaking vote in favor of the resolution, which is now headed to President Trump’s desk for signature. In the hours after the vote, the President released a statement indicating his support for the resolution.

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The Screen Scrape Debate will not Abate

By Judith E. Rinearson, Rizwan Qayyum

The debate surrounding “screen-scraping” continues as Member States of the European Union are preparing for the impending Second Payment Services Directive (“PSD2”). Screen scraping is the practice in which third-party Payment Initiation Service Providers (“PISPs”) and Account Information Service Providers (“AISPs”) are granted access to bank accounts of a client utilising their credentials to perform a service. As heralded in our discussion in July identifying the problem, the European Banking Authority (“EBA”) maintained their stance of outlawing the practice in the final draft Regulatory Technical Standards (“RTS”) on secure communication and Strong Customer Authentication (“SCA”). Consistent industry pressure has led the European Commission (“EC”) to request of the EBA to permit AISPs and PISPs to utilise screen scraping as a “fallback option”.

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With Senate on the Sidelines So Far, Financial Services Trade Groups Launch Challenge to CFPB Arbitration Rule

By Andrew C. Glass, Robert W. Sparkes III, and Roger L. Smerage

More than two months after its promulgation, the fate of the Consumer Financial Protection Bureau (CFPB) arbitration agreements rule remains uncertain. The Senate may ultimately join the House and invoke the Congressional Review Act (CRA) to nullify the CFPB rule. But several financial services trade groups are not waiting to find out and have commenced their own legal challenge to the rule. On Friday, September 29, 2017, over a dozen such groups—led by the Chamber of Commerce of the United States of America—filed suit against the CFPB, and its director Richard Cordray, in U.S. District Court for the Northern District of Texas. See Complaint for Declaratory and Injunctive Relief, Chamber of Commerce of the United States of America, et al. v. Consumer Financial Protection Bureau, et al., No. 3:17-cv-02670-D (N.D. Tex. Sept. 29, 2017).

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Marketplace Lender Seeking Fair Lending Guidance Receives CFPB’s First No-Action Letter

By David D. Christensen, Jennifer Janeira Nagle, and Brandon R. Dillman

The Consumer Financial Protection Bureau (“CFPB”) recently issued its first letter pursuant to a no-action letter policy launched in February 2016. The CFPB developed the policy to encourage innovation in the fintech marketplace by creating a testing ground for new technologies and consumer lending methods, particularly where the applicability or impact of existing regulations is uncertain. To take advantage of the policy, a company must submit an application describing the product, method, or service at issue and identify the specific rules and regulations for which the company seeks guidance. If the application is approved, a no-action letter is issued indicating that the CFPB “has no present intention to recommend initiation of an enforcement or supervisory action” against the applicant with respect to the specific product, method, or service and regulatory concerns covered by the company’s application.

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Final 2017 TRID Rule Does Little To Ease Liability Concerns; Proposed Legislation Already In The Works To Address Shortcomings

By: Jennifer Janeira Nagle

Nearly two years after the TILA-RESPA Integrated Disclosure (“TRID”) rule went into effect (on October 3, 2015) and one year after the Consumer Financial Protection Bureau (“CFPB”) closed a comment period on a Notice of Proposed Rulemaking (“NPRM”) to adjust and clarify the rule, the CFPB’s modified TRID rule was published in the Federal Register on August 11, 2017 (the “2017 TRID Rule” or “2017 Rule”). An accompanying Detailed Summary of Changes and Clarifications was released on August 30, 2017.

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