Financial Services Blog

It’s EZ as 1, 2, 3 . . . Disclosure, limited liability and periodic statements required for prepaid accounts under the CFPB’s new Prepaid Rule amending Regulations E and Z

The Consumer Financial Protection Bureau (CFPB) recently issued a final rule, the “Prepaid Rule,” amending Regulations E and Z. The Prepaid Rule affects issuers of prepaid personal, household or family accounts by expanding the applicability of Regulations E and Z as of October 1, 2017. It brings “prepaid accounts” into Regulation E’s definition of “account” and broadens the reach of Regulation Z’s overdraft credit features. While this rule applies to digital wallets and P2P payments, the CFPB did not extend this rule to virtual currency. Read More ›

Considerations For A Legislative Definition of “Blockchain”

It seems like everyone is discussing “blockchain,” but few have taken the time to really define what blockchain is (and is not). In particular, the federal government has not reached a consensus on what the term should mean. Recently a group of blockchain experts from academia, private practice, and government relations sat down together to do just that—define “blockchain” – at the Blockchain Definition on Capitol Hill event, hosted by MIT Media Lab, Congressman David Schweikert, the Chamber of Digital Commerce, and the DC Blockchain Center.   This article shares one definition which was submitted for consideration at the event.  Read More ›

Are Prices Free Speech? The Supreme Court is set to weigh in on whether merchant surcharges are protected as free speech

The Supreme Court recently agreed to review a case from the Second Circuit Court of Appeals holding that New York’s anti-surcharge provision was constitutional. Similar cases–with differing outcomes–have been heard in the Fifth and Eleventh Circuits, as well as a District Court in the Ninth Circuit.  The issue is this: in each of the states at issue, statutes prohibit “surcharges” but permit discounts to cash purchasers, whether explicitly (California and Florida) or by implication (New York and Texas).  For example:   Read More ›

Will Sixth Circuit Decision Further Open Doors to Data Breach Recovery Lawsuits?

Defendants in putative class actions suits filed in federal court attempting recovery for data breaches have generally been successful at obtaining dismissal of the claims before their merits can be considered.  This is due to the significant hurdle imposed by the standing requirement under Article III of the U.S. Constitution. Many federal courts have dismissed these claims as lacking Article III standing where the plaintiffs have not alleged a present and ascertainable injury, or an “injury-in-fact”.  But several of the federal appellate courts have indicated a willingness to find standing in these cases, and the recent decision in Galaria  et al. v. Nationwide Mutual Insurance Co. has further strengthened the hand of plaintiffs’ counsel. Read More ›

How to Address a Consumer Dispute in Compliance with Fair Credit Reporting Act

With the recent decision in Spokeo v. Robbins, bloggers and legal commentators have spent much time discussing FCRA. The Spokeo decision is one for all of us to watch closely, but a check of basic compliance issues is always in order. This article focuses on handling consumer disputes, following a surprising verdict. Read More ›

CFPB ARBITRATION RULE: What You Need to Know Now

On May 5, 2016, the CFPB unveiled a proposed arbitration rule which would dramatically limit the contractual rights of financial institutions. Under the rule certain arbitration provisions would be unenforceable as bars to class actions against financial institutions.   Read More ›

Law and Technology Disconnect: Tennessee Just Killed Encryption Safe Harbor

Tennessee has recently enacted some potentially far reaching changes to its data breach notification statutes. These changes could pose substantial burdens on businesses and professional organizations that do business in Tennessee and maintain personal information of Tennessee residents. Effective July 1, 2016, the Tennessee definition of what constitutes a “breach of the security of the system” that triggers notice includes not only the loss of unencrypted data but encrypted data as well (if that data includes personally identifiable information of Tennesseans). Tennessee is the first state in the country to eliminate a safe harbor from data breach notice obligations where the breach involves encrypted data. Read More ›

Preservation of Arbitration Rights in Kentucky When Litigation Is Filed

Despite the presence of an arbitration provision in a loan agreement or other document, a lender may be required to file suit to bring certain claims against individuals or property.  For instance, a lender may be forced to file suit either to foreclose on a mortgage, or to obtain a court order to recover, liquidate, and clear title to collateral.  If the borrower asserts counterclaims against the lender in response to the suit, the lender may want to compel arbitration with respect to those counterclaims.  However, because filing a complaint can constitute a waiver of a party’s right to compel arbitration, lenders must be extremely careful both in filing suit and in responding to counterclaims to prevent a waiver of their arbitration rights.  A recent case from the Kentucky Court of Appeals, Kathleen Imhoff v. Lexington Public Library Board of Trustees, 2016 WL 192017, shows just how careful a litigant in Kentucky must be to avoid waiving his or her right to arbitration.    Read More ›

What You Should Know About Kentucky’s New Uniform Voidable Transactions Act

On January 1, 2016, the Uniform Voidable Transactions Act (UVTA) was enacted in Kentucky and can be found at KRS 378A.005 e seq.  The UVTA replaces KRS 378, which contained KRS 378.010, the Kentucky fraudulent conveyance statute, and KRS 378.060, the Kentucky preference statute.  Nationally, the UVTA will replace the Uniform Fraudulent Transfer Act (“UFTA”).  According to the Conference of Commissioners on Uniform State Laws, California, Georgia, Idaho, Minnesota, New Mexico, North Carolina, and North Dakota have joined Kentucky in enacting the UVTA.  Adoption of the UVTA is anticipated by the remaining states in the coming years.  Read More ›

State Attorneys General Ask at the Checkout Counter, “Chip & Sign or Chip & Pin?”

Should state Attorney General’s (AG’s) intrude in the private market place to influence the choice consumers and merchants’ make as to the type of payments they will prefer for credit card transactions?  By any account, those are complicated business decisions involving complex cost, risk, marketing, technology and personal preference issues, which are often unique to each business’s situation.  But nonetheless, this is exactly what nine Attorneys General recently did. Read More ›

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Attorney Spotlight

Christopher C. Tieke is an associate in Frost Brown Todd's Louisville office, focusing his practice on business litigation. He graduated from the University of Cincinnati College of Law, with magna cum laude honors; served as an Associate Member of the University of Cincinnati Law Review; and participated in the Entrepreneurship and Community Development Clinic.