A National Strategy to Prevent Scams — "United We Stand"

Artificial intelligence is rapidly transforming the consumer financial services industry. From underwriting and fraud detection to customer engagement and collections, financial institutions are increasingly deploying advanced AI tools to automate processes, personalize services, and improve operational efficiency. We are releasing today, on our Consumer Finance Monitor Podcast show, a discussion of what may be the next major technological shift for the industry: Agentic AI in Consumer Financial Services — AI systems capable of acting autonomously, making decisions, and interacting directly with consumers. The discussion featured Professor Oren Bar-Gill of New York University School of Law, along with Ballard Spahr partners Joseph Schuster and Adam Maarec.  The discussion was hosted by Alan Kaplinsky, the founder and practice group leader for 25 years of the Consumer Financial Services Group and now Senior Counsel. The panel examined how agentic AI differs from earlier forms of automation, the benefits it offers financial institutions and consumers, and the significant legal and regulatory risks it may create. Below are the key takeaways from the discussion. What Is Agentic AI? Agentic AI refers to AI systems that can independently take actions on behalf of users or organizations. Unlike traditional automation, which performs predefined tasks, or generative AI, which primarily produces content, agentic AI systems can: ·                 Make autonomous decisions ·                 Interact directly with consumers ·                 Initiate actions such as transactions or communications ·                 Learn from prior interactions In financial services, these systems may soon conduct customer service interactions, initiate collections calls, execute payments, or manage purchasing tasks for consumers. While these capabilities promise major efficiencies, they also raise complex legal questions regarding accountability, fairness, and consumer protection. Understanding AI-Driven Consumer Harm Professor Bar-Gill framed the discussion by examining potential consumer harms associated with AI-powered decision-making. Drawing on his recent book with Cass Sunstein, Algorithmic Harm: Protecting People in the Age of Artificial Intelligence, he explained that the impact of AI depends largely on the type of market in which it operates.  The book is available on Amazon here. Sophisticated vs. Unsophisticated Markets Bar-Gill distinguishes between: ·                 Sophisticated markets, where consumers are generally able to make informed decisions ·                 Unsophisticated markets, where consumers are more likely to misunderstand complex products In sophisticated markets, AI-driven personalization, such as individualized pricing, can increase efficiency and expand access to products by offering lower prices to consumers with lower willingness to pay. In contrast, in markets involving complex financial products, such as credit cards, mortgages, or insurance, AI-powered personalization may harm consumers who misjudge product costs or benefits. For example, if a consumer mistakenly overestimates the value of a financial product, an AI system may set the price just below that mistaken valuation, leading the consumer to pay more than the product is actually worth. Algorithmic Price Discrimination One area of growing concern is AI-enabled price discrimination, where algorithms tailor prices to each consumer's willingness to pay. Examples cited during the discussion included: ·                 Airlines experimenting with AI-based pricing strategies ·                 Online retail platforms offering individualized prices for identical products ·                 Insurance companies using algorithms to optimize premiums While pricing based on individual risk, such as in insurance underwriting, is widely accepted, pricing based on willingness to pay raises significant consumer protection concerns. As these practices expand, they are likely to attract increased attention from regulators and lawmakers, particularly at the state level. AI Use Cases in Consumer Finance The panel also highlighted several areas where AI is already being deployed across the consumer financial services lifecycle. Marketing and Customer Acquisition Financial institutions are using AI to analyze large data sets and create highly personalized marketing campaigns. Large language models can generate customized messaging tailored to specific demographic groups or individual consumers. While this personalization improves targeting and engagement, it also creates compliance challenges related to: ·                 Misleading advertising ·                 Disclosure requirements ·                 Potential discriminatory targeting Underwriting and Credit Decisions AI-driven underwriting tools allow lenders to analyze alternative data, such as cash-flow information, to assess creditworthiness. These tools may expand access to credit for consumers who previously lacked traditional credit histories. However, they also raise fair lending concerns under laws such as the Equal Credit Opportunity Act and its implementing regulation, Regulation B. Because many AI models operate as "black boxes," institutions may struggle to explain how decisions are made, an issue that can complicate discrimination analyses and regulatory oversight. Fraud Detection AI is particularly powerful in fraud detection, where pattern recognition is essential. Advanced models can analyze transaction behavior in real time to identify suspicious activity while minimizing unnecessary transaction declines. These tools also allow financial institutions to communicate with customers instantly, confirming transactions or investigating suspicious activity through automated interactions. Servicing and Collections Agentic AI may soon conduct both inbound and outbound customer interactions, including: ·                 Customer service conversations ·                 Dispute resolution ·                 Collections calls In some cases, AI-driven voice systems can conduct conversations that are indistinguishable from human interactions. While this technology may improve efficiency and reduce costs, it raises legal concerns about consumer deception, harassment, and compliance with debt collection laws. Core Legal Risks Despite the novelty of the technology, many of the key legal risks arise from existing laws, not new AI-specific statutes. Liability for AI Actions As Joseph Schuster emphasized, AI is a tool, not a liability shield. Institutions remain responsible for the actions of AI systems just as they would for the actions of employees or third-party vendors. Traditional legal doctrines, including agency law, vicarious liability, and unfair or deceptive acts or practices, continue to apply. UDAP Risks AI systems interacting with consumers may create risks under federal and state UDAP laws if they: ·                 Provide inaccurate information ("hallucinations") ·                 Fail to deliver required disclosures ·                 Exhibit overconfidence in uncertain responses ·                 Engage in manipulative behavioral targeting. Fair Lending and Discrimination AI models can unintentionally produce discriminatory outcomes, even when protected characteristics are not used as inputs. As Professor Bar-Gill noted, future litigation may increasingly focus on disparate impact analysis, which examines whether outcomes disproportionately affect protected classes regardless of the model's internal logic. Governance and Risk Management Given these risks, institutions are increasingly adopting governance frameworks for AI deployment. Common practices include: ·                 AI governance committees with cross-functional participation ·                 Model inventories and risk-tiering systems ·                 Vendor due diligence for AI providers ·                 Data mapping and validation processes ·                 Continuous monitoring of AI outputs. Financial regulators are already asking supervised institutions detailed questions about how AI is being used. Institutions that implement structured governance processes are better positioned to respond to these inquiries. The Rise of Agentic Commerce One emerging application of agentic AI involves autonomous purchasing. For example, a consumer might instruct an AI assistant to plan and purchase supplies for a birthday party. The AI would then select vendors, place orders, and initiate payments using the consumer's stored payment credentials. But what happens if AI makes a mistake, such as ordering supplies for 1,000 guests instead of 10? Such scenarios raise difficult questions involving: ·                 consumer authorization ·                 merchant liability ·                 payment network rules ·                 dispute resolution These issues are only beginning to receive attention from regulators and industry participants. Key Takeaways for Financial Institutions The panel concluded with several recommendations for institutions exploring AI deployment. First, distinguish beneficial uses from harmful ones. AI can deliver significant consumer benefits, but firms must remain vigilant about potential misuse or unintended harm. Second, prioritize governance. Robust policies, oversight structures, and risk management processes are essential. Third, remember that existing laws still apply. AI systems must comply with the same consumer protection, fair lending, and disclosure requirements that govern traditional processes. Finally, institutions must recognize that failing to adopt AI also carries risks. As fraudsters increasingly deploy advanced technology, financial institutions may need AI tools simply to keep pace. As AI technology continues to evolve, the legal framework governing its use in financial services will also develop. For now, however, the most important lesson is that innovation must proceed hand-in-hand with careful legal and compliance oversight. Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.

We are releasing today on our Consumer Finance Monitor podcast our host Alan Kaplinsky's discussion with Marisa Calderon, President and CEO of Prosperity Now, about two high-profile policy proposals raised or embraced by President Trump as part of a broader populist affordability agenda: 1.         A nationwide 10% cap on credit card interest rates for one year. 2.         The Credit Card Competition Act (CCCA), long championed by Senator Dick Durbin which would require large credit card issuers to enable at least two unaffiliated payment networks (only one of which could be MasterCard or VISA) on their cards. Each proposal is framed as pro-consumer. Each has generated significant pushback from banks, card issuers, and trade associations. However, even consumer advocacy groups have raised serious questions about the wisdom of such initiatives. Prosperity Now is a non-profit organization dedicated to advancing economic mobility, with a focus on those facing economic barriers. Each raises fundamental questions about how to balance affordability and access in the consumer credit market. Our discussion focused on a central theme: affordability is a real and pressing concern, but policy design matters enormously. Credit Card APRs: A Real Affordability Pressure As Calderon emphasized, policymakers are not wrong to focus on credit card interest rates. Average credit card APRs now hover around 22%, up sharply from roughly 13% a decade ago. Approximately half of cardholders carry a balance, and many rely on credit cards not for discretionary spending, but as liquidity bridges, covering emergency medical bills, car repairs, groceries, and other essentials. For lower and moderate-income households, credit cards are often the only readily available, regulated source of short-term liquidity. That makes rising APRs particularly painful. Calderon's formulation is apt: policymakers have identified the right problem. The harder question is whether they have identified the right solution. The 10% Interest Rate Cap: Lessons from History The proposal to impose a flat 10% nationwide cap on credit card interest rates for one year would represent an unprecedented federal intervention into unsecured revolving credit markets. Credit cards are unsecured and priced for risk. Interest margins help issuers cover expected charge-offs, volatility, and operational costs. If pricing flexibility is removed, lenders cannot simply absorb the loss, they adjust. Historically, those adjustments take predictable forms: •                 Tighter underwriting standards •                 Higher minimum credit scores •                 Lower credit limits •                 Reduced rewards programs •                 Increased non-interest fees •                 Exit from higher-risk market segments The likely result, as Calderon noted, is credit contraction, particularly affecting marginal and lower-income borrowers. The most relevant historical example may be the 1980 credit controls imposed during the Carter Administration, which were rescinded within months after causing severe market disruption. A more targeted example is the 36% APR cap under the Military Lending Act, which illustrates both the importance of bipartisan legislative design and the reality that even well-intentioned caps can reduce access at the margins. Recent Federal Reserve research on state usury caps reinforces this concern: when interest rate ceilings are imposed, credit to higher-risk borrowers contracts, credit to lower-risk borrowers expands, and delinquency rates do not meaningfully improve. In other words, credit is reallocated, not necessarily improved. Even a "temporary" cap may have durable consequences. Issuers that exit certain segments or reduce credit lines are not obligated, and may not be economically inclined, to restore them once the cap expires. Credit score impacts and reduced access can linger well beyond the formal life of the policy. As Calderon put it, blunt price controls are a chainsaw when what is needed is a scalpel. Affordability in Context: What Drives Household Budgets? An additional consideration is scale. Research recently highlighted by the Consumer Bankers Association shows that the fastest-growing household expenses from 2013–2024 were healthcare, shelter, food, and vehicles. Credit card interest represents a relatively small share of average household expenditures. This does not minimize the pain of high APRs, especially for households carrying persistent balances, but it does raise an important structural question: can credit card rate caps meaningfully solve broader affordability challenges rooted in housing, medical costs, food inflation, and transportation? Credit cards are often the mechanism households use to cope with those rising costs. Constraining access to that liquidity may exacerbate, rather than relieve, financial stress. The Credit Card Competition Act: Structural Reform or Indirect Price Control? The second proposal we discussed, the Credit Card Competition Act (the "CCCA"), takes a different approach. Rather than capping interest rates, the CCCA would require large issuers to offer merchants at least two unaffiliated network routing options (only one of which could be Visa or Mastercard). The theory is that routing competition would reduce interchange fees ("swipe fees"), lowering merchant costs and ultimately consumer prices. Merchants have generally supported the proposal. Banks and card issuers have strongly opposed it. The consumer-facing promise is straightforward: lower merchant fees should translate into lower retail prices, but history complicates that assumption. The Durbin Amendment to the Dodd-Frank Act imposed caps on debit card interchange fees for large issuers and included routing requirements. While interchange revenue declined, Calderon pointed out that empirical evidence suggests that cost savings were not consistently passed through to consumers in the form of lower prices. At the same time, banks offset lost revenue through higher account fees and reduced benefits. A similar dynamic could unfold in the credit card market. Interchange revenue helps fund: •           Rewards programs •           Fraud detection and prevention •           Customer service infrastructure •           Risk management If that revenue is compressed, issuers may respond with tighter underwriting, reduced rewards, or new fee structures. As Calderon observed, although the CCCA operates through indirect price pressure rather than a direct APR ceiling, downstream effects could look similar. Distinguishing Populist Framing From Durable Reform Both the rate cap and the CCCA are framed as pro-consumer, populist reforms. The political appeal is clear, but distinguishing headline appeal from durable consumer benefit requires careful analysis. Calderon suggested several guideposts policymakers should consider: •                 Access – Does the reform preserve or expand access for low- and moderate-income borrowers? •                 Incidence – Who actually captures the gains? Consumers, merchants, intermediaries, or some combination? •                 Substitution effects – Does the policy push consumers toward higher-cost, less-regulated alternatives such as payday or fringe products? •                 Durability – What happens after implementation? Do markets rebound, or do credit line reductions and underwriting changes persist? These questions are not ideological. They are structural. Affordability and access are not opposing values. The policy challenge is designing reforms that alleviate financial strain without narrowing the regulated credit tools families rely on when emergencies arise. The Bottom Line Affordability concerns are real. Rising APRs are real. Financial stress among many households is real. But blunt price caps may reduce rates on paper while reducing access in practice. Structural competition mandates may promise savings that do not materialize at the checkout counter. Durable consumer protection requires careful calibration — the scalpel, not the chainsaw. For industry participants, policymakers, and advocates alike, the takeaway is straightforward: evidence and market mechanics matter. Populist framing may win headlines, but long-term financial stability depends on policy design that accounts for how credit markets actually function. As always, we will continue to monitor these proposals and their evolution in Congress and the Administration.  It may be noteworthy that President Trump did not mention either proposal during his almost two-hour State of the Union Address on January 24th. Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.

In a recent episode of the award-winning Consumer Finance Monitor podcast, Alan Kaplinsky was joined by Nick Bourke, Kate Griffin, and Ballard Spahr partner Joseph Schuster to discuss a groundbreaking new report from the Aspen Institute Financial Security Program: United We Stand: A National Strategy to Prevent Scams. The episode builds on Nick and Kate's prior appearance on the podcast last July, when the report was still in development. Now finalized, the report offers one of the most comprehensive frameworks to date for addressing what has become a systemic threat to American households and the broader financial system. The Scope of the Problem: A Systemic Threat Frauds and scams are no longer isolated consumer protection issues. According to the report, U.S. households are losing an estimated $196 billion annually to scams — roughly $1 billion every couple of days. One in five American adults reports having lost money to an online scam. As Nick Bourke explained, today's scams are: ·                 Technology-enabled ·                 Highly organized and industrialized ·                 Often operated by transnational criminal organizations ·                 Accelerating due to AI and faster payment systems The so-called scam "lifecycle" includes four stages: 1.     Lead – Hooking the victim 2.     Deceive – Building trust (often through impersonation or relationship-building) 3.     Bleed – Extracting funds 4.     Clean – Laundering proceeds, often through cryptocurrency or offshore channels Different sectors see only fragments of this lifecycle; social media platforms may see the "lead," financial institutions the "bleed," and law enforcement the "clean." That fragmentation allows criminals to scale operations while defenders remain siloed. Why Scams Are Rising Despite Heavy Investment As Kate Griffin noted, industry and government are investing heavily in prevention. Yet scams continue to grow. Why? ·                 Fragmentation across sectors: No single actor sees the entire attack sequence. ·                 Outdated reporting infrastructure: Federal systems at agencies like the FBI and FTC remain manual and technologically antiquated. ·                 Regulatory uncertainty: Financial institutions and technology platforms face unclear expectations about what data they can use and share. ·                 Speed of modern payments: Faster money movement means faster losses. Joseph Schuster emphasized that many financial institutions are strongly incentivized to prevent fraud as they often bear reputational and financial risk when scams succeed. But legal ambiguity, especially under statutes like the Fair Credit Reporting Act, can chill data-sharing and innovation. Core Recommendations from the Aspen Report The report outlines both high-level national reforms and granular operational improvements with more than 180 specific ideas. 1. Elevate Scam Prevention to a National Priority The report calls for: ·                 A designated federal lead (or "czar") to coordinate strategy ·                 A whole-of-government approach ·                 Clear national goals and metrics Without centralized leadership, enforcement and regulatory actions remain fragmented.  2. Modernize Law Enforcement Reporting Systems Federal reporting portals, including Suspicious Activity Reports (SARs), the FBI's complaint systems, and the FTC's databases, require modernization. The report recommends: ·                 Streamlined, automated reporting ·                 Backend data interoperability across agencies ·                 Advanced analytics and AI tools for enforcement 3. Establish Clear Duties to Act Paired with Safe Harbors One of the most important themes discussed was the need for: ·                 Clear expectations for banks, telecom companies, and digital platforms ·                 Safe harbors that protect companies when sharing scam intelligence in good faith Countries like Australia have already codified such frameworks. The U.S. has yet to establish similarly coordinated standards. 4. Build a Cross-Sector Information-Sharing Ecosystem Effective scam prevention requires: ·                 Exchange of scam indicators (malicious URLs, compromised phone numbers, device patterns) ·                 Interoperable information-sharing platforms ·                 Privacy-preserving architecture ·                 Legal clarity to mitigate antitrust and consumer reporting concerns Joseph noted that industry appetite for collaboration is strong but clarity and guardrails are essential. 5. Consider a U.S. National Anti-Scam Center The report explores the idea of a centralized "front door", potentially something like stopscams.gov, that would: ·                 Serve as a national reporting hub ·                 Provide victim resources ·                 Facilitate coordination among law enforcement ·                 Support public education campaigns Social Media and Platform Responsibility The discussion also addressed the evolving role of digital platforms. Scam activity frequently originates through: ·                 Paid advertisements ·                 Dating applications ·                 Direct messaging ·                 Fake investment websites Compared to banks, social media companies operate within a less clearly defined regulatory structure. Courts are increasingly developing theories of "platform liability," but statutory clarity is lacking. The report urges policymakers to define reasonable expectations for platforms — paired with safe harbors and practical tools that empower prevention rather than merely assign blame. What Happens Next? The key question: who implements this strategy? Kate Griffin emphasized that this is a whole-of-society problem requiring coordinated action by: ·                 Federal leadership ·                 Congress ·                 Financial institutions ·                 Telecom and digital platforms ·                 Law enforcement ·                 Civil society There have been encouraging developments, including: ·                 Treasury and State Department sanctions targeting transnational scam networks ·                 A joint DOJ–FBI–Secret Service initiative targeting Southeast Asian scam operations o   But much more remains to be done. Nick Bourke suggested that, one year from now, real success would include: ·                 A designated federal anti-scam lead ·                 A congressional commission ·                 Measurable national prevention goals ·                 Corporate adoption of formalized anti-scam strategies Joseph Schuster added that industry innovation is ongoing, particularly in artificial intelligence, biometrics, and authentication, but warned that fragmented state-level regulation could complicate progress. Key Takeaways Alan Kaplinsky closed the episode with several important observations: ·                 Fraud and scams are now a systemic threat, not a niche compliance issue. ·                 Prevention, not just reimbursement, must be the organizing principle. ·                 Coordination matters as much as authority. ·                 Good-faith companies need regulatory clarity, not just enforcement pressure. ·                 Reducing scams strengthens trust in the U.S. financial system and digital economy. The Aspen report reframes the debate. Rather than assigning blame, it calls for aligned incentives, shared responsibility, and coordinated national action. If the title of the report, United We Stand, becomes reality, the United States may finally begin to bend the curve on one of the most costly and fast-growing threats facing consumers today. For more insights on consumer financial services developments, visit Ballard Spahr's Consumer Finance Monitor blog and explore the full Aspen Institute report here. Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.

On today's Consumer Finance Monitor podcast, we are releasing an episode about a timely and wide-ranging discussion on one of the most significant and fastest-evolving developments in commercial finance: the rapid "consumerization" of small business lending law. In this episode, host Alan Kaplinsky welcomes Louis Caditz-Peck, Executive Director of the Responsible Business Lending Coalition (RBLC), for an in-depth conversation about the proliferation of state small business lending protection statutes, the policy debates driving them, and what they mean for lenders, fintechs, banks, and small business borrowers. From Self-Regulation to State Law: How We Got Here For decades, commercial lending operated under a fundamentally different regulatory framework than consumer credit. The prevailing assumption was that business borrowers were sophisticated, negotiated their transactions, and did not need standardized disclosures or suitability-type protections. That assumption has eroded. As Louis explains, since the financial crisis, and particularly with the growth of online and fintech lending, small business financing has changed dramatically. Community banks have pulled back. Non-bank online platforms have expanded. New products, including merchant cash advances and other revenue-based financing arrangements, have proliferated. At the same time, concerns have grown about: Opaque pricing structures Misleading "interest rate" representations Broker incentives that steer borrowers into higher-cost products Repeated refinancing of unaffordable obligations These concerns led to the development of the Small Business Borrower's Bill of Rights, a set of industry standards first launched in 2015 at the Aspen Institute by a coalition of lenders, small business groups, and nonprofit advocates. What began as a voluntary, self-regulatory effort quickly became a blueprint for legislation. California's SB 1235 in 2018 marked the first major small business truth-in-lending law. Since then, according to Louis, 19 small business financial protection laws have been enacted across multiple states, with California and New York leading the way. The "Consumerization" of Small Business Lending A central theme of the episode is whether we are witnessing the "consumerization" of small business lending. Many of the new state laws borrow heavily from consumer credit concepts, including: APR-style cost disclosures Total cost of financing disclosures Payment schedule requirements Prepayment and fee transparency Restrictions on certain contractual provisions Some states have layered on licensing or registration requirements for small business finance providers. Others incorporate or supplement state UDAP (unfair and deceptive acts and practices) standards, which may apply to certain business-to-business transactions as well as consumer transactions. The policy rationale is straightforward: many "Main Street" businesses are effectively sole proprietorships or closely-held operations without in-house finance or legal teams. Legislators increasingly view these borrowers as closer to consumers than to large corporations with treasury departments and inside or outside counsel. As Alan and Louis discuss, the regulatory shift raises serious operational and compliance challenges, particularly given the state-by-state patchwork of requirements. The Compliance Conundrum: Patchwork and Harmonization A recurring concern is whether the proliferation of state laws imposes disproportionate burdens on smaller lenders and startups, especially compared to large institutions with robust legal and compliance infrastructures. Louis emphasizes that RBLC has actively worked to promote interstate harmonization, particularly between California and New York. For example: Advocating for standardized disclosure forms that can be used in multiple states Aligning definitions and disclosure triggers Encouraging estimated APR calculations for revenue-based financing However, not all states have followed a harmonized approach. Some laws, particularly those focused narrowly on merchant cash advances, have created divergent requirements, complicating multi-state compliance. As Alan notes, the trend presents both risk and opportunity for lenders and their counsel. The regulatory environment is no longer static. Companies offering small business financing must assume that: Cost disclosures will likely be required in more states Registration or licensing may apply Enforcement risk—particularly under state UDAP statutes—will increase Section 1071 and Federal Uncertainty The episode also explores the role of the CFPB under Section 1071 of the Dodd-Frank Act, which requires data collection on small business lending to: 1.     Identify potential discrimination, and 2.     Assess whether certain markets are underserved. The CFPB finalized its 1071 rule in 2023 under then Director Rohit Chopra. Multiple legal challenges followed. Under the current administration, a notice of proposed rulemaking has sought to scale back and slow implementation. At the same time, the Federal Trade Commission has signaled an interest in using its enforcement authority to address unfair or deceptive acts or practices affecting small businesses—underscoring an intriguing tension within federal regulatory policy. As Louis observes, the debate is not simply about reducing or expanding government. It is about how government authority will be used and whether transparency and enforcement will be advanced through rulemaking, litigation, or state initiatives. Merchant Cash Advances and Revenue-Based Financing A particularly nuanced part of the discussion focuses on merchant cash advances (MCAs) and other sales-based financing products. These arrangements typically involve: An advance of funds in exchange for a fixed repayment amount Payments tied to a percentage of daily or periodic sales Variable duration depending on business performance RBLC's position, as Louis explains, is product neutral. The coalition does not advocate banning product categories or imposing rate caps. Instead, it focuses on responsible practices, including transparent pricing and assessment of ability to repay. Importantly, none of the major state lending protection laws impose interest rate caps. The emphasis is on disclosure and market transparency rather than price regulation. Who Is Covered—and Who Is Not? Most state small business truth-in-lending statutes apply to financing of $500,000 or less (with some variation, such as New York's $2.5 million threshold following gubernatorial revision). Coverage often includes: Closed-end loans Open-end lines of credit Sales-based financing/MCAs Factoring (in some states) Banks are generally exempt from these statutes, though non-bank "providers" presenting the offer of credit may still have disclosure obligations even in bank partnership models. As Alan highlights, this raises interesting competitive and policy questions about level playing fields across banks and non-banks. Looking Ahead to 2026 Both speakers agree: this trend is not going away. With significant percentages of small business owners reporting difficulty accessing affordable capital—and a substantial minority reporting harm from predatory practices—state legislators remain motivated to act. The key policy question is not whether regulation will expand, but how. Well-designed transparency frameworks can: Promote price competition Reward responsible innovation Improve borrower decision-making Poorly harmonized or overly rigid frameworks, however, risk increasing compliance costs and reducing credit availability. As Alan notes in his closing remarks, small business finance regulation is becoming a core area of growth for law firms and compliance professionals historically focused on consumer financial services. The line between consumer and commercial finance continues to blur.  Alan noted that the Consumer Financial Services Group which he founded and chaired for 25 years has counseled and represented small business lenders for decades. For lenders, fintechs, banks, and their advisors, understanding these developments is no longer optional—it is essential. Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.

In the episode of the Consumer Finance Monitor podcast we are releasing today, we examine what may be the most consequential development in New York consumer protection law in nearly half a century: the enactment of the New York State Fair Business Practices Act (the FAIR Act). Signed into law in December 2025 and taking effect on February 17, 2026, the FAIR Act represents the first comprehensive overhaul of New York General Business Law § 349 in almost 50 years. Long focused primarily on deceptive acts and practices, Section 349 has now been expanded to expressly prohibit unfair and abusive business practices as well—bringing New York law far closer to the federal UDAAP framework under the Consumer Financial Protection Act. To explore what changed, why it matters, and how the law will be enforced in practice, Alan Kaplinsky (founder and former leader of the Consumer Financial Services Group at Ballard Spahr LLP and now Senior Counsel and host of Consumer Finance Monitor) is joined by two senior officials from the New York Attorney General's Bureau of Consumer Frauds and Protection who were directly involved in shaping and implementing the statute: ·        Jane Azia, Chief of the Bureau of Consumer Frauds and Protection ·        Alec Webley, Assistant Attorney General and one of the attorneys who helped shepherd the FAIR Act through the legislative process What followed was a wide-ranging and unusually candid discussion of the statute's origins, scope, enforcement implications, and practical lessons for businesses operating in, or affecting, New York. From Deception to Unfairness and Abusiveness For decades, New York's consumer protection regime lagged behind most other states and federal regulators by focusing almost exclusively on deception. As Jane Azia explained, deception alone often fails to capture conduct that is plainly harmful to consumers, particularly where disclosures technically exist but are obscured, consumers are subjected to high-pressure tactics, or businesses exploit significant informational or power asymmetries. The FAIR Act closes those gaps by expressly prohibiting: ·        Unfair practices, modeled closely on the FTC's longstanding unfairness framework ·        Abusive practices, drawing heavily on more than a decade of CFPB enforcement experience Importantly, while the statute borrows from federal concepts of unfairness and abusiveness, New York is not bound to follow future CFPB reinterpretations. As Alec Webley emphasized, the legislature carefully chose its language, expressly incorporating only certain federal elements (such as the FTC's "substantial injury" concept) while deliberately declining to tether New York law to future federal regulatory shifts. Broader Scope Than Federal Law One of the most significant differences between the FAIR Act and federal consumer protection law is scope. Jane Azia pointed out that unlike the federal Consumer Financial Protection Act, which applies primarily to financial services, the FAIR Act applies to all business activity occurring in, or affecting consumers in, New York. That means unfair or abusive conduct by non-financial businesses now squarely falls within the Attorney General's enforcement authority. The statute also avoids many of the preemption constraints that can limit state enforcement against national banks under federal law, because it is a law of general application rather than a banking regulation. No Rulemaking—But Clear Signals The FAIR Act does not grant the Attorney General rulemaking authority, and the AG's office does not currently plan to issue formal regulations or written guidance. Instead, businesses should expect the meaning of "unfair" and "abusive" to be fleshed out through enforcement actions, settlements, and existing federal precedent. That said, the Attorney General has already identified categories of conduct likely to draw scrutiny, including: ·        Steering borrowers into unnecessarily costly repayment options ·        High-pressure sales tactics ·        Obscured or misleading pricing ·        Exploitation of consumers with limited English proficiency ·        Misleading marketing in health care, auto sales, and emerging financial products Several examples discussed on the podcast, including enforcement actions involving e-cigarettes, earned wage access products, and savings account practices, illustrate how the AG's office has already been applying unfairness and abusiveness theories under existing authority, and how the FAIR Act now allows those claims to be brought directly under state law. Remedies and Enforcement Tools The FAIR Act does not dramatically alter the remedies available to the Attorney General, but it reinforces a powerful enforcement arsenal, including: ·        Injunctive relief ·        Restitution ·        Civil penalties ·        Disgorgement ·        Expedited "special proceedings" that can allow the AG to move quickly in court to halt unlawful conduct As a reminder, recent amendments to Article 22-a of the general business law also significantly increased civil penalties for violations of section 349 occurring during disasters or abnormal market disruptions, an issue businesses should not overlook. Extraterritorial Reach and Coordination with Other Regulators The discussion also addresses a recurring compliance question: when New York law applies beyond New York's borders. In general, the statute applies where conduct occurs in New York or where New York consumers are harmed. It can also apply to out-of-state consumers harmed by New York-based businesses. By contrast, purely out-of-state conduct with no meaningful New York nexus typically falls outside the statute's reach. The episode also explores how the Attorney General coordinates with: ·        Other state attorneys general in multi-state investigations, ·        The New York Department of Financial Services, ·        The New York City Department of Consumer and Worker Protection, and ·        Federal agencies such as the FTC. Even as federal consumer protection enforcement ebbs and flows, the states, and New York in particular, remain active and increasingly influential. Practical Takeaways for Businesses A central theme of the discussion was that the FAIR Act is not a reason to relax compliance efforts—quite the opposite. As Alec Webley noted, statutes like this create an opportunity for companies and their counsel to step back, reassess business practices, and ask hard questions: ·        Are consumers complaining about this practice? ·        Is it genuinely necessary to the business? ·        Does it obscure costs or risks? ·        Would the company be comfortable seeing it described on the front page of a major newspaper? Practices that may have survived under a narrow deception standard could now pose real enforcement risk under broader unfairness and abusiveness principles. Looking Ahead Both guests emphasize that the FAIR Act was drafted with care and restraint, and that early enforcement actions are likely to fall squarely within the statute's text and intent. At the same time, emerging technologies, particularly digital marketing, fine-print disclosures on mobile devices, and the use of AI, are clearly on the Attorney General's radar. The bottom line is clear: the FAIR Act marks a fundamental shift in New York consumer protection law. With its February 17, 2026 effective date now here, businesses operating in or affecting New York should be taking this development seriously by reviewing practices, strengthening compliance frameworks, and preparing for a more expansive and assertive enforcement environment. We will continue to track developments under the FAIR Act and report on key enforcement actions and interpretations as they unfold. Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.

On this episode of the Ballard Spahr Consumer Finance Monitor Podcast, we examine consumer debt and bankruptcy through the lens of Debt's Grip: Risk and Consumer Bankruptcy (University of California Press, 2025), by Pamela Foohey, Robert M. Lawless, and Deborah Thorne. Based on decades of research from the Consumer Bankruptcy Project, the nation's most comprehensive study of bankruptcy filers, Debt's Grip goes beyond aggregate data to document the lived experience of financial distress. The book shows how illness, job loss, aging, family structure, debt collection, and racial inequality converge to push households toward bankruptcy and what that reveals about how financial risk is allocated in the U.S. economy. Rather than treating bankruptcy as a personal failure, the authors demonstrate how policy choices over time shifted economic risk from institutions to individuals, leaving many households one unexpected expense away from crisis. Those risks fall unevenly, with Black families, single mothers, and older Americans disproportionately affected. The Authors Pamela Foohey, Allen Post Professor of Law, University of Georgia School of Law, is a principal investigator with the Consumer Bankruptcy Project and a leading scholar on bankruptcy and financial distress. Robert M. Lawless, Max L. Rowe Professor of Law, University of Illinois College of Law, is a nationally recognized empirical scholar of bankruptcy and consumer finance and a principal investigator of the Consumer Bankruptcy Project. Deborah Thorne, Professor of Sociology at the University of Idaho, brings a critical sociological lens, foregrounding the voices and experiences of bankruptcy filers. She also is a principal investigator of the Consumer Bankruptcy Project. Podcast Highlights In the episode, we discuss: ·        Why people actually file for bankruptcy ·        The debts most likely to lead to financial collapse ·        How households struggle to stay afloat before filing ·        The role of debt collection and litigation ·        How people come to see bankruptcy as a solution ·        Policy reforms that could reduce reliance on credit during hardship Key Takeaways ·        Bankruptcy is rarely about irresponsibility. It is often the endpoint of systemic risk-shifting. ·        Financial distress is structurally unequal. Race, age, gender, and health matter. ·        Filers exhaust alternatives before filing. Bankruptcy reflects resilience under pressure, not moral hazard. ·        Policy choices matter. Stronger safety nets and a more humane bankruptcy system can reduce financial harm. Conclusion Debt's Grip offers a rigorous, data-driven, and deeply human account of consumer bankruptcy in America. It challenges entrenched myths and provides valuable insight for policymakers, regulators, and industry participants alike. We thank Professors Foohey, Lawless, and Thorne for joining the podcast and for their important contribution to the field. Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.

In this episode of the Consumer Finance Monitor Podcast, we examine one of the most closely watched and increasingly controversial developments in consumer finance: earned wage access (EWA) products. EWA products allow workers to access a portion of wages they have already earned before their scheduled payday. Proponents describe these products as a valuable financial tool that helps consumers manage cash-flow shortfalls without resorting to traditional payday loans. Critics, including the Center for Responsible Lending (CRL), argue that EWA products function as high-cost credit, often involving opaque fees that can trap consumers in cycles of debt. Our panel brings together industry and advocacy perspectives to explore the research, legal arguments, and regulatory uncertainty surrounding EWA, a market that has grown rapidly but remains unevenly regulated. Meet the Speakers ·        Alan Kaplinsky – Host and moderator. Founder and former Practice Group Leader of Ballard Spahr's Consumer Financial Services Group; now Senior Counsel. ·        Lucia Constantine – Senior Researcher at the Center for Responsible Lending, focusing on mortgage lending and predatory debt practices. ·        Yasmin Farahi – Deputy Director of State Policy and Senior Policy Counsel at CRL, specializing in small-dollar lending and state consumer protection initiatives. ·        Joseph Schuster – Partner in Consumer Financial Services Group at Ballard Spahr, with extensive experience advising on earned wage access products and their legal and regulatory treatment. Key Topics Covered in the Episode ·        What Is Earned Wage Access? An overview of EWA products, how they operate, and why they have become a focal point for regulators and consumer advocates. ·        Consumer Protection vs. Industry InnovationCRL presents research suggesting that EWA products operate as high-cost credit and may contribute to debt accumulation, while industry participants argue the products provide needed liquidity and differ fundamentally from traditional loans. ·        Fees, Tips, and Consumer Understanding A discussion of common pricing models, including expedited access fees and voluntary "tips," and whether consumers fully understand the true cost of using EWA services. ·        Research Findings CRL reviews studies conducted by it based on anonymized transaction data indicating frequent repeat usage, escalating fees, and increased overdraft activity among some users. ·        The Regulatory and Legal Landscape An examination of ongoing litigation, divergent state approaches, and federal regulatory ambiguity. While some states regulate EWA as credit, others have carved out exemptions. Courts are increasingly being asked to determine whether EWA products constitute "loans" under existing law. ·        Industry Responses and SafeguardsDiscussion of non-recourse structures, voluntary fee models, and industry-led efforts to mitigate consumer harm. ·        Policy Outlook Consideration of congressional interest, state-level reform efforts, and the likelihood of future regulatory intervention. Why This Episode Matters The debate over earned wage access is still in its early stages, but the outcome will have significant implications for fintech providers, employers, consumers, and regulators. This episode provides essential context and analysis for financial services professionals seeking to understand how EWA fits within existing consumer credit frameworks, and how that framework may change. Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr and founder and former chair of the firm's Consumer Financial Services Group. We invite you to subscribe on your preferred podcast platform for weekly insights into key developments in consumer financial services law and regulation. Since its recording, there have been a few developments relevant to this episode. For instance, on December 22, 2025, the Consumer Financial Protection Bureau issued an advisory opinion that states the Truth In Lending Act (TILA) does not apply to certain "earned wage access (EWA) products," and it rescinds a proposed interpretive rule issued under former CFPB Director Chopra that classified these products as credit subject to TILA with their fees considered finance charges. The Center for Responsible Lending expressed opposition to this latest advisory opinion. On January 13, 2025, the House Financial Services Committee held a hearing on financial technology that included consideration of draft legislation on "Earned Wage Access," which CRL refers to as "payday loan apps." Around 200 nonprofits have written to Congress about their opposition to the version of this bill as introduced last session of congress.

Our podcast show this week consists of a webinar we produced on November 10, 2025, titled, "Breaking Developments in National Bank Act Preemption." Join our panel of top legal experts as they break down how landmark court rulings are changing the rules for national banks, examine the growing application of state law, and discuss what these changes mean for compliance, risk, and the future of consumer financial services. Meet the Panelists: ·                 Alan Kaplinsky (Host & Moderator): Senior Counsel and former Practice Group Leader and Founder of the Consumer Financial Services Group at Ballard Spahr ·                 Professor Arthur Wilmarth: Professor Emeritus at George Washington University Law School, widely recognized for his scholarship on National Bank Act preemption. ·                 John Culhane, Jr.: Senior Counsel of the Consumer Financial Services Group at Ballard Spahr specializing in national bank compliance and regulatory strategy. ·                 Ronald Vaske: Senior Counsel of the Consumer Financial Services Group at Ballard Spahr advising financial institutions on regulatory and compliance matters. ·                 Joseph Schuster: Partner of the Consumer Financial Services Group at Ballard Spahr guiding national banks on state law adaptation and implementation. Key Points Covered: ·                 Landmark Court Decisions: Recent cases like Cantero in the Supreme Court and Conti in the First Circuit Court of Appeals have moved National Bank Act preemption away from blanket coverage, requiring courts to carefully assess each state law's impact on national banks. ·                 Dodd-Frank's Transformative Impact: The Dodd-Frank Act codified the legal standard established by the Supreme Court in the Barnett Bank Case that state laws are only preempted if they "prevent or significantly interfere" with national bank authority, and curtailed the OCC's sweeping preemption powers. ·                 Erosion of Uniform Federal Standards: National banks now face the reality of complying with an increasing patchwork of state laws, which challenges the traditional advantage of a federal charter. ·                 Compliance Strategies in Practice: Banks are proactively reviewing and updating their products, disclosures, and processes to ensure compliance with varying state requirements using robust legislative tracking methods. ·                 What's Next - Regulatory and Litigation Outlook: The panel anticipates ongoing legal and regulatory developments and urges institutions to prepare for further changes by starting comprehensive compliance reviews now. This episode delivers vital updates and practical guidance on the evolving landscape of national bank preemption, making it essential listening for anyone involved in consumer financial services, banking compliance, or regulatory strategy.  Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.

Join us for a timely and insightful conversation on the evolving landscape of anti-money laundering (AML) compliance in consumer financial services. In this episode of the Consumer Finance Monitor Podcast, Alan Kaplinsky, founder and senior counsel of Ballard Spahr's Consumer Financial Services Group, hosts Terence Grugan, co-chair of Ballard Spahr's AML team and a recognized authority in financial crimes compliance. Together, they deliver a comprehensive discussion on the latest regulatory developments, enforcement trends, and strategic implications for institutions across the industry. Episode Overview and Key Takeaways: 1.     Regulatory Streamlining: Explore how AML and Bank Secrecy Act (BSA) compliance requirements are being recalibrated, with a focus on reducing unnecessary burdens, modernizing supervisory practices, and emphasizing substance over form. 2.     Bank Examination Modernization: Learn how recent policy changes are promoting risk-based, targeted examinations for community banks, enabling institutions to allocate resources more effectively while maintaining compliance. 3.     Non-Bank Financial Institution Developments: Gain insights into emerging proposals from FinCEN and the Treasury aimed at gathering industry feedback and potentially scaling back AML obligations for non-bank entities such as casinos, money services businesses, and others. 4.     SAR Reporting Reforms: Hear about FinCEN's clarifications that are refining suspicious activity reporting (SAR) requirements, streamlining documentation, and reducing operational complexity for financial institutions. 5.     Evolving Crypto Regulation: Assess the regulatory retreat within the cryptocurrency sector, implications for AML risk, and anticipated impact of new regulatory initiatives including upcoming Stablecoin rules. 6.     Enforcement Trends: Review notable shifts in enforcement priorities, with fewer high-profile AML fines this year and an increased focus on targeting substantive violations rather than technical compliance failures. 7.     National Security and Economic Policy Alignment: Understand how AML and financial crime policies are aligning with broader national security priorities, including sanctions compliance, immigration enforcement, and efforts to disrupt international cartels. 8.     Future Outlook: Preview possible future developments, including greater centralization of AML enforcement within the Treasury Department and continuing modernization of compliance obligations. This episode equips financial institutions, compliance professionals, and industry leaders with expert perspectives on the regulatory, operational, and strategic changes transforming AML compliance. Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.

This week on the award-winning Consumer Finance Monitor Podcast, host Alan Kaplinsky is joined by Senior Counsel Mark Levin and special guest Professor Mohsen Manesh for a powerful roundtable on one of today's most consequential topics: the SEC's new position on mandatory arbitration in corporate governance documents and how state law and market realities are shaping the future for consumer financial services companies, investors, and legal counsel. Meet the Speakers: Alan Kaplinsky - Host and Senior Counsel at Ballard Spahr's Consumer Financial Services Group, Alan brings decades of expertise in arbitration and class action waivers to the table. Mark Levin - A leading authority on arbitration provisions and regulatory compliance, Mark (now retired) was a seasoned attorney at Ballard Spahr and long-time collaborator with Alan. Mohsen Manesh - The L.L. Stewart Professor of Business Law at the University of Oregon, Mohsen is a nationally recognized legal scholar and co-author of a widely cited NYU Law Review article on shareholder arbitration clauses. In This Episode, the Panel Explores: The SEC's Policy Shift: Why the SEC now allows mandatory arbitration provisions in registration statements, and how the focus has moved to disclosure, not the substance, of arbitration clauses. State Law Challenges: How Delaware's SB 95 (DGCL 115(c)) bans arbitration provisions for federal securities law claims in corporate charters, and the legislative backstory behind this move. Federal vs. State Authority: The panel debates whether states like Delaware can lawfully prohibit shareholder arbitration in corporate charters without being preempted by the Federal Arbitration Act (FAA). Practical Guidance for Issuers: The importance for issuers of providing clear, plain-language disclosures about arbitration clauses and drafting these provisions conservatively while preserving statutory remedies to address current legal and regulatory challenges. Market Realities and Investor Response: Despite ongoing legal debates, public companies thus far have shown little interest in reincorporating elsewhere to enable arbitration provisions, as both shareholder demand for mandatory arbitration and management support for such proposals remain limited. Issuer and Investor Impact: While arbitration can offer faster, more efficient, and confidential dispute resolution and reduce costly class actions, it may also limit options for class-wide remedies and restrict investor recourse. What's Next? With the SEC's new stance and ongoing uncertainty about the interplay with state laws, the landscape for shareholder arbitration is in flux—and this episode breaks down the key issues you need to watch. Whether you're a legal professional, corporate executive, or investor, this episode delivers sharp insight and practical takeaways on regulatory trends that could reshape the field of consumer financial services. Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry. Following this episode, Professor Mohsen Manesh released a new article, The Past, Present, and Likely Future of Shareholder Arbitration, which builds directly on the insights he shared on the podcast. The full paper is available here.