On July 31, the Board of Governors of the Federal Reserve System (Federal Reserve) issued its July Senior Loan Officer Opinion Survey on Bank Lending Practices, which addressed changes in the standards and terms on, and demand for, bank loans to businesses and households in the second quarter of 2023. Banks reported that lending standards are currently on the tighter end of the range for all loan categories. Specifically, standards tightened for all consumer loan categories and demand weakened for auto and other consumer loans, while it remained basically unchanged for credit card loans. Looking forward, banks reported expecting to tighten standards further on all loan categories citing an uncertain economic outlook and expected deterioration in collateral values and the credit quality of loans.

The Eleventh Circuit has now joined seven other circuits in holding that receipt of unwanted text messages constitutes concrete injury for standing. On July 24, the Eleventh Circuit issued an en banc decision in Drazen v. Pinto, holding that a plaintiff who received a single, unwanted text message has standing to sue under the Telephone Consumer Protection Act (TCPA). The court departed from its earlier ruling in Salcedo v. Hanna, which held that a single unsolicited text message is but a “brief, inconsequential annoyance [] categorically distinct from those kinds of real but intangible harms” that confer Article III standing.

As discussed here, on April 26, the Texas Bankers Association, the American Bankers Association (ABA), and Rio Bank, McAllen, Texas (Rio Bank) filed a complaint in the U.S. District Court for the Southern District of Texas challenging the Consumer Financial Protection Bureau’s (CFPB or Bureau) final rule under § 1071 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Final Rule). As discussed here, § 1071 amended the Equal Credit Opportunity Act (ECOA) to impose significant data collection and reporting requirements on small business creditors. The plaintiffs’ complaint relied heavily on the Fifth Circuit’s decision in Community Financial Services Association (CFSA) v CFPB, finding the CFPB’s funding structure unconstitutional and, therefore, rules promulgated by the Bureau invalid. The CFPB’s appeal of the Fifth Circuit’s decision is currently pending before the U.S. Supreme Court (discussed here).

In April, we discussed how Colorado’s state supreme court issued its highly anticipated decision confirming a borrower’s bankruptcy discharge does not accelerate secured installment debt or trigger the final statute of limitations period to recover the debt. Now, Washington’s high court has rendered its decisions on the topic, joining the handful of states to address this trending issue.

On July 24, the California Office of Administrative Law approved the Civil Rights Council’s (the Council) proposed amendment to California’s Employment Regulations Relating to Criminal History, which are set to become effective on October 1, 2023. Among other changes, the amendment modifies the existing regulations regarding employers’ investigation of a job applicant’s criminal history. Notably, the amendment expands the definition of “employer” under those regulations in such a way that could potentially implicate a background screener conducting a background check on behalf of an employer.

On June 6, Nebraska Governor Jim Pillen signed into law Legislative Bill 92, which, among many other subjects, amends the Nebraska Installment Loan Act (the NILA). Previously, a license was required for a lender seeking to take advantage of the usury authority provided by the NILA and also for any person that holds or acquires any rights of ownership, servicing, or other forms of participation in a loan under the NILA. Legislative Bill 92 expands the scope of the licensing requirement to “any person that is not a financial institution who, at or after the time a [covered] loan is made by a financial institution, markets, owns in whole or in part, holds, acquires, services, or otherwise participates in such loan.” “Financial institution” is broadly defined to include all federally insured depository institutions. And the licensing requirement, by its terms, applies to entities providing limited services and/or purchasing limited interests (not just the predominant economic interest) in loans by financial institutions of $25,000 or less, with rates exceeding the Nebraska general usury limit.

According to a recent report by WebRecon, court filings under the Fair Credit Reporting Act (FCRA), Fair Debt Collection Practices Act (FDCPA), and the Telephone Consumer Protection Act (TCPA) were down for the month of June. This reverses the upward swing seen in these filings in May. Complaints filed with the Consumer Financial Protection Bureau (CFPB) were down in May and remained down for June.

On July 27, the Consumer Financial Protection Bureau (CFPB) released a new blog post, positing that cashflow data, broadly defined as the various inflows, outflows, and accumulated amounts in a consumer’s checking and savings accounts, may provide lenders with a better picture of a consumer’s ability to repay their loans than using a credit score.

The modern “Information Age” has been defined by rapidly increasing interconnectivity and dependence on the internet by consumers and businesses alike. One side effect of these technological advances has been the increasing frequency of cyberattacks and data breaches perpetrated by sophisticated cyber criminals using ever-evolving methods of infiltration. And, as can be expected, along with the increase in data breaches over the past few decades, we have seen the rise of data breach litigation, and in particular, consumer class action litigation against the companies who have been victimized by those data breaches. The Fourth Circuit has seen several high-profile data breach class actions. Such class actions often face difficult uphill battles in proving the necessary elements for class certification, particularly when it comes to defining a theory of harm that can be proven by common evidence across the class. Last month, Judge Gibney of the Richmond Division of the Eastern District of Virginia dismissed one such data breach class action case for a more basic problem: the named plaintiffs could not demonstrate they had suffered any concrete injury sufficient to establish Article III standing at all, let alone damages that could be proven classwide. Holmes v. Elephant Ins. Co., No. 3:22cv487, 2023 WL 4183380 (E.D. Va. June 26, 2023).