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In the event of a company filing for bankruptcy, creditors often face the risk of preference exposure, where the company may seek to reclaim funds paid to the creditor prior to the bankruptcy filing. However, the Bankruptcy Code offers affirmative defenses that can help creditors reduce their preference exposure or liability. One such defense is the new value defense, also known as the subsequent new value defense. This defense, outlined in 11 U.S.C. § 547(c)(4), is designed to encourage creditors to continue their engagement with financially distressed companies.

Editor’s Note: In recent regulatory and enforcement developments, the California Privacy Protection Agency (CPPA) proposed a regulatory framework for automated decision-making technology (ADMT) and revisions to the California Consumer Privacy Act (CCPA) regulations. The Federal Communications Commission (FCC) adopted rules to protect consumers from SIM-swapping scams and port-out fraud, and is investigating the impact of AI on robocalls and robotexts. The FCC plans to expand its data breach reporting rules, while the Federal Trade Commission (FTC) approved the use of compulsory process in nonpublic investigations for AI-related products and services. In litigation, a class action lawsuit was filed against Northwestern Mutual for alleged violation of the Illinois Genetic Information Privacy Act (GIPA), a growing sourcing of litigation for Illinois plaintiffs, and the FTC’s privacy complaint against mobile data broker Kochava has been unsealed. Law firm Warner Norcross + Judd LLP has been granted permission to appeal a standing issue related to a ransomware attack, and the Ninth Circuit has restricted the scope of personal jurisdiction applicable to e-commerce platforms and sided with car manufacturers in a privacy claim. Internationally, the EU is establishing a European Health Data Space (EHDS), the UK government proposed amendments to the Data Protection and Digital Information Bill, and the G7 countries signed a code of conduct for AI development.

Yesterday, the Texas Bankers Association, the Amarillo Chamber of Commerce, the American Bankers Association, the Chamber of Commerce of the United States of America, the Longview Chamber of Commerce, the Independent Community Bankers of America, and the Independent Bankers Association of Texas Revenue Based Finance Coalition (collectively, the plaintiffs) filed a complaint in the U.S. District Court for the Northern District of Texas challenging the Federal Reserve Board, the Federal Deposit Insurance Corporation, and the Office of the Comptroller of the Currency’s (collectively, the agencies) Final Rule modernizing how they assess lenders’ compliance under the Community Reinvestment Act (CRA). In their complaint, the plaintiffs asked the court to vacate the Final Rule and provide a preliminary injunction that would pause implementation of the Final Rule while the court decides the case.

As discussed here, on October 24, the Federal Reserve Board, the Federal Deposit Insurance Corporation, and the Office of the Comptroller of the Currency finally issued their long-awaited final rule modernizing how they assess lenders’ compliance under the Community Reinvestment Act (CRA). The CRA regulations had not been updated since 1995.

We are pleased to share our annual review of regulatory and legal developments in the consumer financial services industry. With active federal and state legislatures, consumer financial services providers faced a challenging 2023. Courts across the country issued rulings that will have immediate and lasting impacts on the industry. Our team of more than 140 professionals has prepared this concise, yet thorough analysis of the most important issues and trends throughout our industry. We not only examined what happened in 2023, but also what to expect — and how to prepare — for the months ahead.

On January 29, the Office of the Comptroller of the Currency (OCC) issued a notice of proposed rulemaking regarding its review of business combinations under the Bank Merger Act (BMA). Specifically, the OCC proposed: (i) amendments to 12 C.F.R. § 5.33 to remove provisions related to expedited review and the use of streamlined business combination applications subject to BMA review; and (ii) the adoption of an official policy statement setting forth general principles the OCC will use in its review of applications subject to the BMA. If adopted as proposed, the rulemaking will likely lead to longer approval timelines for certain national bank transactions, particularly for mergers involving well-managed, well-capitalized community banks, internal corporate reorganizations, and branch acquisitions that would have otherwise been able to take advantage of expedited review. Currently, assuming certain criteria are met, a BMA filing that qualifies as a business reorganization eligible for a streamlined application is deemed approved on the 15th day after the close of the comment period, unless the OCC notifies the applicant that the filing is not eligible for expedited review or the expedited review process is extended. However, if the rulemaking is adopted as proposed, § 5.33 would be amended to remove the procedures for expedited review and the use of streamlined applications.

In the rapidly changing world of financial services, payment processors, money transmitters, and other fintech businesses are grappling with an increase in regulatory scrutiny and consumer expectations. Troutman Pepper’s dedicated Payments team is actively engaged in addressing these challenges, providing legal support to clients throughout their business cycles.