Quite a bankruptcy week. First there was Forever21's gone forever 22, and now we have 23andMe. Kudos to the Slips' own Melissa Jacoby and her co-authors Sara Gerke and Glenn Cohen for having the most timely publication ever regarding the 23andMe bankruptcy filing. But there are some weird things about this case, namely the debtor acquiescing in a massive stay violation and the St. Louis, Missouri, venue.
The Supreme Court, in a decision that will surely be beloved of law professors, held that the bank fraud statute applicable to loan applications covers only actually false statements, not merely misleading statements. The Court got to flex its "oh look at how smart we are" muscle with clever illustrations of the difference between false and misleading statements:
If a tennis player says she “won the championship” when her opponent forfeited, her statement—even if true—might be misleading because it could lead people to think she had won a contested match. The Government also agreed at oral argument with another example: If a doctor tells a patient, “I’ve done a hundred of these surgeries,”
when 99 of those patients died, the statement—even if true—would be misleading because it might lead people to think those surgeries were successful.
And not to be outdone, Justice Alito adds in his own precocious observation in a concurrence:
After noticing that a plate of 12 fresh-baked cookies has only crumbs remaining, a mother asks her daughter, “Did you eat all the cookies?” If the child says “I ate three” when she actually had all 12, her words would be literally true in isolation but false in context. The child did eat three cookies (then nine more). In context, however, the child is implicitly saying that she ate only three cookies, and that is false.
Come on. Would common sense possibly suggest that Congress intended to allow misleading, but not literally false statements on bank loan applications? The result is absurd. Nothing in the legislative history would suggest that Congress wanted such a constrained view of the statute; indeed the legislative history isn't discussed, but there's lots of dictionary definition discussed. Apparently we are ruled by Merriam-Websters, rather than common sense. (And if that's the case, lets just have an AI judge and avoid all the SCOTUS nomination strum und drang). The Court's ruling is an invitation to the Holmesian bad man to go right up to the line of what is false. It all but invites Clintonian sophistry.
But given the Court's casuistry, let me pose my own: if a bank's credit application included a question "Have you made any misleading statements on this application?" and the answer was false, would that trigger a violation of 18 U.S.C. § 1014?
I think the answer is yes. That suggests a simple regulatory fix to this bad decision: bank regulators should insist that bank loan applications include a declaration that the applicant has not made any misleading statements in connection with the application.
The Trump Organization is trying to shake down Capital One. And they’ll probably succeed. The Trump Organization has sued Capital One for closing its accounts in January 2021, allegedly because of Donald Trump’s political views. (Or, put differently, Capital One decided that it was not good business to continue being associated with an entity connected to the January 6 insurrection.)
As a legal matter, the Trump Organization's complaint is risible; Capital One should be able to easily get the case dismissed. But that might not matter because the Trump Organization has them over a barrel: if Capital One doesn’t pay up, the implicit threat is that the Trump administration will move to block the Capital One-Discover merger and generally make life unpleasant for Capital One. (Of course, if the Trump administration were really clever, they wouldn’t have dropped the CFPB suit so fast, but that’s probably just that the right hand didn’t talk to the left.) That’s gangster capitalism and underscores the incredible conflicts of interest that continue to exist for Trump.
Continue reading "The Trump Organization’s Shake Down of Capital One" »
Shame on the National Credit Union Administration (NCUA). The NCUA announced that it would stop publishing data on overdraft and NSF fee income for individual credit unions. It did so in the name of…financial inclusion! 🤯 What really makes my head spin here is that NCUA still has a Democratic majority on its board. wtaf.
The concern apparently animating the NCUA’s decision to cease publishing institution-level data and only put out aggregate figures is that CUs with high overdraft fee income will be tagged as predatory institutions and suffer reputational consequences, discouraging them from offering for-fee overdraft services, which according to the NCUA Chair “can be the best option in a bad situation” … or which can also result in a $40 latte. To claim that “the previous data collection policy incentivized credit unions to avoid serving the needs of low-income and underserved communities” is sheer nonsense. Instead, it is just obfuscating the extent to which some credit unions are taking advantage of their members. What's worse, NCUA's move presages what might be a broader "going dark" move in bank regulation, in which the publicly available call report data will contain less and less granular information, masking the real financial condition of institutions and allowing regulators to sweep problems under the rug.
Several years ago, Aaron Klein at Brookings did a great study looking at how OD/NSF fees were a key revenue component for a small number of small banks. Klein observed that "It is disturbing that regulators tolerate banks that are mostly or entirely dependent on overdraft fees for profitability."The NCUA announcement spurred me to do the same for credit unions. The results are more troubling.
Continue reading "Predatory Financial Inclusion and the NCUA Ostrich" »
In 2021 I posted a draft of an article about custodial risk in cryptocurrency that turned out to be quite prescient. At the time I wrote it, I got a lot of pushback from people in the crypto world that I was scaremongering and that crypto custodians were rock solid. I tried to explain to crypto investors that whatever they knew about crypto, they didn't know bupkes about bankruptcy, and that if and when things went south, the custodial situation was going to be a hot, hot mess.
And lo and behold, when Voyager and Celsius and BlockFi and FTX came along, a lot of crypto investors got slapped in the face by the workings of Chapter 11. Crypto investors found out that: (1) they were generally just unsecured creditors; (2) their claims were for dollars based on the value of the crypto holdings at the moment of the bankruptcy filing; and (3) it takes a long, long, long time to get paid in a bankruptcy case and you don’t get interest if you’re unsecured. Ouch.
Now we’re again at another peak crypto moment, and it appears that the industry has learned …. nothing (or perhaps everything, if you're cynical), as it is pushing federal stablecoin legislation, the so-called GENIUS Act, that is going to lull a lot of investors into thinking that stablecoins are safe assets, namely that a stablecoin is always redeemable for US dollars at a 1:1 ratio. It's not. A stablecoin will maintain a 1:1 peg ... until it doesn't, and once that happens, stablecoin investors are going to be taking serious haircut in the ensuing bankruptcy. None of the insolvency provisions in the GENIUS Act change that. There is no way to eliminate credit risk for free, but the GENIUS Act sets up expectations: I fear that this legislation is going to make unsophisticated investors wrongly believe that credit risk on stablecoins is not an issue. If that happens, the GENIUS Act is setting the stage for a federal bailout of disappointed cryptocurrency investors when a stablecoin issuer goes belly-up and investors discover that they don't have the protections they thought they had.
In other words, the GENIUS Act is creating an implicit guaranty of stablecoins, which means it is creating an implicit subsidy of the whole DeFi world that operates outside the reach of anti-money laundering regulations. What genius thought this up?
Continue reading "The GENIUS Act: Insolvency Risk with Stablecoins" »
L'État, c'est moi is what came into my mind when I read the Executive Order on Ensuring Accountability for All Agencies issued by the President today. The executive order is not only the most complete and direct enshrinement of the unitary executive theory we've yet seen from the administration, but it also marks the end of independent regulatory agencies. And coming from a President with a distinct taste for Louis XIV gilt, well, you can understand why my mind wandered to the lord of Versailles.
The crypto industry has been spreading a tale of federal bank regulators persecuting crypto and forcing banks to "debank" crypto companies. Like the grossly mischaracterized Operation Choke Point, the crypto debanking narrative is utter and self-serving bs. At best, the actual evidence shows the FDIC expressing very normal and reasonable risk management concerns—that is, the FDIC was just doing its job. There is zero evidence that the FDIC ever threatened or directed banks not to do business with crypto companies.
The simple truth is that crypto companies were debanked by the market, not regulators. Banking crypto poses a unique, correlated credit risk that should rightly concern any bank's risk committee. Crypto companies present a risk of correlated chargebacks that makes them all potential Fyre Festivals, so banks with prudent risk management practices determined that it was a value negative proposition to provide banking services to crypto companies. That's the invisible hand of the market at work, not the invisible hand of the Deep State.
The DOGE approach to "reforming" government agencies is a sledgehammer. That's because it doesn't have the knowledge or patience to use a scalpel. But there are real costs to using a sledgehammer in terms of unintended consequences that are going to blow up on all consumers, be they MAGA supporters, Democrats, or Whigs. Let me highlight just one.
The Dodd-Frank Act, enacted in response to the 2008 financial crisis, prohibits lenders from making mortgage loans without verifying the borrower's ability to repay. The CFPB has a regulatory safeharbor, however, known as the Qualified Mortgage Rule. If a mortgage is a Qualified Mortgage, it is deemed to satisfy the ability-to-repay requirement. To be a Qualified Mortgage, a mortgage loan must have an interest rate that does not exceed the "Average Prime Offer Rate" by more than a specified level. Sounds go so far, right? Basically, if a mortgage isn't priced too much higher than the average mortgage rate, we're going to assume that it's not problematic.
But here's the catch: the "Average Prime Offer Rate" is a number determined by the CFPB. It isn't self-executing. Instead, CFPB personnel need to collect and analyze data and then periodically publish the Average Prime Offer Rate. If CFPB personnel are not permitted to work, the Average Prime Offer Rate will not update. (You can thank the Trump 1.0 CFPB for adopting this methodology instead of a debt-to-income ratio...) In a falling interest rate environment, that won't matter much. But if rates rise, then the Average Prime Offer Rate will be stuck at too low of a level, so more mortgages will fall out of the Qualified Mortgage safe harbor, thereby exposing lenders to legal risk. What could cause rates to rise? Well, tariffs for one thing, particularly if the Fed is concerned about keeping inflation in check. Hmmmm.
Continue reading "Unintended Consequences of Standing Down the CFPB" »
Continue reading "No, The CFPB’s Not Dead. It’s Not Even Close to Dead. " »
The CFPB's acting Director, Project 2025's Russell Vought notified the Board of Governors of the Federal Reserve Board that the CFPB would not be making its permitted annual draw on the Fed for funding this year. He also direct the CFPB to cease all examination and supervision activity. Both actions are illegal.
Continue reading "Russ Vought Breaks the Law on His First Day as CFPB Director" »
Elon Musk seems to have CFPB on his hit list after having trashed USAID. Here's the thing: shutting down CFPB is actually very different in effect than shutting down USAID. USAID provides an important set of tools for American diplomacy and funds a lot of good works around the world. But it is not a regulatory agency. It doesn't administer statutes and promulgate regulations. CFPB does. Shutting down USAID harms development aid recipients and diminishes the US's foreign relations toolkit, but it doesn't cause problems with the operation of US law. Shutting down CFPB does.
Shutting down the CFPB does not void the Consumer Financial Protection Act or the enumerated consumer laws the CFPB administers like the Truth in Lending Act and the Electronic Fund Transfer Act. Those authorities can only be changed by an act of Congress, which will require 60 votes in the Senate. Nor would a work shutdown void the regulations the Bureau has promulgated under those laws. Those can only be repealed through notice and comment rulemaking. But it does mean that there would be no one with authority to update and adjust those regulations, which can all be enforced by state attorneys general, who are likely to pick up some of the slack from a non-functioning CFPB. (Remember that a violation of an enumerated consumer law is a violation of the Consumer Financial Protection Act, triggering CFPA remedies, not just the enumerated consumer law's remedies.)
This might not matter to Musk in his move fast and break things mode, but a non-functional CFPB is going to cause real problems for regulated financial institutions. Let's start small: the Truth in Lending Act has exemptions for smaller transactions. The exemptions get inflation adjusted, but that requires a functional CFPB to promulgate the adjustments through rulemakings. Or suppose a firm wants to get a no-action letter. That's not going to be possible without the CFPB functioning. Or suppose there is another pandemic-like crisis that requires temporary suspension of certain rules. Not possible if the agency isn't up and running. Bottom line: there are real problems that will arise from having a zombie agency responsible for over a dozen major federal laws.
Feb. 8. 2025 update: Both USAID and CFPB have statutory duties to Congress. Like USAID, the Bureau is required to submit various annual or semi-annual reports to various Congressional committees (see e.g. or here or here or here or the last section here). These reports are a critical part of Congressional oversight over the Bureau. A Bureau that isn't operating can't exactly do that, which might be grounds for members of Congress to bring litigation against the administration. Whether a report that simply says "We didn't do anything because we didn't feel like it, nyah, nyah," makes muster is an open question—is there a good faith requirement implied? I could see courts saying, "It's up to Congress to discipline an insubordinate agency or a President who fails to take care that the laws are faithfully executed." But the reporting requirement might give members of Congress a hook for litigation over deactivating the agencies based on a concern that the agency will not report and that it will be impossible for Congress to undertake timely action. After all, there is a new Congress every two years, basically pressing a restart button, such that failure to transmit an annual report for 2025 would not even be on Congress's radar until 2026 and Congress might not have time to act before a new Congress is in place. Put another way, courts might need to take judicial notice of Congress's limited temporal bandwidth for governing a federal government that is vastly more complex than anything the Framers imagined.
Hal Scott is at it again, calling for President Trump to shut down the Consumer Financial Protection Bureau by executive order. Scott's logic here is that (according to him) the CFPB has not had a legal basis for its funding in recent years, so the President would simply be "tak[ing] care that the laws be faithfully executed" by standing down the agency's activities for lack of proper funding, even if the agency would still continue to exists on paper.
If Scott's first argument about the CFPB's funding was farcical, this one is a downright dangerous argument for upending the balance of the constitutional system by giving the President the unilateral power to arbitrarily decide what parts of government operations are legal.
Continue reading "Hal Scott's Call for a Presidential Ukase on the CFPB" »
Continue reading "Musk and Treasury's Payment Systems (He Punched the Bursar...) " »
There's a fascinating development in the Alex Jones Chapter 7 case. Jones ended up in bankruptcy to try to avoid paying on the defamation judgment the Sandy Hook victims' families won against him. His case converted to a Chapter 7, and a trustee has been liquidating his assets. Among the assets the trustee is trying to sell are Jones's social media accounts in X (formerly Twitter).
X has since filed an objection to the sale claiming that the X accounts are not the property of Jones, but are instead owned by X, which merely issued Jones a non-transferable license. Now this "limited" objection is only about the "accounts" proper, not the content Jones posted on X. X claims that it is objecting because of it has an interest in preventing the transfer of accounts because of its concern about making sure that users are who they say they are.
X's professed concern about fake accounts is risible. X does not generally verify its users when it onboards them. Nor does X appear monitor in any way to determine if an account has in fact been transferred. Instead, X is a platform that is lousy with fake accounts and bots. So what's this really about?
As far as I can tell, the X objection to the sale is about Elon Musk wanting to ensure that Alex Jones can continue to use his Twitter handles and retain his followers and make it very difficult for anyone to delete or edit Jones's old posts.
Continue reading "Is Elon Musk Trying to Protect Alex Jones's X Accounts?" »
Fed Chair Jerome Powell has tersely indicated that he won't resign if asked by the President and that he cannot be fired or demoted. Peter Conti-Brown, who is a keen observer of Fed issues, has a nice summary of the state of the law. The basic idea is that as a formal legal matter, members of the Federal Reserve Board are removable by the president "for cause," such as inefficiency, neglect of office, and malfeasance. It's less clear if the President can demote the Chair to a mere Board member and, if so, what would be the standard for demotion, but it would seem strange that the greater cannot include the lesser.
But here's the thing: none of the legal rules matter.
Continue reading "Can Trump Fire the Fed Chair? Some Legal Realism" »
Earlier this month the FTC finalized its “Click-to-Cancel” Rule to make it easier for consumers to get out of recurring subscriptions and memberships. The rule was promulgated under the FTC’s power to prohibit unfair and deceptive acts and practices in commerce, but the FTC’s jurisdiction under that power does not extend to banks, and banks have an auto-renew product that is in some instances much more problematic than automatic subscription renewals. What I’m talking about are automatic CD rollovers, which are sometimes done in an unfair and abusive way to rollover unsuspecting depositors into way-below-market-rate CD terms.
Continue reading "Unfair and Abusive Automatic CD Rollovers" »
Continue reading "OCC Preemption Brief Regarding the Illinois Interchange Statute" »
J&J’s at it again with a third talc bankruptcy filing, this time in SDTX. To paraphrase Marx, the first time was tragedy, the second time farce, and now the third time is fubar.
Why fubar? tl;dr is that J&J's betting the case on the purported authority of a small Mississippi plaintiffs' firm to unilaterally change the votes of its joint clients from "no" to "yes". 😮🤯
Continue reading "If You're Gonna File in Texas, You Gotta Have Your Votes in Hand" »
Elon Musk has just learned that Brazil doesn't give a lot of credence to the fictions of corporate asset partitioning: affiliated companies can be liable for each other's involuntary obligations. This shouldn't be a surprise; Mariana Pargendler's work has made clear that Brazil's got a very different approach to corporate law than the US. In particular, limited liability isn't so strongly fetishized. Now if we only had some sort of legal doctrine in the US that ignored limited liability...
The Supreme Court's opinion in Harrington v. Purdue Pharma left open a lot of questions about the extent of its scope. We now have one of the first opinions exploring those questions. Judge Craig Goldblatt of the Delaware bankruptcy court faced a request for a preliminary injunction in the bankruptcy of right-wing social media platform Parler. Judge Goldblatt concluded that "authority to 'extend the stay' survives Purdue Pharma." I'm skeptical.
Continue reading "Preliminary Injunctions After Harrington v. Purdue Pharma" »
This term's Supreme Court decisions have completely remade administrative law, both by eliminating Chevron deference and by effectively eliminating the Administrative Procedures Act's statute of limitations. In Loper Bright Enterprises v. Raimondo, the Court held that as a constitutional matter federal courts could not give deference to federal agencies' interpretations of ambiguous statutes. And then the Court opened the door to APA challenges to virtually every existing federal regulation, no matter how old, with Corner Post Inc. v. Board of Governors of the Federal Reserve System, a statutory ruling that the APA's six-year statute of limitations runs from the date a plaintiff is allegedly injured by the regulation, rather than from the date of the regulation's finalization. That means that a business that is incorporated tomorrow has at least six years to challenge any regulation that affects it, and maybe more depending on when it is affected. In other words even New Deal or Progressive era regulations could be challenged tomorrow and there would be no deference to the agency's long-standing interpretation of the statute authorizing the regulations. I pity my colleagues who teach admin law--their course lost at least a credit hour's worth of material. Maybe they'll decide to take up commercial law....
These decisions are, taken together, a major rolling back of the administrative state. But these decisions will affect different agencies differently, and the Court's rulings may have some unintended consequences. To wit, many federal agencies have both rulemaking and enforcement powers. In some instances, enforcement is dependent on rulemaking, as the agency lacks a general statutory prohibition to enforce, but can only enforce its particular rules. The EPA is (I think) an example of this type of agency. It doesn't have a general statutory prohibition of "don't pollute." OSHA and the FDA and NLRB and Dept. of Commerce. For agencies in this category, Loper Bright Enterprises and Corner Post clip not only the agencies' rulemaking power, but also their enforcement power, because they will have to defend the rules they are enforcing.
In other instances, however, the enforcement powers are independent of rulemaking, as there is a broad statutory prohibition that the agency can enforce without rules. This is where federal financial regulators sit. In these cases, Loper Bright Enterprises and Corner Post will have a hydraulic effect: agencies are going to do what they're going to do, so if they can't do it through rulemaking, they'll do it through enforcement and supervision. In other words, what the Supreme Court did was to supercharge regulation by enforcement in the financial regulatory space.
Continue reading "Purdue Pharma Decision: a Big Win for Mass Tort Victims" »
Karl Marx's famously quipped how historical figures appear twice, "the first time as tragedy, the second time as farce." So too with the legal arguments about the constitutionality of the CFPB's funding: we are firmly in farce territory at this point.
Nevertheless, over at Ballard Spahr's Consumer Finance Monitor blog my friend Alan Kaplinsky doesn't seem to get the joke and has earnestly taken issue with my criticisms of Hal Scott's claim that the CFPB's funding is unauthorized both by statute and under the Constitution. I find the legal arguments involved here so thin that I wouldn't bother with a second blog post about them, other than that they've found a welcoming audience from some members of Congress (yes, I can hear the remarks from the peanut gallery...). So let's go through this again.
Continue reading "Second Time as Farce: the Absurdity of the New Anti-CFPB Arguments" »
The Supreme Court issued an important ruling about the National Bank Act's preemption standard today that precludes broad, categorical preemption of state consumer financial laws, but instead requires a fact-specific analysis.This decision opens the way to more expansive state consumer financial regulation that affects banks.
Continue reading "SCOTUS National Bank Act Preemption Ruling" »
Bankruptcy lawyers are familiar enough with issues presented but NOLs. And NILs (name, image, likeness rights) have existed for as long as the modern Bankruptcy Code. But those rights have usually come up in the context of debtors with established, valuable brands (e.g., Mike Tyson). Now college atheletes can enter into NIL deals, and for many of them the value isn't yet established and there might not even be licensing deals yet. That situation poses the question of to what extent unlicensed NIL rights are property of the bankruptcy estate, and not of the debtor?
Retired Harvard Law Professor Hal Scott has a curious op-ed in the Wall Street Journal suggesting that despite (or because) of the Supreme Court's recent ruling in CFPB v. CFSA that the CFPB's funding is both unauthorized by statute and unconstitutional on account of the Federal Reserve System running a deficit currently (and projected through 2027).
It's a bizarre and incorrect argument, and were it coming from anyone other than Scott it could be dismissed as harmless and uninformed flibflab, but Scott is a personage with serious financial regulatory credentials, who is very tied in to the upper crust of anti-financial regulatory circles, such that one has to wonder if this is a trial balloon for a U.S. Chamber of Commerce or Bank Policy Institute-supported challenge.
In any event, let me quickly explain why Scott is wrong on both the statutory and constitutional arguments.
I have some further thoughts on the CFPB v. CFSA decision on Bloomberg Law: decision not only benefits consumers but ultimately benefits many financial services businesses by ensuring both a level of stability in regulation and the preservation of the "legal infrastructure" that the CFPB has created over the past 13 years, such as safe harbors, inflation adjustments, and advisory opinions.
My friend Professor Tony Casey has been the most vocal academic defender of non-consensual non-debtor releases in bankruptcy. I obviously disagree with Tony on both the legality and policy substance, but Tony's repeatedly taken me to task in scholarship (here and here) and various social media platforms (here and here) for having supposedly changed my view of the issue.
Tony's charge that I've flip-flopped is based on a 2019 blog post in which I defended then presidential candidate Elizabeth Warren's work in Dow Corning, which Tony thinks is a non-consensual non-debtor release case.
Unfortunately, Tony's misread Dow Corning and therefore sees a contradiction where none exists. I have never taken issue with consensual releases of creditors' claims against non-debtors as part of a global settlement (although what constitutes adequate consent is a separate issue). Instead, my concern has always been with mandatory, non-consensual release of claims against non-debtors. Dow Corning released third-parties, but it was not a non-consensual release case. Unlike in, say, Purdue Pharma, where the non-debtor releases purport to bind all creditors irrespective of consent, the dissenters in Dow Corning were allowed to opt-out and pursue their remedies.
Continue reading "Not All Third-Party Releases Are the Same" »
The Supreme Court upheld the constitutionality of the CFPB's funding mechanism in its 7-2 decision in CFPB v. CFSA. Although I can't say I love the opinion's reasoning, the Court got to the right result, as Patricia McCoy and I urged in an amicus brief. The ruling does have some interesting omissions and politics, but its ultimately impact will be the normalization of the CFPB, something that's good for consumers and businesses alike.
The FTX bankruptcy plan proposed today has gotten a lot of attention for the fact that it is promising to pay (over time) 118% of allowed customer claims. That's not quite as great as it sounds given that customer claims were locked in at their November 2022 values. Getting 118% isn't nearly as good as getting 300% (roughly the appreciation of Bitcoin since November 2022), but it's a heckuva lot better than getting the typical "cents on the dollar" bankruptcy treatment.
But there is something here that could be controversial: the payment of post-petition interest on customer claims at a 9% "Consensus Rate." (The 118% is with two years of 9% interest.)
Continue reading "FTX Bankruptcy Plan: What's with the "Consensus" Interest Rate? " »
Johnson & Johnson is preparing to take a third crack at addressing its toxic talc liabilities through bankruptcy in what we might call a "Texas Three-Step". And as with J&J's previous attempts, this one has some pretty glaring issues.Yet because of J&J's ability to forum shop and even picks its judge, it will likely be able to sidestep adjudication of many of the issues and avoid appellate review entirely. Instead, J&J's strategy is going to be to ram a seriously deficient plan through with the assistance of its hand-picked judge and then avoid appellate review through the equitable mootness doctrine. It's a strategy that might work. And if it does, it is a sign that the bankruptcy system is seriously broken.
I have a new article out in the George Washington Law Review, entitled The New Usury: The Ability-to-Repay Revolution in Consumer Finance. The abstract is below:
American consumer credit regulation is in the midst of a doctrinal revolution. Usury laws, for centuries the mainstay of consumer credit regulation, have been repealed, preempted, or otherwise undermined. At the same time, changes in the structure of the consumer credit marketplace have weakened the traditional alignment of lender and borrower interests. As a result, lenders cannot be relied upon to avoid making excessively risky loans out of their own self-interest.
Two new doctrinal approaches have emerged piecemeal to fill the regulatory gap created by the erosion of usury laws and lenders’ self-interested restraint: a revived unconscionability doctrine and ability-to-repay requirements. Some courts have held loan contracts unconscionable based on excessive price terms, even if the loan does not violate the applicable usury law. Separately, for many types of credit products, lenders are now required to evaluate the borrower’s repayment capacity and to lend only within such capacity. The nature of these ability-to-repay requirements varies considerably, however, by product and jurisdiction. This Article terms these doctrinal developments collectively as the “New Usury.”
The New Usury represents a shift from traditional usury law’s bright-line rules to fuzzier standards like unconscionability and ability-to-repay. Although there are benefits to this approach, it has developed in a fragmented and haphazard manner. Drawing on the lessons from the New Usury, this Article calls for a more comprehensive and coherent approach to consumer credit price regulation through a federal ability-to-repay requirement for all consumer credit products coupled with product-specific regulatory safe harbors, a combination that offers the best balance of functional consumer protection and business certainty.
A recent, disturbing, and truly scandalous development in Chapter 11 mass tort cases is the phenomenon of debtors trying to stuff the ballot box with "junk" claims, that is claims that should by all lights be disallowed as unenforceable and therefore ineligible to vote on a plan. Debtors have recognized that they can strategically co-opt part of the mass tort bar to push through plans: debtors offer small payments to claims that ought to be disallowed (and thus to the attorneys representing those claims on contingency fee) in order to get those claimants to vote in favor of a plan that forces a low-ball payment on the legitimate tort claimants. While debtors have to pay a bit for the "junk" claims' votes, they come out ahead in the end because by flooding the electorate with the junk claims, they can overwhelm the voting power of the legitimate claims and stick the legitimate claimants with a much lower payment than otherwise.
Continue reading "Stuffing the Chapter 11 Ballot Box with "Junk" Claims" »
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