Publications

Two recent rulings by federal courts in Missouri and Louisiana have issued injunctions to allow legal challenges brought by several Republican-led states to make their way through federal courts, prohibiting CMS from enforcing the vaccine mandate for healthcare workers.

Reflecting on the 2021 predictions I made in January, I can’t help but note that, yet again, we’ve had a year of surprises. Rather than putting COVID-19 in our rearview, in many ways, the pandemic worsened this year. Below is an accounting of what happened – or didn’t – based on my winter 2021 predictions.

The Bullet Point is a biweekly update of recent, unique, and impactful cases in state and federal courts in the area of commercial litigation.

The challenge to OSHA’s Emergency Temporary Standard (ETS) that was pending before the U.S. Court of Appeals for the Fifth Circuit has been transferred. The Judicial Panel on Multidistrict Litigation issued a ruling on November 16, consolidating all challenges to the ETS to the Sixth Circuit in Ohio.

While Hunstein II reaffirms the holding of Hunstein I, looking beyond the surface of the opinion reveals significant limitations to the holding that should alleviate some of the concerns initially raised by Hunstein I.

Member Sarah McMillan authored an article on anticipated litigation and trends related to climate change in the ABA's Fall 2021 issue of The SciTech Lawyer (which Sarah also co-edited).

On Saturday, November 6, the United States Court of Appeals for the Fifth Circuit released an emergency motion to stay enforcement of the Emergency Temporary Standard (“Mandate” or “ETS”) issued by the Occupational Safety and Health Administration (OSHA) the day before.

The Bullet Point is a biweekly update of recent, unique, and impactful cases in state and federal courts in the area of commercial litigation.

In September, the Biden administration announced that the Department of Labor would mandate that all businesses with 100 or more workers require their employees to either get vaccinated against the Coronavirus or face mandatory weekly testing. For many employers, the announcement raised more questions than answers to their Covid woes.

Regulatory compliance in the auto finance industry, or financial services in general, is challenging enough under “everyday” circumstances. Crisis scenarios only amplify opportunities for legal and compliance risks to slip past.

Devin Leary-Hanebrink (Washington, DC) authored a two-part column for MH Insider to help readers better understand the HUD Code and the rulemaking process.

A recent decision from the United States District Court for the Eastern District of Texas should trigger alarm bells for financial institutions’ in-house counsel.

The Bullet Point is a biweekly update of recent, unique, and impactful cases in state and federal courts in the area of commercial litigation. We’re pleased to expand the Bullet Point from its previous coverage of Ohio case law to include additional areas in McGlinchey’s footprint.

Years in the making, the Consumer Financial Protection Bureau's final rules amending the Fair Debt Collection Practices Act take effect on Nov. 30. Given President Joe Biden's increased enforcement and monetary penalties for unfair and deceptive acts and practices, are you prepared to ensure your business complies with the new FDCPA requirements?

On October 12, 2021, the Occupational Safety and Health Administration (OSHA) submitted its draft of the proposed enforcement standards to the White House’s Office of Management and Budget for review (OMB), advancing President Biden’s vaccine mandate for private employers to an impending compliance reality.

On Thursday, Sept. 9, 2021, President Joe Biden announced that the U.S. Department of Labor was preparing to mandate that all business with 100 or more workers require their employees to either get vaccinated against the coronavirus or face mandatory weekly testing.

Dallas attorneys Gregg Stevens and Frank Catalano authored Chapter 17 of the State Bar of Texas's 17th annual issue of Advanced Consumer and Commercial Law, pertaining to the current state of TCPA related litigation following the U.S. Supreme Court's decision in Facebook, Inc. v. Duiguid.

The Bullet Point is a biweekly update of recent, unique, and impactful cases in state and federal courts in the area of commercial litigation.

HIPAA privacy rules do not prevent employers and businesses from asking employees and visitors about their COVID-19 vaccination status, the government recently reiterated.

Frank Catalano (Dallas) authored an article in the September, 2021 issue of Alabama Bankers Association’s Board Briefs publication related to permissible uses of credit reports under the Fair Credit Reporting Act (FCRA). Click here to view the issue.

On September 23, 2021, at the conclusion of a contentious hearing, a Louisiana state court judge in Lafayette dismissed a lawsuit filed by 48 employees and contractors of Ochsner Lafayette General Health System seeking to have the hospital’s COVID-19 vaccine mandate declared unlawful.

As an employer, how can you go about moving the needle in the areas of diversity, inclusion, equity, and wellness for your people, especially in an era of increasingly virtual and remote operations? From our perspective as employment lawyers, here are some considerations employers may keep in mind.

The Bullet Point is a biweekly update of recent, unique, and impactful cases in state and federal courts in the area of commercial litigation. We’re pleased to expand the Bullet Point from its previous coverage of Ohio case law to include additional areas in McGlinchey’s footprint.

The Bank Secrecy Act and parts of the U.S. Patriot Act's OFAC requirements have seemingly similar goals: to prevent money laundering and the funding of terrorist activities. Yet a lively debate surrounds which entities are covered by these acts, what the acts stipulate, and what entities must do to comply with them.

Chris Nichols (Baton Rouge) authored “Recent Developments in Intellectual Property Law” for the Spring 2021 issue of the ABA Tort Trial & Insurance Practice Law Journal. The article contains a review of selected decisions rendered over the past year with a particularly meaningful impact on U.S. patent, trademark, and copyright laws. View the full articleMore

On Thursday, September 09, 2021, President Biden announced that the Department of Labor is preparing to mandate that all business with 100 or more workers require their employees to either get vaccinated against the coronavirus or face mandatory weekly testing.

The next installment in McGlinchey’s Deep Dive Series covering all things Bank Secrecy Act is a webinar featuring attorneys from McGlinchey’s Financial Institutions Compliance team as well as CAMS certified managers from Crowe LLP.

The Bullet Point is a biweekly update of recent, unique, and impactful cases in state and federal courts in the area of commercial litigation.

Government contracts can be lucrative, but they also create risks for contractors (or anyone who receives government funds) who fail to follow the regulations.

The Bank Secrecy Act (BSA) is the United States' most important anti-money laundering (AML) regulation that requires banks, money services businesses, FinTechs, and other financial institutions to assist U.S. government agencies to detect and prevent money laundering.

The U.S. Supreme Court upheld the District Court’s judgment vacating the CDC's second eviction moratorium that had prevented the eviction of any tenants who live in counties that are experiencing substantial or high levels of COVID-19 transmission and who make certain declarations of financial need.

On the morning of August 23, 2021, the Food and Drug Administration (FDA) granted full approval to Pfizer-BioNTech’s two-dose vaccine for people ages 16 and up.

Statute of Frauds Csizmadia v. Gilkey, 5th Dist. Morgan No. 20AP0006, 2021-Ohio-2760 In this appeal, the Fifth Appellate District affirmed the trial court’s decision, agreeing that the property owners could not assert a defense under the statute of frauds as they were not parties to the assignment of the land installment contract. The Bullet Point:More

Late yesterday, New Orleans became one of the first cities nationwide to implement a proof of COVID-19 vaccine mandate effective August 16, 2021.

In this appeal, the Eighth Appellate District affirmed the trial court’s decision, agreeing that the sellers had no obligation to disclose the holes in the seawall and that the doctrine of caveat emptor barred the buyers’ claims.

When Tesla announced that it would begin accepting Bitcoin payments, it sent shock waves through the automotive industry and cryptocurrency markets. Many businesses are apprehensive about accepting cryptocurrencies for payment due to a variety of factors, including crypto’s volatility and uncertain regulation.

While online motor vehicle sales and financing transactions were already prevalent before COVID-19, the pandemic accelerated the growth of that sector.

The non-dischargeability of private student loans in bankruptcy proceedings has long been assumed to be almost absolute, but a July 15, 2021 decision by the U.S. Court of Appeals for the Second Circuit suggests that is not always the case.

Gregg D. Stevens and Stefanie L. Deka co-authored an article regarding whether the TCPA was constitutional between the enactment of the government-debt exception in 2015 and the AAPC decision in 2020.

Promissory Estoppel Faith Lawley, LLC v. McKay, 12th Dist. Warren No. CA2020-08-052, 2021-Ohio-2156 In this appeal, the Twelfth Appellate District affirmed the trial court’s decision, agreeing that there was no evidence the plaintiffs ever made a clear and unambiguous promise on which the defendant could have reasonably relied to support a promissory estoppel claim. TheMore

As part of the broad Executive Order on Promoting Competition in the American Economy issued Friday, July 9, 2021, President Biden is requesting that the Federal Trade Commission (FTC) ban or limit non-compete agreements. The order (which also calls on the FTC to ban unnecessary occupational licensing) aims to provide American workers with options and flexibility in their employment and to encourage innovation in the economy. According to White House press secretary Jen Psaki, the move will fulfill Biden’s “campaign promise to promote competition in the labor markets.”

On June 25, 2021, the U.S. Supreme Court sided with small oil refineries by making it easier for the companies to win exemptions from the existing mandate that they mix ethanol and other renewable fuels into gasoline and diesel, known as the Renewable Fuel Program (RFP). When these mandates were adopted in 2005 and 2007, Congress granted temporary exemptions to small refineries and authorized those refineries to apply for extensions at any time.

On the eve of the June 30, 2021, the expiration date for all federal pandemic moratoriums, the Federal Government extended its foreclosure and eviction moratoriums, and encouraged delinquent borrowers to seek forbearance and other relief.

The U.S. House of Representatives on June 24th voted 218 to 208 to repeal the OCC “True Lender” rule under the CRA. As discussed in earlier alerts, the OCC published the rule last year to eliminate challenges regarding when a loan is actually made by a federally-chartered bank, instead of a non-bank partner that takes assignment of the loan shortly after origination.

Privity to Sue Yeager v. U.S. Bank, 1st Dist. Hamilton No. C-200262, 2021-Ohio-1972In this appeal, the First Appellate District affirmed in part as modified, reversed in part, and remanded the trial court’s decision. The Appellate Court found the beneficiaries were in privity to enforce their rights, as their interests became vested immediately upon the creationMore

Auto dealerships and lenders are likely familiar with “know your customer” requirements, which typically involve obtaining identification information from customers and verifying that information.

Anyone who has attended a conference that looked at information from regulators within the past few months could not help but notice that a key area of focus is fair lending and equal access to credit.

Creditors often ask when the Fair Credit Reporting Act’s (FCRA) rules relating to firm offers of credit apply. Do they apply when the creditor makes a prequalified offer? Does that change if the creditor makes a prescreened or preapproved offer? What is the difference between these terms?! The answer comes down to two words – permissible purpose.

In February 2021, the Ohio Legislature passed S.B. 13 (the Act) which, among other things, shortened the statute of limitations for causes of actions predicated on written and non-oral contracts. The revisions to the Ohio Revised Code take effect June 16, 2021, and counsel and litigants that practice in Ohio should be aware of these new shortened time frames to commence lawsuits predicated upon contracts in Ohio.

On May 11, 2021, we reported on a number of bills which were pending before the Louisiana legislature which, if signed into law, would have had a direct impact on employers. With the exception of one, the labor and employment bills had difficulty gaining traction this session.

Devin Leary-Hanebrink (Washington, DC) authored a primer on the HUD Code for the May/June 2021 issue of MHInsider Magazine.

On May 28, 2021, the EEOC issued new guidance on COVID-19 vaccinations in the workplace entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and other EEO laws.” Among the salient topics considered, the EEOC confirmed that documentation regarding an employee’s test status and related health information is confidential medical information.

Timeline to Confirm Arbitration Award BST Ohio Corp. v. Wolgang, 2021-Ohio-1785In this appeal, the Supreme Court of Ohio reversed the lower court’s decision, holding that neither R.C. 2711.09 nor R.C. 2711.13 requires a court to wait three months after an arbitration award is issued before confirming the award. The Bullet Point: In this matter, theMore

On May 20, 2021, the IRS announced that “businesses that receive crypto assets with fair market value of more than $10,000” will need to be reported. In short, there will be a new layer of significant crypto-sphere reporting requirements.

Chase Stoecker (Fort Lauderdale) discusses financial institutions' legal obligations under ADA Article III in the April/May 2021 issue of the Alabama Bankers Association Board Briefs.

Coming out of the COVID-19 pandemic, the auto finance industry will face a number of issues when it comes to self-help repossession following a borrower’s default.

On January 7, 2021, the U.S. Department of Labor (DOL) issued a final rule that clarified how employers should determine who is an independent contractor and who is an employee for purposes of the Fair Labor Standards Act (FLSA). However, the DOL has since withdrawn this Trump-era rule, effective May 6, 2021.

The McGlinchey Stafford Labor and Employment team is monitoring several bills in the 2021 Louisiana Legislative Session as they may impact to your business.

Once again, a borrower who argued his debt was cancelled when he received an IRS Form 1099-C was told by the court that it was merely discharged. The court says “discharge” is not “actual discharge.” While acknowledging that a common consumer may not easily understand the distinction, the court held that “discharge” for IRS reporting purposes is not necessarily “actual discharge” of the obligation.

The next installment in McGlinchey’s 14-week series covering all things Fair Credit Reporting Act is a webinar featuring attorneys from McGlinchey’s Labor and Employment and Consumer Financial Services Compliance and Litigation teams.

Easement by estoppel DeepRock Disposal Solutions, LLC v. Forté Prods., LLC, 4th Dist. Washington No. 20CA15, 2021-Ohio-1436In this appeal, the Fourth Appellate District affirmed as modified the trial court’s decision, agreeing that the claimant did not have an easement by estoppel over the properties, as it failed to establish any misrepresentation by the landowners. TheMore

The February Supreme Court decision in City of Chicago v. Fulton was widely celebrated in the lending community because the court found that a lender who repossesses a vehicle before a borrower files for bankruptcy is not in violation of the “exercise control” provision of the Bankruptcy Code’s automatic stay section.

The FCRA governs actions of CRAs, users of consumer reports, and the parties that furnish information to the CRAs. A comprehensive FCRA Policy should be tailored to your entity and reflect how it will actually obtain, use, and share consumer reports, in enough detail to match the complexity of your operations.

On April 21, 2021, the Eleventh Circuit Court of Appeals held that: i) a violation of the FDCPA prohibition against communicating with a third-party in connection with the collection of a debt gives rise to a concrete injury to establish Article III standing and ii) a debt collector’s transmittal of a consumer’s personal information to its vendor is a communication in connection with the collection of a debt for purpose of the same FDCPA prohibition. 

The Federal Deposit Insurance Corporation (FDIC) recently published a notice seeking public comments on how to modernize its sign and advertising requirements. The FDIC requires banks to display the FDIC sign where deposits are normally received and to use an official statement when advertising deposit products.  

Bob Driscoll (Washington) and Ross Benson (Birmingham) wrote an article that was published in Law.com's May, 2021 issue of the Business Crimes Bulletin. The article serves to provide attorneys with an overview of the legality and illegality of various cryptocurrency-related activities.

Member Michael H. Rubin (Baton Rouge) co-wrote an article on multijurisdictional practice and transactional lawyers for the LSU Law Review with James Geoffrey Durham from the University of Dayton.

The Eleventh Circuit released an Opinion on April 21, 2021, related to the Fair Debt Collection Practices Act (FDCPA), which is a must-read for all in the business of servicing loans or collecting debts.

Things are quickly changing at the Consumer Financial Protection Bureau. President Joe Biden made Dave Uejio acting director of the CFPB on January 20, and nominated former FTC Commissioner Rohit Chopra for director.

On April 19, 2021, the CFPB announced that it issued an interim final rule in support of the CDC’s residential eviction moratorium, effective May 3, 2021, which requires debt collectors to provide written notice to tenants of their rights under the CDC Order and prohibits debt collectors from misrepresenting tenants’ eligibility for protection from eviction under the moratorium.

The IRS has announced a safe harbor in Revenue Procedure 2021-20 that will permit certain taxpayers an election to deduct in 2021 expenses paid with proceeds of a forgiven PPP that were not claimed as a deduction on their tax return or information return filed in 2020.

Contract Ratification Gionino’s Pizzeria Inc. v. Reynolds, 7th Dist. Carroll No. 20 CA 0940, 2021-Ohio-1289In this matter, the Seventh Appellate District reversed and remanded the lower court’s decision, finding that although the document was only partially executed, the parties’ behavior constructively ratified the contract. The Bullet Point: As a gatekeeping issue, a plaintiff must demonstrateMore

The Fair Credit Reporting Act (FCRA) impacts every aspect of a U.S. consumer’s life. Consumer reports are obtained by lenders, employers, landlords, and even utility companies, impacting the cost of credit and everyday services, as well as the ability to obtain employment or access housing.

Shanna Boughton (Boston), Patrick Voke (Boston), and Dennis Amore (New York City) co-authored an article summarizing some of the regulatory developments affecting default mortgage servicers and further considerations for handling default litigation in the ABA Business Law Section’s The Business Lawyer, Volume 76, Issue 2, Spring 2021.

Sanford Shatz (Irvine) and Paul Lysobey (Cleveland) co-authored an article on the California Consumer Privacy Act in the ABA Business Law Section’s The Business Lawyer, Volume 76, Issue 2, Spring 2021.

Robert Savoie (Cleveland) and Sarah Edwards (New Orleans) co-authored an article on the Military Lending Act, Servicemembers Civil Relief Act, and State Military Law Updates in the ABA Business Law Section’s The Business Lawyer, Volume 76, Issue 2, Spring 2021.

In March, the Securities and Exchange Commission’s Division of Examinations (SEC) announced its 2021 examination priorities. The SEC has committed to focusing its investigations on, among other issues, “attendant risks related to FinTech,” conflicts of interest for securities brokers, and investment advisor breach of fiduciary duty.

On March 2, 2021, the Commonwealth of Virginia enacted the Virginia Consumer Data Protection Act, making Virginia the second state in the United States to enact a comprehensive data privacy regime, following in the footsteps of the CCPA of 2018.

On April 1, 2021, the Supreme Court held in a 9-0 decision that an “automatic telephone dialing system” is a device that has the capacity either to store a telephone number using a random or sequential generator, or to produce a telephone number using a random or sequential number generator. As a quick refresher: the Telephone Consumer Protection Act (TCPA) restricts certain calls made by an “auto dialer,” which the TCPA defines as equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator and to dial such numbers.”

Loss Mitigation Review Under RESPA Hurst v. Caliber Home Loans, Inc., N.D.Ohio No. 5:19-cv-00315, 2021 U.S. Dist. LEXIS 51849 (Mar. 19, 2021) In this matter, the Northern District of Ohio held that a loan servicer did not violate RESPA as it did not repeatedly request documents already in its possession, but rather requested documents thatMore

In the recent Supreme Court decision in City of Chicago, Illinois v. Fulton, the Court rightly found that merely retaining possession of a vehicle repossessed pre-petition is not a violation of Bankruptcy Code § 362(a)(3) as an exercise of control over property of a debtor’s chapter 13 estate.

In a much-anticipated U.S. Supreme Court ruling issued on March 25, the Court unanimously rejected Ford Motor Company’s argument that it could not be subject to personal jurisdiction in products liability actions filed in the states where the plaintiffs resided and where the underlying accidents occurred.

Auto finance companies, like all businesses, love the opportunity to partner with other companies to obtain new customers. A popular tool to do so is through lead generation websites and companies that offer to help find potential customers.

Labor and Employment attorney Chase Stoecker (Fort Lauderdale) published an article in Law.com's Mid-Market Report on March 19 regarding the evolving interpretation of the ADA's "reasonable accommodations" standard regarding remote work following the Coronavirus pandemic.

In February, my colleague Brad Barback and I participated in a four-day virtual arbitration on behalf of a construction client. Under “normal” circumstances, all the parties would have gathered here in the conference room of our Baton Rouge office. However, as we’re all aware, we’re not operating in what was previously considered “normal” circumstances. GivenMore

The Telephone Consumer Protection Act (TCPA), and the barrage of litigation that stems from its various interpretations, is always in the news. In fact, there is so much change that it’s often hard for a casual follower to filter out the news from noise. For example, court cases discussing the constitutionality of the TCPA as a resultMore

As expected, the change in presidential administrations is leading to a change in administrative policies. All consumer financial service providers who are subject to the jurisdiction of the Consumer Financial Protection Bureau (CFPB) should carefully review their compliance management policies and procedures with a particular focus on Unfair, Deceptive, or Abusive Acts or Practices (UDAAP) and Fair Lending.

Contract Interpretation McCruter v. Travelers Home & Marine Ins. Co., 11th Dist. Lake No. 2019-L-167, 2021-Ohio-472 In this appeal, the Eleventh Appellate District affirmed in part and reversed in part the lower court’s decision, and remanded the matter after determining the trial court’s interpretation of the contract was contrary to the express language of theMore

Robert Savoie (Cleveland) authored two chapters on the Servicemembers Civil Relief Act and the Military Lending in the ABA Business Law Section's Consumer Finance Law: Understanding Consumer Financial Services Regulations.

Jeffrey Barringer (Albany) and Devin Leary-Hanebrink (Washington, DC) authored a column in the January/February 2021 issue of MH Insider on the latest federal and state regulatory changes.

Connected car payments are a subset of connected car technology. Connected cars are vehicles with technology integrated into the user’s daily life that allow the vehicle to communicate with other, external tech. Connected cars have been around for years. For example, a vehicle with a built-in navigation system linked to external GPS is a connected car.

Over 27 million Americans have now received at least a first dose of what are proving to be effective COVID-19 vaccines. While this is extraordinarily welcome news, it raises complex questions about who will return to work, when, and how, including the tricky issue of whether employers can require employees to be vaccinated.

On February 18, 2021, the New York Court of Appeals issued a landmark decision in four cases related to the application of the statute of limitations to foreclose a mortgage in New York. Most notable is the long-anticipated decision in Freedom Mortgage Corporation v. Engel (“Engel”), which reversed the Appellate Division’s prior decision on theMore

Specific Performance Jad Rentals of Youngstown, LLC v. Cox, 7th Dist. Mahoning No. 19 MA 0096, 2021-Ohio-304 In this appeal, the Seventh Appellate District affirmed the trial court’s decision, agreeing that the buyer was entitled to an award of specific performance to purchase the seller’s property. The Bullet Point: Real estate is almost always consideredMore

If employers do not keep detailed payroll records, they run the risk of losing overtime claims under the Fair Labor Standards Act (FLSA). An employer recently lost just such a case in the U.S. Fifth Circuit Court of Appeal.

Since the beginning of the year and the change in Presidential administrations, a number of relief measures granted in response to the COVID-19 pandemic have been extended. Below are updates regarding relief measures in place pertaining to mortgage foreclosures and evictions, debt collection, and student lending.

Mag Bickford (New Orleans) and Chase Stoecker (Ft. Lauderdale) authored the article "Vaccines in the Time of COVID: An Employer’s Perspective" in the Alabama Bankers Association December 2020 Board Briefs newsletter.

Washington Member Bob Driscoll had an article published in Government Executive on February 4, 2021. The article gives an overview for newly-appointed members of the Biden Administration on what to consider and how to prepare for the possibility of investigation.

Unconscionability Defense to Arbitration Sebold v. Latina Design Build Group, L.L.C., 8th Dist. Cuyahoga No. 109362, 2021-Ohio-124 In this appeal, the Eighth Appellate District affirmed the trial court’s decision agreeing that the arbitration provision was not procedurally unconscionable. The Bullet Point: Ohio has a strong public policy favoring arbitration of disputes. As such, Ohio courtsMore