Publications

On Thursday, May 19, 2022, the Ninth Circuit ruled that hemp-derived products which contain delta-8 THC are currently legal under federal law, and entitled to trademark protection.

In a unanimous Opinion issued Monday, May 23, the United States Supreme Court resolved a circuit split and held that waiver of a right to arbitrate does not require a showing of prejudice to the opposing party.

McGlinchey’s Commercial Law Bulletin is a biweekly update of recent, unique, and impactful cases in state and federal courts in the area of commercial litigation.

On April 15, the Consumer Financial Protection Bureau issued its annual report on the Fair Debt Collection Practices Act. The report not only looks back at the number and type of debt collection complaints the bureau received in 2021, but also identifies specific debt collection activities that the bureau targeted in the past year.

Members of the auto finance industry continue to have a strong appetite for developing their digital origination and servicing platforms. Much of the industry also has a desire to use data in novel and creative ways to facilitate customer access to credit. 

On March 31, 2022, California Governor Gavin Newsom approved Assembly Bill 2179, which extends existing protections for California renters.

On March 24, 2022, a complaint was filed against Equifax Information Services, LLC based on its alleged inaccurate reporting of a mortgage loan delinquency. The borrowers filed the two-count complaint in the U.S. District Court for the Southern District of California, alleging Equifax violated the Fair Credit Reporting Act (FCRA) and the California Consumer Credit Reporting Agencies Act (CCRAA). The borrowers contend Equifax failed to follow reasonable procedures to establish maximum possible accuracy in the preparation of the borrowers’ credit reports. As a result, they seek actual, statutory, and punitive damages, attorney fees and costs, and other relief.

System (“Board”), the Federal Deposit Insurance Corporation (“FDIC”), and the Office of the Comptroller of the Currency (“OCC”), jointly issued a final rule with respect to establishing notification requirements for computer-security incidents for banking organizations and bank service providers in order to promote early awareness of emerging threats and enable the agencies to react to the threats before the threats become systemic (“Final Rule”).

Almost eight million borrowers entered forbearance plans during the pandemic, including those plans available under the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Many borrowers have exited their forbearance plans. As a follow-up to its May 2021 report, the Consumer Financial Protection Bureau (CFPB) recently published an updated report on the characteristics of mortgage borrowers who remained under the protection of a forbearance plan as of January 2022 to help understand their demographics and financial capacity.

On January 26, 2022, the Consumer Financial Protection Bureau (CFPB) issued a Request for Information Regarding Fees Imposed by Providers of Consumer Financial Products or Services (“RFI”). The CFPB indicated its desire to mitigate charges like credit card late fees and overdraft and non-sufficient funds fees, which it said accounted for billions of dollars in 2019. The CFPB stated that its goal is to “strengthen competition in consumer finance by using its authorities to reduce these kinds of junk fees.”

Since its passage, the California legislature has amended the CCPA; California voters modified the CCPA when they passed ballot proposition 24, the California Privacy Rights Act of 2020 (CPRA); the California attorney general implemented final regulations; and the California Department of Justice began enforcing the CCPA.

The laws governing FinTechs have continued to develop. One prominent business model utilized by FinTech companies involves partnerships with traditional depository institutions, often state-chartered, FDIC-insured community banks. In the context of this model, the non-depository FinTech companies and traditional depository institutions act together to offer consumer financial services and products.

McGlinchey’s Commercial Law Bulletin is a biweekly update of recent, unique, and impactful cases in state and federal courts in the area of commercial litigation.

Major airlines and airports are dropping their mask requirements following a federal court ruling that struck down the federal government’s mask mandates for public transportation.

On Friday, April 1, 2022, the House of Representatives passed the Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act for the second time in two years. The MORE Act is one of at least three pieces of offered legislation that legalizes, or partially legalizes, marijuana at the federal level.

Tax returns and return information generally are protected from disclosure by Section 6103 of the Internal Revenue Code (Code), and unauthorized disclosures can result in penalties. Certain disclosures are permitted, but what happens when a person properly receiving return information “rediscloses” that information?

alters that a district court cannot “look through” to the underlying controversy in order to support jurisdiction to decide a motion to confirm, amend, or alter an arbitration award issued under the Federal Arbitration Act (FAA).

The hardship stays provided under New York’s COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (EEFPA) officially ended on January 15, 2022. What does this mean for lenders, mortgage servicers, and landlords?

The CFPB highlighted several areas of concern in automobile lending in its recent blog post titled “Rising car prices means more auto loan debt.” Technology and its impact on consumers, particularly when it comes to how the use of technology may “disproportionally impact certain communities,” was a primary focus of this bulletin.

McGlinchey’s Commercial Law Bulletin is a biweekly update of recent, unique, and impactful cases in state and federal courts in the area of commercial litigation.

In November, 2021, the ASTM published its E1527-21 (-21 Standard), its 2021 update to its Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.

With a new administration comes new priorities for federal agencies, and the Consumer Financial Protection Bureau (CFPB) is no different. During the Trump administration, the Bureau focused on “educating” consumers. Under President Biden, the CFPB has signaled, through words and actions, a return to significantly more aggressive supervision and enforcement actions.

Guaranteed asset protection (GAP) waivers have always held state regulators’ attention, but as vehicle price increases drive up consumer demand for debt cancellation agreements, regulatory scrutiny into such agreements is also on the rise.

Signed into law on March 15, 2022, the Adjustable Interest Rate (LIBOR) Act of the Consolidated Appropriations Act of 2022 resolves a pending concern with variable interest rate loan contracts that use LIBOR as their index.

McGlinchey’s Commercial Law Bulletin is a biweekly update of recent, unique, and impactful cases in state and federal courts in the area of commercial litigation.

In a per curiam decision released on March 8, 2022, the U.S. Court of Appeals for the Fifth Circuit in New Orleans found that a non-compete agreement was not enforceable because the employee signed it before he was officially hired.

The AIPPI Patent Cooperation Treaty (PCT) Working Group held its 14th session from June 14 to 17, 2021. Patent attorney Mary Drabnis (Baton Rouge) co-authored a summary report in the March 2022 edition of the AIPPI newsletter.

Diversity initiatives can help “bridge the gap” between an employer’s stated goals for inclusion, but implementing such initiatives requires careful thought and consideration.

McGlinchey’s Commercial Law Bulletin is a biweekly update of recent, unique, and impactful cases in state and federal courts in the area of commercial litigation.

Did the world exist before March 2020? It was around that time that vehicle subscription services began to expand beyond startups, and industry disruptors started to take hold of the imaginations of new product developers within OEMs.

McGlinchey's Commercial Law Bulletin 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 our Commercial Law Bulletin from its previous coverage of Ohio case law to include additional areas in McGlinchey’s footprint.

On Tuesday, February 8, 2022, the United States District Court for the Northern District of California issued two separate orders that upheld the OCC’s and FDIC’s “valid-when-made” rules.

For years auto industry insiders talked about the “dawn” of the electric vehicle (EV) era. A confluence of developments demonstrates that we’re past mid-morning and hitting high noon of the EV epoch.

In a case of first impression in Ohio, the Fairfield County Court of Common Pleas held that R.C. § 1343.031, Ohio’s version of the Servicemembers Civil Relief Act, does not apply to residential mortgages.

McGlinchey’s Commercial Law Bulletin is a biweekly update of recent, unique, and impactful cases in state and federal courts in the area of commercial litigation.

Ben Schupp (New Orleans) authored an article on maritime liens on equipment in the Winter 2021 issue of Marine Money Magazine.

On January 18, 2022, the FTC issued an advisory opinion to clarify that the FTC’s Trade Regulation Rule Concerning Preservation of Consumers’ Claims and Defenses, 16 C.F.R. § 433.2, does not preclude the recovery of attorneys’ fees and costs when state law authorizes such awards against a holder of a consumer credit contract.

The Dodd-Frank Act gave the Consumer Financial Protection Bureau (CFPB) direct supervisory authority over any institution that engages in private education lending, regardless of whether the lender is a depository institution or a non-depository institution, or the size of the lender. The CFPB also has direct supervisory authority over “larger participants” in the student loanMore

The hardship stays provided under New York's COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (EEFPA) officially ended on January 15, 2022.

ob Driscoll (Washington), co-chair of the Government and Internal Investigations team and former Deputy Assistant Attorney General of the U.S. Department of Justice (DOJ)'s Civil Rights Division authored an article that was published in The Dispatch on January 17, 2022. The piece gives an overview of the Voting Rights Act's provisions and historical application.

The Ohio Supreme Court has proposed a number of significant changes to the Ohio Rules of Civil Procedure that seek to utilize remote technology, pursuant to its rulemaking authority under the Ohio Constitution.

In two per curiam opinions released Thursday afternoon, the Supreme Court released long-awaited guidance on two vaccine mandates issued by federal agencies.

The Supreme Court is currently considering the validity of two rules promulgated by federal agencies in the past months regarding vaccines and testing in the workplace. Whether those rules—OSHA’s Emergency Temporary Standard (ETS) and the Centers for Medicare and Medicaid Services’ omnibus vaccine rule for healthcare workers (CMS Mandate or Omnibus Rule)— will be upheld is up in the air. Still, employers should be prepared in case those rules do remain in effect, as their enforcement began on Monday, January 10.

McGlinchey’s Commercial Law Bulletin is a biweekly update of recent, unique, and impactful cases in state and federal courts in the area of commercial litigation.

2021 is officially behind us, so what better time to revisit our most popular insights of the last year? n for our most-read pieces of 2021 appearing on JD Supra, which focused on OSHA vaccine mandates, cryptocurrency, debt collection, COVID-19 borrower relief, and more.

The federal conviction of Elizabeth Holmes on Monday night, January 3, 2022, has been of great interest in legal and business circles. One question that has been consistently asked in various media reports is what type of sentence Ms. Holmes is likely to receive?

Welcome to my latest attempt at predicting what next year has in store for the auto finance industry. As I mentioned in last month’s column, there are a number of regulatory themes from 2021 that we can expect to carry over into the upcoming new year.

It’s the most wonderful time of the year … for year-end reviews and compensation discussions. While these reviews serve an important purpose, if not conducted thoughtfully, they can allow managers to unconsciously reflect biases in their evaluations. Indeed, with new COVID and AI-related guidance from the EEOC in recent months, employers have a lot to consider heading into 2022.

The Supreme Court announced on December 22 that it would hear oral arguments in cases determining the fates of two government vaccine rules. On December 27, the CDC issued new guidance on isolation and quarantine as Omicron cases soar over Christmas weekend.

Acting to clarify the practical impact of a COVID relief provision enacted earlier this year, the IRS has announced in Notice 2022-1 (Notice) that lenders are not required to, and should not, issue Forms 1099-C when certain student loans are discharged.

On December 17, the U.S. Court of Appeals for the Sixth Circuit in Cincinnati dissolved the stay on enforcement of OSHA’s COVID-19 Emergency Temporary Standard (ETS), known colloquially as the vaccine mandate.

Paul Kellogg (Houston) will present "The Reshaping of Texas Home Equity Laws and Remedies" during a session on state-specific emerging issues during the Conference on Consumer Finance Law (CCFL) Mortgage Symposium on Thursday, December 16, 2021.

McGlinchey’s Commercial Law Bulletin is a biweekly update of recent, unique, and impactful cases in state and federal courts in the area of commercial litigation.

Jim Sandy (Cleveland) authored an article on predictions for the mortgage industry for Law360's "Expert Analysis."

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.

McGlinchey’s Commercial Law Bulletin 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.

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.