Publications

In recent weeks, the U.S. Environmental Protection Agency (EPA) released the draft 2023 Environmental Justice Guidance Document (Guidance), a revision of the EPA’s “Technical Guidance for Assessing Environmental Justice in Regulatory Analysis.”

Last week the Ohio House proposed legislation designed to revise a number of aspects of Issue 2, the Ohio Marijuana Legalization Initiative, passed by over 57% of Ohioans in November.

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.

Ohio Republicans have begun to propose legislative changes to the recently passed Issue 2, the Ohio Marijuana Legalization Initiative (Initiative), passed by over 57% of Ohioans in November.

The U.S. District Court for the Northern District of Illinois recently held in Wallrich v. Samsung Elecs. Am., Inc. that the Northern District of Illinois was an improper arbitration venue for 14,335 users of smartphone devices (“Petitioners”) manufactured by Samsung who did not live there.

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.

Readers have likely heard about Diversity Lab’s “Mansfield Rule” Certification process, which aims to “boost and sustain diversity” in legal leadership. As a firm that has always sought diverse candidates for open positions and already tracked those efforts, we had been considering the Mansfield process for some time. In the fall of 2021, we decidedMore

The Family Medical Leave Act (FMLA) allows an employee to take up to 12 weeks of unpaid and job-protected leave for qualifying family and medical reasons. The FMLA also requires employers to maintain health benefits while an employee is on FMLA leave and to restore the employee to the same or equivalent job upon return.More

On November 7, 2023, voters in Ohio approved Ohio Issue 2, the Marijuana Legalization Initiative, which legalizes marijuana for recreational use in Ohio.

For the second time in as many years, the Supreme Court of the United States has agreed to hear an appeal from a prominent cryptocurrency exchange regarding the enforceability of its arbitration clause in the exchange’s user agreements.

The Ninth Circuit Court of Appeals recently heard oral argument in the case of Aggarwal v. U.S. Drug Enforcement Administration over whether the DEA’s process to consider controlled substances reclassification was unlawful and, in a remarkably fast turnaround, remanded the case for the DEA to consider the petition in more detail.

On September 27, 2023, the Financial Crimes Enforcement Network (“FinCEN”) issued a Notice of Proposed Rulemaking (“NPRM”) in order to extend the deadline for reporting companies that were created or registered in 2024 to file the initial beneficial ownership information (“BOI”) reports.

On October 27, 2023, the Federal Trade Commission (FTC) issued a final rule (Final Rule) to amend the Standards for Safeguarding Customer Information (Safeguards Rule). This amendment will require non-bank financial institutions, such as mortgage brokers, motor vehicle dealers, and payday lenders, to report certain data breaches and other security events to the FTC. TheMore

The CFPB has made combating so-called junk fees an agency priority, bringing multiple enforcement actions, undertaking supervisory activity, and collaborating with the FTC and the Biden administration to curb consumer finance companies from charging fees.  

On Oct. 3, the U.S. Supreme Court heard oral arguments in the Consumer Financial Protection Bureau v. Community Financial Services Association of America, the latest in a long line of cases targeting the constitutionality of the CFPB.

This past March, the U.S. Department of Housing and Urban Development announced it was simultaneously rescinding its 2020 discriminatory effects rule and reinstating its 2013 rule under the Fair Housing Act.

On September 18, 2023, the United States Department of the Treasury Financial Crimes Enforcement Network (FinCEN) announced and published a Small Entity Compliance Guide aimed to assist the small business community in complying with the beneficial ownership information reporting rule.

On August 8, 2023, the Federal Reserve Board published additional information on its program to supervise novel activities in the banks it oversees.

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 marijuana industry touted the passage of the SAFER Banking Act by the Senate Banking Committee, by a notable bipartisan majority of 14-9, on Sept. 27 and was placed on the Senate legislative calendar under general orders the following day. A Senate floor vote is now pending.

Tetrahydrocannabinolic acid (THCA) is one of the most misunderstood and controversial cannabinoids in the Cannabis sativa (cannabis) plant. While booming in popularity, THCA is also a high-risk cannabinoid from a legal standpoint.

If a tax return is sent by regular mail on or before the due date, IT MUST BE RECEIVED BY THE IRS to be treated as timely filed. Proving that it was postmarked on or before the due date is not enough.

Earlier this month the International Code Council, an international standard-setting organization that emphasizes building safety, started releasing the 2024 editions of its International Codes (I-Codes), including its 2024 International Plumbing Code and 2024 International Zoning Code.

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.

Captive automotive finance companies have been a staple of the market in the United States for decades. Traditionally affiliated with long-established manufacturers, these companies have provided support to increase incremental sales through franchise dealer networks and have grown to become some of the most recognized consumer finance brands within and outside the vehicle finance industry.  

According to a report from the Congressional Research Service (the Report), the DEA is likely to follow the Department of HHS and the FDA's recommendation to move marijuana from Schedule I to Schedule III under the Controlled Substances Act.

A difficult lesson was learned after marijuana was discovered in a suitcase at the airport: The government does not have to prove cannabis is marijuana to convict you of trafficking in marijuana.

At first blush, payments and bank partnerships may not seem immediately related.

At a recent White House Roundtable, CFPB Director Rohit Chopra announced that the bureau will promulgate new rules in September that will broaden the categories of information/data that are subject to the Fair Credit Reporting Act.

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.

With the end of the COVID-19 pandemic–era student loan repayment pause, regulators and lenders alike are preparing for repayment to begin again in the fall of 2024. Federal government backed student loans will start accruing interest again on September 1, and payments will be due starting in October 2023.

Effective January 1, 2024, Illinois HB 3236 prohibits sales finance agencies from purchasing or making loans secured by either of the following contracts relative to the sale of a canine or feline: (a) a retail installment contract; (b) a retail charge agreement; or (c) the outstanding balance under a retail installment contract or a retail charge agreement.

In Stericycle, Inc. vs. Teamsters Local 628 (August 2, 2023), the National Labor Relations Board (NLRB) adopted a new and more stringent legal standard for determining whether a work rule is overly restrictive, finding that the prior standard permitted employers to adopt overbroad work rules.

Floorplan financing exemptions in the new state commercial financing disclosure laws may not be as broad as lenders think. 

Major news broke on August 30, 2023, as the U.S. Department of Health and Human Services (HHS) announced that it would recommend moving marijuana from Schedule I to Schedule III, as first reported by Riley Griffin for Bloomberg.

Under 2023 amendments to the National Defense Authorization Act (NDAA), owners, masters, and managing operators of U.S. documented commercial vessels, are now required to immediately report incidents of harassment, sexual harassment and sexual assault.

Mortgage originators and secondary market issuers use automated valuation models (AVMs) in determining the worth of collateral securing mortgages on consumers’ principal dwellings.

The year 2023 represents a time of shifting attitudes toward the workplace and workforce, with the effects of the COVID-19 pandemic continuing to wax and wane, pro-employee movements taking place in high-profile industries, and the make-up of the U.S. Supreme Court and the rest of the federal court system on a conservative shift. Keeping up with the hot topics ensures employers understand their workforce and the issues facing them.

The cannabis industry, just like any other industry, requires insurance coverage.

Today we're going to be talking about money transmission and how money transmission laws can impact people that are in the payments space and find themselves in the flow of funds or providing any kind of payment services to third parties.

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 final installment in McGlinchey’s Deep Dive Series covering all things payments is a client-only CLE webinar featuring attorneys from McGlinchey’s Financial Institutions Compliance team.

Problems with lack of affordability and access to housing are longstanding in the U.S. The CFPB has indicated that “minority households… continue to lack fair and equitable access to credit,” including mortgage lending.

A recent 9th Circuit Court of Appeals decision emphasizes again the potential exposure “responsible persons” have to personal liability for payroll taxes under the Trust Fund Recovery Penalty provisions of Section 6672 of the Internal Revenue Code. You may be a responsible person and not know it.

On August 8, 2023, Ohio voters defeated a proposed amendment to the state’s Constitution that would have required at least 60%

The Equal Employment Opportunity Commission (EEOC)’s proposed regulations for implementation of the PWFA were published in the Federal Register on August 11, 2023. Stakeholders have sixty (60) days from the date of publication to provide comments for consideration.

In this three-part series, we first reviewed the Biden Administration’s collaborative efforts with the CFPB and the FTC to regulate “junk fees.” We highlighted recent regulatory, enforcement, and private actions and trends in the second piece.

With the ever-expanding legalization of medical and adult-use cannabis across the United States an ever-expanding problem is coming to the forefront: cash transportation.

An issue that continues to captivate the electric vehicle manufacturing and financing industry is state law that prevents vehicle manufacturers from directly selling vehicles to buyers. 

If a taxpayer uses the cash receipts and disbursements method of accounting (cash-method), rewards received for staking cryptocurrency will be taxable.

On June 29, 2023, the Office of the Comptroller of the Currency, Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation, and National Credit Union Administration (the agencies) jointly issued a final policy statement on prudent commercial real estate (CRE) loan accommodations and workouts.

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 this three-part series, we first reviewed the Biden Administration’s collaborative efforts with the CFPB and the FTC to regulate “junk fees.” In this second piece, we will highlight recent regulatory, enforcement, and private actions and trends. Third and finally, we will outline a few considerations for financial services companies to consider when navigating the new normal when it comes to challenges to so-called “junk fees” by consumers and regulatory agencies.

The Federal Reserve launched its new real-time payments service, FedNow®, on July 20, 2023. This new instant payment rail settles consumer and business transactions through financial institutions’ Federal Reserve accounts. One stated goal of FedNow® since its earliest planning stages is to make instant payments ubiquitous—accessible to everyone, everywhere in the United States. The FederalMore

Marijuana is currently listed as a Schedule I substance in the Controlled Substances Act (CSA); this scheduling means the federal government concluded marijuana has no currently accepted medical use in any setting. In a prior post, we analyzed how the Department of Health and Human Services (HHS), along with the Department of Justice, can opt for descheduling or rescheduling marijuana under the CSA.

In the 303 Creative LLC v. Elenis decision, the Supreme Court set back gains made by the LGBTQ+ community over the past decade. In a 6-3 decision, the nation’s highest Court answered a question about the balance of religious liberty and civil rights for same-sex couples that had been unresolved since 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Commission.

A hard lesson was learned after cannabis was discovered in a suitcase at the airport: the government does not have to prove cannabis is marijuana to convict you of trafficking in marijuana. A new case recently clarified that the legal burden shifts and requires the accused to produce evidence that the cannabis is not marijuana.More

This three-part series will first review the Biden Administration’s collaborative efforts with the CFPB and the FTC to regulate “junk fees.” Second, we will highlight recent regulatory, enforcement, and private action trends. Third and finally, we will outline a few considerations for financial services companies to consider when navigating the new normal when it comes to challenges to so-called “junk fees” by consumers and regulatory agencies.

New laws and regulations are likely to be implemented in both New Jersey and New York in the very near future, which will greatly affect parties' abilities to work with marijuana businesses.

Join us to hear McGlinchey attorneys discuss innovations in the payments environment and developing payments applications. Aaron Kouhoupt, David Tallman, Rachael Aspery, and Heidi Urness will explore issues ranging from error resolution responsibilities, money movement and challenges entering the payment networks, as well as cannabis business challenges. date & time Tuesday, July 25, 202311 amMore

The Chevron doctrine is one of the most important principles of administrative law in the United States. It states that when a federal statute is ambiguous, courts should defer to the reasonable interpretation of the agency that administers the statute, unless Congress has clearly expressed a different intent. The doctrine, which was established by the Supreme Court in Chevron v. NRDC (1984), aims to respect the expertise and policy choices of executive agencies, as well as the separation of powers between the branches of government.

In this introductory video, Members of our Financial Institutions Compliance Team, Aaron Kouhoupt (Cleveland) and David Tallman (Dallas/Houston), will discuss this fascinating and vibrant subject matter while giving you a breakdown of the content you can expect in the coming weeks.

On June 27, 2023, the Pregnant Workers Fairness Act (PWFA) went into effect. In an effort to promote the economic well-being of working mothers and their families, the PWFA was enacted to ensure pregnant workers have access to reasonable accommodations.

In an unusually blunt decision, the 11th Circuit Court of Appeals affirmed a district court’s decision to dismiss various claims brought by the Consumer Financial Protection Bureau (CFPB) for “violating the district court’s clear orders and derailing multiple depositions… .”

On June 6, 2023, the Board of the Governors of the Federal Reserve System (Board), the Federal Deposit Insurance Corporation (FDIC), and the Office of the Comptroller of the Currency (OCC) (collectively, “Agencies”) issued final joint guidance designed to help banking organizations manage risks associated with third-party relationships, including relationships with financial technology companies or “FinTechs” (“Interagency Guidance”).

The U.S. Environmental Protection Agency is rolling out a robust enforcement program aimed at wastewater treatment plants and other wastewater operations for potential contamination based on Section 301 of the Clean Water Act (CWA).

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 EPA has recently finalized the addition of nine per- and polyfluoroalkyl substances (PFAS) to the Toxic Release Inventory (TRI) reporting program. This change came ahead of the annual July 1st deadline for submitting TRI reports.

eneral decision published on June 29, 2023, the Supreme Court gave parameters to the definitions of certain key employment law terms. After nearly 50 years of precedent, the U.S. Supreme Court was presented the opportunity to define the proper test for determining whether an employee’s request for an accommodation based upon religious beliefs is reasonable or whether it would present an undue hardship.

The regulation of consumer privacy and security in the United States traditionally has been sectoral in nature. In other words, outside of more highly regulated industries like financial services or health care, the use and disclosure of consumer data has been regulated under general federal and state prohibitions on unfair or deceptive acts and practices, rather than under specific consumer privacy laws. 

After decades of chipping away at the doctrine, on Thursday, the Supreme Court ended affirmative action entirely. The Supreme Court’s decision was rendered in a pair of cases brought by a group called Students for Fair Admissions (SFFA) challenging the admissions policies of Harvard and the University of North Carolina. SFFA argued that the diversity rationale is “grievously wrong” and produces “crude stereotyping.” The universities defended their practices, saying that a racially diverse student body is as vital as ever to their mission, because it “leads to greater knowledge for everyone” and “mutual respect,” and that race-based preferences remain necessary to achieving it.

Per- and polyfluoroalkyl substances (PFAS) are a class of man-made chemicals used in various industries, such as food packaging, cosmetics, and household products. More than 10,000 chemical substances can be classified as PFAS in the United States. However, despite their broad use, several studies have identified potential health risks associated with these chemicals.

Resolving a circuit split, the Supreme Court ruled that litigation, including discovery, is automatically stayed when a party appeals the denial of a motion to compel arbitration under the Federal Arbitration Act (FAA).

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 June 13, 2023, The Environmental Protection Agency (EPA) released its Spring 2023 Unified Agenda, which pushes back the estimated publication of a final rule designating certain per- and polyfluoroalkyl substances (PFAS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Specifically, the final rule on PFAS CERCLA designation for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) has been delayed from August 2023 to February 2024.

The federal government aims to finish its review of marijuana’s current legal status by the end of 2023, based on remarks from the head of the U.S. Department of Health of Human Services, Secretary Xavier Becerra.

While the Ohio Legislature’s May 3, 2023, deadline to put forth adult-use legislation to avoid a ballot initiative went up in smoke, Ohioans have continued pushing forward in their attempt to legalize adult-use cannabis.

It has been a busy time for the Texas Legislature, and multiple bills passed that may affect Texas Home Equity Lenders.

On June 12, 2023, the U.S. Court of Appeal for the Fifth Circuit reversed a grant of summary judgment holding a shipyard immune from Louisiana state law tort claims pursuant to the Longshore and Harbor Workers’ Compensation Act. What might the fate of Barosse v. Huntington Ingalls, Inc. mean for Louisiana asbestos claims in the future?

On December 14, 2022, Plaintiffs California Communities Against Toxics (CCAT), Clean Power Lake County, Rio Grande International Study Center, Sierra Club, and Union of Concerned Scientists filed a complaint in the U.S. District Court for the District of Columbia alleging that the Environmental Protection Agency (EPA) had failed to perform its nondiscretionary duty to “review, and revise as necessary” the National Emission Standards for Hazardous Air Pollutants (NESHAP): Ethylene Oxide Emissions Standards for Sterilization Facilities at least every eight years.

Federally legal CBD products may, under some circumstances, cause consumers to fail drug tests. An employer’s right to terminate employee-consumers on that basis is not prohibited by federal law, including the Americans with Disabilities Act.

On May 8, 2023, Governor Wes Moore of Maryland signed HB 913 into law, creating the Student Financing Act (the Act). Under the Act, “student financing” is defined as an extension of credit to a consumer that is (1) not made, insured, or guaranteed under Title IV of the federal Higher Education Act of 1965, (2) extended to a consumer expressly, in whole or in part, for postsecondary education expenses, regardless of whether it is provided by the institution that the consumer attends, and (3) not a loan secured by real property or a dwelling.

Beginning July 1, 2023, the Colorado Privacy Act and the Connecticut Personal Data Privacy and Online Monitoring Act will take effect. Following California (in 2020) and Virginia (earlier this year), four states now have enacted and implemented some version of a comprehensive privacy law.

In response to the recent bank failures, on May 1, 2023, the Federal Deposit Insurance Corporation (FDIC) released a report titled “Options for Deposit Insurance Reform” (Report). The Report provides a comprehensive overview and discusses options to reform the financial stability concerns with the deposit insurance system.

On April 26, 2023, the Federal Deposit Insurance Corporation (FDIC) and the Office of the Comptroller of the Currency (OCC), (collectively “Agencies”) each individually released supervisory guidance to ensure that each respective Agencies’ supervised institutions are aware of the consumer compliance risks associated with assessing overdraft fees on a transaction that was authorized against a positive balance but settled against a negative balance (APSN). Both sets of guidance expand on previously issued guidance by each respective agency.

It is no secret that cannabis businesses and owners remain largely barred from taking advantage of federal bankruptcy protections, leaving distressed marijuana businesses with limited restructuring options. Most often, distressed marijuana businesses and businesses serving the marijuana industry (collectively, MRBs) must instead rely on state law, including state-specific cannabis receivership statutes.

On May 25, 2023, the United States Supreme Court significantly curtailed the federal government's authority to regulate wetland begins.

The U.S. Environmental Protection Agency (EPA) says it has taken its first-ever Clean Water Act (CWA) enforcement action against water pollution by so-called “forever chemicals” from a West Virginia chemical plant. On April 26, 2023, EPA Ordered Chemours Co., owner of Washington Works near Parkersburg, West Virginia, to take action aimed at reducing the levels of perfluoroalkyl and polyfluoroalkyl substances (PFAS) the facility discharges into the Ohio River.

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 unanimous decision, the Supreme Court held in Tyler v. Hennepin County that a county’s process of retaining the equity in a homeowner’s property constitutes a violation of the Takings Clause of the Fifth Amendment. This decision has important repercussions for not only homeowners but lienholders and loan servicers as well.

On April 3, the Consumer Financial Protection Bureau published a policy statement on abusive practices. As readers know, the bureau has authority to supervise and enforce acts and practices that are unfair, deceptive or abusive in the consumer financial service industry.

For financial institutions who engage in marijuana-related banking services, the primary compliance challenge remains the disconnect between federal and state law.

On February 22, 2023, the U.S. District Court for the Southern District of New York in Rider v. Uphold HQ Inc. held that cryptocurrencies constitute "funds" under the Electronic Fund Transfer Act. The plaintiff brought one federal cause of action under the EFTA and eight state law claims.

The use of medical marijuana, which has been permitted for decades in some states, is not protected under the Americans with Disabilities Act.  As a result, even in states which legally permit its use, employers are free to terminate employees who use medical marijuana without fear of violating federal discrimination laws.  

Baton Rouge Member R. Marshall Grodner addressed moral and ethical dilemmas in the transactional context in an article for The Abstract, a biannual publication from the American College of Mortgage Attorneys (ACMA).

In Ward v. NPAS, Inc., 63 F.4th 576 (6th Cir. 2023), Plaintiff Ward did not pay as agreed for medical services, and the medical center sent his unpaid bills to a third-party collector, NPAS, Inc. (NPAS).

On April 14, 2023, the Federal Housing Finance Agency (FHFA) issued a Notice of Regulatory Review (Review Notice) as part of its Regulatory Review Plan (Review Plan) and is requesting comment on how FHFA rules and regulations could be made more effective and less burdensome. The comment deadline is June 13, 2023.

The FDIC has released its Consumer Compliance Supervisory Highlights for 2022, covering the 3,000+ state-chartered banks and thrifts the FDIC supervises, most of which are community banks that provide credit and services locally. The FDIC evaluates these “supervised institutions” for compliance with consumer protection, anti-discrimination, and community reinvestment laws, with a focus on laws and regulations that represent the greatest potential for consumer harm.

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.