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In a rare display of bipartisanship, Congress recently passed a new law that is poised to eliminate pre-dispute mandatory arbitration of sexual harassment and sexual assault disputes.
Continue Reading Congress Passes Bipartisan Bill to End Mandatory Arbitration of Sexual Harassment and Assault Claims in the Workplace

On December 21, an online lending fintech agreed to a stipulated final judgment with the CFPB to resolve a September 2021 complaint alleging that the company deceived consumers and violated the Equal Credit Opportunity Act (“ECOA”) (we discussed this complaint in an earlier Consumer Finance & FinTech Blog post here).  The stipulated final judgment prohibits the company from making new loans, collecting on outstanding loans to harmed consumers, selling consumer information, and making misrepresentations when providing loans or collecting debt or helping others that do so.  The company also agreed to a $40,500,000 suspended monetary judgment, and a $100,000
Continue Reading CFPB Closes Online Lending Fintech for Violating ECOA and CFPB Consent Order

Although Congress failed to pass federal legislation legalizing cannabis in 2021, the push to end the federal prohibition of the ever-growing industry continues to gain steam.  While Republican lawmakers have traditionally opposed decriminalization, more are beginning to support or even introduce new cannabis legislation.[1]  On top of that, recent polls indicate that an estimated 68% of Americans now support legalization[2] with many consumers now viewing cannabis as less dangerous than alcohol.[3]  In addition, the industry’s total addressable market has been forecasted to grow to $84B by 2026.[4]
Continue Reading Cannabis Legislation Year-in-Review

For the second time, the standards-setting board for the California Division of Occupational Safety and Health (“Cal/OSHA”) has readopted, with revisions, the agency’s COVID-19 Prevention Emergency Temporary Standards (“ETS”).  The revised ETS become effective on January 14, 2022, and impose new obligations on nearly all employers in the Golden State.
Continue Reading California Employers Face New Obligations Under Cal/OSHA’s Revised COVID-19 ETS

In July 2021, President Biden signed an Executive Order directed at promoting competition in the U.S. economy.  As part of that overarching goal, the Biden Administration tasked the Federal Trade Commission (“FTC”) with curtailing the use of non-compete clauses “and other clauses or agreements that may unfairly limit worker mobility.”  While the FTC has only recently initiated informal proceedings on the issue, the agency – and perhaps Congress as well – seems poised to move forward in 2022 to address restrictive covenants.
Continue Reading FTC reviews non-compete agreements: An Update On The Future Of Restrictive Covenants Following The Biden Administration’s Proposed Curtailment and Safeguarding of Proprietary Information

This December, the Delaware Supreme Court penned two decisions that shined the spotlight on purchase agreement provisions that are often afterthoughts in negotiations.  In Golden Rule Financial Corporation v. Shareholder Representative Services, No. 61, 2021, 2021 WL 5754866 (Del. Dec. 3, 2021) (ORDER), the Court reviewed the post-closing “true up” language and determined that “consistently applied” accounting principles in the post-closing true up does not necessarily mean “in the same manner as had been applied prior to closing.”  And in AB Stable VIII LLC v. MAPS Hotels and Resorts One LLC, –A.3d–, 2021 WL 5832875 (Del. Dec. 8,
Continue Reading Delaware Supreme Court Shines Spotlight on Boilerplate Purchase Agreement Provisions

The Chinese agency charged with implementing and enforcing the new Personal Information Protection Law has issued draft measures for cross-border data transfers. Comments are due by November 28. As we detailed previously, the law requires that the Cyberspace Administration of China (CAC) conduct security assessments prior to certain information transfers out of China. Those situations included if the information transferred reached “significant” thresholds. Those thresholds have now been clarified in the draft.
Continue Reading China Draft PIPL Measures Outlines Thresholds for CAC Security Assessments

On November 3, Acting Comptroller of the Currency, Michael J. Hsu, remarked at the American Fintech Council’s Fintech Policy Summit 2021 about the growth in the digitalization of banking including the trend and attendant risks associated with keeping cryptocurrency outside of the bank regulatory system (we discussed Hsu’s previous remarks on crypto trends and risks in an earlier Consumer Finance & FinTech Blog post here).  Hsu noted that the cryptocurrency space includes “synthetic banking providers” (SBPs) who “operate out of the reach of bank regulators and free of bank rules.”  Hsu explained that “[m]any of these universal crypto firms
Continue Reading OCC Calls for Regulation of Crypto Banking

This post originally appeared as an article in the Los Angeles Daily Journal on October 29, 2021.

As of January 1, 2022, patients will no longer be at risk for one of the most detested practices in healthcare: surprise out-of-network bills.
Continue Reading Relief from Surprise Bills – Congress Passes the No Surprises Act What Providers and Insurers Need to Know

On September 27, 2021, California Governor Gavin Newsom signed Senate Bill 646 (“SB 646”), which creates a limited exception from the Private Attorneys General Act of 2004 (“PAGA”) for certain janitorial employees performing work under a collective bargaining agreement (“CBA”). SB 646 will go into effect on January 1, 2022.
Continue Reading California Legislature and Governor Approves New PAGA Carve-Out

Environmental, social, and governance factors (“ESG”) have pushed to the forefront of the SEC’s attention in recent years.  In September, building on prior guidance, the SEC’s Division of Corporate Finance released a sample comment letter that requests additional information from companies related to climate change.  The letter does not create new substantive law, but it illustrates the SEC’s increased interest in ESG and climate-related disclosures under the Biden Administration.
Continue Reading SEC Publishes Sample Letter to Companies on Environmental Disclosures

As of November 1, 2021, dealers in security-based swaps (“SBS”) whose dealing activity exceeds certain de minimis thresholds (e.g., gross notional amount of $3 billion for credit default SBS, $150 million for other SBS, and $25 million for SBS where the counterparty is a special entity) are required to register with the SEC as a security-based swap dealer  (“SBSD”) and to comply with the SEC’s regulations applicable to SBS.[1]  Many dealers exceeded these thresholds and filed for registration on or prior to November 1.  Other dealers who exceed these thresholds later will be required to register at a future
Continue Reading Security-Based Swap Rules for End-Users

On October 28, the FTC issued a new enforcement policy statement warning companies against deploying “illegal dark patterns” that trick or trap consumers into subscription services, and often making websites difficult to navigate to find cancellation or refund options.  The statement is intended to assist marketers by providing specific guidance on the FTC’s interpretation of existing law as it applies to “negative option marketing” through deceptive sign up tactics, including unauthorized charges or ongoing billing that is impossible to cancel.  The policy statement notes that “[n]egative option offers come in a variety of forms, but all share a central feature: each
Continue Reading FTC to Increase Enforcement Against “Dark Patterns” Directed at Consumers

On October 27, the FTC announced a final rule amending the Standards for Safeguarding Customer Information, known as “the Safeguards Rule,” under the Gramm-Leach-Bliley Act, which is applicable to a broad range of non-banking financial institutions, such as check-cashing businesses, payday lenders, mortgage brokers, nonbank lenders, personal property or real estate appraisers, professional tax preparers, courier services, and credit reporting agencies to develop, implement, and maintain a comprehensive security system to keep their customers’ information secure.
Continue Reading FTC Finalizes Safeguard Rules for Non-Bank Financial Institutions

Prior COVID-19 Travel Bans Repealed as of November 8, 2021

On October 25, 2021, President Biden announced the suspension of the COVID-19 travel bans from Brazil, China, India, Iran, Ireland, the Schengen Area, South Africa, and the United Kingdom.  Previously, a National Interest Exception waiver was required.  With this new Proclamation, the White House announced a global vaccination requirement for all adult foreign national air travelers and authorized the Centers for Disease Control (CDC) to provide specific regulations.  The White House announcement can be found here.
Continue Reading Sheppard Mullin Travel Checklist ‒ New Vaccination Travel Restrictions for Entry Into the United States: Air and Land Rules Effective November 8, 2021

On October 28, newly approved CFPB director, Rohit Chopra, made his first appearance before the House Financial Services Committee since his narrow approval by the Senate.  Director Chopra focused on topics with bipartisan appeal:  the Bureau’s enforcement efforts aimed at large companies, ways it may try to help small businesses (including small financial companies) and the importance of strong relationships between banks and customers.
Continue Reading CFPB Director Chopra Appears at First House Hearing Since Approval as Director