CURRENT MONTH (March 2023)

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Antitrust Law

FTC Seeks Public Comment on Potential Franchise Rule

By Barbara Sicalides, Christopher Young & Robert Jenkin, Troutman Pepper Hamilton Sanders LLP

The Federal Trade Commission (FTC) made another move to protect two of the Biden administration’s priority constituencies: small business and workers. This time, it targeted perceived unreasonable restraints in the franchise context. On March 10, 2023, the FTC asked for public comments related to how franchisors exert control over their franchisees and their workers. This request for information reflects continued efforts by the FTC to limit private businesses’ use of noncompete agreements and other practices believed to harm employees.

The FTC’s solicitation for public comments on provisions of franchise agreements and franchisor business practices (the “request”) reflects continued concerns about unfair and deceptive practices in the franchise industry. A spokesperson expressed the FTC’s concerns plainly: “[I]n some instances, the promise of franchise agreements as engines of economic mobility and gainful employment is not being fully realized.” According to the agency, “[The request is expected to] begin to unravel how the unequal bargaining power inherent in these contracts is impacting franchisees, workers, and consumers.”

The request comes on the heels of the FTC’s proposed new rule that would ban all noncompete clauses imposed by employers, as discussed in “FTC Extends Comment Period on Proposed Ban of Noncompete Agreements.” Per the request, the FTC seeks public comment on its proposed rule and is interested in comments addressing “whether the proposed rule should also apply to noncompete clauses between franchisors and franchisees.” To this end, the FTC’s request seeks comment on several specific issues, including, but not limited to:

  • whether franchise agreements are negotiated between the franchisee and franchisor or whether they are presented to prospective franchisees on a take-it-or-leave-it contract;
  • the types of unilateral changes made by franchisors during the course of the relationship;
  • the prevalence of certain types of provisions in franchise agreements, such as no-poach provisions, provisions that impose maximum or minimum prices, and provisions that restrict where a franchisee may operate its business;
  • how franchisors exercise control over wages and working conditions; and
  • what types of payment and consideration franchisors receive from third parties.

The request for information on many of these topics is unsurprising given the current administration’s initiatives, especially as to restraints that can affect wages and employment mobility. As addressed in “Executive Order Throws Down the Gauntlet for a New Era of Antitrust Enforcement,” the administration has been keenly focused on protecting workers and small businesses from perceived overreach by big business. This focus was reflected in President Joe Biden’s July 2021 executive order that more generally asked the executive departments of the federal government to enact initiatives to eliminate barriers to competition and later actions by the Department of Justice (DOJ). For example, in October 2022, the DOJ secured the first-ever criminal convictions against the parties to a no-poach agreement. It also filed several amicus briefs in civil matters in 2022 and argued that no-poach agreements should receive per se treatment under Section 1 of the Sherman Act.

Comments in response to the request may be submitted until May 9, 2023. Notably, the FTC included a reference to its request for comments in its franchise rule press release about its proposed industry-agnostic ban on noncompete clauses.

Franchisors and franchisees should consider submitting comments to both the franchise rule and the proposed noncompete ban.

A Monumental Merger: FTC Seeks to Block Microsoft Corp’s Planned $68.7 Billion Acquisition

By Aja Finger, J.D. Candidate, Class of 2024, Howard University School of Law

On December 8, 2022, the Federal Trade Commission (FTC) voted 3-1 to issue a complaint against Microsoft to block it from acquiring video game developer Activision Blizzard.[1] Microsoft is one of only two high-performance video game console manufacturers, and Activision is one of the leading producers of highly sought after “AAA” games, including some of the most iconic video game franchises such as Call of Duty.[2] If Microsoft’s proposed merger is permitted, the vertical integration valued at approximately $70 billion would be the largest in the history of the video game industry.

The FTC asserts that it has reason to believe that the proposed merger violates §5 of the FTC Act,[3] and would further violate §7 of the Clayton Act[4] if consummated. The Commission alleges that the acquisition would “substantially lessen competition or tend to create a monopoly in multiple markets,” including the markets for high performance consoles, multi-game content library subscription services, and cloud gaming subscription services. The resulting firm would allegedly have the “ability and incentive to use its control of Activision titles to disadvantage Microsoft’s competitors.”[5] Specifically, ownership of Activision would enable Microsoft to manipulate pricing of Activision’s catalog, degrade player experience on competing consoles, change access terms of Activision content, or deny competitors access to Activision content completely.

Microsoft and Activision’s attempts to dissuade the Commission’s concerns have been unsuccessful. Activision’s current strategy is to offer its games on as many devices as possible, regardless of the platform’s producer.[6] However, Microsoft’s previous conduct suggests that if the tech giant acquires Activision, Microsoft may deny its platform competitors equal access to Activision’s video game content. “Despite statements by Microsoft to European regulators disavowing the incentive to make ZeniMax content exclusive post-[merger], . . . Microsoft plans for three of the newly acquired titles to become exclusive to Microsoft’s Xbox consoles and Xbox Game Pass subscription services.”[7] The FTC fears that acquiring Activision will incentivize Microsoft to further withhold Activision content from competitors.

In response to the complaint, Microsoft claims that it is the third-place manufacturer of gaming consoles, and that Activision is only one of “hundreds” of popular video game publishers. Moreover, Microsoft asserts that its Xbox platform has little presence in mobile gaming, the fastest-growing segment of gaming, and where 94% of gamers are active. Microsoft further pleads that, in contrast to the FTC’s claim of denial of access, it has, since deal announcement, offered Call of Duty to its rivals.

Chief Administrative Law Judge Chappell is scheduled to preside over an evidentiary hearing beginning August 2, 2023.

Across the pond, the Competition and Markets Authority (CMA) updated its provisional findings to conclude that the merger would “not result in a substantial lessening of competition in relation to console gaming because the cost to Microsoft of withholding Call of Duty from PlayStation would outweigh any gains from taking such action.”[8] Nevertheless, the CMA continues to hold the provisional view that the transaction raises concerns in the “cloud gaming market” and will issue its final report by April 26, 2023.

Banking Law

OFAC Imposes Sanctions for Engaging in the Mining and Metals Industry in Russia

By Joseph Mayo, LL.M. Candidate at New York University School of Law

On February 24, 2023, marking the one-year anniversary of Russia’s illegal invasion of Ukraine, the Biden Administration announced a series of military and economic measures and sanctions in yet another effort to support Ukraine and hold Russia accountable. In addition to military and financial assistance, the Administration, backed by the international community and G7 leaders, aims to further impose economic costs on Russia to disturb its financial, defense, and industrial sectors and quash its ability to continue financing its aggression against Ukraine. Using Executive Order 14024 authorization to impose sanctions on parties operating in designated sectors of the Russian economy, the White House is targeting numerous key revenue-generating industries; among the targets are Russian financial institutions, Russian officials and proxy authorities operating in Ukraine, third parties enabling Russia to evade sanctions, and Russia’s future energy capabilities.

The most notable and significant measure is the expansion of sanctions to apply to the metals and mining sector of the Russian Federation’s economy. In consultation with the State Department, the Office of Foreign Assets Control (OFAC) issued a sectoral determination, effective February 24, 2023, authorizing the imposition of economic sanctions on any person determined to operate or have operated in the metals and mining sector of the Russian Federation economy. OFAC defines the metals and mining sector of the Russian Federation economy to include “any act, process, or industry of extracting, at the surface or underground, ores, coal, precious stones, or any other minerals or geological materials in the Russian Federation, or any act of procuring, processing, manufacturing, or refining such geological materials, or transporting them to, from, or within the Russian Federation.”

While potentially exposed to sanction risks, not all persons operating or that have operated in the Russian Federation metal and mining sector are sanctioned automatically, and a specific determination must be made by OFAC. To date, OFAC has added four Russia-based steel and metal manufacturers for operating in the Russian metal and mining sector, all either directly or through subsidiaries involved in manufacturing artillery, metals, weapons, ammunition, and aviation defense industries. As a result of said announcement, these companies, their property, and any interests they have in the United States, along with any property or interest in possession or control of U.S. persons and entities, are blocked and must be reported to OFAC.

Failure of Silicon Valley Bank and Signature Bank Quickly Addressed by FDIC

By Rafael X. Zahralddin-Aravena, Lewis Brisbois

Over the weekend of March 12–13, 2023, the FDIC closed Silicon Valley Bank (“SVB”), based in Santa Clara, California ($209 billion in assets), and Signature Bank (“Signature”), based in New York, New York ($110 billion in assets). The FDIC was appointed receiver of both banks. President Biden moved quickly to bolster public confidence in the banking system by taking the unusual step of announcing that the FDIC, the Treasury Department, and the Federal Reserve Board would make all depositors whole, including those with uninsured deposits. On March 12, 2023, the Treasury Department, the Federal Reserve, and the FDIC issued a Joint Statement announcing that the senior management of both banks had been removed. The FDIC has created two bridge banks for each failed bank. Each bank will assume the deposit liabilities and most of the assets of the closed banks. The FDIC banks will operate the bridge banks to enable depositors to continue to have access to their funds, and will continue to service loans and other financial transactions for the FDIC. (For more information, please see the following legal alert: “Silicon Valley Bank and Signature Bank Closed: What Should You Do?”)

After the bank closures, the FDIC took various unique measures to broaden the bidding process to market the assets of both SVB and Signature to non-banks as well as qualified insured banks. Bids were due in late March. The FDIC announced that its marketing efforts resulted in the sale of most of the assets and obligations of SVB to First Citizens Bank and that Flagstar Bank would be taking the majority of deposits and some loan portfolios of Signature. SVB Financial Group, the holding company for SVB, has filed bankruptcy in the Southern District of New York. (For more information, please see the following legal alert: “Silicon Valley Bank Sale Process Evolving in Unusual Direction.”)

Commercial Finance Law

Illinois Small Business Truth in Lending Act

By Tiyanna D. Lords, McGlinchey Stafford PLLC

On February 10, 2023, Illinois State Senator Laura Ellman introduced SB2234, also referred to as the “Small Business Truth in Lending Act” ( “Act”), in the Illinois House of Representatives. The purpose of the Act is to protect business owners from predatory business loans. If passed, the Act creates new compliance requirements for nonbank commercial lenders in Illinois. These requirements include heightened disclosure obligations for lenders in sales-based financing, closed-end commercial financing, open-end commercial financing, factoring transactions, and renewal financing, all of which are further defined in the Act. Additionally, the Act broadens the disclosure obligations to include lenders engaged in “other forms of financing,” meaning a provider extending a specific offer of commercial financing that is not an open-end financing, closed-end financing, sales-based financing, or factoring transaction, but otherwise meets the definition of commercial financing. Notably, the Act also provides the Illinois Department of Financial and Professional Regulation rulemaking authority in the consumer-lending context, which may add to the regulatory burden that consumer lenders in Illinois currently face. If passed, the Act will apply to transactions occurring on or after January 1, 2024.

Consumer Finance Law

Second Circuit Upholds the CFPB’s Funding Structure as Constitutional

By Eric Mogilnicki & Lucy Bartholomew, Covington & Burling LLP

On March 23, 2023, the U.S. Court of Appeals for the Second Circuit (the “Second Circuit”) upheld the funding structure of the Consumer Financial Protection Bureau (CFPB) as constitutional. In Consumer Financial Protection Bureau v. Law Offices of Crystal Moroney PC, a debt collection law firm challenged a civil investigative demand (“CID”), arguing that the CFPB is unconstitutional because of its funding through the Federal Reserve and not the congressional appropriations process. In a unanimous three-judge panel decision, the Second Circuit rejected the defendant’s arguments and required the law firm to comply with the CFPB’s CID.

In reaching its decision, the Second Circuit rejected the U.S. Court of Appeals for the Fifth Circuit’s decision in Consumer Financial Protection Bureau v. Community Financial Services Association of America, Ltd., stating that it “cannot find any support for the Fifth Circuit’s conclusion in Supreme Court precedent.” Rather, the Second Circuit reasoned that the appropriations clause “means simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress,” and Congress expressly authorized the CFPB’s funding structure when it created the Bureau. The Second Circuit stated that it is “not aware of any Supreme Court decision holding (or even suggesting) that the Appropriations Clause requires more than this ‘straightforward and explicit command,’” and it is “not at liberty to depart from binding Supreme Court precedent, ‘unless and until the [Supreme] Court reinterprets’ [such] precedent’ itself.”

The Second Circuit decision is a boost for the CFPB as it prepares to defend its funding structure to the Supreme Court later this year, and will allow the CFPB to characterize the Fifth Circuit decision as an outlier that need not and has not hampered the Bureau’s ongoing work. Following the decision, House Financial Services Committee Ranking Member Maxine Waters (D-CA) released a statement “applaud[ing]” the Second Circuit decision and criticizing the Fifth Circuit ruling as “radical and way out of the mainstream of legal opinion.”

CFPB Releases 2022 Home Mortgage Disclosure Act (“HMDA”) Data

By Eric Mogilnicki & Lucy Bartholomew, Covington & Burling LLP

On March 20, 2023, the CFPB announced the release of 2022 Home Mortgage Disclosure Act (“HMDA”) data on the Federal Financial Institutions Examination Council’s HMDA Platform. The 2022 data includes loan-level information from approximately 4,400 HMDA filers. Later this year, the 2022 data “will be available in other forms to provide users insights into the data,” including through a nationwide loan-level dataset, an aggregate disclosure reports with summary information, and a custom option to generate datasets, data maps, and reports. The CFPB will publish a “Data Point” article highlighting key trends in the 2022 HMDA data at a later date. 

Supreme Court Gives Parties Additional Time to Brief CFPB Funding Case

By Eric Mogilnicki & Tyler Smith, Covington & Burling LLP

On March 14, 2023, the Supreme Court granted the parties’ joint motion to extend the time to file briefs on the merits in CFSA v. CFPB, in which the Fifth Circuit found the CFPB’s funding structure unconstitutional. The joint motion, and the Court’s decision to provide the parties with additional time, appear to reflect the Court’s earlier decision not to expedite consideration of the case so that it could be resolved this term. The joint appendix and petitioners’ brief on the merits is now due on May 8, 2023, and respondents’ brief is due July 3, 2023. 

CFPB Launches Inquiry into Practices of Data Brokers

By Eric Mogilnicki & Tyler Smith, Covington & Burling LLP

On March 15, 2023, the CFPB issued a request for information related to the market for “data brokers,” a term the Bureau uses to describe companies that track and collect consumers’ personal information. The CFPB explained that the information it obtains pursuant to the request will inform a planned Fair Credit Reporting Act rulemaking effort and will shed light on an industry that “largely operates out of public view.”

The request seeks the public’s input on certain “market-level inquiries” and “individual inquiries.” The market-level inquiries request information on the data brokering industry as a whole, including the types of information data brokers request, how they use data, how they are structured, their business practices, and how those practices benefit or harm consumers. The individual inquiries ask for information about the public’s experiences with data brokers, including questions aimed at determining how transparent data brokers are and how difficult it is for consumers to access the information data brokers maintain.

CFPB Instructs Servicers to Stop Collecting on Student Loans Discharged in Bankruptcy

By Eric Mogilnicki & Tyler Smith, Covington & Burling LLP

On March 16, 2023, the CFPB issued a bulletin announcing its intention to enhance scrutiny of collection practices allegedly conducted by student loan servicers. The bulletin notes that “[a]lthough many student loans are subject to an ‘undue hardship’ standard and require a separate proceeding to be discharged in bankruptcy, some private student loans can be discharged in a standard bankruptcy proceeding, just like most other unsecured consumer debts.” However, the CFPB reports that its examinations found that some servicers continued to seek to collect on properly discharged student loans. The bulletin instructs student loan servicers to discontinue these collection practices and states that the Bureau will take action where it finds that such conduct has occurred.

CFPB and DOJ File Statement of Interest in Maryland Appraisal Bias Case

By Eric Mogilnicki & Tyler Smith, Covington & Burling LLP

On March 13, 2023, the CFPB and the Department of Justice filed a Statement of Interest in a District of Maryland case concerning allegations of appraisal bias. The statement contends that, contrary to arguments levied by the defendant, lenders can be held liable for relying on appraisals if they knew or should have known that the appraiser took race, sex, or any other prohibited bases into account in conducting the appraisal. That same day, the Bureau issued a blog post expressing the agencies’ joint efforts to combat appraisal bias.

CFPB Describes Efforts to Train Enforcement Agencies on Reining in Tech Company Activities

By Eric Mogilnicki & Tyler Smith, Covington & Burling LLP

On March 14, 2023, the CFPB released a blog post summarizing its efforts to train other federal and state enforcement agencies on the use of enforcement tools to protect consumers from tech companies that develop products that are harmful to consumers. In the Bureau’s words, the trainings are intended to help the agencies “stay on top of trends, address emerging risks, and rein in bad actors, especially those in Big Tech.” According to the blog post, the next training in the series is scheduled to occur in April.

House Financial Services Committee Holds Hearing on CFPB Reform

By Eric Mogilnicki & Rye Salerno, Covington & Burling LLP

On March 9, 2023, the House Financial Service Committee’s Subcommittee on Financial Institutions and Monetary Policy held a hearing titled “Consumer Financial Protection Bureau: Ripe for Reform.” The hearing, which did not include any witnesses from the CFPB, focused on Republican criticisms of the Bureau’s funding structure, single director leadership, and broad authority to enforce consumer protection laws.

In his opening remarks, Subcommittee Chairman Andy Barr (R-KY) stated that the Bureau “does not have an executive board, an independent Inspector General (IG), or any true oversight of the director,” and claimed that current CFPB Director Rohit Chopra “has routinely acted unilaterally and arbitrarily… without engaging in rulemaking in compliance with the Administrative Procedures Act (APA), and sometimes without adjudication.” Congressman Barr also promoted his recently proposed legislation that would, among other things, subject the CFPB to the annual appropriations process.

Congressional Democrats pushed back hard against Republicans’ criticisms of the Bureau. House Financial Services Committee Ranking Member Maxine Waters (D-CA) and Senate Banking Committee Chair Sherrod Brown (D-OH) responded to the hearing and proposed legislation with a joint statement backing the agency and seeking to cast the CFPB’s critics as anti-consumer: “Make no mistake. This is about whose side you’re on: workers and consumers or big corporations and Wall Street.”

CFPB Releases Special Edition of Supervisory Highlights Focused on Junk Fees

By Eric Mogilnicki & Rye Salerno, Covington & Burling LLP

On March 8, 2023, the CFPB released the Winter 2023 issue of its Supervisory Highlights, which is a “special edition” focused on junk fees. The special edition focuses on “unlawful junk fees in the areas of bank account deposits, auto loan servicing, mortgage loan servicing, payday lending, and student loan servicing found during examinations between July 1, 2022, and February 1, 2023.” In particular, the Supervisory Highlights note that Bureau examiners found financial institutions charging “surprise” overdraft fees and multiple non-sufficient fund (NSF) fees, auto loan servicers charging impermissibly inflated fees, and mortgage loan servicers charging excessive late fees and failing to adhere to fee waivers under CARES Act relief programs. The Bureau also found impermissible or predatory fees being charged by payday lenders and student loan servicers.

The CFPB’s push against “junk fees” is part of a broader effort by the Biden administration. During his February 7, 2023, State of the Union address, President Biden touted the Bureau’s and other agencies’ recent efforts to curtail these fees. The Bureau has established a junk fees landing page on its website and undertaken a number of related regulatory initiatives. Most notably, on February 1, 2023, the Bureau issued a proposed rule that would cap the Regulation Z safe harbor for credit card late fees at $8. And in October 2022, the Bureau released guidance explaining its view that certain overdraft and check bouncing fees violate the Consumer Financial Protection Act.

CFPB Issues Request For Information as Part of Mandated Review of Mortgage Loan Originator Rules

By Eric Mogilnicki & Rye Salerno, Covington & Burling

On March 10, 2023, the CFPB issued a request for information (“RFI”) on the economic impact of its mortgage loan originator rules on small mortgage companies. The rules are part of Regulation Z, which implements the Truth in Lending Act (“TILA”), and the review is pursuant to the Regulatory Flexibility Act (“RFA”), which requires agencies to consider the effect on small entities of certain rules. Comments in response to the RFI are due forty-five days after its publication in the Federal Register.

HUD Implements 40-year Loan Modification Option

By Jim Milano & Devin Leary-Hanebrink, McGlinchey Stafford, PLLC

On March 8, 2023, the Department of Housing and Urban Development (“HUD”) published a final rule allowing mortgagees to modify a Federal Housing Administration (“FHA”) insured mortgage by recasting the total unpaid loan for a new term limit of up to 480 months—up from the previous limit of 360 months—to cure a borrower’s default. The effective date of the final rule is May 8, 2023.

By increasing the maximum term limit to 480 months, mortgagees will be able to further reduce a borrower’s monthly payment, thereby spreading the outstanding balance over a longer period. This should provide more borrowers with FHA-insured mortgages with the opportunity to retain their homes after default. Further, HUD recognizes that, given the current interest rate environment, increasing rates may decrease the effectiveness of a modification in providing payment reduction—especially when the modified loan might be at a higher rate than the original loan. However, HUD believes rising rates make the forty-year loan modification option critically important because a thirty-year modification may not sufficiently decrease a borrower’s monthly payment to an amount low enough for the borrower to keep the home.

While the forty-year mortgage remains rare, it is becoming more commonly recognized in the mortgage industry, including by Fannie Mae and Freddie Mac. As such, HUD also notes that the final rule aligns the FHA with modification options available to borrowers with mortgages backed by Fannie Mae and Freddie Mac, both of which already provide a forty-year loan modification option.

Concurrent with this final rule, HUD also published Mortgagee Letter 2023-06, which further clarifies the pending changes to the FHA Single Family Housing Policy Handbook.

California DFPI Proposes Second Modification to Student Loan Servicing Regulations

By Rachael L. Aspery, McGlinchey Stafford, PLLC

On March 6, 2023, the California Department of Financial Protection and Innovation (“DFPI”) issued a notice of second modifications to proposed regulations under the Student Loan Servicing Act (“Act”) (“Amendment”). Previously, in September 2022, DFPI issued proposed rules to provide additional detail and clarity to the Student Loans: Borrower Rights law, which became effective January 1, 2021. The Amendment provides additional clarity in the relevant definitions and regarding the borrower’s rights with respect to electronic payment cutoff times, and also technical reporting requirements.

The Amendment reverts the definition of “education financing products” to include private student loans. This was used in the original proposed text, and it is proposed as a modification for consistency throughout the rules and regulations. Readers should note, however, that the Amendment also adds that a “student loan” includes any product used to finance a postsecondary education, including federal student loans and private student loans. That definition appears to include both income share agreements (“ISAs”) and “installment contracts” in which a postsecondary institution extends credit to a student.

Additionally, the Amendment adds language clarifying that the payment cap applicable to ISAs may be expressed as an APR, or an amount or a multiple of the amount advanced, covered, credited, deferred, or funded, excluding charges related to default. The payment cap is the maximum amount payable under an ISA, which is consistent with practices used by ISA providers as stated in the comments to the modified text.

The Amendment also revises the definition of “qualifying payments” to provide clarity that qualifying payments count toward the maximum payments and payment cap, but not the payment term. As a practical matter, ISA providers count qualifying payments toward the payment term, but the payment term is a fixed length of time that is not dependent on the number of qualifying payments. Therefore, the updated definition reflects this concept in practice.

Finally, the Amendment specifies certain technical requirements. If a servicer has not posted a cutoff time for an electronic payment due on any type of student loan to be credited on the date the payment is made, a payment made by 11:59 p.m. Pacific Time (standard or daylight, as applicable) on the due date must be credited as of that date and count as an on-time payment. The Amendment aligns regulatory expectations with national banking and operational standards in instances where cutoff times are not posted. The Amendment also details technical requirements for examinations, books, and records requirements. Notably, these technical requirements also extend to non-licensee filers, or a person who do not require a license under the Act but is otherwise subject to the Student Loans: Borrower Rights law.

Comments on the second modifications were due March 23, 2023.

Eighth Circuit Finds Receipt of a Single Debt Collection Letter Insufficient to Confer Standing

By Alan Ritchie, Pilgrim Christakis LLP

On February 24, 2023, the Eighth Circuit Court of Appeals vacated a debt collection class action judgment on the grounds that the named plaintiff lacked Article III standing. The district court had held that the defendants violated the Fair Debt Collection Practices Act and Nebraska Consumer Practices Act by sending a form letter demanding prejudgment interest on a consumer debt without a judgment. In vacating the district court’s ruling, the Circuit Court held that plaintiff’s receipt of a single letter, without more, did not amount to a concrete injury sufficient to confer Article III standing. The Circuit Court cited the Supreme Court’s decisions in TransUnion and Spokeo and held that absent a tangible harm (e.g., paying part of the interest or principal on the debt), the plaintiff must point to an injury with a “close relationship” to a harm “traditionally” recognized as providing a basis for a lawsuit. The Circuit Court noted that the plaintiff never paid any part of the debt interest or principal and rejected plaintiff’s attempt to liken her alleged injury to the harm recognized by common law fraudulent misrepresentation or conversion. The Circuit Court concluded that the plaintiff’s receipt of the letter, by itself, did not amount to a concrete injury in fact. Notably, the Eighth Circuit’s holding comports with several recent decisions issued by the Seventh, Tenth, Eleventh, and D.C. Circuits.

General Business Regulation

FinCEN Published Guidance on Beneficial Ownership Information

By Rachael L. Aspery, McGlinchey Stafford, PLLC

On March 24, 2023, the Financial Crimes Enforcement Network (“FinCEN”) published the first set of guidance materials to assist the public in understanding its impending beneficial ownership information (“BOI”) reporting requirements. The reporting requirements will take effect on January 1, 2024, and will require many corporations and business entities, including small businesses, created in or registered to do business in the United States to report certain information about their beneficial owners to FinCEN.

Pursuant to the Corporate Transparency Act (“CTA”), the Beneficial Ownership Information Reporting Requirements final rule was issued in September 2022, and it establishes uniform beneficial ownership information reporting requirements for entities. The CTA and its implementing regulations will provide essential information to law enforcement, national security agencies, and others to help prevent criminals, terrorists, proliferators, and corrupt oligarchs from hiding illicit money or other property in the United States. However, many companies, particularly small businesses, will now be subject to filing requirements with an agency it may have never heard of before. It appears that FinCEN is intending to make the process as transparent and simple as possible.

As part of the publication, FinCEN made available the following materials on its BOI website: FAQs, Key Filing Dates, Key Questions, an introductory video, and a more detailed informational video. FinCEN stated that it will publish additional guidance in the coming months on its BOI website, with specific attention to a Small Entity Compliance Guide. FinCEN also stated that information on how to submit beneficial ownership information will be forthcoming, and FinCEN will not accept any beneficial ownership information prior to January 1, 2024. Reporting companies created or registered before January 1, 2024, will have one year (until January 1, 2025) to file their initial reports, while reporting companies created or registered after January 1, 2024, will have thirty days after creation or registration to file their initial reports. Once the initial report has been filed, both existing and new reporting companies will have to file updates within thirty days of a change in their beneficial ownership information. In light of these new and uniform reporting requirements, FinCEN has stated that it is committed to implementing these statutory obligations in a robust manner while minimizing burdens on reporting companies.

Labor and Employment Law

App-Based Delivery Companies Can Treat Workers As Independent Contractors Under California Proposition 22

By Jane Michetti, JD Candidate 2023, Widener Commonwealth Law School

On March 13, 2023, the Court of Appeals of the State of California reversed the trial court’s decision regarding the unenforceability of Proposition 22 that allows app-based delivery companies to classify their workers as independent contractors rather than employees.

Proposition 22 received California voters’ backing after it was put on a ballot following the enactment of Assembly Bill No. 5 in 2019. Assembly Bill No. 5 provided a test to distinguish between employees and independent contractors, and Proposition 22’s main goal was to be able to classify an app-based driver as an independent contractor and not an employee or agent of the app-based transportation and delivery provider, such as Uber, Lift, and DoorDash. After voters approved Proposition 22, various labor unions challenged its constitutionality. In 2021 a trial judge ruled that Proposition 22 was unenforceable because it violated the California Constitution. The state Proposition’s proponents appealed.

The proponents believe that the law will allow drivers to retain flexibility they would be forced to give up if they were employees. The labor activists, however, claim that the drivers are not treated fairly and deserve better benefits and will be able to maintain their flexibility under traditional employment.

The court’s decision did not put any obligation on app-based companies to provide their workers with any benefits or protections above and beyond what is required under Proposition 22. It also strengthened companies’ decision to classify their workers as independent contractors rather than employees. As of now, app-based delivery companies can celebrate the win, but it is still unclear whether Proposition 22 ultimately will be upheld.

Seattle Amends Anti-Discrimination Laws to Include Caste as a Protected Category

By Lakshmi Gopal

On February 21, 2023, Seattle City Council passed a law to amend anti-discrimination protections in employment, public places, housing, and contracting to include caste as a protected class. The law took effect from March 25, 2023. Caste discrimination impacts descendants of communities that have been historically treated as outcaste in a recognized caste system. US courts have recognized the continued existence of caste systems in India, Pakistan, Nepal, and Somalia. Examples of caste discrimination include denying someone a promotion or other such opportunities because of their status as a member of an outcaste. Efforts to alleviate discrimination based on caste have been subject to targeted misinformation campaigns. For this reason, businesses with employees in Seattle are encouraged to seek out training from organizations working directly with victims of caste discrimination.

Tax Law

En Banc 9th Circuit Affirms Tax Court on When Partnership Return Is Deemed Filed

By Timothy M. Todd, Liberty University School of Law

In the May 2022 Month-in-Brief, we discussed the 9th Circuit panel decision in Seaview Trading, LLC, which held that a partnership had effectively filed a delinquent tax return when it provided a copy of the return to an IRS official at his or her instruction. On en banc review, however, the full 9th Circuit disagreed with the earlier panel decision and agreed with the Tax Court that the partnership return was never “filed.”

The 9th Circuit noted that Supreme Court precedent informs that “limitations statutes barring the collection of taxes otherwise due and unpaid are strictly construed in favor of the Government,” Badaracco v. Comm’r, 464 U.S. 386, 392 (1984), and therefore that there must be “meticulous compliance by the taxpayer with all named conditions in order to secure the benefit of the limitation.” Lucas v. Pilliod Lumber Co., 281 U.S. 245, 249 (1930). Based on that framework, one of the named conditions to comply with at that time was that the partnership return was to be filed “at such place as may be prescribed in regulations.” 26 U.S.C. 6230(i) (2000). And the regulations required that the return be filed at the IRS Service Center in Ogden, Utah. Here, the court noted that the partnership did not comply with the place-for-filing regulations because the return was never sent to the designated place for filing (nor was it ever forwarded to the designated place).

The case is Seaview Trading, LLC v. Comm’r, No. 20-72416 (9th Cir. Mar. 10, 2023) (en banc), which you can read here.

Treasury and IRS Issue Guidance on the Implementation of the Advanced Manufacturing Investment Credit

By Timothy M. Todd, Liberty University School of Law

The Treasury Department and IRS issued proposed regulations to implement the advanced manufacturing investment credit that was part of the CHIPS Act of 2022. The advanced manufacturing investment credit is designed to offer a credit of 25 percent of the “qualified investment” with respect to any “advanced manufacturing facility” of an eligible taxpayer, which is directed at incentivizing the manufacture of semiconductors and semiconductor manufacturing equipment. The regulations address eligibility requirements, an elective payment election, and a recapture rule, among other items. The proposed regulations also request comments on various items. The proposed regulations can be found at RIN 1545-BQ54.



[3] §5 of the FTC Act prohibits unfair methods of competition and unfair or deceptive acts or practices in or affecting commerce. The FTC’s merger challenge is based, in part, on Section 5’s ban on unfair methods of competition.

[4] §7 of the Clayton Act prohibits mergers and acquisitions that tend to create a monopoly or substantially less competition.






ARTICLES & VIDEOS (March 2023)

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