Legal Alert

Mortgage Banking Update - November 21, 2024

November 21, 2024

November 21 – Read the newsletter below for the latest Mortgage Banking and Consumer Finance industry news, written by Ballard Spahr attorneys. In this issue, we discuss recent happenings at the CFPB, new California consumer protection bills, FinCEN’s alert on GenAI fraud schemes, a strike-down of DOL’s overtime eligibility expansion by a Texas court, and much more.

 

This Week’s Podcast Episode: CFPB’s Proposed Mortgage Servicing Rule Amendments: Understanding the Impact on Loss Mitigation, Foreclosure, and Language Access

This summer, the CFPB issued its long-awaited proposed rule amending the mortgage servicing rules under Regulation X, with a focus on loss mitigation procedures, foreclosure protections, and language access. These changes were previewed by the CFPB as a means to streamline, and add flexibility to, the loss mitigation process, in light of the industry’s successful efforts during the COVID-19 pandemic. However, the CFPB’s proposal also significantly expands borrower protections during the loss mitigation process, creates extensive new operational challenges for servicers, and leaves many concerning questions based on the proposed language.

The mortgage servicing industry responded by submitting numerous comment letters, appropriately voicing a range of concerns with the proposed changes. We now await further action from the CFPB.

On this episode, Ballard Spahr lawyers discuss the regulatory and litigation impacts of the proposed rule, including:

  1. Detailed analysis of the proposed changes.
  2. Potential approaches to loss mitigation, under the revised scheme.
  3. Practical impacts on loss mitigation and foreclosure from an operational, cost, and liability standpoint.
  4. Specific pain points under the proposed language, and topics requiring clarification, refinement, or pushback.
  5. Language access requirements, and the impact from an operational, cost, and liability standpoint.
  6. Implications of the rulemaking in a post-Chevron world.

Partner and Leader of Ballard Spahr’s Mortgage Banking Group, Richard J. Andreano, moderates today’s episode, and is joined by Reid F. Herlihy and Matthew A. Morr, partners in the group.

To listen to this episode, click here.

John A. Kimble

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The CFPB Seeks Approval of Townstone Financial Order

Following lengthy litigation, the CFPB is attempting to close the books on its case against Townstone Financial alleging discriminatory lending practices and redlining African American neighborhoods in Chicago.

If the proposed order submitted by the CFPB is approved by the U.S. District Court for the Northern District of Illinois, Townstone would be prohibited from taking any actions in connection with offering or providing mortgage loans that violate the Equal Credit Opportunity Act (ECOA) and would be required to pay a $105,000 penalty to the CFPB’s victims relief fund.

The action follows litigation and a unanimous July 2024 decision by a panel of judges from the United States Court of Appeals for the Seventh Circuit that stated that the ECOA prohibits lenders from discouraging prospective applicants on a prohibited basis from applying for loans.

The Seventh Circuit decision “held that ‘an analysis of the text of the ECOA as a whole makes clear that the text prohibits not only outright discrimination against applicants for credit, but also the discouragement of prospective applicants for credit,’ which is consistent with the Bureau’s regulation interpreting ECOA,” the bureau said.

The panel reversed the decision of the district court, which had initially dismissed the lawsuit on the grounds that the ECOA applies only to applicants and, thus, a redlining claim cannot be maintained under the statute. The panel remanded the case for further proceedings. We previously addressed both the district court’s ruling and the ruling of the Seventh Circuit panel. We maintain our view that the panel’s decision, which is sparse in analysis, is not a correct interpretation of the ECOA, and that the district court’s ruling, which has a much more robust analysis of the issues, got it right. In our view, the ECOA only applies to applicants. If the issue of whether the ECOA covers prospective applicants were to reach the Supreme Court in its current composition, the CFPB likely would not be pleased with the result.

Townstone operated as a nonbank retail-mortgage creditor and broker based in Chicago during the period addressed by the CFPB, and currently operates as a mortgage broker. The CFPB said that 90 percent of Townstone’s mortgage lending was in the Chicago metropolitan area. According to the CFPB, from 2014 through 2017, Townstone ranked in the top 10 percent of lenders that drew applications from the Chicago metropolitan area, receiving an average of 740 mortgage loan applications each year, the bureau said.

The bureau sued Townstone in 2020, alleging that the company discouraged potential applicants because of their race or the racial composition of the neighborhood where they lived or sought to live.

“Specifically, Townstone’s advertising, marketing, and business practices discouraged African Americans from applying for credit and actively avoided the credit needs of African American applicants and African American neighborhoods in the Chicago metropolitan area,” the bureau said.

Townstone drew only five or six applications a year for properties in neighborhoods that were more than 80 percent African American. Those neighborhoods representing nearly 14 percent of census tracts in the Chicago metropolitan area. The bureau said that more than half of the applications Townstone did draw from those neighborhoods were from white applicants. From 2014 through 2017, about 2 percent of Townstone’s mortgage-loan applications were for properties in majority African American neighborhoods, even though they make up nearly 19 percent of the Chicago metropolitan area’s census tracts.

Townstone neither admitted nor denied the CFPB’s allegations in the proposed order. In comparison to other CFPB redlining settlements, as well as Department of Justice redlining settlements, the monetary aspect is modest and the conduct provisions are limited.

Richard J. Andreano, Jr. and John L. Culhane, Jr.

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FinCEN Issues Proposed Reporting Form for Residential Real Estate Deals

As we previously blogged, the Financial Crimes Enforcement Center (FinCEN) published Anti-Money Laundering Regulations for Residential Real Estate Transfers (Final Rule) regarding residential real estate. The Final Rule, set to go into effect on December 1, 2025, institutes a new Bank Secrecy Act reporting form – the “Real Estate Report” (Report) – which imposes a nation-wide reporting requirement for the details of residential real estate transactions, subject to certain exceptions, in which the buyer is a covered entity or trust.

FinCEN has now published the proposed Report, which is here, and requested comments within 60 days. The Reports are to be filed through FinCEN’s electronic online reporting system.

The proposed Report has 111 distinct fields. “FinCEN expects approximately 60 percent must be completed to report a given transfer . . . . [but also] anticipates that significantly more fields may be required for certain highly complex reportable transfers, such as those with multiple beneficial owners (BOs) or multiple sources of funds that would require the same fields to be populated for each owner or source of funds.”

As we previously blogged, a Report must identify the following information:

  • The reporting person;
  • The legal entity or trust receiving ownership of the property;
  • The BOs of the transferee entity or transferee trust;
  • Certain individuals signing documents on behalf of the transferee entity or transferee trust during the reportable transfer;
  • The transferor;
  • The residential real property being transferred; and
  • Total consideration and certain information about any payments made.

FinCEN repeats that reporting persons may rely reasonably on information provided by other persons, if the reporting person does not know facts that would reasonably call into question the reliability of the information. However, as to BO information, the reasonable reliance standard applies more narrowly to information provided by the transferee or the transferee’s representative and only if the person providing the information certifies its accuracy in writing to the best of their knowledge. Moreover, the Final Rule does not allow the filing of incomplete Reports.

The Report requires in part collection of a BO’s name, date of birth, address, government-issued identifying number (such as a social security number or foreign passport number), and citizenship. As to BOs of transferee trusts, the reporting person also must indicate if the BO is one or more of the following:

  1. An individual who is a trustee of the transferee trust
  2. An individual other than a trustee with the authority to dispose of transferee trust assets
  3. A beneficiary who is the sole permissible recipient of income and principal from the transferee trust or who has the right to demand a distribution of, or withdraw, substantially all of the assets from the transferee trust
  4. A grantor or settlor who has the right to revoke the transferee trust or otherwise withdraw the assets of the transferee trust
  5. A beneficial owner of a legal entity or trust that is a trustee of the transferee trust
  6. A beneficial owner of a legal entity or trust with authority to dispose of transferee trust assets in a manner other than as a trustee of a transferee trust
  7. A beneficial owner of a legal entity or trust that is the sole permissible recipient of income and principal from the transferee trust or who has the right to demand a distribution of, or withdraw, substantially all of the assets from the transferee trust
  8. A beneficial owner of legal entity or trust that is a grantor or settlor with the right to revoke the transferee trust or otherwise withdraw the assets of the transferee trust

FinCEN estimates that about 850,000 Reports will be filed annually by up to 172,753 reporting persons. FinCEN also estimates that it will take, on average, each filer about 50 minutes to institute training and technology sufficient to be able to file Reports. FinCEN further estimates that it will take, on average, about 15 minutes to file each Report. Thus, FinCEN estimates that compliance with the reporting requirement will impose a total annual burden of 356,461 hours.

FinCEN advised of the following observations regarding data collected through the Geographic Targeting Orders (GTOs), which have accumulated BO information since 2016 through reports regarding the purchases of certain real estate by entities in designated U.S. jurisdictions if they exceeded certain monetary thresholds:

FinCEN estimates that approximately 64 percent of all reports filed were submitted by the five largest title companies and an additional 8 percent, approximately, were filed by the remaining 15 of the 20 largest title companies. The residual share of total reports filed were submitted by either smaller title companies or law offices, with an average filing volume of 16 GTO reports filed per remaining filer and an average of one identifiably distinct employee filer per reporting year per reporting entity.

Finally, signaling the likely role of lawyers in filing the proposed real estate Reports, “FinCEN notes that of the approximately 2,400 identifiably unique filers who submitted at least one Residential Real Estate GTO report through August 2024, approximately 38.4 percent self-identified as either primarily employed as an attorney or the employee of a law office.”

If you would like to remain updated on these issues, please click here to subscribe to Money Laundering Watch. Please click here to find out about Ballard Spahr’s Anti-Money Laundering Team.

Peter D. Hardy, Richard J. Andreano, Jr., Kaley N. Schafer and Siana Danch

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FinCEN Alert: Fraud Schemes Using Generative Artificial Intelligence to Circumvent Financial Institution’s Identity Verification, Authentication, and Due Diligence Controls

On November 13, 2024, the Financial Crimes Enforcement Network (FinCEN) issued FIN-2024-Alert004 to help financial institutions identify fraud schemes associated with the use of deepfake media created with generative artificial intelligence (GenAI) in response to increased suspicious activity reporting. “Deepfake media” are a type of synthetic content that use artificial intelligence/machine learning to create realistic but inauthentic videos, pictures, audio, and text to circumvent identity verification and authentication methods.

FinCEN reports that fraudsters are using GenAI as a low cost tool to exploit financial institutions’ identity verification processes. The SAR filings indicated the fraudsters are using GenAI to open accounts to funnel money and perpetrate fraud schemes, such as check fraud, credit card fraud, authorized push payment fraud, loan fraud, or unemployment fraud.

Deepfake media also may be used in phishing attacks and scams to defraud business and consumers by using GenAI to impersonate trusted individuals.

Red flag indicators to detect deepfake media include the following:

  • A customer’s photo is internally inconsistent (e.g., shows visual tells of being altered) or is inconsistent with their other identifying information (e.g., a customer’s date of birth indicates that they are much older or younger than the photo would suggest).
  • A customer presents multiple identity documents that are inconsistent with each other.
  • A customer uses a third-party webcam plugin during a live verification check. Alternatively, a customer attempts to change communication methods during a live verification check due to excessive or suspicious technological glitches during remote verification of their identity.
  • A customer declines to use multifactor authentication to verify their identity.
  • A reverse-image lookup or open-source search of an identity photo matches an image in an online gallery of GenAI-produced faces.
  • A customer’s photo or video is flagged by commercial or open-source deepfake detection software.
  • GenAI-detection software flags the potential use of GenAI text in a customer’s profile or responses to prompts.
  • A customer’s geographic or device data is inconsistent with the customer’s identity documents.
  • A newly opened account or an account with little prior transaction history has a pattern of rapid transactions; high payment volumes to potentially risky payees, such as gambling websites or digital asset exchanges; or high volumes of chargebacks or rejected payments.

FinCEN has identified the following practices as tools to attempt to reduce a financial institution’s vulnerability to deepfake identity documents:

  • Multifactor authentication (MFA), including phishing-resistant MFA; and
  • Live verification checks in which a customer is prompted to confirm their identity through audio or video.

If you would like to remain updated on these issues, please click here to subscribe to Money Laundering Watch. Please click here to find out about Ballard Spahr’s Anti-Money Laundering Team.

Kristen E. Larson

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NFIP to Allow Installment Payments for Flood Insurance

The Federal Emergency Management Agency (FEMA) has announced it will allow National Flood Insurance Program (NFIP) premiums to be paid on an installment basis. The final rule implements an installment payment option that was mandated by Congress in the Biggert-Waters Flood Insurance Reform Act, adopted in 2012, for policyholders who are not required to pay into escrow for flood insurance premiums. FEMA also issued related FAQs.

Until now, premiums have been remitted to FEMA in a one-time payment each year. However, pursuant to NFIP requirements, many homeowners with mortgage loans must pay an amount for flood insurance into escrow on a monthly basis, and the implementation of the installment payment option does not alter the premium escrow requirements. Once programmatic changes are made, all property-owners, both residential and commercial, will be able to make monthly premium payments to FEMA. Property owners will not be required to pay an additional fee for the monthly payments, which will be made electronically. To be able to pay FEMA on a monthly installment basis, policyholders will be required to opt in and authorize automatic, electronic payments (e.g., using a credit card or bank account) through their insurer.

Once adopted, the new payment method will be available to new property owners and to current property owners who are not required to escrow their premiums. The installment plan will be available for property owners at the time of purchase. Current property owners will be able to adopt the new method at the time their flood insurance policy is up for renewal. Once an annual or installment payment option is selected, the payment option may not be changed during the policy term.

NFIP officials said that some consumers lack the financial ability to pay their entire premium at one time.

“Providing an option for monthly installments will expand access to flood insurance to meet the evolving needs of the Nation,” NFIP officials said in a Federal Register notice. “The option to pay in installments may also increase policyholders’ budgetary flexibility by alleviating cash flow pressure, as they could use the deferred payment to address other monthly needs.”

Even though FEMA took until 2024 to implement a requirement mandated by Congress is 2012, it did not issue a proposed rule, and simply adopted the installment plan option in a final rule.

Richard J. Andreano, Jr. and Reid F. Herlihy

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Warren Will Be Banking Committee Ranking Democrat in Next Congress

Senator Elizabeth Warren, (D-Mass.), an advocate of a strict financial regulatory regime, will become the top Democrat on the Senate Banking, Housing and Urban Affairs Committee in the next Congress.

Senator Sherrod Brown, (D-Ohio.), had been the chair of the Committee. However, Brown lost his bid for reelection and Democrats lost majority control of the Senate—resulting in Sen. Warren becoming the ranking member.

Sen. Warren, who is credited with designing the CFPB before initially being elected to the Senate, won her own reelection bid earlier this month.

“I’ve spent my entire career fighting to make our economy work better for middle-class families – not just for the wealthy and well-connected,” Sen. Warren said, in a statement. “Decisions made by the Senate Committee on Banking, Housing, and Urban Affairs have a powerful impact on Americans’ lives, and I’m grateful for the opportunity to fight for families who most need a government on their side.”

Senator Tim Scott, (R-S.C.), who currently is the ranking member of the Committee, is expected to become the chair.

Richard J. Andreano, Jr. and John L. Culhane, Jr.

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California Governor Newsom Signs Array of Consumer Protection Bills

California Governor Gavin Newsom has signed legislation covering a range of consumer protection issues. The bills aim to “strengthen protections for consumers, addressing issues that have put financial strain on Californians while setting new standards for transparency and accountability across industries.”

The legislative package includes the following bills:

  • AB 2017 prohibits state-chartered banks and credit unions from charging nonsufficient funds fees when a transaction is declined instantaneously or near instantaneously for insufficient funds.
  • SB 1075 prohibits credit unions from charging an overdraft fee or a nonsufficient funds fee exceeding $14 or the amount set by the federal Consumer Financial Protection Bureau for the fee, whichever is lower. The bill also requires a notice to the consumer in the event such a fee is charged.
  • SB 1061 prohibits medical debt from being listed on consumers’ credit reports. That, the governor said, is intended to ensure that people are not penalized for the high costs of necessary health care. That bill also prohibits using any medical debt listed on a credit report as a negative factor when making credit decisions.
  • AB 2863 requires companies offering automatic renewals and continuous services to provide consumers a means to cancel the subscription using the same medium they used to sign up. For instance, a person who subscribes online must be given an online click-to-cancel option, according to the governor’s office.

Reid F. Herlihy and John A. Kimble

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Texas Court Strikes Down DOL’s Overtime Eligibility Expansion

On November 15, 2024, a federal judge blocked the U.S. Department of Labor’s (DOL) attempt to raise the minimum salary level for the executive, administrative, and professional (EAP) exemptions from minimum wage and overtime pay under the Fair Labor Standards Act (FLSA). The ruling issued by the Honorable Sean D. Jordan of the U.S. District Court for the Eastern District of Texas applies nationwide, blocking the upcoming increase to the salary threshold, as well as reversing the raise to the salary threshold that went into effect earlier this year. The ruling undermines one of the most significant labor-oriented efforts of the Biden Administration just two months before the upcoming transfer of power to a new presidential administration.

As we reported previously, the DOL issued a final rule in April 2024 that called for a two-step increase to the salary threshold for “white collar” and other highly compensated employees, rendering millions of employees eligible for overtime. On July 1, the first step of this increase went into effect, raising the threshold from $35,568 annually to $43,888 annually. The second step would have gone into effect on January 1, 2025 and raised the threshold to $58,656 annually. In addition, the final rule provided for an increase to the salary threshold every three years, starting on July 1, 2027.

To little surprise, the final rule has faced legal challenges and scrutiny since its issuance. In State of Texas v. United States Dep’t of Labor, the State of Texas and a group of business organizations challenged the rule’s mandates and argued that the Labor Department exceeded its authority when it finalized the final rule in April. Judge Jordan ruled in favor of the State and the business organizations and against the overtime eligibility expansion. In finding that the DOL exceeded its rulemaking authority, Judge Jordan cited the Supreme Court’s July 2024 decision in Loper Bright Enterprises v. Raimondo – which overturned the long-standing Supreme Court decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. and eliminated the deference courts were required to afford to an administrative agency’s interpretation of a statute. As a result of Judge Jordan’s decision, the minimum salary threshold will return to $35,568 unless the DOL, which will be under a new administration in January 2025, successfully appeals the decision.

Although it raised the salary threshold in 2019 during its first term, the Trump Administration is unlikely to continue pursuing the agenda of the current DOL following the inauguration. Notably, the last time the DOL attempted to raise the salary threshold significantly was during the Obama Administration in 2016, and the Eastern District of Texas struck down the final rule in similar fashion. When President Trump was elected, the DOL dropped the appeal of the 2016 decision.

Ballard Spahr’s Labor and Employment Group regularly advises clients on navigating the shifting landscape of DOL regulations and developing wage and hour policies.

Shannon D. Farmer and Monica T. Nugent

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NLRB Bans Captive Audience Meetings and Limits Employer Campaign Statements in Recent Cases

Reversing decades of precedent, the National Labor Relations Board (“Board”) issued two recent decisions that will significantly restrict the right of employers to provide information to their employees about the impact of unionization. Both cases were decided by a 3-1 majority of the Board’s Democratic members, in what appears to be an eleventh-hour push to change well-settled law in advance of the Trump administration taking the reins next year.

Ban on Captive Audience Meetings

In Amazon.com Services LLC, 373 NLRB No. 136 (Nov. 13, 2024), the Board overturned Babcock & Wilcox Co., 77 NLRB 577 (1948), and held that employers may no longer require employees to attend meetings during work hours to listen to their employer’s views about unions. The Board said these so-called “captive audience meetings” interfere with and coerce employees in the exercise of their Section 7 rights under the National Labor Relations Act (“the Act”) by: 1) infringing on an employee’s right to choose the degree to which they will participate in the debate concerning representation; 2) serving as mechanisms for employers to observe and surveil their employees; and 3) demonstrating the employer’s economic power over employees, which unreasonably tends to inhibit them from acting freely.

The Board defended its decision as consistent with the First Amendment and Section 8(c) of the Act, explaining that Section 8(c) permits employers to share views on unionization, but not to compel attendance at meetings where those views are shared. The Board said that forcing employees to attend these meetings crosses the line between permitted persuasion and unlawful coercion.

Safe Harbor Disclosures

The Amazon.com Services, LLC Board told employers that they may avoid liability under the Act if, reasonably in advance of the meeting, they inform employees:

  1. The employer intends to express its views on unionization at the meeting at which attendance is voluntary;
  2. Employees will not be subject to discipline, discharge, or other adverse consequences for failing to attend the meeting or for leaving the meeting; and
  3. The employer will not keep records of which employees attend, fail to attend, or leave the meeting.

The Board said that employers who give these “safe harbor” assurances and follow through on them, may lawfully hold meetings on company time to share views on unionization. However, failure to give these assurances will not, itself, result in a violation of the Act.

The Board said that these safe harbor provisions are intended to give employers “clear guidance” to avoid liability, but added that if, under all the circumstances, employees could reasonably conclude that attendance at the meeting is required as part of their job duties or could reasonably conclude that their failure to attend or remain in the meeting could subject them to adverse consequences, an employer may be found to have unlawfully compelled attendance. Moreover, if a manager puts a meeting on the employee’s work schedule, such meeting would be considered unlawfully compelled.

Unfortunately, the Board’s “clear guidance” does little to actually guide employers. For example, the decision does not address to what extent employers may encourage attendance at a meeting by telling employees that they hope they will attend, or that attendance is encouraged. We suspect that the current Board would scrutinize such statements, even if safe harbor assurances are given.

Dissenting Member Marvin Kaplan criticized the decision as worse for employees because by making attendance voluntary, it will be easier for employers to observe which employees choose to attend, and that may lead to assumptions about an employee’s support for the union or lack thereof. He also called the majority’s decision content-based regulation of speech because it bans only meetings where the purpose is to express views on unionization.

The decision will apply prospectively. Legal challenges are expected.

Statements to Employees Regarding the Impact of Unionization on the Employment Relationship

In Starbucks, 373 NLRB No. 35 (Nov. 8, 2024), the Board adopted a case-specific approach to analyzing employer campaign statements, overruling Tri-Cast, Inc., 274 NLRB 377 (1985), which the Board said has been used for 40 years to “categorically immunize” employer campaign statements to employees about the impact of unionization on the employment relationship. The Board said that its case-specific approach is designed to ensure that employer campaign statements are non-threatening.

During union organizing drives, employers often explain to employees that the direct employer-employee relationship will be impacted by unionization. But, the Starbucks Board warned that employers should be careful not to misrepresent the impact or the law. Doing so may constitute an unlawful threat under the Act.

In overruling Tri-Cast, the Board said that the case was poorly reasoned, and that the statement the Board found lawful 40 years ago appeared to directly contradict Section 9(a). Section 9(a) of the Act gives unionized employees the right to have their grievances adjusted without intervention by their union, so long as their adjustment is not inconsistent with the terms of their collective bargaining agreement, and so long as the union is given the opportunity to be present at the adjustment. In Tri-Cast, the employer told employees that if a union was voted in, they would not be able to “handle personal requests” as they had been doing.

The Starbucks Board agreed that Section 9(a) contemplates a change in the manner in which employers and employees deal with each other following unionization, but that employers may not mischaracterize or misstate that change or the guarantees of the law.

Despite overruling Tri-Cast, the Board did not take issue with the statements made by Starbucks managers, finding the following statements lawful:

  • “If you want a union to represent you…you want to give your right to speak to leadership through a union, you’re going to check off ‘yes’ for the election. If you want to maintain a direct relationship with leadership, you’ll check off ‘no.’”
  • “And if it’s not in that [union] contract, it’s not a conversation in my opinion that’s going to happen with leadership…So I want to be clear on that. That a third party comes in and speaks for you. And everything will be grounded, from my experience and my opinion through the lens of that contract.”

The Board said its decision in Starbucks will apply prospectively.

Key Takeaways

The NLRB’s five-member Board is currently composed of a 3-1 Democratic majority, with Chairman Lauren McFerran’s term expiring on December 16, 2024. If McFerran is not confirmed for another term, that leaves two vacancies for Republican appointees, and if all seats are filled, it would flip the majority from Democrat to Republican. We expect Trump’s re-election to usher in a period of more employer-friendly decisions, but changes may take years. In the meantime, the current Board’s union-friendly approach is controlling and employers should be strategic in their campaign communications to employees.

Ballard Spahr’s Labor and Employment Group monitors NLRB developments and advises employers on all aspects of compliance with NLRB procedures.

Shannon D. Farmer and Rebecca A. Leaf

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Looking Ahead

Navigating the New CFPB Open Banking Rule: A Deep Dive

A Ballard Spahr Webinar | December 4, 2024, 2:30 PM – 3:45 PM ET

Speakers: Alan S. Kaplinsky, Gregory Szewczyk, Hilary Lane

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