New Louisiana State Legislation Rolls Back Advantages Long Afforded to Personal Injury Claimants
Louisiana has enacted new laws addressing the burden of proof and limitation on damages in personal injury claims. These enactments not only affect claims arising on land but also may extend to claims arising on fixed structures in state waters and on the Outer Continental Shelf, where state law has been applied as surrogate federal law. Among the notable new legislative actions are the enactment of Code of Evidence Article 306.1, the amendment of Civil Code Article 2323(A), and the enactment of Civil Code Article 2323(D).
The newly enacted Code of Evidence Article 306.1 is meant to overrule the long-held evidentiary standard of Housley v. Cerise, 579 So.2d 973 (La. 1991), otherwise known as the Housley Presumption. Under the rule of Housley, a claimant’s personal injury was presumed to have resulted from the accident in controversy so long as the claimant could prove that the injury in question did not exist prior to the accident’s occurrence. This was widely considered to be a liberal standard, highly favoring plaintiffs engaged in litigation. Now, Art. 306.1 does away with this presumption, as it expressly states that “the lack of a prior history of an illness, injury, or condition shall not create a presumption that an illness, injury, or condition was caused by the act that is the subject of the claim.” Of note is the fact that the updated provisions of Art. 306.1 will not be applied to presently ongoing matters. It is to have “prospective application only” and therefore will apply exclusively to causes of action arising after it goes into effect. Nonetheless, Art. 306.1 will create a more onerous burden of proof for claimants in personal injury actions brought under Louisiana state law, much to the benefit of defendants in the same.
The changes to Civil Code Article 2323 center on state law theories of comparative fault. Prior to the signing of this new legislation, Civ. Code Art. 2323(A)(1) provided that a claimant found to have suffered injury, death, or loss partially due to his own negligence would see his recoverable damages reduced in proportion to the “degree or percentage of negligence attributable” to the claimant. This language has been removed from the statute entirely. Instead, Civ. Code Art. 2323(A)(2)(a) will now provide that a claimant found to be at least 51% responsible for his own injury will not be entitled to recovery of any related damages whatsoever. The sentiment of the rule as it was previously written is preserved in altered form in Civ. Code Art. 2323 (A)(2)(b), however, which now reads that a claimant found to be less than 51% responsible for his injuries will see his recoverable damages reduced in proportion “to the degree or percentage of negligence attributable” to the claimant. In addition to its amendments to Civ. Code Art. 2323(A), the legislature has added a Civ. Code Art. 2323(D), which provides that “[i]n cases where the issue of comparative fault is submitted to the jury, the jury shall be instructed on the effect of this Article.” This is to say that juries tasked with assigning percentages of fault to each party will receive instruction outlining the new ramifications of Civ. Code Art. 2323.
Impact on the Environment and Potentially Greater Impact on Administrative Law – SCOTUS Today
Readers of this blog will recall our recent discussion concerning the U.S. Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, in which the Court overruled the long-standing doctrine of Chevron U.S.A. Inc. v. Natural Resources Defense Counsel.
Under Chevron, courts had been required to defer to “permissible” agency interpretations of ambiguous statutes even where a reviewing court might have read the statute differently from the agency.
Instead, the Court held in Loper Bright that the Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous. As the Court put it, “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.”
Yesterday, in a significant environmental case, Seven County Infrastructure Coalition v. Eagle County, the Court provided a gloss on Loper Bright, now describing an issue of administrative law where a court must defer to the judgment of an agency.
The case arose when the Seven County Infrastructure Coalition applied to the U.S. Surface Transportation Board (“the Board”), the agency empowered by federal law with authority over new railroad construction and operation, to approve construction of an 88-mile railroad line connecting the oil-rich Uinta Basin with Gulf Coast refineries. The Board, consistent with the National Environmental Policy Act (NEPA), held six public hearings, received more than 1,900 public comments, and then issued a 3,600-page Environmental Impact Statement (EIS) that addressed various environmental effects of the railway’s construction and operation.
However, the EIS noted, but did not fully analyze, the potential effects of increased upstream oil drilling in the Uinta Basin and increased downstream refining of crude oil. The Board ultimately approved the railroad line through a cost-benefit analysis. However, the U.S. Court of Appeals for the District of Columbia Circuit held that the Board impermissibly limited its analysis by failing to link it to consideration of the ancillary effects related to the project. The Supreme Court reversed, holding that the D.C. Circuit failed to afford the Board “the substantial judicial deference required in NEPA cases and incorrectly interpreted NEPA to require the Board to consider the environmental effects of upstream and downstream projects that are separate in time or place from the Uinta Basin Railway.”
Wait a second: You might say that Loper Bright says “no deference,” and Seven County mandates a lot of it. What gives?
The answer is that the two cases are not about the same thing.
Loper Bright is about the interpretation of an ambiguous statute, a matter of law that is the province of the judiciary, not an agency.On the other hand, there is no asserted ambiguity in NEPA’s dictates. Instead, it is a matter of compliance based on the consideration of facts and their application to predictive scientific determinations that are matters for agency experts, not judges. In such cases, a reviewing court is “most deferential” to agency determinations.
Interestingly, no Justice dissented from yesterday’s ruling. The operative, majority opinion of the Court was written by Justice Kavanaugh, who as I’ve written previously, has succeeded retired Justice Breyer as the Court’s leader on administrative law matters. Kavanaugh was joined by the Chief Justice and Justices Thomas, Alito, and Barrett. Justice Sotomayor, joined by Justices Kagan and Jackson, wrote separately, concurring in the judgment based on statutory language and case precedent that the Board lacked authority to reject the construction application on account of the harms that third parties would suffer with respect to products that the railway would transport. They criticize the majority for relying too much on policy matters instead of text and caselaw. Justice Gorsuch recused. Thus, no Justice would have ruled against the Board.
Strict adherence to the majority decision might help the reader make wise litigation choices, recognizing that a court provides the relevant frame of inquiry as to the resolution of jurisdictional arguments where statutes are ambiguous. That is why, for example, without any reference to Chevron, the Court ruled against the government in another environmental case, West Virginia v. Environmental Protection Agency. But agencies are going to get great deference with respect to judgments in their areas of scientific or other expertise. In such a case, it might be wise to focus on trying to demonstrate that agency action is “arbitrary and capricious” in what it actually did or failed to do in a manner consistent with eroding presumption.
Yesterday’s decision suggests that arguments about whether a particular report is detailed enough are matters of agency discretion that should not be second-guessed by a court. So, arguments premised on length, or the lack of it, are going to fail. The same thing goes for time. Expeditiousness is now favored as to NEPA determinations; the fact that consideration wasn’t lengthy is unlikely to be disqualifying. Moreover, because an agency’s predictive and scientific judgments as to relevant impacts and potential alternative actions are presumptively valid, their validity, as Justice Kavanaugh notes, is going to come down to “common sense.”
In the case at bar, “the Board’s determination that its EIS need not evaluate possible environmental effects from upstream and downstream projects separate from the Uinta Basin Railway complied with NEPA’s procedural requirements, particularly NEPA’s textually mandated focus on the ‘proposed action’ under agency review. While indirect environmental effects of the project itself may fall within NEPA’s scope even if they might extend outside the geographical territory of the project or materialize later in time, the fact that the project might foreseeably lead to the construction or increased use of a separate project does not mean the agency must consider that separate project’s environmental effects.”
Whose Terms Govern? An Introduction to the Battle of the Forms
For construction lawyers, the Battle of the Forms presents a familiar fact pattern. A material supplier/seller provides a potential buyer with a price quote along with its standard terms. The buyer, usually a contractor or subcontractor, responds with a form purchase order that includes its own standard terms, which differ from the seller’s terms. The seller then responds by shipping the goods, often with an invoice or confirmation that restates the seller’s terms. The parties’ respective forms align on certain terms like price and quantity, but other terms differ. Neither party ever signs the other party’s form. The parties nevertheless conduct business with each other as if they are in agreement — the seller sells, and the buyer buys. Later, a dispute arises, which turns on the following question: What are the terms of the contract? In other words, whose form wins the battle?
In the case of the sale of goods, the answer to this Battle of the Forms scenario is supposed to be found by applying Section 2-207 of the Uniform Commercial Code. That section, which has been enacted in some form in all 50 U.S. states, provides as follows:
§ 2-207. Additional Terms in Acceptance or Confirmation.
A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.
The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:
the offer expressly limits acceptance to the terms of the offer;
they materially alter it; or
notification of objection to tem has already been given or is given within a reasonable time after notice of them is received.
Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act.
As demonstrated by the Sixth Circuit opinion last week in BorgWarner v. Parker Hannifin, applying this analysis and arriving at an answer is not so simple. In that case, the Sixth Circuit was presented with a typical Battle of the Forms fact pattern where neither side ever expressly agreed to the other side’s terms. This included a price escalation clause in the seller’s quote, which became the focus of the dispute. After 18 pages of analysis, a majority of the three-judge panel concluded that a contract existed and that the terms are the parties’ writings, where they agree, plus any default terms supplied by Ohio’s version of the UCC. The Sixth Circuit did not rule what those terms were but remanded the case back to the trial court with perhaps as many questions as answers. On remand, the trial court will be faced with deciding the ultimate question: who wins the battle of the forms?
A copy of the court’s opinion is here.
Trump Administration Will Replace the Biden Administration’s Department of Labor Rule Permitting ESG Investing
Under the Biden Administration, the Department of Labor (“DOL”) had issued a rule that permitted ESG factors to be considered when making investments on behalf of 401(k) plans. (This rule had replaced an earlier one from the first Trump Administration that had expressly forbidden that practice.) Despite lawsuits questioning the validity of the rule, and the demise of the Chevron doctrine (that afforded greater judicial deference to agency decision), the Biden Administration’s DOL rule had nonetheless survived these legal challenges. (In part, this may be due to the fact that the conservative federal court judge in Texas presiding over the case had determined that the rule–enabling ESG factors to be considered as a “tiebreaker”–would have little practical impact.) However, the demise of this Biden Administration policy, despite the successful defense of this initiative in the courts, is now certain. On May 28, 2025, lawyers from the Trump Administration’s Department of Justice officially reported to the Fifth Circuit Court of Appeals (the court currently exercising jurisdiction over the legal challenge) that the “Department [of Labor] has reported that it will engage in a new rulemaking on the subject of the challenged rule”–in other words, the Biden Administration DOL rule will soon be replaced by a new rule that will likely prohibit the consideration of ESG factors when investing 401(k) plans.
This development is not especially surprising, and reflects the regulatory reversal between Republican and Democratic administrations. Nevertheless, it is still significant, as it demonstrates the continuing salience of ESG and its financial implications on the policy disputes between the political parties in the United States.
The Trump administration will replace a controversial Biden-era rule permitting companies that sponsor workplace 401(k)s to consider eco-friendly factors when picking and choosing investments on behalf of workers and retirees. Lawyers for the government filed a status report Wednesday telling the US Court of Appeals for the Fifth Circuit it will engage in rulemaking set to appear on the US Labor Department’s spring regulatory agenda. A notice-and-comment rulemaking process would be required to rescind the rule altogether. The Biden rule’s demise marks an escalation in Republican efforts to root out environmental, social, and corporate governance investing from the federal as well as state and local governments. The rule served as a proxy for conservative ire against “woke” Wall Street activity under Biden, who had to exercise his veto power in 2023 against a bipartisan attempt to axe the rule ….
news.bloomberglaw.com/…
Will There Be Light? FinCEN’s New Reporting Rule Faces Legal Challenge
The U.S. real estate market has long been a cornerstone of the American dream—a path to stability, investment, and generational wealth. But at the margins, that same market has also provided an opportunity for illicit actors who exploit all-cash deals to quietly launder dirty money into legitimate assets. Recognizing this vulnerability, in August 2024, the Financial Crimes Enforcement Network (FinCEN) introduced a new rule aimed at shedding light on all-cash real estate transactions and closing a loophole in the fight against money laundering.
FinCEN’s Residential Real Estate Rule (the RRE Rule) requires certain industry professionals to report information to FinCEN about non-financed transfers of residential real estate to a legal entity or trust. Title companies and settlement agents are now on the frontlines of the federal government’s fight against real estate money laundering. The industry has argued that the rule will impose an undue burden on businesses and that its costs outweigh its benefits. On May 21, one of the industry’s biggest players—Fidelity National Financial (FNF)— filed a lawsuit in the Middle District of Florida to block the rule. Fidelity National Finance, Inc. et al. v. Treasury, et al., 3:25-cv-00554 (M.D.Fla. May 20, 2025). United States District Judge Wendy Berger, a Trump appointee, will now consider whether FinCEN has exceeded its statutory authority.
It is too early to predict the outcome of the FNF suit, but the issue illustrates the tension between two Trump administration priorities. On the one hand, the administration has generally advocated for a deregulatory, pro-industry agenda. On the other hand, the administration remains focused on anti-money laundering and financial crime, particularly as it relates to foreign adversaries and drug cartels who are most likely to exploit the residential real estate market to launder illicit gains. Affected businesses should be preparing to comply with the RRE Rule scheduled to take effect in December to ensure they are not caught off guard should legal challenges fail.
How Did We Get Here? (The Abridged Version)
The RRE Rule is the latest development in a 55-year evolution of anti-money laundering (AML) laws and regulations in the United States. In 1970, Congress passed the Bank Secrecy Act (BSA), which provided the Treasury Department with broad authority to require financial institutions to keep records and file reports to help detect and prevent money laundering. The BSA sat dormant for 15 years until First National Bank of Boston pleaded guilty to willfully failing to comply with the BSA by not reporting more than $1 billion in reportable cash transactions in 1985.
In 1986, Congress passed the Money Laundering Control Act, which established money laundering as a financial crime and established the notion of a BSA/AML “program” by directing banks to maintain policies and procedures to monitor BSA compliance. FinCEN was created in 1990, shortly after which Congress passed the Annunzio-Wylie Anti-Money Laundering Act of 1992, which required banks to file Suspicious Activity Reports (SARs).
The terrorist attacks of September 11, 2001, prompted Congress to enact the USA PATRIOT Act, which dramatically expanded the scope and rigor of U.S. AML laws. Specifically, Title III of the Act, the International Money Laundering Abatement and Financial Anti-Terrorism Act, criminalized terrorism financing, strengthened customer identification procedures (CIP), prohibited financial institutions from dealing with foreign shell banks, and required enhanced due diligence for certain accounts. The most significant overhaul of the U.S. AML regime since the PATRIOT Act came with the Anti-Money Laundering Act of 2020 (AMLA 2020). AMLA 2020’s central theme was security through transparency. It introduced the Corporate Transparency Act (CTA), requiring corporations, limited liability companies, and similar entities to report beneficial ownership information to FinCEN. While the CTA’s implementation has been subject to delays and litigation, its intent is clear: to pierce the veil of anonymity that shields illicit actors in the financial system.
The statutory history is important context, but the RRE Rule’s true origin rests in the history of FinCEN’s geographic targeting orders (GTO). GTOs are temporary orders that impose additional reporting requirements on financial institutions. They usually last 180 days and are subject to renewal. FinCEN issued its first GTO in 1996, subjecting money remitter agents in New York City to report remittances of cash to Colombia of $750 or more. This was a significant expansion of BSA enforcement to the non-bank financial sector and set a precedent for real estate GTOs.
In January 2016, FinCEN began using GTOs to target all-cash luxury real estate purchases in New York and Miami. The GTO followed a multi-series expose by the New York Times entitled the “Towers of Secrecy,” which documented how criminals, kleptocrats, and corrupt officials were buying millions in U.S. real estate anonymously. FinCEN has repeatedly renewed and expanded real estate GTOs to include certain counties and major metropolitan areas across 14 states and a purchase price threshold of $300,000. FinCEN most recently renewed the GTO on April 14, 2025, effective through October 9, 2025.
The RRE Rule at a Glance
The RRE Rule seeks to increase transparency in all-cash real estate transactions by requiring certain professionals to report certain information, including the identities of beneficial owners behind purchases, in the hopes of preventing money laundering through anonymous property deals.
The RRE Rule applies to all non-financed (i.e., all-cash) transfers of residential real property to legal entities (e.g., LLCs, corporations) or trusts, subject to certain exceptions. The rule requires that the “reporting person” (typically the settlement or closing agent, but determined by a cascading hierarchy) file a “Real Estate Report” with FinCEN, disclosing, among other information, (1) the identities and details of the transferor and transferee, (2) beneficial ownership information for the transferee, (3) information on individuals signing on behalf of the transferee, (4) property details, and (5) transaction details, such as the purchase price, payment method, and account information.
The rule carves out several categories of low-risk or routine transactions, including: (1) grants, transfers, or revocations of easements, (2) transfers resulting from death or divorce, and (3) transfers to bankruptcy estates. The default reporting person in the cascading hierarchy may shift the responsibility to another (e.g., the deed filer), subject to a designation agreement. In effect, parties can contract to shift the filing requirements. Notably, FinCEN has not yet published the Real Estate Report to be filed.
Reporting persons may reasonably rely on information provided by others, absent knowledge of facts that would call its reliability into question. For beneficial ownership, a written certification from the transferee or its representative is required. Reporting persons must retain copies of beneficial ownership certifications and designation agreements for five years. Reports must be filed electronically with FinCEN by the later of the last day of the month following the closing date or 30 days after the closing date. Penalties for noncompliance include civil and criminal sanctions under the BSA.
FNF’s Legal Challenge to the RRE Rule
In its suit, FNF contends the RRE Rule should be vacated pursuant to the Administrative Procedure Act because it exceeds FinCEN’s statutory authority under the BSA, which limits reporting obligations to “suspicious transactions relevant to a possible violation of law or regulation.” FNF argues that the rule’s blanket requirement for reporting all non-financed transfers to legal entities and trusts, without specific indicia of suspicious activity, violates this statutory limitation. Plaintiff notes that FinCEN has never claimed that all, or even most, of the estimated 850,000 transactions that will be reported annually are likely connected with illegal activity, and that the rule will result in millions of lawful transactions being “swept into FinCEN’s dragnet.”
While plaintiff’s anchor argument focuses on FinCEN’s lack of statutory authority, they also raise constitutional concerns, including that: (1) the rule violates the Fourth Amendment’s prohibition of unreasonable searches by mandating the collection of private information without articulable suspicion or connection to illegal activity; (2) the rule infringes on the First Amendment’s prohibition on compelled speech by requiring the disclosure of extensive personal and financial information for all covered transactions, regardless of any criminal nexus; and (3) Congress did not delegate authority to the Treasury Department to regulate such transactions under the Commerce Clause or other Article I powers.
Of course, FNF leans heavily on arguments connected to the industry’s financial and compliance burden. Using FinCEN’s own compliance cost estimates of between $428.4 million and $690.4 million in the first year, FNF argues the rule is arbitrary and capricious due to FinCEN’s failure to conduct a proper cost-benefit analysis. Plaintiff argues that in the face of staggering costs, FinCEN has made no serious effort to estimate the economic benefits or estimate the anticipated reduction in illicit activity.
What Industry Professionals Must Do to Prepare
The evolution of FinCEN’s regulation of residential real estate transactions—from the BSA through the GTOs and now to a comprehensive nationwide reporting rule—reflects a growing recognition of the sector’s vulnerability to money laundering and the need for greater transparency. The new rule represents a paradigm shift for real estate professionals, who must now play a central role in the fight against illicit finance.
With the new rule set to take effect on December 1, 2025, industry professionals—including settlement agents, title insurers, attorneys, and others involved in real estate closings—must prepare for significant changes in compliance obligations. Waiting and hoping Judge Berger strikes down the rule is not the prudent course of action. So, what can companies and professionals do to prepare?
Assess Applicability and Identify Covered Transactions. Businesses need to determine if they are involved in non-financed transactions of residential real estate to entities or trusts and familiarize themselves with the exceptions to avoid unnecessary reporting.
Establish Internal Policies and Procedures. Organizations should assign responsibility for compliance and document processes for identifying reportable transactions, collecting required information, and filing reports.
Securely Collect and Verify Information. Businesses need to develop protocols for obtaining and retaining beneficial ownership information, including ensuring secure IT systems are in place to retain and transmit the required transaction, payment, and personal information.
Leverage Designation Agreements. Where appropriate, organizations should use written designation agreements to assign and clarify reporting duties, particularly in complex transactions.
Prepare for Regulatory Scrutiny. Businesses need maintain thorough records of compliance activities, including training and internal audits, as well as maintaining copies of all designation agreements and beneficial ownership certifications for at least five years. Noncompliance with the RRE Rule can result in significant civil and criminal penalties.
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With Student Athletes’ Individual “Brands” Becoming a Commodity, Here’s What Universities Should Consider
In 2021, the NCAA upended its decades-long prohibition on student athletes’ ability to profit from their name, image and likeness (NIL). This means that student athletes now have, and will continue to market themselves as, a “brand,” i.e., an identity or personality that has intrinsic value, in part due to their association with school athletics. The landmark $2.8 billion proposed settlement in House vs. NCAA, currently pending approval in the US District Court for the Northern District of California, will establish guidelines for this revenue-sharing, including for NIL revenues, among schools and student athletes, further allowing students to profit off of their individual contributions to their team.
While many colleges and universities whose student athletes were marketing their NIL prior to the House settlement chose not to involve themselves in those arrangements, some institutions are now taking a second look. Because schools who choose to pay their student athletes will necessarily be involved in the monetization of an athlete’s NIL, it is increasingly important for them to understand the mechanics of NIL agreements and concerns that might arise as a result of a student athlete actively marketing themselves and partnering with commercial entities. Schools can then decide whether and how they will support student athletes in their relationships with outside entities participating in the athlete’s promotion of their “brand”—which in most cases necessarily involves their status as a member of a college team.
For example, colleges and universities might consider imposing restrictions on the types of products an athlete should promote and guidance (or advice) related to contract terms. Schools have an interest in restricting their student athletes from promoting products that may be harmful to their student body, such as alcohol, tobacco or gambling platforms. Schools might also encourage student athletes to bargain for autonomy that would allow them to reduce involvement or cancel partnerships, to protect both the student’s brand and the student’s academic and athletic priorities. Direct guidance on contract formation, or referrals to outside advisors, are two avenues by which schools can assist student athletes, and schools should weigh the costs and benefits of each approach.
Schools should also consider whether they want to restrict the use of their own branding in the athlete’s promotional endeavors media. Developing formal guidelines or approval processes that must be followed before a student athlete can create paid content in official school uniforms or using school logos is an approach that can help the schools create distance from undesirable third parties, avoid claims of discrimination or favoritism among student athletes and protect their own image and intellectual property.
Finally, student athletes are rapidly gaining popularity as social media influencers, and schools can provide support and guidance specific to this arena. A recent article from the New York Times illustrates this approach, highlighting the University of North Carolina’s partnership with social media management firm Article 41, which works to partner students with brands like Athleta and Uber for paid advertising opportunities. The article cites to a 2023 survey from the Keller Advisory Group, finding that there are 27 million paid social media influencers in the United States, with 44 percent of them doing it full time. With student athletes becoming entrenched in the world of paid content creation, adding to their already full plates of sports competition and schoolwork, colleges may be able to head off issues and encourage brand relationships that are holistically more beneficial to student athletes by providing support and guidance informing athlete-brand relationships.
More broadly, athletes and their schools alike would benefit from having a system in place to address social media blowback. Many student athletes are still teenagers, making them especially susceptible to harsh online criticism that is inevitable in the digital age. Having the tools to support student athletes manage such criticism would benefit universities and students alike by providing athletes with mental health resources and protecting the reputations of all involved.
Another consideration is whether colleges and universities should provide course credit to student athletes for their time developing and marketing their “brands.” Per the New York Times article, some athletes view their experience building a social media following as “akin to an internship.” With all the time student athletes already dedicate to sports and schoolwork, they may benefit from receiving some form of elective course credit for their time spent developing their personal “brands.” Structuring personal marketing as an educational experience has the added benefit of giving the school more influence as to how athletes approach and consider monetizing their NIL. Alternatively, schools could consider whether they should limit their athletes’ involvement in paid content creation to ensure they can continue to thrive in their sport and their studies.
As the landscape of NIL continues to evolve, colleges and universities—especially those who opt in to athlete compensation—should continue to strategize how to best support their students and comply with all applicable laws and regulations.
Fourth Circuit Expands FCRA Liability: Legal Inaccuracies Now Actionable
On March 14, the U.S. Court of Appeals for the Fourth Circuit vacated the dismissal of a lawsuit alleging a failure to reasonably investigate a disputed debt.
The lawsuit concerned a consumer who disputed a debt that she claimed was fabricated by her housing provider in retaliation for asserting her rights under her lease. After she refused to pay an invoice for alleged damages, the housing provider assigned the debt to a collection agency. The debt collector then reported the disputed amount to credit reporting agencies, prompting the consumer to file a dispute. Upon receiving notice of the dispute, the credit reporting agencies requested that the debt collector conduct a reasonable investigation, as required under Section 1681s-2(b)(1) of the Fair Credit Reporting Act (“FCRA”). Instead of performing the required investigation, the debt collector relied solely on the creditor’s recertification of the debt.
The consumer filed suit. The district court dismissed the case, reasoning that the consumer’s challenge involved a legal dispute and therefore did not require further investigation under FCRA. The Fourth Circuit reversed, holding that inaccuracies — whether legal, factual or a mix of both — are actionable under Section 1681s-2(b) if the plaintiff pleads an objectively and readily verifiable inaccuracy.
The court clarified that disputes involving complex fact-gathering or in-depth legal analysis such as those courts would typically perform are not “objectively and readily verifiable,” nor are disputes involving unsettled questions of law or credibility determinations, which therefore fall outside the scope of actionable inaccuracies under the FCRA. However, the court also emphasized that a “reasonable investigation” may require more than just confirming basic details like the debt amount or the debtor’s name.
With this decision, the Fourth Circuit joins the Second and Eleventh Circuits in rejecting a bright-line rule that excludes legal inaccuracies. This approach contrasts with rulings from the First and Tenth Circuits, which maintain that only factual inaccuracies are actionable under FCRA.
Putting It Into Practice: The ruling clarifies what constitutes an “actionable inaccuracy” under the FCRA. Specifically, the ruling expands potential liability for furnishers under the FCRA by expanding the subset of factual inaccuracies that are actionable. The Fourth Circuit’s decision aligns with a broader trend of heightened scrutiny and reforms to the FCRA over the past year (previously discussed here). Furnishers and credit reporting agencies should prepare to evaluate a broader range of consumer disputes and stay tuned for further FCRA-related regulatory developments, which will likely include an appeal to the Supreme Court at some point to resolve the conflict among the Circuit Courts.
Supreme Court Restores Agency Deference In NEPA Reviews
On May 29, 2025, the United States Supreme Court issued an 8-0 opinion in Seven County Infrastructure Coalition, et al. v. Eagle County, Colorado, et al. that affirmed agency deference in review of environmental documents prepared under the National Environmental Policy Act (NEPA).[1] This important decision will bring much-needed certainty for project developers and financing agencies that should reduce permitting obstacles resulting in greater time and cost savings to developers.
In approving an 88-mile railroad line in northeastern Utah, the Surface Transportation Board prepared a comprehensive Environmental Impact Statement (EIS) consisting of more than 3,600 pages and analyzing impacts to local wetlands, land use, and recreation. The EIS declined to analyze the potential effects of upstream oil and gas drilling or downstream oil refining as outside the Surface Transportation Board’s jurisdiction. On appeal, the D.C. Circuit vacated the approval of the railroad line, finding that the Surface Transportation Board failed to take the requisite “hard look” at all of the environmental impacts of the railway line as it impermissibly limited its analysis of upstream and downstream projects.[2]
The Supreme Court reversed the judgment of the D.C. Circuit and held that the Surface Transportation Board appropriately reviewed the environmental effects of the proposed railroad line under NEPA. The Court affirmed a number of important aspects of judicial review under NEPA:
NEPA is a procedural statute and simply prescribes the necessary process for an agency’s environmental review of a project;
Under NEPA, an agency’s only obligation is to prepare an adequate report and NEPA imposes no substantive constraints on the agency’s ultimate decision to approve a project;
A court’s review must be at its “most deferential” when reviewing the sufficiency of an agency’s analysis of project alternatives and environmental impacts; and
Agencies retain discretion to determine where to draw the line with respect to indirect impacts.
In recent years, courts have “strayed and not applied NEPA with the level of deference demanded by the statutory text” and have “engaged in overly intrusive (and unpredictable) review in NEPA cases.”[3] The Court correctly notes that these court decisions “have slowed down or blocked many projects and, in turn, caused litigation-averse agencies to take ever more time and to prepare ever longer EISs for future projects.”[4]
Energy infrastructure project developers have long faced substantial uncertainty with respect to court review of agency NEPA actions. Project costs have skyrocketed as opponents have weaponized NEPA to block the development of essential energy infrastructure. Today’s Supreme Court decision is a welcome and overdue affirmation of agency discretion.
Footnotes
[1] Seven Cty. Infrastructure Coalition, et al. v. Eagle Cty., Co., et al., No. 23-975 (May 29, 2025).
[2] Eagle Cty. v. Surface Transp. Bd., 82 F.4th 1152, 1196 (2023).
[3] Opinion at 12.
[4] Id.
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DOJ and CFPB Terminate $9 Million Redlining Consent Order with Southern Regional Bank
On May 21, the U.S. District Court for the Western District of Tennessee granted a joint motion by the CFPB and DOJ to terminate a 2021 redlining settlement with a regional bank, vacating the consent order and dismissing the case with prejudice. The original lawsuit, filed in October 2021, alleged violations of the Fair Housing Act (FHA) Equal Credit Opportunity Act (ECOA) and Consumer Financial Protection Act (CFPA).
The complaint accused the bank of engaging in unlawful redlining from 2014 to 2018 by failing to serve the credit needs of majority-Black and Hispanic neighborhoods in the Memphis Metropolitan Statistical Area.
Specifically, the complaint alleged that the bank:
Located nearly all mortgage officers in white neighborhoods. The bank assigned no mortgage loan officers to branches in majority-Black and Hispanic census tracts.
Failed to advertise or conduct outreach in minority neighborhoods. Marketing was concentrated in commercial media outlets and business-focused publications distributed in majority-white areas.
Lacked internal fair lending oversight. The bank allegedly did not conduct a comprehensive internal fair lending assessment until 2018.
Significantly underperformed peer lenders. Only 10% of mortgage applications and 8.3% of originations came from majority-Black and Hispanic neighborhoods—less than half the peer average.
Under the consent order, the bank agreed to pay a $5 million civil penalty, invest $3.85 million in a loan subsidiary fund, open a mortgage loan production office in a minority neighborhood, and spend an additional $600,000 on community development and outreach. The consent order was scheduled to last five years, but was terminated early after the agencies found that the bank had disbursed all required relief and was in “substantial compliance” with the orders terms.
Putting It Into Practice: By ending the redlining settlement early, the CFPB continues to back away from redlining enforcement actions launched under the prior administration (previously discussed here). While institutions should remain focused on fair lending compliance, these moves suggest federal scrutiny of redlining—particularly cases built on statistical evidence or marketing practices—may be easing.
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CFPB Seeks to Vacate Open Banking Rule
On May 23, the CFPB notified a Kentucky federal court that it now considers its own 2023 open banking rule “unlawful” and plans to set the rule aside. The Bureau announced its intent to seek summary judgement against the rule, which was issued under Section 1033 of the Dodd-Frank Act to promote consumer-authorized data sharing with third parties.
The original rule (previously discussed here), issued in October 2023 under former Director Rohit Chopra, was designed to implement Section 1033’s mandate by requiring financial institutions to provide consumers and authorized third parties with access to their transaction data in a secure and standardized format. The rule aimed to promote competition and consumer control over financial information by enabling the use of fintech apps and digital tools to manage personal finances.
The lawsuit, filed in the U.S. District Court for the Eastern District of Kentucky, challenged the rule on several grounds, including claims that the CFPB exceeded its statutory authority and imposed obligations not contemplated by Congress. Key points raised in the challenge include:
Alleged lack of CFPB authority. Plaintiffs argue the Bureau overstepped by mandating free, comprehensive data access and imposing new compliance burdens without clear congressional authorization.
Interference with industry-led initiatives. The plaintiffs asserted that the rule would disrupt private-sector open banking frameworks already set in place, which they claim serve hundreds of million of Americans.
Concerns about data security and consumer harm. The rule’s opponents caution that mandating third-party data access could increase risks of misuse or breaches.
Putting It Into Practice: While the litigation had previously been paused to give the agency time to evaluate the regulation, the Bureau’s latest filing confirms that Acting Director Russel Vought no longer supports the rule and now views it as unlawful. This move effectively puts the rule’s validity in the hands of the court, even as compliance deadlines—set to begin April 1, 2026—technically remain in place unless the rule is vacated. Given the rule’s prior bipartisan support and its importance to fintech stakeholders, market participants should continue monitoring this litigation closely for further developments.
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Maryland Enacts Earned Wage Access Law
On May 28, Maryland Governor Wes Moore signed House Bill 1294 into law, establishing a comprehensive regulatory framework for Earned Wage Access (EWA) providers operating in the state. Effective October 1, the new law provides for licensing of both employer-integrated and consumer-directed EWA providers under the Maryland Consumer Loan Law, while also introducing a host of new consumer protection requirements.
The law is a response to prior regulatory guidance that restricted EWA services in the state and prompted many providers to exit the market. Like previous bills passed by other states, the bill codifies permissible EWA practices by formally defining employer-integrated and consumer-directed models (previously discussed here), clarifying that these services are not loans if providers do not charge interest and comply with specific statutory conditions. It also creates a special licensing framework that enables complaint providers to legally reenter the Maryland market while adhering to detailed operational requirements designed to protect consumers.
To address compliance and consumer protection concerns, the law includes the following key provisions:
Mandatory licensing of EWA providers. All EWA providers must be licensed under Maryland’s Consumer Loan Law unless exempt, and are subject to oversight by the Office of Financial Regulation (the “OFR”). In addition, there is annual reporting to the OFR.
Non-recourse obligations. EWA transactions are non-recourse and a user can cancel their EWA transaction at any time.
Coverage of both EWA models. The law applies to both “employer-integrated” and “consumer-directed” EWA models. Employer-integrated models involve arrangements where the provider contracts directly with the employer and receives payroll data from the employer or its processor. Consumer-directed models rely on employment and income data provided by the worker without any employer relationship.
No-cost option requirement. Providers must offer at least one “reasonable” no-cost method for consumers to access their earned wages, regardless of whether fee-based options are available.
Fee limitations for expedited delivery. Fees for expedited delivery are capped at $5 for transfers of $75 or less and $7.50 for amounts above $75.
Tip regulation. Providers that solicit tips must treat them as voluntary, set default amounts to zero, ensure they do not influence access or terms, and refund any portion that would result in impermissible interest charges.
Prohibition on traditional lending practices. Providers are prohibited from charging interest or late fees, conditioning service on tipping, using or furnishing credit reports, or enforcing repayment through litigation, collections, or debt sales.
Disclosures and consumer rights. Providers must disclose all fees and changes clearly, explain how to select the no-cost option, allow users to cancel without penalty, and reimburse overdraft fees caused by failed repayment attempts, unless due to fraud.
Putting It Into Practice: Maryland becomes the latest state to adopt EWA-specific regulations (previously discussed here, here, here, and here). Maryland’s framework affirms that EWA products are not loans when structured in compliance with statutory safeguards. As more states implement similar statutes, EWA providers should continue to monitor evolving regulatory trends and adapt their compliance practices accordingly.
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Chapter 93A and the Limits of Consumer Protection: Lessons from Wells Fargo Bank, N.A. v. Coulsey
In a long-running Massachusetts foreclosure case, Wells Fargo Bank, N.A. v. Coulsey, the Massachusetts Appeals Court weighed in on the applicability and limits of Chapter 93A. The decision provides guidance as to how—and when—Chapter 93A claims may be brought, and when repeated litigation crosses the line into claim preclusion.
The dispute began in 2007 when the plaintiff purchased a home with a loan and mortgage she would soon default on. Over the next 17 years, the plaintiff engaged in a prolonged legal battle with multiple mortgage holders, ultimately culminating in an eviction. The plaintiff repeatedly but unsuccessfully invoked Chapter 93A in an attempt to block foreclosure and eviction. The plaintiff’s claims were first dismissed without prejudice in federal court and her later attempts to revive or amend the 93A claims were rejected. They were again dismissed in a state court in a collateral action.
The Appeals Court affirmed the state-court dismissal and issued a clear rebuke to repeatedly raising Chapter 93A claims based on the same factual nucleus. The Appeals Court emphasized the following:
Prior Opportunity. The plaintiff was allowed in 2016 to amend her complaint to better articulate 93A violations. That was the moment to raise all related theories. The court found that “any new basis or theory supporting her c. 93A claim could have been brought at that time.”
Ongoing Harm v. Ongoing Claim. Plaintiff argued that her 93A claim should be revived because defendant’s alleged misconduct was “ongoing.” The court rejected that logic, stating: “[Plaintiff’s] assertion that c. 93A violations are ongoing and therefore could not have been advanced in prior litigation is contrary to the purpose of res judicata…” In short, the passage of time or continued impact did not give the plaintiff the right to relitigate previously dismissed claims.
Chapter 93A Not Exempt from Res Judicata. Importantly, the court reiterated that Chapter 93A claims—like any civil claim—are subject to rules of finality. If a claim is dismissed with prejudice or could have been litigated earlier, it cannot be brought again just by rebranding it or restating the facts.
Implications for Companies
A litigant does not get endless chances to reframe Chapter 93A claims. If the allegations asserted are vague or conclusory, challenging them in a motion to dismiss is appropriate even under the broad reach of Chapter 93A. The decision underscores that consumer rights are balanced against the need for closure. Once courts have ruled on a matter, even the broad protections of Chapter 93A will not open the door to re-litigating the same claims under a new heading.