The Hill: Senate votes to repeal OCC 'true lender' rule

Here. The House is expected to follow suit, and the White House has indicated that the president would sign the repeal resolution.

Simkovic and Furth article proposes taxing contracts based on how much consumer attention they require to read and understand

Michael Simkovic of USC and Meirav Furth of UCLA have written Proportional Contracts, 107 Iowa Law Review, (2021).

Here's the abstract:

Contract law treats consumer attention as if it were unlimited. We instead view consumer attention as a scarce resource that must be conserved. We argue that consumer contracts generate negative externalities by overwhelming consumers with information that depletes their attention and prevents competition on contract terms. We propose a novel solution to this market failure: To force sellers to internalize the attention externalities that their contracts generate. This will be accomplished through a Pigouvian tax on the presentation of a consumer contract, proportionate to the attention costs that reading and comprehending the contract would impose on consumers.

Cox & Peterson Article: Public Compensation for Public Enforcement

Prentiss Cox of Minnesota and Christopher Lewis Peterson of Utah have written Public Compensation for Public Enforcement, 39 Yale Journal on Regulation (2022). Here's the abstract:

Public enforcement actions frequently result in the distribution of money to people affected by violation of market protection laws. This “public compensation” returns billions of dollars to consumers, investors, and others each year. The law of public compensation appears confusing at first impression because of inconsistent use of nomenclature and conceptual confusion, but courts have developed a discernible set of principles that allow for presumptions and loosened proof standards in awarding this relief. This doctrine held for decades despite repeated challenges by business defendants. The Supreme Court’s decision in Liu v. SEC in June 2020, followed by its grant of certiorari in July 2020 to review enforcement actions brought by the Federal Trade Commission, have unsettled the law.

This paper offers two contributions to the development of the law of public compensation. First, we analyze decades of judicial decisions across federal and state public enforcement agencies and identify consensus legal principles for awarding two different forms of public compensation—disgorgement and public restitution. We extend the less developed doctrine of public restitution by suggesting a proportionality test to provide guidance for more difficult cases. Second, we propose legislation to create uniform statutory authority for public enforcers that would reverse restrictions that have been or may be imposed on public compensation by recent and pending Supreme Court decisions. The doctrine and the proposed legislation are grounded in the unique position and authority of public enforcers, including discretion to select between civil penalties and public compensation as monetary remedies, and the deterrence rationale of public enforcement. An appendix includes the model legislation Congress could adopt to clarify and restore enforcement agencies’ public compensation authority.

Guest Post: Courts will Require Airlines to Provide Refunds Instead of Vouchers For Covid Related Cancellations, if the Contract Permits Such an Interpretation

By Dash Radosti

As consumer-related COVID-19 litigation continues, the courts are sending airlines an important reminder: vouchers are not the same as refunds. However, there is a catch – courts are limiting this holding to the plain text of the contract between flyers and carriers. 

Two recent federal cases reiterated this principle: Ide v. British Airways PLC, No. 1:2020cv03542 - Document 53 (SDNY 2021) (J. Furman) and Bombin v. Southwest Airlines, Civil No. 5:20-cv-01883-JMG, (EDPA 2021) (J. Gallagher). While the facts of these cases vary, the complaints’ gravamen are the same – customers whose flights were canceled due to COVID-19 wanted full cash refunds instead of vouchers.

Ide is especially notable for Judge Jesse Furman’s strong treatment against issuing vouchers instead of refunds. Quoting cases from the 7th Circuit Court of Appeals, the court explains that “compensation in kind is worth less than cash of the same nominal value.” Judge Furman then quickly dispensed with British Airways’ position that the flyers suffered no damage because they received a voucher instead of a cash refund. 

The Ide court relied on the language within the four corners of British Airways’ ticket contract to reach its result, primarily because only breach of contract, with narrow exceptions, survives preemption under the Airline Deregulation Act (ADA) when a consumer sues an air carrier. In Ide, British Airways stated that a flyer would get either a refund or a rescheduling at their convenience if the airline canceled the flight. Although the defendant tried to argue a voucher was the equivalent of rescheduling, the court rejected the argument. The contract said nothing about vouchers, and, in any event, vouchers had many more terms and conditions than a rescheduling at a flyer’s convenience. 

Bombin similarly interpreted a Contract of Carriage (COC)—this time, it was Southwest’s--in favor of the consumer. Southwest’s COC stated, “Carrier will either transport the Passenger at no additional charge . . . refund the fare . . . or provide a credit.” The court explained that this clause made it seem as if the airline had discretion to select among those remedies. However, the court then interpreted specific language in the customer service agreement within the COC that made it seem as if the consumer had the right to make the choice. The court interpreted this as ambiguity and denied a motion to dismiss.

McDonald & Rojc Survey Auto Financing Legal Developments

Kevin M. McDonald of VW Credit, Inc. and Washington University School of Law and Kenneth Rojc of Nisen & Elliott, LLC have written Auto Finance Regulators Not Falling Asleep at the Wheel., 76 BUS. LAW. 705 (2021). Here is the abstract:

This is the annual survey of major legal and regulatory developments affecting the automobile financing. The survey is part of the larger annual survey of legal developments by the American Bar Association's Committee on Consumer Financial Services. This year’s auto finance survey reports on a large multistate settlement with a lender over its unfair and deceptive practices in financing automobile retail installment contracts and an FTC enforcement action against an auto dealership for racial discrimination. A multistate attorney general coalition dealt with alleged predatory practices involving the return of leased vehicles during the COVID-19 pandemic, among other state law developments.

CFPB Holds Online Research Conference Thursday and Friday

Looks like the conference will include a lot of interesting papers. The agenda is here. More information, including how to register, here.

Former CFPD-director Cordray going to the Department of Education

The U.S. Department of Education announced today that Richard Cordray will be its Chief Operating Officer of Federal Student Aid. Cordray is the former Director of the Consumer Financial Protection Bureau and the former Attorney General of Ohio. Federal Student Aid is responsible for managing the student financial assistance programs authorized under Title IV of the Higher Education Act of 1965, including grants, work-study and loans for students attending college or career school.

The Department's press release is here.

CFP: Global Forum for Financial Consumers

We received the following call for papers:

The 2021 Global Forum for Financial Consumers (GFFC)

Organized by International Academy of Financial Consumers (IAFICO)

Call for Papers (1^st)
 
August 6^th ~ 7^th, 2021
Format: Online & onsite webinar
Onsite venue: Seoul National Univ., Seoul, Korea
Theme: Financial Consumer Protection
Linking Theories & Evidences to Policy Practices

The 2021 Global Forum for Financial Consumers (GFFC), the annual conference organized by IAFICO, will be held on August 6^th~7^th in a hybrid format of online-onsite webinar. This year’s theme for the Conference will be “Financial Consumer Protection (FCP): Linking Theories and Evidences to Policy Practices,” under which the organizers would like to invite on-going research papers, both theoretical and empirical, on those behavioral patterns and policy practices that are relevant to FCP. Topics of interest will include, but not limited to, financial literacy and wellbeing, digital divide and its remedies, business ethics and other means of self-regulation, alternative legal and regulatory frameworks, conflict resolution mechanisms, and behavioral inducement (“nudge”) in both demand- and supply-side of financial markets. We hope and expect the meeting to be a valuable forum for exchanging and sharing ideas among colleagues from a diverse set of countries. 
 

Research topics of relevancy:
▪ Financial literacy and wellbeing 
▪ Digital divide and its remedies
▪ Business ethics and other self-regulations
▪ Alternative legal/regulatory frameworks 
▪  Conflict resolution mechanisms 
▪  Behavioral inducement (nudge) for FCP
▪  Sectoral (insurance∙lending∙investment) issues of relevancy
 
Important dates: 
▪ Deadline for abstract submission: May 15
▪ Notification for acceptance: May 31 
▪ Deadline for full paper submission: June 30
▪ Abstract/paper submission, through: 
IAFICO e-mail (iafico@kdis.ac.kr);
IAFICO website (https://www.iafico.org)

Contact people are: Mr. Dongwook Kim, ehddnr14@kdis.ac.kr and Mr. Jeongyun Lee, jylee0628@gmail.com

25 state attorneys general support rescinding "rent-a-bank" rule

In October 2020, the Office of the Comptroller of the Currency, one of the federal agencies that regulates banks, issued a rule that determines what national bank or federal savings association is considered the “true lender” in circumstances where a bank and a third party have a role in the loan. Many consumer advocates expressed concern that the rule would allow lenders to evade these state usury laws, which cap interest rates.

Payday loans are subject to state usury laws. Federal bank loans generally are not. Therefore, predatory lenders have sometimes tried to evade the usury laws by working with a bank: putting the bank’s name on the loan document and then “buying back” the loan. The lender then claims that it is just a “servicer” for a bank loan that is exempt from state interest rate caps.

On March 25, 2021, Senate Banking Committee Chairman Sherrod Brown and Sen. Chris Van Hollen introduced a Congressional Review Act resolution to rescind the rule. The National Consumer Law Center, which strongly supports the CRA resolution, has written that the OCC rule protects predatory lenders at the expense of consumers and “helps triple-digit interest rate loans evade state and voter-approved interest rate caps.”

Now, 25 state attorneys general have written a letter urging Congress to use the CRA resolution to rescind the OCC rule. The letter is here.

Under the CRA, Congress has until mid-May to pass the resolution, which is not subject to filibuster.

Craig Cowie article takes CFPB to task for not bringing COVID enforcement cases

Craig Cowie of Montana has written Is the CFPB Still on the Beat? The CFPB'S (Non)Response to the COVID-19 Pandemic, 82 Mont. L. Rev. 41 (2021). Here's the conclusion:

More than ten months into a historic pandemic that has wreaked economic devastation, the CFPB—the primary Federal consumer financial protection regulator that was created in response to the last economic crisis—had not taken a single public enforcement action to address the fallout from the pandemic despite thousands upon thousands of consumer complaints and its own knowledge of ongoing problems. The CFPB can—and must—change its enforcement strategy to bring cases now to protect the consumers being harmed during the pandemic. The CFPB cannot solve every problem facing consumers as a result of the pandemic. But it can help keep consumers from falling into an economic abyss while the country addresses its larger problems. By concentrating on unlawful conduct that undermines or evades laws designed to protect consumers during the pandemic, that makes it harder to keep a job, stay in a home, or recover after the pandemic recedes, or that hurts those who are already suffering more, the CFPB can signal to the marketplace that consumer protection laws will be enforced, even during a pandemic, and that the cop is still on the beat.

Are we going to see UDAAP statutes used against discrimination? The Student Borower Protection Center hopes so

The SBPC issued a report, DISCRIMINATION IS "UNFAIR": Interpreting UDA(A)P to Prohibit Discrimination. Here's the Executive Summary:

This Article explores a theory that discrimination is a type of “unfair” practice covered by federal and state laws prohibiting unfair, deceptive (and sometimes abusive) acts and practices (“UDA(A)Ps”). An “unfair” practice is defined by statute as something “(1) likely to cause substantial injury to consumers; (2) which is not reasonably avoidable; and (3) that is not outweighed by countervailing benefits to consumers or competition.” Discrimination fits neatly within this statutory language, and its incorporation as an unfair practice is consistent with the purposes and traditional guardrails around application of UDA(A)P law, as well as general principles in civil rights jurisprudence. Applying the “unfairness-discrimination” theory would fill important gaps in the existing patchwork of antidiscrimination laws, which currently leave large swaths of the economy unregulated and unprotected from a variety of discriminatory practices, including those with a disparate impact. By taking seriously the plain language of UDA(A)P law, federal entities like the CFPB and FTC, state attorneys general and agencies, and in some cases private individuals, could make great strides towards ensuring that entire markets and industries are not free to discriminate.

As for the view of CFPB nominee Rohit Chopra on using the Bureau's UDAAP statute in this way, the report notes "FTC Commissioner Rohit Chopra—recently nominated to be the next Director of the CFPB—has advocated this theory, noting that '[d]iscriminatory practices often are three for three [referring to the requirements for finding conduct unfair], causing grievous harm that cannot be avoided.'”

READ ABOUT THIS: Objecting lawyers allege that Monsanto is paying a tort plaintiff to appeal a trial-court judgment *favorable* to Monsanto! Yes, you read that right.

Some lawyers (I'll call them "objecting lawyers") say that they got wind of an effort by Monsanto to pay a tort plaintiff to appeal a claim that the plaintiff lost in federal district court. Why? According to the objecting lawyers, because Monsanto wants to keep the case alive to try to obtain a Monsanto-favorable federal-preemption ruling on appeal. The appeal, No. 21-10994, is pending in the Eleventh Circuit.

The objecting lawyers have filed these papers (including a motion, a letter brief, and a declaration), which I urge you to read in full. Here is a brief excerpt:

The issues raised in the attached letter brief and accompanying declaration address the "settlement" agreement between the Appellant and Appellee in Carson, which directly impacts the justiciability of this appeal. Indeed, as explained in the attached letter and accompanying declaration, the Carson appeal is being prosecuted in bad faith. The Appellee (Monsanto) is paying the Appellant (Carson) to appeal a decision that the Appellee already won in the District Court because the Appellee is hoping to secure favorable appellate precedent in this Court. This pay-to-appeal scheme is fundamentally improper and must be brought to the Court's attention.

I hope that the Eleventh Circuit demands, at a minimum, the public filing of the alleged settlement agreement between Monsanto and the plaintiff.

Questions: 1. Is the alleged settlement agreement ethical? Decent? Good for America?

                 2. If you were Monsanto's lawyer would you participate in a deal like the one the objecting lawyers allege occurred here?

                 3. Is the appeal, as it is now apparently presented to the Eleventh Circuit, a case or controversy? Or Is it a "feigned case" that is no longer justiciable? 

                 

Supreme Court holds that monetary relief is unavailable under Section 13(b) of the Federal Trade Commission Act

The first paragraph of the Court's unanimous opinion in AMG Capital Management v. FTC sums it up:

Section 13(b) of the Federal Trade Commission Act authorizes the Commission to obtain, “in proper cases,” a “permanent injunction” in federal court against “any person, partnership, or corporation” that it believes “is violating, or is about to violate, any provision of law” that the Commission enforces. 87 Stat. 592, 15 U. S. C. §53(b). The question presented is whether this statutory language authorizes the Commission to seek, and a court to award, equitable monetary relief such as restitution or disgorgement. We conclude that it does not.

The Court also explains (at pages 1 to 2 of the opinion) that the company in question ran a payday loan scheme involving $1.3 billion in "deceptive charges."

Want to track all insurance coverage litigation concerning Covid?

Then go to Covid Coverage Litigation Tracker, which is run by U. Penn and U. of Connecticut law schools. To read more about the establishment of the tracker, go here.

CFPB rule: Tenants can hold debt collectors accountable for illegal evictions

The Consumer Financial Protection Bureau today issued an interim final rule in support of the Centers for Disease Control and Prevention’s eviction moratorium. The CFPB’s rule requires debt collectors to provide written notice to tenants of their rights under the eviction moratorium and prohibits debt collectors from misrepresenting tenants’ eligibility for protection from eviction under the moratorium.

The CFPB stated: "The CDC has established the eviction moratorium to protect the public health and reduce the spread of the virus. Debt collectors who evict tenants who may have rights under the moratorium without providing notice of the moratorium or who misrepresent tenants’ rights under the moratorium can be prosecuted by federal agencies and state attorneys general for violations of the Fair Debt Collection Practices Act and are also subject to private lawsuits by tenants."

The interim final rule is here. A press release summarizing the rule is here.

"Why Ralph Nader wants you to know about tort law"

Cartoonist Matt Wuerker enlists consumer advocate Ralph Nader to help explain tort law in this 3-minute video from Politico.

Fiery Senate Hearing on Student Loans

Forbes has an account here. Forbes has a paywall but if you haven't read any Forbes articles this month, you should be able to read the article. There's a lot in the article worth reading, but here's a short excerpt:

Senator Warren opened the hearing by highlighting how student loan debt exacerbates the racial wealth gap, noting that, “After 20 years, the median Black borrower still owes 95% of the original amount borrowed." Dr. Dominique Baker, Assistant Professor of Education Policy at Southern Methodist University, later examined this in further detail, arguing that, “The burden of student loan debts disproportionately falls” on Black borrowers due to “centuries of structural forces shaped by the deliberate decisions of those in power. Structural racism has denied Black families the ability to build wealth to pay for college.”

 *  * *

Navient has come under withering criticism for its student loan practices. Last month, a state court in Washington concluded that the company had deceived scores of private student loan borrowers and cosigners about their ability to release the cosigner on a student loan at a later date if certain criteria were met — such as by making on-time payments for consecutive months over the course of years. In February, a federal administrative law judge ruled that Navient must repay the government over $22 million for allegedly overcharging the Department of Education for student loan subsidies. And student loan borrowers tried to force Navient into an involuntary bankruptcy last month for allegedly charging borrowers for student loans that had already been discharged; a judge ultimately dismissed that suit, which Navient had claimed was frivolous.

Meanwhile, a long-running lawsuit against Navient brought by the Consumer Financial Protection Bureau (CFPB) — an agency that Senator Warren helped establish in the wake of the 2008 financial crisis — is ongoing. * * *

Senator Warren said to Mr. Remondi during the questioning phase of the hearing that given the ongoing allegations of wrongdoing, “the federal government should fire Navient — and the federal government should fire you.” During subsequent questioning by Senator Bob Menedez (D-NJ), Mr. Remondi admitted to being “well compensated” by Navient, earning upwards of $20 million in compensation over the course of several years, despite the avalanche of allegations of misconduct by the company.

Short but Sweet Amicus Brief on E-discovery

It’s not often (or ever) that I would post an amicus brief on e-discovery, but I’m making an exception today.

Brian Morrison, a partner at Tadler Law, drafted an excellent trial court amicus on the narrow issue of e-discovery of emails that use hyperlinks (an increasing practice) instead of PDFs that are actually attached.

It’s a perfect amicus brief—seemingly written just to help the court on nuances of e-discovery. I’ve managed to avoid truly complex e-discovery issues, so the brief was an educational experience for me.

The National Association of Consumer Advocates and Public Justice were the amici. Leah Nicholls and Karla Gilbride at PJ both edited Brian’s writing, and I picked at it as well on behalf of NACA.

Jackson & Mark paper asks whether the executive branch can forgive student loan debt without congressional action

Howell E. Jackson and Colin Mark, both of Harvard, have written May the Executive Branch Forgive Student Loan Debt Without Further Congressional Action? Here's the abstract:

On April 1, 2021, the Biden Administration announced that Secretary of Education Michael Cardona will consider whether the President has legal authority to forgive up to $50,000 per debtor in student loan debt without further Congressional action. This paper collects the leading arguments for and against the position that the Biden Administration can forgive this student loan debt as an administrative action and without additional congressional authorization. The paper first surveys the history of federal student loan forgiveness programs in the United States. The paper then considers whether statutes on the books—in particular, the Higher Education Act of 1965 and the Federal Claims Collection Act of 1966—grant the executive branch the authority to effect widespread student loan forgiveness. The paper considers how the Department of Education might use administrative action to forgive loans and assesses the pros and cons of the Department proceeding without notice and comment rulemaking. Finally, the paper evaluates the Biden Administration’s prospects in court, including whether any parties would have standing to challenge administrative student loan forgiveness and which forms of administrative action are likeliest to survive judicial review.

Supreme Court Takes a Chainsaw to the TCPA

As noted in Jeff Sovern’s post last week, the Supreme Court ruled last Thursday in the case of Facebook v. Duguid that the Telephone Consumer Protection Act (TCPA) does not apply to robocalls and robotexts sent to cell phones unless they are sent from equipment that uses a random or sequential number generator. The decision has the potential to allow a vast increase in the number of automatically dialed junk and scam calls and texts to cell phones. Senator Ed Markey and Representative Anna Eshoo have already announced that they intend to introduce legislation to overturn the decision by making crystal clear that the TCPA’s robocalling ban applies to calls that are automatically dialed from databases of stored numbers, not just calls to numbers that are generated randomly or sequentially.

CFPB proposes to delay debt-collection rules

The Consumer Financial Protection Bureau today proposed extending the effective date of two debt-collection rules that were finalized in 2020 and currently go into effect in November 2021. The CFPB proposes the delay to give affected parties more time to comply due to the ongoing COVID-19 pandemic. The proposal is here.

One of the two rules that would be delayed addresses communications in connection with debt collection and prohibitions on harassment or abuse, false or misleading representations, and unfair practices in debt collection. It also addresses the use of newer communication technologies in debt collection and establishes record retention requirements.

The other rule addresses the information that debt collectors must disclose to consumers at the outset of collections communications. It also prohibits debt collectors from bringing or threatening to bring a legal action against a consumer to collect a time-barred debt and prohibits debt collectors from furnishing information about a debt to a consumer reporting agency before the debt collector takes certain actions to contact the consumer about the debt.

Supreme Court Refuses to Impose New Limits on Personal Jurisdiction over Corporations

In a string of rulings over the past decade, the U.S. Supreme Court has made it more difficult to sue corporations that operate nationwide unless suit is brought in the states where they are incorporated or have their principal places of business. But in its March 25, 2021 ruling in Ford Motor Company v. Montana Eighth Judicial District Court, the Supreme Court made clear that it will only go so far to protect corporations from being sued in a plaintiff's preferred forum state. The court held that "[w]hen a company like Ford serves a market for a product in a State and that product causes injury in the State to one of its residents, the State's courts may entertain the resulting suit."

The case was actually two cases, both involving Ford cars that were originally sold in one state, but then ended up in other states as a result of "later resales and relocations by consumers." Eventually, the cars were involved in accidents that the victims claimed were the result of design defects. The injured victims sued in the courts of the states where they lived and where the accidents occurred, but Ford claimed that those courts lack "personal jurisdiction" over it. Under the doctrine of personal jurisdiction as developed over decades by the Supreme Court, courts have "general" personal jurisdiction over a corporation if it is incorporated or has its principal place of business in the state, and "specific" personal jurisdiction if the corporation has purposefully availed itself of the privilege of doing business in the state and the lawsuit arises out of or relates to its contacts with the state.

Here, Ford had plenty of contacts with Montana and Minnesota, the states where it was sued: It heavily markets its vehicles there (including the models that were involved in the accidents that gave rise to the cases) and has taken steps to ensure that its vehicles can be serviced and maintained wherever in the United States they end up. But Ford argued that these lawsuits didn't arise out of or relate to its contacts with the forum states because the specific cars involved hadn't been designed, built, or originally sold in those states, even though Ford had sold hundreds of vehicles just like them there. And Ford seemed to have some support for its argument in recent cases that took a limited view of what it means for a case to arise out of or relate to a corporation's contacts with a state.

But the Justices would have none of it: Not a single one bought Ford's argument. The majority opinion, written by Justice Elena Kagan, insisted that Ford's arguments had "no support" in the Court's requirement that a lawsuit have a "connection" to a defendant's activities in the forum state. None of the decisions, the majority stated, even "suggested" Ford's argument that there had to be a causal connection between in-state activities and the lawsuit. Rather, according to the majority, if a corporation "serves a market for a product in the forum State and the product malfunctions there," it can expect to be sued there, and the due process concerns that underlie limitations on personal jurisdiction will be fully satisfied if it is.

One may question (as Justice Gorscuh did in a concurring opinion) Justice Kagan's view that the Court's recent opinions gave Ford no reason to suppose its arguments might prevail. But Ford's lopsided loss makes clear that it (together with the Trump Administration's Justice Department, big business interests, and the defense bar) miscalculated badly in thinking that the Court intended or expected its recent precedents to cut back personal jurisdiction as dramatically as they asked the Court to do in these cases. 

As Justice Kagan cautioned, "[t]hat does not mean anything goes." A consumer who lives in Maine and is injured there by a product made by a Delaware corporation with its headquarters in Michigan and its manufacturing facilities in Kentucky probably won't be able to sue in California. But consumers can feel pretty confident that if they are injured by a product marketed nationwide, they can probably sue over it in their home state. As Justice Alito put it in his own concurring opinion, no one can "seriously argue" that there is anything "fundamentally unfair" about that.

Eric Goldman: The Crisis of Online Contracts (as Told in 10 Memes)

Eric Goldman of Santa Clara has written (illustrated?) The Crisis of Online Contracts (as Told in 10 Memes). Here is the disappointingly memeless abstract:

This essay explains the “crisis” of online contracts, the legal fiction that consumers have assented to online contract terms when we have ample empirical evidence that they didn’t really mean to assent. The essay describes the crisis, and some possible solutions, using 10 Internet memes. The essay concludes that the crisis of online contracts may be the least-worst option among the alternatives.

H/T: ContractsProf Blog

Most Republicans would vote no on anybody to head the CFPB

by Jeff Sovern

So says an indentified financial services lobbyist, quoted in Neil Haggerty's article in The American Banker, Will Senate vote on CFPB chief come down to tiebreaker? (behind paywall but available on Lexis).  Here's the relevant excerpt: 

A financial services lobbyist added that most Republicans likely won't vote to confirm any person nominated by a Democratic president to lead the CFPB.

"Even though [Chopra's] a progressive, he demonstrated he's more than capable and more than qualified," the financial services lobbyist said. "So the reality is, [Republicans] are just going to vote 'no' on anybody. * * *

Ian Katz, a director at Capital Alpha Partners, agreed that "a lot of Republicans either don't think the CFPB is necessary or are skeptical of what it does."

But despite that, Chopra's confirmation seems likely. The article also explains:

[Senate Banking Committee ranking member Pat] Toomey acknowledged that Republicans would not be able to muster enough opposition to defeat the nomination.

"Even if no Republicans supported his confirmation - and there might well be some support, it won't be many - he'll probably be confirmed," he said at the [American Bankers Association] conference.

Some observers say it is possible that Republicans like Sens. Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah, could still support Chopra's nomination once the full Senate takes it up.

But even if no Republicans support Chopra's nomination, he should still be confirmed as long as all the Democratic senators vote to confirm and Vice President Harris breaks the tie. As for the possibility that Democratic West Virginia Senator Manchin opposes the nomination, the article reports: 

"If there were more banks headquartered in West Virginia that would have been impacted by this, I'd be concerned," [Raymond James policy analyst Ed] Mills said.

Breaking: SCOTUS rules that "a necessary feature" of an ATDS "is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called"

Here, in Facebook v. Duguid. In other words, if all the device does is call numbers that you specificaly tell it to call, it's not an ATDS within the meaning of the Telephone Consumer Protection Act.