April 6, 2026
Below you will find several key developments in the financial services industry, including related developments in information privacy and data security, from the past week. We add an "Amicus Brief(ly)1" comment to each item, where we briefly (see what we did there?) note for friends (and again?) of CounselorLibrary the important takeaways from the developments outlined in the email. Our legal reporters - CARLAW, HouseLaw, InstallmentLaw, PrivacyLaw, and BizFinLaw - provide more comprehensive, real-time updates of federal and state laws, regulations, litigation, and other industry items of interest. For a personal guided tour and free trial of any of these legal reporters, please contact Michael Willer at 614-855-0505 or mwiller@counselorlibrary.com.
On April 2, the U.S. Court of Appeals for the Tenth Circuit granted a Petition for Rehearing En Banc filed by three trade groups - the American Fintech Council, the American Financial Services Association, and the National Association of Industrial Bankers - in their case against the Colorado attorney general and the administrator of the Colorado Uniform Consumer Credit Code. In the underlying case, the trade groups alleged that the Depository Institutions Deregulation and Monetary Control Act of 1980 ("DIDMCA") opt-out bill that Colorado enacted in 2023 is invalid. Congress passed Section 521 of DIDMCA to allow state-chartered banks to lend nationwide at rates up to the higher of their home state's interest rate cap or a federal interest rate cap tied to the Federal Reserve's discount rate. By opting out, a state could impose its own interest rate cap on bank lenders, although it could only impose such a rate cap on loans "made in" the opting-out state. In 2024, a Colorado federal district court granted the trade groups' motion for a preliminary injunction that enjoined the state from "enforcing the interest rates in the Colorado [Uniform Consumer Credit Code] with respect to any loan made by the plaintiffs' members, to the extent that the loan is not 'made in' Colorado and the applicable interest rate in Section 1831d(a) exceeds the rate that would otherwise be permitted." In late 2025, the Tenth Circuit reversed the trial court's injunction. In the April 2nd Order, the Tenth Circuit vacated its reversal of the injunction, reopened the matter, asked the parties to file supplemental briefs addressing the following questions and any other issues raised in the petition within the timeline set forth by the court, and encouraged participation by amicus:
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On March 30, California Governor Gavin Newsom signed an executive order that is intended to strengthen the state's procurement processes by directing the state's Government Operations Agency to develop a plan for new contracting processes and best practices that vet companies based in part on how they attest and explain their policies and safeguards to protect the public from the following with regard to their technology:
The governor's EO will also enable the state to separate its procurement authorization process from the federal government's, if needed, and directs the state to leverage artificial intelligence to improve government service delivery, increase transparency, and strengthen accountability.
The EO also directs the California Department of Technology to create recommendations and best practices for watermarking AI-generated images or manipulated video consistent with state law.
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Washington Governor Bob Ferguson recently signed House Bill 1170, which requires covered providers to inform users when content is developed or modified by artificial intelligence. Specifically, a covered provider must, to the extent commercially and technically reasonable, include provenance data in images, video, audio, or content that is a combination thereof that has been created or materially altered by the provider's generative AI system. The provenance data must allow a user to assess whether the content was created or materially altered by the provider's AI system. A covered provider must use commercially and technically reasonable methods to make the provenance data difficult to remove or tamper with.
"Covered provider" is defined as "a person or entity that creates, codes, or otherwise produces a generative artificial intelligence system that has over 1,000,000 monthly users and is publicly accessible within the geographic boundaries of the state to consumers for personal use." "Covered provider" does not include state, local, and tribal governments. "Provenance data" is defined as "data that is embedded into digital content or that is included in the digital content's metadata for the purpose of verifying the digital content's authenticity, origin, or history of modification."
Only the attorney general can bring an action for violations of the new law. Violations constitute an unfair or deceptive act in trade or commerce under the Washington Consumer Protection Act.
The new law takes effect on February 1, 2027.
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In a recent case, a federal district court addressed whether a New York statute that prohibits charging fees for paper billing statements is unconstitutional. In this case, an individual maintained a checking account with a bank, which charged him a $3 monthly fee for paper statements. The individual sued the bank, arguing that the fee violates Sections 399-zzz and 349 of the New York General Business Law.
Section 399-zzz prohibits the charging of an additional fee when a consumer chooses to receive a paper billing statement but allows a credit or other incentive when a consumer elects a specific payment or billing option. Section 349 prohibits deceptive acts or practices. The bank moved to dismiss the complaint.
The U.S. District Court for the Eastern District of New York granted the motion. The bank asserted three reasons in support of its motion for dismissal of the complaint. First, the bank argued that Section 399-zzz is preempted by the National Bank Act. The court rejected this argument. The court relied on a 2021 federal district court case to conclude that paper statement fees do not "implicate banking concepts or principles [or] 'significantly interfere' with [the bank's] banking power 'to charge a non-interest fee for its services.'" Second, the bank argued that Section 399-zzz violates the First Amendment to the U.S. Constitution. The court agreed with this argument. The court cited the same 2021 case for the proposition that the statute regulates speech because it regulates how a merchant can communicate its fees by prohibiting a fee but allowing a credit. Having concluded that the statute regulates speech, the court considered whether the statute survives intermediate scrutiny and found that it does not because it does not directly advance a governmental interest. Because the statute prohibits paper statement fees but permits electronic statement credits, the court noted that there is "only 'a de minimis effect' on consumer choice." The court also rejected the individual's request to sever the portion of the statute addressing credits or other incentives because it would "undermine the statute's original text and legislative history." Finally, the bank argued that the individual did not plead a violation of Section 399-zzz and a separate violation of Section 349. The court agreed with this argument, again citing the 2021 case, finding no deceptive act or practice claim because Section 399-zzz unconstitutionally infringes on the bank's First Amendment rights.
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The New York legislature is considering a bill, Senate Bill 3177, that would require a provider of commercial financing, including one who makes or solicits that financing, to obtain a license from the New York Department of Financial Services. The term "making or soliciting" covers not only direct provision of funds but also marketing, brokering, and bank partnerships. The bill's definition of "commercial financing product" covers leases as well as closed- and open-end loans, sales-based financing, and factoring and would apply to a transaction with an amount financed of $500,000 or less. Licensees would be subject to recordkeeping and reporting requirements. The bill would prohibit confessions of judgment and false, misleading, and deceptive statements and representations regarding rates, terms, costs, and conditions for commercial financing products. Under the bill, any commercial financing transaction made by an unlicensed, non-exempt person would be void and unenforceable.
The California legislature is considering a bill, Assembly Bill 2116, that would require providers of commercial financing not already covered under the California Financing Law to register with the California Department of Financial Protection and Innovation. The bill would require anyone who provides or offers to provide commercial financing products to California residents to register with the DFPI beginning on January 1, 2028. The bill would apply to a transaction with an amount financed of $500,000 or less for which a disclosure is required to be provided under California's commercial financing disclosure regulations. The bill would apply only when the recipient is a small business, i.e., a business with annual revenue no greater than $16 million (with the dollar threshold subject to adjustment every two years). The bill would prohibit confessions of judgment, provisions for garnishment of recipients' money, and nondisclosure agreements regarding financing terms. It would also require a provider to display its average and maximum commercial financing APRs from the most recent calendar year on its website. Under the bill, any commercial financing transaction found to be unconscionable under California Civil Code Section 1670.5 would be a violation of the California Consumer Financial Protection Law and subject to penalties under that law.
The pending Maryland bill, Senate Bill 881, is based on and similar to New York's commercial financing disclosure law, except S.B. 881 was recently amended to also require licensing for commercial financing providers and added criminal penalties for noncompliance. It applies to transactions in amounts of $2.5 million or less and defines commercial financing to include closed-end loans, open-end loans, sales-based financing, and factoring. The bill would require APR disclosures calculated pursuant to Appendix J of Regulation Z and a "double dipping" disclosure. The bill would also authorize the Maryland regulator to adopt "substantially the same" commercial financing regulations as the New York DFS has adopted.
The pending New Jersey bill, Senate Bill 1760, is also based on New York's law. It too applies to closed-end loans, open-end loans, sales-based financing, and factoring, but only where the amount financed is $500,000 or less. The bill features more stringent broker fee disclosure requirements than other commercial financing disclosure laws, including a requirement to disclose any increase in the APR resulting from broker fees. The bill would prohibit a broker from collecting any fees before closing and from making false or misleading representations. The bill would direct the state's Commissioner of Banking and Insurance to adopt regulations to implement the statute and provides that the regulations be "substantially similar" to regulations of other states that regulate commercial financing disclosures at least as strictly as this bill proposes to do.
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