Financial Regulation

Courthouse Steps: Cash or credit? Price control or speech control? - Podcast

Litigation Practice Group Podcast
Jesse Panuccio January 11, 2017

Credit-card companies charge a transaction fee, and merchants often pass that cost onto consumers by raising prices across the board. Some merchants, however, would like to charge more only to credit customers. Ten states prohibit merchants from charging such "swipe fees," and the states argue that this is classic economic regulation. The merchants counter that the states permit them to offer a cash discount equivalent in value to a credit surcharge, and therefore claim that the swipe-fee bans merely prohibit truthful speech, in violation of the First Amendment. The Second and Fifth Circuits have sided with the states, but the Eleventh Circuit struck down Florida's law on First Amendment grounds. The Supreme Court heard argument on Tuesday, January 10 in the case from New York, Expressions Hair Design v. Schneiderman.

Mr. Jesse Panuccio, a partner and appellate lawyer at Foley & Lardner LLP, joined us to discuss the argument and the case. He is counsel of record on an amicus brief filed in support of the merchants' position and on behalf of a group of state-based, free-market think tanks.


  • Mr. Jesse Panuccio, Partner, Foley & Lardner LLP


Expressions Hair Design v. Schneiderman: Credit Card Surcharge Case

Short video featuring Jeffrey Harris
Jeffrey M. Harris January 08, 2017

Do state laws banning surcharging credit card transactions violate the First Amendment?  A case before the Supreme Court, Expressions Hair Design v. Schneiderman, will consider whether these laws unconstitutionally restrict speech communicating price information or whether they simply regulate economic activity.  Jeffrey Harris, Partner at Kirkland & Ellis LLP, discusses the case. The Supreme Court will hear oral argument on January 10, 2017.

Is the CFPB Unconstitutional?

Short video featuring Gregory Jacob
Gregory F. Jacob December 08, 2016

Is the consolidation of financial regulation oversight into one unelected official constitutional? Gregory Jacob, Partner at O’Melveny & Myers, LLP, gives a history of the establishment of the Consumer Financial Protection Bureau (CFPB) as a response to the financial crisis of 2008 and discusses a recent decision by the D.C. Circuit regarding the agency's structure.

Has the Consumer Financial Protection Bureau (CFPB) Helped Consumers? - Event Audio/Video

2016 National Lawyers Convention
John A. Allison, Leonard N. Chanin, Deepak Gupta, Todd J. Zywicki, Edith H. Jones, Wayne A. Abernathy November 23, 2016

The Consumer Financial Protection Bureau (CFPB), in its more than five year existence, has ordered consumer financial service providers to return more than a billion dollars in monetary relief to consumers it believes were victims of practices that it deems unfair, deceptive, abusive, or otherwise violative of its view of regulations and laws. The CFPB has ordered monetary relief for discriminatory lending and proposed regulations that would shutter many low-income lending locations and encourage class actions lawsuits. Proponents of the Bureau point to fines collected and bad practices addressed. Critics assert that Bureau activities actually harm consumers rather than help them. This panel will assess whether the CFPB has been of net benefit or net harm to the people it was created to protect.

This panel was held on November 18, 2016, during the 2016 National Lawyers Convention in Washington, DC.

Financial Services & E-Commerce: Has the Consumer Financial Protection Bureau (CFPB) Helped Consumers?
12:30 p.m. – 2:45 p.m.
State Room

  • Mr. John A. Allison, Chairman, Executive Advisory Council, Center for Monetary and Financial Alternatives, Cato Institute
  • Mr. Leonard N. Chanin, Of Counsel, Morrison & Foerster LLP
  • Mr. Deepak Gupta, Founding Principal, Gupta Wessler PLLC
  • Prof. Todd J. Zywicki, Foundation Professor of Law and Executive Director, Law & Economics Center, Antonin Scalia School of Law, George Mason University
  • Moderator: Hon. Edith Jones, U.S. Court of Appeals, Fifth Circuit
  • Introduction: Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association

The Mayflower Hotel
Washington, DC