22 WHAT TO WATCH CFPB’s payday lending rule | Lawsuit challenging Operation Choke Point | Challenge to usurious loans under state law PAYDAY LENDING TELEPHONE CONSUMER PROTECTION ACT DEBT COLLECTION compel arbitration under the terms of a payday loan agreement that would have required the arbitrator to employ the Otoe-Missouria tribal law rather than state or federal law. In Dillon v. BMO Harris Bank, N.A., the Fourth Circuit held that the arbitration clause at issue was unenforceable because it amounted to a prospective waiver of the borrower’s federal law rights. The decision extends a trend in the Fourth Circuit (Hayes v. Delbert Services Corporation) and Eleventh Circuit (Jessica Parm v. National Bank of California, N.A.) of refusing to enforce similar tribal-law arbitration provisions. DOJ Says Operation Choke Point Is Over. In 2016, a consortium of payday lenders sued the FDIC, the Federal Reserve, and the OCC, alleging due process claims arising from the agencies’ pressuring banks to sever ties with the payday industry—an enforcement initiative called “Operation Choke Point.” Advance America, Cash Advance Centers Inc., et al., v. Federal Deposit Insurance Corporation et al., Case No. 14-953 (D.D.C.). In July, the court denied the government’s motion for summary judgment, allowing the lenders’ lawsuit to continue. One month later, in August, United States Assistant Attorney General Stephen Boyd sent a letter to the House Judiciary Chairman Bob Goodlatte referring to the program as “a misguided initiative” and stating: “All of the Department [of Justice]’s investigations conducted as part of Operation Chokepoint are now over, the initiative is no longer in effect, and it will not be undertaken again.” LOOKING AHEAD TO 2018 After the CFPB issued its final payday lending rule, a bipartisan effort began in Congress to rescind the rule using the CRA. Such a move would not have been without precedent, as Congress overturned another CFPB regulation—the Arbitration Rule—in 2017. The rule is now subject to further doubt, as the CFPB recently announced that it plans to reopen the rulemaking process and reconsider the previously- final payday lending rule. Even if attempts to repeal or revise the rule fail, the new leadership at the CFPB may affect whether, and if so how, the CFPB decides to enforce the rule. Legal challenges to the rule, including challenges to the CFPB’s authority to regulate payday lending, also loom on the horizon. It is far from certain that the rule will survive.