b'telephone dialing system (ATDS) under the TCPA.special-purpose national bank charters from financial See Facebook, Inc. v. Duguid, et al., No. 19-511. Thetechnology companies engaged in the business of Supreme Court unanimously ruled that to qualify as anbanking, including those that do not accept deposits. ATDS, a device must have the capacity either to storeThe Second Circuit found that DFS lacked standing to a telephone number using a random or sequentialsue because it did not allege that the OCCs decision generator or to produce a telephone number usinghad or would cause it to suffer an actual injury in fact. a random or sequential number generator, thusIt also found that the claims were constitutionally rejecting a more expansive interpretation of the termunripe for judicial review because the OCC had not previously endorsed in some Circuits. Under the moreyet received or granted any applications. The Second expansive view, an ATDS could have encompassed anyCircuit expressed no view as to whether the statutory equipment that stores and dials telephone numbers,prerequisite that a company be engaged in the including virtually all modern cell phones. As a resultbusiness of banking to fall within the authority of the of the Supreme Courts decision, Goodwin has alreadyOCC requires that the company receive deposits.observed a sharp decline in the number of new TCPA lawsuits alleging violations of the ATDS provision.Looking Ahead to 2022: Our PredictionsSupreme Court Holds That FHFA Is New and expanded consumer protections introduced Unconstitutionally Structured in 2021 will undoubtedly drive enforcement activity In June, the Supreme Court issued its decision inin 2022. Although CARES Act protections kept Collins v. Yellen, No. 19-422, holding that the singledelinquency rates low, many pandemic-related director leadership structure of the Federal Housingmoratoriums and forbearances expired or have been Finance Agency (FHFA) is unconstitutional. The Courtphased out. Federal and state regulators began to found that its 2020 decision in Seila Law v. Consumerintroduce new protections, and mortgage servicing Financial Protection Bureau, No. 19-7, dictated a similarwill likely be a key focus in the coming year. In a result and thus that the statutory limitation on theNovember 2021 report, the CFPB described how it Presidents removal power, under which the FHFAcontinued to respond to the evolving needs of both director may only be removed for cause, violated theconsumers and regulated entitles in the mortgage separation of powers. Though the Court held that theservicing space, but that it intends to continue targeted leadership structure was unconstitutional, the Courtdata collection and evaluation efforts to assess how also ruled that there was no constitutional defect in theservicers performed for consumers exiting forbearance. statutorily prescribed method of appointment, and thusServicers can expect additional scrutiny, particularly the actions previously taken by the agency were notover loss mitigation and loan modification processes, as necessarily unconstitutional.borrowers exit forbearance. Similarly, in late-December Second Circuit Dismisses Legal Challenge to the Biden administration extended the pause on federal OCC Fintech Charter Program student loan payments, pushing out the restart date In June, the U.S. Court of Appeals for the Seconduntil May 1, 2022. Regardless of whether the restart is Circuit dismissed the New York State Departmentdelayed again in May, there is likely to be confusion of Financial Services (DFS) action against the OCC.among borrowers about amounts owed when See Lacewell v. Office of the Comptroller, No. 19-4271.payments eventually resume. Borrower confusion tends The suit challenged the OCCs authority to acceptto lead to increased regulatory scrutiny. 12'