On August 31, Kevin Shepherd was quoted in The Legal Description on the legal challenges to the U.S. Department of the Treasury's Financial Crimes Enforcement Network (FinCEN) Residential Real Estate Reporting Rule.
According to the article, several lawsuits challenge FinCEN's rule requiring certain residential real estate transactions to be reported to the agency. The cases raise questions about whether FinCEN exceeded its authority under the Bank Secrecy Act and whether the reporting requirements place an undue burden on the real estate industry.
Commenting on the differing outcomes in the Flowers and Fidelity cases, Mr. Shepherd explained that the decisions were driven by the different legal arguments presented.
"I do not think it's a matter of which plaintiff made the better argument; rather, the administrative law based argument advanced by Flowers allowed the district court to resolve the issue on a statutory interpretation, and not constitutional, basis. This approach gave the Flowers court room to focus on the statutory language per Loper Bright without deferring to FinCEN's interpretation of the statutory language."
Read the article here.