On the eve of a change in administration, the Biden/Chopra CFPB released a "Compendium of Recent CFPB Guidance," a sweeping collection of interpretations of federal consumer financial laws under the current leadership (November 2021 – December 2024). Touted as a durable resource for courts and enforcers, the compendium feels more like a parting shot than a definitive playbook. With the incoming Trump administration poised to revisit and potentially rescind many of these interpretations of federal consumer financial law, the actual impact of this guidance, at least for the foreseeable future on the federal level, remains uncertain, although some state enforcers and private litigants may embrace it.
A Comprehensive (but Contestable) Framework
The compendium spans a broad array of topics, from artificial intelligence in lending to whistleblower protections, providing a non-exhaustive snapshot of the CFPB's priorities in recent years:
- Artificial Intelligence and Algorithms: Circular 2022-03 sets stringent requirements for adverse action notifications, requiring transparency when algorithms drive credit decisions.
- Data Security: Circular 2022-04 warns against insufficient safeguards for sensitive consumer information, highlighting a growing concern over cyber risks.
- Consumer Fees and Practices: Bulletins such as 2022-05 (pay-to-pay fees) and Circular 2022-06 (overdraft fees) reflect a hardline stance on practices that are deemed unfair or deceptive.
- Lead Generation / Digital Marketing: The Bureau's interpretation of the CFPA's limits on immunity for digital marketing providers (Circular 2022-14), the Real Estate Settlement Procedures Act (Regulation X), digital mortgage comparison shopping platforms, and related payments to operators underscores its focus on fintech advertising.
- Advertising/Marketing: The Bureau's interpretation of UDAAP and unlawful negative option marketing practices (Circular 2023-01), on the design, marketing, and administration of credit card rewards programs (Circular 2024-07), and UDAPs that impede consumer reviews (Bulletin 2022-05).
- Debt Collection: Bulletin 2022-01 (medical debt collection and consumer reporting requirements in connection with the No Surprises Act), Regulation F (pay-to-pay fees, time-barred debt, deceptive and unfair collection of medical debt), and Circular 2022-05 (debt collection and consumer reporting practices involving invalid nursing home debts).
- Payments: The Bureau's interpretation of UDAAP and marketing about the speed or cost of sending a remittance transfer (Circular 2024-02), and on the Electronic Fund Transfer Act Act's compulsory use prohibition and government benefit accounts (Bulletin 2022-02).
Yet, with the new administration signaling a shift in regulatory philosophy, many of these interpretations—that took various forms like circulars, bulletins, advisory opinions—are likely to be revisited, if not outright rescinded.
The Chevron Doctrine and the Loper Bright Decision
The compendium's timing is notable, as it comes on the heels of Loper Bright Enterprises v. Raimondo, where the Supreme Court restricted Chevron deference. This decision empowers courts to interpret statutes independently of agency interpretations, making the CFPB's "reading" of the statutory texts more vulnerable to judicial scrutiny. An incoming administration may see Loper Bright as an opportunity to discredit or discard interpretations from this compendium that align too closely with the outgoing administration's policy agenda.
Risks and Opportunities for Regulated Entities
For consumer financial services businesses operating under CFPB jurisdiction, this compendium is both a guidepost and a cautionary tale.
Companies should review the guidance carefully and weigh compliance requirements with practices and risk, including from state regulators and attorneys general and under statutes that have private rights of action.
For example, the Fair Credit Reporting Act, Truth-in-Lending Act, Electronic Fund Transfer Act, and Fair Debt Collections Practices Act have private rights of action, and the Biden/Chopra CFPB's interpretations may mirror or influence those of private plaintiffs and courts. And, while the federal restriction on unfair, deceptive, or abusive acts and practices enforced by the CFPB and states lacks a private right of action, state laws incorporating restrictions on unfair and deceptive acts or practices may allow private suits.
Yet, businesses should also prepare for significant regulatory shifts. Policies that were based on the interpretations in the compendium may need to be (carefully) revisited as new leadership issues contrasting interpretations or tosses policies aside without additional comment. Although there may already be judicial support for some of the interpretations, expect others to get fresh scrutiny. And, of course, for any company dealing with an ongoing enforcement action or litigation, other factors, such as statutes of limitations, should be taken into account based on the facts and circumstances.
A Political Artifact
The CFPB's release of the compendium in January 2025 is not coincidental (most of the materials were previously published in the Federal Register). While some interpretations may endure through inertia or judicial validation, others will likely be swept aside by an administration that is less inclined to enforce expansive readings of federal statutes and more deferential to congressional intent.
This maneuver is not without precedent. Regulatory agencies have long used late-term rulemaking and guidance releases to attempt to cement their legacies. For example (and worth a read because it's a roadmap for possible changes to the CFPB), in January 2021 the Trump/Kraninger CFPB issued a Report on Federal Consumer Financial Law with recommendations on how to improve consumer protection in the financial marketplace. The incoming administration's appetite for rescission could be unrestrained when there's a lack of agency alignment with its consumer protection priorities.
What's Next for the Biden/Chopra CFPB's Guidance?
For some states, private plaintiffs, and courts, the compendium will serve as a reference point, but its weight will depend on how much deference judges choose to grant. For enforcers, the guidance offers a roadmap—though one that could soon be revised. And for businesses, it is a reminder to stay nimble. Compliance today may look very different from compliance a year from now.