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Your firm represents a national bank (“Bank”). The Bank has many consumer lending products. Your firm reviewed one such consumer lending product and opined that it conformed to all state and federal laws (the “Product”). The opinion letter was addressed to the board of directors of the Bank, was relied upon in launching the Product, and is now in the hands of Plaintiffs’ counsel since the Product is the target of civil litigation (which is not going well).

There is no dispute that the Plaintiffs are “consumers”. See, 12 U.S.C. §5481(4). There is no dispute that the Product is a “consumer transaction”. See, 12 U.S.C. §5481(5). The issue in dispute is whether, under Section 1036 of Title X of Dodd-Frank, your firm is liable. Specifically, whether your firm “knowingly or recklessly” provided “substantial assistance” to a covered person or service provider that engages in any unfair, deceptive, or abusive act or practice.

Legal malpractice aspects are being handled by another attorney. Your sole function is to evaluate whether your firm has liability to the consumers in the civil litigation based upon Dodd-Frank.

Counsel for the Plaintiffs delivered a demand letter. In the demand letter, the Plaintiffs’ attorneys note that 12 U.S.C. Section 5536 provides “(a) In general … It shall be unlawful for— …

(3) any person to knowingly or recklessly provide substantial assistance to a covered person or service provider in violation of the provisions of section 5531of this title, or any rule or order issued thereunder, and notwithstanding any provision of this title, the provider of such substantial assistance shall be deemed to be in violation of that section to the same extent as the person to whom such assistance is provided.”

The demand letter also uses the “related person” definitional scope of Section 5481 in its argument.

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