2025 Regulatory Summit

Arguments

• Board

– Even absent Chevron, Durbin gives the Board broad and substantial discretion in establishing an interchange fee standard. – Durbin empowers it to “fill up the details.” – Durbin provides “guardrails” that channel the Board’s calculation of a reasonable interchange fee cap. – Board may only consider incremental ACS costs and prohibited other costs.

• Retailers

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Reg. II Split

Corner Post (decided 8/6/25) • Judge Traynor vacated Reg. II, ruling Board can only consider incremental ACS costs. • Congress told the Board what it “shall” and “shall not” consider, which obliterates discretion. • “This Court—and not the Board—will determine the best interpretation of the Durbin Amendment because courts hold the monopoly in the business of statutory interpretation and delineate the boundaries of an agency’s authority.”

Linney’s Pizza (decided 9/15/25) • Judge Tatenhove upheld Reg. II. • More latitude: Durbin includes broad, discretionary language. • Reg. II specifically contemplates the Board making (at least some) decisions about the proper interchange fee cap. • Examining guardrails, Board’s decision to include four added costs was not arbitrary and capricious.

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