Before we get to the lead story, a reader of my last Blog describing the "low income" designation for some credit unions that exempts them from the 12.25% of asset cap on member business loans asked what is the standard for a "low income" member. The NCAU regulations provide the following:
Low-income members are those members whose family income is 80% or less than the median family income for the metropolitan area where they live or national metropolitan area, whichever is greater, or those members who earn 80% or less than the total median earnings for individuals for the metropolitan area where they live or national metropolitan area, whichever is greater. NCUA will use the statewide or national, non-metropolitan area median family income instead of the metropolitan area or national metropolitan area median family income for members living outside a metropolitan area. Member earnings will be estimated based on data reported by the U.S. Census Bureau for the geographic area where the member lives. The term “low-income members” also includes those members enrolled as students in a college, university, high school, or vocational school.I hope that helps you understand the standard. It barely makes sense to me-- but I am lawyer, as my dear friend Pat Dee would say.
On July 31, 2013 Judge Richard Leon ruled that the Board of Governors of the Federal Reserve ("FED") "has clearly disregarded Congress's statutory intent by inappropriately inflating all debit card transactions by billions of dollars and failing to provide merchants with multiple unaffiliated networks for each debit card transaction". NACS v. Federal Reserve System, Civil Case No. 11-02075-RJL (District of Columbia July 31, 2013). The judge ruled that Fed used data it should not have used under Dodd-Frank in setting a cap on debit card transaction fees. These fees are known as "swipe" fees. Judge Leon traced the history of debit card use in the U.S., but also tracked the ways in which Visa and MasterCard gained a market share exceeding 80%. The FED's rule or cap permitted each issuer to receive a fee as high as $0.21 per transaction plus an additional ad valorem amount of five basis points (0.05%). This standard was struck down. In addition, the ruling dictates a merchant's choice between more than two unaffiliated networks (other than Visa, MasterCard) to increase competition.
Judge Leon was highly critical of the FED rule making. The FED was directed to revisit its rule making quickly. The American Banking Association stated that the ruling would harm all banks "of all sizes". On August 15, 2013 Judge Leon held a hearing on the remedies which might flow from his ruling. He stated that not only would retailers bear lower "swipe fees" but retailers might be entitled to substantial refunds of unlawful fees paid. He also demanded that the FED move quickly on re-writing the rule, stating that FED decision makers "can come back from Nantucket, ...or wherever they are on vacation..." and make decisions on the re-write of the rule. The FED's General Counsel was directed to reply to the Court in a week concerning the time it would take to revise the rule. The FED has not disclosed its intentions to appeal. Judge Leon is an appointee of the first President Bush. If an appeal is taken the District Judge would have to stay his decision, or on appeal the Circuit Court for the District of Columbia would have to do so. Although the chances of an appeal to the U.S. Supreme Court is unknown, the FED might note that Judge Leon is a college classmate of Justice Howard Thomas.
Robert P. Tinnin, long time New Mexico labor and employment attorney, noted to me that the recent employment case of Yedidag, M.D. v. Roswell Clinic Corp., decided on July 3, 2013 by the N.M. Court of Appeals should be of concern to employers. The case if of obvious concern to the medical community, since it holds that Dr. Yedidag could bring a lawsuit if the employer violated the N.M. Review Organization Immunity Act--an important part of the peer review process in hospitals and the medical profession. But, Bob Tinnin says that the case does not stop there. Indeed, he maintains:
That jury decision in conservative Chavez County resulted in Dr. Yedidag's receiving $970,000 in actual damages and $3,000,000 in punitive damages. Such a result should warn any employer that employment contracts need to be reviewed for options when the at will doctrine is gone. There are options, but they sometimes are not attractive to business.The main significance of the case is, of course, to the medical community because of the recognition of a private right of action against peer review organizations. However, the case also conveys a strong message to all employers about implied employment contracts. In this case, there was a strong at will disclaimer in the doctor's employment contract, which the employer argued would trump any implied contract argument under our "at will" doctrine. Without any substantive discussion, the Court summarily dismissed the argument, reinforcing the almost inescapable conclusion to be drawn from all NM appellate decisions in the recent past, that at will is effectively dead in NM because almost any claim of implied employment contract will be submitted to a jury for decision.
Do Good,
Marshall G. Martin
505-982-4611 (office)
505-228-8506 (cell)
The term “low-income members” also includes those members enrolled as students in a college, university, high school, or vocational school.
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