An increasing number of states have enacted or are considering enacting legislation requiring financial institutions to provide customers “fair access” to financial services. These fair access requirements, first appearing in Florida’s House Bill 3 (2023) (“FL HB 3”), generally prohibit financial institutions from denying or canceling services to a person, or otherwise discriminating against a person in making available services, on the basis of enumerated factors, commonly including political opinions, religious beliefs, “social credit scores,” or any factor that is not “quantitative, impartial, and risk-based.”
On May 2, 2024, the Florida Governor signed into law House Bill 989 (“FL HB 989”), which, effective July 1, 2024, (1) will provide for a customer complaint and investigation process for alleged violations of Florida’s fair access requirements introduced by FL HB 3, and (2) appears to expand the financial institutions subject to the fair access and related compliance attestation requirements under the Florida Financial Institutions Codes (the “Financial Institutions Codes”) to include non-Florida chartered banks. On April 22, 2024, the Tennessee Governor signed into law House Bill 2100 (“TN HB 2100”), a fair access law that will, effective July 1, 2024, apply to, among others, national banks and state banks with more than $100 billion in assets, as well as insurers. At least eight other states—Arizona, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, South Dakota—are also considering fair access bills, some of which would apply to payment processors, payment networks, and credit card companies and networks in addition to banks and insurers.
Compliance with fair access laws, including any related compliance attestation and customer complaint response requirements, may present challenges due to uncertainty regarding the scope of their application and interpretive questions regarding certain key terms, such as “social credit scores” and “quantitative, impartial and risk-based.” In addition, if more states enact fair access laws, financial institutions may be required to comply with an increasing number of fair access laws that may be inconsistent from state to state.
BACKGROUND
A. FL HB 3 (2023)
General. In 2023, Florida enacted FL HB 3, a law entitled “Government and Corporate Activism” that became effective on July 1, 2023. Among other requirements,[1] FL HB 3 imposes fair access requirements on certain financial institutions.
In-Scope Financial Institutions. Four types of financial institutions are required to comply with the fair access provisions of FL HB 3 (i.e., they are “in-scope”):
- “qualified public depositories” (“QPDs”), which are depository institutions designated by the Florida Chief Financial Officer (“Florida CFO”) as qualified to take Florida public deposits pursuant to Chapter 280 of the Florida Statues;[2]
- “financial institutions subject to the financial institutions codes”—e., “state-authorized or state-chartered financial institutions”[3]—which, based on a plain reading of the Financial Institutions Codes, include Florida state-chartered banks, trust companies and credit unions, as well as Florida state-licensed branches, agencies, administrative offices, and representative offices of non-U.S. banks;[4]
- consumer finance lenders licensed under Chapter 516 of the Florida Statutes; and
- money services businesses licensed under Chapter 560 of the Florida Statutes.[5]
Fair Access Provisions and Related Attestations. FL HB 3’s fair access provisions:[6]
- require in-scope financial institutions to make decisions about the provision or denial of services based on “an analysis of risk factors unique to” each customer; and
- make it an “unsafe and unsound practice” for an in-scope financial institution to “deny or cancel” services to a person, or “otherwise discriminate” against a person in making available such services or in the terms or conditions of such services on the basis of:
- political opinions, speech, or affiliations;
- religious beliefs, exercise, or affiliations;
- a “social credit score” based on factors including, but not limited to, political opinions; religious beliefs; lawful ownership of a firearm; engagement in the business of fossil fuel-based energy, timber, mining, or agriculture; support for the state or federal government in combatting illegal immigration, drug trafficking, or human trafficking; and failure to meet or commit to meet certain ESG standards; or
- any factor that is not a “quantitative, impartial, and risk-based standard, including any such factor related to the person’s business sector.”
In-scope financial institutions (and, in some cases, entities applying for the relevant licenses or the QPD designation) are required to provide attestations regarding their compliance with FL HB 3’s fair access provisions, under the penalty of perjury and in accordance with the timeline in the relevant statutes.[7] For example, FL HB 3 requires “financial institutions subject to the financial institutions codes” to attest whether they are acting in compliance with the fair access provisions beginning July 1, 2023, and by July 1 of each year thereafter.[8]
Other than regulations to prescribe forms for the FL HB 3 attestations, Florida authorities have not adopted or proposed any regulations to implement FL HB 3 or provided any interpretive guidance, including with respect to certain key terms or phrases that are not defined in the statute, such as “social credit score” or “quantitative, impartial, and risk-based.”
Enforcement. With respect to QPDs, the Florida CFO is authorized to suspend or disqualify a QPD, or impose an administrative penalty upon the QPD, if the QPD fails to file the required attestation or no longer meets the definition of a QPD.[9] The Florida CFO is also authorized to request documents to verify the attestation provided by the QPD and, if the Florida CFO determines that an attestation submitted by a QPD is materially false, the Florida CFO is required to report such determination to the Florida Attorney General, who may bring a civil or administrative action.[10]
With respect to the other in-scope financial institutions, FL HB 3 generally provides that failure to comply with the fair access requirements and the related attestation requirements would constitute (1) a violation of the relevant statutes governing the licensed institutions and (2) a violation of the Florida Deceptive and Unfair Practices Act, which would subject these institutions to the sanctions and penalties under those statutes, except that there is no private right of action for any such violation of the Florida Deceptive and Unfair Practices Act.[11]
In a video posted on X in January 2024, Florida Governor Ron DeSantis indicated that some banks may have violated FL HB 3’s fair access requirements and asserted that Florida will “make sure that . . . our law is upheld.”[12] As of the date of this publication, Florida has not announced any enforcement action for a violation of FL HB 3’s fair access requirements.
B. OCC’s Letter on Uniform Federal Banking Standards
On November 9, 2023, the General Counsel of the Office of the Comptroller of the Currency (the “OCC”) issued a letter to the CEOs of all national banks and federal savings associations (“FSAs”) addressing uniform federal banking standards.[13] In the letter, the OCC explains that it is aware that some states have passed laws or taken other actions that “purport to apply to national banks and FSAs” and notes that it is “concerned about their impact on the ability of national banks and FSAs to provide banking services consistent with safety, soundness, and the fair treatment of customers.” In an example, the OCC notes that to the extent that state laws purport to impose requirements such as attestation or reporting on national banks or FSAs, these laws “may be inconsistent with the OCC’s exclusive visitorial authority under federal law.” The OCC further notes in the letter that it is “committed to preserving the legal framework for preemption established by Congress, including in the Dodd-Frank Wall Street Reform and Consumer Protection Act.”
FL HB 989
On May 2, 2024, FL HB 989 was signed into law by the Florida Governor.[14] FL HB 989 will become effective on July 1, 2024 and will amend the fair access provisions of the Financial Institutions Codes introduced by FL HB 3.
In-Scope Financial Institutions. FL HB 989 appears to expand the in-scope financial institutions subject to the fair access provisions of the Financial Institutions Codes to include non-Florida chartered banks. Under FL HB 3, “financial institutions subject to the financial institutions codes” are required to provide annual attestations.[15] Because, as noted above, the Financial Institutions Codes “apply to all state-authorized or state-chartered financial institutions,”[16] based on a plain reading of the statute, only “state-authorized or state-chartered” financial institutions should be required to provide annual attestations. FL HB 989, however, will replace “subject to the financial institutions codes” with “as defined in s. 655.005.”[17] Section 655.005 of the Florida Statutes defines “financial institutions” broadly to include, among others, state or federal banks, trust companies, credit unions and international banking corporations.[18] Thus, although there is some ambiguity, FL HB 989 would seem to expand the scope of the financial institutions subject to the attestation requirements to all “financial institutions.” This means that “financial institutions,” including non-Florida chartered banks, such as national banks, state banks chartered by other states, and non-U.S. banks, could be required to submit attestations of their compliance with the fair access provisions, under the penalty of perjury, by July 1, 2024 and by July 1 each year thereafter.
“Suspend or Terminate”. FL HB 989 will expand the fair access provisions of the Financial Institutions Codes by providing that it is also an “unsafe and unsound practice” for an in-scope financial institution to “suspend or terminate,” in addition to denying or canceling, its services to a person on the basis of the prohibited factors set forth in FL HB 3.[19],[20]
Customer Complaint and Regulatory Investigation Process. FL HB 989 will introduce a customer complaint and regulatory investigation process for alleged violations of the fair access provisions of the Financial Institutions Codes. A customer of a financial institution who suspects that the financial institution has violated the fair access provisions may submit a complaint, on a form prescribed by the Florida Financial Services Commission (the “FSC”),[21] to the Florida Office of Financial Regulation (“OFR”) within 30 days of the suspected violation.[22] After receipt of a complaint, the OFR will be required to notify the financial institution. The financial institution would then have to file a response report within 90 days, containing information that the FSC would promulgate rules to require, “unless precluded by law.”[23] FL HB 989 will provide for separate investigation procedures depending on whether the complaint response report indicates the financial institution took action based on “suspicious activity.”[24] If the response report indicates the action was based on suspicious activity, the investigation will be required to be handled in accordance with the Florida Control of Money Laundering and Terrorist Financing in Financial Institutions Act.[25] If not, FL HB 989 will require the OFR to continue investigating the action and determine whether the financial institution violated the fair access provisions of the Financial Institutions Codes.[26] Upon conclusion of the investigation, the OFR will be required to issue a report that must be sent to the customer who submitted the complaint and the financial institution within 45 days of the conclusion of the investigation.[27] If the OFR determines there was a violation, it will be required to notify the enforcing authority for the Florida Deceptive and Unfair Practices Act and the Florida Department of Financial Services.[28]
Rulemaking Authority. Under FL HB 3, the FSC only had authority to prescribe the forms of the required attestations. Under FL HB 989, in addition to the authority to prescribe the customer complaint form and the contents of the financial institution’s response report as noted above, the FSC “may adopt rules to administer” the fair access provisions of the Financial Institutions Codes.[29] However, it is unclear at this point whether or when the FSC will issue implementing regulations under its general rulemaking authority.
TN HB 2100
On April 22, 2024, the Tennessee Governor signed into law TN HB 2100, which will become effective on July 1, 2024. TN HB 2100 imposes fair access requirements on both (1) large “financial institutions”—i.e., state and national banks, savings and loan associations, savings banks, credit unions, industrial loan and thrift companies, and mortgage lenders that have more than $100 billion in assets[30]—and (2) insurers. TN HB 2100 does not contain attestation requirements and does not provide for a customer complaint process. It also does not provide general rulemaking authority to any Tennessee governmental entity.
Financial Institutions. Like Florida’s fair access statute, TN HB 2100 requires in-scope “financial institutions” to make determinations about the provision of services based on an analysis of risk factors unique to the customer[31] and prohibits these institutions from denying or canceling services, or otherwise discriminating in the provision of services on the basis of political views, religious beliefs, any factor other than a “quantitative, impartial, risk-based standard” or a “social credit score.”[32] Unlike Florida’s fair access statute, however, “services” exclude loans.[33]
TN HB 2100 provides that customers who are refused services may request from the financial institution an explanation of the specific reasons for the denial within 90 days of receiving notice of the refusal.[34] “Unless otherwise prohibited by federal law,” the financial institution must send the customer a statement of the specific reasons for denial within 30 days of receiving the customer’s request.[35] The explanation must include a detailed description of the basis for the denial, a copy of the terms of service agreed to by the customer and the financial institution, and a reference to the specific provisions of the terms of service upon which the financial institution relied in refusing the services.[36]
Like Florida’s fair access statute, TN HB 2100 provides that a violation of the fair access requirements is a violation of Tennessee’s unfair, deceptive or abusive acts or practices (“UDAAP”) statute, the Tennessee Consumer Protection Act of 1977.[37] The Tennessee Consumer Protection Act provides the Tennessee Attorney General with enforcement power but also provides a private right of action for persons who suffer an ascertainable loss of money or property from a violation of the act to recover their actual damages.[38] Unlike FL HB 3, TN HB 2100 does not provide that violations of the fair access requirements may only be enforced by a governmental entity.
Insurers. TN HB 2100 amends the unfair trade practices chapter of Tennessee’s Insurance Code to require “insurers” to make determinations about the provision of services based on an analysis of sound underwriting and actuarial principles related to actual or reasonably anticipated loss experience unique to each current or prospective customer and prohibits insurers from refusing to insure, or charge a different rate to a person, solely on the basis of political opinion or religious beliefs.[39] Under the Tennessee Insurance Code, “insurer” is broadly defined and is not limited to Tennessee-authorized insurers.[40]
TN HB 2100 provides that a violation of the fair access provisions is an unfair trade practice subject to the remedies provided under chapter 8, part 1 of the Tennessee Insurance Code.[41] Violations of that part may be enforced by the Tennessee Commissioner of Commerce and Insurance bringing an action to enjoin the violation.[42]
PENDING FAIR ACCESS LEGISLATION IN OTHER STATES
In addition to Florida and Tennessee, at least eight other states—Arizona, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, South Dakota—are considering fair access legislation.[43]
Most of these pending bills do not limit in-scope financial institutions to those licensed by the particular state that enacts the bill, but some bills, like TN HB 2100, use an asset threshold to limit the application of the fair access requirements to large financial institutions.[44] Many of the pending bills include additional types of financial institutions, such as a payment processor, payment network, credit card company or credit card network that has processed more than a minimum dollar amount (typically $100 billion) in transactions in the last calendar year, and their subsidiaries and affiliates, as in-scope financial institutions.[45]
The pending bills generally prohibit discrimination in the provision of financial services on the basis of enumerated factors, many of which are similar to those in FL HB 3. Some pending bills include different examples of “social credit scores” from those in FL HB 3. For example, Georgia’s House Bill 1205 prohibits discrimination based on a person’s “social credit score,” which is defined to include “any analysis, rating, scoring, list, or tabulation that evaluates,” among other factors, a person’s refusal to adopt any policy or make any disclosure regarding greenhouse gas emissions “beyond what is required by applicable state or federal law,” refusal to conduct any type of racial, diversity, or gender audit or disclosure or to implement any quota or provide a preference or benefit based on race, diversity or gender, or refusal to assist employees in obtaining abortions or gender reassignment services.[46] Some pending bills also prohibit financial institutions from agreeing, conspiring, or coordinating, including through any intermediary or third party, with another person or group of persons to engage in the activities prohibited by the fair access requirements.[47]
Like the Florida and Tennessee fair access laws, these bills do not define “customer” or “consumer” or otherwise include any explicit geographic limitations of the fair access requirements, with the exception of Indiana’s Senate Bill 28, which limits “consumers” to those with principal residence or domiciled in Indiana.
The pending bills also generally allow customers to request an explanation of denial, as does TN HB 2100.[48] Many of the pending bills provide that violations of the fair access requirements are also violations of the state’s UDAAP statute,[49] and many provide for a private right of action, whether through the state’s UDAAP statute or through the fair access provisions of the law governing the financial institutions.[50]
As these pending bills are still being considered by the state legislatures, they may continue to be modified. It is unclear at this point whether any of them will be enacted into law.
IMPLICATIONS
By enacting FL HB 3, Florida became the first state that has enacted a statute focused on ESG matters that goes beyond the typical state “contracting” statutes. State “contracting” statutes generally subject entities doing business with a state to the state’s pro- or anti-ESG requirements. State fair access statutes impose requirements on how financial institutions provide financial services in general.
In addition to the existing interpretive questions on FL HB 3, such as the meanings of “quantitative, impartial, and risk-based” and “social credit score,” FL HB 989 raises several additional interpretive questions regarding the scope of Florida’s fair access law. As discussed above, although there is some ambiguity, FL HB 989 appears to expand the in-scope financial institutions to include non-Florida chartered banks, such as national banks, state banks chartered by other states, and non-U.S. banks, regardless of whether they are QPDs. In addition, because “customer” is not defined in the statute, FL HB 989 presents the question of whether it could be construed as applying to all customers of an in-scope financial institution, regardless of whether the customer is located in, or otherwise has any nexus to, Florida. This would be an expansive reading, however, and Florida has not indicated the law will be implemented in this way.
Many of these interpretive questions would appear to apply to TN HB 2100, as well as many of the pending fair access bills in other states. As more states enact fair access statutes, financial institutions, including national banks, could become subject to multiple and varying fair access requirements in different states, many of which would appear to have broad, extraterritorial application.
Potentially in-scope financial institutions should consider the impact of state fair access requirements on their business operations and monitor further developments in this area, including any potential legal challenges to this type of statute on the basis of preemption, the Commerce Clause of the U.S. Constitution or other grounds. A case pending before the U.S. Supreme Court, Cantero v. Bank of America,[51] which addresses the issue of whether the National Bank Act preempts the application of state interest-on-escrow laws to national banks, could affect the legal framework for preemption under the National Bank Act. National banks should also monitor any further guidance from the OCC that may address or implicate the application of state fair access laws to national banks.
ENDNOTES
[1] In addition to the fair access requirements, FL HB 3 requires all investment decisions regarding Florida public pensions and other state retirement funds be based “solely on pecuniary factors,” prohibits the Florida Division of Bond Finance and certain other Florida public bond issuers from issuing ESG bonds and prohibits Florida state and local government from considering “social, political, or ideological interests” in state and local government contracting.
[2] All Florida public deposits must be made in a financial institution designated as a QPD by the Florida Chief Financial Officer, unless exempted by law. FL ST § 280.03(1).
[3] FL ST § 655.001.
[4] The term “state-authorized” is not defined in the Financial Institutions Codes, nor is the term “state-chartered.” The Financial Institutions Codes provide that “‘state,’ when used in the context of a state other than this state, means any other state of the United States, the District of Columbia, and any territories of the United States.” FL ST § 655.005(v). Given the context, “state-authorized or state-chartered” is best interpreted to mean any financial institution that is chartered or authorized by the State of Florida.
[5] FL HB 3 §§ 14 (amending FL ST § 280.02(26)), 21 (creating FL ST § 516.037), 22 (creating FL ST § 560.1115), 24 (amending FL ST § 655.005) and 25 (creating FL ST § 655.0323); see also, Florida OFR, HB 3 Implementation for Financial Services Providers, available at https://flofr.gov/sitepages/ documents/HB3ImplementationforFinancialServicesProviders.pdf(last visited on May 9, 2024).
[6] Id.
[7] Id.
[8] FL ST § 655.0323.
[9] FL ST §§ 280.051 & 280.054.
[10] FL ST §§ 280.05.
[11] FL ST §§ 516.037; 560.115; 655.0323.
[12] Ron DeSantis, “Florida has taken a strong stand against so-called ESG because it is bad for the economy, bad for freedom, and bad for constitutional accountability. We will take action as needed to ensure the protections we’ve enacted against ESG are honored,” available at https://twitter.com/GovRonDeSantis/status/1752761809243697659 (posted on Jan. 31, 2024).
[13] Letter from Benjamin W. McDonough, Senior Deputy Comptroller and Chief Counsel, to chief executive officers of all national banks and federal savings associations addressing uniform federal banking standards (Nov. 9, 2023), available athttps://www.occ.treas.gov/publications-and-resources/publications/banker-education/files/letter-to-chief-executive-officers.html.
[14] See Governor Ron DeSantis, “Governor Ron DeSantis Signs Three Bills,” available athttps://www.flgov.com/2024/05/02/governor-ron-desantis-signs-three-bills-6/ (last visited on May 9, 2024).
[15] FL HB 3 § 25 (creating FL ST § 655.0323).
[16] FL ST § 655.001.
[17] FL HB 989 § 37 (amending FL ST § 655.0323(3)).
[18] FL ST § 655.005 (“‘Financial institution’ means a state or federal savings or thrift association, bank, savings bank, trust company, international bank agency, international banking corporation, international branch, international representative office, international administrative office, international trust entity, international trust company representative office, qualified limited service affiliate, credit union, or an agreement corporation operating pursuant to s. 25 of the Federal Reserve Act, 12 U.S.C. ss. 601 et seq. or Edge Act corporation organized pursuant to s. 25(a) of the Federal Reserve Act, 12 U.S.C. ss. 611 et seq.”).
[19] FL HB 989 § 37 (amending FL ST § 655.0323(2)). The same changes would also apply to the fair access provisions of Chapter 280 of the Florida Statues, which govern QPDs. FL HB 989 § 38 (amending FL ST § 280.02).
[20] The House Bill Analysis of FL HB 989 may shed some light on the purpose of this provision and the customer complaint provisions. The analysis highlights the effects of banks’ termination of account access, citing a New York Times article that included interviews with customers who had their accounts closed or suspended without explanation. House of Representatives Staff Final Bill Analysis at 9 (Mar. 14, 2024), available athttps://m.flsenate.gov/session/bill/2024/989/analyses/ h0989z.ibs.pdf (citing Ron Lieber and Tara Seigel Bernard, “Why Banks Are Suddenly Closing Down Customer Accounts,” New York Times (Nov. 5, 2023)).
[21] The FSC consists of the Florida Governor and three members of the Florida Cabinet: the Florida CFO, Attorney General, and Agriculture Commissioner. The FSC has two offices: the OFR and the Office of Insurance Regulation. The offices are headed by commissioners appointed by the FSC and report to the FSC. The FSC has final approval over rules developed by each office, but all regulatory decisions are vested with the offices. Florida OFR, “About Our Agency,” available athttps://flofr.gov/sitePages/AboutOFR.htm.
[22] FL HB 989 § 37 (adding FL ST § 655.0323(4)).
[23] FL HB 989 § 37 (adding FL ST § 655.0323(5)).
[24] Id. “Suspicious activity” refers to any transaction reportable as required and described under 31 C.F.R. § 1020.320. FL ST § 655.50(3).
[25] Id.; see FL ST § 655.50.
[26] FL HB 989 § 37 (adding FL ST § 655.0323(5)).
[27] Id.
[28] Id.
[29] FL HB 989 § 37 (adding FL ST § 655.0323(9)).
[30] TN HB 2100 § 1 (adding Tenn. Code § 45-1-128(a)).
[31] TN HB 2100 § 1 (adding Tenn. Code § 45-1-128(b)).
[32] TN HB 2100 § 1 (adding Tenn. Code § 45-1-128(c)).
[33] TN HB 2100 § 1 (adding Tenn. Code § 45-1-128(a)).
[34] TN HB 2100 § 1 (adding Tenn. Code § 45-1-128(d)).
[35] Id.
[36] Id.
[37] TN HB 2100 § 1 (adding Tenn. Code § 45-1-128(f)).
[38] Tenn. Code § 47-18-109.
[39] TN HB 2100 § 3 (adding Tenn. Code § 56-8-114).
[40] Tenn. Code § 56-8-102(a)(9) (“Insurer” means “any person, reciprocal exchange, interinsurer, Lloyd’s insurer, fraternal benefit society, and any other legal entity engaged in the business of insurance” and includes “medical service plans, hospital service plans, health maintenance organizations, prepaid limited health care service plans, hospital medical service corporations, dental, optometric and other similar health service plans.”).
[41] TN HB 2100 § 3 (adding Tenn. Code § 56-8-114(c)).
[42] Tenn. Code § 56-8-109.
[43] See Ariz. S.B. 1167; Ga. H.B. 1205; Idaho H. 669; Ind. S.B. 28; Iowa H.F. 2409; Ky. H.B. 452; La. H.B. 914; and S.D. H.B. 1247.
[44] See, e.g., Ariz. S.B. 1167; Ga. H.B. 1205; Idaho H. 669; Ind. S.B. 28; Iowa H.F. 2409; Ky. H.B. 452; and La. H.B. 914.
[45] See, e.g., Ariz. S.B. 1167; Ga. H.B. 1205; Idaho H. 669; Ind. S.B. 28; Iowa H.F. 2409; Ky. H.B. 452; and La. H.B. 914.
[46] Georgia House Bill 1205 § 3 (adding Ga. Code § 10-1-439.20). See, also, Ariz. S.B. 1167; Idaho H. 669; Ind. S.B. 28; Iowa H.F. 2409; and Ky. H.B. 452.
[47] See, e.g., Ariz. S.B. 1167; Ga. H.B. 1205; Idaho H. 669; Ind. S.B. 28; Iowa H.F. 2409; and Ky. H.B. 452.
[48] See, e.g., Ariz. S.B. 1167; Ga. H.B. 1205; Idaho H. 669; Ind. S.B. 28; Iowa H.F. 2409; and Ky. H.B. 452.
[49] See, e.g., Ga. H.B. 1205; Idaho H. 669; Ind. S.B. 0028; Ky. H.B. 452; and La. H.B. 914.
[50] See, e.g., Ariz. S.B. 1167; Ga. H.B. 1205; Idaho H. 669; Ind. S.B. 28; Iowa H.F. 2409; Ky. H.B. 452; and La. H.B. 914.
[51] Cantero et al. v. Bank of America, N.A., Case No. 22-529.
This post comes to us from Sullivan & Cromwell LLP. It is based on the firm’s memorandum, “States Require ‘Fair Access’ to Financial Services,” dated May 9, 2024.