A bank partnership is the target of yet another “true lender” attack in a new class action filed last week. Michael v. Opportunity Fin., LLC, No. 1:22-cv-00529 (W.D. Tex. June 1, 2022).  The lawsuit is aimed at the lending partnership between OppFi (a fintech) and FinWise Bank (its bank partner), which was also the target of a recent investigation by California’s banking regulator and another class action earlier this year.  This latest development cements a growing trend of true lender attacks after Congress repealed a regulation on the topic last year, dashing hopes of a uniform and predictable standard to identify the “true lender” in bank partnerships.

The lawsuit asserts that the interest rates on consumer loans made in partnership with FinWise Bank violate Texas’s interest rate cap.  According to the complaint, OppFi and not FinWise Bank is the supposed “true lender” for purposes of assessing the validity of the loans’ interest rates.  The interest rates on the loans, if made by OppFi, would be subject to (and would exceed) Texas’s interest rate cap of 30% per year for state-licensed lenders.  The plaintiff alleges Texas usury and unjust enrichment claims, and federal RICO claims, all on behalf of a class of Texas consumers who obtained the loans at issue.

According to the plaintiff, OppFi “concede[s]” it may be the true lender.  OppFi said in an SEC filing that loans made in partnership with its bank partners “may be unenforceable or otherwise impaired” if they “were subject to successful challenge that the bank partner was not the ‘true lender.’”  For its part, Oppfi was successful in fending off a recent true lender attack in California federal court, and went on the offensive against California’s banking regulator earlier this year, filing suit in to stop the regulator’s threatened enforcement of state usury laws under a true lender theory.

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Photo of Ashley Simonsen Ashley Simonsen

Ashley Simonsen is a litigator whose practice focuses on defending complex class actions and mass torts in state and federal courts across the country.

Ashley represents clients in the technology, consumer brands, financial services, and sports industries through all stages of litigation, including…

Ashley Simonsen is a litigator whose practice focuses on defending complex class actions and mass torts in state and federal courts across the country.

Ashley represents clients in the technology, consumer brands, financial services, and sports industries through all stages of litigation, including trial, with a strong track record of success on early dispositive motions. Her practice encompasses advertising, antitrust, product defect, and consumer protection matters. Ashley regularly advises companies on arbitration clauses in consumer agreements and related issues, including mass arbitration risks and issues arising under McGill v. Citibank, N.A. And she is one of the nation’s leading experts on “true lender” issues and the related “valid when made” doctrine.

Ashley has been recognized three times by Law360 as an “MVP” (in Class Actions, Technology, and Banking) and as a “Rising Star” (in Banking). Her successful representation of Meta earned her a 2021 “Top Verdict” recognition from the Daily Journal. She has also been included in the Daily Journal’s list of the “Top 100 Lawyers” and “Top Women Lawyers” in California, named a “Lawyer on the Fast Track” and “Women Leader in Tech Law” by The Recorder, and recognized twice as a Leader of Influence: Litigators & Trial Lawyers by the Los Angeles Business Journal. Before practicing law, Ashley was an associate at Lehman Brothers in New York where she advised banks on balance sheet management and interest rate hedging strategies.

Photo of Andrew Soukup Andrew Soukup

Andrew Soukup serves as co-chair of the firm’s Class Action Litigation Practice Group. He specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes.

Praised for achieving “big wins in his class action practice,” Andrew has defeated a…

Andrew Soukup serves as co-chair of the firm’s Class Action Litigation Practice Group. He specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes.

Praised for achieving “big wins in his class action practice,” Andrew has defeated a variety of advertising, consumer protection, privacy, and product defect and safety claims, with exposure ranging from millions to billions of dollars. Based on his “proven record,” Andrew has been recognized as an “attorney you want on your side in a bet-the-company case.”

Andrew’s clients include those in the consumer products, life sciences, financial services, technology, automotive, gaming, and media and communications industries. He has consistently helped his clients prevail in litigation in federal and state courts across the country against putative class representatives, government agencies, state attorneys general, and commercial entities.

With a long history of representing companies subject to extensive federal regulation and oversight, Andrew has a unique ability to help courts understand the complex environment that governs clients’ businesses. Clients turn to Andrew because of his successful outcomes at all stages of litigation, his responsiveness and attention to their matters and his deep understanding of their businesses.

Andrew’s recent successes include:

Leading the successful defense of several of the world’s leading companies and brands in class actions accusing them of engaging in deceptive marketing or selling defective products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
Defeating claims against one of the nation’s leading consumer products companies in industry-wide, multidistrict class-action litigation challenging the company’s marketing and advertising of over-the-counter medicine containing allegedly ineffective ingredients, which earned Andrew recognition by American Lawyer as a “Litigator of the Week.”
Delivered wins in multiple nationwide class actions on behalf of leading financial institutions related to fees, disclosures, and other banking practices, including defending several financial institutions accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recognition as a “Class Action Group of the Year.”
Represented several consumer product and life sciences companies from lawsuits seeking economic damages arising out of the sale of products that allegedly caused personal injuries.
Helping several of the world’s most prominent companies from ESG-related claims accusing them of misrepresenting their practices.

Andrew has also achieved favorable outcomes for clients in commercial and indemnification disputes involving contracts, fraud, and other business tort claims. He helps companies navigate contractual and indemnification disputes with their business partners. Additionally, he provides guidance on arbitration agreements and has helped numerous clients avoid multi-district and class-action litigation by enforcing their arbitration agreements.

As a recognized thought leader on issues impacting class action litigation, Andrew regularly contributes to the firm’s blog, Inside Class Actions, and was recently featured in an interview with Litigation Daily on class-action litigation issues. In recognition of his achievements, he has been recognized by The American Lawyer as a Lawyer of the Week, and the Daily Journal recently included him on their list of Leading Commercial Litigators (2025).

Watch: Andrew shares insights on class action litigation, as part of our Navigating Class Actions video series.

 

Photo of Matthew Verdin Matthew Verdin

Matthew Verdin focuses on defending clients in the technology and financial services sectors. He has a strong record of delivering wins on behalf of clients in class actions and complex litigation, particularly in privacy and consumer protection lawsuits. Matthew is particularly successful in…

Matthew Verdin focuses on defending clients in the technology and financial services sectors. He has a strong record of delivering wins on behalf of clients in class actions and complex litigation, particularly in privacy and consumer protection lawsuits. Matthew is particularly successful in securing dismissals at the pleadings stage. For example, he won dismissal at the pleadings stage of over a dozen wiretapping class actions involving the alleged use of website analytics tools to collect data about users’ website visits. He also advises companies on managing litigation risk under federal and state wiretapping laws.

Matthew is also dedicated to pro bono legal services. Recently, he helped a domestic violence survivor win a case in the California Court of Appeal. Matthew’s oral argument led to the court ordering renewal of his client’s restraining order just one day later.