On August 21, 2012, the Consumer Financial Protection Bureau (“CFPB”) published a notice of intent to make a preemption determination on whether provisions of abandoned property laws in Maine and Tennessee relating to gift cards should be preempted by the federal Electronic Fund Transfer Act (“EFTA”), as implemented by Regulation E (“Notice”). In issuing the Notice, the CFPB is exercising its authority under Section 922 of the EFTA, which provides that the “Bureau shall, upon its own motion or upon the request of any financial institution, State or other interested party . . . determine whether a State requirement is inconsistent or affords greater protection.”

Morrison & Foerster LLP submitted the request to preempt Tennessee law in May on behalf of concerned representatives of the payment card industry. The firm also submitted a similar request with respect to New Jersey law, which was mooted by a recent change in New Jersey law.