September 14, 2023

[Webinar] Responding to Student Borrower Defense to Repayment (BDR) Claims: 2023 Edition

September 21st, 2:00 pm - 3:00 pm CDT

Jeff Fink, Scott Goldschmidt, Aaron Lacey

Thompson Coburn LLP

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Thompson Coburn LLP

September 21st, 2023

2:00 PM - 3:00 PM CDT

Under the Higher Education Act, the U.S. Department of Education is directed to issue regulations governing when student borrowers may seek to discharge their federal student loans due to the misconduct of their institutions of higher education. These regulations—called the “Borrower Defense to Repayment” (“BDR”) regulations—first originated in 1994, but until recently, resulted in only a handful of claims by students seeking to discharge their federal student loans.

During the Obama administration, the Department undertook a wholesale revision of the BDR regulations, encouraged students to file BDR claims, and signaled that it would aggressively seek to hold institutions liable for federal student loans that the Department discharged. During the Trump administration, the Department revised the BDR regulations and proposed a new approach for the processing of thousands of pending student BDR claims, which resulted in litigation against the Department. The Biden administration revised the BDR regulations yet again; however, enforcement of the Biden administration’s version of the rule was enjoined by the Fifth Circuit Court of Appeals on August 7, 2023. Nevertheless, the Department is aggressively processing and investigating the backlog of student BDR claims, including as required under the settlement reached in the Sweet v. Cardona litigation.

Thompson Coburn’s Higher Education Practice is pleased to announce that the next entry in its Higher Education Webinar Series will explore the BDR regulations as to student loan discharges, the Department’s processing of student BDR claims, and the litigation concerning the Department’s practices as to BDR claims. The webinar will then turn to a discussion about how an institution can best respond to BDR claims and attempt to avoid potential liability for federal student loans discharged by the Department.

The upcoming webinar will be presented by Aaron Lacey, Chair of the Firm’s Higher Education Practice and Jeff Fink and Scott Goldschmidt, Firm partners who have helped respond to several hundred student BDR claims.

CLE:
California: 1.00 general
Illinois: 1.00 general
Missouri: 1.20 general
New York: 1.00 professional practice (experienced and transitional)
Texas: 1.00 general

Speakers:

Aaron Lacey

Aaron Lacey
Partner, Thompson Coburn LLP

Aaron’s practice is dedicated entirely to helping institutions of higher education navigate complex legal and regulatory matters. He has significant experience in the array of federal, state, and accrediting agency laws and standards that govern postsecondary institutions, and is a frequent writer and speaker on topics relating to higher education policy and the federal financial aid programs.

In 2018, Aaron served the U.S. Department of Education as one of 17 negotiators charged with overhauling the Department's complex and controversial "borrower defense" rule. The Department selected Aaron to represent and negotiate on behalf of general counsels, attorneys and compliance officers at postsecondary institutions nationwide.

Aaron regularly represents institutions in administrative proceedings before state licensing entities, accrediting agencies, and the U.S. Department of Education, including matters arising from audits, program reviews, and investigations of the Office of Inspector General.

In support of institutional initiatives, he assists clients in drafting and negotiating a wide variety of agreements, including domestic and international articulation, consortium, licensing, marketing, and agency contracts, and in the case of postsecondary mergers and acquisitions, stock and asset purchase agreements. Aaron also assists with the management of regulatory and government agency relationships, policy creation and implementation, strategic planning, and compliance systems design.

Aaron is a member of the National Association of College and University Attorneys and of the American Bar Association.

Jeff Fink

Jeff Fink
Partner, Thompson Coburn LLP

Jeff helps all types of businesses navigate complex litigation, arbitration, class action, regulatory and transactional matters in venues across the country.

Drawing on his two decades of experience, he drills down on complex problems, pinpoints the core factual and legal issues at stake, and develops strategies for resolving disputes and facilitating business deals in an expeditious and cost-effective manner. Jeff works closely with a client's employees and executives to help them prepare for their role in a case and put them at ease during the litigation and negotiation process.

Jeff advises higher education institutions in lawsuits and arbitrations brought by former students, state attorneys general, and government regulatory agencies in multiple jurisdictions; in program reviews and audits by the U.S. Department of Education; in accreditation disputes; and in issues with federal and state regulators. He also represents health care providers seeking to recover amounts owed by payors and defending class actions concerning billing practices. In the financial services arena, Jeff has represented banks and automotive finance companies facing lender liability and discrimination claims. He has also consulted public pension systems on various litigation and benefits issues.

Scott Goldschmidt

Scott Goldschmidt
Partner, Thompson Coburn LLP

A member of Thompson Coburn’s Higher Education Practice, and the former Deputy General Counsel for Catholic University, Scott understands the unique challenges that higher education clients face and how to best help them achieve their goals. Drawing on his experience in a university general counsel's office, Scott brings a practical, in-house perspective to the challenging legal, regulatory, and compliance issues faced by postsecondary institutions. Scott is well-versed in managing all types of day-to-day and long term legal demands facing institutions of higher education, and routinely assists institutions with matters involving discrimination law, student affairs, contract drafting and review, and policy development. He also has experience with crisis management, advising on reputational concerns, and implementing controls to mitigate risk. Scott is a graduate of George Washington University and of the Catholic University of America Columbus School of Law. He also is a member of the National Association of College and University Attorneys and of the American Bar Association.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.