Shortly after the President appointed Richard Cordray and several members of the NLRB through “recess” appointments, Alan Kaplinsky predicted on this blog that there would be litigation over the validity of the recess appointments first with regard to the NLRB, simply because it was likely to result in a “case or controversy” before anything involving the CFPB. 

Last week, a Brookyln apartment complex fulfilled our prediction for the second time, by raising the invalidity of the President’s recess appointments as a defense to an action initiated by the NLRB.  Bloomberg BusinessWeek reported on the case here.  The same issue was raised in another NLRB case that Keith Fisher blogged about here.  Thus, there are now two NLRB-related cases in which the validity of the recess appointments may be decided.

Because of the obvious implications of any ruling with respect to the validity of the appointment of Mr. Cordray as CFPB Director, we will be watching the proceedings in the New York case, which is styled Paulsen v. Renaissance Equity Holdings LLC, No. 12-cv-350, in the U.S. District Court for the Eastern District of New York.