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Last week’s News Flash alerted readers that a second federal appellate court has now invalidated a NLRB recess appointment as incompatible with the meaning of the phrase, “the Recess of the Senate” in the Recess Appointment Clause of the Constitution. The result in the Third Circuit case, NLRB v. New Vista Nursing & Rehabilitation, though identical to the D.C.… Continue Reading

Based on a Reuters article quoting counsel for Noel Canning, Gary Lofland, I had previously indicated that the Respondent would not oppose certiorari in the case.  I have now confirmed that report by telephone conversation with Mr. Lofland, who indicates that he plans later this week to make a filing advising the Supreme Court that Respondent does not oppose the granting of certiorari.  … Continue Reading

As reported in last week’s news flash, the Solicitor General (S.G.), as expected, has, on behalf of the NLRB, filed in the Supreme Court a petition for a writ of certiorari to the D.C. Circuit in the Noel Canning case. As we have noted previously, the Noel Canning decision, which invalidated the recess appointments of three NLRB members as incompatible with the Recess Appointments Clause of the Constitution (the “RAC”), also cast a cloud over the validity of the contemporaneous recess appointment of Richard Cordray as CFPB Director.… Continue Reading

Earlier this week, the CFPB announced that it has created a new office intended to “enhance collaboration and communication” between the CFPB and bank and nonbank trade associations, financial institutions, and businesses. Named the “Office of Financial Institutions and Business Liaison,” the new office will be run by Dan Smith who will serve as the office’s Assistant Director.  … Continue Reading

A petition for certiorari seeking review of the D.C. Circuit’s January 2013 decision in Noel Canning vs. NLRB has been filed in the U.S. Supreme Court. That decision, which we have blogged about before, held that President Obama’s January 4, 2012 recess appointments of three members to the National Labor Relations Board were invalid under the Recess Appointments Clause of the Constitution.… Continue Reading

Not only did the Senate Banking Committee hearing this morning on Richard Cordray’s nomination to be CFPB Director produce no fireworks, there were moments when Committee members seemed to forget he was in the hearing room.  Mr. Cordray appeared before the Committee together with Mary Jo White, on whose nomination to head the SEC the Committee simultaneously conducted a hearing. … Continue Reading

The Senate Banking Committee has announced that it will hold a hearing on Richard Cordray’s nomination to be CFPB Director on March 12.   While we would like to believe that the setting of a hearing date is a sign that Democratic committee members are making progress in reaching a deal with their Republican colleagues, it seems more likely that it is designed to provide an opportunity for more political posturing.… Continue Reading

According to a report today from POLITICO Pro Finance, the Senate Banking Committee has tentatively set March 11 as the date for a hearing on Richard Cordray’s renomination as CFPB director.  Given that Senator Tim Johnson, the Committee chair, is a Democrat, the scheduling could be a sign that progress is being made on reaching a deal between Democrats and Republicans who have vowed to block the nomination without a change to the CFPB’s budget and organizational structure. … Continue Reading