As the industry continues to digest the Fifth Circuit’s opinion in Community Financial Services Association of America, Ltd. v. Consumer Financial Protection Bureau, which held the Bureau’s funding mechanism to be unconstitutional, new litigation illustrates the challenges that the decision creates to the CFPB’s ability to conduct oversight and enforcement.… Continue Reading
Utah federal court rejects constitutional challenge to CFPB’s funding mechanism
A Utah federal district court has rejected the attempt of The Center for Excellence in Higher Education (CEHE) to invalidate a civil investigative demand (CID) issued by the CFPB based on a challenge to the constitutionality of the CFPB’s funding mechanism.
Pursuant to Dodd-Frank, the CFPB receives its funding through requests made by the CFPB Director to the Federal Reserve, subject to a cap equal to 12% of the Federal Reserve’s budget, rather than through the Congressional appropriations process. … Continue Reading
Walmart challenges FTC’s constitutionality in motion to dismiss
Perhaps ushering in a new wave of similar challenges, Walmart is challenging the FTC’s constitutionality in its motion to dismiss the FTC’s lawsuit filed in June 2022. In the lawsuit, the FTC alleges that Walmart violated Section 5 of the FTC Act and the Telemarketing Sales Rule as a result of its failure to take appropriate measures to detect and prevent third-party fraud in the processing of money transfers sent and received by consumers at its store locations. … Continue Reading
SCOTUS to consider Collins cert petitions on Jan. 10
At its conference this Friday, January 10, the U.S. Supreme Court is expected to consider the petition for a writ of certiorari filed by the plaintiffs in Collins v. Mnuchin and the petition filed by the FHFA and Treasury Department. The case dockets indicate that briefing on the petitions was submitted for Friday’s conference.… Continue Reading
This week’s podcast: The battle over the CFPB’s constitutionality moves to the U.S. Supreme Court: what it means for you
The U.S. Supreme Court has agreed to hear the Seila Law case to decide if the CFPB’s structure violates the U.S. Constitution because the President cannot remove the Director at will. In this podcast, Professor Kent Barnett, University of Georgia School of Law, joins us for a discussion of the current appellate opinions on this issue, the key SCOTUS opinions on the President’s removal authority, the arguments for and against the CFPB’s constitutionality, and the potential remedies for a violation.… Continue Reading
No order from SCOTUS on Seila Law cert petition
Although the Seila Law docket indicated that the briefs on Seila Law’s petition for certiorari were distributed for the U.S. Supreme Court’s October 11 conference, no order on the petition was among the orders issued by the Court yesterday.
Seila Law’s petition seeks review of the Ninth Circuit’s decision that held the CFPB’s structure is constitutional. … Continue Reading
All American Check Cashing and CFPB submit letter briefs to Fifth Circuit
All American Check Cashing and the CFPB have submitted letter briefs to the Fifth Circuit regarding what action the court should take in light of the en banc Fifth Circuit’s decision in Collins v. Mnuchin that held the FHFA’s structure is unconstitutional.
In March 2019, a Fifth Circuit panel heard oral argument in All American’s interlocutory appeal from the district court’s ruling upholding the CFPB’s constitutionality. … Continue Reading
House of Representatives seeks leave from SCOTUS to file amicus brief in Seila Law; Seila Law files reply brief with SCOTUS
House amicus brief. The House of Representatives has filed a motion seeking leave to file an amicus brief in support of the Ninth Circuit’s decision in Seila Law. While acknowledging that the deadline for filing amicus briefs has passed, the House notes that a timely amicus brief would have been due the day after the House received the CFPB’s letter announcing that it would no longer defend its constitutionality in the appellate courts or before the Supreme Court.… Continue Reading
Can All American Check Cashing pass the Fifth Circuit and go straight to SCOTUS in its challenge to the CFPB’s constitutionality?
Rather than wait for a decision from the Fifth Circuit in its interlocutory appeal from the district court’s ruling upholding the CFPB’s constitutionality, All American Check Cashing has filed a Petition for a Writ of Certiorari Before Judgment with the U.S. Supreme Court. (The Fifth Circuit heard oral argument in March 2019 and last month directed the parties to file letter briefs regarding what action the court should take in light of the en banc Fifth Circuit’s decision in Collins v.… Continue Reading
New plot twist: CFPB agrees its structure is unconstitutional; Ballard Spahr to hold Oct. 22 webinar
The long-running saga that is the litigation over whether the CFPB’s single-director-removable-only-for-cause structure is constitutional took a new twist on Tuesday with the CFPB’s announcement that it has determined that its structure is unconstitutional.
On October 22, 2019, from 12:00 to 1:00 p.m. (ET), Ballard Spahr will hold a webinar, “The CFPB’s Constitutionality Goes to the Supreme Court: What It Means.” … Continue Reading