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Today’s podcast features Stephen Calkins, a law professor at Wayne State University in Detroit and former General Counsel of the Federal Trade Commission (the “FTC”).

President Trump recently fired, without good cause, the two Democratic members of the FTC, leaving only two Republican members as commissioners. He did this even though the FTC Act provides that a commissioner may be fired by the President only for good cause and that the commission is to be governed by a bi-partisan 5-member commission This is the third time in the past few weeks that Trump has fired without good cause democratic members of other federal agencies; the other two being the National Labor Relations Board (The “NLRB”) and the Merit Selection Protection Board (The “MSPB”).… Continue Reading

The CFPB announced earlier this week that it has entered into a Memorandum of Understanding (MOU) with the National Labor Relations Board (NLRB) that is intended to “help to identify and end financial practices that harm workers and to enhance the enforcement of federal consumer financial protection and labor laws and regulations.” … Continue Reading

The dark cloud that has been hanging over CFPB Director Richard Cordray’s recess appointment just got darker.  In a 2-1 decision in NLRB v. New Vista Nursing and Rehabilitation, the U.S. Court of Appeals for the Third Circuit ruled today that, under the U.S. Constitution’s Recess Appointments Clause (RAC), the President may only make recess appointments during an intersession recess. … Continue Reading

“Can we duck the [recess appointments] issue?”  That question was asked yesterday by one of the members of the Third Circuit three-judge panel hearing oral argument on the National Labor Relation Board’s application to enforce its order in NLRB v. New Vista Nursing.
New Vista, like the Noel Canning v.… Continue Reading

Five-time “Jeopardy!” champion Richard Cordray is now facing a different kind of jeopardy.   The validity of his recess appointment on January 4, 2012 as CFPB Director is under a dark cloud as a result of last Friday’s  decision by the U.S. Court of Appeals for the D.C. Circuit holding that the President’s contemporaneous recess appointments of three National Labor Relations Board members violated the U.S.… Continue Reading

Earlier today, we reported on the panel discussion of the lawsuit filed by State National Bank of Big Spring that took place at the ABA Committee on Consumer Financial Services in Naples, Florida during a session entitled “State National Bank of Big Spring, et al. v. Geithner, et al. – Is the CFPB Constitutional?” … Continue Reading

Because of their potential implications for the validity of CFPB Director Cordray’s appointment, we have been following several pending cases challenging the National Labor Relations Board’s authority to take various actions based on the alleged invalidity of President Obama’s recess appointment of three individuals to the NLRB.

On December 26, the Seventh Circuit issued an opinion in Richards v.… Continue Reading

Recently, 38 Republican Senators signed a document in which they vowed to submit an amicus brief in support of litigation challenging President Obama’s appointments of Richard Cordray and the three new members of the NLRB. Last month, we reported on a case challenging the NLRB appointments that is pending in the U.S.… Continue Reading

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. … Continue Reading

 Although there has been much discussion during the past week as to the legality of President Obama’s appointment of Richard Cordray as the first Director of the CFPB, there has been little discussion of the President’s appointment at the same time of three individuals to fill vacancies on the National Labor Relations Board (NLRB).… Continue Reading