On September 17, 2018, four Amici filed briefs in the CFPB’s case against All American Check Cashing, which is now before the Fifth Circuit Court of Appeals. The Court is considering whether the structure of the CFPB is constitutional and what impact its structure, right or wrong, has on its ability to continue to prosecute claims against regulated entities.… Continue Reading
A petition for certiorari was filed in the U.S. Supreme Court late last week by State National Bank of Big Spring (SNB) which, together with two D.C. area non-profit organizations that also joined in the petition, had brought one of the first lawsuits challenging the CFPB’s constitutionality.
Originally filed in 2012 in D.C.… Continue Reading
As we discuss below, President Trump’s nomination of D.C. Circuit Judge Brett Kavanaugh to serve as a Justice of the U.S. Supreme Court could have significant implications for all federal agencies should Judge Kavanaugh be confirmed. However, in light of Judge Kavanaugh’s rulings in the PHH case, the implications for the CFPB could be even more consequential.… Continue Reading
American Banker has reported that that CFPB is planning to dismiss its lawsuit against PHH. According to the American Banker report, the CFPB and PHH have issued a joint statement in which the parties confirm that they have conferred and agreed to recommend the dismissal and request that Acting Director Mulvaney proceed to dismiss the CFPB’s administrative proceeding.… Continue Reading
Neither PHH Corporation nor the CFPB has filed a petition for certiorari asking the U.S. Supreme Court to review the D.C. Circuit’s en banc PHH decision. The filing deadline was May 1.
In that decision, which was issued on January 31, the D.C. Circuit ruled in favor of PHH on its challenge to the CFPB’s RESPA interpretation but rejected PHH’s challenge to the CFPB’s constitutionality based on its single-director-removable-only-for-cause structure.… Continue Reading
On January 31, 2018, the en banc D.C. Circuit handed down its opinion in the PHH v. CFPB case, which we’ve discussed at length. It held, 7 to 3, that the CFPB’s single-director-removable-only-for-cause structure is constitutional but that the CFPB’s interpretation of RESPA was wrong.
En Banc Court Reinstates Panel’s RESPA Ruling
The en banc Court reinstated the RESPA-related portions of the D.C.… Continue Reading
On January 12, 2018, the U.S. Supreme Court agreed to hear the Lucia case in which Raymond J. Lucia is challenging how the SEC appoints administrative law judges (“ALJs”). He argues that ALJs are “inferior officers” who must be appointed by the President, the courts, or a department head in accordance with the Constitution’s appointments clause.… Continue Reading
On July 21, 2017, an investment adviser sought review by the Supreme Court of the D.C. Circuit’s recent ruling in Lucia that allowed to stand a district court decision holding that SEC administrative law judges (“ALJs”) are not officers subject to the appointments clause of the U.S. Constitution. We’ve blogged about Lucia extensively because the issue in that case has the potential to impact the outcome of the PHH case.… Continue Reading
On June 7, the CFPB submitted a Rule 28(j) letter to the D.C. Circuit in the PHH case. In the letter, the CFPB embraced the fact that the Supreme Court’s recent Kokesh v. SEC decision makes the five-year statute of limitations in 28 USC § 2462 applicable to disgorgement remedies in CFPB administrative proceedings. … Continue Reading
Clients are always asking me and others in our Consumer Financial Services Group about how long Richard Cordray will remain as CFPB Director. The short answer is nobody knows, perhaps not even Richard Cordray. There are a number of factors, however, that lead me to believe that he will remain as Director until the end of his term on July 16, 2018 unless he voluntarily resigns before then to run for Governor of Ohio.… Continue Reading