CFPB files another motion to dismiss in D.C. case challenging Cordray appointment

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Because it includes a challenge to Director Cordray’s appointment, we continue to follow the case filed this past June in federal court in Washington, D.C. by State National Bank of Big Spring against the CFPB, the Department of Treasury, Richard Cordray, and a number of other federal officials. The original plaintiffs also included two non-profit organizations in the metropolitan Washington, D.C. area. In September 2012, the complaint was amended to add three state Attorneys General as plaintiffs and, last month, a second amended complaint was filed adding eight more state AGs as plaintiffs. The second amended complaint made no changes to the plaintiffs’ substantive claims.

The CFPB and other defendants have now filed a motion to dismiss the second amended complaint. The motion does not address the merits of the plaintiffs’ challenge to Mr. Cordray’s appointment. Instead, the defendants renew the standing arguments made in support of their motion to dismiss the first amended complaint. The defendants argue that SNB lacks standing to challenge the appointment because it has failed to allege that the CFPB has taken any action, under Director Cordray’s supervision or otherwise, that has injured SNB or that any such action is imminent. As they did previously, the defendants assert that the CFPB has no direct enforcement authority over SNB because the bank has less than $10 billion in assets, and that any enforcement action by the OCC based on a Bureau regulation or guidance or the Bureau’s recommendation is entirely speculative. They also argue that while SNB claims it stopped providing remittances because of the costs associated with complying with the remittances regulation, it has not alleged facts sufficient to demonstrate it will be subject to the regulation.

Separate responses opposing the motion to dismiss have been filed by the private plaintiffs and the state AGs.