That was the message delivered by CFPB Assistant Director, To-Quyen Truong, at a program entitled “The CFPB’s Amicus Program and Trends in Consumer Litigation” sponsored by the Committee on Consumer Financial Services of the Business Law Section, which took place at the American Bar Association Annual Meeting on Saturday, August 10 in San Francisco. Ms. Truong explained that the program’s goal is to assist federal appellate and state supreme courts by presenting the Bureau’s views on issues of federal consumer financial law in cases that may have a substantial impact on how that law is interpreted and applied.
Addressing the Bureau’s moderate success rate of 55% – it has filed 11 amicus briefs and 6 courts have agreed, at least in part, with its position – and the often complex issue of the deference to which the Bureau is entitled, Ms. Truong stated that what was most important was for the Bureau to be a true friend to the court and to provide “fulsome information and analysis” to the court regardless of what the outcome is to be.
Alan Kaplinsky has blogged about the concerns raised over the transparency of the amicus program since it does not allow for any public notice and comment period. I asked Ms. Truong whether the Bureau would begin to offer a notice and comment period, even if only to the interested parties, in an effort to satisfy its oft-stated goal of being transparent and to ensure that it has input across all constituencies, including industry. Although Ms. Truong did not flat out reject the notion, she advised that a notice and comment period is not necessary because the Bureau is simply providing courts with its firmly established opinion on an issue over which it has regulatory authority and is “not making law.” She further noted that the amicus process does not lend itself to even discrete notice and comment opportunities.
However, responding to a comment from her co-panelist, Ms. Truong suggested that the Bureau may take under advisement the possibility of issuing a public notice prior to filing an amicus brief that would not have a comment period. It is an interesting debate whether the amicus process truly does not lend itself to a notice and comment period involving at least the interested parties. But the more interesting debate is whether the Bureau is “making law” by advancing its position to courts that will issue precedential authority on the topic. It is indisputable that the Bureau is, at a minimum, advancing the law through its amicus program. As a result, a pre-filing, public notice even without a comment period, is a good idea and satisfies the Bureau’s stated goal of providing the Court with “fulsome information.”