[author: Barbara S. Mishkin]

The CFPB’s participation in a memorandum brief filed by the Department of Justice in support of the constitutionality of a provision of the Fair Credit Reporting Act is the most recent example of the CFPB’s activist approach. As we reported, the CFPB previously announced that it’s committed to filing amicus briefs in cases involving federal consumer financial protection laws, and has already filed amicus briefs in at least four federal appellate court cases involving a Truth in Lending rescission issue and in two federal appellate court cases involving Fair Debt Collection Practices Act issues.

The DOJ’s brief, in which both the CFPB and the Federal Trade Commission joined, was filed on May 3 in King v. General Information Services, Inc., a case that’s pending in the U.S. District Court for the Eastern District of Pennsylvania. The brief defends the constitutionality of 15 U.S.C. Sec. 1681c(a), which includes time limits beyond which consumer reporting agencies (CRA) may not include certain adverse information on credit reports, including information about bankruptcies, civil suits and judgments and accounts placed for collection.

At issue in King is Section 1681c(a)(2), (5) of the FCRA, which generally prohibits CRAs from including arrest records that antedate a credit report by more than seven years. The CRA challenged the provision as a violation of the First Amendment. The DOJ’s brief argues that the provision is a valid restriction on commercial speech under relevant U.S. Supreme Court jurisprudence.

Given that constitutional interpretation doesn’t fall within the CFPB’s designated area of statutory or regulatory expertise, we find the CFPB’s decision to join the DOJ’s brief surprising.