Democratic lawmakers, consumer advocacy groups seek to intervene in PHH appeal

by Ballard Spahr LLP
Contact

This past Monday, the Democratic Attorneys General of 16 states and the District of Columbia filed a motion with the D.C. Circuit seeking to intervene in the PHH appeal.  Today, two more motions to intervene were filed.  One motion was filed by Democratic lawmakers Senator Sherrod Brown and Representative Maxine Waters who are, respectively, the Ranking Members of the Senate Banking Committee and the House Financial Services Committee.  The other motion was filed by Maeve Brown (who chairs the CFPB’s Consumer Advisory Board), Americans for Financial Reform, Center for Responsible Lending, Leadership Conference on Civil and Human Rights, Self-Help Credit Union, and United States Public Interest Research Group.

Like the Democratic AGs, in claiming that they are entitled to intervene as of right, the new movants rely primarily on the argument that they cannot rely on the CFPB under the Trump Administration to adequately represent their interest in defending the CFPB’s status as an independent agency.  As grounds for why they have a legally protected interest which would be impaired by the litigation, Senator Brown and Representative Waters point to their votes for the Dodd-Frank Act and claim that if the CFPB, acting at the new Administration’s direction, does not defend its constitutionality, “movants’ votes to establish the Bureau as an independent agency will be nullified without full judicial review of the constitutional question presented in this case.”  The consumer advocacy groups rely on their roles as advocates for various consumer interests for their claim that they have a legally protected interest while the credit union movant and Ms. Brown rely on, respectively, the impact of CFPB regulations and enforcement on its members and the need for a CFPB “Director [who] is independent and responsive to the [Consumer Advisory] Board’s recommendations and analysis.”  (The motion states that the credit union has $650 million in assets, which is less than the $10 billion threshold for CFPB supervision.)  According to the advocacy groups, the credit union, and Ms. Brown, the action threatens to impair their interests because of the potential for pending CFPB policy initiatives and enforcement to be derailed if the panel’s ruling stands.

Should the D.C. Circuit deny the petition for en banc rehearing or grant the petition and affirm the panel’s decision, the CFPB would be required under the Dodd-Frank Act to seek approval from the Department of Justice to file a petition with the U.S. Supreme Court for a writ of certiorari.  It is widely assumed the new Attorney General or a new Solicitor General would not give such approval.  In their motion to intervene, the Democratic state AGs, in arguing that their motion would not prejudice any party to the case, stated only that if their “participation is necessary to file a petition for certiorari, they would do so under the normal timing and procedural restraints applicable to such a petition, giving the other parties in this case every ordinary opportunity to be heard in response.”

The new motions go further by explicitly raising the possibility that the new Administration’s Department of Justice may refuse to allow the CFPB to file a petition for certiorari.  In addition, Senator Brown and Ms. Waters state that if en banc review is denied, “movants will file a petition for certiorari with the Supreme Court” while the consumer advocacy groups and other movants state that their intervention is necessary “to ensure that this Court and, if necessary, the Supreme Court of the United States have the ability to reach the merits of this critically important issue. ”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ballard Spahr LLP | Attorney Advertising

Written by:

Ballard Spahr LLP
Contact
more
less

Ballard Spahr LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.