The CFPB's Amicus Program - Friend or Foe?

The Consumer Financial Protection Bureau (“CFPB”) is no stranger to ingenuity in the name of regulatory reform. From its novel approaches to consumer research to its creative use of age-old legal strategies, the CFPB is vigorously pursuing its broad mission of making consumer financial products and services work for Americans.

The CFPB’s active amicus program provides yet another example of the Bureau’s use of a familiar legal tool in a new way. Amicus briefs have been used in U.S. litigation for nearly 200 years. And in recent decades, these “friend of the court” briefs have evolved into important tools for litigants and judges alike. Studies indicate that amicus briefs affect success rates in a variety of contexts, but historically prudential banking regulators have used amicus briefs sparingly. Instead, those regulators typically chose to effect change by promulgating formal regulations, rather than advocating in connection with pending litigation.