InfoBytes Blog

FSOC agrees to dismiss SIFI designation appeal

On January 23, the U.S. Court of Appeals for the D.C. Circuit dismissed an appeal by the Financial Stability Oversight Council (FSOC) after both parties filed a joint stipulated motion to voluntarily dismiss the case. The litigation began in 2015 when a national insurance firm sued FSOC over its designation of the firm as a nonbank systemically important financial institution (SIFI). In March 2016, the district court issued its opinion agreeing with the insurance firm and finding the FSOC determination arbitrary and capricious because it failed to consider the financial impact the SIFI designation would have on the firm. FSOC appealed the court’s ruling but after a change in FSOC leadership, agreed to jointly dismiss the appeal with the insurance firm.

For more InfoBytes coverage on SIFIs, click here.

Courts SIFIs Nonbank Supervision FSOC DC Circuit Appellate

Special Alert: D.C. Circuit Grants Petition For Rehearing in PHH v. CFPB; Vacates Judgment Based on Bureau’s Unconstitutionality

Buckley Sandler Special Alert

On February 16, the U.S. Court of Appeals for the D.C. Circuit granted the CFPB’s petition for rehearing en banc of the October 2015 panel decision in CFPB v. PHH Corporation. Among other things, the panel decision declared the Bureau’s single-Director structure unconstitutional and would have allowed the President to remove the CFPB’s Director at will rather than “for cause” as set forth in the Dodd-Frank Act. As a result of the petition for rehearing being granted, the panel’s judgment is vacated and the full D.C. Circuit will hear PHH’s appeal of the $109 million penalty imposed by the CFPB under the anti-kickback provisions of the Real Estate Settlement Procedures Act (RESPA). Oral argument is scheduled for May 24, 2017.

As discussed in detail in our prior alert, the October panel decision unanimously concluded that the CFPB misinterpreted RESPA, violated due process by disregarding prior interpretations of the statute and applying its own interpretation retroactively, and failed to abide by RESPA’s three-year statute of limitations. However, only two of the three judges on the panel concluded that the CFPB’s status as an independent agency headed by a single Director violated the separation of powers under Article II of the U.S. Constitution. The third panel member, Judge Henderson, dissented from this portion of the opinion on the grounds that it was not necessary to reach the constitutional issue because the panel was already reversing the CFPB’s penalty on other grounds.

Click here to read full special alert

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If you have questions about the decision or other related issues, visit our Consumer Financial Protection Bureau practice for more information, or contact a BuckleySandler attorney with whom you have worked in the past.

Courts Appellate DC Circuit PHH v. CFPB RESPA Mortgages CFPB Special Alerts Single-Director Structure

Full D.C. Circuit Orders PHH to Respond to CFPB's Petition for En Banc Review, Invites U.S. Solicitor General to Provide Views

On November 23, the full D.C. Circuit ordered PHH to respond to the CFPB's petition for en banc review of the October 2016 three-judge panel decision in PHH Corp. v. CFPB. The CFPB’s November 18 petition challenged, among other things, the conclusion by the majority of the panel that the CFPB's structure was unconstitutional and that, to remedy this defect, the Director must be removable at will by the President. PHH’s response, which is due by December 8, would not have been permitted without the court’s order. Similarly, the CFPB is not permitted to file a reply unless ordered by the court.  Importantly, the en banc court also “invited” the U.S. Solicitor General “to file a response to the petition” to “express[] the views of the United States.” Although there is no deadline for this response, the invitation allows the Solicitor General to respond before the change in administration, which may be significant because the Dodd-Frank Act does not allow the CFPB to petition the Supreme Court for review without the approval of the Attorney General (12 USC § 5564(e)).

For additional background, please see our summaries of the panel decision and the CFPB's petition for rehearing.

Federal Issues Consumer Finance CFPB U.S. Supreme Court PHH v. CFPB Cordray DC Circuit Single-Director Structure