PHH v. CFPB En Banc Oral Argument Recap: Who Won?

Consumer Financial Services Alert

May 25, 2017
Consumer Financial Services Alert

PHH v. CFPB En Banc Oral Argument Recap: Who Won?

The Skinny on the Scuffle

During the 1 hour and 36 minute debate held on May 24, the parties and the full D.C. Circuit Court engaged in a lively and passionate back and forth, mostly over the constitutionality of the Bureau. A very small portion of the debate reflected discussion regarding the underlying RESPA issues, including applicable statute of limitations.

As is usually the case with debate over cases with powerful implications like this one, the judges asked in depth questions on both sides making the outcome difficult to predict. Some of the judges hinted at the necessity of the Supreme Court to decide at least some of the issues.

The major debate was centered on: (1) the diminishment, if any, of the President's ability to faithfully execute the laws; (2) the effect and nature of the for-cause removal provisions; (3) the single director structure v. multi-member commission structure; (3) the effect and nature of the Bureau's other structural features, such as budget & appropriations; and, (4) departure, if any, from historical traditions and ideals.  

The Key Cases Discussed

The questions lobbied from the court mostly asked the parties to opine on the precedential value and contours of the following cases:

The United States' Position

The United States stuck to its script in arguing that a multi-member commission is the way to resolve the Bureau's unconstitutional structure. Even when baited to suggest other approaches to provide balance to the Bureau's structure, the DOJ's attorney wouldn't bite and pivoted back to the multi-member commission.

The Most Noteworthy Questions, Hypotheticals, & Quotes

I think the following sample of quotes, which to me are most memorable from the argument, tell the story well, make you think, and if you get down far enough in my list, you will even see the one place people laughed:

Read the basics that set the stage for the en banc hearing.

Listen to the oral argument.

Vaishali is a regulatory & compliance attorney in Hinshaw & Culbertson's Consumer Financial Services practice. She previously served as a Supervising Attorney in IL Attorney General Lisa Madigan's Consumer Fraud Bureau where she worked on health and financial fraud matters, including on matters concerning the CFPB.

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.