As a way of background, you may wish to read our earlier article on this case. Dallas-based Jones Day partner Durfee has only looked at the CFPB’s case, namely Selia Law. She didn’t check the status of the other cases. If y’all care to read the Burkes’ Renewed Motion to Intervene and Memorandum in Support, you’ll see that she dropped the ball by not doing so (and her pro hac vice colleagues in D.C.).
LIT ain’t spelling it out here, read the Memorandum and you’ll also see the dirty tactics employed by CFPB – as per opposing counsel in another case…
If this information was helpful, donate, share and/or retweet. Have a great day!
MAY 20, 2021 | REPUBLISHED BY LIT: MAY 21, 2021
NOTICE OF SUPPLEMENTAL AUTHORITY
Plaintiffs submit this Notice of Supplemental Authority to apprise the Court of a development in a case first brought to the Court’s attention by Defendants’ Notice of Supplemental Authority of December 30, 2020, ECF 86.
That Notice tried to support the Bureau’s supposed ratification of the Payments Provisions challenged here based on the Ninth Circuit’s decision on remand in CFPB v. Seila Law LLC, 984 F.3d 715 (9th Cir. 2020).
The latter held that the Bureau’s ratification of a civil investigative demand cured the constitutional defect in the demand identified by the Supreme Court in Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020). But as Plaintiffs at the time noted in response, see ECF 87, that demand—merely one step in an enforcement action—did not have to pass through the notice-and-comment process required for final legislative rules like the Payments Provisions.
So whatever the merit of the Ninth Circuit’s decision (which was flawed for other reasons, as Plaintiffs also elaborated), it could not support the Bureau’s position here.
Plaintiffs now draw this Court’s attention to the dissent from the Ninth Circuit’s recent denial of rehearing en banc in that case, which was authored by Judge Bumatay and joined by Judges Callahan, Ikuta, and VanDyke. See CFPB v. Seila Law LLC, No. 17-56324, 2020 WL 9595879 (9th Cir. Dec. 29, 2020, amended May 14, 2021).
That opinion powerfully restates and supports one of Plaintiffs’ several arguments against the sufficiency of the supposed ratification in this case—namely, that “[e]ven if ratification could cure structural constitutional errors” as a general matter, “the CFPB’s ratification here was ineffective because [the Bureau] lacked Executive authority at the time it initiated” the challenged actions, contrary to the familiar “principle of agency law” that “the party ratifying” must have been “able to do the act ratified at the time the act was done.” Id. at *6 (internal citations omitted); see Plaintiffs’ Motion for Summary Judgment, ECF 80, at 14–23.
The Eleventh Circuit’s “White Out” Opinions
Rubbin’ Out Kaplan lawyers criminal fraudulent transfers via fake billing; https://t.co/gSlENYszUE
— LawsInTexas (@lawsintexasusa) November 7, 2020
Dated: May 20, 2021 Respectfully submitted,
/s/ Laura Jane Durfee
MICHAEL A. CARVIN
D.C. Bar No. 366784
Admitted pro hac vice
CHRISTIAN G. VERGONIS
D.C. Bar No. 483293
Admitted pro hac vice
51 Louisiana Avenue NW Washington, DC 20001
Telephone: (202) 879-3939
Facsimile: (202) 626-1700
Counsel for Plaintiffs