AGGRESSIVE ENFORCEMENT EFFORTS CAUSE STIR
For months, banking industry advocates have bemoaned the aggressive tactics of the Consumer Financial Protection Bureau — but there’s been scant public evidence of enforcement efforts. That’s changing. Last week, the CFPB announced a $214 million settlement with Discover Financial Services for deceptive marketing.
But what’s really caught the attention of the consumer-finance bar is a petition by mortgage lender PHH Corp., which filed the first-ever challenge to a CFPB civil investigative demand, calling the agency’s request for information “overly broad and unduly burdensome.” On September 20, CFPB head Richard Cordray denied the petition and ordered the company to produce relevant documents within 21 days.
To Venable of counsel Jonathan Pompan, who was not involved in the case, the action provides the first-ever public “window into the bureau’s view of its aggressive ability to investigate,” he said. “The bureau’s supporters will likely view this as its appropriate role and critics will say that this is validation of their concerns about its power.” — Jenna Greene
D.C. TOUTS NEW EFFORTS TO FIGHT DRUNK DRIVING
Driving drunk is always a bad idea, but drivers in the Washington area just got another reason not to do it — breath alcohol testing is back in business. City officials suspended breath testing in 2010 after finding that its machines were incorrectly calibrated, yielding blood alcohol levels that were too high by as much as 30 percent.
Controversy and, naturally, litigation ensued. The city continued to prosecute drunk drivers in the interim, relying on urine and other sobriety tests, but the resumption of breath testing means law enforcement has another tool back on hand. The announcement that testing would resume on September 28 comes as the city recently finalized settlement agreements with a group of drivers who sued over the wrongly calibrated machines. According to a release from Mayor Vincent Gray (D), the Metropolitan Police Department worked with the Office of the Attorney General and the Office of the Chief Medical Examiner to develop new “state-of-the-art” software.
On August 1, the city also adopted tougher penalties for driving under the influence. “With the new statute and the new, state-of-the-art equipment, we are now well positioned to combat impaired driving,” Attorney General Irvin Nathan said in a statement. — Zoe Tillman
LOBBYISTS STRIKE OUT IN COURT
The latest round in the fight over the White House’s restrictions on the lobbying industry was won by the president. U.S. District Judge Amy Berman Jackson on Wednesday threw out a suit brought by six lobbyists against the government over the Obama administration’s ban on federal lobbyists sitting on agency boards and commissions. The lobbyists, who sought appointment or reappointment to industry trade advisory committees (ITAC) overseen by the Commerce Department and U.S. Trade Representative, alleged that the prohibition infringed on their right to petition the government and used an unlawful classification that penalizes them. They sued for “a declaration that this policy is unconstitutional” and for the consideration of their ITAC applications, according to the complaint. The ban “does not offend the Constitution, and it is rationally related to a legitimate government aim,” Jackson wrote. “Obviously, we’re disappointed,” said Erik Autor, one of the plaintiffs. But Autor, vice president and international trade counsel at the National Retail Federation, said he wasn’t sure yet if he and his co-plaintiffs would appeal the ruling. “I think that’s premature,” he said. — Andrew Ramonas
Kwame Brown, the former District of Columbia Council chairman who pleaded guilty this year to bank fraud, is potentially in trouble again. But the reason most likely won’t be officially revealed for another week. On September 26, U.S. District Judge Richard Leon posted a notice on Brown’s docket scheduling a “Hearing on Violation” for October 9. No other information was included and, so far, no one is talking. The U.S. attorney’s office and the court declined to comment. Brown’s lawyer, Frederick Cooke Jr. of Washington’s Rubin, Winston, Diercks, Harris & Cooke, didn’t return requests for comment. The D.C. Pretrial Services Agency, the federal entity overseeing Brown’s supervised release pending sentencing, declined to comment as well. After pleading guilty to bank fraud in federal court in June — and to a campaign finance law violation the same day in District of Columbia Superior Court — Brown was released on the condition that he report in weekly by phone to pretrial services. He was ordered to stay within the D.C. area, but received the court’s permission twice to travel over the summer. Brown is scheduled for sentencing on November 12. — Zoe Tillman
Libertarian presidential candidate Gary Johnson wants to be included in the three upcoming presidential debates. So Johnson, the former GOP governor of New Mexico slated to appear on ballots in all 50 states, filed a lawsuit in California on September 21 to force his way in. Johnson’s lawsuit argues the selection and timing of those polls is secretive, and that the Republican and Democratic parties conspired earlier this year to agree to rules that would restrain him from participating in the electoral process. But the Commission on Presidential Debates says Johnson does not meet its requirement to have the support of at least 15 percent of the national electorate. Johnson is using the Sherman Act to argue for a restraining order to restore a “level and honest playing field.” Said Jim Gray, Johnson’s vice-presidential running mate and a retired superior court judge in California: “It’s crucial for our campaign, as well as the American voters to be able to listen to alternatives.” — Todd Ruger
From time to time, the U.S. Court of Appeals for the D.C. Circuit hears sealed matters in open court. Judges and lawyers in those cases refrain from identifying the names of the people involved. A sealed case last week, however, was shuttered to the public. On September 25, Judge Merrick Garland, sitting with judges Thomas Griffith and Brett Kavanaugh, said the court had to hear a grand jury matter. The docket didn’t reveal the name of the person involved, but the underlying decision — which was unsealed and redacted — was rooted in a tiff over search warrants targeting Washington businessman Jeffrey Thompson. U.S. District Chief Judge Royce Lamberth ruled against Thompson, represented by a team from Williams & Connolly. Firm partner Alex Romain was in the appeals court last week for the hearing. He didn’t return a message seeking comment. Deborah Connor with the U.S. attorney’s office attended the hearing with a team of assistant U.S. attorneys. A spokesman for the office, William Miller, declined to comment. — Mike Scarcella
SKY AND THUNDER
Roy McLeese III’s colleagues spoke highly of his abilities during his September 21 investiture to become the newest judge on the District of Columbia Court of Appeals. D.C. Superior Court Judge Florence Pan said McLeese, former acting deputy solicitor general, and appellate division chief in the U.S. attorney’s office in D.C., has always been willing to share his vast legal knowledge. “In my eyes, he was like a Zeus of the law,” she said. Paul Strauss, a D.C. attorney and a shadow senator for the District, said, “D.C. is lucky to have someone of his qualifications.” — Don Tartaglione