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Andrew Pincus focuses his appellate practice on briefing and arguing cases in the Supreme Court of the United States and in federal and state appellate courts, as well as on developing legal arguments in trial courts.

Andy has argued 23 cases in the Supreme Court of the United States, four of them in the 2010 and 2011 Terms, including AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011). For his victory in Concepcion, Andy was named Litigator of the Week by the American Lawyer and Appellate Lawyer of the Week by The National Law Journal. Andy’s work in Concepcion and successful defense of Chicago Mayor Rahm Emanuel’s right to run for office were cited by the American Lawyer in its article naming Mayer Brown as one of the top six US litigation firms in the 2012 Litigation Department of the Year report.

Read Andy's full bio.

The dispute over the CFPB acting director designation has moved into federal court.

In yesterday’s post, we explained why the President’s designation of Mick Mulvaney as acting CFPB director complies with the law, and why Mr. Mulvaney—rather than CFPB deputy director Leandra English—qualifies as the lawful acting director.

On the evening of November 26, Ms. English filed a lawsuit against President Trump and Mr. Mulvaney seeking a declaration that she is the lawful acting director.  (Note that Ms. English is represented by private counsel, not by CFPB lawyers.)

Meanwhile, the Justice Department’s Office of Legal Counsel on November 25 issued an opinion supporting the President’s designation of Mr. Mulvaney as acting director.  Among other things, the opinion points out that the Federal Vacancies Reform Act—the statute invoked by President Trump—expressly does not apply to a number of specified positions (in 5 U.S.C. § 3349c), but that the CFPB director is not included in that list.

Finally, the CFPB’s general counsel agrees with the Justice Department’s analysis: Continue Reading CFPB Acting Director – The Controversy Escalates

Richard Cordray is no longer the director of the Consumer Financial Protection Bureau. He resigned as of midnight on November 24.

But—as with so many events relating to the CFPB since its creation in 2010—there is a controversy about what happens next.

Before he resigned, Mr. Cordray appointed Leandra English—who had been serving as the agency’s chief of staff—to the position of deputy director.  And in a note to the Bureau’s employees, Mr. Cordray stated: “upon my departure, she will become the acting Director.”

Hours later, the White House announced that the President “is designating Director of the Office of Management and Budget (OMB) Mick Mulvaney as Acting Director of the Consumer Financial Protection Bureau (CFPB).” It stated that “Director Mulvaney will serve as Acting Director until a permanent director is nominated and confirmed.”

Is the New York Times correct in asserting that the Bureau now has “dueling directors, and there [is] little sense of who actually would be in charge Monday morning”? Continue Reading The CFPB’s Acting Director Is . . .

The anti-arbitration rule issued by the Consumer Financial Protection Bureau in July is now just one short step away from elimination.

The Senate tonight voted 51-50 (with Vice President Pence casting the deciding vote) to invalidate the CFPB’s rule under the Congressional Review Act (CRA). That vote follows the House of Representatives’ disapproval of the rule in July.

The last remaining step is the President’s signature on the legislation, which seems highly likely given the Administration’s statement today urging the Senate to invalidate the rule.

The President’s approval will trigger two provisions of the CRA.

First, the rule “shall not take effect (or continue)” (5 U.S.C. § 801(b)(1)). In other words, the rule no longer has the force of law and businesses are no longer required to comply with its terms.

Second, the CFPB may neither re-issue the rule “in substantially the same form” nor issue a new rule that is “substantially the same” as the invalidated rule—unless Congress enacts new legislation “specifically authoriz[ing]” such a rule (5 U.S.C. § 801(b)(2)). The scope of this “substantially the same” standard has not been addressed by the courts, but it seems clear that at the very minimum the Bureau cannot issue (a) a new rule banning class action waivers; (b) an express ban of pre-dispute arbitration clauses; (c) a rule that has the practical effect of eliminating pre-dispute arbitration clauses; or (d) any other rule that imposes similar burdens on the use of arbitration.

Invalidation of the rule under the CRA also will moot the pending broad-based industry lawsuit against the CFPB challenging the legality of the regulation. (Mayer Brown represents the plaintiffs in the litigation).

Today, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit issued a ruling overturning a $109 million monetary penalty imposed by the Consumer Financial Protection Bureau (“CFPB” or “Bureau”).  The decision in PHH Corporation v. CFPB, written by Circuit Judge Brett Kavanaugh, addressed the unconstitutionality of the Bureau’s structure and its retroactive application of a new RESPA interpretation, and imposed RESPA’s three-year statute of limitations on the Bureau.  Continue Reading Court Rejects CFPB’s RESPA Interpretation, Declares Single-Director Structure Unconstitutional

The controversial decision in Madden v. Midland Funding, LLC, was “incorrect” and “reflects an unduly crabbed conception of [National Bank Act] preemption,” said the Solicitor General and the Office of the Comptroller of the Currency (“OCC”) in the amicus brief filed with the United States Supreme Court on Tuesday.  Still, the Solicitor General and the OCC advised the Court not to review the decision of the Second Circuit in Madden.  They concluded that this just isn’t the right case for the Court to resolve the important questions of whether and under what circumstances the National Bank Act preempts state usury laws for assignees of loans made by national banks. Continue Reading Madden Update: Solicitor General Says the Second Circuit Got it Wrong—But that the Decision Should Still Stand for Now