Corporate Law

CFPB Ruled Structurally Unconstitutional: PHH v. CFPB

Financial Services & E-Commerce Practice Group Teleforum Monday, October 24, 02:00 PMFederalist Society Teleforum Conference Call

The creation of the Consumer Financial Protection Bureau was one of the crown jewels in the Dodd-Frank Financial Reform legislation. The CFPB is unique in American constitutional history in that it deliberately combines a huge degree of regulatory power with minimal accountability to the democratic branches of government. Under Dodd-Frank, the CFPB is headed by a single director appointed for a five-year term and removable by the Presidentonly for cause. In addition, the CFPB draws its budget from outside the Congressional appropriations process, being directly funded by the Federal Reserve.

On October 11 the DC Circuit ruled in the case of PHH Mortgage v. Consumer Financial Protection Bureau. The ruling for the Court concluded that it was unconstitutional to create an independent agency headed by a single director removable only for cause. As a remedy, the court ordered the severance of the for cause removal provision, thereby rendering the head of the CFPB removable at-will by the President and converting the agency from an independent agency to an executive agency. In addition, the Court reversed the ruling of the CFPB's Director Richard Cordray on the facts of the immediate case, in which Director Cordray had increased the fine from $6 million (the amount imposed by an administrative judge) to $109 million. This teleforum will explore the reasoning of the PHH case and the implications for the CFPB and for the future of the administrative state.


  • Prof. Todd J. Zywicki, Foundation Professor of Law and Executive Director of the Law & Economics Center, Antonin Scalia School of Law, George Mason University

  • Thomas M. Hefferon, Partner, Goodwin Procter LLP

A Look Back, and a Look Forward: A Discussion with Three Former SEC Commissioners - Event Audio/Video

Sponsored by the Federalist Society's Corporations, Securities & Antitrust Practice Group
Paul S. Atkins, Annette L. Nazareth, Troy A. Paredes, Jeffrey T. Dinwoodie, Dean A. Reuter June 14, 2016

Three former SEC Commissioners reflect on their tenures at the SEC and also provide their perspectives on several of today’s most important financial regulatory issues and questions.

This panel was sponsored by the Federalist Society's Corporations, Securities & Antitrust Practice Group on June 1, 2016, at the National Press Club in Washington, DC.


  • Hon. Paul S. Atkins, Chief Executive, Patomak Global Partners, LLC (SEC Commissioner 2002-2008)
  • Hon. Annette L. Nazareth, Partner, Davis Polk & Wardwell LLP (SEC Commissioner 2005-2008)
  • Hon. Troy A. Paredes, Founder, Paredes Strategies LLC (SEC Commissioner 2008-2013)
  • Moderator: Jeffrey T. Dinwoodie, Associate, Davis Polk & Wardwell LLP
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

National Press Club
Washington, DC

Amgen Inc. v. Harris - Post-Decision SCOTUScast

SCOTUScast 2-24-16 featuring George Conway
George T. Conway III February 24, 2016

On January 25, 2016, the Supreme Court decided Amgen Inc v. Harris without oral argument. Former employees of an Amgen subsidiary had participated in a benefit plan that offered ownership of Amgen stock. When the value of Amgen stock fell in 2007, stockholders filed a class action against plan fiduciaries alleging a breach of fiduciary duties, including the duty of prudence, under the Employee Retirement Income Security Act of 1974. Although the U.S. Court of Appeals for the Ninth Circuit initially reversed a district court decision dismissing the class action complaint, the U.S. Supreme Court then vacated the Ninth Circuit’s judgment and remanded the case in light of the Supreme Court’s then-recent decision Fifth Third Bancorp v. Dudenhoeffer, which set forth the standards for stating a claim for breach of the duty of prudence against fiduciaries who manage employee stock ownership plans. 

On remand, the Ninth Circuit reiterated its conclusion that the plaintiffs’ complaint stated a claim for breach of fiduciary duty, and the Supreme Court again granted certiorari. In a per curiam opinion the Court reversed the judgment of the Ninth Circuit by a vote of 9-0, holding that the Circuit had failed to properly evaluate the complaint. In its current form, the Supreme Court concluded, the complaint failed to state a claim for breach of the duty of prudence. In remanding the case, however, the Court indicated that the district court could decide in the first instance whether the stockholders might amend their complaint in order to adequately plead a claim for breach of the duty of prudence.

To discuss the case, we have George T. Conway III, who is Partner, Litigation at Wachtell, Lipton, Rosen & Katz.

Corporate Inversions: Tax Dodge, or Symptom of the Tax Code? - Podcast

Administrative Law & Regulation Practice Group Podcast
Mihir A. Desai, Stephen E. Shay January 29, 2016

Corporate inversions are transactions, such as mergers or acquisitions, that involve a U.S. and foreign headquartered firm and result in the newly formed firm being headquartered outside the U.S. As a result, it can legally lower its U.S. taxes and enjoy parity with its foreign based competitors. Noting the resulting erosion to the U.S. tax base, critics argue that absent Congressional action the U.S. Treasury has a responsibility to fully utilize its existing authorities to combat this practice. But others are concerned that attempting to do so without addressing the underlying problems with the U.S. tax code will create even greater harm to the U.S. economy. Stephen Shay, Senior Lecturer on Law at the Harvard Law School and until recently the Deputy Assistant Secretary of the Treasury for International Tax Affairs and Mihir Desai, who holds appointments at both the Harvard Business School and Law School, provided perspectives from legal and economic vantage points.


  • Prof. Mihir A. Desai, Mizuho Financial Group Professor of Finance, Harvard Business School and Professor of Law, Harvard Law School
  • Prof. Stephen E. Shay, Senior Lecturer on Law, Harvard Law School

Constitutionality of Administrative Law Judges at the Securities and Exchange Commission and Elsewhere - Event Audio/Video

2015 National Lawyers Convention
John S. Baker, Jr., Stephen Crimmins, Todd Pettys, Tuan Samahon, F. Scott Kieff November 17, 2015

The Securities and Exchange Commission (SEC) has recently increased its use of administrative proceedings, before Administrative Law Judges (ALJs), to seek civil penalties, as an alternative to proceeding in an Article III court. Other federal regulatory and enforcement agencies use ALJs for various purposes at various rates. Although no single set of rules governs all ALJs, they typically differ from Article III courts in important ways, bringing their use under recent criticism. As two examples, ALJs do not enjoy life tenure and they are sometimes employed by and answerable to the agency itself. Our panel will discuss the pros and cons of the use of ALJs at the SEC and other agencies.

Corporations: Constitutionality of Administrative Law Judges at the Securities and Exchange Commission and Elsewhere
2:00 p.m. – 3:30 p.m.
East Room

  • Prof. John S. Baker, Jr., Visiting Professor, Georgetown University Law Center
  • Mr. Stephen J. Crimmins, Shareholder, Murphy & McGonigle PC
  • Prof. Todd E. Pettys, H. Blair and Joan V. White Chair in Civil Litigation, University of Iowa College of Law
  • Prof. Tuan Samahon, Villanova University School of Law
  • Moderator: Hon. F. Scott Kieff, Commissioner, International Trade Commission

The Mayflower Hotel
Washington, DC