Financial Services & E-Commerce

The Constitutionality of Independent Agencies: The CFPB

Litigation and Financial Services & E-Commerce Practice Groups Teleforum Thursday, August 25, 02:00 PMFederalist Society Teleforum Conference Call

In April, the mortgage lender PHH Corporation challenged the constitutionality of the Consumer Financial Protection Bureau (CFPB) after being ordered by the CFPB to disgorge $109 million. PHH challenged the bureau’s legitimacy under Article II, and cited Free Enterprise Fund v. Public Company Accounting Oversight Board as relevant precedent, because PCA officers could be removed for cause, and then, only by officers of the SEC. Meanwhile, the CFPB cited Humphrey’s Executor v. United States, in which the Supreme Court upheld the constitutionality of the Federal Trade Commission Act, which allowed the president to remove an FTC commissioner only for cause. Here to discuss the CFPB and the constitutionality of other independent agencies like it are Professor Peter Conti-Brown of The Wharton School and Gregory Jacob, partner at O'Melveny & Myers LLP.


  • Peter Conti-Brown, Assistant Professor of Legal Studies and Business Ethics, The Wharton School
  • Gregory F. Jacob, Gregory F. Jacob Partner, O'Melveny & Myers LLP

Class Action in Consumer Finance Agreements - Podcast

Litigation Practice Group Podcast
Jason Johnston, Thaddeus King July 27, 2016

The Federal Arbitration Act (FAA), passed in 1925, generally requires courts to look favorably upon all arbitration agreements. In 2011, the Supreme Court upheld an arbitration agreement in a contract for mobile phone services that contained a class action ban. The court ruled that a state law that prevented the class action ban from being enforced was “an obstacle to the accomplishment of the FAA’s objectives.”

However, Congress passed the Dodd-Frank Act in 2010, which authorizes the Consumer Financial Protection Bureau (CFPB) to study arbitration agreements in consumer contracts and limit or prohibit them if doing so would be in the public interest and for the protection of consumers. In May 2016, the CFPB issued a proposed rule that would ban arbitration agreements that acted to prevent class action lawsuits and would further establish certain reporting requirements for other arbitrations that are filed between consumers and providers.

Our experts discussed this proposed rule, including the history that led us to this point and the potential impact it will have if it is finalized.


  • Prof. Jason Johnston, Henry L. and Grace Doherty Charitable Foundation Professor of Law, University of Virginia School of Law 
  • Thaddeus King, Officer, Consumer Banking,The Pew Charitable Trusts

Puerto Rico v. Franklin California Tax-Free Trust - Post-Decision SCOTUScast

SCOTUScast 7-12-16 featuring David Skeel
David Skeel July 12, 2016

On June 13, 2016, the Supreme Court decided Puerto Rico v. Franklin California Tax-Free Trust (consolidated with its companion case, Acosta-Febo v. Franklin California Tax-Free Trust). Concerned that its public utilities were on the verge of insolvency but could not obtain Chapter 9 bankruptcy relief under federal law, the Commonwealth of Puerto Rico attempted to circumvent this obstacle by passing its own municipal bankruptcy law. This law, the Puerto Rico Public Corporation Debt Enforcement and Recovery Act expressly provides different protections for creditors than those in federal Chapter 9. 

Investors who collectively hold nearly two billion dollars in bonds issued by one of Puerto Rico’s public utilities worried that it might seek relief under the new Puerto Rico law and sued in federal court, challenging the law’s validity and seeking injunctive relief. The district court enjoined the enforcement of the new law and the U.S. Court of Appeals for the First Circuit affirmed. Puerto Rico sought certiorari.

The question before the Supreme Court was whether Chapter 9 of the federal Bankruptcy Code preempts the Puerto Rico statute creating a mechanism for the Commonwealth’s public utilities to restructure their debts.

By a vote of 5-2, the Supreme Court affirmed the judgment of the First Circuit. Justice Thomas delivered the opinion of the Court, which held that in excluding Puerto Rico from the definition of a “state” for purposes of defining who may be a Chapter 9 debtor, Congress prevented Puerto Rico from authorizing its municipalities to seek Chapter 9 relief. But because Puerto Rico remains a “state” for other purposes of Chapter 9, the Court indicated, Chapter 9’s preemption provision still bars Puerto Rico from enacting its own municipal bankruptcy scheme to restructure the debt of its insolvent public utilities companies.

Justice Thomas’s majority opinion was joined by the Chief Justice and Justices Kennedy, Breyer, and Kagan. Justice Sotomayor filed a dissenting opinion, which was joined by Justice Ginsburg. Justice Alito took no part in the consideration or decision of the cases.

To discuss the case, we have David Skeel, who is the S. Samuel Arsht Professor of Corporate Law at the University of Pennsylvania Law School, and who submitted an amicus brief in support of the Commonwealth of Puerto Rico.

I Declare Bankruptcy?: Puerto Rico v. Franklin California Tax-Free Trust Decided - Podcast

Corporations, Securities & Antitrust Practice Group Podcast
G. Marcus Cole, David Skeel June 14, 2016

On June 13 the United States Supreme Court issued its opinion in Puerto Rico v. Franklin California Tax-Free Trust, finding that Chapter 9 of the federal Bankruptcy code preempts Puerto Rico’s Recovery Act. The decision prevents Puerto Rico from adopting a settlement plan for its debt through its own legislation and requires it to depend on Congress for a solution. Our experts discussed the opinion and its implications.


  • Prof. G. Marcus Cole, William F. Baxter-Visa International Professor of Law, Stanford Law School
  • Prof. David Skeel, S. Samuel Arsht Professor of Corporate Law, University of Pennsylvania Law School

Husky International Electronics, Inc. v. Ritz - Post-Decision SCOTUScast

SCOTUScast 6-2-16 featuring Zvi Rosen
Zvi Rosen June 02, 2016

On May 16, 2016, the Supreme Court decided Husky International Electronics, Inc. v. Ritz. Between 2003 and 2007 Husky International Electronics sold and delivered electronic device components worth more than $160,000 to Chrysalis Manufacturing Corp. Chrysalis, then under the financial control of Daniel Ritz, failed to pay for the goods and Ritz encouraged the transfer of funds from Chrysalis to various other companies. Ritz held substantial ownership stakes in these companies, which had not given reasonably equivalent value in exchange for the Chrysalis funds.

In May 2009, Husky sued Ritz in federal district court, seeking to hold him personally liable for Chrysalis’s debt. Ritz filed a voluntary Chapter 7 bankruptcy petition, and Husky then filed a complaint in the bankruptcy court alleging actual fraud, to preclude a discharge of Ritz’s debts. The bankruptcy court ruled that Husky had failed to prove actual fraud, however, and the district court affirmed that decision. The U.S. Court of Appeals for the Fifth Circuit likewise affirmed the lower court judgments, finding no record evidence of a false representation by the debtor, which the Fifth Circuit deemed a necessary predicate to establish actual fraud.

The question before the Supreme Court was whether the “actual fraud” bar to discharge under Section 523(a)(2)(A) of the Bankruptcy Code applies only when the debtor has made a false representation, or whether the bar also applies when the debtor has deliberately obtained money through a fraudulent-transfer scheme that was actually intended to cheat a creditor.

By a vote of 7-1, the Supreme Court reversed the judgment of the Fifth Circuit and remanded the case. Justice Sotomayor delivered the opinion of the Court, which held that the term "actual fraud" in Section 523(a)(2)(A) of the Bankruptcy Code encompasses fraudulent conveyance schemes, even when those schemes do not involve a false representation. The majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Breyer, Alito, and Kagan. Justice Thomas filed a dissenting opinion.

To discuss the case, we have Zvi Rosen, who is a visiting scholar at Hofstra University Maurice A. Deane School of Law.