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Practice Management > Building Your Business

CFPB Barred, for Now, From Naming Company Under Investigation

By C. Ryan Barber

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Another financial-sector company is fighting to keep its name secret as it challenges the power of the Consumer Financial Protection Bureau to bring an enforcement action.

The company—identified only as “John Doe” in Washington federal trial court—offers pension advance products that allow consumers to receive a lump sum payment in exchange for a portion, or all, of their future pension.

The CFPB has warned that such products can “eat into your retirement income.” State regulators in New York and California, among other states, have taken actions in recent years against practices in the pension-advance market.

Companies have tangled with federal agencies, with limited success, over the right to remain anonymous in challenges to investigative and enforcement authority.

The latest John Doe company in the Washington case, which sued the consumer bureau in January, argued the agency should not be able to identify it as the target of an investigation. Publication of the company’s name—as it tries to stop any enforcement action—would bring “irreparable harm,” the company’s lawyers argued.

U.S. District Judge Rudolph Contreras on Friday blocked the CFPB from revealing the name of the company for at least the next two weeks. But the judge refused to wholesale stop the bureau from pursuing any enforcement action at all.

The company’s lawyers at Womble Carlyle Sandridge & Rice and Dorsey & Whitney immediately went to the U.S. Court of Appeals for the D.C. Circuit to try to stop the agency from moving forward.

In 2015, a credit-repair company and four firms convinced a judge to keep their identities hidden. Because of an apparent clerical error, Prime Marketing Holdings LLC, a California-based credit repair company, was eventually revealed as one of the companies that brought the lawsuit. By then, the CFPB had sued sued Prime Marketing in Los Angeles federal district court.

In the case in Washington, the company challenged the CFPB’s practice of posting documents related to appeals of the agency’s subpoenas, called “civil investigative demands.” The John Doe company lost its appeal, freeing up the CFPB to post documents online about the dispute.

The company argued in its lawsuit that the disclosure of the CFPB’s probe would cause irreparable harm to its “business and accumulated goodwill.” Beyond its concern with public perception, the company’s lawyers argued the CFPB should not be permitted to bring an enforcement action at all as the lawfulness of the agency’s structure is being challenged in an unrelated court case.

The company has joined a long line of CFPB targets that have seized upon a divided D.C. Circuit panel decision that struck down the agency’s structure as unconstitutional. The opinion said the president should be able to remove the CFPB at will, rather than having to find cause. The full D.C. Circuit agreed Thursday to review the panel decision. Arguments are scheduled for May 24.

In its lawsuit last month, the company argued that the CFPB should not be able to take any action against it “until the separation of powers violation identified by the D.C. Circuit has been remedied.” Womble Carlyle’s Chris Jones argued in court Friday that the D.C. Circuit’s 100-page decision was “flat-out persuasive.”

“We want the agency to push the pause button until this cloud of unconstitutionality clears,” Jones said.

— Check out CFPB, Cordray Win Second Chance to Avoid a Trump Firing on ThinkAdvisor.

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