Bureau responds to lawsuit brought by Chamber of Commerce and banking groups.
By suing the CFPB over its examination manual, the U.S. Chamber of Commerce and several banking groups are arguing that discrimination is not an unfair practice, the bureau told a federal court last week.
“Plaintiffs’ claims depend on the proposition that unfairness and discrimination are mutually exclusive concepts—i.e., that conduct that is discriminatory can never be unfair,” CFPB attorneys wrote in a motion to dismiss the suit.
The U.S. Chamber of Commerce and several banking associations filed suit earlier this year challenging the CFPB’s decision to police discrimination as part of its power to probe Unfair, Deceptive or Abusive Acts or Practices. No credit union trade group has joined the suit.
The lawsuit was filed as part of a Chamber of Commerce campaign designed to question the strict regulatory regime adopted by CFPB Director Rohit Chopra, who, the chamber argues, has consistently exceeded his congressional authority.
CFPB Legal Response
Bureau officials have said repeatedly this is not the case, an argument that was reiterated once again in response to the chamber’s lawsuit.
Agency attorneys said that in enacting Dodd-Frank, Congress used the broad view of unfairness contained in the law creating the Federal Trade Commission, which, “provided no exception for discriminatory behavior.”
They added, “It is an odd position (favoring discriminatory conduct based, for example, on race or religion), and one that is at odds with the text of the statute.”
The CFPB also said the addition of discrimination as a subject of agency examinations was laid out in the bureau’s examination manual and not through a formal rule, with the manual providing internal guidance to CFPB staff.
“The Exam Manual does not change the legal status of the parties, including by authorizing new topics of examination,” attorneys wrote. “The Dodd-Frank Act prohibited unfairness prior to the issuance of the Manual.”
Further, as the changes were made to the agency examination document, there was no requirement that the addition be open for public comment before it was adopted.
Legality of Lawsuit
In its response, the CFPB additionally questioned whether the groups in fact have standing to sue by themselves. Rather, they suggested the suit would have to be filed by banks and other organizations directly impacted by the examination manual itself, adding that the trade groups alone would not be affected.