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Blog Post | September 26, 2023

Payday Lenders Repped In CFPB Case By Firm That Picked Trump’s SCOTUS Nominees

BigLawConsumer ProtectionDepartment of JusticeFinancial RegulationRevolving DoorSupreme Court
Payday Lenders Repped In CFPB Case By Firm That Picked Trump’s SCOTUS Nominees

On October 3rd, the Supreme Court will hear oral arguments in Community Financial Services Association v. Consumer Financial Protection Bureau (CFPB), a lawsuit brought by payday lenders alleging that the CFPB’s independent funding structure is unconstitutional. CFSA — the plaintiffs in this case — are a trade group representing the biggest payday lenders in America. Their members include notorious repeat offenders of consumer protection laws like Populus Financial/ACE Cash Express and Amscot Financial

Seeking to overturn a 2016 Bureau rule regulating predatory small-dollar lending, CFSA argued in its SCOTUS filings that this rule — and by extension, the CFPB’s entire 12-year record of consumer protection — should be invalidated because the way the Bureau is funded supposedly violates the Constitution’s Appropriations Clause. As the Constitutional Accountability Center has noted, this is a totally bogus and extreme argument that ignores two centuries of statutory and judicial precedent affirming non-appropriations funding mechanisms. 

Last year, a far-right Fifth Circuit judge with financial ties to the payday lending industry sided with CFSA in the lawsuit, teeing up a Supreme Court appeal. If SCOTUS affirms the Fifth Circuit’s ruling and orders the CFPB to be funded through Congressional appropriations, it would put the Bureau’s funding at the mercy of a Republican Congress that has repeatedly promised to defund it. 

To argue this case, CFSA has hired a notoriously right-wing BigLaw firm with close ties to Trump and the Republican Party: Jones Day. As we’ve previously reported and New York Times journalist David Enrich has meticulously documented, Jones Day was one of Trump’s favorite law firms during his presidency and has represented some of the worst clients imaginable:

  • Jones Day was outside counsel for the Trump 2016 and 2020 campaigns, defending Trump in the Mueller investigation and over 20 lawsuits concerning the campaign’s rough treatment of protestors and potential use of hacked information.
    • Since 2015, Jones Day has received over $20 million in fees from the Trump campaign, political groups linked to Trump, and the Republican National Committee.
    • Jones Day also represented the Pennsylvania GOP in litigation to restrict mail-in voting during the Covid-19 pandemic.
  • At least 23 Jones Day lawyers were named to influential posts in the Trump administration, including high-ranking jobs at the Department of Justice, Federal Trade Commission, and National Security Council.
    • David Enrich has said of Jones Day’s influence: “They were more embedded in the Trump administration than any law firm I can think of in any past presidential administration. Throughout the White House and the Justice Department, as well as other agencies, basically, everywhere you looked, you would find a once and future Jones Day lawyer.”
  • Jones Day’s other clients have included McDonald’s in a years-long union-busting case, Walmart in an opioid sale lawsuit, Chevron in a catastrophic Brazil oil spill, and even the Bin Laden family in a damages suit filed by families of 9/11 victims. 

CFSA’s legal filings in the upcoming CFPB case have been co-authored by five Jones Day lawyers — all of whom have an alarming track record of undermining the public interest. According to the most recent tax filings available, Jones Day’s contract with CFSA is worth over $750,000. Here’s what you should know about CFSA’s Jones Day legal team:

Noel J. Francisco, Counsel of Record

  • Noel Francisco serves as lead counsel for CFSA in the CFPB Supreme Court case. He previously served as Solicitor General in the Trump Administration from 2017 to 2020 and as Chair of Jones Day’s government regulation practice from 2005 to 2017. He rejoined Jones Day in July 2020 – the same month he left the Trump Administration.
  • As Trump’s Solicitor General, Francisco defended Trump’s most extreme right-wing policy positions in front of the Supreme Court – including his efforts to undermine the Affordable Care Act, strike down DACA, gut public sector unions, and implement an anti-Muslim travel ban. 
  • Francisco argued on behalf of the Trump administration in Seila Law LLC v. CFPB, which held that the president could legally fire the Director of the CFPB at will. The plaintiffs in the case — a debt servicing law firm under CFPB investigation — had argued the CFPB was unconstitutional in a “Hail Mary attempt” to end the Bureau’s investigation of their company. In his DOJ brief for the case, Francisco argued that the CFPB’s own structure violated the Constitution’s separation of powers. 
  • During his first stint at Jones Day, Francisco argued and won several controversial Supreme Court cases, including in McDonnell v. U.S. (which gutted federal anti-bribery laws) and NLRB v. Noel Canning (which vacated President Obama’s recess appointments to the National Labor Relations Board, which arose out of Senate Republicans’ unprecedented obstruction of Obama’s nominees). 

Brinton Lucas

  • Brinton Lucas has been Of Counsel at Jones Day since 2021, having previously worked as an Associate at Jones Day from 2015 to 2017. In between his two Jones Day stints, Lucas served in various roles at the Trump Department of Justice, including as  Deputy Associate Attorney General and as Assistant to Solicitor General Noel Francisco. 
  • Lucas is a former law clerk for Justice Clarence Thomas, whose unethical close ties to right-wing billionaires have led to widespread calls for his resignation or impeachment. 
  • Brinton Lucas’ other Jones Day clients include:

Hashim M. Mooppan

  • Hashim Mooppan has been a partner at Jones Day since 2021. He rejoined the firm after serving in high-ranking roles at the Trump Department of Justice from 2017 to 2021, including as Deputy Assistant Attorney General for the Civil Appellate Staff and Counselor to Solicitor General Noel Francisco.
  • Mooppan helped argue extreme positions in major federal cases while in the Trump DOJ, including:
    • AFGE v Trump (2018)Mooppan defended the Trump administration in a lawsuit filed by the American Federation of Government Employees (the largest federal workers union) against Trump’s union-busting executive orders. Then-U.S. District Judge Ketanji Brown Jackson sided with AFGE over Mooppan in a 2018 ruling invalidating key parts of the executive orders. 
    • Brnovich v DNC (2021) – Mooppan argued that Arizona’s discriminatory voting laws did not violate Section 2 of the Voting Rights Act, a position that the Supreme Court’s right-wing majority ultimately sided with. 
    • Nestle v Doe (2021) – Mooppan argued that Nestle should not be held accountable under the Alien Tort Statute for aiding and abetting child slavery in the Ivory Coast. 
    • Regents of the University of California v. DHS (2019) – Mooppan unsuccessfully defended the Trump administration’s phase-out of DACA. 
    • House Judiciary Committee v. McGahn (2020) – Mooppan defended fellow Jones Day alum Don McGahn from a subpoena filed by the House Judiciary Democrats over McGahn’s obstruction of the Mueller investigation.
  • Mooppan argued in favor of making it easier for Trump to fire the CFPB director in the case of PHH Corp v CFPB, which was decided in favor of the CFPB by the DC Circuit in 2017. 

Yaakov M. Roth

  • Yaakov Roth has been a partner at Jones Day since 2009, having previously clerked for the late Supreme Court Justice Antonin Scalia. 
  • Roth argued and won West Virginia v. EPA, a 2022 Supreme Court case that gutted the EPA’s ability to curb carbon pollution and invoked the “major questions doctrine”, which limited executive branch agencies’ regulatory rulemaking authority. 
  • Roth’s other Jones Day Clients include:
    • Big Pharma companies Bristol Myers Squibb and Merck in litigation against the Inflation Reduction Act’s drug price negotiation provisions.
    • A corrupt former aide to disgraced former New York Governor Andrew Cuomo.
    • Credit reporting firm Experian (which is regulated by the CFPB) in a 2022 class action lawsuit. 
    • Chevron against a lawsuit filed by hundreds of agricultural workers alleging the company’s herbicide paraquat caused them to develop Parkinson’s disease.
    • The Arizona Republican Party in a 2021 landmark Supreme Court case restricting voting rights. 

Christian G. Vergonis

  • Christian Vergonis has been a partner at Jones Day since 2003, having previously clerked for New York Conservative Party co-founder J. Daniel Mahoney. 
  • Vergonis’ other Jones Day clients include:
    • Tobacco company RJ Reynolds in patent infringement, safety regulation, vaping regulation, and wrongful death cases. 
    • A Macau bank against international money laundering charges. 
    • The U.S. Chamber of Commerce in a lawsuit challenging collective-bargaining rules in Seattle.
    • Right-wing think tank Buckeye Institute in a previous attempt to have the Supreme Court strike down the CFPB’s funding mechanism. 
    • Right-wing think tank Free Enterprise Institute in a Supreme Court case gutting the post-Enron Sarbanes-Oxley anti-fraud law. 

IMAGE CREDITS: Joe Ravi and United States Department of Justice (Wikimedia Commons)

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