Anthony Alexis, Enforcement Chief at CFPB, Will Leave the Agency

Diego M. Radzinschi/ ALM Media

Alexis’ future plans, including any interest in returning to Big Law, are unclear. Mayer Brown has one of Washington’s most active consumer finance practices. Washington partner Andy Pincus is lead counsel in a lawsuit, filed in September in Texas, that challenges the CFPB’s new rule banning arbitration clauses that prevent consumers from banding together to file class actions.

The CFPB has posted the enforcement director role on its public listing of open jobs. The agency, created from the Dodd-Frank Wall Street reform law, indicated it is only considering internal candidates to lead the enforcement office, “whose mission is to aggressively and consistently enforce Federal consumer financial laws to protect consumers from harm, including by partnering with other federal and state agencies.”

Alexis’ imminent departure comes at a precarious point for the CFPB. On Capitol Hill, Republican lawmakers are pushing to defang the bureau, in part, by rescinding its broad power to police “unfair, deceptive or abusive” acts or practices, commonly known as its UDAAP authority. Those same foes are advocating for subjecting the bureau to congressional appropriations and allowing the president to readily remove the CFPB director, who can only be fired “for cause” under the current structure.

Meanwhile, a Washington federal appeals court is expected to hand down a decision soon on the lawfulness of the bureau’s independent, single-director structure. A divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit in October 2016 said the president should be empowered to fire the CFPB director at will.

The U.S. Justice Department, under Attorney General Jeff Sessions, abandoned the Obama-era agency this year after previously defending against constitutional challenges over its single-director structure. The Justice Department argued against the CFPB at a hearing in May in the pending constitutional challenge in the D.C. Circuit. Gibson, Dunn & Crutcher’s Theodore Olson represents the plaintiff, PHH Corp., in that case.

Since then, Justice Department prosecutors have dropped out of a handful of CFPB cases in which they had been assisting the bureau’s trial teams.

Regardless of whether Cordray, a former Ohio attorney general, pursues his rumored interest in his home state’s gubernatorial race, the CFPB is barreling toward a pivotal point. In July 2018, Cordray’s five-year term will expire and President Donald Trump will have an opportunity to appoint a new director. Cordray has remained mum on any plans to leave the agency.

Under the leadership of Cordray and Alexis, whose background includes a stint as a federal prosecutor, the CFPB has asserted itself as an aggressive enforcer, scoring billions of dollars in relief for harmed consumers while also extracting steep fines. In one of the biggest cases, Wells Fargo & Co. agreed last year to pay a $100 million penalty to resolve allegations stemming from the bank’s sales practices scandal. The fine remains the highest in CFPB history.

Alexis’ departure comes as the CFPB pushes forward with significant cases against the mortgage servicer Ocwen Financial Corp. and the nation’s largest servicer of student loan debt, Navient Corp., which the agency accused in January of “failing borrowers at every stage of repayment.”

In recent months, the CFPB suffered a string of setbacks in the courts. The bureau’s enforcement lawyers lost a case in July against a Kentucky law firm accused of orchestrating an illegal kickback scheme. In August, a federal judge in Atlanta sanctioned a CFPB trial team for its “blatant disregard” of his orders to state the factual basis to support the agency’s claims against four payment processors and a telemarketing company. The judge, Richard Story, dismissed several charges in the case.