The CFPB, jointly with the FTC and Justice Department, has filed an amicus brief in the U.S. Supreme Court supporting the consumer’s position in Marx v. General Revenue Corp.  In May, the Supreme Court agreed to hear the case and decide whether the Fair Debt Collection Practices Act allows an award of costs to the prevailing defendant even without a finding that the suit was filed by the plaintiff in bad faith and for the purpose of harassment.

The brief urges the Supreme Court to reverse the Tenth Circuit’s ruling that a debt collector’s right to recover its costs under Federal Rule of Civil Procedure 54(b), which allows a prevailing party to recover costs other than attorneys’ fees, is not superseded by the FDCPA’s costs provision, which allows a court to award attorney’s fees and costs to a defendant if the court finds the lawsuit was brought in bad faith and for the purpose of harassment.  The CFPB had previously filed an amicus brief in the Tenth Circuit in support of the consumer’s  petition for rehearing en banc or rehearing by the panel.  That petition was denied by the Tenth Circuit. 

The CFPB recently announced on its blog that it’s looking for suggestions for cases in which the CFPB should consider filing amicus briefs.  Since all of the amicus briefs filed by the CFPB so far have supported the position taken by the consumers in the cases, we would like to see the CFPB also use its amicus filings to advocate for interpretations advanced by industry.  In fact, we have made suggestions directly to the CFPB as to how it might create more transparency in its amicus program and help allay industry suspicion that the CFPB will always align itself against the industry.