PHH v. CFPB: "What Is A Kickback?"

On April 12, 2016, a panel of the U.S. Court of Appeals for the D.C. Circuit heard oral argument in PHH Corporation's (PHH) milestone legal battle with the Consumer Financial Protection Bureau (Bureau). During the argument, the Bureau had a lot to worry about: whether the agency's unusual structure, headed by a single director who has great power and is removable only for cause, is constitutional; whether the Bureau can prosecute claims in its own administrative forum with no statute of limitations, especially when courts have held that doing so after years have passed would be "an abomination;" whether the Bureau gave PHH and other industry participants fair notice of the conduct that the Bureau now condemns based on a new interpretation of Section 8 of the Real Estate Settlement Procedures Act (RESPA); and whether the court must construe a statutory ambiguity in PHH's favor because RESPA carries criminal, as well as civil, penalties.