Skip to content

Case Detail

[Subscribe to updates]
Case TitleFRANK LLP v. CONSUMER FINANCIAL PROTECTION BUREAU
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2016cv00670
Date Filed2016-04-08
Date Closed2018-01-31
JudgeJudge Christopher R. Cooper
PlaintiffFRANK LLP
Case DescriptionFrank LLP, a law firm representing plaintiffs in a class action suit alleging unfair debt collection practices, submitted a FOIA request to the Consumer Financial Protection Bureau for records supporting the agency's statement that there were 35,000 lawsuits against Entity, the company the law firm was suing. The agency denied the request based on Exemption 4 (confidential business information). Frank LLP appealed the denial and the agency decided to abandon the Exemption 4 claim and withheld the records instead under Exemption 7(E) (investigative methods and techniques). Frank LLP filed a complaint with OGIS, but after OGIS told Frank LLP that CFPB declined to participate in mediation, the law firm filed suit.
Complaint issues: Exemption 7(E) - Investigative methods or techniques, Litigation - Vaughn index, Litigation - Attorney's fees

DefendantCONSUMER FINANCIAL PROTECTION BUREAU
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Complaint attachment 6
Complaint attachment 7
Complaint attachment 8
Complaint attachment 9
Complaint attachment 10
Complaint attachment 11
Complaint attachment 12
Complaint attachment 13
Opinion/Order [29]
FOIA Project Annotation: Judge Christopher Cooper has ruled that the Consumer Financial Protection Bureau properly responded to two FOIA requests from the law firm Frank LLP, which specialized in consumer class action suits, pertaining to an enforcement action against Encore Capital Group " one of the largest purchasers and collectors of consumer debt " by withholding records under Exemption 5 (privileges) and Exemption 7(E) (investigative methods and techniques) in response to Frank's first request and because Frank failed to exhaust its administrative remedies by not committing to pay fees for the second request. Cooper also found that Frank had standing to challenge CFPB's FOIA policies regarding its interpretation of Exemption 4 (confidential business information) and Exemption 8 (bank examination reports) and that while the agency's definition of a financial institution was appropriate under Exemption 8, its presumption that records were voluntarily submitted in response to a civil investigative demand issued by the agency was invalid because it was contrary to case law interpreting the meaning of what constituted a voluntary submission for purposes of Exemption 4. After CFPB filed a consent order finding that Encore Capital Group had filed misleading affidavits in hundreds of thousands of cases claiming ownership of debt without having substantiated those claims, citing 36,000 consumers who had paid debts after Encore filed such an affidavit, Frank submitted a FOIA request for records pertaining to the 36,000 identified consumers. The agency withheld the records entirely, claiming they were exempt under Exemption 4. Frank appealed. The agency upheld its decision to withhold the records entirely but claimed Exemption 7(E) instead of Exemption 4. Frank submitted a second FOIA request for records supporting the agency's finding in its consent order and compliance requirements imposed by that order. The agency again withheld all the records under Exemption 4 and Exemption 7(E) but added Exemption 8 as well. This time, the agency granted Frank's appeal, remanding for a better explanation of whether or not the records were segregable. Frank argued that the investigative techniques involved self-identifying the number of cases in which Encore filed an improper affidavit. Cooper noted, however, that the technique was "not so obvious," and pointed out that "if it were disclosed, targets of the Bureau's investigations might be able to complicate enforcement, if not outright evade it. The technique is admittedly not proprietary or especially complex. But, again, an agency is justified in withholding records based on a mere 'chance of a reasonably expected risk' of circumvention." Frank challenged the agency's claim that attorney's notes were privileged because they did not reflect mental impressions and were prepared for settlement, not litigation. Cooper rejected both claims. He indicated that while there was a distinction in discovery between fact and opinion work product, "there is no such fact-opinion distinction for purpose of Exemption 5" because work product materials would not routinely or normally be disclosed during discovery. As to the settlement/litigation distinction, Cooper observed that "at the time the notes were taken, the Bureau was investigating Encore's alleged violations of several statutes. . .[H]ad settlement discussions been unproductive [the agency] may have challenged Encore's practices in court." Cooper agreed with the agency that Frank had not yet committed to paying fees for its second request after remand from its initial appeal. The agency had indicated the existence of 48,000 pages of potentially responsive records and told Frank it would need to pay half of the estimated $52,603 fee upfront. Frank argued that since the agency had upheld some of its exemption claims as a result of its appeal it should be entitled to pursue judicial relief. Cooper, however, noted that "but to the extent that aspects of the Bureau's appellate determinations are unfavorable, it is only because they might foreshadow a denial of Frank's request on remand. Nothing in the determination itself is adverse in the sense relevant to judicial review under FOIA." Frank also argued CFPB had waived its right to collect fees when it did not charge for the initial processing of the request. Cooper found the agency's decision not to charge fees initially had no effect on its ability to charge future fees. He pointed out that "as a practical matter, the fees associated with reviewing Frank's initial request were likely negligible compared with the potential costs of review on remand, given that the Bureau's initial review resulted in a blanket denial under three FOIA Exemptions and its review on remand must involve a document-by-document segregability analysis." Cooper concluded that Frank had standing to challenge the agency's Exemption 4 and Exemption 8 policies because it was likely to continue to request information from the agency that fell within those exemptions. Finding the case law contradicted the agency's position on voluntary submissions, Cooper noted that "the D.C. Circuit has held that voluntariness does not turn on the recipient's perception of whether it must comply with the demand " it instead turns on the agency's power to induce compliance." He added that "if an agency has statutory authority to get a court order, its ability to obtain the information is not in jeopardy regardless of whether a court order has yet issued its order." Frank also challenged the agency's Exemption 8 policy interpreting "financial institution" to cover entities that buy and collect on debts. Rejecting Frank's claim, Cooper observed that "debt collectors " as a link in the credit-management chain " fit comfortably within the scope [of Exemption 8]."
Issues: Exemption 7(E) - Investigative methods or techniques, Exemption 5 - Privileges, Exemption 4 - Impairment of agency, Exemption 8 - Financial institution, Litigation - Jurisdiction - Failure to Exhaust
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2016-04-081COMPLAINT against CONSUMER FINANCIAL PROTECTION BUREAU ( Filing fee $ 400 receipt number 0090-4478387) filed by FRANK LLP. (Attachments: # 1 Exhibit A, # 2 Exhibit B, Pt. I, # 3 Exhibit B, Pt. II, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Civil Cover Sheet, # 11 Summons CFPB, # 12 Summons US AG, # 13 Certificate Rule LCvR 7.1)(Frank, Gregory) (Entered: 04/08/2016)
2016-04-082LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by FRANK LLP (dr) (Entered: 04/11/2016)
2016-04-08Case Assigned to Judge Christopher R. Cooper. (dr) (Entered: 04/11/2016)
2016-04-113SUMMONS (2) Issued Electronically as to CONSUMER FINANCIAL PROTECTION BUREAU, and U.S. Attorney General (Attachment: # 1 Consent Form)(dr) (Entered: 04/11/2016)
2016-04-114NOTICE of Summons Issued by FRANK LLP (Frank, Gregory) (Entered: 04/11/2016)
2016-04-115SUMMONS (1) Issued Electronically as to U.S. Attorney (Attachment: # 1 Consent Form)(dr) (Entered: 04/11/2016)
2016-04-216RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/14/2016. ( Answer due for ALL FEDERAL DEFENDANTS by 5/14/2016.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 04/14/2016., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CONSUMER FINANCIAL PROTECTION BUREAU served on 4/15/2016 (Attachments: # 1 Affidavit Affidavits of Process Server Robert Briggs-Snodgrass)(Frank, Gregory) (Entered: 04/21/2016)
2016-05-167ANSWER to Complaint by CONSUMER FINANCIAL PROTECTION BUREAU.(Nebeker, William) (Entered: 05/16/2016)
2016-05-16MINUTE ORDER: Before the Court in this FOIA case are a complaint and an answer. It is hereby ORDERED that the parties promptly confer and file a joint proposed schedule for briefing or disclosure by May 30, 2016. Signed by Judge Christopher R. Cooper on 5/16/16. (lccrc1) (Entered: 05/16/2016)
2016-05-17Set/Reset Deadlines: Parties to confer and file joint proposed schedule for briefing or disclosure by 5/30/2016. (kt) (Entered: 05/17/2016)
2016-05-278PROPOSED BRIEFING SCHEDULE re Order, by CONSUMER FINANCIAL PROTECTION BUREAU. (Nebeker, William) (Entered: 05/27/2016)
2016-06-01MINUTE ORDER REFERRING CASE to Mediation: It is hereby ORDERED that this case be referred to the Circuit Mediation program and STAYED until July 18, 2016, at which time the parties shall file a status report if no resolution has been reached.. Signed by Judge Christopher R. Cooper on 6/1/16. (lccrc1) (Entered: 06/01/2016)
2016-06-01Set/Reset Deadlines: Status Report due by 7/18/2016, if no resolution reached. (kt) (Entered: 06/01/2016)
2016-06-01Case Stayed until 7/18/2016. (kt) (Entered: 06/01/2016)
2016-07-189Joint STATUS REPORT re Minute Order of June 1, 2016 by FRANK LLP. (Frank, Gregory) (Entered: 07/18/2016)
2016-07-19MINUTE ORDER REFERRING CASE to Mediation: It is hereby ORDERED that this case be referred to the Circuit Mediation program and STAYED until August 18, 2016, at which time the parties shall file a joint status report. Signed by Judge Christopher R. Cooper on 7/19/16. (lccrc1) (Entered: 07/19/2016)
2016-08-1810Joint STATUS REPORT re Minute Order of July 19, 2016 by FRANK LLP. (Frank, Gregory) (Entered: 08/18/2016)
2016-08-19MINUTE ORDER REFERRING CASE to Mediation: It is hereby ORDERED that this case be referred to the Circuit Mediation program and STAYED until September 8, 2016, at which time the parties shall file a joint status report. Signed by Judge Christopher R. Cooper on 8/19/2016. (lccrc1) (Entered: 08/19/2016)
2016-09-0811Joint STATUS REPORT by CONSUMER FINANCIAL PROTECTION BUREAU. (Nebeker, William) (Entered: 09/08/2016)
2016-09-09MINUTE ORDER: It is hereby ORDERED that this case be STAYED until September 21, 2016, at which time the parties shall file a joint status report. Signed by Judge Christopher R. Cooper on 9/9/2016.(lccrc1) (Entered: 09/09/2016)
2016-09-09Case Stayed, Set/Reset Deadlines: Status Report due by 9/21/2016. (lsj) (Entered: 09/09/2016)
2016-09-2112Joint STATUS REPORT by CONSUMER FINANCIAL PROTECTION BUREAU. (Nebeker, William) (Entered: 09/21/2016)
2016-09-23MINUTE ORDER: Upon consideration of the parties' 12 Status Report and Joint Proposed Schedule, it is hereby ORDERED that the parties shall abide by the following deadlines: Defendant's dispositive motion will be due on or before November 18, 2016; Plaintiff's opposition and cross-motion (if applicable) will be due on or before January 13, 2017; Defendant's reply and opposition to Plaintiff's cross-motion (if applicable) will be due on or before February 15, 2017; and Plaintiff's reply to the opposition to the cross-motion (if applicable) will be due on or before March 8, 2017. Signed by Judge Christopher R. Cooper on 9/23/2016. (lccrc1) (Entered: 09/23/2016)
2016-09-23Set/Reset Deadlines: Cross Motions due by 1/13/2017. Response to Cross Motions due by 2/15/2017. Reply to Cross Motions due by 3/8/2017. Dispositive Motions due by 11/18/2016. (zlsj) (Entered: 09/26/2016)
2016-10-2113MOTION for Leave to File A Supplemental Complaint by FRANK LLP (Attachments: # 1 Exhibit 1)(Frank, Gregory) (Entered: 10/21/2016)
2016-10-2114AFFIDAVIT re 13 MOTION for Leave to File A Supplemental Complaint by FRANK LLP. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N)(Frank, Gregory) (Entered: 10/21/2016)
2016-10-2415ERRATA FILING by FRANK LLP 13 MOTION for Leave to File A Supplemental Complaint filed by FRANK LLP. (Attachments: # 1 Errata Attachment)(Frank, Gregory) (Entered: 10/24/2016)
2016-10-31MINUTE ORDER: Defendant is directed to file a response to 13 Plaintiff's Motion for Leave to File a Supplemental Complaint no later than November 4, indicating 1) whether Defendant opposes the Motion, and 2) whether, if the Motion were granted, Defendant would nevertheless be able to adhere to the established briefing schedule, including the filing of any dispositive motion no later than November 18, 2016. Signed by Judge Christopher R. Cooper on 10/31/2016. (lccrc1) (Entered: 10/31/2016)
2016-10-31Set/Reset Deadlines: Responses to Plaintiff's Motion for Leave to File a Supplemental Complaint due by 11/4/2016. (zlsj) (Entered: 10/31/2016)
2016-11-0116RESPONSE re 13 MOTION for Leave to File A Supplemental Complaint filed by CONSUMER FINANCIAL PROTECTION BUREAU. (Nebeker, William) (Entered: 11/01/2016)
2016-11-04MINUTE ORDER granting 13 Motion for Leave to File: It is hereby ORDERED that Plaintiff's Motion for Leave to File a Supplemental Complaint is GRANTED. Furthermore, the parties are directed to meet and confer, and propose a revised schedule for either production or briefing, no later than November 10, 2016. Signed by Judge Christopher R. Cooper on 11/4/2016. (lccrc1) (Entered: 11/04/2016)
2016-11-07Set/Reset Deadlines: Revised Proposed Discovery Plan due by 11/10/2016. (zlsj) (Entered: 11/07/2016)
2016-11-0817Joint MOTION for Extension of Time to File A Proposed Schedule by CONSUMER FINANCIAL PROTECTION BUREAU (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 11/08/2016)
2016-11-10MINUTE ORDER granting 17 Motion for Extension of Time to File: It is hereby ORDERED that the parties' joint proposed briefing or production schedule shall be filed no later than November 17, 2016. Signed by Judge Christopher R. Cooper on 11/10/2016. (lccrc1) (Entered: 11/10/2016)
2016-11-10Set/Reset Deadlines: Proposed Discovery Plan due by 11/17/2016. (zlsj) (Entered: 11/10/2016)
2016-11-1718Joint STATUS REPORT and Proposed Schedule by FRANK LLP. (Frank, Gregory) (Entered: 11/17/2016)
2016-12-01Set/Reset Hearings: Telephone Conference set for 12/6/2016 at 3:00 PM in Chambers before Judge Christopher R. Cooper. (zlsj) (Entered: 12/01/2016)
2016-12-06Minute Entry for Telephone Conference held before Judge Christopher R. Cooper on 12/6/2016. Scheduling Order forthcoming. Parties are advised that Count 1 of the Complaint be limited to the exhaustion issue. Court Reporter Lisa Moreira. (zlsj) (Entered: 12/06/2016)
2016-12-06MINUTE ORDER: In light of the 18 Joint Status Report and the Court's telephone conference with the parties, it is hereby ORDERED that the parties shall abide by the following deadlines. Defendant's dispositive motion on both the original and supplemental Complaint will be due on or before January 17, 2017; Plaintiff's Opposition will be due on or before February 23, 2017; Defendant's Reply will be due on or before March 20, 2017. In accordance with Defendant's request, briefing on Count I of the Supplemental Complaint shall be limited to whether Plaintiff has exhausted the relevant administrative remedies as to its supplemental FOIA request. Signed by Judge Christopher R. Cooper on 12/6/2016. (lccrc1) (Entered: 12/06/2016)
2016-12-07Set/Reset Deadlines: Dispositive Motions due by 1/17/2017. Response to Dispositive Motions due by 2/23/2017. Reply to Dispositive Motions due by 3/20/2017. (zlsj) Modified on 12/7/2016 (zlsj). (Entered: 12/07/2016)
2017-01-1719MOTION to Dismiss Or, In The Alternative , MOTION for Summary Judgment by CONSUMER FINANCIAL PROTECTION BUREAU (Attachments: # 1 Declaration Lazier, # 2 Declaration Nodler(redacted), # 3 Text of Proposed Order)(Nebeker, William) (Entered: 01/17/2017)
2017-01-1720MOTION for Order Allowing Ex Parte, In Camera Submission by CONSUMER FINANCIAL PROTECTION BUREAU (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 01/17/2017)
2017-02-2321Memorandum in opposition to re 19 MOTION to Dismiss Or, In The Alternative MOTION for Summary Judgment , filed by FRANK LLP. (Attachments: # 1 Declaration Frank, # 2 Text of Proposed Order)(Frank, Gregory) . (Entered: 02/23/2017)
2017-02-24NOTICE OF ERROR re 21 Memorandum in Opposition; emailed to gfrank@frankllp.com, cc'd 4 associated attorneys -- The PDF file you docketed contained errors: 1. Two-part docket entry, 2. Please refile document, 3. Same document using the Motion(s) category (jf, ) (Entered: 02/24/2017)
2017-02-2422Cross MOTION for Summary Judgment by FRANK LLP (Attachments: # 1 Declaration Frank, # 2 Text of Proposed Order)(Frank, Gregory) (Entered: 02/24/2017)
2017-03-09MINUTE ORDER granting 20 Motion for Order: It is hereby ORDERED that the unredacted memorandum and unredacted declaration of Gregory Nodler filed in redacted form on January 17, 2017 be submitted to the Court for its Ex Parte and In Camera review. Signed by Judge Christopher R. Cooper on 3/9/2017. (lccrc1) (Entered: 03/09/2017)
2017-03-2023Memorandum in opposition to re 22 Cross MOTION for Summary Judgment filed by CONSUMER FINANCIAL PROTECTION BUREAU. (Attachments: # 1 Declaration Lazier (Second), # 2 Text of Proposed Order)(Nebeker, William) (Entered: 03/20/2017)
2017-03-2024REPLY to opposition to motion re 19 MOTION to Dismiss Or, In The Alternative MOTION for Summary Judgment (Same as ECF No. 23) filed by CONSUMER FINANCIAL PROTECTION BUREAU. (Nebeker, William) (Entered: 03/20/2017)
2017-03-2025MOTION for Order To Allow Ex Parte Submission by CONSUMER FINANCIAL PROTECTION BUREAU (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 03/20/2017)
2017-06-0226NOTICE of Change of Address by Gregory A. Frank (Frank, Gregory) (Entered: 06/02/2017)
2017-08-03MINUTE ORDER granting 25 Motion for Order: It is hereby ORDERED that the unredacted memorandum filed in redacted form in March 20, 2017, be and is hereby accepted for consideration In Camera and Ex Parte and need not be served on Plaintiff or filed with the Clerk. Signed by Judge Christopher R. Cooper on 8/3/2017. (lccrc1) (Entered: 08/03/2017)
2017-08-0327NOTICE Of Ex Parte, In Camera Submission by CONSUMER FINANCIAL PROTECTION BUREAU re 24 Reply to opposition to Motion, Order on Motion for Order, 19 MOTION to Dismiss Or, In The Alternative MOTION for Summary Judgment (Nebeker, William) (Entered: 08/03/2017)
2017-12-1428ORDER granting in part and denying in part 19 Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment; and granting in part and denying in part 22 Plaintiff's Cross-Motion for Summary Judgment. Signed by Judge Christopher R. Cooper on 12/14/2017. (lccrc1) (Entered: 12/14/2017)
2017-12-1429MEMORANDUM OPINION re 28 Order. Signed by Judge Christopher R. Cooper on 12/14/2017. (lccrc1) (Entered: 12/14/2017)
Hide Docket Events
by FOIA Project Staff