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SCOTUS Nominee Has Written Few Consumer Financial Protection Opinions

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Lauren M. BurnetteMs. Burnette joins Barron & Newburger with a strong background in consumer credit litigation, compliance and appellate practice representing creditors, collection agencies, debt purchasers and law firms.

Law360 reports that Tenth Circuit Judge and Supreme Court nominee Neil M. Gorsuch has authored 723 opinions – but a Lexis search reveals that only one of those opinions touched on matters of consumer protection. While the public debates the impact of Judge Gorsuch’s nomination on a host of issues, one question remains largely unanswered: what does Judge Gorsuch’s nomination mean to the collection industry?

Judge Gorsuch has authored no opinions discussing the Fair Credit Reporting Act, the Telephone Consumer Protection Act, the Electronic Funds Transfer Act, or the Truth in Lending Act. His sole opinion regarding the Fair Debt Collection Practices Act did not concern application of the Act itself, but instead focused on the collection agency’s actions regarding notifying its professional liability carrier of the consumer’s claims. In Anchondo v. Dunn, No. 12-2002, 2013 U.S. App. LEXIS 3392, *1, 2013 WL 599798 (10th Cir. 2013), the Tenth Circuit reviewed a district court’s order imposing sanctions on the defendant collection agency’s defense attorney and its CEO. The district court found that counsel and the CEO knew that defendant had a professional liability policy sufficient to cover the amounts plaintiff claimed; that they acted in bad faith by denying the existence of the policy in response to discovery; and that they acted in bad faith by failing to file a timely claim on the policy.

In an opinion authored by Judge Gorsuch, the Tenth Circuit affirmed the district court’s award of $69,477.56 in sanctions and $6,985.90 in costs against the agency’s defense attorney, and remanded the case for an additional award of appellate fees. The Court of Appeals found that the attorney’s special relationship with the agency (as a manager, a signatory on its bank accounts, a managing officer of two affiliate companies, and a tenant of the agency) warranted the sanctions in light of the effect of concealing and not invoking the insurance policy.

In addition to Anchondo, Judge Gorsuch has authored one opinion referencing the Equal Credit Opportunity Act, affirming the district court’s dismissal of the ECOA suit because it was time-barred. Garrett v. Branson Commerce Park Cmty. Improvement Dist., No. 14-3240, 711, 2016 U.S. App. LEXIS 6880 (10th Cir. 2016). That opinion reveals attention to detail in the record and an attempt to rule on the narrowest basis possible, rather than trying to make a broad, sweeping ruling. Judge Gorsuch’s application of and adherence to the plain language of the statute is an approach to statutory construction that, in many instances, could benefit the collection industry when applied to other consumer protection statutes.

Although he has authored few opinions involving consumer financial protection statutes Judge Gorsuch has served on a number of panels in consumer law cases in which other judges wrote the opinions. If confirmed he will come to the Supreme Court with at least some background in the statutes most affecting the collection industry.