By Chris Bruce
April 6 — You may not know Lawrence DeMille-Wagman, the career government lawyer who will defend a Consumer Financial Protection Bureau (CFPB) enforcement order closely watched by the financial services industry, but you probably know his work.
DeMille-Wagman, senior CFPB litigation counsel, is scheduled to argue before a federal appeals court April 12 on behalf of Director Richard Cordray's June 2015 ruling against PHH Corp., a Mount Laurel, N.J.-based mortgage lender.
DeMille-Wagman isn't a household name, but if you've ever put your name on a special list to avoid phone calls by telemarketers, you might like him. DeMille-Wagman was part of a small Federal Trade Commission (FTC) team that implemented the National Do Not Call Registry in 2003, sparing millions of Americans from telephone calls that “always seemed to come just when you least wanted them,” as then-Sen. Ted Kaufman (D-Del.), said in a 2010 floor speech praising the team's work.
DeMille-Wagman will face off before the U.S. Court of Appeals for the District of Columbia Circuit against Ted Olson, the former Solicitor General, who is now a partner at Gibson, Dunn & Crutcher. The court has allotted 15 minutes for each side.
The case, one of the most closely followed consumer financial services battles in years, is an appeal by PHH from a decision that ordered the company to disgorge $109 million for violations of the Real Estate Settlement Procedures Act (RESPA).
Cordray said PHH violated RESPA's anti-kickback provisions by using agreements with mortgage insurers to collect premiums when an insurer received a referral from PHH. He also said PHH violated the statute each time it accepted a “kickback” payment.
PHH successfully sought a stay of the ruling, saying the transactions were lawful and calling Cordray's ruling “a radical new interpretation” of RESPA.
The case has gained wide attention as the first appeal of a CFPB administrative enforcement action. If upheld, the CFPB could target conduct reaching back beyond the three-year statute of limitations that applies to RESPA actions brought in court. According to the CFPB, no such limit applies to RESPA actions brought in an administrative forum.
This is far from the first appellate oral argument for DeMille-Wagman, who represented the FTC in federal courts of appeals for over 20 years and won the agency's Louis D. Brandeis litigation award in 2001, according to a 2008 FTC annual report.
In 2003, he successfully defended the FTC's Do Not Call rule in an argument before the Tenth Circuit, Mainstream Marketing Servs., Inc. v. Federal Trade Comm., 358 F.3d 1228. The U.S. Supreme Court turned away a petition to review the ruling in 2004.
DeMille-Wagman's extensive preparations earned him joking admiration from a lawyer against whom he faced off in 2007.
The ease with which he rattled off case citations and page numbers of precedents during an oral argument before the Third Circuit on behalf of the FTC, prompted his opposing counsel to quip DeMille-Wagman's memory might make him a good card counter should he take up gambling, according to The Deal.
After the standing-room-only courtroom broke into laughter, DeMille-Wagman quickly regained his composure and joked that the court's instructions tell lawyers to “come prepared,” for oral arguments so “I did,” The Deal reported.
DeMille-Wagman's service in the federal government spans several decades, and follows the career trajectory of his father, Donald David Wagman, who joined the National Bureau of Standards (now the National Institute of Standards and Technology) in 1940 and retired as director of NIST's chemical thermodynamics data center in 1980, according to his 1992 Washington Post obituary.
Admitted to the D.C. Bar in 1977, DeMille-Wagman worked from 1978 to 2011 at the FTC, where he began his tenure on the staff of then-commissioner David A. Clanton, DeMille-Wagman said in a video posted on the commission’s website.
“I really think a great deal of him,” David A. Clanton told Bloomberg BNA in an April 5 telephone interview. “I like Larry, and I have very high praise for what he did while at the FTC,” said Clanton, now a senior counsel in the Washington, D.C., offices of Baker & McKenzie whose practice focuses on antitrust and consumer protection matters.
DeMille-Wagman subsequently worked at the Commodity Futures Trading Commission before moving to the CFPB, which declined to comment for this story.
DeMille-Wagman has argued or participated in cases involving a wide range of matters: a CFTC rule on position limits covering commodities contracts and their swaps equivalents; the legality of certain payment agreements in the pharmaceutical industry; claims of deceptive advertising in connection with weight-loss products; a software company's legal responsibility for scammers' creation of fraudulent checks; the FTC's ability to videotape investigative depositions; and others.
More recently, in addition to the PHH case, DeMille-Wagman is representing the CFPB in the Seventh Circuit, where ITT Educational Services is seeking to appeal a district court ruling involving a CFPB enforcement action against ITT. The agency says ITT exploited its students by pushing them into loans it knew were likely to default.
Among other matters, DeMille-Wagman also joined a March 28 brief for the CFPB in a lawsuit by State National Bank of Big Spring, Texas, which says the CFPB is unconstitutional and that President Barack Obama's 2012 recess appointment of Cordray was unlawful.
He also worked on the CFPB's amicus brief in Sheriff v. Gillie, a Fair Debt Collection Practices Act case argued March 29 in the U.S. Supreme Court.
Outside of work, Wagman is a long-distance swimmer, who has competed in an annual race across the Chesapeake Bay, according to a 2007 article in The Capital newspaper of Annapolis.
"I work out four times a week and try to increase the distance I swim," DeMille-Wagman told The Capital. “I sign up in January and forget about (the race) for a few months and then I start to focus."
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