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Lawyer in CFPB Fight Is Frequent Trump Foe

Nov. 28, 2017, 4:55 PM

The lawyer representing Leandra English in her mission to lead the Consumer Finance Protection Bureau is no stranger to taking on President Donald Trump in court.

Deepak Gupta, a veteran appellate litigator and former CFPB senior attorney, has filed several high-profile cases against the president in his first year of office. Gupta’s latest shot at Trump comes in the court battle over who is the legitimate acting director of the CFPB. He represents English as she squares off against Office of Management and Budget Director Mick Mulvaney, who Trump picked to replace Richard Cordray after he resigned as director Nov. 24.

In representing English, Gupta and a team of attorneys late Nov. 26 requested a court order confirming English’s status as acting director and said Trump’s appointment of Mulvaney as acting director is unlawful. The judge overseeing the case, Trump-appointee Timothy J. Kelly, scheduled a hearing Nov. 27.

The Justice Department and lawyers for English are clashing over whether Trump has the authority to name a temporary leader until the Senate confirms a new director. A Department of Justice memo said the Federal Vacancies Reform Act gives Trump the right to name Mulvaney even though the Dodd-Frank Act provides a succession process. But Gupta argues that in Dodd-Frank, Congress made it clear that the Vacancies Act wouldn’t govern succession in the event of a vacancy in the director’s position.

“The President’s attempt to install a White House official at the head of an independent agency — while allowing that official to simultaneously serve in the White House — is unprecedented,” Gupta said in a statement. “The law is clear: Leandra English is acting director of the Consumer Financial Protection Bureau until the Senate confirms a new director.”

Familiar Figure

Gupta has spent a lot of time this year opposing Trump in court. In September, he told a New York district judge the president shouldn’t be allowed to continue to own and profit from his businesses while in office. Legal watchdog Citizens for Responsibility and Ethics in Washington, which Gupta represents, says Trump is violating constitutional provision the Emoluments Clause, which forbids presidents from accepting economic benefit from foreign governments or the U.S. government beyond a salary.

Gupta has also taken on the case of a former Trump University student who says she was swindled by the program. The student, Sherri Simpson, is challenging the approval of a settlement entered into the class action against the program because it removes the ability of her to opt out, in violation of the requirements of class actions.

Gupta filed an amicus brief in a case over the Labor Department’s decision to drop its defense of a rule aimed at preventing financial advisers from insulating themselves from class litigation. Gupta, representing the nonprofit group American Association of Justice, believes the anti-arbitration condition is a valid exercise of DOL authority that’s in line with the Federal Arbitration Act.

Appellate Veteran

Gupta will no doubt lean on his experience arguing in appeals courts, where he’s established himself as a familiar figure. In the last Supreme Court term, Gupta’s boutique law firm Gupta Wessler was involved with three high court oral arguments.

Gupta created the firm in 2012 with the mission of “protecting the little guy against the big guy,” he told Bloomberg Law in a 2016 interview. Past clients include former professional football players, California truck drivers, and the gun control group Everytown for Gun Safety.

A graduate of Fordham University and Georgetown Law, Gupta learned how to practice law working at the consumer protection group Public Citizen, where he founded a legal team dubbed the Consumer Justice Project and served as a Supreme Court fellow. Gupta intended to spend his career at Public Citizen before he was approached to work for the Consumer Financial Protection Bureau at the time of its founding. Sen. Elizabeth Warren (D-Mass.) interviewed and selected Gupta for a senior counsel position, and he served in that role for several years.

“There’s a new problem in every case that we do,” Gupta told Bloomberg BNA in the prior interview. “I get to learn about a completely new area, create a narrative around it. There’s an open question in the law and we get to put together a compelling argument and hopefully change law in a way, that if things work out right, actually improve some people’s lives.”

To contact the reporter on this story: Liz Crampton in Washington

To contact the editor responsible for this story: Fawn Johnson