United States District Court, W.D. Wisconsin
WILLIAM M. CONLEY District Judge.
court has reviewed plaintiff's motion for reconsideration
under Fed.R.Civ.P. 54(b) challenging Judge Crabb's
previous invalidation of two provisions in Regulation O's
attorney exemption. (Dkt. #257.) More specifically,
plaintiff raises two basic challenges to the court's
January 14 and April 21, 2016, summary judgment opinions
& orders (dkt. #144 and #187):
(1) the court misread the Consumer Protection Act (CPA) and
misinterpreted related regulations by improperly applying
step one of the analysis under Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837
(2) the court should not have found that the plaintiff
unreasonably exercised its rulemaking authority in issuing
portions of Regulation O under step two of the
respect to both challenges, plaintiff generally repeats the
same arguments raised in its summary judgment briefs over a
year ago, neither making new legal arguments nor alleging new
facts from its previous briefing in the fall of 2015.
Instead, plaintiff's sole basis for the motion for
reconsideration appears to be a non-binding and unpublished
opinion from the Middle District of Florida, FTC v.
Lanier Law, LLC, 2016 WL 3632371 at *27-28 (M.D. Fla.
Jul. 7, 2016), that reached a different conclusion with
respect to the validity of Regulation O's attorney
exemption, also last year.
offers no explanation as to why it waited more than six
months after the decision in Lanier Law to file its
motion, which is sufficient grounds by itself, for denying
the motion. Indeed, much has happened in that period. For
example, Judge Crabb issued a third summary judgment decision
on July 20, 2016, relating to liability and damages; the
parties have engaged in significant additional discovery; and
they filed a number of motions in anticipation of trial,
which is set to begin next week. Plaintiff's failure to
move for reconsideration until the eve of trial is simply
unreasonable. Moreover, even if plaintiff's renewed
challenges had not been waived, the court finds no grounds
for reconsideration for the reasons set forth below.
O, 12 CFR § 1015.7, contains an exemption for attorneys
that reads as follows:
§ 1015.7 Exemptions
(a) An attorney is exempt from this part, with the exception
of § 1015.5 [prohibiting charging advance fees], if the
(1) Provides mortgage assistance relief services as part of
the practice of law;
(2) Is licensed to practice law in the state in which the
consumer for whom the attorney is providing mortgage
assistance relief services resides or in which the
consumer's dwelling is located; and
(3) Complies with state laws and regulations that cover the
same type of conduct the rule requires.
(b) An attorney who is exempt pursuant to paragraph (a) of
this section is also exempt from § 1015.5 [advance ...