Overview

Jay N. Varon is a partner and litigation lawyer in the firm's Washington D.C. office. Mr. Varon has litigated a broad cross-section of commercial cases around the country, including matters relating to the Real Estate Settlement Procedures Act (RESPA) and other federal and state consumer financial services laws, as well as cases involving antitrust, unfair competition, deceptive trade practice, trade secrets, environmental, business tort, securities fraud, and products liability issues.

Many of Mr. Varon’s cases involve the defense of class actions or other high stakes matters as well as proceedings before administrative agencies like the Consumer Financial Protection Bureau (CFPB) or Federal Trade Commission (FTC).

RESPA and Other Consumer Financial Services Experience

A niche area of Mr. Varon’s practice involves defending and counseling real estate clients (i.e., real estate brokers, MLS’s, mortgage brokers and lenders, mortgage, title, and hazard insurers, home warranty companies, title agents) with respect to consumer finance, fair lending, UDAAP, and related issues, including those involving the establishment of affiliated business arrangements and joint ventures under RESPA.

Mr. Varon is regularly involved in representing such clients on forming compliant arrangements and defending other clients in investigations, and enforcement proceedings before the CFPB, HUD/FHA, and/or state agencies and departments of insurance.

Representative Consumer Financial Services Cases 

  • Friedman v. Old Republic Home Protection Co., Inc., 2015 U.S. Dist. LEXIS 175735 (C.D. Cal. May 18, 2015) (denying motion to certify plaintiff’s California state law claims for false advertising and unfair competition)
  • Campion v. Old Republic Home Protection Co., Inc., 775 F.3d 1144 (9th Cir. 2014) (holding that appeal from summary judgment ruling for the defense and denial of class certification was moot, with concurrence affirming on merits) 
  • White v. JRHBW Realty Inc., 2015 U.S. Dist. LEXIS 123432 (N.D. Ala. Sept. 16, 2015) (dismissing RESPA class action claims modeled after CFPB settlement complaint) 
  • Bolinger v. First Multiple Listing Service, Inc., 838 F. Supp. 2d 1340 (N.D. Ga. 2012) (granting summary judgment for defendants in rejection of novel RESPA claim that multiple listing service (MLS) fees to real estate brokers were part of the brokers’ fees to consumers and that alleged referrals to MLS and discounting of MLS fees violated RESPA Section 8) 
  • Minter v. Wells Fargo Bank, N.A., 762 F.3d 339 (4th Cir. 2014) (in a certified class action, affirming jury trial verdict, as well as post-trial rulings, for the defense on RESPA “sham” joint venture claims) 
  • Petry v. Wells Fargo Bank, N.A., 2014 U.S. APP LEXIS 13064 (4th Cir. Jul. 10, 2014) (affirming judgment for the defense in Maryland Finder’s Fee Act case) 
  • Busby v. JRHBW Realty, Inc., 2012 U.S. Dist. LEXIS 145037 (N.D. Ala. June 14, 2012) (awarding summary judgment to the defense in RESPA mark-up case) 
  • Hannan v. Weichert South Jersey Inc., 2007 N.J. Super. Unpub. LEXIS 1238 (App. Div. May 22, 2007) (affirming denial of class certification in New Jersey Consumer Fraud Act case) 
  • Snow v. First Am. Title Ins. Co., 332 F.3d 356 (5th Cir. 2003) (consolidated appeal from rulings for the defense on RESPA statute of limitations grounds)

Other similar representations have resulted in favorable rulings or class settlements, including in cases under TILA and FCRA, as well as the defense of a major mortgage insurer in a series of nationwide RESPA class actions involving captive reinsurance.

Consumer Financial Industry Amicus Briefs

Mr. Varon has authored a number of amicus briefs on issues of importance to members of the consumer financial industry, including in PHH Corp v. CFPB, No. 15-1177, U.S. Court of Appeals for the D.C. Circuit (arguing against CFPB Director Cordray’s interpretation of RESPA Section 8(c) and RESPA statute of limitations); Spokeo v. Thomas Robins, No. 13-1339, U.S. Supreme Court (re no-injury class actions); Carter v. Wells Bowen Realty, 736 F.3d 722 (6th Cir. 2013) (re interpretation of HUD sham joint venture guidelines); Freeman v. Quicken Loans, Inc., 132 S.Ct. 2034 (2012) (re meaning of RESPA 8(b) and markup claims), among other cases.

Antitrust

Mr. Varon has an active antitrust litigation and counseling practice. He has served as lead counsel for one of the two defendants in two antitrust and consumer protection MDL cases, as well as an FTC investigation regarding activities in the propane distribution business. Mr. Varon also represents various clients, including some consumer finance clients (e.g., mortgage and title insurers), in antitrust and related regulatory investigations before the Federal Trade Commission, the Department of Justice, state Departments of Insurance, as well as before state district attorneys and attorney generals.

CERCLA

Mr. Varon has obtained favorable results in CERCLA cases following several federal bench trials and in summary judgment decisions. In one such case that went to trial, Mr. Varon’s utility client was absolved from liability at 12 different Manufactured Gas Plant (MGP) sites, a result that was affirmed on appeal. See Yankee Gas Servs. Co. v. UGI Utils., Inc., 428 Fed. App’x 18 (2d Cir. 2011). Mr. Varon obtained a successful result in a related allocation trial concerning an additional site. See Yankee Gas Servs. Co. v. UGI Utils., Inc., 852 F. Supp. 2d 229 (D. Conn. 2012). Another case yielded a favorable ruling following a bench trial in South Carolina. See South Carolina Elec. & Gas Co. v. UGI Utils., Inc., 2012 WL 1432543 (D.S.C. Apr. 11, 2012). See also Consol. Edison Co. of New York v. UGI Utils., Inc., 153 F. App’x 749 (2d Cir. 2005); Atlanta Gas Light Co. v. UGI Utils., Inc., 463 F.3d 1201 (11th Cir. 2006) (each affirming summary judgment rulings for the defendant).

Other Complex Litigation Experience

Mr. Varon served as lead counsel for an energy client in sixteen different consumer fraud and deceptive practices class actions that were consolidated for pretrial proceedings and discovery by the Multidistrict Panel on Litigation and then resolved via settlement.

Education

Mr. Varon is a magna cum laude graduate of the Wharton School of the University of Pennsylvania. He attended Stanford Law School, where he was an articles editor of the Stanford Law Review and graduated Order of the Coif. Following law school, he was a law clerk to the Honorable Robert F. Peckham, Chief Judge of the United States District Court for the Northern District of California in San Francisco.

Thought Leadership

Mr. Varon has written several amicus briefs for industry trade associations in such cases as Spokeo v. Robins, (Article III Standing); Carter v. Wells Bowen Realty (RESPA and Rule of Lenity); PHH v. CFPB (Authority of CFPB and interpretation of RESPA Section 8) and has authored many publications on regulatory and litigation issues, including “A Response To the CFBP’s Recent Compliance Bulletin on MSAs,” “RESPA Primer on Joint Ventures and Affiliated Business Arrangements,” “Guide to Section 8 of RESPA for Settlement Service Salespersons,” “Promoting Settlements and Limiting Costs By Means of the Offer of Judgment: Some Suggestions for Using and Revising Rule 68, 33 Am. U. Law Rev. 813 (1984),” among others.

Representative Matters

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Represented a propane supplier in defense of direct and indirect purchaser class actions in a consolidated multi-district litigation, in which plaintiffs allege price-fixing and related antitrust violations.
Represents Student CU Connect CUSO and other Foley clients that have been sued by the ITT trustee to avoid $250 million of transfers, transactions, liens, and claims. Foley’s clients provided private student loans to ITT’s students from 2009 through 2011, funding nearly $190 million of student loans.
Foley’s litigation team formulated a complaint and initiated an action against the Veterans Administration for paying this nationwide provider of dialysis services for non-contracted services at a rate significantly lower than the payment rate mandated by the VA's own payment regulations. The complaint was filed the complaint in the Court of Federal Claims; motions practice is ongoing.