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CFPB opposes petition for certiorari filed by tribal lenders in Ninth Circuit case

The CFPB has filed a brief opposing the petition for certiorari filed by two tribally-affiliated lenders seeking U.S. Supreme Court review of the Ninth Circuit’s decisionin CFPB v. Great Plains Lending, LLC, et al.  In that decision, the Ninth Circuit rejected the lenders’ challenge to the CFPB’s authority to issue civil investigative demands (CID) to companies that are “arms” of Native American tribes.

After the CFPB denied their petition to set aside the CIDs, the lenders refused to comply with the CIDs.  The CFPB then filed a petition to enforce the CIDs in a California federal district court.  The district court granted the CFPB’s petition and the lenders appealed to the Ninth Circuit.  Because courts apply less scrutiny to jurisdictional challenges in pre-complaint investigations, the Ninth Circuit limited its inquiry to whether the CFPB’s authority was “plainly lacking” and concluded that Congress likely did not intend to exclude tribally-owned financial services companies from CFPA coverage.

The CFPB authorizes the CFPB to issue CIDs to “any person” and defines “person” to include “company[ies]” and “other entities.”  In its opposition to the lenders’ certiorari petition, the CFPB argues that the Ninth Circuit correctly held that it did not plainly lack jurisdiction to issue the CIDs to the lenders and that the Ninth Circuit’s interpretation of the term “person” to include all companies that offer financial services to consumers nationwide without regard to tribal ownership does not conflict with any Supreme Court decision or present a circuit conflict.  In addition, the CFPB argues that the lenders had not yet factually established their status as “arms of the Tribe.”

Copyright © by Ballard Spahr LLP


About this Author

Barbara S. Mishkin, Ballard Spahr, Philadelphia, Deceptive Practices Lawyer, Fair Debt Collection Practices Act, Gramm Leach Bliley
Of Counsel

Barbara Mishkin focuses on consumer compliance and banking law. The federal laws with which Ms. Mishkin has dealt extensively include the Truth in Lending Act, Equal Credit Opportunity Act, Real Estate Settlement Procedures Act, Fair Credit Reporting Act, Fair Debt Collection Practices Act, and Gramm-Leach-Bliley Act. She also has significant experience with state usury and lender licensing laws, as well as state laws prohibiting unfair and deceptive acts and practices.

American Bar Association, member, Consumer Financial Services Committee;...