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 decision in 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.”