On February 18, the CFPB released a Decision and Order denying a joint request to set aside civil investigative demands (CIDs) issued in 2019 to four online installment lenders owned by a federally recognized Indian tribe, as well as a processing services company. The CIDs in dispute were issued to the petitioners last October and sought information “to determine whether lenders or associated individuals or entities have violated the Consumer Financial Protection Act’s (CFPA) prohibition on unfair, deceptive, and abusive acts and practices [(UDAAP)] by collecting amounts that consumers did not owe or by making false or misleading representations to consumers in the course of servicing loans and collecting debts.” As previously covered by InfoBytes, four of the petitioners were also part of a 2017 CFPB enforcement action, which alleged that the lenders’ practices violated UDAAP and the Truth in Lending Act. This action was voluntarily dismissed without prejudice in 2018 (covered by InfoBytes here).
According to the CFPB, the joint petition to set aside or modify the CIDs sets out five primary arguments: (i) the CFPB “lacks authority to investigate entities that are arms of a tribe”; (ii) the lenders cannot comply with the CIDs without violating a protective order issued by the Tribal Consumer Financial Services Regulatory Commission; (iii) “the CIDs lack a proper purpose”; (iv) “the CIDs are overly broad and unduly burdensome”; and (v) the CIDs should be withdrawn or stayed pending the U. S. Supreme Court’s ruling in Seila Law LLC v. CFPB about whether the structure of the CFPB is unconstitutional.
The CFPB’s denial of the petitioners’ request addresses each of the arguments. First, it rejects that it lacks authority to investigate “arms of a tribe” based on, among other things, a Ninth Circuit case holding that the CFPA applies to tribal businesses and numerous cases holding that tribes “do not enjoy sovereign immunity from lawsuits brought by the federal government.” Second, while noting the CFPB’s “utmost respect” for, and desire to coordinate with, state and tribal regulators, the agency is not required to coordinate with such regulators before carrying out its responsibility to investigate potential violations of federal consumer law. Third, with respect to whether the CIDs have a proper purpose, the CFPB asserts, among other things, that the dismissal of the earlier lawsuit does not preclude it from bringing future actions, and moreover, even if some of the requested information relates to potentially time-barred conduct, it does not undermine the overall validity. Fourth, concerning the petitioners’ claims that the CIDs are overbroad or unduly burdensome, the CFPB states that the petitioners did not meaningfully engage during the meet-and-confer-process and have not adequately specified or identified how or why the CIDs would be unduly burdensome. Finally, regarding the constitutional issue, the CFPB notes that it has consistently stated that “the administrative process set out in the [CFPB’s] statute and regulations for petitioning to modify or set aside a CID is not the proper forum for raising and adjudicating challenges to the constitutionality of the [CFPB’s] statute.” The CFPB directs the petitioners to comply with the CIDs within 30 days of the order.