The U.S. Supreme Court will likely consider whether to grant or deny certiorari in the Madden v. Midland Funding case at its June 23 conference. In addition, Midland filed a supplemental brief with the Supreme Court on June 7 in response to the Solicitor General’s brief.
Midland’s Supplemental Brief
Midland filed its supplemental brief with the Court on June 7 in response to the May 26 Solicitor General’s brief regarding the government’s views on whether this case should be granted certiorari. A summary of the Solicitor General’s brief is available here.
The supplemental brief continued the push for certiorari and highlighted the strong position taken by the Solicitor General that the decision of the U.S. Court of Appeals for the Second Circuit was incorrect. However, in contrast to the recommendation by the Solicitor General that the Court should ultimately deny the case, Midland reiterated its view that the Court should take the case because it is “critical to the functioning of the national banking system and to the availability of consumer credit.” In addition to refuting the Solicitor General’s view that there is no split in the circuit, the brief cited that a recent study found that the Second Circuit’s decision is “having a significant impact” on the “volume of loans issued to higher-risk borrowers,” and, since the decision, the loan volume has fallen by 48 percent within the Second Circuit. Additionally, Midland also points out that class actions have been filed against marketplace lenders invoking the Second Circuit’s decision. This emphasizes the need for clarity and for the Court to grant certiorari in this case.
The Supreme Court Conference
On June 7, an entry in the docket in the case indicated that the Supreme Court would consider the issue of granting certiorari at its office conference on June 23. If a decision is not made at that conference, then the next conference will not be until September 26. Unless there is a postponement of this consideration, we can expect to know the fate of Madden on June 27.