On August 2, the CFPB responded to a letter submitted by 35 republican members of Congress who were concerned about the fair lending guidance the CFPB issued to indirect auto lenders earlier this year. The CFPB’s fair lending guidance (i) confirmed the CFPB’s position that indirect auto finance companies are “creditors” subject to the fair lending requirements of ECOA and Regulation B and (ii) concluded that indirect auto finance companies may be liable under the legal theories of both disparate treatment and disparate impact when pricing disparities on a prohibited basis exist within their portfolios. The CFPB’s August 2 response affirms its indirect auto lending guidance and explains the proxy methodology it employs to identify potential pricing disparities affecting protected classes. In support of its approach, the CFPB asserts that use of proxies for unavailable data is generally accepted and maintains that disparities will be considered “in view of all other evidence,” including the finance companies’ own analysis. The CFPB emphasized that “each supervisory examination or enforcement investigation is based on the particular facts presented” and that the CFPB “typically look[s] to whether there is a statistically significant basis point disparity in dealer markups received by the prohibited basis group.”