CashCall is a lender that makes unsecured, high-interest loans to consumers via a related company incorporated under the laws of the Cheyenne River Sioux Tribe. In 2022, the Ninth Circuit decided CFPB v. CashCall, in which it affirmed a district court’s finding, after a bench trial, that CashCall committed an unfair, deceptive, or abusive act or practice in violation of the CFPA by attempting to collect interest and fees to which it was not legally entitled. The court vacated and remanded the district court’s denial of legal restitution, however.
On remand, the district court ordered CashCall to pay more than $134 million in legal restitution. CashCall again appealed, arguing, among other things, that the restitution order triggered its Seventh Amendment right to a jury trial.
Today, the Ninth Circuit affirmed the district court’s order. As to the Seventh Amendment, the court found that CashCall waived any such rights during the initial bench trial proceedings, without resolving whether such rights existed at all. Indeed, the parties had submitted a joint status report stating ““[t]he parties have agreed to waive their right to a jury and proceed with a bench trial to determine the appropriate relief, should trial be necessary.” That the parties had mistakenly referred to disgorgement remedies as equitable at the time did not invalidate the waiver. The court also rejected challenges to the district court’s calculation of legal restitution.
Concurring, Judge Nelson agreed that CashCall had waived any Seventh Amendment right, but wrote separately to explain why he thought that FTC v. Commerce Planet, a 2016 Ninth Circuit case that held that claims for restitution do not implicate the Seventh Amendment, was wrongly decided and should be reconsidered en banc in an appropriate case, invoking the Supreme Court’s recent Jarkesy opinion.
