Marketing Firm Targeted by CFPB Says Case Cost Justifies Appeal

By
Chris Bruce

A marketing company sued by the Consumer Financial Protection Bureau says its potential
exposure to $1.7 billion in damages justifies a mid-case appeal of a recent ruling
to the U.S. Court of Appeals for the Ninth Circuit (


Cons. Fin. Protection Bureau v. D & D Marketing, Inc.

, 9th Cir., 17-cv-80049, motion to file reply
4/19/17
).

At issue in the attempted appeal by Burbank, Calif.-based D&D Marketing Inc. is whether
the CFPB can continue its lawsuit against D&D Marketing even though the judge hearing
the case has already said the CFPB is unconstitutionally structured.

The company says that if it loses in the district court, it would have to obtain a
bond that it can’t afford if it wants to appeal. That means its only real access to
the Ninth Circuit in this case is an interlocutory appeal – one it said makes sense
given the enormous amounts at stake. “If a defendant’s
ten-figure exposure does not justify interlocutory review, it is hard to imagine what
does,”
D&D Marketing said in an attachment to a motion filed in the Ninth Circuit April 19
(emphasis in original).

D&D Marketing buys and sells consumer loan information. The latest skirmish between
the company and the CFPB followed a decision by the district court that said that
even though the CFPB is unconstitutionally structured, the agency can continue its
suit against D&D Marketing. At that point, D&D Marketing filed a
petition for an interlocutory appeal to the Ninth Circuit. The CFPB April 10 filed a
brief in opposition to the petition, in part citing an antitrust case that said such appeals
are appropriate only to avoid “protracted and expensive litigation.”

Now, D&D Marketing wants to respond and has asked the Ninth Circuit for permission
to add to its to its arguments. The cost of this case, the company said, supports
its request for the interlocutory appeal. According to D&D Marketing, the CFPB’s lawsuit
exposes D&D Marketing to more than $1.7 billion in damages.

Original Remedy Challenged

According to D&D Marketing, its potential financial exposure is part of the CFPB’s
strategy. “Realizing that D&D cannot possibly bond a ten-figure judgment in a post-judgment
appeal, the Bureau’s real goal is to maximize its leverage to coerce a settlement
based on D&D’s mere exposure to such a crushing judgment,” it said.

The Ninth Circuit hasn’t yet ruled on whether the company made add its new argument,
nor whether it will allow the interlocutory appeal..

In the underlying case, the U.S. District Court for the Central District of California
in November
said the CFPB is unconstitutionally structured, but allowed the agency to press its case
against D&D Marketing. Even so, the district court March 21
certified to the Ninth Circuit a question about the proper…

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