CFPB Denies Petition to Set Aside Civil Investigative Demand Issued to Lead Generator

On August 6, 2015, the Consumer Financial Protection Bureau (CFPB) issued an order denying a petition to modify or set aside a Civil Investigative Demand (CID) issued to an employee of a marketing company that generates and sells leads.  According to the petition, the CID sought oral testimony to determine “whether lead generators or other unnamed persons have engaged or are engaging in unlawful acts and practices in connection with the marketing, selling, or collection of payday loans, inviolation of Sections 1031 and 1036 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.”  The petition argued that the CID failed to aprise the company of the nature of the conduct constituting the alleged violation, and that the company is neither a “service provider” or “covered person” within the meaning of the Dodd-Frank Act because the company does not “offer or provide” a “financial product or service.”  The CFPB rejected both arguments.  First, the order noted that a “detailed narrative” explaining the CID’s purpose is unnecessary and that the CID was sufficiently detailed because it “identifies the relevant provisions of law.”  Second, the order emphasized that the company waived its argument that the CFPB lacked authority under the Dodd-Frank Act because the argument was not raised during the meet-and-confer process with CFPB counsel, which CFPB rules require.  The order also noted that “fact-based arguments about whether an entity is subject to or complied with a law’s substantive provisions are not defenses to the enforcement of a CID.”