Consumer Financial Protection Bureau v. Nationwide Biweekly Administration, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 17, 2025
• Docket: 24-5940
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 17 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CONSUMER FINANCIAL PROTECTION No. 24-5940 BUREAU, D.C. No. 3:15-cv-02106-RS Plaintiff-ctr-defendant - Appellee, MEMORANDUM* v.

NATIONWIDE BIWEEKLY ADMINISTRATION, INC.; LOAN PAYMENT ADMINISTRATION LLC; DANIEL S. LIPSKY,

Defendant-ctr-claimants - Appellants.

Appeal from the United States District Court for the Northern District of California Richard Seeborg, Chief District Judge, Presiding

Submitted November 10, 2025** San Francisco, California

Before: CALLAHAN, BUMATAY, and VANDYKE, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Nationwide Biweekly Administration, Inc., Loan Payment Administration

LLC, and Daniel S. Lipskey (collectively, “Nationwide”) appeal from a bench trial

in which they were held liable and assessed penalties for deceptive and abusive

practices under the Consumer Financial Protection Act of 2010 (“CFPA”). We

previously remanded this case to the district court to consider the effect of relevant

Supreme Court and Ninth Circuit opinions issued while the first appeal was pending.

Consumer Fin. Prot. Bureau v. Nationwide Biweekly Admin., Inc., No. 18-15431,

2023 WL 566112 (9th Cir. Jan. 27, 2023).

As the parties are familiar with the facts, we do not recount them here. We

review the district court’s findings of facts for clear error, Yu v. Idaho State Univ.,

15 F.4th 1236, 1241 (9th Cir. 2021), interpretations of law de novo, Marsh v. J.

Alexander’s LLC, 905 F.3d 610, 618 (9th Cir. 2018), and evidentiary rulings for

abuse of discretion, Balla v. Idaho, 29 F.4th 1019, 1024 (9th Cir. 2022). We

AFFIRM.

1. Nationwide first argues that the district court’s factual findings, which

underpinned its CFPA liability, were clearly erroneous. It claims that (1) findings

that customers were led astray by representations of “immediate” savings were

insufficiently supported by evidence, (2) findings that reasonable customers could

have been deceived by promises of specific amounts of monthly or yearly savings

were incompatible with other findings, (3) findings that customers were confused as

2 24-5940 to whether Nationwide was affiliated with their lenders were contradicted by other

evidence, and (4) findings that some reasonable customers would have been misled

into believing Nationwide’s services were unique were based on illogical

assumptions about the sophistication of typical mortgage holders.

Nationwide’s arguments fail under the deferential standard of review

applicable in this case. Factual findings will not be upset on clear-error review

unless the record compels “a definite and firm conviction” that the district court was

mistaken. Wash. Mut., Inc. v. United States, 856 F.3d 711, 721 (9th Cir. 2017)

(quoting Husain v. Olympic Airways, 316 F.3d 829, 835 (9th Cir. 2002)). Here, upon

a careful review of the trial record, substantial evidence supports each of the district

court’s findings. Moreover, because the district court was sitting as a trier of fact, it

was within its discretion to discount Nationwide’s expert witnesses and studies

regarding customer sophistication. Finally, even if some of the district court’s

factual findings were not perfectly harmonious, they were not so contradictory as to

compel “a definite and firm conviction” that a mistake was made.

2. Nationwide next argues that the civil enforcement action against it was

invalid because of the Consumer Finance Protection Bureau (“CFPB”) director’s

unconstitutional for-cause removal protections between 2015 and 2020. See Seila

Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 213, 238 (2020) (striking

down the CFPB director’s for-cause removal protections as unconstitutional).

3 24-5940 Nationwide argues the enforcement action here is void because (1) it was harmed

specifically by the CFPA’s unconstitutional for-cause removal provision in effect

when this suit was filed, and (2) there was no valid after-the-fact ratification of the

enforcement action by a CFPB director subject to direct Presidential oversight.

We need not address the second argument because Nationwide fails on the

first under binding precedent. See Consumer Fin. Prot. Bureau v. Cashcall, Inc., 35

F.4th 734, 742 (9th Cir. 2022) (citing Collins v. Yellen, 594 U.S. 220 (2021)).

Nationwide claims that the CFPB exhibited a culture of “recklessness,” caused by

the CFPA’s for-cause removal protections, which was contrary to then-President

Barack Obama’s wishes. It further argues that the CFPB would not have pursued

the enforcement action here were it not for such a culture. But Nationwide merely

relies on non-specific evidence from publicly available executive orders,

Congressional testimony, speeches by agency heads, and news articles, along with

an audio recording of a private-sector bank employee generally criticizing the CFPB.

None of this evidence shows that President Obama would not have pursued the

specific investigation of Nationwide at issue here. Nor is such generic evidence

sufficient to prove Nationwide suffered other constitutional harms under any

standard.

3. Nationwide next argues that this enforcement action is void because the

statute of limitations had run before the CFPB filed suit on May 11, 2015. The

4 24-5940 statute of limitations would have run if the CFPB had either discovered or reasonably

should have discovered the violations at issue here before May 11, 2012. See 12

U.S.C. § 5564(g)(1) (providing that CFPA enforcement actions must be brought

within three years of “discovery” of a violation); Merck & Co., Inc. v. Reynolds, 559

U.S. 633, 648 (2010) (holding that statutes of limitations based on “discovery” are

triggered as of the date of actual discovery of necessary facts or as of the date by

which a reasonably diligent litigant would have discovered such facts). The district

court found neither condition applied, a finding which we review for clear error.

Kingman Reef Atoll Invs., L.L.C. v. United States, 541 F.3d 1189, 1195 (9th Cir.

2008).

The district court did not clearly err. First, Nationwide points to a March 3,

2012, online customer complaint to the CFPB generally alleging that Nationwide

was “deceptive in its business practices,” and claiming that the author thought that

Nationwide was affiliated with his lender. But there is no evidence that, based on

the single online complaint, the CFPB discovered or reasonably should have

discovered the specific violations that were reflected in its 2015 lawsuit within the

few months between March 3 and May 10, 2012. Second, Nationwide points to

Richard Cordray’s 2011 appointment as the CFPB’s enforcement head. It claims

that the statute of limitations began running at that point because of Cordray’s

previous involvement with state-law actions against Nationwide as Ohio’s state

5 24-5940 attorney general. But, even assuming that Cordray’s prior personal knowledge could

be imputed to the CFPB upon his appointment, no record evidence shows Cordray

had sufficient personal knowledge from his time in the Ohio state attorney general’s

office to support the later-in-time violations reflected in the CFPB enforcement

action here.

4. Nationwide next argues that the district court’s findings were not properly

specified in its Fed. R. Civ. P. 52(a) order. But Nationwide did not make a timely

motion below to amend the district court’s findings. See Fed. R. Civ. P. 52(b)

(providing that motions to amend findings must be brought within 28 days of the

entry of judgment). The failure to do so forfeits on appeal arguments that district

court findings are not sufficiently specific. See Hollinger v. United States, 651 F.2d

636, 640–41 (9th Cir. 1981).

5. Nationwide next argues that it was not a “seller” covered by the

Telemarketing and Consumer Fraud and Abuse Prevention Act (“TCFAPA”)

because it does not cold-call customers or execute contracts or payment over the

phone for its services. The Act defines “telemarketing” as “a plan, program, or

campaign which is conducted to induce purchases of goods or services . . . by use of

one or more telephones and which involves more than one interstate telephone call.”

15 U.S.C. § 6106(4). Regulations define a “seller” as any “person who, in

connection with a telemarketing transaction, provides, offers to provide, or arranges

6 24-5940 for others to provide goods or services to the customer in exchange for

consideration.” 16 C.F.R. § 310.2(ee).

Nationwide was a “seller” because its activities were encompassed within the

TCFAPA’s plain statutory and regulatory text. As to statutory language, Nationwide

engaged in “telemarketing” because it sent out mailers and operated a call center that

fielded millions of telephone calls, all to induce callers to sign up for its services.

See 15 U.S.C. § 6106(4). And it was a “seller” under the TCFAPA’s regulations

because it “offer[ed] to provide” financial services to customers who called it. 16

C.F.R. § 310.2(ee). Moreover, Nationwide’s attempt to limit the TCFAPA’s reach

only to sales conducted exclusively by phone fails considering the statute’s explicit,

narrower exemption for sales conducted by phone if customers call in response to a

mailed, written catalogue. See 15 U.S.C. § 6106(4); see also Andrus v. Glover

Constr. Co., 446 U.S. 608, 616–17 (1980) (relying on the interpretive canon that

where a broad statutory term includes enumerated exceptions, courts should not

imply unwritten ones).

6. Nationwide finally argues that its counterclaims against the CFPB were

improperly rejected and that supportive evidence was impermissibly excluded.

Nationwide’s counterclaims alleged, in essence, that the CFPB’s issuance of a press

release about its 2015 enforcement action violated Nationwide’s due process rights

because it destroyed Nationwide’s relationships with banking partners. The district

7 24-5940 court denied the counterclaims at trial because Nationwide pointed to no evidence

that the banks were specifically motivated by the CFPB’s press release to

discontinue their relationships with Nationwide.

On appeal, Nationwide argues that the district court applied the wrong legal

standard in holding that the CFPB did not violate Nationwide’s due process rights.

Pointing to various Ninth Circuit cases, Nationwide argues only a “connection”

between wrongful government conduct and reputational harm is needed to show a

due process violation under the governing “stigma-plus” test, rather than

“causation.” See Ulrich v. City & Cnty. of San Francisco, 308 F.3d 968, 982 (9th

Cir. 2002) (“[Under the stigma-plus test], a plaintiff must show the public disclosure

of a stigmatizing statement by the government, the accuracy of which is contested,

plus the denial of some more tangible interest such as employment, or the alteration

of a right or status recognized by state law.”) (collecting cases) (simplified). But

Nationwide’s arguments fail even under the more lenient “connection” standard it

proposes, because the CFPB’s press release was not wrongful conduct, nor did

Nationwide introduce any evidence of a connection between the press release and

the banks’ terminations of their relationship with Nationwide.

Nationwide also argues that the district court abused its discretion in

excluding a set of proffered exhibits and expert testimony. “A district court abuses

its discretion when it applies the incorrect legal standard or if, . . . its ‘application of

8 24-5940 the correct legal standard was illogical, implausible, or without support . . . in the

record.’” Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 52 F.4th 1054, 1063 (9th

Cir. 2022) (quoting United States v. Liu, 538 F.3d 1078, 1085 (9th Cir. 2008)). As

to the exhibits—congressional letters, reports, news articles, and other documents

about government efforts to restrict private-sector financial services offered to

disfavored industries—the district court correctly ruled that they were inadmissible

because they were irrelevant without evidence that a banking institution had relied

on them to stop servicing Nationwide. Fed. R. Evid. 402 (“Irrelevant evidence is

not admissible.”). And as to Nationwide’s expert, who opined that Nationwide’s

banking partners terminated their relationships because of pressure from the CPFB,

the district court did not abuse its discretion in excluding his testimony for lack of

foundation. Expert testimony must be helpful to the trier of fact because of “the

expert’s scientific, technical, or other specialized knowledge,” must be “based on

sufficient facts or data,” must be “the product of reliable principles and methods,”

and must “reflect[] a reliable application of the principles and methods to the facts

of the case.” Fed. R. Evid. 702. But the expert report here rested only on litigation

documents and news reports, without any additional scholarly or technical sources

and without any expert methodologies (such as surveys). The district court thus did

not abuse its discretion in excluding Nationwide’s expert.

AFFIRMED.

9 24-5940