Offered the possibility of protracted litigation about the CFPB’s authority over TLEs, it isn’t unthinkable that the CFPB will assert that authority into the not too distant future and litigate the problem to finality; the CFPB may not be counted on to wait doing this until this has determined its financial research pertaining to payday financing (by which TLEs can’t be anticipated to hurry to cooperate) or until litigation within the recess appointment of Director Cordray happens to be remedied.
TLEs, anticipating action that is such will want to give consideration to two distinct strategic responses. In the one hand, looking to insulate on their own from direct assaults because of the CFPB underneath the “unfair” or “abusive” requirements, TLEs might well amend their company techniques to carry them into line aided by the demands of federal consumer-protection rules. Many TLEs have done this. It continues to be a available concern whether also to what extent the CFPB may look for to use state-law violations as a predicate for UDAAP claims.
Having said that, looking to buttress their resistance status against state assaults (perhaps as a result of provided CFPB-generated information regarding their relationships with tribes), TLEs might well amend their relationships along with their financiers so your tribes have actually genuine “skin within the game” rather than, where applicable, the simple straight to what amounts to a tiny royalty on income.
There might be no assurance that such prophylactic actions by TLEs will provide to immunize their non-tribal business lovers.