UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 21-1020 ______________

TITLEMAX OF DELAWARE, INC., d/b/a TitleMax; TITLEMAX OF OHIO, INC., d/b/a TitleMax; TITLEMAX OF VIRGINIA, INC., d/b/a TitleMax; TMX FINANCE OF VIRGINIA, INC.

v.

ROBIN L. WEISSMANN, in Her Official Capacity as Secretary of the Pennsylvania Department of Banking and Securities, Appellant ______________

On Appeal from the United States District Court for the District of Delaware (D.C. Civil No. 1:17-cv-01325) Magistrate Judge: Honorable Mary Pat Thynge ______________

Argued December 8, 2021 ______________ Before: SHWARTZ, PORTER, and FISHER, Circuit Judges. (Filed: January 24, 2022) Douglas D. Herrman Troutman Pepper Hamilton Sanders LLP Hercules Plaza, Suite 5100 1313 N. Market Street, P.O. Box 1709 Wilmington, DE 19899 Richard J. Zack [ARGUED] Troutman Pepper Hamilton Sanders LLP 3000 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103

Counsel for Plaintiffs-Appellees Sean A. Kirkpatrick Office of Attorney General of Pennsylvania Strawberry Square Harrisburg, PA 17120 Claudia M. Tesero [ARGUED] Office of Attorney General of Pennsylvania 1600 Arch Street Suite 300 Philadelphia, PA 19103

Counsel for Defendant-Appellant ______________

OPINION OF THE COURT ______________

2 SHWARTZ, Circuit Judge.

In this case, we are required to determine whether applying Pennsylvania usury laws to an out-of-state lender violates the dormant Commerce Clause. We conclude that it does not.

I

A

TitleMax Delaware, TitleMax Virginia, TitleMax Ohio, and TMX Finance Virginia (collectively “TitleMax”) provide motor vehicle loans. When any customer, including a Pennsylvanian, seeks a loan from TitleMax, “[t]he entire loan process—from the application to the disbursement of funds— takes place . . . at one of TitleMax’s brick-and-mortar locations . . . . If a loan is approved and TitleMax is the lender, TitleMax and the borrower execute a loan agreement . . . and the borrower receives the loan proceeds,” App. 19, in the form of “a check drawn on a bank outside of Pennsylvania,” App. 96. The loan agreement sets forth an interest rate as high as 180% and terms to secure the loan.

Under the agreement, the borrower grants TitleMax a security interest in the vehicle. To perfect the lien, the borrower provides TitleMax with the vehicle identification number, license plate number, and title certificate number. TitleMax then records its lien on the motor vehicle with the appropriate state authority, such as the Pennsylvania Department of Transportation (“PennDOT”).

3 In addition to perfecting the lien in the borrower’s state, TitleMax conducts servicing activities there, such as collecting payments, sending “phone calls[] or text messages,” and “repossess[ing vehicles].” App. 326, 337. Borrowers can make payments while physically present in their home state in a variety of ways, including mailing, calling TitleMax to use a debit card, or visiting a “local money transmitter . . . to have fees transmitted to a TitleMax location.” App. 181, 339.

TitleMax does not dispute that, prior to 2017, it engaged in these activities with Pennsylvania residents and repossessed vehicles located in Pennsylvania when a Pennsylvania-resident borrower defaulted.

TitleMax does not have any offices, employees, agents, or brick-and-mortar stores in Pennsylvania and is not licensed as a lender in the Commonwealth. TitleMax claims t