UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CONSUMER FINANCIAL No. 23-55259 PROTECTION BUREAU, D.C. No. Plaintiff-Appellee, 2:15-cv-07522- JFW-RAO v. CASHCALL, INC.; WS FUNDING, OPINION LLC; DELBERT SERVICES CORPORATION; J. PAUL REDDAM,

Defendants-Appellants.

Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding

Argued and Submitted March 20, 2024 San Francisco, California

Filed January 3, 2025

Before: John B. Owens, Ryan D. Nelson, and Eric D. Miller, Circuit Judges.

Opinion by Judge Miller; Concurrence by Judge R. Nelson 2 CFPB V. CASHCALL, INC.

SUMMARY *

Seventh Amendment / Restitution Award

The panel affirmed the district court’s judgment, on remand from this court, ordering CashCall, Inc. to pay more than $134 million in legal restitution. The Consumer Financial Protection Bureau brought an action alleging that CashCall had engaged in an “unfair, deceptive, or abusive act or practice” in violation of 12 U.S.C. § 5536(a)(1)(B), by attempting to collect interest and fees to which it was not legally entitled. In this appeal, CashCall primarily contended that the district court’s order of legal restitution triggered its Seventh Amendment right to a jury trial. Assuming without deciding that CashCall had a Seventh Amendment right to a jury trial, the panel concluded that it had waived that right. CashCall made an express, knowing, and voluntary waiver of its right to trial by jury. Although CashCall contended that it waived its jury trial right only in reliance on the Bureau’s incorrect characterization of the relief it was seeking as equitable, rather than legal, CashCall was not confused about the substance of that relief, and a party need not demonstrate a correct understanding of the law for its waiver to be effective. After CashCall voluntarily participated in the first bench trial, it did not object to the second bench trial, and even if it had, an objection on remand could not have revived its jury right.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CFPB V. CASHCALL, INC. 3

The panel held that the district court did not abuse its discretion in concluding that the doctrines of judicial estoppel and waiver did not preclude the Bureau from seeking an award of legal restitution. Also, the district court did not overstate CashCall’s unjust gains. The district court properly used CashCall’s net revenues as a basis for measuring unjust gains. Finally, the panel rejected CashCall’s contention that the Bureau’s statutory funding mechanism is inconsistent with the Appropriations Clause. Concurring, Judge R. Nelson agreed that CashCall waived any Seventh Amendment jury trial right on the Bureau’s claims for restitution. But even if CashCall had not waived a jury, it still would have not been entitled to one under FTC v. Commerce Planet, Inc., 815 F.3d 593, 602 (9th Cir. 2016), abrogated on other grounds by AMG Cap. Mgmt., LLC v. FTC, 593 U.S. 67 (2021), which diluted the jury trial right, and which this court should reconsider en banc.

COUNSEL Kevin E. Friedl (argued), Senior Counsel; Kristin Bateman, Assistant General Counsel; Steven Y. Bressler, Deputy General Counsel; Seth Frotman, General Counsel; Consumer Financial Protection Bureau, Washington, D.C.; Owen P. Martikan, Assistant United States Attorney; Consumer Financial Protection Bureau, San Francisco, California; for Plaintiff-Appellee. 4 CFPB V. CASHCALL, INC.

Paul D. Clement (