D.C. Circuit Holds CID Unenforceable Due to “Perfunctory” Notification of Purpose

Courts Consumer Finance Agency Rule-Making & Guidance CFPB

On April 21, the U.S. Court of Appeals for the D.C. Circuit held that a civil investigative demand (“CID”) did not advise a non-profit organization that accredits for-profit colleges of “’the nature of the conduct constituting the alleged violation which is under investigation and the provision of law applicable to such violation.’ 12 U.S.C. § 5562(c)(2).” See CFPB v. Accrediting Council for Indep. Colls.& Schs., [Order] No. 16-5174 (D.C. Cir. Apr. 21, 2017). The CID described “the nature of the conduct” as simply “unlawful acts and practices in connection with accrediting for-profit colleges.” Because this “broad and non-specific” language did not describe the purpose of the CFPB’s investigation, the Court determined that it could not ascertain whether the information sought was reasonably relevant or “the link between the relevant conduct and the alleged violation.” The Court also found that the description of the laws applicable to the violation was inadequate. The CID identified 12 U.S.C. §§ 5531 and 5536 and “any other Federal consumer financial protection law,” but the Court concluded that the citations “tell … nothing about the statutory basis for the Bureau’s investigation” considering the CFPB’s failure to identify “the specific conduct under investigation.” Notably the Court explicitly limited its ruling to the particular CID at issue and declined to address the broader question of whether the CFPB may investigate accreditation of for-profit schools.