Whether the Seventh Amendment requires a jury trial for legal restitution claims that exceed a defendant's net profits, notwithstanding the Ninth Circuit's precedent in Commerce Planet

No question identified. : 3. From 2010 to 2013, Applicants operated a consumer lending program that offered unsecured loans to consumers with steady income but low credit ratings. D.Ct.Dkt.319 at 2, 5-6. The program ultimately failed; Applicants incurred a loss of roughly $30 million because many customers did not pay back their loans. D.Ct.Dkt.271 at 10. 4. The CFPB nevertheless sued Applicants in 2013 for allegedly violating federal consumer lending laws. As initially pleaded, the CFPB sought $235 million in what the agency called “equitable” restitution. Dist.Ct.Dkt.217 at 11. That amount obviously exceeded Applicants’ (non-existent) profits. So, had this case been filed after Liu v. SEC, which held that the equitable monetary remedies are capped at a wrongdoer’s profits, 591 U.S. 71, 87 (2020), it should have been clear that the remedy sought was not, in fact, “equitable” restitution, and could only be recovered as legal relief after a jury trial. But under the circuit law that governed at the time— which still governs in the Ninth Circuit today—all restitution, “whether legal or equitable,” is considered “an equitable remedy for Seventh Amendment purposes.” FTC v. Commerce Planet, Inc., 815 F.3d 593, 602 (9th Cir. 2016). Accordingly, the case proceeded to a bench trial in 2017. 5. That bench trial was a mixed bag. The district court found that Applicants had violated federal law, and thus imposed a civil penalty of $10 million. D.Ct.Dkt.319 at 19. But the court further concluded that Applicants had reasonably relied on the advice of counsel in structuring their loan program and had not acted in bad faith, and thus denied the CFPP’s request for restitution. D.Ct.Dkt.319 at 16. 6. Both parties appealed. The Ninth Circuit vacated the district court’s judgment in May 2022 and remanded for further proceedings. CFPB v. CashCall, Inc., 35 F.4th 734 (9th Cir. 2022). 7. That is when things went truly off the rails. This Court decided Liu during the pendency of the (first) appeal. On remand, Applicants cited Liu in support of their contention that if the district court were to enter a “legal” restitution award > 6. that “exceed[ed]” Applicants’ “net profits,” it would “necessarily ... implicate[] [their] Seventh Amendment rights.” D.Ct.Dkt.352 at 7. The CFPB disagreed, and the district court sided with the agency. The court held that, despite Liu, the Ninth Circuit’s decision in Commerce Planet meant that Applicants had no right to a jury trial, regardless of whether the restitution was legal or equitable. Id. at 8. The court then proceeded to issue a revised order for $134 million in restitution and $33 million in civil penalties. Jd. at 11. 8. Applicants appealed a second time, arguing (among other things) that they were entitled to a trial by jury. In January 2025, the panel declined to reach the Seventh Amendment issue, holding that Applicants had waived any right to a jury trial “during the initial district court proceedings” (i.e., back in 2016). Exhibit A at 4, 9. Judge Nelson, in concurrence, opined that Commerce Planet was wrongly decided and should be overturned in an “appropriate case,” but agreed that Applicants had waived their rights. Id. at 19-20. Applicants filed a timely motion for rehearing en banc, which was denied in April 2025. Exhibit B. 9. Applicants intend to file a petition for certiorari demonstrating that the panel erred by declining to overturn Commerce Planet, which is irreconcilable with this Court’s caselaw and contradicts every other circuit to consider the issue, and by holding that applicants knowingly and intelligently waived their right to trial by jury at a time when assertion of that right was squarely foreclosed by binding precedent. 10. To begin, Commerce Planet is incompatible with Great-West Life & Annuity Insurance Co. v. Knudson, in which this Court drew a clear distinction between restitution at law and restitution in equity. 534 U.S. 204, 215 (2002). Commerce Planet arbitrarily held t