: : : : : : : : : PLAINTIFFS REPLY BRIEF. sole issue presented in this appeal. Defendant s Brief ( Def. Br. ) at 14 (citing Mehdi v.

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1 DOCKET NO. HHB-CV S GREAT PLAINS LENDING LLC, CLEAR CREEK LENDING and JOHN R. SHOTTON V. STATE OF CONNECTICUT, DEPARTMENT OF BANKING, JORGE PEREZ, in his official capacity as Commissioner of the Department of Banking SUPERIOR COURT JUDICIAL DISTRICT OF NEW BRITAIN AT NEW BRITAIN JULY 9, 2018 PLAINTIFFS REPLY BRIEF Plaintiffs and the Commissioner both agree that this Court has plenary review over the sole issue presented in this appeal. Defendant s Brief ( Def. Br. ) at 14 (citing Mehdi v. CHRO, 144 Conn. App. 861, 865 (2013)). Thus, the Commissioner s determination that Plaintiffs do not qualify as arms of the federally-recognized Otoe Missouria Tribe of Indians ( Tribe ) is not entitled to special deference by this Court, unlike a standard administrative appeal. See Conn. Med. Exam. Bd. v. FOIC, 310 Conn. 276, (2013). Despite this concession, the Commissioner urges this Court to defer to his ruling on the issue of tribal sovereign immunity, pointing to language in Judge Schuman s earlier ruling indicating that the legislature entrusted the commissioner with the responsibility to decide whether he has jurisdiction in a contested case. Def. Br. at 15. In making this argument, the Commissioner confuses the concepts of delegation and deference. Under the delegation doctrine, the legislature can delegate certain responsibilities to administrative agencies. See Rudy s Limousine Serv., Inc. v. Dep t of Transp., 78 Conn. App. 80, 89 (2003). In contrast, deference refers to a reviewing court s treatment of a lower tribunal s ruling. The two doctrines

2 are distinct. Plaintiffs do not contest application of the former, i.e., that the Commissioner has the delegated authority to issue an initial ruling on his regulatory jurisdiction; however, Plaintiffs do dispute application of the latter doctrine, deference. As acknowledged by Judge Schuman in his earlier ruling, because the question presented in this case is purely one of law, this Court owes no deference to the Commissioner. Great Plains Lending, LLC v. Conn. Dep t of Banking, No. HHB-CV S, 2015 Conn. Super. LEXIS 2923, at *9-10 (Conn. Super. Ct. Nov. 23, 2015) ( Great Plains I ). See also CL&P v. Texas-Ohio Power, Inc., 243 Conn. 635, 643 (1998) ( It is for the courts and not administrative agencies to expound and apply governing principles of law ) (emphasis in original). Finally, the Commissioner argues that his factual findings should be accorded considerable weight. Def. Br. at This position is incorrect, however, as this case did not require any agency fact-finding. All of the evidence in the administrative record was submitted by Plaintiffs; the Commissioner produced no contrary evidence. 1 In such a situation, where the Court is being asked to make a legal determination based on undisputed evidence, there is no deference given to the lower court or administrative agency. Morton Bldgs., Inc. v. Bannon, 222 Conn. 49, (1992) (where record consists solely of written materials and trier of fact did not evaluate the credibility of witnesses or consider additional evidence, the reviewing court is in as good a position as the lower court to determine the legal question presented). 1 In his brief to this Court, the Commissioner relies on facts and materials from outside the record. See Def. Br. at & Ex. 2 (regarding the alleged involvement of outside parties in tribal payday lending). Surely the Commissioner knows that this is highly improper in an administrative appeal General Statutes 4-183(i) specifies that review of an administrative agency s ruling shall be confined to the record. The purported facts cited by Commissioner in his brief were not considered at the agency level as there is no evidence in the record to support them (nor did Plaintiffs have an opportunity to rebut such claims). The Court should strike these portions of Commissioner s brief and disregard the arguments raised. See Johnston v. Salinas, 56 Conn. App. 772, 776 (2000); State Library v. Freedom of Info. Comm n, 240 Conn. 824, (1997) 2

3 ARGUMENT I. THIS APPEAL IS PROCEDURALLY PROPER A. Plaintiffs Were Not Defaulted On Their Subject Matter Jurisdictional Claim The Commissioner repeatedly argues that Plaintiffs were defaulted at the agency level, and even claims that this purported default constitutes an independent reason to dismiss the administrative appeal. Def. Br. at 1, 2, 4, 6-8, 10, 16-20, (all discussing default). According to the Commissioner, the default is the result of the Plaintiffs filing of a motion to dismiss the administrative proceedings for lack of jurisdiction in lieu of filing an appearance or a request for a hearing. See id. at 1. The Commissioner s arguments are wrong, both factually and legally. First, factually, the Commissioner did not default Plaintiffs on their jurisdictional claim; to the contrary, he issued a substantive ruling on that issue (albeit an incorrect ruling later reversed by Judge Schuman). See AR While it is true that the applicable statutes provide that the failure to request a hearing can lead to the issuance of a permanent cease and desist order or a fine, see Conn. Gen. Stat. 36a-50(a), 36a-52(a), the focus of the Plaintiffs appeal is specifically to contest the ability of the Commissioner to issue the instant order upon a sovereign entity the very basis for the Plaintiffs filing the motion to dismiss the initial administrative order in the first instance. If there was a default (which the record does not confirm, see Orders at AR ), that default would apply only to the merits of the Commissioner s administrative actions i.e. 3

4 the substantive issues of Connecticut banking law - not to the threshold issue of immunity as a bar to subject matter jurisdiction. 2 Second, the Commissioner fails to point to any legal support for his claimed ability to default a party on the ground that they have raised a challenge to the exercise of his authority. The Commissioner places too much emphasis on agency procedures, arguing that he had the power to default someone claiming immunity if they denied his authority. Def. Br. at 6. As confirmed earlier in this litigation when this Court denied the Commissioner s motion to dismiss, Plaintiffs were fully entitled to contest the attempted exercise of the Commissioner s jurisdiction, given his inability to issue orders to sovereign entities. Great Plains Lending, LLC v. Dep t of Banking, No. HHB-CV , 2017 Conn. Super. LEXIS 4966, at *6 (Conn. Super Ct. Dec. 1, 2017). Therefore, it is nonsensical to suggest that they could be defaulted if they did not first submit to the Commissioner s authority, allow him access to their records, and participate in an administrative hearing. Connecticut law has long allowed a party to contest the exercise of administrative or judicial power over it without having to first submit to that power. See Conboy v. State, 292 Conn. 642, , 650 (2009) (noting that per Practice Book 10-30, a pre-answer (and therefore pre-merits) motion to dismiss is the proper vehicle to raise lack of subject matter jurisdiction on sovereign immunity grounds). Third, the General Statutes provide the opportunity for a hearing to anyone who receives a temporary cease and desist order from the Commissioner, but do not mandate a hearing be held. Conn. Gen. Stat. 36a-50(a), 36a-52(a). The notices sent to Plaintiffs informed them that 2 It bears repeating that the sole ground raised in this appeal is that the Commissioner did not have the authority to order Plaintiffs to cease and desist their lending activities because they possess tribal sovereign immunity. The Commissioner keeps mentioning the issue of due process, see, e.g., Def. Br. at 9, 19, but Plaintiffs make no due process claim in this appeal. 4

5 they could have a hearing, but they were not told that a hearing was required. AR at 13-15, Yet, the Commissioner makes repeated statements to the contrary in his brief [R]espondents must timely appear, engage in discovery, and request and attend a hearing for testimony, cross-examination, presentation of evidence and argument on any issue of fact and law. Def. Br. at 1. On the next page, the Commissioner claims [A]dministrative respondents must appear, are subject to discovery, and must request and attend a hearing before the agency (absent an express statutory exception not present here) before contesting the agency decision on appeal. This is true even if they only wish to file a special appearance to contest jurisdiction. Id. at 2. Absolutely no authority is offered for these broad assertions. The statutes do not provide that respondents have to do any of those things. This is not a case where the Commissioner sought information from a respondent and was denied; the Commissioner is claiming that a respondent must go through all of these affirmative steps even in an action such as this where an agency s subject matter jurisdiction is challenged. Plaintiffs were not obligated to request a hearing it was optional and there is no statutory or legal support for the Commissioner s assertion of the power to default them for their decision to not request a hearing. Defendant s Brief at 6-8, 10. Further, Plaintiffs neither owed nor deprived the Commissioner of an opportunity to collect and present evidence of his own. Not only do the statutes seem to envision that the holding of a hearing is intended to benefit the respondent (not the State), nothing Plaintiffs did or did not do should impact the Commissioner s ability to prosecute the claim he made in the temporary cease and desist order. 5

6 II. THE COMMISSIONER ERRED AS A MATTER OF LAW IN APPLYING THE WRONG TEST TO DETERMINE ARM OF THE TRIBE STATUS A. The Commissioner Does Not Have Discretion To Apply An Incorrect Legal Standard The Commissioner repeatedly asserts that he has the discretion to apply any legal test he chooses. See Def. Br. 20 ( The Commissioner, like a trial court, had discretion to determine what factors to consider.... ). See also id. at 21 ( discretion to determine what cases to rely upon ); id. at 4 ( even if the Commissioner s method of jurisdictional determination was not well within his discretion (it was) ). The Commissioner is simply wrong on the law. Even where a trial court (or agency) has discretion, it is still obligated to follow applicable legal standards. Discretion imports something more than leeway in decision making... it means a legal discretion, to be exercised in conformity with the spirit of the law. Austin- Casares v. Safeco Ins. Co. of Am., 310 Conn. 640, 654 (2013). There, the trial court denied a motion to intervene solely on the basis of its legal determination that it was time barred. Id. at 654. On appeal, the Supreme Court held that the motion was not barred by the limitations period. Even though the denial of a motion to intervene is generally reviewed for an abuse of discretion, id. at 653, because the trial court s decision was predicated on a misapplication of the law, its ruling was overturned. Id. at 654. The Commissioner builds on this false premise with repeated claims that Judge Schuman endorsed the Sue/Perior test as the applicable test for determining arm of the tribe status. Sue/Perior Concrete & Paving v. Lewiston Golf Course, 25 N.E.3d 928 (N.Y. 2014). See Def. Br. 2-4, 12-13, 20. This is a misrepresentation of the history of this case. Judge Schuman s 2015 Order acknowledged only that whether an entity is an arm of the tribe involves use of a balancing test. Great Plains I, at *24. Judge Schuman did not select or endorse any particular test at that time; in fact, his decision includes a string cite that includes both Sue/Perior 6

7 as well as a Colorado Supreme Court decision applying an arm-of-the-tribe test markedly different from Sue/Perior. See, e.g., Cash Advance & Preferred Cash Loans v. State, 242 P.3d 1099 (Colo. 2010). 3 Given the differences between the two tests, Judge Schuman did not instruct the Commissioner as to which test to apply. See Def. Br. at 20. Instead, Judge Schuman declined to address the issue at all, as the appeal at that stage was focused on the narrow issue of whether tribal sovereign immunity applies in administrative enforcement actions, which was confirmed in Judge Schuman s ruling. B. Sue/Perior Is Not The Appropriate Test To Apply Plaintiffs initial brief includes a detailed analysis of the law regarding the arm-of-thetribe tests, demonstrating that reliance on Sue/Perior was error. Plaintiff s Brief on the Merits ( Pl. Br. ) at Rather than respond to this analysis, the Commissioner instead attempts to divert the Court s attention, arguing that Sue/Perior is really a multi-factor test (Def. Br. 22), and that Plaintiffs mischaracterize Sue/Perior as a single factor test. Id. at The Commissioner is putting too much importance on labels while ignoring the substance of the tests themselves. Plaintiffs ask this Court to consider the merits of the competing tests and select the one that makes the most sense and is consistent with Connecticut law. And that is the test established 3 The Cash Advance test involves three factors (1) whether the tribes created the entities pursuant to tribal law; (2) whether the tribes own and operate the entities; and (3) whether the entities immunity protects the tribes sovereignty. See 242 P.3d at Plaintiffs consider Sue/Perior to be a single factor test because it wrongly places neardispositive emphasis on whether an entity has a limited-liability structure. Though the opinion purports to follow the multi-factor test from Ransom v. St. Regis Mohawk Educ. & Community Fund, 658 N.E.2d 989 (N.Y. 1995), the court in Sue/Perior effectively departed from Ransom by treating certain factors as outcome-determinative. Sue/Perior, 25 N.E.3d at 938 (Rivera, J., dissenting). As explained earlier, other courts have rejected the Sue/Perior majority s analysis on this basis. Pl. Br. at 16. See People ex rel. Owen v. Miami Nation Enterprises, 386 P.3d 357, 373 (2016); Monahan v. Great Plains Lending, LLC, 2016 WL , at *4 (Fla. Cir. Ct. Sept. 30, 2016). 7

8 by the Tenth Circuit in Breakthrough Management Group, Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173 (10th Cir. 2010), variations of which have been widely adopted by both federal and state courts nationwide as the prevailing standard in analyzing arm of the tribe issues for purposes of determining immunity from suit. Indeed, adoption of Breakthrough (or substantially similar tests) by the clear majority of courts demonstrates that it is more reflective of federal Indian policy and consistent with Congress goal of encouraging tribal economic development through business enterprise. E.g., White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144 (1980)). As argued in Plaintiffs opening brief, Sue/Perior is inconsistent with Connecticut law. In Seneca Niagara Falls Gaming Corp. v. Klewin Bldg. Co., No. KNL-CV , 2005 Conn. Super. LEXIS 3295 (Conn. Super. Ct. Nov. 30, 2005), Judge Hendel held that an economic subdivision of the Seneca Tribe was entitled to immunity while, in New York, the Sue/Perior Court held that an organizationally identical entity was not entitled to immunity. Pl. Br. at And although Judge Hendel s opinion in Klewin does not carry the force of stare decisis, it is persuasive authority that the Sue/Perior test does not conform to Connecticut principles. 5 Rather than defend Sue/Perior as being aligned with federal Indian law and policy, the Commissioner s brief seeks to blur the differences between Sue/Perior and the Breakthrough test. For example, the Commissioner cites People ex rel. Owen v. Miami Nation Enters. (MNE), 386 P.3d 357 (Cal. 2016), as agreeing with his arm-of-the- tribe analysis. Notwithstanding the fact that MNE is not binding authority in Connecticut, the Commissioner ignores the fact that the 5 Undoubtedly, application of Sue/Perior in Connecticut could have a profound negative impact. Both of Connecticut s two federally recognized tribes the Mashantucket Pequot and the Mohegan contribute significantly to the Connecticut economy through the operation of limited liability entities. If those entities were precluded from being deemed arms of their respective tribes, it could do serious harm to the local economy. 8

9 court in MNE specifically considered and rejected the application Sue/Perior in favor of following the most influential Breakthrough test. Id. at 367. Indeed, the court in MNE explained that direct tribal liability for the entity s actions is neither a threshold requirement for immunity nor a predominant factor in the overall analysis, and we disagree with those courts that have held as much (citing to Sue/Perior). 386 P.3d at 373. C. The Commissioner Did Not Actually Balance Any Factors In Reaching His Decision Regardless of the manner in which Sue/Perior is ultimately characterized, both the decision and the Commissioner s own June 2017 Restated Order make clear that he did not apply a multi-factor test like Breakthrough, but rather improperly relied on a single factor the limited liability structure of Great Plains and Clear Creek. The Commissioner claims that he considered each and every one of the nine [Sue/Perior] factors 6 in light of the administrative record and treated none of them as dispositive. Def. Br. at 32. But this is simply untrue. The Restated Order gave dispositive weight to the Plaintiffs corporate structure. The Commissioner points to pages 14 through 18 of the Restated Order (AR ) as proof that he weighed the various factors aside from direct liability of the Tribe for any judgment. See Def. Br. at 32. But the bulk of this section of the Restated Order is dedicated to discussing the limited 6 Under Sue/Perior, the nine factors are whether [1] the entity is organized under the tribe s laws or constitution rather than Federal law; [2] the organization s purposes are similar to or serve those of the tribal government; [3] the organization s governing body is comprised mainly of tribal officials; [4] the tribe has legal title or ownership of property used by the organization; [5] tribal officials exercise control over the administration or accounting activities of the organization;... [6] the tribe s governing body has power to dismiss members of the organization's governing body [;...] [7] the corporate entity generates its own revenue, whether [8] a suit against the corporation will impact the tribe s fiscal resources, and whether [9] the subentity has the power to bind or obligate the funds of the tribe. 25 N.E. 3d at

10 liability structure of Great Plains. 7 Other factors, such as the formation of Great Plains and Clear Creek under tribal law and the purpose of those entities (tribal economic development), are afforded only perfunctory consideration. The Commissioner also urges a federal Circuit Court decision on this Court as support for his ruling, but to no avail. Def. Br. at 27-29, Finn v. Great Plains Lending, 689 F. App x 608 (10th Cir. 2017). First, Finn reaffirms that the proper test is Breakthrough. Id. at Second, the underlying dispute in Finn was not whether the defendant qualified as an arm of the tribe, but rather whether further discovery was available to plaintiff to make his claim. Id. at 611. The Circuit Court merely referred the matter back to the trial court for further proceedings as to whether the Breakthrough test was met. Unlike the plaintiff in Finn, the Commissioner here did not offer any evidence regarding the Plaintiffs arm of the tribe status and further, Judge Schuman has already rejected the Commissioner s attempt to conduct further proceedings in order to add evidence to the record. Pl. Br. at 7; see also Dkt. Entry (Aug. 31, 2016) (Ex. B to Opening Brief) (holding that Commissioner s determinations had to be based on the administrative records as it existed at that time). Finn is of no help to the Commissioner. III. THE COMMISSIONER ERRED IN HOLDING THAT CHAIRMAN SHOTTON LACKS IMMUNITY The Commissioner fails to meaningfully address any of the arguments made in Plaintiffs brief on the merits pertaining to Chairman Shotton s immunity, devoting a scant two pages to the issue. He does, however, seem to finally settle on a legal theory as to how he can establish jurisdiction over Chairman Shotton; namely, he has clarified his position that this action was 7 In his Restated Order, the Commissioner acknowledges that Sue/Perior was not really a multi-factor test pointing out that the Sue/Perior factors deal with two main concepts (1) the financial relationship between an entity and the tribe; and (2) the organization, purpose, and governance of the entity. The financial relationship is the most significant concept in determining whether a tribal business is an arm of the tribe.... AR 183 (emphasis added). 10

11 brought against Chairman Shotton in his personal capacity, thus apparently abandoning the theory that he can be sued under the doctrine of Ex parte Young. See Def. Br. at For two reasons, however, Chairman Shotton remains immune even when sued in his personal capacity. This is because, first, the Tribe, not Chairman Shotton, is the real party in interest, making it clear that this is not a proper personal-capacity lawsuit. And, second, even if this were a true personal-capacity suit, Chairman Shotton is protected by the doctrine of official immunity. A. The Tribe Is The Real Party In Interest Parties cannot circumvent sovereign immunity by simply naming as defendants government employees or officials, even when said employee/official is alleged to be sued in his personal capacity. In such cases, even if a government employee/official is named personally, courts must determine whether the case is a true personal-capacity action, as opposed to a thinly disguised action against the sovereign. Lewis v. Clarke, 137 S. Ct. 1285, (2017). In conducting this inquiry, courts are tasked with determining whether the sovereign is the real, substantial party in interest. Ford Motor Co. v. Dep t of Treasury, 323 U.S. 459, 464 (1945). In this case, despite the Commissioner s nominal inclusion of Chairman Shotton in the administrative action, it is clear that the Tribe (vis-à-vis Great Plains and Clear Creek) is the real party in interest. The remedy alone makes the real-party-in-interest inquiry simple not only did the Commissioner order monetary penalties against Chairman Shotton, he also issued a cease-and-desist order a clear form of injunctive relief which would be available only in an official-capacity action where Great Plains and Clear Creek (and hence, the Tribe) are the real parties in interest. Moreover, even aside from the remedies sought, the Tribe s status as the real party in interest is confirmed by the fact that this suit is an attempt to disregard tribal government law and policy by destroying a significant form of tribal economic development. 11

12 As mentioned earlier, the Restated Order does not merely seek financial penalties against Chairman Shotton; it also seeks that he cease and desist in his alleged violations of Connecticut banking laws. See AR 176. These violations, of course, were not alleged to take place in any private context by Chairman Shotton, but rather in his capacity as Secretary and Treasurer of the Tribe s lending businesses. Of course, Chairman Shotton can only obey that cease-and-desist order if he is acting in his capacity as Secretary and Treasurer, i.e., in his official capacity. This case is therefore an official-capacity suit, despite the Commissioner s insistence to the contrary. Indeed, this case is quite different than cases like Lewis v. Clarke. There, the tribal government employee was sued only for monetary damages, not any form of injunctive relief. See 137 S. Ct. at Because there was no injunctive relief sought, the judgment would not legally affect his employer, the Mohegan Tribe (indemnification notwithstanding). Instead, the judgment would extend only to the employee. In contrast, even ignoring momentarily the fact that the financial remedies do clearly impact tribal policy (see infra), there can be no debate that an injunction against the Secretary and Treasurer of the Tribe s lending entities is an order that can be effectuated only in an official-capacity action. As our Supreme Court has explained in the analogous context of Eleventh Amendment immunity, when a plaintiff seeks relief that only the state can provide, he or she may not overcome sovereign immunity simply by suing an individual actor. See Sullins v. Rodriguez, 281 Conn. 128, 143 (2007) (emphasis in original). It is no different here; because only the Tribe can effectuate the cease-and-desist aspect of the Restated Order, this is an official-capacity suit, barred by sovereign immunity. Moreover, the official-capacity status of this case is confirmed by the practical impact of the Restated Order. Any administrative finding that Chairman Shotton is financially liable under 12

13 Connecticut banking laws would substantially interfere with the public policy of the Tribe and restrain the Tribe from acting. That is, any adverse decision would be clearly based on a legal finding that the Tribe s lending businesses operated unlawfully under Connecticut law. This would be a decision that directly implicates the Tribe s legal rights because it would necessarily be premised on the legality of the Tribe s economic activities. As explained in Plaintiffs Brief on the Merits, this makes the Tribe the real party in interest, as it threatens to destroy a form of tribal economic development. Pl. Br. at The Commissioner offered nothing to rebut these points, merely citing to Gristede s Foods, Inc. v. Unkechuage Nation, 660 F. Supp. 2d 442 (E.D.N.Y. 2009) for the proposition that tribal office does not insulate from personal liability when acting in a personal capacity even where a tribe owns the business. Def. Br. at 34. This is a mischaracterization of the holding in Gristede s Foods. There, the court found that the smoke shop at issue in the case was not even owned by the tribe, and was therefore not an arm of the tribe. 660 F. Supp. 2d at 478. It is thus unremarkable that a tribal officer, as the private owner of a business that is not an arm of the tribe, would not be protected by immunity. In contrast, Great Plains and Clear Creek are owned by the Tribe, not by Chairman Shotton. The Commissioner also alleges that responsible corporate officers are not unusual defendants in proceedings under Connecticut banking laws. Id. at 35. But this is not the usual case of a run-of-the-mill corporate entity alleged to have violated Connecticut banking laws. Chairman Shotton is not the officer of a private corporation; he is the elected leader of a sovereign tribal government and the officer of a government-owned and -operated economic instrumentality. The fact that Connecticut banking laws, by their statutory text, apply to any person cannot change the immunity analysis. See Michigan v. Bay Mills Indian Cmty. 134 S. 13

14 Ct. 2024, 2031 (2014) (explaining that tribal sovereign immunity is not subject to diminution by the States ). B. Even In A Personal-Capacity Suit, Chairman Shotton Has Official Immunity The Commissioner does not answer Chairman Shotton s argument that he has official immunity against the administrative proceedings below. Compare Pl. Br. at with Def. Br. at This alone calls for the Court to recognize Chairman Shotton s official immunity and reverse the Restated Order. The Commissioner s only potential argument in response to Chairman Shotton s claim of immunity is that official immunity is waived because, at the agency level, Plaintiffs just argued that tribal employees are categorically immune from acts within the scope of their employment. Def. Br. at 35. This argument fails. At the agency level, Plaintiffs could not have possibly settled on one theory of Chairman Shotton s immunity defense (sovereign immunity vs. official immunity) because the administrative claims against him did not specify the capacity in which he was being sued. As explained in Plaintiffs brief on the merits, Pl. Br. at 24-25, the Commissioner failed to specify whether Chairman Shotton was being sued in his official or personal capacity (only now clarifying the point in this administrative appeal). Plaintiffs should not be penalized for the Commissioner s failure to adequately describe his theory of culpability against Chairman Shotton. Even if this is considered a personal-capacity action, because the Commissioner failed to provide any rebuttal argument to Chairman Shotton s position that he has official immunity, this appeal should be sustained and the orders against Chairman Shotton set aside. 14

15 CONCLUSION For the reasons set forth herein, the Commissioner erred as a matter of law in the issuance of both the 2014 Cease and Desist and Penalty Order as well as the Restated Order as he has no jurisdiction over the Plaintiffs. This appeal should be sustained and the Commissioner s Restated Order vacated. Conn. Gen. Stat PLAINTIFFS, GREAT PLAINS LENDING LLC, CLEAR CREEK LENDING and JOHN R. SHOTTON By /s/ Kathleen E. Dion Jeffrey J. White Linda L. Morkan Thomas J. Donlon Kathleen E. Dion ROBINSON & COLE LLP 280 Trumbull Street Hartford, CT Tel. No. (860) Fax No. (860) jwhite@rc.com; lmorkan@rc.com; tdonlon@rc.com; kdion@rc.com Juris No Robert A. Rosette (pro hac vice) Saba Bazzazieh (pro hac vice) Rosette, LLP 1100 H Street, NW, Suite 400 Washington, DC Tel No. (202) Fax No. (202) rosette@rosettelaw.com sbazzazieh@rosettelaw.com Counsel for Plaintiffs Great Plains Lending, LLC; Clear Creek Lending; and John R. Shotton 15

16 CERTIFICATION I hereby certify that a copy of the foregoing was sent electronically to all parties, who have consented to electronic service, on July 9, 2018 to John Langmaid (John.Langmaid@ct.gov) Joseph Chambers (Joseph.Chambers@ct.gov) Office of the Attorney General State of Connecticut 55 Elm Street Hartford, CT /s/ Kathleen E. Dion Kathleen E. Dion 16