*301Me. Justice Brennan

delivered the opinion of the Court.

The question for decision is whether the National Bank Act, Rev. Stat. § 5197, as amended, 12 U. S. C. § 85,1 authorizes a national bank based in one State to charge its out-of-state credit-card customers an interest rate on unpaid balances allowed by its home State, when that rate is greater than that permitted by the State of the bank’s nonresident customers. The Minnesota Supreme Court held that the bank is allowed by § 85 to charge the higher rate. 262 N. W. 2d 358 (1977). We affirm.

I

The First National Bank of Omaha (Omaha Bank) is a national banking association with its charter address in Omaha, Neb.2 Omaha Bank is a card-issuing member in the BankAmericard plan. This plan enables cardholders to purchase goods and services from participating merchants and to *302obtain cash advances from participating banks throughout the United States and the world. Omaha Bank has systematically sought to enroll in its BankAmericard program the residents, merchants, and banks of the nearby State of Minnesota. The solicitation of Minnesota merchants and banks is carried on by respondent First of Omaha Service Corp. (Omaha Service Corp.), a wholly owned subsidiary of Omaha Bank.

Minnesota residents are obligated to pay Omaha Bank interest on the outstanding balances of their BankAmericards. Nebraska law permits Omaha Bank to charge interest on the unpaid balances of cardholder accounts at a rate of 18% per year on the first $999.99, and 12% per year on amounts of $1,000 and over.3 Minnesota law, however, fixes the permissible annual interest on such accounts at 12%.4 To compen*303sate for the reduced interest, Minnesota law permits banks to charge annual fees of up to $15 for the privilege of using a bank credit card.5

*304The instant case began when petitioner Marquette National Bank of Minneapolis (Marquette),6 itself a national banking association enrolled in the BankAmericard plan,7 brought suit in the District Court of Hennepin County, Minn., to enjoin Omaha Bank and Omaha Service Corp. from soliciting in Minnesota for Omaha Bank’s BankAmericard program until such time as that program complied with Minnesota law.8 Marquette claimed to be losing customers to Omaha Bank because, unlike the Nebraska bank, Marquette was forced by the low rate of interest permissible under Minnesota law to charge a $10 annual fee for the use of its credit cards. App. 7a-15a, 45a-48a.

Marquette named as defendants Omaha Bank, Omaha Service Corp., which is organized under the laws of Nebraska but qualified to do business and doing business in Minnesota,9 and the Credit Bureau of St. Paul, Inc., a corporation organized under the laws of Minnesota having its principal office *305in St. Paul, Minn. Omaha Service Corp. participates in Omaha Bank’s BankAmericard program by entering into agreements with banks and merchants necessary to the operation of the BankAmericard scheme. Id., at 30a. At the time Marquette filed its complaint, Omaha Service Corp. had not yet entered into any such agreements in Minnesota, although it intended to do so. Id., at 30a, 92a, 94a. For its services, Omaha Service Corp. receives a fee from Omaha Bank, but it does not itself extend credit or receive interest.10 Id., at 94a, 97a-110a. It was alleged that the Credit Bureau of St. Paul, Inc., solicited prospective cardholders for Omaha Bank’s BankAmericard program in Minnesota. Id., at 9a, 30a.

The defendants sought to remove Marquette’s action to Federal District Court. See 12 IT. S. C. § 94.11 Marquette responded by dismissing without prejudice its action against Omaha Bank, see Fed. Rule Civ. Proc. 41 (a)(l)(i), and the District Court, citing Gully v. First Nat. Bank, 299 U. S. 109 (1936), remanded the case to the District Court of Hennepin County. Marquette Nat. Bank v. First Nat. Bank of Omaha, 422 F. Supp. 1346 (Minn. 1976). Marquette thereupon moved for partial summary judgment to have Omaha Bank’s BankAmericard program declared in violation of the Minnesota usury statute, Minn. Stat. § 48.185 (1978),12 and permanently to enjoin the remaining defendants from engaging in *306any activity in connection with the offering or operation of that program in further violation of Minnesota law. Defendants argued that the National Bank Act, Rev. Stat. § 5197, as amended, 12 U. S. C. § 85,13 pre-empted Minn. Stat. § 48.185 and enforcement of that statute against Omaha Bank’s Bank-Americard program. Upon being notified of this challenge to Minn. Stat. § 48.185, the Attorney General of the State of Minnesota14 intervened as a party plaintiff and joined in Marquette’s prayer for a declaratory judgment and permanent injunction.

The District Court of Hennepin County granted plaintiffs’ motion for partial summary judgment, holding in an unreported opinion that “nothing contained in the National Bank Act, 12 U. S. C. § 85, precludes or preempts the application and enforcement of Minnesota Statutes, § 48.185 to the First National Bank of Omaha’s BankAmericard program as solicited and operated in the State of Minnesota.” App. 139a-140a. The court enjoined Omaha Service Corp., “as agent of the First National Bank of Omaha,” from “engaging in any solicitation of residents of the State of Minnesota or other activity in connection with the offering or operation of a bank credit card program in the State of Minnesota in violation of Minnesota Statutes, § 48.185.”15 Id., at 140a-141a.

On appeal, the Minnesota Supreme Court reversed. Noting that Marquette’s dismissal of Omaha Bank was a procedural device that removed the case from the jurisdiction of the federal courts of the Eighth Circuit, and noting that a recent decision of the Court of Appeals for the Eighth Circuit had made it plain that in its judgment the usury laws of Nebraska rather than Minnesota should govern the operation of Omaha Bank’s BankAmericard program in Minnesota, see Fisher v. *307First Nat. Bank of Omaha, 548 F. 2d 255 (1977),16 the Minnesota Supreme Court concluded that it would be “inappropriate for this court to permit the use of procedural devices to obtain a result inconsistent with the existing doctrine in the Eighth Circuit.” 262 N. W. 2d, at 365.17 Plaintiffs filed timely petitions for writs of certiorari,18 which we granted, 436 U. S. 916 (1978), in order to decide the appropriate application of 12 U. S. C. § 85.

II

In the present posture of this case Omaha Bank is no longer a party defendant. The federal question presented for decision is nevertheless the application of 12 U. S. C. § 85 to the operation of Omaha Bank's BankAmericard program. There is no allegation in petitioners’ complaints that either Omaha Service Corp. or the Minnesota merchants and banks participating in the BankAmericard program are themselves *308extending credit in violation of Minn. Stat. §48.185 (1978), and we therefore have no occasion to determine the application of the National Bank Act in such a case.

Omaha Bank is a national bank; it is an “instrumentalit[yj of the Federal government, created for a public purpose, and as such necessarily subject tO' the paramount authority of the United States.” Davis v. Elmira Savings Bank, 161 U. S. 275, 283 (1896). The interest rate that Omaha Bank may charge in its BankAmericard program is thus governed by federal law. See Farmers’ & Mechanics’ Nat. Bank v. Dearing, 91 U. S. 29, 34 (1875). The provision of § 85 called into question states:

“Any association may take, receive, reserve, and charge on any loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State, Territory, or District where the bank is located, . . . and no more, except that where by the laws of any State a different rate is limited for banks organized under State laws, the rate so limited shall be allowed for associations organized or existing in any such State under this chapter.” (Emphasis supplied.)

Section 85 thus plainly provides that a national bank may charge interest “on any loan” at the rate allowed by the laws of the State in which the bank is “located.” The question before us is therefore narrowed to whether Omaha Bank and its BankAmericard program are “located” in Nebraska and for that reason entitled to charge its Minnesota customers the rate of interest authorized by Nebraska law.19

*309There is no question but that Omaha Bank itself, apart from its BankAmericard program, is located in Nebraska. Petitioners concede as much. See Brief for Petitioner in No. 77-1258, p. 3; Brief for Petitioner in No. 77-1265, pp. 3, 16, 33-34. The National Bank Act requires a national bank to state in its organization certificate “[t]he place where its operations of discount and deposit are to be carried on, designating the State, Territory, or district, and the particular county and city, town, or village.” Rev. Stat. § 5134, 12 U. S. C. § 22. The charter address of Omaha Bank is in Omaha, Douglas County, Neb. The bank operates no branch banks in Minnesota, cf. Seattle Trust & Savings Bank v. Bank of California, 492 F. 2d 48 (CA9 1974), nor apparently could it under federal law.20 See 12 U. S. C. § 36 (c).21

The State of Minnesota, however, contends that this con-*310elusion must be altered if Omaha Bank’s BankAmericard program is considered: “In the context of a national bank which systematically solicits Minnesota residents for credit cards to be used in transactions with Minnesota merchants the bank must be deemed to be located’ in Minnesota for purposes of this credit card program.” Reply Brief for Petitioner in No. 77-1258, p. 7.

We disagree. Section 85 was originally enacted as § 30 of the National Bank Act of 1864,22 13 Stat. 108.'23 The congressional debates surrounding the enactment of § 30 were conducted on the assumption that a national bank was “located” for purposes of the section in the State named in its organization certificate. See Cong. Globe, 38th Cong., 1st Sess., 2123-2127 (1864). Omaha Bank cannot be deprived of this location merely because it is extending credit to residents of a foreign State. Minnesota residents were always free to visit Nebraska and receive loans in that State. It has *311not been suggested that Minnesota usury laws would apply to such transactions. Although the convenience of modern mail permits Minnesota residents holding Omaha Bank’s BankAmericards to receive loans without visiting Nebraska, credit on the use of their cards is nevertheless similarly extended by Omaha Bank in Nebraska by the bank’s honoring of the sales drafts of participating Minnesota merchants and banks.24 Finance charges on the unpaid balances of cardhold*312ers are assessed by the bank in Omaha, Neb., and all payments on unpaid balances are remitted to the bank in Omaha, Neb. Furthermore, the bank issues its BankAmericards in Omaha, Neb., after credit assessments made by the bank in that city. App. 30a.

Nor can the fact that Omaha Bank’s BankAmericards are used “in transactions with Minnesota merchants” be determinative of the bank’s location for purposes of § 85. The bank’s BankAmericard enables its holder “to purchase goods and services from participating merchants and obtain cash advances from participating banks throughout the United States and the world.” Stipulation of Facts, App. 91a. Minnesota residents can thus use their Omaha Bank Bank-Americards to purchase services in the State of New York or mail-order goods from the State of Michigan. If the location of the bank were to depend on the whereabouts of each credit-card transaction, the meaning of the term “located” would be so stretched as to throw into confusion the complex system of modern interstate banking. A national bank could never be certain whether its contacts with residents of foreign States were sufficient to alter its location for purposes of § 85. We do not choose to invite these difficulties by rendering so elastic the term “located.” The mere fact that Omaha Bank has enrolled Minnesota residents, merchants, and banks in its *313BankAmericard program thus does not suffice to “locate” that bank in Minnesota for purposes of 12 U. S. C. § 85.25 See Second Nat. Bank of Leavenworth v. Smoot, 9 D. C. 371, 373 (1876).

Ill

Since Omaha Bank and its BankAmericard program are “located” in Nebraska, the plain language of § 85 provides that the bank may charge “on any loan” the rate “allowed” by the State of Nebraska. Petitioners contend, however, that this reading of the statute violates the basic legislative intent of the National Bank Act. See Train v. Colorado Public Interest Research Group, 426 U. S. 1, 9-10 (1976). At the time Congress enacted § 30 of the National Bank Act of 1864, 13 Stat. 108, so petitioners’ argument runs, it intended “to insure competitive equality between state and national banks in the charging of interest.” Brief for Petitioner in No. 77-1265, p. 24. This policy could best be effectuated by limiting national banks to the rate of interest allowed by the States in which the banks were located. Since Congress in 1864 was addressing a financial system in which incorporated banks were “local institutions,” it did not “contemplate a national bank soliciting customers and entering loan agreements outside of the state in which it was established.” Brief for Petitioner in No. 77-1258, p. 17. Therefore to interpret § 85 to apply to interstate loans such as those involved in this case would not only enlarge impermissibly the original intent of Congress, but would also undercut the basic policy *314foundations of the statute by upsetting the competitive equality now existing between state and national banks.

We cannot accept petitioners’ argument. Whatever policy of “competitive equality” has been discerned in other sections of the National Bank Act, see, e. g., First Nat. Bank v. Dickinson, 396 U. S. 122, 131 (1969); First Nat. Bank of Logan v. Walker Bank & Trust Co., 385 U. S. 252, 261-262 (1966), § 30 and its descendants have been interpreted for over a century to give “advantages to National banks over their State competitors.” Tiffany v. National Bank of Missouri, 18 Wall. 409, 413 (1874). “National banks,” it was said in Tiffany, “have been National favorites.” 26 The policy of competitive equality between state and national banks, however, is not truly at the core of this case. Instead, we are confronted by the inequalities that occur when a national bank applies the interest rates of its home State in its dealing with residents of a foreign State. These inequalities affect both national and state banks in the foreign State. Indeed, in the instant case Marquette is a national bank claiming to be injured by the unequal interest rates charged by another national bank.27 Whether the inequalities which thus occur when the interest rates of one State are “exported” into another violate the intent of Congress in enacting § 30 in part depends on whether Congress in 1864 was aware of the existence of a system of interstate banking in which such inequalities would seem a necessary part.

Close examination of the National Bank Act of 1864, its legislative history, and its historical context makes clear that, contrary to the suggestion of petitioners, Congress intended *315to facilitate what Representative Hooper28 termed a “national banking system.” Cong. Globe, 38th Cong., 1st Sess., 1451 (1864). See also Report of the Comptroller of the Currency 4 (1864). Section 31 of the Act, for example, fully recognized the interstate nature of American banking by providing that three-fifths of the 15% of the aggregate amount of their notes in circulation that national banks were required to “have on hand, in lawful money” could

“consist of balances due to an association available for the redemption of its circulating notes from associations approved by the comptroller of the currency, organized under this act, in the cities of Saint Louis, Louisville, Chicago, Detroit, Milwaukie [sic], New Orleans, Cincinnati, Cleveland, Pittsburg, Baltimore, Philadelphia, Boston, New York, Albany, Leavenworth, San Francisco, and Washington City.” 13 Stat. 108, 109.29

*316The debates surrounding the enactment of this section portray a banking system of great regional interdependence. Senator Chandler of Michigan, for example, noted:

“[T]he banking business of the Northwest is done upon bills of exchange. The wool clip of Michigan, the wheat crop of Michigan, the hog crop of Iowa, are all purchased with drafts drawn chiefly upon [New York, Philadelphia, and Boston], The wool clip is chiefly bought by drafts upon Boston. I put in the three cities because it is convenient to the customer, to the broker, to the merchant, to be enabled to purchase a draft upon either one of these three places.” Cong. Globe, 38th Cong., 1st Sess., 2144 (1864).30

See also id., at 1343, 1376, 2143-2145, 2152, 2181-2182. Similarly, the debates surrounding the enactment of § 41 of the Act, which provided that the shares of a national bank could be taxed as personal property “in the assessment of taxes imposed by or under state authority at the place where such bank is located, and not elsewhere,” 13 Stat. 112, demon*317strated a sensitive awareness of the possibilities of interstate ownership and control of national banks. See, e. g., Cong. Globe, 38th Cong., 1st Sess., 1271, 1898-1899 (1864).

Although in the debates surrounding the enactment of § 30 there is no specific discussion of the impact of interstate loans, these debates occurred in the context of a developed interstate loan market. As early as 1839 this Court had occasion to note: “Money is frequently borrowed in one state, by a corporation created in another. The numerous banks established by different states are in the constant habit of contracting and dealing with one another. . . . These usages of commerce and trade have been so general and public, and have been practiced for so long a period of time, and so generally acquiesced in by the states, that the Court cannot overlook them . . . .” Bank of Augusta v. Earle, 13 Pet. 519, 590-591 (1839). Examples of this interstate loan market have been noted by historians of American banking. See, e. g., 1 F. Redlich, The Molding of American Banking 49 (1968); 1 F. James, The Growth of Chicago Banks 546 (1938); Breckenridge, Discount Rates in the United States, 13 Pol. Sci. Q. 119, 136-138 (1898). Evidence of this market is to be found in the numerous judicial decisions in cases arising out of interstate loan transactions. See, e. g., Woodcock v. Campbell, 2 Port. 456 (Ala. 1835); Clarke v. Bank of Mississippi, 10 Ark. 516 (1850); Planters Bank v. Bass, 2 La. Ann. 430 (1847); Knox v. Bank of United States, 27 Miss. 65 (1854); Bard v. Poole, 12 N. Y. 495 (1855); Curtis v. Leavitt, 15 N. Y. 9 (1857). After passage of the National Bank Act of 1864, cases involving interstate loans begin to appear with some frequency in federal courts. See, e. g., In re Wild, 29 F. Cas. 1211 (No. 17,645) (SDNY 1873); Cadle v. Tracy, 4 F. Cas. 967 (No. 2,279) (SDNY 1873); Farmers’ Nat. Bank v. McElhinney, 42 F. 801 (SD Iowa 1890); Second Nat. Bank of Leavenworth v. Smoot, 9 D. C. 371 (1876).

*318We cannot assume that Congress was oblivious to the existence of such common commercial transactions. We find it implausible to conclude, therefore, that Congress meant through its silence to exempt interstate loans from the reach of § 30. We would certainly be exceedingly reluctant to read such a hiatus into the regulatory scheme of § 30 in the absence of evidence of specific congressional intent. Petitioners have adduced no such evidence.

Petitioners’ final argument is that the “exportation” of interest rates, such as occurred in this case, will significantly impair the ability of States to enact effective usury laws. This impairment, however, has always been implicit in the structure of the National Bank Act, since citizens of one State were free to visit a neighboring State to receive credit at foreign interest rates.31 Cf. 38 Cong. Globe, 38th Cong., 1st Sess., 2123 (1864). This impairment may in fact be accentuated by the ease with which interstate credit is available by *319mail through the use of modem credit cards. But the protection of state usury laws is an issue of legislative policy, and any plea to alter § 85 to further that end is better addressed to the wisdom of Congress than to the judgment of this Court.

Affirmed.

Cornetta, Roberta., J.

INTRODUCTION

The plaintiff, Citibank (South Dakota), N.A. (“Citibank”), filed the current action for account stated to recover a debt the defendant, Rosemary Walker DeCristoforo (“DeCristoforo”), purportedly owes it with respect to two delinquent credit card accounts. In response, DeCristoforo filed a counterclaim, alleging Citibank charged her interest in an amount greater than allowed by federal law. The matter is currently before the court on the parties’ cross motions for summary judgment. For the reasons explained below, DeCristoforo’s Motion for Partial Summary Judgment as to Liability on her Counterclaims will be ALLOWED in part and Citibank’s Cross Motion for Summary Judgment will be DENIED.

BACKGROUND

A. Factual Background

The material facts do not appear to be in dispute. Citibank is a national banking association located in South Dakota. DeCristoforo is an individual residing in Beverly, Massachusetts.

On October 1, 1984, DeCristoforo opened a credit card line of credit with Citibank, which has a current account number ending in 8960 (the “1984 Account”). Almost ten years later, on March 14, 1994, DeC-ristoforo opened a second credit card line of credit with Citibank, which has a current account number ending in 6865 (the “1994 Account”). DeCristoforo used the 1984 and 1994 Accounts to obtain credit from Citibank to acquire goods, services, and/or cash advances.

Citibank mailed periodic billing statements for the 1984 and the 1994 Accounts to the address DeC-ristoforo provided. The last payment posted to the 1994 Account on August 14, 2008 in the amount of $316.15. The last payment posted to the 1984Account on August 20, 2008 in the amount of $812.36. As of March 12, 2009, the outstanding balance on the 1994 Account, as reflected on its monthly statement, was $8,465.69. As of May 7,2009, the outstanding balance on the 1984 Account, as reflected on its monthly statement, was $25,870.44.

With respect to all unpaid amounts owed under the 1984 Account, as asserted in monthly statements to DeCristoforo, dated January 8, 2001 thru May 7, 2009, Citibank charged interest at annual rates of no less than 14.4% and no greater than 32.24%, exclusive of late fees and other charges. With respect to all unpaid amounts owed under the 1994 Account, as asserted in monthly statements to DeCristoforo, dated July 13/August 13,2001 thru February 12/March 12, 2009, Citibank charged interest at annual rates of no less than 10.65% and no greater than 54.7333%, exclusive of late fees and other charges.

B. The Consumer Credit Industry

Statistics show that DeCristoforo’s circumstances are not unique. Twenty years ago, in 1990, there were approximately 82 million credit cardholders.1 By 2003, that number had increased to 144 million.2 In addition to an increase in the number of cardholders, there has been a 350% increase in the amount that these cardholders charge while, during the same period, income has only risen by 188%.3 These statistics lead to the inescapable conclusion that the general public is drowning in credit card debt. In fact, almost 50% of American families owe some amount of credit card debt.4 Importantly, these statistics are not just *140about “avid commercialism”—individuals are using credit cards for everyday necessities, such as food and utilities.5 According to a report published in February 2008 by the Center for American Progress, in November 2007, total credit card debt in the United States had reached an all time high of $790.2 billion.6 Sluggish economic recovery combined with the unregulated interest rates and hidden fees the credit card companies charge, however, make it impossible for consumers to get out from under these debts,7 adversely impacting upon the ability of consumers to ever emerge from an endless interest and fees induced spiral.8

DISCUSSION

I. Standard of Review

Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). The moving party bears the burden of affirmatively showing that there is no triable issue of fact. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). The moving party may satisfy this burden either by submitting affirmative evidence that negates an essential element of the opposing parly’s case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of his case at trial. Flesner v. Technical Commc’ns Corp., 410 Mass. 805, 809 (1991). The nonmoving party cannot, however, defeat the well-pled motion for summaiy judgment by resting on its pleadings; rather, it must respond by alleging specific facts demonstrating the existence of a genuine fact. Correllas v. Viveiros, 410 Mass. 314, 317 (1991). The court views the evidence in the light most favorable to the nonmoving party, but does not weigh evidence, assess credibility, or find facts. Attorney Gen. v. Bailey, 386 Mass. 367, 370-71 (1982).

II. DeCristoforo’s Counterclaims

In support of summaiy judgment on her counterclaims, DeCristoforo argues 12 U.S.C. §85 (“Section 85”) caps interest at seven percent and that Citibank violated this provision by charging interest, on the 1984 Account, between 14.4% and 32.24%, and on the 1994 Account, between 10.65% and 54.7333%. In response, Citibank contends Section 85 is not applicable in this case because, in accordance with the Supreme Court’s holding in Daggs v. Pheonix Nat’l Bank, 177 U.S. 549 (1900), this provision only applies where the bank’s home state does not allow for any interest. Since Citibank is headquartered in South Dakota and South Dakota allows interest at any rate agreed upon in writing, according to Citibank, it can charge interest at any rate agreed upon between it and its credit card customers. This dispute highlights an issue of national concern—mounting credit card debt and unregulated interest rates, which make paying that debt next to impossible.

A. Section 85

To help finance the Civil War, in 1861, then Trea-suiy Secretary, Salmon P. Chase, recommended the federal government establish a national banking system whereby national banks could be chartered by the federal government and authorized to issue bank notes secured by government bonds.9 This idea came to fruition a fewyears later, in 1864, when the National Banking Act was enacted.10 Section 85 was included in the National Banking Act to protect against usurious interest rates.

Section 85 provides, in relevant part, that

[a]ny association may . . . charge on any loan . . . or upon . . . other evidences of debt, interest at the rate allowed by the laws of the State . . . where the bank is located . .. and no more, except that where by the laws of any State a different rate is limited for banks organized under State laws, the rate so limited shall be allowed for associations organized or existing in any such State under title 62 of the Revised Statutes. When no rate is fixed by the laws of the State . . . the bank may . . . charge a rate not exceeding 7 per centum . . .

12 U.S.C. §85. No decisions interpreting this provision, pertinent to the resolution of the current dispute, were decided until 1900 when the Supreme Court decided Daggs.

In Daggs, a national bank located in Arizona sought to enforce promissoiy notes bearing a ten percent interest rate. Id. at 549. In response, Daggs argued Section 85 limited the interest rate to seven percent, if no rate was “fixed” by the laws of the state or territory where the national bank was located. Id. at 554. Because, in Arizona, the interest rate was not “fixed” by the laws of the territoiy, but by the parties to the notes, Daggs contended the notes were usurious. Id. The Supreme Court disagreed. Id. at 555.

The Supreme Court concluded that the phrase “fixed by the laws,” from the second sentence of Section 85, should be construed to mean “allowed by the laws.” Id. It reasoned that the “national banks ‘were established for the purpose, in part, of providing a currency for the whole country, and in part to create a market for the loans of the general government. It could not have been intended, therefore, to expose them to the hazard of unfriendly legislation by the states, or to ruinous competition with state banks.’ ” Id. at 555, quoting Tiffany v. National Bank, 85 U.S. 409, 413 (1873). Under this interpretation, Section 85’s interest rate cap is only applicable when the laws of the bank’s home state allow no interest rate. See Hawkins v. Citicorp Credit Servs., Inc., 665 F.Sup.2d 518, 523 (2009) (emphasis added).

For all practical purposes, Daggs eliminated the protections affo'rded by Section 85. Following Daggs, the national banks were able to charge interest at whatever rate was allowed by the state in which they *141were located and there was very little uniformity from state to state. Interest rates were lower in states concerned with consumer protection, but much higher in states trying to lure large commercial banks into doing business within their borders. This went on until 1978, when the Supreme Court decided Marquette v. First Omaha Serv. Corp., 439 U.S. 299 (1978).

Marquette involved two banks: Marquette National Bank of Minneapolis (“Marquette”), where the state’s usury law capped interest rates for loans at twelve percent; and the First National Bank of Omaha (“First National”) in Nebraska, where state laws allowed an interest rate of up to eighteen percent. Id. at 301-03. To make up for the low cap in Minnesota, banks in Minnesota could charge an annual fee, which Marquette did. Id. at 304-05. First National then started marketing its credit cards to Minnesota residents as “no-fee” cards. Id.

Perceiving itself to be at a disadvantage, Marquette sued First National, arguing it was violating Minnesota’s usury law. Id. The Supreme Court made two important rulings. First, it concluded that state usury laws do not apply to nationally chartered banks based in other states. See id. at 308. Second, it decided that nationally chartered banks can “export” the interest rates allowed in their home states to customers throughout the country. Id. at 313-14. Under this holding, when a bank from a state without limits on interest issues credit cards to people living in states, which cap credit card interest, the costumer can be charged any rate of interest. See id.

The Marquette decision caused unprecedented expansion in the consumer credit industry as large national banks relocated to states with lender-friendly interest rate provisions.11 Today, all of the major credit card companies are located in a handful of states such as South Dakota, Utah, Arizona, and Delaware where the interest rate caps are either extremely high or nonexistent.12 Citibank is no exception.

In 1980, during a time of great economic strife in South Dakota, Citibank executives approached the then governor, William Janklow, with a plan.13 Citibank would move its headquarters to South Dakota, providing hundreds of high-paying white-collar jobs, if South Dakota quickly passed legislation eliminating its interest rate cap.14 South Dakota responded by passing a new interest rate provision, which provides, in pertinent part, that

[u]nless a maximum interest rate or charge is specifically established elsewhere in the code, there is no maximum interest rate or charge, or usuiy rate restriction, between or among persons, corporations . . . associations, or any other entities if they establish the interest rate or charge by written agreement. A written agreement includes the contract created by §54-11-9.15

South Dakota Condified Laws §54-3-1. Thereafter, Citibank relocated from New York to South Dakota.16 Ultimately, this arrangement succeeded beyond the parties’ expectations. Citibank’s agreement with South Dakota brought 3,000 high-paying jobs to the state and enabled Citibank to become a credit card giant, exporting South Dakota’s unregulated interest rate provision to customers around the country, including DeCristoroforo.17 Merely because Citibank is able to charge interest premised on South Dakota law, which does not cap interest, does not, however, mean Citibank can charge any interest rate. Citibank’s interest rate must still comport with common-law concepts of fairness such as unconscionability.18

B. Unconscionability

“The doctrine of unconscionability has long been recognized by common law courts in this country and in England.” Waters v. Min Ltd., 412 Mass. 64, 66 (1992), and cases cited. As the Appeals Court aptly explained more than three decades ago:

Historically, a bargain was considered unconscionable if it was “such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.” Hume v. United States, 132 U.S. 406[, 411] (1889), quoting 38 Eng.Rep. 82, 100 (Ch. 1750). Later, a contract was determined unenforceable because unconscionable when “the sum total of its provisions drives too hard a bargain for a court of conscience to assist.” Campbell Soup Co. v. Wentz, 172 F.2d 80, 84 (3rd Cir. 1948).

Covich v. Chambers, 8 Mass.App.Ct. 740, 750 n.13 (1979).

Unconscionability is a matter of law decided by the court and must be determined on a case-by-case basis. Zapatha v. Dairy Mart, Inc., 381 Mass. 284, 291 (1980). Particular attention is addressed to “whether the challenged provision could result in oppression and unfair surprise to the disadvantaged party.” Waters, 412 Mass. at 68, quoting Zapatha, 381 Mass. at 292-93. “The principle is one of prevention of oppression . . . and not of disturbance of [the] allocation of risks because of superior bargaining power.” Zapatha, 381 Mass. at 292, quoting U.C.C. §2-302, cmt. 1. “Oppression” is a matter of the substantive unfairness of the contract; “unfair surprise” means procedural unfairness in the manner in which the contract was concluded. See Id. at 293-95.

Substantive unconscionability occurs when contract terms are unreasonably favorable to one party. See Gilman v. Chase-Manhattan Bank, N.A., 534 N.E.2d 824, 829 (N.Y. 1988) (stating the question of substantive unconscionability “entails an analysis of the substance of the bargain to determine whether the terms were unreasonably favorable to the party against whom the unconscionability is urged . . .”). When “a provision of the contract is so outrageous as *142to warrant holding it unenforceable,” unconscionability can be based on the substantive component alone. Id. Meanwhile, procedural unconscionability “requires an examination of the contract formation process and the alleged lack of meaningful choice.” Id. at 828.

Although the facts pertaining to the formation of DeCristorforo’s credit card agreements are not set forth in the record, the court can fully grasp the one-sided nature of those proceedings. Nevertheless, even putting procedural unconscionability aside, the court concludes this is an instance where unconscio-nability can be based on the substantive component alone. Id. at 829. The court acknowledges that Citibank’s interest rate charges are not always unreasonable. For example, at times, Citibank charged De-Cristoforo as little at 10.65%. As time went by, however, Citibank continually increased its rate, especially as DeCristoforo began to fall behind with her payments, until it reached rates as high as 54.7333%. Substantial interest rate hikes such as this have greatly contributed to the consumer credit crisis in America.

With interest rates as high as forty and fifty percent, a significant portion of the debtor’s monthly payment goes toward paying interest without touching the underlying debt. At these rates, individuals must make monthly payments for years before putting a dent in their debt, especially when one owes credit balances in excess of $25,000, as is the case with DeCristoforo. Interest charges at these rates drain needed resources and slow economic growth. Citibank’s charges, in excess of eighteen percent, “drives too hard a bargain for a court of conscience to assist.” Campbell Soup Co., 172 F.2d at 84. The court concludes interest rate charges above eighteen percent are unconscionable and “so outrageous as to warrant holding [them] . . . unenforceable.” Gilman, 534 N.E.2d at 829.

III. Citibank’s Claims

Citibank contends it is entitled to summary judgment on its account stated claims because it mailed monthly statements for both the 1984 and the 1994 Accounts to DeCristoforo, showing the transactions on those accounts, and she retained these statements without objecting to the charges. In response, DeC-ristoforo argues there is an issue of fact as to whether her failure to object to the accuracy of the statements constitutes an acknowledgment of their correctness. The court concludes summary judgment is inappropriate because there is no agreement between the parties as to what DeCristoforo owes Citibank.

“A stated account is an agreement between the parties entered into after an examination of the items by which a balance is struck in favor of one of them . . .” Davis v. Arnold, 267 Mass. 103, 110 (1929), quoting McMahon v. Brown, 219 Mass. 23, 27 (1914). A claim for account stated does not create liability where none existed previously; rather, it determines the amount of a debt where liability already exists." Id., citing Chase v. Chase, 119 Mass. 556 (1876). Under an account stated theory, a party’s receipt of account statements and the failure to timely object to the amounts reflected establishes the party’s liability for the account balance. See Milliken v. Warwick, 306 Mass. 192, 196-97 (1940) (stating assent “may be inferred from the reception and retaining of the account without objection”), quoting Union Bank v. Knapp, 3 Pick 96, 113 (1825); see also McMahon 219 Mass. at 27.

Here, it is undisputed that Citibank mailed, to DeCristoforo, monthly statements for the 1984 and the 1994 Accounts. Further, DeCristoforo does not appear to dispute that she made the purchases or accepted the cash advances listed on the account statements. At an initial glance this would seem to support summary judgment in Citibank’s favor. However, in her counterclaim, which is discussed above, DeCristoforo objects to the interest rate Citibank charged. Although DeCristoforo is clearly liable for the goods, services, and/or cash advances she incurred under each account, there is no agreement between the parties as to what DeCristoforo actually owes Citibank. Therefore, Citibank’s Cross Motion for Summary Judgment will be DENIED.

ORDER

For the reasons set forth above, it is hereby ORDERED that: (1) DeCristoforo’s Motion for Partial Summary Judgment is ALLOWED in relation to interest charged by Citibank; and (2) Citibank’s Cross Motion for Summary Judgment is DENIED. The parties are further ORDERED to appear before this court on February 10, 2011 at 2:00 p.m. for a status conference and an assessment of damages hearing.

REID, Associate Judge.

The central issue presented in this case is whether, under the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601 et seq. (1994), a credit cardholder is required to avail himself of the billing dispute procedures of 15 U.S.C. § 1666 by notifying the creditor of disputed charges, in order to invoke the liability protections of 15 U.S.C. § 1643 against unauthorized charges to a credit card. Appellant Crestar Bank *1045(“Crestar”) filed a civil action against ap-pellee Eric L. Cheevers alleging that Mr. Cheevers owed an outstanding credit card balance of $4,231.76, plus interest. Mr. Cheevers claimed that he did not make or authorize most of the charges alleged. The trial court concluded that the disputed charges were “unauthorized” within the meaning of 15 U.S.C. § 1643, and thus, Mr. Cheevers was not hable for them. We affirm, concluding that § 1666 imposes no mandatory notification requirement on the credit cardholder, and that Crestar failed to satisfy its burden of proof under § 1643 by showing that the charges on Mr. Cheevers’ credit card were authorized, or that if unauthorized, the statutory conditions imposed on Crestar were not met.

FACTUAL SUMMARY

The evidence at trial established that on April 3, 1992, Mr. Cheevers entered into an agreement with Crestar for use of a Visa credit card. At the time, he resided in the 1600 block of Kenyon Street, N.W., but notified Crestar in December 1992 of his move to another address. Crestar received regular and timely payments from Mr. Cheevers from April 1992 until December 1993. Mr. Cheevers made additional charges on his account in January, February and April 1994. After his April 1994 charge, he took the credit card out of his wallet to avoid further use because he was experiencing financial difficulties. He could not recall what he did with the card, but thought it may have been lost during his move from Kenyon Street.

When Mr. Cheevers’ account became two months past due in June 1994, Crestar blocked the account from further transactions and mailed Mr. Cheevers a statement informing him that his privileges had been suspended. Despite the block on Mr. Cheevers’ account, in October and November, 1994, charges totaling $3,583.92 were posted to Mr. Cheevers’ card from Amtrak automated ticket machines.

In August 1994, Mr. Cheevers moved again and filled out a postal forwarding address card. On November 29, 1994, Crestar sent Mr. Cheevers a billing statement which included the charges from October and November. Mr. Cheevers testified that he never received the statement. Crestar’s litigation department also sent a letter to Mr. Cheevers, but the letter was returned by the postal service to Crestar on December 14, 1994. At that time, Crestar charged the matter off as bad debt, turned it over to its attorneys, and stopped mailing monthly statements to Mr. Cheevers.

Sometime around November 1994, Cres-tar contacted the Amtrak Police Department about the charges on Mr. Cheevers’ credit card. Raymond E. Wright, then a criminal investigator with the Amtrak Police, investigated the matter. He testified that the machines used to purchase the Amtrak tickets required no signature nor other identifying information, and took no photograph of the purchaser. He stated that the transactions amounting to thousands of dollars on Mr. Cheevers’s card were unusual. He concluded that the ticket transactions were irregular and fraudulent.

In the early part of 1995, Crestar continued its efforts to collect from Mr. Cheev-ers the sums charged to his account. On March 8,1995, an entry made by the Cres-tar collector assigned to the account stated: “This is probably fraud, no idea, real mess.” On March 22, 1995, Crestar’s attorneys called Mr. Cheevers and left a message on his machine. When they called back on April 8, 1995, the number was disconnected. On April 26, 1995, the attorneys contacted Mr. Cheevers’ place of employment but were informed that he had been fired. On May 2, 1995, Crestar filed suit against Mr. Cheevers.

Mr. Cheevers testified that after changing jobs in April 1995, which resulted in his making more money, he contacted Crestar on July 24, 1995, without knowledge either of the October and November charges on his credit card or the lawsuit *1046against him, because he wanted to pay off his balance which he believed was about $400. When the Crestar representative told him that the balance was about $4,500, Mr. Cheevers “became very alarmed and asked her why the amount was so high.” The Crestar representative stated that fraud was suspected and suggested that he call Amtrak and Crestar’s attorneys. Mr. Cheevers called Officer Wright and the attorneys. Subsequently, in January 1996, he notified Crestar, the bank’s attorneys, and the Amtrak Police in writing that he disputed the October and November 1994 charges. He testified that he did not make the Amtrak charges, that he did not receive any benefit from the charges, that neithér he nor his family traveled during that period of time, that he did not give tickets to anyone, and that he does not know who made the charges.

After the bench trial, the trial court ruled “for Mr. Cheevers as to all of the matters in dispute” and in favor of the bank for the undisputed amount of $617.84, plus prejudgment interest from September 1994. In particular, the court concluded that Crestar had failed to carry its burden of proof to show that the charges made on Mr. Cheevers’ credit card were authorized,1 and that Mr. Cheevers could not be assessed the statutory $50 fee “because the bank ha[d] not provided a method whereby the use[r] of the card can be identified as the person authorized to use it with respect to the charges that were incurred.” Relying on Stieger;2 the trial court also determined-that TILA precluded “a finding of apparent authority where the transfer of the card was without the cardholder’s consent as in cases involving theft, loss or fraud.”

ANALYSIS

Crestar cites 15 U.S.C. § 1666, known as the Fair Credit Billing Act (“FCBA”), and contends that the trial court erred by ruling that Mr. Cheevers was not hable for the disputed charges on his credit card, and that § 1666 obligated him to notify Crestar, in writing, within sixty (60) days of receipt of the billing statement that the October and November 1994 charges were unauthorized. Moreover, Crestar argues, Mr. Cheevers had a contractual and common law duty to notify the bank that his credit card had been lost or stolen. In response, Mr. Cheevers argues that § 1666 does not bar him from raising an unauthorized charge defense under 15 U.S.C. § 1643 of TILA, and that Crestar failed to sustain its burden of proof under § 1643, the credit agreement and the common law, to show that the disputed charges were authorized.

At the outset of this opinion, we set forth certain principles that guide our decision. We recognize that: “The Truth-In-Lending Act was enacted ‘in large measure to protect credit cardholders from unauthorized- use perpetrated by those able to obtain possession of a card from its original owner.’” Stieger, supra note 2, 666 A.2d at 482 (quoting Towers World Airways Inc. v. PHH Aviation Sys., Inc., 933 F.2d 174, 176 (2nd Cir.), cert. denied, 502 U.S. 823, 112 S.Ct. 87, 116 L.Ed.2d 59 (1991)). Moreover, “[TILA] is to be liberally construed in favor of the consumer.” Martin v. American Express, Inc., 361 So.2d 597, 600 (Ala.Civ.App.1978). In keeping with Congress’ intent to protect cardholders, § 1643(b) of TILA places the burden of proof on the card issuer, in this case Crestar bank, to show that the disput*1047ed charges were authorized: “In any ac-tion by a card issuer to enforce liability for the use of a credit card, the burden of proof is upon the card issuer to show that the use was authorized .... ” If certain statutory conditions are met, the limit of liability for unauthorized charges is $50 under § 1643(a)(1)(B). “However, [TILA] does not limit liability for the cardholder for third party charges made with ‘actual, implied or apparent authority ” Stieger, supra note 2, 666 A.2d at 482 (quoting 15 U.S.C.A. § 1602(o)). While § 1666 of the FCBA refers to a sixty day notice to the bank of a billing error and the steps the bank must take if a cardholder notifies it of a billing error, notice of such billing error by the cardholder is not required to trigger the protections of § 1643. See Regulation Z, 12 C.F.R. pt. 226, Supp. I, at 354 (1999). Indeed, “the legislative history of ... [the FCBA] shows that it amended [TILA] for the purpose of protecting the consumer against ‘unfair and inaccurate credit billing and credit card practices.’ ” Jacobs v. Marine Midland Bank, N.A, 124 Misc.2d 162, 475 N.Y.S.2d 1003, 1005 (N.Y.Sup.Ct.1984); see also Saunders v. Ameritrust of Cincinnati, 587 F.Supp. 896, 898 (S.D.Ohio 1984) (“Section 1666 sets out the mechanisms by which an obligor is to notify a creditor of a billing error, and the steps a creditor must take once it receives notice of a billing error.”).

We turn first to Crestar’s argument that: “In its simplest form, 15 U.S.C. § 1666 (1998) requires cardholders to inform card issuers of any errors on them statements, in writing, within sixty (60) days of the receipt of the statement.” Crestar seeks to impose a notification requirement on Mr. Cheevers that does not exist either under the plain words of § 1666 or its legislative history. Rather, § 1666 requires the bank or a creditor to take certain action after the cardholder notifies it of a billing error.3 Thus, § 1666 recognizes that a cardholder may inform the bank of a billing error, but does not mandate such notification. See Gray v. American Express Co., 240 U.S.App. D.C. 10, 13, 743 F.2d 10, 13 (1984) (“ ‘If the [cardholder] believes that the [billing] statement contains a billing error ..., he then may send the creditor a written notice setting forth that belief, indicating the amount of the error and the reasons supporting his belief that it is an error.’ ”) (quoting American Express Co. v. Koerner, 452 U.S. 233, 235-36, 101 S.Ct. 2281, 68 L.Ed.2d 803 (1981)). In addition, § 1666 imposes on the card issuer or the bank an obligation to acknowledge and investigate the alleged billing error. Id.

This reading of the statute is consistent with the legislative history of § 1666 which reveals Congress’ intent to protect the consumer against the creditor’s unfair and inaccurate billing practices. Moreover, it is consistent with Federal Reserve Board staff interpretation of the unauthorized use provision of § 1643 and the billing error provision of § 1666 of *1048Regulation Z, 12 C.F.R. pts. 226.12 and 226.13, regulations promulgated by the Board of Governors of the Federal Reserve System to implement TILA. In interpreting the notice to card issuer provision, the staff of the Board stated:

Notice of loss, theft, or possible unauthorized use need not be initiated by the cardholder....

The liability protections afforded to cardholders in § 226.12 do not depend upon the cardholder’s following the error resolution procedures in § 226.13. For example, the written notification and time limit requirements of § 226.13 do not affect the § 226.12 protections.

12 C.F.R. pt. 226, Supp. I, at 354. Courts must give deference to agency interpretations of TILA and its implementing regulations. See Anderson Bros. Ford v. Valencia, 452 U.S. 205, 219, 101 S.Ct. 2266, 68 L.Ed.2d 783 (1981) (“[A]bsent some obvious repugnance to [TILA], the Board’s regulation implementing this legislation should be accepted by the courts, as should the Board’s interpretation of its own regulation.”); Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980) (“[DJeference is especially appropriate in the process of interpreting the Truth in Lending Act and Regulation Z.”). Consequently, we conclude that § 1666 imposed no requirement on Mr. Cheevers to notify Crestar of a billing error before he could invoke the protections of § 1643. We turn now to § 1643.

Crestar maintains that Mr. Cheevers’ “failure to object to the [disputed] charges within a reasonable time, even if not his, constituted ratification and acceptance of those charges,” and that under contractual and common law, “if the cardholder fails to notify the bank of any dispute within a reasonable period, he is deemed to have admitted the authenticity of the charges.” In essence, Crestar reads into § 1643 a presumption that if the cardholder fails to notify the bank that the disputed charges are not his, they will be deemed to have been authorized by the cardholder. This presumption is at odds with the plain words of § 1643 which impose on the bank the burden to show authorized use of the card, or liability of the cardholder for unauthorized use. As the trial court concluded, nothing in the record demonstrated that Mr. Cheevers authorized the charges on his credit card in November and December 1994.4 In fact, he emphatically denied authorizing the purchase of any Amtrak tickets on his credit card. Nor was there any evidence in the record that Mr. Cheevers voluntarily transferred his card to a third person. “ ‘[TILA] clearly precludes a finding of apparent authority where the transfer of the card was without the cardholder’s consent as in cases involving theft, loss, or fraud.” ’ Stieger, supra note 2, 666 A.2d at 482 (quoting Towers World Airways Inc., 933 F.2d at 177). Similarly, the record in this case provided no support for the proposition that Mr. Cheevers transferred his card to a third person who had apparent authority to charge the Amtrak tickets. Therefore, we agree with the trial court that Crestar failed to carry its bur*1049den of proof to show that the disputed charges were authorized.

The only other way Crestar could prevail under § 1648(a)5 is to show that the conditions of liability for unauthorized use of Mr. Cheevers’ card have been met: “[I]f the use was unauthorized, then the burden of proof is upon the card issuer to show that the conditions of liability for the unauthorized use of a credit card ... have been met.” 15 U.S.C. § 1643(b). Six statutory conditions are imposed upon the card issuer or the bank. See note 5, supra. We agree with the trial court that Crestar did not satisfy at least one of these conditions, § 1643(a)(1)(F): “The card issuer has provided a method whereby the user of such card can be identified as the person authorized to use it.” Mr. Wright, the Amtrak Police criminal investigator in this matter, testified that the machines used to purchase the Amtrak tickets required no signature, took no photograph of the purchaser, and did not identify the purchaser by any other means. In fact, it was impossible to determine who had used Mr. Cheevers’ credit card to purchase the Amtrak tickets. Consequently, no evidence was introduced at trial to show that Crestar “provided a method whereby the user of [Mr. Cheevers’] card can be identified as the person authorized to use it,” and thus, Crestar did not sustain its burden to show that it met the conditions for Mr. Cheevers’ liability for unauthorized use of his credit card.

Accordingly, for the foregoing reasons, we affirm the judgment of the trial court.

So ordered.

By Judge T. J. Markow

This matter was tried by the court without a jury on February 15, 1994. All parties were present with counsel. The court received submissions of the parties and heard testimony of witnesses and argument of counsel, and the matter is now ripe for decision.

The evidence at trial showed that during the period from February 1, 1991, until approximately December 10, 1992, defendant operated a check cashing and check advance business under the trade name of Payday at 519 E. Little Creek Road in Norfolk, Virginia. One of the services defendant offered involved advancing funds to customers against post-dated checks at a discount from the face value of the check presented.

The Commonwealth called as a witness a former customer of defendant who testified that a typical transaction involved the customer drawing a post-dated check to defendant for $100.00 with the knowledge of both the customer and defendant that there were not sufficient funds in the customer’s bank account at the time the check was issued to cover the amount of the check; defendant would accept the check, pay the customer $83.00 in cash, and agree to defer presentment of the customer’s check until the date of the check, which date generally corresponded with the customer’s payday. On the agreed upon future date, the customer would return to defendant, provide defendant with the amount of his check in cash and retrieve his initial check, or alternatively allow defendant to deposit and present his check for payment. During this process, the customer’s check was held for a period of up to fifteen days. The parties stipulated that this witness’ testimony of the check advancement transaction accurately described a typical *430transaction involving him and other customers, and that this service represented a substantial part of the business of the defendant. The parties further stipulated that defendant has never been granted a consumer finance license by the State Corporation Commission pursuant to Va. Code § 6.1-249 of the Virginia Consumer Finance Act.

The issue is whether these check advancement transactions constituted loans by defendants in violation of the Virginia Consumer Finance Act (the Act), Va. Code §§ 6.1-244, et seq., and if so, whether the interest, fees, or other charges defendant charged exceeded the rate permitted by law.

The Act prohibits any unlicensed lender, unless exempt from the Act’s provisions, from making loans in amounts of $3,500 or less, and charging, contracting for or receiving, directly or indirectly, any interest, charges, compensation, consideration or expense which in the aggregate is greater than 12% per year. Defendant has never been exempt from the provisions of the Act.

A “loan” is defined as the “delivery by one party to and receipt by another party of [a] sum of money upon agreement, express or implied, to repay it with or without interest.” Black’s Law Dictionary, 936 (6th ed. 1990). A check is a negotiable instrument in the form of a draft drawn on a bank and payable on demand. Va. Code § 8.3-104. In its very essence a check is an order by the drawer that the drawee (usually a bank) pay to the holder of the check the amount of the check from funds on deposit with the drawee. It also constitutes an acknowledgement of indebtedness and an unconditional promise of the drawer to pay the payee or holder. By drawing and delivering a check to the payee, the drawer commits himself to pay the amount of the check if the drawee refuses payment upon presentment.

Applying these principles to the case at bar, the court finds that defendant’s acts of advancing funds to customers against post-dated checks, discounted by a particular amount, in exchange for full payment at a later time as described above constituted loans which are subject to the Act. The defendant would accept a check and agree to defer presentment until sufficient funds were deposited to cover it. Both the defendant and the customer knew that there were no funds on deposit upon which payment could be made at the time the check was issued. The customer, by drawing and delivering the check, acknowledged an indebtedness in the amount of the check, and unconditionally promised to pay it at a future date. The court rejects defendant’s argu*431ment that because neither it nor its customers ever intended to make loans, the transactions do not constitute loans. Both defendant and its customers intended to do what they did, and what they did constituted loans.

Having determined that defendant’s check advancement of postdated checks are loans covered by the Act, the only remaining issue is whether the interest, charges, compensation, consideration or expense charged by defendant exceeded the rate permitted by law.

Va. Code § 6.1-330.55 sets the current contract rate of interest permitted on loans in Virginia at 12% per year, unless a higher rate is authorized by some other Code section. This Code section applied during the relevant times mentioned herein. Defendant has not been granted a consumer finance license by the State Corporation Commission pursuant to § 6.1-249 of the Act, and at no time was otherwise exempt from the Act. Accordingly, defendant may not make loans in amounts of less than $3,500.00, and charge, contract for or receive interest, charges, compensation, consideration or expenses which in the aggregate exceed 12% per year.

The evidence at trial revealed that the interest, charges, compensation or other expense that defendant charged greatly exceeded 12% per year. Accordingly, all cash advancements of post-dated checks made by defendant in amounts of $3,500.00 or less, and for which it charged, contracted for or received interest, charges or other compensation in excess of 12% per year, are null and void. Defendant may not legally collect, retain or receive any principal, interest or other charges on any such loans.

Therefore, for the reasons stated herein, the court declares that all loans made by defendant in violation of Va. Code §§ 6.1-249 and 6.1-330.5 are null and void.

FLAUM, Circuit Judge.

Valerie Smith sued The Cash Store, Ltd.; The Cash Store Management, Inc.; and The Cash Store Management, Ine.’s officers and directors (collectively “Cash Store”) on behalf of a putative class for violations of the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq., and Illinois state contract law and consumer fraud statutes. This is an appeal from the district court’s dismissal of Smith’s suit for failure to state a claim under TILA. For the reasons set forth below, we affirm in part and reverse in part.

Background

Cash Store operates at least sixteen loan establishments in Illinois. These establishments specialize in making short-term, high interest “payday loans,” typically two weeks in duration and carrying annual percentage rates greater than 500%. When a Cash Store customer is granted a loan, the customer writes out a check, post-dated to the end of the loan period, for the full amount that he is obligated to pay. At the end of the two week period, the customer has the option of continuing the loan for an additional two week period by paying the interest.

Between June 13, 1998 and September 19, 1998, Smith obtained eight such loans from Cash Store. On each occasion she signed a standard “Consumer Loan Agreement” form. Each loan agreement stated an annual interest rate of 521%. Each loan agreement also contained the statement: “Security. Your post-dated check is security for this loan.” Upon entering into or renewing each loan, Cash Store stapled to the top of the loan agreement a receipt which labeled the finance charge in red ink as either a “deferred deposit extension fee” or a “deferred deposit check fee,” depending on whether the transaction was a renewal or an original loan.

The details of the loan agreement are important because the content and presentation of such agreements are regulated under TILA, 15 U.S.C. § 1601 et seq., and implementing Federal Reserve Board Regulation Z (“Regulation Z”), 12 C.F.R. § 226. Congress enacted TILA to ensure that consumers receive accurate information from creditors in a precise, uniform manner that allows consumers to compare the cost of credit from various lenders. 15 U.S.C. § 1601; Anderson Bros. Ford v. Valencia, 452 U.S. 205, 220, 101 S.Ct. 2266, 68 L.Ed.2d 783 (1981). Regulation Z mandates that: “The creditor shall make the disclosures required by this subpart clearly and conspicuously in writing, in a form that the consumer may keep. The disclosures shall be grouped together, shall be segregated from everything else, and shall not contain any information not directly related to the [required] disclosures....” 12 C.F.R. § 226.17(a)(1). The mandatory *327disclosures, which must be grouped in a federal disclosure section of a written loan agreement, include, among other things, the finance charge, the annual percentage rate, and any security interests that the lender takes. 12 C.F.R. § 226.18.

On March 16, 1999, Smith filed a class action complaint, amended on April 6, 1999, against Cash Store in the United States District Court for the Northern District of Illinois. She sued on behalf of a putative class for violations of TILA, for relief from an unconscionable loan contract, and for violations of the Illinois Consumer Fraud Act. The district court dismissed with prejudice the TILA claims for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6), and then exercised its discretion to dismiss without prejudice the remaining supplemental state claims, as permitted by 28 U.S.C. § 1367(c)(3).

Discussion

Smith argues on appeal that two of Cash Store’s practices violate TILA, and that the district court’s dismissal of the claims was therefore erroneous. The first practice relates to the receipts that Cash Store routinely stapled to the top of Smith’s loan agreements. Smith contends that the receipts physically obscured the required federal disclosures and that they characterized the finance charges in a misleading way. The second practice relates to the security interest disclosures, which Smith contends were inaccurate. We address each of these allegations in turn.

The Receipt Claim

TILA requires that a creditor make the required disclosures “clearly and conspicuously in writing....” 12 C.F.R. § 226.17. Smith alleges that the cash register receipt that Cash Store stapled to the upper left-hand corner of the loan agreements physically covered up some of the required disclosures. Furthermore, on her receipts were printed, in red, the terms “deferred deposit extension fee” or “deferred deposit check fee,” whereas the term “finance charge” is used in the federal disclosure box. Smith argues that both of these practices render the required disclosures on the loan agreement neither “clear” nor “conspicuous.”

The district court dismissed the claim relating to the Cash Store receipt on the ground that the allegations did not state a cause of action. It held that neither Cash Store’s stapling of a receipt to the loan documents nor the printed contents of the receipt violated TILA, having found that “Cash Store’s practice of stapling a small receipt to its TILA disclosures could not reasonably confuse or mislead Smith as to the terms of the loan.” Smith v. Cash Store Mgmt., Inc., No. 99 C 1726,1999 WL 412447, at *3 (N.D.Ill. June 8, 1999).

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts to support his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45—46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Caremark, Inc. v. Coram Healthcare Corp., 113 F.3d 645, 648 (7th Cir.1997). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Caremark, 113 F.3d at 648 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). As we recently stated, “Rule 12(b)(6) should be employed only when the complaint does not present a legal claim.” Johnson v. Revenue Mgmt. Corp., 169 F.3d 1057, 1059 (7th Cir.1999). Because the district court may not dismiss the complaint under Rule 12(b)(6) unless it is legally insufficient, we review that decision de novo. Caremark, 113 F.3d at 648.

As noted above, Regulation Z requires that “[t]he creditor shall make the disclosures required by this subpart clearly and conspicuously.” 12 C.F.R § 226.17. The “sufficiency of TILA-mandated disclosures is to be viewed from the standpoint of an ordinary consumer, not the perspective of *328a Federal Reserve Board member, federal judge, or English professor.” Cemail v. Viking Dodge, 982 F.Supp. 1296, 1302 (N.D.Ill.1997).

Whether or not Cash Store’s practices run afoul of Regulation Z is a factual issue, and the district court therefore erred in dismissing the receipt claims under Rule 12(b)(6). In her amended complaint, Smith contends that the stapled receipt contradicted and obfuscated the required disclosures. Am. Compl., ¶ 19. Her claim may fail on the facts, “but assessing factual support for a suit is not the office of Rule 12(b)(6).” Johnson, 169 F.3d at 1059. Although our holding does not preclude Cash Store from arguing, at the summary judgment stage, that Smith cannot prove her claims, Smith’s complaint alleging that the stapled receipt obscured the disclosures and that the printed contents of the receipt were confusing or misleading states a valid legal claim under TILA, and that is sufficient to pass Rule 12(b)(6) scrutiny.

The Security Interest Claim

Smith also contends that the district court erred in holding that Cash Store’s statement, ‘Tour post-dated check is security for this loan,” was a lawful disclosure under TILA. TILA requires creditors to disclose accurately any security interest taken by the lender and to describe accurately the property in which the interest is taken. 15 U.S.C. § 1638; 12 C.F.R. § 226.18. Regulation Z defines “security interest” as “an interest in property that secures performance of a consumer credit obligation and that is recognized by state or federal law.” 12 C.F.R. § 226.2(a)(25). Smith contends that Cash Store’s statement in the loan agreement violates TILA because, under Illinois law, the check does not serve as security.

Subject to narrow exceptions, “hypertechnicality reigns” in the application of TILA. Cowen v. Bank United of Texas, FSB, 70 F.3d 937, 941 (7th Cir.1995). Regulation Z specifies that certain federal disclosures must be grouped together in the loan agreement and also directs that the agreement “not contain any information not directly related to the [required] disclosures.” 12 C.F.R. § 226.17(a)(1). In Bizier v. Globe Financial Services Inc., the First Circuit explained that overinclusive security interest disclosures “cannot be dismissed as de minimis or hypertechnical.” Overinclusive disclosures might deter a borrower’s “future borrowing or property acquisition out of an exaggerated belief in the security interest to which they would be subject, or [give] a lender an apparent right which, even if ultimately unenforceable, could serve as a significant bargaining lever in any future negotiations concerning rights or obligations under the loan.” 654 F.2d 1, 3 (1st Cir.1981); see also Tinsman v. Moline Beneficial Fin. Co., 531 F.2d 815, 818-19 (7th Cir.1976) (holding that an over-broad disclosure of security interests violated TILA).1 All TILA disclosures must be accurate, Gibson v. Bob Watson Chevrolet-Geo, Inc., 112 F.3d 283, 285 (7th Cir.1997), and lenders are generally strictly liable under TILA for inaccuracies, even absent a showing that the inaccuracies are misleading, Brown v. Marquette Savings and Loan Assoc., 686 F.2d 608, 614 (7th Cir.1982). Smith contends that if the check that Smith handed over upon agreeing to the loan does not give Cash Store a security interest, then its statement to that effect violates TILA.

*329Cash Store first responds that the check acts as “security” because it gives Cash Store alternate routes to collect its debt. The check might facilitate payment because the loan agreement provides that Cash Store may deposit it on the loan due date if another form of payment is not made. If the check were to bounce, Cash Store could sue Smith under Illinois “bad check” statutes. According to Cash Store, the check then “secures” the loan by making repayment easier or by placing Cash Store in a stronger litigating position under Illinois law if Smith does not pay back the loan. Hence, the statement “Security: Your post-dated check is security for this loan” is accurate, and perhaps even required under TILA.

This argument, standing alone, is incomplete because it confuses “security” with “security interest.” True, Cash Store may be in a better position with the check than without it, and in that sense it may regard its loan as more “secure.” But this is a broader sense of “security” than that contemplated by Regulation Z. The regulations define “security interest” — which is a term of art referring to a specific class of transactions — as “an interest in property that secures performance of a consumer credit obligation and that is recognized by state or federal law.” 12 C.F.R. § 226.2(a)(25). Illinois commercial law, in turn, defines it as “an interest in personal property ... which secures payment or performance of an obligation.” 810 ILCS 5/1-201(37). By creating a security interest through a security agreement, a debtor provides that a creditor may, upon default, take or sell the property — or collateral — to satisfy the obligation for which the security interest is given. 810 ILCS 5/9— 105(l)(c) (“ ‘Collateral’ means the property subject to a security interest, and includes accounts and chattel paper which have been sold”). Because TILA restricts what information a lender can include in its federal disclosures, the question before us is not simply whether the post-dated check makes repayment more likely (“security”) but whether it can meet the statutory requirements of “collateral” (“security interest”).

Cash Store also maintains that Article 9 of the Illinois Uniform Commercial Code (“Illinois U.C.C.”), which governs secured transactions, applies “to any transaction (regardless of its form) which is intended to create a security interest in personal property ... including ... instruments.” 810 ILCS 5/9—102(1)(a). Because the check is an instrument, it can be used to create a security interest by the terms of the Illinois U.C.C. See In re Brigance, 234 B.R. 401, 404-05 (W.D.Tenn.1999) (holding that, under Tennessee’s U.C.C., a borrower’s personal check can serve as collateral in which a security interest can be obtained).

We again believe that this argument is incomplete. While Article 9 of the Illinois U.C.C. generally authorizes the use of instruments as collateral to secure a loan, it is not immediately clear whether this provision applies to a post-dated check issued by the borrower.

Neither the ease of recovery in the event of default nor’ the simple fact that a check is an instrument are sufficient to create a security interest. It is the economic substance of the transaction that determines whether the check serves as collateral. Cf. Cobb v. Monarch Finance Corp., 913 F.Supp. 1164, 1177-78 (N.D.Ill.1995) (distinguishing between a mechanism set up to facilitate repayment of a loan and an interest that secures a loan in the event of default). Therefore, in turning to our resolution of whether Cash Store took a security interest, our analysis must focus on the economic substance of Smith’s pledged check.

We begin with the premise that collateral must be of some value to secure a loan; it cannot simply be additional evidence of indebtedness. Prior to the U.C.C., courts had “uniformly” answered in the negative the question of whether “the pledge of an independent promise of the debtor to pay a sum of money can be made valid security *330for a debt.” New York Trust Co. v. Palmer, 101 F.2d 1, 4 (2d Cir.1939); see also Union Nat’l Bank v. People’s Savings & Trust Co., 28 F.2d 326, 328 (3d Cir.1928) (“The term ‘collateral security’ implies the transfer to a creditor of an interest in or a lien on property, or an obligation which furnishes a security in addition to the responsibility of the debtor. The execution and delivery by the debtor of additional unsecured evidence of his indebtedness does not constitute collateral security.”). Although we recognize that the U.C.C. has liberalized the scope of secured transactions, see 810 ILCS 5/9-101, U.C.C. cmt., we will assume that, even after Illinois’ adoption of the U.C.C., collateral must have some value beyond the promise to pay contained in a loan agreement itself. Cf. City of Chicago v. Michigan Beach Housing Coop., 242 Ill.App.3d 636, 182 Ill.Dec. 343, 609 N.E.2d 877, 886 (Ill.App. Ct.1993) (holding that certain tax credits could not serve as collateral because they had “no independent value in and of themselves”).

Smith argues that, having already promised contractually through the loan agreement to pay the amount printed on the check, the pledged check gives Cash Store no interest that it did not already have. The Illinois U.C.C. expressly provides that a check does not operate as an assignment of the bank account on which it is drawn. 810 ILCS 5/3-408. And the cheek itself has no intrinsic value beyond the minuscule value of a scrap of paper. According to Smith, then, the post-dated check does not secure the loan because it merely restates the promise to pay already contained in the loan agreement. Hitner v. Diamond State Steel Co., 176 F. 384, 391-92 (C.C.D.Del.1910) (“It hardly admits of discussion that the mere duplication or multiplication of a promise to pay or of an acknowledgment of liability to pay a certain sum representing the total real indebtedness to a creditor, whatever may be its effect in furnishing in certain exigencies alternative or cumulative evidence of the real demand, cannot constitute collateral security.”).

Smith may be correct that a second promise to pay, identical to the first, would not serve as collateral to secure a loan, because the second promise is of no economic significance: in the event that the borrower defaults on the first promise, the second promise to pay provides nothing of economic value that the creditor could seize and apply towards repayment of the loan. In this case, however, the post-dated check is not merely a second, identical promise. It is, indeed, a promise to pay the same amount as the first, but it has value to the creditor in the event of default beyond the value of the first promise. That is because a holder of both the loan and the check has remedies available to him that a holder of only the loan agreement does not. For example, the holder of the check has available remedies created by the Illinois bad check statute, 810 ILCS 5/3-806, which mandates that if a check is not honored, the drawer shall be liable for interest and costs and expenses incurred in the collection of the amount of the check.

Smith’s own statement that the check is of no intrinsic value is instructive: it is its extrinsic legal status and the legal rights and remedies granted the holder of the check, like the holder of a loan agreement, that give rise to its value. Upon default on the loan agreement, Cash Store would get use of the check, along with the rights that go with it. Cash Store could simply negotiate it to someone else. Cash Store could take it to the bank and present it for payment. If denied, Cash Store could pursue bad check litigation. Additional value is created through these rights because Cash Store need not renegotiate or litigate the loan agreement as its only avenue of recourse.

It is not important that, as Smith argues, by the time Cash Store gets use of the check it might be clear that Smith would not or could not make good on a promise for that amount. Cash Store’s *331likelihood of, for example, successfully pursuing bad check litigation goes to the issue of valuation of the check (one might roughly calculate it as its face value plus supplementary awards created by the bad check statute, discounted by the probability of successfully pressing the claim) not the issue of whether the check has any value beyond the promise contained in the original loan agreement. In the same way, there is the chance that Smith would call her bank and cancel the post-dated check before the loan’s due date, but this potentiality, depending on how the loan agreement might affect her legal right to do so, goes to how much holding the check is worth, not whether it has any value at all. Some additional value is created by the bad check statute and other legal provisions governing instruments.

This is not to say that by putting up a check as collateral, a lender like Cash Store necessarily takes a security interest in the amount printed on the face of the instrument. Rather, the rights created by state commercial law can, and in this case do, create some value in the instrument. We are therefore satisfied that Cash Store could lawfully assert under TILA that Smith’s post-dated check was security for the loan.

Conclusion

For the reasons stated above, we AffiRM the district court’s dismissal of the security interest claim, and we Revekse and Remand the district court’s dismissal of the receipt claim for further proceedings consistent with this opinion.

MANION, Circuit Judge,

concurring in part and dissenting in part.

I certainly agree with the court regarding the security issue. The Cash Store did not violate the Truth in Lending Act by informing Smith that it was holding her post-dated check as security for her loan. While possessing a post-dated check does not create a “security interest” as that term is usually understood, possession of the check nevertheless provided the Cash Store with added security for the loan. Although the Cash Store was not obligated under TILA to inform Smith that it held this check as security, lenders that seek to provide more information than is necessary under TILA should not be penalized for following the spirit of the statute. Thus, this court correctly affirmed the district court on this, the most substantive issue before this court on appeal.

The court’s decision to reverse the district court on Smith’s “receipt” claim is a concern. It is important to note that there are two facets to this claim. Smith asserts that stapling a small receipt to “the top of the ‘Consumer Loan Agreement’ ” violated TILA by (1) contradicting the TILA-man-dated disclosures; and (2) obscuring the required disclosures. Complaint ¶ 19. Smith possibly stated a claim regarding the “obfuscation” assertion because there could be a fact question as to exactly where the receipt was stapled and what it specifically obscured. But on its face the receipt clearly does not “contradict” the finance charge and the annual percentage rate, and it should cause no confusion regarding the terms of the agreement itself.

With respect to Smith’s contention that the receipt obscured the required disclosures, for starters it appears that no court has ever held that obstructing a borrower’s immediate view of the TILA disclosures violates TILA. The text of the statute and the regulations interpreting the statute do not indicate that this constitutes a violation. This is literally a matter of first impression, on a claim that is weak at best. For that reason alone the district court’s dismissal of this claim has merit. See 15 U.S.C. § 1638; 12 C.F.R. § 226.17(a)(1) & n. 37 (“The disclosures may include an acknowledgment of receipt....”). That aside, the documents attached to Smith’s complaint include an 8/é x 11 inch disclosure form and a % x 3 inch receipt that supposedly obstructed some of the mandated disclosures. Perhaps there is a plausible set of facts regarding the obstruction claim that could *332require looking beyond the complaint to determine if Smith would be entitled to any relief. The complaint states that the receipt was stapled to the “top” of the agreement. The court’s opinion refers to stapling to the “upper left-hand corner.” The district court noted that the staple mark was on the upper left-hand corner of the receipt and the loan document itself had no marks. If “top” could mean “front” and if Smith could show that the receipt was consistently stapled in the middle of the page covering the boxes boldly labeled “Annual Percentage Rate” and “Finance Charge,” perhaps she would have a claim. But if this relatively small receipt is routinely stapled to the upper left-hand corner with the lowest part barely covering one of the boxes and which could easily be lifted, there would not be any material obscuring of the TILA disclosures.1 More importantly, even assuming that an unsophisticated borrower would not lift up the receipt to see the small portion of the loan agreement covered by the receipt, such a borrower would still be able to clearly see the portions of the loan agreement which specify the annual percentage rate, the finance charge, the amount financed, the total of payments, the payment schedule, the security posted for the loan, the penalty for late payment, and a notice telling the borrower to examine the other side of the agreement for important information. Congress enacted TILA to ensure that consumers had access to this information so that they could comparatively shop for loans. See Walker v. Wallace Auto Sales, Inc., 155 F.3d 927, 930 (7th Cir.1998) (citing Brown v. Marquette Sav. & Loan Ass’n, 686 F.2d 608, 612 (7th Cir.1982) (Congress enacted TILA to “provide information to facilitate comparative credit shopping and thereby the informed use of credit by consumers.”)). So by clearly communicating these terms, the Cash Store complied with the Act. The two pieces of information that the receipt would obstruct (if stapled to the upper left-hand corner), the lender’s name and the borrower’s own name, are not material to comparing interest rates and the like (and the names were printed on the receipt anyway). Accordingly, unless the Cash Store attached the small receipt to the middle of the loan agreement, implicitly to purposely obstruct and prevent an easy review of this information, there is no violation of TILA’s requirements that the mandated disclosures be clear and conspicuous, and plaintiff fails to state a claim under the Act.

Smith also contends that the contents of the receipt contradicted the TILA-mandat-ed disclosures. An obvious contradiction of a material term would constitute a violation of TILA. See Rodash v. AIB Mortgage Co., 16 F.3d 1142, 1146 (11th Cir.1994). Thus, when a lender informs a borrower of his right to rescind, but also contradicts this notice by telling the borrower that he had waived his right to rescind, the borrower may state a claim under the Act. Id. But Smith has not made such an assertion here. In assessing a complaint under Rule 12(b)(6) we again look at the exhibits attached to the complaint, and the receipts attached to Smith’s complaint on their face do not contradict the disclosures in the loan agreement. The receipts here contain the amount borrowed on the same line as the words or word fragments: “DEFERRED CHECKS” or “DEFERRED DEPOSIT EXTENSI.” As there are no assertions made in the receipt, these words in no way contradict the information contained in the loan agreement. Furthermore, as the district court stated:

The receipt is an insignificant and unofficial-looking document in comparison *333with the attached loan document. The “deferred deposit check fee” is a single, small entry on the receipt. The loan agreement, on the other hand, disclosed the finance charge and interest rate in large, boldface type in a conspicuous position on the front of the loan document. Even an unsophisticated borrower, receiving the two documents together, could not be confused as to the terms of the loan.

Perhaps the 500% interest rate is an “unconscionable” exploitation of the needs of the unsophisticated consumer as Smith’s claim under state law asserts. As with the purchase of lottery tickets or cigarettes, consumers of payday loans likely know a bad deal when they see it but ignore the risks and take the loan anyway. A new state or federal law could eliminate these loans regardless of market demand. Until then TILA should not be stretched beyond its terms to restrict a product sophisticated consumers don’t like. Because Smith’s complaint and the exhibits attached thereto indicate that there was no contradiction (much less an obvious contradiction of a material term), she has failed to state a claim under TILA. Accordingly, the district court also correctly dismissed this part of the claim under Rule 12(b)(6).

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

ROBERTO A. LANGE, District Judge.

I. Introduction.

Plaintiff Federal Trade Commission (“FTC”) filed this action invoking federal court jurisdiction under 28 U.S.C. §§ 1331, 1337(a), 1345, and 1355, as well as under provisions of the Federal Trade Commission Act (“FTCA”), 15 U.S.C. §§ 45(a), 45(m)(l)(A), 53(b), 56(a), and 57(b). There is no question about this Court’s jurisdiction or venue.

The FTC filed an Amended Complaint, Doc. 44, setting forth seven separate counts, five of which — Counts I, II, III, VI, and VII — allege violations of § 5 of the FTCA, while the remaining two counts allege violations of the Credit Practices Rule and the Electronic Fund Transfer Act (“EFTA”) and Regulation E. The FTC has sued ten Defendants, asserting that the Defendants have operated as a common enterprise controlled by Defendant Martin A. Webb. The FTC through much of its pleadings refer to the Defendants collectively, seeking to hold all of the Defendants responsible for alleged violations of the FTCA, the Credit Practices Rule, and the EFTA. The Defendants dispute that they constitute a common enterprise or have violated any law.

The FTC filed a Motion for Summary Judgment on all of its counts, except for Count II. Doe. 93. The FTC sought through the summary judgment filing a final judgment and order for permanent injunctive and monetary relief. The FTC requests judgment against the Defendants, jointly and severally for $417,740 — the total profit Defendants received through what the FTC views as illegally garnished consumer wages — plus a civil monetary penalty of $3.8 million on the various claims. The FTC proposed a final judgment and order for permanent injunction and monetary relief, Doc. 100, that is twenty-five pages in length. The Defendants contest the FTC’s entitlement to summary judgment and dispute the damages claimed and the injunctive relief sought.

The parties have submitted a number of pleadings setting forth what they contend the facts to be. The FTC filed a Statement of Undisputed Material Facts and supporting material consistent with Rule 56 of the Federal Rules of Civil Procedure and this District’s Local Civil Rule 56.1. Docs. 95, 96, 97, 98, 99; D.S.D. Civ. LR 56.1. The Defendants filed a response dis*805puting some of the facts that the FTC contends are not subject to dispute and setting forth additional facts. Docs. 104, 105, 111. In turn, the FTC disputes whether Defendants’ response truly creates genuine issues of material fact. Doc. 115. After this Court issued an Opinion and Order Denying Defendants’ Motion for Partial Summary Judgment on Count VI of the Amended Complaint, Doc. 117, the FTC and the Defendants filed additional arguments and submissions. Docs. 119, 120, 122, 123, 130.

Upon initial review of the tremendous volume of material submitted by the parties, this Court noticed that there were more versions of loan agreements used by certain Defendants than what was in the record at the time and that the Defendants’ financial information in the record was somewhat stale and left unanswered where net profits generated by certain Defendants had gone. After entering an Order Regarding Status Conference, Doc. 124, posing certain questions, this Court, on May 29, 2013, conducted a status conference with counsel during which Defendants’ counsel volunteered to file loan agreements and additional financial material. Thereafter, Defendants filed a pleading attaching loan agreements that were used at various times by .two of the Defendants. Doc. 126. Defendants also filed under seal additional financial material. Doc. 129.

Certain questions on liability — whether the language of the loan agreements under which certain Defendants made loans contravened Regulation E, the Credit Practices Rule and § 5 of the FTCA and whether certain garnishment practices violated the Credit Practices Rule and § 5 — • are principally questions of law. The language of the loan agreements and the garnishment practices of certain Defendants are not subject to genuine dispute. The question of whether all Defendants constitute a “common enterprise” is one on which there is some remaining dispute of fact although mostly a dispute concerning characterization of the facts and application of the law to the facts. Some of the conduct alleged to have violated § 5 and some aspects of the relief that this Court should fashion, particularly as to certain civil monetary penalties, are not questions of law readily resolved on this record.

This Court in ruling on the FTC’s motion for summary judgment is obliged to construe the facts in the light most favorable to the Defendants as the non-moving party. Fed.R.Civ.P. 56. In doing so, this Court grants summary judgment on Count IV of the Amended Complaint for violation of the Credit Practices Rule and on Count V of the Amended Complaint for violation of the EFTA and Regulation E as to those Defendants that engaged in conduct in violation of those laws. This Court likewise grants partial summary judgment on Count I, but, given the muddled nature of the record and the directive to resolve disputes of material fact in favor of the Defendants at this juncture, denies summary judgment on Count III, Count VI, and Count VII of the Amended Complaint.

Ordinarily, this Court would set forth the facts not subject to genuine dispute and then analyze each of the legal issues based on those facts. But the issues framed by the FTC’s Motion for Summary Judgment yield themselves to consideration in separate topic areas.

II. Facts and Issues on Summary Judgment Motion.

A. Whether the Defendants are a “Common Enterprise” as a Matter of Law.

1. Undisputed Facts Regarding “Common Enterprise”

Issue.

Defendant Martin A. Webb- is an enrolled member of the Cheyenne River *806Sioux Tribe. Doe. 53 at ¶ 1. Webb has worked in the banking industry for over thirty years. Doc. 98-1 at 5. Webb did not personally offer, provide a loan, or collect or attempt to collect on any loan, or bring any lawsuit in Cheyenne River Sioux Tribal Court against any Defendants’ loan customer. Doc. 104 at ¶¶ 106-108. Webb, however, was the founder, organizer, and owner of various of the corporate Defendants sued by the FTC. Doc. 53 at ¶ 2; Doc. 105 at ¶ 2. Webb is the registered agent for each of the corporate Defendants. Doc. 97-1 at 18, 28, 36; Doc. 97-2 at 5, 15, 23, 33, 44; Doc. 97-3 at 5. Webb is the sole member of Defendants PayDay Financial LLC and Financial Solutions LLC. Doc. 97-2 at 15; Doc. 97-1 at 28.

Defendant PayDay Financial LLC has been marketing and making high-interest short-term loans to consumers nearly nationwide. PayDay Financial LLC has conducted business under trade names such as Lakota Cash, Big Sky Cash, and Big $ky Cash. Webb organized PayDay Financial LLC on October 22, 2007, and has always been its sole member and owner. Loan agreements of PayDay Financial LLC contained a wage assignment clause. Doc. 104 at ¶¶ 100-101. PayDay Financial LLC filed some collection actions in the Cheyenne River Sioux Tribal Court against certain borrowers. Doc. 104 at ¶ 102.

PayDay Financial LLC was the sole member at the time of incorporation of the following Defendants: 24-7 Cash Direct LLC, Doc. 97-1 at 18; Management Systems LLC, Doc. 97-2 at 5; Red Stone Financial LLC, Doc. 97-2 at 23; Western Sky Financial LLC, Doc. 97-2 at 33; Red River Ventures LLC, Doc. 97-2 at 44; High Country Ventures LLC, Doc. 97-3 at 5; and Great Sky Finance LLC, Doc. 97-1 at 36. PayDay Financial LLC on February 9, 2011, filed to “disassociate” itself under SDCL § 47-34A-605 from 24-7 Cash Direct LLC, Management Systems LLC, Red Stone Financial LLC, and Western Sky Financial LLC. Doc. 97-1 at 22; Doc. 97-2 at 9; Doc. 97-2 at 28; Doc. 97-2 at 38. Defendants state that the effect of PayDay Financial LLC disassociating itself from these other Defendants was not to cease the existence of those entities, but to make them owned and operated solely by Webb. Doc. 129 at 3. PayDay Financial was the sole member of and has not disassociated from Red River Ventures LLC and High Country Ventures LLC; rather those two entities filed to cancel their limited liability company status with the South Dakota Secretary of State. Doc. 97-2 at 48; Doc. 97-3 at 9. All net profits generated by Red River Ventures LLC and High Country Ventures LLC ended up with PayDay Financial LLC. Doc. 129 at 2-3.1 A sizeable portion of the net profits of PayDay Financial LLC have been transferred to certain of Webb’s limited liability companies that own land and are neither defendants in this case nor directly involved in the sub-prime lending business.2

PayDay Financial LLC was the sole member of certain named Defendants that appear to no longer function. Great Sky Finance LLC, which did business as Great Sky Cash and Great $ky Cash, was incorporated on May 15, 2009, with PayDay Financial LLC as its sole member. According to the Defendants, Great Sky Finance LLC was operational from October 13, 2009 until September 20, 2011. Doc. 104 at ¶ 17. During the time it was operational, Great Sky Finance LLC offered small dollar, high-interest, short-term con*807sumer loans. Doc. 104 at ¶ 18. Great Sky-Finance LLC used loan agreements with various versions of wage assignment clauses. Doc. 104 at ¶ 27; Doc. 111-15 at 6; Doc. 126-1 at 3; Doc. 126-2 at 3; Doc. 126-3 at 3.3 However, Great Sky Finance LLC apparently did not do collections work, left collections work to a different Defendant, and thus itself did not garnish consumer wages or sue consumers in the Cheyenne River Sioux Tribal Court. Doc. 104 at ¶¶ 21-26.

The next named Defendant — Western Sky Financial LLC — similarly was incorporated on May 15, 2009, with PayDay Financial LLC as its sole member. Doc. 97-2 at 31-33. Western Sky Financial LLC offered small dollar, short-term, high-interest installment loans, but appears not to have included a wage assignment clause in its loan agreements. Doc. 104 at ¶¶ 77, 80, 84; Docs. 126-5, 126-6, 126-7, 126-8, 126-9, 126-10, 126-11. Western Sky Financial LLC employs approximately eighty individuals, almost all of whom work exclusively for Western Sky Financial LLC. Doc. 104 at ¶ 79. Although Western Sky Financial LLC appears to do some collection work, Defendants maintain that it never engaged in wage garnishment, communication with any consumer’s employer, or suits against consumers in the Cheyenne River Sioux Tribal Court. Doc. 104 at ¶ 81-85.

Red Stone Financial LLC was incorporated on February 10, 2010, with PayDay Financial LLC as its sole member. Doc. 97-2 at 21-23. Red Stone Financial LLC was disassociated from PayDay Financial LLC on February 9, 2011. Doc. 97-2 at 27-28. Red Stone Financial LLC offered small dollar, short-term consumer loans with the loan agreement apparently not containing a wage assignment clause. Doc. 104 at ¶¶ 65, 67. Red Stone Financial LLC appears not to have done any of its collection work and thus did not directly engage in the collection conduct that the FTC challenges. Doc. 104 at ¶¶ 69-75.

The next named Defendant — Management Systems LLC — was incorporated on March 2, 2009, with PayDay Financial LLC as its sole member. Doc. 97-2 at 3-5. Management Systems LLC is neither a lender nor a collection business. Doc. 104 at ¶¶ 39-45. Rather, Management Systems LLC “performs or performed accounting and payroll activities for Defendants Financial Solutions, PayDay Financial, Western Sky Financial, Great Sky Finance, and Red Stone Financial.” Doc. 104 at ¶ 48. Management Systems LLC in recent years has generated substantial income, most of which has been transferred to limited liability companies owned by Webb and not directly connected to sub-prime lending.4

Defendant 24-7 Cash Direct LLC was incorporated on May 15, 2009, with Pay*808Day Financial LLC as its sole member. Doc. 97-1 at 16-18. According to the Defendants, “24-7 Cash Direct is not now, nor has ever been, operational.” Doc. 104 at ¶ 2. Defendants maintain that 24-7 Cash Direct never loaned any money or sought to collect from anyone. Doc. 104 at ¶¶ 2-15. However, FTC provided screen shots of 24-7 Cash Direct’s website that appeared to be soliciting potential borrowers to apply for loans through the website. Doc. 97-5 at 12-19.

The next named Defendant — Red River Ventures LLC — was, according to the Defendants, operational from approximately March 2009 until April 2009. Doc. 104 at f 54. During that time, Red River Ventures LLC offered small dollar, short-term consumer loans, but did so without any wage assignment clause and without performing collection work. Doc. 104 at ¶¶ 55-62. The same was true of the next named Defendant, High Country Ventures LLC, which was operational during the same time as Red River Ventures LLC, offered loans, but performed no collection services. Doc. 104 at ¶¶ 29-37. All revenues generated by Red River Ventures LLC and High Country Ventures LLC were both gross and net profit, indicating that other Defendants were bearing the costs of these entities’ operations. Doc. 119-8; Doc. 119-9. Both these entities transferred all of their assets to PayDay Financial LLC, have no current assets or operations, and have cancelled their limited liability company status.

The final corporate Defendant — Financial Solutions LLC — was organized by Webb with Webb as the sole member. Doc. 97-1 at 28; Doc. 105 at f 3. Financial Solutions LLC ceased operations when this case commenced. Doc. 98-1 at 15-16. Financial Solutions LLC was organized to purchase bad debt and delinquent loans, with most of those purchases from Allied Funding LLC, an entity not named in this suit and not owned by any of the Defendants. Doc. 104 at ¶ 91. Some of the bad debt purchased by Financial Solutions LLC and on which it performed collections included loans originated by Great Sky Finance LLC. Doc. 111-3 at 7; Doc. 104 at ¶ 94. Financial Solutions LLC used the wage assignment clauses in Great Sky Finance LLC’s loan agreements to collect from consumers and employers of certain consumers. Doc. 98-3 at 14-15.

All of the Defendants who issued loans used loan agreements that contained clauses authorizing electronic fund transfers (“EFT”) from consumer accounts to repay loans. Doc. 99-2 at 5; Doc. 111-11 at 3; Doc. 99-2 at 19; Doc. 99-2 at 24; Doc. 111-10 at 3; Doc. 111-5 at 3. Many of those loan agreements allowed consumers to opt out of the EFT authorization.

Webb was involved not only in establishing, but also in managing each of the nine corporate Defendants. During their operations, each of the corporate Defendants had its principal place of business either at 612 East Street or at a separate structure at 602 East Street in Timber Lake, South Dakota. Doc. 105 at ¶ 10. A few employees worked for more than one of the corporate Defendants. Doe. 104 at ¶¶ 79, 89, 99. Each corporate Defendant maintained its own bank account and did not commingle funds with another Defendant, although monies have transferred from some corporate Defendants to PayDay Financial LLC, and from two of the Defendants to non-defendant limited liability companies owned and operated by Webb.

2. Application of the law of “common enterprise.”

To prevent individuals and companies from using corporate structures to circumvent the FTCA courts have created a “common enterprise” exception to general common law principles; a “common en*809terprise” of defendants may be jointly and severally liable for violations of the FTCA. P.F. Collier & Son Corp. v. F.T.C., 427 F.2d 261, 267 (6th Cir.1970). “Where one or more corporate entities operate in common enterprise, each may be held liable for the deceptive acts and practices of the others.” F.T.C. v. Think Achievement Corp., 144 F.Supp.2d 993, 1011 (N.D.Ind.2000). That is, where the same individuals transact business through a “maze of interrelated companies,” the whole enterprise may be held liable for FTCA violations. F.T.C. v. J.K Publ’ns, Inc., 99 F.Supp.2d 1176, 1202 (C.D.Cal.2000). In determining whether a “common enterprise” exists, courts have looked to factors including “common control; the sharing of office space and officers; whether business is transacted through amaze of interrelated companies; the commingling of corporate funds and failure to maintain separation of companies; unified advertising; and evidence that reveals that no real distinction exists between the corporate defendants.” F.T.C. v. Nat’l Urological Grp., Inc., 645 F.Supp.2d 1167, 1182 (N.D.Ga.2008); J.K Publ’ns, 99 F.Supp.2d at 1202.

Viewing the facts in the light most favorable to the Defendants who are the non-movants on summary judgment, this Court finds there to be a genuine issue of material fact as to whether the entity that Defendants say never functioned — 24-7 Cash Direct LLC — could be considered part of a “common enterprise” with any other Defendant. There also is a genuine issue of material fact as to whether Management Systems LLC, which did payroll and accounting functions, could be considered part of a “common enterprise” in this case where the conduct at issue is the marketing and offering of loans and collection practices thereon. However, questions about Management Systems LLC being part of a “common enterprise” arise from the sizeable income it amassed from other Defendants and the transfer of those monies to Webb’s other non-party limited liability companies.

PayDay Financial LLC appears to be a common enterprise with the entities for which it was the sole member and which offered similar types of loans; that is, Red River Ventures LLC, High Country Ventures LLC, Great Sky Finance LLC, Western Sky Financial LLC, and Red Stone Financial LLC may well comprise a “common enterprise” with PayDay Financial LLC. After all, PayDay Financial LLC or some entity affiliated with it covered all operating expenses of Red River Ventures LLC and High Country Ventures LLC, and PayDay Financial LLC received all profits from those two entities. Doc. 129 at 2.

Webb, who directly or indirectly through PayDay Financial LLC owned each of the entities and has directed and controlled the operations, appears to be part of some “common enterprise.” After PayDay Financial LLC disassociated from certain of the Defendants, Webb ran them directly as their owner. Doc. 129 at 3. Webb was the decision maker who ultimately ran each of the entities and presumably the one who directed vast monies to be transferred from PayDay Financial LLC to non-party limited liability companies he owned. Ultimately, the FTC has more to prove against Webb, however, before he may be held personally liable for the conduct of the corporate Defendants. In cases brought by the FTC, individual defendants “are liable for the corporate defendant’s violations if the FTC demonstrates that (1) the corporate defendant violated the FTC Act; (2) the individual defendants participated directly in the wrongful acts or practices or the individual defendants had authority to control the *810corporate defendants; and (3) the individual defendants had some knowledge of the wrongful acts or practices.” Nat’l Urological Grp., Inc., 645 F.Supp.2d at 1207 (citation omitted). “To satisfy the knowledge requirement, the FTC must establish that the individual defendant either: (1) had actual knowledge of the wrongful acts or practices; (2) was recklessly indifferent to whether or not the corporate acts or practices were fraudulent; or (3) had an awareness of a high probability that the corporation was engaged in fraudulent practices along with an intentional avoidance of the truth.” J.K. Publ’ns, 99 F.Supp.2d at 1204..

Under the circumstances, there are many attributes of a common enterprise among many of the Defendants. PayDay Financial LLC is connected to Financial Solutions LLC, both by Webb being the sole member of each and collections that Financial Solutions LLC did for some of PayDay Financial LLC’s entities. Webb and the ■ corporate Defendants have conducted business from the same two addresses on East Street in Timber Lake; some employees are shared; although corporate funds appear to be held separately, those funds are passed to PayDay Financial LLC and Management Systems LLC and from those entities then to non-defendant limited liability companies owned by Webb; and the nature of almost all of the corporate Defendants have a common focus on marketing and making sub-prime loans and collecting thereon. Notwithstanding the hallmarks of some “common enterprise,” as a matter of law in summary judgment, this Court cannot declare all of the Defendants to constitute a “common enterprise.” There is some common enterprise here, but which Defendants and whether all Defendants are part of a common enterprise is a matter left open for trial.

B. Whether Defendants violated the EFTA or Regulation E.

1. Facts Regarding EFT Clauses in Loan Agreements.

The Defendants that entered into consumer loan agreements — PayDay Financial LLC, Great Sky Finance LLC, Western Sky Financial LLC, Red River Ventures LLC, High Country Ventures LLC, and Red Stone Financial LLC— had as apart of each loan agreement language providing for EFT. This EFT language in the loan agreements varied somewhat over time. The following is an example of an EFT authorization from a PayDay Financial LLC d/b/a Lakota Cash loan agreement:

By electronically signing this Loan Agreement below, you certify that you have fully read and understood the ACH AUTHORIZATION provisions of this Loan Agreement, you agree to comply with, and be bound by, their terms and you agree and understand that you are authorizing us to effect both debit and credit entries into your Bank Account to fulfill your obligations under this Loan Agreement.

Doc. 96-6 at 24; Doc 96-5 at 32-33 (PayDay Financial LLC d/b/a Lakota Cash loan agreement containing a nearly identical clause); Doc. 96-2 at 13 (Big $ky Cash loan agreement, which was a trade name of PayDay Financial LLC, stating “[a]ny payment due on the Note shall be made by us effecting one or more ACH debit entries to your account at the Bank”).

In support of its argument that the Defendants violated the EFTA and Regulation E, the FTC’s pleadings point to three particular loan agreements as examples. See Doc. 94 at 24; Doc. 95 at ¶ 31. These loan agreements had EFT authorization clauses and contained language allowing for the cancellation of the authorization *811but only if the consumer owed no debt. Specifically, these loan agreements stated:

The ACH/EFT Authorizations set forth in this Loan Agreement are to remain in full force and effect for this transaction until your indebtedness to us for the total of payments, plus any late or NSF fee incurred, is fully satisfied. You may only revoke the above authorization by contacting us directly, and only after you have satisfied your indebtedness to us.

Doc. 96-2 at 13 (containing language from Big $ky Cash loan agreement); Doc. 96-5 at 29 (PayDay Financial LLC d/b/a Lakota Cash loan agreement containing same language); Doc. 96-6 at 22 (PayDay Financial LLC d/b/a Lakota Cash loan agreement containing same language).

Because of the confusing state of the record, this Court asked the following question in its Order Regarding Status Conference: “In those loan agreements with Electronic Fund Transfer (EFT) terms, does any language — by Document number and page — make clear that the extension of credit is not conditioned on a customer’s repayment by EFT?” Doc. 124 at 3. The Defendants responded by pointing to language in Western Sky Financial LLC’s loan agreements that allowed consumers to cancel the EFT authorization at any time. See also Doc. 103 at 34-35 (quoting language from Western Sky Financial LLC’s loan agreements). Western Sky Financial LLC’s loan agreements provided in pertinent part:

You understand that you can cancel this authorization at any time (including pri- or to your first payment due date) by sending written notification to us. Cancellations must be received at least three business days prior to the applicable due date. This EFT debit authorization will remain in full force and effect until the earlier of the following occurs: (i) you satisfy all of your payment obligations under this Loan Agreement or (ii) you cancel this authorization.

Doc 104 at ¶ 80. However, no loan agreement at any point advised the consumer that the consumer could receive a loan from these Defendants without initially agreeing to EFTs from the consumer’s bank account.

2. Application of the EFTA and Regulation E.

Under Regulation E, the implementing regulation of the EFTA, “[n]o ... person may condition an extension of credit to a consumer on the consumer’s repayment by preauthorized electronic fund transfers....” 12 C.F.R. § 205.10(e)(1); 15 U.S.C. § 1693k(l). In turn, 12 C.F.R. § 205.2(j) defines “person” as a “natural person or an organization,-including a corporation....” PayDay Financial LLC, Western Sky Financial LLC, Great Sky Finance LLC, Red River Ventures LLC, High Country Ventures LLC, and Red Stone Financial LLC are all “persons” for purposes of applying § 205. There is no question that these same Defendants were extending credit, that is, extending to consumers the right to “incur debt and defer its payment.” 12 C.F.R. § 205.2(f). The loan agreements contemplated “preauthorized electronic fund transfers,” in that they authorized transfers directly from consumers’ accounts which would be “electronic fund transferís] authorized in advance to recur at substantially regular intervals.” 12 C.F.R. § 205.2(k).

The Defendants defend the practices of PayDay Financial LLC, Western Sky Financial LLC, Great Sky Finance LLC, Red River Ventures LLC, High Country Ventures LLC, and Red Stone Financial LLC by asserting that “in practice no defendant conditioned the extension of credit on a consumer agreeing to *812electronic fund transfers” and that the clauses were for “the consumer’s convenience” and “revocable at any time.” Doc. 103 at 35. However, § 205.10(e)(1) makes clear that there shall be no extension of credit to a consumer conditioned on repayment by preauthorized EFTs. 15 U.S.C. § 1693k(l). The only exceptions to § 205.10(e)(1) are “for credit extended under an overdraft credit plan or extended to maintain a specified minimum balance in the consumer’s account,” neither of which exception applies to the Defendants’ lending business or practices. There is no exception to § 205.10(e)(1) for “consumer’s convenience.”

The loan agreements cited by the FTC made the loans conditioned on EFTs. Indeed some of these loan agreements provided that any loan payment by a consumer “shall be made by us [meaning the Defendant lender] effecting one or more ACH debit entries to your Account at the Bank.” Doc. 96-2 at 13. These loan agreements made revocation possible “only after you have satisfied your indebtedness to us.” Doc. 96-2 at 13; Doc. 96-5 at 29; Doc. 96-6 at 22. Because these loan agreements made the extension of credit conditional on the consumer agreeing to EFTs, these loan agreements were violative of Regulation E.

The language in the Western Sky Financial LLC loan agreements made the EFT authorization revocable “at any time (including prior to your first payment due date) by sending written notification to us.” Doc. 104 at ¶80. No provision of any of the Defendants’ loan agreements, however, expressly states that the consumer does not need to authorize EFT at all to receive a loan or provides a means by which a consumer can obtain a loan without initially agreeing to EFT. Defendants no doubt would argue that a consumer could infer from the language that, if the

EFT can be revoked “prior to your first payment due date,” then the loan is not conditioned on agreement to the EFT clause. This argument, albeit in the context of a ruling in a motion to dismiss, was rejected in O’Donovan v. CashCall, Inc., No. C 08-03174 MEJ, 2009 WL 1833990 (N.D.Cal. June 24, 2009). In O’Donovan, the court considered whether to dismiss a claim that a consumer lender violated 15 U.S.C. § 1693k(l) and 12 C.F.R. § 205.10(e)(1) by conditioning the extension of credit on preauthorized EFTs. The court in O’Donovan reasoned:

Defendant [the consumer lender] argues that because a consumer is permitted to cancel an EFT authorization at any time, including prior to first scheduled payment, the extension of credit is not conditioned on use of EFTs for repayment. ... However, the right to later cancel EFT payments does not allow a lender who conditions the initial extension of credit on such payments to avoid liability.

Id. at *3. This Court agrees.

The lending Defendants have never issued a consumer loan without the consumer initially entering into a loan agreement containing an EFT clause. Although the Western Sky Financial LLC loan agreements contain EFT clauses vastly improved over the EFT clauses in the loan agreements cited by the FTC, the fact remains that there is no language expressly stating that the extension of credit is not conditioned on agreement initially to EFT or explaining how a consumer might obtain a consumer loan from Defendants otherwise. The arguments of the lending Defendants that “in practice” they did not condition the extension of credit on consent to EFTs ignores that in reality their loan agreements did just that. The language used by Western Sky Financial LLC conditioning credit on an EFT clause, *813albeit one revocable at any time, is a violation somewhat technical in nature and use of this EFT clause is not likely to merit much, if any, monetary penalty. Nevertheless, the Western Sky Financial LLC EFT clause, as well as the EFT clauses used by other lending Defendants, violate the EFTA and Regulation E. Summary judgment on Count V of the Amended Complaint in favor of the FTC is granted.

C. Whether any Defendant violated the Credit Practices Rule as a matter of law.

1. Facts Regarding Wage Assignments and Garnishments.

In Count IV, the FTC alleges that the Defendants violated the Credit Practices Rule by using an unlawful wage, assignment clause in their loan contracts. Defendant PayDay Financial LLC, the entity that made the majority of the loans, first offered their high-interest, short-term loans on May 12, 2008. Doc. 99-2 at 5. PayDay Financial LLC began including wage assignment clauses in at least some of its loan agreements on October 10, 2009. Doc. 99-2 at 5. By way of illustration, contract language from a loan, agreement of PayDay Financial LLC d/b/a Lakota Cash at one point provided:

Should you default on this Agreement, you hereby consent and agree' to the potential garnishment of wages by us or our assigns or service agents to ensure repayment of this Agreement, fees and costs associated in the collection of outstanding principal and interest.

You may choose to opt out [of] the Garnishment provision, but only by following the process set-forth below. If you do not wish to be subject to this Garnishment Provision, then you must notify us in writing within (10) calendar days of the date of this Agreement....

Doc. 96-1 at 11-12; Doc. 96-3 at 13. Wage assignment clauses substantially similar to this appear in loan agreements used by Defendant Great Sky Finance LLC. Doc. 111-5 at 3; Doc. 111-15 at 6; Doc. 126-1 at 3; Doc. 126-2 at 3.5 Other Defendants who offered loans — Western Sky Financial LLC, Red Stone Financial LLC, High Country Ventures LLC,. and Red River Ventures LLC — apparently did not utilize such a clause.

PayDay Financial LLC revised the wage assignment clauses on June 7, 2010, Doc. 99-2 at 5, as found in a PayDay Financial LLC d/b/a Lakota Cash agreement, to read:

Should you default on this Agreement, you hereby consent and agree to the potential preauthorized garnishment of wages by us or our- assigns or service agents to insure repayment of this Agreement, fees and costs associated in the collection of outstanding principal and interest.

You may choose to opt out [of] the Preauthorized Garnishment Provision, but only by following the process set forth below. If you do not wish to be subject to this Preauthorized Garnishment Provision, then you must notify us in writing within (10) calendar days of the date of this Agreement.... After the ten day deadline, you may choose to opt out of the Preauthorized Garnishment Provisions, however, you must CALL ... and indicate your desire to *814opt out of the Preauthorized Garnishment Provisions.

Doc. 96-6 at 15. PayDay Financial LLC removed the wage assignment clauses from all of its loan agreements on September 10, 2011, after the FTC began this case. Doc. 99-2 at 5.

PayDay Financial LLC used a wage garnishment packet beginning in October or November 2009 through December 28, 2011. Doc. 99-2 at 6-7.6 PayDay Financial LLC never obtained a court order for garnishment. Doc. 99-2 at 42. Instead, PayDay Financial LLC borrowed language from the materials that the United States Government uses for garnishment under the Debt Collection Improvement Act of 1996 (“DCIA”). Doc. 97-7. PayDay Financial LLC contacted the consumers’ employers using forms tailored from the Government’s forms under the DCIA. Docs. 98-5, 97-7, 96-4, 96-3.

The letter used by PayDay Financial LLC asserted that the “Indian Commerce Clause of the United States Constitution and the laws of the Cheyenne River Sioux Tribe permit agencies to garnish the pay of individuals who owe such debt without first obtaining a court order.” Doc. 96-1 at 5. In reality, the Indian Commerce Clause of the United States Constitution has nothing to do with garnishment, but grants to Congress the authority “to regulate Commerce ... with the Indian Tribes.” U.S. Const, art. I, § 8. The Defendants acknowledge that no law of the Cheyenne River Sioux Tribe existed either to permit or to forbid garnishment without a court order. Doc. 99-2 at 35.

By use of the garnishment packet, PayDay Financial LLC between October of 2009 and November or December of 2011 collected $946,825.62 of principal, $280,216.52 in finance fees, and $76,633.25 in other fees, for a total of $1,303,675.39. Doc. 99-2 at 48-49. Financial Solutions LLC collected a total of $181,644.42 by use of the garnishment packet. Doc. 99-2 at 49. Of that total, $120,753.09 were principal payments, $39,407.48 were finance charges, and $21,483.85 were fees. The FTC does not seek disgorgement of the principal balance from PayDay Financial LLC or Financial Solutions LLC, but seeks this Court to grant summary judgment for disgorgement of the interest and fees collected through such directives to employers to garnish debtors’ wages.

2. Application of Credit Practices Rule to wage assignment clauses.

The FTC in 1984 promulgated the Credit Practices Rule, 16 C.F.R. Part 444, to address certain unfair collection practices, including certain wage assignment clauses. Am. Fin. Servs. Ass’n v. F.T.C., 767 F.2d 957, 962-63 (D.C.Cir.1985). Wage assignments, unlike court orders for garnishment, occur without the procedural safeguards of a court hearing and an opportunity for debtors to assert defenses or counterclaims. A wage assignment may interfere with employment relationships and can injure consumers who may have valid reasons for nonpayment and who rely on wage income to support themselves and their families. Id. at 974-75.

The Credit Practices Rule does not make all wage assignments unlawful. Rather, § 444.2(a)(3) generally prohibits lenders from including wage assignment clauses in loan agreements, unless the clause: (i) is, by its terms, revocable at the will of the debtors; (ii) is a payroll deduction plan or preauthorized payment plan, *815commencing at the time of the transaction, in which the consumer authorizes a series of wage deductions as a method of making each payment; or (iii) applies only to wages or other earnings already earned at the time of the assignment. 16 C.F.R. § 444.2(a)(3). The wage assignment clause that was in some of PayDay Financial LLC’s loan agreements does not satisfy the exceptions contained in § 444.2(a)(3)(H) or (iii), and the Defendants do not make any argument under those exceptions. Rather, the Defendants note that the wage assignment clause was revocable within ten days of issuance of the loan and argue that, in practice, those Defendants who offered loans including wage assignments allowed consumers To revoke the clause at any time.

The first exception in the Credit Practices Rule to the general prohibition on wage assignment clauses requires that the clause is “by its terms, revocable at the will of the debtor.” 16 C.F.R, § 444.2(a)(3)(i). That is, the first exception focuses on the terms of the loan agreement. At least some of the PayDay Financial LLC loan agreements used from October 10, 2009 to June 7, 2010, contained wage assignment clauses that consumers could opt out of, but only if they did so in writing within ten calendar days of the date of the agreement. Other than during the first ten days, this version of the loan agreement contained no means for a borrower to revoke the wage assignment clause. Such a ten-day limitation for opt out of the wage assignment clause violates § 444.2(a)(3)(i)’s requirement that a wage assignment clause, by its terms, be “revocable at the will of the debtor.”

The FTC is not seeking a civil penalty for PayDay Financial LLC’s use of wage assignment clauses after June 7, 2010. Doc. 114 at 36. Nevertheless, the FTC argues that PayDay Financial LLC’s post-June 7, 2010 wage assignment clauses violated § 444.2(a)(3). Unlike the preJune 7, 2010 loan agreements, the post-June 7, 2010 loan agreements allowed the consumer to opt out of the wage assignment clause at, any time. Curiously, the consumer could do so only in writing within ten calendar days of the agreement and thereafter only by calling the customer service department.- The question thus becomes whether “by its terms” the post-June 7, 2010 wage assignment clause was “revocable at the will of the debtor;” it was revocable at the will of the debtor but on conditions such as written notification within ten calendar days of the loan and thereafter only by phone request. Ideally, the post-June 7, 2010 wage assignment clause should have expressly stated that the wage assignment was revocable at any time freely on the will of the debtor, without any condition other than notice to the lending defendant by writing or oral request. The post June 7, 2010 wage assignment clause is not ideal, but the language of the clause did not violate § 444.2(a)(3). Accordingly, summary judgment on Count IV is granted, but only as to the wage assignment clauses appearing in PayDay Financial LLC’s loan agreements between October 10, 2009 and June 7, 2010.

D. Whether other violations exist under § 5 of the FTCA.

1. Law Regarding § 5 of FTCA.

In Counts I, II, III, VI, and VII of the Amended Complaint, the FTC alleges other conduct by Defendants to have violated § 5 of the FTCA. The FTC moves for summary judgment on each of those claims, except for Count II.

Compared to specific provisions of the Credit Practices Rule or Regulation E, § 5 of the FTCA is more sweeping and general. Section 5 prohibits *816entities from engaging in unfair or deceptive acts or practices in interstate commerce by providing:

(1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.

(2) The Commission is hereby empowered and directed to prevent persons, partnerships, or corporations, [except certain specified financial and industrial sectors] from using unfair methods of competition in or affecting commerce and. unfair or deceptive acts or practices in or affecting commerce.

15 U.S.C. § 45(a). -To establish that an act or practice is deceptive under § 5, the FTC must demonstrate that 1) there was a representation; 2) the representation was likely to mislead consumers acting reasonably under the circumstances; and 3) the representation was material. F.T.C. v. Tashman, 318 F.3d 1273, 1277 (11th Cir.2003); F.T.C. v. Gill, 265 F.3d 944, 950 (9th Cir.2001). A representation is' “material” if’ it is likely to affect the consumer’s conduct or decision regarding the product or service. Kraft, Inc. v. F.T.C., 970 F.2d 311, 322 (7th Cir.1992); F.T.C. v. LoanPointe, Inc., No. 2:10-CV-225DAK, 2011 WL 4348304, at *5 (D.Utah Sept. 16, 2011). Express and deliberate claims are presumed to be material. F.T.C. v. Pantron I Corp., 33 F.3d 1088, 1095-96 (9th Cir.1994); LoanPointe, 2011 WL 4348304, at *4; F.T.C. v. SlimAmerica, Inc., 77 F.Supp.2d 1263, 1272 (S.D.Fla.1999). To be unfair, a practice must be likely to cause substantial injury to consumers, not reasonably avoidable by consumers themselves, and not outweighed by countervailing benefits to consumers or to competition. 15 U.S.C. § 45(n); F.T.C. v. Accusearch Inc., 570 F.3d 1187, 1193 (10th Cir.2009).

2. Conduct allegedly violative of § 5.

a. Communication concerning wage assignments arid garnishments.

Earlier in this decision, the language used by PayDay Financial LLC to collect on wage assignments was quoted. Other than Great Sky Finance LLC, the remaining Defendants appear not to have used wage assignment clauses, and only Financial Solutions LLC and PayDay Financial LLC performed collection services using the wage assignment clauses and garnishment practice.

When a borrower whose loan agreement contained a wage assignment clause defaulted on the loan agreement and failed to work toward paying off the loan, PáyDay Financial LLC and Financial Solutions LLC on occasion sent a garnishment packet to the borrower’s employer. Doc. 96-1 at 5-16; Doc. 98-5 at 41-51. The garnishment packet began with a letter to the employer that notified the employer of its employee’s delinquent debt and stated:

The Indian Commerce Clause of the United States Constitution and the laws of the. Cheyenne River Sioux Tribe permit agencies to garnish the pay of individuals who owe such debt without first obtaining a court order.

Doc. 96-1 at 5 (PayDay Financial LLC d/b/a/ Lakota Cash garnishment packet); Doc. 98-5 at 41 (Financial Solutions LLC garnishment packet).7 The other enclosures included a worksheet on which appeared the following directive:

NOTICE TO EMPLOYERS: THE EMPLOYER MUST COMPLETE AND RETURN THIS CERTIFICATION TO *817PAY DAY FINANCIAL, LLC WITHIN 10 DAYS OF RECEIPT.

Doc. 96 — 1 at 9 (PayDay Financial LLC d/b/a/ Lakota Cash garnishment packet); Doc. 98-5 at 45 (Financial Solutions LLC garnishment packet).

Applying the § 5 analysis, there clearly were representations made to employers. Those representations included that “[t]he Indian Commerce Clause of the United States Constitution and the laws of the Cheyenne River Sioux Tribe permit agencies to garnish the pay of individuals who owe such debt without first obtaining a court order,” and that employers were required to respond to a portion of the garnishment packet within ten days. These representations were likely to mislead employers and were deceptive. No part of the Indian Commerce Clause permits the garnishment of pay. As previously decided by this Court:

The “Indian Commerce Clause” refers to part of the Commerce Clause, which states that Congress shall have the power “[t]o regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const, art I, § 8, cl. 3. Thus, the “Indian Commerce Clause” provides for federal authority, exclusive of the states, in dealings with Indian tribes, Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561[, 8 L.Ed. 483] (1832), but does not provide a basis for tribal jurisdiction over non-Indians.

F.T.C. v. Payday Fin., LLC, 935 F.Supp.2d 926, 931 n. 3 (D.S.D.2013). The Indian Commerce Clause provides no authority for these Defendants to seek to garnish consumers’ wages from their employers. Likewise, as the Defendants have conceded, there is nothing in the laws of the Cheyenne River Sioux Tribe that permits or precludes garnishment without a court order. Doc. 99-2 at 35, The Cheyenne River Sioux Tribe Code is silent as to garnishment. However, the representation by PayDay Financial LLC and Financial Services LLC is not that the Cheyenne River Sioux Tribe Code is silent, but rather that the Tribe’s laws “permit agencies to garnish the pay of individuals who owe such debt without first obtaining a court order.” Doc. 96-1 at 5. In addition, there is no source of law anywhere that an employer of a loan customer “must complete and return” a certification form within ten days to the Defendants. See Doe. 96-1 at 9.

The representations listed above were material, as reflected by the amount that PayDay Financial LLC and Financial Solutions LLC were able to collect through garnishment. Through the garnishment procedure, PayDay Financial LLC collected a total of $1,303,675.39, and Financial Solutions LLC collected a total of $181,644.42, for a total of $1,485,319.81. Doc. 99-2 at 48-49. Of that total, $417,740.10 was collected through garnishment for finance charges, interest, and fees. Doc. 99-2 at 48-49. Statements by PayDay Financial LLC and Financial Solutions LLC in the garnishment packet to the employers of loan customers regarding the garnishment of wages were violative of § 5, and the FTC is entitled to summary judgment on Count I.

The garnishment packets used by PayDay Financial LLC and Financial Solutions LLC were not the only way these Defendants communicated with borrowers’ employers. On some occasions, PayDay Financial LLC and Financial Solutions LLC communicated with borrowers’ employers via written correspondence or over the telephone. Doc. 105 at ¶¶ 42-43; Doc. 96-3 at-3; Doc. 99-1 at 7-8, 11-12. These communications concerned garnishment of the borrowers’ wages and generally occurred after PayDay Financial LLC or *818Financial Solutions LLC had sent the employers a garnishment packet. Count III of the Amended Complaint alleges that these communications took place “without consumers’ knowledge or consent” and that the communications disclosed the existence and occasionally the amount of the consumers’ debt. Doc. 44 at 16-17. The FTC alleges that the communications constitute an unfair practice under § 5. There is very little evidence in the record concerning how often these communications occurred and what was said during the telephone conversations. There remains a question of fact concerning whether the borrowers were aware that PayDay Financial LLC or Financial Solutions LLC would be communicating with their employers or that the communications coming after the garnishment packets were sent caused or were likely to cause substantial injury to the borrowers. Accordingly, this Court denies the FTC’s motion for summary judgment on Count III.

b. Allegedly unfair practice of bringing suit in tribal court.

Count VI of the Amended Complaint focuses on Defendants’ practice of suing consumers in Cheyenne River Sioux Tribal Court. The FTC in the Amended Complaint does not specifically identify which Defendants sued consumers in tribal court. However, the relevant portions of the FTC’s briefs and statement of material facts indicate that the FTC is focusing its allegations under Count VI of the Amended Complaint on the actions of PayDay Financial LLC alone. PayDay Financial LLC filed 1,123 lawsuits against consumers in the Cheyenne River Sioux Tribal Court. Doc. 99-2 at 42. As a result, PayDay Financial LLC collected a total of $18,461.24 from consumers, $3,952.50 of which was based on tribal court judgments in such lawsuits. Doc. 99-2 at 43. The FTC asserts that suing consumers in tribal court was an unfair practice under § 5 because the tribal court lacked subject matter jurisdiction over the consumers. Doc. 94 at 20-22.

This Court released a prior Opinion and Order Denying Defendants’ Motion for Partial Summary Judgment on Count VI. Payday Fin., LLC, 935 F.Supp.2d 926. That Opinion and Order addressed at length the question of whether the Defendants were entitled to summary judgment on the FTC’s claims that it was an unfair practice to bring suits in the Cheyenne River Sioux Tribal Court. In denying summary judgment, this Court addressed at length the thorny question of tribal court jurisdiction over the borrowers under the typical language of the lending Defendants’ loan agreements. That Opinion and Order concluded that there were two questions of fact prompting the Court to deny summary judgment: 1) The “record lacks information establishing that the Defendants are in fact ‘members’ of the tribe for purposes of the first Montana [v. United States, 450 U.S. 544, 565, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) ] exception;” and 2) “an ambiguity in the contract exists as to under what circumstances the non-Indian is consenting to tribal court jurisdiction in addition to binding arbitration.” Id. at 929.

Following that decision, the FTC and the Defendants filed pleadings making additional arguments. Docs. 120, 122, 123, 130. This Court is skeptical that South Dakota limited liability companies merely licensed with the Cheyenne River Sioux Tribe become tribal members and thereby can invoke tribal court jurisdiction over the consumers under the language of the consumer loan agreements. But see J.L. Ward Assocs., Inc. v. Great Plains Tribal Chairmen’s Health Bd., 842 F.Supp.2d 1163, 1171-77 (D.S.D.2012) (evaluating cir*819cumstances where entity created under state law by various tribes to represent the tribes possessed tribal sovereign immunity). This Court is going to consider testimony on whether the Defendants constitute a common enterprise and whether Webb is personally liable for the violations by the corporate Defendants. The parties can present testimony on whether any Defendant other than Webb somehow is a “member” of a tribe within the meaning of the first Montana exception. The record as it exists presently leaves some issue of fact in that regard.

c. Allegedly deceptive statements to consumers.

Count VII of the Amended Complaint concerns PayDay Financial LLC’s use of the following provision in certain loan agreements:

Should you default on this Agreement, you hereby consent and agree to the potential garnishment of wages by us or our assigns or service agents to ensure repayment of this Agreement, fees and costs associated in the collection of outstanding principal and interest. You also expressly agree to the sole application of the Indian Commerce Clause of the U.S. Constitution and the laws of the Cheyenne River Sioux Tribe regarding this Agreement and the potential garnishment of wages, and the sole jurisdiction of the Cheyenne River Sioux Tribal Court regarding any and all matters arising therefrom.

Doc. 96-1 at 11-12; 96-3 at 13.8 The FTC asserts that this provision “represented] to consumers that, in the event of nonpayment, Defendants will sue consumers in tribal court, that the tribal court can legitimately consider such suits, and that Defendants will obtain valid judgments and relief in that court.” Doc. 94 at 15. Such an assertion was deceptive, the FTC’s argument goes, because “the tribal court does not have subject matter jurisdiction over Defendants’ claims against nonmembers.” Doc. 94 at 15. Whether this argument is ultimately successful turns in large part on whether the Cheyenne River Sioux Tribal Court has jurisdiction over consumers under the language of the lending Defendants’ loan agreements. Some loan agreements of PayDay Financial LLC when read in full contain confusing terms appearing to specify binding arbitration as an exclusive remedy yet .tribal court jurisdiction as well. As previously noted, this inconsistency in terms in the PayDay Financial “lending contract leaves [borrowers lacking the requisite foreseeability that there will be tribal court jurisdiction — as opposed to arbitration on the [Cheyenne River Indian] Reservation....” Payday Fin., LLC, 935 F.Supp.2d at 943. Because there are questions of fact on the issue of tribal subject matter jurisdiction and how consumers would understand the confusing and inconsistent terms on tribal court jurisdiction, this Court denies the FTC’s motion for summary judgment on Count VII at this time.

E. Whether the FTC is entitled to the monetary relief sought as a matter of law.

Section 13(b) of the FTCA, codified at 15 U.S.C. § 53(b), grants courts both discretion to enjoin violations of the Act and equitable authority to dispense additional ancillary relief including awarding mone*820tary relief in the form of restitution or disgorgement. 15 U.S.C. § 53(b); F.T.C. v. Gem Merch. Corp., 87 F.3d 466, 469-70 (11th Cir.1996); F.T.C. v. Sec. Rare Coin & Bullion Corp., 931 F.2d 1312, 1314-15 (8th Cir.1991). Here, in addition to injunctive relief, the FTC on summary judgment requests disgorgement of $417,740 from certain Defendants for their alleged profits from garnishment practices, as well as a civil penalty of $3.8 million. Defendants contest any such award. Defendants cite authority that “where the FTC seeks injunctive relief, courts deem any monetary relief sought as incidental to injunctive relief.” Doc. 103 at 35 (quoting F.T.C. v. Freecom Commc’ns, Inc., 401 F.3d 1192, 1202, n. 6 (10th Cir.2005)). Defendants do not contest the authority of the Court to award monetary relief in the form of restitution or disgorgement, but dispute the appropriateness of the Court doing so under the circumstances.

The equitable remedy of disgorgement exists in part to prevent a wrongdoer from keeping the profits of an unlawful operation or practice. See S.E.C. v. JT Wallenbrock & Assocs., 440 F.3d 1109, 1113-14 (9th Cir.2006). However, disgorgement is not to penalize, but to deprive “wrongdoers of ill-gotten gains.” CFTC v. Hunt, 591 F.2d 1211, 1222 (7th Cir.1979). Accordingly, courts have distinguished between illegally and legally obtained profits when calculating the amount of disgorgement. See F.T.C. v. Verity Int’l Ltd., 443 F.3d 48, 68-70 (2d Cir.2006). To obtain disgorgement, the FTC must show: “(1) that the defendant profited from violations of the FTC Act; (2) that the profits are causally related to the violations; and (3) that the disgorgement figure reasonably approximates the amount of unjust enrichment.” F.T.C. v. Magui Publishers, Inc., Civ. No. 89-3818RSWL(GX), 1991 WL 90895, at *17 (C.D.Cal. Mar. 28,1991); see also Verity, 443 F.3d at 67 (explaining that the proper framework for calculating disgorgement requires the FTC to show that its calculations reasonably approximate the amount of the defendants’s unjust gains, after which the burden shifts to the defendants to show that those figures were inaccurate).

The FTC’s request for disgorgement of $417,740 stems from the amount of finance charges, interest, and fees collected by certain of the Defendants through garnishment. Doc. 99-2 at 48-49. The garnishment practices of the Defendants doing collections were violative of § 5 of the FTCA and stemmed in part from clauses violative of the Credit Practices Rule. The Defendants argue, however, that they were collecting moneys owed under the loan agreements by consumers through garnishment. That is, Defendants argue they were not receiving ill-gotten gains, but rather collecting what amounts were owed.

The district court in LoanPointe, 2011 WL 4348304 addressed a similar argument. There, the FTC sought disgorgement of money that the defendants had collected through use of an illegal garnishment packet. Id. at *11. The defendants argued that disgorgement was improper because they were merely collecting money that they were owed under loan agreements. Id. at *11-12. The district court rejected this argument, explaining that although the defendants may technically have been entitled to interest payments under the loan agreements, requiring the defendants to “disgorge the interest they received through garnishment fulfills one of the purposes of disgorgement, which is to make violations unprofitable.” Id. at *12. “If Defendants were subject to only an injunction,” the district court explained, “the resulting message would be that improper wage assignment clauses can be *821included in loan applications until discovered, at which point, the only consequence would be to stop violations of the law in the future.” Id. .

This Court agrees with the rationale in LoanPointe, and finds that disgorgement of the $417,740 Defendants PayDay Financial LLC and Financial Solutions LLC collected through their illegal garnishment practices is appropriate. Those two Defendants profited from the illegal garnishment in violation of § 5, the profits — which came in the form of astoundingly high interest rates and fees— were in fact collected through illegal garnishment in the amount of $417,740, and that figure reasonably approximates the amount of unjust enrichment. See Magui Publishers, Inc., 1991 WL 90895, at *17. Disgorgement of $417,740 from the amount illegally garnished allows the Defendants to retain the principal balance of the loans, but requires sacrifice of interest and fees. Indeed, the FTC does not seek, nor would this Court award, disgorgement of the loan principal balances that the Defendants collected through the illegal garnishment. Disgorgement applies to all ill-gotten gains; return of the principal that the Defendants lent to consumers' was not actually a “gain” to the Defendants. See LoanPointe, 2011 WL 4348304, at *12. Disgorgement of $417,740 is proper only as to the two Defendants — PayDay Financial LLC and Financial Solutions LLC — that engaged in the garnishment practices; whether there is a “common enterprise” extending to other Defendants remains an open issue.

The FTC also requests a $3.8 million civil penalty to be imposed on the Defendants as a matter of law. The FTC argues for the maximum penalty of $16,000 per day for a continuing violation of the Credit Practices Rule. Doc. 114 at 36. Understating the aggressiveness of such a request, the FTC’s brief states “the FTC is merely seeking $3,800,000 for 241 days of a continuing violation in which consumers could not revoke the wage assignment after 10 days of submitting an application.” Doc. 114 at 36. This Court declined to grant summary judgment on a portion of the claim of a Credit Practices Rule violation and, while civil monetary penalties may be forthcoming depending on how this case unfolds, it is premature on this record and on a motion for summary judgment to evaluate or assess any such civil monetary penalties — let alone $3.8 million. ' In assessing the need for a civil penalty, courts routinely consider: 1) the good or bad faith of the defendants; 2) the injury to the public; 3) the defendants’ ability to pay; 4) the benefits derived from the violations; and 5) the necessity of vindicating the authority of the FTC. U.S. v. Prochnow, No. 07-10273, 2007 WL 3082139, at *3 (11th Cir. Oct. 22, 2007) (per curiam); F.T.C. v. Hughes, 710 F.Supp. 1524, 1529 (N.D.Tex.1989). Some of these factors are ones that cannot be decided comfortably as a matter of law on this record. Accordingly, the Court will consider an amount of any civil penalty at trial.

III. Conclusion and Order.

At hearings, Defendants have advised this Court that discussions were close to achieving settlement of this case, to which the FTC has responded by representing that the parties were not close on settlement of the case. Perhaps this Opinion and Order will bridge some differences in settlement positions and perhaps it will not. Rather than entering an order including injunctive relief as a part of partial summary judgment, this Court will allow each party until October 23, 2013, to submit any proposed order for injunctive relief consistent with this Opinion and Order and to conclude whatever ongoing settlement discussions there might be.

For the reasons explained above, it is hereby

*822ORDERED that Plaintiffs Motion for Summary Judgment, Doc. 93, is granted with respect to Count I, a portion of Count IV, and Count V of the Amended Complaint. It is further

ORDERED that Plaintiffs Motion for Summary Judgment, Doc. 93, is otherwise denied based on the existence of what appear at this time to be genuine issues of material fact. It is further

ORDERED that PayDay Financial LLC and Financial Solutions LLC pay to the FTC $417,740.00 as disgorgement of certain profits. It is further

ORDERED that the terms of injunctive relief and civil penalty, if any, will be determined by this Court at a later time. It is finally

ORDERED that the parties have until October 23, 2013, to submit any proposed order consistent with this Opinion and Order and to contact the Court for the purposes of setting a telephonic hearing to discuss how most efficiently to proceed to trial on the remaining issues.

OPINION

CHÁVEZ, Justice.

{1} In January 2006, two former payday lenders, B&B Investment Group, Inc., and American Cash Loans, LLC (Defendants), began to market and originate high-cost signature loans of $50 to $300, primarily to less-educated and financially unsophisticated individuals, obscuring from them the details of the cost of such loans. The loans were for twelve months, payable biweekly, and carried annual percentage rates (APRs) ranging from 1,147.14 to 1,500 percent. The Attorney General’s Office (the State) sued Defendants, alleging that the signature loan products were procedurally and substantively unconscionable under the common law and that they violated the Unfair Practices Act (UPA), NMSA 1978, *317Sections 57-12-1 to -26 (1967, as amended through 2009).

{2} The district court found that Defendants’ marketing and loan origination procedures were unconscionable and enjoined certain of its practices in the future, but declined to find the high-cost loans substantively unconscionable, concluding that it is the Legislature’s responsibility to determine limits on interest rates. Both parties appealed. We affirm the district court’s finding of procedural unconscionability. However, we reverse the district court’s refusal to find that the loans were substantively unconscionable because under the UPA, courts have the responsibility to determine whether a contract results in a gross disparity between the value received by a person and the price paid. We conclude that the interest rates in this case are substantively unconscionable and violate the UPA.

I. BACKGROUND

{3} Defendants market, offer, and originate high-interest, small-principal loans that they call “signature loans,” from retail storefronts in Albuquerque, Farmington, and Hobbs, New Mexico. Signature loans are unsecured loans which require only the signature of the borrower, along with verification of employment, home address, identity, and references. Borrowers take out loans of $50 to $300 in principal, which are scheduled for repayment in biweekly installments over a year. Signature loans carry APRs between 1,147.14 and 1,500 percent.

{4} Defendants are subprime lenders from Illinois who opened several payday lending operations in New Mexico in the early 2000s because, according to company president James Bartlett, “there was no usury cap” here. Before 2006, Defendants’ loan portfolios were predominantly “payday loans” which, like signature loans, are small-principal, high-interest loans. See Nathalie Martin, 1000% Interest — Good While Supplies Last: A Study of Payday Loan Practices and Solutions, 52 Ariz. L. Rev. 563, 564 (2010). Payday loans differ from signature loans primarily in the length of time they take to mature: payday loan terms are between fourteen and thirty-five days, whereas Defendants’ signature loans are year-long. Prior to 2007, when legislation was passed to limit payday lending, payday loans could be rolled over indefinitely, which essentially turned them into medium- to long-term loans that had the effect of keeping the borrower in debt for extended periods of time, similar to the signature loans at issue here. See the 2007 amendments to the New Mexico Small Loan Act of 1955 (Small Loan Act), NMSA 1978, §§ 58-15-31 to -39 (1955, as amended through 2007); see also Martin, supra, at 585-88 (discussing the similarities between signature loans and payday loans).

{5} Defendants converted their loan products from payday to signature loans in Illinois in 2005, after the Illinois legislature enacted its Payday Loan Reform Act. 815 Ill. Comp. Stat. 122/1-1, 1-5 (2005). Defendants also converted their loan products from payday to signature loans in New Mexico just before the New Mexico Legislature implemented extensive payday loan reforms in 2007. See § 58-15-32. Signature loan products are not subject to the restrictions placed on payday loans by the 2007 amendments to the Small Loan Act because they do not meet the definition of payday loans. Compare § 58-15-2(E) (defining installment loan) with § 58-15-2(H) (defining payday loan). By 2008, Defendants no longer marketed payday loans at their stores. Defendants admitted their signature loans “definitely could be a substitute product” for payday loans.

*318{6} Defendants extend signature loans to the working poor; they lend exclusively to people who provide proof of steady employment but who, by definition, are either unbanked or underbanked. The Federal Deposit Insurance Corporation (FDIC) defines unbanked households as those without a checking or savings account, and underbanked households as those that have a checking or savings account but rely on alternative financial services. Federal Deposit Insurance Corporation, 2011 FDIC National Survey of Unbanked and Underbanked Households, Executive Summary at 3 n.2 (Sept. 2012), http://www.fdic.gov/householdsurvey/. The State’s expert testified, andDefendants admit, that signature loans are “alternative financial services.” All signature loan borrowers are at least underbanked, and those borrowers without a checking or savings account are unbanked. These borrowers are highly likely to live in poverty: in New Mexico, one-third of all unbanked households and almost one-quarter of all underbanked households earn less than $15,000 per year.1 Federal Deposit Insurance Corporation, supra, Detailed State and MSA Tables, Appendices H-I, Table H-68, Household Banking Status by Demographic Characteristics: New Mexico at 71. Borrowers’ testimony bears out the fact that Defendants target the working poor.

{7} One borrower, Oscar Wellito, testified that he took out a signature loan from Defendants after he went bankrupt. He was supporting school-aged children while trying to service debt obligations with two other small loan companies. He earned about $9 an hour at a Safeway grocery store, which was not enough money to make ends meet, yet too much money to qualify for public assistance. “That’s why,” he testified, “I had no choice of getting these loans, to feed my kids, to live from one paycheck to another paycheck.” He needed money for groceries, gas, laundry soap, and “whatever we need to survive from one payday to another payday.” Mr. Wellito borrowed $100 from Defendants. His loan carried a 1,147.14 APR and required repayment in twenty-six biweekly installments of $40.16 with a final payment of $55.34. Thus, the $100 loan carried a total finance charge of $999.71.

{8} Another borrower, Henrietta Charley, took out a loan from Defendants for $200 that carried the same 1,147.14 APR as Mr. Wellito’s loan. Ms. Charley, a medical assistant and mother of three, earned $10.71 per hour working thirty-two hours per week in the emergency department of the San Juan Regional Medical Center. She earned around $615 in take home pay every two weeks, while her monthly expenses, excluding food and gas, exceeded $1,000. Ms. Charley’s ex-husband would only pay child support “every now and then,” and when she did not receive that supplemental income, she would fall behind on her bills. She needed a loan to buy groceries and gas. Defendants gave her a $200 signature loan with a total finance charge of $2,160.04.

{9} After borrowers brought complaints to the Attorney General, the State sued Defendants under the UPA, which prohibits “[u]nfair or deceptive trade practices and unconscionable trade practices in the conduct of any trade or commerce.” Section 57-12-3. Unconscionable trade practices are defined in relevant part as an “extension of credit. . . that to a person’s detriment: (1) takes advantage of the lack of *319knowledge, ability, experience or capacity of a person to a grossly unfair degree; or (2) results in a gross disparity between the value received by a person and the price paid.” Section 57-12-2(E). The State identified numerous business practices that it argued were procedurally unconscionable, and alleged that the loan terms were substantively unconscionable. The State sought restitution, civil penalties, and injunctive relief. The State also sued Defendants for violating New Mexico’s common law of substantive and procedural unconscionability.

{10} The district court adjudicated liability in a four-day bench trial, and found that Defendants had not violated Section 57-12-2(E)(2), but that they had violated Section 57-12-2(E)(1).2 The district court correspondingly found that the loans were not substantively unconscionable, but they were procedurally unconscionable under common law. The evidence adduced at trial is discussed below.

{11} The State appealed, claiming the district court erred in three ways: first, by failing to correctly interpret and apply Section 57-12-2(E)(2), reading the substantive unconscionability prong in such a way that the section would become meaningless; second, by failing to apply the common law doctrine of substantive unconscionability to the loans; and third, by denying the State’s requested restitution. Defendants cross-appealed, claiming the district court erred in determining that the loans violated Section 57-12-2(E)(l), and in determining that the loans violated the common law of procedural unconscionability. The Court of Appeals certified the case to this Court pursuant to NMSA 1978, Section 34-5-14(C)(2) (1972). We accepted certification.

II. STANDARD OF REVIEW

{12} Because the litigation in this case involved a determination ofwhether a contract was unconscionable, we review de novo. “By both statute and case law, we review whether a contract is unconscionable as a matter of law.” Cordova v. World Fin. Corp. of N.M., 2009-NMSC-021, ¶ 11, 146 N.M. 256, 208 P.3d 901 (citing NMSA 1978, § 55-2-302 (1961) (“providing that courts, as a matter of law, may police against contracts or clauses found unconscionable”)); see also Fiser v. Dell Computer Corp., 2008-NMSC-046, ¶ 19, 144 N.M. 464, 188 P.3d 1215 (stating that unconscionability “is a matter of law and is reviewed de novo.”). The district court’s factual findings are reviewed for substantial evidence. See Landavazo v. Sanchez, 1990-NMSC-114, ¶ 7, 111 N.M. 137, 802 P.2d 1283 (“[The] court views the evidence in the light most favorable to support the findings of the trial court.”). “Substantial evidence is such relevant evidence that a reasonable mind would find adequate to support a conclusion.” Id.

III. DISCUSSION

A. There was substantial evidence to support the district court’s judgment that Defendants’ loans were procedurally unconscionable and violated Section 57-12-2(E)(l)

{13} Section 57-12-2(E)(l) defines an unconscionable trade practice as any extension of credit that “takes advantage of the lack of knowledge, ability, experience or capacity of a person to a grossly unfair degree” and is *320detrimental to the borrower. Defendants challenge the sufficiency of the evidence for the district court’s finding that they violated Section 57-12-2(E)(l). To support the district court’s ruling, there must be substantial evidence that the borrowers lacked knowledge, ability, experience, or capacity in credit consumption; that Defendants took advantage of borrowers’ deficits in those areas; and that these practices took advantage of borrowers to a grossly unfair degree to the borrowers’ detriment. Section 57-12-2(E). We conclude that substantial evidence supports the district court’s findings as to each of these elements.

1. Evidence of borrowers’ lack of financial sophistication

{14} There was substantial evidence that the borrowers lacked knowledge, ability, experience, or capacity in credit consumption. The district court heard from Defendants that a “[signature loan primarily is for someone that is an unbanked person [or] underbanked.” As discussed above, all signature loan borrowers are by definition underbanked because they are utilizing alternative financial services. Ms. Charley is an example of an underbanked borrower because although she had access to a bank account, she only used it .to receive child support payments. A subset of Defendants’ borrowers are unbanked, like Mr. Wellito, who testified he never had a bank account because he could not afford to open one. The district court heard evidence about demographic characteristics of unbanked and underbanked New Mexicans, as well as their behavioral and cognitive biases, which were borne out by borrower testimony. We will discuss each piece of demographic and cognitive evidence in turn.

{15} Demographically, unbanked and underbankedNew Mexicans have significantly less education than the general population, are disproportionately living in poverty, and are more likely to be people of color. See generally Federal Deposit Insurance Corporation, National Survey of Unbanked and Underbanked Households (Dec. 2009). Their education levels are lower: the State presented evidence that in over 25 percent of unbanked and underbanked households, no one holds a high school degree, and in only a handful of unbanked households — just over 9 percent — does anyone have any college education at all. Federal Deposit Insurance Corporation, supra, Appendix B, Detailed State Tables, Table B-33, Banking Status by Household Characteristics: New Mexico at 102. They are more likely to be poor: 27.9 percent of unbanlced households and 24.2 percent of underbanked households in New Mexico lived on less than $15,000 per year in 2009. Id. Over 50 percent of underbanked households live on less than $30,000 per year. Id. They are also more likely to belong to an ethnic minority: 41.6 percent of Hispanic households are unbanked or underbanked, and 58.3 percent of “other” households (defined as non-Hispanic, non-black, and non-white, which is a category that includes Native Americans) are unbanked or underbanked. Id.

{16} Behaviorally and cognitively, unbanked and underbanked New Mexicans exhibit heuristic biases that work to their detriment. The State’s expert, Professor Christopher Peterson,3 testified that these borrowers exhibit certain cognitive biases that lead them to make decisions that are contrary *321to their interests. They exhibit unrealistic optimism, or fundamental attribution error, meaning that they overestimate their ability to control future circumstances and underestimate their exposure to risk. Thus, these borrowers have unrealistic expectations about their ability to repay these loans. They also exhibit intemporal biases, meaning they tend to focus on short-term gains, while discounting future losses they might suffer. Thus, borrowers focus on the promise of quick cash, and fail to make more considered judgments about the long-term costs of the loan. They also are subject to “framing” and “anchoring” effects, meaning that the way the price of a loan is framed at the outset may distort the prospective borrower’s perception of the cost, and the borrower will retain that initial perception. If the cost initially is framed as being very low, such as $1.50 per day, a borrower will “anchor” his or her expectations on that claim and have difficulty reassessing the true costs once more information becomes available. Finally, borrowers are subject to information overload, meaning that when they are presented with a technically complex loan agreement, they cease trying to understand the terms at all because they realize they will not be able to understand all of the pricing features.

{17} These cognitive biases were confirmed in a New Mexico-specific study of borrower perceptions at the point of sale in the high-cost lending environment, which Professor Peterson relied on to formulate his opinion. See Martin, supra, 52 Ariz. L. Rev. at 596-613. In that study of 109 borrowers, Professor Martin found that 75 percent of borrowers could not identify the APR of their small-principal, high-interest loan at the point of sale, or mistakenly believed that the interest rate was between one and 100 percent. Id. at 600-01. Additionally, borrowers could not reliably distinguish whether their loans were payday or installment loans, suggesting that the labels — as far as borrowers were concerned — are a distinction without a difference. Id. at 586 n. 123.

{18} Moreover, these cognitive biases were consistent with borrower testimony. Mr. Wellito and Ms. Charley testified that they thought they would be able to pay off their loans early, which is consistent with the unrealistic optimism bias described by Professor Peterson. Evidence of intemporal bias was shown by Mr. Wellito’s testimony that he took out the loan because Defendants’ advertisements made it “look[] so easy,” like “the money’s there and . . . [y]ou just walk in and you just get it... [and] you pay it all off.” Ms. Charley also testified that she took out the signature loan because it looked like an “easy” way out ofher financial distress. The theory of framing and anchoring effects and information overload was consistent with statements from borrowers who testified that they focused on the biweekly payment amount and did not consider the long-term costs of the loan. Borrowers also testified that loan origination at Defendants’ stores took about 10 minutes and was a hurried “sign here, sign there” process, which is further evidence that the borrowers may have been subject to information overload at the time of loan origination.

{19} Beyond cognitive biases, borrowers’ simple lack of knowledge, experience, ability, or capacity in credit transactions was evident from their testimony. Mr. Wellito, who had never had a bank account in his life, could not accurately describe how interest is calculated, stating that interest is “when you borrow money . . . you pay a little bit more to have them lend you the money.” He did not know that interest is quoted in terms of a percentage, *322and did not understand that it is better for the buyer if the number is lower. Ms. Charley had not taken out a small loan before and did not understand that her loan would require sixteen interest-only payments. Another borrower, Rose Atcitty, understood only the amount she would have to pay and the date she would have to start repayment when she took out her signature loan; she was not told about the interest rate or the finance charge, and did not understand that it was a year-long loan. This testimony shows that these were not sophisticated borrowers, but borrowers who lacked knowledge of basic consumer finance concepts and had little experience in banking and credit markets.

2. Evidence of Defendants’ exploitation of borrowers’ disadvantage

{20} There was substantial evidence that Defendants took advantage of borrowers’ deficits. Defendants directed their employees to describe the loan cost in terms of a misleading daily rate. Employees were instructed to tell customers that interest rates are typically “between $1.00 and $1.50 per day, per one hundred you borrow.” Defendants admitted that this was a factually inaccurate rate. At $1 per day, the finance charge for one year would be $365, and at $1.50 per day, the finance charge would be $547.50, but Defendants knew that the actual finance charge for one year would be at least $1,000. Defendants would also advertise that they were selling loans at 50 percent off, when in fact the only thing that was 50 percent off was the interest on the first installment payment on the loan.

{21} Defendants aggressively pursued borrowers to get them to increase the principal of their loans. “Maximize Every Customer’s Principle [sic] Balance” and “maximize every opportunity that presents itself’ was the mandate. Defendants directed employees to take time every day to give every customer a “courtesy call[]” to “make them aware of the possibility of rewriting their loan if there is availability on their account.” Employees were also directed to “CALL[] ACTIVE FILES TO INCREASE PRINCIPAL” with the objective of “increasing the] principal amount borrowed to build store.” The script for the courtesy calls was as follows:

Your account balance as of today is $ _, and your credit available is $_____. Renewing your loan with us today Mr./Mrs.___would put an extra $___in your pocket which I’m sure would come in handy with back to school, last minute vacations or anything else that comes up towards the end of Summer. Would you like me to get things ready for you to come in today and take care of this?

At least one store employee described a practice of calling customers who were one payment away from paying off their loans to encourage them to take out another loan.

{22} Defendants also instructed their employees to withhold amortization schedules from customers. The store manual instructed, “PRINT OUT THE AMORTIZATION SCHEDULE FOR THE FILE, BUT NEVER GIVE ONE TO A CUSTOMER!” Mr. Bartlett claimed that this entire instruction was a “misprint” in the 2007 store manual, and explained that the reason he had included it again in the 2010 version is that it was an instruction he had “overlooked when revising” the manual. He stated that although “that is exactly what [the store manual] says,” Defendants actually train their employees to *323give out amortization schedules “to everybody.” Borrowers, however, testified that they had not received amortization schedules. The district court did not credit Mr. Bartlett’s testimony, finding instead that Defendants have a practice of withholding the schedules.

{23} Amortization schedules revealed the signature loans were interest-only loans for extended periods of time. For example, the amortization schedule in Ms. Charley’s file showed that she would have to make sixteen biweekly payments of $90.68 each before any of her payments would be allocated toward her principal. According to her amortization schedule, on the seventeenth biweekly payment, she would finally pay off the first $1.56 toward her principal. Thus, Ms. Charley would have to make timely payments totaling $1,541.56 over thirty-four weeks (seventeen biweekly payments) before her loan balance would fall below the principal she borrowed. Defendants did not explain this to Ms. Charley, nor did they give her a copy of the amortization schedule.

{24} All of these practices were mandated by Defendants’ own confidential employee manuals, demonstrating that they were systematic company policies, as opposed to isolated incidents. These practices were confirmed by the testimony of both store employees and borrowers.

3. Evidence of gross unfairness and detriment

{25} There was substantial evidence that Defendants’ practices took advantage of borrowers to a grossly unfair degree. We consider whether borrowers were taken advantage of to a grossly unfair degree by looking at practices in the aggregate, as well as the borrowers’ characteristics. Portales Nat’l Bank v. Ribble, 2003-NMCA-093, ¶ 15, 134 N.M. 238, 75 P.3d 838. In Ribble, the Court of Appeals considered a bank’s pattern of conduct and demographic factors of the borrowers in determining whether the bank had violated Section 57-12-2(E)(l) in foreclosing on an elderly couple’s ranch:

[T]he pattern of conduct by the Bank . . . when considered in the aggregate, constitutes unconscionable trade practices [under] Section 57-12-2(E). Though the individual acts may be legal, it is reasonable to infer that the Bank took advantage of the Ribbles to a “grossly unfair degree” because of (1) the Ribbles’ advancing age, (2) their clear inability to handle their accounts, and (3) their long-term dealings with the Bank that could have justified their belief that the Bank had sufficient collateral in their property.

Ribble, 2003-NMCA-093, ¶ 15. Similarly, the pattern of conduct by Defendants in this case shows they were leveraging the borrowers’ cognitive and behavioral weaknesses to Defendants ’ advantage, and that the borrowers were clearly among the most financially distressed people in New Mexico. This evidence supported a reasonable inference that Defendants were taking advantage of borrowers to a “grossly unfair degree.”

{26} Defendants argue that the State failed to prove detriment because it “offered no evidence as to whether the individual borrower thought the loan transaction worked to his or her detriment.” The UPA does not require a subjective, individualized showing of detriment. See § 57-12-4 (stating that the UPA *324is to be construed in line with Federal Trade Commission (FTC) interpretations and federal court decisions); see also Fed. Trade Comm'n v. Sec. Rare Coin & Bullion Corp., 931 F.2d 1312, 1316 (8th Cir. 1991) (rejecting individualized proof of detriment and stating “[i]t would be virtually impossible for the FTC to offer such proof, and to require it would thwart and frustrate the public purposes of FTC action. This is ... a government action brought to deter unfair and deceptive trade practices and obtain restitution on behalf of a large class .... It would be inconsistent with the statutory purpose for the court to require proof of subjective reliance by each individual consumer.”); Fed. Trade Comm'n v. Kitco of Nev., Inc., 612 F. Supp. 1282, 1293 (D. Minn. 1985) (“Requiring proof of subj ective reliance by each individual consumer would thwart effective prosecution of large consumer redress actions and frustrate the statutory goals of the [FTC Act].”). We may presume detriment from the evidence that Defendants’ corporate practices took unfair advantage of borrowers’ disadvantages to a gross degree. See Fed. Trade Comm’n v. Nat’l Bus. Consultants, Inc., 781 F. Supp. 1136, 1141 (E.D. La. 1991) (“[T]he FTC does not need to prove individual reliance on defendants’ material representations and omissions; rather, the proper standard to establish reliance in an FTC action, as here, is based on a pattern or practice of deceptive behavior.”). Thus, there was sufficient evidence of detriment to the borrowers, and substantial evidence supported the district court’s ruling that Defendants violated Section 57-12-2(E)(l).

{27} For the same reasons, there was also substantial evidence supporting the finding of procedural unconscionability as understood in common law. Procedural unconscionability may be found where there was inequality in the contract formation. Cordova, 2009-NMSC-021, ¶ 23. Analyzing procedural unconscionability requires the court to look beyond the four corners of the contract and examine factors “including the relative bargaining strength, sophistication of the parties, and the extent to which either party felt free to accept or decline terms demanded by the other.” Id. As discussed at length above, the relative bargaining strength and sophistication of the parties is unequal. Moreover, borrowers are presented with Hobson’s choice: either accept the quadruple-digit interest rates, or walk away from the loan. The substantive terms are preprinted on a standard form, which is entirely nonnegotiable. The interest rates are set by drop-down menus in a computer program that precludes any modification of the offered rate. Employees are forbidden from manually overriding the computer to make fee adjustments without written permission from the companies’ owners: manual overrides “will be considered in violation of company policy and could result with . . . criminal charges brought against the employee and or termination.” Because these contracts are prepared entirely by Defendants, who have superior bargaining power, and are offered to the weaker party on a take-it-or-leave-it basis, Defendants’ loans are contracts of adhesion. See Fiser, 2008-NMSC-046, ¶ 22 (discussing the factors that create an adhesive contract). “Adhesion contracts generally warrant heightened judicial scrutiny because the drafting party is in a superior bargaining position,”Rivera v. Am. Gen. Fin. Servs., Inc., 201 1-NMSC-033, ¶ 44, 150 N.M. 398, 259 P.3d 803, and although they will not be found unconscionable in every case, “an adhesion contract is procedurally unconscionable and unenforceable when the terms are patently unfair to the weaker party.” Id. (internal quotation marks and citation omitted). Under these circumstances, there is substantial *325evidence that Defendants’ loans are procedurally unconscionable under common law.

B. The district court’s permanent injunction is an appropriate remedy

{28} The UPA grants the State the right to seek restitution, civil penalties, and injunctive relieffor unfair trade practices. Section 57-12-8(B) (empowering the Attorney General to “petition the district court for temporary or permanent injunctive relief and restitution”); § 57-12-11 (allowing the Attorney General to recover a civil penalty of up to $5,000 per willful violation). The district court granted the State a permanent injunction. “An injunction is an equitable remedy.” Cafeteria Operators, L.P. v. Coronado-Santa Fe Assocs., L.P., 1998-NMCA-005, ¶ 19, 124 N.M. 440, 952 P.2d 435. “The application of equitable doctrines and the granting of equitable relief rests in the sound discretion of the district court.” Moody v. Stribling, 1999-NMCA-094, ¶ 30, 127 N.M. 630, 985 P.2d 1210. The grant or denial of equitable remedies is reviewed for abuse of discretion. Nearburg v. Yates Petroleum Corp., 1997-NMCA-069, ¶ 9, 123 N.M. 526, 943 P.2d 560. “Such discretion is not a mental discretion to be exercised as one pleases, but is a legal discretion to be exercised in conformity with the law.” Cont’l Potash, Inc. v. Freeport-McMoran, Inc., 1993-NMSC-039, ¶ 26, 115 N.M. 690, 858 P.2d 66, holding limited on other grounds by Davis v. Devon Energy Corp., 2009-NMSC-048, ¶¶ 34-35, 147 N.M. 157, 218 P.3d 75. “An abuse of discretion will be found when the trial court’s decision is clearly untenable or contrary to logic and reason.” Id. (internal quotation marks and citation omitted).

{29} The district court permanently prohibited Defendants from (1) targeting borrowers to try to increase the amount of their principal debt obligation until the borrower’s file had become inactive for at least sixty days; (2) quoting the cost of signature loans “in terms of a daily or other nominal amount... or in any other amount than that which is mandated by the federal Truth in Lending Act,” in advertising materials or during loan origination; (3) engaging in any practice that focuses the borrower’s attention on the loan’s installment payment obligation “without also clearly, conspicuously, and fully disclosing and explaining the cost of the loan if repaid over the course of the full repayment term”; and (4) representing that the loans will be in any way “easy” to repay. The district court also ordered Defendants to (1) provide all borrowers with a copy of the amortization schedule; (2) provide information regarding a substantive legal defense and contact information for the Attorney General’s Office when communicating with a borrower in connection with debt collection; and (3) revise employee manuals to reflect these changes.

{30} Because there was substantial evidence supporting the district court’s findings that Defendants’ lending practices were procedurally unconscionable, the district court had the authority to grant this injunctive relief pursuant to Section 57-12-8(B). The injunction attempts to remedy Defendants’ procedurally unconscionable practices and is narrowly tailored to address each practice. We see nothing improper about the injunction.

C. The loans were substantively unconscionable under common law and the UPA

{31} . The district court concluded that it was precluded from ruling on substantive *326unconscionability absent an express statutory prohibition of the interest rates at issue, and without considering the evidence on each individual loan issued by Defendants. We disagree with both conclusions.

{32} “Unconscionability is an equitable doctrine, rooted in public policy, which allows courts to render unenforceable an agreement that is unreasonably favorable to one party while precluding a meaningful choice of the other party.” Cordova, 2009-NMSC-021, ¶ 21. Substantive unconscionability is found where the contract terms themselves are “illegal, contrary to public policy, or grossly unfair.” Id. ¶ 22 (quoting Fiser, 2008-NMSC-046, ¶ 20). In determining whether a contract term is substantively unconscionable, courts examine “whether the contract terms are commercially reasonable and fair, the purpose and effect of the terms, the one-sidedness of the terms, and other similar public policy concerns.” Id. “Contract provisions that unreasonably benefit one party over another are substantively unconscionable.” Id. ¶ 25. Thus, substantive unconscionability can be found by examining the contract terms on their face — a simple task when, as here, all substantive contract terms were nonnegotiable, and embedded in identical boilerplate language. See id. ¶ 22. The test for substantive unconscionability as outlined in Cordova simply asks whether the contract term “is grossly unreasonable and against our public policy under the circumstances.” Id. ¶ 31. We hold it is grossly unreasonable and against public policy to offer installment loans at 1,147.14 to 1,500 percent interest for the following reasons.

{33} Courts are not prohibited from deciding whether a contract is grossly unreasonable or against public policy simply because there is not a statute that specifically limits contract terms. In a landmark case on substantive unconscionability, Williams v. Walker-Thomas Furniture Co., the District of Columbia Circuit Court reversed the District of Columbia Court of Appeals on precisely this issue. 350 F.2d 445, 448 (D.C. Cir. 1965). In that case, the court of appeals had determined that, although it “[could not] condemn too strongly appellee’s conduct” in selling a woman a $514 stereo set “with full knowledge that appellant had to feed, clothe and support both herself and seven children” on a $218 monthly income, it would not find the contract unconscionable because it found no caselaw or legislation that would support a declaration that the contract at issue was contrary to public policy. Id. The circuit court reversed, stating “[w]e do not agree that the court lacked the power to refuse enforcement [of] contracts found to be unconscionable.” Id. Even in the absence of binding precedent or statutory power, the circuit court held that “the notion that an unconscionable bargain should not be given full enforcement is by no means novel.” Id. We agree with the reasoning of Williams. Ruling on substantive unconscionability is an inherent equitable power of the court, and does not require prior legislative action. “Equity supplements the common law; its rules do not contradict the common law; rather, they aim at securing substantial justice when the strict rule of common law might work hardship.” Larry A. DiMatteo, The History of Natural Law Theory: Transforming Embedded Influences into a Fuller Understanding of Modern Contract Law, 60 U. Pitt. L. Rev. 839, 890 (1999) (internal quotation marks and citation omitted). Although there is not a specific statute specifying a limit on acceptable interest rates for the types of signature loans in this case, in addition to our caselaw addressing unconscionability, the Legislature has empowered courts to adjudicate cases *327involving claims of unconscionable trade practices under the UPA.

{34} In determining the public policy behind the UPA, we must first examine the statute’s plain language. The statute expressly prohibits extensions of credit that take advantage of borrowers’ weaknesses “to a grossly unfair degree” or that result in “a gross disparity” between the value and the price. Section 57-12-2(E). The UPA is a law that prohibits the economic exploitation of others. The language of the UPA evinces a legislative recognition that, under certain conditions, the market is truly not free, leaving it for courts to determine when the market is not free, and empowering courts to stop and preclude those who prey on the desperation of others from being rewarded with windfall profits.

{35} The district court determined that the signature loans do not result in a gross disparity between the value and the price because borrowers could pay off the loans early, and they “obtained a value beyond the face value, or even the time value, of the money borrowed — the ability to buy groceries for [their] children now, the ability to buy gas to get to a new job, [and] the ability to pay off a cell phone.” In adopting this view, the district court was following a subjective theory of value, under which the more desperate a person is for money, the more “value” that person receives from a loan. Thus, hypothetically a high-cost loan could violate the statute if a person borrows money for betting on blackjack, because the “value” that person receives would be low compared to the price of the loan, whereas the same high-cost loan sold to a single mother who needs to feed her children could not violate the statute, because the “value” that mother receives would be high compared to the price of the loan. Under that erroneous reading of the statute, consumer exploitation would be legal in direct proportion to the extent of the consumer’s desperation: the poorer the person, the more acceptable the exploitation. Such a result cannot be consonant with the consumer-protective legislative intent behind the UPA. It is not the use to which the loan is put that makes its value low or high, but the terms of the loan itself.

{36} Under an objective, not a subjective, reading of the UPA, Defendants’ signature loans are low-value products. First, these loans are extremely expensive. The least expensive signature loan carries a 1,147.14 APR, meaning a loan of $100 carries a finance charge of $999.71. Second, Defendants do not report positive repayments to credit reporting agencies. Thus, borrowers who succeed in bearing the exorbitant costs associated with these loans and who make good-faith efforts to repay them can never improve their credit scores. Borrowers who fail to pay, however, can have their credit scores negatively impacted. They can be sued and have their wages garnished. They will also be liable for Defendants’ costs of collecting on the debt, including attorney fees. Third, there is a $25 bounced check or automatic clearinghouse fee that can be added to the cost of the loan each time a check is returned for insufficient funds, and there is a 5 percent penalty fee for each late payment, each of which potentially increase the cost of these loans. Fourth, there is an acceleration-upon-default clause which provides that if a borrower falls behind on his or her payments over the year, then the full amount of the debt — principal and interest-comes due immediately. All of these loan features, in combination with the quadruple-digit interest rates, make it a low-value product regardless of how the borrower uses the principal. Defendants point out that people who take out mortgages will, like *328borrowers here, pay several times theprincipal in interest payments over the life of their loan. However, unlike a mortgage loan, borrowers are not gaining an asset when taking out a signature loan; rather, they are taking on liability. The value the borrower receives from a signature loan consists of a small amount of principal — never more than $300 — and an enormous amount of risk. Therefore, these loans are objectively low-value products and are grossly disproportionate to their price.

{37} Defendants further contend it is not the public policy of this state to prohibit usurious interest rates because the Legislature removed the interest rate cap in 1981. In this argument lies the implicit assertion that by removing the interest rate cap, the Legislature was stating that there is no interest rate that would violate public policy. Indeed, Defendants’ expert testified that interest rates of 11,000 percent or even 11,000,000 percent would be acceptable under our statutory scheme.4 If we were to accept Defendants’ argument, we would have to hold that the doctrine of unconscionability as it exists at common law and in the UPA does not apply to the extension of credit. We decline to do so because to do so would thwart New Mexico public policy as expressed in the UPA and other legislation.

{38} Public policy is not set by a single statute, or the repeal of a single statute. Instead, we look to “other statutes in pari materia under the presumption that the legislature acted with full knowledge of relevant statutory and common law . . . [and] did not intend to enact a law inconsistent with existing law.” State ex rel. Quintana v. Schnedar, 1993-NMSC-033, ¶ 4, 115 N.M. 573, 855 P.2d 562. We also look to the common law and to equity in determining public policy.

{39} Other relevant statutes include the Small Loan Act, Sections 58-15-31 to -39, which regulates the small loan industry; the unconscionability clause of the Uniform Commercial Code (UCC), Section 55-2-302; and the Money, Interest and Usury Act (Money Act), NMSA 1978, Sections 56-8-1 to -21 (1851, as amended through 2004), which sets a default interest rate of 15 percent for contracts where no interest rate is stated. Section 56-8-3. Because these statutes were enacted prior to the UPA, we can infer that the Legislature enacted the UPA with full knowledge of and in harmony with the public policy expressed by those statutes. See Schnedar, 1993-NMSC-033, ¶ 4 (holding that similar statutes “should be harmonized and construed together when possible, in a way that facilitates their operation and the achievement of their goals.” (internal citation omitted)).

{40} The Legislature enacted the Small Loan Act in 1955 to, among other factors, “insure more rigid public regulation and supervision of those engaging in the business of making small loans, and ... to facilitate the elimination of abuse of borrowers.” Section 58-15-l(D). The Legislature was concerned with the exploitation of borrowers, declaring “experience has proven . . . that without regulations, borrowers of small sums are often exploited by charges generally exorbitant in relation to those necessary to conduct a small *329loan business.” Section 58-15-l(C). This statutory language about exploitation and abuse evinces a consumer-protective public policy goal. At the time the Small Loan Act was enacted, New Mexico had an interest rate cap of 12 percent for unsecitred debts such as small installment loans, which Defendants now offer at between 1,147.14 and 1,500 percent interest. NMSA 1978, § 56-8-11 (1957), repealed by 1981 N.M. Laws, ch. 263, § 4 (July 1, 1981).

{41} The UCC also addresses substantive unconscionability. The New Mexico Legislature adopted the UCC’s unconscionability doctrine in 1961, which codifies the courts’ broad remedial power to refuse to enforce an unconscionable contract, strike the offending clause, or limit the application of the offending clause to avoid an unconscionable result. Section 55-2-302. The official comment to Section 55-2-302 directly discusses legislative intent: “This section is intended to make it possible for the courts to police explicitly against the contracts or clauses which they find to be unconscionable.” Id. cmt. 1. It goes on to state:

This section is intended to allow the court to pass directly on the unconscionability of the contract or particular clause therein and to make a conclusion of law as to its unconscionability. The basic test is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract. . . . The principle is one of the prevention of oppression and unfair surprise.

Id. (emphasis added). Although Section 55-2-302 pertains to the sale of goods, it was enacted prior to the UPA sections dealing with unconscionability.5 Therefore, we can infer that when it enacted the unconscionability clause of the UPA, the Legislature intended to allow the courts the same flexibility in determining whether a contract extending credit is unconscionable.

{42} The Money Act also evinces a legislative intent to establish a consumer-protective public policy. Although the Legislature abolished the interest rate cap in 1981, Defendants’ argument that in so doing the Legislature intended to permit any interest rate is without merit. The Money Act sets the default interest rate at 15 percent for contracts that do not specify an interest rate. See § 56-8-3 (“The rate of interest, in the absence of a written contract fixing a different rate, shall be not more than fifteen percent . . . ,”). Thus, when the Legislature repealed the absolute cap of 12 percent interest for unsecured debts but left the default rate in place, it contemplated that a reasonable interest rate would be 15 percent. The Money Act sets the default interest rate for court judgments at 8.75 percent, unless the judgment is based on tortious conduct or bad faith, for which the default interest rate is 15 percent. Section 56-8-4(A)(2). Fifteen percent interest was the high end of the Legislature’s contemplation. Additionally, the Money Act still prohibits excessive charges. Section 56-8-9(A) (“[N]o person, corporation or association, directly or indirectly, shall take, reserve, receive or *330charge any interest... or other advantage for the loan of money or credit. . . except at the rates permitted in Sections 56-8-1 through 56-98-21 NMSA 1978.”). Lenders who violate the Money Act are required to disgorge all profits from the usury, not offset by their operating costs. See § 56-8-13 (imposing a penalty of forfeiture of the entire amount of interest for “[t]he taking, receiving, reserving or charging of a rate of interest greater than allowed by this act”).

{43} In 2007, the Legislature amended the Small Loan Act to try to address the payday loan crisis in New Mexico. See §§ 58-15-31 to -39; see also Martin, supra, 52 Ariz. L. Rev. at 577-87 (discussing the legislative history of payday loan regulation in New Mexico). The amendments cap the effective interest rate on payday loans at about 400 percent by limiting fees and interest on payday loans to $15.50 per $100 borrowed, plus an additional $0.50 per loan for fees charged by the consumer-information database pro vider. S ection 5 8 -15 - 33(B), (C). Payday lenders are required to take into account the borrower’s financial position, and they cannot extend loans exceeding 25 percent of the borrower’s gross monthly income. Section 58-15-32(A). However, the effective fee cap and other consumer protections built into the Small Loan Act only apply to payday loans, defined as loans with a duration of fourteen to thirty-five days, for which the consumer receives the loan principal and in exchange gives the lender a personal check or debit authorization for the amount of the loan plus interest and fees. Section 58-15-2(H).

{44} Defendants could not lawfully charge 1,147.14 APR on a year-long loan under the payday loan provisions of the Small Loan Act. Defendants were payday lenders until 2006, the year before the New Mexico Legislature enacted these statutory limitations on payday lending. Defendants admit that they substituted signature loans for payday loans in Illinois when the Illinois legislature began to regulate payday lending. In addition, Defendants admit that their signature loans could be considered substitute products for payday loans in New Mexico. The reasonable inference is that Defendants’ signature loan products were specifically designed to make an end run around the consumer protections of the Small Loan Act, which the Legislature tried to prevent by stating that “licensee[s] shall not . . . use a device or agreement that would have the effect of charging or collecting more fees, charges or interest than that allowed by law by entering into a different type of transaction with the consumer that has that effect.” Section 58-15-34(D). Their success in evading application of the Small Loan Act does not immunize Defendants from other laws that prohibit unconscionable loan practices.

{45} The Legislature did not repeal all statutes protecting consumers from usurious practices: far from it, the Legislature empowered the Attorney General and private citizens to fight unconscionable practices through the UPA; it ratified the court’s inherent equitable power to invalidate a contract on unconscionability grounds under the UCC; it maintained a prohibition on excessive charges and set a reasonable default interest rate of 15 percent under the Money Act; and it set a de facto interest rate cap on substantively identical types of loans with the 2007 amendments to the Small Loan Act. Contrary to Defendants’ contention that the repeal of the interest rate cap demonstrates a public policy in favor of unlimited interest rates, the statutes when viewed as a whole demonstrate a public policy that is consumer-protective and anti-usurious as it always has *331been. A contrary public policy that permitted excessive charges, usurious interest rates, or exploitation of naive borrowers would be inequitable, particularly inNew Mexico where a greater percentage of people are struggling in poverty, and where more households are unbanked and underbanked than almost anywhere in the nation.6 Professor Peterson testified that “Defendants’ signature loan product is among the most expensive loan products offered in the recorded history of human civilization.” For comparison, interest rates that were considered high in the mid-twentieth century — rates used for high-risk borrowers on unsecured loans — were between 18 and 42 percent. Mafia loan sharks in New York City at the height of mafia power charged 250 percent interest. It is contrary to our public policy, and therefore unconscionable as a matter of law, for these historically anomalous interest rates to be charged in our state. We next address the appropriate remedy or remedies for the substantively unconscionable loans.

D. Restitution is the appropriate remedy for the procedural and substantive unconscionability of the signature loans in this case

{46} During the remedies phase of trial, the State requested that the district court invalidate all of the loans as the fruit of unconscionable lending practices and return the parties to their precontract status. Thus, the State sought restitution in the form of a full refund for borrowers of all money paid in excess of the principal on their loans. The district court denied, restitution by any measure, reasoning that: (1) complete avoidance of the loans was improper because it would result in borrowers paying no interest; (2) the State’s proposed remedy ignored the subjective value borrowers received, and would be a windfall to borrowers; (3) any refunds to borrowers would have to be offset by the subjective value they received; and (4) full refund restitution would be inequitable because it would put Defendants out of business. The final question is whether the district court abused its discretion in failing to grant restitution.

{47} An abuse of discretion occurs “when the trial court’s decision is clearly untenable or contrary to logic and reason.” Cont’l Potash, 1993-NMSC-039, ¶ 26 (internal quotation marks and citation omitted). In this case, the district court was correct in determining that Defendants violated Section 57-12-2(E)(1), and the loans were procedurally unconscionable. On that basis alone, the district court could have voided the contracts entirely. Loans need not be both procedurally and substantively unconscionable to be invalidated by a court. Cordova, 2009-NMSC-021, ¶ 24 (“[T]here is no absolute requirement in our law that both [substantive and procedural unconscionability] must be *332present to the same degree or that they both be present at all” in order to invalidate a contract.). Thus, where, as in this case, there is overwhelming evidence that the loans were procedurally unconscionable, no evidence of substantive unconscionability is needed in order to invalidate the contract. However, in this case, we hold that the interest rate terms were substantively unconscionable. Given the fact that these loans were both substantively and procedurally unconscionable, it would not have been an abuse of discretion to invalidate the entirety of the contracts. See, e.g., Rivera, 2011-NMSC-033, ¶ 56 (invalidating the entire arbitration scheme on substantive unconscionability grounds); Cordova, 2009-NMSC-021, ¶ 40 (same).

{48} Moreover, “[i]n the UPA, the Legislature has provided for damages and other remedial relief for persons damaged by unfair, deceptive, and unconscionable trade practices. Since the UPA constitutes remedial legislation, we interpret the provisions of this Act liberally to facilitate and accomplish its purposes and intent.” Quynh Truong v. Allstate Ins. Co., 2010-NMSC-009, ¶ 30, 147 N.M. 583, 227 P.3d 73 (internal quotation marks and citations omitted). It is the task of the courts to “ensure that the Unfair Practices Act lends the protection of its broad application to innocent consumers.” Ashlock v. Sunwest Bank of Roswell, N.A., 1988-NMSC-026, ¶ 7, 107 N.M. 100, 753 P.2d 346, overruled on other grounds by Gonzales v. Surgidev Corp., 1995-NMSC-036, ¶ 16, 120 N.M. 133, 899 P.2d 576. In order to facilitate the consumer-protective legislative purpose of the UPA, there was ample reason to grant restitution to borrowers for Defendants’ unconscionable trade practices. It would not further the purpose of the UPA under these circumstances to allow Defendants to retain the full profits of their unconscionable trade practices. Thus, the district court abused its discretion in failing to grant any form of restitution. Nevertheless, we agree with the district court that it would be inequitable to allow borrowers to pay no interest at all.

{49} When a contract term is unconscionable, like the 1,147.14 to 1,500 percent interest rates in this case, the court “may refuse to enforce the contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result.” Padilla v. State Farm Mut. Auto. Ins. Co., 2003-NMSC-011, ¶ 15, 133 N.M. 661, 68 P.3d 901 (internal quotation marks and citations omitted). We decline to grant a windfall to all borrowers by allowing them to completely avoid the contracts. We hold instead that the quadruple-digit interest rate, a substantively unconscionable term, shall be stricken from the contracts of all borrowers. We then enforce the remainder of the contract without the unconscionable term. Id.

{50} The district court avoided calculating restitution, calling the task “arbitrary and unjustified” without precise figures to draw upon. However, the New Mexico statutes provide a default interest rate that allows “private lenders to charge interest on money debts at the legal rate where the contract is silent on the issue.” Martinez v. Albuquerque Collection Servs., Inc., 867 F. Supp. 1495, 1508 (D.N.M. 1994) (citing 47 C J.S. Interest & Usury § 11 (2014) “(promise to pay interest at the legal rate implied at law)”). Fifteen percent is the maximum allowable default interest rate. Section 56-8-3(A) (“The rate of interest, in the absence of a written contract fixing a different rate, shall be not more than fifteen percent annually ... on money due by contract.”); Sunwest Bank of Albuquerque, *333N.A. v. Colucci, 1994-NMSC-027, ¶ 24, 117 N.M. 373, 872 P.2d 346 (holding that Section 56-8-3 “fixes the maximum rate” that can be awarded by the district court). The default rate under Section 56-8-3 is calculated as simple interest. See Consol. Oil & Gas, Inc., v. S. Union Co., 1987-NMSC-055, ¶ 42, 106 N.M. 719, 749 P.2d 1098 (holding that Section 56-8-3 must be calculated as simple interest); c.f. Peters Corp. v. N.M. Banquest Investors Corp., 2008-NMSC-039, ¶¶ 51-52, 144 N.M. 434, 188 P.3d 1185 (distinguishing Section 56-8-3 from another statutory section whose express language allows for compound interest). Because the unconscionable interest rates in Defendants’ loans are invalid terms, these contracts are silent with respect to rates. We apply the statutory default interest rate of 15 percent simple annual interest to these loans.

{51} Defendants must refund all money collected by Defendants on their signature loans in excess of 15 percent of the loan principal as restitution for their unconscionable trade practices. We recognize that the district court could have fashioned a remedy whereby the borrowers would pay less for these loans by either setting a default interest rate lower than the statutory maximum of 15 percent, or by imposing an amortization schedule on the loans under which the total finance charge on the 15 percent simple interest loans would amount to less than 15 percent of the whole principal. We decline to do so here for the sake of equity and to prevent delay. Instead, Defendants will keep the maximum allowable interest of 15 percent under Section 56-8-3 and refund the remainder of the monies that the borrowers paid on their loans that is over 15 percent of the principal. For example, Oscar Wellito’s $100 loan with 1,147.14 APR is now rewritten as a $100 loan with 15 APR. With simple interest, he therefore owes $115 on the contract. He paid Defendants a total of $160.64. Defendants must refund $45.64 to Mr. Wellito, which is the difference between the monies he paid on their unconscionable contract, $160.64, and the monies he owes under the reformed contract, $115. Because these contracts are unconscionable, Defendants must also refund any penalties or fees they collected from borrowers that were associated with missed, late, or partial payments.

IV. CONCLUSION

{52} We hold that loans bearing interest rates of 1,147.14 to 1,500 percent contravene the public policy of the State of New Mexico, and the interest rate term in Defendants’ signature loans is substantively unconscionable and invalid. We therefore reverse the district court’s ruling on substantive unconscionability. We affirm the district court’s ruling thatDefendants engaged in procedurally unconscionable trade practices, and uphold the permanent injunction granted against Defendants. Accordingly, we affirm in part, reverse in part, and remand to the district court for a determination of damages in accordance with this opinion.

{53} IT IS SO ORDERED.

EDWARD L. CHÁVEZ, Justice

WE CONCUR:

BARBARA J. VIGIL, Chief Justice

PETRA JIMENEZ MAES, Senior Justice

RICHARD C. BOSSON, Justice

*334CHARLES W. DANIELS, Justice

Re: Dkt. Nos. 159, 166, 175

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT

MARIA-ELENA JAMES, United States Magistrate Judge

INTRODUCTION

Pending before the Court are the Motions for Summary Judgment filed by Defendant CashCall, Inc. regarding Plaintiffs Eduardo de la Torre and Lori Kempley’s1 (“Plaintiffs”) Conditioning Claim (“Def. Condit. Mot.,” Dkt. No. 159) and Uncon-scionability Claim (“Unc. Mot.,” Dkt. No 166). Also pending is Plaintiffs’ Cross-Motion for Partial Summary Judgment on the Conditioning Claim and California Business and Professions Code section 17200 (“UCL”) Unfair Competition Claim (“Pl. Condit. Mot.,” Dkt. No. 175). The Court held oral argument on these matters on April 3, 2014. Having considered the parties’ briefing and oral arguments, relevant legal authority, and the record in this case, the Court: (1) DENIES CashCall’s Motion on the Conditioning Claim; (2) DENIES CashCall’s Motion on the Uncon-scionability Claim; and (3) GRANTS Plaintiffs’ Cross-Motion on the EFTA violation for the reasons set forth below.

FACTUAL BACKGROUND

A. Introduction

CashCall makes high interest unsecured personal loans to qualifying consumers. Holland Deck, ¶ 2, Dkt. No. 173. On July 1, 2008, Plaintiffs initiated this class action lawsuit against CashCall, in which they contend that CashCall’s loans violate consumer protection laws and are unconscionable. Dkt. No. 1. The Court granted class certification on November 15, 2011. Class Cert. Order, Dkt. No. 100. CashCall now moves for partial summary judgment as to the First Cause of Action for violation of the Electronic Fund Transfer Act (“EFTA”), 15 U.S.C. § 1693 et seq., and Federal Reserve Regulation E, 12 C.F.R. § 205 et seq. (the Conditioning Claim); the Fifth Cause of Action for Violation of the UCL based on unlawful violation of the EFTA; and the issue of actual damages. Plaintiffs move for summary judgment as to the Conditioning Claim and the UCL Claim. CashCall also moves for summary judgment as to the Fourth Cause of Action for violation of the UCL based on unconscionable loan terms pursuant to California Financial Code section 22302.

B. The Conditioning Claim

Plaintiffs’ Conditioning Claim is asserted on behalf of a “Conditioning Class” consisting of “all individuals who, while residing in California, borrowed money from CashCall, Inc. for personal, family or household use on or after March 13, 2006 through July 10, 2011 and were charged an NSF fee2.” Class. Certification Order at 38. The class includes 96,583 borrowers, *1081who were charged NSF fees that Plaintiffs now seek to recover as damages under the EFTA. Pl. Opp’n to Condit. Mot. at 1, Dkt. No. 188. Plaintiffs also seek to recover statutory damages under the EFTA, which are capped at the lesser of $500,000 or 1 % of CashCall’s net worth. Id..

The promissory notes used by CashCall during the class period contained an Electronic Funds Authorization and Disclosure (“EFT Authorization”) that stated in relevant part:

ELECTRONIC FUNDS AUTHORIZATION AND DISCLOSURE I hereby authorize CashCall to withdraw my scheduled loan payment from my checking account on or about the FIRST day of each month. I further authorize CashCall to adjust this withdrawal to reflect any additional fees, charges, or credits to my account. I understand that CashCall will notify me 10 days prior to any given transfer if the amount to be transferred varies by more than $50 from my regular payment amount. I understand that this authorization and the services undertaken by CashCall in no way alters or lessens my obligations under the loan agreement. I understand that I can cancel this authorization at any time (including pri- or to my first payment due date) by sending written notification to Cash-Call. Cancellations must be received at least seven days prior to the applicable due date.

Def.’s Sep. Stmt, in Supp. of Condit. Mot. (“Def. Condit. Stmt.”) No. 1, Dkt. No. 160 (emphasis added); Stark Decl. in Support of Pls.’ Mot. (“Stark Decl.”), Ex. 3, P0352; Ex. 4, CC000445, Dkt. No. 177.

In order to obtain a loan, all Conditioning Class Members were required to check a box indicating that they authorized Cash-Call to withdraw their scheduled loan payments from their checking accounts on or about the first day of each month. Pls.’ Sep. Stmt, in Supp. of Cross-Mot. (“Pl. Condit. Stmt.”) No. 5, Dkt. No. 175-1. If a borrower did not check the box, the borrower could not obtain a loan from CashCall. Id., No. 6. During the class period, CashCall would not and did not fund any loans to Class Members who did not check the check box on their CashCall promissory notes indicating that they authorized CashCall to withdraw their scheduled loan payments from their checking accounts on or about the first day of each month. Id., No. 7. However, once funded, Borrowers had the right to cancel the EFT Authorization at any time, including prior to the first payment, and to make any or all of their loan payments by other means. Def.’s Resp. to Pl. Condit. Sep. Stmt., No. 9, Dkt. No. 207. Of the 96,583 members of the Conditioning Class, 15,506 (16%), canceled their EFT Authorization at some point after the loan funded. Id., No. 10.

The parties’ cross-motions for summary judgment concern whether CashCall violated Section 1693k(1) of the EFTA, which prohibits “conditioning the extension of credit” on a borrower’s “repayment by means of preauthorized electronic funds transfers (“EFT”).” Def. Condit. Mot. at 1 (citing 15 U.S.C. § 1693k(l) and Federal Reserve Regulation E, 12 C.F.R. § 205). CashCall argues that the EFT Authorization contained in its promissory note did not violate the EFTA because the Act prohibits lenders from imposing EFTs as the exclusive method for consumers to repay a loan in its entirety, and CashCall’s promissory notes authorized, but did not require, payment by EFT. Id. at 2. Cash-Call also argues that the fact that it allowed other means of payment from the inception of the loans establishes that it did not condition the extension of credit on repayment by EFT. Id. at 3.

*1082C. Actual Damages

In conjunction with its Motion for Summary Judgment on the Conditioning Claim, CashCall also moves for partial summary judgment on the issue of actual damages, arguing that Plaintiffs cannot establish that CashCall’s initial EFT Authorization caused borrowers to incur NSF fees in every instance. Id. at 1-2. Of the class members who incurred NSF fees, CashCall directs the Court’s attention to Class Representative Lori Kemply, who incurred fees because her estranged husband made unauthorized withdrawals from her bank account. Def.’s Reply Stmt. No. 4, Dkt. No. 212.3 She also incurred NSF fees after cancelling her first EFT authorization, paying by other means, and then providing a new EFT authorization. Id. Lori Hume and Tonya Gerald incurred NSF fees after they instructed their banks to stop honoring CashCall’s attempts to debit their accounts without first cancel-ling their EFT authorizations. Id., No. 5.

D. The Unconscionability Claim4

The Court also certified a class based on the allegation that CashCall’s installment loans charged an unconscionable rate of interest. Class Cert. Order at 38. The Loan Unconscionability Class is comprised of “[a]ll individuals who while residing in California borrowed from $2,500 to $2,600 at an interest rate of 90% or higher from CashCall for personal family or household use at any time from June 30, 2004 through July 10, 2011.” Id.

CashCall’s loans are offered to subprime borrowers, or those with FICO scores on average less than 600. Pls.’ Sep. Stmt. Undisp. Mat. Facts in Supp. of Unc. Mot. (“Pl. Unc. Stmt.”) No. 13, Dkt. No. 196. From 2004 to the present, the default rate for the $2,600 loan product has been 35% to 45%. Id., No. 5. The total default rate for loans in the Class was 45%. Id., No. 41. CashCall rejected more than 72% of loan applications during this time. Id., No. 15.

CashCall’s signature product is an unsecured $2,600 loan with a 42 month term, using only simple interest, and without prepayment penalty. Id., No. 17-19. This is the lowest amount-offered to members of the Class. Id., No. 16. CashCall has charged varying interest rates .on its $2,600 loan product during the Class Period. Prior to the beginning of the Class period, the interest rates on these loans were 79% and 87%. Id., No. 20. CashCall determined it could not make a profit at these interest rates.5 Id., No. 21. From August 18, 2005 to July 2009, CashCall set the interest rate at 96%. Id., No. 22. In August 2005, CashCall also added a bold-print warning to its promissory notes:

THIS LOAN CARRIES A VERY HIGH INTEREST RATE. YOU MAY BE ABLE TO OBTAIN CREDIT UNDER MORE FAVORABLE TERMS ELSEWHERE. EVEN THOUGH THE TERM OF THE LOAN IS 37 MONTHS, WE STRONGLY ENCOURAGE YOU TO PAY OFF THE LOAN AS SOON AS POSSIBLE. YOU *1083HAVE THE RIGHT TO PAY OFF ALL OR ANY PORTION OF THE LOAN AT ANY TIME WITHOUT INCURRING ANY PENALTY.

Id., No. 23. Beginning in July 2009, Cash-Call increased the interest rate to 135%. Id., No. 24. On September 27, 2010, Cash-Call also started charging more than 90% on its $5,075 loans. Id., No. 25.

During the class period, CashCall made a total of 135,288 loans with interest rates above 90%. Id., No. 6. Of those loans, 60,981, or 45.1%, defaulted. Id., No. 7. Of this number, 5,401 defaulted without any repayment of principal. Id., No. 11. Conversely, 58,857, or 43.7%, of the signature loans were repaid in full prior to the end of the loan term. Id., No. 8. Of these loans, 5,651 were paid off within one month of origination. Id., No. 9. Another 23,723 loans were paid off within six months of origination. Id., No. 10. Only 8,858 of the loans were repaid in full after going to the full term of the loan. Id., No. 12. Of the Class, 29,039 borrowers, or 21.5%, have taken out more than one loan from Cash-Call. Id., No. 14. CashCall does not allow borrowers to take out a second loan to repay an outstanding CashCall loan. Post Decl. in Supp. of Unc. Mot. at ¶ 5, Dkt. No. 171.

1. CashCall’s Business Model

CashCall’s loans have a 42-month amortization period. CashCall recovers its principal loan amount of $2,600 in 12 months.6 Selling Decl. in Support of Unc. Mot., Ex. C (“McFarlane Rpt.”), ¶ 81, Dkt. No. 172. CashCall also incurs costs in making its loans. Loan origination costs, servicing costs, and cost of funds comprise on average 58% of the loan amount. Id. In order to recoup these costs, plus any out-of-pocket expenses, CashCall must thus collect payments totaling 158% of the loan amount. Id. For its 96% APR loans with monthly payments of $216.55, CashCall recovers 158% of the loan amount at month 19. Id. For its 135% APR loans with monthly payments of $294.46, CashCall recovers the $2,600 loan amount by month nine, and recovers the loan amount plus out-of-pocket expenses by month 14. Id. The average life of the $2,600 loans was 20 months. Def. Unc. Stmt., No. 27, Dkt. No. 206. Due to the 42-month loan term, CashCall can still earn a profit even if the borrower defaults before the maturity date. McFarlane Rpt. ¶ 100.

Since it was founded, CashCall has pursued a business strategy of aggressive growth.7 Def. Unc. Stmt., No. 28. The centerpiece of this strategy has been to increase and maintain high loan volumes, including on its $2,600 loans. Id., No. 29. Although CashCall incurred losses in the financial crisis, it recovered in 2010, and in 2011 had profits of $60 million. Id., Nos. 30-31.

CashCall is licensed by the California Department of Business Oversight (the “Department”), formerly known as the Department of Corporations Department.8 Def. Unc. Stmt. No. 1, Dkt. No. 167. As part of its licensing obligations, CashCall must file annual reports with the Department. Baren Decl. ¶¶ 3-12, Ex. A-H *1084(CashCall’s Annual Reports for 2004-2011). Id., No. 2. The Department additionally conducted audits of CashCall in 2004, 2007, and 2010. Id., No. 3; Baren Decl. ¶ 13-16, Ex. I-K9. None of the audits objected to CashCall’s practice of charging interest rates above 90% on loans over $2,600. Id., No. 4. Under the Financial Lender’s Law, interest rates on loans with principal amounts above $2,500 are not regulated. Cal. Fin.Code § 22303. The Financial Code nonetheless authorizes the Department to take action against improper charges by licensees. Id. §§ 2700-13.

2. CashCall’s Market Share and Availability of Alternative Products

Up until 2007, CashCall offered a unique product in the subprime credit market because it offered an installment loan based on a simple interest calculation, with no prepayment penalty, that occupied the niche between payday loans and regular bank loans. Levy Decl. in Opp’n to Unc. Mot., Ex. 7 (“Levitin Rpt.”) (citing Meeks Dep. Transcript, Vol. II at 362:21-363:4), ¶ 55, Dkt. No. 194-1.

There are other loan options available to subprime borrowers, although the parties’ experts disagree on whether, or to what degree, these alternative loan products are comparable to CashCall’s consumér loans. Def.’s Reply Stmt. No. 34, Dkt. No. 206 (citing Pls.’ Consumer Expert Sunders Dep. at 79:1-81:2). Such options are payday loans, auto title loans, pawnshop loans, tax refund anticipation loans, and secured credit cards. Levitin Rpt. ¶44. Payday loans are typically for small dollar amounts and short duration (less than 31 days), but carry higher APRs. Def. Reply Stmt. No. 37, Dkt. No. 206. Tax refund anticipation loans are 1-2 week loans with high APRs, average maturity of 11 days, and cannot be rolled over. Id., No. 38. Auto title loans are secured, require a car free and clear of liens, and are for a shorter duration than CashCall loans, also with high APRs. Id., No. 39. Pawnshop loans, which require collateral, also have shorter maturities and high APRs. Id., No. 40.

3. The Relationship Between Default Rate and Profitability

CashCall bases its interest rates on a number of costs, including the rate charged by its financing investors. Id., No. 46. For instance, CashCall’s advertising expenditures are high. Id., No. 47. Historically, advertising expense has accounted for nearly 20% of CashCall’s total operating costs. Id. CashCall builds the cost of its advertising campaigns into the interest rates it charges consumers. Id., No. 48. Advertising accounts for more than half of the 25% origination costs input into CashCall’s profitability model. Id. Plaintiffs contend that CashCall intentionally- builds a 35-40% default rate into its loan products, knowing that nearly half of the people it lends to will be unable to repay, and that CashCall intentionally maintains low underwriting standards leading to its high loan defaults in order to achieve its target loan volumes. Id., Nos. 43-44. In Plaintiffs’ view, CashCall’s efforts to increase loan origination s through increased advertising and marketing activities, and the use of broad underwriting standards to increase the pool of qualified borrowers, increases CashCall’s expenses, which CashCall must recover through higher APRs charged to borrowers. Id., *1085No. 45. CashCall’s high interest rates are also intended to recoup the cost of maintaining a collection unit to collect loans from defaulting borrowers. Id., No. 49.

4. Impact of CashCall’s Loans on Borrowers

For CashCall’s 96% $2,600 loan, the actual APR was over 99%, with total loan payments of $9,150, or 3.6 times the amount borrowed. Id., No. 50. For. the 135% loan, the APR is over 138%, with total loan payments of $11,000, or 4.3 times the amount borrowed. Id. Substantially all Class Members paid these interest rates. Id., No. 51. Approximately half of the Class Members paid their loans in full. Id. Of these, 1/3 of this group paid in full more than six months after taking out the loans, and about 6.5% paid until loan maturity. Id.

5. Consumer’s Vulnerability to Cash-Call’s Advertising10

CashCall is a “direct response” TV advertiser. Pl. Unc. Stmt. No. 58, Dkt. No. 196. Its advertising objective is to get viewers to impulsively call for a loan. Id. CashCall’s advertising strategy capitalizes on the viewer’s need to get money quickly. Id., No. 59. CashCall strategically emphasizes the monthly payment in its advertising because many Americans make financial decisions based upon what they can afford each month, as opposed to the APR. Id., No. 60. Studies show low credit scores correlate with financial sophistication and literacy. Id., No. 62. CashCall lends to consumers with low credit scores, who are under financial stress. Id., No. 63. Plaintiffs’ expert opined that individuals facing financial stress have reduced cognitive capacity and tend to make poor financial decisions. Id. Plaintiffs do not allege that CashCall’s advertising is deceptive, but contend that it nevertheless deflects borrowers from critical information about the real cost of the loan. Id., No. 64.

6.Effectiveness of CashCall’s Disclosure Practices

CashCall’s promissory notes satisfied TILA loan disclosure requirements. Id., No. 67-71. However, Plaintiffs contend that CashCall’s practice of not providing written loan disclosures until late in the application process, after the borrower has already been approved, capitalizes on the psychological bias against losing “sunk costs.” Id., No. 65. Borrowers who have already invested in the application process, been “approved,” and are counting on getting the need for cash filled, are psychologically biased against accepting contrary information and are predisposed to either ignore the disclosures or unfairly discount their significance. Id.

PROCEDURAL BACKGROUND

Plaintiffs initially filed this action on July 1, 2008. Dkt. No. 1. Plaintiffs subsequently filed the Fourth Amended Class Action Complaint (“FAC”) on February 25, 2010. Dkt. No. 54. Among other claims, Plaintiffs alleged causes of action under the EFTA and the UCL based on Cash-Call’s practice of conditioning its extension of credit to consumers on an agreement to repay their loans by means of preauthor-ized electronic fund transfers. FAC ¶¶ 8-9; 17. Plaintiffs also alleged that Cash-Call violated the UCL, California Financial Code section 22302, and California Civil Code section 1670.5; by making loans at rates of interest and on other terms that are unconscionable in light of the financial *1086circumstances of the borrowers. FAC ¶ 75.

On November 14, 2011, the Court granted in part Plaintiffs’ motion for class certification on the EFTA conditioning claim, the UCL claim premised on the EFTA violations, and the UCL claim based on violation of California Financial Code section 22303 and Civil Code section • 1670.5. Dkt. No. 100.

CashCall now moves for summary judgment as to its liability under the EFTA, the UCL, and on the issue of actual damages. Dkt. No. 159. CashCall contends that it did not violate the EFTA by conditioning the extension of credit to consumers on repayment by EFT. Id. at 6. Plaintiffs have filed an Opposition (Dkt. No. 188), to which CashCall has filed a Reply (Dkt. No. 211). Both parties have filed Requests for Judicial Notice (“RJN”). Dkt. Nos. 164,191.

Plaintiffs filed a cross-motion for partial summary judgment as to CashCall’s liability on the conditioning claims under the EFTA and the UCL. Dkt. No, 175. Plaintiffs argue that they are entitled to summary judgment on the conditioning claim because the undisputed evidence establishes that CashCall conditioned its extension of credit on payment by EFT by requiring all borrowers to execute an EFT Authorization prior to receiving funding. Id. at 6. Plaintiffs maintain that the right to later caiicel EFT payments does not allow a lender who - conditions the initial extension of credit on such payments to avoid liability. Id. at 4 (citing Ord. on Mot. to Dismiss at 4-5, Dkt. No. 34). CashCall has filed an Opposition (Dkt. No. 181), to which Plaintiffs have filed a Reply (Dkt. No. 208). CastíCall has additionally filed a Request for Judicial Notice. Dkt. No. 185.

CashCall also moves for summary judgment on the unconscionability claim, arguing that Plaintiffs have failed to establish that its interest rates are unconscionable as a matter of law. Dkt. No. 166. Plaintiffs have filed an Opposition (Dkt. No. 193), to which CashCall has filed a Reply (Dkt. No. 204). CashCall has additionally filed a Request for Judicial Notice. Dkt. No. 174. Plaintiffs filed objections to CashCall’s Evidence in support of this Motion. Dkt. No. 197. CashCall has filed an Opposition (Dkt. No. 205) as well as its own objections to Plaintiffs’ expert evidence (Dkt. No. 214). Plaintiffs have filed an Opposition to CashCall’s evidentiary objections. Dkt. No. 214.

LEGAL STANDARD

Summary judgment is proper where the pleadings, discovery and affidavits demonstrate that there is “no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.

Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007). On an issue where the nonmoving party will bear the burden of *1087proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party’s case. Celotex, 477 U.S. at 324-25, 106 S.Ct. 2548. When cross-motions for summary judgment are filed on the same claim, the court must consider evidence submitted in support of and in opposition to both motions before ruling on either motion. See Fair Housing Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.2001).

If the moving party meets its initial burden, the opposing party must then set forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 250, 106 S.Ct. 2505. It is not the task of the Court to scour the record in search of a genuine issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996). The Court “reifies] on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment.” Id.', see also Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir.2010). Thus, “[t]he district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.2001). If the nonmoving party fails to make this showing, “the moving party is entitled to a judgment as a matter of law.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (internal quotations omitted).

CROSS MOTIONS FOR SUMMARY JUDGMENT ON THE CONDITIONING CLAIM

A. Requests for Judicial Notice

In conjunction with the Cross-Motions for Summary Judgment on the Conditioning Claim, both parties request that the Court take judicial notice of the legislative history of Title 15, United States Code sections 1693 through 1693r, the Electronic Fund Transfer Act by the United States House of Representatives Bill No. 14279 of 1978 [H.R. 14279], enacted by Congress as Public Law 95-630, on October 27, 1978, 92 United States Statutes 3641. Def.’s Req. Jud. Not. Condit. Mot., Dkt. No. 164; Def.’s Req. Jud. Not. in Opp’n to Pl. Condit. Mot., Dkt. No. 185; Pls.’ Req. Jud. Not. Condit. Mot., Dkt. No. 191. The Court will take notice judicial notice of the legislative history of the EFTA pursuant to Federal Rule of Evidence 201(d), as judicial notice of legislative history is proper where, as here, its authenticity is beyond dispute. Territory of Alaska v. Am. Can Co., 358 U.S. 224, 226-27, 79 S.Ct. 274, 3 L.Ed.2d 257 (1959) (taking judicial notice of legislative history of statute); Zephyr v. Saxon Mortg. Services, Inc., 873 F.Supp.2d 1223, 1225 (E.D.Cal.2012) (statute’s legislative history is proper subject of judicial notice).

CashCall additionally requests that the Court take notice of Meeks, et al. v. Cash Call, Inc., Case No. BC 367894, Superior Court of California, County of Los Angeles, May 6, 2008, Ruling on Demurrer. (Ex. B). Def.’s Opp’n to Condit. RJN, Dkt. No. 185. A court may take judicial notice “ ‘of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to the matters at issue.’ ” United States v. Black, 482 F.3d 1035, 1041 (9th Cir.2007) (quoting United States ex. rel. Robinson Ranchería Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th.Cir.1992). Because the demurrer addresses the same conditioning claims made against CashCall, it has a “direct relation” *1088to the conditioning issue. The Court will thus take judicial notice of the ruling on the demurrer.

B. Motion for Summary Judgment on the Conditioning Claim

CashCall moves for summary judgment on Plaintiffs’ Conditioning Claim, which asserts that CashCall violated Section 1693k(1) of the EFTA, which prohibits “conditioning the extension of credit” on a borrower’s “repayment by means of preau-thorized electronic funds transfers (“EFT”).” Condit. Mot. at 1. To the extent they are based on the Conditioning Claim, CashCall also moves for summary judgment on Plaintiffs’ UCL claims in the Fifth and Sixth Causes of Action. Id. Alternatively, CashCall argues it is entitled to partial summary judgment on the issue of actual damages on the Conditioning Claim because Plaintiffs cannot prove that every NSF that was charged to members of the Conditioning Class was a result .of the alleged conditioning of the extension of credit on the borrower’s repayment by EFT. Id.

Plaintiffs also move for summary judgment on the Conditioning Claim, arguing that CashCall’s promissory note violated the EFTA because it required the class members to consent to preauthorized electronic fund transfers before it would fund a loan, which is conditioning the extension of credit on the borrower’s agreement to páy by EFT. Pl. Condit. Mot. at 6.

Under Regulation E, the implementing regulation of the EFTA, “[n]o ... per-sonl11 may condition an extension of credit to a consumer on the consumer’s repayment by preauthorized electronic fund transfers....” 12 C.F.R. § 205.10(e)(1); 15 U.S.C. § 1693k(1). The EFTA defines “preauthorized electronic fund transfer” as “an electronic fund transfer authorized in advance to recur at substantially regular intervals.” 15 U.S.C. § 1693a(10). The purpose of the EFTA is to' define “the rights and liabilities of consumers, financial institutions, and intermediaries in electronic fund transfers,” with the “primary objective” of “the provision of individual consumer rights.” 15 U.S.C. § 1693. One such objective is protecting consumers from compulsory use of EFT services. Def. Condit. RJN, Ex. A, at p. 31 (House Congressional Record-August 11, 1978, p. 25733: “In section 912 [referring to what became § 1693k(l) ] we insure that consumers are not forced to use the EFT.”). The EFTA provides a private right of action for consumers, specifying that “any person” who fails to comply with any provision of the EFTA with respect to any consumer “is liable to such consumer.” 15 U.S.C. § 1693m(a).

CashCall contends that the plain meaning of Section 1693k(l) prohibits condition: ing the extension of credit upon a requirement to make all loan payments by EFT during the life of the loan. Def. Condit. Mot. at 8. Since CashCall does not require a borrower to make any payment by EFT, it maintains it did not condition its loans on repayment by EFT. Def. Condit. Reply at 1. CashCall’s interpretation of § 1693k(1) is unsupported by either the plain language of the provision (which nowhere mentions repayment “in full” or “in its entirety”) or its legislative history.

To discern the meaning of a statute, courts first look to the plain language of the statute itself. United States v. Williams, 659 F.3d 1223, 1225 (9th Cir. 2011). Courts determine the plain mean*1089ing of a statutory provision by reference to the “structure of the statute as a whole, including its object and policy.” Children’s Hosp. & Health Ctr. v. Belshe, 188 F.3d 1090, 1096 (9th Cir.1999). The plain meaning of a statute controls, and a court “need not examine legislative history as an aide to interpretation unless ‘the legislative history clearly indicates that Congress meant something other than what it said.’ ” Williams, 659 F.3d at 1225 (quoting Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 877 (9th Cir.2001) (en banc)).

It is evident from the statutory language that the activity prohibited by section 1693k(l) is precisely the activity that CashCall engaged in here — “conditioning] the extension of credit to a consumer on such consumer’s repayment by means of preauthorized electronic fund transfers.” A violation of section 1693k(l) thus occurs at the moment of conditioning — that is, the moment the creditor requires a consumer to authorize EFT as a condition of extending credit to the consumer. As the statute’s plain language is unambiguous, the Court need only look to the legislative history to confirm that Congress did not mean something other than what it said. Williams, 659 F.3d at 1225. The EFTA’s legislative history confirms that Congress intended § 1693k(l) to prohibit creditors from conditioning the extension of credit on consumers’ agreement to repay their loans by EFT. Exh. A to PI. RJN, p. 34 (“A creditor could not condition the extension of credit on a consumer’s agreement to repay by automatic EFT payments.... [A] creditor could not offer only loans repayable by EFT.”). Contrary to Cash-Call’s suggestion, this interpretation of the statute is fully consistent with the statutory purpose of insuring that “EFT develops in an atmosphere of free choice for the consumer” and “consumers are not forced to use EFT.” Id., p. 33 (Congressional Record-House, p. 25733). Thus, the legislative history of the EFTA confirms § 1693k(l)’s plain meaning: a creditor may not condition the extension of credit to a consumer on the consumer’s preau-thorization of EFTs.

The only district court to consider this issue came to the same conclusion. Federal Trade Commission v. Payday Financial LLC, 989 F.Supp.2d 799, 811-13 (D.S.D.2013). In that case, the Federal Trade Commission (“FTC”) brought an action against payday lenders for violation of Section 1963k(l) by conditioning loans on consent to an EFT clause that, like the clause at issue in this case, permitted EFT authorization to be revoked prior to the first payment. In finding that the lenders violated the EFTA, the Payday court relied on this Court’s reasoning in its prior ruling on CashCall’s Motion to Dismiss. Payday, at 811-12. CashCall argues that the Court should not consider this as persuasive authority because the Payday court merely adopted this Court’s reasoning without further analysis. The Court disagrees.

The loan agreements at issue in Payday provided that EFT authorization was “revocable ‘at any time (including prior to your first payment due date) by sending written notification to [defendants].’ ” Id. at 812. The defendants argued that no claim could lie under the EFTA because the requirement that borrowers consent to electronic fund transfers was “for ‘the consumer’s convenience’ and ‘revocable at any time.’ ” Id. The court rejected this argument and granted summary judgment to the FTC, holding that the EFTA and Regulation E permit no exception for “consumer convenience” and that the revocability of EFT authorization was irrelevant to the court’s liability determination. Id. at 811— 13. The court reasoned as follows:

*1090No provision of any of the Defendants’ loan agreements ... expressly states that the consumer does not need to authorize EFT at all to receive a loan or provides a means by which a consumer can obtain a loan without initially agreeing to EFT. Defendants no doubt would argue that a consumer could infer from the language that, if the EFT can be revoked “prior to your first payment due date,” then the loan is not conditioned on agreement to the EFT clause. This argument, albeit in the context of a ruling in a motion to dismiss, was rejected in O’Donovan v. CashCall, Inc., No. C 08-03174 MEJ, 2009 WL 1833990 (N.D. Cal. June 24, 2009).... This Court agrees.

Id. Central to the court’s analysis was the fact that “the [lender] ha[d] never issued a consumer loan without the consumer initially entering into a loan agreement containing an EFT clause.” Id. at 812-13. The court observed that despite the cancellation clause, “there [was] no language expressly stating that the extension of credit is not conditioned on agreement initially to EFT” or explaining how a consumer might otherwise obtain a consumer loan from the lender. Id. The court reasoned that the lender’s arguments that “in practice” they did not condition the extension of credit on consent to EFTs ignored that in reality their loan agreements did just that. Id. Although the court described the violation as “somewhat technical in nature,” and not likely to yield extensive damages, it found the lender’s EFT clause nevertheless violated the EFTA and Regulation E. Id.

The undisputed evidence in this case demonstrates that, as a condition of extending credit to Conditioning Class Members, CashCall required them to consent to “preauthorized electronic fund transfers” that were “authorized in advance to recur at substantially regular intervals,” in violation of the EFTA. Pl. Condit. Stmt., Nos. 5-6, Dkt. No. 175-1. In order to have their loans funded, all Conditioning Class Members were required to check a box authorizing CashCall to withdraw then-monthly loan payments by EFT. Id., No. 6. If the borrower did not check the box, CashCall would not fund the loan. Id., No. 7. All members of the Conditioning Class signed the electronic funds authorization at the time they signed their promissory note. Id., No. 5. There is thus no dispute that CashCall conditioned the funding of loans to Conditioning Class Members on their consent to having then-monthly loan payments withdrawn from their bank accounts. By conditioning the extension of credit to Conditioning Class Members on their repayment by means of preauthorized electronic fund transfers, CashCall violated the EFTA.

The uncontroverted evidence thus demonstrates that during the Class Period, CashCall issued consumer loans only to borrowers who initially entered into a loan agreement containing an EFT authorization clause. CashCall’s loan application and loan agreement forms do not state that a consumer need not consent to EFT to obtain a loan from CashCall or explain how a consumer could obtain a loan from CashCall without consenting to EFT. To the contrary, checking the EFT Authorization box was a mandatory prerequisite to obtaining a loan. CashCall conditioned the extension of credit on consent to EFT by requiring Conditioning Class Members to check the EFT authorization box in order to submit their loan agreements, receive credit, and have their loans funded. Section 1693k(l) is unambiguous, and its purpose is clear. By conditioning its extension of credit to members of the Conditioning Class on Class Members’ agreement to repay their CashCall loans by means of preauthorized electronic fund *1091transfers, CashCall violated the EFTA. See 15 U.S.C. § 1693k(l). Accordingly, the Court DENIES CashCall’s Motion and GRANTS Plaintiffs’ Motion for Partial Summary Judgment on the EFTA claim.

C. The Unfair Competition Claim

By establishing that they are entitled to partial summary judgment on their EFTA claim, Plaintiffs have also established that they are entitled to summary judgment on their UCL claim premised on CashCall’s violation of the EFTA. The UCL proscribes three types of unfair competition: “practices which are unlawful, unfair or fraudulent.” In re Tobacco II Gases, 46 Cal.4th 298, 311, 93 Cal. Rptr.3d 559, 207 P.3d 20 (2009) (internal quotation marks and citation omitted); see also Cal. Bus. & Prof.Code § 17200 (defining unfair competition to include “any unlawful, unfair or fraudulent business act or practice”). With respect to the UCL’s unlawful prong, the California Supreme Court has held: “By proscribing ‘any unlawful’ business practice, § 17200 borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable.” Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal.4th 163, 180, 83 Cal.Rptr.2d 548, 973 P.2d 527 (1999) (internal quotations omitted). In other words, claims raised under the UCL’s unlawful prong rise or fall with the Court’s determination of liability with respect to the underlying violation. See Krantz v. BT Visual Images, 89 Cal.App.4th 164, 178, 107 Cal.Rptr.2d 209 (2001). In this action, Plaintiffs’ UCL claim is premised on Cash-Call’s violation of the EFTA, which explicitly provides that lenders may not “condition the extension of credit to a consumer on such consumer’s repayment by means of preauthorized electronic fund transfers.” 15 U.S.C. § 1693k(1). Plaintiffs’ UCL claim borrows the EFTA violation and treats it as an independently actionable unlawful business practice. As Plaintiffs have established that CashCall violated the EFTA, Plaintiffs are entitled to partial summary judgment on their UCL claim.

D. Actual Damages on the Conditioning Claim

CashCall also moves for partial summary judgment on the issue of actual damages on the Conditioning Claim. Def. Condit. Mot. at 10. Particularly, CashCall contends that Plaintiffs have not raised a triable issue of fact because they cannot establish that its violation of Section 1693k(l) caused every instance in which CashCall charged NSF fees. Id. Plaintiffs argue that this issue turns on a number of disputed facts and is not appropriate for resolution on summary judgment. PL Con-dit. Opp’n at 14.

Actual damages under the EFTA require proof that the damages were incurred “as a result” of the defendant’s violation of the statute. 15 U.S.C. § 1693m(a). CashCall cites a number of cases for the general proposition that “to recover actual damages [for violation of the EFTA], a plaintiff must establish causation of harm.... ” See Martz v. PNC Bank, N.A., 2006 WL 3840354, at *5 (W.D.Pa. Nov. 30, 2006); Brown v. Bank of Ant, 457 F.Supp.2d 82, 90 (D.Mass.2006) (finding that plaintiffs must “establish causation of harm in the form of detrimental reliance” to recover actual damages under the EFTA, relying on case law interpreting the identical actual damages provision in the Truth in Lending Act); Voeks v. Pilot Travel Ctrs., 560 F.Supp.2d 718, 723 (E.D.Wis.2008) (“[Plaintiffs] actual damages have to be proximately caused by the Defendant’s failure as recognized under the [EFTA].”). However, none of these *1092cases conclude that actual damages must be assessed as a group, rather than on individual proof. Moreover, the causal link between the EFTA violation and the NSF fees incurred by the Class Members is disputed. The evidence in this case raises a dispute of material fact as to whether CashCall would have collected NSF fees from Class Members had Cash-Call had not conditioned the funding of their loans on EFT authorization. The exact amount of actual damages attributable to CashCall’s violation of the EFTA is thus a disputed factual question that may be decided after liability is determined, together with Plaintiffs’ claims for statutory damages and restitution. Accordingly, CashCall’s motion for summary judgment as to actual damages is DENIED.

E. Conclusion

For the foregoing reasons, the Court DENIES CashCall’s Motion and GRANTS Plaintiffs’ Motion for Partial Summary Judgment as to the Conditioning Claim. As Plaintiffs have established that they are entitled to partial summary judgment on their EFTA claim, the Court also GRANTS summary judgment as to the UCL claims in the Fifth Cause of Action because they are premised on the EFTA violation. The Court DENIES CashCall’s Motion for Partial Summary Judgment on the issue of actual damages as Plaintiffs have set forth specific facts showing that there is some genuine issue for trial.

MOTION FOR SUMMARY JUDGMENT ON THE UNCONSCIONA-BILITY CLAIM

A. Request for Judicial Notice

Along with its Motion for Summary Judgment on the Unconscionability Claim, CashCall requests that the Court take judicial notice of the following documents: (1) Annual Reports by the California Department of Business Oversight (formerly the California Department of Corporations, and hereinafter “the Department”) for Operation of Finance Companies for the years 2004-2011 (Exs. A-H); (2) Annual Reports by the Department for Operation of Deferred Deposit Originators for the years 2005-2011 (Exs. G-O); and (3) Excerpts from the legislative history of California Financial Code section 22303 Senate Bill No 447 Introduced by Senator Vuich on February 19, 1985. Plaintiffs do not object. Pursuant to Federal Rule of Evidence 201, the Court takes judicial notice of Exhibits A-0 attached to Cash-Call’s request because they are matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir.2001). With respect to Exhibit N, judicial notice is appropriate because that document reflects legislative history that’s authenticity is beyond dispute, pursuant to Rule 201(d). See Oneida Indian Nation of N.Y. v. State of New York, 691 F.2d 1070, 1086 (2d Cir.1982); Matter of Reading Co.; Pet. of U.S., 413 F.Supp. 54, 57 (E.D.Pa.1976).

B. Plaintiffs’ Evidentiary Objections

1. Motion to Strike the Baren Declaration

Pursuant to Federal Rule of Civil Procedure (“Rule”) 37(e), Plaintiffs seek to preclude CashCall from introducing the Declaration of Daniel Baren in support of its Motion for Summary Judgment, arguing that CashCall never disclosed Baren in the initial or supplemental disclosures required by Rule 26(a)(1)(A) and (e). Mot. to Strike (“MTS”) at 1, Dkt. No. 197. CashCall offers Baren’s declaration to: (1) authenticate CashCall’s 2004-2011 Annual Reports and the Department’s 2007-2010 Audit Reports of CashCall’s lending activities; and (2) explain CashCall’s reporting requirements. Decl. of Daniel H. Baren *1093In Support of CashCall’s Motion for Summary Judgment (“Baren Decl.”), Ex. A-K, Dkt. No. 168.

Rule 26(e) requires a party who has responded to an interrogatory or who has made a disclosure under Rule 26(a) to supplement its response in a timely manner if: “the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing” (emphasis added). Rule 37 provides that “[i]if a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The “party facing sanctions bears the burden of proving that its failure to disclose the required information was substantially justified or is harmless.” R & R Sails, Inc. v. Ins. Co. of Penn., 673 F.3d 1240, 1246 (9th Cir.2012); Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir.2001). The determination of whether a failure to disclose is justified or harmless is entrusted to the broad discretion of the district court. Kim v. Pacific Bell, 1999 WL 760634, *2 (N.D.Cal. Sep. 20, 1999) (citing Mid-America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353, 1363 (7th Cir. 1996)).

■ Plaintiffs argue that CashCall failed to list Baren on its updated disclosures, resulting in unfair surprise and prejudice, as Plaintiffs no longer have the opportunity to depose him. MTS at 2. CashCall contends that Plaintiffs’ argument is frivolous because Plaintiffs were aware of the scope and nature of Baren’s potential testimony because they listed him as “an individual that is likely to have discoverable information Plaintiffs may use to support their claims or defenses” in their own initial disclosures months before the discovery-cut off. Decl. of Noel S. Cohen in Supp. of Opp’n to MTS, Ex. A, (“Cohen Decl.”), at 1, Dkt. No. 205.

Courts routinely permit Rule 37 sanctions where the party facing sanctions does not justify the failure to disclose or where the failure to disclose prejudices the other party. See Medina v. Multaler, 547 F.Supp.2d 1099, 1106, fn. 8 (C.D.Cal. 2007) (striking declarations first disclosed in opposition to summary judgment motion because the “failure to disclose [the declar-ant] as a likely witness” on the central issue in the case “before defendants’ summary judgment motion was filed prejudiced defendants by depriving them of an opportunity to depose him”). Conversely, Rule 37 sanctions are unwarranted where, as here, the undisclosed declarant was a likely witness, and his testimony was foreseeable. See Ashman v. Solectron, Inc., 2010 WL 3069314, at *4 (N.D.Cal. Aug. 4, 2010).12 CashCall’s CFO, Delbert Meeks, *1094testified at his July 8, 2013 deposition that Baren had the most knowledge about CashCall’s dealings with the Department of Corporations. Ex. B to Cohen Decl. (“Meeks Dep.”) at 405:2-16. CashCall has previously produced the documents contained in the Baren Declaration in response to discovery requests, and Plaintiffs requested many of the same documents via a Public Records Request to the Department of Corporations. Opp’n to MTS at 1; see also Nehara v. California, 2013 WL 1281618, at * 4 (E.D.Cal. Mar. 26, 2013) (court declined to exclude undisclosed witnesses that were fully known to the defendants through their role in the events, which had been established by documents produced by defendants in discovery)).

The Court also finds that Plaintiffs cannot establish prejudice. Baren’s declaration functions largely to authenticate documents Plaintiffs already have, rather than to provide any opinion on the underlying issues. To the extent Baren provides limited opinion as to his understanding of Department reporting requirements, it is collateral to any material issue of fact. Accordingly, the motion to strike the declaration is DENIED.

2. Evidentiary Objections to the Baren Declaration

In addition to objecting to Mr. Baren’s declaration generally, Plaintiffs also object to paragraphs 3 and 13-16 on the grounds that the statements lack foundation, lack personal knowledge and are speculative. Evid. Obj. No. 1, MTS at 3. Each of these objections is OVERRULED.

Objection No. 1: In Paragraph 3, Bar-en, as CashCall’s General Counsel, states what CashCall is required to do as a condition of its licensing with the Department of Corporations. Mr. Baren states in paragraph 4 that, as General Counsel, he personally supervises these activities and signs the documents that are submitted. He clearly has personal knowledge of these matters. Cohen Decl, Ex. B at 407:1^08:4.

Objection No. 2: In Paragraph 13, Bar-en demonstrates he has personal knowledge of his interactions with the Department of Corporations when they come to CashCall to conduct on-site audits.

Objection No. 3: In Paragraphs 14-16, Baren attaches copies of Department of Corporation audits of CashCall that he received in the ordinary course of business and states his knowledge about these audits. As General Counsel, Baren is directly responsible for dealing with the Department of Corporations. Opp’n to MTS at 2. Accordingly, he is qualified to make the statements in these four paragraphs and to authenticate the exhibits therein.

3. Evidentiary Objections to the Holland Declaration

Plaintiffs next object to portions of the Declaration of Hillary Holland, on the grounds that the statements lack foundation, lack personal knowledge and are speculative. Evid. Obj., MTS at 3-4. Holland is the Vice President of Production and in charge of all aspects of loan origination, including oversight of the loan agents prospective borrowers speak to during the loan application process. Opp’n to MTS at 3. Each of these objections is OVERRULED.

. Objection No. 1: Plaintiffs object to Paragraph Nos. 2-7, p. 1:7-28 on the basis that Holland had no involvement with CashCall’s advertising program beyond *1095sometimes being asked about her opinion of a commercial, or being told when ads would run so she could staff call lines. Evid. Obj. No. 2, p. 3 (citing Stark Decl., Ex. 1, Holland Dep., 20:5-15, 28:22-34:1). The Court finds that Holland has sufficient personal knowledge to testify as to: (1) the media CashCall advertised through since she joined the Company; and (2) the general content and disclosures in the ads. Accordingly, this Objection is OVERRULED.

Objection Nos. 2-3: Plaintiffs also object to Paragraph Nos. 8-16, pp. 2:l-4:4, and Paragraph Nos. 18-24, pp. 4:8-5:24 on the basis that (1) Holland does not “know about CashCall loan agent practices” and (2) she was not CashCall’s PMK on this subject four years ago. Id. (citing Stark Decl., Ex. 2, McCarthy Dep., 11:8-12:17, 188:2-9). Holland has been the executive in charge of loan agents since 2003, and thus has sufficient knowledge to testify as to CashCall’s loan agent practices. Opp’n to MTS at 3. The fact that CashCall has designated another party as PMK on this topic does not mean that Holland has no personal knowledge of these practices. Plaintiffs’ objections are OVERRULED.

C. CashCall’s Objections to Plaintiffs’ Evidence

CashCall also filed evidentiary objections to Plaintiffs’ expert testimony regarding class characteristics and the availability of comparable loans. Def. Obj. to Pl. Unc. Opp’n Evid. (“Def. Evid Obj.”), Dkt. No. 209.

1. Objections to Expert Testimony re: Class Characteristics

CashCall objects to the evidence of Plaintiffs’ experts regarding the Class Members’ characteristics, such as lack of financial literacy, cognitive impairment, and duress. CashCall argues these declarations are unreliable and speculative because the experts did not rely on data specific to the class, including class members’ testimony, in analyzing class characteristics. Def. Evid. Obj. at 2. On this basis, CashCall contends that the experts’ opinions should be excluded because they do not meet the minimum standards for admissibility under Federal Rule of Evidence 702 because the experts did not review any of the ten Class Member depositions or consider the individual factual circumstances of any CashCall borrower in formulating their opinions as to the class characteristics. Plaintiffs respond that CashCall misstates the basis for the expert opinions, ignores that the class characteristics were based on numerous empirical studies of general characteristics of similar consumers, and ignores that review of the ten class depositions would not render a scientifically significant sample. Pl. Opp’n to Evid. Obj. at 3, Dkt. No. 214.

To be admissible under Federal Rule of Evidence 702, an expert opinion must be “not only relevant but reliable.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Expert testimony is reliable only if (1) it is based upon sufficient facts or data, (2) it is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliability to the facts of the case. Kumho Tire, 526 U.S. at 147, 119 S.Ct. 1167; Daubert, 509 U.S. at 590, 113 S.Ct. 2786.

An expert opinion may not be based on assumptions of fact without evi-dentiary support. Guidroz-Brault v. Mo. Pac. R. Co., 254 F.3d 825, 830-31 (9th Cir.2001) (excluding expert testimony “not sufficiently founded on the facts” of the case). “When expert opinions are not sup*1096ported by sufficient facts, or when the indisputable record contradicts or otherwise renders the opinions unreasonable, they cannot be relied upon.” W. Parcel Express v. United Parcel Serv. of Am., Inc., 65 F.Supp.2d 1052, 1060 (N.D.Cal. 1998); see also Estate of Gonzales v. Hickman, 2007 WL 3237727, at *3, n. 34 (C.D.Cal. May 30, 2007) (expert “cited no specific facts in the record ... which support the opinion, and the only available evidence contradicts it. Consequently the court concludes the opinion is not admissible”); United States v. Rushing, 388 F.3d 1153, 1156 (8th Cir.2004) (“Expert testimony should not be admitted when it is speculative, it is not supported by sufficient facts, or the facts of the case contradict or otherwise render the opinion unreasonable”); Greenwell v. Boatwright, 184 F.3d 492, 497 (6th Cir.1999) (“Expert testimony ... is inadmissible when the facts upon which the expert bases his testimony contradict the evidence”). Conversely, an expert’s conclusions are admissible where they were based “on the knowledge and experience in his [or her] discipline rather than on subjective believe or unsupported speculation.” San Francisco Baykeeper v. West Bay Sanitary Dist., 791 F.Supp.2d 719, 740 (N.D.Cal.2011) (citations omitted). As discussed below, the Court finds that the expert opinions of Dr. Wood, Margot Saunders, and Professor Levitin as to relevant class characteristics should not be excluded under Rule 702. These opinions were based on empirical studies of consumers and consumer behavior, and the experts’ knowledge and experience in each of their disciplines.

2. Objections to Dr. Wood’s Class Characteristics Opinions

Objection Nos. 1 through 8 seeks to exclude the testimony of Plaintiffs’ neu-ropsychiatric expert, Dr. Wood. Evid. Obj. at 2. CashCall objects to Dr. Wood’s conclusions that among other things, consumers generally have little financial literacy and that class members’ ability to understand and process loan disclosures (i.e., their financial literacy) is even lower than that of consumers generally. Declaration of Stacey Wood (‘Wood Decl.”), ¶¶ 10-11, Dkt. No. 195. CashCall further objects to Dr. Woods’ findings that: (1) class members “cannot readily identify key information, do the math, and fairly evaluate the costs of financial products in their self-interest” (¶¶ 10-11); and (2) the marginal cognitive ability of these class members was further impaired by their “financial and personal stress” (¶ 12). CashCall argues that this testimony is speculative, unreliable, lacks foundation, and is irrelevant because it is not based on any class member testimony or the consideration of class members’ personal circumstances. Evid. Obj. at 2. Further, CashCall argues that Dr. Wood ignored actual testimony from class members demonstrating the cognitive ability to understand the loan. Id. (citing Seiling Decl., Ex. F (“De Leon Dep.”), at 27:5-28:15.) Plaintiffs counter that Dr. Wood’s opinions, which refer to the typical class member, are based on class-wide data and carefully tailored to the evidence that supports them. PI. Opp’n Evid. Obj. at 5-6. The Court finds that to the extent Dr. Wood’s opinion is based on general characteristics of consumers with low credit scores, it is based on reliable principles and methods'that are validated by empirical studies in the peer-reviewed literature. Although the relevance of Dr. Wood’s opinion is marginal, the Court OVERRULES Objection Nos. 1-8.

3. Objections to Margot Saunders’ Class Characteristics Opinions

CashCall also moves to exclude the opinions of Margot Saunders regarding class members’ lack of cognitive ability and financial literacy to understand Cash-*1097Call’s loan terms on the grounds that it directly contradicts class member testimony. Def. Evid. Obj. at 3. CashCall specifically moves to exclude opinion testimony regarding cognitive ability, financial literacy, mental and emotional state, and any individual harm on the grounds that it conflicts with the fact that numerous class members took out more than one loan, which evidences sophisticated use of the product.13 Id.

The Court disagrees'with CashCall and finds that Saunders’ testimony regarding consumer understanding is not speculative. Plaintiffs have sufficiently established that Saunders’ opinions are based on her significant knowledge, skill, experience, training, and education in consumer law matters related to low-income consumers, as described in her report. See Saunders Rpt., p. 2-4. Saunders’ opinion is based on comprehensive studies of relevant consumers in general, and thus does not require individual class member experience to describe general class characteristics. Saunders Dep. at 99:18-100:6. Saunders’ testimony also considered Cash-Call’s documents regarding its product and advertising, depositions, discovery responses and pleadings. Id., Appendix, p. 40. On this record, the Court declines to find Saunders’ testimony regarding consumer understanding to be speculative. Plaintiffs have established that Saunders’ sources and bases of her understanding are grounded in significant research as well as extensive relevant experience. Accordingly, the Court OVERRULES Objection Nos. 13-14.

4. Objections to Professor Levitin’s Class Characteristics Opinions

CashCall objects to any testimony regarding characteristics of class members including, but not limited to, their mental or emotional state, reasons for securing a CashCall loan, and ability to comprehend CashCall’s loan terms. CashCall argues that Professor Levitin strays from the scope of his expertise by imputing particular characteristics to individual class members, while admitting thát he has not read class member depositions. CashCall argues that Levitin’s conclusions that class members are desperate and do not shop for market alternatives are speculative because he reached these conclusions without reading the deposition transcripts of a single class member. Def. Evid. Obj. at 5 (citing Levitin Rpt., p. 11; Seiling Decl., Ex. C (“Levitin Dep.”), at 6:21-7:15. Plaintiffs argue that CashCall fundamentally misconstrues the nature and purpose of Professor Levitin’s opinion because its focus is the nature of the product being offered by CashCall and how it is being sold to consumers rather than the characteristics of the class itself. Pl. Evid. Opp’n at 14 (citing Levitin Rpt. at ¶¶ 20-27).

The Court agrees that Levitin’s opinions are based on market analysis of the market in which CashCall operates, and that his conclusions pertain to the characteristics of CashCall’s signature loan product relative to that market. Accordingly, Levitin’s conclusions about the type of consumer likely to be attracted to Cash-Call’s product are based on objective factors that are not dependent on specific class members’ circumstances. It is the market factors themselves that indicate the type and characteristics of the typical consumer who takes out a CashCall loan. Levitin Rpt. ¶¶ 13-32-56; 63-84; 75. The Court thus OVERRULES Objection No. 9.

*10985. Objections to Professor Levitin’s Market Alternatives Testimony

CashCall moves to strike portions of the opinion of Plaintiffs’ financial expert Adam' Levitin on the grounds that it conflicts with Plaintiffs’ consumer behavior expert, Margot Saunders’ opinion that there were market alternatives to Cash-Call’s loans, thus creating a sham issue of fact. Evid. Obj. at 7. CashCall maintains that Plaintiffs cannot create a triable issue of fact by securing conflicting expert testimony on the same issue. Id. The Court does not agree that there is a basis to strike Professor Levitin’s testimony regarding market alternatives. The cases cited by CashCall are inapposite, as they pertain to the “sham affidavit rule,” which generally prohibits a party from defeating summary judgment simply by submitting an affidavit that contradicts the party’s previous sworn testimony. Van Asdale v. Int’l Game Technology, 577 F.3d 989, 998 (9th Cir.2009); Secrest v. Merck, Sharp & Dohme Corp., 707 F.3d 189 (2nd Cir.2013). To invoke the sham affidavit rule, the court must make a factual determination that the contradiction was actually a “sham.” Van Asdale, 577 F.3d at 998-99. CashCall has not made such a showing. Plaintiffs’ experts have given well-researched and well-documented opinions that are consistent within their reports and depositions. The only conflict is the context in which Levitin and Saunders consider the loan products to be comparable. Regardless of the market comparable issue, both experts conclude that CashCall’s loan product was unconscionable. See Prichard v. Kurucz, 22 Fed.Appx. 122, 127 (W.Va.2001) (conflicting opinions of plaintiffs’ medical experts was insufficient to strike testimony where the experts’ overall opinions agreed that the defendant was in some way negligent). Additionally, all of the expert testimony was given prior to the motion for summary judgment. See Secrest, 707 F.3d at 195 (finding likelihood that affidavit provided solely to gain a litigation advantage very likely where contradictions arose only after a summary judgment). Accordingly, Objection Nos. 10, 11, and 12 are OVERRULED.

D. Unconscionability Claim

CashCall moves for summary judgment on Plaintiffs’ unconscionability claim on the grounds that Plaintiffs cannot establish that CashCall’s interest rates on its unsecured subprime loans were unconscionable as a matter of law. Unc. Mot. at 15-16. Plaintiffs argue that the unconscionability claim is not appropriate for resolution on summary judgment because there exist numerous genuine issues of fact that can only be resolved at trial. Pl. Opp’n Unc. Mot. at 1.

1. Legal Standard

“Under California law, a contract provision is unenforceable due to uncon-scionability only if it is both procedurally and substantively unconscionable.” Shroyer v. New Cingular Wireless Services, Inc., 498 F.3d 976, 981 (9th Cir.2007) (citing Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1280 (9th Cir.2006)).

Procedural unconscionability focuses on the elements of oppression and surprise. Wayne v. Staples, Inc., 135 Cal. App.4th 466, 555, 37 Cal.Rptr.3d 544 (2006) (citing Discover Bank v. Sup.Ct., 36 Cal.4th 148, 160, 30 Cal.Rptr.3d 76, 113 P.3d 1100 (2005)). To establish oppression, there must be a showing that an inequality of bargaining power existed that resulted in “no real negotiation and an absence of meaningful choice.” Nagrampa, 469 F.3d at 1280 (citing Flores v. Transamerica HomeFirst, Inc., 93 Cal. App.4th 846, 853, 113 Cal.Rptr.2d 376 (2001)). “[S]urprise involves the extent to *1099which the supposedly agreed-upon terms are hidden in a prolix printed form drafted by the party seeking to enforce them.” Id.

Substantive unconscionability, on the other hand, “refers to an overly harsh allocation of risks or costs which is not justified by the circumstances under which the contract was made.” Carboni v. Arrospide, 2 Cal.App.4th 76, 83, 2 Cal. Rptr.2d 845 (1991) (citing A & M Produce Co. v. FMC Corp., 135 Cal.App.3d 473, 487, 186 Cal.Rptr. 114 (1982)). Substantive un-conscionability “focuses on the terms of the agreement and whether those terms are so one-sided as to shock the conscience.” Davis v. O’Melveny & Myers, 485 F.3d 1066, 1075 (9th Cir.2007) (citing Soltani v. W. & S. Life Ins. Co., 258 F.3d 1038, 1042 (9th Cir.2001)) (internal quotations omitted).

Both procedural and substantive unconscionability must be present before a contract or clause will be held unenforceable, but they need not be present to the same degree and are evaluated on a sliding scale. Armendariz v. Fdn. Health Psychcare Svcs., Inc., 24 Cal.4th 83, 114, 99 Cal.Rptr.2d 745, 6 P.3d 669 (2000) (“the more substantively oppressive the contract term, the less evidence of procedural un-conscionability is required to come to the conclusion that the term is unenforceable, and vice versa”). When it appears a contract provision may be unconscionable, “the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose, and effect to aid the court in making the determination.” Cal. Civ.Code § 1670.5, subd. (b); Gutierrez v. Autowest, Inc., 114 Cal. App.4th 77, 89, 7 Cal.Rptr.3d 267 (2003).

2. Whether Plaintiffs Have Established Procedural Unconscionability

The threshold inquiry in California’s unconscionability analysis is whether the agreement is adhesive. Nagrampa, 469 F.3d at 1281 (quoting Armendariz, 24 Cal.4th at 113, 99 Cal.Rptr .2d 745, 6 P.3d 669). A contract of adhesion is “a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.” Armendariz, 24 Cal.4th at 113, 99 Cal.Rptr .2d 745, 6 P.3d 669. Absent unusual circumstances, evidence that one party has overwhelming bargaining power, drafts the contract, and presents it on a take-it-or-leave-it basis is sufficient to demonstrate procedural un-conscionability and require the court to reach the question of substantive uncon-scionability, even if the other party has market alternatives. Lona v. Citibank, N.A., 202 Cal.App.4th 89, 109, 134 Cal. Rptr.3d 622 (2011) (citing Gatton v. T-Mobile USA, 152 Cal.App.4th 571, 586, 61 Cal.Rptr.3d 344 (2007)). Thus, while not all contracts of adhesion are unconscionable, courts have found that adhesion contracts satisfy the requirement of procedural unconscionability. Gentry v. Superior Court, 42 Cal.4th 443, 469, 64 Cal.Rptr.3d 773, 165 P.3d 556 (2007) (contracts of adhesion are “indispensable facts of modern life that are generally enforced ...; [however, they] contain a degree of procedural un-conscionability even without any notable surprises.”) (internal citations omitted)). Here, CashCall’s promissory note is a contract of adhesion, due to the unequal bargaining power between CashCall and the Class Members, the standard fprm of the Promissory Note drafted by CashCall, and the fact that Class Members were required to accept the interest rate and loan terms in order to secure a loan. See Nagrampa, 469 F.3d at 1281.

CashCall argues that California law requires more than a finding of adhe*1100sion to establish procedural unconsciona-bility. Unc. Mot. at 17 (citing Crippen v. Central Valley RV Outlet, Inc., 124 Cal. App.4th 1159, 1165, 22 Cal.Rptr.3d 189 (2005) and Morris v. Redwood Empire Bancorp, 128 Cal.App.4th 1305, 1320, 1323, 27 Cal.Rptr.3d 797 (2005)). “Although adhesion contracts often are procedurally oppressive, this is not always the case.” Morris, 128 Cal.App.4th at 1320, 27 Cal. Rptr.3d 797 '(citing Cal. Grocers Ass’n v. Bank of America, 22 Cal.App.4th 205, 214, 27 Cal.Rptr.2d 396 (1994) (recognizing adhesiveness “is not per se oppressive.”). While courts “recognize significant overlap” between the concepts of adhesion and oppression, they are not identical. Dean Witter Reynolds, Inc. v. Sup. Ct., 211 Cal. App.3d 758, 769, 259 Cal.Rptr. 789 (1989). “Oppression refers not only to an absence of power to negotiate the terms of a contract, but also to the absence of reasonable market alternatives.” Id. CashCall argues that Plaintiffs cannot prove that Class members had no meaningful choice but to accept the CashCall loans, and thus cannot establish that the contracts were oppressive. Unc. Mot. at 18 (citing Kinney v. U.S. Healthcare Svcs., Inc., 70 Cal.App.4th 1322, 1329, 83 Cal.Rptr.2d 348 (1999) (to meet oppression element, claimant must prove the absence of a meaningful choice); Gentry, 42 Cal.4th at 470, 64 Cal.Rptr.3d 773, 165 P.3d 556 (“freedom to choose whether or not to enter into a contract of adhesion is a factor weighing against a finding of procedural unconscionability”).

CashCall argues that the availability of alternative sources of subprime credit precludes a finding of procedural unconscionability. Unc. Mot. at 18 (citing Dean Witter, 211 Cal.App.3d at 768-72, 259 Cal. Rptr. 789). However, there is conflicting evidence as to whether borrowers did have a meaningful choice in deciding whether to take out a CashCall loan due to the lack of other unsecured subprime credit options. The availability of market alternatives is relevant to the existence, and degree, of oppression, but is not dispositive. Lhotka v. Geographic Expeditions, Inc., 181 Cal. App.4th 816, 823-24, 104 Cal.Rptr.3d 844 (2010) (citing Szetela v. Discover Bank, 97 Cal.App.4th 1094, 1100, 118 Cal.Rptr.2d 862 (2002); Laster v. T-Mobile USA, Inc., 407 F.Supp.2d 1181, 1188 & fn. 1 (S.D.Cal. 2005)). Thus, while Plaintiffs can establish some degree of procedural unconscionability, there is a factual dispute precluding the Court from determining whether there is a higher degree of procedural unconsciona-bility based on the availability of meaningful choice.

3. Whether Plaintiffs Have Established Substantive Unconscionability

Substantive unconscionability refers to an overly harsh allocation of risks or costs which is not justified by the circumstances under which the contract was made. Carboni, 2 Cal.App.4th at 83, 2 Cal.Rptr.2d 845 (citing A & M Produce, 135 Cal.App.3d at 487, 186 Cal.Rptr. 114.) ‘Where a party with superior bargaining power has imposed contractual terms on another, courts must carefully assess claims that one or more of these provisions are one-sided and unreasonable.” Gutierrez, 114 Cal.App.4th at 88, 7 Cal.Rptr.3d 267 (citations omitted). The focus is on whether the terms of the agreement are such an extreme depárture from common business practice, and so one-sided as to “shock the conscience.” Belton v. Comcast Cable Holdings, LLC, 151 Cal.App.4th 1224, 1247, 60 Cal.Rptr.3d 631 (2007) (citing Morris, 128 Cal.App.4th at 1323, 27 Cal.Rptr.3d 797; American Software, Inc. v. Ali, 46 Cal.App.4th 1386, 1391-93, 54 Cal.Rptr.2d 477 (1996)). When a party alleges that the price for a good or service is unconscionable, California courts look to a number of factors, including: (1) compar-

*1101ison to the price other similarly situated consumers actually pay in similar transactions, (2) whether the seller’s costs justify the price, (3) the true value of the good or service, and (4) whether the defendant’s profits are excessive. See Perdue v. Crocker Nat’l Bank, 38 Cal.3d 913, 927-28, 216 Cal.Rptr. 345, 702 P.2d 503 (1985); Wayne, 135 Cal.App.4th at 481, 37 Cal. Rptr.3d 544; Morris, 128 Cal.App.4th at 1323, 27 Cal.Rptr.3d 797.

CashCall argues that Plaintiffs cannot establish that the loans were substantively unconscionable because they have established that their interest rates and loan terms are justified by the risks of subprime lending. Unc. Mot. at 3. Plaintiffs contend that there exist a number of material issues with respect to whether the price of credit is substantively unconscionable. Particularly, Plaintiffs contend that-the loan terms are oppressive on their face because they combine a high rate of interest with a lengthy repayment period, in which borrowers must repay interest prior to principal. Unc. Opp’n 9-21. Applying the price comparison factors set forth in Perdue, the Court finds that there are a number of factual disputes precluding a finding of substantive unconscionability on summary judgment. 38 Cal.3d at 927-28, 216 Cal.Rptr. 345, 702 P.2d 503.

a. There Are Triable Issues of Fact Regarding Price Comparability

“Allegations that the price exceeds cost or fair value, standing alone, do not state a cause of action.” Morris, 128 Cal.App.4th at 1323, 27 Cal.Rptr.3d 797 (citing Perdue, 38 Cal.3d at 926-27, 216 Cal.Rptr. 345, 702 P.2d 503) (citations omitted). Instead, courts look to “the basis and justification for the price, including ‘the price actually being paid by ... other similarly situated consumers in a similar transaction.’ ” Id. “While it is unlikely that a court would find a price set by freely competitive market to be unconscionable, the market price set by an oligopoly14 should not be immune from scrutiny.” Id. CashCall contends that Plaintiffs cannot show that its interest rates ’are unconscionable because they cannot show that CashCall’s interest rates compare unfavorably to “the price actually being paid by other similarly situated consumers in a similar transaction.” See Wayne, 135 Cal.App.4th at 481, 37 Cal. Rptr.3d 544. CashCall defines this comparison as between rates paid by borrowers for all subprime consumer loans, regardless of their terms or length. Unc. Mot. at 22. CashCall contends that their rates compared favorably to other sub-prime products, such as auto title loans, payday loans, tax refund loans, and pawnshop loans, which carry higher APRs, shorter maturity dates, and require some form of security. Plaintiffs, on the other hand, argue that this is not a relevant comparison because there are significant differences between CashCall’s loans and other subprime loans. Plaintiffs’ economic and financial experts maintain that Cash-Call’s loans differed markedly from other subprime loans in terms and function. MacFarlane Rpt. at ¶ 81-89. Since Cash-Call’s product was unique and faced little or no competition, Plaintiffs argue that the interest rates do not represent the price set by a freely competitive market. Id. The Court agrees that this creates a factual dispute as to whether CashCall’s products were comparable to other subprime products.15

*1102 b. Whether Costs Justify the Price

CashCall maintains that its interest rates are justified by the risk inherent in extending credit to subprime borrowers. Unc. Mot. at 2-3. CashCall’s high origination and servicing costs, high costs of funds, and high default rate also require CashCall to charge high interest rates to achieve its target profitability. Id. Plaintiffs maintain that the risk is largely self-imposed by CashCall because it combines its high interest rate with a 42-month repayment period that makes the loans unaffordable to most borrowers. Unc. Opp’n at 9-11.

“[A] contract is largely an allocation of risks between the parties, and therefore that a contractual term is substantively suspect if it reallocates the risks of the bargain in an objectively unreasonable or unexpected manner.” A & M Produce Co., 135 Cal.App.3d at 487, 186 Cal. Rptr. 114 (citations omitted). The type of risk allocation generally found to be unconscionable is that where the stronger party shifts the risk of its own negligence or the defectiveness of its product onto the weaker party. Id. at 493, 186 Cal.Rptr. 114. “If there is a type of risk allocation that should be subjected to special scrutiny, it is probably the shifting to one party of a risk that only the other party can avoid.” Id. (citation omitted).

Plaintiffs contend that CashCall unfairly allocates its costs and risks to borrowers by aggressively marketing its product and lending to a large number of borrowers who cannot afford to pay the loan back. Unc. Opp’n at 15 (citing Seiling Decl. in Supp. of Unc. Mot. (“MacFarlane Rpt.”) at 14-23, Dkt. No. 172-1). Plaintiffs’ lead expert on CashCall’s business model, Bruce McFarlane, found that by pursuing a high-volume, unsecured lending model targeted at higher risk subprime borrowers, CashCall incurs higher expenses in the form of advertising costs, cost of funds and default costs. MacFarlane Rpt. ¶ 99; see also Pl. Unc. Stmt. No. 25, Dkt. No. 196. This ultimately increases the APR CashCall must charge borrowers in order to achieve its targeted profitability. Id. Plaintiffs claim that it is the high interest rate, coupled with the lengthy repayment term, that unfairly increases the risk that borrowers will not be able to repay. Levi-tin Rpt. ¶ 99 (CashCall’s “sweatbox model” of lending is unfairly one-sided because lender still makes profit on defaults so long as they occur after the 15 or 16 month mark).

CashCall argues that its high default rates are an inherent risk of lending to subprime borrowers. Unc. Reply at 8. Given the undisputed 45% default rate, CashCall argues that it does not unreasonably shift the risk of default to borrowers. See Shadoan v. World Savings & Loan Assn., 219 Cal.App.3d 97, 106, 268 Cal. Rptr. 207 (1990) (finding it to be “less disturbing and less unexpected that a lender would shift the risk of market fluctuation to the party using the lender’s money.”). At 96% interest, it takes CashCall nine months to recover its principal loan amount of $2,600 and 14 months to recover its costs, which comprise on average 58% of the loan amount. McFarlane Rpt., ¶ 81. At 135% interest, it takes CashCall 12 *1103months to recover its principal loan amount of $2,600 and 20 months to recover its costs. Id. The average life of the loans is 20 months. Pl. Unc. Stmt. No. 27, Dkt. No. 196. Meanwhile, 45% of borrowers default on their loans. Id. Only a small number of borrowers take the loans to maturity. Id. Plaintiffs also do not factor in other impacts on CashCall’s profitability loss, such as a high prepayment rate of 45-50%. CashCall argues that there is thus no showing that they created a risk of default other than that inherent in making unsecured loans to subprime borrowers.16

CashCall also argues that cases of price unconscionability generally involve high price to value disparities. Unc. Opp’n at 16 (citing California Grocers Assn, 22 Cal. App.4th at 216, 27 Cal.Rptr.2d 396.) By contrast, the cost of a signature loan is approximately 3.5 to 4.5 times the amount borrowed, which is not an unusually high price to value disparity. Id. (citing Perdue, 38 Cal.3d at 928, 216 Cal.Rptr. 345, 702 P.2d 503 (profit estimates of 600 and 2,000 percent for NSF fee “indicate the need for further inquiry”)); Carboni, 2 Cal.App.4th at 83-84, 2 Cal.Rptr.2d 845 (interest rate approximately 10 times the prevailing rate); Jones v. Star Credit Corp., 59 Misc.2d 189, 298 N.Y.S.2d 264, 267 (1969) (sale of freezer on credit at triple its retail value plus credit charges exceeding value by more than $100)).

c. The Value of the Loans to Consumers

In determining whether a price term is unconscionable, courts also consider the value being conferred upon the plaintiff. Morris, 128 Cal.App.4th at 1324, 27 Cal. Rptr.3d 797 (citing Carboni, 2 Cal.App.4th at 84, 2 Cal.Rptr.2d 845.) Plaintiffs contend that CashCall’s loans are harmful to consumers due to the inordinately high loan costs during the life of the loan.17 Unc. Opp’n at 15 (citing Ex. 17 (Saunders Decl.) at p. 9). CashCall counters that the loans provided a legitimate benefit to borrowers because they did not require security, charged simple interest with no hidden fees or prepayment penalty, and allowed ample time for repayment where necessary. Unc. Mot. at 22. The Court finds there is a triable issue of fact with respect to whether CashCall’s loans provided value to the Class Members. • Although there was evidence that the loans provided some value to borrowers by providing access to unsecured credit despite low credit scores, there was also evidence of harm due to the high cost of the loans. Levy Decl. in Supp. of Unc. Opp’n, Ex. 17 (Saunders Rpt.), p. 10. Borrowers paid a considerable amount for these loans both in terms of the monthly expenses and the total amount repaid. Id. It is undisputed that 45% of borrowers were unable to afford the cost of the loans after taking them out. Pl. Unc. Stmt., No. 41, Dkt. *1104No. 196. Only a small percentage of borrowers in the Class paid the loans within one month of origination, thus avoiding paying interest. Id., No. 9. Accordingly, there is a triable issue as to whether the value of the loans outweighed the harm.

d. Whether CashCall’s Profits Are Excessive

Plaintiffs argue that CashCall made an excessive profit on its loans. Une. Opp’n at 12. CashCall’s targeted profitability was 15-20%, although it is possible Cash-Call made as much as 40%, or possibly 53% on some loans. Id. at 9. There is no evidence that these amounts were exorbitant such that they would support a finding of unconscionability. A 100% markup may be “generous,” but “is wholly within the range of commonly accepted notions of fair profitability,” and substantially higher profit levels are necessary before even considering whether substantive uncon-scionability may exist. Cal. Grocers Ass’n, 22 Cal.App.4th at 216, 27 Cal.Rptr.2d 396; Wayne, 135 Cal.App.4th at 473, 37 Cal. Rptr.3d 544 (100% markup on declared value coverage-did not violate UCL). Given that the highest estimated profit on these loans was 53%, Plaintiffs have failed to establish that CashCall’s profits were excessive.

E. Conclusion

Unconscionability is question of law to be decided by the Court. American Software, Inc. v. Ali, 46 Cal.App.4th at 1391, 54 Cal.Rptr.2d 477. However, “numerous factual inquiries bear upon that question.” Marin Storage & Trucking, Inc. v. Benco Contracting and Eng’g, Inc., 89 Cal.App.4th 1042, 1055, 107 Cal.Rptr.2d 645 (2001). Only where “the extrinsic evidence [is] undisputed” will the court be able to determine unconscionability absent predicate findings of fact. Id. In addition, because there is a “sliding scale” relationship between procedural and substantive unconscionability, disputed questions of fact with respect to either the procedural or substantive aspects of the contract will preclude a legal determination of uncon-scionability. McCollum v. XCare.net, Inc., 212 F.Supp.2d 1142, 1150 (N.D.Cal.2002) (citing Ellis v. McKinnon Broad. Co., 18 Cal.App.4th 1796, 1803, 23 Cal.Rptr.2d 80 (1993)). In this case, there are disputed questions of fact with regard to both the procedural and substantive unconscionability inquiries. Accordingly, the Court DENIES CashCall’s Motion for Summary Judgment.18

CONCLUSION

Based on the analysis above, the Court ORDERS as follows:

1) CashCall’s Motion for Partial Summary Judgment on the Conditioning Claim and Actual Damages (Dkt. No. 159) is DENIED.

2) CashCall’s Motion on the Uncon-scionability Claim and accompanying UCL Claim (Dkt. No. 166) is DENIED.

3) Plaintiffs’ Cross-Motion on the Conditioning Claim and UCL Claim (Dkt. No. 175) is GRANTED.

IT IS SO ORDERED.

Re: Dkt. No. 234

ORDER RE: MOTION FOR RECONSIDERATION

MARIA-ELENA JAMES, United States Magistrate Judge

I. INTRODUCTION

Pending before the Court is Defendant CashCall, Ine.’s (“CashCall”) Motion for Reconsideration pursuant to Civil Local Rule 7-9. Dkt. No. 234. Plaintiffs have filed an Opposition (Dkt. No. 235) and Defendant has filed a Reply (Dkt. No. 238). The Court finds this matter suitable for disposition without' oral argument and VACATES the October 30, 2014 hearing. See Fed. R. Civ. P. 78(b); Civil L.R. 7-1(b). Having considered the parties’ positions, relevant legal authority, and the record in this case, the Court GRANTS Defendant’s Motion for the reasons set forth below.

II. BACKGROUND

On July 1, 2008, Plaintiffs initiated this class action lawsuit against CashCall, alleging violations of California’s consumer protection laws.1 Dkt. No. 1. On November 1, 2011, the Court granted class certification in this matter. On July 30, 2014, the Court ruled on: (1) CashCall’s motion for partial summary judgment as to Plaintiffs’ First and Fifth Causes of Action; (2) Plaintiffs’ motion for summary judgment as to two of their claims; and (3) Cash-Call’s motion for summary judgment as to Plaintiffs’ Fourth Cause of Action alleging violation of California’s Unfair Competition Law (“UCL”) based on unconscionable loan terms (the “Unconscionability *1107Claim”). Dkt. No. 220. The Court denied both of CashCall’s motions, and granted Plaintiffs’ motion. Id.

On August 08, 2014, CashCall filed a motion for leave to file a motion for reconsideration as to the Court’s denial of its motion for summary judgment on the Un-conscionability Claim. Dkt. No. 222. CashCall argued that reconsideration was appropriate due to a failure to consider dispositive legal arguments. Specifically CashCall contended that the Court failed to address the threshold question of whether Plaintiffs could assert an uncon-scionability claim under the UCL at all. Id. On August 20, 2014, the Court ruled on CashCall’s motion, granting leave to file. Dkt. No. 223.

III. LEGAL STANDARD

A district court has inherent jurisdiction to modify, alter, or revoke a prior order. United States v. Martin, 226 F.3d 1042, 1049 (9th Cir.2000). “Reconsideration [of a prior order] is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993). Reconsideration should be used conservatively, because it is an “extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir.2003); see also Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.2009) (“[A] motion for reconsideration should not be granted, absent highly unusual circumstances (internal citation and quotation omitted). A motion for reconsideration “ ‘may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised pri- or’ ” in the litigation. Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n. 5, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008); see also Marlyn Nutraceuticals, 571 F.3d at 880 (“A motion for reconsideration may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation.”) (internal citation and quotation omitted).

In the Northern District of California, no motion for reconsideration may be brought without leave of court. Civil L.R. 7-9(a). Under Civil Local Rule 7-9, the moving party must specifically show: (1) that at the time of the motion for leave, a material difference in fact or law exists from that which was presented to the court before entry of the interlocutory order for which the reconsideration is sought, and that in the exercise of reasonable diligence the party applying for reconsideration did not know such fact or law at the time of the interlocutory order; or (2) the emergence of new material facts or a change of law occurring after the time of such order; or (3) a manifest failure by the court to consider material facts which were presented to the court before such interlocutory order. Civil L.R. 7-9(b).

IV. DISCUSSION

CashCall argues that the Court should reconsider its prior Order denying summary judgment as to the Unconscionability Claim due to the Court’s failure to consider dispositive legal arguments when ruling on the summary judgment motion. Mot. at 3. CashCall contends that the UCL cannot be used as a basis for Plaintiffs’ Unconscionability Claim because ruling on that claim would impermissibly require the Court to regulate economic policy. Id. at 1. Having carefully reviewed the papers submitted, the Court agrees that this *1108threshold question should have been addressed prior to assessing the merits of Plaintiffs’ Unconscionability Claim.

Plaintiffs’ Unconscionability Claim alleges that CashCall violated the UCL by making loans on unconscionable terms. Am. Compl. ¶¶ 68-89. Plaintiffs allege that CashCall’s loans were unconscionable, in violation of California Financial Code section 22302, and California Civil Code section 1670.5.2 Id. ¶¶ 84-85. Through the Unconscionability Claim,- Plaintiffs seek to enjoin CashCall from the practice of making unconscionable loans, and to obtain restitution. Id. ¶89..

California Civil Code section 1670.5 codifies the unconscionability doctrine and “provides that a court may refuse to enforce an unconscionable contract.” Koehl v. Verio, Inc., 142 Cal.App.4th 1313, 1338, 48 Cal.Rptr.3d 749 (2006) (citation and internal quotation marks omitted). However, “that statute does not in itself create an affirmative cause of action,” id. rather, it “codifies the defense of unconscionability,” California Grocers Ass’n v. Bank of Am., 22 Cal.App.4th 205, 217, 27 Cal.Rptr.2d 396 (1994); see also Nava v. VirtualBank, 2008 WL 2873406, at * 10 (E.D.Cal. July 16, 2008) (noting that section 1670.5 merely codifies the defense of unconscionability, and holding that “plaintiffs allegation that defendants breached the Note because the Note was unconscionable does not create a recognized claim under California law”).

Claims under the UCL provide limited remedies; plaintiffs may only seek injunctive relief and restitution. Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134, 1147, 1152, 131 Cal.Rptr.2d 29, 63 P.3d 937 (2003). “[I]n the context of the UCL, ‘restitution’ is limited to the return of property or funds in which the plaintiff has an ownership interest (or is claiming through someone with an ownership interest).” Madrid v. Perot Sys. Corp., 130 Cal.App.4th 440, 453, 30 Cal. Rptr.3d 210 (2005). If a party cannot state a viable claim for restitution or in-junctive relief, then that party’s UCL claim is likewise not viable. Id. at 467, 30 Cal.Rptr.3d 210 (stating, in the context of affirming demurrers, that “[s]ince plaintiff failed to present a viable claim for restitution or injunctive relief ... plaintiffs complaint failed to state a viable UCL claim”). In other words, if a party is not entitled to the remedies it seeks, then its underlying claim must fail.

Only one California court has ever found a challenged interest rate unconscionable. See Carboni v. Arrospide, 2 Cal.App.4th 76, 2 Cal.Rptr.2d 845 (1991). In Carboni the defendant had signed a $4,000 note in favor of the plaintiff, at a 200% interest rate, secured by a deed of trust. Id. at 80, 2 Cal.Rptr.2d 845. When the defendant failed to make payments, the plaintiff filed a complaint for judicial foreclosure. Id. The defendant asserted unconscionability as a defense to the enforcement of the note with its 200% interest rate. The trial court found that the 200% interest rate was unconscionable, and permitted interest on the principal sum at a rate of 24% per annum, up to that date. Id. The court of appeal affirmed. Id. at 87, 2 Cal.Rptr.2d 845. Thus, Carboni presented the classic situation in which a party asserted uncon-scionability as a defense to the enforcement of a contract and the court was *1109therefore able to fashion a remedy avoiding the unconscionable provision.

More commonly, California courts have held that the judicial alteration of interest rates constitutes impermissible economic policy-making. See, e.g:, California Grocers, 22 Cal.App.4th at 217, 27 Cal.Rptr.2d 396. In California Grocers, the trial court had found that a bank’s check-processing fee was unconscionable and issued an injunction that prospectively slashed that fee nearly in half for a period of ten years. Id. The court of appeal held that such an injunction was “an inappropriate exercise of judicial authority.” Id. The court first noted that unconscionability is traditionally only available as a defense, and not an affirmative cause of action. Id. Although the court did not decide whether uncon-scionability could be used affirmatively under the UCL, the court noted that the legislature could have—but did not—expressly authorize its affirmative use in the UCL, in contrast to other consumer protection statutes. Id.

The appellate court then held that judicial oversight of bank fees was not the proper method of ensuring that such fees were reasonable. Id. at 218, 27 Cal. Rptr.2d 396. The court noted that the case squarely implicated economic policy— that is, whether the bank’s fees were too high — and stated that “[i]t is primarily a legislative and not a judicial function to determine economic policy.” Id. (citation and internal quotation marks omitted). Thus, the court of appeal reversed the trial court’s grant of the injunction. Id. at 221

The holding in California Grocers is consistent with the general principle that courts should not intrude in matters of economic policy. As the California Supreme Court has stated: “If the Legislature has permitted certain conduct or considered a situation and concluded no action should lie, courts may not override that determination.” Cel-Tech Commc’ns v. Los Angeles Cellular Tel. Co., 20 Cal.4th 163, 182, 83 Cal.Rptr.2d 548, 973 P.2d 527 (1999). California courts have repeatedly held that courts should not intrude upon matters that are properly the province of the legislative branch. See, e.g., Harris v. Capital Growth Inv., 52 Cal.3d 1142, 1166, 278 Cal.Rptr. 614, 805 P.2d 873 (1991) (stating that judicial interference in economic policy matters would lead to myriad trials “with no prospect of certainty or stability in the respective rights and duties of the parties”); Lazzareschi Inc. Co. v. San Francisco Fed. Sav. & Loan Ass’n, 22 Cal.App.3d 303, 311, 99 Cal.Rptr. 417 (1971) (stating that “institutions, which lend vast sums of money should be informed, not by judgments after the fact on a case-by-case basis, but by laws or regulations which are in existence in advance of the undertaking to execute loans”).

With these guiding principles in mind, the Court finds that Plaintiffs’ Un-conscionability Claim fails as a matter of law. Even if Plaintiffs were able to prove that the challenged loans were unconscionable, the Court could provide no remedy without impermissibly intruding upon the legislature’s province. The Court could not fashion a restitution award without deciding the point at which CashCall’s interest rates crossed the line into uncon-scionability. The California Legislature long ago made the policy decision not to cap interest rates on loans exceeding $2,500. It is not the function of this Court to second-guess that decision and provide an interest rate cap where the legislative branch expressly chose not to. See Cel-Tech Commc’ns, 20 Cal.4th at 182, 83 Cal. Rptr.2d 548, 973 P.2d 527. The only other possible remedy under the UCL-an injunction-suffers from the same flaw. The Court would need to decide what interest rate is permissible, where the Legislature *1110expressly determined that this matter is better left to market forces. A less detailed injunction, for example, enjoining CashCall from charging unconscionable interest rates, would be impermissibly vague. See McCormack v. Hiedeman, 694 F.3d 1004, 1019 (9th Cir.2012) (“A district court abuses its discretion by issuing an overbroad injunction.”) (citation and internal quotation marks omitted). Because the Court cannot provide a remedy without overstepping the bounds of judicial authority, Plaintiffs’ Unconscionability Claim is not viable as a matter of law.

Plaintiffs concede that the Court lacks the power to set after — -the fact interest rates, but argue that the Court need not do so to award restitution. Opp’n at 12-17. Plaintiffs contend that the Court can simply consider equitable factors and award the amount of restitution it deems fair, even up to returning to Plaintiffs the entire interest paid. Id. at 14. However, any consideration of what a “fair” result would be in this case would require the Court to decide what it believes the appropriate interest rate would have been, even down to no interest at all. As set forth above, this decision is better left to the legislative branch.

The Court finds that Plaintiffs’ Uncon-scionability Claim is not viable as a matter of law, and therefore GRANTS CashCall’s Motion for Reconsideration.

V. CONCLUSION

Based on the analysis above, the Court GRANTS the Motion for Reconsideration. CashCall’s Motion for' Summary Judgment as to Plaintiffs’ Fourth Cause of Action is GRANTED.

IT IS SO ORDERED.

OPINION

LASTER, Vice Chancellor.

Defendant National Financial, LLC (“National”) is a consumer finance company that operates under the trade name Loan Till Payday. In May 2013, National loaned $200 to plaintiff Gloria James (the “Disputed Loan”). National described the loan product as a “Flex Pay Loan.” In substance, it was a one-year, non-amortizing, unsecured cash advance.

The terms of the Disputed Loan called for James to make twenty-six, bi-weekly, interest-only payments, of $60, followed by a twenty-seventh payment comprising both interest of $60 and the original principal of $200. The total repayments added up to $1,820, representing a cost of credit of $1,620. According to the loan document that National provided to James, the annual percentage rate (“APR”) for the Disputed Loan was 838.45%.

James defaulted. After National rejected her request for a workout agreement, she filed this action seeking to rescind the Disputed Loan. She proved at trial that the Disputed Loan was unconscionable, resulting in an order of rescission. She also proved that National violated the federal Truth in Lending Act, resulting in an award of statutory damages plus attorneys fees and costs.'

I. FACTUAL BACKGROUND

Trial took place on September 21, 22, and 24, 2015. The parties submitted seventy-two exhibits, introduced live testimony from six fact witnesses, called two expert witnesses, and lodged five depositions. The following facts were proven by a preponderance of the evidence.

A. Hardworking But Poor

James is a resident of Wilmington, Delaware. From 2007 through 2014, James worked in the housekeeping department at the Hotel DuPont. In May 2013, when she obtained the Disputed Loan, James earned $11.83 per hour. As a part-time employee, her hours varied. On average, after taxes, James took home approximately $1,100 per month.

James’ annualized earnings amounted to roughly 115% of the federal poverty line, placing her among what scholars call the working poor.1 Contrary to pernicious stereotypes of the poor as lazy, many work extremely hard.2 James exemplified this attribute. She got her first job at age thirteen and has been employed more or less continuously ever since. Her jobs have included stints in restaurants, at a gas station, as a dental assistant, as a store clerk, and at a metal plating company. In *8042007, she obtained her position with the Hotel DuPont. She was laid off on December 31, 2014, when the hotel reduced its part-time staff.

B, James’ Use Of Credit

James is undereducated and financially unsophisticated. She dropped out of school in the tenth grade because of problems at home. Approximately ten years later, she obtained her GED.

Around the same time she obtained her position with the Hotel DuPont, James attempted to improve her skills by enrolling in a nine-month course on- medical billing and coding. For seven months, she worked from 8:00 a.m. to 4:00 p.m. at the hotel, then attended classes starting at 5:00 p.m. She was also taking care of her school-age daughter. Two months before the end of the program, the schedule became too much and she dropped out. James thought she received a grant to attend the program, but after dropping out she learned she actually had taken out á student loan. She eventually repaid it.

-James does not have a savings account or a checking account. She has no savings. She uses, a Nexis card, which is a pre-paid VISA card.

In May 2013, when she took out the Disputed Loan, James had been using high-interest, unsecured loans for four to five years. She obtained loans from several finance companies. She used the loans for essential needs, such as groceries or rent. On at least one occasion, she used a loan from one provider to pay off an outstanding loan from another provider.

Before the, Disputed Loan, James had obtained, five prior loans from National. James' believed that she repaid those loans in one or two payments. The payment history for the loans shows otherwise.

For her first loan from National, James borrowed $100 on September 1, 2011. She repaid a total of $205 by making five payments over the course of two months.

• 9/9/11 — Payment of $30.00.

• 9/21/11 — Payment of $80.00.

• 10/7/11 — Payment of $15.00.

• 10/21/11 — Payment of $15.00.

• 11/3/11 — Payment of $65.00.

For her second loan, James borrowed $100 on August 22, 2012. -She again repaid a total of $205, this time by making four payments over the course of two months.

• 9/7/12 — Payment of $30.00.

• 9/21/12 — Payment of $30.00.

• 10/5/12 — Payment of $80.00.

• 10/19/12 — Payment of $65.00.

For her third loan, James borrowed $150 on October 31, 2012, less than two weeks after repaying her second loan. She repaid a total of $252 by making three payments over the course of two months,

• 11/16/12 — Payment of $100.00.

.• 11/30/12 — Payment of $28.50.

• 12/14/12 — Payment of $123.50.

For her fourth loan, James borrowed $100 on December 20, 2012, one week after repaying her third loan. She repaid it the next day by making a single payment of $102. The prompt repayment suggests that James refinanced her loan through another provider.

For her fifth loan, James borrowed $200 on December 27, 2012, less than one week after repaying her fourth loan. James failed to make the second payment, failed to make the fourth payment, and finally repaid the loan two months later. Her repayments totaled $393.

• 1/11/13 — Payment of $60.00.

• 1/24/13 — Attempted debit of $60 declined.

*805• 1/29/13 — Attempted debit of $60 declined.

• 2/8/13 — Payment of $73.00.

• 2/22/13 — Attempted debit of $60 declined.

• 2/27/13 — Payment of $260,00.

Despite James’ difficulty in repaying her fifth loan, National sent her text messages soliciting her interest in another loan, A text message on March 29, 2013, stated, “Loan Til [sic] Payday welcomes you with open arms. If you ever need a loan again we want to be your source! :)” A text message on April 5,2013, stated, “Loan Til [sic] Payday misses you! Call NOW and receive $20 off your first payment.”

C. The Disputed Loan

On May 7, 2013, James needed money for food and rent. She went to National’s “Loan Till Payday” storefront operation at 1935 West Fourth Street in Wilmington, Delaware. At the time, National operated fourteen stores in Delaware.

James dealt with Ed Reilly, National’s general manager. In that capacity, Reilly oversaw National’s business operations and supervised its loan approvals. He also filled in at stores from time to time. He happened to be working in the store at 1935 West Fourth • Street when James came in for a loan.

James told Reilly that she wanted to borrow $200. Reilly looked up James in the computer program that National uses to track its customers and their loans, which is known as the “Payday Loan Manager.” It has a main page for each customer that provides identifying information and the account’s status. It also has tabs that allow the user to review information about current or past loans, including the payment history, and to enter and review notes about the loans.

James was a customer in good standing, meaning that she did not have to fill out a new loan application. She provided Reilly with her Nexis card, two recent paystubs, and her driver’s.license.

Using the internet, Reilly pulled up James’ Nexis card' account history for the preceding sixty days and printed out a copy. It showed that James started the period with a positive balance on her card of $384.70. During the sixty days, she received direct deposit credits totaling $2,216.58 and incurred debits totaling $2,594.38, for negative cash flow of $377.80. Her ending balance was $6.90, and she had a pending authorization for that amount. Her available cash was zero.

During the sixty day period, James’ Nexis card was declined fourteen times. Reilly testified at trial that if someone’s transaction history showed three or four declines, then they probably should not receive a loan.

After reviewing her transaction history, Reilly offered to loan James $400 rather than $200. The $400 would have represented almost 40% of James’ after-tax monthly income. Reilly offered that amount because National has a policy of loaning borrowers up to 40% of their after-tax monthly income, regardless of their other expenditures. National only checks to “make sure they’re positive on payday.” Tr. 244 (Vazquez); see Tr. 472 (Reilly) (“[S]he started with a surplus.”).

James declined the offer of $400. She only wanted $200, and she did not believe she could repay $400.

James thought she was getting a payday loan with a block rate of “$30 on $100.” As James understood it, this meant, she would pay $60 to borrow the $200.

Lenders developed the block rate concept to describe the finance charge for a traditional payday loan, which was a sin*806gle-payment loan designed to be repaid on the ■ borrower’s next payday. National’s trade name — Loan Till Payday — embodies this concept. Because the loan was technically intended to be outstanding only for a single block of time, payday loan companies described the finance charge by identifying the dollar amount per $100 borrowed that the customer would owe at the end of the period. A block rate of “$30 on $100” meant that a customer .who borrowed $100 would repay $130 on her next payday.

In May 2013, when James approached National for a $200 loan, National was no longer making traditional payday loans. Effective January 1, 20Í3, the General Assembly amended Delaware’s statutory framework for closed-end consumer credit to impose limits on payday loans. See 78 Del. Laws ch. 278 (2012) (codified at 5 Del. C. §§ 2227, 2235A, 2235B, & 2235C) (the “Payday Loan Law”).

In response to the Payday Loan Law, National recast its payday loans as non-amortizing installment loans that were structured to remain outstanding for seven to twelve months. The Payday Loan Law only applied to loans designed to be outstanding for sixty days or less, so by making this change, National sidestepped the law. Throughout this litigation, National insisted that it no - longer made payday loans.

Despite shifting to longer-dated installment loans, National continued to frame its finance charges using a block rate. National adhered to this practice for a simple reason: It made a high cost loan product sound cheaper than it was. On an annualized basis, a customer who repays $100 by making an interest-only payment of $30 every two weeks followed by $130 at the end of a year pays $810 in interest for an annualized rate of 838%. By framing the interest as a block rate, National’s employees could tell customers that the interest rate was 30%. Although National’s customers eventually saw an APR on the loan agreement, National’s employees followed a practice of telling customers that the APR had “nothing to do with the loan.” Tr. 335 (Carter). As National pitched it, the APR was “irrelevant” unless the customer kept the loan outstanding for an entire year; if the customer only planned to keep the loan outstanding for a few weeks, National’s employees said that the APR “means nothing.”3

.•When James obtained the Disputed Loan, she focused on the block rate and the concept of $30 in interest per $100 borrowed, just as National intended. She thought' she would have to pay back $260. She told Reilly that she would repay the *807loan in two payments of $130 each. She planned to pay $130 on her next payday of May 17,2013, and another $130 on May 31.

James told Reilly that she wanted to make her payments in cash and that she did not want to have her Nexis card debited. James viewed this as important because she knew from past experience that she could incur additional charges if a lender debited her account when there were insufficient funds to make a payment, particularly if the lender attempted to debit her account multiple times. Reilly entered a note in the Payday Loan Manager reflecting that James did not want to have electronic debits from her account. The note stated “No ACH debits,” using the abbreviation for the automated clearinghouse for electronic payments operated by the Federal Reserve and the National Automated Clearing House Association. JX 29B at 659. He entered another comment stating, “Customer wants to walk in cash payments.” Id,

Reilly also entered a note in the Payday Loan Manager reflecting James’ plan to repay the loan in two payments. But Reilly’s note contemplated different payments than what James understood she would be making. Reilly recorded that James would make one payment of $150 on May 17 and a second payment of $143 on May 31. Reilly’s note thus had James repaying $293. James thought she was repaying $260.

Reilly printed out a copy of National’s standard form loan, document and showed James where to sign. The loan document was titled “Delaware Consumer Installment Loan Agreement.” JX 19 at 1 (the “Loan Agreement”). In a box labeled “Type of Contract,” it said “FlexPay.” The repayment' schedule did not reflect either the two repayments that James wanted to. make or the two repayments that Reilly, entered in the Payday Loan Manager. The Loan Agreement instead contemplated twenty-six interest-only payments of $60 each, followed by a balloon payment comprising a twenty-seventh interest payment of $60 plus repayment of the original $200 in principal. The total amount of interest was $1,620. According to the Loan Agreement, the APR for the loan was 838.45%. Using Reilly’s planned repayment schedule, the APR was 1,095%.

James signed the Loan Agreement, and Reilly gave her a check. "From the time James walked into the store, the whole process took about twenty minutes.

D. James Cannot Repay The Loan.

On May 8, 2013, the day after obtaining the Disputed Loan,1 James -broke her hand while cleaning a toilet at the Hotel DuPont.. After missing an entire week of work, she. asked her supervisor to allow her to return because she could not afford to remain out any longer. As James explained at trial: “I don’t get paid if I don’t work.” Tr. 34 (James). Her supervisor agreed that she. could work two or three days per week on light duty.

On May 17, 2013, James went to the • Loan Till Payday store arid made the first interest payment of $60. She spoke with Brian Vazquez, the store manager. She told him that she .had broken her hand and would not be able to work, and she asked him to accommodate her with some type of arrangement. Vazquez told her that she would have to make the scheduled payments and that National would debit-her account if she ■ did not pay in cash. Vazquez then suggested that James increase her payment from $60 to $75. James was nonplussed and asked him, “How can I pay $75 if I can’t pay $60 interest,” Tr. 36 (James). Vaáquez responded that being able to work fewer hours was not the same as losing her job.

*808At trial, Vazquez recalled that when James asked for help, he suggested that she increase her payment. He tried to portray this as an accommodation that was advantageous to James, because the additional money would pay down principal. Leaving aside the obvious problem that his proposal contemplated James paying more' when she could not pay less, it was not an accommodation. James had the right to pre-pay .principal at any time. Vazquez offered James something that she already had.

Vazquez also testified that he wanted James to make payments to “keep[] her active,' not past due, so she was still in good standing with our company and able to get loans with us in the future.” Tr. 257 (Vazquez). Yet Vazquez testified later that if a customer missed a payment, then National would stop charging interest and only add a late fee of 5%. This meant that Vazquez proposed an arrangement that kept interest accruing, whereas if James had defaulted, then interest would have stopped and she only would have owed a $3 late fee.

At bottom, Vazquez refused to lower James’ payments or give her any kind of accommodation. His proposals tried to get National more money and faster.

E. James Defaults.

On May 31, 2013, National attempted on four separate occasions to debit James’ Nexis account for $60. Each time, the debit was declined. At trial, Vazquez justified the debits by distinguishing between an electronic debit from a Nexis card and an ACH withdrawal from a bank account. Vazquez claimed that James only told National not to make ACH withdrawals.

Despite being a stickler for this distinction, Vazquez was less punctilious when it came to National’s authority for taking the debit. For that purpose, Vazquez relied on a provision found on the last page of the Loan Agreement, which was titled “Credit Card Authorization.” Vazquez asserted that this provision applied because a credit card payment and a debit card payment were “the same thing.” Tr. 287 (Vazquez). It is true that from a consumer’s perspective, they are functionally the same thing, but so are a bank account and a Nexis card.4 National tried to have it *809both ways, taking a legalistic approach when that advanced its purposes, then taking a functional approach when that was advantageous.

On June 3, 2013, National tried twice more to debit James’ Nexis card, each time for $60. Both debits were declined. On June 7, National tried twice more. At that point, the attempted debits were for $63, which included a $3 late fee. Both were declined.

On June 8, 2013, an unidentified National employee called James at the Hotel DuPont and left a message with her employer. National also sent her a “Collection Text” stating, “Gloria, to avoid further occurrences on your account, you must call Tracey, at Loan Till Payday.”

On June 13, 2013, an unidentified National employee again called James .at the Hotel DuPont and left a message with her employer. That same day, National successfully made an ACH withdrawal of $63, comprising $60 in interest plus a $3 late fee. Recall that James had told National not to make electronic withdrawals, and that Reilly had entered a note on the account stating “No ACH debits.” Recall also that National justified debiting her Nexis card on the theory that a debit was different than an ACH withdrawal. At this point, however,: National made an ACH withdrawal.

On June 14, 2013, the notes in the Payday Loan Manager indicate that an unidentified National representative spoke with James. On June 27, National debited her Nexis account for $75: National also sent James an automated text: “Refer a friend and get $20 credit on your next payment! Call now! Loan Till Payday.”

F. James Hires Counsel And Files Suit In Federal Court.

After her discussion' with Vazquez on May 17, 2013, James decided to contact counsel. On June 14,- James sent a letter to National opting out of the arbitration provision in the Loan Agreement. On July 1, James filed suit- in the United States District Court for the District of Delaware. James v. Nat’l Fin., d/b/a Loan Till Payday LLC, C.A. No. 13-CV-1175-RGA (D. Del. filed July 1, 2013).

Tim McFeeters is the sole owner of National. On July 8, 2013, after -being served with the federal action, he entered a note in the Payday Loan Manager: “DONT WORK DONT CALL DONT TAKE ANY $ $ $.” JX 29B at 662.

As of July 8, 2013, James had repaid National $197. .She has not made any payments on the Disputed Loan since then.

G. This Litigation

On September 20, 2013, after voluntarily dismissing her federal action, James filed this lawsuit on behalf of herself and other similarly situated borrowers. Count I of the complaint sought a permanent injunction barring National from collecting on the loans made to James and other class members. Count II sought a declaration that the terms of National’s loan, documents were unconscionable. Count III alleged that National breached the implied covenant of good faith and fair dealing *810inherent in the loan agreements. Count IV alleged that National unjustly enriched itself at the expense of the class members. Count V alleged'violations of the Delaware Consumer Fraud Act, 6 Del: C. §§ 2511-2527. James later dropped Counts IV and V.

On October 10, 2013, National moved to compel arbitration. National also sought to dismiss the .complaint under the creative theory that James could not state a claim for a class action. I denied the motion to dismiss, noting that James had opted out of arbitration and that National’s arguments against class certification were premature.

When National moved to compel arbitration, it knew that James had opted out. National had made that point affirmatively as a ground for dismissing her federal action. Because National knew that their motion to compel arbitration had no factual ba,sis, James moved for Rule 11 sanctions. I granted the motion.

H. Problems With Discovery

During discovery, James sought documents and information relating to the loans offered by National since September 20, 2010, including an electronic copy of the data from any database containing the loan information. National moved for a protective order, contending that the discovery was overbroad. I partially granted National’s motion, but I also required National to respond to particular requests or narrowed versions. See Dkt. 44 (the “First Discovery Order”). Most pertinently, I required National to provide specified categories of information about loans made between September 20, 2010, and September 30, 2013 (the “Loan History Information”).

On February 28, 2014, National produced an Excel spreadsheet that purported to provide the Loan History Information (the “Initial Spreadsheet”). The Initial Spreadsheet did not include all of the Loan History Information.

Using the few loan documents he had, James’ counsel checked the APRs for those loans against the limited data provided on the Initial Spreadsheet. The figures did not match. He then deposed McFeet-ers, who suggested that the Initial Spreadsheet contained errors. McFeeters also testified that the Delaware State Banking Commission had audited National between four and ten times after he purchased the company and had expressed concerns about inaccurate APRs.

On May 6, 2014, James filed an amended complaint that added a claim that National violated the federal Truth in Lending Act (“TILA”), 15 U.S.C.. § 1501 et seq., by failing to accurately disclose APRs on its loan agreements. James sought further discovery regarding the APR issue. On July 17, James again moved to compel production of the Loan History Information. I entered a second order requiring National to provide it. Dkt. 120 (the “Second Discovery Order”).

National did not comply-with the Second Discovery Order, resulting in a written decision granting James’ motion for sanctions. See James v. Nat’l Fin. LLC, 2014 WL 6845560, at *1 (Del. Ch. Dec. 5, 2014). The decision held that because of National’s discovery misconduct, it was established for purposes of trial that the APRs disclosed on an updated spreadsheet of Loan History Information were incorrect and fell outside the tolerance permitted by TILA. Id.

On March 25, 2015, I denied James’ motion for class certification. The case proceeded to trial solely on James’ individual claims.

*811II. LEGAL ANALYSIS

James proved at trial that the Loan Agreement was unconscionable, and the Disputed Loan is rescinded on that basis. Because the Disputed Loan is invalid, this decision need not consider whether National breached the ■ implied covenant of good faith and fair dealing. James also proved that National violated TILA.

A. The Regulatory And Public Policy Backdrop .

This case was about the Disputed Loan, but both sides litigated against a backdrop of regulatory and public policy issues that numerous jurisdictions are confronting. Put mildly, widespread controversy exists over high-interest credit products that are predominantly marketed to and used by lower-income, credit-impaired consumers. Products falling into this category include traditional payday loans, pawnbroker loans, installment loans, subprime credit cards, automobile title loans, income tax refund products, and credit substitutes like rent-to-own financing. Labels for the category include “fringe products” and “alternative financial services.” The products fall within the larger heading of subprime credit.

An extensive and growing body of scholarship exists about alternative financial products, with the bulk focusing on traditional payday loans. The empirical evidence tt> date, however; has considerable gaps. Studies have reached different findings, and researchers have drawn different inferences.5 Moreover, although the total volume of scholarship is large, much of it seems repetitive and polarized.

Consumer groups uniformly condemn alternative financial products.6 The Pew Charitable Trust has.published a series of reports that criticize the payday loan industry.7 The Department of Defense and *812representatives of the armed services also have opposed payday lending.8 Aligned With these groups are scholars who write from the consumer perspective. Nathalie Martin, a law professor from the University of Arizona, is a leading critic of alternative financial products.9 She testified as an expert for James at trial.

Championing a competing view is the industry’s national trade organization, the Community Financial Services Association of America, and a group of scholars who draw heavily on economic theory. Todd J. Zywicki, a law professor from George Mason University, is a prominent defender of alternative financial products and a coauthor of a recent treatise on consumer credit. See Thomas A. Durkin et al., Consumer Credit and the American Economy (2014) [hereinafter Consumer Credit ]. He testified as an expert for National at trial.

This court’s task is not to regulate the payday loan industry in Delaware. It is only to rule on the Disputed Loan. Paramount Commc’ns Inc. v. QVC Network Inc., 637 A.2d 34, 51 (Del. 1994) (“It is the nature of the judicial process that we decide only the case before us — ”). Nevertheless, in the course of evaluating the record, I have read Martin’s and Zywicki’s expert reports, as well as many of the works that they cited. I agree with both experts .that although the Disputed Loan was not technically a traditional payday loan, the literature provides helpful background.

B. Unconscionability

The doctrine of unconscionability stands as a limited exception to the law’s broad support for freedom of contract. “Delaware courts seek to ensure freedom of contract and promote clarity in the law in order to facilitate commerce.” ev3, Inc. v. Lesh, 114 A.3d 527, 530 n. 3 (Del. 2014). “There is ... a strong American tradition of freedom of contract, and that tradition is especially strong in our State, which prides itself on having commercial laws that are efficient.” Abry P’rs V, L.P. v. F & W Acq. LLC, 891 A.2d 1032, 1059-60 (Del. Ch. 2006) (Strine, V.C.). “When parties have ordered their affairs voluntarily through' a binding contract, Delaware law is. strongly inclined to respect their agreement, and will only interfere upon a strong showing that dishonoring the contract is required to vindicate' a public policy interest even .stronger than freedom of contract.” Libeau v. Fox, 880 A.2d 1049, 1056-57 (Del. Ch. 2005) (Strine, V.C.), aff'd in pertinent part, 892 A.2d 1068 (Del. *8132006). “As a matter of ordinary, course, parties who sign contracts and other binding documents, or authorize someone else to execute those documents on their behalf, are bound by the obligations that those documents contain.” Official Comm. of Unsec. Motors Liquid. Co. v. JPMorgan Chase Bank, N.A., 103 A.3d 1010, 1015 (Del. 2014).

But as with many areas' of the law, there are countervailing principles that prevent an indisputably important and salutary doctrine from operating as a tyrannical absolute. One such ground is unconscionability, traditionally defined as a contract “such as no man in his senses and not under delusion would make on the one hand, and no honest or fair man.-would accept, on the other.” Tulowitzki v. Atl. Richfield Co., 396 A.2d 956, 960 (Del. 1978) (quotation marks and citation omitted). It would be difficult to improve on Chancellor Allen’s incisive summary of the interplay between the core concept of contractual freedom and the residual protection against unconscionability: ■

The right of competent persons to- make contracts and thus privately to acquire rights and obligations is a basic part of our general liberty. This ability to enter and enforce contracts is universally thought not only to reflect and promote liberty, but as well to promote the production of wealth. Thus, the right to make and enforce contracts is elemental in our legal order. But not every writing purporting to contain a promise or every document purporting to make a transfer will be given legal effect. A large body of law defines when valid contracts are formed and when and how they can be enforced.

It is a general rule, recited by courts for well over a century, that the adequacy or fairness of the consideration that adduces a promise or a transfer is not alone grounds for a court to refuse to enforce a promise or to give effect to a transfer. This rule, present in 17th and 18th century cases, achieved its greatest dignity in the jurisprudence of 19th century classical liberalism. i Thus, the classical liberal’s premise concerning the subjectivity (and thus non-reviewability) of value has plainly been a dominant view in our contract law for a very long time— But as standard as that generalization is, it has not precluded courts, on occasion, from striking down contracts or transfers in which inadequacy of price is coupled with some circumstance 'that amounts to inequitable or oppressive conduct.' That1 is, the “rule” that Courts will not weigh consideration or assess the wisdom of bargains has not fully excluded the opposite proposition, that at some point, courts will do so even in the absence of actual fraud-, duress or incapacity.

Ryan v. Weiner, 610 A.2d 1377, 1380-81 (Del. Ch. 1992) (Allen, C.) (citations and footnote omitted).

In Ryan, Chancellor Allen delineated the history of the doctrine of unconsciona-bility, describing it as “old when Justice Story summarized it in 1835” as part of his Commentaries on Equity Jurisprudence. Id. at 1381. After citing a range of cases from the twentieth century, Chancellor Allen observed that

[statutory developments over the last thirty years reflect an explicit legislative endorsement of this ancient equitable doctrine. . The most important example of this .mid-twentieth century codification is the unconscionability provision contained in Section 2-302 of the Uniform Commercial Code. That provision has, of course, been adopted in almost all of the states and applies to the sale of all-goods.

*814Id. at 1383. Delaware’s version of Section 2-302 states:

(1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.

(2) When it is claimed or appears to the court -that the contract or any clause thereof may be unconscionable the parties shall be afforded a,reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination,

6 Del C. § 2-302. Although technically limited in scope to sales of goods,' Delaware decisions have applied Section 2-302 more broadly.10

This estimable pedigree does not mean that the doctrine of unconscionability will' be invoked freely. “Unconscionability is a concept that is used sparingly.” Ketler v. PFPA, LLC, 132 A.3d 746, 748, 2016 WL 192599, at *2. (Del. 2016). Chancellor Allen’s words again capture the essential point:

The notion that a court (can and will review contracts for fairness is apt for good reason to strike us as dangerous, subjecting negotiated bargains to the loosely constrained review of the judicial process. Perhaps for this reason,-courts have evoked this doctrine with extreme reluctance and only when all of the facts suggest a level of unfairness that is unconscionable.

Ryan, 610 A.2d at 1381. A finding of unconscionability generally requires “the taking of an unfair advantage by one party over the other.” Tulowitzki, 396 A.2d at 960 (quotation marks omitted). “A court must find that the party with superior bargaining power used it to take unfair advantage of his weaker counterpart.” Graham v. State Farm Mut. Auto. Inc. Co., 565 A.2d 908, 912 (Del. 1989). “For a contract clause ..to be unconscionable, its terms must be so one-sided as to be oppressive.” Id. (quotation .marks and citation omitted).

Whether a contract is unconscionable is determined at the time it was made. Lecates v. Hertrich Pontiac Buick Co., 515 A.2d 163, 173 (Del. Super. 1986); see Restatement (Second) - of Contracts § 208 (1981) (“If a contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforce the contract....”). The outcome turns on “the totality of the circumstances.” Tulowitzki, 396 A.2d at 962; see Restatement (Second) of Contracts § 208, cmt. a (“The determination that a contract or term is or is not unconscionable is made in light of its setting, purpose and effect.”).

This court has identified ten factors to guide the analysis of unconscionability. See Fritz v. Nationwide Mut. Ins. Co., 1990 WL 186448 (Del. Ch. Nov. 26, 1990). In the language of the Fritz decision, they are:

(1) The use' of printed form or boilerplate contracts drawn skillfully by the party in the strongest economic position, which establish industry wide standards *815offered on a take it or leave it basis to the party in a weaker economic position!;]

(2) a significant cost-price disparity or excessive price;

(3) a denial of basic right's and remedies to a buyer of consumer goods!;]

(4) the inclusion of penalty clauses;

(5) the circumstances surrounding the execution of the contract, including its commercial setting, its purpose and actual effect!;]

(6) the hiding of clauses which are disadvantageous to one party in a mass of fine print trivia or in places which are inconspicuous to the party signing the contract!;]

(7) phrasing clauses in language that is incomprehensible to a layman or that divert his attention from the problems raised by them or the rights given up through them;

(8) an overall imbalance in the obligations and rights imposed by the bargain;

(9) exploitation" of the underprivileged, unsophisticated, uneducated and the illiterate!;] and ■

(10) inequality of bargaining or economic power.

Id. at *4-5 (citations omitted).' Although this opinion uses the ten Fritz factors, it analyzes them in a different order and under two broader headings: substantive unconscionability and procedural uncon-scionability.

The concept of substantive unconscionability'tests 'the substance of the exchange. An agreement is substantively unconscionable if the terms evidence a gross imbalance that “shocks the conscience.” Coles v. Trecothick, 32 Eng. Rep. 592, 597 (Ch. 1804). In more modern terms, it means a bargain on terms “so extreme as to appear unconscionable according to the mores and business practices of the time and place.” Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 450 (D.C. Cir. 1965) (quoting 1 Arthur L. Corbin, Corbin -on . Contracts § 128 (1963)).

"The concept of procedural unconsciona-bility examines the procedures that led to the contract with the goal of evaluating whether seemingly lopsided terms might have resulted from arms’-length bargaining. Courts focus on the relative bargaining strength of the parties and whether the weaker party could make a meaningful choice. The concept is “broadly conceived to encompass no.t only the employment of sharp bargaining practices and . the use of fine print and convoluted language, but a lack of understanding and an inequity of bargaining power.” 1 E. Allan Farns-worth, Farnsworth on Contracts '§ 4.28, at 583-84 (3d ed. 2004) (footnotes omitted).

The two dimensions of unconscionability do not function as separate elements of a two prong test. The analysis is unitary, and “it is generally agreed that if more of one is present, then less of the other is required.” Id. § 4.28, at 585.

1. Factors Relating To Substantive . Unconscionability

Six of the Fritz factors relate to the concept of substantive unconscionability. They are:

• A significant cost-price disparity or excessive price.

• The denial of basic rights and remedies.

• Penalty.clauses.

• The placement of disadvantageous clauses in inconspicuous locations or among fine print trivia.

• The phrasing of disadvantageous clauses in confusing language or in a manner that obscures the problems they raise.

*816• An overall imbalance-in the obligations and rights imposéd by the bargain.

Within this lineup, the first factor tést's for a threshold indication of fundamental unfairness. The second and. third factors examine two types of contract terms where overreaching may occur. The fourth and fifth factors ask about other types of contract terms and whether they are adequately disclosed and comprehensible. The sixth factor examines the agreement as a whole.

a. A Threshold Indication Of Unfairness

The first Fritz factor considers whether there is a threshold indication of unfairness, such as‘“a significant cost-price disparity or excessive price.” Fritz, 1990 WL 186448, at *4. “[G]ross disparity between price and value can be used to demonstrate unconscionability.”11 “Inadequacy of consideration does not of itself invalidate a bargain, but gross disparity in the values exchanged may be. an important factor in a determination that a contract in unconscionable_” Restatement (Second) of Contracts § 208, cmt. c. “Such a disparity may also corroborate indications of defects in the bargaining process.... ” Id. “[A]n unreasonably high or exorbitant price at the very least is a factor to be considered in determining whether a particular provision is harsh and whether one party has in fact been imposed .upon by another party in an inequitable or unconscionable manner.” 8 Williston on Contracts § 18:15 (4th ed. 2015).

In this case, there are obvious indications of unfairness. The Loan Agreement called for finance charges of $1,620 for a $200 loan, resulting in a disclosed APR of 838.45%. That level of pricing shocks the conscience. .Even defenders of fringe credit have recognized that “[a]t first glance, it would seem irrational for any consumer to borrow money at an interest ■ rate exceeding 400% under any circumstance.”12 Zywicki conceded that *817“to a layman in some sense, it just looks kind of shocking to see a price this high.”13 More broadly, Zywicki and his co-authors admit in their recent book that the finance charges for fringe products “are indeed high when expressed in terms of [APR].” Consumer Credit, supra, at 352. When making this observation, they cited APRs that “often exceed 100 percent.” Id. The rate for the Disputed Loan was eight times that level.

Zywicki recognized that the interest rate on the Disputed Loan was high in other ways as well. He testified that the APRs for unsecured consumer installment loans generally cluster around 150%.14 Unlike the Disputed Loan, consumer installment loans “are amortized with part of each payment repaying principal so that the loan is paid in full by the last scheduled payment.” Consumer Credit, supra, at 355. The Disputed Loan was a twenty-six period interest-only loan culminating in a balloon payment at the year mark.

The rate charged for the Disputed Loan exceeded even the rates charged for traditional payday loans. Zywicki testified that the industry average for payday loans is !a block rate of $15 per $100, half what National charged. Tr. 589-90, 594 (Zywicki). Other sources cite similar figures.15 The rate for the Disputed Loan also far exceeded what Zywicki and his co-authors report as typichl rates for other fringe products.16

National’s efforts to explain the cost of the Disputed Loan were unconvincing. MeFeeters would not say what would be an excessive price for a loan. . He only would say, “I follow the state laws, and that’s what I follow.” Tr. at 435 (MeFeet-ers). Delaware does not impose any cap on' interest rates, so MeFeeters effectively was saying that no price is too high.17

*818Zywieki advanced two types of arguments to explain the price of the Disputed Loan. First, he contended that an APR of 838% could, in theory, result from a competitive market. Second, he argued that there could be situations where it would be rational for a consumer to use a high-interest credit product.

i. Arguments About Market Pricing

To support his claim about market pricing, Zywieki cited academic studies which have observed that some features of the alternative financial product market are consistent with meaningful price competition, such as low barriers to entry and a large number of stores. Like many aspects of the industry, however, evidence on this issue is mixed, and other researchers have identified evidence consistent with a variety of strategic pricing practices.18 Importantly for this case, Zywieki did not conduct any analysis of the Disputed Loan itself, nor did he assess the competitiveness of the Wilmington market. At the same time, he admitted that prices in Wilmington were higher than the ranges he expected. He also recognized that consumers who use fringe products generally lack meaningful alternatives.

In a variant of his market pricing argument, Zywieki contended that the price of the Disputed Loan should not be viewed as excessive unless National was able to generate supra-normal economic profits, which he equated with monopoly rents. Zywieki emphasized one study that has questioned whether payday loan companies generate supra-normal economic profits.19 The broader evidence is again mixed, with the authors of a study on payday-loan profitability noting that “a recent private analysis for potential investors ... asserts that a store set up for $30,000 will generate more than $258,000 in operating cash flow over its first five -years of operation, which implies an extraordinary average annual pretax rate of return — around 170 percent— on the initial investment.” Flannery & Samolyk, supra, at 4 (citation omitted). In their own study, the same authors found that “mature stores appear to earn quite healthy operating . profits — on average $18.73 per loan made, or approximately $1.89 per average dollar of loans outstanding.” Id. at 19. They declined to take a position on whether this level of returns could be described in the abstract as “high” or “reasonable.” Id. Opponents of fringe products point to other indicators, such as marketing materials from payday loan franchisors that describe high profit levels and .the rapid expansion of the industry, which suggests attractive returns.20 *819For purposes of this case, Zywicki again did not conduct any, analysis specific to Wilmington or National, and he could not offer any opinion as to whether National enjoyed supra-normal profits.

As a third basis for his market-pricing claim, Zywicki posited that high-interest loans are very costly to make, due in part to high default risk. He contended at trial that default rates “are usually in the range of 15, 20, to 25 percent.” Tr. 505 (Zy-wicki). A study by the Pew' Charitable Trust found that loan loss rates for payday loans are only 3%. See How Borrowers Repay, supra, at 6. Zywicki again did not do any analysis specific to this case. He did not analyze default rates in the Wilmington area, nor did he examine National’s default rates.

Zywicki’s opinion that an APR of 838% could, in theory, result from a competitive market wás just that — a theoretical possibility. It was not a persuasive response to the facially shocking price of the Disputed Loan.

ii. Arguments About Hypothetically Rational Uses

Zywicki’s second explanation for the price of the Disputed Loan rested on the sensible claim that the price of a consumer product should be assessed, among other things, “by reference to the utility of the loan to the consumer.” JX 46 at 43. ' This approach posits that there can be situations where it is rational and wealth-enhancing for consumers to use high-cost loans. Zywicki touched on thesé justifications at trial when he explained that consumers can use alternative credit products “to avoid what might kind of be bigger catastrophes like eviction and that sort of thing.” Tr. 541 (Zywicki).

In their book on consumer credit, Zy-wicki and his co-authors offer an expanded version of this argument which asserts that high-interest, small-dollar loans “can facilitate the accumulation of household assets even when they are not used directly to finance the household investment by enhancing overall liquidity, even at high cost.” Consumer Credit, supra, at 369; accord Lawrence & Elliehausen, supra, at 302. They provide two examples of situations where it could be rational for a consumer to take out a $200 payday loan at a block rate of $15 per $100 (half the rate of the Disputed Loan).

The simplest scenario involves a looming bill, such as a utility payment, where nonpayment will trigger a late fee exceeding the finance charge for the loan. Assuming the borrower can repay the loan on schedule, the borrower does better by paying the lower finance charge rather than the higher late fee. A slightly more complex variant involves a late fee that may not exceed the finance charge, but where failing to pay the bill will generate other hardships, such as the loss of electricity for a period of time. Again assuming the borrower can repay the loan on schedule, the borrower does better by paying the finance charge and avoiding the combination of the late fee and the negative consequences. See Consumer Credit, supra, at 369.

A second and more nuanced scenario posits a borrower who can use the loan proceeds to make a net-present-value-positive choice, such as repairing an automobile immediately instead of -'delaying the repair while saving the money to pay for it. To construct a viable example, Zywicki and his co-authors assume that uhtil the *820repair is completed, the consumer -will (i) pay fees for- public transit and (ii) lose leisure time to commuting, which they value at the consumer’s hourly wage. Depending on the assumptions, the model supports scenarios where it makes sense for the consumer to use a payday loan with a nominally high APR of 309% to repair the car sooner rather than later. See id. at 370-72.

In each of these cases, the viability of using high-cost credit rationally depends on the consumer'having a use for the funds which generates monetary and non-monetary returns that exceed the price of the loan. -To their credit, the authors recognize that the ability of a. consumer to overcome a high APR (309% in their model) depends largely on “the very short term to, maturity” for a single-period payday loan. Id. at 371. They observe that “[t]his would not be the case .for a long-term loan,” and that “[e]xtended use .of this sort of credit is where it becomes most highly controversial.” Id. at 372.

And there’s the rub. The Disputed Loan was not structured as a short-term loan. It was a twelve-month, interest-only installment loan. -The Disputed Loan also charged an interest rate that was more than double what Zywicki and his co-authors modeled (838% vs. 309%). Zywicki did not identify any scenarios in which it could be rational for a consumer to borrow on the terms contemplated by the Disputed Loan.

Perhaps anticipating this disconnect, Zy~ wicki attempted at trial to re-characterize the Disputed Loan as a short-term loan by pointing out that James had the option to prepay. The decision to prepay parallels the decision to pay a traditional payday loan on time. Consumer groups have modeled the likelihood that a typical user of high-cost credit will repay a traditional payday loan in a single period and avoid a cycle of long-term indebtedness. The Center for Responsible Lending provides the example of a borrower making $35,000 per year who obtains a payday loan for $200 plus a finance charge of $20. Assuming average levels of consumer expenditures for food, housing, utilities, transportation, healthcare, and other essentials, and excluding costs such as childcare and clothing,- the borrower finishes the next pay period with a $96 deficit,, forcing a loan rollover. See Borné et al., supra, at 8-9. The same report examines how a payday loan affects the account balance of a typical borrower on a fixed income, such as social security. It demonstrates that although the loan temporarily boosts the customer’s bank balance, the combination of the balloon payment and fees makes the borrower worse off and necessitates another loan.21 A report by the Pew Charitable Trust concludes that

the lump-sum repayment model appears to make it difficult for borrowers to avoid renewal. Pew’s analysis of state and industry data indicates that borrowers are indebted for an average of about five months of the year. Recording to one study, 76 percent of these loans, including renewals, are borrowed within two weeks following an existing payday loan’s due date, meaning the borrower could not pay back the loan and make it to the next payday without another loan. In addition, Pew’s analysis of data from Oklahoma finds that more borrowers use .at least 17 loans in a year than use just one.

Who Borrows, supra, at 7 (footnotes omitted). A follow-up study found that “[o]nly 14 percent of borrowers can afford enough of their monthly budgets to repay an average payday loan,” although most could af*821ford to pay the interest-only fee to roE over the loan. How Borrowers Repay, supra, at 6. The study' observed that “[a]verage borrowers end up indebted for five months, paying $520 in finance charges for loans averaging. $375.”22

It may be that a consumer with the-wherewithal to repay a high-cost loan after one period could rationally use some high-cost products in a wealth-enhancing way, but that thought experiment does not persuasively justify the pricing and terms of the Disputed Loan. The loan James obtained was a twenty-six period, interest-only loan followed by a twenty-seventh period balloon payment at an APR of 838%. As noted, Zywicki and his co-authors recognize that it is difficult to imagine a situation where it would make sense for a consumer to use a multi-period loan at the interest rates charged for payday loans. See Consumer Credit, supra, at 370-72. Zywicki’s testimony about the hypothetically rational use of some high-cost credit products failed to legitimize the Disputed Loan’s facially disturbing price.

iii. Fundamental Unfairness

The economic terms of the Disputed Loan are so extreme as to suggest fundamental unfairness. The price of the Disputed Loan is particularly egregious given its multi-period, non-amortizing, structure. The finance charges incurred over the course of the loan are so high that no rational borrower would agree to pay them, unless under duress or operating under a misapprehension of fact. The first Fritz factor is satisfied.

b. Contract Provisions Suggesting Unfairness

The next four Fritz factors focus on contract' provisions that can contribute to a finding of unfairness. They include provisions that deny or waive “basic rights and remedies,” “penalty clauses,” and “disadvantageous” clauses' that are hidden or difficult to identify and understand. 1990 WL 186448, at *4. The more general question is whether the contract provisions evidence “[a]n overall imbalance in the obligations and rights imposed by the bargain.” Id. at *5. Specific provisions might not be unconscionable in isolation or under different circumstances, yet still may contribute to. a finding of unconscionability in a given case.23

The Loan Agreement contains provisions that raise concerns, but they are not sufficiently onerous to support a finding of unconsdonability standing alone. They contribute to the overall assessment of the Loan Agreement,, but as a secondary factor. ■ ’

*822One category of provisions called out in Fritz encompasses waivers and denials of basic rights and remedies that a consumer otherwise would possess. The Loan Agreement included a waiver of the right to a jury trial, which extended to “any dispute you may have against us or a related third party.” JX 19 at 3. It did not define what it meant by “related third party.” The Loan Agreement also con-' tained an arbitration provision in which the borrower gave up the right to sue in court (other than in small claims court) and the right to arbitrate on a class-wide basis. The Loan Agreement did give James sixty calendar days to opt out of the arbitration provision, and it contained some procedural features to make arbitration less onerous. Had James moved forward with arbitration, her greátest disadvantage would have been limited discovery. As shown by National’s conduct in this case, it took a determined attorney with the benefit of court-ordered discovery to obtain'responsive information from National, and even then National did not produce all of its responsive information.

The jury waiver and the arbitration provision fall within the meaning of the Fritz factor that focuses on waivers of rights and remedies, but they do not contribute meaningfully to a finding of uneonsciona-bility. The same is true for penalty clauses, which is another category of provisions that Fritz-identifies. 1990 WL 186448, at *4. The Loan Agreement contemplates a late fee “on any installment not paid in full within 5 days after its due date as originally scheduled, in the amount of 5% of the unpaid amount of the delinquent balance.” JX 19 at 3. A 5% late fee is authorized by statute. See 5 Del C. § 2231(2). The Loan Agreement also gives National the right to declare a default after a missed payment and to cause all outstanding amounts to accelerate, and it obligates the borrower “to pay the actual expenditures, including reasonable attorneys’ fees, for legal process or proceedings to collect the amounts owing hereunder.” JX 19 at 3-4. This type of attorneys’ fee provision is also permitted by- statute. See 5 Del. C. § 2236, As with the discussion -of waivers of rights and. remedies, these provisions satisfy the Fritz factor that focuses on penalty clauses, but they do not contribute meaningfully to a finding of unconsciona-bility.

The Fritz decision also calls for consideration of “disadvantageous” clauses that are “inconspicuous,” as well as “language that is incomprehensible to a layman” or seems designed to “divert his attention from the problems raised by them or the rights given up through them.” 1990 WL 186448, at *4. Two aspects of the Loan Agreement warrant mention.

The first involves the ■ provisions addressing ACH withdrawals. Comprising fifteen single-spaced paragraphs and sub-paragraphs, and written in what- appears to be eight-point font, the provisions span a full page of the six-page agreement. These provisions are highly favorable to National, but the Loan Agreement portrays them as beneficial to the consumer. At one point, it states that “THIS ACH AUTHORIZATION IS FOR YOUR CONVENIENCE IN PAYING AMOUNTS OWED AND RECEIVING THE LOAN PROCEEDS.” JX 19 at 3. Elsewhere the Loan Agreement states, “For your protection, this form authorizes Loan Till Payday to automatically collect each periodic payment due under the terms of this Contract.” Id. at 6. The provisions, are actually a form of security interest that is for National’s protection and convenience.

The provisions governing ACH withdrawals are confusing because they speak of making “ACH” transfers from “the *823checking or savings account specified in your Application/Data Verification form (‘Your Bank Account’).” Id. at 2. National, however, treats the authorization as covering debits from a pre-paid debit card like James’ Nexis card, and National- repeatedly debited James’ account. ‘Further complicating matters, the signature page where the borrower specifically authorizes the withdrawals appears under the heading “Credit Card Authorization.” Id. at 6. Despite this language, National does not accept credit cards, and James did not have a credit card; she had a debit card.-

The inconsistent language in the Loan Agreement could easily confuse an unsophisticated customer like James. The difficulties with National’s language had particular salience for this case, because when James obtained the Disputed Loan, she told Reilly that she did' not want electronic withdrawals made from her account. Reilly made two notes in the Payday Loan Manager. One stated “No ACH debits,” and another stated, “Customer wants to walk in cash payments.” JX 29B at 659. Yet National debited James’ Nexis card and made at least one ACH withdrawal from her Nexis account.

James’ instruction and National’s ac-knowledgement catches National on the horns of a dilemma. To the extent that National’s witnesses took a narrow -and legalistic view at trial by arguing that James only opted out of ACH withdrawals and not debits from her Nexis card, then the same logic meant that James only granted “Credit Card Authorization,” not debit card -authorization.. To the extent that National’s witnesses argued broadly at trial-that the “Credit Card Authorization” encompassed all types of electi’onic withdrawals, then James’ insistence that she did not want ACH withdrawals should have been sufficient to opt out. In neither case did National get the authorization it needed to debit James’- account.

■ The debate over whether James validly opted out of ACH transfers identifies a second problem with the ACH provisions: they make it extremely difficult for a customer to avoid granting National the authorization it wants. In the fourteenth of fifteen paragraphs and subparagraphs addressing ACH transfers, the Loan Agreement does say that the ACH authorization is optional, but the borrower can opt out only “BY MANUALLY CROSSING OUT ALL ACH AUTHORIZATION LANGUAGE IN THIS AGREEMENT.” JX 19 at 3.- The formal authorization then comes three pages later, under .the heading “Credit Card Authorization,” in a paragraph that makes no reference to ACH debits and does not contain the abbreviation “ACH.” See id. at 6. There is nothing to alert customers to the fact that by signing the language under the heading “Credit Card Authorization,” they are agreeing to ACH transfers.

Once a customer has authorized ACH transfers, it is difficult to terminate them. According to the Loan Agreement,

You may terminate one or all of .the authorizations, to initiate ACHs from Your Bank Account set forth above by calling us at 302-328-1370 and by writing,us at 1511 North DuPont Highway, New Castle, DE 19720 and specifying which authorizations you would like to terminate. We will discontinue initiating any ACHs you specify as soon as-we reasonably can and in any event within three business days after receiving your termination request.

This ACH Authorization will remain in full force and effect until (i) we have received written notification from you of its terminationfin such time and in such manner as to afford us and the Deposi*824tory a reasonable opportunity to act on it or (ii) upon full and final payment of the amount you owe us under this Agreement.

Id. at 3 (emphasis added). McFeeters testified that he would insist on full compliance with the language of the contract before terminating an ACH authorization, meaning-that a customer only could terminate ACH withdrawals, by calling the phone number and confirming in Uniting.

The Loan Agreement skews the' ACH withdrawal provisions in National’s favor in another way as well: National can withdraw whatever amount it wants from a customer’s account, up to the full amount of the outstanding loan plus fees and charges, without prior notice to the customer that a higher amount will be debited. The operative language states:

Please note that you have the right to receive notice of all transfers varying in amount, and that by signing this ACH Authorization you acknowledge that we have elected to offer you a specified range of amounts for debiting (in lieu of providing the notice of transfers in varying in amount [sic]). The amount of any ACH debit' will range from (i) the payment amount provided in the payment schedule'(which may be less than a scheduled payment if partial prepayments have been made), to (ii) an amount equal to the total outstanding balance (which may be greater than or less than a payment based upon your actual payments), plus as applicable, any returned payment charges and/or any date charges you may owe under the Agreement. For any debit outside of this specified range, we will send you a notice. Therefore, by agreeing to the terms of this ACH Authorization you are choosing to only receive notice, when a transfer amount exceeds the range specified above.

JX 19 at 3. National relied on this paragraph to debit James’ account for amounts greater than her scheduled payment, without prior notice to. James. For National’s cash-constrained customers, a higher withdrawal easily could overdraw their account or sweep up the bulk of their available cash.

In my view, the. provisions governing ACH withdrawals are “disadvantageous,” drafted in “language that is incomprehensible to a layman,” and appear designed to “divert [the customer’s]' attention from the problems raised by them or the rights given up through them.” Fritz, 1990 WL 186448, at *4. As drafted and implemented, the ACH provisions support a finding of unconscionability.

The same is true for the provisions governing rescission and prepayment, which the Loan Agreement combines confusingly in a single paragraph. The Delaware Code addx-esses these concepts separately. One statutory section addresses prepayment. See 5 Del. C. § 2234. A separate statutory section requires a right of rescission. See id. § 2235A(a)(3). The Loan Agreement, by contrast, shoves the right of rescission into the middle of six sentences addressing prepayment. The paragraph in question states:

You shall have the right to make payment in advance and in any amount on this Loan Agreement at any time.' You will not incur an additional charge, fee or penalty for prepayment. Prepayments of principal may reduce the total amount of interest you are scheduled to pay under ■ this Loan Agreement. To rescind future payment obligations under this Loan Agreement and receive a refund of the finance charge,- you must (i) inform us by visiting a store-of your intent to rescind no later than k-QO PM Eastern Time on the next business day immediately following the Disburse*825ment Date (“Rescission Deadline”), and (ii) give us written authorization to effect a debit entry to Your Bank Account, defined in the Repayment Authorization below, for the principal amount of the loan. If we receive payment of the principal amount of the loan via such authorization, then we will refund the interest owing and rescind the future payment obligations under this Loan Agreement. Thereafter, if you prepay this Loan Agreement in full or in part, no earned interest will be refunded. To process a partial or full prepayment or receive a payoff balance, you should call us (302-328-1370) or visit a store of your intent to prepay. Please note that the payoff amount will be calculated as of the date we debit Your Bank Account for the balance owing.

JX 19 at 2 (emphasis added). As structured, the first three sentences address prepayment, including the customer’s right to prepay any amount at any time. The italicized portion shifts to the customer the right to rescind the loan agreement within the first twenty-four hours after obtaining the loan. The last three sentences return to the concept of prepayment.

In my view, this is another provision that is “disadvantageous,” drafted in “language that is incomprehensible to a layman,” and designed to “divert [the customer’s] attention from the problems raised ,. or the rights given up.” Fritz, 1990 WL 186448, at *4. As drafted and implemented, it supports a finding of Uncon-scionability.

National argues that because James did not read the Loan Agreement, none of its terms should matter in the uneonseiónability analysis. When a business relies on a contract of adhesion, a court does not take into account whether the consumer has read the document: “Such a writing is interpreted wherever reasonable as treating .alike all those similarly situated, without regard to their knowledge or understanding of the standard terms of the writing.” Restatement (Second) of Contracts § 211(2) (emphasis added). “[C]ourts in construing and applying a standardized contract seek to effectuate the reasonable expectations of the average member of the public who accepts it.” Id. § 211, i cmt. e. This approach rests on the rationale that

[a] party who makes regular use of a standardized form of agreement does not ordinarily expect his customers to understand or even to read the standard terms. One of’the purposes of standardization is to eliminate bargaining over details - of individual transactions, and that purpose would not be served if a substantial number of customers retained counsel and reviewed the standard terms. Employees regularly using a form often have only- a limited understanding of its terms and-limited authority to vary them. Customers do not in fact ordinarily understand or even read the standard terms. They trust to the good faith of the party Using the form and to the tacit representation that like terms are being accepted regularly by others similarly situated. But they" understand that they are assenting to the terms not read or not understood, subject to such limitations as the law may impose.

Id., § 211 cmt. b,

The final factor relating to the contract terms is whether the agreement evidences “[a]n overall imbalance in the obligations and rights imposed by. the bargain.” Fritz, 1990 WL 186448, at *5. Some insight into this factor can be gleaned from the degree to which the Loan Agreement devoted attention to particular subjects.

The Loan Agreement covered six pages. Five contained substantive provisions. The sixth was a signature page. Of the *826five substantive pages, one full page of text (spanning most of page one and part of page two) created the most significant im-' balance in the agreement: the financial terms. In return for a loan of $200, James agreed to repay National $1,820, structured as twenty-six non-amortizing, interest-only payments of $60- followed by a balloon payment of $260. Another full page (spanning part of page two and most of page three) detailed National’s ability to make ACH withdrawals. A page and a half (spanning the bulk of page four and the bulk of page five) addressed the arbitration provision.

In total, the Loan Agreement devoted nearly two-thirds of its contents to these three subjects, evidencing their importance to National. Through these provisions, National imposed onerous financial terms and gave itself the right to collect unilaterally from James any amount it wished, up to the full amount of the loan plus fees and charges. National ensured ■ that in any challenge to the Disputed Loan, James would not be able to represent a class. She would have to challenge National alone, based on a loan where the amount in question vrould make the representation economically irrational for a.lawyer, unless he could recover .his fees from National. Moreover, unless James , opted out of the arbitration provision within sixty days— something that no customer other than James has ever done — then James would have to challenge the Disputed Loan in arbitration, which was National’s chosen forum. Taken as a whole, for purposes of the Fritz factors, the Loan Agreement evidences “[a]n overall imbalance in the obligations and rights imposed by the bargain.” Id.

2. Factors Relating To Procedural Unconscionability

The next four Fritz factors shed light on the concept of procedural -unconscionability. They are:

• Inequality of bargaining or economic power.

• Exploitation of the underprivileged, unsophisticated, uneducated, and illiterate.

• The use of printed form or boilerplate contracts drawn skillfully by the party in the strongest economic position, which establish industry-wide standards offered on a take it or leave it basis to the party in a weaker economic position.

• The circumstances surrounding the execution of the contract, including its commercial setting, its purpose, and actual effect.

As I see it, these factors help a court test the degree to which a seemingly disproportionate outcome could have resulted from legitimate, arms’-length bargaining. The first and second factors plumb this issue by considering the extent to which the parties to the agreement were capable of bargaining at arms’-length. A court rarely will intervene when the contracting parties are both commercial entities or otherwise sophisticated. By contrast, .a court may be more concerned where the contracting process involved significant inequalities of bargaining power, economic power, or sophistication, particularly between a business and a consumer. An aggravated version of this scenario arises when one of the parties is an individual who is underprivileged, uneducated, or illiterate.

The third and fourth factors similarly contribute by examining the degree to which actual.bargaining took place. The third factor considers whether the agreement is a contract of adhesion. The fourth factor takes into account the contracting environment, including the commercial setting and the purpose and effect of the disputed agreement.

*827Together, these factors weigh an initial showing of unfairness against the bargaining dynamic. If the contract resulted from legitimate negotiation, then a court should not intervene. “There is a significant distinction between an unconscionable contract and a bad bargain.” Obaitan v. State Farm, 1997 WL 208959, at *3 (Del. Ch. Apr. 17, 1997). “Parties have a right to enter into good and bad contracts, the law enforces both.” Nemec v. Shrader, 991 A.2d 1120, 1126 (Del. 2010). But if the contract appears fundamentally unfair and there are valid reasons to suspect that the outcome did not result from legitimate negotiation, then a different picture emerges.

a. The Attributes Of The Parties

The first two factors that fall under the heading of procedural unconscionability examine the relative attributes of the parties and whether they were capable of bargaining. The first of the two factors examines whether there is an “inequality of bargaining or economic power.” Fritz, 1990 WL 186448, at *5. The second considers whether the contract involved “exploitation of the underprivileged, unsophisticated, uneducated and the illiterate.” Id. To my mind, the second is an aggravated version of the first.

These factors do not mean that the law censures every power imbalance. To the contrary, “[a] bargain is not unconscionable merely because the parties to it are unequal in bargaining position, nor even because the inequality results in an allocation of risks to the weaker party.” Restatement (Second) of Contracts § 208, cmt. d. After all, “bargaining power will rarely be equal.” Progressive Int’l Corp. v. E.I. Du Pont de Nemours & Co., 2002 WL 1558382, at *11 (Del. Ch. July 9, 2002) (Strine, V.C.) (quoting Farnsworth on Contracts § 4.28 (2d ed. 2000)). Consequently, a “mere disparity between the bargaining power of parties to a contract will not support a finding of unconseiona-bility.” Graham v. State Farm Mut. Auto. Inc. Co., 565 A.2d 908, 912 (Del. 1989); accord Tulowitzki v. Atl. Richfield Co., 396 A.2d 956, 960 (Del. 1978) (“Superi- or bargaining power alone without the element of unreasonableness , does not permit a finding of unconscionability or unfairness.”),

“But gross inequality of bargaining power, together with terms unreasonably favorable to the stronger party, ... may show that the weaker party had no meaningful choice, no real alternative, or did not in fact assent or appear to assent to the unfair terms.” Restatement (Second) of Contracts § 208, cmt. d. The inequality must be sufficiently great' such that one side is placed at a meaningful disadvantage, and the court must find as part of its overall analysis that the stronger party used its position “to take unfair advantage of his weaker counterpart.” Graham, 565 A.2d at 912.

This approach manifests itself in a judicial reluctance to invalidate contracts between business'entities or other sophisticated parties. For example, Delaware courts are “particularly reluctant to find unconscionability in contracts between sophisticated corporations.” Reserves Mgmt., LLC v. Am. Acq. Prop. I, LLC, 86 A.3d 1119, 2014 WL 823407, at *9 (Del. Feb. 28, 2014) (ORDER). By contrast, courts are more willing to step in when a contract involves a business and a consumer.24 Delaware decisions also exhibit sen*828sitivity to situations in which a sophisticated actor has taken advantage of someone who is underprivileged, unsophisticated, uneducated, or illiterate. In the Ryan decision, for example, Chancellor Allen recognized that a constellation of attributes such as poverty, financial distress, and lack of sophistication can make an individual vulnerable. Ryan v. Weiner, 610 A.2d 1377, 1385 (Del. Ch. 1992) (Allen, C.).‘ He noted that although these disadvantages do not prevent a person from making a valid contract, they are factors that a court can take into account. See id.

The Disputed Loan was a contract between a business and a consumer. It therefore falls within the category of contracts where courts are relatively more likely to invoke the unconscionability doctrine.

More importantly, the Loan Agreement was a contract between (i) a specialized business addressing a target market of underprivileged, cash-constrained, and credit-rationed, consumers, and (ii) an unsophisticated member of the target market. The Disputed Loan thus raises concerns about predatory lending.25 Indeed, the experts and the supporting literature on alternative financial services find rare agreement on two points. First, the consumers who use the products tend to be cash-constrained and credit-rationed, meaning that they have limited resources and few, if any, credit alternatives.26 Sec*829ond, consumers typically use high-interest financial.products for necessities, such as food, rent, utility bills, and mortgage payments,27 meaning that they face an urgent need for funds.28 Defenders and critics of high-interest products differ only in how they spin these facts, Defenders view fringe products as virtuous, because they provide a form of credit, albeit at high cost, to consumers who otherwise would not have any. Critics charge that high-interest lenders take advantage of people in economic duress.

i. National

National specializes in providing high interest loans to underprivileged consumers who are cash-constrained and lack alternative sources of credit. When McFeeters acquired National, he applied to have National’s banking licenses renewed. See JX 4 (the “Licensing Application”). National disclosed in its Licensing Application that many, of its customers “have had credit problems in the past or have reached the maximum limit on their bank cards.” Id, at 510; see Tr. 371-72 (McFeeters).

National is a well-funded operation. The Licensing Application projected that National’s business model would generate free cash flow of $1.5 million to $2 million per year. Its actual performance has been on the order of $1 million per year.

National’s owner and its personnel are sophisticated and knowledgeable. McFeeters acquired National after working in the payday loan industry for approximately ten years.' In 2013, National had fourteen stores ‘throughout Delaware, which it ran using a centralized model. ‘ At trial, National maintained that it had a manual sétting out its policies and proce*830dures. Tracey- Annand, ¿ District Manager at National, trained all of National’s personnel. National employed legal counsel to draft its loan- agreements.

National’s employees recognize that'its customers have difficulty predicting how long their loans will be outstanding and virtually never estimate correctly when they will be able -to repay their loans. Customers who believe they will have a loan outstanding typically end up keeping the loan for “a couple months.” See Tr. 341 (Carter).

ii. James

James is unsophisticated and undereducated. She dropped out of school in, the tenth grade, then obtained her GED approximately ten years later. She tried to improve her skills through a nine-month course on medical billing and coding, but she stopped two months short of graduation. Evidencing her lack-of financial sophistication, she believed that the financial aid she received for the program was a grant. It was actually a loan that she struggled to pay back.

Further evidence of James’ lack of financial sophistication comes from her testimony about why she uses a pre-paid Nexis card. At trial, James explained that she previously had a checking account with PNC Bank but switched to her Nexis-card because she did not like paying a monthly fee to maintain the checking account, Before making the Disputed Loan, .National obtained a sixty-day transaction history for the Nexis account. It shows that during that period, James paid Nexis a total of $127.07 in transaction fees. Each time the Hotel DuPont paid James by direct deposit, Nexis charged her a load fee equal to 2% of the direct deposit amount. The load fees totaled $44.07. Each time James used her card to pay for a transaction and authorized it with- her signature, Nexis charged her a signature transaction fee of $1. She signed for twelve transactions for total signature fees of $12. Each time James used her card to pay for a transaction and authorized it with her pin number, Nexis charged her a PIN transaction fee of $1.50. She completed thirteen PIN transactions for total PIN fees of $19.50. Each time, James attempted a transaction and her card was declined, Nexis charged her a decline fee of $0.50. Her card was declined fourteen times for total decline fees of $7. Each time she withdrew cash, Nexis charged her an ATM usage fee of $2.50. She withdrew cash on twenty-one occasions for total fees of $52.50. The amounts of the cash withdrawals suggest that the' ATM provider also charged a withdrawal fee that was incorporated into the amount of the debit.

James does not appear to have comprehended the magnitude of the per-transaction fees that Nexis charged her, or the reality that those fees far exceeded the flat monthly fee that a bank would charge for a no-minimum-balance checking account, particularly where the client had direct deposit. She seems only to have considered the headline fee charged for the account each month.

James’ perception of the financial charge for the Disputed Loan reflected a similar short-term focus. National contended James understood the block rate she would pay, which was $30 on $100. It is true that James could recite the block rate, but that does not mean she understood its implications. To the contrary, the evidence convinced me that National used a block rate and de-emphasized the APR to mislead its customers and make them think their cost of credit was an order of magnitude lower than -it really was. James did not understand how interest accrued, and she did not understand what would happen upon default.

*831James underestimated her likelihood of repaying the Disputed Loan quickly. She thought she could pay it off in two payments, but she failed to do so. She similarly misremembered her success in repaying previous loans. She thought she paid off each of her previous loans in one or two payments, but for the previous loan's from National (the only loans in the record), James took longer. For the loan immediately preceding the Disputed Loan, there were seven attempted payments, four of which were declined..

James is also underprivileged. : In 2013, she took home approximately $1,100 per month, and .her annualized income of approximately $13,200 represented 115% of the federal poverty line for a single-person household. She lived paycheck to paycheck and had no savings to fall back on. She did not. have access to alternative sources of credit. By 2013, when James took out the Disputed Loan, she had been using high-interest, unsecured loans for four to five years, perhaps longer. She did not use the loans in response to unforeseen emergencies. She used them on a relatively regular basis for essential needs. She obtained the Disputed Loan because she needed money for groceries and rent. James’ frequent use of high-cost loans was a detriment and- should have been a red flag to National.

At trial, National'tried to turn 'James’ weakness into a strength, arguing that she was an experienced consumer who was competent to use high-interest financial products.’ Zywicki- stressed this point, contending'that James’ prior use of similar loans “suggested] that she was familiar with the material terms of the loan; understood the risks, and ’the like.” Tr. 509 (Zywicki); see id. at 523-24, 549-50. In' contrast to National’s arguments at trial, both defenders and critics of payday loans generally agree that’frequent use is problematic.29 ' ■

Given the relative attributes of National and James, the Disputed ‘ Loan involved both “inequality of bargaining or economic power” and the “exploitation of the underprivileged, unsophisticated, [and] uneducated.” Fritz, 1990 WL 186448, at *5. These factors favor a finding of uncon-scionability. , ‘

b. A Take-It-Or-Leave-It, One-Sided Form Agreement

The next Fritz factor ■ asks directly whether there was actual bargaining in*832volved. As framed in Fritz, the court should consider “[t]he use of printed form or boilerplate contracts drawn skillfully by the party in the strongest economic position, which, establish industry wide standards offered on a take it or leave it basis to the party in a weaker economic position.” Id. at *4. The type of standardized contract that this factor describes is also called a contract of adhesion. See Worldwide Ins. Gp. v. Klopp, 603 A.2d 788, 790 (Del. 1992); Graham v. State Farm Mut. Auto. Inc. Co., 565 A.2d 908, 912 (Del. 1989).

“[A] contract of adhesion is not unconscionable per se, and ... all unconscionable contracts are not contracts of adhesion.” Restatement (Second) of Contracts § 208, Reporter’s Note, cmt. a. Contracts of adhesion provide many benefits:

Standardization of agreements serves many of the same functions as .standardization of goods and services; both are essential to a system of mass production and distribution. Scarce and costly time and skill can be devoted to a class of transactions rather than to details of individual transactions. Legal rules which would apply in the absence of agreement can be shaped to fit the particular type of transaction, and extra copies of the form can be used for purposes such as record-keeping, coordination and supeiyision.... Operations are simplified and costs reduced, to the advantage of all concerned.

Id. § 211, cmt, a.

But standardized agreements also carry a heightened risk of unfair terms:

Standardized agreements are commonly prepared by one party. The customer assents to a few terms, typically inserted in blanks on the printed form, and gives blanket assent to the type of transaction embodied in thé standard form. He is commonly not represented in the drafting, and the draftsman may be tempted to overdraw in the interest of his employer. ■ :

Id., § 211, cmt. c. This dynamic creates an “obvious danger of overreaching.” Id. “The weaker party, in need of the good or services, is frequently not in a position to shop around for better terms, either because , the author of the standard contract has a monopoly (natural or artificial) or because all competitors use the same clauses.” 8 Williston on Contracts § 18:13 (quoting Weaver v. Am. Oil Co., 257 Ind. 458, 276 N.E.2d 144, 147 (1971)).

All else equal, the fact that an agreement is a contract of adhesion makes it relatively more likely that the agreement will be found unconscionable. Like the other Fritz factors, the fact that an agreément is a contract of adhesion is not sufficient, standing alone, to render an agreement unconscionable.

The Loan Agreement is a contract of adhesion. It was form agreement, drafted by National, and provided to James on a take-it-or-leave-it basis. James had no ability to negotiate the terms of the Loan Agreement. Other than to rely on the truism that a standard form agreement is not inherently unconscionable, National does not dispute this factor. National’s position is .correct, but this factor nevertheless favors a finding of unconscionability-

c. The Bargaining Environment

The final Fritz factor considers the “[t]he circumstances surrounding the execution of the contract.” 1990 WL 186448, at *4. One pertinent attribute is the commercial setting. Id. Another is whether a party confronts “an absence of meaningful choice.” Ketler v. PFPA, LLC, 132 A.3d 746, 748, 2016 WL 192599, at *2 (Del. 2016) (quotation marks omitted). A third is the “purpose and actual effect” of the agree*833ment. Fritz, 1990 WL 186448, at *4; see 6 Del. C. § 2-302(2) (instructing a court to consider “the purpose and effect” of the contract when evaluating unconscionability). For the Disputed Loan, that necessarily takes into account its relationship to the Payday Loan Law.

i. The Commercial Setting

James obtained the Disputed Loan from a small, store-front office. She was given the documents and told where to sign. Reilly’s main role was to try to induce her to take out twice the loan amount she wanted ($400 instead-,of $200). Those were not ideal conditions, but they were not,inherently oppressive. They are consistent with a standardized financial transaction accomplished through a contract of adhesion.

A more problematic issue is that National’s employees denigrate the importance of the APR while describing the interest rate in simplistic ways that are designed to mislead customers. For example, National takes the position that the APR “has nothing to do with the loan.” Tr- 335 (Carter). National’s employees suggest to borrowers that that the APR is “irrelevant” unless the loan remains outstanding for an entire year. Tr, 337 (Carter). If a customer only plans to keep the loan outstanding for a few weeks, then National’s employees discount the APR as “meaning[less].” Tr. 337-38 (Carter).

Instead of focusing on the APR, National’s employees describe the interest rate in terms that make the cost of the loan seem much lower. At trial, for example, James’ counsel and Vazquez had the following exchange;

Q: Typically, if someone comes in to borrow $100 at Loan Till Payday, what is the interest rate, that they pay?

A: 30 percent

Q: Your understanding is they pay 30 percent? Is that right?

A: It’s a 30 percent block rate.

Tr. 246 (Vazquez). Vazquez did not know how a 30% block rate compared to an APR. Tr. 254 (Vazquez).

These statements are highly problematic. By “describ[ing] the loan cost in terms of a misleading” bi-weekly rate, National understated the total cost of the Disputed Loan.30 Because. National framed the price as “$30 on $100,’’.James thought she would pay $60 for the $200. when she actually agreed to pay $1,620 in finance charges. James understood the simple block rate, but she did not understand the more complex financing arrangement captured by the Loan Agreement,

ii. Lack Of Meaningful Choice

A more significant aspect of the circumstances surrounding the Loan Agreement was James’ lack of ,a meaningful choice. When affirming a finding that .a contract of *834adhesion for membership in a fitness club was not unconscionable, the Delaware Supreme Court observed that “[t]here is no deprivation of meaningful choice if a party-can walk away from the contract.” Ketler, 132 A.3d at 748, 2016 WL 192599, at *2.

Unlike the choice to spend discretionary income on a fitness contract, James needed money for food and to pay her rent. She lived paycheck to paycheck, had no savings to fall back on, and did not have access to alternative sources of credit. She had reached a point where she was using high-interest, unsecured loans on a regular basis to make ends meet. As a practical matter, James’ precarious financial situation meant she did not "have meaningful options other than a high-interest loan like the Disputed Loan.

iii. The Purpose And Effect Of The Loan Agreement

Perhaps the most "critical aspect of the bargaining environment was "the purpose and effect of the Loan Agreement, which was to evade the Payday Loan Law. To reiterate, a traditional payday loan was a short-term loan designed to be repaid in a single balloon payment on the borrower’s next payday, usually within two weeks or, if the borrower was paid monthly, within one month: See Consumer Credit, supra, at 356 (“A payday loan is a small, short-term, single-payment consumer- loan.”). Many borrowers, however, "did not repay their loans when the balloon payments were due. When that happened, the payday loan company rolled the outstanding balance into a new payday loan for the total amount of unpaid principal and interest, plus fees. The short-term loan effectively became a.longer term loan at the same high interest rate. Consumer advocates regarded the rollover as “[p]erhaps the most dangerous feature of the payday-loan product.”31

To address the interest-only rollover problem in Delaware, the General Assembly adopted the Payday Loan Law. The synopsis of. the bill stated:

This bill limits to five the number of short-term consumer loans (sometimes called payday loans) that any one borrower may obtain in a twélve month period.1 It changes the definition of short-term consumer loan- to include loans up to $1000 rather than $500. The bill alsó provides for establishment of a database to track the number of short-term consumer loans ah individual has obtained in a twelve month period. Finally, the Banking Commissioner is directed to provide a report on the prevalence and nature of these payday loans to the General Assembly.

Del. H.B. 289 syn., 146th Gen. Assem. (2012). - '

The centerpiece of the legislation was the cap on the number of payday loans that any one consumer could obtain in a single twelve-month period, combined with a provision that defined a rollover as a new loan. The pertinent statutory language stated:

Notwithstanding any other provision of law, no licensee shall make, and no borrower shall receive, a short-term consumer loan that would cause the borrower to have more than five (5) short-term consumer loans from all licensees in any twelve-month period. For the purposes of this section a rollover or a refinancing shall be considered a short-term consumer loan. Any loan made or collected *835in violation of this paragraph is void, and the licensee does not have the right to collect, receive, or retain any principal, interest, fees or other charges. A violation of this section is a violation of Chapter 25 of Title 6 of the Delaware Code.32

5 Del. C. § 2235A(a)(l) (the “Five Loan Limit”; footnote added). The Five Loan Limit sought to help borrowers avoid being trapped in longer-term, ultra-high interest loans by capping the number of times that payday lenders could roll over payday loans.

Importantly, the Payday Loan Law only applied to short-term consumer loans, which the statute defined as “a loan of $1,000 or less made to an individual borrower that charges interest and/or fees for which the stated repayment period is less than 60 days and is not secured by title to a motor vehicle.” Id. § 2227(7). But the Payday Loan Law also incorporated an anti-evasion provision, which stated:

A licensee or licensee’s agent shall not engage in any device or subterfuge intended to evade the requirements of this chapter through any method including, but not limited to, mail, telephone, Internet or any electronic means, including:

(1) Offering, making, or assisting a borrower to obtain a loan in violation of [the Five Loan Limit], or brokering or acting as an agent for a third party in such a transaction, regardless of whether approval, acceptance or ratification is necessary to create a legal obligation for the third party.

(2) Disguising a short-term consumer loan as a revolving line of credit or making or assisting a borrower to obtain a revolving line of credit for the purpose of avoiding the requirements of [the Five Loan Limit],

Id. § 2235A(f) (the “Anti-Evasion Provision”).

The Payday Loan Law was enacted before McFeeters acquired National. Under its prior owner, National responded to the Payday Loan Law by capping the number of times a customer could rollover a payday loan. Loan Till Payday’s website described National’s “Quick Payday Loan” product as follows:

Term: One pay period (usually 2 weeks or 1 month)

Fee/Rate: $20 per $100 borrowed ($30 per $100 borrowed if you get paid monthly)

*836Payment Type: Payment in full due on each pay date. Option to roll over loan 4 times by paying the interest only. Af■ter the 4th rollover, payment in full (principle [sic] + interest) is due

Due: On each Pay Date[.]

JX 9 at 6. By limiting the customer to four rollovers, National stayed under the Five Loan Limit.

Once McFeeters acquired National, he caused National to stop making .payday loans and switch to installment loans. The new structure built the rollover problem into the design of the loan.

In its initial manifestation, National’s installment loan product was a seven-month term loan called the Flex Pay Loan. Its economic substance mirrored a one-month payday loan that was rolled over seven times (or a two-week payday loan that was rolled over fourteen times). Loan Till Payday’s website described the Flex Pay Loan product as follows:

Term: 7 Months.

Fee/Rate: $20 per $100 borrowed ($30 per $100 borrowed if you get, paid monthly)

Payment Type: Interest Only, Principle [sic] due at end of loan (Balloon Payment). You can pay more than interest and lower, your principle [sic] balance at any time. ...

Due: On each Pay Date[.]

Id.; see Tr. 272-73 (Vazquez). Because it was designed to. be outstanding for seven months, the Flex Pay Loan fell outside the coverage of the Payday Loan Law.

From an economic standpoint, however, the Flex Pay Loan product and the Quick Payday Loan product were functionally equivalent.33 The Quick Payday Loan product ostensibly contemplated full repayment in one period but could be extended longer with interest-only payments leading to a final balloon payment. The Flex Pay Loan product ostensibly contemplated a series of interest-only payments followed by a1 final balloon payment,' but the customer could pay it off earlier.34

National láter developed the Flex Loan product that it sold to James. The main difference was that the Flex Loan product contemplated twelve months of bi-weekly, interest-only payments before the final balloon payment.

Put simply, National designed its installment loan products to evade the Five Loan Limit. From National’s standpoint, the shift was actually beneficial, because the new products built the concept of interest-only rollovers into the loans themselves.

The Anti-Evasion Provision recognized the risk that a lender might disguise “a short-term, consumer loan as a revolving line of credit.”' 5 Del. C. § 2235A(f)(2). National took the opposite- approach. It disguised a short-term consumer loan as an interest-only, non-amortizing install*837ment loan. National’s shift to ■ interest-only installment loans as a means of evading the Five Loan Limit followed a strategy employed by payday lenders in other jurisdictions.35 '

3. Balancing The Factors

All of the Fritz factors point in favor of a finding of unconseionability, albeit to varying degrees. The most telling factors include (i) the economic terms of the Disputed Loan, which support a prima facie ease of substantive unconseionability, (ii) the purpose and effect of the installment loan structure- in circumventing the Payday Loan Law and the Five Loan Limit, and .(iii) the exploitation of. an underprivileged, undereducated, and financially vulnerable person. .Secondary factors include (a) the use of a contract of adhesion, .(b) the overall -imbalance of rights and obligations, and (c) National’s practices when describing the block rate finance charge versus the APR, which present a misleading picture of the cost of credit.

On balance, the Loan Agreement is unconscionable. No one would borrow rationally on the terms it contemplated unless that person was delusional, mistaken about its terms or a material fact, or under economic duress.

4. The Remedy For The Unconscionable Agreement

Because the Loan Agreement is unconscionable, it is voidable. The proper remedy is to declare it invalid. See Restatement (Second) of Contracts § 208, cmt. g.

Declaring the Loan Agreement invalid is likewise appropriate because National sought to use an interest-only, non-amortizing, installment loan to evade the Payday Loan Law. “Equity always attempts to ... ascertain, uphold, and enforce-rights and duties which spring from the real relations of parties.” 2 John Norton Pomeroy, Equity Jurisprudence § 378,. at 41 (Spencer W. Symons ed., 5th ed. 1941). “[Ejquity regards substance rather than form.” Monroe Park v. Metro. Life Ins. Co., 457 A.2d 734, 737 (Del. 1983). Equity also “regards that as done which in good conscience ought to- be done.”- Id. *838In substance, the Disputed Loan was a payday loan designed to roll over twenty-six times, which contravened the Five Loan Limit.

National loaned James $200. James has repaid National $197. As a consequence of rescinding the Loan Agreement, James owes National another $3. James may satisfy this obligation by setting it off against amounts that this decision orders National to pay.

James also asked for a permanent injunction barring National from collecting on similar loans it made to other customers. That relief is too broad to be granted in the current case and would embroil this court in on-going oversight of National’s business.

C. The Truth In Lending Act

James separately provided at trial that National violated TILA. Originally enacted in 1968, TILA’s stated goal is to “as1 sure a meaningful disclosure of credit terms so that .the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and , unfair credit billing and credit card practices.” 15 U.S.C. § 1601(a). The Board of Governors of the Federal Reserve System implemented this disclosure-based regime through Regulation Z, which requires lenders to calculate and disclose interest rates according to a prescribed formula. See 12 C.F.R. part 226 (2011). Consumers have standing to enforce the Federal Reserve’s rules through private litigation. See 26 Causes of Action 2d § 409 (2004).

.TILA applies to closed-end consumer credit transactions like the Disputed Loan.36 A lender violates TILA if it discloses an APR on a consumer loan that is “more than 1/8 of 1 percentage point above or below” the APR determined in accordance with certain actuarial methods. 12 C.F.R. § 226.22(a)(2). There is a statutory defense for inadvertent mistakes made in good faith:

A creditor or assignee may not be held liable in any action brought under this section or section 1635 of this title for a violation of this subchapter if the creditor or assignee shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error. Examples of a bona fide error include, but-are not limited to, clerical, calculation, computer malfunction and programming,' and printing errors, except that an error of legal judgment with- respect to a person’s. obligations under this subchapter is not a bona fide error.

15 U.S.C. § 1640(c) (the “Bona Fide Error Defense”). For purposes of APR calculation errors, the Federal Reserve has issued a regulation providing that a creditor can establish a Bona Fide Error Defense by proving that “(1) [t]he error resulted from a corresponding error in a calculation tool used in good faith by the creditor; and (2) upon discovery of the error, the creditor promptly discontinue[d] use of that calculation tool for disclosure purposes and notifie[d] the [Federal Reserve] in writing of the error in the calculation tool.” 12 C.F.R. § 226.22(a)(1) n.45d. This decision applies the regulatory test *839for the Bona Fide Error Defense because it speaks specifically to an APR calculation error. Cf. Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 557, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980) (stating that courts should give “a high degree of deference” to the Federal Reserve’s interpretation of TILA).

As a sanction' for National’s discovery misconduct, this court previously determined that the “APRs for the loans disclosed on the Updated Spreadsheet fell outside the acceptable range set forth in TILA.” James v. Nat’l Fin. LLC, 2014 WL 6845560, at *13 (Del. Ch. Dec. 5, 2014). The Disputed Loan was . one of the loans on the spreadsheet. The operative question is whether National established a Bona Fide Error Defense.

National failed to prove its Bona Fide Error Defense. Although National claims to have relied on computer software to calculate the APR, the Delaware Bank Commissioner told National on multiple occasions that it had concerns about National’s APR calculations. ■ Nationál did not promptly discontinue its use of its computer software and did not provide notice in writing to the Federal .Reserve. National only discontinued its use of the software in 2014, a year after making the Disputed Loan.

TILA contemplates an award of actual damages if the plaintiff proves that she relied on the incorrect APR. See, e.g., Turner v. Beneficial Corp., 242 F.3d 1023, 1026-28 (11th Cir. 2001) (collecting cases and analyzing TILA’s history). James did not rely on the incorrect figure, so she cannot recover actual damages.

TILA also contemplates statutory damages. 15 U.S.C. § 1640(a)(2). In the event of a violation, a court should award “in the case of an individual action twice the amount of any finance charge in connection with the transaction.” Id. § 1640(a)(2)(A)(i). The finance charge “is the cost of consumer credit as a dollar amount” and includes interest, transaction charges, fees, and any other charges other than repayment of principal. 12 C.F.R. § 226.4(a)-(b),

The finance charge for the Disputed Loan was $1,620. Twice this amount is $3,240. Offsetting the $3.that James still owes National results in a judgment for James in the amount of $3,237. ;

TILA directs the court to award reasonable attorneys’ fees and costs “in the case of any successful action to enforce” liability under § 1640(a)(2)(A)(i). ' 15 U.S.C. § 1640(a)(3). James is entitled to a fee award.

III. CONCLUSION

The Disputed Loan is invalid. Judgment is entered in favor of James in the amount of $3,237. Pre- and post-judgment interest on this amount will accrue at the legal rate, compounded quarterly, beginning on May 7, 2013. James is awarded her attorneys’ fees and costs. Counsel shall submit a Rule 88 affidavit. If the parties can agree on an amount, then they shall submit a form of final order and judgment that is agreed as to form. Otherwise they shall propose a schedule for a fee application.

*783ORDER

JOSEPH R. GOODWIN, Chief Judge.

Pending before the court is Defendant CashCall’s Motion to Dismiss [Docket 7], and the plaintiffs Motion to Remand [Docket 14]. For the reasons herein, the plaintiffs Motion is GRANTED and Defendant CashCall’s Motion is DENIED as moot.

I. Background

On October 8, 2008, the State of West Virginia (“the State”) filed a Complaint against the defendants, CashCall, Inc. (“CashCall”), and J. Paul Reddam, in the Circuit Court of Kanawha County, West Virginia. (Notice Removal, Ex. A [Docket 1].) In that Complaint, the State alleges, among other things, that CashCall participated in an alleged “rent-a-bank” or “rent-a-charter” scheme designed to avoid West Virginia usury laws. The so-called “scheme” entailed CashCall’s entry into a Marketing Agreement (the “Agreement”) with a bank chartered in South Dakota, the First Bank and Trust of Milbank (“the Bank”). The Agreement provided that CashCall would market loans to consumers as an agent of the Bank. The Bank would then approve and directly fund the loans. Three business days later, CashCall would, pursuant to the Agreement, purchase the loan from the Bank and become the owner of the loan. The State argues that Cash-Call’s overall involvement with those loans rendered it the de facto lender of the loans and that the interest rates charged on those loans exceed the amount allowed by West Virginia usury laws.

On November 17, 2008, CashCall removed this action to federal court1 and the State subsequently filed a Motion to Remand [Docket 14]. CashCall has also filed a Motion to Dismiss [Docket 7]. In that motion, CashCall argues that the State’s First, Second, Third, Fourth and Sixth Causes of Action should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Both the State’s Motion to Remand and CashCall’s Motion to Dismiss are ripe for review.

II. Motion to Remand

In its Notice of Removal, CashCall asserts that this court has federal question jurisdiction over this matter by virtue of the complete preemption doctrine. Specifically, CashCall argues that the Bank is the real party in interest with respect to the State’s claims, “each and every [one of which] concerns consumer loans made in West Virginia by the Bank.” (Notice Removal ¶ 13.) (emphasis in the original). Because the Bank is the real lender, Cash-Call argues, the State’s usury law claim is completely preempted by § 27 of the Federal Deposit Insurance Act (“FDIA”), 12 U.S.C. § 1831d. The State responds that its Complaint only raises state law claims against CashCall, which is not a bank. Therefore, the State argues, the claims do not raise a federal question establishing federal subject matter jurisdiction and removal of this case to federal court was improper. (State’s Mem. Supp. Mot. Remand 1 [Docket 15].) I FIND that because the State only asserts state law claims against CashCall, a non-bank entity, the claims do not implicate the FDIA, the FDIA does not completely preempt the state-law claims, and there are no federal questions on the face of the Complaint. Accordingly, the State’s Motion to Remand is GRANTED.

*784A. Complete Preemption Doctrine

A defendant may remove to federal court any case filed in state court over which federal courts have original jurisdiction. 28 U.S.C. § 1441. Federal courts have original jurisdiction over all civil actions arising under the laws of the United States. 28 U.S.C. § 1331. An action arises under the laws of the United States if a federal claim or question appears on the face of a well-pleaded complaint. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987).

The well-pleaded complaint rule limits a defendant’s ability to remove a case involving federal questions because it allows removal only if “the plaintiffs complaint establishes that the case ‘arises under’ federal law.” Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S.Cal., 463 U.S. 1, 10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (footnote omitted; emphasis in original).2 In other words, “a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiffs cause of action” before removal can occur. Id. at 10-11, 103 S.Ct. 2841 (quoting Gully v. First Nat’l Bank in Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70 (1936)). Further, an action cannot be removed to federal court based upon “a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiffs complaint, and even if both parties admit that the defense is the only question truly at issue in the case.” Id. at 14, 103 S.Ct. 2841; see also Caterpillar, 482 U.S. at 393, 107 S.Ct. 2425.

The complete preemption doctrine is an “independent corollary of the well-pleaded complaint rule.” Caterpillar, 482 U.S. at 393, 107 S.Ct. 2425. As explained by the United States Supreme Court, the doctrine of complete preemption applies when the preemptive force of a federal statute is so “extraordinary” that it converts a complaint solely asserting state law claims into one raising a federal question and satisfying the well-pleaded complaint rule. Id. Thus, “[o]nce an area of state law has been completely pre-empted, any claim purportedly based on that preempted state law is considered, from its inception, a federal claim, and therefore arises under federal law.” Id.

B. The State’s Usury Law Claim Against CashCall is Not Completely Preempted

The complete preemption question in this case involves § 27 of the FDIA.3 Section 27 allows a state-chartered bank to charge interest rates permitted in its home state on loans made outside of its home state, even if the interest rate would be illegal in the state where the loan is made.4 *78512 U.S.C. § 1831d(a). Therefore, state usury laws establishing maximum permissible interest rates do not apply to loans made by out-of-state banks. Id. In Discover Bank et al. v. Vaden, 489 F.3d 594, 603-04 (4th Cir.2007), rev’d on other grounds, 556 U.S. -, 129 S.Ct. 1262, 173 L.Ed.2d 206 (2009), the Fourth Circuit held that § 27 of the FDIA completely preempts state usury law claims against state-chartered banks.5

In this case, the State asserts a usury law claim against CashCall, a non-bank entity. The State alleges that “[t]he relationship between CashCall and the Bank was a sham intended to circumvent the usury and consumer protection laws of West Virginia,” and that “CashCall made ‘usurious loans,’ in violation of [West Virginia law].” (Id., Ex. A ¶¶ 82, 84). The FDIA does not apply to non-bank entities. Vaden, 489 F.3d at 601 n. 6. Thus, on its face, the Complaint does not state any usury law claims against a state-chartered bank that would implicate the FDIA and be completely preempted.

Nevertheless, courts addressing the complete preemption question with respect to state usury law claims have found it necessary to determine whether the claims were actually directed against a federally or state-chartered bank. See In re Cmty. Bank of N. Va. et al., 418 F.3d 277, 296 (3d Cir.2005) (“[W]e must examine the ... complaint to determine if it alleged state law claims of unlawful interest by a nationally or state chartered bank”); Krispin v. May Dep’t Stores Co., 218 F.3d 919, 924 (8th Cir.2000) (“[T]he question of complete preemption in this case turns on whether appellants’ suit against the [non-bank] store actually amounted, at least in part, to a state usury claim against the bank.”).6 Courts evaluating the removal of state usury law claims similar to those in this case have found that the claims were directed only against the non-bank entity, rather than the bank, and that the claims were not completely preempted. For example, in Colorado ex rel. Salazar v. Ace Cash Express, Inc., 188 F.Supp.2d 1282 (D.Colo.2002), the plaintiff alleged that the defendant was an unlicensed supervised lender charging excessive and improper fees in violation of state law. Id. at 1284. The defendant removed the action on the grounds that it operated as an agent for a national bank and therefore the claims were completely preempted by the National Bank Act (“NBA”), 12 *786U.S.C. § 85.7 Id. The district court found that removal was improper because the defendant was a separate entity from the bank and the plaintiff alleged no claims against the bank. Id. at 1285.

Similarly, in Flowers v. EZPawn Oklahoma, Inc., 307 F.Supp.2d 1191 (N.D.Okla. 2004), the plaintiff brought a class action law suit based on claims of usury and fraud. Id. at 1196. The plaintiff alleged that the defendants charged interest rates on payday loans in excess of those permitted by Oklahoma usury laws and that they had entered into a “sham” relationship with a state-chartered, federally insured bank, “for the purpose of claiming federal preemption and evading usury, fraud and protection laws.” Id. at 1196. The defendants argued that they acted as “servicers for the loan made by ... a Delaware-chartered, federally insured bank. And as [the] Bank [was] the lender, federal banking law and not Oklahoma law govern[ed] the legality of interest rates.” Id. Following the guidance of Salazar, the district court found that the plaintiff only asserted claims against non-bank defendants, which were separate entities from the state-chartered bank, and therefore, the district court had no subject matter jurisdiction over the claims. Id.

Also, in In re Community Bank of Northern Virginia et al., 418 F.3d 277 (3d Cir.2005), the plaintiffs brought a class action against a non-bank entity for originating “bogus” loans and charging illegal fees. Id. at 285. The defendant was involved in an alleged conspiracy with a state-chartered bank and a nationally-chartered bank to avoid state usury laws. Id. at 284. The banks, however, were not named in the original complaint. The Third Circuit held that the complaint only asserted claims against the non-bank defendant and because the non-bank defendant was a completely separate entity from the two banks, the state law usury claims could not be preempted by the NBA or FDIA. Id. at 297.

The state usury law claim in the instant matter strongly resembles those in Salazar, Flowers, and Community Bank. Like the plaintiffs in those cases, the State has only asserted state claims against a non-bank entity — CashCall. Further, Cash-Call and the Bank are completely separate entities. See Notice Removal, Ex. A at Ex. E § 11.8. The presence of such factors in the three eases discussed above led to a determination by those courts that the state usury law claims were not completely preempted despite the defendants’ status as agents of nationally or state-chartered banks. The presence of the same factors in this case support a conclusion that the usury law claim is directed only against CashCall.

The Complaint as a whole provides further support that the usury claim is directed against CashCall, rather than the Bank. The ten causes of action in the Complaint allege that CashCall violated a large number of West Virginia consumer protection laws. The totality of the Complaint shows that the State’s suit is directed against a single, specific entity violating a host of state laws including the usury law — that entity is CashCall, not the Bank.

Further supporting that conclusion is the absence of any indication that the *787State artfully pled its claims against Cash-Call, rather than the Bank, to thwart federal question jurisdiction and Congressional intent. See Phipps v. FDIC, 417 F.3d 1006, 1011 (8th Cir.2005) (requiring courts applying the complete preemption doctrine to “look beyond the plaintiffs’ artful attempts to characterize their claims to avoid federal jurisdiction”). The claims in this case are limited to CashCall’s conduct and do not implicate the Bank’s rights under the FDIA. The State does not dispute that the Bank, as a South Dakota-chartered bank, may make loans in West Virginia and charge interest rates permitted in South Dakota. (State’s Mem. Supp. Mot. Remand 3.) Further, the Complaint does not target such loans and charges by the Bank. The Complaint does target, however, loans and interest charges allegedly made by CashCall. If CashCall is found to be a de facto lender, then CashCall may be liable under West Virginia usury laws. A contrary determination that CashCall is not a real lender will not result in the Bank’s liability or regulation under state laws, but will merely relieve CashCall of liability under those laws. Cf. Goleta Nat’l Bank v. O’Donnell, 239 F.Supp.2d 745, 756 (S.D.Ohio 2002). Thus, an adjudication of the usury claim in this matter will not affect the Bank’s rights to make loans and charge FDIA-permitted interest rates in West Virginia. Cf. Goleta Nat’l Bank v. Lingerfelt, 211 F.Supp.2d 711, 719 (E.D.N.C.2002); O’Donnell, 239 F.Supp.2d at 755-56.

CashCall mistakenly argues that the complete preemption of § 27 necessarily applies to the State’s usury law claim because the Bank is the real lender in the relationship. (CashCall’s Mem. Supp. Opp’n State’s Mot. Remand 2, 5.) It is true that in some cases, courts have found that state usury law claims nominally directed against a non-bank entity were actually directed against a related bank and thus were completely preempted by the FDIA or NBA. See Vaden, 489 F.3d at 603; Krispin, 218 F.3d at 924.8 But those cases are distinguishable from this one. First, there was no question in Vaden and Kris-pin that the state-banks controlled the allegedly usurious charges. See Vaden, 489 F.3d at 603 (emphasizing the fact that the bank set the interest rates being challenged); Krispin, 218 F.3d at 924 (finding that the bank set the fees being challenged). In this case, the State alleges that CashCall is the de facto lender and there is a factual question as to the identity of the true lender.9 Second, the state-banks and agents in Vaden and Krispin were related either through an indemnity agreement or through their corporate structure. See Vaden, 489 F.3d at 602-03 (explaining that the bank agreed to indemnify the agent from damages caused by the bank, including its violation of state and federal laws); Krispin, 218 F.3d at 923 (explaining that the bank was a wholly-owned subsidiary of the servicing agent). In contrast, CashCall and the Bank are completely separate entities. See Notice Removal, Ex. A at Ex. E § 11.8.

*788Finally, the character of the complaints in Vaden and Krispin contrast sharply with the complaint in this case. The plaintiffs in the former cases were seeking damages caused by usurious fees. In such cases, the fact that a state-chartered bank may be the true lender of the loans may bear some weight in the complete preemption analysis because monetary recovery is sought from the responsible entity, which may be the bank. In this case, however, the attorney general of the State of West Virginia is seeking relief from the harmful conduct of a specific entity — CashCall. This broad objective is evident in the Complaint. Where, as here, a lawsuit is directed at the usurious conduct of a specific non-bank entity that does not benefit from the privileges conferred by the FDIA, the fact that a state-chartered bank might be the true lender responsible for allegedly usurious loans is less significant. This is because the bank is not the targeted entity and cannot provide the sought relief even if it turns out to be the real lender; the non-bank entity would remain the target.

Ultimately, as expressed in Salazar; CashCall “confuses what this case is and is not about. The Complaint strictly is about a non-bank’s violation of state law. It alleges no claims against a [state-chartered ] bank under the [FDIA ].” Salazar, 188 F.Supp.2d at 1285 (internal quotations omitted) (emphasis in the original). I FIND that the State’s usury law claim is directed against CashCall, which is not a bank, and therefore, the claim does not invoke and cannot be completely preempted by the FDIA. Accordingly, I FIND that the State’s Complaint does not raise any federal questions on its face and that this court does not have subject matter jurisdiction over this case.

III. Conclusion

As discussed above, this court does not have subject matter jurisdiction over the instant matter. Accordingly, I GRANT the State’s Motion to Remand [Docket 14] and ORDER this case remanded to the Circuit Court of Kanawha County, West Virginia. Further, I DENY as moot CashCall’s Motion to Dismiss [Docket 7].

The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party.

HARTZ, Circuit Judge.

Quik Payday, Inc., which used the Internet in making short-term loans, appeals from the district court’s rejection of its constitutional challenge to the application of Kansas’s consumer-lending statute to those loans. Defendants were Judi M. Stork, Kansas’s acting bank commissioner, and Kevin C. Glendening, deputy commissioner of the state’s Office of the State Bank Commission (OSBC), both in their official capacities.

Quik Payday argues that applying the statute runs afoul of the dormant Commerce Clause by (1) regulating conduct that occurs wholly outside Kansas, (2) un*1304duly burdening interstate commerce relative to the benefit it confers, and (3) imposing Kansas requirements when Internet commerce demands nationally uniform regulation. We disagree. The Kansas statute, as interpreted by the state officials charged with its enforcement, does not regulate extraterritorial conduct; this court’s precedent informs us that the statute’s burden on interstate commerce does not exceed the benefit that it confers; and Quik Payday’s national-uniformity argument, which is merely a species of a burden-to-benefit argument, is not persuasive in the context of the specific regulation of commercial activity at issue in this case. We have jurisdiction under 28 U.S.C. § 1291 and affirm the district court.

I. BACKGROUND

From 1999 through early 2006, appellant Quik Payday was in the business of making modest, short-term personal loans, also called payday loans. It maintained an Internet website for its loan business. The prospective borrower typically found this website through an Internet search for payday loans or was steered there by third-party “lead generators,” a term used for the intermediaries that solicit consumers to take out these loans. In some instances Quik Payday sent solicitations by e-mail directly to previous borrowers.

Once on Quik Payday’s website, the prospective borrower completed an online application form, giving Quik Payday his or her home address, birthdate, employment information, state driver’s license number, bank-account number, social security number, and references. If Quik Payday approved the application, it electronically sent the borrower a loan contract, which the borrower signed electronically and sent back to Quik Payday. (In a small number of cases these last few steps took place through facsimile, with approved borrowers physically signing the contracts before faxing them back to Quik Payday.) Quik Payday then transferred the amount of the loan to the borrower’s bank account.

Quik Payday made loans of $100 to $500, in hundred-dollar increments. The loans carried $20 finance charges for each $100 borrowed. The borrower either paid back the loans by the maturity date — typically, the borrower’s next payday — or extended them, incurring an additional finance charge of $20 for every $100 borrowed.

Quik Payday was headquartered in Logan, Utah. It was licensed by Utah’s Department of Financial Institutions to make payday loans in Utah. It had no offices, employees, or other physical presence in Kansas.

Between May 2001 and January 2005, Quik Payday made 3,079 payday loans to 972 borrowers who provided Kansas addresses in their applications. Quik Payday loaned these borrowers approximately $967,550.00 in principal and charged some $485,165.00 in fees; it collected $1,325,282.20 in principal and fees. When a Kansas borrower defaulted, Quik Payday engaged in informal collection activities in Kansas but never filed suit.

Kansas regulates consumer lending, including payday lending, under its version of the Uniform Consumer Credit Code. See Kan. Stat. Ann. §§ 16a-1-101 through 16a-9-102 (KUCCC). The KUCCC defines payday loans, or “supervised loans,” as those on which the annual percentage interest rate exceeds 12%. Id. § 16a-l-301(46). Under the KUCCC a payday lender (other than a supervised financial organization — in essence, a bank with a federal or state charter, see id. § 16a-l-301(44)) must obtain a license from the head of the consumer-and-mortgage-lending division of the OSBC before it can make supervised loans in Kansas. See id. §§ 16a-l-301(2), 16a-2-302. Obtaining a *1305license requires paying an application fee of $425 (and a further $325 to renew each year), posting a surety bond costing approximately $500 per year, and submitting to a criminal-background and credit check, for which there is no fee. Supervised lenders may not charge more than 36% per annum on unpaid loan balances of $860 or less, and may not charge more than 21% per annum on unpaid balances of more than $860. See id. § 16a-2-401(2). Supervised lenders are required to schedule installment payments in substantially equal amounts and at substantially regular intervals on loans of less than $1,000 and on which the finance charge exceeds 12%. Id. § 16a-2-308. When such loans are for $300 or less, they must be payable within 25 months, while such loans of more than $300 must be payable within 37 months. Id. § 16a-2-308(a)-(b). Quik Payday was never licensed to make supervised loans by the OSBC.

In 1999 Kansas amended the provision of the KUCCC that governs the statute’s territorial application. See id. § 16a-l-201. Before that year a consumer-credit transaction was deemed to have been “made in th[e] state,” and to come under the KUCCC, if either (a) the creditor received in Kansas a signed writing evidencing the consumer’s obligation or offer, or (b) “the creditor induces the consumer who is a resident of this state to enter into the transaction by face-to-face solicitation in this state.” 1993 Kan. Sess. Laws ch. 200 § 3. The 1999 legislation amended paragraph (l)(b) to say that the transaction is deemed to have been made in Kansas if “the creditor induces the consumer who is a resident of this state to enter into the transaction by solicitation in this state by any means, including but not limited to: Mail telephone, radio, television or any other electronic means.” Kan. Stat. Ann. § 16a — 1—201(l)(b) (emphasis added). No party or amicus questions that the catchall “other electronic means” includes the Internet.

Under the KUCCC a consumer’s residence is the address given by the consumer as his or her address “in any writing signed by the consumer in connection with a credit transaction.” Id. § 16a-l-201(6). The statute does not define “solicitation.” Defendants conceded in district court, however, that merely maintaining a website accessible in Kansas that advertises payday loans is not solicitation in Kansas under § 16a-1-201(1)(b). See Quik Payday, Inc. v. Stork, 509 F.Supp.2d 974, 982 n. 7 (D.Kan.2007).

In June 2005 the OSBC received a complaint from a Kansas consumer about a loan transaction with Quik Payday. The agency responded by ordering Quik Payday, which was not on its list of licensed supervised lenders, to produce documents regarding its loans to Kansas residents. Quik Payday submitted the requested documents, which revealed the above-mentioned 3,079 payday loans to 972 Kansas residents. On March 13, 2006, the OSBC issued a summary order that required Quik Payday to stop all payday lending to Kansas residents, halt any collections on outstanding loans, pay a civil penalty of $5 million, and return to the borrowers the interest, service fees, and profits from the 3,079 loans. The order also barred Quik Payday from applying in the future to become a licensed payday lender in Kansas. Quik Payday timely requested an administrative hearing to challenge the order.

On May 19, 2006, shortly before the scheduled date of the administrative hearing, Quik Payday filed this lawsuit under 42 U.S.C. § 1983 against Defendants in the United States District Court for the District of Kansas. (Quik Payday requested and was granted a stay of the adminis*1306trative hearing; as a result, no final order has been entered in that proceeding.) Quik Payday’s complaint in district court sought a declaratory judgment that Kansas could not regulate Quik Payday’s loans and an injunction barring such regulation. It claimed that both Kan. Stat. Ann. § 16a — 1—201(1)(b) itself and Kansas’s application of its consumer-credit laws to Quik Payday under this provision of the statute are unconstitutional under the Commerce Clause and Due Process Clause.

Quik Payday moved for summary judgment, offering three arguments under the dormant Commerce Clause: (1) the statute is an impermissible extraterritorial regulation; (2) the statute impermissibly burdens interstate commerce under the balancing-test of Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970); and (3) the statute subjects Internet lending to inconsistent state regulations. On the same day, Defendants moved for summary judgment on Quik Payday’s constitutional claims, including its contentions under the Due Process Clause that Kansas lacked the power to regulate it and that Kan. Stat. Ann. § 16a-1-201 is unconstitutionally vague and over-broad. (Quik Payday did not seek summary judgment on these due-process claims). The parties stipulated to the facts to be considered by the district court in deciding their motions.

The district court denied Quik Payday’s motion for summary judgment and granted Defendants’ cross-motion. It rejected each of Quik Payday’s three Commerce Clause challenges to the Kansas statute and its application to Quik Payday. It rejected the contention that Kansas was seeking to regulate conduct entirely outside its borders because the Kansas statute is triggered only if there is both solicitation in Kansas and a loan to one of its residents. Quik Payday, 509 F.Supp.2d at 981. With regard to Pike balancing, the court cited our decision in Aldens, Inc. v. Ryan, 571 F.2d 1159 (10th Cir.1978), for the proposition that “a state’s regulation of the cost and terms on which its residents borrow money from an out-of-state creditor is not outweighed by the burdens on interstate commerce.” Quik Payday, 509 F.Supp.2d at 979. And as to national uniformity, the court determined that Quik Payday had not shown that “internet payday lending specifically represents the type of commerce that should only be subject to nationally-uniform standards,” id. at 983; its regulated conduct was aimed specifically at Kansas and did not necessarily implicate other states or their regulations. The court also entered summary judgment for Defendants on Quik Payday’s due-process claims. Id. at 984-85.

Quik Payday appeals the district court’s grant of summary judgment to the Defendants and the denial of summary judgment to itself.1 It does not challenge the district court’s due-process rulings but only those regarding the Commerce Clause.

II. DISCUSSION

We review a district court’s decision to grant summary judgment de novo, viewing all facts in the light most favorable to the party opposing summary judgment. See Jacklovich v. Simmons, 392 F.3d 420, 425 (10th Cir.2004). We will affirm a grant of summary judgment if there is no genuine issue of material fact and the prevailing *1307party is entitled to judgment under the law. See id. at 426; Fed.R.Civ.P. 56(c). Likewise, we conduct de novo review of legal issues, including challenges to the constitutionality of statutes. See Hoffmann-Pugh v. Keenan, 338 F.3d 1136, 1138 (10th Cir.2003).

A. The Dormant Commerce Clause

The Supreme Court “long has recognized that th[e] affirmative grant of authority to Congress [to regulate interstate commerce] also encompasses an implicit or ‘dormant’ limitation on the authority of the States to enact legislation affecting interstate commerce.” Healy v. Beer Inst., 491 U.S. 324, 326 n. 1, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989); see Dennis v. Higgins, 498 U.S. 439, 447, 111 S.Ct. 865, 112 L.Ed.2d 969 (1991) (“[T]he Commerce Clause does more than confer power on the Federal Government; it is also a substantive restriction on permissible state regulation of interstate commerce.” (internal quotation marks omitted)). State statutes may violate the dormant limitation in three ways:

First, a statute that clearly discriminates against interstate commerce in favor of intrastate commerce is virtually invalid per se and can survive only if the discrimination is demonstrably justified by a valid factor unrelated to economic protectionism. Second, if the statute does not discriminate against interstate commerce, it will nevertheless be invalidated under the Pike [397 U.S. at 142, 90 S.Ct. 844, 25 L.Ed.2d 174] balancing test if it imposes a burden on interstate commerce incommensurate with the local benefits secured. Third, a statute will be invalid per se if it has the practical effect of extraterritorial control of commerce occurring entirely outside the boundaries of the state in question.

KT & G Corp. v. Att’y Gen. of Okla., 535 F.3d 1114, 1143 (10th Cir.2008) (internal quotation marks omitted).

Although Quik Payday treats the need for national uniformity as an additional ground for determining that a state law violates the Commerce Clause, concerns about national uniformity are simply part of the Pike burden/benefit balancing analysis. When assessing the burden of a state law on interstate commerce, “the practical effect of the statute must be evaluated not only by considering the consequences of the statute itself, but also by considering how the challenged statute may interact with the legitimate regulatory regimes of other States and what effect would arise if not one, but many or every, State adopted similar legislation.” Healy, 491 U.S. at 336, 109 S.Ct. 2491. For example, in Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945), the Supreme Court declared that states may not “regulate those phases of the national commerce which, because of the need of national uniformity, demand that their regulation, if any, be prescribed by a single authority.” Id. at 767, 65 S.Ct. 1515. But its holding that a state law could not limit train lengths was supported by what amounts to Pike balancing — namely, (1) a thorough analysis of the problems that would be created for interstate railroad transportation if each state could regulate train lengths and (2) an assessment that such state regulation would confer little, if any, local benefit. Id. at 771-79, 65 S.Ct. 1515; cf. ACLU v. Johnson, 194 F.3d 1149, 1160 (10th Cir.1999) (“[T]he Supreme Court has long recognized that certain types of commerce are uniquely suited to national, as opposed to state, regulation.”).

Quik Payday does not argue that the Kansas statute discriminates against interstate commerce in favor of the local vari*1308ety. Rather, it challenges the Kansas statute only under the extraterritorial-impact and Pike-balancing tests. To the extent that it also argues what it terms the “national unity” test, we will treat that issue as part of the balancing process.

B. Extraterritoriality

Quik Payday argues that the Kansas statute regulates interstate commerce that happens entirely outside Kansas. It contends that the Kansas statute reaches cases in which a Kansas resident is “solicited” while using a work computer in Missouri and accepts the loan through the same computer. In support, it points to census data on the number of Kansas residents who work in metropolitan Kansas City, Missouri, and thus likely use computers that lie in Missouri. Additionally, it asserts that “lenders, having no ability to determine the physical location of the consumer at the time of the solicitation, are forced as a practical matter to abide by the K[U]CCC for all transactions with Kansas residents or refuse to lend to such residents altogether.” Aplt. Br. at 43.

Defendants, however, have stipulated that such a transaction would not be governed by the Kansas statute. In district court they conceded that a website advertisement does not trigger application of Kan. Stat. Ann. § 16a-l-201(l)(b), even though the website is accessible in Kansas. See Quik Payday, 509 F.Supp.2d at 982 n. 7. Their brief in this court further clarified that the borrower’s physical location at the time of the solicitation is controlling: it states that “[t]he [KUCCC] regulates the conduct of Internet payday lenders who choose to make payday loans with Kansas consumers while they are in Kansas.” Aplee. Br. at 24 (emphasis added). And referring to Quik Payday’s hypothetical “about a Kansas consumer leaving Kansas to acquire a payday loan,” id. at 25, it declared that “the OSBC would not try to apply the [KUCCC] to loans that occur under th[ose] circumstances,” id. at 26. We adopt this reasonable interpretation of the statute by those charged with its enforcement. See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n. 5, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (“In evaluating a facial challenge to a state law, a federal court must, of course, consider any limiting construction that a state court or enforcement agency has proffered.”).

Quik Payday argues, however, that in practice the KUCCC will set the rules by which a payday lender deals with a Kansas resident, even if the transaction is conducted wholly outside Kansas. According to Quik Payday, this result follows from its inability to tell where the resident is located during Internet communications between Quik Payday and the resident. For example, it says, if a Kansas resident communicates with Quik Payday via his office computer in Missouri, Quik Payday will have to assume that the customer is actually in Kansas during the communications and it therefore will have to comply with the KUCCC. In our view, however, Quik Payday has failed to show that this possible extraterritorial effect of the statute is more than speculation. It has provided no evidence of any loan transaction with a Kansas resident that was effected totally outside Kansas. Even if the Kansas resident applied for the loan on a computer in Missouri, other aspects of the transaction are very likely to be in Kansas — -notably, the transfer of loan funds to the borrower would naturally be to a bank in Kansas. Although the Kansas statute would not apply to such a loan transaction (because the solicitation was not in Kansas), the transaction would not be wholly extraterritorial, and thus not problematic under the dormant Commerce Clause. Moreover, Quik Payday has not explained how it *1309would be burdensome to it simply to inquire of the customer in which state he is located while communicating with Quik Payday. In this circumstance, we will not hold that the KUCCC has a prohibited effect on extraterritorial commerce.

We note, however, that despite the failure of its constitutional challenge to the statute, Quik Payday may still be entitled to some relief. It is unclear whether any of the 3,079 transactions between Quik Payday and Kansas residents involved solicitations of Kansas residents while they were in Missouri or elsewhere outside Kansas. Such a transaction would not have violated Kansas law. That issue, however, is one for the state administrative proceeding that was stayed pending this litigation.

C. Pike Balancing

A state law that does not discriminate against interstate commerce may still be invalidated under the dormant Commerce Clause if it puts a burden on interstate commerce that is “clearly excessive in relation to the putative local benefits.” Pike, 397 U.S. at 142, 90 S.Ct. 844. Although evidence regarding a particular company may be suggestive, the benefit-to-burden calculation is based on the overall benefits and burdens that the statutory provision may create, not on the benefits and burdens with respect to a particular company or transaction. “[T]he [Commerce] Clause protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulations.” Exxon Corp. v. Governor of Md., 437 U.S. 117, 127-28, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978); see Pharm. Research & Mfrs. of Am. v. Concannon, 249 F.3d 66, 84 (1st Cir.2001).

We applied Pike balancing in Aldens, which concerned Oklahoma’s regulation of the interest rates charged to Oklahoma residents on interstate credit sales by an Illinois-based catalog retailer. The retailer had no physical presence in Oklahoma; all its advertising in the state was conducted by direct mail. 571 F.2d at 1161. Its credit agreements with customers, which it also sent only by mail, recited that they were Illinois contracts and that all orders were deemed received in Illinois. Id. The retailer challenged the application of Oklahoma’s statute setting maximum interest rates for credit transactions and prohibiting the collection of balances when the rates charged exceeded this cap. Id. at 1160. The parties stipulated that if Oklahoma law applied to the transactions with Oklahoma residents, Aldens’ “reduction in finance charges, and the special processing costs directed to Oklahoma separately would amount to some $160,500.00 per year.” Id. at 1161. Aldens’ annual business in the state was $2,250,000, of which 81% was on credit. See id. We upheld Oklahoma’s regulation against the retailer’s dormant Commerce Clause challenge, reasoning as follows:

The states can, of course, pass Acts which affect commerce unless the burden so imposed greatly exceeds the extent of the local benefits.

Thus is this burden an unreasonable one in interstate commerce? [W]e reach the same conclusion [as other circuit courts]. There is a burden on Aldens to sort out the Oklahoma credit transactions, and accord them somewhat different treatment. There are apparently regular mailings to some 34,000 Oklahoma residents; these are followed by additional flyers and, if required, credit applications and charge account agreements. The dollar figure of total sales in Oklahoma is in the record as is an estimated cost of special treatment for Oklahoma residents. We agree with the trial court that on balance, a conform-*1310anee with the Oklahoma cost of credit rules would not constitute an undue burden on interstate commerce. In the era of computers, the record shows that a sorting of this nature, with separate Oklahoma contracts, would not be such an unreasonable burden as compared to the local interest in the subject.

Id. at 1162 (citations omitted).

Aldens governs the analysis under the Pike test in this case. To begin with, we note that our review of the KUCCC is limited. Although Quik Payday might be burdened by statutory provisions regarding interest rates, repayment schedules, and loan renewals, we need not concern ourselves with provisions that have never been applied to Quik Payday (and which, because Quik Payday no longer operates as a payday lender, never will be). Perhaps some of those unapplied provisions are unconstitutional and must be stricken. But striking them would not entitle Quik Payday to relief if the provisions that were applied withstand a Commerce Clause challenge. Here, the sanction imposed on Quik Payday was based solely on its failure to obtain a license as a lender of supervised loans. Thus, we address only the burdens and benefits of the license requirement. Cf. Los Angeles Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 38, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999) (“The traditional rule is that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court.” (internal quotation marks omitted)).

The stipulated facts show that the burden of obtaining a license is limited to a $425 fee, a surety bond whose annual cost would be roughly $500, and a criminal-background check, for which there is no fee. Quik Payday presented no evidence of other expenses that it would incur. The burden on Quik Payday of obtaining a license would not be materially greater than the burden on Aldens. And on the other side of the ledger, Defendants point to significant benefits from the licensing requirement: the criminal-background check protects Kansas consumers from providing felons their financial data and access to their bank accounts; and the surety-bond requirement ensures that Kansas residents will have a meaningful remedy if they are harmed by a lender. We follow our decision in Aldens in holding that the burden of acquiring a license does not outweigh the benefit from that requirement.

Quik Payday tries to distinguish Aldens by suggesting that regulating Internet lending cannot, as a practical matter, protect Kansas residents, because such lenders can go offshore to avoid the reach of the state’s law. In support, Quik Payday relies on our opinion in Johnson. That case involved constitutional challenges to a New Mexico statute that criminalized “dissemination of material that is harmful to a minor by computer.” 194 F.3d at 1152. The challenged statute defined the offense as

the use of a computer communications system that allows the input, output, examination or transfer of computer data or computer programs from one computer to another, to knowingly and intentionally initiate or engage in communication with a person under eighteen years of age when such communication in whole or in part depicts actual or simulated nudity, sexual intercourse or any other sexual conduct.

N.M. Stat. § 30-37-3.2(A) (1998). Our Johnson opinion affirmed the district court’s grant of a preliminary injunction against enforcement of the statute, agreeing with the district court that the plain*1311tiffs — groups whose Internet speech concerned women’s health, gay and lesbian issues, and censorship and civil liberties, 194 F.3d at 1153 — were likely to prevail on the merits of their claim that the statute violated the dormant Commerce Clause. With regard to the benefit the statute might confer relative to its burden on interstate commerce, we observed that

[t]he statute will almost certainly fail to accomplish the Government’s interest in shielding children from pornography on the Internet. Nearly half of Internet communications originate outside the United States, and some percentage of that figure represents pornography. Pornography from, say, Amsterdam will be no less appealing to a child on the Internet than pornography from Albuquerque, and residents of Amsterdam have little incentive to comply with the statute.

Id. at 1162 (emphasis added; brackets and internal quotation marks omitted). This conclusion was reinforced by the state’s proffered construction of the statute as governing only one-to-one e-mail communications between New Mexicans. This construction, we observed, “renders it so narrow in scope that the actual benefit conferred is extremely small.” Id.

Our case is readily distinguishable from Johnson in this respect. An offshore lender may well have incentives to comply with Kansas law. Johnson did not involve credit transactions. One who sent pornography to New Mexico from Amsterdam needed nothing in the future from the New Mexico resident. Payday lending, however, would not be very profitable if the borrowers refused to repay, or were prevented from repaying, their loans. Regulators can educate borrowers regarding their rights not to repay loans, and they may have authority to control lenders by seizing assets (such as a bank account) from which a lender expects to be repaid. We are not persuaded that Kansas would be powerless to protect its residents from offshore payday lenders who refused to comply with applicable Kansas laws.

Quik Payday also relies on national-uniformity arguments to support its Commerce Clause challenge. It contends that the nature of the Internet requires any regulation of Internet operations to be national in scope, not state-by-state. It finds support in the following quotation from County of Mobile v. Kimball, 102 U.S. 691, 26 L.Ed. 238 (1880):

Commerce with foreign countries and among the States, strictly considered, consists in intercourse and traffic, including in these terms navigation and the transportation and transit of persons and property, as well as the purchase, sale, and exchange of commodities. For the regulation of commerce as thus defined there can be only one system of rules applicable alike to the whole country; and the authority which can act for the whole country can alone adopt such a system. Action upon it by separate States is not, therefore, permissible.

Id. at 702. Quik Payday also quotes our comment in Johnson that “[t]he Internet, like rail and highway traffic, requires a cohesive national scheme of regulation so that users are reasonably able to determine their obligations.” Johnson, 194 F.3d at 1162 (ellipses and internal quotation marks omitted).

But Quik Payday reads too much into these statements. The courts have not held that certain modes of interstate commerce always require uniform regulation. They have examined particular types of regulation and made individual determinations. For example, the Supreme Court has not held that all regulation of interstate railroads must be national in scope. In Southern Pacific the Court held that *1312the length of interstate trains could not be regulated state by state, see 325 U.S. at 781-82, 65 S.Ct. 1515, but it did not retreat from its prior decisions allowing individual states to impose some safety measures, such as limitations on the size and composition of crews on interstate trains, see id. at 779, 782, 65 S.Ct. 1515.

Similarly, our language in Johnson must be read in the context of that case. The New Mexico statute at issue prohibited the use of the Internet “to knowingly and intentionally initiate or engage in [sexually explicit] communication with a person under eighteen years of age.” Johnson, 194 F.3d at 1152 (internal quotation marks omitted). We rejected the state’s attempt to construe this statute narrowly to include only Internet communications deliberately sent to a specific individual whom the sender knew to be a minor, see id. at 1158-59, and said that the prohibition extended to group communication, see id. at 1160. Our concern was that the statute would govern websites, bulletin-board services, and chat rooms, which can be accessed by virtually anyone, anywhere, without control by the one posting the information. See id. at 1157. If such a posting were subject to New Mexico law, it would be equally subject to the laws of every jurisdiction in which the Internet operated. See id. at 1159 (“[VJirtually all communication on the Internet would meet the statutory definition of ‘knowingly’ and potentially be subject to liability under [the statute].”) Such a regulatory regime could obviously cripple that medium of communication.

Regulation of one-to-one commercial exchanges via the Internet, however, is quite a different matter. The potential for multiple jurisdictions to regulate the same transaction is much more limited. We reject the argument that the dormant Commerce Clause prohibits such regulation just because the parties use the Internet to communicate. Cf. Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1124 (W.D.Pa.1997) (in addressing whether the Due Process Clause prohibited a state’s assertion of jurisdiction over an Internet transaction, the court wrote: “Traditionally, when an entity intentionally reaches beyond its boundaries to conduct business with foreign residents, the exercise of specific jurisdiction [by the foreign jurisdiction over that entity] is proper. Different results should not be reached simply because business is conducted over the Internet.” (citation omitted)). Surely, for example, a state could prohibit the use of e-mail to convey an extortionate threat, just as it could prohibit such a threat by telephone. The possible burden on commerce arising from inconsistency among jurisdictions with an interest in a one-to-one commercial transaction conducted over the Internet must be assessed with respect to the specific type of regulation at issue.

Thus, we turn to Quik Payday’s argument based on the specifics of the KUCCC. It contends that subjecting it to regulation by multiple states will in fact create inconsistency that would unduly burden interstate commerce. Quik Payday’s briefs present a compilation of payday-loan laws in various states that, in its view, reveal how unmanageable its business would be if Kansas and other states could each enforce its own rules. Our review of those laws raises doubts about the merits of Quik Payday’s argument. But we need not resolve the matter. Quik Payday is not being penalized by Kansas for the way it renews loans, or even for the interest rate it charges. Its misconduct was a simple failure to get a Kansas license. And requiring a license in each state does not impose an undue burden. The Supreme Court rejected an analogous argument in American Trucking Associations, Inc. v. Michigan Public Service Commission, 545 U.S. 429, 125 S.Ct. 2419, 162 L.Ed.2d 407 (2005). In that case, in*1313terstate trucking firms challenged Michigan’s flat fee on trucks engaged in intrastate hauling (i.e., point-to-point deliveries within Michigan) under the dormant Commerce Clause. See id. at 431-32, 125 S.Ct. 2419. The challengers’ purely local activity apparently consisted of “topping off’ interstate loads with loads for local delivery, thereby maximizing the profitable use of cargo space. See id. at 435, 125 S.Ct. 2419. They argued that because interstate trucks engaged in less intrastate trade as a share of their business than did purely local haulers, the flat fee discriminated against the former in favor of the latter. See id. at 431-32, 125 S.Ct. 2419. The Supreme Court rejected the challenge on several grounds, among them that every state could legitimately assess such a fee without putting interstate commerce at a disadvantage:

We must concede that here, as [the challengers] argue, if all States did the same, an interstate truck would have to pay fees totaling several hundred dollars, or even several thousand dollars, were it to “top off’ its business by carrying local loads in many (or even all) other States. But it would have to do so only because it engages in local business in all those States.

Id. at 438, 125 S.Ct. 2419 (emphasis added). If some future Internet payday lender were to point to potential inconsistency among the states in some other component of the KUCCC — say the handling of renewals — then a court could address whether the Commerce Clause bars this type of regulation. For this case, however, we need not undertake that task.

III. CONCLUSION

We AFFIRM the judgment of the district court.

OPINION

RAWLINSON, Circuit Judge:

Appellants Great Plains Lending, LLC, Mobiloans, LLC, and Plain Green, LLC (collectively, Tribal Lending Entities) appeal from the district court’s decision compelling the Tribal Lending Entities to comply with civil investigative demands (investigative demands) issued by Appellee Consumer Financial Protection Bureau (Bureau). The Tribal Lending Entities maintain that they are not subject to the Bureau’s jurisdiction because the entities were created and operated by several recognized tribes, and are thereby cloaked in tribal sovereign immunity. The Tribal Lending Entities assert that, because the Consumer Financial Protection Act of 2010 (the Act)1 defines the term “State” as including Native American tribes, the Tribal Lending Entities, as arms of sovereign tribes, are not required to comply with the investigative demands. We disagree with the argument made by the Tribal Lending Entities that the inclusion of tribes in the Act’s definition of “State” impliedly excludes the Tribal Lending Entities from regulation under the Act, and therefore AFFIRM the decision of the district court enforcing the investigative demands.

I. BACKGROUND

This appeal stems from the creation of several Tribal Lending Entities as for-profit lending companies by the Chippewa Cree, Tunica Biloxi, and Otoe Missouria Tribes (collectively, Tribes). The Tribes established regulatory frameworks for consumer lending by these Tribal Lending Entities.

In addition to regulation by the Tribes, the Tribal Lending Entities came to the attention of the Bureau, which initiated an investigation into the Tribal Lending Entities by serving investigative demands. The Bureau explained that:

The purpose of this investigation is to determine whether small-dollar online lenders or other unnamed persons have engaged or are engaging in unlawful acts or practices relating to the advertising, marketing, provision, or collection of small-dollar loan products, in violation of Section 1036 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, 12 U.S.C. § 5536, the Truth in Lending Act, 15 U.S.C. § 1601, the Electronic Funds Transfer Act, 15 U.S.C. § 1693, the GrammLeach-Bliley Act, 15 U.S.C. §§ 6802-6809, or any other Federal consumer financial law. The purpose of this investigation is also to determine whether Bureau action to obtain legal or equitable relief would be in the public interest.

The Tribes directed the Tribal Lending Entities not to respond to the investigative demands, and informed the Bureau that it lacked jurisdiction to investigate lending entities created and operated by the Tribes. Rather, the Tribes offered to cooperate with the Bureau as co-regulators of consumer lending services.

*1051When the offer of cooperative regulation was rejected by the Bureau, the Tribes petitioned the Bureau to set aside the investigative demands. The Bureau denied the Tribes’ petition, and sought enforcement of the investigative demands in federal court. The district court then issued an order to show cause as to why the Tribal Lending Entities should not comply with the investigative demands.

Relying primarily on our ruling in Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113, 1115 (9th Cir. 1985), the district court concluded that the Act, as an act of general applicability, was enforceable against the Tribal Lending Entities. The district court rejected the Tribal Lending Entities’ reliance on the holding in Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 780, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) that the statutory definition of the term “person” typically excludes “the sovereign.” The district court noted the unlikelihood that Stevens overruled subsequent Ninth Circuit authority restating the holding in Coeur d’Alene. Instead, the district court found it persuasive that “[t]he Stevens and Coeur d’Alene presumptions have ... existed side by side for decades” without so much as a suggestion of “an inescapable conflict between them.” The district court reasoned that the cases were indeed reconcilable because the Supreme Court had not definitively held that the holding in Stevens applied to actions brought by the federal government against “the sovereign.”

The district court was also not swayed by the Tribes’ argument that, because the Act treats the states and tribes as co-regulators, Congress did not intend to vest authority in the Bureau to regulate tribal entities in the absence of cooperation with tribal regulators. The district court emphasized that:

textually, the [Act] is not silent with respect to Indian tribes_The exclusion of statutes that are not silent with respect to Indian tribes is intended to avoid undermining the expressed intent of Congress. Congress does not express such intent by merely mentioning Indian tribes as sovereign regulators, while remaining silent on whether the unrelated provision at issue is also intended to regulate Indian tribes.

Put simply, there is no provision of the [Act] that expressly or impliedly suggests that the defined terms “persons” and “States” are mutually exclusive. Accordingly, the provision creating the Bureau’s authority to investigate “persons” is silent with respect to the tribes.

Finally, the district court referenced the lack of any convincing legislative history bearing on the issue.

Following the district court’s denying the Tribal Lending Entities’ petition to set aside the Bureau’s investigative demands, the Tribal Lending Entities filed a timely notice of appeal.

II. STANDARD OF REVIEW

We review de novo whether the Bureau plainly lacked jurisdiction to issue the investigative demands. See Nat’l Labor Relations Bd. v. Chapa De Indian Health Program Inc., 316 F.3d 995, 997-98 (9th Cir. 2003).2

*1052 III. DISCUSSION

A. The Bureau’s Jurisdiction to Investigate the Tribal Lending Entities’ Activities

Consistent with their argument before the district court, the Tribal Lending Entities contend on appeal that the Act does not confer authority upon the Bureau to investigate tribal entities. The Tribal Lending Entities repeat their assertion that the Act limits the Bureau’s authority to “persons,” which excludes sovereign entities. The Tribal Lending Entities add that Congress did not intend for the definition of “person” to encompass tribal entities because the Act explicitly includes tribes in the definition of “State” in 12 U.S.C. § 5481(27).

Before we address the merits of the Tribal Lending Entities’ arguments, a delineation of the Act’s statutory framework is in order. Pursuant to the expressed statutory purpose of the Act:

The Bureau shall seek to implement and, where applicable, enforce Federal consumer financial law consistently for the purpose of ensuring that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive.

12 U.S.C. § 5511(a). The “primary functions” of the Bureau include “collecting, investigating, and responding to consumer complaints,” and, to accomplish its objectives, “[t]he Bureau is authorized to exercise its authorities under Federal consumer financial law” to ensure that “consumers are protected from unfair, deceptive, or abusive acts and practices and from discrimination.” 12 U.S.C. § 5511(b), (c)(2). In terms of its enforcement authority,

Whenever the Bureau has reason to believe that any person may be in possession, custody, or control of any documentary material or tangible things, or may have any information, relevant to a violation, the Bureau may, before the institution of any proceedings under the Federal consumer financial law, issue in writing, and cause to be served upon such person, a civil investigative demand requiring such person to—(A) produce such documentary material for inspection and copying or reproduction in the form or medium requested by the Bureau; (B) submit such tangible things; (C) file written reports or answers to questions; (D) give oral testimony concerning documentary material, tangible things, or other information; or (E) furnish any combination of such material, answers, or testimony.

12 U.S.C. § 5562(c) (emphasis added). The Act defines “person” as “an individual, partnership, company, corporation, association (incorporated or unincorporated), trust, estate, cooperative, organization, or other entity.” 12 U.S.C. § 5481(19).

The Act also addresses the role “States” may play in supporting the goals of the Act. The Act defines “State” to include “any State, territory, or possession of the United States” including “any federally recognized Indian tribe, as defined by the Secretary of the Interior ...12 U.S.C. § 5481(27), and compels the Board to “coordinate with ... State regulators, as appropriate, to promote consistent regulatory treatment of consumer financial and *1053investment products and services.” 12 U.S.C. § 5495. Under the Act, States are also authorized to “bring a civil action” to enforce provisions of the Act. The only entities excluded from the enforcement authority of the state are national banks and federal savings associations. 12 U.S.C. § 5552(a)(2)(A). No entities are expressly excluded from the enforcement authority of the Bureau. See 12 U.S.C. § 5481(6) (defining “covered person” without exception).

Because the Act by its terms- applies broadly and without exception, it is properly characterized as a law of general applicability. See Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 80 S.Ct. 543, 553, 4 L.Ed.2d 584 (1960). We have consistently held that similar laws of general applicability govern tribal entities unless Congress has explicitly provided otherwise. Most notably, in Coeur d’Alene, we considered whether the Occupational Safety and Health Act (OSHA) applied to tribal entities. See 751 F.2d at 1114-15. We observed that OSHA’s definition of “employer” as an “organized group of persons engaged in a business affecting commerce who has employees” encompassed a tribal farm operating as a commercial enterprise. Id. at 1115 n.l (alteration omitted). We recognized that “Congress expressly excluded only the United States or any State or any political subdivision of a State from the broad definition of employer in the Act.” Id. (citation and internal quotation marks omitted). We explained that:

No one doubts that the Tribe has the inherent sovereign right to regulate the health and safety of workers in tribal enterprises. But neither is there any doubt that Congress has the power to modify or extinguish that right. Unlike the states, Indian tribes possess only a limited sovereignty that is subject to complete defeasance....

Id. at 1115 (citations omitted). We emphasized that “[m]any of our decisions have upheld the application of general federal laws to Indian tribes; not one has held that an otherwise applicable statute should be interpreted to exclude Indians_” Id. (citations omitted). As a result, we eschewed “the proposition that Indian tribes are subject only to those laws of the United States expressly made applicable to them.... ” Id. at 1116. At the same time, we recognized the following three exceptions to enforcement of generally applicable laws against tribes:

A federal statute of general applicability that is silent on the issue of applicability to Indian tribes will not apply to them if: (1) the law touches exclusive rights of self-governance in purely intramural matters; (2) the application of the law to the tribe would abrogate rights guaranteed by Indian treaties; or (3) there is proof by legislative history or some other means that Congress intended the Taw not to apply to Indians on their reservations.

Id. (citation, alterations, and internal quotation marks omitted). “In any of these three situations, Congress must expressly apply a statute to Indians before we will hold that it reaches them.” Id. (emphasis in the original).

We have consistently applied Co-eur d’Alene and its progeny to hold that generally applicable laws may be enforced against tribal enterprises. See Solis v. Matheson, 563 F.3d 425, 432 (9th Cir. 2009) (observing that “[ojther cases have similarly affirmed the application of OSHA, the Employee Retirement Income Security Act (ERISA), and the Americans with Disabilities Act (ADA) to tribal businesses”) (citations omitted). In keeping *1054with our precedent, we similarly conclude that the Consumer Financial Protection Act, a law of general applicability, applies to tribal businesses like the Tribal Lending Entities involved in this appeal. See Chapa De, 316 F.3d at 1002.

Relying on Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000), the Tribal Lending Entities contend that our precedent departs from the United States Supreme Court’s holding that the statutory term “person” generally excludes sovereign entities, such as states and Native American tribes. In Stevens, the Supreme Court considered “whether a private individual may bring suit in federal court on behalf of the United States against a State (or state agency) under the False Claims Act.” Id. at 768, 120 S.Ct. 1858 (citation omitted). The Supreme Court reasoned that, in considering application of the False Claims Act to “any person,” the Court was required to take into account its “longstanding interpretive presumption that ‘person’ does not include the sovereign.” Id. at 780, 120 S.Ct. 1858 (citations omitted). The Supreme Court added that “[t]he presumption is particularly applicable where it is claimed that Congress has subjected the States to liability to which they had not been subject before.” Id. at 780-81, 120 S.Ct. 1858 (citations and internal quotation marks omitted). However, “[t]he presumption is, of course, not a hard and fast rule of exclusion, but ... may be disregarded only upon some affirmative showing of statutory intent to the contrary.” Id. at 781, 120 S.Ct. 1858 (citations and internal quotation marks omitted). The Supreme Court observed that, in “another section of the [False Claims Act] ... which enables the Attorney General to issue civil investigative demands,” the statute includes a provision “expressly defining ‘person’ for purposes of this section to include States ...” Id. at 783-84, 120 S.Ct. 1858 (citations and footnote reference omitted). But, the False Claims Act also imposes punitive damages “which would be inconsistent with state qui tarn liability in light of the presumption against imposition of punitive damages on governmental entities....” Id. at 784-85, 120 S.Ct. 1858 (citation and footnote reference omitted); see also Will v. Michigan Department of State Police, 491 U.S. 58, 67-68, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (holding that a state is not a “person” under 42 U.S.C. § 1983 because “[i]t is an established principle of jurisprudence that the sovereign cannot be sued in its own courts without its consent....”) (citation and internal quotation marks omitted).

At first blush, the Tribal Lending Entities’ reliance on Stevens, a decision predating our precedent focusing on the general applicability of the law in question, has surface appeal. However, the “equivalence” provision in the Consumer Financial Protection Act only provides definitional guidance for later references in the statute to the term “State.” This “equivalence” provision simply clarifies that the term “State” includes “any federally recognized Indian tribe, as defined by the Secretary of the Interior ...” 12 U.S.C. § 5481(27). It does not expressly provide that tribes are excluded from the definition of “person” or from the Bureau’s enforcement authority under the Act. In sum, the Tribal Lending Entities’ interpretation of the equivalence provision reads far too much into a simple definition. We are not persuaded at this stage of the litigation that we should intervene to nullify the Bureau’s issuance of investigative demands specifically provided for in the Act on the basis that jurisdiction is “plainly lacking.” Chapa De, 316 F.3d at 1002.3

*1055Furthermore, none of the three Coeur d’Alene exceptions to the enforcement of generally applicable laws against Indian tribes apply in this case. See 751 F.2d at 1116. It is undisputed that the Tribal Lending Entities are engaged in the business activity of small-dollar lending over the Internet, reaching customers who are not members of the Tribes, or indeed, have any relation to the Tribes other than as debtors to the Tribal Lending Entities. Thus, the first Coeur d’Alene exception— whether “the law touches exclusive rights of self-governance in purely intramural matters”—does not apply. Coeur d’Alene, 751 F.2d at 1116 (internal quotation marks omitted). Unlike the activities of the Housing Authority at issue in EEOC v. Karuk Tribe Housing Authority, 260 F.3d 1071 (9th Cir. 2001), the small-dollar lending activities in this case do not touch upon purely intramural matters involving self-governance.4 The Tribal Lending Entities do not argue that the second exception— covering situations in which the application of a statute would abrogate Indian treaty rights—applies in this case, so we do not address it here.

With respect to the third exception, the Tribal Lending Entities’ assertion that the Act’s legislative history supports a finding of lack of jurisdiction is unpersuasive. In considering the Coeur d’Alene exception concerning legislative history, we have explained that for the exception to apply, “there must be proof that Congress intended the statute not to apply to Indians on their reservations.” Chapa De, 316 F.3d at 1000-01 (citation, alteration, and internal quotation marks omitted). We rejected the tribe’s reliance on the legislative history of the National Labor Relations Act (NLRA) because that history failed to reflect that “Congress intended the NLRA not to apply to Indian tribes” or to the particular activities of the tribal entity at *1056issue. Id. at 1001. Ultimately, we determined that despite the existence of one out-of-circuit case offering some support for the tribe’s position, the tribe nevertheless failed to demonstrate that jurisdiction was “plainly lacking.” Id. at 1002 (emphasis in the original).

Here, the Tribal Lending Entities maintain that Congress’ decision to include tribes within the definition of “State” and not the definition of “person” reflects an intent to exclude tribes from the Bureau’s enforcement purview. See H.R. Rep. No. 111-370, 2009 WL 4724255. However, these attenuated references do not demonstrate that jurisdiction is “plainly lacking” or that “Congress intended the [Act] not to apply to Indian tribes, or to [the tribes’] activities.” Chapa De, 316 F.3d at 1001-02. At best, the referenced report reflects only the addition of tribes to the definition of “State,” without any expressed intent to cloak the tribes with immunity from enforcement of the Act as a generally applicable congressional enactment. See H.R. Rep. No. 111-370, 2009 WL 4724255, at *36. In addition, the lack of immunity is particularly evident in this case because “Indian tribes do not ... enjoy sovereign immunity from suits brought by the federal government.” Karuk Tribe, 260 F.3d at 1075 (citation omitted).

The Tribal Lending Entities also failed to persuasively establish that Congress intended to exclude tribes from enforcement of the Act by virtue of the promotion of cooperation between the States and the federal government. The statutes relied upon by the Tribal Lending Entities do not reflect mutual exclusivity of the Bureau’s investigative authority and the States’ potential co-regulator status. For example, 12 U.S.C. § 5495 instructs the Bureau to coordinate with “State regulators, as appropriate ...” (emphasis added). Similarly, in support of the Act’s promotion of “consistent regulatory treatment,” id., 12 U.S.C. § 5512(c)(6)(C)(i) provides that “a State regulator ... having jurisdiction over a covered person ... shall have access to any report of examination made by the Bureau with respect to such person ...” These coordination provisions of the Act in no way restrict the Bureau’s jurisdiction to investigate covered entities simply because the States have a measure of co-regulatory status. Indeed, the Act limits the extent of the States’ co-regulatory authority. By way of example, 12 U.S.C. § 5552(b)(1)(A) forbids a State from initiating independent court proceedings against a covered entity. Instead, the State must consult with the Bureau and “timely provide a copy of the complete complaint to be filed and written notice describing such action or proceeding to the Bureau ...” Upon receiving the requisite notice, the Bureau may “intervene in the action as a party,” “remove the action to the appropriate United States district court,” and “be heard on all matters arising in the action ...” 12 U.S.C. § 5552(b)(2)(B). Moreover, with absolutely no mention of States or tribes, the Act limits investigative powers, such as issuance of investigative demands and subpoenas, to the Bureau. See 12 U.S.C. § 5562(b)-(c).“

The Tribal Lending Entities also argue that limitations upon the Bureau’s enforcement authority vis-a-vis the States under 12 U.S.C. § 5517 demonstrate that Congress did not intend to include States or tribal entities within the definition of “person.” However, § 5517 does not bolster the Tribal Lending Entities’ argument, as it merely reflects that when Congress in*1057tended to limit the Bureau’s authority, it did so explicitly. With great specificity, 12 U.S.C. § 5517 delineates that the Bureau lacks authority over merchants and retailers of nonfinancial services and goods, see id., § 5517(a); real estate brokerage activities, see id., § 5517(b); modular home retailers and manufactured home retailers, see id., § 5517(c); tax preparers and accountants, see id., § 5517(d); the practice of law, see id., § 5517(e); and persons regulated by state insurance and securities commissions. See id., § 5517(f), (h). Section 5517 also excludes persons regulated by the Commodities Futures Trading Commission and the Farm Credit Administration. See id., § 5517(j)-(k). Notably absent from these extensive exclusions is any mention of tribal corporate entities. We are persuaded by these provisions that, had Congress intended to exclude tribal entities from the Bureau’s enforcement purview, it would have done so explicitly as it did with other entities.

Davis v. Pringle, 268 U.S. 315, 45 S.Ct. 549, 69 L.Ed. 974 (1925) does not compel a contrary conclusion. In that case, the Supreme Court rejected the United States’ priority claim under the Bankruptcy Act then in effect. See id. at 318-19, 45 S.Ct. 549. The Supreme Court stated that the United States was not entitled to priority for its bankruptcy claim because Congress could not have “intended to smuggle in a general preference by muffled words at the end” of a statutory provision. Id. at 318, 45 S.Ct. 549. The Supreme Court noted the “conspicuous mention of the United States ... at the beginning of the section and the grant of a limited priority!!.]” Id. The Supreme Court also observed that “[e]lsewhere in cases of possible doubt when the Act means the United States it says the United States.... ” Id. The Supreme Court did not confront or address the exclusion by implication argument raised by the Tribal Lending Entities in this appeal. Rather, in Davis, the Supreme Court construed a statute that specifically mentioned the United States relative to the substantive provisions of the bankruptcy priority framework. See id. That circumstance is vastly different from relying on the Act’s definitional provisions to cloak tribal corporate entities with sovereign immunity merely because tribes are mentioned in the Act’s definition of “States.” In any event, the general statutory interpretation approach expounded in Davis does not in any way undermine our binding precedent that laws of general applicability may be enforced against the tribes unless Congress expressly provides otherwise. See Coeur d’Alene, 751 F.2d at 1115-16.

Finally, relying on County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, 502 U.S. 251, 269, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992) and Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 767-68, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985), the Tribal Lending Entities assert that any ambiguity in the Act must be resolved in their favor. The Supreme Court has recognized that, when confronted with two plausible statutory constructions, “our choice between them must be dictated by a principle deeply rooted in this Court’s Indian jurisprudence: Statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.” County of Yakima, 502 U.S. at 269, 112 S.Ct. 683 (citation and alteration omitted). Nevertheless, we have repudiated this presumption in the face of our governing precedent concluding that to apply the presumption to laws of general applicability “would be effectively to overrule, [Coeur d’Alene], which, of course, this panel cannot do.” Chapa De, 316 F.3d at 999 (citation omitted).

At this stage of the proceedings, we conclude that the district court properly held that the Bureau does not plainly lack *1058jurisdiction to issue investigative demands to the tribal corporate entities under the Act. See id. at 1002. Although the Tribal Lending Entities make some appealing arguments, none of the arguments suffices to breach or evade the barrier to their success provided by the Coeur d’Alene revetment.

TV. CONCLUSION

We have consistently held in our post-Stevens precedent that generally applicable laws apply to Native American tribes unless Congress expressly provides otherwise. In the Consumer Financial Protection Act, a generally applicable law, Congress did not expressly exclude tribes from the Bureau’s enforcement authority. Although the Act defines “State” to include Native American tribes, with States occupying limited co-regulatory roles, this wording falls far short of demonstrating that the Bureau plainly lacks jurisdiction to issue the investigative demands challenged in this case, or that Congress intended to exclude Native American tribes from the Act’s enforcement provisions. Neither have the Tribes offered any legislative history compelling a contrary conclusion regarding congressional intent. At this stage of the proceedings, we affirm the district court’s order enforcing the investigative demands against the Tribal Lending Entities.

AFFIRMED.

GERARD E. LYNCH,.Circuit Judge:

New York’s usury laws prohibit unlicensed lenders from lending money at an interest rate above 16 percent per year, and criminalize loans with interest rates higher than 25 percent per year. N.Y. Gen. Oblig. Law § 5-501(1), N.Y. Banking Law § 14-a(l), N.Y. Penal Law §§ 190.40-42. The plaintiffs are two Native American tribes, tribal regulatory agencies, and companies owned by the tribes that provide short-term loans over the internet, all of which have triple-digit interest rates that far exceed the ceiling set by New York law. When the New York State Department of Financial Services (“DFS”) tried to bar out-of-state lenders, including the plaintiffs, from extending loans to New York residents, plaintiffs sought a preliminary order enjoining DFS from interfering with the tribes’ consumer lending business.

Plaintiffs contended that New York had projected its regulations over the internet and onto reservations in violation of Native Americans’ tribal sovereignty, which is protected by the Indian Commerce Clause of the Constitution. U.S. CONST. art. 1, § 8, cl. 3. But the United States District Court for the Southern District of New York (Richard J. Sullivan, Judge) held that plaintiffs had not offered sufficient proof that the loans fell outside New York’s regulatory domain. After examining the evidence marshaled by plaintiffs in support of their motion, the District Court concluded that plaintiffs had failed to establish that the challenged loan transactions occurred on Native American soil, a fact necessary to weaken New York State’s regulatory authority over them. Because this conclusion was a reasonable one, we AFFIRM the District Court’s denial of plaintiffs’ motion for a preliminary injunction.

BACKGROUND

This case arises from a conflict between two sovereigns’ attempts to combat poverty within their borders. Native American tribes have long suffered from a dearth of economic opportunities. Plaintiffs in this case, the Otoe-Missouria Tribe of Indians, the Lac Vieux Desert Band of Lake Supe*108rior Chippewa Indians, and wholly owned corporations of those tribes (collectively, “the lenders”), established internet-based lending companies in the hopes of reaching consumers who had difficulty obtaining credit at favorable rates but who would never venture to a remote reservation. The loans were made at high interest rates, and the loans permitted the lenders to make automatic deductions from the borrowers’ bank accounts to recover interest and principle. New York has long outlawed usurious loans. DFS aggressively enforced those laws in order to “protect desperately poor people from the consequences of their own desperation.” Schneider v. Phelps, 41 N.Y.2d 238, 243, 391 N.Y.S.2d 568, 359 N.E.2d 1361 (1977). Thus, the tribes’ and New York’s interests collided.

It is unclear, however, where they collided-in New York or on a Native American reservation. The lenders assert that the challenged transactions occurred on reservations. The “loan application process” took place via “website[s] owned and controlled by the Tribe[s].” Loans were “reviewed and assessed by ... Tribal loan underwriting system[s].” Loans complied with rules developed, adopted, and administered by tribal regulatory authorities. The loans were funded out of “Tribally owned bank accounts.” And each loan application notified borrowers that the contract was “governed only by the laws of [the Tribe] and such federal law as is applicable under the Indian Commerce Clause of the United States Constitution ... [and] [a]s such, neither we nor this Agreement are subject to any other federal or state law or regulation.” In sum, as the Chairman of the Lac Vieux Desert Tribe explained in an affidavit, “[t]hrough technological aids and underwriting software, loans are approved through processes that occur on the Reservation in various forms.”1

But loans approved on Native American reservations and other out-of-state locations flowed across borders to consumers in New York. New York borrowers never traveled to tribal lands or other jurisdictions; they signed loan contracts remotely by keying in an electronic signature. Borrowers listed their New York addresses on applications, and provided lenders with routing information for their personal bank accounts in New York. Moreover, the lenders did more than simply transfer loan proceeds into New York bank accounts. Under the terms of the loans, the lenders reached into New York to collect payments: the lenders placed a hold on borrowers’ accounts that resulted in an automatic debit every two weeks over the course of many months.2 The harm inflicted by these high-interest loans fell upon customers in New York: DFS received complaints from residents faltering under the weight of interest rates as high as 912.49 percent; as one complaint explained, “I am attempting to get out of a hole, not dig a deeper one.”

Thus, both the tribes .and New York believed that the high-interest loans fell within their domain, both geographic and regulatory, and acted accordingly. The tribes re-invested profits into their eom-*109munities, and New York authorities began an investigation into online payday lending. In the summer of 2013, those initiatives clashed.

In August, DFS launched what the tribal lenders describe as a “market-based campaign explicitly designed to destroy Tribal enterprises,” and what New York defends as a “comprehensive effort to determine how best to protect New Yorkers from the harmful effects of usurious online payday loans.” At issue are two related mailings.

First, DFS sent cease-and-desist letters to thirty-five online payday lenders that it had identified as having made loans to New York residents. Its efforts were directed generally at such lenders, including not only tribal lenders, but also foreign lenders and lenders headquartered in states that do not cap interest rates on short-term loans. The letters accused lenders of “using the Internet to offer and originate illegal payday loans to New York consumers,” in violation of “New York’s civil and criminal usury laws.” The letters instructed lenders to “confirm in writing” within fourteen days “that [they were] no longer soliciting] or mak[ing] usurious • loans in New York.”

Second, DFS wrote to the lenders’ partners in the financial services industry. The lenders relied on outside hanks to hold money and transfer it to customers. Those banks, in turn, depended upon an electronic wire service called the Automated Clearing House (“ACH”) to move money from their coffers into borrowers’ accounts, and to extract repayment from those accounts. DFS’s letters solicited banks and ACH for their “cooperative effort[s]” to “stamp out these pernicious, illegal payday loans.” In the letters sent to banks, DFS warned that “it [was] in ... [the] bank’s long-term interest to take appropriate action to help ensure that it is not serving as a pipeline for illegal conduct.” It, urged the banks to “work with” the agency “to create a new set of model safeguards and procedures to choke-off ACH access” to the 35 payday lenders that had lent money to New York customers. “Doing so,” the letter counseled, was “in the best interest of your member banks and their customers.” The letters ended with a request that the companies meet with New York officials to discuss a cooperative “undertaking.”

According to plaintiffs, DFS’s outreach had immediate and , devastating effects on tribal lenders. Banks and ACH abruptly ended their relationships with the lenders, stymieing their transactions not just with New York borrowers, but with consumers in every other state in the union. Without revenue from lending, the tribes faced large gaps in their budgets. According to the Chairman of the Otoe-Missouria tribe, proceeds from lending account for almost half of the tribe’s non-federal income. Profits from lending have fueled expansion of tribal early childhood education programs, employment training, healthcare coverage, and child and family protection services. The Chairman of the Lac Vieux Desert tribe attested to similar fiscal reliance, noting that lending revenue supports tribal housing initiatives, youth programs, health and wellness services, and law enforcement.

Faced with crumbling businesses and collapsing budgets, plaintiffs filed suit, claiming that New York’s efforts to curb the lenders’ online business violated the Indian Commerce Clause of the Federal Constitution by infringing on tribes’ fundamental right to self-government. Plaintiffs moved for a preliminary injunction barring DFS from further interfering with the lenders’ transactions with consumers in New York and elsewhere. The District Court denied the motion. The court found *110that the lenders had “built a wobbly foundation for their contention that the State is regulating activity that occurs on the Tribes’ lands,” and concluded that New York’s “action [was] directed at activity that [took] place entirely off tribal land, involving New York residents who never leave New York State.” Otoe-Missouria Tribe of Indians v. N.Y. State Dep’t of Fin. Servs., 974 F.Supp.2d 353, 360 (S.D.N.Y.2013). Thus, the court held that New York acted within its rights to regulate business activity within the state.

This appeal followed.

DISCUSSION

I. Preliminary Injunctions: Standard for Granting, Standard of Review

A district court’s denial of a motion for a preliminary injunction is reviewed for abuse of discretion. WPIX, Inc. v. ivi, Inc., 691 F.3d 275, 278 (2d Cir.2012). In general, district courts may grant a preliminary injunction where a plaintiff demonstrates “irreparable harm” and meets one of two related standards: “either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of its claims to make them fair ground for litigation, plus a balance of the hardships tipping decidedly in favor of the moving party.” Lynch v. City of N.Y., 589 F.3d 94, 98 (2d Cir.2009) (internal quotation marks omitted). This two-track rule, however, is subject to an exception: A plaintiff cannot rely on the “fair-ground-for-litigation” alternative to challenge “governmental action taken in the public interest pursuant to a statutory or regulatory scheme.” Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir.1989) (relying on Union Carbide Agric. Prods. Co. v. Costle, 632 F.2d 1014, 1018 (2d Cir.1980) and Med. Soc’y of N.Y. v. Toia, 560 F.2d 535, 538 (2d Cir.1977)). As we have explained, “[t]his exception reflects the idea that governmental policies implemented through legislation or regulations developed through presumptively reasoned democratic processes are entitled to a higher degree of deference and should not be enjoined lightly.” Able v. United States, 44 F.3d 128, 131 (2d Cir.1995).

DFS’s attempt to curb online payday lending in New York was a paradigmatic example of “governmental action taken in the public interest,” Plaza Health Labs., 878 F.2d at 580, one that vindicated proven “policies implemented through legislation or regulations.” Able, 44 F.3d at 131. New York’s usury prohibitions date back to the late 18th century. New York enacted the current cap — 16 percent interest on short-term loans made by non-bank, unlicensed lenders — decades ago. See N.Y. Banking Law § 14-a (McKinney 2014) (noting original enactment date of Dec. 31, 1979). New York courts have consistently upheld and enforced such laws; as the New York Court of Appeals wrote in 1977, usury laws protect “impoverished debtors from improvident transactions drawn by lenders and brought on by dire personal financial stress.” Schneider, 41 N.Y.2d at 243, 391 N.Y.S.2d 568, 359 N.E.2d 1361. New York regulatory authorities, both at the behest of successive Attorneys General and now the Superintendent of Financial Services,3 have pursued businesses that *111lent money at interest rates above the legal limit. See e.g., Press Release, New York State Office of the Attorney General, Spitzer Not Preempted in Suit to Stop Illegal Payday Lending Scheme (May 28, 2004), available at http://vmm.ag.ny.gov/ pressrelease/spitzer-notpreempted-suit-stop-illegal-payday-lending-scheme (describing lawsuit brought by former Attorney General Eliot Spitzer). Although plaintiffs argue that New York lacks the authority to enforce its laws against tribal lenders (and they may be right in the end), there is no question as to what those laws require.

For this reason, plaintiffs must establish a likelihood of success on the merits to win injunctive relief at this early stage. Our decision in Haitian Centers Council, Inc. v. McNary, 969 F.2d 1326 (2d Cir.1992), is not to the contrary. There, we upheld an order enjoining the Immigration and Nationalization Service (“INS”) from limiting Haitian asylum applicants’ contact with counsel while they were detained at Guantanamo Bay. Id. at 1347. We did so even though the plaintiffs demonstrated only a fair ground for litigation rather than a likelihood of success on the merits. Id. at 1339. The government could not identify any specific statute or regulation that allowed it to deny counsel to applicants at their screening interviews — a top official had announced the policy in a memo in response to a flood of applicants following a coup. The agency sought to moor its policy choice in the “broad grant of authority in the [Immigration and Nationality Act]” to screen emigrants. Id. We deemed that too general an authority to trigger the higher standard for a preliminary injunction. Id. “We believe that in litigation such as is presented herein,” we explained, “no party has an exclusive claim on the public interest.” Id. The “likelihood of success” prong, we held, “need not always be followed merely because a mov-ant seeks to enjoin government action.” Id.

This ease is distinguishable from Haitian Centers Council in two respects. First, DFS acted to enforce a rule embodied in a specific statute. In contrast, the INS enforced a much more informal policy, hastily adopted without the benefit of either specific statutory instructions or regulations issued after a public notice- and-comment process. Second, New York’s view of the “public interest” has been defined and reaffirmed by all three branches of government for many years. Unlike the novel issue presented by Haitian detainees seeking counsel while they awaited transfer to the continental United States, New York long ago confronted and answered the policy question posed in this case — whether businesses should be allowed to make triple-digit, short-term loans to those with an acute liquidity problem but no credit with which to solve it. Thus, “the full play of the democratic process involving both the legislative and executive branches has produced a policy in the name of the public interest embodied in a statute and implementing regulations.” Able, 44 F.3d at 131. That policy is entitled to “a higher degree of deference” than a private party’s position would merit, and we must be sure that, in all likelihood, New York has acted unlawfully before we substitute our judgment for that of the political branches. Id.

We recognize that the plaintiffs’ argument that there are “public interests on both sides” in this case, is not without force. The tribes are independent nations, and New York’s regulatory efforts may hinder the tribes’ ability to provide for *112their members and manage their own internal affairs. But as we explained in Oneida Nation of N.Y. v. Cuomo, 645 F.3d 154 (2d Cir.2011), “[a] party seeking to enjoin governmental action taken in the public interest pursuant to a statutory or regulatory scheme cannot rely on the fair ground for litigation alternative even if that party seeks to vindicate a sovereign or public interest.” Id. at 164 (holding that Oneida Nation must prove a likelihood of success on the merits to merit a preliminary injunction enjoining New York from enforcing tax scheme on the tribe’s cigarette sales). Despite the possibly serious intrusion on tribal interests posed by this case, the plaintiffs must still meet the higher standard.4

II. Likelihood of Success on the Merits

■ Plaintiffs claim that DFS infringed upon tribal sovereignty in two ways. They argue that New York had no authority to order tribes to stop issuing loans originated on Native American reservations, and that New York regulated activity far outside its borders when it launched a “market-based campaign” to shut down tribal lending in every state in the Union. But to prove either of these claims, plaintiffs had to demonstrate that the challenged transactions occurred somewhere other than New York, and, if they occurred on reservations, that the tribes had a substantial interest in the lending businesses. As described below, the district court reasonably concluded that plaintiffs failed to do so.

A. The “Who,” “Where,” and “What” of the Indian Commerce Clause

Indian Commerce Clause jurisprudence balances two conflicting principles. On the one hand, Native Americans retain the right to “make their own laws and be ruled by them.” Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). On the other, tribes are only “semi-independent”; their sovereign authority is “an anomalous one and of a complex character,” McClanahan v. State Tax Comm’n of Az., 411 U.S. 164, 173, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973), because tribes remain “ultimately dependent on and subject to the broad power of Congress,” White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980). With these two principles in mind, the Supreme Court has held that states may regulate tribal activities, but only in a limited manner, one constrained by tribes’ fundamental right to self-government, and Congress’s robust power to manage tribal affairs.5 Id. at 142-43, 100 *113S.Ct. 2578. That delicate balance results in an idiosyncratic doctrinal regime, one that, as the Ninth Circuit has described, requires “careful attention to the factual setting” of state regulation of tribal activity. Barona Band of Mission Indians v. Yee, 528 F.3d 1184, 1190 (9th Cir.2008).

The breadth of a state’s regulatory power depends upon two criteria — the location of the targeted conduct and the citizenship of the participants in that activity. Native Americans “going beyond the reservation boundaries” must comply with state laws as long as those laws are “nondiscriminatory [and] ... otherwise applicable to all citizens of [that] State.” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973) (“Mescalero /”). For example, in Mescalero I, the Supreme Court held that New Mexico could collect sales and use taxes from a ski resort owned by a Native American tribe that was located outside a reservation’s borders. Id. at 149, 93 S.Ct. 1267. Every business in the state had to pay the tax, and the Indian Commerce Clause did not create an exception to that rule.

But once a state reaches across a reservation’s borders its power diminishes and courts must weigh the interests of each sovereign — the tribes, the federal government, and the state — in the conduct targeted by the state’s regulation. The scales will tip according to the citizenship of the participants in the conduct. As the Supreme Court explained in Bracker, “[w]hen on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the State’s regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest.” 448 U.S. at 144, 100 S.Ct. 2578. A state’s interest waxes, however, if “the conduct of non-Indians” is in question. Id. A court conducts a more “particularized inquiry into the nature of the state, federal, and tribal interests at stake.” Id. at 144-45, 100 S.Ct. 2578. In Bracker, the Supreme Court engaged in that “particularized inquiry” and held that Arizona could not impose fuel and use taxes on a non-Indian hauler moving timber across a reservation. Although Arizona wished to raise revenue, the federal government and the tribe’s shared commitment to the continued growth and productivity of tribal logging enterprises outweighed Arizona’s interest.

Thus, “the “who’ and the ‘where’ of the challenged [regulation] have significant consequences,” ones that are often “dispos-itive.” Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 101, 126 S.Ct. 676, 163 L.Ed.2d 429 (2005). And even when the “who” and “where” are clear, a court must still understand “what” a regulation targets to weigh interests appropriately. A tribe’s interest peaks when a regulation threatens a venture in which the tribe has invested significant resources. In New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 103 S.Ct. 2378, 76 L.Ed.2d 611 (1983) (‘Mescalero II”), the Supreme Court held that a state could not enforce its hunting laws against non-Indian sportsmen who hunted and fished on a reservation. Id. at 341, 103 S.Ct. 2378. The tribe had “engaged in a concerted and sustained undertaking to develop and manage the reservation’s wildlife and land resources,” and state regulations threatened to unsettle and supplant those investments. Id.

*114Four years later, the Court echoed that conclusion in California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987). There, the Court permitted Native American tribes to continue operating on-reservation bingo games without complying with California’s gambling restrictions, even though the tribes catered their games to nonNative American customers. The tribes had “built modern[,] ... comfortable, clean, and attractive facilities,” and developed rules and procedures to ensure “well-run games.” Those sunk costs were a “substantial interest” that outweighed California’s interest in curbing organized crime’s “infiltration of the tribal games.” Id. at 219-21, 107 S.Ct. 1083.

In contrast, a tribe has no legitimate interest in selling an opportunity to evade state law. In Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980), the Supreme Court held that tribal stores had to collect a state tax on cigarettes sold to non-Native American customers. Id. at 161, 100 S.Ct. 2069. All the “smokeshops offer[ed to non-member] customers, [that was] not available elsewhere, [was] solely an exemption from state taxation.” Id. at 155, 100 S.Ct. 2069. “[W]hether stated in terms of pre-emption, tribal self-government, or otherwise,” tribes did not have any legitimate interest in “marketing] an exemption from state taxation to persons who would normally do their business elsewhere.” Id.

Factual questions, then, pervade every step of the analysis required by the Indian Commerce Clause. A court must know who a regulation targets and where the targeted activity takes place. Only then can it either test for discriminatory laws, as in Mescalero I, or balance competing interests, as in Bracker. And even if a court knows enough to trigger a weighing of competing interests, a court must still know what the nature of those interests are. Only then can it assess whether a regulation threatens a significant investment, as in Mescalero II and Cabazon, or whether a tribe has merely masked a legal loophole in the cloak of tribal sovereignty, as in Colville. Given the fact-dependent nature of these inquiries, it is no surprise that, as detailed below, plaintiffs have failed to prove a likelihood of success on the merits at this early stage of the litigation.

B. The Ambiguity of Internet Loans and Cooperative Campaigns

Loans brokered over the internet seem to exist in two places at once. Lenders extend credit from reservations; borrowers apply for and receive loans without leaving New York State. Neither our court nor the Supreme Court has confronted a hybrid transaction like the loans at issue here, e-commerce that straddles borders and connects parties separated by hundreds of miles. We need not resolve that novel question today — the answer will depend on facts brought to light over the course of litigation. On the record now before us, plaintiffs have not offered sufficient proof of the “who,” “where,” and “what” of the challenged loans. Without knowing more facts, we cannot say that the District Court unreasonably concluded that New York regulated transactions brokered “entirely off tribal land,” or that District Court erred when, relying on that conclusion, it held that New York’s evenhanded treatment of payday lenders did not violate the Indian Commerce Clause. Otoe-Missouria Tribe of Indians, 974 F.Supp.2d at 360.

First, plaintiffs claim that New York had no authority to demand that the lenders “cease and desist” from extending loans to New York residents. At the outset, we *115note that even if these letters, which were sent to tribal lenders (among other payday lenders), constitute attempted regulation of on-reservation activities, plaintiffs do not allege that the letters caused them harm; the damage to their business derived not from the cease-and-desist letter, which plaintiffs appear to have ignored, but from actions discussed below that allegedly caused the tribal lenders’ non-tribal off-reservation banking partners to cease doing business with them.

In any event, plaintiffs provided insufficient evidence to establish that they are likely to succeed in showing that the internet loans should be treated as on-reservation activity. As the district court noted, plaintiffs “built a wobbly foundation for their contention that [New York] ... regulated] activity that occur[ed] on the Tribes’ lands.” Id. The lenders’ affidavits boldly (but conclusorily) assert that “loans are approved through processes that occur on ... Reservations],” but nowhere do they state what specific portion of a lending transaction took place at any facility physically located on a reservation. Plaintiffs averred that loans were processed through “website[s] owned and controlled by the Tribes,” but never identified the citizenship of the personnel who manage the websites, where they worked, or where the servers hosting the websites were located. Loans were approved by a “Tribal loan underwriting system,” a vague description that could refer to the efforts of Native American actuaries working on a reservation, but could also refer to myriad other “systems” — software developed and administered by an off-site company, paid consultants located anywhere in the world, or any number of other arrangements. Loans were funded out of “Tribally owned bank accounts,” but those accounts were apparently held in, and perhaps funded by, non-tribal banks; the necessary involvement of non-tribal financial institutions is the very basis of plaintiffs’ claim that their business collapsed when banks pulled out of the payday lending business after receiving New York’s letter. Thus, even if we agreed that New York customers traveled elsewhere when they opened an internet browser, the lenders failed to establish where those customers metaphorically went, and who exactly approved their loans.

The complexities introduced by modern electronic commercial transactions also weaken plaintiffs’ arguments. Much of the commercial activity at issue takes place in New York. That is where the borrower is located; the borrower seeks the loan without ever leaving the state, and certainly without traveling to the reservation. Even if we concluded that a loan is made where it is approved, the transaction New York seeks to regulate involves the collection as well as the extension of credit, and that collection clearly takes place in New York. The loan agreements permit the lenders to reach into the borrowers’ accounts, most or all of them presumably located in New York, to effect regular, automatic wire transfers from those accounts to make periodic payments on the loans.

A court might ultimately conclude that, despite these circumstances, the transaction being regulated by New York could be regarded as on-reservation, based on the extent to which one side of the transaction is firmly rooted on the reservation. Because significant aspects of the transaction and its attendant regulation are distinctly not located on-reservation, however, ambiguities in the record about those portions of the transaction that purportedly are loom all the larger.6

*116Given this decidedly ambiguous and insufficient record as to the details of the purportedly on-reservation portions of the loan transactions, plaintiffs insist that the courts’ traditional “on-or-off reservation” analysis is an “overly-simplistic” approach to the “modern world of e-commerce.” It is enough, plaintiffs argue, that tribes bear the “legal burden of the regulation,” and, with that in mind, they contend that the court should proceed directly to the interest balancing prescribed in Bracker.

As discussed above, Supreme Court precedent that we are not free to disregard directs us to make the initial inquiry into the location of the regulated activity. Even assuming that the electronic nature of the transaction at issue here would permit us to distinguish those cases and proceed to interest balancing, plaintiffs “have not provided sufficient evidence of what we would weigh were we to adopt that test. At first blush, the tribal lenders’ payday loans resemble the Colville tribes’ tax-free cigarettes: Tribes profit from leveraging an artificial comparative advantage, one which allows them to sell consumers a way to evade state law.7 In theory, the tribes may have built the electronic equivalent of “modern[,] ... comfortable, clean, attractive facilities” like the ones in Cabazon, and they may have “engaged in a concerted and sustained undertaking to develop and manage” limited capital resources as the tribe did in Mescalero II. But the record does not reflect any such “substantial interest.” Cabazon, 480 U.S. at 220, 107 S.Ct. 1083. As noted above, it is not entirely clear just what the lenders have virtually “built,” and in any event the record contains no information about the extent of investment that was required.8

Second, plaintiffs claim that DFS infringed upon tribal sovereignty by launch*117ing a “national campaign” with the “express purpose of destroying out-of-state tribal businesses.” That claim rests on equally tenuous ground: Read in their strongest form, DFS’s letters requested that ACH and banks stop processing payday loans made to New York customers, But, again assuming that New York’s letters requesting that banks and ACH cooperate with DFS constitute regulation, that effort was directed to those aspects of online lending that are remote from the reservation. The direct force of DFS’s request fell upon parties located far from a reservation, on financial institutions that plaintiffs themselves claim are indispensable outside partners.

For DFS’s “campaign” to have run afoul of the Indian Commerce Clause, the lenders must demonstrate that DFS treated financial intermediaries as a proxy for Native American tribes. To do so, plaintiffs would have to show that DFS acted with the intent of regulating tribes, or that its outreach had that effect. New York’s alleged efforts to influence the banks and ACH can hardly be considered discriminatory, or specifically aimed at tribal lenders, as the state asked that the banks and ACH stem loans made by any online lender. The letters targeted a diverse group of lenders, the majority of whom had no affiliation with Native American tribes. If DFS cast a broad net with the ulterior motive of ensnaring just the tribes, that intent was certainly well-hidden.

It is not clear, moreover, that the DFS letters required the banks and ACH to take any particular action. To be sure, the letters contained a few ominous turns of phrases; they requested that financial institutions “choke-off ACH access” and “stamp out ... pernicious,' illegal payday loans.” But the letters also concluded with soft requests, asking for a simple meeting to explore “cooperation.” It is impossible to know what this ambiguous tone, at once bombastic and conciliatory, implies about DFS’s intent to take regulatory action to coerce the banks and ACH to act.

Nor is it clear that New York’s actions would have had any different effects if the tribal lenders had not been explicitly identified by DFS. New York’s usury laws apply to all lenders, not just tribal lenders, and DFS’s letters to the banks and ACH made clear that New York regulators disapproved of the facilitation by banks of high-interest payday lending from outside the state. The Indian Commerce Clause has no bearing on New York’s efforts to discourage banks from cooperating with non-Indian payday lenders.9 Because it is not clear why the banks and ACH reacted as they did to DFS’s letters, it is uncertain that they would have continued to do business with tribal lenders if DFS had cited *118only the general problem of payday lending.

Thus, it is not clear what to infer, if anything, from the decisions made by ACH and other banks. Although it is possible that the companies believed that they had to comply with DFS’s agenda, it is equally possible that they simply made an independent calculation that the benefits of avoiding potential violations of New York law outweighed the benefits of doing business with payday lenders in general or with tribal lenders in particular. It is far from clear that the banks and ACH would have continued to do business with plaintiffs if DFS had simply requested that they drop their business relationships with payday lenders in general.

In sum, the record presented to the district provided ambiguous answers to what are fundamentally factual questions. With the benefit of discovery, plaintiffs may amass and present evidence that paints a clearer picture of the “who,” “where,” and “what” of online lending, and may ultimately prevail in this litigation. But at this stage, the record is still murky, and thus, the District Court reasonably held that plaintiffs had not proven that they would likely succeed on the merits.

CONCLUSION

For the foregoing reasons, we AFFIRM the District Court’s denial of plaintiffs’ motion for a preliminary injunction.

OPINION

McKEOWN, Circuit Judge:

Bank fees, like taxes, are ubiquitous. And, like taxes, bank fees are unlikely to go away any time soon. The question we *716consider here is the extent to which overdraft fees imposed by a national bank are subject to state regulation.

At issue is a bookkeeping device, known as “high-to-low” posting, which has the potential to multiply overdraft fees, turning a single overdraft into many such overdrafts. The revenue from overdraft fees is massive. Between 2005 and 2007, Wells Fargo Bank (“Wells Fargo”) assessed over $1.4 billion in overdraft fees. Disturbed by the number of overdrafts caused by small, everyday debit-card purchases, Veronica Gutierrez and Erin Walker (collectively “Gutierrez”) sued Wells Fargo under California state law for engaging in unfair business practices by imposing overdraft fees based on the high-to-low posting order and for engaging in fraudulent business practices by misleading clients as to the actual posting order used by the bank.

The district court found that “the bank’s dominant, indeed sole, motive” for choosing high-to-low posting “was to maximize the number of overdrafts and squeeze as much as possible out of what it called its ‘ODRI customers’ (overdraft/returned item).” The district court also found that Wells Fargo had “affirmatively reinforced the expectation that transactions were covered in the sequence [the purchases were] made while obfuscating its contrary practice of posting transactions in high-to-low order to maximize the number of overdrafts assessed on customers.” The court issued a permanent injunction against “high-to-low” posting and ordered $203 million in restitution. On appeal, Wells Fargo seeks refuge from state law on the ground of federal preemption. It also challenges the district court’s factual and legal findings. We conclude that federal law preempts state regulation of the posting order as well as any obligation to make specific, affirmative disclosures to bank customers. Federal law does not, however, preempt California consumer law with respect to fraudulent or misleading representations concerning posting. As a consequence, we affirm in part, reverse in part, and remand for further proceedings.

Background1

“Posting” is the procedure banks use to process debit items presented for payment against accounts. During the wee hours after midnight, the posting process takes all debit items presented for payment during the preceding business day and subtracts them from the account balance. These items are typically debit-card transactions and checks. If the account balance is sufficient to cover all items presented for payment, there will be no overdrafts, regardless of the bookkeeping method used. If, however, the account balance is insufficient to cover every debit item, then the account will be overdrawn. When an account is overdrawn, the posting sequence can have a dramatic effect on the number of overdrafts incurred by the account (even though the total sum overdrawn will be exactly the same). The number of overdrafts drives the amount of overdraft fees.

Before April 2001, Wells Fargo used a low-to-high posting order. Under this system, the bank posted settlement items from lowest-to-highest dollar amount. Low-to-high posting paid as many items as the account balance could cover and thus minimized the number of overdrafts. Beginning in April of 2001, Wells Fargo did an about-face in California and began posting debit-card purchases in order of high*717est-to-lowest dollar amount. This system had the immediate effect of maximizing the number of overdrafts. The customer’s account was now depleted more rapidly than would be the case if the bank posted transactions in low-to-high order or, in some cases, chronological order.

As an illustration, consider a customer with $100 in his account who uses his debit-card to buy ten small items totaling $99, followed by one large item for $100, all of which are presented to the bank for payment on the same day. Under chronological posting or low-to-high posting, only one overdraft would occur because the ten small items totaling $99 would post first, leaving $1 in the account. The $100 charge would then post, causing the sole overdraft. Using high-to-low sequencing, however, these purchases would lead to ten overdraft events because the largest item, $100, would be posted first — depleting the entire account balance — followed by the ten transactions totaling $99. Overdraft fees are based on the number of withdrawals that exceed the balance in the account, not on the amount of the overdraft. When high-to-low sequencing is used, the fees charged by the bank for the overdrafts can dramatically exceed the amount by which the account was actually overdrawn. For example, Gutierrez incurred $143 in overdraft fees as a consequence of a $49 overdraft, and Erin Walker incurred $506 in overdraft fees for exceeding her account balance by $120.

Gutierrez claims that Wells Fargo made the switch to high-to-low processing in order to increase the amount of overdraft fees by maximizing the number of overdrafts. The bank amplified the effect of its fee maximization plan, which it named “Balance Sheet Engineering,” through several related practices that are not at issue here.

California’s Unfair Competition Law allows individual plaintiffs to bring claims for unfair, unlawful, or fraudulent business practices. Cal. Bus. & Prof.Code § 17200.2 Although remedies under the Unfair Competition Law are limited to injunctive relief and restitution, the law’s scope is “sweeping.” Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal.4th 163, 180, 83 Cal.Rptr.2d 548, 973 P.2d 527 (1999). Gutierrez sued on behalf of a class, alleging independent violations of both the law’s “unfair” and “fraudulent” prongs. Gutierrez alleged that Wells Fargo’s “resequeneing” practices are unfair because they contradict the legislative policy expressed in California Commercial Code § 4303(b) 1992 Amendment cmt. 7, which provides that “items may be accepted, paid, certified, or charged to the indicated account of its customer in any order” so long as the bank “act[s] in good faith” and not “for the sole purpose of increasing the amount of returned check fees charged to the customer.”3 Id.

*718The district court certified a class of “all Wells Fargo customers from November 15, 2004 to June 30, 2008, who incurred overdraft fees on debit-card transactions as a result of the bank’s practice of sequencing transactions from highest to lowest.” After a two-week bench trial, the district court issued a comprehensive 90-page decision and found that Wells Fargo’s “decision to post debit-card transactions in high-to-low order was made for the sole purpose of maximizing the number of overdrafts assessed on its customers.” The court also concluded that Wells Fargo led customers “to expect that the actual posting order of their debit-card purchases would mirror the order in which they were transacted” while hiding its actual practice of posting transactions in high-to-low order so that the bank could “maximiz[e] the number of overdrafts assessed on customers.”

The district court rejected Wells Fargo’s numerous defenses — federal preemption pursuant to various statutes and regulations, Gutierrez’s lack of standing, and the impropriety of class certification — and held Wells Fargo’s actions to be both unfair and fraudulent under the Unfair Competition Law. As a remedy, the court entered a permanent injunction requiring Wells Fargo to “cease its practice of posting in high-to-low order for all debit-card transactions” and “either reinstate a low-to-high posting method or use a chronological posting method (or some combination of the two methods) for debit-card transactions.” It also imposed various related disclosure requirements. In addition to injunctive relief, the district court ordered Wells Fargo to pay $203 million in restitution. Both parties appealed. Wells Fargo’s appeal focuses on its preemption argument and on the merits of Gutierrez’s Unfair Competition Law claims. Gutierrez’s cross-appeal is directed to the district court’s denial of prejudgment interest and punitive damages.

Analysis

I. ARBITRATION

As a threshold matter, we consider whether this dispute should be arbitrated. Although the contract between the parties contained a permissive arbitration clause, neither party requested arbitration, and consequently the district court did not consider the issue. On appeal, Wells Fargo seeks to compel arbitration and claims that its enforceable right to arbitration did not mature until the Supreme Court’s 2011 decision in AT&T Mobility LLC v. Concepcion, — U.S. -, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011). Wells Fargo asks us to vacate the judgment and remand so that the district court can dismiss the case or stay it pending arbitration. Gutierrez argues that Wells Fargo has waived any claim to arbitration.

After considering the terms of the arbitration agreement, the conduct of the parties, and the course of the litigation, along with the traditional benchmarks regarding waiver of arbitration and the purpose of the Federal Arbitration Act (“FAA”), we conclude that the district court judgment should not be vacated on the basis of Concepcion. To do so at this stage would undermine the parties’ agreement regarding arbitration, severely prejudice Gutier*719rez and the certified class members, and result in a waste of judicial resources. This is an unusual, perhaps sui generis, case in which the specific circumstances counsel this result.

In Concepcion, the Supreme Court held that the FAA preempted California’s Discover Bank rule, id. at 1753, which rendered class-wide arbitration waivers unenforceable if it was “alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money,” Discover Bank v. Superior Court, 36 Cal.4th 148, 162-63, 30 Cal.Rptr.3d 76, 113 P.3d 1100 (2005).

The central purpose of the FAA “is to ensure that ‘private agreements to arbitrate are enforced according to their terms.’ ” Stolt-Nielsen S.A. v. Animal-Feeds Int’l Corp., 559 U.S. 662, 130 S.Ct. 1758, 1773, 176 L.Ed.2d 605 (2010) (quoting Volt Info. Sci, Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)). Section 2 of the FAA provides that an agreement to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. Although the FAA’s savings clause “permits agreements to arbitrate to be invalidated by generally applicable contract defenses, such as fraud, duress, or unconscionability,” it does not allow “defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.” Concepcion, 131 S.Ct. at 1746 (citation and internal quotation marks omitted). In Concepcion, the Court struck down the Discover Bank rule because it was applied in a manner that disfavored arbitration and interfered with the enforcement of private arbitration agreements, thus standing “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. at 1753 (quotation marks and citation omitted).

The effect of Concepcion, as intervening Supreme Court law, on a judgment on appeal after trial, is an issue of first impression. The mine run of cases claiming waiver of arbitration stem from situations where, before trial, a party belatedly asserts a clear right to arbitration. See, e.g., Cox v. Ocean View Hotel Corp., 533 F.3d 1114, 1123-26 (9th Cir.2008) (declining to find that defendant’s initial refusal to arbitrate employee’s complaints constituted waiver of right to arbitrate subsequent legal action). But we have not found, nor have the parties cited, any cases involving waiver of a permissive arbitration right where the applicability of the right was not clear-cut, arbitration was never demanded, and the claim was first asserted on appeal following trial.

Our analysis begins with the Customer Account Agreement (“CAA”) between Wells Fargo and the class members, which provides:

Either of us may submit a dispute to binding arbitration at any reasonable time notwithstanding that a lawsuit or other proceeding has been commenced. If either of us fails to submit to binding arbitration following a lawful demand, the one who fails to submit bears all costs and expenses incurred by the other compelling arbitration.

The CAA further states that “[e]ach of us agrees that any arbitration we have shall not be consolidated with any other arbitration and shall not be arbitrated on behalf of others without the consent of each of us.”4

*720This arbitration clause stands in contrast to the mandatory arbitration provision found in many consumer contracts, such as the provision in Concepcion. To begin, it is a permissive clause in which either party may demand arbitration. The penalty for failing to consent to arbitration upon demand is bearing the costs involved in compelling arbitration. Four points stand out: 1) an arbitration demand is required; 2) the agreement contemplates that the parties may decide to remain within the judicial system to settle their disputes; 3) the agreement permits class arbitration on consent; and 4) any demand for arbitration must be made within a “reasonable time.”

The procedural posture of this case is reflective of the parties’ intentions and expectations. Notably, Wells Fargo never made a demand for arbitration, raised it as a defense, or even mentioned it until after the Concepcion decision, at which point the trial was over and the district court had issued its judgment. Although the FAA allows for interlocutory appeals of orders denying motions to compel arbitration, see 9 U.S.C. § 16(a)(1)(B), unlike the defendant in Concepcion, Wells Fargo undertook no such tack. See 131 S.Ct. at 1744-45; see also Franceschi v. Hosp. Gen. San Carlos, Inc., 420 F.3d 1, 4 (1st Cir.2005) (arbitration right is forfeited where no interlocutory appeal was filed because “it would prejudice plaintiffs to have a full trial and then determine by a post-trial appeal that the whole matter should have been arbitrated and so [should] start again” (internal quotation marks omitted)).

The timing of the arbitration demand is informative. The certiorari petition in Concepcion was filed on January 25, 2010, three months before the bench trial began in April 2010. Petition for Writ of Certiorari, Concepcion, 131 S.Ct. 1740 (No. 09-893). On May 24, 2010, the Supreme Court accepted review. AT & T Mobility LLC v. Concepcion, — U.S.-, 130 S.Ct. 3322, 176 L.Edüd 1218 (2010). At that stage, final argument in the district court was more than a month away, no decision had been issued, and the parties were exchanging proposed findings. The arbitration issue was, however, squarely before the Supreme Court. The district court’s decision was not issued until August 2010. Even in that interim period, Wells Fargo was silent as to arbitration and did not seek a stay pending the Supreme Court’s decision in Concepcion. Instead, Wells Fargo proceeded full steam ahead with this litigation in federal court. Only in April 2011, after an unfavorable result in the district court and the Supreme Court opinion did Wells Fargo seek to vacate the district court’s judgment via a motion to compel arbitration filed with this court. The Appellate Commissioner denied the motion without prejudice to renewing the arguments in the brief on cross-appeal. See Order, July 15, 2011.

Gutierrez argues that Wells Fargo “was driven by its preference to litigate this case in federal court in order to obtain favorable rulings from the district court on federal preemption and other issues.” The record is devoid of Wells Fargo’s motives for its chosen course of action, although Wells Fargo offered only argument, not evidence or declarations, as to the rationale for its litigation strategy. We make no judgment about Wells Fargo’s motives.

Against this background, we consider Gutierrez’s argument that Wells Fargo waived any rights to arbitration given the belated nature of its request. For such a waiver to occur, there must be: “(1) knowledge of an existing right to compel arbitration; (2) acts inconsistent with that *721existing right; and (3) prejudice to the party opposing arbitration resulting from such inconsistent acts.” Fisher v. A.G. Becker Paribas Inc., 791 F.2d 691, 694 (9th Cir.1986).

Wells Fargo claims that any “existing right” arose only after Concepcion and thus it did not act inconsistently with that “existing right” because it would have been futile to seek arbitration earlier. See Fisher, 791 F.2d at 695. The futility of an arbitration demand, however, is not clear cut here. In contemporaneous consumer litigation, litigants did succeed in compelling arbitration despite the existence of the Discover Bank rule. See, e.g., Dalie v. Pulte Home Corp., 636 F.Supp.2d 1025, 1027 (E.D.Cal.2009) (recognizing that “under California law a class action waiver is only unenforceable in a narrow set of circumstances”); McCabe v. Dell, Inc., No. CV 06-7811, 2007 WL 1434972, at *3-4 (C.D.Cal. Apr. 12, 2007) (compelling arbitration after finding the arbitration clause enforceable under California law); Galbraith v. Resurgent Capital Servs., No. CIV S 05-2133, 2006 WL 2990163, at *2 (E.D.Cal. Oct. 19, 2006) (same). Especially because the CAA did not prohibit class arbitration, a motion to compel arbitration was not inevitably futile under the prescribed case-by-case analysis. See Douglas v. U.S. Dist. Court for Cent. Dist. of Cal., 495 F.3d 1062, 1068 (9th Cir.2007) (whether arbitration can be compelled “depends on the facts and circumstances developed during the course of litigation”).

Given the differing circumstances in our case and Fisher with respect to the first two prongs of Fisher, we focus on prejudice. We reject Wells Fargo’s attempt to collapse all three Fisher prongs into one. Adopting this course would ignore the procedural posture of the case and also the court’s approach in Fisher, which laid out the waiver analysis. Although Fisher held that the defendant there had not acted inconsistently with an existing right, it went on to discuss the prejudice that the Fishers would suffer if the court were to order arbitration. See 791 F.2d at 698-99. We do the same.

Ordering arbitration post-appeal would severely prejudice Gutierrez. The CAA requires the demand to be made at a “reasonable time.” The series of disposi-tive motions, voluminous discovery, preparation for trial, two-week bench trial, post-trial briefing, and appellate proceedings amply demonstrate the resources both the parties and the courts have already expended, all of which would be undone if arbitration is now required. The prejudice to Gutierrez and the class stemming from Wells Fargo’s invocation of arbitration five years into this litigation — time, expense, delay and uncertainty — -is apparent. See Nat’l Found, for Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 776 (D.C.Cir.1987) (“To give [defendant] a second bite at the very questions presented to the court for disposition squarely confronts the policy that arbitration may not be used as a strategy to manipulate the legal process.”).

Independent of the Fisher analysis, arbitration at this juncture would frustrate the purposes of the FAA. “The overarching purpose of the FAA, evident in the text of §§ 2, 3, and 4, is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings.” Concepcion, 131 S.Ct. at 1748. Far from facilitating streamlined proceedings, sending this case to arbitration post-appeal would be wholly duplicative and lead to further delay and expense for both parties.

Nor would arbitration at this late stage serve any contractual purpose. The CAA calls for all claims to be resolved through either litigation or arbitration, if timely *722demanded by one of the parties. Because the CAA does not require arbitration, Gutierrez’s prejudice is in no way self-inflicted. Ordering arbitration would undercut her contractual expectations, be inconsistent with the parties’ agreement, and contradict their conduct throughout the litigation. See Concepcion, 131 S.Ct. at 1752 (“Arbitration is a matter of contract, and the FAA requires courts to honor parties’ expectations.”). Because we reject Wells Fargo’s belated effort to invoke arbitration, we proceed to the parties’ remaining arguments.

II. Federal PreemptioN

We next consider whether the National Bank Act of 1864, 13 Stat. 99 (codified at 12 U.S.C. § 1 et seq.), preempts application of California’s Unfair Competition Law. Consistent with the principles of federalism, the United States has a “dual banking system.” See, e.g., Atherton v. F.D.I.C., 519 U.S. 213, 221-23, 117 S.Ct. 666, 136 L.Ed.2d 656 (1997). During the first century of the nation’s existence, “state-chartered banks were the norm and federally chartered banks an exception.” Id. at 221, 117 S.Ct. 666. After the Civil War, Congress passed the National Bank Act to ensure that national and state banks could coexist on a basis of “competitive equality.” First Nat’l Bank of Logan, Utah v. Walker Bank & Trust Co., 385 U.S. 252, 261, 87 S.Ct. 492, 17 L.Ed.2d 343 (1966). The Act vests nationally chartered banks with enumerated powers, such as the power to make contracts, to receive deposits, and to make loans, together with “all such incidental powers as shall be necessary to carry on the business of banking.” 12 U.S.C. § 24 (Third, Seventh). In addition to the National Bank Act, the activities of national banks are governed by related regulations promulgated by the Office of the Comptroller of the Currency (the “OCC”). See 12 U.S.C. §§ 24, 93a, 371(a).

In analyzing preemption, we ask whether the state law “prevents] or significantly interfere[s] with the national bank’s exercise of its powers.” Barnett Bank of Marion Cnty., N.A. v. Nelson, 517 U.S. 25, 33, 116 S.Ct. 1103, 134 L.Ed.2d 237 (1996). Although states cannot exercise “visitorial” oversight over national banks, state laws of general application continue to apply to national banks when “doing so does not prevent or significantly interfere with the national bank’s exercise of its powers.” Id. at 33, 116 S.Ct. 1103; see also Watters v. Wachovia Bank, N.A., 550 U.S. 1, 11, 127 S.Ct. 1559, 167 L.Ed.2d 389 (2007) (“Federally chartered banks are subject to state laws of general application in their daily business to the extent such laws do not conflict with the letter or purposes of the NBA.”). As the Supreme Court explained in Cuomo v. Clearing House Ass’n, LLC, 557 U.S. 519, 530, 129 S.Ct. 2710, 174 L.Ed.2d 464 (2009), this balance of authority preserves “a regime of exclusive administrative oversight by the Comptroller while honoring in fact rather than merely in theory Congress’s decision not to preempt substantive state law. This system echoes many other mixed state/federal regimes in which the Federal Government exercises general oversight while leaving state substantive law in place.” Indeed, “[sjtates ... have always enforced their general laws against national banks.” Id. at 534, 129 S.Ct. 2710.

Against the framework of extensive federal statutory and regulatory oversight of national banks, the question is whether Wells Fargo’s implementation of high-to-low posting is subject to California’s Unfair Competition Law, a consumer protection statute of general applicability. Cal. Bus. & Prof.Code § 17200. We do not tackle the Unfair Competition Law gener*723ally vis-a-vis federal banking regulation. Rather, reviewing de novo, we analyze each Unfair Competition Law claim separately, Martinez v. Wells Fargo Home Mortg., Inc., 598 F.3d 549, 553 (9th Cir.2010), though as a practical matter, the remedy ordered by the district court boils down to a complete prohibition on the high-to-low-sequencing method.

A. Unfair Business Practices and High-to-Low Posting

The district court deemed Wells Fargo’s high-to-low posting method an unfair practice in violation of the Unfair Competition Law because it was imposed in bad faith, in contravention of the policy reflected in California Commercial Code § 4303(b).5 In terms of remedy, the district court permanently enjoined Wells Fargo’s use of high-to-low posting. The court ordered Wells Fargo to “either reinstate a low-to-high posting method or use a chronological posting method (or some combination of the two methods).” With respect to disclosures, the court required “all agreements, disclosures, websites, online banking statements, and promotional materials” to conform to the new posting system. Finally, the court ordered $203 million in restitution because it found that Wells Fargo acted in bad faith when it decided to post debit-card transactions in high-to-low order. The appeal of this claim turns on whether state law can dictate Wells Fargo’s choice of posting method. We hold that it cannot.

Under the National Bank Act, key powers of national banks include the authority to receive deposits, as well as “all such incidental powers as shall be necessary to carry on the business of banking.” 12 U.S.C. § 24 (Seventh). The deposit and withdrawal of funds “are services provided by banks since the days of their creation. Indeed, such activities define the business of banking.”6 Bank of Am. v. City and Cnty. of San Francisco, 309 F.3d 551, 563 (9th Cir.2002). Both the “business of banking” and the power to “receiv[e] deposits” necessarily include the power to post transactions — i.e., tally deposits and withdrawals — to determine the balance in the customer’s account. See 12 U.S.C. § 24 (Seventh).

The ability to choose a method of posting transactions is not only a useful, but also a necessary, component of a posting process that is integrally related to the receipt of deposits. Designation of a posting method falls within the type of overarching federal banking regulatory power that is “not normally limited by, but rather ordinarily pre-empt[s], contrary state law.” Watters, 550 U.S. at 12, 127 S.Ct. 1559 (quotation marks omitted).

In addition to the broad power vested by statute, federal banking regulations adopted by the OCC specifically delegate *724to banks the method of calculating fees. 12 C.F.R. § 7.4002(b). As the agency charged with administering the National Bank Act, the OCC has primary responsibility for the surveillance of the “business of banking” authorized by the National Bank Act. NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 256, 115 S.Ct. 810, 130 L.Ed.2d 740 (1995). The OCC is authorized to define the “incidental powers” of national banks beyond those specifically enumerated. See 12 U.S.C. § 93a (authorizing the OCC “to prescribe rules and regulations to carry out the responsibilities of the office”).

The OCC has interpreted these incidental powers to include the power to set account terms and the power to charge customers non-interest charges and fees, such as the overdraft fees at issue here. 12 C.F.R. § 7.4002(a).7 More specifically, the OCC has determined that “[t]he establishment of non-interest charges and fees, their amounts, and the method of calculating them are business decisions to be made by each bank, in its discretion, according to sound banking judgment and safe and sound banking principles.” 12 C.F.R. § 7.4002(b)(2) (emphasis added).

OCC letters interpreting § 7.4002 specifically consider high-to-low posting and associated overdraft fees to be a “pricing decision authorized by Federal law” within the power of a national bank. OCC Interpretive Letter No. 916, 2001 WL 1285359, at *2 (May 22, 2001); see also OCC Interpretive Letter No. 997, 2002 WL 32872368, at *3 (Apr. 15, 2002); OCC Interpretive Letter No. 1082, 2007 WL 5393636, at *2 (May 17, 2007). The OCC has opined that “a bank’s authorization to establish fees pursuant to 12 C.F.R. 7.4002(a) necessarily includes the authorization to decide how they are computed.” OCC Interpretive Letter No. 916, 2001 WL 1285359, at *2 (May 22, 2001). Accordingly, the OCC has determined that a national bank “may establish a given order of posting as a pricing decision pursuant to section 24 (seventh) and section 7.4002.” Id. In sum, federal law authorizes national banks to establish a posting order as part and parcel of setting fees, which is a pricing decision.

The district court held that the bank’s determination of posting order did not constitute a pricing decision because Wells Fargo did not follow the four factor decision making process for safe and sound banking principles mandated by the OCC. 12 C.F.R. § 7.4002(b).8 The National Bank Act gives to the OCC the exclusive authority to exercise visitorial oversight over national banks, and it entrusts the OCC with the supervision of national banks’ activities that are authorized by federal law. 12 U.S.C. § 484(a); 12 C.F.R. § 7.4000; see also Cuomo, 557 U.S. at 524, 129 S.Ct. 2710. Whether Wells Fargo’s internal decision-making processes regarding posting orders complied with the “safe and sound banking principles” under § 7.4002(b)(2) is an inquiry that falls *725squarely within the OCC’s supervisory powers. The district court’s findings with regard to Wells Fargo’s compliance with the OCC regulation, then, are both “inap-posite to the issue of preemption” and “fruitless.” Martinez, 598 F.3d at 556 n. 8 (citing Watters, 550 U.S. at 13, 127 S.Ct. 1559). In Martinez, we addressed whether Wells Fargo had followed safe and sound banking principles in making a pricing decision and emphasized that the determination of the bank’s compliance with these principles “is within the exclusive purview of the OCC.” Id.

Wells Fargo’s decision to resequence the posting order falls within the OCC’s definition of a pricing decision authorized by federal law. The district court is not free to disregard the OCC’s determinations of what constitutes a legitimate pricing decision, nor can it apply state law in a way that interferes with this enumerated and incidental power of national banks.

The restriction that the district court imposed on posting is akin to the fee restriction addressed in the Eleventh Circuit’s recent preemption ruling. See Baptista v. JPMorgan Chase Bank, N.A., 640 F.3d 1194, 1197 (11th Cir.2011). The court in Baptista held that a state statute that disallowed banks from charging non-customers for cashing a check was preempted because it significantly reduced the banks’ latitude in deciding how to charge fees. Id. at 1197-98. The same logic applies here.

We hold that a “good faith” limitation applied through California’s Unfair Competition Law is preempted when applied in a manner that prevents or significantly interferes with a national bank’s federally authorized power to choose a posting order. See Barnett, 517 U.S. at 37, 116 S.Ct. 1103 (state statute could not bar small town national banks from selling insurance where federal statute gave the banks such authority); Bank of Am., 309 F.3d at 561-64 (federal regulations allowing banks to collect non-interest charges preempted a local law governing what ATM fees a bank could charge). The federal court cannot mandate the order in which Wells Fargo posts its transactions. Therefore, we vacate the permanent injunction and the $203 million restitution award. The district court premised both of these remedies on only a violation of the “unfair” business practice prong of the Unfair Competition Law tethered to the “good faith” requirement of California Commercial Code § 4303(b).

B. Fraudulent Business Practices and Wells Fargo’s Representations

The district court found not only a violation of the “unfair” prong of the Unfair Competition Law with regard to the posting order, but also a violation of the “fraudulent” prong of the Unfair Competition Law with regard to Wells Fargo’s representations about posting. The Unfair Competition Law authorizes injunctive relief and restitution as remedies against a person or entity engaging in unfair competition, including fraudulent business practices. Cal. Bus. & Prof.Code § 17203; see also Cel-Tech Commc’ns, Inc., 20 Cal.4th at 180, 83 Cal.Rptr.2d 548, 973 P.2d 527 (each of the three Unfair Competition Law prongs constitutes a separate and independent cause of action). The district court faulted Wells Fargo both for its failure to disclose the effects of high-to-low posting and for its misleading statements. The district court concluded that Wells Fargo “did not tell customers that frequent use of a debit-card for small-valued purchases could result in an avalanche of overdraft fees for each of those purchases due to the high-to-low posting order.” Instead, Wells Fargo “directed misleading propaganda at the class that likely led class members to *726expect that the actual posting order of their debit-card purchases would mirror the order in which they were transacted.”

We have determined that the district court’s injunction ordering a particular kind of posting and ordering $203 million in restitution under the “unfair” prong of California’s Unfair Competition Law is preempted. The question arises whether we need to address preemption under the “fraudulent” prong as well. We conclude that we do because, on remand, the district court may determine that appropriate relief is available to the extent a claim for fraudulent misrepresentation is not preempted.

The requirement to make particular disclosures falls squarely within the purview of federal banking regulation and is expressly preempted: “A national bank may exercise its deposit-taking powers without regard to state law limitations concerning,” among other things, “disclosure requirements.” 12 C.F.R. § 7.4007(b)(3). In Martinez, plaintiffs’ claim that the bank “engaged in ‘fraudulent’ practices by failing to disclose actual costs of its underwriting and tax services” was expressly preempted by the OCC regulation preempting state disclosure requirements in real estate transactions. Martinez, 598 F.3d at 554, 557; see also 12 C.F.R. § 34.4(a)(9). Similarly, the Unfair Competition Law cannot impose liability simply based on the bank’s failure to disclose its chosen posting method. See Rose v. Chase Bank USA, N.A., 513 F.3d 1032, 1038 (9th Cir.2008) (the National Bank Act preempts affirmative disclosure requirements of a California statute, insofar as those requirements apply to national banks); Parks v. MBNA Am. Bank, N.A., 54 Cal.4th 376, 386-87, 142 Cal.Rptr.3d 837, 278 P.3d 1193 (2012) (state law directed at credit card issuers, which prescribed specific disclosures on convenience checks, was preempted). Imposing liability for the bank’s failure to sufficiently disclose its posting method leads to the same result as mandating specific disclosures. Both remedies are tantamount to state regulation of disclosure requirements.

We turn now to the different question of state law liability based on Wells Fargo’s misleading statements about its posting method. Notably, the Unfair Competition Law itself does not impose disclosure requirements but merely prohibits statements that are likely to mislead the public. As a non-discriminating state law of general applicability that does not “conflict with federal law, frustrate the purposes of the National Bank Act, or impair the efficiency of national banks to discharge their duties,” the Unfair Competition Law’s prohibition on misleading statements under the fraudulent prong of the statute is not preempted by the National Bank Act. Bank of Am., 309 F.3d at 561.

Wells Fargo’s position — that § 7.4007(b)(2) dictates preemption — is conclusively undercut by the OCC itself, which, far from concluding that the Unfair Competition Law is expressly preempted under its regulations, “has specifically cited [California’s Unfair Competition Law] in an advisory letter cautioning banks that they may be subject to such laws that prohibit unfair or deceptive acts or practices.” Martinez, 598 F.3d at 555. The advisory letter warns that the “consequences of engaging in practices that may be unfair or deceptive under federal or state law can include litigation, enforcement actions, monetary judgments, and harm to the institution’s reputation.” OCC Advisory Letter, Guidance on Unfair or Deceptive Acts or Practices, 2002 WL 521380, at *1 (Mar. 22, 2002). The OCC recognizes that state laws that withstand preemption “typically do not regulate the *727manner or content of the business of banking authorized for national banks, but rather establish the legal infrastructure that makes practicable the conduct of that business.” Bank Activities and Operations, 69 Fed.Reg.1904, 1913 (Jan. 13, 2004). By prohibiting fraudulent business practices, the Unfair Competition Law does exactly that — it establishes a legal infrastructure.

Although Wells Fargo insists that a state law prohibiting misleading statements necessarily touches on “checking accounts,” such an expansive interpretation — with no limiting principle — “would swallow all laws.” Aguayo v. U.S. Bank, 653 F.3d 912, 925 (9th Cir.2011). We recently declined a bank’s invitation to interpret the term “lending operations” expansively because “every action by the bank, due to the nature of its business, affects its ability to attract, manage, and disburse capital, and could be said to ‘affect’ its lending operations.” Id. California’s prohibition of misleading statements does not significantly interfere with the bank’s ability to offer checking account services, choose a posting method, or calculate fees. Nor does the Unfair Competition Law mandate the content of any nonmisleading and nonfraudulent statements in the banking arena. On the flip side, the National Bank Act and other OCC provisions do not aid Wells Fargo, as neither source regulates deceptive statements vis-a-vis the bank’s chosen posting method. Where, as here, federal laws do not cover a bank’s actions, states “are permitted to regulate the activities of national banks where doing so does not prevent or significantly interfere with the national bank’s or the national bank regulator’s exercise of its powers.” Watters, 550 U.S. at 12, 127 S.Ct. 1559; see also Gibson v. World Sav. & Loan Ass’n, 103 Cal.App.4th 1291, 1299, 128 Cal.Rptr.2d 19 (2002) (the “state cannot dictate to the Bank how it can or cannot operate, but it can insist that, however the Bank chooses to operate, it do so free from fraud and other deceptive business practices”).

Other than an argument regarding the cost of modifying its published materials, Wells Fargo does not articulate how abiding by the Unfair Competition Law’s prohibition of misleading statements would prevent or significantly interfere with its ability to engage in the business of banking. Wells Fargo’s inability to demonstrate a significant interference is unsurprising — the district court found that when it chose to, the bank could accurately explain the posting process to customers: “Wells Fargo provided its tellers and phone-bank employees with a clear script to respond to customers who protested after receiving multiple overdraft fees caused by high-to-low resequencing. These explanations were in plain English.” The limitation on fraudulent representations in California’s Unfair Competition Law does not subject Wells Fargo’s ability to receive deposits, to set account terms, to implement a posting method, or to calculate fees to surveillance under a rival oversight regime, nor does it stand as an obstacle to the accomplishment of the National Bank Act’s purposes. See Barnett, 517 U.S. at 31, 116 S.Ct. 1103. In Martinez, we expressed the principle that controls here: “State laws of general application, which merely require all businesses (including national banks) to refrain from fraudulent, unfair, or illegal behavior, do not necessarily impair a bank’s ability to exercise its ... powers.” 598 F.3d at 555. Accordingly, we hold that Gutierrez’s claim for violation of the fraudulent prong of the Unfair Competition Law by making misleading misrepresentations with regard to its posting method is not preempted, and we affirm the district court’s finding to this extent. Consistent with the foregoing, the district court may provide injunctive relief *728and restitution against Wells Fargo. Although the court cannot issue an injunction requiring the bank to use a particular system of posting or requiring the bank to make specific disclosures, it can enjoin the bank from making fraudulent or misleading representations about its system of posting in the future. Restitution is available for past misleading representations. We make no judgment as to whether it is warranted here. On remand, the district court will be in a position to determine whether, subject to the limitations in this opinion, restitution is justified by the pleadings and the evidence in this case.

III. Remaining Issues

Finally, we consider Wells Fargo’s challenge to standing, class certification, and the finding that Wells Fargo made misleading statements. Upon reviewing the trial record and the district court’s extensive findings, we conclude that the district court did not err. See Lyon v. Gila River Indian Cmty., 626 F.3d 1059, 1071 (9th Cir.2010) (the district court’s conclusions of law are reviewed de novo and its findings of fact are reviewed for clear error).

A. Standing

To establish standing to seek class-wide .relief for fraud-based Unfair Competition Law claims, the named plaintiffs must prove “actual reliance” on the misleading statements. Specifically, “a class representative proceeding on a claim of misrepresentation as the basis of his or her UCL action must demonstrate actual reliance on the allegedly deceptive or misleading statements, in accordance with well-settled principles regarding the element of reliance in ordinary fraud actions.” In re Tobacco II Cases, 46 Cal.4th 298, 306, 93 Cal.Rptr.3d 559, 207 P.3d 20 (2009).

The district court found that Gutierrez and Walker read portions of the “Welcome Jacket,” “which stated that ‘[e]ach purchase is automatically deducted from your primary checking account.’ ” The district court next found that Gutierrez and Walker each “relied upon the bank’s misleading marketing materials that reinforced her natural assumption that debit-card transactions would post chronologically.” The district court determined that both Gutierrez and Walker were misled by Wells Fargo’s statements because the extent of the falsity of the statements was not known to either of them until they incurred hefty fees for having overdrawn their checking accounts. These findings are well supported by the evidence and are not clearly erroneous. Gutierrez and Walker therefore have standing. See Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir.2007) (en banc) (“In a class action, standing is satisfied if at least one named plaintiff meets the requirements.”).9

B. Class CERTIFICATION

Next, class certification under Fed.R.Civ.P. 23(b)(3) requires that “questions of law or fact common to class members predominate over any questions affecting only individual members.” With respect to marketing materials, the district court found that:

A Wells Fargo marketing theme was that debit-card purchases were “immediately” or “automatically” deducted from an account. This likely led the class to believe: (1) that the funds would be deducted from their checking accounts in the order transacted, and (2) that the *729purchase would not be approved if they lacked sufficient available funds to cover the transaction. This language was present on Wells Fargo’s website (TX 129), on Wells Fargo’s Checking, Savings and More brochures from 2001 and 2005 (TX 88, 89), and Wells Fargo’s New Account Welcome Jacket from 2004 (TX 82).

The pervasive nature of Wells Fargo’s misleading marketing materials amply demonstrates that class members, like the named plaintiffs, were exposed to the materials and likely relied on them. See Tobacco II, 46 Cal.4th at 312, 93 Cal.Rptr.3d 559, 207 P.3d 20 (to establish fraud under the Unfair Competition Law, plaintiffs must show “that members of the public are likely to be deceived”). In addition, the district court found that Wells Fargo knew that “new accounts generate the bulk of OD [overdraft] revenue.” Wells Fargo’s speculation — that “some class members would have engaged in the same conduct irrespective of the alleged misrepresentation” — does not meet its burden of demonstrating that individual reliance issues predominate. Unlike McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 223 (2d Cir.2008) (partially abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008)), where individual class members could have had different motives for choosing “light” cigarettes, we are hard pressed to agree that any class member would prefer to incur multiple overdraft fees.

C. Misleading Statements

Finally, the district court’s finding that Wells Fargo made misleading statements is amply supported by the court’s factual findings. Wells Fargo told customers that “[c]heck card and ATM transactions generally reduce the balance in your account immediately” and that “the money comes right out of your checking account the minute you use your debit-card.” The bank also misleadingly admonished customers to “[r]emember that whenever you use your debit-card, the money is immediately withdrawn from your checking account. If you don’t have enough money in your account to cover the withdrawal, your purchase won’t be approved.” According to the district court,

the “account activity” information provided to customers through online banking — a service made available to all Wells Fargo depositors — displayed “pending” debit-card transactions in chronological order (ie., the order in which the transactions were authorized by Wells Fargo). When it came time to post them during the settlement process, however, the same transactions were not posted in chronological order but were posted in high-to-low order.

The findings go on:

Misleading marketing materials promoted the same theme of chronological subtraction. A number of Wells Fargo marketing materials, including the Wells Fargo Welcome Jacket that was customarily provided to all customers who opened a consumer checking account, contained misleading representations regarding how debit-card transactions were processed. Specifically, these various materials — covered in detail in the findings of fact — communicated that debit-card POS purchases were deducted “immediately” or “automatically” from the user’s checking account.... Such representations would lead reasonable consumers to believe that the transactions would be deducted from their checking accounts in the sequence transacted.

Based on these findings, the district court concluded that “Wells Fargo affirmatively reinforced the expectation that transac*730tions were covered in the sequence made while obfuscating its contrary practice of posting transactions in high-to-low order to maximize the number of overdrafts assessed on customers.” Wells Fargo’s alternate interpretation of the word “automatically” is insufficient to render the district court’s findings clearly erroneous. Accordingly, the district court’s holding that Wells Fargo violated the Unfair Competition Law by making misleading statements likely to deceive its customers is affirmed.

Conclusion

Given the terms of the arbitration agreement and the parties’ conduct throughout litigation, the Supreme Court’s decision in Concepcion does not require that this dispute be arbitrated at this late stage — post-trial, post-judgment, and post-appeal. As to preemption, we hold that a national bank’s decision to post payments to checking accounts in a particular order is a federally authorized pricing decision. The National Bank Act preempts the application of the unfair business practices prong of California’s Unfair Competition Law to dictate a national bank’s order of posting. See 12 U.S.C. § 24; 12 C.F.R. § 7.4002. Similarly, both the imposition of affirmative disclosure requirements and liability based on failure to disclose are preempted by 12 U.S.C. § 24 and 12 C.F.R. § 7.4007. The National Bank Act, however, does not preempt Gutierrez’s claim for affirmative misrepresentations under the “fraudulent” prong of the Unfair Competition Law.

Although the injunctive relief ordered by the district court is based on both the unfair and fraudulent prongs of the Unfair Competition Law, the injunction is vacated because each of its terms dictates relief relating to the posting order, which is preempted. The restitution order, which is predicated on liability for Wells Fargo’s choice of posting method and thus also preempted, is vacated as well. The district court’s finding of liability for Wells Fargo’s violations of the “fraudulent” prong of California’s Unfair Competition Law is affirmed, and we remand for the district court to determine what relief, if any, is appropriate and consistent with this opinion.10

AFFIRMED in part, REVERSED in part, and REMANDED. Each party shall pay its own fees on appeal.

Opinion

LAMBDEN, J.

Defendant JTH Tax, Inc., doing business as Liberty Tax Service (Liberty), appeals from a judgment issued after a bench trial awarding plaintiff, the People, approximately $1,169,000 in civil penalties, ordering Liberty to pay approximately $135,000 in restitution, and permanently enjoining Liberty in several ways for violating state and federal lending, unfair competition, consumer protection, and false advertising laws. Liberty argues that the trial court made errors of law and/or fact in determining that a “handling fee” charged for certain bank products was an undisclosed finance charge under the federal Truth in Lending Act (15 U.S.C. § 1601 et seq.; TILA); Liberty’s cross-collection practices regarding past loan debts owed by customers were improper; Liberty was vicariously liable for its franchisees’ advertising; certain civil penalties for advertising violations should be paid by Liberty; and a permanent injunction regarding certain of Liberty’s practices going forward was necessary and appropriate.

We disagree with each of Liberty’s arguments. We find the trial court’s analyses and findings to be thoughtful and well calibrated regarding the circumstances before it, and affirm the judgment.

BACKGROUND

Liberty, a Delaware corporation with headquarters in Virginia Beach, Virginia, provides certain tax preparation and related loan services throughout the United States. As of the time of trial, Liberty had more than 2,000 franchised and company-owned stores throughout the United States, including 195 franchised stores in California (along with two company-owned stores in 2005 and 2006), all of which do business as “Liberty Tax Service.” Liberty offered tax preparation services, efiling, “refund anticipation loans” (RAL) and “electronic refund checks” (ERC).

*1224In February 2007, the Attorney General filed a complaint against Liberty in the Superior Court of the City and County of San Francisco alleging that Liberty had violated California’s unfair competition law (UCL), Business and Professions Code section 17200 et seq., and California’s false advertising law (FAL), Business and Professions Code section 17500 et seq.1 The lawsuit claimed there were misleading or deceptive statements in print and television advertising by Liberty and its franchisees regarding Liberty’s RAL’s and ERC’s and inadequate disclosures to customers in Liberty’s RAL and ERC applications regarding debt collection, certain costs and interest on the extension of credit, the time it takes to receive money under refund options offered, and other matters. The remedies the People sought included injunctive relief, civil penalties, and an order of restitution.

The Trial Court’s Rulings

After a nine-day bench trial, the trial court issued a 49-page statement of decision. Many of the facts found by the court are not disputed. Liberty’s RAL’s were short-term loans provided by lender banks with which Liberty contracted. It was primarily Liberty, rather than the lender banks, that advertised and promoted the RAL’s, offered them to customers, provided customers with multipage loan applications, filled out the applications, and obtained the customer’s signatures. Liberty also delivered the RAL applications to the lender bank and distributed the loan proceeds to most of its customers.

If approved, an RAL was usually disbursed by the lender bank in one or two days, secured by a customer’s anticipated tax refund and issued by a third-party bank. The loan amount was based on the anticipated refund minus all transaction-related charges and fees, including a finance charge and tax preparation fees, as well as a “handling fee” charged for the lender bank’s establishment of a temporary, special purpose account into which the customer’s tax refund was deposited directly by the Internal Revenue Service (IRS). The customer could not redirect a refund once the IRS was given notice of this special purpose account. The bank repaid its loan out of any tax refund subsequently deposited into the account by the IRS. The customer was responsible for repaying the full amount of the loan, regardless of the size of the actual tax refund deposited into the account.

An ERC application also authorized the lender bank to set up a temporary, special purpose account to receive the customer’s tax refund directly from the IRS. When the IRS deposited the tax refund into the account, the bank *1225deducted the tax return preparation fees, the handling fee, and any other applicable charges, and paid any remainder to the customer.

Liberty benefitted substantially from its sales of RAL’s and ERC’s. In 2007, it earned more than $11.6 million in revenue from their sales, 17.5 percent of its total revenues nationwide. RAL’s and ERC’s accounted for 22 percent of Liberty’s California revenues in 2007, up from 8.28 percent in 2005. From 2002 to 2005, Liberty received 65 percent of the revenues on RAL’s and ERC’s issued to Liberty customers by First Bank of Delaware (FBOD). From 2006 to 2008, it received a flat amount for each RAL and ERC from Santa Barbara Bank & Trust (SBBT), then the exclusive supplier of these products in California.

Liberty also benefitted from sales of RAL’s and ERC’s because these products made its tax preparation services more affordable. Liberty had a high percentage of lower income customers and many of its customers could not afford to pay for tax preparation out of pocket. As Liberty’s sale documents indicate, the key selling point for RAL’s and ERC’s was that the customer did not pay any costs up front. Liberty’s chief financial officer testified, “Well, if we didn’t offer bank products, customers—a lot of customers wouldn’t come in our doors.”

Liberty’s loan programs were an important focus of its marketing efforts. As we will discuss, its advertisements and those of its franchisees featured promises of speedy cash in order to attract customers.

The court found against Liberty in three relevant areas. First, it concluded that the handling fee charged to ERC customers, typically $24 to $30.95 depending on the year, was an undisclosed finance charge in violation of the TELA (15 U.S.C. § 1601 et seq.), because an ERC was a form of credit that allowed customers to delay payment for tax preparation services. The court also found Liberty’s failure to disclose this finance charge violated California’s UCL and FAL. It ordered Liberty to pay $240,500 in civil penalties, disclose any fee incident to the extension of credit as a finance charge, and state the cost of such fees as an annual percentage rate.

Second, the trial court concluded that Liberty’s employment of “cross-collection” practices in the course of selling RAL’s and ERC’s to collect applicants’ tax refund loan debts from prior transactions, including non-Liberty transactions, was deceptive, unfair, and violated both federal and state laws. The court imposed $118,000 in civil penalties, ordered Liberty to pay $135,886 in restitution to affected customers, and permanently enjoined certain aspects of Liberty’s practices.

*1226Third, the trial court found Liberty liable for certain print and television advertisements that were “likely to deceive” within the meaning of California’s UCL and FAL. These included advertisements created or approved by Liberty and those placed by California franchisees, the latter because, the court found, the franchisees acted as Liberty’s agents in doing so. The trial court ordered Liberty to pay civil penalties of $753,199 for advertisements it created or approved and an additional $50,000 for advertisements by its franchisees.

The trial court also permanently enjoined Liberty from “disseminating or causing to be disseminated any [advertisement that directly or indirectly represents [an RAL] as a client’s actual refund,” and from failing, in any advertisement that mentions refund loans, to state “conspicuously” that the product is a loan, as well as the name of, and fee or interest that will be charged by, the lending institution. Under the injunction, Liberty is required to monitor its employees and franchisees to ensure they refrain from engaging in false advertising, to warn, then fine, and then terminate those who commit violations, and to promptly notify the Attorney General’s office of violations. The court maintained jurisdiction over the case and indicated that the parties could apply to it at any time for “such further orders and directions as may be necessary or appropriate for the construction or carrying out” of the court’s judgment, “for modification or termination of any injunctive provision,” and “for punishment of any violation” of the judgment.

Liberty filed a timely notice of appeal.

We have also reviewed and considered several additional filings in this appeal. We have reviewed and considered the amicus curiae brief filed by the International Franchise Association in support of Liberty, the amicus curiae brief filed by the National Consumer Law Center (NCLC) and National Association of Consumer Advocates (NACA) in support of the People, and the parties’ filings in response to these briefs.

We have taken under submission Liberty’s motion for judicial notice, filed on August 9, 2010. We hereby grant this motion pursuant to Evidence Code section 452, subdivision (c).

We have also taken under submission two motions to strike by the People. We discuss our rulings regarding the first, a motion to strike portions of Liberty’s reply brief, in the discussion, post. Regarding the People’s motion to strike portions of Liberty’s response to the amicus curiae brief filed by the NCLC and NACA, the motion is denied. However, we conclude the arguments by Liberty that the People seek to strike are unpersuasive for the reasons stated in the People’s motion, including because they are raised for *1227the first time in response to the amicus curiae brief, and/or because they are not particularly relevant in light of the rulings we make herein.

Finally, we have reviewed and considered the case law and arguments referred to in letters submitted to us by the parties.

DISCUSSION

Liberty argues the trial court erred in ruling that Liberty’s ERC handling fee was an undisclosed finance charge in violation of the TILA, that its cross-collection practices violated federal and state law, and that it was vicariously liable under agency law for its franchisees’ deceptive advertising. Liberty also challenges the court’s method of calculating certain of the civil penalties the court imposed for Liberty’s advertising violations under the UCL and FAL. Finally, Liberty argues the trial court abused its discretion in ordering certain permanent injunctive relief. We now review each of these arguments.

I. The ERC Handling Fee

Under the TILA and the related regulations, a finance charge is “the cost of consumer credit as a dollar amount. It includes any charge payable directly or indirectly by the consumer and imposed directly or indirectly by the creditor as an incident to or a condition of the extension of credit. It does not include any charge of a type payable in a comparable cash transaction.” (12 C.F.R. § 226.4(a) (2012); accord, 15 U.S.C. § 1605(a).) Liberty argues the trial court erred by concluding the ERC handling fee was a finance charge subject to the TILA because its customers pay it to a bank, not Liberty, for setting up a temporary refund account, and also pay the same fee in comparable cash transactions. We conclude the court did not err.

A. The Proceedings Below

The court concluded the ERC handling fee was a finance charge because a Liberty customer must pay it “in order to defer payment for tax preparation fees” via purchase of an ERC, citing Berryhill v. Rich Plan of Pensacola (5th Cir. 1978) 578 F.2d 1092, 1099 (Berryhill). The court also found the handling fee was shared between Liberty and the relevant bank.

Liberty argued the handling fee was not a finance charge for three reasons, each of which the trial court rejected. First, Liberty relied on the fact that the fee was charged through the lender bank, not Liberty. The court concluded the details of how the charge was imposed were irrelevant, as was held in Yazzie v. Ray Vicker’s Special Cars, Inc. (D.N.M. 1998) 12 F.Supp.2d 1230, 1232.

*1228Second, Liberty argued the fee was charged in comparable cash transactions and, therefore, was not a finance charge. The court found only four out of 60,000 California customers who purchased ERC’s between 2002 and 2007 paid up front for tax services. Relying on Carney v. Worthmore Furniture, Inc. (4th Cir. 1977) 561 F.2d 1100 (Carney), the court concluded these were “ ‘insignificant exceptions’ to what is, for all practical purposes, a credit sale business” and, therefore, Liberty could not rely on the “comparable cash transaction” defense.2

Finally, Liberty argued the fee was not a finance charge because it was not “interest.” The court concluded this was irrelevant.

B. Analysis

1. Payment to the Bank for Setting Up a Special Account

Liberty first argues the trial court erred as a matter of law because the fee was paid to a bank for the costs of opening a temporary account and, therefore, was not a finance charge at all under the TILA, citing Hahn v. Hank’s Ambulance Service, Inc. (11th Cir. 1986) 787 F.2d 543 (Hahn).

Liberty presents this issue as a question of statutory interpretation based on undisputed facts, which we review de novo. (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724 [122 Cal.Rptr.3d 331, 248 P.3d 1185] [“Statutory interpretation is a question of law that we review de novo.”].) The Hahn court held an ambulance company’s $5 charge to customers who did not pay for services when rendered was “ ‘[a] small flat charge for the bookkeeping cost of processing delayed payment in no way geared to the amount of the bill,’ ” and, therefore, “ ‘simply does not implicate [the TELA].’ ” (Hahn, supra, 787 F.2d at p. 544.) Liberty argues its fee and the fee reviewed in Hahn are similar because both involve the administrative cost of processing a transaction.

Liberty’s argument is unpersuasive because the $5 charge reviewed in Hahn did not grant a customer the right to defer payment of a debt. (Hahn, supra, 787 F.2d at p. 544.) To the contrary, it was assessed “in light of the customer’s failure to pay the company at the time the service is performed, in accordance with customary policy,” which the court found was more in the nature of a late payment that was exempt from the TELA. (Hahn, at p. 544.) In the present case, the handling fee was a condition to customers receiving Liberty’s tax services on credit. Liberty does not establish why the fee’s application to administrative aspects related to the extension of this credit matters, and we are not aware of any reason why it should.

*1229Liberty also argues the fee was not a finance charge because it did not vary based on when Liberty3 received payment for tax preparation services. It cites no legal authority for this proposition, however, and nothing in the TILA’s definition of a finance charge provides support for this position. (12 C.F.R. § 226.4(a) (2012).) Therefore, this argument is unpersuasive as well.

In short, Liberty does not establish that the trial court erred in concluding that the ERC handling fee was a finance charge under the TILA.

2. Liberty’s “Comparable Cash Transactions” Argument

Liberty next argues that, even if the ERC handling fee qualified as a finance charge under the TILA, it is also payable in a comparable cash transaction and, therefore, exempt from TILA regulation. (15 U.S.C. § 1605(a); 12 C.F.R. § 226.4(a) (2012).) The People argue the court correctly rejected this argument pursuant to Carney, supra, 561 F.2d 1100 because virtually all of Liberty’s ERC business was credit sales. We agree with the People.

As Liberty points out, the purpose of the TILA “is to enable consumers to decide whether or from whom to obtain credit, and a charge that does not affect the cost... of credit relative ... to cash is irrelevant to that purpose.” (Hoffman v. Grossinger Motor Corp. (7th Cir. 2000) 218 F.3d 680, 681.) Thus, courts have repeatedly found credit fees are not finance charges when the same charge is applied in comparable cash transactions, as in the cases cited by Liberty. (See Basile v. H &R Block, Inc. (E.D.Pa. 1995) 897 F.Supp. 194, 198; Alston v. Crown Auto, Inc. (4th Cir. 2000) 224 F.3d 332, 334; Hodges v. Koons Buick Pontiac GMC, Inc. (E.D.Va. 2001) 180 F.Supp.2d 786, 793; White v. Diamond Motors, Inc. (M.D.La. 1997) 962 F.Supp. 867, 871.) However, none of these cases is persuasive in light of Carney, supra, 561 F.2d 1100 and Berryhill, supra, 578 F.2d 1092, because these two cases discuss circumstances that are most analogous to those in the present case.

In Carney, Worthmore sold Carney a food freezer in a consumer credit transaction. (Carney, supra, 561 F.2d at p. 1102.) As part of the transaction, Carney was required to purchase a freezer service policy costing $50, which was added to the sale price of the freezer and included in the amount financed, but not disclosed as part of the finance charge disclosed by Worthmore pursuant to the TILA. (Carney, at p. 1102.) The policy’s cost was a fixed sum based on the type of appliance and not on the length of the credit repayment period. (Ibid.) At least 98 percent of Worthmore’s appliance *1230business involved credit sales subject to the TELA, but Worthmore made cash sales of major appliances in which buyers were also required to purchase the freezer service policy. (Carney, at p. 1102.)

The appellate court affirmed the district court’s conclusion that the cost of the freezer service policy should have been disclosed as part of the finance .charge Worthmore disclosed pursuant to the TELA. The court rejected Worthmore’s argument that the service policy was not “an incident to the extension of credit” as meant in title 15 United States Code section 1605 because identical charges were levied in each cash transaction. (Carney, supra, 561 F.2d at pp. 1102-1103.) The court found the alleged cash transactions were “insignificant exceptions to what is apparently a credit sales business” and, therefore, “the naked claim that the service policy charge is imposed on cash customers is insufficient to acquit it as not incident to the extension of credit.” (Id. at p. 1103.) The court concluded the freezer service policy charge “was inextricably intertwined with Worthmore’s interest as a creditor” and, therefore, was a finance charge under the TILA. (Carney, at p. 1103.)

Similarly, in Berryhill, Rich Plan sold frozen food in quantity to home consumers either on credit or for cash, but an “overwhelming proportion” of its sales was on credit. (Berryhill, supra, 578 F.2d at pp. 1094-1095.) To purchase food for six months on credit under a food plan contract, Rich Plan required the Berryhills to also enter into a food and freezer service agreement that entitled them to various benefits, including an additional three-year insurance plan for loss of food due to the freezer’s mechanical breakdown or power failure, up to $300. (Id. at p. 1095.) The service agreement, which was the most profitable element of the transaction for Worthmore, was not disclosed as part of the finance charge on the food plan contract. (Id. at p. 1096.)

The district court found the failure to disclose the service plan as a finance charge violated the TELA. (Berryhill, supra, 578 F.2d at p. 1096.) On appeal, Rich Plan argued the service agreement was of a nature and sufficiently independent from the food plan contract so as not to be a charge imposed as “ ‘an incident to or as a condition for the extension of credit’ ” (id. at p. 1097) and, therefore, was not a part of the finance charge under the TELA. The appellate court disagreed because purchase of the service contract was a condition, and incidental to the extension of credit under the food plan contract. (Berryhill, at pp. 1097-1098.)

Rich Plan also argued that the service plan was not a finance charge because it was also required of cash customers. The Berryhill court rejected this argument based on Carney, supra, 561 F.2d at 1103, because the number of cash sales was “insignificant” and evidence indicated virtually all sales *1231were made on credit. (Berryhill, supra, 578 F.2d at p. 1099.) Rich Plan attempted to distinguish its transactions from those considered in Carney because its service agreement’s payments and benefits extended for a period longer than the payments for the initial food order. The court failed to see the significance because “[t]he important question is whether the seller refuses to extend credit until the customer agrees to another charge. The details of the manner in which the charge is imposed are irrelevant.” (Berryhill, at p. 1099.)

Similarly to Carney and Berryhill, there was substantial evidence to support the trial court’s conclusion that the ERC handling fee was not charged in “comparable cash transactions” so as to remove it from regulation as a “finance charge” under the TILA. Liberty engaged in 60,125 ERC transactions with customers from 2002 to 2007. Only four customers paid in cash during this time. The trial court correctly concluded that these four cash transactions were “insignificant exceptions” to what was, for all practical purposes “a credit sale business.” (See Carney, supra, 561 F.2d at p. 1103.)

Liberty also asks that we consider the evidence submitted below that there were 2,699 additional California customers during this same time period who “paid” their tax preparation fees via a Liberty coupon that enabled them to obtain these services at no cost, other than the ERC handling fee.4 Liberty argues these customers did not seek an extension of credit from Liberty because they paid nothing for their tax preparation. This too is unpersuasive because these were not “comparable cash transactions”; indeed, they were not cash transactions at all. If anything, they resemble a credit transaction because the customer obtained tax preparation services without making any payment, provided that they paid the handling fee.

In any event, these coupon customers amounted to approximately four percent of Liberty’s 60,125 ERC customers. Given this very small percentage and that these coupon transactions did not involve an exchange of cash, the trial court could reasonably conclude these coupon transactions were at most incidental exceptions to what amounted to a credit sales business.

In its reply brief, Liberty argues for the first time that it also engaged in comparable cash transactions with 46,222 RAL customers because, upon the bank’s approval of these customers’ RAL applications, Liberty was paid for tax preparation fees and the bank deducted its handling fee from the RAL given to the customer. Therefore, Liberty contends, a very sizeable amount of its business involved cash transactions.

*1232In their motion, the People, relying on Westcon Construction Corp. v. County of Sacramento (2007) 152 Cal.App.4th 183, 194-195 [61 Cal.Rptr.3d 89], argue that we should strike or disregard these portions of Liberty’s reply brief as waived because Liberty’s RAL contention is based on a new and unfounded factual theory that was not presented in the trial court below.

We agree with the People that we should disregard Liberty’s tardy RAL argument for two reasons. First, Liberty’s argument that the RAL’s are “comparable cash transactions” is made for the first time in its reply brief. “Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before. To withhold a point until the closing brief deprives the respondent of the opportunity to answer it or requires the effort and delay of an additional brief by permission.” (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3 [67 Cal.Rptr.2d 350]; see Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [60 Cal.Rptr.2d 770] [“ ‘[p]oints raised for the first time in a reply brief will ordinarily not be considered’ ”].) Liberty contends that it sufficiently preserves its argument in its opening brief by twice referring to its franchisees receiving payment for their services from the banks “up front,” in one instance specifically referring to RAL’s. This is hardly sufficient. Liberty did not argue RAL’s were comparable cash transactions until its reply brief. Therefore, we disregard its RAL argument.

Furthermore, we agree with the People that Liberty has waived this appellate argument by failing to raise it first in the trial court below. (Westcon Construction Corp. v. County of Sacramento, supra, 152 Cal.App.4th at pp. 194-195.) Contrary to Liberty’s assertion that it is merely presenting a new legal theory based on undisputed facts, there is evidence in the record indicating that Liberty was not paid its fee by the banks in RAL transactions until after tax preparation services were rendered, suggesting these transactions were more in the nature of credit sales. In other words, the argument rests on disputed facts.

In short, we conclude Liberty’s “comparable cash transactions” argument lacks merit.

II. Liberty’s Cross-collection Practices

Liberty next argues the trial court erred in concluding Liberty’s cross-collection practices violated the state Rosenthal Fair Debt Collection Practices Act (Civ. Code, § 1788 et seq.) and the federal Fair Debt Collection Practices Act (15 U.S.C. § 1692 et seq.; collectively, FDCPA) and California’s Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.; CLRA), requiring reversal on this issue. The People disagree, and also argue that we *1233should affirm based on the trial court’s determinations that Liberty violated the “fraudulent” and “unfair” prongs of the UCL and, for certain of its cross-collection practices, the prohibition against deceptive advertising in the PAL. The People argue that Liberty does not challenge these determinations in its opening brief, thereby waiving any challenge to these dispositive rulings. We agree that Liberty has waived these claims and affirm on that basis.

A. The Proceedings Below

In its statement of decision, the trial court detailed Liberty’s contracts with FBOD and SBBT, the banks it primarily used in California for its loan products, which contracts obligated Liberty to assist FBOD and SBBT in collecting past RAL debts.

Regarding FBOD, which Liberty made its largest supplier of RAL and ERC products in California from 2002 to 2005, Liberty’s “first job was ‘bringing the consumer [to] the bank.’ ” The relevant RAL and ERC applications authorized collection of prior RAL debts. Liberty advertised the loans, solicited loan applications from customers in their offices, filled out the applications, and obtained customers’ signatures on them. Once the applications were submitted, Liberty processed them through an automated underwriting system containing a cross-collection file compiled by Liberty on FBOD’s behalf. This file listed customers who purportedly owed prior RAL debt, whether to FBOD or other banks. Liberty also assisted FBOD in mailing debt validation notices to RAL customers who were denied a loan because of owing a prior RAL debt. Pursuant to its contract with FBOD, Liberty received 65 percent of all debts collected from its California customers.

SBBT was Liberty’s major supplier of RAL’s and ERC’s in California for a three-year period from 2006 through 2008. Liberty brought customers to SBBT by advertising the bank’s RAL product in California. Liberty solicited loan applications from individual customers and obtained their signatures on RAL and ERC applications that authorized cross-collection. Liberty transmitted the applications to SBBT, which deducted any past RAL debts owed by the customers from their refund proceeds.

The court found that Liberty’s RAL and ERC applications in California since 2002 included “ ‘authorizations’ to collect any unpaid refund loan debts from past years out of the customer’s refund proceeds,” whether owed to Liberty or other RAL lenders, and, the court noted, whether the past debt was “ ‘stale’ or otherwise uncollectible.” The court concluded under both the “least sophisticated consumer” and “reasonable consumer” standards that *1234Liberty customers were “unlikely” to recall the details of such debts, particularly those “incurred far in the past and perhaps in connection with a loan issued by a different lender and/or obtained through a different tax preparer.”

Importantly, the court found that neither Liberty nor the banks informed customers before “inducing them to ‘authorize’ cross-collection whether they [were] believed to owe a past debt or not.” Thus, the trial court concluded, “before the customer has been given meaningful notice about the existence of a debt, the customer has lost control of the refund and, as a result, his or her right to effectively dispute the debt. ... By seizing control of taxpayers’ refunds before providing them any meaningful notice that they are believed to owe a debt, even a stale and possibly uncollectible debt, the collection scheme at issue is deceptive, unfair, and frustrates the fundamental purpose of the state and federal FDCPA.”

The trial court further found that the applications Liberty used did not “clearly and effectively communicate the fact that the bank is acting as a debt collector and that any information obtained may be used for that purpose.” Customers were not screened for a past debt until after they “ ‘authorized’ ” cross-collection, but the SBBT applications stated only that SBBT “ ‘may’ be acting as a debt collector.” (Italics added.) The 2002 FBOD application did not contain statements required by the FDCPA. FBOD applications used from 2003 to 2005 did not clearly and effectively communicate the cross-collection authorization, which appeared on the second or third pages of lengthy and complex contracts that on their face had nothing to do with debt collection, making it unlikely that applicants would read and understand the significance of the information.

The court rejected Liberty’s contention that applicants with prior RAL debt were unlikely to be deceived, citing “the fundamental problem with the scheme, which is that consumers are not told whether they owe a debt before being induced to irrevocably authorize cross-collection, even of stale debts they may not recall, and/or debts they may not legitimately owe.” The court found Liberty had attempted to collect “an extant debt” through debt collection regarding 118 of its customers, all between 2002 and 2005.

The court concluded that Liberty’s cross-collection practices violated several laws. First, “Liberty’s and the banks’ efforts to collect applicants’ past debts were deceptive” pursuant to the FDCPA. Second, “[t]he scheme independently is ‘fraudulent’ and ‘unfair’ within the meaning of the UCL.” Third, Liberty aided and abetted SBBT in violation of Civil Code section 1770, subdivision (a)(14) (part of California’s CLRA), and by extension the UCL, by obtaining purported authorizations to pursue “ ‘stale’ debts that ordinarily could not be recovered as a matter of law due to the passage of *1235time” without first disclosing the purported debt. Also, the applications did not satisfy the legal requirement that the debt “must be revived in writing, in the form of an express promise to pay or an unconditional acknowledgment of the indebtedness, signed by the debtor, and communicated to the creditor or his agent or representative.” Fourth, Liberty’s cross-collection practices regarding the collection of “stale” debts via SBBT’s application were deceptive and, therefore, violated California’s FAL.

The trial court ordered Liberty to pay $118,000 in civil penalties for its cross-collection practices pursuant to California’s UCL and FAL, based on the number of debts actually collected, 118, and the doubling of the number of violations because the conduct involved violated both the UCL and FAL. The court found the violations to be serious, to have a serious impact on consumers, and to be persistent and long-standing. Accordingly, it set a base penalty of $500 for each violation.

Pursuant to its equitable powers and its powers under the UCL and FAL, the trial court also permanently enjoined Liberty from participating in, or facilitating, any program to collect past RAL debts that does not make appropriate disclosures to alleged debtors before they commit to any relevant authorization, as well as any program that attempts to obtain a customer’s authorization to collect “stale” debts as part of offering RAL’s or ERC’s unless the customer revives the debt in the manner required by law.

B. Analysis

Liberty argues in its opening brief that the trial court erred in ruling that its cross-collection practices violated the FDCPA and the CLRA. In its opening brief, Liberty does not meaningfully challenge the court’s rulings that Liberty’s cross-collection practices violated the “fraudulent” and “unfair” prongs of California’s UCL and FAL.

The People argue that Liberty has waived its appellate claim by failing to address the trial court’s rulings that Liberty’s cross-collection practices independently violated the UCL and FAL. The People further argue in their motion to strike portions of JTH’s reply brief that we strike or disregard Liberty’s substantive arguments in its reply brief about the trial court’s UCL ruling.

We grant the People’s motion on the ground that Liberty’s reply brief arguments are tardily made without good reason for doing so being shown and, therefore, should be disregarded. (Campos v. Anderson, supra, 57 Cal.App.4th at p. 794, fn. 3; Reichardt v. Hoffman, supra, 52 Cal.App.4th at p. 764.) We affirm the court’s ruling based on Liberty’s waiver, given Liberty’s failure to meaningfully address the court’s UCL and FAL rulings in its opening brief.

*1236California’s UCL provides that “unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by [the FAL].” (§ 17200.) The UCL authorizes a court to order against any person who has engaged in unfair competition injunctive relief and civil penalties not to exceed $2,500 for each violation, which penalties may be cumulative of others. (§§ 17203-17206.)

The UCL’s “scope is broad” and it governs “ 1 “ ‘anything that can properly be called a business practice and that at the same time is forbidden by law.’ ” ’ ” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180 [83 Cal.Rptr.2d 548, 973 P.2d 527] (Cel-Tech).) Furthermore, its reference to “ ‘any unlawful, unfair or fraudulent’ practice (italics added) makes clear that a practice may be deemed unfair even if not specifically proscribed by some other law. ‘. . . [S]ection 17200 is written in the disjunctive, it establishes three varieties of unfair competition— acts or practices which are unlawful, or unfair, or fraudulent. “In other words, a practice is prohibited as ‘unfair’ or ‘deceptive’ even if not ‘unlawful’ and vice versa.” ’ ” (Cel-Tech, at p. 180.)

In its statement of decision, the trial court ruled that Liberty’s cross-collection practices violated the FDCPA. However, the court also stated as independent bases for its rulings that Liberty’s failure to sufficiently disclose its cross-collection practices to its customers violated the “fraudulent” and “unfair” provisions of the UCL. The court’s findings supported these independent bases. It concluded Liberty’s failure to disclose certain information about cross-collection was deceptive, including its failure to notify applicants before accepting their application that they had purported past RAL debts, including “stale” debts, to any lender participating in its cross-collection database that could be deducted from any tax refund deposited into the bank’s special account. The trial court found that Liberty, by not giving meaningful notice to its customers before gaining control of their refunds, engaged in a scheme that was deceptive and unfair to a “reasonable consumer,” the standard under which UCL claims are considered. (See, e.g., Hill v. Roll Internat. Corp. (2011) 195 Cal.App.4th 1295, 1304 [128 Cal.Rptr.3d 109].)

Similarly, the trial court found that certain aspects of Liberty’s disclosures, or lack thereof, about cross-collection regarding the SBBT applications were “deceptive” and, therefore, violated California’s FAL, which prohibits misleading or deceptive advertising. (§ 17500; see, e.g., Sevidal v. Target Corp. (2010) 189 Cal.App.4th 905, 923 [117 Cal.Rptr.3d 66].) The court’s discussion of Liberty’s practices regarding these applications supported this independent basis for finding Liberty liable.

*1237Despite these independent bases for the trial court’s rulings about Liberty’s cross-collection practices, Liberty does not address them in its opening brief, other than to state that the court’s “fraudulent” and “unfair” UCL rulings were “not correct.” Instead, Liberty argues that the court erred by ruling it was liable under the FDCPA and CLRA.

As the People argue, Liberty’s failure to address all bases for the court’s ruling constitutes a waiver of its appellate claim. Liberty, as appellant, has the burden of persuasion; “[o]ne cannot simply say the court erred, and leave it up to the appellate court to figure out why.” (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368 [50 Cal.Rptr.3d 398].) “ ‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’ ” (People v. Stanley (1995) 10 Cal.4th 764, 793 [42 Cal.Rptr.2d 543, 897 P.2d 481].) When a trial court states multiple grounds for its ruling and appellant addresses only some of them, we need not address appellant’s arguments because “one good reason is sufficient to sustain the order from which the appeal was taken.” (Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 513 [89 Cal.Rptr.3d 615].)

In its reply brief, Liberty argues it did not need to address the “fraudulent” and “unfair” prongs of the UCL because the trial court “offered no elaboration beyond its extended discussion of the [FDCPA and CLRA] statutes. Liberty’s 15-page discussion [in its opening brief] parallels the trial court’s discussion and addresses each of specific reasons the court stated for its conclusions.”

Liberty’s argument is unpersuasive. It contends its conduct did not violate the FDCPA and the CLRA, but does not explain why this should bear on our consideration of whether its undisputed conduct also violated the “fraudulent” and “unfair” prongs of the UCL, or the prohibition against deceptive advertising in the FAL. These would be different claims of legal error under a different statutory framework. For example, as we have mentioned, these two prongs of the UCL do not require a finding of unlawful activity and are part of a broad statutory framework. Liberty’s claims of legal error under the FDCPA and the CLRA do not address these other, independent legal bases for the court’s ruling. It is not our role to speculate how they might apply.

Accordingly, we conclude that Liberty’s failure to address the court’s independent UCL and FAL bases for its rulings about Liberty’s cross-collection practices is a waiver of any appellate claims regarding them, and affirm based on them. Given our conclusion, we do not need to, and do not, address Liberty’s FDCPA and CLRA arguments.

*1238III. Liberty’s Liability for Franchisee Advertising

Liberty next argues the trial court erred for three reasons in finding Liberty liable under agency theory for its California franchisees’ misleading advertising, for which Liberty was required to pay $50,000 in civil penalties under the UCL and FAL and ordered to take remedial steps under the court’s permanent injunction. According to Liberty, the franchisor-franchisee relationship requires a higher level of control than that considered by the court, Liberty was not liable under agency theory because it acted only to protect its trademark and goodwill, and it should be excepted from liability in any event because it was ignorant of the illegal advertising, did everything it could to stop it, and refused to accept its benefits. We conclude each of these arguments lack merit.

A. The Proceedings Below

The trial court found Liberty liable under agency theory for its California franchisees’ advertising that violated the UCL, FAL, and section 22253, subdivision (a). The court determined that under California law, a franchisee could be an agent of a franchisor, depending on the extent of the principal’s right of control. “It is generally understood,” the trial court wrote in its statement of decision, “that franchisors are often caught between the Scylla of failing to exercise sufficient control to protect their marks, and the Charybdis of exercising so much control they are vicariously liable for the torts of the franchisees or other licensees.”

According to the trial court, at the core of the issue is the franchisor controls included in the statutory definition of the franchise relationship. Parties to a franchise agreement contract so that the franchisee markets its goods or services “under a marketing plan or system prescribed in substantial part by a franchisor” and, using this plan or system, substantially associates its business to the franchisor’s trademark, service mark, trade name, logotype, advertising or other commercial symbol. (Corp. Code, § 31005, subd. (a)(1)—(3).) Thus, the court concluded, its inquiry “must focus on the extent to which the control reserved to the franchisor plainly exceeds that required to police the mark, which is control so pervasive that it amounts to complete or substantial control over the daily activities of the franchisee’s business.”

The trial court rejected Liberty’s argument, based on People v. Toomey (1985) 157 Cal.App.3d 1, 14 [203 Cal.Rptr. 642] (Toomey), that “vicarious liability” is not available in an action for unfair business practices. The court closely examined the reasoning of Toomey and concluded that it did not stand for the proposition that principal-agency liability is unavailable for an unfair *1239business practices case, but merely disallowed only “reverse vicarious liability,” meaning “officers and directors are not automatically (vicariously) liable for the acts of the company that employs them.” Because this was not an issue in the present case, the court concluded Toomey did not bar its finding that Liberty was liable under agency theory.

In determining there was a principal-agency relationship between Liberty and its franchisees, the trial court focused on Liberty’s operations manual, which, the People contended, showed Liberty had a right of control far in excess of what it needed to police its mark. The court found that, while many of the mandatory restrictions stated in the manual “appealed] designed to police [Liberty’s] trademarks and the goodwill associated with those,” a number of them went beyond this goal. Specifically, the court found, Liberty required franchisees to offer RAL’s and ERC’s via banks mandated by Liberty; prohibited franchisees from offering products and services without Liberty’s permission; mandated franchisees’ minimum operating hours, computers to be used, and day-to-day tasks such as how to open the store and when to clean the bathrooms; reserved the right to intervene in disputes with customers, including the right to pay refunds directly to customers and bill the franchisees for them; required franchisees to commit to maintaining Liberty’s prescribed filing system and the setup for the tax return processing center; and controlled franchisee pricing by controlling the discounts franchisees could offer at different times of the year. The court concluded that “Liberty’s right of control extends not only to the products and services franchisees may offer, but also to the manner and means by which its franchisees prepare tax returns, offer RAL’s and ERC’s, and interact with customers, and extends beyond that needed to protect its marks.”

The court also emphasized what it found was Liberty’s “particularly extensive” right of control over franchisee advertising, which Liberty used to not only protect its marks, “but also to dictate business strategy to franchisees.” The court found Liberty controlled discounts in part because it thought “early season customers are not as price sensitive as late season customers” and controlled the products and services franchisees could advertise in part because “it believes that certain advertising is a waste of time and money.” It found Liberty’s operation manuals provided detailed advertising instructions, breaking the year into tiers, mandating extensive preapproval, setting out a “host” of marketing and advertising methods, and providing samples of copies. Thus, Liberty was “literally providing a detailed, step-by-step guide for every aspect of marketing and advertising.” The provisions were expressed as imperatives and general rules.

Also, the court found, Liberty “retained] an open-ended right to modify the operations manual without consent of the franchisees. This right of *1240essentially complete control over franchisee operations, and specifically advertising operations, exceeded] what Liberty reasonably need[ed] to protect its trademark and goodwill.” The court concluded this was substantial evidence showing Liberty’s franchisees were its agents, at the least for the purposes of advertising.

The trial court found that more than 100 illegal ads by Liberty franchisees ran in Pennysaver publications throughout California in 2007 and 2008. Specifically, it found that 43 ads falsely promised “most refunds in one day” or a variation on that theme, including four specifically approved by Liberty, and 67 ads violated section 22253.1, subdivision (a) by omitting the mandatory bank name and lender fee disclosures. It concluded that Liberty was liable as a principal for its agent-franchisees’ illegal advertising.

B. Analysis

1. The Franchisor-franchisee Relationship

Liberty argues that the trial court erred in concluding that agency theory applied to its franchisor-franchisee relationships because the franchisor-franchisee relationship is “fundamentally different than the typical employer-employee relationship; and vicarious liability, developed as early common law to address ancient master-servant relationships, is a bad fit in the modem franchise context.” It points out that franchisees are separate business entities that enter into arm’s-length contracts with franchisors and (after noting that Liberty’s California franchisees “operate as small business owners more than 3,000 miles from Liberty’s Virginia headquarters”) argues that some courts have declined to impose vicarious liability on one business entity for another’s actions simply because they are in a commercial relationship with each other in recognition of “the realities of such remote business relationships.”

Liberty also argues that “[c]ourts have recognized . . . that the right to control inherent in most aspects of a franchisor-franchisee relationship does not amount to ‘actual control’ for liability purposes.” According to Liberty, courts have “narrowed the ‘control’ test in the franchisor context to require that a franchisor exercise actual control over the day-to-day operations of the franchisee, not merely have a right to control over ‘uniformity and the standardization of products and services.’ ” (Italics added.)

Liberty relies primarily on case law from other jurisdictions for its argument, while largely ignoring the most significant in California. Liberty does quote the language in Toomey, addressed by the trial court, that being “[t]he concept of vicarious liability has no application to actions brought *1241under the unfair business practices act.” (Toomey; supra, 157 Cal.App.3d at p. 14.) However, it does not rely on Toomey to argue that it is not subject to agency theory under California law.

Liberty also cites Emery v. Visa Internat. Service Assn. (2002) 95 Cal.App.4th 952 [116 Cal.Rptr.2d 25] (Emery) to argue that courts have declined to impose vicarious liability in the face of the realities of remote business relationships. Emery involved an action against certain Visa defendants by the plaintiff, acting as a private attorney general (id. at p. 955), for unfair business practices and deceptive advertising related to foreign lottery solicitations; the plaintiff sued while acknowledging Visa had nothing to do with the creation or mailing of the solicitations, which allowed payments by Visa bank cards. (Id. at p. 954.) The trial court granted summary judgment to Visa, rejecting, among other things, the plaintiffs theories that Visa’s advertising, licensing of its logo, and utilization of its payment system created an actual or ostensible agency relationship with its merchants, or agency by ratification. (Id. at pp. 954, 959.)

In discussing the plaintiff’s agency theories, the Emery court stated that it did not need to go further than to “remind plaintiff that his unfair practices claim under [the UCL] cannot be predicated on vicarious liability,” quoting the language from Toomey that we have quoted herein. (Emery, supra, 95 Cal.App.4th at p. 960.) The appellate court also found the undisputed facts did not show any agreement or control by Visa that would establish an agency relationship. (Id. at pp. 960-961.)

Although the Emery court concluded that the plaintiff could not proceed on agency theories because vicarious liability is not available under California’s unfair business practices law, Liberty does not rely on Emery for this proposition either.

Nonetheless, Liberty argues we should apply its strict construction of agency theory to franchise relationships to conclude that it “[did] not exercise the type of day-to-day operational control that would be consistent with cases imposing franchisor vicarious liability.” It contends that its franchisees are solely responsible for training, hiring, firing, and supervising their employees, outfitting their offices with computer equipment, supplies and furniture, complying with all laws, and are free to operate as many offices as they choose. They can select among marketing methods, “are free to design their own advertising, subject to Liberty’s approval, and select which publications to use,” control “all of the discretionary elements outlined in the advertising and marketing sections” of the operations manual, and are free to decide how much they want to spend for marketing.

*1242Liberty’s legal and factual arguments are unpersuasive in light of the California law that it largely ignores. As the People argue and the trial court concluded, in California “[t]he general rule is where a franchise agreement gives the franchisor the right of complete or substantial control over the franchisee, an agency relationship exists. (2 Witkin, Summary of Cal. Law (9th ed. 1987) Agency and Employment, § 6, pp. 24-25.) ‘[I]t is the right to control the means and manner in which the result is achieved that is significant in determining whether a principal-agency relationship exists.’ [Citation.] ‘In the field of franchise agreements, the question of whether the franchisee is an independent contractor or an agent is ordinarily one of fact, depending on whether the franchisor exercises complete or substantial control over the franchisee.’ ” (Cislaw v. Southland Corp. (1992) 4 Cal.App.4th 1284, 1288 [6 Cal.Rptr.2d 386] (Cislaw); accord, Kaplan v. Coldwell Banker Residential Affiliates, Inc. (1997) 59 Cal.App.4th 741, 745 [69 Cal.Rptr.2d 640] (Kaplan).) “ ‘The significant test of an agency relationship is the principal’s right to control the activities of the agent. [Citations.] It is not essential that the right of control be exercised or that there be actual supervision of the work of the agent; the existence of the right establishes the relationship.’ ” (McCollum v. Friendly Hills Travel Center (1985) 172 Cal.App.3d 83, 91 [217 Cal.Rptr. 919].)

Also, as the People point out, our Supreme Court has held, without the limitations urged by Liberty in the present case, that “section 17500 [(the FAL)] incorporates the concept of principal-agent liability . . . .” (Ford Dealers Assn. v. Department of Motor Vehicles (1982) 32 Cal.3d 347, 361 [185 Cal.Rptr. 453, 650 P.2d 328] (Ford Dealers).) Since violations of the UCL “include any . . . unfair, deceptive, untrue or misleading advertising and any act prohibited by [the FAL]” (§ 17200), Ford Dealers establishes that persons can be found liable for misleading advertising and unfair business practices Under normal agency theory. To the extent that Toomey, supra, 157 Cal.App.3d 1, or Emery, supra, 95 Cal.App.4th 952 hold otherwise, which defendant implies without stating outright in the course of arguing its limiting theories, these cases are mistaken.

It is clear that, as the trial court recognized, we must be mindful that we are applying agency theory in the context of the franchisor-franchisee relationship. A franchisee, by definition, operates a business “under a marketing plan or system prescribed in substantial part by a franchisor,” which operation “is substantially associated with the franchisor’s trademark, service mark, trade name, logotype, advertising or other commercial symbol designating the franchisor . . . .” (Corp. Code, § 31005, subd. (a)(1), (2).) Accordingly, “the franchisor’s interest in the reputation of its entire [marketing] system allows it to exercise certain controls over the enterprise without running the risk of transforming its independent contractor franchise into an agent.” (Cislaw, supra, 4 Cal.App.4th at p. 1292, quoted, in Kaplan, supra, 59 *1243Cal.App.4th at p. 745.) Thus, a franchisor may exercise a right of control over such activities as advertising to protect its marks and goodwill.

However, it is equally clear that the franchisor’s unique interests do not eliminate or alter the application of agency theory if the franchisor exercises a right of control that goes beyond its interests in its marks and goodwill. It is a question of fact as to whether, as the court considered in Cislaw, the franchisor retains “ ‘the right to control the means and manner in which the result is achieved’ ” and exercises “ ‘complete or substantial control over the franchisee.’ ” (Cislaw, supra, 4 Cal.App.4th at p. 1288.) This is precisely the standard applied by the trial court. Therefore, Liberty’s argument that the court applied the wrong legal standard to determine that it was liable for its franchisees’ misleading advertising lacks merit.

2. Substantial Evidence of Liberty’s Vicarious Liability

Liberty next argues that, in any event, the trial court erred in finding it vicariously liable for its franchisees’ illegal advertising under agency theory because it did not have a sufficient right of control over its franchisees’ activities. We conclude substantial evidence supports the trial court’s findings and, therefore, it did not err.

“Substantial evidence” is “evidence ... ‘of ponderable legal significance, . . . reasonable in nature, credible, and of solid value.’ ” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873 [197 Cal.Rptr. 925].) “When a . . . factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination . . . .” (Id. at pp. 873-874.) “Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of. a rule of law specifying the inference to be drawn. We must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court’s findings and decision, resolving every conflict in favor of the judgment.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631 [85 Cal.Rptr.2d 386].) “We may not reweigh the evidence . . . .” (Ghilotti Construction Co. v. City of Richmond (1996) 45 Cal.App.4th 897, 903 [53 Cal.Rptr.2d 389].)

The trial court included in its statement of decision findings regarding Liberty’s overall control over franchisee operations and activities, including *1244via directions in Liberty’s operations manuals regarding the offering of RAL’s and ERC’s, operating hours, equipment and office systems to be used, and day-to-day tasks, as well as Liberty’s retention of the right to intervene in franchisee disputes with customers. The parties debate the purpose and nature of many of these controls.

We need not address all of the factual issues raised by the trial court and the parties regarding Liberty’s control over franchisee activities in this particular circumstance. Even were we to conclude that, as Liberty argues, some aspects of its control over franchisee operations and activities were necessary to protect its marks and goodwill, there is substantial evidence, cited by the court in its statement of decision, that Liberty retained the right to control, and in fact did seek to control, its franchisees’ advertising and other marketing activities beyond that necessary to protect its marks and goodwill.

Liberty “does not dispute that it attempts to exercise substantial control over its franchisees’ advertising.” It contends, however, that it does so in order to protect its goodwill, trademark and public image, and notes that, as we have indicated, as a franchisor, its interest in the reputation of its entire system allows it to exercise certain controls over the enterprise without running the risk of transforming its franchisees into its agents. (Cislaw, supra, 4 Cal.App.4th at p. 1292.) It further contends that its “sole objective is to ‘police the mark,’ i.e., to tailor an image for public consumption and promote consistency as a way of strengthening the franchisor’s brand.” Liberty points out that advertising by its nature uses the franchisor’s trademark and “if not controlled, can destroy the franchisor’s goodwill in its marks,” and quotes from a treatise on franchises pointing out that “ ‘the franchisor has a vested interest in making sure that they are used properly so that... the franchisor’s trademark rights are not impaired or the trademark displayed in a tasteless manner.’ (Keating, Franchising Advisor (1987) pp. 39-40.)” Liberty also contends that each of the examples cited by the trial court and the People to support the court’s agency finding was related to efforts to protect Liberty’s trademarks and goodwill.

Liberty’s arguments and contentions are unpersuasive under our substantial evidence standard of review. As we have noted, as the People point out, and as the trial court recognized in its statement of decision, “ ‘[t]he significant test of an agency relationship is the principal’s right to control the activities of the agent. [Citations.] It is not essential that the right of control be exercised or that there be actual supervision of the work of the agent; the existence of the right establishes the relationship.’ ” (McCollum v. Friendly Hills Travel Center, supra, 172 Cal.App.3d at p. 91; see Nichols v. Arthur Murray, Inc. (1967) 248 Cal.App.2d 610, 613 [56 Cal.Rptr. 728] [“In *1245determining whether an agency relationship exists between parties to a business enterprise, which is the subject of an agreement between them, the right to control is an important factor.”].) Whether or not some aspects of Liberty’s controls of franchisee advertising were necessary or intended to provide protection of its trademarks and goodwill does not matter if Liberty’s controls did not stop there. We conclude there is substantial evidence that they did not, but that Liberty instead retained the virtually unlimited right to control, and did extensively control, the manner and means of franchisee advertising. Furthermore, the trial court could reasonably conclude these extensive controls involved business strategy beyond that necessary to protect its marks or goodwill.

Specifically, as the court indicated, Liberty, through its operations manuals, provided step-by-step instructions, directions and limitations to its franchisees regarding their advertising, including instruction on what advertising would be appropriate for what temporal “tiers” of the year, in provisions that were expressed as imperatives and general rules. Each franchise owner was required to comply with the policies and procedures of the operations manuals. Furthermore, Liberty reserved the right to unilaterally modify its operations manual at any time, while breaches of the franchise agreement or the operations manual could result in a franchisee’s termination. In other words, as the trial court also found, there was substantial evidence that Liberty “retained] an open-ended right to modify the operations manual without consent of the franchisees. This right of essentially complete control over franchisee operations, and specifically advertising operations, exceeded] what Liberty reasonably need[ed] to protect its trademark and goodwill.”

As the trial court further found, Liberty exercised control over the offering and marketing of products and services in a variety of ways. Evidence indicated that franchisees could not offer any products or services without first obtaining Liberty’s written consent. Liberty controlled the pricing for products offered by franchisees, for example directing in its 2005 operations manual regarding price quotes: “During peak season you will give a quote of 80% of your targeted net fee rounded up to the nearest 9. (Example $112 would be rounded up to $119). After peak you will conduct a short interview over the phone and then give a quote based on the information you have obtained).”

Liberty also set standards for franchisees regarding the number of free returns to do each year. It controlled the discounts that franchisees could offer in coupons, depending on the time of the year, increasing the discount in March to bring in more customers and barring issue of free coupons redeemable after April 8th. As the trial court noted in its statement of decision, the record contains examples of Liberty instructing franchisees to change the discounts they planned to advertise.

*1246As the trial court also found, Liberty required that any and all franchisee advertising had to be submitted to Liberty for approval prior to being used. There was substantial evidence that Liberty used these approval rights not only to protect its marks and goodwill, but also to control the business strategies and tactics of its franchisees. Along with instructions regarding the amount of discounts to offer, Liberty directed franchisees regarding what discounts could be offered at what time of the year. The court referred to a January 2006 e-mail, in which Liberty’s Noreen Schuster wrote in response to a request for approval of an ad that “[n]one of these ads are approved, for various reasons,” one of them being because they contained “[wjrong offer for early season.” On another occasion, in February 2006, Schuster was asked to approve a flyer that advertised in English and Spanish that customers would receive $50 in cash when they brought their W-2 to Liberty and Liberty prepared their tax return. Schuster replied, “No this isn’t approved. Cash in a Flash is used for really early season customers who haven’t received their W-2s yet and the program should end this week. Hispanics should be brought in through the ITIN program.”

The trial court further found that Liberty controlled all of the advertising and disclosures made by franchisees regarding RAL’s and ERC’s specifically. The court relied on an admission by Liberty that it required its franchisees during tax seasons for 2002 through 2005 to “ ‘conduct their business in full compliance with all agreements, guidelines and directives received from [Liberty], including, without limitation: guidelines and directives pertaining to . . . advertising, and disclosures; the franchisee’s franchise agreement with [Liberty]; and the documents prepared and/or utilized by [FBOD] and [Liberty] in connection with the offering and sale of bank products.’ ”

Liberty contends that these controls were necessary to protect its trademarks and goodwill and to establish uniformity, and points to evidence here and there suggesting that some of its controls appeared to take these matters into consideration. However, its contentions ignore that the trial court could reasonably conclude from Liberty’s very extensive right of, and actual, control over such things as pricing, advertising strategies and tactics, timing and amounts of discounts, and product offerings that Liberty controlled more than was necessary to protect its trademarks and goodwill. Liberty all but admits this in discussing Schuster’s rejection of a franchisee ad in her January 2006 e-mail. It notes that Schuster also rejected the ad because it referred to an improper logo and then states, “[t]hus, in addition to whether doing so was good for business, Liberty rejected these ads as part of its efforts to protect the goodwill in its mark by implementing a uniform and consistent marketing plan.” (Italics added.) In other words, Liberty acknowledges that it controlled matters at least in part because it was “good for business.”

*1247In short, Liberty’s arguments and contentions ask that we reweigh the evidence to reach a different conclusion than the trial court, which we will not do under a substantial evidence standard of review. (Ghilotti Construction Co. v. City of Richmond, supra, 45 Cal.App.4th at p. 903.) We find no error in the court’s conclusion that, “[e]ven if Liberty’s franchisees are not its agents for all purposes, they are its agents at a minimum for purposes of advertising.”

3. Liberty’s Claim of an Exception Under Ford Dealers

Liberty also argues that, even if its franchisees were its agents, it is not liable for their illegal advertisements under an “exception” to agency liability discussed by our Supreme Court in Ford Dealers, supra, 32 Cal.3d 347. We disagree.

In Ford Dealers, the California Supreme Court held that the Department of Motor Vehicles could penalize licensed automobile dealers for their employees’ statements, noting that “courts have repeatedly held that licensees are responsible for the acts of their employees.” (Ford Dealers, supra, 32 Cal.3d at p. 360.) The court stated, “The settled rule that licensees can be held liable for the acts of their employees comports with the general law governing principle-agent liability,” and observed that “cases construing . . . section 17500 have consistently held business managements liable for the acts of their agents.” (Id. at pp. 360-361.) However, after discussing related cases, it stated the following dictum in a footnote:

“[W]here a dealer is able to demonstrate unusual circumstances that negate the presumption of control, it might be unfair to hold that dealer liable for the misrepresentations of salespeople. Mere lack of knowledge would not suffice, where a dealer appeared to have tolerated misleading statements in the past or created a climate in which such misstatements were likely to occur. However, a dealer might be able to defend against an action under [Vehicle Code] section 11713, subdivision (a) by demonstrating that it made every effort to discourage misrepresentations; had no knowledge of salespeople’s misleading statements; and, when so informed, refused to accept the benefits of any sales based on misrepresentations and took action to prevent a reoccurrence.” (Ford Dealers, supra, 32 Cal.3d at p. 361, fn. 8, italics added.)

Liberty argues it qualified for this “exception” because it made every effort to prevent misleading advertising by franchisees, had no knowledge of the Pennysaver ads placed by franchisees, and, once it learned of the ads, worked diligently to prevent a reoccurrence.

The People disagree. They correctly point out that the discussion in Ford Dealers indicates that whether such an “unusual circumstances” exception *1248exists is largely a question of fact for the trial court; furthermore, the suggested exception was not applied in the one subsequent appellate case that considered the criteria specified in Ford Dealers; Rob-Mac, Inc. v. Department of Motor Vehicles (1983) 148 Cal.App.3d 793, 799 [196 Cal.Rptr. 398] (concluding that it was not unfair to hold a dealer liable for acts of an independent contractor).

The People also disagree that the undisputed facts demonstrate that Liberty has met each of the three criteria discussed in Ford Dealers. To the contrary, the People point out that the trial court found it was “fair” to hold Liberty liable under the circumstances. They argue that this finding was not an abuse of discretion because it was supported by substantial evidence indicating that Liberty did not meet the first two Ford Dealers criteria, and that Liberty made no showing regarding the third.

We need only to review the first criterion to determine the matter. In its opening brief, Liberty contends that the undisputed facts show that it made “every effort” to discourage advertising misrepresentations. It cites its requirement that all advertising receive its written approval and the prohibitions stated in its 2008 operations manual against use in any advertising of the phrases “instant refund” or “refunds in 24 hours.”

The People respond by citing to evidence that, regardless of these requirements and prohibitions, Liberty did not make every effort to prevent false advertising after it became aware of it. We agree. The evidence indicates that Liberty became aware in January 2006 that franchisees were running unapproved ads in the Pennysaver. It also became aware of unapproved ads in late 2006 and early 2007, at which time Schuster wrote in an e-mail that “Pennysaver is apparently doing this for 100 franchisees.” Although Liberty knew about problems, such as when Schuster stated in a January 2007 e-mail that an unapproved ad had “several legal problems,” it did not put a system in place to monitor ads being placed by franchisees, such as by checking Pennysaver online. According to Schuster, Liberty’s discovery of unapproved ads was “sort [of] by happenstance.”

Furthermore, the People cite to evidence that Liberty did not seriously attempt to work with Pennysaver until July 2008 to stop the unauthorized ads. This evidence indicates that in early 2007 Liberty’s media director contacted a local representative of Pennysaver, who said national Pennysaver could do nothing about the matter; there is no evidence that Liberty did anything further. During this same time period, as the trial court found, dozens of ads began appearing in Pennysaver that improperly promised such things as “Most Refunds in One Day,” “Get $1200 in Minutes . . . And the Rest of Your Tax Refund in 24 Hours,” “Most Refunds in 24 Hours” and “Got W-2? *124924 Hour Refunds.” As the trial court also found, ads also appeared that did not provide the disclosures of the bank name and lender fees required by section 22253.1, subdivision (a). Nonetheless, the evidence indicates that Liberty did not contact a senior executive with Pennysaver and begin working out an agreement to try to prevent franchisees from running unapproved ads until late July 2008, six months after the Attorney General found the illegal ads and two months before trial.

In its reply brief, Liberty does not dispute this evidence. Instead, it points to other evidence that, it contends, demonstrates that it “made every effort— in the sense of taking reasonable steps—to prevent misleading advertising by franchisees.” (Italics added.) ‘‘Reasonable steps” are not the same as “every effort.” In any event, Liberty’s argument amounts to a request that we reweigh the evidence, which we will not do under a substantial evidence standard of review. (Ghilotti Construction Co. v. City of Richmond, supra, 45 Cal.App.4th at p. 903.) We conclude its actions do not qualify under the possible exception discussed in Ford Dealers

IV. The Court’s Award of Civil Penalties

The trial court imposed $774,399 in civil penalties pursuant to the UCL and FAL against Liberty for illegal advertising in six categories of ads. Liberty argues the trial court committed legal error by imposing these civil penalties based upon incompetent evidence. Once more, we disagree.

A. The Relevant Law

Section 17206, part of the UCL, provides that any person who has engaged in unfair competition is liable for a civil penalty not to exceed $2,500 for each violation, which may be assessed and recovered in a civil action brought by, among others, the Attorney General on behalf of the People of the State of California. (§ 17206, subd. (a).) Similarly, section 17536, part of the FAL, provides that any person who violates any provision of the FAL is also liable for a civil penalty not to exceed $2,500 for each violation, which also may be assessed and recovered in a civil action brought by, among others, the Attorney General on behalf of the People of the State of California. (§ 17536, subd. (a).) Sections 17206 and 17536 contain the following identical directives to the trial court regarding the assessment of these civil penalties;

“The court shall impose a civil penalty for each violation of this chapter. In assessing the amount of the civil penalty, the court shall consider any one or more of the relevant circumstances presented by any of the parties to the case, including, but not limited to, the following: the nature and seriousness *1250of the misconduct, the number of violations, the persistence of the misconduct, the length of time over which the misconduct occurred, the willfulness of the defendant’s misconduct, and the defendant’s assets, liabilities, and net worth.” (§§ 17206, subd. (b), 17536, subd. (b).)

The penalties under the UCL and FAL are cumulative. (§§ 17205, 17534.5.) We review the trial court’s imposition of these civil penalties under an abuse of discretion standard. (People ex rel. Bill Lockyer v. Fremont Life Ins. Co. (2002) 104 Cal.App.4th 508, 521-522 [128 Cal.Rptr.2d 463].) Under this standard, “[w]e do not reweigh the evidence or substitute our notions of fairness for the trial court’s. [Citations.] ‘To merit reversal, both an abuse of discretion by the trial court must be “clear” and the demonstration of it on appeal “strong” ’ ” (Cho v. Seagate Technology Holdings, Inc. (2009) 177 Cal.App.4th 734, 743 [99 Cal.Rptr.3d 436].) None of Liberty’s arguments establish an abuse of discretion.

The appropriate method of determining what constitutes a “violation” under these civil penalties provisions was discussed at some length in People v. Superior Court (Olson) (1979) 96 Cal.App.3d 181 [157 Cal.Rptr. 628] (Olson). The application of the resulting Olson standards to the present case is extensively debated between Liberty and the People.

In Olson, a district attorney brought an action against a real estate firm and others for disseminating false and deceptive newspaper advertisements in violation of the UCL and FAL. The trial court granted summary judgment to the defendants on the grounds that the civil penalty provisions violated the defendants’ commercial free speech rights and permitted the unconstitutional imposition of excessive fines. (Olson, supra, 96 Cal.App.3d at p. 185.) The People sought review of the court’s rulings by extraordinary writ. (Id. at p. 189.)

After determining that the UCL and FAL did not violate the defendants’ commercial free speech rights (Olson, supra, 96 Cal.App.3d at p. 195), the appellate court addressed the validity and interpretation of the civil penalties provisions, sections 17206 and 17536, regarding the “violation” issue. In doing so, it rejected absolute arguments in favor of a case-by-case approach.

First, the Olson court rejected the People’s argument that the number of “violations” should be determined by the circulation of the newspaper in which a false advertisement appeared. (Olson, supra, 96 Cal.App.3d at p. 196.) The court noted that this theory would lead to a civil penalty in excess of $2.5 billion for a false advertisement published in a single edition of the heavily circulated Los Angeles Times. Relying on People v. Superior Court (Jayhill Corp.) (1973) 9 Cal.3d 283 [107 Cal.Rptr. 192, 507 P.2d *12511400], the court concluded it was unreasonable to assume that the Legislature contemplated penalties of that magnitude, which would violate “the due process prohibition against ‘oppressive’ or ‘unreasonable’ statutory penalties. [Citation.] Common sense tells us that every newspaper subscriber does not read all the advertisements published in the paper and could hardly be termed ‘a person solicited’ in the sense of one personally solicited by a door-to-door salesperson.” (Olson, at pp. 197-198.)

However, the Olson court also rejected the view adopted by the trial court that dissemination of a false or deceptive advertisement through a single edition of a newspaper constituted a single violation of each statute as a matter of law. (Olson, supra, 96 Cal.App.3d at pp. 196, 198.) Instead, the Olson court instructed the trial court to follow a reasonable approach that took into account the particular circumstances of a case to determine what constituted a violation:

“We believe a reasonable interpretation of the statute in the context of a newspaper advertisement would be that a single publication constitutes a minimum of one violation with as many additional violations as there are persons who read the advertisement or who responded to the advertisement by purchasing the advertised product or service or by making inquiries concerning such product or service. Violations so calculated would be reasonably related to the gain or the opportunity for gain achieved by the dissemination of the untruthful or deceptive advertisement. While the method by which the number of violations may be proved is not before us, it would appear that it might well include expert testimony and circumstantial evidence. We do not see the difficulty of proof to be so onerous as to undermine the effectiveness of the civil monetary penalty as an enforcement tool.” (Olson, supra, 96 Cal.App.3d at p. 198.)

The Olson court further held that under its interpretation, “the trial court must manifestly act reasonably in light of all pertinent factors including the kind of misrepresentations or deceptions, whether they were intentionally made or the result of negligence, the circulation of the newspaper, the nature and extent of the public injury, and the size and wealth of the advertising enterprise.” (Olson, supra, 96 Cal.App.3d at p. 198.)

Similar to the Olson court, a number of other appellate courts have determined that what constitutes a “violation” “ ‘depends on the type of violation involved, the number of victims and the repetition of the conduct constituting the violation—in brief, the circumstances of the case.’ ” (People ex rel. Kennedy v. Beaumont Investment, Ltd. (2003) 111 Cal.App.4th 102, 129 [3 Cal.Rptr.3d 429], quoting People v. Witzerman (1972) 29 Cal.App.3d 169, 180 [105 Cal.Rptr. 284].)

*1252According to Liberty, the court imposed excessive penalties for six categories of print and television advertisements beyond a single violation for each time the advertisement at issue ran, “even though the State did not meet its burden by proving additional violations, as required by [Olson].” Specifically, the trial court improperly imposed civil penalties “based on gross circulation figures for print publications (and Nielsen ratings for television shows) even though the State offered no evidence, expert or otherwise, of how many persons actually saw the advertisements at issue.” We now review these arguments.

B. Television Advertisements

Liberty argues that the trial court, while it acknowledged the Olson instructions, did not follow them when it imposed a $409,860 civil penalty “for an entirely truthful, non-deceptive television advertisement because the ad’s disclaimer was not sufficiently conspicuous.” The People presented the expert testimony of William Formeca, a media communications specialist with 30 years of experience in advising clients how to invest their advertising dollars. Liberty points to Formeca’s testimony that Nielsen ratings, while they captured the number of adults who “saw” the ads at issue, did not take into account those who may not have been watching when the ads appeared because, for example, they momentarily left the room. Liberty then contends that “[i]n accord with Olson, not every viewer of a television program will listen to every commercial.”

Liberty’s contention, however, ignores key aspects of Formeca’s testimony, which provided a reasonable basis for the court’s calculation. As the People point out, Formeca testified about how many adults “saw” the illegal television ads based on Nielsen ratings. His testimony of net impressions was based on a counting of individual viewers only once, even if they saw the advertisement multiple times and lived in households with multiple persons. He testified that he counted “anybody who saw the commercial. If there were ten people in the household and two people saw it, then that would be included in the ratings estimate.”

As the People further point out, Liberty also ignores the Nielson data indicating that viewers saw the deceptive television advertisements multiple times. There was evidence presented that, on an aggregated basis, each viewer saw the “Origami” ad an average of approximately 1.78 times; the “Stomp” ad an average of approximately 3.39 times; the “Catch” ad an average of approximately 1.78 times; and the Spanish language ad an average of approximately 2.72 times. However, the trial court did not impose penalties for such multiple viewings, further demonstrating the reasonableness of its calculations.

*1253Liberty, rather than contend with this evidence, cites literature from the Journal of Advertising Research in support of its position that the court imposed penalties against it for advertisements that no one viewed. As the People urge, we must disregard this literature because it was never put before the trial court. (Knapp v. City of Newport Beach (1960) 186 Cal.App.2d 669, 679 [9 Cal.Rptr. 90] [“[statements of alleged fact in the briefs on appeal which are not contained in the record and were never called to the attention of the trial court will be disregarded . . .”].)

Liberty’s contention that we should consider this academic literature because courts “often rely on academic literature” is unpersuasive. Liberty cites only Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 107-108 [101 Cal.Rptr. 745, 496 P.2d 817], noting that the Barquis court considered academic literature from law reviews and a banking law journal. However, the Barquis court considered this literature only to discuss the “apparent prevalence” of a certain practice that abused the legal process and the courts’ strong interest in preventing such abuse, did not indicate any party objected to the court’s use of the literature, and did not rely on it to reverse any evidentiary ruling by a trial court. (Ibid.)

Liberty further contends that the civil penalties awarded regarding the “Stomp” and “Catch” television advertisements “are a particularly good example of how the use of gross viewership data led to an unreasonable and unfair conclusion.” According to Liberty, the ads were entirely truthful and contained the required disclaimer, but, based on Nielsen data, the court awarded $409,860 in civil penalties. Liberty acknowledges that the disclaimer required a statement that the product was a loan, the name of the lender, and that a fee or interest applied. It nonetheless contends that the court committed legal error because the “only flaw” in these ads “was that the disclaimer was not ‘conspicuous enough’ even though the voice-over used the word ‘loan’ twice and the word ‘loan’ also appeared on the screen.” (Fn. omitted.)

Liberty’s argument is not about legal error, but about the facts, and ignores the substantial evidence to the contrary. As the People point out, the trial court concluded that the ads at issue were likely to deceive or confuse, thereby violating the UCL and FAL. The court found that the mandatory disclaimers contained in these advertisements “were in a very small font, appear within a mass of other text, and are on screen for just a second,” and concluded they were “plainly designed to be overlooked by consumers” and “patently and deliberately illegible.” Liberty does not explain why the court could not reasonably rely on this substantial evidence. Liberty’s argument is unpersuasive in light of it.

Liberty also contends that the civil penalties of $170,364 awarded for one Spanish-language television ad were unfair because the ad did not contain the *1254word “refund,” was not prepared or placed by Liberty, and was approved by mistake by its vice-president of marketing during the peak of tax season, when she received 400 e-mails a day, shortly after her husband had passed away. These are, of course, factual contentions, not arguments of legal error. As the People point out, Liberty again ignores the factual basis for the trial court’s ruling, which was that the ad falsely promised most refunds (by referring to “ ‘reembolsos’ ”) in 24 hours, and that this was “a serious violation of a clear standard that Liberty was intimately familiar with.” Liberty’s contention is again unpersuasive in light of this evidence and the court’s findings.

As the People also point out, the reasonableness of the court’s calculation of civil penalties for the illegal television advertisements pursuant to Olson is further demonstrated by the fact that it imposed a significantly lower penalty than would have resulted if it applied the viewership estimates provided by the People. The evidence indicated that the television ads were aired a total of 1,829 times. Because penalties under the UCL and FAL are cumulative (§§ 17205, 17534.5), these would amount to at least 3,658 violations. Applying the maximum penalty of $2,500 per violation, the court could have imposed penalties of over $9 million, but only imposed penalties of $715,344 for these advertisements.

Finally, we also agree with the People that Liberty’s arguments lead to an approach that would all but require individualized proof of viewership of an illegal commercial, which would be “so onerous as to undermine the effectiveness of the civil monetary penalty as an enforcement tool.” (Olson, supra, 96 Cal.App.3d at p. 198.) This also would be contrary to the Olson standards. The Olson court referred to the possibility of proving damages via expert testimony, thereby suggesting that estimates of readership based on expert opinion—analogous to the viewership figures provided by Formeca in the present case—could be a reasonable and appropriate basis for determining the number of violations. (Ibid.) Liberty gives us no reason why the court could not reasonably rely on Formeca’s testimony regarding Nielsen ratings and, based on our review of his testimony, we conclude that it could. On the other hand, Liberty does not suggest any reasonable way to determine such viewings under the circumstances, i.e., the electronic transmission of advertisements to television sets viewed by people in the privacy of their homes.

In short, Liberty fails to establish that the court committed any legal error or abuse of discretion in its imposition of civil penalties regarding Liberty’s illegal television advertisements.

*1255C. The Print Ads

The court also imposed civil penalties under the UCL and FAL for certain illegal, Liberty-approved Pennysaver advertisements that were mailed to homes. Liberty argues the court’s penalties for additional violations were improperly based on the circulation numbers for these advertisements, despite the admonition against doing so in Olson. Again, we disagree.

As the People point out, the trial court did not rely on the kind of gross circulation figures disfavored in Olson. Instead, the trial court stated that it was applying “a fraction of circulation as a proxy for readership.” Accordingly, rather than multiply each violation by $1, it multiplied them by 0.0088 to determine the penalty to be assessed for Liberty-approved Pennysaver ads.

Furthermore, for Pennysaver advertisements by franchisees that Liberty did not approve, the court used a smaller multiplier of 0.0044 because of Liberty’s indirect liability. When the initial figure of $968,000 resulted, the court reduced it to $50,000 because it considered the initial figure “grossly disproportionate to Liberty’s role, [the] harm done to consumers, and the in terrorem goal of penalties.”

As the People also point out, there was circumstantial evidence, a category of evidence that was referred to favorably in Olson (Olson, supra, 96 Cal.App.3d at p. 198), upon which the court could rely for its calculation. The ads were directly mailed to people’s homes and Liberty’s corporate marketing department and its franchisees considered Pennysaver to be a particularly effective outlet for reaching its target audience. Furthermore, many of the illegal advertisements appeared on the front cover of the mailed Pennysaver publications; common sense indicates this increased the likelihood that they would be read.

We also agree, again, with the People that Liberty’s approach would all but require individualized proof that a person has read the advertisement, which would be “so onerous as to undermine the effectiveness of the civil monetary penalty as an enforcement tool.” (Olson, supra, 96 Cal.App.3d at p. 198.)

In short, Liberty provides no explanation why the trial court’s calculation that less than one percent of the publications circulated were viewed was unreasonable or improper in light of the circumstantial evidence. Its argument, therefore, is unpersuasive.

V. Injunctive Relief

Finally, Liberty argues that the trial court abused its discretion for four different reasons in ordering permanent injunctive relief regarding Liberty’s *1256and its franchisees’ advertising because of Liberty’s violations of the UCL and FAL, and urges this court to delete or substantially limit certain aspects of the injunction. We find no abuse of discretion.

A. The Proceedings Below

The trial court issued an injunction in order to “address Liberty’s failures not only to educate its own internal staff on the legalities of advertising, but its failure in controlling its franchises.” The court stated it was concerned that “without an injunction, Liberty could easily and indeed unilaterally change its policies.”

The trial court permanently enjoined Liberty from “[disseminating or causing to be disseminated any [advertisement that directly or indirectly represents [an RAL] as a client’s actual refund,” and from failing, in any advertisement that mentions refund loans, to “state conspicuously that (1) the product being offered is a loan, (2) the name of the lending institution, and (3) a fee or interest will be charged by the lending institution.” The court also required, among other things, that Liberty discipline its employees and franchisees who did not comply with policies and procedures that required Liberty to review all franchisee advertisements prior to their dissemination in California and ensure such advertisements complied with injunction’s requirements.

Specifically, the court’s injunction requires Liberty to discipline its employees by giving them a written warning of possible termination or other sanctions for their first violation of these requirements, suspending them without pay for three weeks for their second violation, and terminating their employment for a third violation. Similarly, the injunction requires Liberty to give franchisees a written warning of possible fines and termination for a first violation, order them to pay a $15,000 fine payable to the Attorney General for a second violation, and terminate them for a third.

Liberty is also required to audit at least 10 California franchisees each year to determine their compliance with Liberty’s advertising approval policies and procedures and the court’s order. During tax season, it is required to obtain on a monthly basis ads placed in Pennysavers in California (as well as any advertising outlet used in the last 12 months by a franchisee) and inspect on a biweekly basis Pennysaver’s Web site to determine if ads about Liberty’s services comply with the court’s injunction. Liberty is further required to send an e-mail or other bulletin to California franchisees on a monthly basis during tax season reminding them of Liberty’s advertising approval policies and procedures and the requirements of the court’s order regarding advertisements.

*1257B. Analysis

Section 17203, part of the UCL, and section 17535, part of the FAL, authorize the court to enjoin persons who have engaged in unfair competition. They provide that “[t]he court may make such orders or judgments ... as may be necessary to prevent the use or employment by any person” of practices which violate their respective chapters. (§§ 17203, 17535.) Liberty points out that this language limits the court’s powers to that which is “necessary.” This is correct, but Liberty ignores that “[t]he court’s discretion is very broad” and that this language “is ... a grant of broad equitable power.” (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 180 [96 Cal.Rptr.2d 518, 999 P.2d 706] [regarding § 17203].) As this court has stated, “The remedial power granted under these sections is extraordinarily broad. Probably because false advertising and unfair business practices can take many forms, the Legislature has given the courts the power to fashion remedies to prevent their ‘use or employment’ in whatever context they may occur.” (Consumers Union of U.S., Inc. v. Alta-Dena Certified Dairy (1992) 4 Cal.App.4th 963, 972 [6 Cal.Rptr.2d 193].) Accordingly, we review the court’s injunction for abuse of discretion.

1. The “Discipline” Provisions of the Injunction

Liberty first argues that the trial court abused its discretion because “the injunction goes well beyond what is necessary to take reasonable steps to prevent Liberty’s franchisees from advertising in violation of the UCL and FAL.” Liberty contends that the court now requires Liberty “to exert even more control over its franchisee advertising,” and specifically challenges the necessity that Liberty require franchisees violating the rules regarding advertising a second time to pay a $15,000 fine to the Attorney General “regardless of the amount of time between violations, with no discretion, and no consideration of extenuating circumstances.”

Liberty posits that a franchisee that inadvertently places an ad without a disclaimer during its first year of operation, is warned, and 15 years later places another ad that, due to the error of a new employee, does not contain a sufficiently conspicuous disclaimer would be required to pay this fine. Liberty contends that this example, although extreme, “illustrates . . . that without a more limited duration and a substantially more nuanced approach, the trial court’s injunction is heavy-handed to the point of constituting an abuse of discretion.” It makes this same argument regarding the court’s requirements that it similarly discipline its employees, and that it notify the Attorney General in perpetuity within a week of its discovery of an advertising violation by a franchisee. Liberty cites only the general legal proposition that *1258injunctions should be limited to what is necessary in support of its argument that the court’s requirements are so “heavy-handed” as to constitute an abuse of discretion.

In its reply brief, Liberty makes additional arguments why the court’s order goes too far. These include that, while it may have a contractual right to terminate franchisees for illegal advertising, a point noted by the People, it does not have the contractual right to fine franchisees, that a $15,000 fine exceeds the $2,500 penalty that can be assessed for each violation of the UCL and FAL, and that the injunction’s requirement that Liberty terminate a franchise for a third violation would cause a franchisee to lose its entire business.

We disagree with Liberty’s arguments for three reasons.

First, as the People point out, the trial court found the illegal franchisee advertising was a “serious violation” and “persistent,” that Liberty “did not devote sufficient resources to monitoring franchisee advertising,” that Liberty “knew it had a problem with unapproved and illegal advertising in the Pennysaver in particular, but failed to take steps to stop it,” and that Liberty then “took little or no correction action to prevent similar occurrences.” The court further noted that regarding one illegal television advertisement, the company’s chief marketing officer testified that she would still approve it for use in California; the court stated that “[tjhis and other evidence demonstrates the need for injunctive relief’ it ordered, and specifically the discipline requirements that Liberty complains of on appeal. The court concluded that its “injunction must address Liberty’s failures not only to educate its own internal staff about the legalities of advertising, but its failure in controlling its franchisees.” Liberty does not challenge the court’s findings or conclusions, which are a reasonable basis for the court’s requirement that Liberty discipline its employees and franchisees as ordered.

Second, Liberty emphasizes that the trial court’s injunction is permanent and requires it to act in perpetuity. This ignores the fact that the court maintained jurisdiction over the case and indicated that the parties could apply to the court at any time for “such further orders and directions as may be necessary or appropriate for the construction or carrying out” of the court’s judgment, “for modification or termination of any injunctive provision,” and “for punishment of any violation” of the judgment. Thus, Liberty has the opportunity at any time to seek clarifications or modifications to the court’s order, including in special circumstances, or to seek to end the court’s injunction. This alleviates any reasonable concern about the court’s “heavy-handedness.”

*1259Finally, as the defendant, Liberty has the burden to affirmatively establish that the court abused its discretion. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [86 Cal.Rptr. 65, 468 P.2d 193].) The most fundamental principle of appellate review is that “ ‘[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’ ” {Ibid.) A number of Liberty’s arguments are unsupported by citation to case law or legal authority beyond the most general, and Liberty ignores the substantial evidence supporting the trial court’s concerns. It does not affirmatively establish error.

In short, we reject Liberty’s argument that the trial court abused its discretion in ordering Liberty to discipline its employees and franchisees.

2. Reasonable Notice

Liberty next argues that the trial court abused its discretion because its injunction “does not provide reasonable notice about what conduct is prohibited.” Again, we disagree.

As Liberty correctly points out, “ ‘[a]n injunction must be narrowly drawn to give the party enjoined reasonable notice of what conduct is prohibited.’ ” (Strategix, Ltd. v. Infocrossing West, Inc. (2006) 142 Cal.App.4th 1068, 1074 [48 Cal.Rptr.3d 614].) It contends that the court’s injunction does not do so because it requires that Liberty draw “legal conclusions about whether, for example, a franchisee’s ad disclaimer is ‘conspicuous.’ ”5 This “example” is the only specific aspect of the injunction identified and, therefore, the only one we will address.

Once more, Liberty’s summary argument, unsupported by any citation other than the most general legal authority, is unpersuasive. As the People point out, a federal case upholding an agency order requiring the use of “conspicuous” advertising disclaimers was favorably discussed by our Supreme Court in Ford Dealers, supra, 32 Cal.3d 347. The Ford Dealers court noted that in a similar case, Bantam Books, Inc. v. F.T.C. (2d Cir. 1960) 275 F.2d 680, 683, the Second Circuit upheld an agency order that a publisher print certain information “ ‘in clear, conspicuous type,’ ” in a position “ ‘adapted readily to attract the attention of a prospective purchaser’ ” because “a more specific order would not be feasible, since clarity *1260and conspicuousness would vary with the size, color, placement and design of the publications.” (Ford Dealers, at p. 368.) Our Supreme Court reached a similar conclusion in rejecting arguments that certain Department of Motor Vehicles regulations regarding advertising were impermissibly vague. (Id. at pp. 368-369.)

We agree with the trial court’s approach in the present case based on this authority. It would not be feasible for the court to be more specific in light of the many different types of advertisements Liberty could disseminate. Liberty’s “reasonable notice” argument is unpersuasive.

3. Liberty’s Due Process Argument

Next, Liberty argues that the trial court “abused its discretion because its injunction requires Liberty to violate the due process of nonparties, i.e., its franchisees.” This argument is also unpersuasive because Liberty provides virtually no legal analysis for us to consider.

Liberty cites the generic authorities that correctly indicate that “the state may deprive no man of liberty or property without due process of law.” (Endler v. Schutzbank (1968) 68 Cal.2d 162, 165 [65 Cal.Rptr. 297, 436 P.2d 297]; see Boddie v. Connecticut (1971) 401 U.S. 371, 378-379 [28 L.Ed.2d 113, 91 S.Ct. 780] [“an individual [must] be given an opportunity for a hearing before he is deprived of any significant property interest”].)

Liberty also cites three cases with little, if any, explanation of their relevance to the circumstances of this case. (See Bixby v. Pierno (1971) 4 Cal.3d 130, 144-147 [93 Cal.Rptr. 234, 481 P.2d 242] [discussing whether the court’s review of an administrative decision should be expanded when a vested constitutional right, such as the right to practice one’s profession, is involved]; Willner v. Committee on Character (1963) 373 U.S. 96, 102-103 [10 L.Ed.2d 224, 83 S.Ct. 1175] [a bar committee’s refusal to certify a person for admission to the bar without a hearing violated the person’s procedural due process rights]; Nebraska v. Goodseal (1971) 186 Neb. 359, 367-368 [183 N.W.2d 258] [a state criminal statute that delegated to a person using self-defense the decision to set out what force was reasonable was unconstitutional since the Legislature set criminal laws].)

Liberty apparently is of the view that its due process argument is so obvious that it does not need to further explain it nor explain the relevance of the cases it cites. When an appellant asserts a point but fails to support it with ■reasoned argument and citations to relevant authority, we may treat the argument as waived and disregard it. (People v. Stanley, supra, 10 Cal.4th at p. 793.) We do so here. We also note, again, that the court has maintained *1261ongoing jurisdiction and that Liberty may seek the court’s assistance in clarifying the injunction’s terms at any time. Liberty fails to explain why this does not satisfy its due process rights.

4. Likelihood, of Harm

Finally, Liberty argues that the trial court abused its discretion because there is no likelihood of harm, since the court has ordered Liberty to conduct itself in a manner that is consistent with Liberty’s existing policy. Liberty, ignoring the court’s numerous findings of its wrongdoing, goes so far as to state that “[tjhere was thus no ‘wrongful conduct’ in the first place.” Liberty’s argument is utterly unpersuasive in light of the evidence of the case, which indicates that, regardless of Liberty’s written policies, there was insufficient internal management of advertising practices and violations of law. Liberty fails to establish that the trial court abused its discretion by using its injunction to ensure that such violations of law do not occur going forward.

DISPOSITION

The judgment is affirmed. The People are awarded costs on appeal.

Haerle, Acting P. J., and Richman, J., concurred.

Appellants’ petition for review by the Supreme Court was denied .May 1, 2013, S208852.