By Maya Patel

Gerro v. Shultz, No. B321113, B322706 (Cal. Ct. App.): On July 12, 2024, the California Court of Appeal, Second District, reversed and remanded Gerro v. Shultz in part, holding that the trial court erred in dismissing George Gerro’s claims without leave to amend, as alleged against Christopher S. Shultz in his capacity as the Commissioner of the California Department of Financial Protection and Innovation (DFPI). This decision stems from Gerro’s attempt to challenge the DFPI’s issuance of a finance lender license to BlockFi Lending LLC (BlockFi), a cryptocurrency lender. Gerro contended that BlockFi’s practice of holding cryptocurrency collateral violated California Financial Code section 22009.

BlockFi is a cryptocurrency lending platform that allows consumers to pledge digital assets such as Bitcoin as collateral for fiat loans. Under BlockFi’s business model, borrowers transfer their cryptocurrency to BlockFi, which holds the assets as collateral throughout the life of the loan. If the borrower defaults, BlockFi has the right to sell the cryptocurrency to cover the outstanding loan balance.

Gerro contended that BlockFi’s control over the collateralized cryptocurrency violated California’s finance lending laws, specifically Financial Code section 22009, which prohibits licensed lenders from taking possession of borrowers’ collateral. He argued that the DFPI’s issuance of a finance lender license to BlockFi in August 2018 was improper because it sanctioned this illegal practice. In June 2021, Gerro filed a writ of mandate seeking to compel the DFPI to revoke or suspend BlockFi’s license. In his subsequent amended complaint, he maintained that the DFPI’s interpretation of Section 22009—allowing BlockFi to hold borrowers’ cryptocurrency collateral—was erroneous and unlawful under state law.

The trial court dismissed Gerro’s claims, determining that he failed to demonstrate standing as a consumer or private citizen. The court further ruled that the challenge to the DFPI’s licensing decision should have been pursued through a writ of mandate rather than a declaratory relief action. In his appeal, Gerro argued that the trial court wrongly denied him the opportunity to amend his complaint and that the DFPI’s actions exceeded its statutory authority.

In reversing and remanding the case, the appellate court concluded that the trial court did not err in finding that Gerro lacked standing under the theories presented in the lower court. However, the Court of Appeal held that Gerro could amend his complaint to allege taxpayer standing, a doctrine that allows a plaintiff to challenge the illegal expenditure of public funds or unlawful actions by a government entity, even without a direct personal stake in the matter.

The court’s decision aligns with established precedent regarding taxpayers standing in California. In its ruling, the appellate court found that Gerro may plausibly allege that the DFPI’s interpretation of section 22009—and its issuance of BlockFi’s license—constituted an illegal or wasteful use of public resources. If Gerro can sufficiently plead this claim, he may proceed with his challenge to the DFPI’s licensing practices.