(As a refresher, if you forgot where things stood the last time you read one of our blogs related to the CFPB credit card late fee rule litigation, click here.)
On Friday May 24, in response to the CFPB’s motion requesting the Fifth Circuit to accelerate the issuance of its mandate from July 9, 2024 with respect to its earlier dismissal of the plaintiffs’ appeal, the Fifth Circuit ordered that the mandate be issued “forthwith.” This restores full jurisdiction to the Federal District Court (Judge Pittman). I would now expect the CFPB to renew its earlier motion to transfer venue to the District of Columbia District Court. I would also expect the plaintiffs to request Judge Pittman to rule on the remaining grounds for extending the preliminary injunction. (The District Court initially issued the preliminary injunction based exclusively on the Fifth Circuit’s opinion in CFSA v. CFPB which on May 16 was reversed by the Supreme Court.) The remaining grounds are that the Rule violates the Truth in Lending Act, the CARD Act, and the Administrative Procedure Act. In granting the initial preliminary injunction to the Plaintiffs, Judge Pittman referred to these alternative arguments as “compelling.”
Although I have guessed wrong before about what would happen next, that won’t stop me from predicting the next move. I believe that Judge Pittman, freed from the shackles of the Fifth Circuit, will now transfer the case to DC. That could be outcome determinative.