A surprising development took place this week in the lawsuit challenging the CFPB’s final credit card late fee rule (Rule).  The Fifth Circuit entered an order vacating the district court’s order denying the plaintiffs’ motion for expedited consideration of their preliminary injunction motion and remanding the case to the district court with instructions to rule on the plaintiffs’ preliminary injunction motion by May 10, 2024.  The Rule becomes effective on May 14, 2024.

The Fifth Circuit currently has before it the plaintiffs’ appeal from the district court’s order denying the plaintiffs’ motion for expedited consideration of their preliminary injunction motion (which they have framed as an appeal from the effective denial of their preliminary injunction motion).  The Fifth Circuit has entered an expedited briefing schedule that requires the plaintiffs to file their brief by April 26, the CFPB to file its brief by May 13, and the plaintiffs to file their reply brief by May 17.  As required by that order, the plaintiffs filed their brief on April 26. 

Also currently before the Fifth Circuit is the CFPB’s petition for reconsideration of the Fifth Circuit’s order vacating the district court’s order transferring the case to the U.S. District Court for the District of Columbia and issuing a writ of mandamus directing the district court to reopen the case.  The plaintiffs filed their response to the CFPB’s petition on April 26. 

Assuming the district court rules on the plaintiffs’ preliminary injunction motion by May 10 and denies the motion, there should be sufficient time for the Fifth Circuit to issue a stay of the Rule pending an appeal from the denial of the preliminary injunction motion that would block the Rule from taking effect on May 14.

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