On March 26, 2024, the plaintiffs in the lawsuit challenging the CFPB’s final credit card late fee rule (“Final Rule”) filed a Notice Regarding Their Emergency Motion for Injunction Pending Appeal and Administrative Stay in the Fifth Circuit. Plaintiffs, who noticed their interlocutory appeal of the federal district court’s “effective denial” of their motion for a preliminary injunction on Tuesday, asked the appeals court to allow the appeal to continue even though the district court has scheduled an April 2, 2024 hearing on their motion for a preliminary injunction. Under the briefing notice issued by the Fifth Circuit on March 26^th, Appellants’ brief and record are due on May 6^th – 40 days from the date of the court’s briefing notice – with the CFPB’s reply brief due 21 days thereafter.

As we have previously discussed, the district court denied plaintiffs’ motion for expedited consideration of their preliminary injunction motion on March 20, 2024. Plaintiffs do not have an appeal as of right of the interlocutory order as the district court has not actually denied their motion (yet). Because of the impending effective date of the Final Rule, the Plaintiffs argue in their notice of appeal that the denial of their motion for expedited consideration effectively denied their request for meaningful preliminary injunctive relief. In the absence of any action by the district court on their preliminary injunction motion, the plaintiffs’ assert that immediate appellate review is needed to avoid the “ongoing, and accumulating, irreparable harm” faced by the plaintiffs.

A ruling from the bench or after the April 2^nd motion hearing would either moot the appeal or provide an actual denial of the preliminary injunction that would result in an appealable order. To that end, plaintiffs’ notice to the Fifth Circuit can be read as a request to expedite the briefing of the appeal with the dates it has already set should either party eventually appeal the district court’s ruling on the preliminary injunction motion instead of setting a new briefing schedule based on that later appeal. It is unclear how the Fifth Circuit will proceed, but we believe the plaintiffs’ appeal may have already served its purpose, as Judge Pittman scheduled the April 2^nd motion hearing shortly after the appeal was noticed.

The motion to transfer venue, which is fully briefed, is still pending a decision by the district court.