Brief in Support of Plaintiffs' Motion for Expedited Consideration of Preliminary-Injunction Motion Before Court Determines Convenience-Based Venue Issues

INTRODUCTION

This Court has before it and ripe for decision Plaintiffs’ expedited motion for preliminary injunction enjoining the CFPB’s recently published Credit Card Penalty Fees Rule. See Credit Card Penalty Fees (Regulation Z) (released Mar. 5, 2024 and published March 15, 2024 in the Federal Register). https://www.federalregister.gov/documents/2024/03/15/2024-05011/creditcard-penalty-fees-regulation-z. Plaintiffs appreciate and recognize that this Court has also asked for supplemental briefing as to whether a transfer of venue pursuant to 28 U.S.C. § 1404(a) would be appropriate and has invited the Defendants to submit such a motion. Plaintiffs will submit such briefing pursuant to the schedule set forth by the Court, but Plaintiffs file this motion and brief to highlight the need to address their pending motion for preliminary injunction, even while the Court considers the need for a change of venue on the merits based on convenience factors. That approach best addresses Plaintiffs’ uncontested irreparable harm and leaves time for appellate review.

Plaintiffs regret the rush being imposed upon this Court, particularly in light of this Court’s recent inheritance of the case and busy docket, but Plaintiffs believe that they need relief soon to avoid significant and unrecoverable irreparable harm caused by the Defendants’ actions. As Plaintiffs explained in the briefing in support of their motion for preliminary injunction, they did not seek a Temporary Restraining Order out of consideration for this Court’s resources and instead respectfully requested a ruling on their motion for preliminary injunction within 10 days or as soon as possible thereafter. Pls.’ Prelim. Inj. Br. 2. Those 10 days passed on March 17, 2024, and the irreparable harm continues to accrue with each day that passes. The Final Rule has now been published, and the (unlawfully short) compliance period is scheduled to end imminently, on May 14, 2024. See Credit Card Penalty Fees (Regulation Z) (released Mar. 5, 2024 and published March 15, 2024 in the Federal Register). https://www.federalregister.gov/documents/2024/03/15/2024-05011/credit-card-penalty-feesregulation-z. As explained in Plaintiffs’ papers, the printing and distribution of new disclosure materials like those required by the Final Rule typically takes a minimum of four months to accomplish, and the CFPB has given only two months for issuers representing nearly 95% of the credit card market to undertake this task. Moreover, despite suggesting that issuers could compensate for harm caused by the Rule by raising interest rates or making other changes to their customer agreements, the CFPB did not provide enough time for issuers to do so, as such changes typically require 45 days’ written notice to consumers. The effective date of May 14 requires written notice to be printed, mailed, and received by millions of customers by March 29, 2024. See, e.g., Hall Decl. ¶ 9 [App. 3]. And, with each day that passes, more issuers will be forced to incur significant and unrecoverable costs to attempt these tasks. See, e.g., Hall Decl. ¶¶ 7-9 [App. 2-3]; Bowman Decl. ¶ 11 [App. 4]; Montgomery Decl. ¶¶ 7-9 [App. 2-3]; Pommerehn Decl. ¶¶ 8-10 [App. 3]; Quaadman Decl. ¶¶ 8-10 [App. 3-4]; Schlachter Decl. ¶¶ 10-11 [App. 3- 4]; Sharp Decl. ¶¶ 8-10 [App. 3-4]. Due to the Defendants’ unlawful actions, if Plaintiffs do not receive a ruling on their Motion for Preliminary Injunction by this Friday—one week before they must provide printed notice to millions of customers—their relief will have been effectively denied and they will be compelled to seek appellate review.

Because venue is proper in this suit, see infra Section II, Plaintiffs respectfully suggest that this Court should rule on their pending motion for preliminary injunction before turning to any question of a discretionary transfer of venue. The Court has the power to issue the requested injunction even if this Court later concludes that transfer is appropriate or desirable. Plaintiff Fort Worth Chamber of Commerce resides here, and a substantial part of the events or omissions giving rise to the claim are occurring here. See id. Lawsuits like this one, which press primarily Administrative Procedure Act claims are routinely filed in proper venues around the country without transfer. This case should be no different. To hold otherwise would effectively mean that all APA cases must be brought in the District of Columbia.

Moreover, a ruling by this Court granting or denying Plaintiffs’ pending motion for preliminary injunction before any potential transfer would best ensure the availability of appellate review in this Circuit. It would avoid the inevitable delay in resolving that motion if this case were transferred to yet a fourth district judge, and it would eliminate any difficult questions about whether appellate review in the Fifth Circuit (as opposed to any other Circuit to which this case were transferred) is appropriate.

Although Plaintiffs had asked for an injunction that addresses their statutory claims, this Court need not do so to resolve Plaintiffs’ motion. Instead, this Court could rely simply on the binding precedent relevant to the Appropriations Clause and leave time to consider Plaintiffs’ remaining claims at a later date while the Final Rule is enjoined.

Finally, Plaintiffs ask that if this Court denies their motion for preliminary injunction, it issue them an injunction pending appeal. , 13 F.4th 434, 441 (5th Cir. 2021) (explaining that the standard to obtain an injunction pending appeal is the same as the standard for obtaining a preliminary injunction).

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