The magistrate judge assigned to hold a settlement conference in All American Check Cashing has issued an order stating that the matter did not settle at the settlement conference conducted on September 7. The order also states that the court will notice a telephonic conference to continue settlement discussions.
The case was remanded to the district court by the en banc Fifth Circuit, which ruled that the CFPB’s enforcement action against All American Check Cashing could proceed despite the unconstitutionality of the CFPB’s single-director-removable-only-for-cause-structure at the time the enforcement action was filed. However, in a concurring opinion, five judges expressed their agreement with All American Check Cashing’s argument that the unconstitutionality of the CFPB’s funding mechanism required dismissal of the enforcement action. In remanding the case, the Fifth Circuit stated that “[w]e place no limitation on the matters that the court may consider, including, without limitation, any other constitutional challenges, and we express no view on the actions it should take in accordance with this opinion or otherwise.”
Following the remand, the CFPB and All American Check Cashing filed a joint motion asking the district court to set a briefing schedule. The district court, however, denied the motion and instead ordered that the case go to private mediation or a settlement conference before a magistrate judge, with the parties to decide which route they preferred. The parties thereafter agreed to a settlement conference before a magistrate judge.
The order issued by the magistrate judge also notes that after the Fifth Circuit accepted the interlocutory appeal, the district court terminated two pending motions: the CFPB’s motion for summary judgment and All American Check Cashing’s motion to exclude certain expert testimony. The order states that because Community Financial Services Association v. CFPB “presents similar issues to those raised in the present case,” the parties must wait to re-file any motions until the Fifth Circuit issues a decision in the CFSA case. (CFSA’s lawsuit challenges the payment provisions in the CFPB’s 2017 final payday/auto title/high-rate installment loan rule.) A Fifth Circuit panel heard oral argument in the CFSA case on May 9, 2022.
The trade groups’ primary argument on appeal continues to be that the 2017 Rule was void ab initio because the CFPA’s unconstitutional removal restriction means that the Bureau did not have the authority to promulgate the 2017 Rule. However, the trade groups submitted the concurring opinion in All American Check Cashing as supplemental authority to the Fifth Circuit panel hearing their appeal and argued that the panel should adopt the reasoning of the concurring opinion and invalidate the 2017 Rule.