Asserting that irreparable harms to their members “are piling up,” the U.S. Chamber of Commerce and the other plaintiffs have filed a motion for a status conference with the Texas federal district court hearing their lawsuit challenging the CFPB’s update to the Unfair, Deceptive, or Abusive Acts or Practices section of its examination manual to include discrimination.  The other plaintiffs are American Bankers Association, Consumer Bankers Association, Independent Bankers Association of Texas, Longview Chamber of Commerce, Texas Association of Business, and Texas Bankers Association.

In January 2023, the parties completed briefing on cross-motions for summary judgment.  The plaintiffs assert that since the completion of briefing, “the CFPB announced in its June 2023 Fair Lending Report that it is pursuing enforcement actions based on the expansive interpretation of its unfairness authority—expressed in the manual update—that Plaintiffs challenge in this case.”  As support for this assertion, the plaintiffs quote the following sentence in the Report:

The CFPB is looking into potential discriminatory conduct, including under ECOA and the statutory prohibition on unfair acts or practices targeted at vulnerable populations and leading to bias in automated systems and models.

According to the plaintiffs, “[n]ow that the CFPB has revealed that it is actively pursuing enforcement investigations on this theory, the need for relief is particularly acute.”

The plaintiffs assert that waiting until Spring 2024, when the U.S. Supreme Court will likely issue its decision in the CFSA case, would impose significant unrecoverable costs on their members.  They indicate that in their discussions with the CFPB prior to the filing of the summary judgment motions, the CFPB “floated the idea of temporarily enjoining the update and freezing this case while the CFPB litigates [the CFSA case] in the Supreme Court.”  The plaintiffs state that, in view of the growing harm to their members, they are now “considering a version of the [CFPB’s] suggestion, where they seek interim relief in the near term.”  However, since they “do not want to rush” the district court or start another round of briefing that might prove unnecessary, they seek a status conference to discuss this issue.