On February 12, a trade group representing the fintech industry filed a motion to intervene in a pending lawsuit regarding the CFPB’s final rule on open banking, in order to defend it. The suit was filed originally by a bank and two banking industry groups challenging the CFPB’s section 1033 final rule. As previously covered by InfoBytes, the lawsuit remains pending in the U.S. District Court for the Eastern District of Kentucky and seeks declaratory and injunctive relief halting implementation of the 1033 rule, which would mandate that banks provide customers and third parties with access to data related to products they have with their bank via application programming interfaces (APIs), with the goal of making it easier for consumers to switch financial providers. The trade group now seeks to intervene in the litigation to defend the final rule, as its motion noted the association and several of its members supported the CFPB rule during the notice and comment process and expressed the view that the rule would “empower[] consumers” and “foster competition.”

The motion to intervene explained the trade group’s decision to seek intervention: This was prompted by “a series of developments at CFPB . . . that create uncertainty as to the CFPB’s ability and/or intention to continue defending this case,” noting the Acting Director of the CFPB ordered staff to cease work (covered by InfoBytes here). The trade group argued it is entitled to intervene in the litigation under Federal Rule of Civil Procedure Rule 24 since it seeks to protect the economic interests of itself and its members. The group moved to intervene early in the litigation and shortly after the Acting Director paused CFPB activities and intends to adhere to the existing briefing schedule for pending cross-motions for summary judgment. The motion also argued the trade group’s interests are not identical to the CFPB’s interests in the litigation, since the trade group’s goal is “to advance the business interests of its members” and that its “interests and arguments differ from the CFPB’s,” making intervention appropriate.