U.S. Chamber of Commerce Taking “Judge Shopping” To New Extremes – Accountable US

“Judge shopping”—the practice of filings lawsuits in districts where sympathetic judges will hear a particular case—has entered headlines in recent months. On March 12, 2024, Fifth Circuit Court of Appeals Judges James Ho And Edith Jones blasted a rule the 26-member Judicial Conference recommended for implementation to curtail the practice. On March 21, 2024, Senate Democrat Leader Chuck Schumer (NY) penned a letter to the Northern District of Texas urging the court to adopt the proposed policy, with Republicans penning their own letter defending judge shopping.

On March 7, 2024, the U.S. Chamber of Commerce filed a lawsuit in the Northern District of Texas challenging the CFPB’s recent Credit Card Late Fee Rule, which capped credit card fees at $8. The initial Judge, Reed O’Connor, recused himself shortly after Accountable.US found O’Connor disclosed owning stock in some of the largest credit card issuers. The case was then reassigned to federal judge Mark Pittman, who believed the case should not have been submitted to the Northern District of Texas, given only one of the six plaintiffs had a presence in Fort Worth, ultimately sending the case to Washington, D.C. where the majority of the groups are headquartered. However, the Fifth Circuit Court of Appeals issued a stay, blocking this transfer, a massive win for industry seeking to undo the CFPB’s rule aimed at saving consumers over $10 billion in annual late fees. 

A review by Accountable.US of legal challenges by the U.S. Chamber of Commerce since President Trump took office in January 2017 shows the majority of lawsuits, roughly 63% of lawsuits challenging federal regulations, were filed within district courts under the Fifth Circuit’s jurisdiction. Among these ten are:

• In March 2024, the U.S. Chamber of Commerce filed a lawsuit in the Northern District of Texas challenging the CFPB’s latest Credit Card Late Fee Rule. The initial judge, Reed O’Connor, recused himself after Accountable.US found that O’Connor disclosed owning stock in credit card issuers. The next judge, Mark Pittman, initially transferred the case to Washington, D.C. since only one of the six plaintiffs had a presence in Texas, before the Fifth Circuit blocked its transfer.

• In February 2024, the U.S. Chamber, alongside national and Texas trade groups, challenged final Community Reinvestment Act rulemaking by federal bank regulators by filing a lawsuit in the Northern District of Texas, which was assigned to Trump-appointed Judge Matthew J. Kacsmaryk, who ultimately sided with industry by approving a motion for preliminary injunction halting agency implementation of the rule until the lawsuit was settled.

• In November 2023, the U.S. Chamber, alongside numerous trade groups, filed a lawsuit in the Eastern District Court of Texas challenging the National Labor Relation Board’s rulemaking on joint employment. Chamber President and CEO Suzanne Clark celebrated a March 2024 ruling which vacated the rule, and vowed the Chamber would fight “unionization” “at all costs.” 

• In May 2023, the U.S. Chamber of Commerce criticized SEC rulemaking aimed at further regulating company stock buyback reporting, vowing to explore legal options, ultimately filing a successful lawsuit that was heard by the Fifth Circuit Court of Appeals. The Fifth Circuit ultimately vacated the rule in December 2023, a move that received praise from Chamber CEO Suzanne Clark who said she hoped this would signal the SEC should stop pushing a “far-reaching and aggressive agenda.”

• In September 2022, the U.S. Chamber, alongside numerous national and Texas trade groups, challenged the CFPB’s changes to its examination manual aimed at enforcing Unfair, Deceptive or Abusive Acts or Practices (UDAAP). The Chamber argued the CFPB overstepped its powers granted by Congress, with the Eastern District of Texas siding With industry and nullifying the update in September 2023 after the Chamber urged the court to vacate on the grounds the Supreme Court was hearing a challenge to the CFPB’s funding structure from the Community Financial Services of America, a payday lending group.

• In August 2021, the U.S. and Tyler Area Chambers of Commerce successfully pressured federal regulators, including the Departments of Health and Human Services and Labor, to rescind rulemaking after they filed a lawsuit in the Eastern District of Texas alleging the agencies “exceeded their statutory authority” on rulemaking aimed at increasing transparency on pricing for health plans. 

• In September 2017, the U.S. Chamber joined banking groups in a lawsuit filed in the Northern District of Texas aimed at blocking CFPB rulemaking banning forced arbitration clauses in financial services contracts, contesting it used “biased data.” The Chamber later received a major victory when the Senate voted to overturn the law, subsequently dropping the case when former President Trump signed the law into action in November 2017. 

• In June 2016, the U.S. Chamber of Commerce filed a lawsuit challenging the Department of Labor’s updated fiduciary rule, appealing their case before the Fifth Circuit in February 2017 after the district court denied its motion for summary judgment. Interestingly, current Fifth Circuit judge James Ho initially worked on the case while in private practice at Gibson Dunn & Crutcher LLP. Ultimately, former Chamber President and CEO Thomas J. Donohue celebrated a March 1, 2017 decision by the Trump administration to reverse the June 2016 rule saying he looked forward to working with the administration.  

• On January 30, 2024, the U.S. Chamber filed a lawsuit in the Fifth Circuit challenging  the Federal Communications Commission’s (FCC’s) digital discrimination rule, claiming it would hurt broadband access for Americans by increasing compliance costs for companies and would lead to state governments facilitating prices.

Meanwhile, just a handful of cases were filed in courts under the Sixth, Ninth, And DC Circuits, two of which challenged Trump administration policies:

• In March 2024, the U.S. Chamber filed a petition for review in the D.C. Court of Appeals challenging the Environmental Protection Agency’s rule tightening air quality standards for particulate matter.

• In June 2023, the U.S. Chamber, alongside several local chambers, filed a lawsuit in the Southern District of Ohio challenging the constitutionality of the Inflation Reduction Act’s Medicare price negotiation measures, filing a motion to halt its implementation the next month.

• In February 2023, the U.S. Chamber, alongside the Kentucky Chamber and other trade associations, filed a lawsuit in the Eastern District of Kentucky challenging the EPA and Army’s new Waters of the United States rule, which is now pending in that court.

• In July 2022, the U.S. Chamber filed a lawsuit against the SEC over the agency’s decision to roll back the Trump administration’s proxy advisor rule claiming it did “not follo[w] proper procedures” and removed key investor protections, with the challenge making it to the Sixth Circuit after the Middle District of Tennessee ruled against the Chamber with the case still pending a decision.

• In July 2020, the U.S. Chamber sued the Trump Administration over an anti-immigration proclamation it dubbed “not welcome” signs, successfully winning a case in the Northern California District Court which blocked the administration’s ban on certain non-immigrant employment, with the U.S. Chamber celebrating it as “a great victory for American businesses.”

And in October 2020, the U.S. Chamber and several business groups sued the Trump Administration over its H-1B Visa Rule implemented by the Departments of Homeland Security and Labor, arguing the rule would “devastate high-skilled immigration,” and after a series of fights in court, DHS dropped its challenge in court for implementing its “Lottery Rule.”