Industry Groups Voice Concern that the CFPB's Arbitration Proposal Fails to Provide Protection for Consumers

CFPB Dodd-Frank Arbitration U.S. House Agency Rule-Making & Guidance

On August 22, the American Bankers Association, the Consumer Banks Association, and the Financial Services Roundtable sent a letter to CFPB Director Cordray regarding the agency’s proposed arbitration rule. According to the Associations, the CFPB’s proposal seeking to impose certain restrictions on the use of mandatory pre-dispute arbitration clauses is inconsistent with the agency’s March 2015 study of consumer arbitration and fails to meet the Dodd-Frank requirements that it provide consumer protection and satisfy the public interest. Arguing that consumers will “truly suffer if the proposed rule becomes final,” the letter highlights the following concerns: (i) due to the “surge” of additional class actions, consumers, as tax payers, will be forced to pay for the increased costs to the court systems; (ii) as litigants, they will face backlogs as court systems experience delays in administering and resolving the class action suits; (iii) as customers of financial service providers, they will be subject to increased prices and/or reduced services because “the billions of dollars in class action litigation costs will be passed through them in whole or in part”; and (iv) consumers will lose the benefits of arbitration, including efficiency, convenience, and fewer costs. The Associations contend that the proposal, if passed, would be particularly restricting for small dollar “non-classable” claims. The Associations further their argument against the proposal by pointing to various inconsistencies with the conclusions outlined in the CFPB’s March 2015 study. Moreover, the letter asserts that the CFPB’s 2015 study was “incomplete” because it failed to address and analyze several key issues that would further demonstrate the proposed rule’s shortcomings with respect to public interest, including, among other things, consumer satisfaction with arbitration and the potential impact the removal of arbitration would have on consumers and the public. The Association’s recommendation that the CFPB not proceed with finalizing its proposal is one of many submitted to the agency, including a recent letter from various House Republicans expressing concern that the proposal “will choke off access to products and services that help consumers manage their creditworthiness, monitor changes in their credit reports, and protect themselves against identity theft.” The influx of comments on the proposal came at the close of its comment due date, August 22, 2016.