A couple of days ago, the Los Angeles Times published an Op-Ed titled, “If the Consumer Financial Protection Bureau is dying, at least it’s going out with a bang.”
That bang was a shot heard all around our industry. It signaled a ban on mandatory arbitration clauses. It’s supposed to go live in eight months.
The rule makes it so financial services companies can’t block customers from joining forces in class action lawsuits.
Here is what the CFPB said about the ban:
“Our new rule will restore the ability of groups of people to file or join group lawsuits. In some cases, not only will companies have to provide relief, they will also have to change their behavior moving forward.”
The list of affected parties includes credit repair companies, debt collection companies, debt buyers, credit card companies, banks, credit unions, loan originators, and money transfer services. Right now, these institutions can require customers to use an arbitrator to settle disputes. Tribal lenders should still be able to ban arbitration if the rule goes into effect.
Critics argue that forced arbitration helps protect against class action suits that can drive up a company’s costs, and even put some out of business. They say the new rule benefits class-action lawyers more than the average American.
Acting Comptroller of the Currency, Keith Noreika, said that getting rid of mandatory arbitration may “potentially decrease the products and services offered to consumers, while increasing their costs.”
Republican lawmakers are already planning an attack.
Per Reuters, Senator Tom Cotton is “drafting a resolution to kill the rule.” Congress can undo the new regulations with majority votes in the House and Senate, along with a signature from the president.
If congressional Republicans decide to take on the new rules, their biggest challenge would be in the Senate, where they could only afford to lose two party votes, assuming all Democrats vote against the rule change and Vice President Pence supports during a tie.
The Trump administration is reportedly considering ways to challenge the rule, as is the U.S. Chamber of Commerce. Representative Jeb Hensarling, who is the Republican chair of the House Financial Services Committee, suggested that Congress use the Congressional Review Act (CRA) to reject the rule. CRAs have been used extensively over the last several months to roll back similar regulations.
Experts say the rule has about a 50 percent chance of surviving.
One reason it may be hard for Republicans to challenge the rule is that the Wells Fargo fiasco is still much on people’s minds, thanks to headlines about Wells Fargo customers being unable to sue because of these arbitration clauses. If public opinion favors the CFPBs new rule, then it’ll be harder to get 50 votes in the Senate.
Some thought the CFPB would be gone by now or at least operating on a much smaller scale. But, the Bureau that’s run by a Democrat continues to fly in the face of the Republican-controlled Congress and White House.
It’s not the time to rewrite your contracts just yet, though. This new law may never go into effect. Beyond that, Cordray will be out soon, and then Trump will be able to replace him with whoever he wants.
We’ll keep you informed of any other changes to this rule. If you have any questions in the meantime, please don’t hesitate to contact your account manager.