Interest group Cause of Action Institute has filed a complaint that asks the U.S. District Court for the District of Columbia to force the Consumer Financial Protection Bureau (CFPB) to release documents that it possesses and refuses to produce related to its 2015 arbitration study.
The CFPB’s arbitration study was conducted pursuant to the Dodd-Frank Act. Specifically, Dodd-Frank requires that the CFPB conduct a study of the use of arbitration agreements between providers and consumers authorizes the CFPB to issue regulations that “may prohibit or impose conditions or limitations on the use of” arbitration agreements, only if the CFPB finds “that such a prohibition or imposition of conditions or limitations is in the public interest and for the protection of consumers.”
In March 2015, the CFPB released a report on a study it conducted to evaluate the impact of arbitration provisions on consumers. The CFPB has relied on that study in justifying the proposals outlined in its current proposed arbitration rule that would ban the use of class action waivers in consumer finance arbitration agreements. Despite the CFPB’s reliance on that study to justify its current rulemaking efforts, the study has been widely criticized as having relied on insufficient data and ignoring certain information that would lead to conclusions not favorable to the CFPB’s current proposed rule.
Cause of Action Institute initially submitted a Freedom of Information Act (FOIA) request to the CFPB that requested all records between CFPB employees regarding the arbitration study and proposed ban. In response, the CFPB stated that it possessed more than 20,000 responsive documents, so Cause of Action Institute agreed to narrow its request.
Cause of Action Institute’s supplemental request asked for records that included the words “arbitration study” and/or “proposed ban” and any of the words “methodology,” “peer review,” “junk,” “bad science,” “flawed report,” or “massage numbers.”
In September, the CFPB stated that it had 3,554 pages of responsive records and that it would turn over 854 full pages and 832 partial pages. The CFPB withheld 1,877 pages. Cause of Action Institute appealed the CFPB’s decision to withhold documents and the CFPB denied that appeal.
The CFPB is now asking the U.S. District Court for the District of Columbia to compel the CFPB to turn over the withheld documents, arguing that the CFPB cannot rely on any exemptions to FOIA to withhold the documents.
For more information about the CFPB’s proposed arbitration rule and its controversial study see my prior post here.