The Consumer Financial Protection Bureau published its final rule regulating arbitration provisions in contracts between certain financial service providers in the core consumer financial markets of lending money, storing money and moving or exchanging money, and consumers. Specifically, the rule prohibits covered financial service providers from using an arbitration provision in a consumer agreement to bar consumers from filing or participating in class action lawsuits. The final rule further requires covered providers that are involved in arbitration to submit specified arbitral records to the CFPB. We anticipate that there will be a number of challenges to the final rule both by Congress and in the courts in the coming months.
The CFPB issued its final rule pursuant to sections 1022 and 1028 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Congress directed the agency to study pre-dispute arbitration agreements in consumer financial products and services and, in March 2015, the CFPB published a study of arbitration. Congress further authorized the bureau, upon completion of the study, to issue regulations restricting or prohibiting the use of arbitration agreements if it found that such rules would be in the public interest and for the protection of consumers. Congress required that any such rules be consistent with the CFPB’s study.
In May 2016, the CFPB published its proposed rule. Following a public comment period and review of over 110,000 comments received, the CFPB issued the final rule, which is largely unchanged from the proposed draft.
The final rule imposes two sets of requirements relating to the use of pre-dispute arbitration agreements by providers of certain consumer financial products and services in the core consumer financial markets of lending money, storing money and moving or exchanging money. First, the final rule prohibits covered financial service providers from using an arbitration agreement to block consumer class actions relating to covered products or services. Specifically, the final rule requires that covered financial service providers insert language into their arbitration provisions that explicitly notes that the financial service provider will not rely on the agreement to prevent the consumer from filing or being part of a class action lawsuit. The final rule also permits providers to include alternative language if the consumer agreement applies to multiple products or services and only some of those products or services are covered by the final rule. Second, the final rule requires that, in connection with any claim filed in arbitration by or against the provider concerning any of the covered financial products or services, a provider shall submit certain related documents to the CFPB.
The final rule becomes effective 60 days after it is published in the Federal Register, which is expected to occur in the next two weeks. The compliance date is 180 days after the rule becomes effective. So, covered providers have 240 days after publication in the Federal Register to make their consumer agreements compliant. After the compliance date, the rule will apply to new contracts, contracts that are transferred between providers and new financial products or services added to a pre-existing contract.
Anticipated Challenges to the Final Rule
The final rule will face challenges on a variety of fronts. It could be invalidated through legislation eliminating the CFPB’s authority to issue the rule.
Congress could also overturn the final rule through a resolution of disapproval under the Congressional Review Act. The CRA allows Congress with a majority vote to override an agency’s recently issued rule within 60 legislative days of being finalized. This process is not subject to the requirement that 60 votes be obtained in the Senate—a majority in both houses is all that is required, along with presidential approval. If the final rule is overturned, the CFPB would be barred from reinstating any similar rule in the future without consent of Congress. Senator Tom Cotton of Arkansas, among others, has announced that he has started the process to rescind the rule using the CRA process.
Finally, a lawsuit could be filed challenging the rule’s validity based on the CFPB’s failure to comply with Section 1028 of the Dodd-Frank Act and/or the Administrative Procedure Act. The U.S. Chamber of Commerce has indicated it is considering filing a lawsuit on this basis.
In sum, while the final rule represents a significant win for the plaintiffs’ bar, it is probable the win will be temporary as the final rule is unlikely to withstand the various legal challenges it will face in coming months. Fortunately, the eight-month compliance period allows covered companies to wait and see how the challenges to the final rule, particularly under the CRA, play out before they are required to take steps to comply.