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Petition reignites debate over CFPB ‘forced arbitration’ rulemaking

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Inside the Beltway
Wednesday, November 22, 2023

Since Congress in 2017 voted to disapprove the Consumer Financial Protection Bureau’s (CFPB) rule to prohibit mandatory arbitration agreements in financial contracts via the Congressional Review Act (CRA) by a slim 51-50 margin, with a tie-breaking vote by then-Vice President Mike Pence, consumer advocates have continued to contest the decision.

The National Association of Consumer Advocates (NACA) submitted a September petition urging the CFPB to take up new rulemaking to ban mandatory pre-dispute arbitration, also known as “forced arbitration.”

“The use of pre-dispute arbitration requirements in contracts represents a ‘whole-scale privatization of the justice system,’ and creates a severe power imbalance of one side over another in the resolution of legal claims,” the NACA wrote in its petition. “Consumers’ interests are protected by competitive markets where they can make informed and meaningful choices about the products they use and the terms of service they are bound to, but the evidence shows that consumers are not aware of—and are not meaningfully consenting to—forced arbitration provisions. These provisions block consumers from making informed decisions about dispute resolution at the appropriate time—that is, after a dispute arises.”

The petition was met with a favorable response from CFPB Director Rohit Chopra in a November statement addressing the more than 100 consumer advocacy groups represented by the NACA.

“Forced arbitration is systematically biased against consumers. In such an unfair playing field, with no transparency and no ability to appeal decisions, financial services providers overwhelmingly prevail against consumers,” Chopra said. “The United States Constitution gives people the right to a jury trial. And yet, a recently released study from the University of Michigan’s law and psychology lab re-affirmed what the bureau found in 2015: 99 percent of consumers trapped by the fine print of forced arbitration clauses have no awareness or understanding of the fundamental rights they have unknowingly given up. Compounding this, women, Black, and indigenous people of color (BIPOC) are more likely than white men to be forced into arbitration, exposing these populations to further inequities within a forced arbitration system that already disproportionately impacts BIPOC, low-income or female consumers.”   

Several organizations representing banks, credit unions and other financial services providers voiced opposition to the petition.

“Relying on the protections that Congress put in place when it enacted the Federal Arbitration Act (FAA), numerous businesses, including many companies that provide financial products or services, have for decades resolved consumer disputes by arbitration rather than through costly and burdensome litigation in our overburdened court system,” the trade groups wrote in a letter to the bureau. “Arbitration reduces transaction costs and enables fair, speedy, and efficient dispute resolution, thereby providing significant advantages to consumers, businesses, and the public at large. Petitioners offer no valid basis for depriving the public of these advantages, and there is none.”

Many of the arguments given for and against forced arbitration clauses reflect those presented at the time the CFPB’s original arbitration rule was voted down.

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