CFPB arbitration rule will enrich trial lawyers, not protect consumers

Today, the Consumer Financial Protection Bureau closes the comment period on its proposed rule to enrich trial lawyers at the expense of consumers.  The Bureau misleadingly styles its proposal as one to regulate arbitration agreements.  The truth is that the proposal is very intentionally designed for the singular goal of promoting class action lawsuits—the number one policy priority of the trial bar.  The Bureau’s next step will be to finalize the misguided rule and extinguish consumers’ ability to resolve simple financial services disputes outside the broken class action system. 

Some context is needed to understand the Bureau’s attempted regulatory sleight-of-hand.  The Dodd-Frank Act required the Bureau to study arbitration agreements in financial services contracts and report its findings to Congress. So why is over half of the Bureau’s “arbitration” study devoted to justifying class action lawsuits?

{mosads}Around the time the Bureau began operations, the Supreme Court issued an opinion, consistent with over 80 years of precedent, confirming the principles of the Federal Arbitration Act, upholding the legality of pre-dispute arbitration clauses, and concluding that the consumers in the case before it would do better in arbitration than in a class action.

Trial lawyers saw this ruling as a huge threat to their business model and redoubled their decades-long effort to replace arbitration with class action lawsuits. They saw opportunity in the Bureau’s nascent work on arbitration.

The Bureau tried, valiantly, to show the comparative benefits of class actions over arbitration, but the facts got in the way.  Its study ultimately concluded that in the few class actions that proceed, trial lawyers make $1 million per case, and only about 4 percent of consumers ever take the steps necessary to claim class action awards (which average about $32). 

The study also showed that almost 90 percent of cases filed as class actions result in no class recovery whatsoever, and that consumers do about 170 times better in arbitration than they do in class actions. 

In short, the Bureau’s study showed exactly what we already knew—that class actions are a broken system that primarily benefits lawyers, not consumers.

Undeterred by its own research, the Bureau put out its proposal to “regulate arbitration agreements.”  Nowhere in the hundreds of pages is there a single suggestion to change how arbitration works.  The Bureau’s singular focus is reviving class actions.

But throwing open the doors to class action lawsuits would have the practical effect of eliminating arbitration as an option for consumers because no rational company, forced by the Bureau to pay massive costs endemic in the class action litigation system, is likely also to continue to subsidize a consumer arbitration system.

And while the Bureau focuses on the supposed promise of class action lawsuits for consumers, the reality is that very few consumer claims can qualify for class treatment, because of the unique facts and circumstances of most consumer disputes. Consumers also can’t sue in court on their own: individual litigation is time-consuming and will in many cases cost more in attorneys’ fees than the amount of the consumer’s dispute. That is why consumers need user-friendly, less expensive arbitration.

The Bureau pitches its proposal as giving consumers a choice between suing and arbitration, but in reality, the Bureau’s class action proposal would leave consumers with no economically sensible outlet for relief—no arbitration, no class action, and no economically viable individual litigation.  Congress, which required the Bureau to conduct the study and gave it some rulemaking authority, should be alarmed by this regulatory bait-and-switch.

By using slogans rather than substance, the Bureau has attempted to muddy the debate waters and obscure its regulatory overreach.  For example, the Bureau frequently supports its effort to expand class actions by saying consumers need their “day in court.”  Unfortunately for the Bureau, facts are sticky things: the Bureau’s own arbitration study showed that zero of the class actions it studied went to trial. What day in court is the Bureau talking about?  This is all about the trial lawyers’ ability to coerce settlements with large attorneys’ fees, and nothing about class actions decided on their underlying merits.

The Bureau also repeats, as if true, that more class actions would yield a greater deterrent effect in the market, but ignores the deterrence resulting from its own supervisory and enforcement programs.  These specious one-liners, unsupported by any data, simply aren’t convincing. 

Details aside, the story here is pretty straightforward.  In the final analysis, the Bureau will choose either to protect consumers by preserving the availability of arbitration or to enrich trial lawyers.

The Consumer Financial Protection Bureau should live up to its name and not finalize a rule that pads the wallets of rich trial lawyers at consumers’ expense. 

David Hirschmann is President and CEO of the U.S. Chamber of Commerce’s Center for Capital Markets Competitiveness and Lisa A. Rickard is President of the U.S. Chamber Institute for Legal Reform

The views expressed by authors are their own and not the views of The Hill.


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