Last week, the Senate took bold action to protect consumers and their access to affordable financial services. It joined the House in voting to overturn a regulation that would have given a windfall to trial lawyers at the expense of consumers. In a sweeping rulemaking, finalized in the summer, the Consumer Financial Protection Bureau rejected all attempts to find middle ground and in effect banned arbitration as a means of settling disputes. The bureau took that step in order to promote the use of class action lawsuits, a strategy that would have severely limited legal options for consumers, while guaranteeing huge fees for trial lawyers. Lawmakers wisely exercised their power under the Congressional Review Act to stop this giveaway to the class action trial bar.
Since the vote, we have heard a lot of myths about arbitration and its defenders, with one lawmaker attacking the human dignity of the two million women and men who work at America’s banks, saying “no organization that represents actual human beings wants the [Senate] to reverse the CFPB’s arbitration rule.” Defenders of this trial lawyer windfall tried their best to shift the debate away from the facts about how consumers fare in arbitration versus class actions. Let’s clear the smoke from the room.
The CFPB, along with lawyers for plaintiffs and their defenders in Congress falsely argued that mandatory arbitration clauses prevent citizens from having “their day in court.” But class actions are almost never decided on the merits. Rather, they are attorney fee machines, designed to win millions of dollars in legal fees while consumers get a pittance. The bureau’s own 2015 foundational study for their anti-arbitration rule showed this.
The irony is that arbitration provides vastly better outcomes for consumers. The CFPB’s study of the topic showed that in cases where arbitrators found for consumers and granted an award, the average award was $5,389. Meanwhile, in 87 percent of class action settlements the bureau studied, consumers received nothing. The 13 percent of those that resulted in settlements only got money to an estimated 4 percent of class members, and the average amount was just $32.35. But in the class actions studied, lawyer fees amounted to $424 million, or $1 million per case.
The CFPB and its allies also blithely dismissed the effects that the rule would have on the cost of consumer credit and other bank products. Costs to financial institutions to defend meritless lawsuits and pay settlements, along with multimillion-dollar legal fees, would be passed on to consumers. A study by the Office of the Comptroller of the Currency using the CFPB’s own data found that the rule would significantly increase the cost of credit.
Here’s the bottom line: The CFPB’s own study shows that consumers who prevail in arbitration win 166 times what those who prevail in class actions do. They get faster relief, in a matter of months, not years. They pay less and get more because arbitration directs relief straight to consumers, not to lawyers. Congress was wise to preserve a pro-consumer dispute resolution process. We welcome the president’s decision to sign this resolution into law.
Rob Nichols is president and CEO of the American Bankers Association.
Thomas Donohue is president and CEO of the U.S. Chamber of Commerce.