One of the noteworthy quotes from those old Bugs Bunny cartoons that involved Marvin the Martian included the phrase, “Well, back to the old drawing board.”
That phrase also summarized the sentiment the American Bankers Association, the Consumer Bankers Association and the Financial Services Roundtable emphasized when they crafted and submitted a 42-page rebuttal for the Consumer Financial Protection Bureau regarding its proposal associated with arbitration.
Back in May, the CFPB released its proposed rules that would prohibit mandatory arbitration clauses that the bureau said denies groups of consumers “their day in court.” Compliance experts from ABA, CBA and the Financial Services Roundtable retorted that “day in court” doesn’t provide the remedies CFPB officials claim.
“The proposed rule does not benefit society or consumers,” the groups said in the letter that’s available here. “Both lose because, as taxpayers, consumers will have to pay for additional resources needed by courts to accommodate the permanent influx of 6,042 additional class actions every five years. They lose because the cost of defending and settling cases — estimated to be between $2.62 billion and $5.23 billion every five years (100 additional lawsuits each month) — will be passed along to consumers in whole or in part in the form of higher prices or reduced services.
“Finally, they lose because, in exchange for waiting years to recover an average of $32.35, they lose all of the benefits of arbitration — benefits that the bureau itself touts to its own employees and expressly acknowledges in the proposed rule,” the groups continued.
“These unrecognized social costs do not serve the public interest or protect consumers. It is not in the public interest to have a judicial system that is overburdened with unproductive class actions that return little or nothing to consumers but generate billions of dollars for their lawyers,” they went on to say.
The rebuttal was signed by:
—Nessa Feddis, vice president and senior counsel at the ABA’s Center for Regulatory Compliance
—Steven Zeisel, the CBA’s executive vice president and general counsel
—Richard Foster, senior vice president & senior counsel for regulatory and legal affairs at the Financial Services Roundtable
This trio stressed consumers are not protected if they pay more for financial services and lose the convenience, low cost and efficiency of arbitration, especially for “non-classable” claims that class actions cannot address.
“Moreover, banning class action waivers is not necessary to address concerns related to resolving small dollar claims and harms about which people will be unaware. Nor is it necessary to regulate or modify corporate behavior,” they wrote.
“These matters are addressed through a variety of other means, including internal corporate compliant processes, the complaint portals of the bureau and other government agencies, public opinion and social media, and through the tools for remedial action available to dozens of government agencies, including the Bureau, which have aggressively used their enforcement authority,” they added.
Feddis, Zeisel and Foster made one other point, stating that the CFPB failed to consider alternatives, as the Dodd-Frank Act requires, that would address the need for a ban of class action waivers.
“The bureau should, for example, allow the enforcement of class action waivers for matters that the entity has identified and resolved prior to a class action being filed. It should also allow enforcement of class action waivers where consumer protection statutes provide greater relief for plaintiffs who pursue individual actions rather than class actions,” they said.
The groups made a wide array of arguments as to why arbitration is much more efficient for both consumers and financial services providers.
“The proposed rule should not be made final because it is not in the public interest, it does not and is not needed to protect consumers, and it is not consistent with the (CFPB’s study), all of which are prerequisites for adopting such a rule,” they said. “Nor did the bureau, as required, consider alternatives such as allowing enforcement of class action waivers for matters that the entity has identified and resolved prior to a class action being filed.
“Moreover, numerous important issues — including consumer satisfaction with arbitration, the impact on consumers if companies abandon arbitration, the cost to consumers of 6,042 additional class actions, alternative arbitration terms and the impact of arbitration education — have yet to be studied,” they went on to say.