CFPB Rule Helps Consumers Join Class-Action Financial Lawsuits
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The Consumer Financial Protection Bureau finalized a new rule that could make it easier for consumers to join class-action lawsuits against banks and credit card companies for alleged wrongdoing.
The rule, which would become fully effective in about eight months, prohibits financial service companies from requiring customers to waive their rights to sue through a class-action lawsuit. Such waivers show up repeatedly in mandatory arbitration clauses that are part of tens of millions of consumer contracts.
The actual impact on consumers remains unclear, however. For one thing, Congress could revoke the regulation under the Congressional Review Act, which allows them to nullify recently enacted rules by federal agencies with simple majority votes and the president's signoff. Republicans have already voiced opposition to the new rule.
And even if it survives, the new regulation applies only to new contracts between consumers and their financial institutions. So if the contract you signed when you set up your current bank account includes a mandatory arbitration clause—and many do—your current bank can still compel you to resort to arbitration in a dispute.
"One avenue available to consumers who want to take advantage of the new rule is to open a new account after the compliance date," says Eric Goldberg, Senior Counsel for the CFPB.
But that means waiting at least eight months. The rule becomes effective 60 days after it's published in the Federal Register, which Goldberg said he expected to happen within the next two weeks. Financial companies then have an additional 180 days to get into compliance.
Dick Bove, a banking industry analyst with Rafferty Capital Markets, thinks few consumers are likely to make that move just to get those additional protections.
"If you have a relationship with a bank in which you have multiple accounts and have had good service over several years, the last thing you're thinking about is the lawsuit you're going to have with the bank in the future," Bove says.
Still, some consumer advocates think the new rule could prompt widespread change. Christine Hines, a spokeswoman for the National Association of Consumer Advocates, thinks financial institutions could end up eliminating mandatory arbitration clauses altogether because the new rule essentially defangs them.
"It is going to have a big impact," she says.
Though the banking industry has criticized the rule, consumer groups, including Consumer Reports, have long opposed forced arbitration clauses and see the rule as an important step for consumers in restoring basic rights in holding financial companies accountable for widespread wrongdoing.
Consumers always have had the right to individually sue banks, credit card companies, mobile-payment agencies, and other financial services companies. But a CFPB study found that very few have the deep pockets and time to do so, especially if the dispute is over fees and penalties that may be negligible but nevertheless are wrongly charged.
The CFPB's action today doesn't eliminate mandatory arbitration clauses, which give consumers no choice but to go through arbitration, an out-of-court settlement process. Instead, the new rule limits them significantly and makes it easier for wronged consumers to choose an alternative option for redress.
"Arbitration clauses in contracts for products like bank accounts and credit cards make it nearly impossible for people to take companies to court when things go wrong," said CFPB director Richard Cordray in a press conference. "These clauses allow companies to avoid accountability by blocking group lawsuits and forcing people to go it alone or give up. Our new rule will stop companies from sidestepping the courts and ensure that people who are harmed together can take action together."
Some financial contracts are exempt from the rule, including employee benefits contracts and contracts between consumers and the governments of states and tribal bodies.
Mandatory arbitration clauses are already disallowed in mortgage contracts signed after 2012. The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 prohibited them.
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