Who Benefits From The Arbitration Rule, And Who Wants It Repealed?

The debate over the Consumer Financial Protection Bureau’s newly-issued arbitration rule is frequently billed as a fight for consumer advocacy or against byzantine bureaucracy. But behind each side of the argument, groups with vested interests have spent millions on lobbying related to the regulation or on bankrolling the campaigns of those with the power to kill it.

On Monday, the CFPB announced its new rule banning fine-print contractual clauses that bar buyers of financial products from filing class-action lawsuits, instead requiring them to use arbitration after they sign up for new bank accounts and credit cards.

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Days earlier, Rep. Jeb Hensarling (R-Tex.), the chair of the House Financial Services Committee, reportedly lobbed another in a series of threats to hold CFPB Director Richard Cordray in contempt, this time for the bureau's intent to implement the rule without responding to a committee subpoena of documents related to the regulation. Regardless of Hensarling's move, the rule may not be around for long. By Tuesday morning, Sen. Tom Cotton (R-Ark.) triggered a process for its repeal via the Congressional Review Act, which allows the House and Senate to, with the president's signature, jointly throw out any regulation within 60 days of its implementation and prohibit its renewal by a simple majority vote.

In adopting the new regulation, the CFPB followed the example of the self-regulatory Wall Street organization known as the Financial Industry Regulatory Authority, or FINRA, which has long banned brokerages from including arbitration clauses in their contracts with investors. Late in 2015, the CFPB began to consider following suit with a proposal to apply the same protections to consumers taking out loans and credit cards. Earlier that year, it commissioned a report on the outcomes of both arbitrations and class action suits when companies selling financial products are accused of wronging their customers.

Proponents of arbitration clauses often point to that same report as an argument for keeping arbitration in place, calculating that the average payment to the 15 percent of consumers who won payments in settlements, per the CFPB report, received an average of $32.35 and waited as long as two years for the process to wrap up. Consumers engaging in arbitration, they contend, receive thousands more. Attorneys for participants in class actions, they note, can make much, much more.

“In the class-action scheme, the consumers are just an afterthought. The trial lawyers are trying to get as much as they can,” said Joseph Rubin, senior counsel at the law firm Arnall Golden Gregory LLP, who specializes in public policy. “Maybe I’m biased, but I do think it is cynical and self-serving on the part of the class-action attorneys to claim that this is a consumer issue.”

Outside of the courtroom, those attorneys — or, at least, a trade group representing them in Washington — certainly have skin in the game.

The American Association for Justice, a trial lawyer trade group, spent millions of dollars both directly and through other lobbying firms on efforts to sway lawmaking related in part to the CFPB rule on arbitration over the past several years. In the last three months of 2016, for example, it spent $1.15 million on direct efforts that included “lobbying with regard to the Consumer Financial Protection Bureau rulemaking on forced arbitration,” according to a federal lobbying form. For the third quarter of 2016, that same text was listed on another federal lobbying form documenting $1.75 million in expenditures by the group. Through the lobbyist NVG LLC, the association spent $60,000 in part on “CFPB arbitration rulemaking” in the fourth quarter of last year, through the firm Forscey PLLC, it spent $50,000 in part on “work to establish Federal limits on pre-dispute arbitration agreements ” over the same period.

The attorney group also gave more than $1.82 million in campaign funding to Democrats, compared to $67,500 it allotted for Republicans, during the 2016 campaign cycle, according to OpenSecrets.

Class-action lawyers aside, Rubin noted, the clauses prevent one party from choosing the avenue of litigation after the problem has arisen — potentially handing one side of the dispute an advantage. And while arbitration is often disparaged for keeping dispute resolutions quiet, he said, class-action settlements can end with the same level of secrecy. And the element of public shaming that often comes with a widely-publicized class-action suit isn’t necessarily the only reason for a company to change its practices.

“A business is going to decide to change its practices and products based on any number of reasons,” Rubin said. He added that consumers were “free to shop around” if they wanted to find products without contracts forcing them into arbitration if they felt they’d been wronged.

Critics of arbitration clauses, like Consumer Watchdog Executive Director Carmen Balber, however, note than the relatively small number of arbitration cases, let alone those that result in victories for consumers, makes looking at both means of dispute resolution akin to “an apples to oranges comparison,” as many potential class members would be too intimidated to go against a company on their own. The publicity of a class-action case, Balber added, can also be a catalyst of company-wide change.

“I don’t think you need to look any further than the Wells Fargo scandal,” she said, referring to the multiple investigations, lawsuits and fines related to the bank’s practice of opening false accounts and charging customers with the associated fees. As recently as Sunday, a California judge approved Wells Fargo’s agreement to pay $142 million to a class of customers whose credit scores were damaged by those fake accounts. The public shaming element, Balber said, was “always a factor” in these disputes, as often “with arbitration, even after the decision is reached, even when the company is found behind closed doors to be at fault, nothing changes.”

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Wells Fargo isn’t among the firms that have lobbied on the issue of arbitration at the federal level, according to the Senate's lobbying database. But the U.S. Chamber of Commerce, business-focused lobbying group that doesn’t disclose its membership, spent $17.15 million on lobbying at least in part on the CFPB arbitration regulation in the first quarter of 2017, lobbying files show. In the final quarter of last year, it spent $18.59 million on lobbying efforts that involved the rule.

Citigroup — which, like Wells Fargo and other megabanks like JPMorgan Chase, Bank of America and Goldman Sachs, is under CFPB supervision and would therefore be subject to the arbitration rule — spent $1.28 million in the first quarter of 2017 on lobbying efforts that included a meeting “with [the] House on arbitration.” The credit card issuer American Express, which is also under CFPB supervision, spent $400,000 in the first three months of this year on lobbying efforts involving “arbitration… related to the Consumer Financial Protection Bureau,” lobbying forms show.

Hensarling, who received tens of thousands of dollars in campaign funding from Wells Fargo, Goldman Sachs, JPMorgan Chase, Bank of America and other financial institutions, said in a statement that “the bureaucratic rule will harm American consumers but thrill class action attorneys.” Calling the regulation “anti-consumer,” he urged Congress to “thoroughly” repeal it using the Congressional Review Act.

Meanwhile, Balber, of Consumer Watchdog, made clear who’d be thrilled in the event that Congress repealed the rule.

“It’s no question,” she said, “that the banks’ application of their extreme arbitration rules have protected them from accountability for many, many years.”