by Andy Pincus
Partner, Mayer Brown LLP, Washington, DC
At a Denver field hearing today, the Consumer Financial Protection Bureau will unveil its long-planned proposal to ban the use of arbitration to resolve consumer disputes. In taking this step, the Bureau once again departs from its consumer-protection mission and embraces a very different role—as the “Plaintiffs’ Lawyer Protection Bureau.”
The Bureau will claim that its decision is the product of a comprehensive multi-year study containing the most “empirical” information ever gathered. It will claim to maintain an “open mind” on the issue when it announces its intent to pursue banning arbitration, and likely take pains to say it is banning only “predispute” arbitration. All the while, its Denver “field hearing” will be stocked with consumer representatives criticizing arbitration, with token business representation to give the appearance of balance. The Bureau will conclude this latest show hearing with the promise to weigh carefully the comments received in the small-business review and rulemaking proceedings.
But don’t be fooled. The CFPB’s priority isn’t America’s consumers, but America’s plaintiffs’ lawyers.
Depriving consumers of a low-cost, easy-to-use dispute resolution system that can be accessed without lawyers is the class action lawyers’ publicly stated top priority. After all, without arbitration consumers are forced into the expensive, complex judicial system—where costly legal representation is necessary.
And the Bureau is rushing to do their bidding: ignoring requests from Congress and others to seek public input, and gerrymandering the study topics to reach its preferred result. As one academic analysis of the CFPB study by George Mason University concluded:
“The CFPB’s Report . . . provides no foundation for imposing new restrictions or prohibitions on mandatory arbitration clauses in consumer contracts . . . CFPB’s data does not allow for meaningful comparison between arbitration and class actions . . . [and] sheds no light on what is perhaps the key public policy question: whether class action settlements often represent a deal struck by defendants to avoid massive discovery costs threatened in lawsuits of questionable substantive merit . . .”
More than eighty Members of the House and Senate signed a letter stating: “[T]he process that led to the Bureau’s Arbitration Study has not been fair, transparent, or comprehensive” and that the CFPB “ignored requests from senior Members of Congress for basic information about the study preparation process” resulting in a “fatally flawed study” that “failed to provide even the most basic of comparisons needed to evaluate the use of arbitration agreements.”
Simply put: arbitration empowers consumers and hurts plaintiffs’ lawyers.
Consumers’ disputes are typically small and individualized. Before arbitration, those claims went unremedied because they could not attract a lawyer. Justice Breyer explained that without arbitration, “the typical consumer who has only a small damages claim (who seeks, say, the value of only a defective refrigerator or television set)” would be left “without any remedy but a court remedy, the costs and delays of which could eat up the value of an eventual small recovery.”
Arbitration allows consumers to pursue justice for these wrongs. The typical arbitration agreement requires the business to pay the costs of arbitrating small claims (under $75,000), and permits the consumer to make his case online or in a telephone hearing—without complying with the burdensome technical rules of proceeding in court.
Kaiser Health plan’s seven million members use arbitration. A 2014 review of its system found that 90 percent of the claimants and their attorneys participating in the system found that it is as good as or better than court.
Arbitration opponents claim that decision makers are biased and that businesses prevail more frequently than they do in court. That is false. Studies consistently show that consumers and employees do at least as well, and usually better, than they do in court.
As they have throughout this process, the CFPB will ignore all this. They’ll rely instead on three claims to justify their proposal:
First, they’ll say they aren’t banning arbitration. They’re just requiring that class actions be available. But no company is going to take on the extra costs of an arbitration system while also facing the huge costs associated with class action lawsuits. In the real world, the Bureau’s proposal will eliminate arbitration.
The Bureau’s priorities are clear: it is willing to sacrifice consumers’ ability to obtain justice on their individual claims—available only through arbitration—so that plaintiffs’ lawyers can obtain their huge legal fees by bringing class actions.
Second, class actions are essential to protect consumers, they’ll claim. The sad reality is that class actions are essential only to plaintiffs’ lawyers, providing little benefit to consumers. In fact, the Bureau’s own study showed that 87 percent of the class actions examined resulted in no consumer benefit. The 12 percent that were settled provided benefits on average to only four percent of consumers.
Using the Bureau’s own numbers, the 251 settlements examined had at least 34 million class members and a total of $1.1 billion in payments. That is an average settlement payment of no more than $32.35 per person. What did the plaintiffs’ lawyers average? $1 million. No wonder these lawyers are so eager to be able to bring class actions.
The notion that class actions are necessary to protect consumers ignores the CFPB’s own enforcement responsibilities; surely the CFPB’s $600 million-plus budget—and its very broad enforcement and supervisory powers—contribute something to consumer protection? Moreover, Justices Kagan, Breyer and Ginsburg observed in the American Express v. Italian Colors Restaurant case that consumers can vindicate their rights without class actions by enabling consumers to “share, shift or reduce” litigation costs. That is exactly what many arbitration contracts do.
AT&T’s arbitration agreement, for example, gives successful consumers more than they could obtain in court — a minimum recovery of $10,000 and double attorneys' fees — as an incentive to pursue meritorious claims. Federal judges found that consumers were better off under their arbitration agreement with AT&T than they would have been as participants in a class action, which “could take months, if not years, and which may merely yield an opportunity to submit a claim for recovery of a small percentage of a few dollars.” And that consumers were “essentially guarantee[d]” to be made whole.”
But the Bureau entirely ignores that approach, preferring to give class-action lawyers the fee bonanza they seek. That is so even though the Bureau acknowledges that “class lawsuits have been subject to significant criticism that regards them as an imperfect tool that can be expensive and cumbersome for all parties.” But the Bureau goes on to demonstrate a shocking indifference to reality, “not[ing] that Congress, state legislatures, and the courts have mechanisms for managing and improving class procedures over time.” That is an unrealistically optimistic approach to class actions, which—according to the Bureau’s own study—fail to deliver benefits to 96 percent of consumers.
Director Cordray’s “Maria and Kate” story is thus a fiction in every respect. If consumers were being injured by illegality on such a broad scale shouldn’t the Bureau intervene rather than leaving consumers’ fate to plaintiffs’ lawyers? What he ignores is that Maria, Kate, and thousands of other customers might have individual disputes that could be redressed only through arbitration. In Director Cordray’s world, consumers would be left with no way to right those wrongs—because protecting trial lawyers is a higher priority than protecting consumers.
There is much more evidence than space here that demonstrates the benefits of arbitration, and the flaws in the Bureau’s study. Sadly, the full arbitration facts will never make it into the CFPB’s regulation.
What’s more, this is not the first time that the Bureau has slipped into the “Plaintiffs’ Lawyer Protection Bureau” role. It has ignored requests to investigate the shocking practice of unfair, high-interest rate loans to consumers to finance lawsuits. And it has included in its public “complaint database” information that it acknowledges to be misleading to the public—apparently because the information might be useful in providing “leads” to plaintiffs’ lawyers.
At its Mile High field hearing today, the Bureau will dress its attack on arbitration in pro-consumer garb. But look beneath the surface. Because the plaintiffs’ lawyers are the real beneficiaries and consumers the victims.
Andy Pincus is a partner at Mayer Brown LLP in Washington, D.C.