Contract term public registry is ‘unjustified attack’ on arbitration

CUNA and other organizations wrote in opposition to the Consumer Financial Protection Bureau’s (CFPB) recent proposal to create a public registry of companies that use certain contract terms and agreements, most significantly, arbitration agreements.

The core of this Proposed Rule is a wholly impermissible and unjustified attack on arbitration agreements that violates the Dodd-Frank Act and the Congressional Review Act (CRA), as well as the protections for arbitration agreements that Congress put in place when it enacted the Federal Arbitration Act (FAA),” the letter reads.

“The Proposed Rule would brand companies as ‘risky’ to consumers merely for exercising their federally protected right to use arbitration, or otherwise engaging in fully lawful and appropriate conduct—making those companies a special focus of the Bureau’s supervisory and enforcement activities just because they use arbitration to resolve consumer disputes. The Bureau’s proposal offers no basis for that conclusion, and there is none It follows with six “overarching reasons” why the CFPB should not promulgate the proposed rule,” it adds.  

The letter highlights six “overarching reasons” the CFPB should not promulgate the rule:

• The CFPB lacks legal authority to impose such burdens on the use of arbitration agreements, as a CUNA-supported Congressional Review Act resolution disapproved the CFPB’s prior attempt to limit the use of arbitration.
• The proposal’s targeting of arbitration is “arbitrary, capricious, and irrational,” based on the false premises that arbitration is risky for consumers and its use makes companies more likely to violate federal consumer protection laws.
• The CFPB has not offered justification for regulating the non-arbitration contractual terms that it is targeting, instead acknowledging the only data supporting the proposal involves arbitration.
• The CFPB’s cost-benefit analysis is “woefully inadequate,” including ignoring the most serious costs associated with the proposal.
• The CFPB should not promulgate such a burdensome rule while the U.S. Supreme Court is deciding on the constitutionality of the CFPB’s structure.
• Should the CFPB promulgate the rule, it should narrow it significantly and limit it to contract terms on which there is “overwhelming consensus of their unlawfulness.”

CUNA filed an additional comment letter with the CFPB on the proposal, calling for the CFPB to expressly exempt affiliates of insured credit unions from being subject to the registry, as many of those affiliates are already subject to the CFPBs robust supervision and examination program.