U.S. House votes to roll back CFPB rule on mandatory arbitration

WASHINGTON – The U.S. House of Representatives voted Tuesday to repeal a new government rule that gives consumers the right to join in class-action lawsuits against financial, lending and other institutions with whom they had grievances.

The rule, formally announced last week by the Consumer Financial Protection Bureau (CFPB), prohibits businesses from forcing customers to resolve banking, credit card, lending and other problems by submitting to decisions of company-picked, company-paid arbitrators. The new rule instead allows consumers to choose between arbitration, individual legal actions or class-action lawsuits.

Republican leaders lost little time in upending the rule in a 231-190 near party-line vote in which Minnesota's three Republican representatives voted to let financial services companies make mandatory grievance arbitration a condition for getting credit cards, checking accounts, mortgage loans and other products. The state's five Democratic representatives voted no.

Republicans argued that data showed that class-action suits reward lawyers more than consumers. In a news release announcing their intention to kill the rule, Republicans on the House Financial Services Committee, including Rep. Tom Emmer of Minnesota, said the ability of customers to file class-action lawsuits would cause companies to drop arbitration clauses from service agreements. Otherwise, businesses would have to "absorb both the additional costs of arbitration and the huge litigation costs of class actions, forcing companies to decline to take on the optional cost [arbitration] and relegate all disputes to the judicial system."

"Arbitration saves money for consumers," Emmer said in an interview Tuesday. "It takes less time. Arbitration is inexpensive and a good way for people who can't afford and don't have the time to get into the justice system."

The issue "is all about choice," Lisa Gilbert, vice president of legislative affairs for the consumer group Public Citizen, said, not forcing anyone to give up rights.

Making customers waive their right to pursue class-action suits and compelling them to arbitrate disagreements in order to get credit cards or mortgages forces consumers into "kangaroo court," Gilbert added.

Mandatory arbitration takes place in closed hearings. Judgments cannot be appealed. Results are usually kept secret.

If the House-passed resolution clears the Republican-controlled Senate and President Donald Trump signs it, mandatory arbitration will be allowed and class-action suits will be outlawed in tens of millions of credit card, banking, lending, housing and other agreements.

Tuesday's vote was the 15th time since Trump took office that Congressional Republicans have used a fast-track resolution called the Congressional Review Act (CRA) to try to permanently undo administrative rules already approved through the federal rule-making process.

The CRA lets Congress kill a rule within 60 days of its publication in the Federal Register and bans substantially similar rules without new rule-making authority from Congress.

In advocating for the rule, Democratic Rep. Keith Ellison of Minnesota said that the "foundation of American justice" is the ability to sue if you get "ripped off."

Following the vote, Minnesota Attorney General Lori Swanson, a Democrat, said it was "wrong for banks and credit card companies to force individuals into arbitration and equally wrong for Congress to enable the industry to do so."

With scandals like Wells Fargo's creation of millions of fake accounts fresh in people's minds, opponents of mandatory arbitration said the Senate might not be so gung-ho to go along with the House in rolling back the CFPB rule.

In March, Wells Fargo agreed to pay victims of the fake account scam $110 million in a class action settlement.

"The two sides disputed the applicability of the arbitration agreement contained in Wells Fargo's deposit agreements," the company said in a news release. "In order to move forward and avoid continued litigation, Wells Fargo agreed to this settlement notwithstanding the arbitration clause."

Wells Fargo's initial attempts to use mandatory arbitration to avoid customer accountability "is a really clear example that everyone understands," said Lauren Saunders of the National Consumer Law Center.

In a statement to the Star Tribune, Democratic Sen. Al Franken of Minnesota, a longtime opponent of mandatory arbitration, said he would be "pushing back against Republican efforts to dismantle critical consumer protections like this one."

A spokeswoman said Democratic Sen. Amy Klobuchar "opposes attempts to overturn the arbitration rule, which ensures that they have more than one tool at their disposal to resolve disputes."

Jim Spencer • 202-662-7432