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GOP turns to Congressional Review Act for killing arbitration rule

Joe Mont | July 12, 2017

Within hours of the Consumer Financial Protection Bureau announcing a new rule limiting the use of arbitration agreements, moves are afoot to kill it.

Many consumer financial products like credit cards and bank accounts have arbitration clauses in their contracts that prevent consumers from filing class-action lawsuits and require the use of arbitration.

Mandatory arbitration clauses typically state that either the company or the consumer can require that disputes between them be resolved by privately appointed individuals (arbitrators) except for individual cases brought in small claims court. While these clauses can block any lawsuit, companies almost exclusively use them to block class action lawsuits.

The CFPB rule would ban contractual language that prohibits consumer lawsuits and demands arbitration to resolve any disputes.

The Dodd-Frank Act required the Bureau to study the use of mandatory arbitration clauses in consumer financial markets. The new rule’s effective date is 60 days following publication in the Federal Register and applies to contracts entered into more than 180 days after that.

Wasting no time, Republicans in Congress, already in a battle to reshape the Bureau, are strategizing ways to rescind the new rule.

“The CFPB has gone rogue again, abusing its power in a particularly harmful way,” Sen. Tom Cotton (R-Ark.) said in a statement following the July 11 announcement of the rule. “The Bureau's new rule on arbitration clauses ignores the consumer benefits of arbitration and treats [citizens] like helpless children, incapable of making business decisions in their own best interests.”

Cotton said he has “started the process of rescinding this rule using the Congressional Review Act.” legislators an opportunity to pass a resolution of disapproval to halt the regulation.

To improve regulatory cost accountability, in 1996 Congress passed the CRA. It provides a 60-day period following agency publication of a regulation during which an expedited Senate or bicameral vote can halt implementation. If a rule is disapproved after going into effect, it is treated as though it had never taken effect.

Congress, for example, recently used the once largely unused law to rescind the Securities and Exchange Commission’s rule requiring oil, gas, and mining companies to disclose payments made to governments for extraction rights.

“The last thing Americans need is more anti-business regulation that will prompt frivolous lawsuits while hurting consumers,” Cotton said

Meanwhile, House Small Business Committee Chairman Steve Chabot (R-Ohio) has delivered a letter to CFPB Director Richard Cordray requesting a briefing on the Bureu’s recent rulemaking actions.

“Small business owners frequently raise concerns to the Committee about the challenges of access to capital and how it prohibits job creation and business expansion,” Chabot wrote. “As Congress looks for ways to create an environment for small businesses to flourish, the Committee is wary of increased reporting requirements and onerous regulations, which acutely impact small businesses.”

In light of concerns that CFPB’s actions may be harming small businesses, the Committee is seeking details about CFPB’s request for information regarding Section 1071 of the Dodd-Frank Act as well as the manner in which CFPB conducted certain Small Business Regulatory Enforcement Fairness Act panels.

Section 1071 expanded the Equal Credit Opportunity Act, giving the CFPB authority to collect data from small business lenders.