The Last-Ditch (and Doomed) Effort to Save the CFPB Arbitration Rule
Veterans groups are urging Trump to veto a bill that would wipe out the Consumer Financial Protection Bureau's arbitration rule. Think of it as the lobbying equivalent of the Charge of the Light Brigade: a doomed but valiant effort.
October 31, 2017 at 09:31 PM
5 minute read
Consumer Financial Protection Bureau building in Washington, D.C. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.
Think of it as the lobbying equivalent of the Charge of the Light Brigade: a doomed but valiant effort by veterans groups to save the Consumer Financial Protection Bureau's arbitration rule.
At present, it's hanging by the slimmest of threads. First the House, and last week the Senate voted to repeal the rule, which bans the use of forced arbitration clauses to shield financial services providers from class actions.
All that's left is for President Donald Trump to sign the legislation.
Is there any reason to think he won't, especially after Vice President Pence supplied the tie-breaking vote in the Senate?
No, there is not.
Nonetheless, veterans groups are urging Trump to veto it, trying to make preserving the rule all about supporting our troops. Because c'mon, who doesn't want to support our troops?
“It's an easy decision for the president to make, to side with our veterans, to side with our troops, to side with the men and women who fought and bled to defend their right to have a fair day in court,” said Will Attig, executive director of the AFL-CIO's Union Veterans Council, in a conference call with reporters on Tuesday.
So, um, I doubt that the right to bring class actions against banks is foremost in most soldiers' minds as they go into battle, but you get the idea. And the fact is, servicemen and women do often get taken advantage by financial service providers.
As Sen. Tammy Duckworth, D-Illinois, a retired U.S. Army lieutenant colonel who lost her legs in Iraq, noted on the press call, enlisted men and women are appealing targets for lenders because they have guaranteed paychecks. At the same time, they have “very limited time to read their credit card statements,” for example, especially if they're deployed overseas. That makes them extra-vulnerable.
“President Trump frequently talks about his commitment to veterans and service members,” she said. “Mr. Trump, veto this bad bill and show them that this nation's leadership has their back.”
Jeff Steele, legislative assistant director and grassroots coordinator of the American Legion, added, “We will not be silenced while banks and payday lenders rip off service members.”
The argument is a bit disingenuous, since service members actually have more consumer protection rights than regular people. The Military Lending Act, for example, already bans mandatory arbitration of certain disputes, and the Servicemembers Civil Relief Act provides other legal protection.
However, the laws don't apply in cases like that of Army National Guard Sgt. Charles Beard, who tried to file a federal class action against Santander Consumer USA and Triad Financial Corp. (represented by Reed Smith) for illegally repossessing his Kia Sportage while he was deployed in Iraq.
U.S. Magistrate Judge Barbara McAuliffe in the Eastern District of California ruled in 2012 that Beard was bound to arbitrate his dispute. “Beard cannot and does not point to any section or subsection within [the Servicemembers Civil Relief Act] which precludes an arbitration agreement,” she wrote. “Arbitration agreements are valid unless Congress evinces a contrary intent in the text, history, or purpose of the statute.”
Beard later told The New York Times, “I tried to fight for everybody, but it only ended up with me.”
And that's likely to be the story for us all. Even waving the flag and playing “Taps” around the CFPB rule won't save it now.
The service member groups vowed to continue the fight in Congress, even if Trump signs the bill. “We're not going to stand down on this,” Steele said.
Except really, what's the point, at least for the foreseeable future?
Republicans control Congress and the White House, and Trump will get to appoint Richard Cordray's successor at the CFPB to a five-year term in July.
It feels like the chance to rewrite the arbitration landscape has passed.
I remember in March 2015, when the CFPB released its massive study slamming mandatory arbitration.
It seemed like the dawn of a new era. “It's been incredibly depressing to be a consumer protection lawyer for years,” Paul Bland of Public Justice said at the time. “This study changes everything … It's an exciting, incredibly cool day.”
Bad news. We're back to square one. And it is once again incredibly depressing to be a consumer protection lawyer. Or for that matter a consumer who wants to be part of a class action complaint.
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