CFPB Final Rule Prohibiting Class Action Waivers in Arbitration Clauses

On July 10, 2017, the Consumer Financial Protection Bureau (CFPB) issued a final rule prohibiting class action waivers in predispute arbitration clauses contained in covered consumer financial services agreements.

The four primary provisions of the final rule are as follows:

Under the final rule, a “predispute arbitration agreement” is defined as: “an agreement between a covered person . . . and a consumer providing for arbitration of any future dispute concerning a consumer financial product or service described below.

1. The prohibition on class action waivers would apply to arbitration agreements with respect to:
   1. Most types of consumer “credit” governed by the Equal Credit Opportunity Act and Regulation B, including but not limited to consumer credit cards, lines of credit, small-dollar or payday loans, private student loans and certain auto loans;
   2. Checking and other deposit and share accounts subject to the Truth in Savings Act (TISA);
   3. Certain auto leases;
   4. Consumer debt relief services for all types of consumer debts (whether arising from secured or unsecured consumer credit transactions, or consumer debts that do not arise from credit transactions – such as medical or tax debts);
   5. Providing consumers with consumer reports and information specific to a consumer from consumer reports (such as by providing credit scores and credit monitoring);
   6. Remittance transfers subject to the Electronic Funds Transfer Act (EFTA);
   7. Transmitting or exchanging funds, including receiving currency, monetary value, or payment instruments from a consumer for purposes of exchanging or transmitting by any means, including, among other things, wire, facsimile, electronic transfer, the Internet, or through bill payment services or business that facilitate third-party transfers;
   8. Payment processing activities that involve accepting financial or banking data directly from the consumer for initiating a payment, credit card, or charge card transaction;
   9. Consumer check cashing, check guaranty, and check collection services; and
   10. Debt collection activities related to the types of consumer financial transactions listed above.  See Section 1040.3(a).
2. The rule also requires covered providers to include a specified plain-language provision in their arbitration agreements disclaiming the agreement’s applicability to class actions.

The CFPB’s final rule may be viewed at:  http://files.consumerfinance.gov/f/documents/201707_cfpb_Arbitration-Agreements-Rule.pdf

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