I. INTRODUCTION
The Consumer Financial Protection Bureau (CFPB) has issued a final rule to regulate pre-dispute arbitration agreements in contracts for specified consumer financial products and services. The final rule does not bar arbitration clauses outright, but it essentially bars the reason most companies include them, which is to avoid class action lawsuits. The final rule is effective on September 18, 2017, with a mandatory compliance date of March 19, 2018. The final rule applies to pre-dispute arbitration agreements for covered products or services entered into on or after March 19, 2018.
II. PROVIDERS
The final rule applies to “providers” of covered consumer financial products and services. The term “provider” is defined to mean either of the following:
The following are excluded from coverage and are not “providers” under the Arbitration Agreements Rule:
III. COVERED CONSUMER FINANCIAL PRODUCTS AND SERVICES
A provider is only required to comply with the final rule for products and services that are covered consumer financial products and services under the final rule. For example, a provider under the first prong of the definition of “provider” must comply with the final rule only for covered consumer financial products and services. A provider under the second prong of the definition of “provider” must comply with the final rule only when it is acting as a service provider with regard to a covered consumer financial product or service.
In order for a product or service to be a covered consumer financial product or service under the final rule, it must be both of the following:
IV. PRE-DISPUTE ARBITRATION AGREEMENTS
The final rule contains requirements that apply with regard to a provider’s use of a “pre-dispute arbitration agreement” that is entered into on or after the mandatory compliance date (March 19, 2018). The final rule defines “pre-dispute arbitration agreement” to mean an agreement that is:
Under the final rule’s definition, a pre-dispute arbitration agreement may be between a consumer and a covered person, who may or may not be a provider under the final rule. Although the final rule’s requirements do not apply to a covered person that is not also a provider, the requirements may apply to a provider who later relies on or enters into a pre-dispute arbitration agreement that was initially between a consumer and a covered person, other than the provider.
The form or structure of the agreement is not determinative. An agreement can be a pre-dispute arbitration agreement under the final rule regardless of whether it is a standalone agreement, an agreement or provision that is incorporated into, annexed to, or otherwise made a part of a larger contract, is in some other form, or has some other structure.
V. PROHIBITION ON RELYING ON PRE-DISPUTE ARBITRATION AGREEMENTS
The final rule prohibits a provider from relying on a pre-dispute arbitration agreement with respect to any aspect of a class action that concerns any covered consumer financial product or service. This prohibition only applies to pre-dispute arbitration agreements entered into by a provider or a covered person on or after the mandatory compliance date (March 19, 2018).
As noted above, this prohibition may apply to a provider with respect to a pre-dispute arbitration agreement initially entered into between a consumer and a covered person other than the provider. For example, if an automobile dealer includes a pre-dispute arbitration agreement in a consumer motor vehicle installment sales contract, a provider (such as an indirect automobile lender or debt collector) is prohibited from relying on such a pre-dispute arbitration agreement in a dispute concerning the installment sales contract.
VI. PROVISIONS REQUIRED IN PRE-DISPUTE ARBITRATION AGREEMENTS
The final rule requires that, upon entering into a pre-dispute arbitration agreement on or after March 19, 2018, a provider must ensure that certain language set forth in the final rule is included in the agreement. Generally, the required language informs consumers that the agreement may not be used to block class actions. The standard form of the language reads “We agree that neither we nor anyone else will rely on this agreement to stop you from being part of a class action case in court. You may file a class action in court or you may be a member of a class action filed by someone else.” The final rule allows a provider to use an alternative method of providing required language for a pre-dispute arbitration agreement that existed between other parties prior to the provider entering into the agreement. If such an agreement does not already contain the language required by the final rule, the provider must amend the agreement to include language required by the final rule or provide a written notice to each consumer subject to the agreement within 60 days of entering into the pre-dispute arbitration agreement.
In certain circumstances, the final rule permits a provider to use different or additional language in a pre-dispute arbitration agreement. The general prohibition on relying on a pre-dispute arbitration agreement requirement for certain pre-packaged general-purpose reloadable prepaid card agreements still applies. However, covered service providers are excused from the disclosure requirements where the covered provider does not have the ability to contact the consumer in writing, the consumer acquires a general-purpose reloadable prepaid card in person at a retail store, the pre-dispute arbitration agreement was inside of packaging material when the general-purpose reloadable prepaid card was acquired, and the pre-dispute arbitration agreement was packaged prior to March 19, 2018. For a provider that has the ability to contact the consumer in writing, the exception applies if the consumer acquires a general-purpose reloadable prepaid card in person at a retail store, the pre-dispute arbitration agreement was inside of packaging material when the general-purpose reloadable prepaid card was acquired, and within 30 days of obtaining the consumer’s contact information, the provider notifies the consumer in writing that the pre-dispute arbitration agreement complies with the final rule’s requirements by providing an amended pre-dispute arbitration agreement to the consumer.
The final rule includes the following examples of when a provider enters into a pre-dispute arbitration agreement after March 19, 2018:
VII. SUBMISSION OF RECORDS TO THE CFPB
The final rule requires a provider to submit to the CFPB certain arbitration-related records concerning a covered consumer financial product or service. The requirement to submit these records only applies to:
Generally, if the provider is required to submit a record to the CFPB, it must submit a copy of the record within 60 days of the date that the record was filed with the arbitrator, arbitral administrator, or court. The provider must submit the record in the manner and form specified by the CFPB and must redact certain personally identifiable information from the record prior to submitting it. The CFPB will post the redacted records it obtains from providers (subject to additional redactions) on a publicly available website that the CFPB will establish and maintain by July 1, 2019. The CFPB will publish details of how providers should comply with these requirements. The CFPB expects that such instructions will be published in the Federal Register, on the CFPB’s website, and in a compliance guide the CFPB will make available.
VIII. CONGRESSIONAL REVIEW ACT
There is a possibility that Congress or the courts can stop the final rule from taking affect prior to March 19, 2018. Resolutions to prevent implementation of the CFPB final rule are pending before Congress and some parties have indicated that they may bring legal challenges based on the failure of the final rule and arbitration study to comply with the Dodd-Frank Act and the Administrative Procedures Act.