On an appeal of five putative class actions alleging the unlawful charging of overdraft fees on consumer checking accounts, On February 10, the U.S. Court of Appeals for the Eleventh Circuit vacated a lower court order holding that Defendant Wells Fargo Bank, N.A.’s waiver of its right to compel arbitration with the named plaintiffs precludes the Bank from compelling arbitration with any unnamed members of the putative classes. In re Checking Account Overdraft Litigation, No. 13-12082 (11th Cir. Feb. 10, 2015). The panel held that the lower court lacked jurisdiction to resolve the question. Additionally, it held that the named plaintiffs lacked standing, under Article III of the U.S. Constitution, to advance claims on behalf of those unnamed putative class members, who—in the absence of class certification—have “no justiciable controversy” with the Bank.
The CFPB announced on February 23 that it plans to host a field hearing on the issue of arbitration provisions within various consumer financial contracts. According to the CFPB’s blog post, the hearing will take place on March 10 in Newark, New Jersey, and will feature remarks from CFPB Director Richard Cordray, testimony from consumer groups, industry representatives, and members of the public. The Dodd-Frank Act instructs the CFPB to study the use of pre-dispute arbitration provisions in consumer financial contracts (and provide a Report to Congress) and gives the CFPB the authority to issue regulations on the use of arbitration clauses if the CFPB chooses. In December 2013, the CFPB issued a report on its preliminary findings, which indicated that approximately 9 out of 10 arbitration clauses used by large banks in credit card and checking account agreements prevent consumers from participating in class actions.
On December 8, the U.S. Court of Appeals for the Third Circuit held that application of Dodd-Frank’s Anti-Arbitration provision did not apply to causes of action asserted under the Anti-Retaliation Dodd Frank Provision due to the limiting language of the arbitration law. Khazin v. TD Ameritrade Holding Corp, No. 14-1689 (3rd Cir. Dec.8, 2014). In 2013, the plaintiff filed suit in the District of New Jersey alleging that he had been fired in the preceding year for whistleblowing. According to the complaint, the retaliation occurred after the plaintiff questioned a supervisor about the pricing of a financial product that did not comply with relevant securities regulations. The District Court ruled that Dodd Frank’s Anti-Arbitration Provision did not prohibit the enforcement of arbitration agreements that were signed before the enactment of Dodd-Frank. Rather than deciding on the timing issue, however, the Court of Appeals upheld the decision on statutory construction grounds based on the limiting language of the Anti-Arbitration provision indicating that it only applied to causes of action contained within the same section, and not all allegations under Dodd-Frank.
On October 2, the Eleventh Circuit affirmed a district court’s decision refusing to compel arbitration sought by a servicer in a dispute with a borrower over the terms of a loan agreement. Inetianbor v. Cashcall, Inc. No. 13-13822 (11th Cir. 2014). In Inetianbor, the plaintiff and the servicer had a dispute as to whether the borrower had satisfied his obligations under the terms of the loan agreement. When the borrower refused to pay amounts the servicer believed it was due, the servicer reported the purported default to the various credit agencies. The borrower sued the servicer who subsequently moved to compel arbitration under the terms of the loan agreement. The loan agreement’s forum selection clause required any dispute be resolved in arbitration by the Cheyenne River Sioux Tribal Nation (the “Tribe”). The Tribe, however, declined to arbitrate the dispute. The district court allowed the suit to proceed in federal court on the grounds that the arbitral forum was not available to hear the dispute. On appeal, the Eleventh Circuit affirmed the district court’s refusal to compel arbitration. The Eleventh Circuit held that the forum selection clause was integral to the loan’s arbitration provision. Because the arbitral forum was unavailable to hear the dispute, arbitration was not an option under the terms of the agreement and the district court was correct in refusing to compel arbitration.
The American Arbitration Association (AAA) launched new Consumer Arbitration Rules that became effective on September 1. The new Consumer Arbitration Rules, comprised of 55 rules, replace the eight rules in the Consumer-Related Disputes Supplementary Procedures and apply to cases filed on or after September 1, 2014. Most notably under the new rules, the AAA will not administer consumer arbitration for a company unless and until the company submits its arbitration agreement to the AAA for review and the AAA determines that such agreement substantially complies with the AAA’s Consumer Due Process Protocol guidelines. Once reviewed and approved, the name of the business, the address, and the consumer arbitration clause, along with any related documents deemed necessary by the AAA will appear on the newly established and publicly-available Consumer Clause Registry (Registry). There is a non-refundable $500 annual fee to conduct the review and maintain the Registry. However, at least initially, a $650 fee paid in 2014 will be sufficient to maintain the business in the Registry through 2015. If a business does not submit its arbitration agreement for review and a consumer arbitration is filed with the AAA, the AAA will conduct an expedited review of the business’ arbitration agreement at that time, which would require an additional $250 in expediting fees.
On June 10, CFPB Director Richard Cordray testified before the Senate Banking Committee in connection with the CFPB’s recently released Semiannual Report to Congress. The hearing covered a broad range of topics, including, among several others, prepaid cards, student loans, small dollar loans, and arbitration clauses.
Director Cordray advised in response to an inquiry from Senator Menendez (D-NJ) that the CFPB’s prepaid card proposed rule, which the CFPB recently indicated could be released this month, likely will not come until the end of the summer. He reassured the Senator that the delay does not indicate any particular problem about the rulemaking, only that certain of the issues raised have been “hard to work through.” Read more…
On May 29, the CFPB published a notice and request for comment on an updated plan to conduct a credit card arbitration survey. The following day, the OMB made available the documents submitted by the CFPB in support of the survey.
The amended survey notice follows an initial notice last year that the CFPB planned to conduct a telephone survey of 1,000 credit cardholders to assess (i) the extent of their awareness of dispute resolution provisions in their credit card agreements and (ii) the cardholders’ “assessments of such provisions.” At the time, the CFPB released draft survey questions as part of its information collection request supporting statements. The initial public comment period closed August 6, 2013. During the comment period, banking trade groups objected to the survey and suggested the CFPB instead pursue peer-reviewed research that compares consumer dispute resolution methods.
In its latest notice, the CFPB states that the survey “will explore (a) the role of dispute resolution provisions in consumer card acquisition decisions and (b) consumers’ default assumptions (meaning consumers’ awareness, understanding, or knowledge without supplementation from external sources) regarding their dispute resolution rights vis-a-vis their credit card issuers, including their awareness of their ability, where applicable, to opt-out of mandatory pre-dispute arbitration agreements.”
The supporting statements and attachments thereto detail the CFPB’s rationale for conducting the survey. Appendix A provides the final survey questions, and Appendix B provides the justification for the questions
The public comment period on the notice and supporting materials closes June 30, 2014.
Tenth Circuit Holds FAA Preempts New Mexico Law On Unenforceability Of Unconscionable Arbitration Provisions
On January 28, the U.S. Court of Appeals for the Tenth Circuit held that the Federal Arbitration Act (FAA) preempts New Mexico common law that a compulsory-arbitration provision in a contract may be unconscionable and therefore unenforceable. THI of New Mexico at Hobbs Center, LCC v. Patton, No. 13-2012, 2014 WL 292660. (10th Cir. Jan. 28, 2014). In this case, a nursing home operator filed suit in federal district court to compel arbitration of claims brought by the widow of a former nursing home resident. The district court initially ruled that the arbitration agreement in the governing contract was not unconscionable and ordered arbitration. After a New Mexico appeals court came to the opposite conclusion, the district court reversed itself and further held that the FAA does not preempt state law because the state appeals court “applied . . . generally applicable unconscionability law against grossly unreasonable one-sided contracts.” On appeal the Tenth Circuit explained that “just as the FAA preempts a state statute that is predicated on the view that arbitration is an inferior means of vindicating rights, it also preempts state common law—including the law regarding unconscionability—that bars an arbitration agreement because of the same view.” Accordingly, the court rejected the state court’s view that the FAA does not limit their ability to hold an arbitration agreement unconscionable provided they are applying a general unconscionability doctrine, explaining that under such reasoning any statute preempted by the FAA could be enforced by applying the “public policy” of the statute under a common-law doctrine such as unconscionability. The court thus held that the FAA preempts the New Mexico common law on unenforceability based on unconscionability and held the operator is entitled to compel arbitration.
On December 12, the CFPB published the preliminary results of its ongoing study of arbitration agreements in consumer finance contracts. Section 1028(a) of the Dodd-Frank Act directs the CFPB to study the use of pre-dispute arbitration contract provisions, and preconditions the CFPB’s exercise of rulemaking authority regarding arbitration agreements on a finding that the regulation is “in the public interest and for the protection of consumers.” The CFPB commenced its arbitration study in early 2012, and expanded its review this year with a proposal to survey credit card holders, and by exercising its authority under Dodd-Frank Act Section 1022 to order some companies to provide template consumer credit agreements, as Director Cordray indicated during a September House Financial Services hearing.
The CFPB reports the following preliminary results, among others:
- Larger banks are more likely to include arbitration clauses in their credit card contracts and checking account contracts than smaller banks and credit unions.
- Just over 50% of credit card loans outstanding are subject to arbitration clauses, while 8% of banks, covering 44% of insured deposits, include arbitration clauses in their checking account contracts.
- Arbitration clauses are prevalent across the general purpose reloadable (GPR) prepaid card market, with arbitration clauses appearing in the cardholder contracts for 81% of GPR prepaid cards studied by the CFPB.
- Class action waivers are ubiquitous, appearing in approximately 90% of arbitration provisions.
- A minuscule number of consumers exercise contract carve-outs permitting disputes to be pursued in small claims courts, while credit card issuers are “significantly more likely” to sue consumers in small claims court.
The CFPB did not consider specific policy options at this stage. However, the report outlines numerous additional steps the CFPB plans to take as part of its arbitration study, which may expand to include other financial product markets. For example, in response to stakeholder comments, the CFPB is revising a prior proposal to conduct a survey of consumers that addresses consumer awareness of arbitration clauses and consumer perceptions of and expectations about formal dispute resolution. The CFPB also intends to assess the possible impact of arbitration clauses on the price of consumer financial products. Finally, the CFPB is examining the interrelationship between public enforcement and private aggregate enforcement (i.e., class actions) by conducting an empirical analysis of the types of cases brought by public and private actors, and the relationship between any actions against the same defendants or challenging similar conduct. The report does not provide anticipated timelines for these or any of the other future steps the Bureau describes.
Federal District Court Holds Evidence Of Online Notice Regarding Arbitration Policy Change Alone Insufficient To Support Arbitration Demand
On December 2, the U.S. District Court for the Northern District of California denied a bank’s motion to compel arbitration, in part because the bank failed to provide evidence that its customer received an online notice of a contract change that added the arbitration clause. Martin v. Wells Fargo Bank, N.A., No. 12-6030, slip op. (N.D. Cal. Dec. 2, 2013). In this case, a bank customer filed suit alleging the bank violated the Telephone Consumer Protection Act and the state’s Unfair Competition Law. The bank moved to compel arbitration, claiming that it properly amended the controlling customer agreement to include the arbitration clause at issue by providing written notice in a billing insert, and by providing the same notice online to customers who logged into their account. The court held that the bank failed to demonstrate the customer logged on to her online account and received the notice at issue. Similarly, the court explained that the bank’s supporting declaration only stated that the customer’s account was “targeted to receive” the written notice, but the bank did not state the customer actually was provided with the notice. The court also questioned whether the amendment adding the arbitration clause was fair, explaining that the original customer agreement allowed the bank to amend “charges, fees, or other information contained in the disclosure” and suggested that the original agreement’s terms did not indicate the addition of an arbitration agreement was an anticipated modification.
On December 2, the CFPB announced a field hearing on arbitration to be held in Dallas, Texas on Thursday, December 12. The event, which is open to members of the public who RSVP, will feature remarks from CFPB Director Richard Cordray, as well as testimony from consumer groups and industry representatives.
The CFPB has made policy announcements in connection with field hearings in the past and may release findings related to the arbitration study it commenced in early 2012. The CFPB expanded its arbitration review this year with a proposal to survey credit card holders and by exercising its authority under Dodd-Frank Act Section 1022 to order some companies to provide template consumer credit agreements.
Under Section 1028 of the Dodd-Frank Act, any exercise of rulemaking authority regarding arbitration agreements must be based on a finding—consistent with the study conducted—that the regulation is “in the public interest and for the protection of consumers.” While the CFPB may not yet be prepared to conduct a rulemaking on the use of such agreements, it is expected to begin releasing at least some results of its ongoing study.
On October 17, the Supreme Court of California held that, while the Federal Arbitration Act (FAA) preempts a California state-law rule categorically prohibiting waiver of state pre-arbitration protections in arbitration agreements, state courts may “continue to enforce unconscionability rules that do not ‘interfere with fundamental attributes of arbitration’” when determining whether an arbitration agreement is enforceable. Sonic-Calabasas A v. Moreno, No. S174475, 2013 WL 5645378 (Cal. Oct. 17, 2013) (citing AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011)). In light of the Supreme Court’s rulings in Concepcion and American Express v. Italian Colors, the Supreme Court of California reversed its previous ruling in Sonic-Calabasas A, Inc. v. Moreno, 51 Cal.4th 659 (2011) (Sonic I) with regard to the impact of the FAA on the waiver of state pre-arbitration proceedings and remanded the case to the trial court to determine whether the arbitration agreement in question was unconscionable on other grounds. In response to claims that the state pre-arbitration proceedings present no obstacle to accomplishing the objectives of arbitration, the court explained that the FAA does not “permit additional delay…from an administrative scheme [designed] to effectuate state policies unrelated to the agreement’s enforceability,” and that “[w]here a state-law rule interferes with fundamental attributes of arbitration, the FAA preempts the state-law rule.” However, while abrogating the categorical rule from Sonic I, the court held that “when faced with an unconscionability claim arising from an adhesive employment contract requiring the waiver of [the state’s pre-arbitration protections] in their entirety, [courts] must still determine whether the overall bargain was unreasonably one-sided.”
On September 26, the FTC announced that it had filed an amicus brief in the U.S. Court of Appeals for the Seventh Circuit in a class action suit against a Native American payday lender. In that case, the putative class is challenging a payday lender’s practice of requiring borrowers to submit to arbitration at a Native American reservation in South Dakota. The FTC notes that it is pursuing its own action against the same lender, challenging its jurisdiction over borrowers who do not belong to the tribe and who do not reside on the reservation or in South Dakota. In its Seventh Circuit filing, the FTC argues that Native American tribes and tribal courts have legal authority over their own members and not over non-members, unless non-members conduct activities inside the reservation or enter into a commercial relationship with the tribe or a member of the tribe. The FTC claims that borrowers who take out payday loans from these companies via the Internet do not conduct business on the reservation and should not be subject to arbitration there.
On September 16, the CFPB announced a field hearing on credit cards to be held on October 2, in Chicago, IL. The event, which is open to members of the public who RSVP, will feature remarks from CFPB Director Richard Cordray, as well as testimony from consumer groups and industry representatives.
In the past, the CFPB has made policy announcements in connection with field hearings. In this case, the hearing could be related to the CFPB’s study of credit card issues, as required by the 2009 Credit CARD Act. Section 502 of that act requires the CFPB to prepare a study every two years on: (i) the terms of credit card agreements and the practices of credit card issuers; (ii) the effectiveness of disclosure of terms, fees, and other expenses of credit card plans; (iii) the adequacy of protections against unfair or deceptive acts or practices relating to credit card plans; and (iv) whether or not, and to what extent, the implementation of the act has affected cost and availability of credit, the safety and soundness of credit card issuers, the use of risk-based pricing, or credit card product innovation.
The hearing also could relate to the CFPB’s ongoing arbitration agreement study. Director Cordray testified last week that, in connection with that study, the CFPB “very recently” exercised its authority under Dodd-Frank Act Sec. 1022 to order “a number of companies” to provide template consumer credit agreements.