A coalition consisting of the preeminent national business lobby, several financial services trade groups, and over a dozen business organizations in Texas have banded together — the way individuals might in a class-action lawsuit — to force the federal government to allow them to block class-action lawsuits.
Eighteen groups representing thousands of corporations and banks filed the lawsuit against the Consumer Financial Protection Bureau last Friday in federal court in Dallas. Oddly, they did not attempt to individually resolve the dispute through an arbitration process, which they’ve consistently said yields speedier and better results for those wronged. “Arbitration gives consumers the ability to bring claims that they could not realistically assert in court,” the lawsuit reads.
But for corporations, banding together in courts apparently presents a better option.
The plaintiffs want to overturn the CFPB’s arbitration rule, which would prevent companies from using clauses in financial contracts to force all customer complaints into individual arbitration rather than class-action lawsuits. They claim that the CFPB is unconstitutional, and that the analysis the bureau generated to help finalize the rule was flawed, while denying the companies their proper input. Plus, the arbitration rule harms the public interest, they claim, because “it precludes the use of a dispute resolution mechanism that generally benefits consumers (i.e., arbitration) in favor of one that typically does not (i.e., class-action litigation).”
So, really, they’re doing it for the consumers.
But the dispute resolution mechanism that allegedly doesn’t help ripped-off consumers is effectively the one they’re using.
The U.S. Chamber of Commerce is among the plaintiffs. They represent thousands of corporations, none of which decided to file their own administrative grievance against the CFPB. Those corporations don’t have the resources to engage in high-profile litigation against the government by themselves, so they band together and pay into a fund, so the Chamber can represent their interests.
This is what the Chamber wants to prevent consumers from doing.
To pull this off, the Chamber enlisted the assistance of several other banking trade groups, which also represent thousands of individual businesses. The American Bankers Association, the American Financial Services Association, the Consumer Bankers Association, and the Financial Services Roundtable joined the list of plaintiffs — you might call them a “class” — in the lawsuit.
Thirteen Texas-based business groups, from the Texas Association of Business and the Texas Bankers Association to local Chambers of Commerce in Grand Prairie, Lubbock, and Port Arthur, are also on the lawsuit. Despite this being a national case, the plaintiffs presumably filed in Texas in the hopes that conservative judges there would look favorably on their case.
In other words, they engaged in “forum shopping,” a primary complaint corporations have with class-action litigation.
Banks have estimated that the rule might cost them $1 billion per year, though as a class the banking sector earned $171 billion in profits in 2016. That makes this the equivalent of a small claims suit, which was probably too trivial for each individual bank to address separately, necessitating them to band together and take on the CFPB.
If successful, the lawsuit would block the CFPB rule, and allow all of the groups to force their customers into arbitration for dispute settlement, instead of the courts they used to preserve that process.
The corporations are not content with just one venue for their grievance, of course. They have also banded together as a class to lobby Congress to pass a resolution that would nullify the CFPB rule. They have already succeeded in the House, but the Senate has run into trouble rounding up the required 50 votes. The Monopoly Man showed up at hearings this week to protest the rampant use of arbitration clauses: the guests of dishonor were top executives at Wells Fargo and Equifax, both of which have used arbitration clauses to try to block customers from using class-action lawsuits. Their public appearances have soured the mood in Washington for helping out financial institutions in too public a fashion.
Wells Fargo is a member of the American Bankers Association, one of the groups banding together in the lawsuit against CFPB. They didn’t seek arbitration, for some reason.