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CFPB Has Much More Work To Do On Arbitration Study

By Andrea Pincus & Archis A. Parasharami on December 17, 2013
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The day after we released our study (pdf) of class action litigation, the Consumer Financial Protection Bureau issued some preliminary results in connection with its study of arbitration under the Dodd-Frank Act. (That statute gives the CFPB power to regulate or prohibit the use of arbitration agreements by the businesses it oversees, but requires the Bureau first to conduct a study of arbitration agreements.)

The agency repeatedly describes the information that it reports as “preliminary” and subject to further review and revision, and states that the subjects covered are those as to which it has been able to gather information—and does not indicate “the relative importance of different areas to be covered in the statutory report.”

These disclaimers are important, because the “preliminary results” provide little information that is relevant to the central questions that the Bureau must address: For the kinds of injuries that most consumers can suffer, what is the real-world accessibility, cost, fairness, and efficiency of arbitration as compared to suing in court? And how will consumers be harmed if arbitration is prohibited or subjected to regulation that eliminates arbitration’s availability?

Most of the CFPB’s preliminary results relate to the numbers of cases filed in arbitration and in court. But the number of formal claims filed by consumers in arbitration and in court says nothing about the relative accessibility and fairness of the two methods of dispute resolution. Indeed, consumers’ claims often are resolved before the filing of a formal arbitration proceeding—and all of those resolutions aren’t counted under the Bureau’s approach.

The Bureau also briefly discusses the results of a group of eight class actions, but that small, specially-selected sample provides no basis for any conclusion regarding the overall value of class actions to consumers—as the Bureau itself acknowledges by stating that it intends to study—among other areas that it has not yet addressed—“the disposition of cases across arbitration and litigation (including class litigation), both in terms of substantive outcomes and in terms of procedural variables like speed to resolution.”

A more comprehensive discussion of the CFPB’s preliminary results report is available here (pdf).

Photo of Andrea Pincus Andrea Pincus
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Photo of Archis A. Parasharami Archis A. Parasharami

Archis A. Parasharami, a litigation partner in Mayer Brown’s Washington DC office, is a co-chair of the firm’s Consumer Litigation & Class Actions practice, recently named by Law360 as one of the top five class action groups of the year. He also is…

Archis A. Parasharami, a litigation partner in Mayer Brown’s Washington DC office, is a co-chair of the firm’s Consumer Litigation & Class Actions practice, recently named by Law360 as one of the top five class action groups of the year. He also is a member of the firm’s Supreme Court & Appellate practice.

Archis routinely defends businesses in class action litigation in federal and state courts around the country. He brings substantial experience to all aspects of complex litigation and class actions, with a particular focus on strategy issues, multidistrict litigation, and critical motions seeking the dismissal of class actions or opposing class certification. He also has helped businesses achieve settlements on highly favorable terms in significant class actions. Archis frequently speaks on developments in the class action arena, and has been quoted on a number of occasions in the National Law Journal, Corporate Counsel, and the Wall Street Journal Law Blog.

Read Archis’ full bio.

Read more about Archis A. ParasharamiEmail
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  • Posted in:
    Banking, Finance and Securities
  • Blog:
    Class Defense Blog
  • Organization:
    Mayer Brown
  • Article: View Original Source

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