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1.6.1 Congressional Action

In 2016, the Consumer Financial Protection Bureau (CFPB) promulgated a rule pursuant to its authority under the Dodd-Frank Act that would have prohibited consumer financial service providers from including class action waivers in their arbitration agreements.94 But in 2017 the Senate voted 50–50, with Vice President Pence casting the tie-breaking vote, to overrule the rule pursuant to the Congressional Review Act.95

There continues to be significant support for changing the status quo. On September 20, 2019, the United States House of Representatives passed and forwarded a bill limiting arbitration to the Senate.96 The proposed act would amend the Federal Arbitration Act (FAA)—which was originally enacted in the 1920s to promote business-to-business arbitration97—to eliminate forced arbitration clauses in employment, consumer, antitrust, and civil rights cases. The bill instead would allow consumers, workers, and civil rights and antitrust plaintiffs to choose arbitration after a dispute arises. The Senate referred the bill to its Committee on the Judiciary.

Footnotes

  • 94 {94} Arbitration Agreements, Consumer Fin. Prot. Bureau, 12 C.F.R. Part 1040, available at http://files.consumerfinance.gov.

  • 95 {95} Final Rule; CRA Revocation, 82 Fed. Reg. 55,500 (Nov. 22, 2017), available at https://www.federalregister.gov.

  • 96 {96} H.R. 1423, 116th Cong. (2019).

  • 97 {97} See, e.g., Imre Szalai, Outsourcing Justice (2014).