Last week, in its decision in American Express Co. v. Italian Colors Restaurants, the U.S. Supreme Court delivered a knock-out punch to the last major court challenge to the use of class action waivers in consumer arbitration agreements. The court rejected the plaintiffs’ attempt to create a “vindication of federal statutory rights” exception to the landmark ruling in AT&T Mobility LLC v. Concepcion that class action waivers in consumer arbitration agreements are valid and enforceable even if some claims might “slip through the legal system.” For more on Italian Colors, see our legal alert.
The decision means that plaintiffs’ lawyers and consumer groups may now view the CFPB’s arbitration study as their best hope for restricting the use of mandatory arbitration agreements. Dodd-Frank Section 1028 requires the CFPB to conduct a study of the use of mandatory arbitration agreements in connection with the offering of consumer financial products and services and authorizes the CFPB to “prohibit or impose conditions or limitations on the use of” such agreements based on the study results. We submitted extensive comments on the study to the CFPB on behalf of the American Bankers Association, the Consumer Bankers Association, and The Financial Services Roundtable.
Earlier this month, the CFPB asked the Office of Management and Budget to approve the Bureau’s plans to conduct a national telephone survey of 1,000 credit card holders as part of its study. It is also seeking comments on its approval request, which must be submitted by August 6, 2013.