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).