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Steven Kaplan is a partner in Mayer Brown’s Washington DC office and a member of the Consumer Financial Services group. He concentrates his practice on matters related to consumer financial products and represents clients in federal and state supervisory matters, investigations and enforcement proceedings. He also advises clients on compliance with federal and state laws governing licensing and practices of financial institutions, mortgage lenders, consumer finance companies, loan servicers, prepaid card issuers, payment system providers and secondary market participants. Steven acts as regulatory counsel in connection with investments or acquisitions related to consumer loans and other consumer financial products and performing regulatory compliance due diligence. Additionally, Steven assists with structuring operations and developing compliance management systems and due diligence programs and with litigation involving regulatory compliance matters.

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The rule (pdf) just proposed by the Consumer Financial Protection Bureau to regulate arbitration agreements is not a surprise: the Bureau has said for months that it was developing such a rule.

This post examines the details of the proposal—how it would regulate arbitration, its scope, and its effective date. We also discuss the course of the rulemaking process, including potential judicial review of any final rule. In a future post, we’ll evaluate the CFPB’s purported justifications for the regulation.

The bottom line: The CFPB’s proposal is effectively a blanket ban on the use of arbitration by companies in the consumer financial services arena. It is an attempt to overrule by regulation the Supreme Court’s landmark decision five years ago in AT&T Mobility LLC v. Concepcion (in which we represented AT&T). Businesses that are concerned about the ramifications of this proposal will have 90 days from the date the proposal is published in the Federal Register to submit comments to the agency, and if a rule is adopted in the present form of the proposal, parties are certain to seek judicial review.


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