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[Federal Register Volume 77, Number 82 (Friday, April 27, 2012)]
[Notices]
[Pages 25148-25150]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-10189]

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BUREAU OF CONSUMER FINANCIAL PROTECTION

[Docket No. CFPB-2012-0017]

Request for Information Regarding Scope, Methods, and Data 
Sources for Conducting Study of Pre-Dispute Arbitration Agreements

AGENCY: Bureau of Consumer Financial Protection.

ACTION: Notice and Request for Information.

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SUMMARY: Section 1028(a) of the Dodd-Frank Wall Street Reform and 
Consumer Financial Protection Act of 2010 (the ``Dodd-Frank Act'') 
requires the Bureau of Consumer Financial Protection (the ``Bureau'') 
to ``conduct a study of, and * * * provide a report to Congress 
concerning, the use of agreements providing for arbitration of any 
future dispute between covered persons and consumers in connection with 
the offering or providing of consumer financial products or services'' 
(the ``Study''). As a preliminary step in undertaking the Study, the 
Bureau requests specific suggestions from the public to help identify 
the appropriate scope of the Study, as well as appropriate methods and 
sources of data for conducting the Study. Based on the information 
received, the Bureau may consider soliciting further feedback.

DATES: Comments must be submitted on or before June 23, 2012.

ADDRESSES: You may submit responsive information and other comments, 
identified by Docket No. CFPB-2012-0017, by any of the following 
methods:
     Electronic: http://www.regulations.gov. Follow the 
instructions for submitting comments.
     Mail/Hand Delivery/Courier: Monica Jackson, Office of the 
Executive Secretary, Consumer Financial Protection Bureau, 1700 G 
Street NW., Washington, DC 20552.
    Instructions: The Bureau encourages the early submission of 
information and other comments. All submissions must include the agency 
name and docket number. Please note the number of the question to which 
you are responding at the top of each response. In general, all 
submissions received will be posted without change to http://www.regulations.gov. In addition, submissions will be available for 
public inspection and copying at 1700 G Street NW., Washington, DC 
20552, on official business days between the hours of 10 a.m. and 5 
p.m. Eastern Time. You can make an appointment to inspect the documents 
by telephoning (202) 435-7275.

[[Page 25149]]

    All submissions, including attachments and other supporting 
materials, will become part of the public record and subject to public 
disclosure. Sensitive personal information, such as account numbers or 
social security numbers, should not be included. Submissions will not 
be edited to remove any identifying or contact information.

FOR FURTHER INFORMATION CONTACT: Will Wade-Gery, Division of Research, 
Markets and Regulations, Consumer Financial Protection Bureau, at (202) 
435-7700, or william.wade-gery@cfpb.gov.

    Authority:  12 U.S.C. 5518(a).

SUPPLEMENTARY INFORMATION: The Bureau seeks information in response to 
the questions listed below, which are intended to help identify the 
appropriate scope, methods, and sources of data for the Study required 
by section 1028(a) of the Dodd-Frank Act. Please feel free to respond 
to any or all of the questions below, but please be sure to identity 
the specific question or questions to which you are responding. 
Comments could include, where appropriate, data sources and study 
methods that the Bureau might consider. Submissions on scope or subject 
matter are more likely to provide useful information to the Bureau if 
the commenter also identifies associated data and applicable methods of 
study.
    The Bureau is not seeking comment on how, if at all, it should 
exercise its rulemaking authority under section 1028(b) of the Dodd-
Frank Act (12 U.S.C. 5518(b)). Thus, the Bureau is not seeking comment 
on either: (a) Whether it should, by regulation, prohibit or impose 
conditions or limitations on the use of pre-dispute arbitration 
agreements with respect to consumer financial products or services; or 
(b) whether any such regulation would serve to protect consumers or 
otherwise be in the public interest. Instead, this Notice and Request 
for Information is directed to the Bureau's mandate under section 
1028(a) of the Dodd-Frank Act (12 U.S.C. 5518(a)) to complete a study 
of, and report to Congress on, the use of pre-dispute arbitration 
agreements in connection with the offering or providing of consumer 
financial products or services.
    For purposes of this Notice and Request for Information, 
``consumers'' means ``consumers'' of ``consumer financial products and 
services'' as the Dodd-Frank Act defines those terms at sections 
1002(4) and (5) (12 U.S.C. 5481(4)-(5)); ``covered person'' has the 
meaning given at section 1002(6) of the Dodd-Frank Act (12 U.S.C. 
5481(6)); and ``pre-dispute arbitration agreements,'' unless otherwise 
noted, ``provid[e] for arbitration of any future dispute between 
covered persons and consumers in connection with the offering or 
providing of consumer financial products or services'' (12 U.S.C. 
5518(a)).

Questions

1. Prevalence of Use

    The Dodd-Frank Act requires the Bureau to study the ``use'' of pre-
dispute arbitration agreements. The Bureau believes that obligation 
encompasses, at a minimum, a study of the prevalence of such 
agreements. As a result, the Bureau seeks information in response to 
the following questions.
    i. Other than with respect to credit card agreements,\1\ how should 
the Bureau determine the prevalence of pre-dispute arbitration 
agreements in different consumer financial services markets?
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    \1\ Subject to certain de minimus exceptions, U.S. issuers must 
file with the Bureau copies of their consumer credit card 
agreements. Thus, the Bureau has data to assess the prevalence and 
features of pre-dispute arbitration agreements for credit cards. The 
Bureau makes these credit card agreements available online at http://www.consumerfinance.gov/credit-cards/agreements/. Prior to the 
Dodd-Frank Act, the Federal Reserve Board maintained a similar 
credit card agreement database.
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    ii. Should the Bureau focus on particular markets for consumer 
financial products and services in reviewing prevalence?
    iii. Should the Bureau focus on the prevalence of particular terms 
in pre-dispute arbitration agreements?
    iv. Should the Bureau address how the prevalence of pre-dispute 
arbitration agreements and the prevalence of particular terms within 
them have changed over time?
    v. To address the questions above, what new data, if any, should 
the Bureau seek and from which entities? What existing studies or 
sources of empirical data should the Bureau rely upon to address any of 
the above questions?

2. Use and Impact in Particular Arbitral Proceedings

A. Claims That Consumers Bring in Arbitration
    Pre-dispute arbitration agreements generally provide that the 
consumer may or must bring claims in arbitration.\2\ The Bureau seeks 
information responsive to the following questions about claims that 
consumers bring in arbitration.
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    \2\ In some consumer arbitrations, the consumer files his or her 
claim in arbitration in the first instance, relying on the terms of 
the pre-dispute arbitration agreement to do so. In other cases, 
however, the consumer may first file in court and only later file a 
claim in arbitration after acceding to--or opposing and then losing 
on--a covered person's (or third party's) demand, under the same 
arbitration clause, that the consumer's dispute proceed, if at all, 
in arbitration. The Bureau intends to cover both types of consumer 
arbitration within the terms of this set of questions, except to the 
extent specifically noted in question 2.v.
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    i. Should the Bureau determine how often consumers bring claims in 
arbitration?
    ii. Should the Bureau analyze the types of claims that consumers 
bring in arbitration?
    iii. For claims that consumers bring in arbitration, should the 
Bureau seek to analyze: (a) the cost and speed of dispute resolution; 
and/or (b) the outcome of disputes?
    iv. For consumers who bring claims in arbitration, should the 
Bureau seek to assess their understanding of, and satisfaction with, 
the resulting dispute resolution process? Should the Bureau seek to 
determine the factors that impact consumer understanding and 
satisfaction?
    v. If the Bureau should address some or all of the issues addressed 
in 2.A.i-iv above, should the Bureau distinguish between claims that a 
consumer brings in arbitration: (a) in the first instance; and (b) 
after a covered person (or third party \3\) successfully invokes the 
terms of a pre-dispute arbitration agreement to end or limit that 
consumer's earlier court proceeding? Or should the Bureau consider both 
forms of arbitration as a single, combined category of consumer use?
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    \3\ In some cases, an entity that is not a party to a particular 
pre-dispute arbitration agreement has invoked that agreement to 
demand that a consumer's claim proceed only in arbitration.
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    vi. If the Bureau should address some or all of the issues 
identified in 2.A.i-v above, what methods of study should it use? What 
new data, if any, should the Bureau seek and from which entities? What 
existing studies or empirical data, if any, should the Bureau use? 
Should the Bureau focus on particular product markets? Should the 
Bureau focus on the impact to arbitral proceedings of particular terms 
in pre-dispute arbitration agreements?
B. Claims That Covered Persons Bring in Arbitration
    Pre-dispute arbitration agreements also generally provide that a 
covered person may or must bring claims in arbitration. As a result, 
covered persons have brought claims--in particular, debt-collection 
claims--in arbitration.\4\

[[Page 25150]]

The Bureau seeks information responsive to the following questions 
about such covered person or third-party claims.
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    \4\ In some cases, an entity that is not a party to a particular 
pre-dispute arbitration agreement has invoked that agreement to 
bring claims against a consumer in arbitration. The Bureau intends 
the following set of questions to cover such third-party claims as 
well.
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    i. The Bureau is not aware of recent practice by covered persons to 
bring claims against consumers in arbitration.\5\ Do such arbitrations, 
in fact, exist at this point? If there are such arbitrations, should 
the Bureau determine their frequency? If there are no longer such 
arbitrations, should the Bureau analyze whether covered persons will, 
in the future, return to bringing claims against consumers in 
arbitration?
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    \5\ Prior to July 2009, the National Arbitration Forum (``NAF'') 
administered each year a significant number of debt collection 
arbitrations that various covered persons or third-parties brought 
against consumers. In July 2009, however, NAF agreed that it would 
no longer handle consumer arbitrations, including debt collection 
cases brought against consumers. NAF reached this agreement to 
settle claims by the Minnesota Attorney General that NAF violated 
Minnesota's consumer-fraud, deceptive-trade-practices, and false-
advertising statutes. Following the NAF settlement, the American 
Arbitration Association (``AAA'') announced that it would not 
administer any consumer finance debt collection arbitrations filed 
by companies. The AAA's policy is still in effect according to a 
``Notice on Consumer Debt Collection Arbitrations'' that is 
available on the organization's Web site, www.adr.org.
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    ii. Should the Bureau analyze the types of claims that covered 
persons bring in arbitration? If covered persons no longer bring claims 
in arbitration, should the Bureau seek to answer this question for a 
period in which they did?
    iii. For claims that covered persons have brought in arbitration, 
should the Bureau seek to analyze: (a) the cost and speed of dispute 
resolution; and/or (b) the outcome of disputes? If covered persons no 
longer bring claims in arbitration, should the Bureau seek to answer 
these questions for a period in which they did?
    iv. For consumers involved in any such cases, should the Bureau 
seek to assess their understanding of, and satisfaction with, the 
resulting arbitration process? If covered persons no longer bring 
claims in arbitration, should the Bureau seek to answer this question 
for a period in which they did?
    v. If the Bureau should address some or all of the issues 
identified in 2.B.i-iv above, what methods of study should it use? What 
new data, if any, should the Bureau seek and from which entities? What 
existing studies or empirical data, if any, should the Bureau use? 
Should the Bureau focus on particular product markets? Should the 
Bureau focus on the impact to arbitral proceedings of particular terms 
in pre-dispute arbitration agreements?

3. Impact and Use Outside Particular Arbitral Proceedings

    Independent of their role in particular arbitral proceedings, pre-
dispute arbitration agreements may impact consumers and/or covered 
persons in other ways. Thus, academics and other parties have claimed 
that the existence of pre-dispute arbitration agreements may impact:
     The incidence and nature of consumer claims against 
covered persons;
     The price and availability of financial services products 
to consumers;
     Compliance with consumer financial protection laws;
     Consumer awareness of potential legal claims against 
covered persons;
     Consumer awareness and understanding of how potential 
legal claims against covered persons may be resolved; and
     The development, interpretation, and application of the 
rule of law.
    i. Should the Bureau seek to evaluate how the use of pre-dispute 
arbitration agreements impacts consumers and/or covered persons in one 
or more of these ways?
    ii. Should the Bureau seek to evaluate how the use of pre-dispute 
arbitration agreements impacts consumers and/or covered persons in any 
other ways that are independent of their role in particular arbitral 
proceedings?
    iii. If so, and in either case, what methods of study should the 
Bureau use? What new data, if any, should the Bureau seek and from 
which entities? What existing studies or empirical data, if any, should 
the Bureau use? Should the Bureau focus on particular product markets? 
Should the Bureau focus on the impact of particular terms in pre-
dispute arbitration agreements?

    Dated: April 23, 2012.
Meredith Fuchs,
Chief of Staff, Bureau of Consumer Financial Protection.
[FR Doc. 2012-10189 Filed 4-26-12; 8:45 am]
BILLING CODE 4810-AM-P
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