A week after raising “safety and soundness” concerns about the Consumer Financial Protection Bureau’s rule banning class action waivers in arbitration agreements, the Trump-appointed temporary head of the Office of the Comptroller of the Currency doubled down this week with a request that the agency delay the regulation.
Acting Comptroller of the Currency Keith Noreika asked CFPB Director Richard Cordray to postpone a significant, but still early, step in the rule’s path to taking effect: publication in the Federal Register.
But it became clear Tuesday that no such delay was in the offing, as the Office of Federal Register gave notice that the rule would be published Wednesday. The rule would ban arbitration clauses that restrict consumers from bringing class actions against banks.
Noreika didn’t get a delay of the arbitration rule, but he’s getting data.
In his letters to Cordray, Noreika said he wanted to see the data the CFPB used to develop and support the arbitration rule, saying that information would allow his office’s economists to analyze the rule and help him fulfill his “statutory safety and soundness obligations.”
On Tuesday, in response to Noreika, Cordray wrote: “First, let me be clear that we are happy to share the data underlying our rulemaking. I understand that our teams are in communication and we are in the process of assembling the data your staff has requested.”
But Cordray continued to push back against Noreika’s notion that the rule could threaten the “safety and soundness” of the financial system.
“I continue to fail to see any plausible basis for your claim that the arbitration rule could somehow affect the safety and soundness of the banking system. The economic analysis of the rule shows that its impact on the entire financial system (not just the banking system) is on the order of less than $1 billion per year,” Cordray wrote. “Even if you think that estimate could be off by some amount, the banks alone made over $171 billion in profits last year. So on what conceivable basis can there be any legitimate argument that this rule poses a safety and soundness issue?”
In a prepared statement Tuesday, Noreika said: “Consenting to share the data is important progress. I look forward to working with the OCC staff to conduct an independent review of the data and analysis in a timely manner to answer my prudential concerns regarding what impact the final rule may have on the federal banking system.”
Now, it’s game on for the rule’s supporters and opponents.
Beginning tomorrow, Republican lawmakers will have 60 legislative-days to challenge the rule under the Congressional Review Act—a statutory tool, used only once before this year, that the Trump administration has put into regular use to wipe out more than a dozen Obama-era regulations.
U.S. Sen. Mike Crapo of Idaho, chairman of the Senate banking committee, and U.S. Sen. Tom Cotton, R-Arkansas, have called for nullifying the CFPB rule. Cotton, a former Gibson, Dunn & Crutcher attorney, is headlining a U.S. Chamber of Commerce event Wednesday titled “CFPB’s Anti-Arbitration Rule: Analysis & Implications.”
Consumer advocates, meanwhile, are readying for a fight.
“The American public, across lines of party, want Congress and the administration to protect the progress made in Dodd-Frank, and do more—not less—so the financial system works to the benefit of ordinary Americans,” Lisa Donner, executive director of Americans for Financial Reform, said Tuesday.
But the battle may not be confined to Capitol Hill. Ready for a ‘legal hail Mary’?
Noreika’s recent correspondence intensified speculation that the Financial Stability Oversight Council, a body of top financial regulators, could try to veto the arbitration rule. That could set up a rare agency-versus-agency court fight.
Within 10 days of a rule’s publication in the Federal Register, any member agency of the council can petition to undo a regulation. The council’s chairman, Treasury Secretary Steven Mnuchin, would then be able to stay the rule for 90 days. To defeat the arbitration rule, at least seven of the council’s 10 voting members would need to vote against it within that window.
In a recent blog post, Georgetown University Law Center professor Adam Levitin said the “FSOC veto strategy is really a legal hail Mary.” Levitin noted that four of the council’s voting members—including Federal Reserve Chairwoman Janet Yellen and Cordray, along with the heads of the Federal Housing Finance Agency and the Federal Deposit Insurance Corp.—were appointed under the Obama administration.
“If one more seat flips within 100 days, then the override would require only votes of GOP appointees. That’s quite possible given the end of terms for the FDIC and CFPB Director Cordray’s own uncertain plans. So the votes may well be there for an FSOC veto,” Levitin wrote.
“But here’s the thing,” he continued. “The FSOC veto is subject to some legal procedures and judicial review, and I don’t think it has a chance in hell of surviving such review, although it would buy the industry some time (and the effect of an overturned veto on the Congressional Review Act timeline is currently unclear to me).”