On May 5, 2016, the Consumer Financial Protection Bureau published its 377 page anticipated proposed regulation, which would create new Part 1040 in Chapter Ten of Title 12 of the Code of Federal Regulations, regarding the use of mandatory predispute arbitration clauses in contracts for certain types of consumer financial products and services within the CFPB’s jurisdiction. The proposed regulation, which is subject to a 90 day comment period, would ban the use of class action arbitration waivers, likely chilling the use of arbitration clauses in their entirety for these covered products and services and result in a bright new day for the plaintiffs bar. This move by the CFPB pushes these consumer financial products and services towards parity with personal lines insurance products regarding the permissibility of their inclusion of a mandatory predispute arbitration clause and may call into question the continued use of a mandatory predispute arbitration clause in quasi-insurance contracts like service contracts (also known as extended warranties), guaranteed asset protection products (GAP waivers) and ancillary vehicle protection products (such as appearance care, paintless dent removal and tire and wheel protection products) which are often sold by auto dealers and financed by consumer auto purchase loans. (Read more)
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