As industry and consumers await the results of the CFPB’s arbitration study, the FTC became the latest federal agency to weigh in on consumer arbitration issues. Recently, at the invitation of the Seventh Circuit, the FTC filed an amicus brief supporting a class action lawsuit brought by consumers challenging a tribal payday lender’s practice of requiring them to submit to arbitration at a Native American reservation. The FTC argued that the lender’s arbitration provision should be invalidated as unfair and unconscionable for reasons that included the expense involved in traveling to the reservation to participate in arbitration or, if the consumer opted out, a proceeding in tribal court.
Last year, the DOJ filed an amicus brief in the U.S. Supreme Court in American Express Co. v. Italian Colors Restaurant in support of the merchants who were challenging the class action waiver in American Express’ arbitration agreement. (The Supreme Court ruled against the merchants in a 5-3 decision.)
It will be interesting to see if federal agencies continue to address consumer arbitration issues given the lack of success the plaintiffs’ bar has had in challenging arbitration provisions during the past few years.