In its final arbitration rule issued on July 10, 2017, the CFPB responds to our calculation, made when the proposed rule was issued in May 2016, that the rule will cause 53,000 providers who currently use arbitration agreements to incur between $2.6 billion and $5.2 billion over a five-year period to defend against an additional 6,042 class actions. Those numbers are expected to be repeated every five years.

The CFPB acknowledges the accuracy of our calculations except that it disagrees that $5.2 billion “ is a reasonable upper bound.”  In both the proposed rule and the final rule, the CFPB calculated the costs associated with additional federal court class actions to be $2.6 billion, and estimated that there will be an equal number of additional state court class actions.  As it did in the proposed rule, however, the CFPB states that “it does not have reliable data to estimate the cost of additional State class actions.”  While the CFPB “acknowledges again that the total additional litigation costs to providers will exceed costs from Federal class actions” when the state class actions are accounted for, it believes that the state class actions will not add an additional $2.6 billion to the calculation, although it is unable to estimate what the upper bound number should be.

We arrived at the $5.2 billion estimate as follows:  In the proposed rule, the CFPB concluded that there would be as many additional state court class actions as federal court class actions.  (“Based on the Study’s analysis of cases filed, the Bureau believes that there is roughly the same number of class settlements in state courts as there is in Federal courts across affected markets.”)  They monetized the additional federal cases as $2.6 billion.  They estimated that the state court costs would be lower but were unable to monetize them “because limitations on the systems to search and retrieve state court cases precluded the Bureau from developing sufficient data on the size or costs of state court class action settlements.”  However, the CFPB also stated that they were not including the cost of providing in-kind relief, because they could not quantify it, and also were not including the cost of providing injunctive relief, which “could result in substantial forgone profit (and a corresponding substantial benefit to the consumers), but cannot be easily quantified.”  They further noted that “for several markets the estimates of additional Federal class action settlements are low.”  Looking at all of these factors, including the “substantial forgone profit” that the CFPB did not include, it was reasonable to project $5.2 billion as the maximum cost of federal and state court cases combined.  We were merely estimating that the combined cost of additional federal and state class actions would be somewhere between $2.6 billion and $5.2 billion based on the CFPB’s calculations and analysis.  (Of course, it might even be more than $5.2 billion).

We believe our calculations are consistent with the CFPB’s in that everyone estimates that the cost to providers from additional federal and state court class actions will exceed $2.6 billion.  The only disagreement is on the amount of the excess.  Given the CFPB’s belief that there will be as many additional state court class actions as additional federal court class actions, and the CFPB’s omission of other relief that will impose “substantial” costs on providers that the CFPB could not calculate, we continue to believe that $5.2 billion is a reasonable upper bound.  The CFPB disagrees, which it is certainly entitled to do.  In fact, we hope that if the rule is implemented, it does not cost providers an additional $5.2 billion every five years.  Unfortunately, even the lower bound estimate of $2.6 billion will exact a very heavy and unnecessary toll on providers but do little, if anything, to help consumers. Only their lawyers will benefit.

Director Corday has sent a letter to Keith Noreika, the Acting Comptroller of the Currency, responding to Mr. Noreika’s July 10 letter in which he stated that OCC staff had expressed safety and soundness concerns arising from the proposed arbitration rule’s potential impact on U.S. financial institutions and their customers.

In his response, Director Cordray stated that he “was surprised” to receive Mr. Noreika’s letter and that the CFPB had “consulted repeatedly” with OCC representatives and other prudential regulators regarding “prudential, market, or systematic objectives administered by such agencies” as required by Section 1022 of the Dodd-Frank Act (DFA).  Director Cordray claimed that “at no time during this process did anyone from the OCC express any suggestion that the rule that was under development could threaten the safety and soundness of the banking system” and that Mr. Noreika did not “express such concerns to [Director Cordray] when [they] have met or spoken.”  

Anticipating that Mr. Noreika’ letter could signal an attempt by the OCC to file a petition with the Financial Stability Oversight Council (FSOC) to set aside the final arbitration rule, Director Cordray stated that the points raised in Mr. Noreika’s letter “do not satisfy the statutory requirement that an agency ‘has in good faith attempted to work with the Bureau to resolve concerns regarding the effect of the rule on the safety and soundness of the United States banking system or the stability of the financial system of the United States’ and has been unable to do so.”  Under the DFA, satisfying the good faith requirement is a prerequisite to the filing of a petition by an agency with the FSOC to set aside a CFPB regulation.

Director Cordray also asserted that no basis exists for a claim that the arbitration rule puts the federal banking system at risk and provided a memorandum prepared by the CFPB’s Arbitration Agreements Rulemaking Team that “analyzes the suggestion in [Mr. Noreika’s letter] that the arbitration agreements rule…implicates the safety and soundness of the federal banking system.”

In his response, Director Corday highlighted several of the memorandum’s “key points” and stated that he believed those points “conclusively put to rest any safety and soundness concerns.”  Among the points highlighted by Director Cordray was that a majority of depository institutions operate without arbitration agreements and there was no evidence such banks and credit unions are less safe and sound than their counterparts with such agreements.  He also attempted to minimize the significance of the more than 500 million dollars that the CFPB has projected the rule will cost banks annually to defend against class action litigation.  

As we have previously observed, although the “majority” of banks may not use arbitration agreements, that is because most banks are small community banks in rural areas that are typically not the target of class action litigation.  However, the CFPB’s own data in its March 2015 empirical study of arbitration showed that 45.6% of the 103 largest banks with accounts representing 58.8% of insured deposits use arbitration clauses and it is those banks that are more likely to be the targets of class actions.


In addition to the passage of legislation amending the Dodd-Frank Act (DFA), disapproval under the Congressional Review Act, and a legal challenge filed in court, a fourth potential route for stopping the CFPB’s final arbitration rule from taking effect at the end of the 240-day grandfather period is garnering attention.  That route is a petition to the Financial Stability Oversight Council (FSOC) to set aside the rule.

The FSOC, which was created by the DFA, has ten voting members consisting of: the Treasury Secretary (who serves as FSOC Chairperson), the Federal Reserve Chairperson, the Comptroller of the Currency, the CFPB Director, the SEC Chairperson, the FDIC Chairperson, the Commodity Futures Trading Commission Chairperson, the Federal Housing Finance Agency Director, the National Credit Union Administration Board Chairperson, and an “independent member” with “insurance expertise” appointed for a six-year term by the President and confirmed by the Senate.  There are also five nonvoting members who serve in an advisory capacity.

The DFA provides that the FSOC can set aside a final CFPB regulation or any provision thereof on the petition of a member agency if the FSOC decides “that the regulation or provision would put the safety or soundness of the United States banking system or the stability of the financial system of the United States at risk.”  A member agency can file a petition with the FSOC to set aside a regulation if the member agency “has in good faith attempted to work with the Bureau to resolve [safety and soundness or financial system stability] concerns” and files the petition no later than 10 days after the regulation has been published in the Federal Register.

If a petition is filed, any member agency can ask the FSOC Chairperson (i.e. the Treasury Secretary) to stay the effectiveness of a regulation for up to 90 days from the filing.  For an FSOC member to vote to set aside a regulation, the member’s agency must have considered any relevant information provided by CFPB and the agency that filed the petition and made an official determination, at a public meeting where applicable, that the regulation in question would put the safety or soundness of the U.S. banking system or the stability of the U.S. financial system at risk.

A decision by the FSOC to set aside a regulation requires the affirmative vote of 2/3 of the FSOC members then serving and must be made by the later of 45 days from the filing of a petition or, if a stay has been issued, the expiration of the stay.  An FSOC decision to set aside a regulation is subject to judicial review under the Administrative Procedure Act.

On July 10, Keith Noreika, the Acting Comptroller of the Currency, sent a letter to Director Cordray in which he asked the CFPB for the data it used to develop and support its proposed arbitration rule.  In the letter, Mr. Noreika stated that a variety of OCC staff had reviewed the CFPB’s proposal from a safety and soundness perspective and expressed concern about its potential impact on U.S. financial institutions and their customers.  He also discussed the potential detrimental effects of the CFPB’s proposal, including the potential adverse effects that the increased litigation cost associated with the loss of arbitration as an alternative dispute resolution mechanism could have on the “reserves, capital, liquidity, and reputation of banks and thrifts, particularly community and midsize institutions.”  Mr. Noreika stated that he had directed OCC staff to work expeditiously with CFPB staff to examine the CFPB’s data and “determine if our concerns are allayed by the data or to work with the CFPB to resolve any safety and soundness concerns that persist.”

Mr. Noreika’s letter would appear to position the OCC as the most likely FSOC member agency to file a petition to set aside the CFPB’s final arbitration rule.  However, since five FSOC members (the CFPB Director, FDIC Chair, Federal Reserve Chair, FHFA Director and insurance representative) are currently Democratic appointees and 7 votes would be required to set aside a regulation, two current members would need to be replaced with Republican nominees for the final arbitration rule to be set aside with only Republican votes.  If the final arbitration rule is not published in the Federal Register until late August, an FSOC set aside with only Republican votes is theoretically possible since the term of the FSOC’s insurance representative member expires in September 2017 and the term of the current FDIC Chairperson expires on November 29, 2017.  (It is also possible that Director Cordray will leave the CFPB in the fall and a successor appointed by the Trump Administration will be in place.)

In the final arbitration rule, the CFPB provided the following response to comments it received on the proposed rule from the Conference of State Bank Supervisors:

An association of State regulators expressed concern that the compliance costs of the proposal could be substantial, and that requiring institutions to incur those costs could pose safety and soundness concerns for the depository institutions that the association’s members supervise.  The commenter urged the Bureau to engage in a more rigorous analysis of current and future compliance costs before finalizing the rule.  The Bureau notes that arbitration agreements are not universal, such that for the markets covered by the final rule and that are subject to the authority of State regulators, there are depository institutions that do not currently employ such agreements.  Indeed, as discussed below, the Bureau estimates that the majority of depository institutions do not use arbitration agreements.  It is evident that depository institutions without arbitration agreements are able to remain safe and sound despite their exposure to class action liability.  The Bureau has no reason to believe that depository institutions with arbitration agreements are less financially sound than those without or that requiring certain depository institutions to amend their agreements will cause them to become less financially sound.  For the reasons above the Bureau believes that increasing class action exposure for depository institutions currently using arbitration agreements will not pose safety and soundness risks.  In addition, as discussed in Part III, no class action in the Study went to trial.  As further discussed in the findings in Part VI, courts are generally able to consider the financial condition of the defendant when evaluating the reasonableness of class settlements and litigated judgments.  In addition, under CAFA, prudential regulators are afforded notice and the opportunity to comment on the proposed class settlement before the court makes a final approval decision.  These mechanisms allow for consideration of safety and soundness concerns into the class settlement approval process.

This response by the CFPB is superficial and unpersuasive.  While the “majority” of banks may not use arbitration agreements, that is because most banks are small community banks in rural areas that are typically not the target of class action litigation.  However, the CFPB’s own data in its March 2015 empirical study of arbitration showed that 45.6% of the 103 largest banks with accounts representing 58.8% of insured deposits use arbitration clauses.  It is those banks that are more likely to be the targets of class actions.

The CFPB estimates that the rule will cost 53,000 financial services companies who currently utilize arbitration agreements between $2.62 billion and $5.23 billion over the next five years to defend against an additional 6,042 class actions that will be brought by plaintiffs’ counsel.  The CFPB expects those numbers to be repeated every five years thereafter.  Second, with respect to CAFA (the Class Action Fairness Act), neither Federal Rule of Civil Procedure 23 nor 28 U.S.C. 1715 requires regulators to consider “safety and soundness concerns” when reviewing class settlement notices.  Therefore, CAFA provides no assurance that safety and soundness concerns will be addressed.


Two Republican Senators, Mike Crapo (who chairs the Banking Committee) and Tom Cotton (a Banking Committee member), have announced plans to draft a resolution of disapproval to overturn the CFPB’s final arbitration rule under the Congressional Review Act.

According to Politico, Senator Crapo has indicated that he wants to take the lead on drafting a CRA resolution.  Senator Cotton posted a statement on his website yesterday in which he criticized the CFPB for having “gone rogue again, abusing its power in a particularly harmful way” and indicated that he “has started the process of rescinding this [arbitration] rule” under the CRA.

In addition, Representative Jeb Hensarling, who chairs the House Financial Services Committee, posted a statement on the Committee’s website in which he stated that the arbitration rule “will harm American consumers but thrill class action trial attorneys” and stated that the rule “should be thoroughly rejected by Congress under the [CRA].



In a new video posted on its website entitled “CFPB’s New Arbitration Rule: Take Action Together,” the CFPB tells consumers that arbitration agreements prevent them from joining together to hold companies accountable for consume harm and that the CFPB’s new rule “will ensure people who are harmed together can take action together.”

The CFPB would undoubtedly describe the video as an effort to educate consumers about how (in the CFPB’s view) they are harmed by arbitration agreements and will benefit from the arbitration rule.  (It deserves mention that while the CFPB has  expended funds to create a video critical of arbitration, it has been unwilling to expend any funds to educate consumers about the many benefits that arbitration can offer as opposed to litigation.)

While the CFPB may characterize its video as educational, it is also possible that the video represents the opening salvo in CFPB efforts to mobilize consumers to lobby their representatives in Congress to vote against a Congressional Review Act resolution disapproving the arbitration rule.


The CFPB announced today that it has issued a final rule that prohibits covered providers of certain consumer financial products and services from using an agreement with a consumer that provides for arbitration of any future dispute between the parties to bar the consumer from filing or participating in a class action with respect to the covered consumer financial product or service.  The final rule also requires a covered provider that is involved in an individual arbitration pursuant to a pre-dispute arbitration agreement to submit specified arbitral records to the CFPB, which will post them on its website beginning in July 2019.

On July 20, 2017, from 12 p.m. to 1 p.m. ET., Ballard Spahr attorneys will hold a webinar: The CFPB’s Final Rule Prohibiting Class Action Waivers: What You Need to Know.  The webinar registration form is available here.

The CFPB’s action comes more than one year after it issued a proposed arbitration rule in May 2016.  More than 110,000 comments were submitted in response to the proposed rule.  The final rule appears to be nearly identical to the proposed rule.  The final rule also follows the CFPB’s March 2015 study of consumer arbitration mandated by Section 1028 of the Dodd-Frank Act.  Section 1028 provides that the CFPB, “by regulation, may prohibit or impose conditions or limitations on the use of” pre-dispute arbitration agreements concerning consumer financial products or services if it finds doing so “is in the public interest and for the protection of consumers.”

The CFPB claims that class action waivers in arbitration agreements deny consumers their day in court while enabling companies to avoid paying big refunds and continue engaging in allegedly harmful practices.  Our analysis of the CFPB’s proposed rule and arbitration study found that the CFPB’s own data confirmed that arbitration is a faster, less expensive, and far more effective way for consumers to resolve disputes with companies than class action litigation.  The CFPB’s study showed that consumers who prevailed in an individual arbitration recovered an average of $5,389.  By contrast, the study showed that the average class action settlement for consumers who received cash payments was only $32.35.  And those consumers often had to wait as long as two years to receive the payment.  Class counsel, however, recovered a staggering $424,495,451.

Consumers who prevailed in individual arbitration thus received 166 times as much as the average putative class member.  Moreover, in the proposed arbitration rule that now has been finalized, the CFPB estimated that the 53,000 financial services companies who currently use arbitration agreements will now have to spend between $2.62 billion and $5.23 billion over the next five years to defend an additional 6,042 class actions.  The CFPB expects those numbers to be repeated every five years.

The final rule will take effect 60 days after publication in the Federal Register and will apply to agreements entered into more than 180 days after that.  In addition, the final rule raises numerous questions about whether arbitration agreements entered into before the effective date will survive when circumstances surrounding the agreements change after the effective date.

It is possible that one or more events could occur during the 240-day grandfather period that would stop the final arbitration rule from taking effect.  For example, the Financial Choice Act, which already has been passed by the House of Representatives, could become law; Congress could disapprove the rule under the Congressional Review Act; and legal challenges based on the failure of the final rule and arbitration study to comply with the Dodd-Frank Act and the Administrative Procedure Act could be asserted.

During the next 240 days, companies that do not presently use arbitration agreements in their financial services contracts should strongly consider adding them, since agreements entered into before the rule becomes applicable are grandfathered under existing law which is favorable to class action waivers.  In AT&T Mobility v. Concepcion, the U.S. Supreme Court held that the Federal Arbitration Act preempts state laws that refuse to enforce class action waivers in consumer arbitration agreements.  Moreover, companies currently using arbitration agreements should promptly consult with counsel to consider what steps they can take to reduce litigation risks in light of the CFPB’s final rule.



The CFPB is holding an “embargoed press call” today at 2 p.m. ET “to announce consumer protections.”  We are virtually certain that the “consumer protections” to be announced by the CFPB will be the release of its final arbitration rule at 4:30 p.m. ET, today.

Assuming the final arbitration rule is released, we will promptly report on what it provides and announce the date of a webinar that we will hold on the final rule.


I recently blogged about the rumor I heard from a reliable source that the CFPB will issue a final arbitration rule by the end of July.  That rumor appears to be gaining traction, with a major industry trade group telling its members today that it expects the CFPB to issue a final arbitration rule “very soon.”

If and when the CFPB issues a final rule, it will have a compliance date that is the 211th day after the rule is published in the Federal Register (which is approximately seven months after publication).  The same source who told me that a final rule will be issued by the end of July also told me that Director Cordray will leave the CFPB in the fourth quarter of this year to run for Ohio governor.  If a final rule were to be issued this month and Director Cordray were to resign by year-end, that would mean compliance with a final arbitration rule would not yet be required when Director Cordray leaves.

Assuming a new CFPB Director appointed by President Trump was in place before the compliance date of a final arbitration rule, could the new Director stay the compliance date?  The decision issued earlier this week by the U.S. Court of Appeals for the D.C. Circuit in Clean Air Council v. Pruitt raises questions as to whether Director Cordray’s successor could validly issue such a stay unilaterally.  In that decision, the D.C. Circuit ruled that the EPA lacked authority to stay the compliance date of an EPA rule concerning methane and other greenhouse gas emissions and vacated the stay.

The EPA rule became effective in August 2016 and required regulated entities to conduct a monitoring survey by June 3, 2017.  After several industry associations filed a petition with the EPA seeking reconsideration of the rule and a stay of the compliance date pending reconsideration, the new EPA Administrator appointed by the Trump Administration announced that the EPA was convening a proceeding for reconsideration and issued a 90-day stay of the compliance date.  The EPA thereafter published a notice of proposed rulemaking and announced its intention to extend the stay for two years while it reconsidered the rule.  Several environmental groups then challenged the stay in the D.C. Circuit.

While agreeing with the EPA that an agency’s decision to grant a petition to reconsider a regulation is not a reviewable final agency action, the D.C. Circuit ruled that it did have authority to determine whether the stay was lawful.  According to the D.C. Circuit, by suspending the rule’s compliance date, the EPA’s stay was essentially an order delaying the rule’s effective date and therefore “tantamount to amending or revoking a rule.”  As a result, the D.C. Court concluded that it had jurisdiction to review the stay order’s validity.

The D.C. Circuit rejected the EPA’s reliance on its broad discretion to reconsider its own rules, observing that while agencies do have such broad discretion, they must comply with the Administrative Procedure Act (APA), including its notice and comment requirements.  It also rejected the EPA’s argument that it had inherent authority to stay or not enforce a final rule while it reconsidered the rule, and instead deemed it necessary for the EPA to “point to something in either the Clean Air Act or the APA” giving it authority to stay the rule.  The court then concluded that the only provision cited by the EPA, a Clean Air Act provision, did not give it the claimed authority because that provision only allowed a stay if reconsideration was mandatory and the court found reconsideration was not required.  However, the court also noted that “nothing in this opinion in any way limits the EPA’s authority to reconsider the final rule and to proceed with its June 16 NPRM.”

Based on the  D.C. Circuit’s Clean Air Council decision, it appears that while a new CFPB Director could issue a NPRM to reconsider a final arbitration rule, he or she might be unable to unilaterally stay the final rule’s compliance date.  Instead, it could be necessary for the new Director to propose a stay of the final rule pending its reconsideration that would be subject to notice and comment.

It is also possible that the CFPB will issue a final payday loan rule in the next few months.  Since the CFPB stated in its proposed rule that a final rule would generally not become effective until 15 months after its publication in the Federal Register and Director Cordray’s term expires in July 2018, even if Director Cordray stays at the CFPB until the end of his term, a new CFPB Director should be in place before a final payday loan rule becomes fully effective. However, any stay of a final payday loan rule’s effective date by a new Director could similarly be subject to notice and comment.

Other possible routes exist for overturning a final arbitration or payday loan rule.  Either rule could be invalidated through legislation eliminating the CFPB’s authority to issue such rule, a resolution of disapproval under the Congressional Review Act, or a lawsuit challenging the rule’s validity based on the CFPB’s failure to comply with Section 1028 of Dodd-Frank (which authorized the CFPB to regulate pre-dispute consumer financial services arbitration provisions) and/or the APA.


California’s legislative effort to allow consumers to sue financial institutions for fraud even though they have agreed to arbitrate such disputes passed the Assembly Judiciary Committee this week and is expected to pass the full Assembly later this summer.  The bill, which passed the state Senate in May, would amend California’s civil procedure rules governing arbitration to prohibit courts from granting a motion to compel arbitration made by a financial institution which seeks to apply an otherwise valid arbitration agreement to a purported contractual relationship fraudulently created by the institution with the consumer’s personal identifying information and without the consumer’s consent.

We believe that this legislative effort is an exercise in futility since the bill, if passed, will be preempted by the Federal Arbitration Act (FAA), which makes arbitration agreements “valid, irrevocable, and enforceable.”  For example, the U.S. Supreme Court has held that states are prohibited from creating categorical exceptions to the FAA that Congress did not authorize.  Thus, it reversed a decision of West Virginia’s highest court which  refused to permit arbitration of personal injury and wrongful death claims brought against nursing homes.  And, this past May, in Kindred Nursing Centers Limited Partnership v. Clark, the Court reversed the Kentucky Supreme Court’s ruling that powers of attorney must specifically authorize the representative to enter into an arbitration agreement on behalf of the grantor, holding that the state court violated the fundamental FAA principle that arbitration agreements must be placed “on an equal footing with all other contracts” and cannot be singled out for special treatment.  Notably, even Professor Jeff Sovern, who is generally supportive of anti-arbitration initiatives and arguments, has asked,  “if California enacts the law, how can it avoid being preempted under the Federal Arbitration Act, as SCOTUS has interpreted it?”

Scores of consumer advocate groups have registered support for the California bill, while a similar number of industry and trade groups have voiced opposition.


I have previously expressed serious doubt whether Director Cordray will issue a final arbitration rule. In the CFPB’s last semi-annual regulatory agenda issued last year, the CFPB stated that the arbitration rule would be issued in February of this year. It is almost July and the CFPB has still not issued the rule. All they have stated publicly, most recently in May at the Chicago version of the PLI Annual Institute on Consumer Financial Services which I co-chair, is that the staff is still wading through comment letters and that the rule was not ready to be issued.

As I have stated previously, I think that the real reason for the delay is a result of Director Cordray’s concern that if he issued a final rule, Congress would nullify it under the Congressional Review Act (the “CRA”). Under the CRA,  through a joint resolution passed by a simple majority in the House and Senate and signed by the President, Congress may override any final rule within 60 legislative days after it receives notice of the rule. Already, at least 14 rules issued by agencies other than the CFPB have been nullified. However, Congress didn’t nullify the CFPB’s prepaid accounts rule. If a rule is nullified, then the agency is precluded from ever issuing a similar rule in the future.

I felt that the fear of a CRA override would be enough to deter Director Cordray from ever issuing a final arbitration rule. It appears that I may be wrong.

I’m now hearing a rumor from a reliable source that Director Cordray is willing to roll the dice and will issue a final arbitration rule by the end of July. If he does so, the rule will become effective on the 211th day after the rule is published in the Federal Register, well within Director Cordray ‘s remaining term which expires on July 21,2018. However, I heard from the same source who told me that the rule will be finalized by the end of July that Director Cordray will resign in the 4th quarter of this year to return to Ohio to run for governor.

So where does this leave us? If Cordray issues the rule by the end of July, there will certainly be an effort to override it under the CRA. It should succeed as long as the Republican Senators vote as a bloc to override it. With a 52-48 voting margin in the Senate, the Republicans can only afford to lose 2 votes and still pass the override resolution.

It is also likely that there will be a lawsuit filed challenging the legality of the rule. While I think there are very strong arguments in support of a court invalidating the rule, the outcome of litigation is always uncertain.

There is yet a potential third way for the arbitration rule to not become effective. If Director Cordray resigns to run for Governor of Ohio in the 4th quarter and President Trump appoints a successor (either a permanent one or a temporary one), and the rule is not yet effective, the successor could delay the effective date and then take steps to repeal the rule before it ever becomes effective. Of course, any such repeal would need to comply with the Administrative Procedures Act.

As you can see, there are lots of “moving parts” here and it is very uncertain how this will all play out.