Class Action in Consumer Finance Agreements - Podcast

Litigation Practice Group Podcast
Jason Johnston, Thaddeus King July 27, 2016

The Federal Arbitration Act (FAA), passed in 1925, generally requires courts to look favorably upon all arbitration agreements. In 2011, the Supreme Court upheld an arbitration agreement in a contract for mobile phone services that contained a class action ban. The court ruled that a state law that prevented the class action ban from being enforced was “an obstacle to the accomplishment of the FAA’s objectives.”

However, Congress passed the Dodd-Frank Act in 2010, which authorizes the Consumer Financial Protection Bureau (CFPB) to study arbitration agreements in consumer contracts and limit or prohibit them if doing so would be in the public interest and for the protection of consumers. In May 2016, the CFPB issued a proposed rule that would ban arbitration agreements that acted to prevent class action lawsuits and would further establish certain reporting requirements for other arbitrations that are filed between consumers and providers.

Our experts discussed this proposed rule, including the history that led us to this point and the potential impact it will have if it is finalized.


  • Prof. Jason Johnston, Henry L. and Grace Doherty Charitable Foundation Professor of Law, University of Virginia School of Law 
  • Thaddeus King, Officer, Consumer Banking,The Pew Charitable Trusts

DIRECTV v. Imburgia - Post-Decision SCOTUScast

SCOTUScast 12-15-15 featuring Cory Andrews
Cory L. Andrews December 17, 2015

On December 14, 2015, the Supreme Court decided DIRECTV v. Imburgia. This case involves a class action lawsuit against DIRECTV by various California customers.  Among other things, the agreement between DIRECTV and its customers contained a waiver of any right by either party to undertake class arbitration, unless “the law of your state” made such waivers unenforceable.  At that time class arbitration waivers were unenforceable under California law, but in a subsequent case the United States Supreme Court held that this California rule was preempted by the Federal Arbitration Act (FAA).  Concluding that the parties had intended to apply the rule as it existed prior to the Supreme Court decision, California trial and appellate courts refused to enforce the arbitration provision.  The question before the Supreme Court was whether the FAA permitted this outcome; namely, the application of state law that had since been preempted by the FAA.

By a vote of 6-3, the Supreme Court reversed the judgment of the California Court of Appeals and remanded the case. Justice Breyer delivered the opinion of the Court, holding that the arbitration provision must be enforced because the California appellate court’s interpretation was preempted by the FAA.

Justice Breyer’s opinion was joined by the Chief Justice and Justices Scalia, Kennedy, Alito, and Kagan. Justice Thomas filed a dissenting opinion. Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined.

To discuss the case, we have Cory Andrews, who is Senior Litigation Counsel at the Washington Legal Foundation.

DIRECTV v. Imburgia - Post-Argument SCOTUScast

SCOTUScast 11-6-15 featuring Cory Andrews
Cory L. Andrews November 06, 2015

On October 6, 2015, the Supreme Court heard oral argument in DIRECTV v. Imburgia. This case involves a class action lawsuit which argues that DIRECTV improperly charged early termination fees to its customers. The question is whether the California Court of Appeal erred by holding that a reference to state law in an arbitration agreement governed by the Federal Arbitration Act requires the application of state law preempted by the Federal Arbitration Act.

To discuss the case, we have Cory Andrews, who is Senior Litigation Counsel at the Washington Legal Foundation.

The Future of Arbitration Agreements after the CFPB Study - Podcast

Litigation Practice Group Teleforum
Deepak Gupta, Andrew J. Pincus July 17, 2015

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 instructs the Consumer Financial Protection Bureau to study “the use of agreements providing for arbitration of any future dispute . . . in connection with the offering or providing of consumer financial products or services,” and to provide a report to Congress on the same topic.  This past March, the CFPB issued its study, pursuant to the statutory requirement.  Is the “arbitration study” an anti-arbitration study?  Our experts discussed the report and its implications.

  • Mr. Deepak Gupta, Founding Principal, Gupta Wessler PLLC
  • Mr. Andrew J. Pincus, Partner, Mayer Brown LLP

BG Group PLC v. Republic of Argentina - Post-Decision SCOTUScast

SCOTUScast 3-28-14 featuring Erica Birg
Erika C. Birg March 28, 2014

Erika BirgOn March 5, 2014, the Supreme Court issued its decision in BG Group PLC v. Republic of Argentina. The question in this case is whether, in disputes involving a multi-staged dispute resolution process, a court or the arbitrator determines whether a precondition to arbitration has been satis?ed.

In a 7-2 opinion delivered by Justice Breyer, the Court held that, when reviewing an arbitration award made under an international treaty, U.S. courts should interpret and apply "threshold" provisions concerning arbitration using the framework developed for interpreting similar provisions in ordinary contracts. Under that framework, the local litigation requirement is a matter for arbitrators primarily to interpret and apply, and courts should review their interpretation with deference.

The opinion of the Court of Appeals for the District of Columbia Circuit was reversed. Justices Scalia, Thomas, Ginsburg, Alito, and Kagan joined in the opinion of the Court. Justice Sotomayor joined except for Part IV-A-1. Justice Sotomayor filed an opinion concurring in part. Chief Justice Roberts filed a dissenting opinion, which Justice Kennedy joined.

To discuss the case, we have Erika Birg, who is a partner at Nelson Mullins.