Close X
Attorney Spotlight

How does Jordana Nelson's prior experience as a general counsel inform her work with firm clients? Read more>


Close X


Search our Experience

Experience Spotlight

The M&A Advisor Winner 2017The M&A Advisor announced the winners of the 16th Annual M&A Advisor Awards on Monday, November 13 at the 2017 M&A Advisor Awards. Bass, Berry & Sims was named a winner in the two categories related to the following deals:

M&A Deal of the Year (from $1B-$5B) – Acquisition of CLARCOR Inc. by Parker Hannifin Corporation

Corporate/Strategic Deal of the Year (over $1B) – Acquisition of BNC Bancorp by Pinnacle Financial Partners

Close X

Thought Leadership

Enter your search terms in the relevant box(es) below to search for specific Thought Leadership.
To see a recent listing of Thought Leadership, click the blue Search button below.

Thought Leadership Spotlight

Regulation A+

It seems that lately there has been a noticeable uptick in Regulation A+ activity, including several recent Reg A+ securities offerings where the stock now successfully trades on national exchanges. In light of this activity, we have published a set of FAQs about Regulation A+ securities offerings to help companies better understand this "mini-IPO" offering process, as well as pros and cons compared to a traditional underwritten IPO.

Read now

Consumer Financial Protection Bureau Proposed Rule Bans Arbitration Class Action Waivers

Firm Publication


May 6, 2016

On Thursday, the Consumer Financial Protection Bureau (CFPB) released its long-awaited proposed regulation banning consumer financial companies and their affiliates from including in their contracts arbitration provisions that customers agree to arbitrate individually their complaints rather than bringing or being part of a class action lawsuit. The CFPB first announced it was considering such a ban in October of last year.

Although arbitration provisions have been challenged on multiple grounds, including unconscionability and violation of state consumer protection acts, the U.S. Supreme Court and lower courts have consistently upheld their legality. In the face of those decisions, and the authorization of such provisions in the Federal Arbitration Act, the CFPB nonetheless has concluded that its proposed Rule is in "the public interest and for the protection of consumers" (Dodd-Frank Act, Sec. 1028 (b)) because such arbitration provisions result in consumer financial companies getting a "free pass" to "side step the legal system, avoid big refunds, and continue to pursue profitable practices that may violate the law and harm countless consumers." (CFPB press release, October 7, 2015) (CFPB press release, May 5, 2016).

The proposed Rule:

1) Prohibits use of pre-dispute arbitration provisions that compel a consumer to arbitrate claims individually rather than by participating in a class action lawsuit.

2) Requires covered consumer financial companies  providing financial and consumer products and services include the following in their arbitration agreements:

We agree that neither we nor anyone else will use this agreement to stop you from being part of a class action case in court. You may file a class action in court or you may be a member of a class action even if you do not file it.

3) If several products or services are being provided, but some of are not covered by the Rule, the following notice may be included:

We are providing you with more than one product or service, only some of which are covered by the Arbitration Agreements Rule issued by the Consumer Financial Protection Bureau. We agree that neither we nor anyone else will use this agreement to stop you from being part of a class action case in court. You may file a class action in court or you may be a member of a class action even if you do not file it. This provision applies only to class action claims concerning the products or services covered by that Rule.

4) Requires consumer financial companies provide to the CFPB records relating to all arbitrations concerning consumer financial products and services within 60 days of filing or receipt.

5) Applies not only to covered consumer financial companies, but also their affiliates.

A challenge to the CFPB's regulation is inevitable. CFPB's efforts to eliminate class action waivers in consumer arbitration agreements depends upon a determination it did not exceed its rule making authority by restricting or prohibiting the use of arbitration agreements.

The CFPB justifies the Rule based on data used and conclusions reached in its March 2015 Arbitration Study Report to Congress. This empirical study is certain to be analyzed and tested by the consumer financial services industry to determine whether it supports the CFPB's view that the public interest and protection of consumers requires a regulation restricting, or even outlawing, otherwise enforceable arbitration terms in consumer contracts.

The CFPB's Proposed Rule and interpretation can be found here.

Related Professionals

Related Services


Visiting, or interacting with, this website does not constitute an attorney-client relationship. Although we are always interested in hearing from visitors to our website, we cannot accept representation on a new matter from either existing clients or new clients until we know that we do not have a conflict of interest that would prevent us from doing so. Therefore, please do not send us any information about any new matter that may involve a potential legal representation until we have confirmed that a conflict of interest does not exist and we have expressly agreed in writing to the representation. Until there is such an agreement, we will not be deemed to have given you any advice, any information you send may not be deemed privileged and confidential, and we may be able to represent adverse parties.