by Jeff Sovern
On Saturday, I posted an entry, Kaplinsky & Levin Concede "Consumers rarely pursue individual arbitration" But Miss Mark on Why. Maybe it irritated Alan and Mark, because they then posted Professor Sovern Disagrees with Senator Warren and Concedes that Consumers Do Well in Arbitration But Raises Another Red Herring. I guess I should set the record straight in case anybody believed that headline (or cares what I think, something that I have learned from having teenage children not to expect).
First, while I am sure I disagree with Senator Warren about many things (she seems to root for the Patriots, for example), I absolutely agree with her about the value of the CFPB arbitration rule. Second, I do not concede that consumers do well in arbitration. As a general matter, I think consumers do better when they can bring class actions than when they unwittingly surrender their class action rights and are limited to arbitration. I would have thought Alan and Mark knew my views on this point, in part because they once wrote an op-ed, titled Consumers Fare Better with Arbitration, responding to an op-ed that I had written. So I’m at a loss to know why they headlined their post the way they did. I wondered if maybe they were trying, in a tongue in cheek way, to suggest that they had not actually made the concession I said in my post that they had made–by claiming I had conceded something I didn’t concede. But as their post doesn’t actually contradict my claim that they had conceded that consumers rarely pursue arbitration, I don’t think that was what was going on.
On to substance: Alan and Mark praise the CFPB complaint database in their post, asking “What do class actions accomplish for consumers that is better than this?” I certainly agree that the complaint database is a positive for consumers. But I don’t think it’s a substitute for class actions. And even if I did, as members of Congress have called for barring public access to the complaints in the database, continued access to that database is far from guaranteed.