Pub. 16 2021-22 Issue 3

NEBANKERS.ORG 12 COUNSELOR’S CORNER Kenneth W. Hartman , Baird Holm, LLP O NE OF THE ASPECTS MANY NEBRASKANS LOVE SO MUCH about our state is that we get to experience all four seasons. As the calendar rolls into the second half of the year, our kids start going back to school, Friday night lights become the focal point of our communities, and we soon get to watch a football being tossed around Memorial Stadium on Saturdays. Fall is right around the corner. Many use the change in seasons as a time to focus on a particular task (how many of us are spring cleaners?) or prepare for the coming season. Likewise, you can use the march toward fall as a Fall Retrospective — a time to review your customer account agreements to determine if you need to update them in any way. As you review those agreements, one item to which you can direct your attention is whether you spell out how disputes between the customer and the bank will be resolved. A few years ago, many financial institutions shied away from inserting dispute resolution provisions requiring arbitration into their account agreements because the Consumer Financial Protection Bureau (the “CFPB”) went through a process resulting in a rule that would have prohibited such provisions. In particular, the CFPB refused provisions that paired binding arbitration with class action waivers. The CFPB was concerned that without the ability to bring class action litigation, consumers would be limited in their ability to seek relief against financial institutions. However, Congress acted to prevent that rule from being able to have any force and effect. In fact, Congress was so concerned with the rule, it required that any such provision limiting arbitration in the future would need congressional approval. Whether you decided not to include arbitration provisions with class action waivers in your customer agreements because of the activity of the CFPB or for some other Let the Coming Changing of the Seasons Trigger a Fall Retrospective