Arbitration Fairness for Consumers Act

“1036A. No validity or enforceability of predispute arbitration agreements or joint-action waivers

“(a) Definitions—In this section:

“(1) Class action—The term class action means a lawsuit in which 1 or more parties seek or obtain class treatment pursuant to rule 23 of the Federal Rules of Civil Procedure or comparable rule or provision of State law.

“(2) Consumer dispute—The term consumer dispute means a dispute between—

“(A) an individual, including an individual who seeks certification as a class under rule 23 of the Federal Rules of Civil Procedure or a comparable rule or provision of State law, who for personal, family, or household purposes, seeks or acquires—

“(i) real or personal property;

“(ii) services, including services related to digital technology;

“(iii) securities or other investments;

“(iv) money; or

“(v) credit; and

“(B) the seller or provider of such property, services, securities or other investments, money, or credit, including a third party involved in the selling, providing of, payment for, receipt or use of information about, or other relationship to any such property, services, securities or other investments, money, or credit.

“(3) Predispute arbitration agreement—The term predispute arbitration agreement means an agreement to arbitrate a dispute that has not yet arisen at the time of the making of the agreement.

“(4) Pre-dispute joint-action waiver—The term pre-dispute joint-action waiver means an agreement, whether or not part of a predispute arbitration agreement, that would prohibit, or waive the right of, one of the parties to the agreement to participate in a joint, class, or collective action in a judicial, arbitral, administrative, or other forum, concerning a dispute that has not yet arisen at the time of the making of the agreement.

“(b) No validity or enforceability of predispute arbitration agreements or joint-Action waivers

“(1) In general—Notwithstanding any other provision of law, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a consumer dispute between a covered person and a consumer that relates to a consumer financial product or service.

“(2) Applicability—An issue as to whether this section applies with respect to a dispute shall be determined under Federal law. The applicability of this chapter to an agreement to arbitrate and the validity and enforceability of an agreement to which this section applies shall be determined by a court, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing the agreement, and irrespective of whether the agreement purports to delegate such determinations to an arbitrator.”