Maintaining a federal class action concerning consumer rights has been historically difficult when there is a pending, competing government action. The difficulty arises from the so-called “superiority” requirement, which requires federal class action litigants to demonstrate the superiority of a class action relative to other available means of adjudication. 

This obstacle, however, may soon be easier to overcome if courts begin taking notice of the president’s desire to dismantle the Consumer Financial Protection Bureau (CFPB) and to scale back regulations designed to protect consumers.  Specifically, with regard to student loan borrowers, the President’s campaign rhetoric and post-election plans may support a decision that a class action lawsuit is a more reliable and superior way to enforce borrower rights relative to a competing action by a weakened CFPB or an inherently weak successor agency. 

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