JIM HENRY

Don't count dealer reserve out yet

Jim Henry is a special correspondent for Automotive News.Jim Henry is a special correspondent for Automotive News.
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There's a fair amount of opinion around that it's too soon to conclude that dealer reserve is on the way out. But perhaps few are as sure or as outspoken as attorney Randy Henrick that the practice still has traction.

Henrick is associate general counsel for Dealertrack. He said in a recent phone interview that the CFPB is "dead wrong" in its interpretation of the Equal Credit Opportunity Act. Specifically, he criticized the CFPB's use of the disparate impact theory.

The CFPB's theory is that if lender practices have a disparate impact -- that is, causing legally protected classes such as minorities to pay higher rates -- that's discrimination, even if it's unintentional. The CFPB has proposed that lenders should switch to flat fees to avoid the potential for discrimination.

But Henrick maintains that legally, discrimination has to be intentional. He has high hopes that Congress will rein in the CFPB. The bureau hasn't "been making any friends in Congress," he said, because the bureau has refused to say exactly how it concluded that auto lenders may be creating a disparate impact.

The bottom line, Henrick said, is that dealer reserve isn't dead.

"I still don't think it's got to be the end of rate participation," he said. "I don't see that happening at all."

You can reach Jim Henry at autonews@crain.com.

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