Class Action Against Credit Card Companies Conspiring To Make Us All Accept Mandatory Arbitration Revived

Ross vs Bank of America is a class action suit against a pile of banks alleging that they conspired to make all consumers accept mandatory binding arbitration clauses. It got a boost on Friday when the Second Circuit remanded it back to lower courts for further consideration (read the 15 page decision here). The previous court had dismissed the case because it felt plaintiffs couldn’t prove actual injury. The Second Circuit reversed, saying, “A card that limits the holder to arbitration is less valuable (all other factors being equal) than a card that offers the holder a choice between court action or arbitration.” What did these banks do that was so bad? The plaintiffs claim a broad conspiracy between all the credit card players to institute mandatory arbitration agreements and kill off all non-arbitration agreement cards on the market, a gross violation of antitrust laws. Here’s the breakdown:

[b]eginning before late 1998 or early 1999, Defendants began communicating with each other and their co conspirators concerning the imposition and use of mandatory arbitration clauses.” After preliminary meetings and communications, the banks formed an “Arbitration Coalition” to recruit other credit card issuers into using mandatory arbitration clauses. Over the next four years, the Arbitration Coalition held more meetings, shared plans for the adoption of arbitration clauses, and spun off additional working groups. Ultimately, “Defendants jointly forced unwilling and unaware cardholders to accept arbitration clauses and class action prohibitions on a ‘take-it-or-leave-it basis’ through the joint exercise of immense market power.”

The cardholders argue that the banks’ collusion violated the antitrust laws. According to Plaintiffs-Appellants, the banks conspired in order “to immunize themselves from economic responsibility for antitrust and consumer protection violations, and to reap supra-competitive profits from their cardholders.” The cardholders also contend that the alleged collusion produced several market effects, including the creation of a “non-price trade advantage over cardholders” and the removal of any economic incentive for the banks to comply with antitrust and other laws, thereby shifting the risk and cost of their non-compliance to cardholders. The collusion is also alleged to have resulted in an increase in dispute related costs to individual cardholders (including monitoring the banks’ conduct and seeking relief through costly individual arbitrations), the removal of all non-arbitration credit cards from the market, thereby depriving the cardholders of meaningful choice in the area of credit card services, and a diminution in the overall quality of credit services offered to consumers.

The Complaint sets forth two antitrust claims against the banks. The first claim alleges a conspiracy to impose mandatory arbitration clauses in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. The second claim alleges that the banks participated in a group boycott by refusing to issue cards to individuals who did not agree to arbitration, also in violation of Section 1

Docket No. 06-4755-cv

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  1. azntg says:

    Oooh! The plot thickens!

    As far fetched as the lawsuit sounds, I wouldn’t be surprised if it was true. Banks are a closed circuit after all. Who’s to say they won’t get together and start colluding?

  2. azntg says:

    Actually, for my Washington Mutual Credit Card, there was an arbitration opt-out clause. I wrote in and opted-out. Didn’t receive any confirmation of receipt from them though.

  3. Nail them to collectively to the wall and fine them until they bleed (do to them what they do to customers). I am so happy I cut up my last credit card 3 years ago.

    Cash, checks or Debit only for me. Talk about a peace of mind not having to worry about the next sneaky things CC companies will try and pull.

  4. boomerang86 says:

    I cancelled a Citi Mastercard of mine years ago when they forced me to accept arbitration to keep my account. I now have two cards from local credit unions that don’t force that silly mandatory arbitration clause on their members; that’s probably one of the last places you can get those kind of terms.

  5. @boomerang86: Thanks for reminding me I need to get my credit union’s card so I can fire Capital One. Nothing personal against Capital One; they haven’t boned me yet, but (1) local is (usually) better and (2) the APR, should I need to carry a balance, is about 2/3 of what Capital One is currently charging.

  6. johnva says:

    @Steaming Pile: Local is usually worse if you’re talking about credit card rewards programs (which is my main criteria for picking a card).

  7. redragon104 says:

    credit card rewards program costs just get passed onto the businesses that you use them at. So pay cash at small businesses that you like :).

  8. thirdbase says:

    Evil money gubbing credit card issuing banks. I hope they lose. And if they don’t pay the fine on time they should make em pay 29.9% more

  9. johnva says:

    @redragon104: …and the businesses pass on the costs in the form of higher prices, not just for people who use credit cards, but for everyone. So by paying cash you are subsidizing the people who use rewards cards. So while they may raise prices for everyone, they benefit me personally. I’m going to take advantage of that in order to get what amounts to a sizable discount.

    But yes, at some small businesses I do try to use cash for this reason. I have no moral qualms whatsoever about using them at any large corporate business.

  10. snoop-blog says:

    from my experience, the only people who really benefit from a credit card are people who probably would never financially need one.

    ex: people who use them to buy stuff they can’t afford = bad deal

    people who are rich and just pay the balance off every month, get free rewards (whoopee!) and therefore = good deal.

  11. zentec says:

    @snoop-blog:

    And there lies the education that needs to be drilled into everyone’s head.

    Or put another way, if you can’t pay cash right now, a credit card is a horrible loan. Keep it in your pants.

  12. johnva says:

    @snoop-blog: Paying off the balance in full has nothing to do with being rich. It just means that you budget carefully so that you don’t spend more than you can pay monthly. You can do that just as easily when you’re poor as when you’re rich, and in fact it’s more important to do it when you’re poor. Poorer people can less afford to pay interest, so it’s more important that they pay in full every month than that a rich person do that.

    And there are other benefits to having a credit card, like convenience and better protection against fraud or theft.

  13. highmodulus says:

    By going cash you limit your ability to utilize the number one anti-sleazy company or defrauded customer tool– the charge-back. Also free extended warranties, rental car insurance, rewards programs, buffing your credit score for mortgage (and increasingly job application) purposes.

    Debits give straight access to your checking- a frightening prospect if that info gets scammed/stolen from a retailer. Your money is gone, checks bouncing like crazy, multiple businesses hitting you with hefty fees for those bounced checks. Much safer to use credit over debit IMHO.

    Credit cards are a tool, used properly they are a benefit and an advantage for the savvy consumer. Used improperly, or used without research and diligence- that tool can injure you greatly.

    FWIW Steaming Pile, long term credit card accounts in good standing are “very good things” for your credit score. A possible factor to consider before nuking one.

  14. @highmodulus: So if I already own a home, and a car, and have a zero balance on my credit cards, why would I be overly concerned about my credit score? I have paid my bills on time for nearly thirty years. Until I had the brilliant idea of paying off my car loan early, I had money in the bank (earning 0.75% interest – ugh!). What else could a potential lender ask for?

    I’m WAAAAAAAAAAAAAAY past the point where I have to do tricks to boost my credit score. I bet I could switch cards every week for a year and my FICO wouldn’t drop below 750.

  15. johnva says:

    @Steaming Pile: Insurance rates (especially for auto insurance) are highly affected by your credit score. That’s a good reason to care even if you don’t ever want to take out a loan. The world is changing, and these little computerized numbers are getting more and more important.

  16. @johnva: Prove it. I have had the same auto insurance company for the past 22 years. I also have a sparkly-clean driving record, which is FAR more important – believe me – than my FICO score. I’m sorry, but I don’t think I need to kiss the credit bureau’s collective ass. If we all stopped doing it, maybe it wouldn’t be so damned important.

  17. @Steaming Pile: Let me paraphrase that. At my age, the credit bureaus, credit card companies, mortgage companies, auto credit acceptance companies, etc., need to start kissing MY ass.

  18. timmus says:

    @azntg: I wrote in and opted-out. Didn’t receive any confirmation of receipt from them though.

    You did send it certified return receipt, right? The return receipt is your receipt.

  19. johnva says:

    @Steaming Pile: Yes, your driving record is more important to your insurance rates (duh). But after that, credit scores are one of the biggest factors at most insurance companies. This isn’t just something I’m pulling out of my butt. Research it yourself if you don’t believe me. It’s because you’re less likely to file a claim if you have a good credit score.

    And I’m certainly not kissing the credit credit bureaus’ asses. The existence of FICO scores has been nothing but good for me (it tends to be if you have good credit). And certainly there is much to criticize in this system, for example, the fact that they are allowed to charge you money to see your own score. But it’s not hard to have a good credit score. Just use credit and pay your bills.

  20. BigNutty says:

    Arbitration is the holy grail of consumer rip offs. A good article is posted on the Public Citizen Website.

    [pubcit.typepad.com]

    If the banks win this lawsuit, they will feel they are untouchable.

  21. rellog says:

    Would they just pass an anti-arbitration law already. Arbitration was meant for a completely different situation that how it is used today. Yet another perversion by unscrupulous businesses in America…

  22. WraithSama says:

    @highmodulus:
    Right. If someone scams your credit card, they’re stealing the CC company’s money and your potential liability is, by law, fairly low.

    On the other hand, if someone scams your debit card, that’s YOUR cash they’re screwing with, and your liability is potentialy unlimited. Even if you can get your bank to credit you the stolen money, that’s money you have to go without until it’s resolved.

  23. Ecoaster says:

    Have any of you bought a new car lately? There’s probably an arbitration clause on the contract that you signed. It’s pretty much everywhere now.

  24. humphrmi says:

    @snoop-blog:

    people who are rich and just pay the balance off every month

    Not everyone who pays off their balance every month is “rich”.

  25. JustThatGuy3 says:

    @snoop-blog:

    Fundamentally, it’s great to use a “charge” card, and terrible to use a “credit” card.

  26. FrugalFreak says:

    @Steaming Pile:

    Enjoy bragging often Pile? A medical crisis, or other calamity could make your so called solid footing look like a razor’s edge.

    No one is completely 100% immune.

  27. snoop-blog says:

    @humphrmi: geez i made an over-exagerated statement. i meant if you can afford to rack up $500-$1000 on a card per month and pay it down, you are rich compared to my broke ass.

    i’m really surprised to see people take ME so literal.

  28. MissGayle says:

    If you’re worried about someone stealing your debit card, take it or the cash and buy yourself a “gift” card instead. Then toss it and get a new one next paycheck.