Proposed Rules Would Take Away Banks’ “Get Out Of Jail Free” Card

Image courtesy of TLFagan

Many bank accounts, and almost all credit cards, wireless services, private student loans, and payday loans contain clauses in their contracts that strip consumers of their right to sue these companies, and their right to join others in a class action, effectively allowing businesses to sidestep the legal system. While lawmakers in Congress debate the issue, and the U.S. Supreme Court has repeatedly given its approval to these practices, the Consumer Financial Protection Bureau is making good on its pledge to restore consumers’ constitutional right to having their day in court.

Yes, we know that your eyes glaze over when you read the words “mandatory binding arbitration,” and that’s exactly what companies that use these clauses want — for consumers to be so bored by legalese and fine print that they just shrug and sign away their rights without knowing it.

In fact, when the CFPB released its report on arbitration in March 2015, it found that even though virtually all Americans are directly affected by at least one forced arbitration clause, that a stunning 75% of consumers don’t know whether or not they have the right to sue their banks or credit card companies, and that fewer than 7% of those with arbitration clauses could even understand the clauses that they had unwittingly agreed to.

Not only do arbitration clauses strip of your right to a jury trial if you have a legal dispute with these companies, most of them include a ban on class actions, even in arbitration. So if several customers are all wronged by a bank in the same way, they must each go through the arbitration process individually. Additionally, arbitration rulings set no precedent and rulings are often nothing more than a check mark in a box declaring which side won. Thus, the fact that one customer might be successful in arbitrating their claim does not guarantee that others would get the same result using the exact same evidence.

Aside from the annoyance of having to go the arbitration route solo when there is a class of similarly affected consumers, some cases are simply too expensive to mount on an individual basis.

Look at the case of American Express v. Italian Colors Restaurant. In that lawsuit, merchants who accepted American Express were trying to bring an antitrust lawsuit against the credit card network. They argued that, in spite of a ban on class actions in their merchant agreements, the only way they could possibly afford to put together a complaint of such a massive scope was as a group. Individually, the costs would outweigh any resulting damages awarded.

However, in 2013 a slim majority of the Supreme Court ruled that AmEx’s ban on class actions was legal. Writing for the dissenting minority in that ruling, Justice Elena Kagan summarized the majority’s opinion in three words: “Too darn bad,” and called it a “betrayal of our precedents, and of federal statutes like the antitrust laws.”

Many consumer advocates argued that with this ruling SCOTUS gave companies a free pass to commit abuses that are too expensive for a single party to prove on their own.

“Forced arbitration is a get-out-of-jail-free card that lets banks, payday lenders, and debt relief scammers avoid accountability when they violate the law,” explains Lauren Saunders, associate director of the National Consumer Law Center. “Forced arbitration and class action bans force consumers into a biased, secretive, and lawless forum, preventing either a court or an arbitrator from ordering a lawbreaker to repay all of its victims.”

The same holds true for cases where the dollar amount of any damages would be too low to merit an individual complaint. According to the CFPB report, fewer than 2% of credit card customers said they would even consider consulting an attorney over a small-dollar legal dispute with their card company, and so only a very few would ever think to enter into arbitration, meaning the company can continue its bad actions unchecked.

But a class action only needs a small number of plaintiffs and evidence showing widespread malfeasance, meaning that not only could more consumers get their money back, but that the company will be held to account for its bad behavior.

At the same time as the nation’s highest court was repeatedly affirming its anti-consumer view of arbitration agreements, the Dodd-Frank financial reforms of 2010, which created the CFPB, also directed the Bureau to look into the use of arbitration in financial services, and to draft regulations in the public interest that are consistent with the results of that study.

And so this morning the CFPB is releasing its proposal for public comment. As expected, it’s not an outright ban on the use of arbitration agreements. Instead, affected companies — in the financial and credit fields — would only be able to use arbitration clauses if they do not also include a ban on class actions. And rather than leave it up to lawyers for these companies to determine how to word this particular clause, the CFPB will provide specific language to be used.

And since companies claim that arbitration actually benefits consumers, these businesses will be required to provide information to the CFPB regarding the number of arbitration claims that are filed against it and details on the awards provided to consumers who arbitrate.

“Signing up for a credit card or opening a bank account can often mean signing away your right to take the company to court if things go wrong,” said CFPB Director Richard Cordray. “Many banks and financial companies avoid accountability by putting arbitration clauses in their contracts that block groups of their customers from suing them. Our proposal seeks comment on whether to ban this contract gotcha that effectively denies groups of consumers the right to seek justice and relief for wrongdoing.”

Since the CFPB began the rulemaking process in 2015, the banking industry has made several attempts to scuttle the CFPB’s efforts to rein in arbitration.

The Womack-Graves Amendment — named for Reps. Steve Womack (AR) and Tom Graves (GA) — to the Financial Services and General Government Appropriations Act sought to compel the CFPB to effectively redo its entire three-year arbitration study before moving forward with any regulations. That rider ultimately got the axe, but its supporters have vowed to continue fighting against restrictions on the practice.

Last week, Rep. Sean Duffy of Wisconsin — whose campaign has received more than $300,000 from the financial, credit, banking, and investment industries thus far in the 2016 election cycle and who received more than $350,000 from these same industries only two years ago — wrote a letter to CFPB Director Cordray, informing him of a pending investigation into the arbitration rule by the House Financial Services Committee, and demanding that the Bureau produce information regarding any communication between CFPB officials, consumer advocacy groups, and organizations representing trial attorneys.