The Consumer Financial Protection Bureau is on the verge of correcting a fundamental perversion of our justice system and restore to consumers their right to their day in court when they are wronged by a bank or credit card company.
A new regulation that the agency announced on Thursday it is publishing for public comment will sharply limit the routine use of binding arbitration to keep disputes consumers have with financial services companies out of the court system.
If you have a bank account, credit card or receive some other financial service, you most likely have a binding arbitration clause buried in the fine print of the contract associated with the service. It basically says that if you agree to use the service, you also agree to resolve any disputes you have with the company through an arbitrator.
To most consumers, that sounds like an OK deal – arbitration in theory is a simple and fair way to deal with a billing dispute or some other disagreement. But it turns out, it's not. That's what The New York Times discovered when it did its own investigation into the arbitration process. It turns out few customers use the arbitration process, and when they do, consumers lose roughly two-thirds of the time.
The big win for financial institutions and other businesses in requiring binding arbitration is that consumers who have the same problem can't come together to file a class action suit. It means that companies can commit the same injustice millions of times, but can proceed with impunity knowing that only a handful of people will challenge it – and not under the purview of a judge with the power to order the company to stop the unjust practice.
The CFPB's own study of these clauses also found that consumers rarely use arbitration – or are even aware of the arbitration process. But it showed why financial institutions would do whatever they can get away with to keep consumers from filing class action suits, because "class actions provide a more effective means for consumers to challenge problematic practices by these companies," and have succeeded in a five-year period to channel $2.7 billion in relief to aggrieved consumers.
The CFPB calls these binding or mandatory arbitration clauses "contract gotchas" in its news release. "With this contract gotcha, companies can sidestep the legal system, avoid accountability, and continue to pursue profitable practices that may violate the law and harm countless consumers. The CFPB’s proposal is designed to protect consumers’ right to pursue justice and relief, and deter companies from violating the law."
Americans for Financial Reform, a coalition of organizations of which the Campaign for America's Future is a part, released a statement Thursday that gave these clauses an even harsher name: "ripoff clauses." The proposed regulation does not eliminate binding arbitration entirely, the statement said – and it notably does not affect businesses outside the financial sector that the CFPB does not regulate, such as wireless carriers and cable companies. But "it does prohibit [financial services] companies from using one of the most damaging and common elements of the practice — bans on class actions. ... By allowing consumers to once again band together to hold companies accountable, the CFPB will ensure that one of the corporate avenues for forcing consumers into individual arbitration is foreclosed."
This regulation will face fierce opposition from Wall Street. Expect to hear ads on television and complaints from Republican elected officials about the "unaccountable CFPB" taking actions that will cause consumers some trumped-up harm. Behind the scenes, the CFPB will be bombarded with comments from the financial sector essentially insisting on the right to be able to bilk consumers without them being able to band together and fight back.
Tell the CFPB that you as a consumer don't want Wall Street to keep getting away with locking people into abusive relationships in which you have no effective recourse. Send an email to FederalRegisterComments@cfpb.gov or make a comment on Regulations.gov, referring to Docket No. CFPB-2016-0020 or RIN 3170-AA51 in the subject line, saying that you support the CFPB reining in arbitration abuse and restoring the right of citizens to demand justice against Wall Street institutions in a court of law.