Banks keep saying over and over that arbitration proceedings, as opposed to class-action lawsuits, are the best way for consumers to handle disputes.
Yet faced with the prospect of no longer being able to deny consumers the right to sue them, the banking industry is expected to take the deliciously ironic step of suing the federal government.
At issue is a proposed rule from the Consumer Financial Protection Bureau that would prohibit financial-services firms from placing clauses in contracts stipulating that customers can only arbitrate disagreements. The clauses prevent customers from suing on an individual basis or from joining class-action lawsuits.
“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,” Richard Cordray, director of the federal agency, said after the proposed rule was announced this month. He called mandatory arbitration a “contract gotcha” that “denies groups of consumers the right to seek justice and relief for wrongdoing.”
Arbitration still could be required for individual grievances under the rule, but that’s not a very big deal because few consumers file individual suits over small amounts.
The big deal here is that financial firms no longer would be able to block consumers from coming together in class-action lawsuits.
The bureau is now receiving public comment on the rule, which has been in the works for months. If finalized, it probably would take effect next year.
The Republican head of the House Financial Services Committee has scheduled a hearing for Wednesday on whether the rule is in the public’s best interest. Rep. Jeb Hensarling, R-Texas, the committee chairman, called the bureau’s proposal “a big, wet kiss” to trial lawyers.
The banking industry, for its part, has yet to declare that a legal challenge is inevitable but is wasting no time in voicing opposition to what it sees as an unnecessarily heavy regulatory hand.
“Consumers will get less and pay more if the CFPB’s proposal to sideline arbitration and promote class actions is ultimately adopted,” Rob Nichols, head of the American Bankers Association, said in a statement.
Law firm Morrison Foerster, which advises banks on regulatory matters, concluded in a note to clients last week that if the final rule is similar to what’s now on the table, “it seems likely that the proposed rule will be challenged” in court.
Other law firms have reached a similar conclusion. “Now the main event begins,” said Alston & Bird after the proposed rule was issued.
Morrison Foerster said banks would focus their challenge in part on the ideas that “consumers have a choice as to whether they want to enter into an arbitration agreement” and that “the procedures in arbitration and judicial proceedings are very similar.”
Here’s the thing, though: Consumers don’t and the procedures aren’t.
Christine Hines, legislative director for the National Association of Consumer Advocates, a trade group for trial lawyers, said consumers have no real choice when every service provider in an industry requires mandatory arbitration.
She also pointed out that in arbitration, it’s the company, not the consumer, who picks and pays for the arbitrator — and the vast majority of rulings favor businesses.
“Industry claims would be laughable if the issue wasn’t so serious,” Hines told me. “Bank customers will have meaningful choice when they can choose how to resolve disputes after they arise, not when arbitration is forced on them in the corporate fine print.”
She added: “It is supremely ironic that they want to sue an agency for seeking to restore people’s ability to exercise the same right.”
Although the U.S. Supreme Court has given its seal of approval to arbitration clauses, the Consumer Financial Protection Bureau was empowered by the financial reform law enacted in 2010 to study and regulate their use by financial firms.
This includes banks, credit card issuers, car-leasing companies and debt collectors.
The proposed rule wouldn’t affect nonfinancial businesses that also routinely use arbitration clauses, such as phone companies, pay-TV providers and rental car firms.
A study by the bureau last year found that “very few consumers ever bring — or think about bringing — individual actions against their financial service providers either in court or in arbitration.” It concluded that “class actions provide a more effective means for consumers to challenge problematic practices by these companies.”
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