Abusive financial practices will only stop if consumers have an effective way to defend themselves.
I say this as the CEO of a loan fund and of a 35-year-old credit union, which have a combined value of $2 billion. Credit unions pride themselves on treating their members fairly, which is why the vast majority of credit unions do not use forced arbitration.
Many companies bury forced arbitration provisions in the fine print of their contracts, which (as the name implies) force consumers into arbitration and prevents them from pursuing a class action lawsuit should a dispute arise – such as when a credit card company charges a consumer for a service not provided. This practice takes away Americans’ right to their day in court, eliminating an essential protection against predatory financial practices. The forced arbitration provision has been nicknamed the “rip-off clause,” because it lets companies wrongfully take money and get off scot-free.
When a bank charges an unfair fee, it may collect tens of dollars from each individual customer, but it takes in millions of dollars cumulatively. Class action lawsuits can join together similarly harmed consumers, so through the collective weight of their numbers they can meaningfully challenge such misconduct. On the other hand, few consumers will go through the time-consuming, expensive and intimidating process of pursuing a claim as an individual against a powerful company. As one federal judge puts it, “only a lunatic or a fanatic sues for $30.”
The arbitration process itself also deters claims, as it is rigged against consumers and usually denies them justice. Again, it’s an individual against a company. Arbitrators aren’t required to consider the law, and they are usually handpicked by the company – a business relationship that creates a conflict of interest and bias. Arbitrations are shrouded in secrecy, which is a big reason why for years the public was completely unaware that Wells Fargo incentivized its staff to set up unauthorized accounts. Arbitration participants do not even have the right to appeal.
The result is a raw deal for consumers. The Consumer Financial Protection Bureau’s multi-year study found that arbitrators rule in favor of the company more than nine times out of ten. The study’s data showed that in an average year, a mere 16 consumers receive cash relief totaling just $82,216 through arbitration with financial companies.
It should also be noted that eliminating forced arbitration would not raise prices for consumers. When Bank of America and other banks dropped their “rip-off clauses” as part of a court-approved settlement and when the Dodd-Frank financial reform law banned them in mortgages, costs for consumers did not go up.
Earlier this year, the CFPB issued a common sense rule that prohibits financial contracts from banning class action lawsuits. This rule takes away what has become a get-out-of-jail-free card for financial predators. It also helps restore a basic American freedom – access to our judicial system in order to right a wrong.
Surprisingly, the Credit Union National Association is opposing the rule – even though the CFPB study found that the vast majority of credit unions do not use forced arbitration. For example, in looking at credit card contracts, the Consumer Bureau found that only 3 percent (10 out of 304) of credit unions use a forced arbitration clause. By contrast, 60 percent (30 out of 50) of the largest banks were found to employ this pernicious practice.
Some credit unions, such as Directions Credit Union, specifically warn their members about the perils of forced arbitration. Credit unions, which are owned by their members, rely on a brand of fairness and trustworthiness. This brand would be severely weakened if more credit unions started using forced arbitration.
Furthermore, the Consumer Financial Protection Bureau’s rule has strong, widespread and bipartisan support. Alongside consumer advocates and civil rights groups, the Military Coalition and the American Legion forcefully back the measure. They have seen how forced arbitration has denied justice to military service members, such as Sergeant Charles Beard, who had his car illegally repossessed while serving in Iraq, but was prevented from taking the auto lender to court. (In many states, military organizations and credit unions have led the fight against payday lenders and other abusive lenders.)
Polling from the nonpartisan Center for Responsible Lending (an affiliate of Self-Help Credit Union) and the conservative American Future Fund found that among likely voters, a strong majority of both Republicans and Democrats support the CFPB’s rule.
Despite widespread voter support for the rule, the U.S. House of Representatives has passed legislation that would completely rescind it and again close the courthouse doors. Senate leadership is rounding up votes to pass the bill and send it to the White House, which has promised to sign it into law. This bill, S.J. Res. 47, must be defeated.
Financial institutions help Americans live out their dreams, such as going to college, starting a business, buying a home, and saving for retirement. But as we saw not long ago, abusive practices by financial companies can also cause nightmares for families, communities and our economy. Instead of standing up for deceptive forced arbitration “rip off” clauses, I urge Congress and the president to protect the ability to challenge abusive practices in court.
Martin Eakes is CEO and co-founder of Self-Help, which includes Self-Help Credit Union, Self-Help Federal Credit Union, Self-Help Ventures Fund, and the Center for Responsible Lending.