Twenty-five years ago, some of the country's biggest banks and corporations came up with a new way of handling consumer allegations of wrongdoing.
Instead of letting an impartial judge or jury decide, they would use the fine print of take-it-or-leave-it contracts to shunt cases over to private arbitrators — firms chosen by (and dependent on the future patronage of) the companies being complained against. For good measure, each aggrieved consumer would typically be required to go it alone, even if hundreds or thousands of others had been affected by the same misconduct.
Known as forced arbitration, this system of bought-and-paid-for justice has worked out very well for what The New York Times calls the "Wall Street-led coalition of credit card companies and retailers" that designed it. The great majority of injured consumers, once they find themselves locked out of court, simply drop their complaints.
By stripping people of any meaningful way to hold companies accountable for fraud or abuse, forced arbitration grants Wall Street an effective license to steal from consumers to pad its bottom line.
But the era of the "rip-off clause" may soon come to an end — at least in consumer finance. When Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, legislators specifically addressed the growing harm of forced arbitration. In addition to creating a new consumer watchdog in the Consumer Financial Protection Bureau (CFPB), Dodd-Frank tasked the agency with studying the impact of forced arbitration in the financial marketplace. If it found evidence of harm to consumers, the agency was specifically instructed to restrict or ban the practice.
Last year, the CFPB completed the most comprehensive study of arbitration ever done, and the data showed very clearly that forced arbitration favors companies and wipes out consumer claims. The agency then moved to fulfill its mandate by proposing a new federal rule to rein in this increasingly widespread practice. Americans for Financial Reform (AFR) and Public Citizen recently partnered to step up a joint campaign to take on forced arbitration, working with a broad coalition of organizations to build support for the CFPB's rule-making by raising public awareness of rip-off clauses and the way they work across a range of industries, products and services. In just the last few months, public attention on forced arbitration has expanded rapidly.
A New York Times investigation last fall brought significant attention to veterans, students and consumers harmed by rip-off clauses. More recently, Roger Ailes's move to push Gretchen Carlson's allegations of sexual harassment into arbitration has reignited national interest in the inherent secrecy and injustice of forced arbitration.
This week marked another milestone in this fight: an unprecedented level of public engagement on forced arbitration as the comment period for the CFPB rule came to a close on Monday.
In a joint comment letter, 281 consumer, civil rights, labor and small business organizations registered strong support for the CFPB to move forward with its proposal. Led by AFR and Public Citizen, the letter was signed by national powerhouses advocating for consumer protections, civil rights, labor, women's rights and small business, along with state and local groups from 42 states and the District of Columbia. Many of these organizations also submitted separate comment letters highlighting specific issues and perspectives.
And this growing energy and excitement is not limited to the nonprofit organizations and policy advocates. By the close of the comment period, at least 100,000 individual consumers across the country had spoken out against forced arbitration in individual comments to the agency — outpacing comments critical of the rule several times over. This overwhelming push for reform echoes a recent national poll, which found that, by a margin of three to one, voters of all political parties support restoring consumers' right to bring class action lawsuits against banks and lenders.
Public officials and academic experts are also speaking up. More than 100 members of Congress have signed separate House and Senate letters, while 18 state attorneys general, state legislators from 14 states, and 210 law school professors and scholars have submitted comments in support of the rule.
Despite the weight of evidence, strong policy arguments and broad support for the CFPB's efforts, Wall Street and its corporate allies at the U.S. Chamber of Commerce are working furiously to hold on to their Get Out of Jail Free card. Opponents of the proposal hint at an eventual lawsuit challenging the Consumer Bureau's authority to act, notwithstanding the clear directive of the Dodd-Frank Act — and the massive hypocrisy of using the courts to rob consumers of the ability to use the courts.
Industry lobbyists are also urging their friends in Congress to halt the proposed rule. Just before the summer recess, the House passed an appropriations bill with a rider that would require the CFPB to essentially redo its three-year arbitration study before it could proceed. Meanwhile, as part of a plan to "repeal and replace" Dodd-Frank, Rep. Jeb Hensarling (R-Texas), chairman of the House Committee on Financial Services, wants to specifically strip the agency of its authority to act on forced arbitration.
The next few months will likely prove crucial to this ongoing fight to protect consumers' right to hold financial companies accountable. But the campaign against the rip-off clause is not simply a battle over fine print; it's a necessary step toward stopping Wall Street banks and predatory lenders from rigging our economy in their favor and padding their profits at the expense of the law and the public.
Gilbert is director of Public Citizen's Congress Watch and Donner is the executive director of Americans for Financial Reform.
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