We must fight for our 7th Amendment rights

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Imagine you just signed a one-year apartment lease. You’re moving in when the landlord tells you that, in the fine print, you waived your right to own a gun, and, if you think it’s illegal, you can’t go to court to challenge it, you can only go before a landlords’ association.

Now imagine that the State of Nevada declared those waivers illegal, but Congress reinstated the ability of businesses to force you to waive your Second Amendment rights. You’d be up in arms, so to speak, right?

{mosads}Congress is about to do something similar — not with your Second Amendment rights, but with your Seventh Amendment right of access to the courts.


In the fine print of many contracts for bank accounts, credit cards, payday loans and other financial services is a forced arbitration clause with a class-action ban.

That clause means that if the bank or other lender violates your rights, such as charging you illegal fees or wrongfully damaging your credit report, you have given up your right to take them to court.

Instead, you have to go before a private arbitrator, usually chosen by the company, in an often-secretive proceeding with no right of appeal if the arbitrator ignores the facts or gets the law wrong. 

Worse, if a bank has charged an illegal fee to thousands or millions of people, you can’t join together and neither a judge nor the arbitrator can look at how many people were affected. 

The few people who figure out that the fee is illegal, manage to find an attorney for a case over $100, and are willing to invest the time and expense can take their chances in arbitration. At best, the bank will have to repay those few people and can keep the millions of dollars it pocketed from everyone else.

That is exactly what Wells Fargo did with its fake account scandal.

In 2013 — maybe even earlier — a couple of people figured out that the bank was creating sham accounts in their names without their consent. They tried to sue Wells Fargo in a class action, but the bank persuaded a court that a forced arbitration clause in the victims’ bank account contracts took away their right to trial by jury and their ability to file a class action.  

We now know that Wells Fargo created up to 3.5 million fake accounts, many of those were created after 2013. In another case, Wells Fargo is currently trying to use forced arbitration to block class actions that could restore up to $1 billion in overdraft fees charged to people when their accounts were not overdrawn.

Many states have declared these forced arbitration clauses to be illegal, but an obscure federal law has been used to override states’ rights and uphold the waiver of your Seventh Amendment rights. 

Now, however, some relief is on the horizon — if Congress does not block it. A rule issued earlier this month by the Consumer Financial Protection Bureau will prohibit forced arbitration clauses with class action bans in financial contracts.

But Wall Street banks and their lobbyists are pushing Congress to block the rule under a fast-track process with little debate. The House of Representatives could vote later this month, with the Senate following shortly thereafter.

We would not stand for Congress taking away our Second Amendment rights, and we need to be equally vocal about letting it strip away our right to our day in court.

Chuck Muth is the president of Citizen Outreach, an organization that supports public policies that protect individual freedom, limit government, provide for a strong national defense and encourage free-market capitalism. Muth is the former chairman of the Nevada Republican Party and the former executive director of the American Conservative Union.

Tags Arbitral tribunal Arbitration Business law Wells Fargo

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