By Arthur H. Bryant
Recent decisions by the U.S. Supreme Court have given banks, credit card companies, and all other lenders a license to steal billions from consumers and small businesses. The U.S. Consumer Financial Protection Bureau (CFPB) has the power to rescind that license. On Tuesday, at a hearing in Newark, the CFPB is expected to announce whether it will do so. If it does what the facts and law require, it must.
In two cases in the past four years, the Supreme Court allowed corporations to charge allegedly illegal fees to millions of consumers and small businesses, net billions, and walk away with the money. The corporations' form "agreements" barred all lawsuits against the companies, required consumers and small businesses to pursue their claims individually in arbitration, and banned class actions. The court enforced these agreements, even though that meant the companies would never be held accountable.
Sadly, these two cases weren't anomalies. Far too many lenders cheat and mislead consumers, charging inflated and illegal fees or interest. But the court has given them near-total immunity.
Thankfully, that can be changed - and should be soon. When Congress passed the Dodd-Frank Act in 2010, it created the CFPB and required the new agency to study the use of arbitration clauses by lenders. Congress said that the CFPB should prohibit or limit their use if it found that they harm consumers. The evidence proves that forced-arbitration clauses hurt consumers badly.
This issue affects everyone in America. For consumers with cases that could be brought individually (as opposed to those cases that can only be brought if consumers group together), arbitration is unfair. The system is designed or selected by the company, the proceedings are usually secret, access to information is restricted, the arbitrator does not have to follow the law, there is no appeal process, and arbitrators who rule against the company usually aren't hired again. No wonder companies like arbitration.
In many cases, the claims are too small individually (or hidden) for almost anyone to pursue them (or know to pursue them) unless a class action is brought. The Supreme Court has allowed corporations to bar those cases completely.
In the two recent cases, AT&T Mobility v. Concepcion and American Express v. Italian Colors Restaurant, the court held, 5-4, that arbitration clauses banning class actions have to be enforced even when they make it impossible to hold companies liable for breaking the law. This overturned a long line of Supreme Court decisions that found arbitration clauses enforceable only when they permit the parties to effectively vindicate their rights.
In AT&T, the company allegedly charged tens or hundreds of thousands of people $30.22 each illegally. Few pursued arbitration individually because, as Judge Richard Posner famously wrote, "only a lunatic or a fanatic sues for $30." California law prohibited class-action bans in such circumstances, so a federal appeals court struck down AT&T's. But the Supreme Court enforced it.
In American Express, the credit card giant allegedly violated antitrust laws and cheated Oakland's Italian Colors and 3.2 million other small businesses out of about $5,200 each. That's $16.64 billion. (Visa and MasterCard agreed to settle a similar case for $6.05 billion.) But prosecuting an antitrust claim, even on an individual basis, is a very complicated undertaking, requiring specialized economic analysis. For the individual restaurant to meet its heavy legal burden, it would have had to spend $300,000 to $1 million for an expert market analysis. No one would spend that to try to recover $5,200, so the case had to be brought as a class action or not at all. For that reason, a federal appeals court threw out American Express' forced-arbitration clause. The Supreme Court reversed that ruling, too.
The CFPB can fix this. It has the power to prevent banks, credit card companies, payday lenders, auto-loan companies, and others from using mandatory-arbitration clauses and class-action bans to harm consumers.
The evidence before the CFPB is compelling:
The primary effect of mandatory-arbitration clauses is to suppress claims by consumers, allow corporations to break the law, and prevent our civil justice system from providing injunctive relief (like having debts forgiven or credit records cleared) and compensation to millions of consumers;
Very few consumers know of or meaningfully agree to mandatory arbitration;
Consumers need access to the courts and class actions to hold lenders accountable.
The banks and other lenders know this, which is why they tried to get Congress to repeal the CFPB's authority to bar or limit mandatory arbitration. But they failed. So the agency can do what it should.
The CFPB should ban mandatory arbitration clauses and rescind the lenders' license to steal. Consumers are entitled to what is engraved on the front of the Supreme Court - "Equal Justice Under Law" - not what the Supreme Court has given them:
No justice under law.