If government regulators get their way, it’s going to become a lot easier to sue your bank.
By and large, U.S. bank customers have signed away their right to sue their bank in court, often without being aware of it. Buried in the fine print of credit-card agreements, bank accounts and insurance policies are what are known as binding, or mandatory, arbitration clauses. It means customers are generally required to take any disputes with a bank to a third-party mediator instead of going to court.
The nation’s top consumer financial regulator wants to put a stop to that. The Consumer Financial Protection Bureau proposed a rule Thursday that would ban arbitration clauses, which would affect the entire financial industry and the hundreds of millions of bank accounts, credit cards and other financial services Americans use.
The CFPB’s proposal does have a significant limitation. The ban would only apply when consumers want to create or join a class-action lawsuit. Financial companies will still be able to force individuals to settle disputes through arbitration; however cases where a lone customer wants to sue his or her bank are far less common.
“Many banks and financial companies avoid accountability by putting arbitration clauses in their contracts that block groups of their customers from suing them … (and) effectively denies groups of consumers the right to seek justice and relief for wrongdoing,” said CFPB Director Richard Cordray in prepared remarks.
Cordray will talk about the proposal at a hearing Thursday in Albuquerque, New Mexico where advocates on both sides are expected to weigh in.
If a bank account, credit card or other financial service has an arbitration clause attached to it, a bank currently has a right to force a customer into arbitration to resolve a dispute. Consumer advocates say these arbitrators are often biased and routinely rule against consumers. If a customer loses an arbitration ruling, oftentimes it cannot be appealed.
The financial industry has argued that arbitration is a more efficient way for customers to resolve disputes with banks.
A study commissioned by the CFPB in March 2015 showed that is very likely the case. It showed customers rarely used the courts to sue their bank for a small claim. However, when large numbers of customers were negatively impacted by the same issue, the same study showed arbitration clauses hinder the ability for customers to seek relief.
“The proposed rule … is an enormous step forward toward restoring the right to band together with others who have been harmed to redress grievances through the courts,” said Nan Aron, president of the Alliance for Justice, an organization of roughly 100 politically liberal advocacy and consumer groups.
Opponents and critics of the CFPB’s ban say the proposal will only benefit class-action lawyers and lead to gigantic paydays.
Congress directed the CFPB to study the issue of mandatory arbitration under the Dodd-Frank financial regulatory law and decide whether arbitration needed to be regulated. Along with commissioning the study, Dodd-Frank banned the use of arbitration clauses for mortgages.
The CFPB’s study, released in March 2015, found that 15 out of the 20 largest credit card companies had arbitration clauses, roughly half of all large bank accounts had clauses and nearly all of pre-paid debit card and payday loans required arbitration. It also found that, by and large, Americans were either unaware that they had agreed to arbitration or unaware that they had signed away their right to sue in court.
Following the study, the CFPB announced an outline of its proposal in October, but had not laid out the exact details of what it planned to do.
Once the rules are published, the public will have the usual 90-day period to comment on the CFPB’s proposal. The proposed rule, if adopted, would go into effect next year.
The financial industry, under the potential threat of billions of dollars in lawsuits, is expected to fight the CFPB’s proposal hard. All the major financial industry lobby groups announced their opposition to it in prepared statements on Thursday.
“Arbitration has long provided a faster, better, and more cost-effective means of addressing consumer disputes than litigation or class action lawsuits,” said Richard Hunt, president of the Consumer Banker Association, whose membership is mostly large regional and national retail banks. “The real winners of today’s proposal are trial attorneys, not consumers.”