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Even if arbitration does turn out to be beneficial for many consumers, Americans should not lose their constitutional right to a day in court without being aware that they are doing so.
January 22 -
Banks say the Consumer Financial Protection Bureau plan to ban arbitration clauses for individual claims will aid trial lawyers, while consumer advocates say the move is overdue and may not go far enough.
October 7 -
The Consumer Financial Protection Bureau's impending proposal, to be reviewed by a small business advisory panel, would block companies from using arbitration clauses to avoid class actions but allow them for individuals.
October 7
Industry advocates say they oppose regulatory restrictions on arbitration clauses because arbitration is superior to litigation in resolving disputes. You might expect that they would favor arbitration in the vast majority of cases. But the evidence suggests the industry is merely out to block class-action lawsuits.
Upon the release last month of the Consumer Financial Protection Bureau's proposed restrictions, CFPB Director Richard Cordray said arbitration clauses give businesses a
Because consumer claims are often for small amounts and the cost of arguing cases is high, many consumer disputes can affordably be decided only in class actions — in which the expense of litigation can be shared by many plaintiffs. That means class actions are sometimes the only vehicle for enforcing consumer protection laws. But businesses can prevent the use of class actions by employing arbitration clauses that waive the right to bring group claims.
In short, companies can use class-action waivers to block consumer protection laws unless consumer protection laws find a way to block class-action waivers.
That way now exists. Congress gave the CFPB the power to regulate arbitration clauses in consumer financial contracts. In March, the bureau issued its
The trade organizations predicted that consumers would be harmed if the bureau acted. They argued that "if the Bureau were to … prohibit the use of class action waivers in such agreements, as some parties advocate, many companies are likely to discontinue offering arbitration to consumers. That outcome would harm consumers, as they would be deprived of a valuable and time-tested procedure for economically, expeditiously, conveniently, and efficiently resolving individual consumer disputes."
Last month, the bureau made public a
But if the industry truly believes that arbitration is so much better than litigation at resolving disputes, shouldn't it prefer arbitration to litigation for resolving individual disputes, where there is not a threat of a class action? Or should we be shocked, shocked, to discover the industry's love of arbitration is about barring class actions?
There is not a lot of research on what businesses would do if they could use arbitration in consumer disputes but not to prevent class actions. (The CFPB proposal would still allow arbitration in individual claims, but the agency would monitor arbitrations in such cases to assess the fairness of the process.)
However, some evidence from other types of disputes suggests the industry is not as enamored with arbitration as it claims. A recent
Actions speak louder than words, and the actions of businesses show that they prefer litigation to resolve disputes when class actions are removed from the equation.
Jeff Sovern is a professor of law at St. John's University School of Law in New York City and co-coordinator of the