If the Consumer Financial Protection Bureau (CFPB) has its way, consumers will soon have the right to sue banks and credit card companies after years of being defaulted into mandatory arbitration.
Is the sun setting on mandatory arbitration?
Have you ever read all the mice-type that accompanies the contract you sign when you get a new credit card or open a new bank account?
If so, you’re probably familiar with the idea of mandatory arbitration — in theory, if not in practice.
Mandatory arbitration forbids consumers from taking financial service companies and other players in corporate America to court when they’ve been wronged. It also typically prevents consumers from banding together and joining class-action lawsuits when they’ve all been harmed in the same way.
Consumers who are bound by arbitration clauses must individually bring claims against the company that allegedly did them wrong. But we’re not talking about traditional litigation here. Under an arbitration clause, you instead have to bring your complaint through an extra-legal process to an arbitrator.
Arbitrators are private citizens who are hired by the company you’re bringing the complaint against. So, they’re the one who will be hearing your case and judging it on its merits. Talk about a stacked deck, right?
“I have long sounded like a broken record in the past while constantly repeating a refrain about the dangers of what I like to call ‘kangaroo court’ arbitration imposed on us by corporate America,” money expert Clark Howard says. “Simply put, arbitration is set up by companies to take advantage of you.”
The CFPB steps in
That’s the context in which the CFPB is issuing its arbitration rule.
The new rule, which was issued July 10, aims to restrict mandatory arbitration language in contracts for credit cards, loans and other products throughout the financial services industry.
The rule does not, however, expressly ban mandatory arbitration. Mandatory arbitration will still be available for consumers who want it under the CFPB rule; they just won’t have it crammed down their throats with no say in the matter, as they have in the past.
We should note that there is the possibility Congress will challenge the CFPB’s new arbitration rule. It has 60 days to do so.
Barring a Congressional challenge, the new arbitration rule will go into effect immediately after 60 days. It will then apply to contracts entered into more than 180 days after the rule goes into effect.
Predictably, many in the financial services industry contend that moving away from mandatory arbitration will result in a higher cost of doing business — costs that ultimately gets passed along to the consumer in the form of higher interest rates, more fees and so on.
“The CFPB’s brazen finalization of the arbitration rule is a prime example of an agency gone rogue,” said David Hirschmann, director of the U.S. Chamber of Commerce Center for Capital Markets Competitiveness. “CFPB’s actions exemplify its complete disregard for the will of Congress, the administration, the American people and even the courts.”
We’ll keep you updated over the next 60 days as this story develops!