Colorado Politics

Forced arbitration with banks isn’t dead yet, but Colorado consumer watchdogs say let it die

Republican leaders in the U.S. House and Senate Thursday set in motion a plan to force people possibly wronged by banks into arbitration and keep them out of courtrooms, just like in the old days before this month.

Let’s back up a few steps. In 2010 Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act in response to the economic collapse that had shady dealings at its core. That law created the Consumer Financial Protection Bureau and gave the agency the power to ban or limit forced arbitration clauses in consumer financial deals, after a study.

The CFPB has since finished two studies and this month issued a rule this saying arbitration clauses can no longer be used to block class-action suits. The most familiar example of the kinds of deals the new rule would address is Wells Fargo. The banking giant has admitted to opening potentially millions of sham accounts in customers’ names to collect fees. But it has avoided class-action lawsuits via forced arbitration.

California, as a state, is looking at crackdowns.

Thursday, Republicans in the House and Senate moved to keep the mandatory arbitration shield in place by undoing the new rule.

“This is a good rule that protects consumers,” Rich Jones, the policy director at Denver’s Bell Policy Center, which takes on these kinds of fights, told Colorado Politics Thursday.  “And the actions by Congress help Wall Street banks at the expense of middle-class Americans.”

Jones wrote about the new rule on his blog just last Monday.

“Bottom line, the ability to join class-action lawsuits makes it possible for consumers to challenge widespread misconduct by financial firms that otherwise would be too expensive to pursue in individual arbitration claims,” he said Thursday.

Worth noting, the bureau’s creation was the work of Sen. Elizabeth Warren of Massachusetts, who very well may be the front-runner as the Democrat to take on President Trump in 2020. And it’s no secret Trump has the consumer watchdog agency in his sights. The conservative Washington Times alleges its Trump’s angle to undo Dodd-Frank.

Denver-based CoPIRG held a party Wednesday to celebrate the Consumer Financial Protection Bureau’s sixth birthday and kick off its political defense, including door-to-door campaigning. CoPirg points out the the U.S. House last month passed the Financial Choice Act to roll back many of Dodd-Frank’s regulations, with Colorado’s delegation voting along party lines. The bill is pending in the narrowly divided Senate.

“The CFPB is doing a great job standing up for the little guy against Wall Street banks, payday lenders, student loan companies, and debt collectors,” said Danny Katz, the group’s director said. “We need Sens. (Michael) Bennet and (Cory) Gardner to stand with the CFPB too and stop proposals to weaken the consumer watchdog.”

While consumer groups have fought for the right to sue for years, the banking industry is waging a political war against it, claiming only lawyers on both sides with really benefit.

Bureau director Richard Cordray spoke about arbitration abuse in a bureau hearing in Denver in October 2015.

“Companies use this clause, in particular, to block class-action lawsuits,” he said in Denver. “They thus provide themselves with a free pass from being held accountable by their customers. That free pass is secured by making sure their customers cannot group together to seek relief for wrongdoing. Many violations of consumer financial law involve relatively small amounts of money for the individual victim.

“Group claims often are the only effective way consumers can pursue meaningful relief for harms that can add up to large amounts of money for financial providers.”

Cordray, a former state attorney general, is expected to run in the Democratic primary for governor in Ohio next year.

Thursday Senate Banking Committee Chairman Mike Crapo of Idaho and House Financial Services Committee Chairman Jeb Hensarling of Texas said they would invoke the Congressional Review Act, which allows Congress to use a simple majority to repeal an agency’s rule within 60 legislative days after its implemented.

“The rule is based on a flawed study that leading scholars have criticized as biased and inadequate, noting that it could leave consumers worse off by removing access to an important dispute resolution tool,’ Crapo said in a statement. “By ignoring requests from Congress to reexamine the rule and develop alternatives between the status quo and effectively eliminating arbitration, the CFPB has once again proven a lack of accountability. Given the problems with the study and the bureau’s failure to address significant concerns, it is not only appropriate but incumbent on Congress to vote to overturn this rule.”

Twenty-four of the Senate’s 52 Republicans co-sponsored the call for a review, but Gardner was not among them.

He also didn’t join more than 50 other congressional Republicans who sent a letter to the bureau last month complaining about the study that led to the arbitration rollback. The letter cited “a fatally flawed process that produced a fatally flawed study.” The lawmakers called on the bureau to re-open the study.

In April, however, with no mention of arbitration’s fate, Gardner sent a letter to Cordray complaining that the agency’s regulatory meddling was hurting rural communities’ ability to get loans.

“I am concerned existing rules and regulations are having the unintended consequence of inhibiting rural access to capital, and the continued downturn of commodity prices could make this worse,” Gardner wrote. “With much of the agriculture industry in Colorado and throughout the nation facing a downturn, it is important that farmers and ranchers have access to financing to maintain operations through this difficult time.”

In his Jones’ analysis of the new rule, he looked at CFPB’s 2015 study and observed:

Forced arbitration clauses appear in all kinds of contracts and affect millions of Americans. For example, 99 percent of payday loans, 92 percent of prepaid cards and 85 percent of private student loans studied had these clauses.

In 2010 and 2011, only 9 percent of consumers who brought claims under forced arbitration obtained relief, recovering an average of 12 cents per dollar claimed.

During the same period, 93 percent of companies obtained relief in forced arbitration, recovering an average of 98 cents per dollar claimed.

Only 25 consumers with claims of less than $1,000 pursued arbitration each year. By contrast, class action lawsuits returned $2.2 billion in cash relief to 34 million Americans from 2008 to 2012, after paying off attorneys’ fees and court costs.

No evidence was found that forced arbitration clauses lead to lower prices for consumers, it just means higher profit margins for banks and other financial firms.


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