You might skip over the fine print from your bank when opening an account, but a federal regulator continues to cast a wary eye on the arbitration clauses that are sometimes embedded in such contracts.
Richard Cordray, director of the Consumer Financial Protection Bureau, in a speech last week reiterated his agency’s plans to issue rules targeting policies at banks and other financial firms that restrict consumers’ ability to sue the companies. Although it’s unclear what the new rules will look like, last fall the bureau said it was considering banning financial firms from using arbitration clauses to block class-action lawsuits by consumers.
Typically, such clauses steer customer disputes with a bank to privately appointed arbitrators, keeping the matters out of court. Supporters of forced arbitration argue, among other things, that the practice can be faster and less expensive than class-action suits. Critics, though, claim arbitration tends to favor corporations over individuals.
In a separate speech last month, Cordray complained that blocking class actions strips consumers of a tool for causing much-needed changes in business practices.
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“By inserting an arbitration clause into their contracts, companies can sidestep the legal system, avoid big refunds and continue to pursue profitable practices that may violate the law and harm consumers,” he said.
Originally, arbitration was largely used in commercial disputes between businesses to create tailored contracts, Cordray said. The practice was rarely used in disagreements between businesses and consumers.
But Cordray said that changed in the past 20 years or so, as banks started inserting the clauses into their consumer contracts. Attorneys who sought to persuade banks to adopt arbitration clauses specifically noted they could be used to block class actions, he said.
Some, but not all, banks continue to fold such clauses into their consumer account agreements.
For example, San Francisco-based Wells Fargo’s account agreement says consumers waive their right to a jury trial or a trial in front of a judge. But consumers may still take a dispute to a small-claims court.
Wells says it follows federal law in providing terms and conditions to customers when they open an account.
Bank of America in 2009 abandoned a rule that had forced consumers into arbitration to resolve disputes.
Corday’s agency is studying arbitration clauses of financial firms as it seeks to comply with a requirement in the 2010 Dodd-Frank financial overhaul. Dodd-Frank banned the inclusion of such clauses in some residential mortgage loan contracts. The act also gave the Securities and Exchange Commission authority to ban or restrict the use of the clauses for certain disputes.
Cordray said last month that arbitration clauses remain “pervasive” in consumer agreements with financial firms, especially large banks. Tens of millions of customers are covered by such clauses with lenders, he said, but the vast majority of Americans do not know the clauses exist.
The bureau’s proposed rule eliminating restrictions against class actions would apply to arbitration clauses involving a wide range of products and services, such as credit cards, checking and deposit accounts, certain auto loans, payday loans and private student loans, Cordray said.
Financial firms would still be allowed to use arbitration clauses under the proposal, but the clauses would have to explicitly say they do not apply to cases brought on behalf of a class.