Consumers instead are steered into arbitration, which critics say is a secretive process that is often stacked in the company’s favor and leads to little benefit for consumers. “The unfairness here is incredibly widespread,” says David Seligman, staff attorney at the National Consumer Law Center.
Most people aren’t aware these agreements exist until after they feel they’ve been wronged and attempt to sue a company or seek some other form of retribution, the advocates say. Many consumers then learn that they unwittingly agreed to mandatory arbitration when they initially signed up for the credit card or loan.
“You either agree to give up your right to hold these companies accountable,” Seligman says, “or you don’t use a credit card, or you don’t take out a loan or you don’t use a card.”
But financial firms argue that by limiting litigation, companies pay less in legal fees and, in turn, can lower costs for all consumers.
“If the card issuers’ costs go up, so does the consumer’s price,” says Nessa Feddis, a senior vice president with the American Bankers Association. Feddis added that, in general, credit card companies have a good record of accommodating the concerns of ordinary people, reducing the need for arbitration. And for some consumers, arbitration may be less intimidating than going to court, she said.
The CFPB’s report, ordered under the Dodd-Frank Wall Street Reform and Consumer Protection Act, is widely expected to lead to new rules limiting how companies can use mandatory arbitration clauses, consumer advocates say. The timing of the release of the report was confirmed by people familiar with the matter who spoke on condition of anonymity because the research has not yet been made public.
The CFPB has announced it will hold a field hearing on the topic next Tuesday in Newark, where the agency’s director Richard Cordray is scheduled to speak and consumers will get a chance to share their experiences with arbitration.
While consumer advocates have been following the problems caused by forced arbitration for years, little is known about the outcomes seen by consumers who decide to go through the process. Part of the reason is most arbitration disputes are private.
And when companies offer refunds or compensation to consumers, the secrecy surrounding the process makes it difficult for other customers to learn of problematic practices that may also be affecting them. “Many consumers may not be aware that they’re being taken advantage of as well,” says Christine Hines, consumer and civil justice counsel at Public Citizen, a nonprofit that supports consumers’ rights. In contrast, lawsuits are a matter of public record.
Mandatory arbitration is very common with consumer products issued by bigger financial institutions. Some 62 percent of the 50 largest banks had arbitration clauses in their contracts for checking accounts at the end of 2013, according to preliminary findings from the CFPB released in December 2013. The practice is less common among small financial firms.
In addition to restricting people to arbitration, about 9 out of 10 arbitration clauses bar consumers from participating in class action lawsuits or even grouping together in the arbitration, according to the CFPB. By preventing consumers from taking action in groups, arbitration clauses significantly reduce the chances that consumers making smaller claims will seek payment, critics of the practice say.
The 2013 study found that “almost no consumers” filed arbitration for disputes smaller than $1,000. For cases related to debt, the average debt amount being disputed was greater than $13,000. On other types of consumer products, the average claim was for over $38,000.
“For consumers who might have small dollar claims or who don’t have the sophistication to go out on their own and challenge the company, they’re never going to be able to make the claim,” said Seligman, the National Consumer Law Center attorney. (Some arbitration clauses do allow consumers to go to small claims court).
In some cases, consumers also face fees and other restrictions, such as requiring that arbitration take place in a certain state.
“Companies are controlling the system,” says Ellen Taverna, legislative director for the National Association of Consumer Advocates. “They’re writing the clauses, they decide where the arbitrator will be and they decide the payment terms.”