The Consumer Financial Protection Bureau has taken a big first step toward addressing a huge problem – the ability of banks and financial companies to get away with systematic wrongdoing by telling consumers they can’t join forces over a common grievance.
Class actions, as Supreme Court Justice Ruth Bader Ginsberg explained in 1997, create room for “vindication of the rights of groups of people who individually would be without effective strength” to object to wrongdoing. Leaving consumers without “effective strength” is precisely the point of the class-action bans found more and more often in contracts governing student and payday loans, credit and prepaid cards, and other financial products and services.
These bans operate as Get Out of Jail Free cards for banks engaged in widespread fraud and deception. They leave wronged consumers without practical recourse by forcing each victim to go it alone, even when the amount of money involved is too small to make it practicable to do so. They put banks and lenders in a position to break the law and bilk consumers again and again for small – or relatively small – sums that, on the company’s end, add up to extremely large sums.
The Consumer Bureau announced today that it is weighing a proposal to prohibit class-action bans in the markets it oversees. That would be a very welcome development. After an exhaustive study of the practice’s impact, the Bureau has rightly concluded that class-action bans amount to a “free pass” for companies “to sidestep the courts and avoid accountability for wrongdoing,” as CFPB Director Richard Cordray said in a statement accompanying the announcement.
In the same take-it-or-leave-it contracts that bar class actions, financial companies generally direct all complaints to private arbitrators rather than to a court of law. This practice, known as forced arbitration, is an inherently rigged game in which companies call the shots and often pick and pay the arbitrators. Forced arbitration also keeps results out of the public record, and typically provides no opportunity to appeal. As the Bureau moves forward with its rulemaking, it should ban forced arbitration in individual cases as well.