Since 2011, when the U.S. Supreme Court affirmed that it was perfectly okay for companies to take away a consumer’s right to sue — and their ability to join other wronged consumers in a class action — by inserting a paragraph or two of text deep in lengthy, unchangeable contracts, the rush has been on for almost every major retailer, wireless provider, cable company, and financial institution to slap these mandatory binding arbitration clauses into their customer agreements. Now one petition is gathering signatures, calling on the nation’s largest banks to put an end to the practice.
For those not familiar with binding arbitration, it works like this: You’re wronged by a company; not just a customer service dispute, but a complaint where you have an actual legal dispute.
But you can’t sue, because 13 pages into a 23-page customer agreement (that you have no ability to change) there is a clause that says you and the company agree that all legal disputes will be handled, not in a court, but through an arbitration process, often with very strict limits on damages.
The companies claim this is all for everyone’s benefit, because arbitration moves much faster than going through the court system. It is, by its proponents’ own admission, biased in favor of the companies, which have lawyers on retainer and deep pockets against the consumers who frequently have no knowledge of the complicated process or the means to hire someone who does.
And since the damages are so low and the odds so stacked in the companies’ favor, few lawyers are willing to take on even the most legitimate dispute.
This problem is even more pronounced when the legal dispute involves a large group of customers who were all negatively affected in the same way.
Your credit card company has been overbilling a few million customers? Once upon a time, you could band together and sue as a class. But with around 95% of credit cardholders now bound by arbitration clauses, it’s more likely that each person would need to go through arbitration on his/her own.
Only a fraction of affected people will even attempt arbitration, and the company faces minimal damages, even if it was a massive cock-up.
In fact, in 2013 the Supreme Court effectively told companies they can get away with violating federal law, so long as it would cost too much money for a wronged consumer to prove the wrongdoing in arbitration.
In that case, a group of restaurants wanted to sue American Express for allegedly violating antitrust law by forcing businesses that accept AmEx charge cards to also accept the company’s credit and debit cards, for which the merchants say they pay higher rates than they do on competing credit cards and debit cards.
But AmEx uses forced arbitration clauses to keep customers — even its commercial customers — from suing as a class. Further, the cost of actually proving the antitrust case against the card company would have been significantly more than any individual business (A) could afford and (B) would ever receive in damages through arbitration.
Writing for the dissenting members of the Supreme Court, Justice Elena Kagan said that her peers had basically just told Americans with valid legal complaints, “Too darn bad,” and that they had just given companies the tools to thwart federal antitrust law.
This is why the folks at Public Citizen have drafted a petition — which already has nearly 20,000 signatures — asking JPMorgan Chase, Citigroup, Wells Fargo, US Bancorp and PNC Financial to remove arbitration clauses from their user agreements.
“Forced arbitration functions as a license to steal that makes it impossible for customers to hold you accountable in court if you break the law,” reads the petition. “Honor our rights and stop using forced arbitration.”
While we support the petition and believe that arbitration clauses need to be removed, the Supreme Court’s repeated blessing of the practice means that the only way it’s going to end is with Congress passing legislation declaring these clauses unconscionable, or at least outlining ways in which consumers can still seek legal action against companies that break the law.
by Chris Morran via Consumerist
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