Forced arbitration un-American
Iam a proud Marine Corps veteran. Abroad I joined with my fellow Marines in united pursuit of justice and rights. At home, I fight for them and other U.S. military members to be treated fairly and with dignity in their financial affairs. I’m disappointed by the actions of my U.S. Sen. Tom Cotton, who is seeking to roll back a recent rule that restores service members’ and other Americans’ legal rights in the financial marketplace.
So often, military members are unfairly targeted by aggressive lenders, abusive debt collectors, reckless credit-reporting bureaus, and discriminating employers. So I devote my time to help them enforce their rights under federal and state laws that grant them remedies and other ways to hold bad actors accountable when they flout these laws.
But the nonnegotiable fine-print contracts of the industry players make it harder every day to help service members and veterans enforce their rights when they are wronged. The lenders, big banks, and huge corporate employers take away the constitutional rights of military and millions of other Americans to go to court. Corporations also tell their own customers that they can’t band together against them in class actions.
Instead, individuals must go to a secretive process called arbitration, run by a private arbitrator who makes the decisions and likely receives repeat business from the big corporations. It is as unfair as it seems.
This is an un-American way for us—military, civilians, and big business—to civilly resolve disputes. The U.S. Constitution provides the right to access open, public courts in our state and federal systems. And we should not be denied the right to use them.
The Consumer Financial Protection Bureau has issued a rule to restore these rights for military members and all consumers in the American marketplace. The rule would prevent lenders, big banks, and other providers of financial services and products from barring their customers from banding together in court. Unfortunately, Senator Cotton is trying to repeal it.
The rule may be analogous to one aspect of military duties—restoring the rights of citizens. Here, the bureau is simply giving back the American right that has been taken away in the corporate fine print.
Before issuing the rule, the bureau had conducted a sweeping study on the use of arbitration in the financial-services market. It found that tens of millions of consumers that use financial products and services are required to go to individual arbitration and are prevented from joining together to access remedies in court.
Significantly, the bureau found that while most of us don’t go to arbitration—only 25 people per year for damages under $1,000—the arbitration system doesn’t work for those who do go at all; 93 percent of individuals lose out to the big corporations in private arbitration.
Meanwhile, when we can join together in class actions against financial wrongdoing, we are much better off, and the bad actors are more likely to be held responsible for the misconduct. In a review of 419 federal consumer financial class-action settlements, consumers were eligible for $2 billion in cash relief, which does not include attorney’s fees. At least 160 million class members were eligible for relief.
These and other findings guided the bureau’s decision to issue the new rule.
Notably, the rule restores the rights of active military members who cannot defend themselves and their families at home when they are focused on their duties. Congress passed a law, the Servicemembers Civil Relief Act (SCRA) that provides active-duty military members with consumer protections limiting the amount of interest they can be charged, and permitting them to terminate auto and residential leases if conditions are met. It also helps service members who are unable to attend court hearings as a result of their military service.
As the U.S. Supreme Court once said, the purpose of the SCRA is to “protect those who have been obliged to drop their own affairs to take up the burdens of the nation.”
The forced-arbitration clauses and the prohibitions on class actions in the corporate fine-print terms have prevented service members from enforcing their SCRA protections. So when they are systemically overcharged interest rates by lenders or refused benefits under the law by auto-financing companies, for example, they cannot band together in court to defend their rights against these bad actors that break the law.
Unfortunately, although the rule restores the rights of active-duty service members and American civilians, it has become controversial in Washington because the financial-services industry opposes it. For several years now, financial institutions have been able to use their strict terms to wipe away individuals’ rights and essentially ignore legal complaints.
But Senator Cotton and our representatives in Congress must take the opportunity to look beyond the lobbyists and toward the experiences of our military members and the U.S. Constitution. They should support, not abandon, a rule that simply restores our traditions.