Why is Congress Okay with Corporations Taking Away Our Right to Sue?

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Post by Sophia Huang, NACA's Law and Policy Intern

Some members of Congress seem to have it in for consumer rights and individual liberty. On June 22, Rep. Marlin Stutzman (R-IN) introduced a bill for the express purpose of repealing the authority of the Consumer Financial Protection Bureau (CFPB) to restrict forced arbitration. This bill essentially endorses corporations’ practice of blocking consumers’ ability to pursue justice in the courts, a virtual free pass for banks and lenders to engage in deceptive and illegal practices without being held responsible for their conduct. Alarmingly, it is only the latest in a series of lobbyist-driven legislative attacks on the CFPB and its effort to restore our rights.

In addition to Stutzman’s bill, the Financial Services and General Government Appropriations Act for 2017 contains insidious riders that would delay any rulemakings regarding forced arbitration until further studies are conducted, even though the CFPB has already completed the most comprehensive empirical study on forced arbitration to date. Rep. Jeb Hensarling (R-TX) has also unveiled his “buzzed-about” Dodd-Frank reform bill, the so-called Financial CHOICE Act. Like the Stutzman bill, the measure contains provisions that would repeal authority to restrict forced arbitration, not just the CFPB’s, but also the Securities and Exchange Commission’s.

This string of anti-consumer legislation is a reaction to the CFPB’s new proposed rule to end class action bans in forced arbitration clauses and restore consumers' right to band together in court to seek redress. Most of these clauses, inserted in the fine print of nonnegotiable consumer financial contracts, prevent consumers from joining their claims together as a class when they are swindled by risky or predatory business practices. Instead of a public court ruling by an impartial judge, individuals must resolve disputes in secret sessions, where the corporate handpicked arbitrator’s decision is rarely appealable. Most consumers don’t even make it into arbitration because it’s too costly to do so.

Since the rule was announced, attacks against the CFPB and the proposal have been pouring in from industry groups such as the U.S. Chamber of Commerce and the American Bankers Association. This was to be expected because such groups represent special interests that benefit from less accountability for corporations and fewer rights for consumers. But when such vigorous attacks on our rights come from those we elected to represent our interests rather than corporate interests, they seem all the more repulsive.

Chutzpah is often analogized as murdering your parents and then begging the judge for mercy because you’re an orphan. Stutzman demonstrated a remarkable amount of chutzpah in the statement he released to accompany his bill. In it, he decries the CFPB’s rule as being “burdensome” and “anti-consumer.” Burdensome on whom? Not on the consumers, who would finally be able to join forces and hold businesses accountable in a court of law. Perhaps it would “burden” the corporations that may now be required to face consequences for their illegal practices.

Stutzman makes an even bolder claim, declaring that “[his] legislation would allow consumers and companies to choose how they want to deal with their legal matters.” On the contrary, the bill supports the elimination of consumer choice by allowing companies to continue forcing consumers into arbitration even if they wish to pursue their claims in court.

Stutzman and Hensarling and their corporate allies are eager to paint forced arbitration as more efficient and more consumer-friendly than class action suits. But when hundreds or thousands of individuals experience the same harm, there is no device more cost-effective than a class action suit, which can provide relief to large groups of consumers at a time. The alternative is thousands of individual arbitrations, which would be wasteful. Corporations know that very few consumers can feasibly participate in cost-prohibitive, secret arbitration proceedings so corporations continue to ban class actions and skirt liability.

Congressional conservatives proudly boast freedom, choice, and economic efficiency as being among their values but their proposals diverge sharply from those principles. Forced arbitration might mean corporations are free to evade accountability but it also means injustice and restricted rights for the average citizen. If forced arbitration really were consumer-friendly, then there would be no need to require it and if members of Congress such as Hensarling and Stutzman cared about efficiency, then they would stop coddling corporations and would support policy proposals that restore consumers’ legal rights.