On Oct. 24, Sen. Susan Collins rejected pleas from military groups and Mainers with her vote to block the Consumer Financial Protection Bureau’s arbitration rule. Her vote stripped Mainers of the choice of whether to arbitrate disputes or band together and sue financial giants like Wells Fargo and Equifax that cheat them.
Collins has long been an independent and thoughtful voice for Maine. But her reasoning echoed the deceptive claims that corporate lobbyists made against the rule all along.
I’m going to give Collins the benefit of the doubt that she was misled. But the facts about forced arbitration still matter because efforts to undo protections for defrauded students and seniors in nursing homes are pending, and many other Americans lose their right to their day in court every day.
False claim No. 1: The arbitration rule only benefits class action lawyers
Collins stated that trial lawyers would reap millions as a result of the rule “while plaintiffs would not have received a penny in the vast majority of those cases.”
Then why did the rule have the strong support of the military and veterans community? The American Legion, America’s largest veterans service organization, strongly opposed the resolution to overturn the arbitration rule and urged President Donald Trump to veto it.
The Military Coalition, representing 5.5 million current and former servicemembers and their families, supported the arbitration rule, calling forced arbitration an “un-American system wherein servicemembers are funneled into a rigged, secretive system.” A coalition of 29 military and veterans groups also opposed the effort to overturn the rule.
The Consumer Financial Protection Bureau studied 419 class actions and found $2.7 billion in relief over five years for consumers, with just 18 percent going to attorney’s fees and expenses. That is, $2.2 billion, or 82 percent, went to consumers — a far cry from a penny. When banks cheat millions of people out of $100 each, it takes lawyers on consumers’ side to fight back and, yes, they get paid more than $100 if they win — but only if they win.
False claim No. 2: The arbitration rule would have harmed small banks and credit unions
Before the vote, Collins expressed concern about the impact on credit unions and small financial institutions. Credit union lobbyists opposed the bill, despite strong evidence that credit unions in Maine and around the country don’t deprive their customers of their day in court.
A survey of Maine credit unions and banks found not one Maine credit union or bank with under $100 billion in assets that uses forced arbitration in its deposit account or credit card agreements.
But Wall Street banks, which do use forced arbitration, were able to hide behind the credit unions.
False claim No. 3: Consumers fare better in arbitration than in class actions
Collins claimed that “Arbitration is often better for consumers. … [It] results in an average award of nearly $5,400.” That misleading claim, created by Wall Street lobbyists, is based on only 16 consumers a year who pursue arbitration and win. Most lose. In the average arbitration case, including both losers and winners, the consumer has to pay the bank or company $7,725. The lobbyist’s claim is like saying that the 2012 Boston Red Sox, who had a 69-93 record, “won by 5 runs on average.”
Compared to 16 people who win each year in arbitration, more than 6 million have been eligible for relief in class actions, but we increasingly lose that choice.
It’s not just consumers who lose their choice to have their day in court.
This fight was about consumers cheated by financial giants. But the Trump administration has proposed to restore “get-out-of-jail-free cards” for nursing homes, and Education Secretary Betsy DeVos is reconsidering protection for students left with debt from fraudulent for-profit schools.
Collins may have been misled by Wall Street lobbyists. But she can make up for her vote by supporting the Arbitration Fairness Act, which restores the choice of our day in court for consumers, employees and small businesses. The Constitution gives us the right to redress wrongs through trials by jury. Give us back that right.
Lois R. Lupica is the Maine Law Foundation Professor of Law at the University of Maine School of Law in Portland.
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