WASHINGTON – A national survey last year found that 89 percent of those polled wanted the right to participate in a class-action suit in disputes with their banks.
The support measured by the Pew Charitable Trust survey of 1,000 Americans stretched across age groups. Political affiliation of supporters broke almost evenly: 93 percent Republican, 89 percent Democratic and 88 percent independent.
But last week, in a classic display of Washington clout, all but two Republicans in the Senate voted to join Republicans in the House, who voted in July to keep that from happening.
On a near party-line vote, the two chambers overturned a Consumer Financial Protection Bureau (CFPB) rule that banks could no longer write contracts that required customers to settle disputes individually in private, binding negotiations with company-appointed judges and forbade them to band together to sue.
Those who killed the CFPB rule said it was nothing more than a giveaway to trial lawyers and would not help consumers.
Wells Fargo’s attempt to use arbitration clauses to avoid lawsuits for creating millions of fake bank accounts and manipulating overdraft fees ultimately didn’t sway the outcome. Neither did Equifax’s ill-fated attempt to include mandatory arbitration clauses in a program that was supposed to help consumers hurt by the company’s failure to protect 145 million credit records.
“It shows the power of the banking industry and the power of groupthink in the Republican Party,” said Norman Ornstein, a former Minnesotan who now studies Congress for the American Enterprise Institute. “The only question is: What happens with the next big scandal?”
Sen. Al Franken, D-Minn., and others who backed the CFPB rule said the ability of consumers to band together and take their collective beefs to court was the best way to insure that big businesses would correct improper or incompetent behavior that has hurt millions.
Franken helped get mandatory individual arbitration clauses studied as part of the 2010 Wall Street reform. The study resulted in the CFPB rule. The Wells Fargo fake accounts scandal and the Equifax credit data hack had seemed to bolster his case.
In the end, scandal and overwhelming public support were only good enough for a 50-50 Senate deadlock, with GOP Sens. Lindsey Graham of South Carolina and John Kennedy of Louisiana voting with Democrats. This forced Republican Vice President Mike Pence to cast the deciding vote, killing the CFPB rule.
In conjunction with a July House resolution co-sponsored by Rep. Tom Emmer, R-Minn., the Senate vote formally ended the CFPB’s attempt to let consumers choose class action and left virtually no chance for it to be revived.
Mandatory individual arbitration clauses will remain for consumers in millions of financial service contracts. Class actions are out.
“It is hard to believe so many of my colleagues were on the wrong side of this,” a disappointed Franken told the Star Tribune the day after the vote.
Republicans relied on a Treasury Department report issued the day before the vote to bolster their point that consumers collect very few monetary rewards in class-action suits compared to the lawyers who represent them. They claimed, as the Treasury report did, that the CFPB rule would lead to thousands of new class-action lawsuits. Republicans also relied on a new report from the comptroller of the currency that said banks’ increased litigation costs would be passed on to customers in the form of higher borrowing costs.
After the Senate vote, the Financial Services Roundtable (FSR), a trade group for banks and other financial services led by former Minnesota GOP Gov. Tim Pawlenty, claimed victory for consumers.
“Today the Senate acted to preserve consumer access to low-cost arbitration and enable Americans to resolve disputes in a timely manner,” the roundtable’s government relations chief Anthony Cimino said in a statement.
Franken called the FSR statement “laughable and kind of insulting.”
“It’s about [how] money talks,” he said.
Franken was frustrated by what he felt was misinformation in Republican floor speeches about how good mandatory arbitration clauses are for consumers.
“I went to one of the Republicans and I said, ‘Are you actually saying this?’ ” he told the Star Tribune. Wells Fargo’s creation of fake accounts went on three years after being discovered because the bank forced aggrieved customers into mandatory individual arbitration and made them keep the results confidential, Franken said.
He also told the story of a Minnesota soldier who had his house foreclosed while deployed to Iraq. The house was sold at auction for a third of its value to the bank that foreclosed. The soldier was forced into mandatory arbitration with confidential results, Franken said. He could not even warn fellow servicemen and women about what had happened to him.
Ironically, both sides argued the same point to reach totally different conclusions on the CFPB arbitration rule: namely that individuals with small financial claims cannot afford to hire lawyers.
Franken said he plans to write a bill to exempt workplace sexual harassment and sexual assault claims from mandatory arbitration clauses in employment contracts. He also hopes to team with a Republican colleague on more general protections to those serving in the military.
University of Minnesota law Prof. Prentiss Cox once managed the consumer enforcement division in the Minnesota attorney general’s office and prosecuted cases involving banking regulation and consumer fraud. Cox said arbitration clauses are typically buried in the fine print. “Nobody knows they are signing away their rights in order to do day-to-day transactions,” Cox said. “This is a get out of jail free card for industry.”
Steve Billet, a former corporate lobbyist who teaches at George Washington University, called it “a fairly easy pull for Republicans,” Billet said. “They support the financial community.”
And the financial community supports them.
Federal campaign contributions organized by the Center for Responsive Politics shows that in the 2017-2018 election cycle, three quarters of donations by the American Bankers Association have gone to Republican organizations and nearly every big bank gave a majority of its political donations to the GOP.
Meanwhile, banks and other businesses continue to rely on mandatory individual arbitration clauses to stay out of court.
For all its public relations problems, Wells Fargo recently argued in federal court that mandatory arbitration clauses exempted the bank from a 49-state federal class-action lawsuit charging that Wells Fargo and other banks improperly collected millions of dollars in overdraft fees by recording the highest overdrafts first.
In the 50th state — California — a judge ordered the company to pay $203 million.
Wells Fargo did not think the California ruling followed the law, a bank spokesman told the Star Tribune. “For many years, high-to-low posting order was standard in the banking industry,” the spokesman said in an e-mail.
In 2010, Wells Fargo “eliminated high-to-low posting order for debit card transactions” and in 2014 “moved to chronological posting order for checks” and other electronic financial transactions, the spokesman added.
But neither the financial penalty nor the policy changes stopped Wells Fargo from claiming that thousands of customers outside California had no right to band together and sue over their manipulated overdrafts.
“Wells Fargo,” the spokesman said, “continues to believe that arbitration is a fair, efficient and effective way for a customer to pursue a legal claim and resolve a legal dispute.”