Issue in Focus
Oct 27 2017
Every year an estimated 130 billion bank transactions worth more than $80 trillion flow through the American economy. Given the sheer volume of transactions, disagreements are bound to arise between banks and consumers.
If a customer disagrees with their bank about a specific transaction, they can either a) fight the bank for the money they believe they are owed, or b) switch banks.
Protracted legal battles can be costly for both banks and consumers, so many banks include clauses in their contracts that require disputes to be settled by arbitration.
Arbitration has long been the preferred method of settling financial disputes in the United States. Since 1925, the Federal Arbitration Act has explicitly protected their validity from legal challenge.
Trial lawyers, however, hate arbitration clauses because they make it much harder for them to win big paydays through class action lawsuits.
When President Obama created his Consumer Financial Protection Board, he staffed it with pro-trial lawyer bureaucrats. Those advocates have systematically attacked the country’s productive arbitration system.
An opening salvo in the battle occurred this July when the CFPB issued a new regulation that would have declared certain arbitration agreements between banks and consumers illegal.
According to the CFPB, this arbitration ban was necessary because without it banks could steal from their clients unchecked. Never mind that sensible consumers can—and will—switch banks the second they suspect their bank is stealing from its customers.
Worse, enabling lawyers to file class action lawsuits imposes real costs on consumers. A study conducted by the CFPB itself found that between 2010-12 trial lawyers took in over $424 million in legal fees.
Those legal fees don’t come out of thin air. They come from consumers’ damages awards and result in increased costs to consumers. According to the U.S. Comptroller of the Currency, the CFPB’s new arbitration ban would have raised the cost of consumer credit by 3.5 percentage points.
Fortunately, Congress used the Congressional Review Act this fall to kill the CFPB’s arbitration ban before it could go into effect.
But the party beholden to trial lawyer campaign cash won’t always be shut out of power in Congress and the White House. That is why it is so important for Congress to repeal the CFPB while it still can.