Jeffrey Dunn, an attorney at Missouri firm Sandberg Phoenix, who represents long-term care facilities across the Midwest, predicts that the new rule will cause many long-term care firms to stop using arbitration agreements for fear they will no longer be able to participate in Medicare and Medicaid.

The only path to arbitration going forward is for the parties to agree to arbitrate a dispute after an incident has occurred, he said. “Undoubtedly, that is what the plaintiffs’ bar wanted,” he said. “I think it’s going to be a very, very rare occasion where you will see an arbitration agreed to by the parties after an incident has occurred because, generally, plaintiffs’ lawyers like to be in civil courts.”

September 28, 2016
The New York Times
NYTimes.com »
Breaking News Alert
September 28, 2016
 
BREAKING NEWS
Nursing homes have long blocked abuse and harassment claims from reaching courts. A major new federal rule puts a stop to that.

Wednesday, September 28, 2016 6:33 PM EDT

The federal agency that controls billions of dollars in Medicaid and Medicaid funding has moved to prevent nursing homes from forcing claims of elder abuse, sexual harassment and even wrongful death into the private system of justice known as arbitration.

The agency, the Department of Health and Human Services, on Wednesday issued a rule that bars any nursing home or assisted-living facility that receives federal funding from inserting an arbitration clause into its contracts.
The rule, which would affect 1.5 million nursing home residents, promises to deliver major new protections.

Read more »

CarMax -- the largest retailer of used cars in the nation -- continues to sell unsafe recalled vehicles, deceptively advertised as having passed a rigorous "125+ point inspection" and qualifying to be sold as "CarMax Quality Certified" vehicles, without bothering to get the lethal safety defects repaired first.

CarMax's attitude:

Bad brakes? So what.

Loss of steering? Oh, well. 

Catching on fire? Big deal.

Exposing their customers and all who share the roads to being maimed and killed? Not something they care about.

We worked with ABC's 20/20 on their excellent undercover investigative report, which they courageously went ahead and broadcast, despite enormous pressure from CarMax. While the network didn't post the report on their website, they did provide CARS with a DVD. We've posted an excerpt on our YouTube channel and have been promoting it.  It has now received over 475,000 views.

If you agree these incredibly reckless practices should be exposed, and the public should be warned -- and CarMax should be pressured to stop engaging in these illegal practices -- please share the link around:

    https://www.youtube.com/watch?v=n1YQkysD15g

Wells Fargo's scandalous practice of secretly opening more than 2 million sham deposit and credit card accounts dragged on for at least five years.

How did Wells Fargo get away with it for so long?

A big part of the story: Wells Fargo contract provisions blocked consumers from suing the bank in court. It's past time to prohibit the "ripoff clauses" that prevent consumers from enforcing their most basic legal rights.

Like most big banks and many other corporations, Wells Fargo buries ripoff clauses in the fine print of its customer contracts. These provisions, also known as "forced arbitration" clauses, prevent consumers from suing over wrongdoing in court and prohibit consumers from banding together in class actions. Instead, ripoff clauses force consumers to seek redress in private arbitration, on an individual basis.

So when lots of consumers have suffered small harms — as was the case with Wells Fargo — there's nothing they can do. It's generally not worth the time and money to bring a case individually, and there's a disincentive to proceed in arbitration, where claims are decided by a private firm handpicked and paid by the corporation rather than a judge or jury. Effectively, banks and other corporations are free to rip off their consumers without fear of being held accountable in court.

The problem isn't just that aggrieved consumers don't have access to a remedy. Keeping cases out of court means abuses are kept out of the spotlight.

That's exactly what happened with Wells Fargo, and why the abuses could go on so long.

Indeed, more than three years ago, a Wells Fargo customer named David Douglas sued in California, contending that the bank's employees and branch managers "routinely use the account information, date of birth, and Social Security and taxpayer identification numbers ... and existing bank customers' money to open additional accounts." Douglas alleged that branch managers opened at least eight accounts in his name and created fake business accounts under his name without his knowledge.

This case should have gone to court but was blocked by a ripoff clause. Douglas's lawyers argued that an arbitration provision in a legitimate account agreement should not bar him from suing over a sham account he never agreed to open. However, citing recent 5-4 U.S. Supreme Court decisions, the judge held that the ripoff clause in the original agreement blocked him from suing Wells Fargo. . . .

(more here)

For more information, contact Amanda Werner,
awerner@ourfinancialsecurity.org, (202) 973-8004.

CFPB Arbitration Rule Earns Strong and Widespread Support Across The U.S.

Consumer Financial Protection Bureau’s (CFPB) proposed rule to restrict forced arbitration – a tactic banks and lenders use to block consumers from challenging illegal behavior in court – has been met with widespread support. Below are selected highlights of comments from individual consumers, elected officials, advocacy groups and newspaper editorial boards who weighed in during the public comment period, which ended on Aug. 22, 2016.

More Than 100,000 Consumers Across the Country Support the Rule

Between the proposed rule’s announcement on May 5, and the close of the comment period on Aug. 22, at least 100,000 individual consumers across the country submitted comments or signed petitions urging the CFPB to restrict forced arbitration in consumer finance.

On the other side, FreedomWorks – a conservative political group affiliated with the Tea Party – claims it “generated nearly 15,000 responses opposed to the rule.” Of the 100,000-plus positive comments, 69 percent of consumers voiced general support for the proposed rule, emphasizing that “[b]arring consumers from joining class actions directly opposes the public interest.” Another 31 percent pushed the CFPB to expand the rule’s coverage and “take the extra step to prohibit individual arbitration in the final rule.” This overwhelming support for action against forced arbitration echoes a recent national poll, which found that, by a margin of 3 to 1, voters in both parties support restoring consumers’ right to bring class action lawsuits against banks and lenders.

31% Expand rule to ban forced arbitration
69%  Support current proposal to restore class action rights

Some Notable Comment Letters

281 consumer, civil rights, labor and small business groups
strongly support the rule

“The CFPB rule, which will restore consumers’ ability to band together in court to pursue claims, is a significant step forward in the ongoing fight to curb predatory practices in consumer financial products and services and to make these markets fairer and safer… Because forced arbitration undermines compliance with laws and creates an uneven playing field between corporations that use forced arbitration and those that allow for greater consumer choice in dispute resolution, it is in the public interest and in the interest of consumer protection to prohibit or strictly curtail the use of forced arbitration clauses in consumer financial contracts.”
210 law professors and scholars “heartily endorse” the proposed rule “[T]he proposed regulations are critically important to protect consumers and serve the interests of the American public… to the extent we allow financial services companies to use arbitration to eradicate consumer class actions, we are allowing these companies to insulate themselves from enforcement of our laws. This harms not only individual consumers but also the public at large.”

AARP

“[F]orced arbitration clauses along with class action bans do not provide a net benefit to consumers. As many have already pointed out, businesses would not need to impose forced arbitration if consumers believed that it benefits them. Nevertheless, proponents argue that it lowers the cost of providing consumer products and services. This claim has not been supported with any credible economic data or studies. Even if such claims were true, there is no evidence to suggest that any such cost savings have been passed on to consumers.”

Americans for Financial Reform

“While an individual consumer may only lose less than $100 to an improper fee, unlawful practices implemented on a broad scale quickly amount to millions in unearned profit for banks and lenders who violate the law. Though industry representatives might prefer to shift the focus to attorneys’ fees, it is essential to note that – without class actions to return money to large numbers of consumers – banks and lenders that violate the law retain a full 100 percent of these ill-gotten funds. Thus, consumers’ ability to challenge such practices in private class actions can help deter fraudulent behavior that might otherwise prove very profitable. Because government enforcement agencies lack the resources to police every instance of financial fraud, consumer class actions serve as a necessary check to ensure a fair and competitive financial market.”

Consumers for Auto Reliability and Safety (CARS)

“Consumers deserve at least the same freedom, protection, and access to justice as car dealers, who were granted a special exemption from the Federal Arbitration Act by Congress…As Senator Grassley, speaking in support of S. 1140, stated: ‘When mandatory binding arbitration is forced upon a party, for example when it is placed in a boiler-plate agreement, it deprives the weaker party the opportunity to elect another forum. As a proponent of arbitration I believe it is critical to ensure that the selection of arbitration is voluntary and fair.’ While S. 1140 did not pass, auto dealers were granted an exemption from the Federal Arbitration Act, in order to preserve their rights, through passage of H.R. 2215 in 2002.”

The Leadership Conference on Civil and Human Rights

“Private class actions have been and continue to be critical to protect civil rights in the financial sphere… [t]here is a public value in bringing discrimination into the light of day through consumer civil rights class actions… Individual private arbitration is a poor forum in which to vindicate civil rights claims, especially because victims of discriminatory lending often do not know they have been harmed. Individuals who suspect they have been discriminated against may not know the amount of damages they have suffered and may be discouraged from investing the time and resources to pursue individual claims in arbitration.”

Main Street Alliance

“Class actions are an invaluable tool for small businesses contesting the use of monopoly power to increase prices…These cases have already delivered substantial relief, ranging from $5,000 to more than $2 million, to a wide array of small- and medium-sized business plaintiffs. Yet many arbitration clauses bar small businesses from joining their claims together in this way…On behalf of the thousands of small business owners we represent, we commend the CFPB’s proposed rule and encourage the Bureau to issue a strong final rule.”

NAACP Legal Defense Fund

“Class actions have proven to be essential in rooting out discriminatory practices that disproportionately harm African Americans and communities of color…[from 2007-2009] a group of private counsel filed fair lending class actions against a number of major mortgage lenders, alleging discriminatory mortgage pricing in violation of the Equal Credit Opportunity Act and the Fair Housing Act… These actions led to industry-wide reforms, including caps on dealer mark-ups, as well as pre-approved financing for minority customers and consumer education.”

National Association of Consumer Advocates

“The widespread suppression of consumer finance claims not only denies remedies for millions of American consumers and encourages ongoing risky conduct, it also stunts the necessary development of consumer protection laws. Indeed, the bureau oversees compliance of, and enforces numerous and vibrant consumer protection laws, many of which afford a private right of action for consumers to pursue remedies of their own. Courts’ opportunities to weigh factual disputes and interpret these laws and incidentally create precedent to be followed in future cases are reduced significantly by forced arbitration.”

National Consumer Law Center

“If opponents of the arbitration rule have a problem with the availability of class actions or with the procedural rules governing the adjudication of class actions, their recourse is to Congress or the Rule 23 Subcommittee—they should not be permitted to create a contractual fiction that allows them to bypass class actions entirely. Pre-dispute arbitration agreements do not prevent frivolous class actions. They prevent all class actions no matter how meritorious. The agreements typically do not even allow an arbitrator to award class-wide relief.” Public Citizen “[Industry] representatives have openly acknowledged that the purpose of forced arbitration clauses is to limit their legal exposure and to suppress consumer claims…Industry’s claim that class actions benefit plaintiffs’ attorneys over consumers is a false talking point that should be laid to rest. According to the Study, between 2008 and 2012 consumers across the product markets studied received $2.2 billion in net relief—that is, over and above attorneys’ fees and litigation costs.”

Major Editorial Endorsements

Bank Customers Get a Fighting Chance ׀ The New York Times

“A series of articles in The Times last year found that prohibiting class-action lawsuits typically results in consumers simply giving up in cases of overcharging. Private arbitration is no alternative to a day in court, because corporations effectively control the process, including the choice of the arbitrator and the rules of evidence… That insult is a sign that opponents have no good arguments. The ban on class-action lawsuits is a hallmark of the anti-regulatory, anything-goes era that culminated in the financial crisis… Mr. Cordray and the consumer bureau are serving the public as the law requires.”

A Fair Shake for Consumers ׀ The San Francisco Chronicle

“Few customers read the fine print on credit card and bank agreements when it comes to settling disputes… The real purpose of the small-type agreements is to save banks and lenders from a challenge brought by pools of unhappy customers filing class action suits in the name of broad ranks of gouged consumers. If successful, such lawsuits can run into millions, instead of the paltry sums doled out by arbitration.”

Consumers Have a Right to Go to Court ׀ The Boston Globe

“The bureau’s planned change could save consumers money and aggravation by eliminating an unfair advantage companies hold over anyone who dares to challenge a late fee or early-termination penalty. The arbitration clauses are designed to prevent customers from taking legal recourse against a business. Specifically, they keep them from joining a class action lawsuit… Even the very notion of arbitration is enough to discourage most wronged consumers from taking on a bank or corporation over an unwarranted charge — it’s usually not worth the time and effort.”

Customers Finally Get Some Help Against Big Banks ׀ The Sacramento Bee

“It’s a necessary step to level the playing field, at least somewhat, for lowly customers against these financial behemoths, which have used the fine print of agreements to force consumers to take all disputes into binding arbitration instead of the courts... The industry, of course, warns that these rules will raise costs for all customers. Such alarms would be more believable if banks were not already jacking up all sorts of fees and charges, and racking up sky-high profits.”

Rule Change Offers Needed Payday Relief ׀ The San Antonio Express-News

“Fortunately, relief is in the works for future payday borrowers who would rather go before a judge… [The CFPB’s] regulation would restrict the use of arbitration clauses in consumer financial contracts that are used to block class-action lawsuits. Requiring those in dire financial straits to shell out $1,000 for an arbitrator to settle a dispute in a case with a net worth of only a few hundred dollars — and prohibiting them from joining those in similar circumstance — leaves few options.” Free From Fine Print ׀ The Akron Beacon Journal “The firms have all but blocked the path to class-action lawsuits. That is a moneymaker for them. Route consumers into arbitration, and they essentially are on their own, each to fend against a powerful financial house. No surprise that few consumers take up the expensive fight… [C]onsumers lack tools to check corporate excesses. Arbitration clauses typically have carried provisions barring consumers from even talking about their claims. That factor of secrecy reinforces how the option of a class-action lawsuit becomes necessary to deter deceitful practices and ensure accountability.”

When Banks Play Unfairly, Consumers Want Chance to Be Heard in Court |
The Los Angeles Times

“The vast majority of consumers want to know they can seek their day in court if they get in a beef with a bank. That’s the main takeaway of a report last week from the Pew Charitable Trusts, which examined so-called mandatory arbitration clauses in bank contracts. These are the provisions that say you can’t sue or join a class-action lawsuit, and if you want to settle a dispute, you have to take it to a professional arbitrator selected and paid for by the bank.”

CFPB’s Arbitration Proposal Draws 13,000 Comments | The Wall Street Journal

“Consumer groups gave the proposal strong backing. More than 280 had worked jointly to build support for the CFPB, mounting a Twitter campaign using the hashtag #RipoffClause to criticize industry efforts to use arbitration clauses and keep cases out of the courts. As of Tuesday afternoon, 12,744 comments received by the CFPB were posted on the federal government’s rules site, regulations.gov, and the number is expected to grow. An agency spokesman said comments received late Monday will be added later, as well as those that were submitted by mail.”

CFPB Urged to Move Quickly on Arbitration Rules | Bloomberg BNA

“Consumers want access to the courts in disputes with banks over checking accounts, the Pew Charitable Trusts said in a new report urging speedy action on a Consumer Financial Protection Bureau proposal that would make it easier to file class action suits. The Aug. 17 report, which was based on basic checking account disclosures by 44 of the 50 largest retail banks in the U.S., offers the latest support for the CFPB's May proposal, which bans mandatory arbitration clauses in contracts for banking accounts, credit cards, student loans and several other types of consumer financial products.”

Poll: 70% Of Consumers Oppose Forced Arbitration By Lenders |
Financial Advisor

“Seventy percent of consumers from both political parties oppose forced arbitration in loan contracts, the Americans for Financial Reform and the Center for Responsible Lending reported in a poll Wednesday. The right of consumers to go to court against banks and other lenders in class action suits, however, was supported by a greater majority of Democrats (78 percent) than Republicans (63 percent). The survey was done of 1,000 likely 2016 voters between June 16 and 22.”

CFPB Finds Support for Arbitration Clause Ban | DS News

“The attorneys general from 18 states and the District of Columbia have written a letter to the Consumer Financial Protection Bureau (CFPB) urging the Bureau to adopt its proposal to limit the use of mandatory arbitration clauses by financial companies in business contracts with consumers.”

Arbitration Everywhere, Stacking the Deck of Justice | The New York Times

“Some state judges have called the class-action bans a ‘get out of jail free’ card, because it is nearly impossible for one individual to take on a corporation with vast resources… By banning class actions, companies have essentially disabled consumer challenges to practices like predatory lending, wage theft and discrimination, court records show.”

Key Elected Officials Statements of Support

38 U.S. Senators commend CFPB for proposed rule

“Recognizing the urgent need to address these troubling practices, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010 to improve accountability, strengthen the financial system and establish the CFPB.

Dodd-Frank included several restrictions on the use of forced arbitration, including a mandate for the CFPB to take action on arbitration. Congress specifically directed the CFPB to study the use of forced arbitration in connection with the offering of consumer financial products and services, and authorized it to ‘prohibit or impose conditions or limitations on the use of’ such agreements based on the study results.”

65 members of the U.S. House of Representatives praise the rule “Consistent with the bureau’s exhaustive study on forced arbitration, which found that forced arbitration restricts consumers’ access to relief in disputes with financial service providers by limiting class actions, the proposed rule is a critical step to protect the public interest by ensuring that consumers receive redress for systemic unlawful conduct…

There is overwhelming evidence that class-action waivers in financial products and services agreements undermine the public interest.” 18 state attorneys general want to extend the reach of state enforcement efforts

“Although we believe consumers will be best served by the total prohibition of mandatory, pre-dispute clauses in consumer financial contracts and we encourage the bureau to consider regulations to that effect, the proposed rules provide a substantial benefit to consumers by restoring their fundamental right to join together to be heard in court when common disputes arise in the commercial marketplace. Many of our respective consumer protection laws include private right of action provisions, the purpose of which is to complement and extend the reach of our state enforcement efforts.”

State legislators from 14 states say the rule is “critical to restoring a healthy and vibrant federalism”

“Because of these resource limitations, states rely on the private cause of action to give effect to their consumer protection laws. Arbitration agreements that undermine the effectiveness of the private cause of action undermine the force and effectiveness of state consumer protection law too… States often serve as the ‘laboratories of democracy’ that allow for experimentation with consumer protection regulation. This experimentation is critical to the calibration of a regulatory scheme that allows for easy access to safe and affordable credit. When consumers cannot enforce state consumer protection laws, lawmakers like us cannot measure the efficacy of those laws and cannot observe the effects of those laws as they evolve through litigation. That stifles the healthy development of consumer protection laws nationwide.”

The Military Coalition, representing 5.5 million servicemembers, applauds the rule “[Class action bans] are particularly abusive when enforced against service members, who may not be in a position to individually challenge a financial institution’s illegal or unfair practices because of limited resources or frequent relocations or deployment… Our nation’s veterans should not be deprived of the constitutional rights and freedoms that they put their lives on the line to protect, including the right to have their claims heard in a trial by a jury when their rights are violated. The catastrophic consequences these clauses pose for our all-voluntary military fighting force’s morale and our national security are vital reasons for the CFPB to act quickly to finalize the regulations.”

In this this recent Orange County Register article about California’s equal pay rules, one local [employer-side] labor lawyer explains that he advises his clients to make their employees sign arbitration agreements, thereby preventing them from being able to sue if/when they have a legal dispute over their wages.

But here’s where he brazenly admits that things are tilted in his favor:

“People question whether arbitration tends to favor employers,” the attorney told attendees at a recent human resources conference. “I believe they do. I use the same arbitrators over and over, and they get paid when I pick them. They know where their bread and butter comes from.”

In other words, he is telling employers: Get your employees to sign away their right to a jury trial so that you can play fast and loose with a law you don’t like. And if you do have to go into arbitration, don’t worry because this arbitrator knows who pays his bill.

(Hat tip to Consumerist.)