Office of the Attorney General
AG Conway Urges Regulation of Mandatory Arbitration Clauses in Contracts for Financial Services
The federal government should adopt rules that protect consumers from mandatory arbitration clauses in important contracts, Attorney General Jack Conway and his colleagues in 15 other states wrote in a letter sent this week to the U.S. Consumer Financial Protection Bureau.
The mandatory arbitration clauses are inserted by financial institutions into critical contracts for essential financial products, such as credit card, payday loan and checking account agreements. The language either has the effect of prohibiting the consumer from pursuing a claim against the financial institution in court or makes it prohibitively expensive by restricting the consumers’ rights to form a class-action lawsuit. Also, unlike court proceedings, arbitration matters are usually decided privately and the decisions are not publicized.
As the chief consumer protectors of their states, the Attorneys General asked CFPB Director Richard Cordray to protect consumers’ fundamental rights to assert their claims in court in their letter.
"The need for regulations to protect the public interest has never been so great," the Attorneys General wrote. "Over the past decade, judicial decisions and business practices have diminished consumers’ rights and bargaining power with respect to contracts for financial services."
The letter, which was organized by Attorney General Conway, Delaware Attorney General Beau Biden and Massachusetts Attorney General Martha Coakley, was sent to the CFPB as part of the agency’s research into mandatory arbitration clauses. The 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act requires the agency to conduct extensive research before determining whether mandatory arbitration clauses are harmful to consumers before issuing any regulations.
Financial institutions tuck the arbitration into the fine print of contracts and consumers often are not even aware of what they are agreeing to. Financial institutions often make it mandatory that consumers agree to submit to the arbitration process before opening a checking account or issuing a credit card, so consumers often have no real way to negotiate or otherwise insist on protecting their rights.
"Mandatory pre-dispute arbitration is procedurally unfair to consumers, and jeopardizes one of the fundamental rights of Americans; the right to be heard and seek judicial redress for our claims," the Attorneys General wrote to Cordray, himself a former Ohio Attorney General. "These contractual requirements are neither voluntary nor readily understandable for most consumers. Often consumers do not recognize the significance of these provisions, if they are aware of them at all."
In addition to Kentucky, Delaware and Massachusetts, the following states also signed onto the letter: California, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington.
A copy of the letter is available here: http://tinyurl.com/qcgm3sf.
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