Undoing the poisonous pro-corporate, anti-American, anti-Constitutional legacy of the late Justice Antonin Scalia, the self-styled “originalist” who was actually a radical, a judicial version of the Biblical creationists who insist, against all evidence, on a particular, “original” meaning of words spoken long ago by people who had entirely different meanings for those words.
Just like the creationists who labor long to make the meanings of the words produce the result they deem pre-ordained, Scalia labored at length to justify his bizarre, duplicitous jurisprudence where he claimed to be subservient to the legislative bodies but then created, out of the whole cloth, his unique rules for interpreting their work, rules that, surprise!, were fabulously congenial to a corporatist view of America where fictitious persons could have religious views that trumped neutral government regulations, but actual flesh-and-blood Native Americans could not.
There’s a story that many of the people at Richard Nixon’s funeral thought they had accidentally gone to the wrong funeral when they heard the eulogies for him, so sainted were the descriptions of the guest of honor at the ceremony. That is what is happening to Scalia now as the corporate press and corporate law firms sing the praises of this of this profoundly bigoted and destructive man who did so much to deliver America to its enemies in the suites.
Feb 18 2016 By Richard Cordray
Thank you to the American Constitution Society for inviting me to speak today as part of the Access to Justice Series. I have a deep appreciation for the work you are doing to bring together attorneys, both young and old, who share a common commitment to understanding how the law can be put in service of justice to improve the lives of all Americans.
The Consumer Financial Protection Bureau, which I feel privileged to lead as its first Director, is a notable new example of that common commitment. As our mission, we have set ourselves the task of seeing to it that “consumer financial markets work by making rules more effective, by consistently and fairly enforcing those rules, and by empowering consumers to take more control over their economic lives.” That is not an abstract or academic goal – it is simply necessary so that people throughout our society can effectively manage the ways and means of their lives. Consumers have so very many financial judgments to make, ranging from small daily choices to a few momentous decisions that may occur only rarely over the course of a lifetime. The risks and complexities they face are far greater now than they were two generations ago. As people engage in the pursuit of happiness, their success or failure depends crucially on having more support to help them make informed choices and having stronger protections to keep them from being harmed by predatory conduct.
Before the Consumer Bureau was created, the authority for administering and enforcing federal consumer financial laws was strewn across seven federal agencies. For each of those agencies, consumer protection was only one of its many responsibilities. Consequently, no single agency was primarily focused on protecting the everyday users of financial products and services – and consumers paid the price when the financial crisis hit.
Our responsibility, as we understand it, is to stand on the side of consumers and ensure they are treated fairly in the financial marketplace. Through fair rules, consistent oversight, appropriate enforcement of the law, and broad-based consumer engagement, we are working to restore trust and confidence in the markets for household financial products and services. We are here to make sure that the problems that upended our economy and hurt so many consumers do not ever happen again. We also have the responsibility to foresee and forestall new problems that could arise in the future. And we aim to help people better understand and navigate the biggest financial decisions in life, such as borrowing to buy a car, to pay for college, or to own a home.
To date, the Consumer Bureau’s enforcement activity has resulted in $11.2 billion in relief for over 25 million consumers. The vast majority of that relief has resulted from matters where our investigations found that financial institutions had engaged in some form of deceptive conduct. Our supervisory oversight has further resulted in financial institutions providing more than $300 million in redress to over 2 million consumers. As of this month, we have handled over 800,000 complaints from consumers addressing all manner of financial products and services. Our team also provides unbiased, reliable answers about consumer finance issues through the “Ask CFPB” feature on our website, which has been accessed by over 10 million people.
All of this work is obviously important to individuals and families across America, but let me illustrate just how important it really is. We talk a great deal these days about income inequality. Many are hotly debating whether more should be done to see that American workers have more money in their pockets through higher wages, more affordable health care, or fairer taxes. Those matters are not within my authority as the Director of the Consumer Bureau. But it is one thing for people to have money in their pockets; it is quite another thing to keep it there. Just a few years ago, predatory conduct and irresponsible practices led to a broad financial crisis that cost millions of Americans their homes, cost millions more their jobs, and cost virtually all of us much of our retirement savings, adding up to trillions of dollars in total.
No single event during our lifetimes will have devastated the cumulative wealth of middle-class Americans like the financial crisis. The median net worth of those in the 20th to the 40th income percentile fell by half between 2007 and 2013. The median net worth of those in the 40th to the 60th income percentile fell by 40 percent over the same period. For people whose financial situations were affected by the crisis, these are the resources they would have had to help finance their children’s education or to help them secure a decent retirement. And though we all paid the heavy cost of under-regulated and poorly performing markets, the burden was not borne evenly. For most of those at the top end of our society, the climb back from the bottom was swift and sure. For those in the middle of our society and below, it still remains a long, hard slog just trying to get back to where people had been before the crisis, with no end in sight even now, eight years later.
There are many ways we are working to repair the fault lines in the system of consumer finance. We have adopted a substantial set of new regulations to address the malignancies that infected the mortgage market and are laid bare for all to see in movies like The Big Short and Too Big to Fail. We are engaged in strenuous oversight and numerous enforcement actions to improve the debt collection marketplace, still the most complained-about area of consumer finance, and we are preparing to overhaul that market with strong new rules. We are pushing hard for much greater transparency in student lending, and we are taking on the many sub-par and harmful practices employed by student loan servicers.
But today I want to talk to you about something that cuts across the entire consumer financial marketplace and has been on our radar screen since the very beginning: the effects on consumers of mandatory pre-dispute arbitration clauses. These important clauses have often been buried deep in the fine print of contracts for consumer financial products and services, such as credit cards, bank accounts, payday loans, and private student loans. And though they are nearly invisible to most people, they are having profound effects on American life.
Since I am speaking to the American Constitution Society, I need hardly say that under the U.S. Constitution, each one of us is entitled to seek justice through due process of law as set forth in the Bill of Rights. This right is reinforced in many state constitutions, which recognize the right to an effective remedy to redress injuries we may sustain to our person or our property. This is an important element of personal liberty, that people should be able to protect themselves by acting to vindicate their rights. But our adversarial system can only work effectively, and it can only deserve the public’s confidence, if it is built on the solid foundation of justice. As Chief Justice Earl Warren once observed, “You sit up there, and you see the whole gamut of human nature. Even if the case being argued involves only a little fellow and $50, it involves justice. That’s what is important.”
Arbitration clauses, as they are used today both in the field of consumer finance and more generally, often have been deliberately designed to block Americans from effective means of vindicating their rights. Some of the broader ramifications are surprising and even breathtaking in their scope. But now both the Congress and the courts are beginning to turn away from the extreme philosophy that says a take-it-or-leave-it provision buried deep inside a form contract can nullify an individual citizen’s ability to vindicate rights conferred on them by federal and state law. Earlier this month, Judge Harvey Wilkinson, a highly respected conservative judge writing for a unanimous panel of the Fourth Circuit Court of Appeals, refused to enforce a claim to arbitration pressed by a company acting as a debt collector on behalf of a tribal on-line payday lender. The court held that federal law “does not protect the sort of arbitration agreement that unambiguously forbids an arbitrator from even applying the applicable law,” and summed up its view that federal law “may not play host to this sort of farce” where a party is attempting to “underhandedly convert a choice of law clause into a choice of no law clause.”
So let us consider these developments further in light of the work currently being undertaken by the Consumer Financial Protection Bureau. As we will see, Congress has conferred specific authority upon the Bureau to take up the topic of arbitration and potential policy interventions. Today, I will share the steps we have been taking to learn more about how mandatory pre-dispute arbitration clauses affect consumers of financial products and services. I will also discuss the proposals we have under consideration to mitigate certain of those harmful effects.
We can start with a little background on how we got here. In 1925, Congress first enacted the Federal Arbitration Act to make written agreements to arbitrate certain disputes, including those arising out of contracts, enforceable in the courts. Rather than obtaining a legal judgment from a court, parties to an arbitration agreement would be bound by an arbitration award, which could be confirmed, but generally not reviewed or overturned, by a court.
For four decades after the Federal Arbitration Act was adopted, the federal courts maintained a skeptical and restrictive view of arbitration. In 1953, for example, the Supreme Court held that arbitration clauses could not be used to waive the right to a federal judicial forum granted under substantive federal financial statutes, such as the securities laws.
Starting in the 1980s, however, the law took a dramatic turn, and since then the Supreme Court has expressly overruled much of the prior case law in the area of financial statutes, such as securities laws and antitrust. During this period also, the Court generally revised its previous views of the Federal Arbitration Act and determined that the statute favors arbitration.
At about the same time, the use of arbitration clauses changed dramatically. Originally, arbitration was largely used in commercial disputes between businesses that bargained with each other to create tailored contracts; it was rarely used in disagreements between businesses and consumers. But in the last 20 years or so, banks started including arbitration clauses in their consumer contracts, requiring any disputes or disagreements to be resolved through private arbitration. Attorneys who sought to persuade banks to adopt arbitration clauses specifically noted that they could be used to block class actions.
In several recent cases, the Supreme Court has turned once again to interpreting the Federal Arbitration Act. In an important 2011 decision in the Concepcion case, the Supreme Court held that the Federal Arbitration Act preempted California state law that would have declined to enforce an arbitration agreement barring class proceedings in a consumer case on grounds of unconscionability. Two years later, in a class action antitrust suit against American Express, the Court enforced the arbitration clause of a contract even though it effectively precluded the plaintiff from ever vindicating its statutory rights under federal law.
Even as the judicial doctrine on arbitration has evolved to favor arbitration, it is clear that the Congress still has the authority to adopt additional laws to regulate dispute resolution procedures in the manner that it deems most conducive to the administration of justice. Where Congress addresses arbitration as a method of dispute resolution, the courts must follow its lead. In recent years, Congress has exercised this authority several times. In 2006, Congress first expressed explicit concern about the effect such clauses may have on the welfare of individual consumers in the financial marketplace. Indeed, the Military Lending Act prohibited mandatory pre-dispute arbitration clauses in connection with certain loans made to servicemembers.
Congress also sought to confine the reach of arbitration in the Dodd-Frank Act. In the statute, Congress expressly prohibited the inclusion of arbitration clauses in most residential mortgage loan contracts. It gave the Securities and Exchange Commission authority to prohibit or restrict use of such clauses for certain disputes, if it finds that doing so would be in the public interest and for the protection of investors. It directed the Consumer Bureau to conduct a study and provide a report to Congress on the use of pre-dispute arbitration clauses in consumer financial contracts. And, finally, Congress provided that “[t]he Bureau, by regulation, may prohibit or impose conditions or limitations on the use of” such arbitration clauses in consumer financial contracts if the Bureau finds that such measure “is in the public interest and for the protection of consumers,” and findings in such a rule are “consistent with the study” performed by the Bureau. These provisions represent a clear and conscious decision by Congress to prompt a careful examination of whether arbitration should be used as a means of cutting off the ability of consumers to vindicate their rights.
Pursuant to our statutory authority, we conducted what even our critics acknowledged is the most rigorous and comprehensive study of consumer finance arbitration ever undertaken. Before we performed the study – which ran to 728 pages – we first had to compile extensive information on thousands of federal and state court cases and analyze data from the largest arbitration forum in the country.
What we found was that arbitration clauses are pervasive in consumer finance contracts. Large banks, in particular, commonly include these clauses in their standard agreements for credit cards and checking accounts, among other products. Additionally, many payday lenders and private student lenders have put these clauses in their contracts. Given the size of these markets, we can safely say that tens of millions of consumers are covered by one or more such arbitration clauses. Sometimes consumers are given a one-time chance to opt out of these clauses, but most are unaware of this chance. In fact, the vast majority of Americans do not even know that arbitration clauses exist.
Importantly, our study showed that arbitration clauses restrict consumers’ relief in disputes with financial service providers because companies are using them to block class proceedings in any forum – whether court or arbitration. This affects consumers’ access to justice because group proceedings are often the only practical way to seek relief for relatively small claims. Class actions also create a mechanism to bring about much-needed changes in business practices. By inserting an arbitration clause into their contracts, companies can sidestep the legal system, avoid big refunds, and continue to pursue profitable practices that may violate the law and harm consumers.
In our study, we took a close look at the impact of these clauses – how many consumers pursued and got relief in arbitration procedures or in individual litigation when they challenged company behavior they believed to be wrongful. We found that very few consumers used the arbitration procedures. Only about 25 disputes per year involved affirmative consumer claims of $1,000 or less, and only a handful of those achieved any relief whatsoever. We also found that consumers generally did not use the court system – including small claims courts – to obtain redress for individual matters.
We also found that far more consumers were able to obtain relief when they were not bound by arbitration clauses and were able to join class action lawsuits. We identified about 420 federal class action settlements in consumer finance cases that were approved between 2008 and 2012. We found that those settlements totaled $2.7 billion in cash, in-kind relief, fees, and expenses. And it is important to recognize that these numbers only tell part of the story, because they exclude the prospective benefits to consumers from lawsuits or settlements that led to changes in company behavior and the deterrent effect associated with these settlements. Clearly $2.7 billion in monetary relief looking backward over a specific prior period means that consumers will save many more billions of dollars in the future if those harms are now eliminated going forward.
We also examined whether companies that include arbitration clauses in their contracts are able to offer lower prices. Our methodology here centered on a real-world comparison of companies that dropped their arbitration clauses and companies that did not change their use of arbitration clauses. We found no statistically significant evidence of any price increase. We likewise found no evidence that issuers which dropped their arbitration clauses reduced access to credit relative to those whose use of arbitration clauses was unchanged.
Finally, our study examined the extent to which consumers are aware of arbitration clauses and understand their implications. In our survey of 1,000 consumers with credit cards, we found that of those consumers who said they knew what arbitration was, three out of four reported that they did not know if they were subject to an arbitration clause. Of those who said they did know, more than half were wrong about whether their agreements actually contained an arbitration clause.
Taken together, these results show that arbitration clauses severely limit consumers’ options to pursue a just resolution of their disputes, to their detriment and without their knowledge.
In our governing statute, Congress specified that the results of this arbitration study are to provide the basis for important policy decisions. So after carefully reflecting on the findings of our study, the Bureau has decided to launch a rulemaking process to protect consumers. Last fall, we released an outline of proposals that we are considering so that we could get additional feedback from small providers of financial services that might be subject to the rule and a range of other stakeholders. As that outline explained, we are considering whether to prohibit companies from using arbitration clauses to block class actions. This would apply to a wide range of consumer financial products and services such as credit cards, checking and deposit accounts, certain auto loans, small-dollar or payday loans, and private student loans, among many others.
One approach we might have taken would have been a complete ban on all arbitration agreements for consumer financial products and services. The proposals we are considering do not do that. Companies could still have an arbitration clause, but they would have to say explicitly that it does not apply to cases brought on behalf of a class unless and until the class certification is denied by the court or the class claims are dismissed in court.
While the proposals we are considering would not impose a total ban, we are concerned that consumer harm could arise if arbitrations are conducted in an unfair manner. So we have also been considering whether to require companies to send to the Bureau all initial claims and awards in consumer financial arbitration disputes. By gathering this data, over time we will be able to refine our evaluation of how such proceedings may affect consumer protection, if at all. To create more transparency and spur broader thinking by researchers and other interested parties, we are also considering publishing this information for all to see, so the public can analyze it as they see fit. Of course, before collecting or publishing any arbitral claims or awards, the Bureau would ensure that these activities comply with privacy considerations. Depending on what the data reveal, these issues could be subject to further consideration both by us and by other policymakers over time.
We have been analyzing a broad range of feedback we received in response to the outline, with a particular focus on feedback from small businesses. Our next step will be to publish a Notice of Proposed Rulemaking and seek public comment from all stakeholders prior to finalizing a rule.
At the Consumer Bureau, we are dedicated to helping fashion a financial marketplace that is characterized by fair, transparent, and responsible business practices. The proposals we are considering would advance these objectives in three ways.
First, consumers would have the opportunity to vindicate their legal rights, which we have recognized is a core American principle. As noted U.S. Court of Appeals Judge Richard Posner has convincingly observed, “The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.” That is, in fact, a primary reason why federal and state courts developed procedures for class actions to do justice in such cases. By joining together to pursue their claims as a group, affected consumers would be able to seek and, when appropriate, obtain meaningful relief that as a practical matter they could not get on their own. In this manner, our civil justice system has found a way to effectuate the basic point Chief Justice Warren made, as quoted earlier, that “even if the case being argued involves only a little fellow and $50, it involves justice. That’s what is important.”
Second, the proposals we are considering would deter wrongdoing on a broader scale. One way this is often expressed is by describing group lawsuits as being brought by “private attorneys general” as a means of vindicating public rights and aiding other methods of law enforcement. Although many consumer financial violations impose only small costs on each individual consumer, taken as a whole these unlawful practices can yield millions or even billions of dollars in revenue for financial providers. Companies that are protected behind the effective immunity of arbitration clauses are likely to take less care to ensure that their conduct complies with the law than they would take if faced with class actions. The potential to be held accountable to large numbers of consumers significantly changes this dynamic.
Finally, by requiring companies to provide the Bureau with arbitral claims and awards, which might be made public, the proposals we are considering would bring the arbitration of individual disputes into the sunlight of public scrutiny. In this way, we agree with one of the first great consumer advocates, Justice Louis Brandeis, who said that “sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”
One way to think about the effect of mandatory pre-dispute arbitration clauses is to recall what Sherlock Holmes described as “the curious incident of the dog in the night-time.” In the famous detective story, everyone except Holmes misses the fact that the dog did nothing during the night, including not barking at all, which yields the important clue that the intruder likely was recognized. What the story illustrates is that it is often hard to grasp the significance of something that does not happen and thus can easily go unnoticed.
The same point can also be applied to arbitration. What we learned in the course of our study is that very few consumers of financial products and services are seeking relief individually, either through the arbitration process or in court. When we looked for arbitrations of small dollar claims, they simply were not there. They did not turn up in small claims court either. Yet the markets we studied involve tens of millions of consumers. Some class actions did get through the arbitration net, but others did not, and an unknown number are never filed because of the mere presence of an arbitration clause. Millions of other consumers who may not even realize that their rights were violated might have obtained relief as class members if group lawsuits were permissible. Like the dog that did not bark in the night, the silent fact of all this missing relief for consumers can be hard to notice, but it is nevertheless a vital piece of the story.
The central idea of the proposals we are considering is to restore to consumers the rights that most do not even know had been taken away from them. Companies should not be able to place themselves above the law and evade public accountability simply by inserting the magic word “arbitration” in a document and dictating the favorable consequences. Consumers should be able to join together to assert and vindicate their established legal rights. The truth is nobody should have to rely on the government first deciding to pursue an enforcement action in order to get their money back and hold others accountable. In many of our laws, Congress has expressly provided for private remedies. Sometimes Congress has deliberately decided to do so, and sometimes it has not. That should count for something.
Of course, consumer finance is not the only area where industry is using mandatory pre-dispute arbitration clauses to block consumers from the courtroom. Other consumer advocates – both inside and outside of government – are doing great work investigating the effects of arbitration clauses in contracts for insurance, employment, franchises, and other goods and services. Many of you are here today, and we encourage you to continue this critical work in the public interest.
I want to close by again thanking the American Constitution Society for convening those who are committed to preserving access to justice and defending the rights of consumers. We look forward to working together on this issue and many others.