Biden, Coakley and Conway Lead Coalition of Attorneys General Calling on Federal Agency to Protect Consumers From Mandatory Arbitration Clauses in Contracts

Date Posted: Thursday, November 20th, 2014
Categories:  Civil Department of Justice DOJ Press Releases

DOVER – The federal government should adopt rules that protect consumers from mandatory arbitration clauses in important contracts, Delaware Attorney General Beau Biden 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 in secret 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 Delaware Attorney General Beau Biden, Massachusetts Attorney General Martha Coakley and Kentucky Attorney General Jack Conway, 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.


“As Delaware’s chief consumer protector, it is my job to speak up for Delawareans and look out for their interests,” Biden said. “We have made significant progress in strengthening Delaware’s consumer protection laws. The federal government also has an important role to play in protecting consumers. These mandatory arbitration clauses can be harmful to consumers and can deprive them of important rights.”


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 Delaware, Massachusetts and Kentucky, 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 on Attorney General Biden’s Web site:

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