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Not reading the fine print really can backfire if you have a problem with your bank or credit card issuer. Arbitration clauses—a common inclusion in consumer contracts—can prevent you from taking the company to court or joining a class-action lawsuit. At least, for now.
A report released Tuesday from the Consumer Financial Protection Bureau could be the first step in rule-making to limit arbitration clauses. The Dodd-Frank Act, which prohibited the use of arbitration clauses in most mortgage contracts, mandated the study and gave the bureau the power to issue regulations if in the public interest and in keeping with the study findings.
"In my view, and in the view of consumer advocates, this study is incredibly thorough," said David Seligman, a staff attorney with the National Consumer Law Center. "The CFPB has much of the information it needs to act, and to act quickly."
As it stands now, by signing a contract with such an arbitration clause included (or just clicking "I agree to the terms and conditions"), consumers agree that either side can block court disputes in favor of having the problem handled by a nongovernmental third party (i.e., an arbitrator). Consumers rarely benefit from that process, said Ira Rheingold, executive director and general counsel of the National Association of Consumer Advocates. "In most cases, you discover you've given up that right when you find out the company cheated you," he said. "You try to go to court and you find out you can't go to court."
"It's just not fair to consumers," added Rheingold.
Financial institutions representing more than half of credit card debt and almost half of insured deposits have arbitration clauses in place, according to the CFPB study. It found it was common for a company to invoke an arbitration clause to block class-action lawsuits, with credit card issuers using such methods in 65 percent of suits. It was less common for companies to block individual lawsuits.
"Our study found that these arbitration clauses restrict consumer relief in disputes with financial companies by limiting class actions that provide millions of dollars in redress each year," CFPB Director Richard Cordray said in a statement. "Now that our study has been completed, we will consider what next steps are appropriate."
Despite the prevalence of arbitration agreements, fewer than 7 percent of consumers realized that such clauses restrict their rights for recourse, according to the CFPB. "When you hit the button that says, I accept the terms, no one reads that," said Rheingold. Most consumers are more concerned about terms like APR and fees, if they read any of the fine print. Still, it's worth reviewing the details. The CFPB study found that more than a quarter of credit card arbitration agreements let individuals opt out.
There's not much you can do to avoid arbitration agreements altogether, said Seligman—that's why many advocates refer to the problem as "forced arbitration." "The vast majority of contracts have these," he said. "Even if you are aware, there are limited opportunities to shop around."