Yahoo Finance Washington Has Made It Harder for You to Sue Your Credit Card Company. What Now?
On Nov. 1, President Donald Trump signed a congressional resolution that can make it virtually impossible for customers to file class-action lawsuits against financial institutions, such as your neighborhood bank or credit card issuer. The signing was done without fanfare; that is, in private, in the White House, without the media present.
Chances are, most consumers will shrug, and why not? Most people get through life without suing a financial institution. Filing a lawsuit against your bank isn't exactly a rite of passage that most people go through, like buying a house or a car or getting married or having kids or adopting a pet or retiring.
Still, some people might want to sue their bank or credit card issuer or some other financial institution, and arguably, consumers have had more reasons than usual to consider it recently. Maybe you're worried that you're a victim of identity theft and peeved over Equifax being unable to prevent hackers from breaching personal information of 145 million customers. Or maybe you were a customer at Wells Fargo who had a fake account made; as you may recall, the bank has admitted to opening 3.5 million fake accounts for very real customers and charged them very real late fees, which may have hurt their very real credit scores.
But, again, a new resolution now makes it harder for consumers to sue financial institutions for bad behavior. That somewhat begs the question: What does this mean going forward?
[See: What to Do If You've Fallen (Way) Behind on Your Credit Card Payments.]
First: How this came about. This July, the Consumer Financial Protection Bureau put in place a final rule that would have, effective in 2019, banned financial institutions from putting mandatory arbitration clauses in their contracts that can prevent customers from joining class-action lawsuits and instead force them to resolve a disagreement through private mediation rather than a public courthouse.
The new directive from the Trump administration nullifies that rule and thus permits banks, credit card issuers and other financial companies to continue allowing language in contracts that prevents consumers from forming class-action lawsuits.
This is worth considering given that on Nov. 2, the day after this rule was nullified by the Trump administration, Bank of America settled a lawsuit that accused the bank of collecting fees from customers who allowed their checking accounts to stay overdrawn for several days. Bank of America agreed to pay $66.6 million to nearly 6 million Bank of America customers who paid an extended overdraft fee since February 2014 -- and will stop charging extended overdraft fees for the next five years. Arguably, there's a need for class-action lawsuits against financial institutions.
[See: 25 Ways to Fix Your Finances Fast.]
You will still be able to sue. But you won't do it. Individuals can instead sue banks on their own, but that virtually never happens. That's because it can be prohibitively expensive to sue an institution with extremely deep pockets. Which is why class-action lawsuits have historically been a helpful lifeline to the beleaguered consumer.
"Consumers may approach an attorney, or an attorney with one or more clients interested may try via advertising or word of mouth to identify others potentially in the same class of persons with injury. There also are quite a number of firms that specialize in class actions," says Sarah Jane Hughes, a professor at Indiana University's Maurer School of Law in Bloomington, Indiana. Hughes specializes in banking law, among other things.
And the reason class-action lawsuits work for consumers is because their upfront legal costs are cheap.
"It will not usually cost anything for a consumer to initiate a class action as class-action firms typically advance fees and only get paid if they win. Attorney fees are then approved by the court and paid for by the defendant," says Joshua Haffner, an attorney principal at Haffner Law in Los Angeles. One of Haffner's practice areas is class-action lawsuits.
As for why you won't likely ever sue a financial institution on your own, "this is the big problem," Haffner says. "Consumers at this point have no practical options. If a bank cheats a million people out of $100 each, they've made $100 million, but the individual consumer who lost $100 has little incentive to do anything about it -- which is why this ruling is so favorable to banks. It's simply not worthwhile for an attorney or individual consumer to pursue litigation over a small amount."
Now, if a financial institution does do you wrong, you may end up in arbitration, just as the contract states. And you may receive compensation. Just don't expect a windfall.
"In most cases," Hughes says, "arbitration clauses limit the consumers' choices."
[See: 9 Financial Tools You Should Be Using.]
Your realistic options. Really, when it comes down to it, you simply need to do what you were doing before but be even more careful about it -- choose your bank, your credit card and any financial institution you're working with very carefully. Same goes with financing a car or taking out any loan. You want to be extremely cautious that you're borrowing money from a trusted, ethical source.
Of course, that advice wouldn't have helped borrowers who had fake accounts taken out at Wells Fargo -- or for those consumers who had their personal information hacked from Equifax.
Now, if you're really concerned about not being able to join a class-action lawsuit, you could join the military.
OK, that may not be very practical, especially for people too old to join, but as David Reiss, a law professor at Brooklyn Law School in Brooklyn, New York, points out, "active military personnel aren't subject to these arbitration provisions in credit card and other types of open-ended credit agreements."
Reiss also says that some lenders don't include these types of arbitration provisions in their credit agreements.
"So the incredibly diligent consumer could try to identify lenders who don't use them," Reiss says. That would mean reading through a lot of financial instutitions' contracts. To this point, Reiss adds: "This isn't for the faint of heart."
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