"If it's so great, why can't I voluntarily choose it when I need it?" says Peter Holland, who runs the Consumer Protection Clinic at the University of Maryland School of Law. "Why do [companies] need to force it, bury it in a contract?"

Continues Holland: "No judge. No jury. No right of appeal. Those are the things you are giving up" in forced arbitration.

Consumer advocates argue that the federal arbitration law, which dates to the 1920s, was never meant to resolve consumer complaints. Arbitration for years was a discreet, quick and cost-effective means to settle disputes between businesses.

In the mid-1990s, the Supreme Court ruled that the arbitration act applied to consumers, too, says Paul Bland, senior attorney with Washington-based Public Justice, a public-interest law firm. Arbitration clauses began popping up in all sorts of consumer contracts.

"In January of 1999, only two credit card companies had them," Bland says. "By the end of 1999, every credit card company had them."

Last year, the Supreme Court further strengthened companies' hand. It upheld arbitration clauses that bar customers from taking part in a class action, even if a state law gives them that right.

Since then, at least 76 potential class action cases were quashed by judges citing the Supreme Court ruling, according to a report released last week by Public Citizen, a Washington-based advocacy group.

"It's worse now," says Christine Hines, consumer and civil justice counsel for Public Citizen. "That decision … opened another can of worms."

Bland says courts aren't even looking at the merits of cases, but are throwing them out as soon as an arbitration clause is spotted.

You can try to do business with companies that don't require arbitration or allow you to opt out of it. But they're not easy to find.

Jack Fitzgerald, an auto dealer with stores and Maryland and other states, says he doesn't have arbitration clauses in his sales contracts, but he can't say the same for the dealership's banking partners.

"The customers should have their day in court," Fitzgerald says. "That's an old American custom."

Credit unions often don't have arbitration clauses. Bank of America says it voluntarily eliminated mandatory arbitration clauses for credit cards and deposit accounts years ago.

JPMorgan Chase dropped mandatory arbitration for credit cards and gives new bank customers up to 60 days to opt out of it on deposit accounts. Comcast gives new customers 30 days to opt out.

Public Citizen's Hines says many consumers don't take advantage of the opt-outs, though.

"If they know about the opt-out and find it within the fine print of the contract, they don't think they will need it," she says. "Most consumers don't think they are going to sue anyone."

Even consumer lawyers can't get around mandated arbitration.

Holland, for instance, says he crosses out arbitration clauses in his consumer contracts. Sometimes it works; other times the company insists on keeping the clause.

But consumers shouldn't have to work so hard to avoid arbitration. They should have a choice whether they want to arbitrate a complaint or get their day in court. Let's hope the CFPB gives them that.


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