Tracking the latest developments in the fight for a fair America
A recent article by Orange County Register Watchdog Columnist Teri Sforza explains some of the harm done to consumers and employees from forced arbitration, drawing in part on AFJ’s short documentary Lost in the Fine Print. The film details the story of Alan Carlson, the owner of Italian Colors restaurant in Oakland, California, who tried to challenge American Express’s high “swipe fees” in court. A forced arbitration clause buried in the fine print of American Express’s terms of service kept Alan from being able to vindicate his rights.
Marina Hoffmann Norville, a vice president at American Express, told the paper her company recently made changes to its forced arbitration policy to keep customers satisfied.
But how significant are the changes for consumers?
For the past decade, companies have been free to make claims about their arbitration policies with little factual support or scrutiny. There was no way to know what the typical arbitration process looked like, if customers were able to take advantage of seemingly consumer-friendly clauses, and whether consumers were actually winning cases in arbitration. But all that changed earlier this month, when the Consumer Financial Protection Bureau released its comprehensive, in-depth study of forced arbitration. Now, consumers are able to fact-check company claims.
So we decided to fact-check American Express. Is its arbitration clause as consumer-friendly as the company implies?
The answer is a resounding no.
American Express touts its new opt-out policy, which gives customers 45 days from when they first use a new card to opt out of the agreement’s arbitration provision. While “agreeing” to forced arbitration is as easy as swiping your Amex card, opting out is a bit more onerous. To even find the provision, customers have to get to one of the last pages of the cardmember agreement—just past the “governing law” and “assigning the agreement” sections. Customers then have to print, sign, and snail mail a rejection notice to a P.O. box in El Paso.
It’s unsurprising that consumers rarely take advantage of these opt-out provisions. According to the CFPB’s study, though over a quarter of credit card contracts include a similar provision, not a single consumer of the 570 interviewed had opted out. Only three consumers reported being given an opportunity to do so—but those three were mistaken. None of them actually had a contract which would have allowed them to opt out.
We did find one place where American Express is an industry leader: conducting forced arbitration in secret.
Only two credit card issuers of the 66 examined by the CFPB expressly includes a confidentiality or non-disclosure clause in its forced arbitration provision. American Express, which mandates that “[t]he arbitration will be confidential,” is presumably one of them. These clauses prevent wrongdoing from being exposed and remedied on a large scale. Consumer laws, which protect us all from fraud and discrimination, vindicate critically important societal goals. They should be enforced in the full sunlight of the courtroom—not in a private tribunal that American Express closes off to the public.
The rest of Amex’s arbitration clause is similarly unfriendly to consumers. The company provides a carve-out from forced arbitration for small claims court, as do 99 percent of credit card contracts. But like the opt-out clauses, these provisions rarely help consumers; they are more likely to be used by companies trying to collect debt. In 2012, looking at selected states and large cities, the CFPB was only able to identify—at most—39 small claims cases brought against American Express by a consumer.
Like 40.9 percent of credit card forced arbitration clauses, American Express’s includes a right to appeal an arbitrator’s decision—but only to three more arbitrators. The company is also unusual in that it “will consider in good faith making a temporary advance of your share of any arbitration fees.” Over 40 percent of credit card contracts require the issuer to do so.
If American Express truly wants a consumer-friendly arbitration policy, it should give its customers the right to choose whether or not they arbitrate—not in the form of an arcane opt-out policy, but after a dispute arises. If arbitration is as fair, quick, and affordable as proponents claim, it’s hard to imagine why customers would turn it down.
Spotify specifies that when listeners click “sign up,” they agree to its terms and conditions – found on a separate page of the Spotify website. Buried in the fine print of those “terms and conditions of use” is a forced arbitration clause. As the ad says, that means if you have a dispute with Spotify, you have to take your case to a decision-maker at a firm they choose – not a judge or jury. In addition, if Spotify violates the rights of thousands, even millions of its listeners, they can’t band together to seek justice.
On Wednesday, March 25, the Supreme Court will hear arguments in Michigan et al. v. EPA et al., in which a handful of states, together with the National Mining Association and some industry representatives, challenge the Mercury and Air Toxics Standards issued by the Environmental Protection Agency.
The standards limit emissions of hazardous air pollutants—air toxics, such as mercury, arsenic and acid gases—from coal- and oil-fired power plants under section 7412 of the Clean Air Act. Most industrial sources of such toxics are automatically subject to regulation under section 7412, and have already reduced their emissions to comply with the law. But electric utilities secured a special exemption from Congress: before issuing those regulations, EPA was required to prepare a study of the “hazards to public health reasonably anticipated to result” from power plants’ toxic emissions after imposition of the Clean Air Act’s other requirements, and determine whether it was “appropriate and necessary” to regulate those emissions.
EPA completed the required study in 1998, and twice found it “appropriate and necessary” to regulate coal- and oil-fired power plants—once in 2000, and again in 2012 (in between, George W. Bush’s EPA unsuccessfully tried to undo the first of those findings).
On both occasions, EPA found overwhelming evidence that power plants endangered public health, and that the Act’s other programs would not mitigate that danger. Coal-fired plants’ mercury emissions, in particular, have effectively poisoned many of the nation’s bodies of water; all fifty states have issued mercury-related health advisories against consuming fish caught in their lakes and streams. Mercury is a potent neurotoxin, especially dangerous to children and pregnant women. Prenatal exposure to mercury results in impaired attention, loss of fine-motor function, as well as reduced language skills and verbal memory, substantially limiting children’s ability to learn and achieve. These harms are widespread; each year, several hundred thousand children are born in the United States who have been exposed to unsafe mercury levels in utero. EPA found that other toxics emitted by power plants—poisonous metals such as arsenic and chromium, and acid gases such as hydrochloric and hydrofluoric acid—also create serious threats to surrounding communities. And it found that power plants—coal-fired plants especially—are the largest source of mercury, arsenic, and other air toxics in the United States.
Because power plants’ air toxics pose a hazard to public health (as well as related harms to the environment), and because other provisions of the Clean Air Act would not address that hazard, EPA found that it was “appropriate and necessary” to regulate power plants.
The petitioners contend that the agency was also required to consider the costs of regulation to industry. According to the petitioners, EPA produced a regulation that costs industry $9.6 billion, to achieve $4-6 million in benefits. A clear example of the job-killing EPA regulations that the coal industry and its allies have been warning us about, no?
Well, actually, no.
First, regarding those “$4-6 million” in benefits. This rule’s public health benefits are estimated to be worth as much as $90 billion. EPA estimated that, when they go into effect, the standards will prevent 11,000 premature deaths, as well as over 5,000 emergency room and hospital visits, and 130,000 cases of aggravated asthma each year. According to the economic review prepared for the White House’s Office of Information and Regulatory Affairs, the standards will produce health benefits worth more than $33-90 billion to the public, dwarfing their estimated cost of $9.6 billion to industry.
How do the petitioners shrink $33-90 billion to $4-6 million? First, they replace the actual consequences of the rule with a narrow slice of what they term legally “relevant” benefits: just those that EPA specifically attributed to reductions in mercury and other air toxics. But in order to reduce their emissions of air toxics, power plants must also reduce emissions of other pollutants. Toxic metals, for example, are part of the soot emerging from power plants’ smokestacks; to control those metals, the plants must reduce their soot pollution. Such reductions will create significant improvements in public health that extend beyond the neurological and cancer-related benefits of reducing air toxics. While the petitioners may deem them legally irrelevant, those benefits are real, and massively consequential; no sensible assessment of the standards’ results could ignore them. To adopt petitioners’ claim that EPA has produced an unreasonable regulation, the Court will have to adopt a decidedly unreasonable view of the rule’s costs and benefits.
And even as to the rule’s benefits specific to mercury and air toxics, no one, aside from the petitioners, suggests that they are worth a mere $4-6 million. That figure reflects only those mercury- and toxic-specific benefits of the rule that EPA could quantify and reduce to a dollar figure. But EPA made very clear that most of air toxics’ harms—such as the loss of unborn children’s mental and physical abilities—could not be quantified or monetized (nor, one imagines, might the public be comfortable with an agency purporting to affix a dollar figure to the value of their child’s intelligence).
Petitioners’ claim of a “cost blind” regulatory process tells a similarly incomplete story; just because EPA didn’t consider costs when making its threshold “necessary and appropriate” finding doesn’t mean the Agency ignored costs. After EPA decided that it was “necessary and appropriate” to regulate coal- and oil-fired power plants, EPA went on to decide how stringent those regulations should be, under the standard-setting criteria contained in the rest of section 7412. Those criteria are not cost-blind; they contain explicit instructions as to how and when EPA is to consider costs.
Section 7412 also limits EPA’s ability to expose the public to toxic pollution in order to spare industry’s pocketbook. EPA cannot, for example, set standards that demand less than what the cleanest currently operating plants are already achieving. Those limits reflect Congress’ judgment as to the grave public health harms posed by air toxics—such as cancer, and neurological damage to infants—and the regulatory burden appropriate to reduce those harms. The question, in other words, isn’t whether EPA was free to ignore costs; the agency addressed costs in the same manner as it has for every other industrial source of air toxics. Petitioners want EPA to ignore the conditions Congress placed on its consideration of costs, in favor of its own opinions as to what might be “appropriate”—something the agency properly refused to do.
Finally, a practical note. The standards become effective on April 16, 2015. Though some plants have obtained compliance extensions, most have adopted the controls necessary to meet the standards. According to the Energy Information Administration, by the end of 2012, 64 percent of the coal-fired power plants in the United States had already installed control equipment sufficient to comply with the standards. The results have hardly been catastrophic; in fact, the electric utilities sector has been growing as the compliance deadline gets closer (it has added over 5,000 jobs since October 2014). Whatever the Court decides, reality has passed its verdict: Big Coal’s claims of economically disastrous, job-killing EPA regulations have no basis in fact.
Sanjay Narayan is a managing attorney with the Sierra Club’s Environmental Law Program. He is one of the lawyers representing the respondents American Academy of Pediatrics, et al. in the case.
AFJ Justice Programs Director Michelle Schwartz testifies today at a public hearing in Newark, N.J. on forced arbitration. The hearing was called by the Consumer Financial Protection Bureau. CFPB released a study of forced arbitration today – and CFPB has the power to prohibit the practice. This is Schwartz’s testimony:
My name is Michelle Schwartz, and I am Director of Justice Programs at Alliance for Justice. I was born and raised in nearby Livingston, and I was Senator Lautenberg’s Deputy Chief of Staff, so I’m very happy to be with you here in Newark.
On behalf of Alliance for Justice’s more than 100 member organizations working for a fair and just society, thank you for conducting this comprehensive study of forced arbitration. The study confirms what we have long suspected—forced arbitration allows companies to evade accountability when they wrong consumers.
Alliance for Justice recently released a short documentary, Lost in the Fine Print, that demonstrates the harm forced arbitration causes for everyday Americans.
It tells the story of Debbie Brenner, who was cheated by a for-profit college that took her student loan money, but failed to live up to its promises of quality instruction and job placement. When Debbie and her fellow students tried to sue, they were forced into arbitration because of a clause in their enrollment form they never read and certainly didn’t understand. In fact, a recruiter for the college admitted even he didn’t understand what the clause meant. But that didn’t stop an arbitrator from deciding the case against the students—and ordering them to pay hundreds of thousands of dollars for the school’s legal fees.
Lost in the Fine Print also tells the story of Nicole Mitchell of West New York. Although Nicole’s case dealt with employment discrimination, her experience was instructive for all who face forced arbitration. The arbitration was conducted in secret, Nicole never even got to meet the arbitrator who decided her fate, and she can never appeal.
Debbie and Nicole were unusual in that they ever even went to an arbitrator. As your study shows, the vast majority of wronged consumers never make it that far. Often, that’s because the amount they could possibly recover for the real harm they’ve suffered pales in comparison to the cost of bringing an individual arbitration.
That was true for Alan Carlson, whose story we also tell in our film. Yet the Supreme Court upheld American Express’s forced arbitration clause when Alan tried to sue over unfair credit card fees. The Court did so even while acknowledging that nobody in their right mind would actually bring an individual arbitration over the loss Alan suffered—essentially immunizing companies like American Express.
I’ve shown our documentary everywhere from national conferences to law school classrooms to tenant association meetings. Every time, I get two reactions: First, people can’t believe they didn’t know about forced arbitration. And second, they want to do something about it.
This study will go a long way to educating more people about this pernicious practice. But even more importantly, you have the power and obligation to actually do something about it by prohibiting forced arbitration for all consumer financial products. On behalf of all our members, we urge you to do just that without delay.
On Tuesday The Legal Intelligencer (subscription required) noted how Third Circuit nominee Judge L. Felipe Restrepo, currently a district court judge in the Eastern District of Pennsylvania, has been waiting for a confirmation hearing since his nomination in November 2014.
Judge Restrepo was recommended for nomination by his two senators, Democrat Bob Casey and Republican Pat Toomey. The same was true back in 2012, when he was nominated to the district court and eventually confirmed by the full Senate with a voice vote.
This delay exacerbates an already pressing need for more judges in Pennsylvania. There are currently five federal judicial vacancies in Pennsylvania, including one on the Third Circuit Court of Appeals, one in the Eastern District, and three in the Western District. Each of the district court vacancies has been empty for more than a year and does not even have a nominee. The Third Circuit vacancy, to which Restrepo was nominated, has been listed as a “judicial emergency” by the Administrative Office of the U.S. Courts—meaning the court does not have enough judges to handle its caseload. Adding to the problem, another Third Circuit seat in Pennsylvania is expected to open in July.
And yet, a spokesperson for Senate Judiciary Committee Chairman Chuck Grassley, R-IA, told The Intelligencer that she “couldn’t even estimate” a timeframe for Restrepo’s confirmation hearing.
Judge Restrepo is an exceptional nominee who should be processed through committee and confirmed without further delay. Among his many impressive qualifications, Judge Restrepo would be the first Third Circuit judge with experience working as a public defender, adding much needed professional diversity to the federal bench.
- AFJ’s full report on Judge Restrepo’s background can be found here