James J. Davis

GUEST COMMENTARY: Why would credit unions try to prevent Alaskans’ day in court

Recently, this paper ran a curious op-ed by Dan McCue, a senior vice president at Alaska USA Federal Credit Union. He argued that credit unions would be hurt if Congress does not block a new rule from the Consumer Financial Protection Bureau, or CFPB, that restores Alaskans’ day in court. The rule prevents credit reporting agencies like Equifax, big banks like Wells Fargo, and other financial corporations from using fine print clauses to take away people’s choice of banding together in court if a company violates the law. The rule allows people to choose arbitration if they want. But companies can’t rig the system by removing the choice of court and forcing people alone, one-by-one, into secretive proceedings before a private arbitrator approved and often paid by the company. Mr. McCue’s position is surprising because Alaska USA Federal Credit Union — like virtually all credit unions in Alaska and nationwide — does not use forced arbitration. Indeed, a survey by the National Consumer Law Center could not find a single arbitration clause in any credit card or deposit account agreement offered by any Alaska credit union. Similarly, a comprehensive study by the CFPB found that 97 percent of credit unions did not use arbitration clauses in their credit card contracts and only 8 percent of banks and credit unions — primarily large banks — did so for checking account agreements. Credit unions treat their customers fairly and don’t need to take away their day in court. Credit unions also have an interest in their customers’ financial health, and will benefit if people have stronger tools to fight financial predators that drain assets, like the debt buyers who ignore Alaska’s laws and tack on illegal fees that make it harder to climb out of debt. Also puzzling: Mr. McCue’s argument about the harm to credit unions begins by discussing a Ticketmaster class action – a case that not only didn’t involve credit unions, it didn’t even involve a financial product that would be covered by the CFPB arbitration rule! Mr. McCue also repeated a false claim from Wall Street lobbyists who argue that forced arbitration is good for consumers because people recover $5,389 on average in arbitration. That number is based on only 16 people per year in the entire country who win in arbitration; most people lose. The average person in arbitration actually has to pay the bank or company $7,725. Moreover, compared to the 16 people per year who win cash in arbitration, 32,000,000 people are eligible for relief in class actions. This striking echo of Wall Street arguments shows who is really behind the push to take away our day in court: Wall Street banks and large corporations like Equifax. After Equifax revealed the massive data breach impacting 145.5 million Americans – including 262,120 in Alaska, a third of the population — Equifax initially buried a forced arbitration clause and class action in the website it set up to help people, blocking court access for any dispute “relating in any way to Your relationship with Equifax.” Wells Fargo has repeatedly used forced arbitration to block class actions over the 3.5 million fake accounts it created (5,970 in Alaska) and to block claims by Alaskans and others over overdraft fees that a judge found were “unfair and fraudulent.” The final irony? Credit unions have filed their own class action against Equifax for the damage caused to them by the data breach. Credit unions, like individual consumers, are small players that need to join forces to fight wealthy companies. Outside of lobbyist circles, there is wide bipartisan support for the Consumer Financial Protection Bureau’s rule to restore our day in court when corporations break the law. More than two-thirds of Alaskans polled support the rule, including a majority of Republicans and respondents who identified as “very conservative.” The Military Coalition, and military voices in Alaska, also support the CFPB rule. Sen. Dan Sullivan has endorsed Wall Street’s call to block the rule. But Sen. Lisa Murkowski has a long history of defending military vets against forced arbitration, and we hope she will reject calls to strip other Alaskans of their right to access the courts when needed. James J. Davis, Jr. lives in Anchorage and is a founding partner of Northern Justice Project, where he represents low-income Alaskans and Alaska’s tribes.
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