In case you missed it during the holiday weekend, a set of consumers’ rights were killed off and then rose from the dead, all in the span of about three days. While consumer advocates are declaring victory over the Cheerios fine print incident, there’s a bigger story you are probably missing: You, dear consumer. have already signs hundreds, if not thousands of “contracts” that contain the exact same provisions as ill-fated Cheerios/General Mills terms.
Verizon. Comcast. Match.com. Wells Fargo. Sallie Mae. Sony. Dell. I could could go on and on, but you get the point. (If you want to go on and on, visit Citizen.org’s great rogues gallery of firms that require forced arbitration agreements.) Binding arbitration clauses that restrict lawsuits or ban class action cases are like a virus to consumer rights, infecting contracts one by one across the land.
They are simple to enact. Corporations put a piece of paper in front of you and make you sign it to get their service…or they hide a term under an “OK” button on a website … or in some cases they simply declare it so, without any interaction from consumers. And suddenly, the consumer either cannot sue a company, or cannot join a class action lawsuit, or both.
During the weekend, I shared the Cheerios saga with plenty of family and friends, and the response was universal: “That can’t be true!” “That would never hold up in court!” Au contraire, it has in fact help up in the highest court of the land. But let me pause here for a moment:
I write about outrageous things for a living, and one of the reasons I’ve concluded that outrages continue is that people just simply can’t believe such a thing is happening. I tell them mutual fund fees are stealing one-third (or more!) the money they are saving for retirement in their 401(k) plans, and they don’t believe it (email me! I’ll prove it!). I used to tell them, “Send in your credit card bill one day late, and your interest rate could rise from 10 percent to 30 percent!” For a while no one believed that, either. In some ways, this means that the more outrageous the behavior, the easier it is for corporations to get away with it. Things go on because no one believes them … until consumers have a personal experience with lost retirement funds, or interest rates, or lost rights.
This deeper truth is right there in General Mills apology, issued Saturday evening
“We never imagined this reaction. Similar terms are common in all sorts of consumer contracts,” the firm wrote in its non-apology apology.
We should thank the Cheerios maker for this: binding mandatory arbitration clauses have been infecting consumer contracts for years. Last week’s incident shined a large spotlight on a serious consumer issue that is often easy to miss, hidden as it in in fine print. So now that General Mills has relented, why stop there? Consumers should be equally outraged by Verizon, Comast, Match.com and all the rest. Spend a few moments today reading up on forced arbitration. I’ll repeat myself, but it bears repeating: If arbitration were so great for consumers, companies would make it voluntary, not mandatory. Here are some resources:
- The National Association of Consumer Advocates’ “What is arbitration? page.
- If you want to hear the other side of the story, read this page at The Heritage Foundation.
- License to Steal: A report on the history of arbitration.
I’ll just make two important points:
1) Folks in favor of binding arbitration say it’s not mandatory. If you read that Heritage page, it claims that no one is ever forced to enter a contract. That’s goofy: If you have only a few choices for cable TV, or cell phone service, or banking, and every one of them requires you to sign an arbitration agreement, then arbitration is forced on you.
2) It’s true class action cases are sometimes abused by lawyers, and that system needs reform. But how do consumers fare in arbitration? Data is scant, because arbitration ruling are kept secret (unlike open court proceedings). Public Citizen offers some scant data on outcomes, like this: ” California, National Arbitration Forum arbitrators handled more than 19,000 disputes involving credit card holders. The card holders prevailed only 4 percent of the time. The companies won 94 percent of the time.”
Corporations argue often that arbitration is more efficient that the traditional court system. Sure sounds like it.
Let’s not stop with Cheerios.