For better or worse, Americans tend to take it as an article of faith that if someone does you wrong, you can sue. But banks are quietly adding language to their account terms and services that take away your right to a day in court, and the law is on their side. In lieu of lawsuits, they require mandatory arbitration, which basically means that you can’t sue your bank in court, but instead are forced to have disputes resolved by a designated arbitrator, a kind of professional referee. Banks often combine arbitration clauses with language that also prohibits customers from banding together to file a class-action lawsuit.
Ever since a Supreme Court decision last year upheld mandatory arbitration clauses as legitimate, all kinds of companies have been rushing to add them to their terms and conditions. A recent study by the Pew Charitable Trusts found that about half of the 100 biggest banks and credit unions in the country mandate arbitration. The bigger the bank, the higher the likelihood: 56% of the top 50 banks require it, compared to 30% of the bottom 50 on the group’s list. Three-quarters of banks that mandate arbitration also prohibit their customers from filing class-action lawsuits.
Arbitration isn’t a bad thing per se. The idea is that it’s a quicker and cheaper way to resolve disputes than the court system. But companies that implement these policies often don’t play fair. Many hand-pick the arbitrators and maintain long-term contracts with them — a dynamic that, consumer advocates say, is biased in favor of the banks. Some clauses force customers to pay high fees to file a claim or to travel a long distance to file a claim. And according to University of Nevada Las Vegas professor Jean Sternlight, many companies use arbitration clauses to further limit consumers‘ rights. Some limit the amount of damages you can collect even if you win.
If you think this sounds unfair, you seldom have a choice about the matter. You generally can’t open an account if you don’t sign the arbitration agreement. And once you sign, you must abide by it: In two cases this year where customers tried to bypass arbitration clauses and sue anyway, courts shot them down.
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The only way to guarantee your right to a day in court is to bank with an establishment that doesn’t prohibit it, but finding one can be tricky. According to Pew data, of the 10 biggest banks in the country, JP Morgan Chase, Wells Fargo, Citibank, US Bank, SunTrust, and BB&T all have mandatory arbitration clauses. PNC Bank, TD Bank, and HSBC do not.
(Chase lets customers opt out of the arbitration clause for 60 days after opening their account, and SunTrust provides a 45-day opt-out window. And Bank of America customers in California have to use a dispute-resolution process called “judicial reference.” Pew counts this as equivalent to arbitration, since the customer can’t get a jury trial.)