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By Robert Weissman

The big banks want an effective license to steal. And they are counting on you to give it to them.

You would never knowingly agree to any such thing, right?

But did you ever wonder what’s in the fine-print terms of the contracts that we agree to when applying for a new credit card, opening a new checking account or applying for an automobile loan?

Pretty much no one reads the fine-print terms in those contracts. That’s entirely rational. The contract language is almost impossible to decipher; and, even if you do, you can’t very well negotiate.

But that doesn’t mean the language doesn’t have consequences. Buried in the service terms of all kinds of financial products – as well as everything from cell phones to cable provision, software downloads to rental cars — are clauses that bar individuals from suing companies that wrong them.

These provisions require individuals to seek redress for wrongdoing not in courts of law – with the right to have their case heard by a jury, guarantees of due process, and the ability to engage in robust discovery – but in company-selected arbitration schemes.

Perhaps the worst elements of these contracts are prohibitions on class actions – preventing consumers from banding together over shared wrongs. For low-dollar grievances, this effectively means there is no remedy available.

No remedy equals no deterrent (except for regulatory enforcement). For enterprises with no sense of shame, no deterrent equals an effective license to steal.

In other words, if you get cheated, there’s pretty much nothing you can do.

But we can fix the problem itself. The banks do care about their reputations, so join the campaign to tell the biggest banks using forced arbitration clauses — JPMorgan Chase, Citigroup, Wells Fargo, US Bancorp and PNC Financial – to stop.
Would the big banks really trick consumers into agreeing to such unfair contracts? C’mon – of course they would.

And they do.

Preliminary results from a Consumer Financial Protection Bureau (CFPB) study show how widespread are forced arbitration terms in consumer financial contracts:

• Around 80 million credit card holders were subject to arbitration clauses as of the end of 2012.
• Tens of millions of households are subject to arbitration on one or more checking accounts.
• 81 percent of the prepaid cards studied have arbitration clauses.

Moreover, the CFPB found, these provisions foreclose any effective remedy for consumers. Consumers file about 300 arbitration cases related to financial disputes a year, almost none for disputes of less than $1,000.

Do the banks really cheat and defraud their own customers? Heck, we know from the fallout of the Wall Street crash that they mislead and deceive even the biggest, most sophisticated and powerful customers (though you do get to be called a “client” or an “investor” when you’re more powerful).

The same big banks will surely take advantage of everyday customers if they get a chance – that’s why they have invented and hidden new fees and charges, used “robosigners” to stipulate falsely that they have carefully reviewed foreclosure documents, and even imposed charges for services not rendered.

If you’re a victim of this kind of chicanery, you may well be out of luck, thanks to forced arbitration clauses. Join together with others to sue and demand compensation, and you may well find your case kicked to kangaroo court arbitration systems, where you must arbitrate your own case individually and in secret. Not exactly practical if you and thousands of your fellow customers each have been hit with an unjust $35 fee.

This is happening all the time, as cases are routinely thrown out of court and into the arbitration system – or simply not filed in the first place, because it’s not economically feasible to do so. . Example: New York consumers alleged that banks, credit card companies, and debt collectors – including Citigroup, Bank of America and JP Morgan Chase — obtained thousands of judgments against debtors through false affidavits, misleading evidence, and other improper litigation tactics. Thanks to an arbitration clause, the courthouse doors were slammed shut. A U.S. district court told the aggrieved consumers that they would have to arbitrate their claims, on an individual basis.

Ultimately to solve this problem, these provisions must be prohibited. The CFPB has authority to issue such a rule for consumer financial products and services; and hopefully will do so as soon as possible.

In the meantime, however, no company should have a license to steal. Join the campaign to tell the big banks to end the use of forced arbitration clauses.

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Co-authored with Craig Holman

In addition to blowing up the world economy occasionally, Wall Street sometimes sets local fires as well. Consider Jefferson County, Alabama. Here, JP Morgan arranged finance deals to fix its sewer system that proved so expensive to the county that it declared bankruptcy. Bribery of public officials played a role, resulting in the conviction of 21 individuals. Another example is Detroit, where onorous deals with Wall Street are part of its bankruptcy story. The Detroit mayor was convicted of a major scheme of bribery and kickbacks leading up to these dire straits. The common factor in these tales is corruption and subsequent financial hardship. Private firms hoping to profit from municipal deals pay public officials — through bribes or campaign contributions — to choose their firm even when the firm’s profits come at unnecessary and even crippling taxpayer expense.

In good news, the Municipal Securities Rulemaking Board (MSRB) is writing a rule that strengthens its anti-corruption policies. Already, under Rule G-37, Wall Street firms that sell municipal securities generally can’t make contributions to elected officials who have the power to select specific municipal securities dealers. These are the bonds that fund sewers, schools and streets, and must be repaid by taxpayers. The new rule will apply these same contribution restrictions to muncipal securities advisors. These are the consultants who advise a municipal government on which dealers to use, or how to structure finance.

The new rule isn’t perfect. One loophole is that if a firm has two divisions, one providing municipal securities sales, and one providing municipal funding advice, each can make political contributions to the portion of the government that doesn’t oversee its work. The advisors could contribute to a public official who only has control over the selection of the municipal securities dealing. And the advisor department could only make contributions to an official with power over selecting the municipal dealer. This is a problem.

Another issue is that the small municipal securities business might be part of a larger company. And that larger company can make political contributions to any of the officials. This is also a problem. Case in point, a filing by JP Morgan Securities on the MSRB website shows that the firm peformed underwriting services for the Delaware River Authority in 2013. In answer to the question about whether it made political contributions to any municipal finance official related to this service, JP Morgan Services reports “none.” At the same time, the JP Morgan PAC filing at the Federal Election Commission (FEC) shows a contribution to State Treasurer Chipman Flowers in 2013. Further research shows that JP Morgan officials helped Flowers with his campaign.

Why do the rules permit this? Because the MSRB provides that if contributions aren’t “controlled” by the municipal securities division of JP Morgan, that doesn’t pose a quid pro quo danger. Presumably, the JP Morgan PAC feels justified in making the contributions because the firm determines that the PAC contributions are not “controlled” by its securities affiliate, JP Morgan Securities. But that’s a problem for two reasons. First, its not obvious who makes the decisions at the JP Morgan PAC. The Federal Elections Commission, which regulates PACs, doesn’t require any information about who makes decisions. Second, even if the folks at JP Morgan Securities don’t communicate with the parent company PAC, they wouldn’t need to. The PAC folks know their firm provides prodigeous municipal finance services, and making contributions could help win business.

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Statement of Robert Weissman, President of Public Citizen

Note: Public Citizen late Monday filed a motion to dismiss a defamation lawsuit brought against the organization in August by Murray Energy Corporation and its CEO Robert Murray. The company and CEO sued after Public Citizen ran a short radio advertisement criticizing the company for filing lawsuits to block regulations aimed at protecting public health and addressing climate change. In its motion to dismiss, Public Citizen explains that the lawsuit’s aim is to punish and silence critics. The statements of Public Citizen over which Murray Energy sued are either statements of fact or opinion, both of which are protected under the First Amendment. Further, none of the statements in the ad is about Mr. Murray, so his defamation claim is baseless. The motion is available here (PDF). Public Citizen is represented pro bono in the case by Robert Balin, Alison Schary and Joanna Summerscales of the law firm Davis Wright Tremaine LLP, and Fred Gittes and Jeffrey Vardaro of The Gittes Law Group.

Murray Energy is wrong on the law and wrong in the belief that it can silence consumer groups, reporters and other advocates for climate change solutions.

The groundless lawsuit by Murray Energy is a blatant attempt to silence opposing views – its fourth such lawsuit since July 2012.

The Public Citizen ad made accurate statements and statements of our opinion, based on publicly available sources. As the ad states, Murray Energy has sued to block a rule intended to save lives by limiting the amount of coal dust to which coal miners are exposed. And Murray Energy has sued to block a proposed rule to limit carbon emissions from power plants – a rule intended to reduce the impact of climate change on human health and to prevent premature deaths attributable to carbon emissions.

Murray Energy’s lawsuit against Public Citizen is a desperate act by a member of an industry engaged in a losing battle against the tide of history. For decades, Dirty Energy interests have engaged in a public relations campaign to block action on climate change. As a result, we stand on the brink of climate catastrophe – a cataclysm that threatens tens of millions of lives.

The days when those bullying tactics can succeed are over. The growing public insistence on climate solutions is not going away; neither, unfortunately, is the reality of worsening climate change. As the rule proposed last spring by the U.S. Environmental Protection Agency evidences, policy makers are, belatedly, starting to act. Murray Energy can’t stop that.

Nonetheless, humanity is now in a race against time to take sufficiently bold and comprehensive action to avert catastrophic climate change. If Murray Energy and other companies succeed in slowing action further, we may well fall over the precipice. The consequences would be too terrible to contemplate.

That’s why there is only one reasonable response to a lawsuit intended to scare critics into silence: Defeat the lawsuit in court and use the lawsuit to educate, motivate and activate the American public.

So, our message to Murray Energy: Your lawsuit is only going to help build support for the very solutions to climate change you are trying so hard to prevent.

Read the motion (PDF) to dismiss the lawsuit.

Read Public Citizen’s response to Robert Murray’s statements about the EPA rule.

Read background information about Murray Energy.

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Statement of Robert Weissman, President, Public Citizen

Attorney General Eric Holder’s record was badly blemished by his nearly overwhelming failure to hold corporate criminals accountable.

Holder came into office in the immediate aftermath of a devastating financial crisis caused by an epidemic of corporate crime and wrongdoing. Five years later, he has failed utterly to hold the perpetrators of the crisis accountable. “Too big to jail” became de facto policy, as the U.S. Department of Justice declined to prosecute or even seriously investigate the Wall Street banks or their CEOs who crashed our economy and devastated communities across the country.

Indeed, even when Holder’s Department of Justice uncovered evidence of large financial institutions such as HSBC engaging in money laundering on behalf of narcotraffickers and countries the United States considers terrorists, it failed to criminally prosecute the corporations – let alone the responsible executives. Only under public pressure did the department change its stance and begin exacting criminal pleas, as in the case of BNP Paribas.

Of course, there have been important exceptions to the corporate crime-coddling at the Department of Justice, notably in the case of BP, where Holder’s department deserves plaudits for its effort to impose meaningful sanctions on the company whose recklessness led to the death of 11 workers and an environmental disaster.

As President Obama considers candidates to replace Eric Holder, he should apply this litmus test: Will the new attorney general hold accountable the institutions and individuals on Wall Street who devastated Main Street? Will the new attorney general abandon the “too big to jail” prosecution policy and move toward a regime of transparency and real penalties for criminal mega-banks?

Statement of David Arkush, Managing Director of Public Citizen’s Climate Program

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Today, the U.S. House Committee on Science, Space, and Technology holds a hearing to criticize the U.S. Environmental Protection Agency’s (EPA) plan to curb climate-disrupting carbon pollution from power plants. The hearing will be a farce, as Chairman Lamar Smith (R-Texas) is on record denying the science of climate change, and in this Congress alone, House Republicans have voted 217 times against clean air, the environment, climate change policy and clean energy. Despite mounting evidence that climate change is harming our natural environment in disastrous ways, as well as positive news that we can respond much more cheaply than expected, their story remains the same: Deny there is a problem, and deny there are solutions.

The EPA’s proposal to curb carbon pollution is good policy on economic and consumer grounds alone. The EPA projects that its plan will boost the economy by $26 billion to $84 billion per year and lower consumers’ electric bills 9 percent by 2030. These benefits stem not just from slowing climate change, but from curbing air pollution from the dirtiest power plants, promoting energy from renewable sources and using energy more efficiently. House Republicans who deny the science of climate change should still support cleaning up the air to make Americans healthier. They should still support saving American consumers money on their utility bills. And they should support making the U.S. a leader on cleaner and cheaper energy sources rather than clinging to dirty, unhealthy and expensive energy from the past.

Contact: Angela Bradbery (202) 588-7741
Karilyn Gower (202) 588-7779

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