War is peace, freedom is slavery, and trial lawyer earmarks are “consumer-friendly”

by Ted Frank on January 1, 2008

The Consumerist blog is supposed to be a pro-consumer blog, but it’s amazing how often their political agenda is really a trial-lawyer agenda that hurts consumers. Many of the 2007 bills Carey Greenberg highlights as consumer-friendly are quite the opposite:

  • H.R. 3010: Arbitration Fairness Act of 2007
    What It Does: Raises costs to and reduces choices for consumers and lowers employee wages by forcing consumers and employees to pass up the benefits of mandatory arbitration, whether they wish to or not. More at Overlawyered, and on SSRN.
    Status: Hearings held in both the House and Senate. Likely to be vetoed if passed.

  • H.R. 2881: The Passengers Bill Of Rights
    What It Does: Raises costs to consumers by removing decisions about level of service from the marketplace and putting it in the hands of Congress, enforceable by trial lawyers with punitive damages.
    Status:Approved by the House as part of the FAA Reauthorization Act, 267-151-14. Currently in the Senate.
  • S. 2045: CPSC Reform Act of 2007
    What It Does: Decreases consumer safety, raises prices, and reduces wages by (1) balkanizing enforcement of safety standards, and (2) creating a new cause of action that would allow employees about to be fired for incompetence to keep their jobs by making bogus safety complaints and then suing for alleged retaliation. More at the WSJ ($) in a editorial largely taken from an uncredited interview with me.
    Status: Passed by the Senate Commerce Committee. Companion legislation with fewer problems unanimously approved by the House.
  • H.R. 3915: Mortgage Reform and Anti-Predatory Lending Act of 2007
    What It Does: Raises interest rates and effectively bars refinancings and lending to the poor by (1) creating the right to sue innocent third parties over bad loans, and (2) creating a vague standard for predatory lending that almost anyone in foreclosure over a refinancing can delay the foreclosure by suing over. More by Ted Frank.
    Status: Approved by the House 297-127-14. In the Senate Banking Committee.
  • H.R. 946: Consumer Overdraft Protection Fair Practices Act
    What It Does: Raises costs to and reduces choices for consumers who pay their bills on time by forbidding the opportunity to trade lower interest rates for higher fees.
    Status: Introduced, in the House Financial Services Committee.
  • H.R. 698: Industrial Bank Holding Company Act of 2007
    What It Does: Bans Walmart from opening its own bank, reducing competition over banking services at the same time that Congress and Public Citizen are complaining about high bank fees. See Peter Wallison’s take (and earlier).
    Status: Approved by the House 371-16-45, dead in the Senate Banking Committee. Meanwhile, regulators are blocking Wal-Mart’s move.

{ 8 comments }

1 Fred 01.01.08 at 10:14 am

I agree with most of what you’re saying, especially the anti-Walmart provisions, those folks at Consumerist have Walmart Derangement Syndrome. However when the business gets to choose the arbitrator thereby culling out any who don’t toe the company line and over 96% of mandatory arbitrations are decided in the business’ favor I smell something wrong.
I agree that new laws are too often the default expectation of what needs to be done for a fix and that’s not a good thing but I don’t see the companies changing the setup voluntarily without one, do you?

2 Ted 01.01.08 at 11:10 pm

As discussed on Overlawyered multiple times, the 96% figure is severely misleading. Apples-to-apples, consumers do better in arbitration than in court, for less expense for both consumers and businesses, with considerably less delay.

3 Brooks 01.02.08 at 11:11 am

If both parties wish to receive the “benefits” of arbitration, there is nothing that prevents post-dispute arbitration agreements. Assuming your assertions that arbitration is cheaper and that “apples to apples” consumers do better in arbitration are both correct, then plaintiffs should be lining up to partake in post-dispute arbitrations.

I do wonder why, if arbitration is such a panacea, that arbitration agreements in big business to big business transactions is decreasing.

4 Ted 01.02.08 at 12:03 pm

Brooks, that’s a dishonest argument. A mandatory arbitration clause is a way to make sure that dishonest consumers don’t raise prices for the honest consumers. The vast majority of arbitrations (as well as court-adjudicated business/consumer disputes) involve default or otherwise uncontested judgments against deadbeats who didn’t pay their bills—which is why you hear so much about the supposed 96% or 99% success rate of business in arbitration, when the actual success rate in contested arbitrations is actually better for consumers than in court. I won’t link to it, but a Google search readily finds numerous products available to people teaching how to use the court system to scam creditors out of legitimate collections by raising their expenses; the only people who benefit from court versus arbitration are those who hope to abuse legal procedures to delay the inevitable (or to make collection so painful and expensive that they can finagle a reduction in debt). By using the mandatory arbitration mechanism to reduce the expense of collections, the auto-dealer or bank can provide a less expensive service to the honest consumer who plans to honor their debts. But the benefits of the reduced costs can’t be offered unless the customer pre-commits to arbitrate and demonstrates that they’re not going to abuse the legal system.

5 Mahlon 01.02.08 at 1:15 pm

Ted – I’ve said it before, mandatory arbitration for most consumer cases is NOT good for consumers. The fundamental problem is that many businesses that incorporate arbitration provisions into their form agreements do so as a means to skew the field of play in their favor – and it works. I’ve arbitrated consumer cases (AAA). My client was forced to pay a $1,500 fee to arbitrate their claims, notwithstanding that the AAA’s Consumer Protocol allegedly reduced the fee to $150.00.

I’m not saying arbitration does not and cannot work for consumers in all cases. I am saying that consumers often do not get a fair hearing. I really dislike AAA and the other two national arbitration firms. I would prefer to see state sanctioned organizations. I would also like to have some appellate review.

6 James E Crawford Sr. 01.02.08 at 1:30 pm

obviously this blog substantiates the existence of an unbounded hatred for trial lawyers!

Here’s hoping for your emergency need for one soon!They come in handy when protecting your rights as verses Insurance Company rights!Some stupid members of the public are naive enough to believe that they are in good hands with Allstate!

7 William Nuesslein 01.02.08 at 10:00 pm

For James Crawford:

Transactions in isolation have one party charging as much as he can and the other party paying as little as he can. When one party is a large corporation the power of the participants are so lopsided that trial lawyers are required to level the playing field.

But transactions are not in isolation. Selling parties are severely restricted by competition and it is the consumer who rules. Companies must achieve a viable market share. Many people who would never think of taking their friend’s silverware, have no compunction to game the system when they can – look at the healthy guys who line up for phony asbestos screening.

I’ve insured my automobiles with Allstate for twenty years. (Fortunately I’ve had only one small claim in that time.) If you hear and see advertisements for car insurance, they are mostly about price not claim service. The good hands work. This stupid member of the public believes in markets with modest governmental oversight. Plaintiff lawyers generally cause much more harm to society than good. Eleven million dollars were awarded to a woman who claimed that her feelings were hurt years ago. The bad hands of Plaintiff lawyers caused that abomination.

8 Deoxy 01.03.08 at 10:41 am

Mahlon,

You can SAY it all you want. Provide some evidence (as TF has done repeatedly), and you might get people to listen to you.

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