"Washington Post"s Carolyn Mayer wrote the other day about consumer actions gainst financial institutions, and the attempts to prevent them.
Alan Kaplinsky is one proud man. For years, the Philadelphia lawyer has been advising financial institutions, leading their defense in class-action lawsuits brought by consumers -- and, more importantly, designing ways to limit such suits by writing arbitration clauses into many credit-card agreements and banking contracts.
These clauses, often found in the fine print, have met with mixed results in court, with some judges upholding them, some not. Now, Kaplinsky has found a way to one-up the courts, at least in Utah, where a new law specifically allows these clauses in all consumer loan contracts, including credit-card agreements.
Over the past decade, the arbitration clause has become increasingly common in almost every consumer contract, whether it's for a credit card, telephone service, pesticide treatment or home construction. The clause is also in many employee contracts. The clause says all disputes must be automatically resolved through binding arbitration, in which a designated third-party (often selected by the company) will review the dispute and resolve it. There will be no judge, no jury, no mediation for a compromise, no right of appeal and usually no public record. These clauses also say the consumer agrees to not be part of any class-action lawsuit.
Businesses say arbitration is a faster and far more efficient way to resolve disputes than court suits. But consumer advocates say arbitration is often stacked against the individual, in favor of the large firm that is automatically protected from large jury verdicts by the ban on class-action lawsuits.
