Pay Attention, Elections Matter.
As the economy plods along attempting to shake off the worst financial crises the nation has faced in 100 years, there have been scapegoats aplenty. But this is most assuredly one you cannot blame on the lawyers. It is one, however, that you can blame on tort reform.
For years consumer lawyers have cried loud and often about subprime loans marketed to those with no ability to pay through deceptive, unfair and outright fraudulent practices. Quite apart from crushing interest rates that only adjust upwards, home purchases have and continue to be loaded with junk fees ranging from $500 e-mail charges to mortgage broker payments amounting to the thousands. Yet, through all the efforts to challenge such predatory practices, consumer attorneys have been met with a sophisticated array of “tort reforms” all aimed at eliminating any right of the consumer to have access to the courts.
Take the banking industry. Exploding credit card interest rates, exorbitant late fees, overlimit and overdraft charges, to name a few, have been unilaterally imposed and literally stuffed into a consumer’s bill without even knowing such changes have occurred. While such terms contradict every principle of consumer protection laws passed in the 70’s, under the guise of “federal preemption” national banks and credit card companies have essentially eliminated the ability of consumers to challenge any of these practices. Instead, only federal regulators, often coming from the very industry that they purport to regulate, such as the banking regulators’ good friends at the Office of Comptroller of the Currency, can actually challenge the propriety of such practices.
Even where consumers are lucky enough to escape preemption, their efforts to meaningfully challenge a bogus fee are further stymied by arbitration clauses, such as those that exist in every cellular telephone and cable service contract. Better still, such clauses even prohibit the consumer’s participation in any class action designed to provide meaningful relief to all users of these basic consumer services.
Were an arbitration clause miraculously absent, and a class action filed, the case will only find a hearing in the federal courts under the so-called Class Action Fairness Act, where the business industry is procedurally given multiple bites at the apple, all designed to impede any resolution, let alone a timely resolution of any dispute.
When the house of cards collapse because no one has been able to effectively challenge a financial system rife with predatory business practices, business has done a pretty good job of making sure it can declare bankruptcy, or obtain a federal bailout, while the consumer cannot.
To those who contend that consumers can simply exercise their right to take their business elsewhere, it should come as no surprise that the “free market” has left the consumer with no choice at all. Like the gas station on every corner, there is no difference in the predatory practices of any industry player.
This failure is the direct result of eliminating through “tort reform” legislation what the free market has always permitted: private attorneys enforcing the law through private lawsuits in open public proceedings apprising all of the repercussions of failing to follow laws designed to protect consumers and those businesses that play by the rules.
The business lobby’s remarkable success at “tort reform” effectively removed the cop off the beat. In doing so, it eviscerated basic consumer protections in the financial markets. The result was predictable.
As consumers we should be outraged. As citizens, we should do something about it. That’s why elections matter. Make your vote count in November.