In 2013, the U.S. Chamber of Commerce (which represents some of the largest corporations in the world), published a memo purporting to be “An Empirical Analysis of Class Actions” (available here). The memo, drafted by attorneys at the corporate defense firm Mayer Brown LLP, determined that class actions do not provide a significant benefit to consumers, based on a review of class actions filed in 2009.
However, when the National Association of Consumer Advocates (NACA) and the American Association for Justice (AAJ) reviewed the same cases in a report released last month, they arrived at a very different conclusion (report available here). The NACA/AAJ report found that class actions remain hugely advantageous to consumers in a wide range of cases. Notable benefits to consumers included:
- Recovery of $25 million for consumers overcharged for propane by Ferrellgas, who allegedly reduced the amount of propane in its tanks without notifying consumers or changing the labels;
- Recovery of $219 million for investors in Bernie Madoff’s Ponzi scheme who lost their retirement savings;
- Relief for thousands of disabled and elderly residents of New York City Housing Authority buildings, who forced the city to repair broken elevators in a timely matter; and
- Award of $27.8 million for property owners who suffered damages due to the 2008 spill of coal ash sludge from a burst dike at a coal plant operated by the Tennessee Valley Authority.
The Consumer Financial Protection Bureau (CFPB), created by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, has been charged with studying the impact of pre-dispute arbitration agreements in the context of consumer financial products and services, and is poised to release a report later in 2015 that is expected to show that forced arbitration clauses impact tens of millions of consumers and deny relief to consumers harmed by illegal or abusive practices in the financial services industry.
The CFPB released its preliminary results in December 2013 (available here), which found that a sampling of just eight consumer class actions settled between 2010-2012 yielded $350 million in payments to more than 13 million consumers. See CFPB Arbitration Study Preliminary Results at 104. The study also found that, despite the fact that arbitration clauses with class action waivers are standard in the financial industry, few consumers choose to arbitrate their claims (the American Arbitration Association, or AAA, which administers the vast majority of alternative dispute resolution proceedings for large companies, reported fewer than 300 cases each year between 2010 to 2012). Id. at 13. In that same time frame, the study found 29 instances where the AAA “declined to administer the arbitration because of the company’s failure to pay required fees or deposits” and refused to administer further disputes concerning those companies, denying the opportunity for relief for even those intrepid consumers who chose to go the arbitration route. Id. at 117. Of the 29 cases, 28 were consumer-filed disputes, and 23 were credit card disputes.
Thus, class actions are not only beneficial to consumers, but often are the only way to achieve justice against powerful corporations. In the words of former U.S. Supreme Court Justice William O. Douglas, “The class action is one of the few legal remedies the small claimant has against those who command the status quo.” Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 186 (1974).
Editor’s Note: the CFPB Arbitration Study was released on March 10, 2015 and is available here.