There’s an unfortunate phrase that we’re hearing lately when certain kinds of ugly things happen: “Trump wins.” Trump critic Jeff Flake announces that he will not run for reelection to his Senate seat because the political climate has become too toxic, and the press declares that “Trump wins.” The NFL commissioner caves and declares that players must henceforth stand for the national anthem, and the verdict is, “Trump wins.” In recent days, as the GOP-led Senate handed a gift to Wall Street by stripping away a key protection for financial consumers, the media noted that big banks were starting to reap the benefits promised by Trump’s one-percenter presidency and the conclusion was clear once again: “Trump wins.”
Of course, many of us have noticed that when “Trump wins,” it rarely means that America wins. The Senate vote to kill the Consumer Financial Protection Bureau rule happened in the dead of night and with little notice. It overturned the right of consumers to band together to sue big banks and financial firms when those institutions have harmed their customers: harm exemplified recently by the outrageous actions of Wells Fargo, which for years went about setting up millions of unauthorized accounts in real customers’ names. Instead, thanks to the Senate, the Wells Fargo victims along with any other victims of malfeasance by financial institutions can be forced into arbitration: denied their right to a day in court, and required instead to submit to a private process before an arbitrator who more than likely was chosen by the bank and has its interests at heart.
“I was flabbergasted,” Jamie McGonnigal told us the day after the Senate vote. Jamie is currently the lead plaintiff in a class action lawsuit against Equifax for its massive data breach, and he is well acquainted with the uneven playing field that exists for everyday consumers versus big corporations. “It’s so very disappointing to see once again that Republicans are trying to protect the one percent as opposed to Main Street.”
Jamie is living proof that the right to join a class action is critical when you’re going up against a corporate Goliath like Equifax. After the data breach, Jamie entered the nightmare world of identity theft, playing Whack-a-Mole against credit accounts that crooks were opening in his name. Jamie was only one of millions whose personal information was put at risk. As for going after Equifax, he notes, “As a single person, you don’t have the income, you don’t have the resources to take on a multimillion or multibillion-dollar company with a team of lawyers.”
Indeed, the ability to band together in a class action lawsuit is often the only realistic option for individuals who may be employees, or consumers, or even patients who have suffered at the hands of a powerful corporation. The forced arbitration clauses hidden in the “fine print” of so many contracts impose silence and powerlessness on defrauded investors and borrowers, injured nursing home residents, employees who have been sexually harassed, students of for-profit universities who find their degrees are worthless, and Americans from all walks of life who often have no idea they’ve signed away their rights when they sign a contract for a product, service or job.
Significantly, there is one group of people who is perhaps most victimized by bars against class actions: those who serve in the military. The commitments and deployments of service members can make it impossible for them to find time and resources to pursue individual claims. Organizations that advocate for service members were outspoken in their opposition to the Senate’s action, because it destroyed one of the very few protections against this type of abuse.
It was also steeped in Trumpism, even though the right’s ambition to do away with consumers’ ability to access the courts preceded the election of Trump. As Jamie McGonnigal puts it, “Trump emboldens people trying to take rights away from people without money.”
The night after the Senate’s devastating vote, I had the opportunity to hear CFPB Director Richard Cordray speak. Cordray’s agency is under assault by Republicans who want to defang it completely, and for whom the overturning of a single rule is only a warmup act. But Cordray’s fighting spirit was still intact. It was an inspiration to everyone in the room.
And we do have to keep fighting, because access to justice through the courts is as fundamental an American right as exists. This is one we can’t let Donald Trump “win.”