LAT’s Lazarus Alone Questions BofA Arbitration Move

The rest of the press missed a big piece of the story

The best personal-finance journalism isn’t the kind where pundit X tells you why you shouldn’t buy product Y or continuously extols the miracle of dollar-cost averaging and whatnot.

The best is the kind that intersects with public-service journalism in the broader sense—watchdogging the powerful, not just hacking out narrow how-to stuff about avoiding the traps set for everyone else.

One personal-finance columnist I used to sit near at The Wall Street Journal once told me that there are only about twenty personal-finance columns to be done. The hard part is recycling them with fresh angles.

But there’s one angle that keeps on giving and which ought to be priority No. 1 for such columnists: The power relationship between financial institutions and their customers. You don’t need me to tell you consumers rarely have the upper hand here.

David Lazarus of the Los Angeles Times gets that, and looked recently at how Bank of America is fiddling with that relationship in a way that at first seems consumer-friendly, but on closer inspection is not quite.

The bank recently dropped mandatory arbitration, which typically favors business interests, from its credit-card agreements, becoming the first major bank to do so. He notes that the media misplayed the story:

Most media outlets characterized BofA’s move as good for consumers and bad for the bank’s lawyers, who now face a deluge of lawsuits.

Apparently it didn’t occur to any of them to ask whether scrapping the arbitration requirement also meant BofA was doing away with its prohibition on customers joining class-action lawsuits.

I did. And it hasn’t.

Indeed, other media outlets didn’t ask—and this is a serious oversight on their part.

Money (and corporate cousin CNN) headlined its story “Good news for credit card users.” The Wall Street Journal wrote that “consumer disputes can now go to courts” but didn’t point out how unlikely it is many of them will or that class-actions were still barred. Reuters missed the class-action aspect, as did USA Today.

The Associated Press just flat out got the story wrong in the lede:

Bank of America Corp. said that as of Thursday it will stop requiring that disputes with its credit card holders and banking and lending customers be settled by binding arbitration, opening the door for class-action and other lawsuits to push up the bank’s legal costs.

The AP needs to issue a correction there.

The reason this is a bad miss by all these outlets—and a hit by Lazarus—is it means if you want to challenge BofA, you have to hire your own lawyer or just deal with the bank itself. You’ve got to have a pretty big dispute to justify paying a lawyer to fight a bank. You’re not going to pay somebody $150 an hour to fight $200 in overdraft fees.

So that means, BofA is funneling customer disputes away from a biased, but at least low-cost third party, to the expensive quagmire that is the U.S. legal system.

On a purely journalistic level, I also like how Lazarus calls out BofA spin for what it is. The bank said it’s ending mandatory arbitration because “some customers have not experienced the anticipated benefits of arbitration”—an understatement Orwell would have appreciated. Lazarus immediately counters:

Actually, most observers think BofA was responding to a decision last month by the National Arbitration Forum, the biggest provider of arbitration services, to stop handling credit card disputes.

The organization was sued by Minnesota’s attorney general for alleged fraud, deceptive trade practices and false advertising because it allegedly hid its financial ties to the very credit card companies whose disputes it was handling.

I’d like to see more journalists call out dishonest flackery like this. This piece shows exactly how you handle something like that.

And Lazarus tilts way against conventional wisdom to make the point that class-action lawsuits are often the only way to get abusive practices stopped. True, class-action lawyers sometimes abuse the system, as he says, but then—so do banks. This is just common sense, well put.

As a bonus, he’s got a nice kicker:

“We would hope that people would just deal with us directly,” (BofA flack) Riess said.

Sure. Because if you can’t get a fair shake from your bank, who can you turn to?

Well done.

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Ryan Chittum is a former Wall Street Journal reporter, and deputy editor of The Audit, CJR's business section. If you see notable business journalism, give him a heads-up at Follow him on Twitter at @ryanchittum.