For clarity, a mandatory arbitration agreement is when a consumer or customer must "agree to have their case reviewed by a third party—called an arbitrator—and to be bound by the arbitrator's decision." The intent is that you waive your right to sue (in a regular court of law) the party you're entering this agreement with. But these agreements can, in some cases, be ruled as invalid by a court. The examples I've seen apply to the US, but I'd be interested in examples from other countries.

I'm sure I'm not the only one who's been noticing how out of hand it's becoming to see these statements plastered in Terms of Service and several other locations.

The most newsworthy example recently was Disney claiming that a statement like this in their Disney+ ToS also applied to a wrongful death case on one of their properties. As the linked article says, they backpedaled on this, but it's still disgusting and disturbing they even tried it in the first place.

The most recent example I've seen is this post on Mastodon where it was included on the packaging of a supplement.

I can't help but wonder if this is just a way to deter people from seeking litigation in the first place, especially if they aren't wealthy enough to hire a legal team that could poke holes in the legitimacy of their mandatory arbitration agreement.

I'm sure there's a nearly endless supply of examples of this, especially in software service agreements. But is there anything that can be done about it? Or is this just one more way corporations get to have more power than people that won't ever change?

Have you ever received notice that you might be eligible for something from a class-action settlement? Ever notice that the effort required to recover is significant, and the recovery perhaps insultingly miniscule?

I don't know of any data, but I suspect that's true of nearly every class action lawsuit, even those that win in court battles. Maybe the original plaintiffs get a decent recovery, sometimes there's injunctive relief (which means the court forces the defendant to do or not do something). Every once in a while, individual members of the class get a meaningful outcome (vw's dieselgate comes to mind).

The public interest justification for the outcomes where the recover for class members is really small, if one is even ever really offered, is that the cost of the action to the defendant serves as an inducement to all defendants to keep their act together. But see, Tyler Durden's explanation of the actuarial function from Fight Club.

My thought is that instead of any recovery for the individual class members ("fuck 'em, right?"), their portion of the money should go to a public interest fund dedicated to consumer protection. My reason for this is that these small recoveries don't make any useful change for the individual class member consumers. But collectively, might add up to enough to make a meaningful difference to the future activities of producers.

Of course, all the usual caveats about corruption and accountability come into play. But there's a few reasons it might help, if those can be overcome. First, it might prompt faster, lest costly settlements. The payouts would be lower, and also the transaction costs. This shifts the litigation process from focussing on big recoveries to high volume of suits, bringing in more defendants. It would also enable smaller firms to bring suit, the hope being that smaller firms would take on more marginal cases and get more action.

Second, it might actually create a feedback loop. If the fund gets large enough, it could lobby and investigate, providing more information more new suits, and identifying the worst actors, and encouraging useful regulation. Imagine if Consumers Union could return to its glory of the 80's and have a big lobbying fund?

Or, we could just have decent government level consumer protections (hahhahahahahahahah!)