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The American Arbitration Crisis: Mandating Injustice

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by Nathan Morris

on 22 July, 2016

At the same time that the Supreme Court is upholding all-things-arbitration, buckets of evidence are surfacing about the arbitration system’s mind-boggling failures. State judges admit to backing the Supreme Court’s decisions only while holding their noses, while consumer advocate groups whip up public outcry to louder levels.

This is a time for big questions:

Where did the mandatory arbitration clause come from?

How exactly is it shaping our legal system and society at large?

Where do we go from here?

But first I needed to ask:

What’s Pikachu Got Against Plaintiffs?

The new gaming phenomenon Pokemon Go promises to bring a spark of magic to your every-day surroundings.

But in a less cute trick, the terms of service which players sign to begin the game magically makes some of their rights disappear.

Before you begin walking through busy streets with your eyes glued to your phone in search of imaginary animal-things (or accidentally finding dead bodies), you have to sign a statement agreeing, among other things “that disputes between you and Niantic [the maker of Pokemon] will be resolved by binding, individual arbitration, and you are waiving your right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding.”

Players can have their fun and keep their constitutional rights too by actively opting out of this agreement within 30 days of signing up (details here if you’re curious). But if they don’t opt out (as most of the millions flocking to this game surely won’t), they’ve probably lost their rights to sue or participate in a class action suit.

Even if large amounts of players are harmed (say in a leak of the massive amounts of data Niantic is slurping up from your phone) their only option is individual, binding arbitration. This is true even if all users are harmed in exactly the same way, in a manner that would be traditionally be handled by a class action lawsuit.

And of course, only a tiny fraction of Pokemon players would think of summoning the money and time to launch a grievance against the company under these conditions.

Niantic is inventive in its dragony and fairyish things, but it didn’t come up with anything new in its arbitration clause. Consumer watchdog Public Citizen estimates that around 75% of all corporations throw arbitration agreements into their contracts. The agreements signing away your right to a trial can follow you from birth (the ob-gyn’s office) to death (the cemetery). A 2010 study found that 36 million employees – totalling a third of the non-union workforce– had signed mandatory arbitration clauses for any workplace disputes. The percentage is likely to be higher today.

Each of our lives are riddled with arbitration clauses– many of which, if we’re completely honest, we signed without ever reading. Or even those we never signed, since there are now theaters and hamburger joints with signs announcing that just by walking in you’ve agreed to mandatory arbitration.

What brought this flood of arbitration clauses into our lives?

What the FAA–?

Statutory support for binding arbitration agreements is rooted in a 1925 law called the Federal Arbitration Act (FAA). The FAA was born in a context where judges had repeatedly shown hostility to pre-dispute arbitration agreements, and was probably originally targeting agreements between two merchants that had roughly equal bargaining power and sophistication. It was a procedural statute for federal courts only.

It would take a visionary congressperson indeed from the 1920s to imagine the FAA’s role in Pokemon Go.

In the last few decades, the U.S. Supreme Court has taken the FAA and run with it (the full course of this “arbitration creep” will be discussed below, but I also like to refer to the process as upping the ‘FAA Quotient,’ or the ‘FAA-Q’). The Act’s language is now broadened to include consumer and employment disputes between parties with markedly imbalanced power. In just the last five years, the Justices have decided that it’s entirely acceptable for corporations to take away all of a person’s 7th Amendment rights. An arbitration clause tucked inside a contract is usually sufficient to strip consumers and employees of the rights to sue individually or in a class action– in federal and state courts.

Through this process, use of arbitration clauses has been skyrocketing, radically reshaping the nature of civil justice in our country.

Of course, the shiny promise behind the idea of arbitration is it’s ability to take a load off of the shoulders of our civil courts. When courts are overburdened, everyone feels the pain: a legal traffic jam means not only aggravatingly slow progress in cases, but also judges so harried they’re deciding cases willy-nilly, without enough time to contemplate the full merits of the arguments.

Alternative dispute resolution to the rescue! Mediation and arbitration promise to scoot your case over to the fast lane, shaving months– or even years– off of your wait time, and offer a less rushed, more careful consideration of your case.

So what does justice look like in our brave new arbitrated world?

Fox and Foes

Pokemon may seem cute and fanciful, but consequences of mandatory arbitration agreements can be dire. This is coming to light in the recent media firestorm of sexual harassment allegations against Roger Ailes, chairman, chief executive, and mastermind-architect of Fox News. The lawsuit was filed by former Fox & Friends anchor Gretchen Carlson, but since then  current anchor Megyn Kelly has spoken out with her own accusations as well, and Carlson’s attorney claims over a dozen other women have also come forward with their own stories of Ailes’ harassment.

But Carlson’s contract with Fox News contained an arbitration clause, which is perhaps why she only brought her suit against Ailes personally and not the company. Nevertheless, the courts may find that she’s still bound by the arbitration clause, taking the titan of American media out of the courts and into private, secret arbitration proceedings.

Why does this matter?

If you’re a practitioner of plaintiff-side law, you already know about the short-comings and justice-twisting of the arbitration process, as you’ve watched the realm of tort law get gobbled up by contract law. But, if you’re fine with raising your blood pressure a bit, here’s my quick run-down of the sad and sorry state of mandatory arbitration, guided by the work done by Public Citizen, a consumer watchdog group, who have researched this issue extensively:

  • The Bind: Do you find your arbitration results to be manifestly unfair, illogical, and/or at odds with other rulings on cases exactly like yours? Too bad. Binding arbitration rulings can’t be appealed. Rulings can only be set aside of a party can prove outright fraud of “manifest disregard of the law,” which, in practice, is a high hurdle to jump. Parties have no right to appeal on substantive grounds, the way they would in a trial.
  • The Pricetag: One big justification for arbitration is that it’s so much less costly than a court case. But Public Citizen’s research has found that the costs to a claimant in initiating arbitration is almost always higher than the cost of starting a lawsuit. And not just by a little– costs can be 5,000% higher, creating “a deterrent effect, often preventing a claimant from even filing a case.”

They conclude:

“The oft-cited benefits that arbitration can offer in exchange for higher fees will seldom benefit consumer litigants. Not only is there no evidence that arbitration reduces the overall transaction costs of litigation (e.g. witness fees, attorney fees, discovery costs), but nobody has expounded a coherent theory to explain how arbitration could reduce such costs except in a few categories of cases. Indeed, Public Citizen’s careful examination of the cost savings claim demonstrates that in the vast majority of cases, arbitration will necessarily increase the transaction costs of litigation.”

Of course, all of these costs have to be paid up-front. To  make matters worse, the claimant is often already facing some serious financial strain or hardship– if the very reason they’re making a claim is because they’ve suffered an injury, been kicked out of their home, or been fired from their job, they can hardly afford expensive arbitration, and are forced to drop the case.

More details of Public Citizen’s research on arbitration costs are here.

  • The Big Business Bias: There’s really no way to tiptoe around this: arbitration is skewed to favor the more powerful member of a contract.

The problem comes from the fact that the only repeat users of arbitrators are the businesses or industries who mandate them in their contracts. If arbitrators want to keep their business, they inevitably have an incentive to rule in a manner that’s favorable to the companies, against the claimant.

As Anthony Kline, a California appeals court judge put it: “This is a business and arbitrators have an economic reason to decide in favor of the repeat players.

The upshot is that claimants of arbitration receive only about 20 percent of the damages they would have received in court, in front of a judge or a jury of their peers. Research done at Cornell University in 2011 following 4,000 cases found that in workplace disputes, employees prevail less frequently and recover less money in arbitrated cases than they do in trials.

  • The Imbalance: Those in favor of arbitration clauses often note that mandating arbitration can be a good deal for weaker parties too, since it protects them from being sued by corporations. But the clauses are often explicitly one-way, meaning the weaker party is forced to always arbitrate while the corporation can still sue in court if it benefits them.
  • The Venue: Want to go to San Jose to settle your disputes? If you’ve been wronged by internet auction site eBay, you have to. Arbitration clauses often force hearings to be held in places that are inconvenient to claimants.
  • The Secrecy: The ability to dig up information about each other is considered a right during litigation. In arbitration, though, discovery is an extra privilege you have to pay for. And many clauses go further by severely restricting the claimant’s ability to get at any information or evidence.

Subpoenas are also charged separately in the arbitrator’s little a la carte menu, and have no enforcement power. To get others to comply with subpoenas, claimants have had to file separate lawsuits, which defeats the entire justification for arbitration anyway.

As the Roger Ailes case shows, secrecy is also an issue once the case has been decided: arbitration leaves behind no public record, as most clauses dictate that the proceedings will be confidential. While the corporation keeps a record of how arbitrators have ruled for them, helping them to choose who is the most biased in their favor, the claimants have none of this information. Also no legal precedents are established to guide a company’s future conduct.

The New York Times quotes Jenny Yang, chairwoman of the Equal Employment Opportunity Commission explaining that arbitration allows root causes of bad behavior in businesses to persist. Arbitration keeps allegations of discriminatory practices under wraps, so other workers who might be experiencing the same thing are less likely to come forward.

  • The Isolation: Like the arbitration clause for Pokemon Go, many prohibit participation in a class action lawsuit, which are the only remedy for bad behavior that defrauds millions by taking a little bit from a lot of people. If you’ve only been ripped off $50, you’re not going to go through the costs and headaches of arbitration. But that gives companies the lee-way to get away with scams that take away a bit from everyone.

The Consumer Financial Protection Bureau (CFPB) released a study last year showing that class action lawsuits were a more efficient and fair way for consumers to address problems with financial institutions. Not only did class actions bring financial relief to wronged consumers, they also pushed companies to reform their practices. In the five year period studied, it was found that 160 million people were eligible for relief, totalling $2.7 billion dollars, not to mention the benefits gained by companies changing their behaviors.

“However,” they found, “where mandatory arbitration clauses are in place, companies are able to use those clauses to block class actions.

A massive investigation on mandatory arbitration by the New York Times last fall noted the diversity and spread of cases which have been affected by this clause:

“Among the class actions thrown out because of the clauses was one brought by Time Warner customers over charges they said mysteriously appeared on their bills and another against a travel booking website accused of conspiring to fix hotel prices. A top executive at Goldman Sachs who sued on behalf of bankers claiming sex discrimination was also blocked, as were African-American employees at Taco Bell restaurants who said they were denied promotions, forced to work the worst shifts and subjected to degrading comments.”

Class action lawsuits are a tool for nipping bad corporate behavior in the bud. In 2014, attorneys general from 16 states sent a letter to the Consumer Financial Protection Bureau warning that when class actions were banned, “unlawful business practices” would flourish.

  • The Limitation on Remedies: While a court can offer a range of remedies, in the form of orders to compel parties to do certain things, arbitration only concerns money. And while courts can establish punitive damages, arbitrators can’t.
  • The . . . Law?: Arbitrators don’t have to abide by dusty old secular law. They can instead delve into exciting new realms like “Christian arbitration,” with proceedings that incorporate prayer and take Holy Scripture as its supreme authority. Former Scientologists with grievances against the institution’s practices may find themselves forced to express them to a panel of Scientologists, rather than having a right to a trial that doesn’t consider their Thetan levels.

Reviewing all the consequences of mandatory arbitration run amok, Myriam Giles, a law professor at Benjamin N. Cordozo School of Law, asserts “This amounts to the whole-scale privatization of the justice system.”

How We Got Here:

If you do find yourself in arbitration governed by Lord Xenu, you can blame it on the U.S. Supreme Court.

One key decision opening the door for ‘arbitration creep’ was the 1984 case Southland Corp. v. Keating, that found the FAA applied in state as well as federal courts. This case was used to justify shutting down consumers rights to sue companies for violating state laws in their arbitration demands, an action which dissenting justice O’Connor found “unfaithful to congressional intent, unnecessary, and [. . .] inexplicable,” a kind of “judicial revisionism” that “goes too far.”

a series of decisions in the 90s further strengthened the role of arbitration agreements. Gilmer v. Interstate Johnson/Lane, Corp (1991) found that pre-dispute arbitration agreements were both legitimate and enforceable. This was then extended to other kinds of contracts, regarding employers and statutory claims, with cases like Cole v. Burns International Security Services in 1997.

As the FAA was becoming gradually inflated in size by Supreme Court decisions, Justice O’Connor worried “over the past decade, the Court has abandoned all pretense of ascertaining congressional intent with respect to the Federal Arbitration Act, building instead, case by case, an edifice of its own creation” (Allied-Bruce Terminix Companies, Inc. v. Dobson, 1995).

But now the stage was set for the grand sweep. In 2011 the Supreme Court heard AT&T Mobility v. Concepcion, 563 U.S. 333. In this class action lawsuit, a California consumer filed against the company for advertising free cell phones but quietly charging $30.22 for sales taxes on the full retail price. AT&T responded that this wasn’t an issue for the courts, since their terms and conditions contract contained an arbitration clause.

At this point, the case was no longer about false advertisement and defrauding consumers: it was now about the question of using these paragraphs of legalese to restrict the constitutional rights of consumers.

But Concepcion clearly had California statute on their side. In 2005, Discover Bank v. Superior Court held that “class action waivers are, under certain circumstances, unconscionable as unlawfully exculpatory,” and “operate to insulate a party from liability that otherwise would be imposed under California law.” In other words: “The realistic alternative to a class action is no 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30” (Carnegie v. Household Intern, Inc., U.S. Court of Appeals Seventh Circuit, 2004).

AT&T works in a setting where it predictably would be in dispute about small amounts of damages for many parties. The lower courts found that forcing a class action waiver in this context amounted to “the exemption of the party from responsibility for its own fraud, or willful injury to the person or property of another” (Discover Bank v. Superior Ct., 2005).

Accordingly, the district court and circuit court both ruled against AT&T.

But the Supreme Court overturned this ruling, and ruled 5-4 for AT&T, asserting that the FAA preempted any state rule.

And the coddling of arbitration by the highest court of the land has continued. In 2013, their ruling in American Express Co. v. Italian Colors Restaurant recognized that rigorous enforcement of arbitration clauses could strip claimants who had smaller claims from any real means of redress– but nevertheless decided that the FAA demands this strict adherence to the arbitration clause.

This case also weakened interpretations of the Sherman Act to protect citizens against monopolistic entities, by ignoring the ways a class-action ban prevented small businesses from exercising federal rights to fight a monopoly. In the dissenting opinion, Justice Kagan wrote “The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.”

Just last December, In DIRECTV, Inc v. Imburgia, the Supreme Court looked at arbitration clauses that explicitly voided themselves when the “law of your state” made class-arbitration waivers unenforceable. Even though California state law is against class-action waivers, the Supreme Court asserted that since they had already decided federal law trumped it, the arbitration clause had to be upheld.

Justice Ginsburg and Sotomayor continued their dissent, pleading that we “take no further step to disarm consumers, leaving them without effective access to justice.” They further note:

“These decisions have predictably resulted in the deprivation of consumers’ rights to seek redress for losses, and, turning the coin, they have insulated powerful economic interests from liability for violations of consumer-protection laws.”

Just for context: at the same time other countries have been pushing back against pre-dispute arbitration agreements, with the EU flat-out barring enforcement of one-party-dictated mandatory consumer arbitration agreements). Researchers have gone so far as to suggest that mandatory, pre-dispute arbitration agreements just don’t exist outside of the good old U.S. of A.

Can Arbitration Clauses Still be Found Unconscionable?

Yes. Well– probably.

Some have taken the 2011 Concepcion ruling as the death knell for consumer rights, with arbitration clauses free to set whatever stipulations they want and state legislators powerless to regulate them. Others construe the Concepcion ruling more narrowly, seeing the ruling as being against blanket statements of class action waivers as unconscionable, but allowing courts to rule against arbitration agreements as unconscionable for other reasons.

The main requirements for the FAA are that arbitration agreements not be singled out for negative treatment, but are judged the same way other provisions in a contract would be. Conception notes that the FAA does not preempt “generally applicable contract defenses, such as fraud, duress, or unconscionability,” and that “Under the FAA, these defenses may provide grounds for invalidating an arbitration agreement if they are enforced evenhandedly and do not ‘interfere [ ] with fundamental attributes of arbitration.’”

The task for a plaintiff’s attorney in these contexts is to return to the double-barrelled test of unconscionability in contracts: 1) is it procedurally unconscionable? 2) is it substantively unconscionable?

Procedure: Arbitration clauses are usually in adhesion contracts, which are prepared by the party with greater bargaining power and presented to the weaker party on a take-it-or-leave-it-basis. In many judicial cases, this qualifies as procedural unconscionability (though in the Concepcion ruling, Justice Scalia seemed impatient with this finding, noting that at this point, most contracts are adhesion contracts).

Substance: To argue that an arbitration clause is substantively unconscionable, one must show that terms unreasonably favorable to the stronger party. These might include terms that limit the statute of limitations (as in Samaniego v. Empire Today, LLC, 2012), prohibit punitive damages (Ahamian v. CantorCO2e, L.P., 2012), fail to provide the agreement in the language spoken by workers (Carmona v. Lincoln Millennium Car Wash, 2014), or bind only employees to arbitration while business owners have the choice between arbitration or the court (ibid.).

Noting as we have the vast harm done to weaker parties through arbitration agreements, it seems like it shouldn’t be difficult to show that terms are substantively unconscionable. But the truth is that lower courts have shown a great amount of unevenness on determining when a provision in unconscionable. The difficulty of ‘unconscionability’ arguments is that terms have to shock the consciences of the court reviewing them– but a conscience is a slippery thing, and some judges seem to have ones that are particularly resistant to shock. And even if a lower court finds in the plaintiff’s favor, defendants are liable to appeal, emboldened by the Supreme Court’s recent findings.

A Summary of Most Recent Cases:

Many federal and state judges are resistant to Concepcion and similar Supreme Court rulings, finding in them a violation of basic justice. Even when they find they’re forced to dismiss lawsuits in favor of mandatory arbitration, they’ll go so far as to call the present state of legal affairs “lamentable.”

But there have been successful challenges to arbitration. Last year, a federal district judge in California found an arbitration clause put out by ride-share company Uber to be unconscionable. In Mohamed v. Uber, Gillette v. Uber, and O’Connor v. Uber, the contract provision was found under California law to be procedurally unconscionable because the opt-out clause was “buried in the contract” and substantively unconscionable because it required employees to pay substantial forum fees in some cases.

However, at the same time this was happening, nearly identical cases were dismissed in three different districts (Sena v. Uber in District of Arizona, Varon v. Uber in the District of Maryland, and Suarez et al v. Uber in the Middle District of Florida).

A similar California class action suit is being brought against Fitbit because of arguments over false advertising about sleep-tracking. Fitbit argued that its users sign a mandatory arbitration clause that prohibits class action suits, but attorneys for the plaintiffs have side-stepped the clause by including only plaintiffs who bought their magic watch-thingy in a brick-and-mortar store or through a third party online, thereby avoiding any terms of service contract.

Just last week, Fitbit’s latest motion to dismiss was denied (JAMES P. BRICKMAN, et al., individually & as a representative of all persons similarly situated, Plaintiffs, v. FITBIT, INC., Defendant., No. 15-CV-02077-JD, 2016 WL 3844327 (N.D. Cal. July 15, 2016)).

California isn’t the only state pushing back against bad arbitration clauses. New York passed a state law prohibiting mandatory arbitration clauses in contracts between a consumer and a business for buying or selling “consumer goods.” But just last year, New York’s Second Department decided that in cases “involving” interstate commerce, this law was at odds with the FAA. A lower court’s ruling against arbitration clauses was reversed (Schiffer v. Slomin’s, Inc., 2015). In this case, the ‘interstate commerce’ component was established by the fact that the security company was a multi-state company that purchased components of its alarm systems from other states, but the question of what “involves” interstate commerce is a slippery one, that can be very broadly construed.

A similar reversal happened with the 2012 Supreme Court case Marmet Health Care Center, Inc. v. Brown. The West Virginia Court of Appeals, following a rash of accusations of negligence and wrongful death at nursing homes, determined that a certain class of arbitration clauses were simply unenforceable. The West Virginia Nursing Home Act, it noted, prohibited arbitration clauses in nursing home contracts when the grievance presented was personal injury or wrongful death. The Act reasoned that the nature of the business dealt so intimately with human necessity, such that the basic ‘take it or leave it’ attitude didn’t entirely apply: “the process of signing paperwork for medical care– specifically, a contract for admission to a nursing home– is often fraught with urgency, confusion, and stress” noted the court (Brown ex rel. Brown v. Genesis Healthcare Corp., 228 W. Va. 646, 664, 724 S.E.2d 250, 268 (2011)).

So what about the FAA? The state court didn’t mince words: they went so far as to call previous Supreme Court interpretations of the FAA to be “tendentious” and “created from whole cloth” (Brown v. Genesis Healthcare Corp., W. Va. June 2011).

This amounted to a full-out show-down between state and federal laws– but, unlike with the Burr-Hamilton duel, the federal side was sure to win.

The Supreme Court unanimously struck down the lower court’s decisions, saying they had already clearly decided that the FAA preempted any state attempt to regulate issues like this. They even sounded a little feather-ruffled when they asserted: “When this Court has fulfilled its duty to interpret federal law, a state court may not contradict or fail to implement the rule so established.”

But, in a small silver lining, the Court didn’t outright rule that the contracts in question had to be enforced– they only took away the lower court’s ability to throw them out because of the West Virginia statute. Though the courts couldn’t argue for unconscionability on the grounds that this clause violated public policy, they could find the clause unconscionable on other grounds.

The lower court has subsequently ruled that all parties could continue discovery and have time to develop arguments as to unconscionability on other grounds.

Further rulings will continue to shape the space plaintiffs have to squeeze out of arbitration clauses, but for the foreseeable future, it’s going to be messy. Reading through these cases means confronting a sea of yellow and red flags denoting negative treatment by other courts. It’s a sign of this moment of crisis, where judges publicly mourn that the basic sense of justice is at odds with the mandate narrowly decided in the Supreme Court.

The Future?

Plaintiff-side attorneys keep trying their hardest to find arguments against mandatory arbitration that haven’t already been shot down by the Supreme Court. But many are hoping new legislation could open up some breathing space in the FAA.

One coalition of consumer rights groups, Fair Arbitration Now (FAN), is pushing for a federal law to make arbitration voluntary and restore the strength of state laws protecting consumers.

Rep. Hank Johnson (D-GA) introduced the bill in 2015 by saying: “There is overwhelming evidence that forced arbitration creates an unaccountable system of winners and losers. Unlike America’s civil justice system, which has evolved through centuries of jurisprudence and social progress, forced arbitration does not provide important procedural guarantees of fairness and due process that are the hallmarks of courts of law.”

The Arbitration Fairness Act died in committee, and it looks like the 2016 version– the five-page “Restoring Statutory Rights” bill– will have the same fate. With 75% of all corporations using arbitration clauses to slide away from responsibilities for harm they cause others, it’s no wonder that this bill generates considerable industry backlash.

While federal legislation flounders, the comparative success in fighting arbitration clauses in California shows that state legislation protecting consumers and workers can be an interim goal, provided it’s carefully worded to not run afoul of the FAA (in the Uber cases, the protective legislation is the Private Attorney General Act.)

Other possibilities for pushing back against mandatory arbitration are opening on the federal level for specific industries.

The Dodd-Frank Wall Street Reform and Consumer Protection Act mandated a closer look at mandatory arbitration clauses in consumer financial products and services (like credit cards). Accordingly, the Consumer Financial Protection Bureau (CFPB) is currently proposing rules to prohibit what Director Richard Cordray calls a “contract gotcha that effectively denies groups of consumers the right to seek justice and relief for wrongdoing.” Congress has given CFPB power to issue regulations that “are in the public interest, for the protection of consumers, and consistent with the study.”

In addition to prohibiting mandatory arbitration agreements for consumer financial products, the CFPB’s rules would also require companies to disclose information on claims and awards, which is currently kept private. The CFPB would be able to analyze the fairness of this action and publish some of the information to allow public scrutiny.

While this would only be for financial goods and services, this could provide relief for a significant number of people: the New York Times found that two-thirds of all consumers who contest credit card fraud, fees, or costly loans through arbitration were awarded zilch. And Senator Al Franken stated that the findings by the CFPB breathe new life into the idea of an Arbitration Fairness Act.

The banking industry is predictably unhappy about CFPB’s attempts and is throwing its weight against regulatory efforts. Last winter’s try at an omnibus spending bill included an attempted amendment by Reps. Steve Womack (AR) and Tom Graves (GA) to outlaw the CFPB from using its funding to restrict arbitration clauses until it redid its extensive research on the subject. The amendment failed, but lawmakers bankrolled-by-banks are asserting they’ll continue attempts to hobble the CFPB.

And while judges and legislators battle out the question, public outcry against mandatory arbitration clauses is growing stronger. A 2014 poll found that 74% of us– spanning all political identities– find them unacceptable. A majority even thinks a person should be allowed to sue even if they’ve signed away their rights in a contract.

But until further action takes place, ordinary people will continue regularly giving up their constitutional rights in order to do basic things, whether it’s leasing a home, beginning a job, getting an education – or trying to ‘Catch ‘em all.’