My problem here is that process is substance in a number of different ways. With no class vehicle, there is no ability to aggregate small dollar claims and, therefore, no incentive to take action against widespread, individually low value corporate abuses. Yes, class actions may result in very small recoveries paid to the individual consumers, but they still serve as private policing of regulatory failures or gaps. And with class waivers, that’s gone.

And arbitration? A similar process trumps substance problem. Although most of my work is defense-side, I occasionally take a plaintiff-side contingency fee case (e.g. investment fraud). And from that perspective, many cases are far less attractive in arbitration than they are in litigation (obviously). But it’s to such an extent that the case won’t ever be pursued. So process, again, trumps.

And my fear, under the current “always err on the side of arbitration because of our strong, long-standing federal policy in favor of arbitration” regime and the recent case law (nearly all of which cuts in that direction), we will see (1) the question of whether or not the consumer clicked through and agreed to arbitrate sent to the arbitrator to decide and (2) any close call in which agreement or assent to the contract is debatable resolved in favor of arbitration because of the aforementioned strong public policy.