The Clause You Never Read

Published October 3, 2026. Contract terms captured September 18–19, 2026; X Corp.’s terms captured again September 25, 2026. Last updated October 3, 2026.

Forced Arbitration — a service of Madgett Law, LLC, a Minnesota law firm. Responsible for this content: David J.S. Madgett, Madgett Law, LLC, IDS Center, 80 South 8th Street, Suite 1650, Minneapolis, MN 55402, 612-470-6529, madgettlaw.com. Minnesota Bar No. 390494.

Published on forcedarbitration.com. Contract captures are dated in the text; the datasets behind the report’s own counts are described in § 11. Bold type in quotations is ours; the sources’ own bold, italics and underlining are not reproduced.

On May 21, 2018, Amazon’s Conditions of Use sent disputes to binding arbitration before the American Arbitration Association, with carve-outs only for qualifying small-claims actions and intellectual-property injunctions. The version dated May 3, 2021 deleted that requirement and sent disputes to the state and federal courts of King County, Washington. So did the version dated September 14, 2022. So did the version dated May 30, 2025, which was still being served to customers on June 30, 2026.

The version dated August 14, 2026 brought arbitration back. Binding, individual, administered by JAMS, with a class-action waiver, a mandatory pre-arbitration claim form, a 60-day negotiation period, and a definition of “Mass Arbitration” that triggers at 25 demands.

We captured that version on September 19, 2026. Every one of those documents is Amazon’s own, each carries its own revision date, and the sequence is reconstructed from dated archival snapshots of the same page. This report does not tell you why Amazon did either thing, because nothing in the record we assembled says why. It tells you what the documents say and when they said it.

That is the method for the whole report. Over one night — September 18 into September 19, 2026 — we captured and verified 139 consumer agreements from banks, card issuers, credit bureaus, fintech lenders, telecoms, streaming services, marketplaces, gig platforms, airlines, hospitals, universities, student lenders, gyms, home-warranty companies, high-cost lenders and debt-relief firms. Every quotation we took from them is verbatim, and a script matched each one back to the saved capture of the document; where a document says nothing on a question we record that, and where the part of a document that would answer it was not captured we say so. We scanned all 3,264 credit-card agreements in the Consumer Financial Protection Bureau’s 2026 Q2 quarterly bulk collection. We recomputed the American Arbitration Association’s own consumer-case disclosure file — 171,546 consumer claim-rows filed between November 29, 2010 and June 5, 2026 — from the spreadsheet AAA publishes because one state, California, requires it.

Here is the conclusion the record supports, and it is not the one the debate usually has. The argument over forced arbitration is not an argument about which forum consumers use. It is an argument about whether consumers use any forum at all. The Bureau found an average of 411 consumer-filed AAA cases per year, 2010–2012, across six consumer-finance markets. Two law professors who studied four providers found that arbitral filings ran about 200 a month higher after the Supreme Court decision that made class waivers broadly enforceable than before it — “[a] monthly increase of about 200 arbitrations” that, in their words, “does not compare to the thousands or millions of complaints that were once bundled into a single class action.” Those professors are express that the decision “did not spawn a surge in arbitral filings.”

What we found

1. Amazon carried no arbitration clause for roughly five years and put one back in the version of its Conditions of Use dated August 14, 2026, which we captured on September 19, 2026. The clause it removed in 2021 named the AAA. The clause it added names JAMS.

2. A court, not an arbitrator, decides whether the clause is enforceable more often than you would think — but not most of the time. Of the 110 documents that contain an arbitration clause, 58 send the question of whether the clause itself is enforceable to the arbitrator, and 32 send that core question to a court. American Express, JPMorgan Chase and Grubhub are each in the second group, in their own words.

3. When a consumer arbitration at AAA actually reaches an award, the business usually wins. Among the 5,946 consumer-filed claim-rows that reached an award, AAA recorded the business as prevailing party in 62.6% and the consumer in 23.5%. When the business is the party that filed — the debt-collection posture — it prevailed in 81.0% of the 399 awarded rows.

4. Almost nothing reaches an award. 96.3% of consumer claim-rows in AAA’s file ended without one: 67% withdrawn, 21% settled. And a handful of mass filings dominate the file — TurboTax (38,527 claim-rows), Uber (31,573) and Amazon (37,670 across two name spellings). The ten most-named businesses account for 72.3% of all consumer claim-rows and 93.9% of the withdrawn ones. Fifty-five percent of the entire file was filed in 2020 alone.

5. Of the 110 documents that contain an arbitration clause, 51 let a consumer opt out of arbitration within a stated window — and the exceptions matter more than the number. Six of those — Discord, Netflix, Nintendo, PayPal, Riot Games and Venmo — leave the consumer bound by the class-action waiver anyway. Four open the window only to new users: eBay, Etsy, DoorDash and Grubhub. Instacart voids any opt-out an attorney files on your behalf. Tinder’s “opt-out” does not opt you out of arbitration at all.

6. Of the 110 documents that contain an arbitration clause, 5 attach the all-or-nothing tripwire not to the class-action waiver but to the batching machinery. eBay, Booking.com, Dave, EarnIn and FanDuel each provide that if the batch-arbitration section is held invalid, the entire arbitration agreement is void and all disputes go to a named court — Salt Lake County, New York, Los Angeles County, Santa Clara County and New York, respectively. Five companies, courts in three states, one paragraph.

7. The two largest U.S. retail banks describe the same mass-arbitration gatekeeper in materially identical language. Bank of America’s and JPMorgan Chase’s deposit agreements both appoint a “Process Arbitrator”, in sentences that differ only in the party name and the rule citation.

8. Some of these clauses are genuinely better than court, and a report that hid that would not be worth reading. Of the 110 documents that contain an arbitration clause, 13 promise a consumer a minimum award or a bonus for doing better in arbitration than the company offered (at Sallie Mae, for winning the relief the company refused; at Progressive Leasing, for winning more than the consumer demanded and the company refused) — AT&T at $10,000 (floor); Discover, Progressive Leasing, Sallie Mae and U-Haul at $7,500 (floor); Cox (archival capture) at $5,000 (bonus); American Express, Teladoc and Verizon at $5,000 (floor); Dropbox at $1,000 (bonus); Lyft, Microsoft and OneMain at $1,000 (floor). AT&T also promises to pay twice the consumer’s reasonable attorney’s fees in that situation.

9. Mass-filing machinery is new, the curve is steep, and the number keeps coming out the same. Across 46 companies and 169 dated snapshots, mass-filing terms appear in none of the 2016 or 2019 snapshots, 1 of 27 in 2021, 9 of 34 in 2023, 11 of 34 in 2025, and 25 of 46 in the live captures of September 18–19, 2026. Reading the mass-filing section of all 110 documents that contain an arbitration clause, 50 state their own numeric trigger — and 35 of the 50 set it at 25, across 34 companies — counting a company as one corporate family — and all 8 sectors. In two pairs the trigger sentence is word for word identical.

10. Minnesota cannot see any of this, because Minnesota has never required anyone to say. AAA publishes its consumer data under California, Maryland and New Jersey law. Minnesota is not on the list. Minnesota’s one consumer-arbitration statute — the Lemon Law — is designed as the precise opposite of a standard clause: the consumer’s fee is capped at the conciliation-court filing fee, counsel is expressly permitted, the decision is nonbinding, and either party may take a trial de novo.

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1. How it got everywhere

1.1 What the federal government’s own study found, as of 2013–14

The Consumer Financial Protection Bureau’s Arbitration Study: Report to Congress (March 2015) runs to 728 pages, and as of September 18, 2026 the Bureau had not repeated it. Every figure in this section is as of its stated date — December 31, 2013 for credit cards, summer 2013 for checking, summer 2014 for prepaid, 2013–14 for payday, and 2014 for student loans and mobile wireless. None of them describes 2026.

The Bureau put the headline this way, in a footnote: “this incidence data indicate that around 80 million consumers were subject to arbitration clauses at the end of 2013, focusing on credit cards alone.”

Now the sentence that explains the odd 53% figure, from the study’s executive summary: “(In 2009 and 2010, several issuers entered into private settlements of an antitrust lawsuit in which they agreed to remove the arbitration clauses from their credit card consumer contracts for a defined period. If those issuers still included such clauses, some 94% of credit card loans outstanding would now be subject to arbitration.)”

The 53% was an artifact of a temporary litigation settlement. Not a market choice. The defined period has since expired.

1.2 What consumers knew about any of it

The Bureau also ran a national telephone survey of 1,007 credit-card holders, accurate within 3.1% at 95% confidence. Verbatim:

“A majority (54.4%) of respondents whose credit card agreements include pre-dispute arbitration clauses stated that they did not know if they could sue their issuers in court.”

“Over a third (38.6%) of respondents whose agreements include pre-dispute arbitration clauses believed they could sue in court… at a minimum almost 80% of those respondents are mistaken.”

“Only one consumer whose current credit card contract permitted him to opt out of the pre-dispute arbitration clause in his credit card contracts recalled being offered such an opportunity.”

“When asked an open-ended question regarding all the features that factored into their decision to get the credit card that they use most often for personal use, no consumers volunteered an answer that even implicitly referenced dispute resolution procedures”.

“only 1.4% of respondents state that they would seek legal advice… That is almost the same proportion of consumers that state they would simply accept responsibility for the improperly assessed fee (1.7%). A majority of respondents said that they would cancel their cards (57.2%).”

The Bureau’s own numbers show how little the clause registers. Consumers whose agreements contained a pre-dispute arbitration clause were, in the Bureau’s words, “about as likely to believe that their agreement had such a clause as were consumers without such clauses” — 18.4% against 21.1%.

What this shows. A contract term that the people bound by it could not identify, could not price, and did not recall being offered a chance to reject is not a bargain in any sense a first-year contracts student would recognize. It is a default, set by one side, enforceable against the other.

1.3 The one rule Congress’s own agency wrote, and what happened to it

The Bureau issued Arbitration Agreements, 82 Fed. Reg. 33210 (July 19, 2017), to have been codified at 12 C.F.R. pt. 1040. Note what it did not do. It did not ban arbitration clauses. It barred using one to kill a class action, § 1040.4(a)(1), and required covered clauses to say, in these words:

“We agree that neither we nor anyone else will rely on this agreement to stop you from being part of a class action case in court. You may file a class action in court or you may be a member of a class action filed by someone else.”

Congress disapproved the rule under the Congressional Review Act. Public Law 115-74, 131 Stat. 1243 (Nov. 1, 2017), the operative text in full:

“Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress disapproves the rule submitted by the Bureau of Consumer Financial Protection relating to “Arbitration Agreements” (82 Fed. Reg. 33210 (July 19, 2017)), and such rule shall have no force or effect.”

(The Government Publishing Office renders the quotation marks around “Arbitration Agreements” in ASCII, as ``Arbitration Agreements’’; they are normalised here.)

The House passed it July 25, 2017. The Senate passed it October 24, 2017. It was approved November 1, 2017.

And here is the part most coverage misses. 5 U.S.C. § 801(b)(2):

“A rule that does not take effect (or does not continue) under paragraph (1) may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.”

The agency cannot rebuild that rule. Not with a new director, not with a new administration, not with a better record. Only Congress can authorize it, by statute. That is not an opinion about politics; it is the text of the Congressional Review Act.

1.4 What was live as of September 18, 2026: nothing

As of September 18, 2026 there was no federal regulation limiting pre-dispute arbitration clauses in consumer financial contracts. The Federal Register searches behind this section were run on September 18 and 19, 2026. Three later Bureau efforts touching consumer contract terms were withdrawn:

1.5 Congress has already overridden the FAA — for other people

Three federal statutes override the Federal Arbitration Act for particular categories. All three were in the United States Code in effect on September 24, 2026.

Servicemembers. 10 U.S.C. § 987(f)(4):

“Notwithstanding section 2 of title 9, or any other Federal or State law, rule, or regulation, no agreement to arbitrate any dispute involving the extension of consumer credit shall be enforceable against any covered member or dependent of such a member, or any person who was a covered member or dependent of that member when the agreement was made.”

Mortgages. 15 U.S.C. § 1639c(e)(1), added by Dodd-Frank § 1414(a) in 2010 and effective June 1, 2013:

“No residential mortgage loan and no extension of credit under an open end consumer credit plan secured by the principal dwelling of the consumer may include terms which require arbitration or any other nonjudicial procedure as the method for resolving any controversy or settling any claims arising out of the transaction.”

Sexual assault and harassment. 9 U.S.C. § 402(a), enacted March 3, 2022 by Pub. L. 117-90:

“Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable…”

And § 402(b) defeats the delegation clause by statute: applicability “shall be determined by a court, rather than an arbitrator… irrespective of whether the agreement purports to delegate such determinations to an arbitrator.”

What this shows. Pre-dispute arbitration has been unlawful in the largest consumer transaction most Americans ever enter — a home mortgage — since June 1, 2013. The mortgage market did not collapse. Congress carved sexual-assault claims out of the FAA in 2022 and the arbitration industry absorbed it. The question the record poses is narrow and it has never been answered: if pre-dispute arbitration is unacceptable for a $300,000 mortgage, what is the principle that makes it acceptable for a $300 overdraft?

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2. Who wins

2.1 Why anyone can answer this question at all

One state’s disclosure statute is the source of essentially all public data on American consumer arbitration. California Code of Civil Procedure § 1281.96, as amended by SB 707 effective January 1, 2020, requires a private arbitration company involved in a consumer arbitration to publish, quarterly and free, a searchable cumulative report naming the non-consumer party, stating whether the consumer or non-consumer party prevailed, recording “[t]he total number of occasions, if any, the nonconsumer party has previously been a party in an arbitration administered by the private arbitration company”, stating whether the consumer was represented by an attorney and who, and disclosing “[t]he name of the arbitrator, the arbitrator’s total fee for the case, the percentage of the arbitrator’s fee allocated to each party”.

AAA’s own methodology document for the Q2 2026 release says it publishes “pursuant to state statutes such as California Code of Civil Procedure §1281.96, Maryland Commercial Law §§ 14-3901 to 3905, and New Jersey Statutes § 2A:23B-1 et seq.”

Three states. Not Minnesota. More on that in § 8.

2.2 The numbers, with the units stated

We downloaded AAA’s Q2 2026 consumer file (24,522,699 bytes, SHA-256 recorded), filtered it to AAA’s own literal field value Typedispute == 'Consumer', and recomputed it twice with identical output. These are claim-rows, not cases. AAA publishes one row per named non-consumer party per case, and says so in its own legend. The 171,546 consumer claim-rows correspond to 168,433 distinct Case IDs.

Three cautions travel with that table, and we state them before we state anything else.

Withdrawn is not lost. Settled is not lost. Neither is an outcome on the merits, and neither will be treated as one here.

The 664-day figure at the bottom is real and nearly useless. It is the median across every row regardless of how it ended, and two-thirds of those rows were withdrawn. The honest figure for “how long does a consumer arbitration take” is the awarded row: 326 days, just under eleven months.

This file is a handful of mass filings wearing a trench coat. TurboTax accounts for 38,527 consumer claim-rows (22.5%), Uber USA 31,573 (18.4%), and Amazon 37,670 across two name spellings. The ten most-named businesses are 72.3% of all consumer claim-rows, and they hold 93.9% of the 115,328 withdrawn rows. 55% of the entire file was filed in 2020.

2.3 Who prevails, when an arbitrator decides

Split by AAA’s own Initiating Party field:

The 62.6% is the number to use, because it answers the obvious objection before anyone raises it: these are claims the consumer brought, with collection actions stripped out. And “did not prevail” is not “lost” — 11.3% of consumer-initiated awarded rows carry no prevailing-party marking at all, and 2.6% are marked for both sides.

The 81.0% line rests on 399 rows and should be read as the small sample it is. It is also the posture in which a consumer is most likely to encounter arbitration in the first place: as the respondent in a collection proceeding. The Bureau found the same thing in 2010–2012: “Forty percent of the arbitration filings involved a dispute over the amount of debt a consumer allegedly owed to a company, with no additional affirmative claim by either party.”

AAA attaches its own disclaimer to the prevailing-party field, and it belongs here:

“The AAA has not reviewed, investigated, or evaluated the accuracy or completeness of the arbitrator’s/arbitrators’ determination of the ‘prevailing party’ and makes no representations regarding the accuracy or completeness of this information.”

2.4 The independent academic read — including the parts that cut against us

The most credible independent analysis available to us is Andrea Cann Chandrasekher & David Horton, Arbitration Nation: Data from Four Providers, 107 Calif. L. Rev. 1 (2019), an empirical study of “40,775 cases filed in four major arbitration providers between 2010 and 2016.” Its data end in 2016. It is not an advocacy document, and it contradicts consumer-side talking points in places, which is precisely why it is the source to lean on.

What it found on repeat players, in AAA consumer cases: “plaintiffs prevailed in 36% of cases involving one-shot defendants, but just 19% of the time against repeat players (p < 0.01).”

What it found on representation: “Pro se consumers were victorious in 6% of matters, but those with one-shot law firms succeeded in 38% of awards (p < 0.001) and those with repeat-playing firms won 31% of decisions (p < 0.001).”

Overall: “consumers were victorious in 33% of AAA cases and in 21% of JAMS matters”, against a court baseline the authors give as “plaintiffs prevail in 55% to 60% of non-employment-related civil trials in state court and 85% to 89% of matters in small claims court.”

Now the authors’ own caveat, which we adopt rather than bury: “Admittedly, this does not prove that arbitration is less hospitable to plaintiffs than the court system. Because of selection biases, we cannot draw strong inferences about how arbitration and litigation compare from win rates.”

And the finding consumer advocates usually omit: the authors state that “a wave of reforms has made arbitration surprisingly affordable for consumers, employees, and medical patients. Indeed, in leading arbitration providers… a majority of plaintiffs pay no arbitration fees.”

What this shows. The defensible claim is narrower and stronger than the usual one. Filing is cheap. Winning is not. And almost nobody files. If we wrote that arbitration is prohibitively expensive, a hostile reader would find the contrary finding in ten minutes — in a study we ourselves rely on for the repeat-player effect.

2.5 The small-claims answer, tested

Three clauses in four in our dataset preserve small-claims court — 83 of 110 — and every industry brief says so. The Bureau tested it. In 2012, in jurisdictions with a combined population of around 85 million, consumers filed fewer than 870 small-claims credit-card claims against issuers representing about 80% of credit-card loans outstanding. In those same jurisdictions, in the same year, those same issuers filed over 41,000 cases against individuals, “substantially all of which were likely debt collection cases against consumers.”

At least forty-seven company-filed small-claims cases for every one consumer-filed case — the ratio is a floor, because the Bureau gives 41,000 as a minimum and 870 as a maximum. That is the answer to “but your clause preserves small claims court.”

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3. How common

Two datasets, and they measure different things. Read what each is before you read its number.

3.1 Our dataset: 139 documents, captured and quoted

What it is. One hundred thirty-nine consumer agreements that we located, fetched from a U.S. address, hashed, extracted, and verified field by field against a verbatim quotation. 110 contain an arbitration clause. 29 do not. Counted by corporate family rather than by document — four families hold more than one document here — that is 135 companies, 107 of them with a clause.

What it is not. It is not a random sample, not a census, and not a measure of the American consumer contract population. Companies were selected by U.S. consumer reach within each sector, largest first. And these are documents, not companies. Four corporate families hold more than one document in this dataset: PayPal and Venmo carry identical clause text from one drafter; CareCredit is a Synchrony product using Synchrony’s delegation language and Synchrony’s opt-out address; Zelle’s clause is incorporated from JPMorgan Chase’s agreement; and Big Picture Loans is represented by two separate documents. Where this report gives a company figure it says so and counts corporate families — 135 companies against 139 documents. Where it does not say so, the number is documents.

Forums named across the clause-bearing documents: AAA 74, JAMS 27, NAM 17, ADR Services 4, FedArb 3, FINRA 1, other or unstated 4. A clause naming two counts for both.

3.2 The CFPB credit-card scan: 3,264 agreements, every one of them

What it is. The complete 2026 Q2 bulk archive of the CFPB’s credit card agreement database — 1,492,022,880 bytes, SHA-256 recorded, 3,264 agreement PDFs across 561 issuer folders. Text-extracted and regex-scanned twice with byte-identical output. 184 of the 3,264 (5.6%) are scanned images with zero extractable text. Those are unreadable, which is not the same as clause-free, and they are excluded from every share below.

The credit-union number was a prediction before it was a finding, and it held: six percent. Whatever forces put an arbitration clause in two-thirds of bank card agreements are not acting on member-owned cooperatives.

What this scan is not. It describes the 561 issuers CFPB’s 2026 Q2 bulk collection contains. It is not a census of the U.S. card market. Regulation Z requires quarterly submission — 12 C.F.R. § 1026.58(c)(1): “A card issuer must make quarterly submissions to the Bureau, in the form and manner specified by the Bureau. Quarterly submissions must be sent to the Bureau no later than the first business day on or after January 31, April 30, July 31, and October 31 of each year.” The exceptions in the text eCFR published for September 17, 2026 are narrow: an issuer “is not required to submit any credit card agreements to the Bureau if the card issuer had fewer than 10,000 open credit card accounts as of the last business day of the calendar quarter”, § 1026.58(c)(5)(i), and certain small private-label plans, § 1026.58(c)(6)(i). The Bureau’s own database page says it “maintains a database of credit card agreements from hundreds of card issuers”, and adds that issuers “are generally required to post the credit card agreements that they offer to the public on their websites, with limited exceptions.”

And here is a fact we are stating narrowly on purpose. The 2026 Q2 bulk collection contains no agreements filed under the names Capital One, Discover, Citibank, Bank of America, USAA, PenFed, Goldman Sachs Bank, Target or Best Buy. We checked the live per-issuer listing against the bulk archive and found them identical, issuer for issuer, 561 to 561. We do not know why those names are absent and we are not guessing. An absence from one bulk collection does not establish that any issuer failed to submit anything, is out of compliance, or is exempt; an agreement may have been withdrawn under § 1026.58(c)(4) when a product stopped being offered to the public, or filed under a legal entity name our scan did not match. We looked for a documentary answer and did not find one. The open question — whether earlier quarterly archives contain those issuers — is identified in § 11 as the highest-value unfinished work in this project.

What we could do instead is go to the source. On September 18–19, 2026, Capital One published six current card agreements on its own site; we fetched all six. Five of them — its own-brand consumer cards — contain no arbitration clause at all, confirmed by grepping the raw extracted text of each for arbitration terms in English and Spanish and finding zero occurrences. The sixth, “Discover by Capital One”, a legacy Discover-brand product line, does contain one. Discover Bank’s own three published agreements all contain one. So “Capital One has no arbitration clause” is true product by product, not company-wide.

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4. Anatomy of a clause

Every count in this section is over the 110 documents that contain an arbitration clause, as captured September 18–19, 2026, and every category was assigned by reading the quotation, not by trusting a keyword. Where the part of a document that would answer a question was not captured — DoorDash, MoneyLion, OneMain, Ticketmaster and TitleMax — the count says so and does not treat the document as silent. Where the machine flag and the legal effect disagreed, the quotation won.

4.1 Delegation — who decides whether the clause itself is any good

This is the field with the most legal weight and the one a keyword scan gets backwards most often. A delegation to the arbitrator is what keeps a consumer from getting a judge to look at the clause at all.

The single-document rows are counted separately on purpose. Bank of America’s provision reads “All issues are for the arbitrator to decide” except for whether the parties formed an agreement to arbitrate at all, so it is predominantly a delegation to the arbitrator. Equifax’s document allocates only the class-waiver question and is not a delegation clause in either direction.

Teladoc Health states the full-delegation version in one sentence: “All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration agreement.” Discord’s runs longer and reaches further, but it opens with an exception: “Except as explicitly set forth in this Agreement to Arbitrate, the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all Disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these terms, including any claim that all or any part of these terms are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of arbitration provider or arbitrator fees (including the timing of such payments and remedies for nonpayment).” The exceptions are procedural. Either side may ask a court whether a claim is time-barred or belongs in small claims court, and either side may elect to have a court decide whether the informal dispute-resolution procedure was followed, so Discord’s is a delegation with a procedural gate, not the full version.

Reverse delegation is the more interesting finding, because it is the one nobody expects. JPMorgan Chase: “Any disputes regarding whether any Claim is subject to arbitration and/or the scope of this arbitration provision shall be decided by a court, not the arbitrator.” Grubhub: “Notwithstanding the foregoing, issues related to the scope, validity, and enforceability of this Arbitration Agreement are for a court to decide.” American Express does it by definition, carving arbitrability out of the word “Claim”: “Claim means any current or future claim, dispute or controversy relating to your Account(s), this Agreement, or any agreement or relationship you have or had with us, except for the validity, enforceability or scope of the Arbitration provision.”

And there is a seven-document template that splits the baby in a way worth watching. Sallie Mae’s sample promissory note states that disputes “about the validity, enforceability, coverage or scope of this Arbitration Agreement or any part thereof… are for a court and not an arbitrator to decide”, and then, in the next sentence: “Notwithstanding the foregoing, the term ‘Claim’ includes any dispute about the validity or enforceability of this Note, as a whole; any such Claim is for the arbitrator, not a court, to decide.” A judge hears the challenge to the arbitration clause. The arbitrator hears the challenge to the loan.

The caution that must travel with all of this. The Bureau’s 2015 study recorded that “most courts hold that the language on arbitrator authority typically included in arbitration rules promulgated by administrators has the same effect as a delegation clause”, so clauses that merely name the AAA “have the same practical effect as a delegation clause, at least under current court decisions.” Nearly every clause in our dataset names a provider. Read against that, the 32 is a ceiling, not a floor.

4.2 The opt-out

Of the 110 documents that contain an arbitration clause, 51 give any consumer a stated window to leave arbitration. The other 59 are worth itemizing, because the categories are where the design lives.

Riot Games says the quiet part in the document: “Although an opt-out request will allow you to bring Claims in court on an individual basis (subject to the Terms’ venue provisions), the Class Action Waiver will still apply to you to the fullest extent allowed by applicable law.” (Terms last modified December 1, 2024.) Riot’s poison pill is built to match: if the class-arbitration prohibition is invalid, the whole section is void except the class-action waiver, which survives to bind the consumer in court.

eBay’s window opens only for new users, in capital letters: “IF YOU ARE A NEW USER OF OUR SERVICES, YOU CAN CHOOSE TO OPT OUT OF THIS AGREEMENT TO ARBITRATE (“OPT OUT”) BY MAILING US A WRITTEN OPT-OUT NOTICE (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS FROM THE DATE YOU FIRST ACCEPT THIS USER AGREEMENT.“ Etsy and DoorDash do the same in lower case. A customer who already had an account when the clause arrived has no exit.

Citibank’s is a fifth variant: forty-five days from account opening, but “Customers who did not opt out of Arbitration in the CMMA at the time they opened their account are ineligible to opt out of Arbitration for their existing accounts.”

Instacart’s window is thirty days and it is individual by design: “Each account holder must submit their own opt-out. Opt-outs submitted by an attorney on your behalf, or as part of a consolidated, mass, or coordinated submission covering multiple accounts, are not effective.”

Tinder’s thirty-day right is not an opt-out of arbitration. It permits a consumer to decline only the clause’s retroactive application to claims that accrued earlier, and even then the consumer “will still be subject to and bound by any Dispute Resolution Sections and Arbitration Procedures you previously agreed to, including any arbitration provisions, class action waivers, and retroactive application sections.”

For scale, the Bureau’s 2013–14 finding: an opt-out procedure “usually requires the consumer to physically mail a signed written document to the issuer (electronic submission is permitted only rarely), and which may require all authorized users on the account to sign the opt-out request”. No clause in its sample allowed longer than sixty days. The shortest was three days.

4.3 The poison pill, and the newer one

Of the 110 documents that contain an arbitration clause, 37 provide that if the class-action waiver is struck down, the entire arbitration clause is void, and 5 attach that consequence to the batching provision instead. Ordinary narrow severance, under which only the affected claim leaves arbitration, appears in 56; 6 declare the class waiver non-severable without voiding the clause; 4 say nothing on the point; and for 2 (MoneyLion and TitleMax) the arbitration terms were not captured.

Bread Financial/Comenity states the standard version: “if a determination is made that the Class Action Waiver is unenforceable, and that determination is not reversed on appeal, then the Arbitration Provision shall be void in its entirety.” Sezzle and SoFi turn on the same formula; Synchrony and Mariner Finance use recognizably the same sentence.

Royal Caribbean’s U.S. clause runs it backwards, in capitals — its class-action waiver, § 10.b.v, cross-refers to the arbitration clause at § 10.b.iv: “PASSENGER AGREES THAT THIS SECTION SHALL NOT BE SEVERABLE UNDER ANY CIRCUMSTANCES FROM THE ARBITRATION CLAUSE SET FORTH IN SECTION 10.b.iv ABOVE, AND IF FOR ANY REASON THIS CLASS ACTION WAIVER IS UNENFORCEABLE AS TO ANY PARTICULAR CLAIM, THEN AND ONLY THEN SUCH CLAIM SHALL NOT BE SUBJECT TO ARBITRATION.”

Of the 110 documents, 5 attach the same tripwire to the batching provision instead, and it is the drafting pattern in this dataset we found most interesting. eBay, Booking.com, Dave, EarnIn and FanDuel each carry materially identical language:

Dave: “if Section 19.9 entitled ‘Batch Arbitration’ of this Arbitration Agreement is found under the law to be invalid or unenforceable then, in that case, the entire Arbitration Agreement shall be void, and the parties agree that all Disputes will be heard in the state or federal courts located in Los Angeles County, California to the maximum extent permitted by law and, otherwise, in a court of competent jurisdiction.”

EarnIn: “if Subsection 12(i) of this Dispute Resolution Agreement is found under the law to be invalid or unenforceable then, in that case, this entire Dispute Resolution Agreement will be void, and the parties agree that all Disputes will be heard in the state or federal courts located in Santa Clara County, California.”

Booking.com: “if Section A20.9 of this Arbitration Agreement is found under the law to be invalid or unenforceable then, in that case, the entire Arbitration Agreement shall be void, and the parties agree that all Disputes will be heard in the state or federal courts located in New York, New York.”

eBay: “if Section 19.B.7 (‘Batch Arbitration’) of this Agreement to Arbitrate is found under the law to be invalid or unenforceable then, in that case, the entire Agreement to Arbitrate shall be void, and the parties agree that all Disputes will be heard in the state or federal courts located in Salt Lake County, Utah as required in Section 19.C.”

FanDuel: “if Section 15.6.6 (‘Batch Arbitration’) of this Binding Arbitration and Class Action Waiver is found under the law to be invalid or unenforceable then, in that case, the entire Binding Arbitration and Class Action Waiver shall be void, and the parties agree that all disputes will be heard in the state or federal courts located in New York, New York as required in Section 15.9.1.”

The familiar poison pill makes the clause collapse if the class waiver is struck. These five make it collapse if the batching provision is struck. We do not know who drafted it, who copied whom, or why. We know that five companies, naming courts in three states, carry the same paragraph, and that all five designate NAM.

4.4 Who pays

Two separate fields, routinely conflated. They are not the same thing.

What the company promises. Of the 110 documents that contain an arbitration clause: silent: 24; payment conditioned on a request, or on a showing of hardship or excessive cost: 17; an award floor or bonus if the award beats the company’s offer: 11; the company pays or reimburses the filing fee, or fees paid, on the conditions stated: 10; the company pays mass-proceeding fees only: 10; the company pays the arbitration fees: 7; the company pays only if it starts the arbitration: 7; the company pays the arbitration fees unless the claim is found frivolous or improper: 5; the company pays only where the law requires it: 3 (BetterHelp, Sezzle and Shipt); an award floor if the award reaches or exceeds a demand the company refused: 2 (Progressive Leasing and Sallie Mae); good-faith cost-cooperation language: 2 (PayPal and Venmo); the company pays costs and fees if the consumer wins: 2 (Sony and Sunrun); the company may, but need not, pay or reduce the consumer’s share on a showing of hardship: 2 (National Debt Relief and Western Union); an advance the company recovers if it prevails: 1 (Equifax); the company pays the arbitrator and costs unique to arbitration: 1 (Truist Bank); attorney’s fees paid if the award beats the company’s offer: 1 (Sunbit); the terms are in an incorporated document that was not captured: 1 (MoneyLion); the company may elect to pay where the rules or the law require it: 1 (NetCredit); the arbitration agreement itself was not captured: 1 (TitleMax); filing fees plus a capped attorney contribution: 1 (Chewy); no company promise; the arbitrator may award the consumer costs: 1 (Anytime Fitness (archival capture)). American Express, counted with the award floors, also pays the arbitration fees beyond what a court filing would have cost the consumer, and, at the consumer’s written request, promises that it “will consider in good faith making a temporary advance of your share of any arbitration fees, or paying for the reasonable fees of an expert appointed by the arbitrator for good cause.” Chase’s is conditional on winning: “except for claims filed as part of a mass arbitration, if the arbitrator ultimately rules in your favor, you will be entitled to reimbursement by Chase for all fees you paid to the AAA.”

What the consumer’s own share is. Of the 110 documents that contain an arbitration clause, only 4 cap the consumer’s share of all arbitration fees at what filing in court would have cost, and 5 more cap only the filing fee at that level. Another 37 leave the consumer’s share to the provider’s fee schedule or the law, state no cap and promise no payment toward it; 19 of them make a separate promise that the preceding paragraph counts: fees in a mass proceeding (9), fees in an arbitration the company starts (5), or a minimum award or a bonus (5). The rest: the company pays part of the consumer’s share, or pays it on a request, a showing or an outcome, with no cap: 18; silent: 12; the company pays the consumer’s share only on claims up to a stated amount: 11; the company pays or reimburses the filing fee only: 8; the consumer’s share capped at a stated amount or at the provider’s consumer filing fee: 6; the company pays all the arbitration fees: 4 (Endurance Warranty, Experian, Tesla (archival capture) and Verizon); no allocation of arbitration fees; only a term that each side bears its own attorney’s fees: 2 (CareCredit and Coinbase (archival capture)); the terms are in an incorporated document that was not captured: 1 (MoneyLion); the arbitration agreement itself was not captured: 1 (TitleMax); a fee term for mass filings only: 1 (Anytime Fitness (archival capture)). American Express’s cap is the clean version: “You will be responsible for paying your share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees you would have incurred if you had brought a claim in court. We will be responsible for any additional arbitration fees.”

What it costs to lose. Of the 110 documents that contain an arbitration clause, 23 say nothing on it. Another 32 shift fees only on a finding that the consumer’s claim was frivolous or violated Rule 11 standards — a real condition, and a meaningful limit. And 18 import an offer-of-judgment cost shift into arbitration: a consumer who turns down a settlement offer and then recovers less must pay the company’s costs from the date of the offer — whether or not the claim had merit. They are Airbnb, Best Buy, Booking.com, Dave, Discord, Disney+, DoorDash, eBay, Grubhub, Lyft, National Debt Relief, PayPal, Riot Games, Sezzle, Tinder, Truist Bank, Uber and Venmo. Lyft’s is permissive where the others are mandatory. The remaining categories: only a one-way collection or enforcement-cost term outside the dispute-resolution provisions: 6; fee shifting as a court could order it: 6; the provider’s fee rules apply if the claim is found improper: 5; prevailing-party fees: 4 (NetCredit, Sony, Sunrun and U.S. Bank); costs for skipping the pre-filing steps: 4 (Cash App, Electronic Arts, H&R Block (archival capture) and Netflix); the loser pays on a motion to compel: 2 (Klarna and Wells Fargo); the loser reimburses advanced fees: 1 (Discover); prevailing-party costs: 1 (Equifax); the consumer advances half the fees in a mass arbitration: 1 (Synchrony Bank); the company recovers fees if the claim is filed in court: 1 (Affirm); dismissal for skipping the pre-filing steps: 1 (Coinbase (archival capture)); the terms are in an incorporated document that was not captured: 1 (MoneyLion); the part of the document that would answer was not captured: 1 (OneMain); the arbitration agreement itself was not captured: 1 (TitleMax); a prevailing-party shift on a finding of frivolousness: 1 (SimpliSafe); costs for breaching the dispute terms: 1 (Cox (archival capture)).

Truist: “If a party timely serves an offer of judgment under Federal Rule of Civil Procedure 68, and the judgment that the other party finally obtains is not more favorable than the unaccepted offer, then the other party shall pay the costs of the party serving the offer of judgment, including filing fees, incurred after the offer was made;” DoorDash’s terms carry the same sentence. Uber, Disney+ and Discord use the substantive equivalent without naming the rule: “If an offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party shall not recover their post-offer costs and shall pay the offering party’s costs from the time of the offer notwithstanding the withdrawal of the offer.” Grubhub directs the arbitrator to “apply the provisions of Federal Rule of Civil Procedure 68 after the arbitration award is entered.”

The harshest of the 18 are National Debt Relief’s and Tinder’s. National Debt Relief’s agreement directs the arbitrator to “apply the provisions of Federal Rule of Civil Procedure 68 in connection with any award” and then adds its own term: “If the award is issued in your favor and is less than our settlement offer, you must pay our costs incurred after the offer was made, including any attorney’s fees, except that if applicable law prohibits such shifting of costs then the offer in this provision shall serve to cease the accumulation of further costs to which you may otherwise have been entitled.” Tinder’s reads: “If the award is issued in the opposing Party’s favor and is less than the Respondent’s settlement offer or if the award is in the Respondent’s favor, the opposing Party must pay the Respondent’s costs incurred after the offer was made, including any attorney’s fees.” Where the law permits the shift, a consumer who wins can owe the company money.

4.5 The consumer-favorable terms, which are real

Of the 110 documents that contain an arbitration clause, 13 promise the consumer a minimum award or a bonus for doing better in arbitration than the company offered (at Sallie Mae, for winning the relief the company refused; at Progressive Leasing, for winning more than the consumer demanded and the company refused): AT&T at $10,000 (floor); Discover, Progressive Leasing, Sallie Mae and U-Haul at $7,500 (floor); Cox (archival capture) at $5,000 (bonus); American Express, Teladoc and Verizon at $5,000 (floor); Dropbox at $1,000 (bonus); Lyft, Microsoft and OneMain at $1,000 (floor). Discover’s: “then you will be entitled to the amount of the award or $7,500, whichever is greater. If you are entitled to the $7,500, you will receive in addition any arbitration fees or attorneys’ fees and costs awarded by the arbitrator.”

AT&T, Microsoft, U-Haul and Verizon also pay the consumer’s attorney’s fees in that case, American Express’s award includes them, and Sunbit pays reasonable attorney’s fees to a consumer who starts an arbitration and recovers more than it offered. AT&T’s reads: it promises to “pay the attorney you retained, if any, twice the amount of reasonable attorneys’ fees and reimburse any expenses (including expert witness fees and costs) that your attorney reasonably incurs for investigating, preparing, and pursuing your claim in arbitration (the ‘Attorney Premium’).” U-Haul and Sunbit carry versions of the same idea.

What this shows. These are better than what a consumer gets in court on a small claim, and we say so. They also share a feature: most are conditioned on having followed the pre-filing notice procedure exactly. A consumer who misses a step in a Notice of Dispute does not collect the $7,500 floor. Terms that are generous on their face and procedural in their operation are still generous — and their existence proves the industry can write a clause that does not disadvantage the customer when it wants to.

4.6 Secrecy, and what it actually is

Here the popular account overstates. Of the 110 documents that contain an arbitration clause, 18 make the arbitration proceeding itself confidential, 6 more cover the documents exchanged, and 1 (Mariner Finance) the award alone — 25 in all. Citibank, Comcast and U.S. Bank protect account information on request, which is not secrecy. Another 21 limit the effect an award has in other cases, which is not secrecy either. The rest: silent: 47; the pre-filing negotiations confidential: 5; a protective order or a confidentiality agreement to be made: 3 (Nintendo, Tinder and U-Haul); the terms are in an incorporated document that was not captured: 1 (MoneyLion); a reference to confidentiality rules that are not stated: 1 (NetCredit); the part of the document that would answer was not captured: 1 (OneMain); the arbitration agreement itself was not captured: 1 (TitleMax); the mass-arbitration mediation confidential: 1 (Spotify); a ban on reusing evidence in another arbitration: 1 (T-Mobile). AT&T’s provision is about preclusion, not confidentiality: “The arbitrator may consider rulings in other arbitrations involving different customers, but an arbitrator’s ruling will not be binding or have any preclusive effect in proceedings involving different customers.”

The Bureau’s 2013–14 sample pointed the same way: “most arbitration clauses in the sample were silent on confidentiality and did not impose any nondisclosure obligation on the parties.” The share varied by market. “Only two credit card arbitration clauses (3.0% of clauses, covering 7.3% of arbitration-subject credit card loans outstanding) precluded the parties from making disclosures about the arbitration proceeding,” and none of the mobile wireless clauses had a confidentiality provision, but “[t]wo private student loan arbitration clauses (33.3%) and seven checking account arbitration clauses (11.5%, covering 28.0% of arbitration-subject insured deposits) included nondisclosure provisions.”

The defensible point is about the forum, not the clause — and the Bureau made it: “arbitration as a general matter is a private process: Filings are not publicly available and hearings are not open to the public.” That is true of an arbitration whether or not the contract says a word about secrecy. It is why a state disclosure statute is the reason the numbers in § 2.2 and § 2.3 exist at all.

One provision does deserve its own sentence. T-Mobile’s is not confidentiality; it is an evidence-reuse ban, and for anyone trying to build a pattern case it is worse: “Any facts, evidence, documents, or testimony introduced or produced in an arbitration proceeding may be used only in that proceeding and may not be disclosed, introduced, or used in another arbitration proceeding even if it involves the same or similar claims.”

4.7 Shortened deadlines

Of the 110 documents that contain an arbitration clause, 21 state expressly that ordinary limitations periods apply.

Genuinely shortened: one year in 21 — ADT (archival capture), Affirm, Citibank, Comcast, Discord, Earnest, FanDuel, Freedom Debt Relief, MoneyGram, National Debt Relief, Navient, NetCredit, Optum, Planet Fitness, Public Storage, Roblox (archival capture), Royal Caribbean, SeatGeek, Shipt, SimpliSafe and Spotify; two years in 8 — Activision, AT&T, Chewy, Cox (archival capture), Dave, JPMorgan Chase, Midland Credit Management and T-Mobile. The rest: silent: 46; a reporting deadline for statement errors only: 3 (Happen Bank, Truist Bank and U.S. Bank); a named state’s limitations period: 2 (Airbnb and Klarna); the part of the document that would answer was not captured: 2 (OneMain and Ticketmaster); a one-year deadline to give notice: 2 (Anytime Fitness (archival capture) and Grubhub); the terms are in an incorporated document that was not captured: 1 (MoneyLion); a disclosure that forum rules may set time limits: 1 (Robinhood); a shortened period for specified claims only: 1 (Green Dot); the arbitration agreement itself was not captured: 1 (TitleMax); a two-year deadline to give notice: 1 (Netflix).

4.8 Your lawyer

Of the 110 documents that contain an arbitration clause, 6 — BetterHelp, Cinch Home Services, Happen Bank, NetCredit, Shipt and SimpliSafe — expressly permit representation by counsel. The real pattern is individualization: 9 require a separate informal settlement conference for each individual claimant, even when one law firm represents all of them, and 19 more require the consumer personally to participate or sign. The rest: silent: 42; no opt-out by an agent: 10; an authorization before the company shares the account with counsel: 5; no submission by a third party: 4 (Bread Financial/Comenity, Mariner Finance, SoFi and Sunbit); a certification by counsel: 4 (Booking.com, CareCredit, EarnIn and Sezzle); the consumer’s own signature on the demand and a representation or certification by counsel: 3 (Bank of America, Truist Bank and Wells Fargo; of the three, only Truist Bank requires original signatures, not electronic ones); a certification that AI-generated content was personally verified: 2 (PayPal and Venmo); an authorization before sharing the account with counsel, dismissal possible: 1 (JPMorgan Chase); the terms are in an incorporated document that was not captured: 1 (MoneyLion); the part of the document that would answer was not captured: 1 (OneMain); the arbitration agreement itself was not captured: 1 (TitleMax); disclosure of litigation funding: 1 (Amazon); authentication before the account is shared with an attorney: 1 (AT&T).

AT&T and T-Mobile require your authorization before they will discuss your account with your lawyer. AT&T: “To protect your Account, you must provide your authentication and consent before we discuss or share your Account information with anyone other than you, including an attorney (‘Authentication and Consent’).” T-Mobile: “You may be represented by an attorney or other person in that process. However, if you choose to do so, you must also submit a signed written authorization with your Notice of Dispute that allows us to discuss your account with your attorney or other representative.” Chase attaches a consequence, and a cure: the notice must include, “if represented by counsel, a signed statement authorizing us to share information regarding your account and the Claim with them. You agree and understand that failure to provide this information may result in dismissal of your Claim, though you have the right to refile once you provide the information described in the previous sentence.”

4.9 How far the clause reaches

Of the 110 documents that contain an arbitration clause, 90 use a broad scope clause — reaching affiliates or third parties, or surviving termination — and 85 carry a standard small-claims carve-out. Scope, in full: broad, and survives termination: 50; broad, reaching affiliates and third parties: 40; claims between the parties only: 11; survives a sale of the account and binds the buyer: 1 (American Express); names a retailer as a third-party beneficiary: 1 (Barclays); names assignees and collectors as beneficiaries: 1 (Synchrony Bank); a claim definition that reaches dealings with the school: 1 (Sallie Mae); the terms are in an incorporated document that was not captured: 1 (MoneyLion); binds a parent and a minor: 1 (Riot Games); names civil-rights and statutory claims: 1 (Royal Caribbean); the part of the document that would answer was not captured: 1 (OneMain); the arbitration agreement itself was not captured: 1 (TitleMax). Small claims, in full: a standard small-claims carve-out: 85; silent: 18; a carve-out limited to a named venue, to some consumers, or by a prior step: 3; the terms are in an incorporated document that was not captured: 1 (MoneyLion); small claims mentioned, but no carve-out stated: 1 (FanDuel); the part of the document that would answer was not captured: 1 (OneMain); the arbitration agreement itself was not captured: 1 (TitleMax). The interesting rows are individual.

• Barclays names a retailer as an enforcer: “You and we acknowledge and agree that The Gap, Inc. (including its subsidiary brands) is an intended third-party beneficiary of this Arbitration section and may enforce it.”
• Synchrony Bank, in the American Eagle Outfitters co-brand card agreement, extends it to whoever collects the debt: “any assignee, agent, or service provider of ours that collects amounts due on your account are intended beneficiaries of this Arbitration section and may enforce it in full (notwithstanding any state law to the contrary).”
• American Express binds the buyer of the account: the section “will survive termination of your Account, voluntary payment of your Account balance, any legal proceeding to collect a debt, any bankruptcy and any sale of your Account (in the case of a sale, its terms will apply to the buyer of your Account).”
• Sallie Mae sweeps in a non-party. The definition of “Claim” in its sample promissory note reaches “your dealings with the School, the quality of the education the School provides, or any acts or omissions by the School” — a claim against an institution that is not a party to the lender’s paper, routed into the lender’s clause.
• Royal Caribbean names the claims most people would assume are carved out — and its ticket contract (form code R(US)FEB2023) runs two arbitration clauses, so the one being quoted has to be named. For U.S. cruises, § 10.b.iv sends every claim to arbitration before the American Arbitration Association under its Commercial Arbitration Rules — except a claim for personal injury, illness or death — and says so expressly as to any dispute “OTHER THAN A CLAIM FOR PERSONAL INJURY, ILLNESS OR DEATH OF A PASSENGER, WHETHER BASED ON CONTRACT, TORT, STATUTORY, CONSTITUTIONAL OR OTHER LEGAL RIGHTS, INCLUDING BUT NOT LIMITED TO ALLEGED VIOLATION OF CIVIL RIGHTS, DISCRIMINATION, CONSUMER OR PRIVACY LAWS, OR FOR ANY LOSSES, DAMAGES OR EXPENSES,…” Read the structure carefully, because it runs the opposite of what a reader expects: under § 10.b.iv the only claims left in court are the ones for physical injury. Discrimination and consumer-protection claims go to arbitration. A separate clause, § 10.a.iv, governs cruises that are not U.S. cruises and sends those disputes to the International Centre for Dispute Resolution under England and Wales law; its court carve-out is narrower still, reaching only a claim “SOLELY” for personal injury, illness or death.

One clause runs the other way and deserves the credit. Equifax excludes the claims that matter most against a credit bureau: “Any claim, dispute, or controversy in which You contend that EIS violated the FCRA is not subject to this provision and shall not be resolved by arbitration.”

4.10 Mass-arbitration machinery

Every one of the 110 documents that contain an arbitration clause was worked through for mass-filing terms one at a time, rather than pattern-searched — where a document carries them, the section was read. Here is what a number in one of these clauses actually does.

Of the 110 documents in this dataset that contain an arbitration clause, 50 state their own numeric mass-arbitration trigger, and 35 of those 50 set it at 25 — 34 companies, across all 8 sectors we examined.

Of the 35 documents at 25, 33 use it as the trigger for a batching or bellwether procedure; Cox (archival capture) uses it as the point at which filing becomes a breach of the agreement; Sunbit uses it as the minimum size of a group claimants may choose to form. Truist’s bar applies to a law firm that has filed “more than 25” substantially similar demands against Truist within 180 days and seeks to administer or arbitrate them together, so it is counted at 26, not 25. The 35 documents span all 8 sectors we examined — banks, fintech, telecom, gaming, marketplaces, high-cost lending, home services and education/health. They are 34 companies, counting a company as one corporate family, because PayPal and Venmo are one family and both sit at 25. And they are 33 distinct texts of the mass-filing provision: Venmo’s agreement carries PayPal’s text, and Bank of America’s and JPMorgan Chase’s trigger sentences are word for word identical.

Twenty-five is not “the” threshold. Of the 50, 15 set a different number, and the spread runs from Navient, whose contract triggers on “more than one dispute”, to the 5 agreements that require a hundred.

We are reporting a coincidence of numbers and nothing more. This dataset is dates and text. It contains no statement by anyone about why a number was chosen, and we make none.

Every document in the dataset that states a number. Generated from data/thresholds_reviewed_v4.csv.

Airbnb’s definition is both numeric and qualitative: a “Mass Action” arises when “100 or more arbitration claims are filed within 180 days” that involve the same or similarly situated parties, substantially identical questions of law or fact, and “the same or coordinated counsel for the parties…” What Airbnb does with it is unusual — it waives the right to have any dispute resolved as part of a Mass Action, and batches in groups of “no more than 200” if one proceeds anyway.

Roblox’s is the lowest fixed numeral of the 50 — only Navient’s “more than one dispute” sits below it: “the Framework for Mass Arbitration Proceedings ADR-MDL shall apply if five or more demands for arbitration are filed that share common factual or legal issues, and if counsel for the parties submitting those demands are the same or coordinated.” What five demands trigger is not a fee penalty, not a bar and not a change of forum. Roblox’s terms already send every arbitration to FedArb “in accordance with FedArb’s Expedited Arbitration Rules and (if applicable) Framework for Mass Arbitration Proceedings ADR-MDL” — so five demands move the case into FedArb’s consolidated, multi-district-style framework without moving it to another provider. Klarna’s number works the same way; its terms also name FedArb for every arbitration. Only Activision’s number changes the forum: at 20 demands, a mass arbitration “shall not be governed by JAMS Rules or administered by JAMS” and goes to FedArb instead. (Roblox’s capture is an archival snapshot of terms stating an effective date of May 19, 2026, not a live capture.)

Amazon’s clause dated August 14, 2026 defines the term this way: “If 25 or more demands for arbitration are filed within six months relating to the same or similar subject matter and sharing common issues of law or fact, and counsel for the parties submitting the demands are the same or coordinated in any fashion, you and we agree that this will constitute a ‘Mass Arbitration.’” Batches of at least 25; at least 100 above 500 demands; at least 500 above 2,500 demands. It also requires each side to disclose “all relationships with third-party litigation funders related to the Mass Arbitration and copies of all applicable litigation funding agreements…”

Ticketmaster and Live Nation’s Terms of Use, effective August 12, 2025, set a threshold of 75 or more similar demands, charge a $250 consumer filing fee capped in the aggregate at $2,500, and require a pre-filing teleconference within 60 days before a consumer may go even to small claims court. Most small-claims carve-outs in this dataset are unconditional. That one is not. Its 75 is one of three numbers in the 50 that fix a threshold and then leave the whole procedure to the provider; Roblox’s 5 and Klarna’s 20 are the others. (The Ticketmaster clause text comes from a browser-rendered partial capture, not a hashed raw capture — see § 11.)

Some of these sentences are not merely the same number. They are the same sentence.

Bank of America and JPMorgan Chase, word for word: a mass arbitration is one involving “twenty-five (25) or more arbitration claims involving the same or similar subject matter and/or issues of law or fact, and where representation of all claimants is the same or coordinated across the cases.”

Booking.com and Dave, materially identical: “in the event that there are twenty-five (25) or more individual Demands of a substantially similar nature filed against [the company] by or with the assistance of the same law firm, group of law firms, or organizations (‘Claimants’ Counsel’), within a reasonably [approximate / proximate] period of time, for example, a ninety (90) day period” — the only difference in that clause being the word approximate against proximate.

eBay, FanDuel and EarnIn carry the same formula with the number in numerals: “in the event that there are 25 or more individual Demands of a substantially similar nature filed against [the company] by or with the assistance of the same law firm, group of law firms, or organizations…”

Chewy and Grubhub, materially identical at a hundred: “in the event 100 or more similar [individual] arbitration demands presented by or with the assistance or coordination of the same law firm or organization are submitted to AAA or another arbitration provider (if AAA is unavailable) against [the company]…”

PayPal and Best Buy: “If 25 or more similar Disputes (including yours) are asserted against [the company] by the same or coordinated counsel…” PayPal’s agreement adds “or are otherwise coordinated…” Venmo’s user agreement carries PayPal’s text in full — one drafter, two products, not two data points.

We say that the language is materially identical, we quote it, and we stop. Who drafted first, who copied whom, and why are not in this record.

Four things the table does not show.

Electronic Arts sets the only trigger in the dataset that fires without a shared-counsel condition. Fifty similar demands filed within a 30-day period trigger its grouping however they arise — no law firm need be involved. (Sunbit’s group provision has no counsel condition either, but it is elective: claimants may choose to form a group, rather than the company’s procedure engaging on its own.)

Four agreements end mass arbitration by taking arbitration away. Best Buy, Netflix, Nintendo and Riot Games run bellwethers and mediation and then take the remaining claimants out of arbitration. Netflix’s and Riot’s release them to Los Angeles County; Best Buy’s send them to “a court of competent jurisdiction consistent with the remainder of the Terms.” Nintendo’s release is not automatic. If 100 or more claims remain after a second bellwether round and a second mediation, “any party to the remaining Mass Arbitrations may elect to no longer have the arbitration requirement in this Section 7 apply” to them, and the released claims go to the state and federal courts in King County, Washington. Netflix, Riot Games and Nintendo permit limited class treatment among the released claimants; no other mass-arbitration procedure in this dataset does.

Volume gates hide inside triggers. Best Buy’s trigger is 25, but until 100 disputes exist every one of them proceeds individually in its first stage. Public Storage’s is 25, but its first stage needs 150.

Airbnb batches sequentially rather than concurrently — one batch at a time, the rest held in abeyance, and a claimant not reached within two years may elect to go to court.

And the deposit agreements of Bank of America and JPMorgan Chase describe the same gatekeeper in the same words:

Bank of America: “You and the Bank agree that before an arbitrator is assigned to determine the merit of your Claim, a ‘Process Arbitrator’ will be appointed. The Process Arbitrator will have the authority to ensure these Mass Arbitration Procedures and the AAA rules are followed… In short, each party will receive a list of proposed Process Arbitrators provided by the AAA and will meet and confer to identify a mutually-agreeable candidate.”

JPMorgan Chase: “You and Chase agree that before an arbitrator is assigned to determine the merit of your claim, a ‘Process Arbitrator’ will be appointed. The Process Arbitrator will have the authority to ensure these Mass Arbitration Procedures and the AAA rules are followed… In short, each Party will receive a list of proposed Process Arbitrators provided by the AAA and will meet and confer to identify a mutually-agreeable candidate.”

Two full sentences and the “In short” sentence are identical but for the party name and the rule citation. Bank of America caps each merits arbitrator at five cases; Chase at three. We make no claim about coordination between them and have no evidence of any. We are reporting that the paragraphs match.

4.11 Changing the deal

Of the 110 documents that contain an arbitration clause, 102 contain a provision on how the terms may be changed: continued use is acceptance: 40; a right to reject each amendment: 12; notice, then continued use is acceptance: 11; changes bind the consumer only if the consumer agrees to them: 11; effective on posting or without notice: 9; a right to change with no mechanism stated: 4; supersedes a prior arbitration agreement unless rejected: 4; a new clause that governs earlier claims: 3 (eBay, PayPal and Venmo); change by notice, with no right to reject: 3 (Disney+, Green Dot and Target); a fresh opt-out for substantive arbitration changes only: 1 (PNC Bank (archival capture)); a no-change sentence beside a change procedure: 1 (Truist Bank); a rejection right required for material adverse amendments: 1 (College Ave (archival capture)); a change only in a writing signed by a company officer: 1 (Royal Caribbean); no less favorable change after a dispute arises: 1 (Netflix). Of the rest, 6 say nothing on the point, and for 2 (DoorDash and TitleMax) the terms were not captured. One category has a particularly sharp edge — retroactive supersession, where a new clause reaches backward over disputes that already exist.

PayPal: “this Arbitration Agreement replaces and supersedes any prior Agreement to Arbitrate you had with PayPal and will govern and apply to all Disputes, including all Disputes that arose before the effective date of this Arbitration Agreement. If you do not wish to have this Arbitration Agreement apply to you and your Disputes, then you must close your PayPal account prior to the effective date.”

Klarna: if the consumer does not reject the new provision, claims under a prior agreement “will be governed by this Arbitration Provision instead, unless you served notice of your claims on Klarna or initiated a lawsuit or arbitration against Klarna asserting your claims prior to the effective date of publication above.” Sezzle carries the same structure.

A consumer who already has a live grievance, and who does nothing, is moved into the new clause by operation of a document she did not read announcing a change she did not agree to.

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5. The playbook

Everything in this section comes from a court record or an agency document. Each entry states what the document says, then what happened next. Our commentary is in the marked block at the end, and nowhere else.

5.1 Compelling arbitration of claims the company’s own conduct created

Mitchell v. Wells Fargo Bank, 280 F. Supp. 3d 1261 (D. Utah Nov. 29, 2017) (Waddoups, J.).

Sixty-seven plaintiffs sued Wells Fargo over unauthorized accounts. “Wells Fargo has moved to compel all but two of the Plaintiffs to arbitrate their claims pursuant to arbitration agreements embedded in the Plaintiffs’ authorized account agreements or other agreements.”

The court’s background section recites the scale from the public record: a September 2016 consent order carrying penalties of $185 million, and an independent review going back to 2011 that “identified approximately 2.1 million potentially unauthorized consumer and small business accounts, including 623,000 consumer and small business unsecured credit card accounts.”

The consumers’ position, as the court recorded it: “Invariably though, Plaintiffs allege they never agreed to an arbitration agreement or delegation clause, and never would have agreed to an arbitration agreement or delegation clause if they had been informed of Wells Fargo’s misconduct.”

The delegation language quoted in the opinion is one sentence long: “If this Arbitration Agreement is in dispute, the arbitrator will decide whether it is enforceable.”

Outcome. The court did not compel. It reserved ruling, finding that “[m]aterial questions of fact preclude the court from finding, as a matter law [sic],” that agreements to arbitrate or to delegate had been formed, or that Wells Fargo had not waived arbitration — and held that “the court must proceed to a summary trial under the Federal Arbitration Act”. The disposition after that summary trial is not known to us; we did not trace the docket past the same court’s later published opinion, Mitchell v. Wells Fargo Bank, 355 F. Supp. 3d 1136 (D. Utah Dec. 21, 2018), which resolved motions under Rule 12 and does not report the outcome of the ordered summary trial. We do not assert how it came out.

What this shows. The threshold question — did this customer ever agree to arbitrate? — is a real question when the alleged misconduct is opening accounts the customer never authorized. It took a federal judge, a fully briefed motion, and an order for a trial to get that question in front of a court at all.

5.2 “Infinite” clauses — reaching affiliates, non-parties, and past events

Revitch v. DIRECTV, LLC, 977 F.3d 713 (9th Cir. Sept. 30, 2020).

Revitch had a wireless contract with AT&T Mobility whose arbitration clause reached AT&T Mobility’s “affiliates.” Years later AT&T, Inc. acquired DIRECTV. DIRECTV then invoked Revitch’s wireless contract against his telephone-consumer-protection claim about calls DIRECTV made to his phone.

The panel affirmed the denial of the motion to compel, holding under California law that no agreement to arbitrate existed between Revitch and DIRECTV:

“Here, absurd results follow from DIRECTV’s preferred interpretation: Under this reading, Revitch would be forced to arbitrate any dispute with any corporate entity that happens to be acquired by AT&T, Inc., even if neither the entity nor the dispute has anything to do with providing wireless services to Revitch—and even if the entity becomes an affiliate years or even decades in the future.”

Quoting the Eastern District of New York on similar facts, the panel added that “no reasonable person would think that checking a box accepting the ‘terms and conditions’ necessary to obtain cell phone service would obligate them [sic] to arbitrate literally every possible dispute he or she might have with the service provider, let alone all of the affiliates under AT&T Inc.’s corporate umbrella—including those who provide services unrelated to cell phone coverage.”

The panel also reported that it was splitting with the Fourth Circuit, which had reached the opposite conclusion on “an arbitration clause identical to that signed by Revitch”. That case is Mey v. DIRECTV, LLC, 971 F.3d 284 (4th Cir. 2020); we did not retrieve it and describe it only as the Revitch panel described it.

Parm v. Bluestem Brands, Inc., 898 F.3d 869 (8th Cir. Aug. 7, 2018) (Shepherd, J.).

This is the Eighth Circuit’s answer, in a case from Minnesota, and it goes the other way. Bluestem Brands operates Fingerhut. “Parm filed her class action complaint in the United States District Court for the District of Minnesota”, and the consolidated cases proceeded there. The clauses are textbook infinite language: “Any claim, dispute or controversy, (whether in contract, regulatory, tort or otherwise, whether pre-existing, present or future and including constitutional, statutory, common law, intentional tort and equitable claims) arising from or relating to the credit offered or provided to you; the actions of yourself, us or third parties; or the validity of this Arbitration provision (individually and collectively, a ‘Claim’), must, after an election by you or us, be resolved by binding arbitration.”

The consumers argued the reach was absurd. The Eighth Circuit rejected the argument as a matter of method:

“The glaring issue with these hypotheticals is that they in no way inform the question before the court because we must ‘look … to the underlying factual allegations and determine whether they fall within the scope of the arbitration clause.’ … True, such an outcome would be bizarre, but we cannot comment one way or the other about whether the claims would be arbitrable without knowing the facts supporting each of the above illustrations.”

Disposition. The Eighth Circuit held that “[t]he district court erred in deciding that these three groups of claims did not fall within the scope of the arbitration agreements”, and “reverse[d] the district court and remand[ed] for further proceedings consistent with this opinion.” The opinion records no result on remand, and we did not trace the docket past it.

Piccolo v. Great Irish Pubs Florida, Inc. & Walt Disney Parks and Resorts U.S., Inc., No. 2024-CA-001616-O (Fla. Cir. Ct., Orange Cnty.).

On May 31, 2024, Walt Disney Parks and Resorts U.S., Inc. filed a motion to compel arbitration of a wrongful-death claim. The motion states: “In November 2019, Piccolo initially created a Disney account through the Disney+ website”. The clause quoted in the motion reads:

“You and Disney DTC agree to arbitrate, as provided below, all disputes between you (including any related disputes involving The Walt Disney Company or its affiliates), that are not resolved informally… ‘Dispute’ includes any dispute, action, or other controversy, whether based on past, present, or future events, between you and us concerning the Disney Services or this Agreement, whether in contract, tort, warranty, statute, regulation, or other legal or equitable basis.”

The motion also quotes park terms binding non-signatories: “[b]y using the Site/App or by clicking a box that states that you accept or agree to the My Disney Experience Terms and Conditions, you signify your agreement to these Terms for yourself and for all persons (including minors) for whom you are purchasing or otherwise securing benefits”.

Outcome. Disney withdrew the motion. Josh D’Amaro, chairman of Disney Experiences, said in a statement reported by NPR on August 14, 2024, that “[a]t Disney, we strive to put humanity above all other considerations,” and that “[w]ith such unique circumstances as the ones in this case, we believe this situation warrants a sensitive approach to expedite a resolution for the family who have experienced such a painful loss.” No court ruled on the motion. Our copy of the filed motion is one hosted by a news organization, not a clerk’s copy, and we have not obtained the filed notice of withdrawal.

Young v. Experian Information Solutions, Inc., 119 F.4th 314 (3d Cir. Oct. 17, 2024).

The opinion opens: “After being denied a mortgage loan because of an erroneous credit report prepared by Experian Information Solutions, Inc. (‘Experian’), Meghan Young sued Experian for violations of the Fair Credit Reporting Act. In response, Experian filed a motion to compel arbitration based on a later-signed agreement that Young had with CreditWorks, an Experian affiliate.”

The court found the report false on its face — Experian reported foreclosure proceedings begun in March 2023 on a home loan Young had paid in full in June 2021: “Because Young was not in foreclosure proceedings, and her mortgage was paid off, the Experian report was false.” Then: “Whether as a matter of coincidence or in response to Experian’s false credit report, in April 2023, Young enrolled in a credit monitoring service called CreditWorks, which, as it turns out, is related to Experian.”

The clause quoted in the opinion reaches FCRA claims by name and reaches backward in time — it covers “claims arising out of or relating to any aspect of the relationship between [ECS and Young,]” including those brought under the Fair Credit Reporting Act, and “claims that arose before this or any prior Agreement … and … that may arise after the termination of this Agreement.”

Outcome. The Third Circuit vacated the order denying the motion to compel and remanded, holding that pre-arbitration discovery is not required where the existence and validity of the arbitration agreement are not at issue and arbitrability is itself delegated. That is a loss for the consumer at that stage. The eventual merits disposition is not known to us.

What this shows. A consumer injured by an inaccurate credit report does the obvious thing — signs up to monitor her file — and is met with an arbitration clause from the bureau’s own affiliate reaching “claims that arose before this or any prior Agreement”. And note what the Eighth Circuit said in Parm, which is the law of the federal circuit that includes Minnesota: whether a clause reaches an absurd dispute is a question a court will not answer in the abstract. The good case, Revitch, is Ninth Circuit law applying California contract law. Persuasive here. Not controlling.

5.3 Declining to fund the forum you chose

Abernathy v. DoorDash, Inc., Nos. C 19-07545 WHA & C 19-07646 WHA (N.D. Cal. Feb. 10, 2020) (Alsup, J.) — Order Re Motion to Compel Arbitration, Motion to Stay Proceedings, and Motion to Seal, read from the court’s own docket.

This is a worker-classification case, not a consumer case. The petitioners are couriers, not customers. We include it because the mechanism is identical and because it is the best-documented instance we found.

“Petitioners are 5,879 couriers who work for respondent, DoorDash, Inc.”, each of whom “allegedly each clicked through a contract that contained a ‘Mutual Arbitration Provision’”. Then: “Petitioner couriers paid over $1.2 million in filing fees.”

“On October 28, respondent’s counsel emailed AAA and petitioners’ counsel stating they had ‘determined that there are significant deficiencies with the claimants’ filings,’ and that ‘Doordash is under no obligation to, and will not at this time, tender to AAA the nearly $12 million in administrative fees.’ On November 8, AAA emailed the parties and stated, ‘Respondent has failed to submit the previous requested fees for the 6,250 individual matters; accordingly, we have administratively closed our files’…”

Judge Alsup’s conclusion is the most-quoted passage in this area of law:

“For decades, the employer-side bar and their employer clients have forced arbitration clauses upon workers, thus taking away their right to go to court, and forced class-action waivers upon them too, thus taking away their ability to join collectively to vindicate common rights… The irony, in this case, is that the workers wish to enforce the very provisions forced on them by seeking, even if by the thousands, individual arbitrations, the remnant of procedural rights left to them. The employer here, DoorDash, faced with having to actually honor its side of the bargain, now blanches at the cost of the filing fees it agreed to pay in the arbitration clause. No doubt, DoorDash never expected that so many would actually seek arbitration. Instead, in irony upon irony, DoorDash now wishes to resort to a class-wide lawsuit, the very device it denied to the workers, to avoid its duty to arbitrate. This hypocrisy will not be blessed, at least by this order.”

Three corrections to the popular account, all of which matter. First, the order did not order DoorDash to pay AAA’s fees. It ordered DoorDash to arbitrate, and denied the petitioners’ separate request for statutory fees and costs as non-retroactive. Second, 869 of the 5,879 claimants lost, because their witness statements did not supply “the identifying information he or she used to register with DoorDash” or “at least referenc[e] in an ascertainable way the specific arbitration he or she clicked through.” Third, the order imposed a reciprocal condition on claimants’ counsel: if counsel “has overstated its authority, or for any procedural reason, petitioners have not perfected their right to arbitrate,” counsel must “fully reimburse DoorDash for all arbitration fees and attorney’s fees and expenses” DoorDash incurred. Mass arbitration is not a free option for the claimant side either.

And the law has moved against the theory since. In Wallrich v. Samsung Electronics America, Inc., 106 F.4th 609 (7th Cir. 2024), the Seventh Circuit reversed an order compelling Samsung to pay AAA fees. In Frazier v. X Corp., No. 24-1948 (2d Cir. Sept. 2, 2025) — an employment case about former Twitter employees, with no connection to any consumer terms discussed in this report — the Second Circuit held that “once the parties are before their chosen arbitral body, failure or refusal to pay fees alone is not a ‘failure, neglect, or refusal . . . to arbitrate’ that a district court is empowered to address under 9 U.S.C. § 4.” (No reporter citation had issued for that decision as of September 25, 2026; as of that date the docket number, court and date were the complete citation.)

Any account of fee refusal that stops at Abernathy, decided in 2020, leaves out Wallrich (2024) and Frazier (2025).

One more thing the forum itself does, as of its Q2 2026 statistics. AAA’s Q2 2026 statistics document defines a reported field: “Mass Arbitration Filings That Did Not Proceed - The number of cases filed under the Consumer or Employment Mass Arbitration Supplementary Rules that do not proceed with administration beyond the Initiation stage.” The provider keeps a public count of mass filings that die at initiation. That field exists because the phenomenon does.

5.4 Building the protocol with the provider

The same Abernathy order denied a motion to seal, over objection, and the unsealed material is a documented account of a defense firm and an arbitration provider building a mass-arbitration protocol together. From the order:

“[T]he emails track the following events: in May 2019, Gibson Dunn reached out to CPR [the International Institute for Conflict Prevention & Resolution] to discuss issues DoorDash was having with filing fees for mass arbitrations, and to find a solution to prevent ‘an abuse of process.’ In October 2019, CPR provided Gibson Dunn with a draft of a mass arbitration protocol for discussion. A week later, CPR provided Gibson Dunn with another draft of the protocol based on their discussion. Gibson Dunn ‘interlineated comments, questions, and recommendations’ in the new draft. CPR and Gibson Dunn traded additional drafts and revisions in the following weeks. On November 4, CPR notified Gibson Dunn that it had posted the finalized new protocol and asked to be notified when the new DoorDash contracts providing for arbitration under CPR were distributed.”

And the court’s reason for unsealing it:

“The district court should not be a party to concealing this information from the public, especially as it concerns an arbitration organization that holds itself out to the public as impartial. These documents would be useful to the public in evaluating the true extent to which the organization is impartial. The motion to seal is accordingly DENIED.”

The order separately records that DoorDash had begun requiring couriers “to click through a new agreement that required arbitration with the International Institute for Conflict Prevention & Resolution (CPR), instead of AAA”, and that at the hearing DoorDash represented couriers could opt out of the new agreement and continue to arbitrate under AAA.

5.5 Adding arbitration by mail

Badie v. Bank of America, 67 Cal. App. 4th 779 (Cal. Ct. App. Nov. 3, 1998).

Starting in June 1992 and for a period of several months thereafter, the Bank mailed half-page inserts to its personal credit card and deposit account customers, informing them, in the court’s words, that “from that time forward, any dispute between a customer and the Bank regarding customer accounts would be resolved either ‘by arbitration or by reference’ if either the Bank or customer so requested.” The notice ended: “(This is a new provision for Cardmember and Apollo Account Agreements. If you continue to use your account, this new provision will apply to all past and future transactions.)”

“It is undisputed that the account agreements were contracts of adhesion.” The change-of-terms clause the bank relied on read, in full: “We may change any term, condition, service or feature of your Account at any time. We will provide you with notice of the change to the extent required by law.” And the court’s key structural observation: “Importantly, no ‘term, condition, service, or feature’ in the original credit account agreement addressed the method or forum for resolving legal claims related to customer accounts.”

The holdings worth quoting:

“The Bank’s interpretation of how broadly it may exercise that right, with no limitation on the substantive nature of the changes it may make as long as it complies with the de minimis procedural requirement of ‘notice,’ virtually eliminates the good faith and fair dealing requirement from the Bank’s relationship with its credit account customers”.

“permitting the Bank to exercise its unilateral rights under the change of terms provision, without any limitation on the substantive nature of the change permitted, would open the door to a claim that the agreements are illusory.”

The language of the insert, and the method used to disseminate it, “suggests that it was designed to downplay the true significance of the Bank’s ADR program, and to reduce the likelihood that customers would notice and object to the new provision.”

Disposition: the judgment for the bank on the validity and enforceability of the ADR clause was reversed; that clause “is not a part of the Bank’s contract with the four individual plaintiffs here and may not be enforced against them.”

What this shows. Badie is the leading authority limiting this practice. It is a California intermediate appellate decision from 1998. The fact that it was still the leading authority in 2026, twenty-eight years later, tells you the practice was not generally stopped — and § 4.11 of this report shows the modern version, which no longer needs an envelope.

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6. How the clauses changed

Dated snapshots of the same documents, at 2016, 2019, 2021, 2023 and 2025 and in the live captures of September 18–19, 2026, across 46 companies and 169 usable snapshots. Every number in this section is a keyword indicator over the documents this project captured. It is not a census of American consumer contracts, and it is not evidence about any company’s reasons.

6.1 The mass-filing curve

Nothing in 2016. Nothing in 2019. Half the documents in the September 2026 live captures — and, as § 4.10 shows, where those terms set a number it is usually the same number. Dated first appearances we checked against the snapshot text include JPMorgan Chase (absent 2023-07-14, present 2024-12-19), Microsoft (absent 2021-07-01, present 2023-07-01), Spotify, Chewy, Etsy, Comcast/Xfinity and Klarna.

This dataset contains dates and text. It contains no motive, and correlation across 46 companies is not causation as to any one of them. With that said and meant: the curve sits alongside two other dated facts already in this report — California’s disclosure and fee-nonpayment statutes took effect January 1, 2020, and the CPR/Gibson Dunn protocol drafting recorded in the Abernathy order ran May through November 2019. We report the dates. We draw no line between them.

6.2 Companies that added a clause

Netflix — absent from the 2019-07-01 snapshot, present in the 2021-07-01 snapshot of the same URL: “YOU AGREE TO THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER DESCRIBED IN SECTION 7 TO RESOLVE ANY DISPUTES WITH NETFLIX…”

Intuit (TurboTax / QuickBooks / Credit Karma general terms) — absent 2019-11-01, present 2021-07-01: “ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THIS WEBSITE WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT…”

X Corp. is the one to watch. X’s U.S. terms in effect when we captured them on September 19, 2026 — the version dated “Effective: April 10, 2026” and labelled on the page, when we captured it, “Effective until October 9, 2026” — contain no arbitration provision. X posted its next version in advance, on the same page, with the statement that it “will go into effect on October 9, 2026” and that “Until then, the current Terms of Service continue to apply.” That version adds an arbitration provision, and it is conditional: disputes go to court in Texas, “except that if the forum selection clause in these Terms is unenforceable for any reason, then the dispute will be arbitrated.” The operative provision sends such a dispute to AAA arbitration “before an arbitrator who shall be a retired federal district or appellate court judge”, in Tarrant County, Texas, where “the arbitrator shall be prohibited from granting injunctive relief”, “the parties waive any right to appeal the award to the maximum extent permitted by law”, and, “[e]xcept as required by law, the arbitration shall be confidential and neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties.” The same block extends the choice-of-law, forum-selection and arbitration provisions to X’s U.S. corporate affiliates, “including but not limited to any U.S. SpaceXAI, Cursor, or SpaceX entities, who are intended third-party beneficiaries of this paragraph and who also consent to jurisdiction and venue in the courts specified in this section and to the arbitration provision in this section.” We captured the page on September 19, 2026 and again on September 25, 2026; its text was identical on both dates.

6.3 Companies that removed one

Amazon. The full sequence, from dated archival snapshots of Amazon’s own Conditions of Use page:

Amazon moved the page to a new address mid-2025; the sequence above spans both. The clause Amazon removed named the AAA. The clause it added names JAMS. That is a fact about two documents, not a forum switch, and not a statement about why either thing happened.

The clause dated August 14, 2026 is unambiguous about what it covers: “YOU AND WE AGREE THAT ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF ANY AMAZON SERVICE, OR TO ANY PRODUCTS OR SERVICES SOLD OR DISTRIBUTED BY AMAZON OR THROUGH AMAZON.COM, WILL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT.” Three exceptions follow: qualifying small-claims actions, intellectual-property injunctions, and — notably — “all disputes about whether you or we complied with the pre-arbitration dispute resolution procedure set forth below (which is a condition precedent to filing arbitration) must be decided by a court and not by an arbitrator.” Everything else is arbitrated: “All other disputes, claims, and requests for relief must be arbitrated, regardless of when they arose, which means you and we are each waiving our right to sue in court and have a judge or jury trial.”

One detail in the removed clause is worth noting as a matter of contract design: the 2018 version contained a company-pays promise — “We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.” That is the feature that makes a high-volume individual filing economical for a claimant.

Valve. From dated snapshots of the Steam Subscriber Agreement:

Valve removed the arbitration agreement and the class-action waiver in the version dated September 26, 2024. The version that contained them was still posted two days earlier.

Even with the clause gone, the modification architecture remains. The Steam agreement dated September 10, 2026 provides: “[Y]ou will be notified by e-mail of any amendment to this Agreement made by Valve at least 30 (30) days before the effective date of the amendment… Your failure to cancel your Account prior to the effective date of the amendment will constitute your acceptance of the amended terms.” (sic — “30 (30)” appears in the original.)

6.4 Forum switches

Each of the following is bounded by two dated snapshots and checked against the present-day verified extraction. None is pinned to a day.

• Chewy: JAMS → AAA. A switch away from JAMS; the other switches below all run the other way.
• Spotify, eBay, Dave and EarnIn: AAA → NAM.
• Venmo, PayPal and AT&T: AAA → JAMS.
• Klarna: AAA → FedArb. The June 29, 2021 snapshot names the AAA. By the May 9, 2023 snapshot, and in the terms we captured, the arbitration “will be conducted by FedArb under its rules and procedures”, and a mass arbitration adds “FedArb’s Framework for Mass Arbitration Proceedings ADR-MDL”.

Three more are leads we will not publish as findings until we read them in full: in earlier snapshots, Bank of America, JPMorgan Chase and U.S. Bank each appear to have offered the consumer a choice of administrator — language requiring the consumer to “select JAMS or the American Arbitration Association” — and the later snapshots appear to name AAA alone. If that holds on a full read, the story is not a changed forum. It is a removed choice. We say what it is: a lead we have not verified.

6.5 Ticketmaster, stated the only way the record supports

In Heckman v. Live Nation Entertainment, Inc., 120 F.4th 670 (9th Cir. 2024), the Ninth Circuit affirmed the denial of a motion to compel, holding the delegation clause and the agreement as a whole unconscionable under California law. The panel adopted the district court’s holding — “We agree” — that “four features of New Era’s Rules support a finding of substantive unconscionability of the delegation clause: (1) the mass arbitration protocol, including the application of precedent from the bellwether decisions to other claimants; (2) procedural limitations, such as the lack of a right to discovery; (3) the limited right of appeal; and (4) the arbitrator selection provisions.” That is Ninth Circuit law applying California law; in Minnesota it is persuasive only.

The Terms of Use in effect when we captured them on September 19, 2026, dated August 12, 2025, designate JAMS and contain no occurrence of “New Era”. The document states that it does not reach disputes “already filed and currently pending as of August 12, 2025.” The date on which New Era was replaced is not in our record — it is bounded only by the Heckman record and August 12, 2025, and we will not put a date on it.

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7. Proof it is a choice

Twenty-nine of the 139 documents we captured contain no arbitration clause — twenty-eight companies, counting a company as one corporate family. That is the section of this report the industry’s own trade argument cannot survive: if an arbitration clause were a commercial necessity, the companies below would have one.

The clean findings — a consumer-facing agreement, captured, containing no arbitration provision:

A contract of carriage is the operative consumer contract for an airline ticket, which makes those two rows stronger evidence than a website’s terms of use. The health-system and university rows are the weakest, for the reason the University of Phoenix entry below makes explicit: a website’s terms of use are not the agreement a patient signs at intake or a student signs at enrollment.

Precisely described, because the document is narrower than the company:

• MOHELA — the loan servicer’s website Terms of Use, not a loan agreement. No arbitration clause. (Separately: in letters dated November 2024 and February 2025, Senators Warren, Blumenthal and Duckworth (joined in November by Senator Van Hollen) wrote to MOHELA about those same website Terms of Use, which they described as predatory and exploitative. Among their objections was the $100 liability cap; neither letter mentions arbitration. That is a report of what senators said; this firm adopts no characterization of MOHELA.)
• University of Phoenix — its own published sample California enrollment agreement, a form the document says the State of California requires. It contains no dispute-resolution provision of any kind: no arbitration clause, no class waiver, no jury waiver, no forum-selection clause, no governing-law clause. It tells us nothing about what the university requires of students outside California.
• TikTok — the U.S. terms of service of the TikTok USDS Joint Venture, as of September 2026. The one occurrence of “arbitration” is inside an indemnification clause. The document instead imposes a mandatory 60-day informal dispute-resolution process and an “Exclusive venue” section choosing California law and a court.
• Xcel Energy — the HomeSmart Repair Plan Terms and Conditions, an opt-in appliance-repair add-on, expressly not the regulated utility service. Its two arbitration mentions are in a hold-harmless clause.
• Google — does not require arbitration for YouTube Premium, YouTube Music Premium, YouTube Premium Lite or YouTube TV; the general terms send disputes to court in Santa Clara County, California. It does require binding individual arbitration before the AAA, with a class-action waiver, for exactly one product: NFL Sunday Ticket, whose terms reach “the National Football League, NFL Enterprises LLC, and their subsidiaries, affiliates, parent compan[ies]” as well as Google.
• X Corp. — the U.S. terms in force on the September 19, 2026 capture date contain no arbitration provision; the version X posted to go into effect October 9, 2026 adds a conditional one. See § 6.2.
• Big Picture Loans — the website terms contain no arbitration clause. The document itself states the loan is governed by “Tribal law, applicable federal law and your loan agreement”, which is not published, and the company posts a separate Tribal Dispute Resolution Procedure. A tribal forum regime is not the absence of a dispute-resolution regime, and we do not report this as a clause-free loan.
• TransUnion — recorded as no-clause, from a July 2026 archival snapshot of a page whose own footer reads “Revised as of March 11, 2019.” This is the weakest item in the set. We report the label and the date together or not at all.

Five documents in the no-clause column should not be counted as proof of anything. Jefferson Capital’s capture is the corporate marketing site’s Website Terms of Use — sections on security, cookies and site use — not a consumer agreement; its consumer portal could not be reached. World Finance’s is website terms for loansbyworld.com, “Updated: 03/05/2021”, five and a half years before our capture, and its first sentence reads: “PLEASE READ THE TERMS OF SERVICE CAREFULLY BEFORE USING THIS WEBSITE.” OppLoans, Plain Green Loans and Renewal by Andersen are in the same posture. For a high-cost lender the arbitration clause lives in the loan agreement signed at closing — which is exactly what TitleMax’s capture demonstrates, since it tells the borrower “YOU MAY OPT-OUT OF ARBITRATION AS DESCRIBED IN THE ARBITRATION AGREEMENT” and that agreement is not part of the captured document.

What this shows. Capital One’s five own-brand consumer card agreements contain no arbitration clause, and it competes against issuers whose agreements all do. Two airlines’ contracts of carriage, one national broadband provider’s subscriber terms, and the Steam Subscriber Agreement operate without one. The clause is not a condition of doing consumer business in the United States. It is a choice, made company by company, and it is revisable — in both directions, as Amazon’s own documents show.

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8. The Minnesota picture

8.1 Minnesota has no data, because Minnesota has never asked for any

Everything in § 2 of this report exists because California passed a disclosure statute. AAA publishes its consumer file under California, Maryland and New Jersey law. Minnesota is not among them.

Minn. Stat. ch. 572B, Minnesota’s Revised Uniform Arbitration Act, contains no consumer carve-out and no disclosure requirement. Minnesota has no analogue to California’s fee-nonpayment provisions. Minn. Stat. ch. 327A (statutory home warranties) contains no occurrence of “arbitrat” in its full chapter text, and neither does article 2 of Minn. Stat. ch. 336 (UCC sales). Chapter 80C has arbitration provisions, but they govern franchisor–franchisee compensation disputes, not consumers.

A Minnesotan cannot look up how consumers fare in arbitration against a Minnesota company, because no one has ever been required to say.

8.2 The Minnesota statute that does exist points the opposite way

Minnesota’s one consumer-arbitration statute is the Lemon Law, Minn. Stat. § 325F.665. Read how the legislature designed it:

• Subd. 6(a): every covered manufacturer “shall operate, or participate in, an informal dispute settlement mechanism located in the state of Minnesota which complies with the provisions of the Code of Federal Regulations, title 16, part 703, and the requirements of this section.”
• Subd. 6(i): “A consumer may be charged a fee to participate in an informal dispute settlement mechanism required by this section, but the fee may not exceed the conciliation court filing fee in the county where the arbitration is conducted.”
• Subd. 6(j): “Any party to the dispute has the right to be represented by an attorney in an informal dispute settlement mechanism.”
• Subd. 7: “The decision issued in an informal dispute settlement mechanism required by this section is nonbinding on the parties involved, unless otherwise agreed by the parties. Any party, upon application, may remove the decision to district court for a trial de novo.”

The company pays for the forum. The consumer’s fee is capped at what conciliation court would cost. Counsel is expressly permitted. The decision binds nobody. Either side can take a trial de novo.

What this shows. Every one of those five features is the opposite of a standard consumer arbitration clause. Minnesota already knows how to design consumer arbitration that does not function as a waiver. Outside the Lemon Law, we found no Minnesota statute that applies it.

8.3 A Minnesota Attorney General shut down a national consumer-arbitration forum

This is the Minnesota fact that belongs in every national account of forced arbitration and rarely appears in one.

On July 14, 2009, the State of Minnesota, by Attorney General Lori Swanson, filed a complaint against the National Arbitration Forum, Inc., National Arbitration Forum, LLC, and Dispute Management Services, LLC, d/b/a Forthright, in Hennepin County District Court, Court File No. 27-CV-09-18550. On July 17, 2009 all four parties executed a stipulated consent judgment.

From the Consent Judgment itself:

• “The purpose of this Consent Judgment is to require the complete divestiture by the NAF Entities of any business related to the arbitration of consumer disputes.” (¶ 1)
• “On or after July 24, 2009, no NAF Entity shall: a. Accept any fee for processing any new Consumer Arbitration. b. Administer or process any new Consumer Arbitration. c. In any manner participate in any new Consumer Arbitration. d. Attempt to influence the outcome of any arbitration proceeding currently pending before it.” (¶ 3)

And the sentence that must travel with every description of this matter, because it is in the document: “WHEREAS, this Consent Judgment shall not be construed as an admission of wrongdoing or liability by the NAF Entities”. The State’s allegations were never adjudicated.

The Attorney General’s contemporaneous press release states that she “sued the National Arbitration Forum on Tuesday, alleging that the company--which is named as the arbitrator of consumer disputes in tens of millions of credit card agreements--hid from the public its extensive ties to the collection industry”, and that the suit “alleged that the company arbitrated 214,000 consumer arbitration claims in 2006, nearly 60 percent of which were filed by laws firms with which the Forum is linked through ties to a New York hedge fund.” (sic — “laws firms” appears in the original.)

The Attorney General’s July 19, 2009 letter to the President of the American Arbitration Association sets out her office’s stated conclusions from its investigation:

“Based on our investigation, it is my conclusion that pre-dispute mandatory arbitration provisions are fundamentally unfair to the consumer.”

“In almost every interview we found that the consumer was not aware of the arbitration provision. In many cases the consumer never saw the provision, because it was simply mailed with a monthly statement.”

“there is a term commonly used in the arbitration industry called ‘repeat player bias,’ describing a phenomena describing where an arbitrator is more likely to favor the party that is likely to send future cases. This bias does not exist in a court, where the judge is not reliant on a dominant player for his or her future income. In the case of NAF, arbitrators and employees claimed that arbitrators who issued an award against the corporation, or who failed to award attorney’s fees against the consumer, were simply ‘deselected’ and not appointed to future proceedings.” (sic — “a phenomena describing where” appears in the original.)

“The fundamental problem with consumer arbitrations under ‘fine print’ contracts is that the arbitration company draws its income from the dominant participant--namely the credit card company, telecommunications company, the hospital, etc.--and personnel have a financial incentive to make sure that the corporation is pleased with the outcome.”

A word about the copy we are working from. The consent judgment, the Attorney General’s press release and her letter to the AAA reached us as a single scanned PDF from a public-interest organization’s archived file. Every quotation above was checked against the page images twice, independently, and the file number, the July 14, 2009 complaint date, the July 24, 2009 operative date and the no-admission recital are all confirmed on the face of the document. The copy available to us is the one the parties executed on July 17, 2009. We have not obtained the clerk’s conformed copy, so we state no date of entry.

What this shows. A Minnesota Attorney General sued an arbitration company that her office alleged was “named as the arbitrator of consumer disputes in tens of millions of credit card agreements”, and within days that company agreed to leave consumer arbitration permanently and nationwide. Every allegation in that matter was resolved by a consent judgment that expressly disclaims any admission, and this report does not treat any of it as adjudicated fact. What is not an allegation is the remedy the parties signed: complete divestiture of the consumer-arbitration business, nationwide, three days after the complaint was filed.

8.4 Minnesota companies in the dataset

Sun Country Airlines is not in that table. This firm could not confirm a current Minnesota headquarters from a primary source, so no Minnesota label is applied to it. What its own document does say is this: the Sun Country contract of carriage “shall be governed by and construed in accordance with the laws of the State of Minnesota, disregarding that State’s conflict of laws rules that may otherwise require the application of the laws of another jurisdiction.” That document contains no arbitration clause. Anytime Fitness is likewise commonly described as Minnesota-based; no source available to this firm establishes it, so it is omitted.

And in the CFPB card data, of the Minnesota-headquartered issuers present in the 2026 Q2 collection:

Five Minnesota credit unions, twenty-one of twenty-two agreements clause-free. One Minnesota bank, six of six with a clause. Bremer, Sunrise Banks, Think Mutual, Spire and Central Bank do not appear in the CFPB’s collection at all, which most likely means they do not self-issue a reportable card program — we did not independently confirm it.

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9. What a consumer can do today

This section states facts drawn from the documents we captured and from federal statutes, and nothing else. It is not legal advice, it does not evaluate anyone’s situation, and it does not predict any outcome. Read your own agreement, and read the date on it.

The date on the document is the first thing to look at. Terms change. Amazon’s required arbitration in the version dated May 21, 2018, did not in the version dated May 3, 2021, and did again in the version dated August 14, 2026. Netflix and Intuit added clauses between 2019 and 2021. Valve removed one in September 2024. X Corp. posted a version of its terms, to go into effect October 9, 2026, that adds a conditional one. What is on a company’s website today is what that company published today, and several of the agreements in this report expressly provide that a new version supersedes the old one — including, at PayPal and Klarna, as to disputes that already exist.

If there is an opt-out, it is usually short, usually written, and usually individual. Among the agreements we captured, the general window is most often 30 days from when the consumer first became subject to the clause; Citibank’s is 45. The Bureau found in 2013–14 that no credit-card clause in its sample gave longer than 60 days and that the shortest was three days. Several agreements in our dataset specify the method: eBay requires a mailed notice postmarked within 30 days of first accepting the user agreement; Etsy requires an email within 30 days. Instacart’s terms provide that an opt-out is ineffective if an attorney submits it on the consumer’s behalf or if it is part of a coordinated multi-account submission.

An opt-out does not always mean what it appears to mean. Netflix’s terms say a subscriber may opt out of the arbitration agreement “but you may not opt out of the separate class action waiver”; Discord, Nintendo, PayPal, Riot Games and Venmo do the same; Disney+ lets the consumer opt out of the waiver too, but only together with the arbitration provisions. Tinder’s 30-day right addresses only the retroactive reach of the clause, not arbitration. Lyft’s opt-out in the captured document runs to drivers, not riders. Of the 110 documents that contain an arbitration clause, 7 offer no exit from arbitration at all — only a right to reject a future amendment and stay on the prior version.

If the window has closed, it may be closed permanently. eBay, Etsy, DoorDash and Grubhub open the opt-out only to users who created accounts on or after the relevant terms took effect. Citibank’s terms provide that customers who did not opt out under the predecessor agreement when they opened the account are ineligible to opt out for those accounts.

Small claims court is usually preserved, and almost nobody uses it. Eighty-five of the 110 clause-bearing documents carry a standard small-claims carve-out. Ticketmaster’s is conditional — its terms require a pre-filing teleconference within 60 days before a consumer may file even there. The Bureau’s 2012 data showed consumers filing fewer than 870 small-claims card cases across jurisdictions holding 85 million people, against more than 41,000 filed by issuers against individuals in the same jurisdictions and year.

Some clauses pay more than a small claim is worth, if the procedure is followed exactly. Of the 110 documents that contain an arbitration clause, 13 promise a minimum award or a bonus for doing better in arbitration than the company offered (at Sallie Mae, for winning the relief the company refused; at Progressive Leasing, for winning more than the consumer demanded and the company refused): AT&T at $10,000 (floor); Discover, Progressive Leasing, Sallie Mae and U-Haul at $7,500 (floor); Cox (archival capture) at $5,000 (bonus); American Express, Teladoc and Verizon at $5,000 (floor); Dropbox at $1,000 (bonus); Lyft, Microsoft and OneMain at $1,000 (floor). AT&T also promises twice the consumer’s reasonable attorney’s fees. Most of these are conditioned on having completed the pre-filing notice process as the document specifies.

Three federal statutes override the Federal Arbitration Act for particular categories, in their own terms. Each operates only within its own defined limits, and each of the terms below is a defined term in its statute.

10 U.S.C. § 987(f)(4) provides that “no agreement to arbitrate any dispute involving the extension of consumer credit shall be enforceable against any covered member or dependent of such a member, or any person who was a covered member or dependent of that member when the agreement was made” — “covered member”, “dependent” and “consumer credit” are all defined in the section.

15 U.S.C. § 1639c(e)(1) provides that “[n]o residential mortgage loan and no extension of credit under an open end consumer credit plan secured by the principal dwelling of the consumer may include terms which require arbitration”.

9 U.S.C. § 402(a) provides that “at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable” as to a case relating to that dispute. Section 402(b) gives applicability to a court “irrespective of whether the agreement purports to delegate such determinations to an arbitrator.” The chapter applies to disputes or claims arising or accruing on or after March 3, 2022.

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10. What should change

10.1 Federally: only Congress can do it

The Forced Arbitration Injustice Repeal Act would make it simple. From the introduced text of H.R. 5350 (119th Cong.):

“Sec. 502. No validity or enforceability … (a) In General.—Notwithstanding any other provision of this title, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to an employment dispute, consumer dispute, antitrust dispute, or civil rights dispute.”

It would also defeat delegation by statute: validity and enforceability “shall be determined by a court, rather than an arbitrator… irrespective of whether the agreement purports to delegate such determinations to an arbitrator.”

Where it stood on September 18, 2026: H.R. 5350 and S. 2799 were both introduced September 15, 2025 and both referred to the Judiciary Committees the same day. No further action by that date. The high-water mark was still the 116th Congress, when H.R. 1423 passed the House on September 20, 2019 by recorded vote, 225–186. It was not enacted.

Congress has done this twice already, for servicemembers and for mortgages, and once more for sexual-assault claims in 2022. The mechanism works. It has simply not been applied to the ordinary consumer contract.

10.2 In Minnesota: three changes, none of which requires waiting on Congress

1. A disclosure statute modeled on Cal. Civ. Proc. Code § 1281.96. Every number in § 2 of this report exists because one state required a provider to publish it. Minnesota could require the same of any private arbitration company administering a consumer arbitration involving a Minnesota consumer: the name of the business, who prevailed, how long it took, whether the consumer had counsel, the arbitrator’s fee and how it was allocated, and the repeat-player count. This is the single change that would make Minnesota consumer arbitration knowable, and it imposes no limit on anyone’s right to arbitrate.

2. A fee-nonpayment statute. After Wallrich and Frazier, a company that writes a clause, obtains dismissal of a court case on the strength of it, and then declines to fund the forum it chose is, in the Seventh and Second Circuits, largely beyond a federal court’s power to address under 9 U.S.C. § 4. California addressed that by statute. Minnesota has no analogue. That gap is remediable by the legislature in a page of text.

3. Extend the § 325F.665 design. Minnesota’s Lemon Law already prescribes a consumer dispute mechanism that is company-funded, fee-capped at the conciliation-court filing fee, open to counsel, nonbinding, and subject to trial de novo. That is a design argument rather than a preemption fight, and the design is already Minnesota law. A full FAA-preemption analysis of these three proposals has not been performed by this firm and is not represented here. AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), is the obstacle, and it is its own memorandum.

10.3 What we are doing

This report is the first publication on forcedarbitration.com. The dataset behind it is described in § 11 and will be published with it. We intend to extend it: sector by sector, with the opt-out windows and methods in a single table, and with a Minnesota-specific analysis of the 211,748-row AAA disclosure file — a cut nobody has run, on data that is free, that would tell Minnesotans how Minnesota consumers actually fare in arbitration against Minnesota companies.

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About this report

Forced Arbitration is published by Madgett Law, LLC, a Minnesota law firm, and is attorney advertising. It is not a government agency, is not affiliated with the Minnesota Attorney General or any other government office, and is not a legal aid or public interest legal services organization.

This report is general information, not legal advice, and reading it does not make us your lawyers. It is not advice about your situation — nobody here has seen your contract. Whether any of this applies to your situation depends on facts we have not seen. You do not become a client, and we do not represent you, unless and until we both sign a written agreement. Publishing this report is a communication about the firm’s services under the Minnesota Rules of Professional Conduct. It is not an offer to represent you, and it is not a promise that the firm will take any particular case.

Company contracts in this report are quoted from dated copies we fetched and recorded or, where the report names the case, from a court record. A copy we fetched came from the company’s own site, from a government agency’s website, or from an archival snapshot; § 11.2 lists the documents in the dataset that did not come from the company’s own site, and § 6 says which of its quotations come from archival snapshots. Companies change their terms — as § 6 of this report shows at length. Court records, statutes and agency publications are cited to the source they came from. If you are reading this long after those dates, check the sources before relying on anything here.

If you contact the firm, Madgett Law, LLC will keep what you send confidential, whether or not we take your case. Please do not send confidential, sensitive or time-critical material before we have run a conflicts check. Under the Minnesota Rules, a firm that receives information which could be significantly harmful to someone can be disqualified from a matter — so sending too much too early can cost you the lawyer you wanted.

Forced Arbitration — a service of Madgett Law, LLC, a Minnesota law firm. Responsible for this content: David J.S. Madgett, Madgett Law, LLC, IDS Center, 80 South 8th Street, Suite 1650, Minneapolis, MN 55402, 612-470-6529, madgettlaw.com. Minnesota Bar No. 390494.

Contract quotations are reproduced verbatim, from documents captured on the dates stated from a United States address or, where a contract is quoted from a court record, from the record named. Court records are quoted from the opinions and filings named. Figures attributed to the Consumer Financial Protection Bureau’s 2015 Arbitration Study describe 2013–14 and are labelled accordingly throughout.