Mass Arbitration

Many businesses include arbitration provisions and class-action waivers in their terms of service to reduce class action litigation risks.

Plaintiffs’ lawyers have adapted by pursuing mass arbitrations—threatening, then filing, a coordinated wave of hundreds, thousands, or even tens of thousands of individual arbitrations, all based on the same facts and represented by the same counsel. Businesses are typically responsible for paying the lion’s share of the administrative fees associated with mass arbitration, which can quickly become staggeringly high. Plaintiffs use this as leverage to pressure companies to settle even meritless claims.

Businesses can take several steps to reduce these risks before a mass arbitration threat, and to manage exposure once threats are made or a mass arbitration is filed.

Perkins Coie’s arbitration defense team has the experience and knowledge to reduce mass arbitration risk for businesses at every stage, from pre-threat preparation to defense of mass arbitration on the merits. We can help businesses:

Pre-threat preparation. Identify practical options to reduce risks associated with arbitration provisions before mass arbitration is threatened, including refining Terms of Use and updating user flows to ensure clients have enforceable agreements in place.
Compliance audit. Assess websites and other external-facing media for potential or perceived privacy and consumer protection compliance gaps that typically give rise to mass arbitration, such as ad tech implementation and online disclosures to consumers.
Address solicitations and demand letters. Respond quickly to often delay or stop a mass arbitration before it starts by engaging with the other side, fixing perceived issues, and addressing misunderstandings. Early and decisive action often makes the difference.
Defend filed arbitrations. Take steps to avoid mass exposure and counter plaintiffs’ strategies to extract large settlements. We are familiar with all stages of mass arbitration, from early administrative issues, to selecting and proceeding before a process arbitrator, to the merits arbitration phase. We have successfully obtained the dismissal of many frivolously filed demands, significantly reducing client exposure and costs.

We also help companies consider aggressive, affirmative strategies, such as litigation to stop or narrow a mass arbitration, and partner with clients to explain and prepare for the process and reduce expenses and inconvenience.

People

Dozens of lawyers across practice groups with direct experience in mass arbitration, including some of the largest known to have been filed and against the most prolific plaintiffs’ attorneys in this space.
Our team tailors its strategy to the company’s goals—whether it is negotiating an early resolution or litigating individual arbitrations on their merits.
Our team is adept at using the arbitration process to weed out frivolous claimants and meritless claims, reducing overall arbitration fees for the company.
Our team is also proactive. We routinely review and revise companies’ terms of service to deter mass arbitrations and provide tools to push back on mass arbitrations when they are threatened or filed.

Our Team

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Susan Fahringer

Partner

SFahringer@perkinscoie.com

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206.359.8687

Nicola Menaldo

Partner

NMenaldo@perkinscoie.com

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206.359.8000

Mallory Gitt Webster

Partner

MWebster@perkinscoie.com

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206.359.3701

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