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Without doubt the U.S. Supreme Court in the twenty-first century has been obsessed with the problem of corporate attorneys' inclusion of class action waivers in arbitration agreements. This article traces the emergence of the class action waiver issue, which developed in tandem with the plaintiffs' embrace and proliferation of class action litigation at the end of the twentieth century. The discussion comments on plaintiffs' initial attempts to request and secure class arbitration where the arbitration clauses were silent, culminating in Supreme Court's opinion permitting arbitrators to determine this issue. With the Court opening the door to possible classwide arbitration, corporate lawyers regrouped to rethink the wording of their mandatory arbitration agreements, to specifically prohibit classwide arbitration. These corporate elforts and the successive redrafting of arbitration agreements prompted a series of class action waiver appeals to the Supreme Court, with the Court construing ever changing class action waiver formulations. Since 2010, the Court has decided eight class action appeals dealing with issues relating to class action waivers in arbitration agreements. The article analyzes the Court's series of decisions relating to class action waiver provisions, focusing on the Court's consistent repudiation of classwide arbitration as antithetical to the original concept of bilateral arbitration. The article observes that despite the Court's clear rejection of almost all class action waiver provisions, plaintiffs' attorneys regroup and repeatedly seek classwide arbitration by state legislative initiatives and construing arbitration agreements within the contours of the Court's evolving class waiver jurisprudence. The article concludes with observations about class arbitration in other countries, and the implications of class action waivers for European Union countries that have recently implemented class action and collective redress procedures. [ABSTRACT FROM AUTHOR]

Despite the prevalence of class action waivers in modern contracts, their enforceability is an under-investigated and controversial issue in Canadian law. The controversy arises from the battle of two important public interests: the interest in giving effect to contracts as agreed between the parties and the interest in organizing justice through class proceedings. This essay studies the position taken by Canadian courts in the limited jurisprudence around the issue, and it also explores the scope of the statutory and common law bases for the unenforceability of class action waivers. Based on the analysis, the essay argues that the procedural right to commence or participate in a class action is not sufficient to override the effect of a class action waiver. A waiver may be struck down only in appropriate circumstances where there is a statute, common law principle, or strong public policy that prevents its enforcement. Hence, the analysis highlights the primacy of the parties' freedom of contract in Canadian law, as well as the importance of careful drafting and reading of contractual terms in modern contracts. [ABSTRACT FROM AUTHOR]

The article focuses on the Federal Arbitration Act (FAA) and its evolution regarding class action waivers and individual arbitration. It discusses the Supreme Court's impact on promoting "informal" and "bilateral" arbitration, especially concerning class action waivers. The text also mentions the recent rise of mass individual arbitration claims challenging class action waivers.

This article explores the use of mandatory arbitration clauses in consumer contracts, focusing on the concerns surrounding their impact on consumers and the need for protection. It discusses the use of arbitration agreements by predatory payday lenders to evade lending laws, particularly through partnerships with Native American tribes. The article suggests a framework for analyzing delegation clauses and unenforceability claims, and recommends that courts follow the example set by certain circuits in finding agreements that waive a borrower's federal statutory rights to be unenforceable. It also proposes changes to current FAA rules regarding arbitration between companies and consumers. The text highlights the lack of consumer protections in arbitration agreements, the violation of the effective vindication doctrine, and the issue of class action waivers. It also addresses the differing interpretations of courts regarding delegation clauses and prospective waivers of rights, arguing for a uniform application of the prospective waiver doctrine. The article concludes by discussing the split in the interpretation of the FAA and its impact on consumer protection laws, and suggests that the Supreme Court needs to settle this issue. It further emphasizes the potential for abuse by tribal lending companies and proposes standardized tests and legislation to strengthen consumer protections while preserving the use of arbitration agreements. Overall, the text emphasizes the need to balance the expansion of arbitration with safeguards for consumers. [Extracted from the article]

Warranty disclaimers, caps on damages, predispute mandatory arbitration, and anti-class action waivers constitute what I call, "no responsibility" or "rights foreclosure clauses" in computer contracts. This is the first empirical study of how the information industries, which include the 100 largest software companies and the 100 largest digital companies, deploy one-sided warranty disclaimers, caps on damages, and predispute mandatory arbitration clauses coupled with class action waivers to shift responsibility for defective software to the user communities. This gives the information industries carte blanche to release dangerously defective software without consequences. In their standard form contracts, the industries do whatever they wish by incorporating their designed terms and conditions. The software industry assert contractual rights without providing corresponding meaningful remedies for breach in their computer contracts. The net effect of these no responsibility clauses is to require users to waive their right to a judicial forum in favor of arbitration, where the stronger party is at a distinct advantage. Congress needs to enact a federal U.C.C. Article 2 reform that will invalidate no responsibility clauses, thus restoring mutuality in software license agreements. [ABSTRACT FROM AUTHOR]

There is substantial evidence of minimum wage non-compliance in the United States and the United Kingdom. In this article, the author compiles new, comprehensive data on the costs that minimum wage violators incur when non-compliance is detected. In both countries, the costs violators face are often little more than the money they saved by underpaying. To have an incentive to comply under existing penalty regimes, typical US firms would thus have to expect a 47% to 83% probability of detection by the Department of Labor (DOL), or a 25% probability of a successful Fair Labor Standards Act (FLSA) suit. In the United Kingdom, typical firms would have to expect a 44% to 56% probability of detection. Actual probabilities of detection are substantially lower than this for many firms and would likely remain so even with realistic increases in enforcement capacity. Improved enforcement alone is thus insufficient: Expected penalties must also substantially increase to ensure that most firms have an incentive to comply. [ABSTRACT FROM AUTHOR]

In July 2021, a sweeping Executive Order committed the entire U.S. federal government to reining in big business. Dozens of proposed bills at the state level similarly target big business for stricter regulatory treatment. But unlike in past decades, today's calls to break up and intensely regulate big business do not hinge on harms to consumers qua consumers. Instead, today's anti-bigness sentiment rests to a large extent on the claim that big is bad because it is ungovernable. Giant corporations with market power treat legal requirements as mere recommendations, and routinely engage in behavior that harms our civil liberties and degrades the environment as long as it maximizes their own bottom line, or so the argument goes. But the "big is ungovernable" claim as currently construed is underdeveloped. In fact, many theoretical and empirical analyses suggest that big means better governability. If "big is ungovernable" is popular not because of the merits but strictly because of a strong anti-bigness sentiment, we could end up with bad policies negating economies of scale. This Article provides a comprehensive assessment of how size and market power create governance problems, and a blueprint for how to ameliorate these problems. Super-big corporations have (1) power to shape the regulatory framework that governs them, and (2) a fragmentation of knowledge within them that makes it harder to detect and stop transgressions of the framework. These features dilute not just the expected legal sanction, but also moral constraints and the prospect of market discipline for misbehaving. For example, super-big corporations can leverage their market power to force their customers, workers, and suppliers to sign class action waivers and gag clauses, thereby diluting both legal and reputational sanctions for misbehaving. And the fragmentation of knowledge within super-big corporations makes it harder for law enforcers to detect culpability. and easier for individuals working within these corporations to behave badly without feeling guilty about it. Recognizing the limitations of laws, markets, and morals to govern big business has concrete policy implications. At a general level the analysis here can provide an intellectual structure for rethinking criteria for breaking up or downsizing firms according to governability. At a more specific level, this Article questions the desirability of oft-made proposals such as increasing the severity of sanctions. Solutions to bigness-control problems instead must directly address the power problem, such as by making class action waivers unenforceable, and the information problem, such as by recalibrating corporate law's director oversight duties. [ABSTRACT FROM AUTHOR]

The author comments on the target article by M. S. McCoy and colleagues, which offers a six-point ethical data practices framework for companies that process personal data. Topics discussed include important questions that remain regarding implementation of McCoy and colleagues' framework, the necessity of data-focused federal agency to promote consumer protections, and reason that a private right of action is preferable in terms of public policy.

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U.S. companies are increasingly drafting consumer contracts that are complex and unreadable, thus making it difficult for many Americans to comprehend terms of use that apply to goods and services. Many U.S. companies are creating terms of use that are, in effect, rights-foreclosure schemes. Many consumer agreements cap damages at a nominal amount, disclaim all warranties, limit remedies, and impose mandatory arbitration clauses and class action waivers. U.S. courts enforce these unfair mass-market contracts with few exceptions. My proposal for a New Deal for Consumer Contracts, as described in this Article, would impose a more exacting readability standard, enforcing agreements only if they were drafted at a reading level of the eighth grade or below in order to protect consumers against inadvertently agreeing to unfair standard contract terms such as unfair choice of law and forum clauses, limits on recovery, predispute arbitration, and disclaimers of all significant remedies. The New Deal for Consumer Contracts would invalidate unfair and deceptive consumer clauses--a reform that would synchronize U.S. consumer law with the mandatory consumer laws of the twenty-seven countries of the European Union. [ABSTRACT FROM AUTHOR]

The COVID-19 pandemic has generated many suits--including thousands of class actions--in which plaintiffs claim that defendants caused economic or health-related harm. Although the COVID-19 context may have led many plaintiffs' lawyers to believe that the cases would be received with great sympathy, courts thus far have been very cautious, focusing closely--as they do in non-COVID cases--on whether the defendant has breached clear contractual commitments or has engaged in tortious or other wrongdoing. If anything, courts have been more skeptical and cautious in the COVID-19 context, recognizing that everyone has suffered due to the pandemic and that, in many instances, defendants themselves have attempted in good faith to navigate the challenges raised by the pandemic. This Essay focuses primarily on three categories of cases that have already generated numerous rulings: (1) business interruption insurance claims, (2) tuition reimbursement actions, and (3) suits against prisons and immigration detention facilities. These three categories of cases line up on a continuum based on whether the proximate cause of the harm is COVID-19 itself or the conduct of the defendants. At one end are the business interruption insurance cases, which have received hostile treatment from almost all courts that have considered those claims. The underlying insurance policies almost universally require "physical loss or damage" to property, a requirement that is hard to square with losses caused by a pandemic. In the middle are the tuition refund cases, which have seen mixed success, with many (but not all) courts granting motions to dismiss after failing to find that there was a contractual commitment to in-person teaching. At the other end is the category of cases raising health and safety issues related to COVID-19 in prisons and at immigration detention facilities. On the merits, this is the strongest of the three categories, given the clear legal duty of government officials to protect the health of those in their custody. Yet, even in this context, many courts have declined to authorize injunctive relief, finding that the officials involved have attempted in good faith to protect their populations from COVID-19. At bottom, courts have commendably stayed focused on the merits and have not been swayed by the enormity of COVID-19 or the large numbers of claims. After discussing the three categories above, this Essay also briefly examines (1) consumer, labor, and securities fraud cases in the context of COVID-19; (2) COVID-19 cases involving arbitration clauses and class action waivers; and (3) the handful of class-wide settlements that have thus far been reached in COVID-related litigation. [ABSTRACT FROM AUTHOR]

When an employer violates minimum wage and overtime laws, the Fair Labor Standards Act (FLSA) empowers a worker to bring a collective action on behalf of themselves and their affected coworkers. As an early step in such suits, courts authorize notice to the plaintiff’s coworkers so that they can join the litigation. However, employers increasingly require workers, as a condition of employment, to agree to arbitrate such claims and waive the right to sue in court under the FLSA. Courts in several circuits have begun to go along with employers who have pointed to alleged arbitration agreements as a reason the court should not notify a plaintiff’s coworkers of an ongoing suit. This Note explains that courts should reject this reasoning and argues that preventing workers—even those purportedly bound to arbitration—from learning of a collective action is contrary to the goals of the FLSA and the Supreme Court’s original rationale for authorizing lower courts to issue notice. Rather, notifying arbitration-bound plaintiffs of FLSA collective actions will result in more efficient and effective resolutions of lawsuits alleging minimum wage and overtime violations. [ABSTRACT FROM AUTHOR]

The article discusses the importance of managing franchisor risk through the enforcement of contractual terms and provisions in franchise agreements. It highlights the significance of including mandatory mediation and arbitration clauses, as well as class and collective action waivers, choice of law clauses, limitation on liability provisions, and contractual indemnification clauses to mitigate litigation risks. The article provides insights into recent case law examples that illustrate the enforcement and impact of these contractual provisions in franchise disputes. [Extracted from the article]

Consumer assent to standard form contracts has been creating cognitive dissonance among contracts scholars for a century. Businesses impose standard forms on consumers, who never read the terms. But consumers would not understand them if they did. And they don't have the bargaining power to change them anyway--the terms are famously "take it or leave it." Contracting is ideally theorized as an act of voluntary, knowing consent to all the terms agreed to. The dissonance is that consumers, although ostensibly signaling their assent to the boilerplate by signing (or clicking, or tapping their phone screen), do not in fact know the content of what they are manifesting agreement to. That is, what looks like a contract, scholars argue, cannot really be a contract because of this lack of meaningful consent. Therefore, scholars have long argued for some form of sophisticated judicial contract doctrine, to recognize assent to the known and "dickered" terms, while discarding some or all of the problematic and unread terms. The courts, however, have steadfastly refused to engage in such surgical alteration of what is, for them, an "all-or-nothing" act of simply agreeing to be bound to the entire contract. The consumer has long been held to have a "duty to read" what she signs, and failing to do so will not change the courts' willingness to find the entire contract enforceable (absent some finding of fraud, duress, unconscionability, or the like). At this stage, the judicial doctrine is mature enough--and has shown its relative imperviousness to scholarly proposals for doctrinal change--that it is unlikely that courts will suddenly become amenable to a revolutionary change in doctrine. Notions of precedent, predictability, and coherence augur for the likely permanence of the duty to read as enshrined judicial doctrine. A shift is needed. This article argues that legislative regulation is now the most likely vehicle through which effective policing of problematic boilerplate terms can come. Legislatures have already been gradually, and on a piecemeal basis, dictating that various specific contract terms are either prohibited or regulated for the last several decades (e.g., usury, covenants not to compete, waivers of the right of redemption). Therefore, given the enduring inflexibility of the duty to read, legislative regulation of boilerplate terms is the most likely path forward for addressing terms which are collectively perceived as problematic as a policy matter. [ABSTRACT FROM AUTHOR]

This Article introduces "analog privilege" to describe how elites avoid artificial intelligence (AI) systems and benefit from special personalized treatment instead. In the register of tailor-made clothes and ordering off menu, analog privilege spares elites from ill-fitting, mass-produced AI products and services. Our ability to curate our relationship with technology is a measure of our sophistication and, deep down, our power. Analog privilege connects with other instances of elites exercising agency over modernity: homesteading, no-phone teens and the coastal grandmother aesthetic all signal a return to the quaint pre-modern. As AI becomes the default modus operandi in many sectors from customer service to enforcing workplace rules, elites secure a manual override. Analog privilege allows them to escape AI systems that in theory apply to everyone but in practice spare the select few. The existing literature focuses on whom AI harms, but this Article broadens the conversation to encompass whom it spares. Bringing attention to analog privilege highlights existing inequalities that enable special treatment for elites. This new lens provides a fuller picture of the distributional politics of AI, fostering a more capacious understanding of its social impact, and ultimately of the interconnectedness between precarity and privilege. Analog privilege matters because it erodes the social fabric. Lending credence to the idea that elites play by different rules, the divide between people subject to and exempt from AI fuels resentment and polarization. Analog privilege is thus part of a larger strain on social peace. By making analog privilege legible, this Article clarifies the diffused sense of injustice that must be rectified if we are to regenerate the connective tissue that feeds our collective sense of belonging. Once analog privilege comes into focus, the question becomes what to do about it. Legal interventions alone won't cut it. Instead, a multi-prong approach should align legal, technical, and other interventions. [ABSTRACT FROM AUTHOR]

This article explores the topic of arbitration waiver in the context of franchise agreements. It discusses the prevalence of arbitration provisions in these agreements and the actions that parties may take before seeking arbitration. The article examines the question of when a party waives its right to compel arbitration and looks at the varying outcomes in federal courts. It focuses on the Supreme Court case of Morgan v. Sundance, which determined that a showing of prejudice is not necessary to claim waiver of the right to arbitrate. The article concludes by evaluating the practical implications of the Morgan decision on franchise law practice. It also discusses the Supreme Court's decision in Morgan v. Smith Barney, which clarified that the Federal Arbitration Act does not allow federal courts to create special procedural rules favoring arbitration. The goal of the Act is to treat arbitration agreements like any other contracts. The article provides examples of how the Eighth and Ninth Circuits have applied the Morgan decision in arbitration waiver cases. It highlights the impact of the Morgan decision on lower courts' approach to waiver in the arbitration context. The article discusses various cases in which courts have analyzed whether a party has waived its right to compel arbitration. The courts focus on the conduct of the party claiming the right to arbitrate and have largely eliminated the requirement of prejudice. Factors such as the party's knowledge of the right to arbitrate and intentional relinquishment of that right are considered. The article notes that these cases are fact-specific and there is no clear rule. It also discusses the concept of waiver in arbitration [Extracted from the article]

We introduce generative interpretation, a new approach to estimating contractual meaning using large language models. As AI triumphalism is the order of the day, we proceed by way of grounded case studies, each illustrating the capabilities of these novel tools in distinct ways. Taking well-known contracts opinions, and sourcing the actual agreements that they adjudicated, we show that AI models can help factfinders ascertain ordinary meaning in context, quantify ambiguity, and fill gaps in parties' agreements. We also illustrate how models can calculate the probative value of individual pieces of extrinsic evidence. After offering best practices for the use of these models given their limitations, we consider their implications for judicial practice and contract theory. Using large language models permits courts to estimate what the parties intended cheaply and accurately, and as such generative interpretation unsettles the current interpretative stalemate. Their use responds to efficiency-minded textualists and justice-oriented contextualists, who argue about whether parties will prefer cost and certainty or accuracy and fairness. Parties--and courts--would prefer a middle path, in which adjudicators strive to predict what the contract really meant, admitting just enough context to approximate reality while avoiding unguided and biased assimilation of evidence. As generative interpretation offers this possibility, we argue it can become the new workhorse of contractual interpretation. [ABSTRACT FROM AUTHOR]

Legal turmoil originating from the ambiguity of independent contractor and joint employment law has been exacerbated by the COVID-19 pandemic and the growth of e-commerce and the gig economy. Chaos and uncertainty have hindered business advancement, especially for franchises. Still, there are exemplary international approaches, proposed U.S. and state laws, uniform tests or guarantees, and fresh methodologies as well as legal presumptions. By narrowing the defnition of “independent contractor” and expanding the defnition of “joint employer,” evolving legal interpretations will foster, inter alia, franchisee collective bargaining and other avenues toward fair and effcient compromise. Greater legal clarity could stimulate business growth and lead to stronger, fairer franchise systems. [ABSTRACT FROM AUTHOR]

In June 2022, the U.S. Supreme Court handed down its decision in Viking River Cruises v. Moriana. This controversial opinion sought to resolve ongoing tension between the Federal Arbitration Act (FAA) and California's Private Attorneys General Act (PAGA) by overturning California precedent dating back to 2014. In keeping with its decades-long crusade to strengthen the FAA, the Supreme Court removed the primary procedural mechanism through which putative PAGA plaintiffs could avoid mandatory arbitration of their claims, instead requiring aggrieved employees to sever their "individual" PAGA claims from the claims of their "similarly aggrieved" co-workers. Those opposed to PAGA viewed this development as a much-needed reprieve from a seemingly relentless onslaught of litigation targeted against employers, while proponents of the statute criticized the opinion as undermining PAGA's important public policy objectives. Ultimately, rather than providing clarity to the adjudication of PAGA claims subject to arbitration agreements, the time since the Viking River Cruises ruling has seen California courts wrestle with the circuitous and in some instances incorrectly cited language of the nation's highest court. Notably, Justice Sonia Sotomayor included a concurring opinion in Viking River Cruises, leaving the door open for California to further modify PAGA in the event the Supreme Court's reasoning proved faulty. Emboldened by Justice Sotomayor's concurrence, this Note seeks a permanent resolution to the ever-contentious story of PAGA by offering a potential mechanism through which California might modify enforcement of the statute and achieve the state's public policy objectives while avoiding further FAA preemption. [ABSTRACT FROM AUTHOR]

Consent plays a profound role in nearly all privacy laws. As Professor Heidi Hurd aptly said, consent works "moral magic"--it transforms things that would be illegal and immoral into lawful and legitimate activities. As to privacy, consent authorizes and legitimizes a wide range of data collection and processing. There are generally two approaches to consent in privacy law. In the United States, the notice-and-choice approach predominates: organizations post a notice of their privacy practices and people are deemed to consent if they continue to do business with the organization or fail to opt out. In the European Union, the General Data Protection Regulation ("GDPR") uses the express consent approach, where people must voluntarily and affirmatively consent. Both approaches fail. The evidence of actual consent is nonexistent under the notice-and-choice approach. Individuals are often pressured or manipulated, undermining the validity of their consent. The express consent approach also suffers from these problems--people are ill-equipped to decide about their privacy, and even experts cannot fully understand what algorithms will do with personal data. Express consent also is highly impractical; it inundates individuals with consent requests from thousands of organizations. Express consent cannot scale. In this Article, I contend that most of the time, privacy consent is fictitious. Privacy law should take a new approach to consent that I call "murky consent." Traditionally, consent has been binary--an on/off switch--but murky consent exists in the shadowy middle ground between full consent and no consent. Murky consent embraces the fact that consent in privacy is largely a set of fictions and is at best highly dubious. Because it conceptualizes consent as mostly fictional, murky consent recognizes its lack of legitimacy. To return to Hurd's analogy, murky consent is consent without magic. Rather than provide extensive legitimacy and power, murky consent should authorize only a very restricted and weak license to use data. Murky consent should be subject to extensive regulatory oversight with an ever-present risk that it could be deemed invalid. Murky consent should rest on shaky ground. Because the law pretends people are consenting, the law's goal should be to ensure that what people are consenting to is good. Doing so promotes the integrity of the fictions of consent. I propose four duties to achieve this end: (1) duty to obtain consent appropriately; (2) duty to avoid thwarting reasonable expectations; (3) duty of loyalty; and (4) duty to avoid unreasonable risk. The law can't make the tale of privacy consent less fictional, but with these duties, the law can ensure the story ends well. [ABSTRACT FROM AUTHOR]

It is always an appropriate time to reevaluate, reexamine, and question the optimal scope and shape of antitrust institutions. In this article we ask whether the complex current distribution of competition functions in the U.S. can be improved by some reorganization or other reform. We answer in the affirmative and propose a number of improvements – perhaps the most significant being consolidating the competition functions of the FTC into the Antitrust Division and stripping the FCC of authority independently to review mergers, as it did in view of the similarly poor performance of the DOT when reviewing airline mergers. Our more general proposal with the authority of sectoral regulators over competition should not be overlooked, however; it would do much good with little or no downside. [ABSTRACT FROM AUTHOR]

When Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act ("EFASASHA') in March 2022, it signaled a major retreat from the Supreme Court's broad enforcement of agreements to force employees and consumers to arbitrate discrimination claims. But the failure to cover protected discriminatory classes other than sex, especially race, tempers any exuberance attributable to the passage of EFASASHA. This Article prescribes an approach for employees and consumers to rely upon EFASASHA as a tool to prevent both race and sex discrimination claims from being forced into arbitration by employers and companies. This approach relies upon procedural and societal norms, as well as the text and legislative development of the statute, that warrants joining both race and sex discrimination claims in court. This overall prescription seeks to end the forced arbitration of race discrimination claims for employees and consumers. This Article asserts that despite focusing on sex-based claims, the application of the EFASASHA statute in the courts will result in many race-based claims also being prohibited from being forced into arbitration. Many people of color pursue discrimination claims based on race that also intersect with claims of sex. As these claims arise from the same transaction or occurrence, employees and consumers must take the same steps to bring these claims together in federal court or face res judicata prohibitions leading to inconsistent results. This Article also concludes that social movements and creative plaintiff efforts that led some businesses to abandon their mandatory arbitration practices before Congress passed EFASASHA should also influence companies to not force arbitration of race claims. These companies must recognize the double-dealing involved in identifying themselves as progressive businesses committed to non-discrimination if they still force arbitration of race discrimination claims when they may not subject similar sex discrimination claims to arbitration after EFASASHA. Although Congress may have political reasons for not listing racial claims explicitly in the EFASASHA legislation, this Article highlights how businesses should understand that the concerns and rationales justifying EFASASHA's ban on forced arbitration of claims based on sex applies with equal force with respect to arbitration of claims based on race. [ABSTRACT FROM AUTHOR]

The article discusses the Consumer Financial Protection Bureau's (CFPB) $6 million settlement with JPay, a financial services provider in prisons and jails, for exploiting justice-involved individuals through prepaid debit cards. It explores the use of these cards in the prison banking system, the legal landscape surrounding them, and the steps taken by the CFPB to protect consumers. The article also highlights the financial implications of mass incarceration, particularly for people of color, and the high costs of basic necessities in prison commissaries. It sheds light on the relationship between private companies and the prison system, emphasizing the lack of choice and vulnerability of incarcerated individuals. The CFPB's actions against JPay demonstrate its commitment to enforcing consumer protections for justice-involved individuals and its interpretation of unfair, deceptive, and abusive practices provisions. The article also discusses the Electronic Fund Transfer Act and the Dodd-Frank Act, which provide statutory and regulatory protections for consumers. The CFPB's policy statement on abusive acts or practices provides an analytical framework for identifying violative actions and practices. While the JPay consent order is a step in the right direction, more needs to be done to ensure the rights and protections of incarcerated individuals. [Extracted from the article]

The results of a survey of 1,071 adults in the United States reveal that most consumers do not pay attention to, let alone understand, arbitration clauses in their everyday lives. The vast majority of survey respondents (over 97%) report having opened an account with a company that requires disputes to be submitted to binding arbitration (e.g., Netflix, Hulu, Cash App, a phone or cable company), yet most are unaware that they have, in fact, agreed to mandatory arbitration (also known as "forced arbitration"). Indeed, over 99% of respondents who think they have never entered into an arbitration agreement likely have done so. Over 92% of respondents report that they have never based a decision to use a product or service on whether the terms and conditions contain an arbitration agreement. When prompted, they largely endorse the following reasons: they were unaware of the arbitration clause, they did not read the terms and conditions, and they thought they had no choice but to agree to mandatory arbitration. Moreover, many respondents presume that if a dispute arises, they will still be able to access the public courts, notwithstanding that they agreed to the terms and conditions. Consumers are largely unaware of opportunities to opt out of mandatory arbitration. They generally do not pay attention to or retain information about the steps required to opt out successfully (e.g., contacting the company within a specified time period). Generally, consumers are unaware that companies like Cash App and Venmo (mobile payment systems utilized by nearly 60% of respondents) allow customers to opt out of mandatory arbitration if they act within a limited time period. Among the minority of respondents (21%) who stated that they had been given an opportunity to opt out, vanishingly few could name any of the steps required to opt out successfully. When presented with a run-of-the-mill contract, of the type consumers routinely encounter, most respondents did not take notice of the arbitration clause. Less than 5% of respondents could recall that the contract they were shown had said anything at all about arbitration. Furthermore, most consumers misperceive the consequences of signing a predispute arbitration agreement. Most mistakenly believe that, after agreeing to terms and conditions mandating binding arbitration, they can still choose to settle their dispute in court, have a jury decide their case, join a class action, and appeal a decision made based on a legal error. For instance, less than 5% of respondents correctly reported that they could neither appeal an erroneous decision to another arbitrator (or set of arbitrators) nor start all over again in court. Less than 1% of respondents correctly understood the full significance of the arbitration agreement, as indicated by their responses to questions about whether they retained the rights to sue, have a jury decide their case, access the public courts, and appeal a decision based on a legal error. In summary, consumers are generally unaware of arbitration clauses, and they tend to hold mistaken beliefs about how arbitration agreements affect consumers' procedural rights. [ABSTRACT FROM AUTHOR]

Collective actions provide employees with an important opportunity to challenge their employers' alleged violations of workplace wage and hour laws under the Fair Labor Standards Act ("FLSA"). Unfortunately, unlike Rule 23 Class Actions, collective actions lack formal guidelines. Therefore, parties disagree on many of the important procedural hurdles that must be resolved before a court examines a claim on its merits. The addition of arbitration agreements has further complicated FLSA procedures, particularly at the notice stage, where plaintiffs and defendants often disagree about whether arbitration-bound employees should receive notice of a pending action. Although several circuit and district courts have attempted to address the provision of notice to arbitration-bound individuals, these judicial efforts have come up short. This Note argues that the Supreme Court, pursuant to the Rules Enabling Act, should adopt a new Federal Rule of Civil Procedure to address this notice issue. The Proposed Rule would balance plaintiff and defendant's interests by allowing courts to authorize notice to all "similarly situated" individuals, while still leaving room for defendants to present a defense that individuals with valid arbitration agreements cannot be joined to the action. Ultimately, this Proposed Rule will bring collective action notice procedures back into alignment with the purpose of the FLSA and the Supreme Court's pronotice decision in Hoffmann-La Roche v. Sperling. [ABSTRACT FROM AUTHOR]