LITIGATION TRENDS 2025 | 35 T O C E M P E S G A N T I I P C A P R O W C S P O R T C O N T A C T I N T A P P P A T C C L S E C Companies Continue to Develop Strategies to Combat Mass Arbitration In 2011, the United States Supreme Court upheld class action-banning arbitration clauses in standard-form contracts. AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 343 (2011). In the nearly fifteen years since the Concepcion decision, the plaintiffs’ bar has worked assiduously to chip away at arbitration’s supremacy, but without much success. Recently, however, plaintiffs’ lawyers have attempted to exploit class-action banning arbitration clauses by bringing “mass arbitrations” – i.e., arbitrations in which lawyers file hundreds or even thousands of separate arbitration demands on behalf of claimants asserting identical claims. These lawyers reason that respondents will settle early in order to avoid the staggering cost of arbitrating a multitude of individual arbitration demands. Companies have responded to the threat of mass arbitration with several strategies. For example, companies have amended their standard-form contracts’ arbitration provisions by requiring that claimants personally participate in a pre-filing settlement conference before filing arbitration demands. See, e.g., Terms and Conditions, SAMSUNG (last visited Feb. 19, 2025). Companies have also moved away from traditional arbitral providers to providers whose rules require the parties to split fees and costs or require the non-prevailing party to pay fees and costs. See, e.g., Snap Inc. Terms of Service, SNAP INC. (last visited Feb. 19, 2025). Some companies have attempted to deploy the smallclaims election clauses in their standard-form contracts, which permit either party to elect to resolve disputes in small claims court. See, e.g., Baker v. Match Grove, Inc., No. 22-cv-6924, 2023 WL 3737808, at *1 (N.D. Ill. May 31, 2023). Still other companies have imposed rules that require the “batching” of mass claims – i.e., the use of bellwethers for the resolution of common issues. See, e.g., Terms of Use, OPENAI (last visited Feb. 19, 2025). L Complex Commercial Litigation Greg Silbert Co-Head New York gregory.silbert@weil.com David Singh Co-Head Silicon Valley david.singh@weil.com 34 | Weil, Gotshal & Manges LLP
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