Recent court decisions confirm the possibility of mandatory arbitration as a viable option for retailers frustrated with the rising costs of litigation, and the inability to recover their attorneys’ fees, for frivolous class action lawsuits.

As I reported in a recent Law360 article, the clear benefits of arbitration to retailers include:

  • its barrier to class action claims;
  • its rational approach to damages;
  • the mainstreamed, and therefore less costly, discovery process;
  • the extremely narrow right of appeal;
  • the neutralization of jury nullification; and
  • of course, the availability of fee awards where an arbitrator deems a claim frivolous.

All of that, plus the reduced risk of media coverage, should serve as major disincentive for a frivolator seeking to score big bucks.

However, whether a consumer plaintiff can be required to waive the right to trial and submit to arbitration depends on whether he or she has agreed to do