When a company buries a mandatory arbitration clause in its terms of service, it expects to eliminate class action exposure. What it does not expect is that the same clause becomes the mechanism for something that can cost more: a coordinated wave of thousands of individual arbitration demands, filed simultaneously, each triggering its own administrative fee, each requiring its own arbitrator, each proceeding on its own track.
That is mass arbitration. Georgetown professor J. Maria Glover, whose 2022 Stanford Law Review article remains the first comprehensive academic study of the practice, describes it as a private procedural counteroffensive against the decades-long campaign that eliminated class actions through forced arbitration. Understanding exactly how that counteroffensive operates — step by step, including where it breaks — is essential for any plaintiffs' attorney considering the space.
Step 1: Identify a Viable Arbitration Clause
Before a single claimant is recruited, the campaign begins with a legal analysis of the target's arbitration agreement. Not all clauses are equally exploitable.
The variables that matter: which forum is specified — AAA, JAMS, or a smaller provider? Is there a class action waiver? Does the clause contain mass-arbitration-specific machinery such as batching requirements or bellwether procedures? Are there fee-shifting provisions? What is the governing law, and does that state impose fee-payment deadlines?
The most workable clauses mandate AAA or JAMS, contain a class action waiver — which is precisely what removes the class action alternative and forces individual filings — and predate the wave of defensive redrafting that followed the strategy's first high-profile successes.
Companies that revised their agreements after those losses often added provisions requiring claims to be processed in batches, limiting simultaneous filings, or mandating bellwether proceedings. Those clauses are harder to leverage and demand different tactics. They are also not automatically enforceable — courts have struck several down, and the enforceability line is still being drawn.
Step 2: Build a Documented Claimant Base
Unlike a class action, where a named plaintiff represents absent members, mass arbitration requires every claimant to be a real, individually documented person who has retained counsel to pursue their own claim. That means hundreds or thousands of actual people — which requires a serious acquisition operation.
Recruitment typically runs through paid search, paid social, and organic intake funnels. Each claimant signs a retainer, confirms use of the product or service, and — critically — produces evidence connecting them to the agreement containing the arbitration clause.
That last requirement is no longer optional, and the case that made it mandatory is worth reading in full. In Wallrich v. Samsung Electronics America, Inc., 106 F.4th 609 (7th Cir. 2024), claimants filed 35,651 individual BIPA demands with the AAA, which assessed Samsung roughly $4.125 million in fees. Samsung refused to pay, citing missing contact information, duplicate claims, and demands filed on behalf of people who appeared never to have owned a Samsung device. The AAA closed the cases. When claimants petitioned to compel arbitration under 9 U.S.C. § 4, the district court granted it — and the Seventh Circuit reversed.
The holding is narrow but consequential: a party seeking to compel arbitration bears the burden of proving an enforceable agreement exists, and a spreadsheet of names paired with a copy of the defendant's terms of service does not carry that burden. The Harvard Law Review's case comment is critical of the decision's implications for claimants, and is worth reading alongside the opinion for the counterargument.
The practical translation for a campaign: intake documentation is a legal requirement, not an operational nicety. Purchase records, account creation data, timestamped acceptance evidence, and signed declarations need to be captured at the point of recruitment, because reconstructing them for 30,000 people after a challenge is filed is not realistic.
Step 3: File Demands Simultaneously with AAA or JAMS
Once the claimant base reaches critical mass, counsel files individual demands — often thousands at once — with the applicable forum. Each demand is a separate proceeding, and each triggers administrative fees that consumer rules generally allocate to the business.
The AAA's mass arbitration procedures engage at 25 or more similar demands against the same party. JAMS sets its threshold at 75 or more. Both forums have revised their mass arbitration rules and fee schedules repeatedly since 2021, so counsel should confirm the current published schedule rather than relying on secondary summaries — including this one.
The economics of this step are the entire theory of the case. A company facing 10,000 simultaneous demands is not merely facing 10,000 cases; it faces aggregate administrative exposure that can reach into the tens or hundreds of millions before a single merits hearing.
The Intuit/TurboTax campaign illustrates the scale. Keller Lenkner (now Keller Postman) disclosed in a 2020 court filing that more than 100,000 consumers had sought individual arbitration against Intuit over allegations it steered eligible filers toward paid products. In the related proceedings, a judge tallied Intuit's potential arbitration exposure at a minimum of roughly $128 million — approximately $3,200 per claimant across the subset of claimants then represented. Intuit separately offered $40 million to settle the parallel class action, an offer Keller Lenkner opposed and Judge Charles Breyer declined to approve, because approval would have extinguished the arbitration claims for anyone who failed to opt out.
That sequence is worth sitting with, because it shows the leverage working in both directions: the arbitration campaign made a cheap class settlement unattractive to the claimants' side, and the claimants' side successfully blocked the defendant from using a class settlement as a release.
| Forum | Mass Arbitration Threshold | Initiation Fee | Per-Claim Fee (Range) | Global Mediation Required? |
|---|---|---|---|---|
| AAA | 25+ similar claims | Flat initiation fee | Low hundreds to high hundreds per claim | Yes (opt-out available) |
| JAMS | 75+ similar claims | Flat minimum filing fee | Hourly process administration, variable | No |
Step 4: The Defendant's Response — And the Leverage Point
On receiving mass filings, the defendant faces a decision with no comfortable option. Pay all fees and staff a defense across thousands of proceedings, at enormous cost. Refuse to pay, and risk a court compelling arbitration and the fees anyway. Or challenge the filings — most often by attacking whether the claimants can prove they agreed to arbitrate at all.
Most defendants eventually negotiate a global settlement, which is the outcome the campaign is engineered to produce. But the third option has become considerably more attractive to defendants since 2024, and counsel should plan for it.
Fee refusal: what actually happens
This is the most commonly misstated point in mass arbitration commentary, including in earlier versions of this page. Fee refusal is often described as a trap that forfeits the defendant's right to arbitrate. Sometimes it is. Sometimes it is a successful defense. The distinguishing factor is the evidentiary record, not the refusal itself.
Where refusal failed. In Abernathy v. DoorDash, Inc., 438 F. Supp. 3d 1062 (N.D. Cal. 2020), Keller Lenkner filed demands for 6,250 delivery couriers alleging misclassification. Facing its own AAA fee exposure, DoorDash refused to pay and the AAA closed the cases. Judge William Alsup compelled arbitration for 5,010 couriers and ordered DoorDash to pay approximately $9.5 million in fees. The couriers had signed declarations attesting that they clicked through DoorDash's arbitration agreement — the evidentiary record was there.
"The irony, in this case, is that the workers wish to enforce the very provisions forced on them … 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 classwide 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."— Judge William Alsup, Abernathy v. DoorDash, 438 F. Supp. 3d 1062, 1068 (N.D. Cal. 2020). Note the closing qualifier: Alsup limited the holding to that order.
Where refusal succeeded. In Wallrich, Samsung refused to pay on the same structural facts — AAA fees assessed, refusal, cases closed, petition to compel. But Samsung paired the refusal with a challenge to whether the claimants could establish agreements at all, and the Seventh Circuit reversed the order compelling arbitration. Samsung never had to pay the $4.125 million.
The practical rule. A defendant's fee refusal, standing alone, tends to fail — Abernathy and the cases following it make refusal expensive. Fee refusal combined with a documentation challenge is a live defense, and after Wallrich it is the defense sophisticated defendants lead with. Note also that Abernathy is a district court decision and Wallrich is a published circuit opinion; they are not equally weighted authority, and outside the Seventh Circuit the question is less settled than either case suggests on its own.
Several state legislatures have layered statutory fee deadlines on top of this. California's fee-payment provisions, for instance, were designed to make late payment automatically forfeit the right to arbitrate — though the California Supreme Court has since softened how mechanically those penalties apply. Counsel running California campaigns should treat that as its own research question rather than assuming an automatic penalty.
Step 5: Forum Administration and Arbitrator Assignment
Under both forums' mass arbitration protocols, cases are typically processed in waves rather than all at once. A process arbitrator (AAA) or process administrator (JAMS) resolves administrative disputes before individual claims reach merits arbitrators. AAA schedules global mediation early, creating a structured settlement window before the full docket proceeds.
If mediation fails, claims are batched and assigned individually. Firms must be operationally prepared to manage hundreds of simultaneous proceedings — a burden that is routinely underestimated.
The operational complexity here is a real barrier to entry, and it explains why the practice has consolidated among a relatively small number of firms. Managing 5,000 active proceedings requires purpose-built case management infrastructure, dedicated intake and paralegal staff, and working familiarity with forum administrators. Firms without that capacity generally co-counsel with firms that have it.
Consolidation authority is also contested territory. Where a forum consolidates thousands of claims into a single proceeding, the defendant's per-claim fee exposure can collapse — which is the entire source of leverage. Whether a forum may do that over claimants' objection has been litigated, and the answer has not been uniformly favorable to the plaintiff side.
Step 6: Settlement Negotiation
Most campaigns resolve through a global settlement negotiated between claimants' counsel and the defense. Timing varies enormously — some defendants settle within weeks of the first filing wave; others litigate through multiple rounds of forum and court proceedings first.
Per AAA's 2024 data, 59% of consumer mass arbitrations settled, roughly 1% reached a formal award, and the average consumer arbitration award was $10,131. Per-claimant settlement values vary widely by claim type, evidentiary strength, and claimant volume.
Mass arbitration settlements are structurally different from class settlements, and the difference cuts both ways. There is no court approval requirement, no notice program, no opt-out window, and no objection period — which removes months of procedural delay. It also removes the judicial oversight that protects class members. Each claimant's recovery is governed by a private agreement and by the retainer they signed, which places considerably more weight on how that retainer was drafted and how clearly it was explained at intake.
What Makes a Mass Arbitration Campaign Succeed?
Across campaigns that have produced meaningful results, the same factors recur:
- A workable clause specifying AAA or JAMS, containing a class action waiver, without enforceable batching or consolidation machinery that neutralizes fee leverage
- Documented claimants with evidence of agreement acceptance captured at intake — the Wallrich standard, not the pre-2024 standard
- Scale, because fee exposure only becomes coercive in the hundreds or thousands; small campaigns do not generate enough pressure to move a defendant
- Operational infrastructure capable of administering simultaneous proceedings without collapsing
- Acquisition capability — the ability to source qualified claimants at volume and at a cost per signed claimant that the expected recovery supports
- Retention, since attrition across a multi-year process directly reduces settlement leverage
The Limits and the Open Risks
Mass arbitration is neither universally applicable nor low-risk, and the risks have grown since 2024.
Documentation challenges are now standard. Wallrich gave defendants a tested playbook, and the Seventh Circuit is not the only forum receptive to it.
Forums have revised their rules, repeatedly, generally in directions that slow mass filing and give process arbitrators more authority over consolidation and batching.
Defendants have begun suing plaintiffs' firms directly, alleging that campaigns were built on inadequately vetted claimants. Those suits have had mixed procedural outcomes, but they represent a materially different risk profile than forum-level disputes — one that runs to the firm rather than the case. Our case law breakdown covers these in detail.
The legislative floor could move. Congress and state legislatures periodically consider restrictions on mandatory arbitration. Any significant change would reshape the strategy's foundation, in either direction.
Despite this, the core leverage has not changed: a defendant that contractually foreclosed class actions has also contractually committed to individual arbitration, and at sufficient volume that commitment is expensive. What has changed is that executing on it now requires evidentiary discipline that the earliest campaigns did not.
Frequently Asked Questions
How does mass arbitration work step by step?
How many claims are needed to trigger mass arbitration rules?
What happens if a company refuses to pay mass arbitration filing fees?
What percentage of mass arbitrations settle?
Do mass arbitration settlements require court approval?
- Epic Systems Corp. v. Lewis, 584 U.S. 497 (2018) — U.S. Supreme Court
- Abernathy v. DoorDash, Inc., 438 F. Supp. 3d 1062 (N.D. Cal. 2020)
- Wallrich v. Samsung Electronics America, Inc., 106 F.4th 609 (7th Cir. 2024)
- J. Maria Glover, Mass Arbitration, 74 Stan. L. Rev. 1283 (2022)
- Harvard Law Review case comment on Wallrich, 138 Harv. L. Rev. 1697 (2025)
- AAA Mass Arbitration Rules and Procedures
- JAMS Mass Arbitration Procedures
Ready to Build a Mass Arbitration Campaign?
Understanding how mass arbitration works is step one. Building intake infrastructure that recruits documented claimants at scale — the kind that survives a Wallrich challenge — is step two. That's what Overdeliver Media LLC builds for plaintiffs' firms.
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