For the past decade, Professor Jeff Sovern has criticized companies for including opt out provisions in their consumer arbitration clauses, even though such provisions give consumers freedom of choice by allowing them to reject arbitration without affecting the other contractual terms. Most recently, he argues that opt out provisions are actually what the FTC calls a “dark pattern”—a practice that “tricks users into making choices they would not otherwise have made and that may cause harm.” According to Professor Sovern, opt out provisions in consumer arbitration clauses “create the appearance of consent but not the reality.”
Importantly, scores of state and federal courts, both trial and appellate, have scrutinized opt out provisions in consumer arbitration clauses and found them to be fair and enforceable, rejecting contentions that they are procedurally and/or substantively unconscionable. As one California federal district court has found, “an opt out provision eliminates any possibility of adhesiveness and precludes a finding of oppression.” In other words, an opt out provision was found to be the polar opposite of a “dark pattern.”
Ignoring these judicial decisions, Professor Sovern’s latest assault on opt out provisions reiterates many of the same arguments he has raised before. He argues that (1) “few consumers read contracts,” (2) even if they do they don’t read far enough to see the right to opt out, (3) they don’t understand opt out clauses, (4) they are ignorant of arbitration’s consequences, and (5) it’s hard for them to opt out because they are asked to mail an opt out notice back to the company within a prescribed period of time. As support, he falls back on a study he conducted ten years ago—a study we critiqued at length at that time and found was deeply flawed. (See here and here.)
Professor Sovern’s portrayal of consumers as victims of companies’ “dark patterns” disregards not only the abundant case law, but also well-established legal principles and the language of the very contracts he is criticizing. Contract law rests on the fundamental principle that parties (yes, even consumer parties) are obligated to read the contracts they enter into and are bound by those contracts even if they choose not to read them. In any event, the consumer’s right to opt out of arbitration is usually disclosed at the very beginning of the arbitration provision or the contract itself. Most arbitration clauses contain clear and conspicuous disclosures about the arbitration process and its legal consequences, including the fact that if a claim is arbitrated, there will no right to a jury trial or, if there is a class action waiver, to participate in a class action. They also provide explicit instructions concerning how and when to opt out, what information should be included in the opt out notice, and the legal ramifications of opting out or not opting out.
Finally, asking the consumer to mail a short opt out notice back to the company is no more burdensome than requiring a putative class member to send back a written opt-out notice if he or she does not want to participate in a class action settlement or a certified class action. That is a standard requirement of FRCP 23(c) and has been for many decades. As the U.S. Supreme Court has emphasized, due process is satisfied when an absent plaintiff has an opportunity to remove himself or herself from the class “by executing and returning an ‘opt out’ or ‘request for exclusion’ form to the court.” If constitutional due process is satisfied by requiring a person to send back a written notice opting out of a class, clearly it is not burdensome to ask a consumer to send back a short written notice opting out of arbitration. Requiring a written notice is clearly not “a roadblock in the path of consumers trying to opt out,” as Professor Sovern contends.
In sum, it is both illogical and incorrect for Professor Sovern to assert that “[t]he industry is using opaque patterns to make it harder for consumers to escape arbitration clauses.”