Let’s assume 50 consumers are all injured by blatant consumer fraud to the tune of $50. Assuming a really cheap arbitration of $5,000 each (which means the defendants took no steps whatsoever the prolong it), that’s $250,000 the plaintiff’s lawyer has to shell out of pocket, likely over the course of years, just for the privilege of maybe having a chance at recovering $2,500 and maybe have a chance of recovering attorney’s fees which are never available for breach of contract and only sometimes available for consumer fraud.

But I think the proof is in the pudding: if it’s going to be so easy to file and win these things, why don’t some of the arbitration cheerleaders do it? It’s not like there’s an absence of illegal conduct out there. And if arbitrations aren’t going to make a difference, why are companies rushing to use them?

There’s a reason the vast majority of plaintiff’s firms don’t bother with class actions: they typically fail, and now even more will fail, all because SCOTUS has legislated from the bench, dishonestly ruling that the FAA — which says merely that arbitration should be on equal footing with other contract clauses under state law — mandates that arbitration clauses are to be given irrefutable preference over all other provisions of federal and state law.

I look forward to Cook bringing several thousand individual antitrust actions against AmEx, to prove his bogus theories.