Consumer attorney raises alarm on non-consolidation clauses 

Legislatures will need to turn their attention to restricting non-consolidation clauses in clickwrap agreements that have the potential to put a "padlock" on the courts' authority, according to a leading plaintiffs' attorney. The statement comes as consumer attorneys warn that similar federal efforts to whittle away at arbitration clauses will likely face roadblocks under the incoming Trump administration. 

Speaking at the Consumer Attorneys of California convention in San Francisco on Thursday, Elizabeth J. Cabraser told the audience that they "really have to watch out for" non-consolidation clauses. Cabraser is a partner at Lieff Cabraser Heimann & Bernstein LLP. 

She warned that these clauses weren't just aimed at waiving a plaintiffs' right to participate in a class action but also participation in any coordinated proceeding, such as multi-district litigation or Judicial Council Coordination Proceedings. She cited Uber Technologies Inc.'s use of such a clause as an attempt by major companies to stifle the potential for multi-district litigation in federal courts and joint actions in state courts. 

"That would make anything that we do for plaintiffs, even if it involves just two, extinct if it is honored or enforced by a court," she said. 

Cabraser said that such a clause isn't an attack on litigants, but on the "authority of the courts," describing it as "basically a padlock on the court's authority." 

The California Legislature should attempt to address this in a future session, she said, though she cautioned that any move may be preempted. 

On the topic of legislative interventions, panelist Mike Arias said that recent efforts to "chip away" at forced arbitration clauses were likely to be "delayed for some time" given Republican domination of the executive and legislative branches come January. Arias is managing partner with Arias Sanguinetti Wang & Team LLP. 

The panel, moderated by Panish Shea Ravipudi partner Erika Contreras and also consisting of Gerald Singleton, managing partner at Singleton Schreiber, and Michelle West, a partner at Robinson Calcagnie, agreed that defense attorneys and their clients were beginning to awaken to the fact that arbitration was an expensive endeavor for which they bear responsibility. 

The filing fees alone were "phenomenally expensive," Singleton said.