Terminal Value

Consumer Arbitration with Alex Darr

Doug Utberg

Business Growth Authority | Technology Strategy & Resourcing | Cost Optimization Expert | Business Process Architect | Financial Strategist | Founder - Terminal Value Podcast
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I Have Alex Darr with us today we are talking about consumer arbitration. This is actually really important, especially in the era of things like the investigations that have been going into on Robin Hood, especially with the game stock short squeeze that happened in the equity markets. Alex, I’d love for you to provide a little more color, but I think this is actually a really important topic for a lot of people, just because I think that it’s really a way of kind of empowering normal people just because my observation is that the way the world is currently evolving is that there are certain entities that are just gathering more and more and more power, and that there are a lot of people who really feel like they don’t really have much of a voice or much of a real way to influence things. I don’t know, feel free to append, but at least that’s my impression. And that’s actually one of the reasons why I set up this interview.

Yeah. Well, Doug, thanks so much for having me on here. I appreciate the opportunity to talk with all of your listeners about the opportunity that I see in consumer arbitration and why everyone should know about it, at least a very surface level of it. So like I said, I’m Alex, I’m an attorney. I’ve been practicing for a little over ten years now. I’ll get the quick disclaimer out. We’re going to have a lot of talk about the law and all sorts of things like that. But as always, everyone do your due diligence. Hiring a lawyer is an important decision. Make sure that you ask questions and look into things. And please don’t take this as gospel or anything along those lines. But consumer arbitration is something that I think a lot of people have probably heard about on the surface. It’s been getting more coverage in the press lately. And by lately, I mean just like in the last three or four years. And here’s why it’s so important, because whether or not Americans know it, they’ve all agreed that for many of their interactions that they have in day to day existence, whether it’s their cellphone carrier, whether it’s their Internet provider, whether it’s the Zoom platforms that we’re having conversations on. When you click to agree to all those terms buried in there is this arbitration provision. More often than not, not every company uses it, but most major companies do all of the major cellphone providers, et cetera. And what you’re agreeing is you say, I will not sue you in court. I cannot sue you in court, and instead I have to go to arbitration to resolve my disputes. That’s like the big overarching reason

why everyone needs to understand this is because you are literally giving up these basic fundamental rights. When we think about, like, your right to a trial by jury, you’re giving that up when you click on some of these I accept buttons. So it would be good to at least just understand sort of what you’re getting yourself into.

Obviously, not everyone has the time to spend hours looking into this, but at least understanding the basics of it.

Here’s what interesting thought exercise to be like, okay, what would life be like if I never accepted a single end user license agreement? Okay, well, that means I couldn’t use any email platforms. I couldn’t use any video platforms. So it’s like for right or for wrong, the arbitration clause is kind of ingrained in pretty much any use of technology in your existence. I think the only way you can get away from eula is if you for the listeners, that’s Eula and user license agreement, most of which include arbitration clauses, is basically if you willingly decide to be a hermit and then make used cash for all your transactions. So from a practical perspective, if you’re going to live in the 21st century, arbitration is kind of your only recourse in a lot of situations. Let me know your perspective. But that was just kind of my thought that I was just having.

No absolutely. When I was back in 2003, I was working on getting my Eaglescop project as part of the Boy Scouts America. And what I chose to do was I installed a little computer center with Internet access at a house that serviced women who had been subject to abuse and were in poor domestic situations. And I remember in that presentation I made some comments along the line of, in today’s day and age, Internet is no longer a luxury. It’s a necessity. And of course, that’s only continued to compound itself. And so living in the world, we do like you said, Doug, you just have to accept arbitration because everyone’s worked it into the agreements. And so it’s just one of those things. It’s like the Internet was 20 years ago. It’s a necessity of your life, the same way that knowing a little something about arbitration is probably a necessity.

I’m just going to stop you real quick and say you’re Eagle Scout. So first of all, thank you for being in Scouts. I was in Eagle Scout myself. I did my Eagle Scout project a little earlier than you in 1991, and my Eagle in November of 92, which is going to date me a little bit. But yes, I think Scouting is just an amazing organization. Quite frankly, I found that you’re just very illustrative just how many community leaders have come out of Scouting.

It is. I think it’s a really excellent program, and it’s going to be very interesting to see what happens going in the future with it now because it’s going through a lot of changes right now. And it’s had its substantial struggles, but I think that it still remains a very excellent program that services a lot of individuals who otherwise would not get that type of support and growth kind of mindset from even a traditional school experience.

For example, right now my son is going through scouting. And of course, the thing that I’m seeing now, of course, going through scouting from the other side because I was a leader in his Cub Scouts, and I will probably be back in a leadership role before too long, Boy Scouts as well. But a lot of it is because you think about if you’re an eleven year old. I used to be an eleven year old boy, but now let’s say an eleven year old kid. Since family Scouting has come into play, a lot of, say, 12 year olds just kind of struggle with things like picking their clothes up off the floor and knowing what they need to go do and getting things done on time. And a lot of what Scouting is really about, of course, there’s community service aspects, but it’s also just about really planning things out and then making sure that you’re prepared for the things that you’re doing and you’re prepared basically for the rest of your life. That’s actually one of the new scouting catchphrases is prepared for life, which I think I’ve come to really appreciate more now that I’m going through Scouting from the parent side, because you think about right when you’re a kid and you go from elementary school to middle school, you only have about six or seven or eight years before you’re supposed to be an adult. That’s not a lot of time to learn how to do a lot of really important stuff. I’m getting us completely off topic, but in a way, I think it kind of relates in because

understanding about arbitration is one of those adulting types of things that most of us really never had a chance to learn unless we learned about it from, say like, for example, a podcast episode or something.

You’re spot on, Doug, because that was what I was thinking, as you were saying. That is that there’s definitely the parallel here. And just like how scouting teaches you to whether it’s the smallest thing to come up with a plan and to execute on it, that is no different than what your finest Fortune 500 executive has to do. The scale is just dramatically different. I suppose the skill set is different, but the ideas those carry over. And

a big component of being able to succeed on those type of exercises is when you’re planning, you have to understand the rules of the game. You have to know what’s expected of you. And so if you’re existing in a system where you don’t even know the rules, how can you expect to succeed if you don’t even understand what the rules of the game are? And again, to bring it back, the idea here is arbitration is a rule that I think a lot of people don’t know affects them.

And so at the most basic level, you want to know it’s there and understand the rules. And then at a deeper level, you want to understand how can I make those rules work for my benefit, rather than just seeing it as this thing that you need to be aware of and not necessarily frightened of, but aware of, learn how you can use it to your benefit.

Yeah, absolutely. I think that’s an excellent point. So just tell us a little bit about some of the arbitration considerations that people need to think about.

Yeah. So I think there’s a large swath of individuals in today’s society who are unserved or underserved, legally speaking. And you were talking earlier about how we have these organizations that are continuing to amass power. And so you have this dichotomy, this separation where if you have a 10,000 or $20,000 claim, then you can probably afford to find a lawyer or the lawyer will take that claim on a contingency. But what do you do if you have $1,000 claim or if you’re out $500? Now, that’s probably not a claim that most lawyers are going to be interested in. Generally, it just doesn’t work for them, economically speaking. But in a world where the average median income for a family is $40,000, $500 is a lot of money. That’s a substantial sum of money that could be groceries for multiple weeks for family.

I’m going to stop you on just a quick tangent. I think that’s actually something really important for a lot of people to understand is that because, of course, the news stories that everybody sees you seeing about hundreds of thousands, millions, billions, et cetera, et cetera, et cetera, but median income is in the mid 40s, and it’s been there for a little while for the benefit of the users, median means half of the people are above, half of the people are below. And so what that means is that there’s kind of a lifestyle of the rich and famous view of general affluence, but the reality is just not consistent with that. And so I think this is getting back to what you’re saying, which is that if you’re talking $500,000 for a median type of person, which statistically is a big portion of the population, that’s quite a bit of money.

Right. And those people who have a $500, $1,000 grievance, they really don’t have anywhere to go. And so that’s where I think arbitration presents a real excellent opportunity, because in the traditional world, if you are let’s say you trade in your cell phone with at and T or Verizon or T Mobile, and they say that you’re going to get a $700 or $800 credit, and you don’t get that credit. What do you do? What are your choices? Well, I mean, you could sue them, but good luck finding a lawyer and if you can’t find a lawyer, Then you have to navigate it on your own. But this is where arbitration can really be beneficial. So I guess I’ll back it up from a general idea.

Arbitration is essentially a private resolution. Like we said, you’re not going to court, but instead, there are arbitration administrators who administer this private dispute resolution process.

And it’s very similar to court because it was developed by lawyers. But the idea is that you bring your complaint, and then the business has an opportunity to respond, and there are fees associated with it. But this is the real key.

The fees for the consumer are substantially less than the fees for a business in an arbitration

So whereas with our court system, our judges and the administration is paid for by our tax dollars, Arbitration is a private operation, so it has to find its own funding, essentially, and the funding primarily comes from the charges assessed against the business. And that kind of is very important because the small amount of money that the consumer has to pay compared to the large amount of money that the business has to pay, typically around $4,000 for most of these consumer arbitrations provides a really strong incentive for businesses to fairly and quickly resolve your disputes.


And a lot of arbitration provisions will provide, in fact, that the consumer doesn’t have to pay anything. So typically, there’s a $200 filing fee with the one arbitration administrator that does a lot of these. And many arbitration provisions will say that you don’t have to pay anything. The business will even cover your $200 filing fee. And so now, if you understand, you know a little bit about arbitration, you could file your own arbitration against the business. And suddenly that $700 credit that you might have been shorted for trading your iPhone Is substantially cheaper to the business Than the $4,000 filing fee they’re going to have to pay. So they have a very strong vested interest in resolving those small claims that historically would go completely underserved. A lot of individuals will just say, what am I going to do about it? I’m not a lawyer. I don’t know what to do. But again, if we’re talking about a $40,000 median income, $700, I mean, that’s a week’s worth of your income. That’s 2% of your income. That’s substantial. And so I think that arbitration provides an opportunity for people to be empowered. So that’s kind of the individual’s relationship with arbitration. And so then I’ll talk a little bit about what we’re doing. The firm I’m working with is starting on. So I’ve been doing consumer arbitration in my own private practice as Darla for about five years now. And in the last year, I’ve teamed up with my partner, who is Robert Sugar, and we’re starting the law dog service, just as it’s spelled LAWDOG. And the model is that we can’t represent an individual on one of those cases. Again, the economics is just challenging. If we get a $700 settlement from at and T and we’re taking 40% of it or 33% of it, the numbers, it’s hard to slice them down. But the opportunity that arbitration presents is we can combine your claims together, not as a class action, but as we call it, a mass action instead of mass arbitration. And so where you have situations where consumers are facing a kind of a repeated experience, a repeated claim, negative experience that leads to a claim like the iPhone trading example, for instance, then we are going to bundle those claims together by the dozens, by the hundreds, and present them together to at and T. So that with the larger numbers we have scaled so that it makes sense for us as a business. But it’s also going to allow us to get great relief for the clients without having to take such a substantial portion of the return for them. And so the goal, the hope here is that, like I said, not every consumer is going to learn how to file their own arbitration. I would love it if they did, but they’re not going to. We’re tired, we’re stressed, we’re short on time as is. But what we want to do is we want to provide the opportunity for consumers to be able to use that arbitration system to their benefit. And so I think it’s one important that consumers understand the system a little bit. And I encourage those individuals out there. I’m sure we have a lot of people who like the life hackers out here who will give this a shot, and I hope they do. And for those who don’t, who aren’t able to, for whatever reason, we want to provide that service and law dog so that we can bring a lot of these claims together so that it makes business sense for us and so that we can also get relief on these claims that again, otherwise probably would just fall through the cracks, probably wouldn’t be vindicated. So it’s about democratizing. And as we said right at the introduction, equalizing the system a little bit for the benefit of the consumer.

Well, and I think that’s good, too, because it’s funny, because depending on who you talk to, you can get a very pointed pro or anti attorney opinion. And I really think of things like kind of company’s attorneys, generally speaking, more neutral, because of course. Right. The thing is, what the company is trying to do is the company is attempting to maximize value for its shareholders or its owners. And then, of course, in the case of attorneys, what attorneys are trying to do is basically to arrive at just settlement for whenever there has been some kind of wrong committed. Of course, there are extremes that tend to get publicized. Right? There’s the Rolls Royce trial lawyers and the proverbial ambulance chasers, which is not the majority of lawyers. And then there’s the rapacious robber Baron types of corporate executives, which is not the majority of corporate executives. I think that one of the things. And I’m going on another tangent. I’m really sorry here, but one of the things I think that contemporary media is really done is it’s provided this since only really extremes are newsworthy, people get this view that extremes are all that’s out there, and they are by very definition, the vast majority, very tiny minority of what’s out there. Right. The overwhelming majority of what you are going to see is very uninteresting because if it was interesting, you’d hear about it on the news. And so the majority of what the people you’re going to see are pretty median reasonable by and large, of course, there are exceptions. And so kind of where I’m going with all this is that there will be some people who say, no, this is just trying to stick it to companies, but not necessarily, because what you’re really trying to do is you’re trying to create an incentive for fair settlement. And what you ultimately want to do is you ultimately want to incentivize companies to just basically honor their promises in the first place so that you will have smoother, cleaner transactions. Is that a fair articulation?


Anyone who thinks that arbitration is somehow being abused to her businesses should understand that businesses created arbitration for their benefit first and foremost. The fact is that class action lawsuits are a reality, and those can be incredibly expensive for businesses. And so when they get you to sign that arbitration agreement so that you can’t go to a class action, they’re winning. They’re delighted at that.

So this is you kind of getting your half of the bargain because the business has already gotten their part, and that is they can’t be subject to a class action. All you’re doing is taking them up on the offer that they it’s not even an offer. More often than not on the again, not even choice on what they said. You have to take or leave. If you want our service, you have to take it with arbitration as part of those terms, take it or leave it. And so at that point in time, the business is already getting what they want. This is not about shaking down businesses. It’s not about taking advantage of the system. It’s about using the system. And make no mistake, everyone’s doing it right. All of these large companies have hired armies of lawyers to use the existing rules to their benefit. And I’m a big believer. I consider myself sort of countercultural. I suppose I’m a big believer, though, in the idea that you did not make the system. More often than not, as consumers, we have a system in which we exist. And really, this is perhaps a bit of a stretch, but it’s no different than clipping coupons. The coupons are out there. Most people don’t use them, but people search through and they find their deals. And it’s the system that’s been given to us. It’s the system that the businesses have set up. And we’re simply operating within the parameters of that system for the benefit of consumers. And so I certainly have no trouble sleeping at night using arbitration to benefit consumers. And I think anyone who’s particularly negative against it is being unfair, because the fact of the matter is that this is a system that was created by businesses for their benefits first and foremost.

And again, being fair to the other side, too. It’s like from the perspective of the businesses, right. On the one hand, people could say, oh, they’re trying to reduce their litigation costs so they can make more money. It’s like, well, what they’re also trying to do is keep their transaction costs down so that they can offer more aggressive consumer pricing or in the case of a lot of online services, so that they can offer free services. Now, of course, you have to understand that anytime you use any free service online, whether it’s Facebook, whatever, just understand that you are the product, that your data is the product that is paying for that free service.


So, yes, I basically view it as a neutral type of situation. I don’t really think it’s necessarily good or bad. It’s just what is and I think that’s really the point you’re making is that it’s the reality. So you might as well learn about it so that if there is a situation where there is some kind of wrong that needs to be remedied, that you can use that tool in your Arsenal. Right.

Well, and money is fungible at the end of the day. Right. So money that the business saves has to go somewhere. It has to go somewhere on the balance sheet. And like you said, that often manifests in reduced costs. And we’ll get to that if we talk specifics here on Robinhood, which I’m sure we will hear in a second. But I think, again, on the whole, it’s a system that the businesses have made. And really, if you think about it, it’s a bargain that they’ve decided that they want to absorb both sides of the store, both edges of the sword, excuse me, because they’re reducing their litigation costs and they know what they’re doing. They have intelligent lawyers who are making these decisions for them. And they probably have run the math many times over. And if they don’t like the arbitration system, they are certainly in a position to remove from their terms and conditions. But I think the fact that the terms and conditions continue to include arbitration demonstrates that it’s certainly for the benefit of the business still at this point.

Well, let’s see. Let’s actually transition to the Robin Hood case. I think that’ll give us a good way to cap off.

Yeah. So for those who aren’t aware, back in late January, the GameStop stock price went through the roof. It was a typical short squeeze. And so the idea behind a short squeeze is that you have a lot of people who have bet against the stock. And the way they bet against the stock is they essentially say, I promised to buy back the stock in the future. And it’s a bet against the stock because you’re promising to buy it back in the future. Your bet is that the stock will be cheaper, the price will have gone down. So you’re hoping that you will buy it back for less money and the difference between when you made that promise and when you in fact buy the stock back, that’s where you make your money. And so the issue that can happen in such a situation is that so many people have made that promise to buy back stock, and then the stock price starts going up, which is what happened with GameStop. Now, all of a sudden, these people who have promised to buy the stock back, made that irrevocable promise are looking at having to buy the stock back at a more expensive price and an ever increasing more expensive price. And so as people who have made that promise capitulate, and they decide, all right, I don’t want to make that promise anymore. I’m going to buy it back at this price. That continues to make more upward pressure on the stock price. And it’s called a short squeeze. Dramatic oversimplification.

That’s the thing is here, short squeezes are very frequently mistaken for real growth. That’s what happens with GameStop, what happened with Tesla, especially because in the case of Tesla, since they released a lot of convertible bonds, a lot of times what will happen is if a hedge fund buys a convertible bond where the stock price is separated from the strike price on the bond, what they’ll do is they’ll just short the stock because then what they can do is they can lock in the spread between whatever the strike price on the bond conversion is and the current price of the stock is. But of course, then what happens is if the price goes up too much, then you end up having a short squeeze, which is where people buy to cover. The exact same thing happens on the other side. If the market starts going down and you have people who have bought stock on margin accounts, all of a sudden you have a margin call. People have to sell to cover. And then what happens is that selling drives the price down. Then more people have to sell to cover their margin loans. And then you end up to end up having a vortex. That’s what happened in 2008 when the market went down, I think like around 50% or something like that. You ended up having a rapid sequence of forced deleveraging because people were liquidating margin accounts. And it’s basically the opposite situation when you have a short squeeze.

Yeah. And we saw the same thing in March 2020, not to the same degree as 2008, but where I remember there was one day where all of the stocks were down, but gold was down as well, which is sort of typically that’s not the way it usually works. Usually gold is a safe asset. So we see that go up when there’s big sell offs in the market. And the theory is that people just needed cash as the market continued to go down in 2020. But a couple of interesting things happened with the game stop short squeeze. And most of them revolve around the broker, Robin Hood, which is a relatively new broker and particularly popular amongst millennials, shall you say, and younger. It’s a very gamified trading experience. It’s very different than swap. For example.

We’ll because they operate mostly in fractional shares, which means it’s extremely low dollar amounts. So in that case, in trading really becomes more of a more of a game than investing because you’re not dealing with enough money for it to really be material.

Right. And, you’re know, they kind of classic growth hacking type of tactics and their marketing. Right. Sign up and you’ll get a free share, and maybe it’s going to be a share of a two dollar company, but maybe there’ll be a share of a $200 company you don’t know.

And so Robin Hood is very popular. Another thing that they do is they have incredibly low fees that they charge to the users. And one of the reasons why is because the data that they collect from traders is sold off to other third parties. And so this gets back to that point that you made, that if you’re not paying, then you’re probably the product.

And that’s at least part of what’s that issue here with Robinhood is that consumers, their trading data is shared with third parties that can use that data for their benefits to be mindful of those third parties use that data.

They don’t use that data to say, hey, what do I think all these smart people are doing? They say, okay, this is what all the retail traders are doing. So I want to go take the other side of that and do the exact opposite. It’s basically a counter signal to hedge funds.

Right. And they do it with lightning speed. So you click buy, and between the time you click buy and that order actually fills, they get your data, they analyze your data, and they make a trade based on your trade. And they’ve actually filled their trade before you filled yours, even though you hit by first on yours. Incredible.

Especially in the case of Robin Hood. It’s like since they have fractional shares, what they can do is if they aggregate the transactions from thousands to millions of people, they don’t have to buy or sell all that many shares really, in order to settle all of their parts. Ostensibly, what they have is a high number of low dollar value derivative contracts that they settle out into ownership shares, which I don’t think is necessarily wrong per se, but I think it tends to really get overblown just because the dollar amount that’s going through this is not material.

Right. It’s definitely a brave new world. So that’s our build up. And so what happened is as GameStop’s price was increasing, I think it started January at 15 or $20. And by January 27 or 28th, it reached an Intraday high, excuse me, of $480. So you’re talking a dramatic increase in price. And one of the things that happened as it was going shooting up was that Robin Hood halted buying of the stock but not selling of the stock. Doing that just basic market 101. When you reduce the demand for those shares, it’s going to create downward pressure naturally on the stock price. And so it’s been suggested that that decision by Robin Hood essentially ended the short squeeze and brought the price of GameStop down as people were participating on the way up. Those individuals who bought at $200, at $300, at $400, as the price came back down, they suffered substantial dramatic losses. And there has been a number of class actions filed against Robinhood related to this conduct. And again, that’s a bit of a gross oversimplification, but that is the state of affairs. And so here’s where the arbitration connection comes in. We were talking about March 2020, all of that kind of crazy market activity. Robin Hood crashed several times during those very tumultuous days. And there have been a number of class actions filed related to that, where people couldn’t buy, they couldn’t sell, and so they suffered losses. There are class actions going on right now. They’re progressing along. I think they’re starting to talk about settlement now. So here we are a year later and they’re starting to talk about settlement. Right. And so assuming that the class action gets approval for that settlement, maybe the consumers will be getting paid out a year from now. And so you’re talking two years from when the injury happens to when they might get paid out. And will the individuals get paid out all of their losses, some of their losses, who’s going to get paid? We just don’t know. And so when you take part in a class action, you’re signing up for a long process and you’re signing up for a lack of control because you are just one in the entire class. Well, the other opportunity that people have is to engage in arbitration through FINRA, which is the organization that administers compliance generally with brokerage accounts and has all sorts of rules and different policies for brokerages and thinner arbitration is going to give you those benefits that we were talking about with arbitration. It’s going to give you a price structure that is going to incentivize settlement, and it’s also going to give you a much faster resolution. So again, if you’re out $1,000, for whatever reason, let’s say that your brokerage crashed. This happened a lot around the GameStop situation. People would buy and then they wanted to sell and they simply could not sell because their brokerage had crashed. They’d call the 1800 number and they’d be on hold for 2 hours. And then by the time those 2 hours passed, the stock prices were down 30, 40, 50%. And we have a number of clients with Law Dog who have lost $100,000 because of that. They bought 10,000 shares at $13, I’m sorry, at $20. And they wanted to sell at $25. And then by the time trading started again, it was at $10. For those people who have lost $100,000, they’re going to have no problem finding a lawyer who’s going to take that case. But the issue is, again, what if you put $1,000 into this thing and you lost 600 $700? The established FINRA arbitration firms, they’re simply not going to take your case because it just doesn’t make economic sense for them. And again, that’s where we see Law Dog presenting an opportunity to bring a case that otherwise historically has not had an avenue for relief. And so right now, what we’re doing, what we have been doing is we’re collecting these smaller cases. And in fact, a lot of our leads are coming from these traditional FINRA firms that have said, hey, I only take cases that are over $50,000, over $75,000, but I have all these other leads because we’re a well established, well known firm in this area. Can you guys help these people out? And what we’re trying to do is say yes, as often as possible because we think that we know that based on all of our modeling that we can take these cases and we can mask them together and we’re going to be able to get successful, fast results for our clients when normally they wouldn’t be able to get relief or if they are as part of a great big class action where maybe they’ll get relief in two years for their claim, we think that we can do better for them. And that’s certainly what we’re going to try to do.

I got you. All right. Well, hey, let’s cap off. Let everybody know where they can contact you at.

Yeah, absolutely. So again, my name is AlexDarr@lawdog.com, just as you would spell it Lawdog.com. And if we can be of any help, please feel free to reach out and we’d be happy to talk more with you.

All right. Sounds great. Thank you very much, Alex. And everybody. Check that lawdog.com.

Hey, thanks so much, Doug. Take care.

Talk to you later.

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