With (most) arbitration clauses, you can't actually sue at all. You have to go through a private arbitration firm, which can set pretty much whatever rules they want - including things like basing rulings on religious law [1]. Compared to that, I'm pretty sure there'd be nothing illegal about rules to defeat the hypothetical law firm, like requiring complainants to show up in person.
Except they have to get all of those millions of lawsuits dismissed individually by advancing that argument and failing in even a single of those cases through a novel argument on the part of plaintiff, sympathetic judge, etc could open an avalanche of lawsuits against the firms.
It also would force the courts dismissing the lawsuits to grapple with the sheer scale of criminality that the dismissals are being used to hide -- it's easy to hide it when you shut down a handful of lawsuits and the vast majority of your victims remain silent, but are judges going to be so accepting of mandatory arbitration when they've already, personally, dismissed thousands of suits because of arbitration clauses that are about the exact same kind of fraud perpetrated by the exact same people and have thousands more left on their docket? How many times do you believe that a judge can see the exact same crime happen from the same perpetrator and just go "Ho, hum, nothing to see here!" Sometimes, the key is just to be really noisy and annoying so they can't ignore the issue.
The act of filing the suits, particularly in a concerted bulk effort, and forcing the government to address and dismiss each individual suit is an effective form of speech and protest.
Your argument is shallow excuses for defeatism, which in turn excuses not actually trying.
Edit:
It also introduces a novel argument of "Uh, so this court has dismissed over 10,000 lawsuits about this exact issue -- clearly we're being abused by a corporation and petitioning the state for assistance. [Argument why the state is obligated to assist.]"
It forces the court to explicitly address the argument that the arbitration system is being coupled with a power imbalance to enable criminal action against entire states of people by documenting the scale via dismissals -- which are public record and can be used as evidence in subsequent cases.
> Except they have to get all of those millions of lawsuits dismissed individually by advancing that argument and failing in even a single of those cases through a novel argument on the part of plaintiff, sympathetic judge, etc could open an avalanche of lawsuits against the firms.
That could only work if people actually filed the lawsuit. However, filing a lawsuit isn't free (as the below random website attests [1]). If it's a near certainty that the lawsuit will be dismissed, few people are going to want to pay $320 (plus any other costs) to file it.
I'd like to hope people have the principle to bang their heads against the courts until they take (the proper) action, but I'm pessimistic.
Honestly, maybe novel political solutions are the answer? Could a state pass a heavy tax on binding arbitration, to be paid by the party that required it?
I mean, the judge is going to respond by sanctioning the attorney(s) for frivolous litigation. If your legal argument (for why the case shouldn't go to arbitration) has been rejected in court, initiating even one more case before the same court with the exact same argument could justifiably be considered a waste of the court's time. Initiate several of them and you're going to be fined; 10,000 and you're probably looking at things like contempt-of-court charges and disbarment. That's aside from the fee to initiate each case, as Chaebixi mentioned.
That said, if you're willing to risk all that to make a political statement - i.e. to pressure legislatures to change the law around arbitration - I can't rule out that it could be effective. But I suspect that other avenues for making a statement would be cheaper and more effective (and avoid the stigma of abusing the court system).
For example, how about just taking out TV ads? Find some maximally sympathetic victims of the arbitration system, and have them tell their stories. Less dramatic, but right now I think there isn't all that much public awareness of the issue - the New York Times' series notwithstanding. Arbitration is such a classic "big corp screwing over the little guy" story that I think a large number of even Republican-leaning voters would oppose it, especially the Trump camp (ew, but still), if they heard the full story. But most of them have probably never heard of it, or have only heard one-sided accounts that emphasize how class-action suits cost businesses and don't usually win plaintiffs all that much money. (Both of which are true, but ignore the fact that class actions are effective at holding defendants accountable for violating the law, and getting them to change their behavior - whereas a trickle of arbitration cases can just be dismissed as a cost of business.)
Your position is a reasonable one, and it's beyond debating it on the internet to decide which one would be more practical -- it would depend on the situation, how much money you had, and how damaged you thought the system was. People could certainly disagree on their assessment.
I tend to think that wrench throwing is more effective for systemic problems than discussing it. The assembly line is doing damage while you discuss the problem.
That said, I'm also biased here: the lawsuits idea hits two of my pet peeves, in that it also forces debate around the issue of the justice system being chronically understaffed and underfunded.
Filing that volume of lawsuits would effectively DDOS the courts (which is why they're going to hold you in contempt no matter how legal it was), but even doing due process on your contesting of that would likely drown the justice system to the point it forced a national debate over how it was operated.
That's a resonant issue with the arbitration one, since the forced arbitration is a symptom of that deeper funding issue -- we don't invest in efficient civic infrastructure, so corporations built their own.
tl;dr: Two birds, one stone; forcing instead of discussing; debating the underlying issue, not just a symptom.
[1] https://www.nytimes.com/2015/11/03/business/dealbook/in-reli...