How a 1925 Statute Became a Tool for Suspending the Seventh Amendment

The case of Public Locks v. Google LLC sits at the intersection of a small business dispute and a structural problem in American law. Documented scholarship — from legal academics, federal judges in dissent, members of Congress in both parties, and consumer-protection researchers — has identified a pattern in which the right to trial by jury, guaranteed by the Seventh Amendment, has been functionally suspended for the great majority of American consumer and employment disputes. This is how that happened.

The Statute That Wasn't Meant to Do This

The Federal Arbitration Act of 1925 (9 U.S.C. § 1 et seq.) was, by the contemporary record of its drafters, intended for a narrow purpose: to permit two commercial parties of roughly equal bargaining power — say, two shipping companies, or a manufacturer and a wholesale distributor — to resolve their commercial disputes through private arbitration rather than overburdening federal courts. Senator Thomas Sterling, in floor debate, described the bill as concerning "merchants" who had "agreed upon" arbitration as an alternative. The 1925 Congress did not have consumer click-through contracts in mind. They could not have. They did not exist.

For more than half a century, that reading held. Arbitration was a commercial dispute mechanism. The Supreme Court, in Wilko v. Swan, 346 U.S. 427 (1953), explicitly held that the FAA did not override federal securities-law protections for ordinary investors against brokerages.

Beginning in the 1980s, that interpretation began to shift. The Supreme Court progressively expanded the FAA's scope. In Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985), the Court permitted arbitration of antitrust claims. In Shearson/American Express, Inc. v. McMahon, 482 U.S. 220 (1987), the Court overruled Wilko and permitted arbitration of securities claims. By the 1990s, the FAA had become, in practical effect, a different statute than the one Congress passed.

Concepcion: The Turning Point

The decision that converted forced arbitration from a legal anomaly into the architecture of American consumer law was AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011).

The facts of Concepcion were almost comically small. The Concepcions had purchased AT&T cellular service. They had been promised "free" phones; AT&T had charged them $30.22 in sales tax on the supposedly free phones. They sued. AT&T moved to compel arbitration under its contract, which also barred class actions. The California Supreme Court, in Discover Bank v. Superior Court, 36 Cal. 4th 148 (2005), had previously held that class-action waivers in consumer adhesion contracts involving small-dollar claims were unconscionable and unenforceable as a matter of California contract law.

The U.S. Supreme Court reversed, 5-4, in an opinion by Justice Antonin Scalia. The holding: the Federal Arbitration Act preempts state laws that would invalidate class-action waivers in arbitration agreements, even when those state laws are general contract-law principles applicable to all contracts.

The dissent, written by Justice Stephen Breyer and joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, was direct about what the majority had just done:

The practical effect of Concepcion was to permit corporations to draft contracts that simultaneously (a) prohibited class actions and (b) routed all individual disputes into private arbitration. Because most consumer claims are too small to justify individual litigation, the combination operates as a near-total immunity from accountability for small but widespread corporate wrongs.

The legal scholar reaction was swift. Professor Jean Sternlight of UNLV described Concepcion as "a tsunami that is wiping out existing and potential consumer and employment class actions." Professor Myriam Gilles of Cardozo Law called it "the real game-changer for class action litigation." Within twelve months of the decision, Concepcion had been cited in at least 76 lower court decisions sending putative class actions into individual arbitration.

Sony added an arbitration clause to PlayStation Network terms within months. Microsoft followed. Netflix, after a data breach, added an arbitration clause. By 2024, virtually every consumer-facing technology company in the United States had inserted forced-arbitration provisions into its terms of service.

What the Numbers Show

The empirical record on what happens when consumer disputes move from courts to private arbitration is now well-developed. The findings are consistent across multiple independent studies:

A 2023 study by Professor Roseanna Sommers, replicating earlier findings, surveyed approximately 1,100 American consumers and found that virtually none were aware that their everyday contracts — cellular plans, bank accounts, streaming services, ride-share apps — contained binding arbitration clauses. The "agreement" required by Concepcion doctrine, in other words, is generally a fiction. Consumers do not know about the clauses, do not understand them, and do not meaningfully consent to them.

The American Association for Justice's analysis of forced arbitration cases found that the number of consumer arbitration filings increased by 467% in 2022 compared to prior years, while the consumer/employee win rate fell to 0.7%. The Economic Policy Institute, in a longer-term review, documented that consumer win rates in mandatory arbitration are dramatically lower than win rates in equivalent court litigation, and that the median consumer recovery is fractional.

The Repeat-Player Problem

Even within the small subset of consumers who do file arbitration claims, the structure of private arbitration produces a documented bias. Arbitration forums — primarily the American Arbitration Association (AAA) and JAMS — are private businesses. Corporations are repeat clients. Consumers are not.

A 2015 analysis by the Economic Policy Institute, drawing on multiple academic studies, summarized the structural problem this way:

The repeat-player advantage operates through structural channels: arbitrators are typically selected from rosters that the corporate party has experience with; an arbitrator who consistently rules for consumers is unlikely to be selected by corporate parties in future disputes; arbitrators thus have an economic incentive — whether conscious or not — to deliver outcomes that keep them on corporate selection lists.

This is not a hidden problem. The American Arbitration Association is required, under California Code of Civil Procedure § 1281.96, to publish quarterly data on consumer arbitration outcomes. The data is publicly available at adr.org/ConsumerArbitrationStatistics. Anyone can download the spreadsheet, filter by company name, and see the outcomes. The results are what they are.

The Congressional Response

The legislative branch has, repeatedly, attempted to correct what the judiciary has built. The Forced Arbitration Injustice Repeal (FAIR) Act, first introduced in 2017 and reintroduced in each subsequent Congress (most recently in 2023 by Representative Hank Johnson, D-GA, with 101 co-sponsors), would amend the FAA to prohibit pre-dispute forced arbitration clauses in consumer, employment, civil rights, and antitrust cases.

The FAIR Act has been introduced in every Congress since 2017. It has yet to pass.

The narrowly-tailored exceptions Congress has managed to enact reveal what the broader rule looks like. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, signed into law in March 2022 with rare bipartisan support, created a narrow exception for sexual misconduct claims. The fact that this exception required federal legislation — that prior to its passage, sexual harassment victims could be (and were) forced into private arbitration by their employers — is itself the indictment.

The Consumer Financial Protection Bureau, in 2017, finalized a rule that would have prohibited class-action waivers in consumer financial products. Congress repealed the rule before it took effect, using the Congressional Review Act. Then-Vice President Mike Pence cast the tie-breaking vote in the Senate.

Why This Matters Beyond One Locksmith

The case of Public Locks v. Google LLC is, in its specifics, ordinary. A small business was harmed. A large corporation responded inadequately. A lawsuit was filed. None of this is novel.

What is worth pausing over is the architecture. Public Locks is a Charlotte, North Carolina locksmith with a $1.00-per-day Google Ads budget. Google LLC is a wholly-owned subsidiary of Alphabet Inc., a publicly-traded company with a market capitalization in excess of $2 trillion. Between them sits a contract — drafted by Google, presented to Public Locks on a take-it-or-leave-it basis as a condition of doing business — that includes the following provisions:

• Section 13: All disputes must be resolved through binding individual arbitration
• Section 13(E): Class actions are waived
• Section 13(F): Opt-out is available only within 30 days of a triggering event that Google does not affirmatively notify customers about
• Section 14: Forum-selection clause designating Santa Clara County, California, for any non-arbitrable disputes
• Section 14: Choice-of-law clause designating California law

For Public Locks to bring an individual arbitration in California — flying a small-business owner across the country, retaining California counsel, paying arbitration filing fees — over $3,997.75 in disputed charges is, in Justice Breyer's words, the choice of "a lunatic or a fanatic." It is not, in any meaningful sense, a right.

This is not Google's invention. Google is following the playbook that Concepcion made available. Every major consumer-facing American company has done the same. The terms that Public Locks faces are not aberrations. They are the norm. The Seventh Amendment right to trial by jury exists, on paper, for every American. In practice, for the great majority of disputes arising from goods and services purchased in the ordinary course of life, that right has been written out of effect by drafting it out of contracts.

What Litigation Can Still Do

Despite this architecture, narrow paths remain open. They are the paths Public Locks is following.

First, courts retain authority to find arbitration clauses unconscionable on a case-specific basis. The Ninth Circuit and federal district courts have, in recent years, voided arbitration clauses where the opt-out provisions were sufficiently buried, time-limited, or inaccessible. Rios v. HRB Digital LLC, No. 25-cv-03530-EMC, 2025 WL 3003768 (N.D. Cal. Oct. 27, 2025), is the most recent application of that principle.

Second, the right to arbitrate can be waived by corporate conduct. Morgan v. Sundance, 596 U.S. 411 (2022), eliminated the prior requirement that the plaintiff prove prejudice from delay. Where a corporate defendant litigates actively before invoking arbitration, courts may find the right waived. In re Google Assistant Privacy Litigation, No. 5:19-cv-04286-BLF (N.D. Cal. Jan. 23, 2024), is one application.

Third, small-claims carve-outs in arbitration agreements — including Google's own — preserve individual actions in the small-claims forum. This is the narrow door through which Public Locks first entered.

Fourth, where a corporation makes false representations to a plaintiff with the purpose of inducing dismissal of claims, those false representations may constitute a separate, actionable wrong — independent of the underlying contract.

What Other Plaintiffs Can Do

Public Locks is not the first Google Ads customer to be hijacked. The pattern has been documented by security journalists, most notably Brian Krebs at KrebsOnSecurity, who has reported on similar incidents affecting Google Ads accounts since at least 2023. The combination — hijacking, suspension, partial remediation, request for "voluntary dismissal with prejudice" — has been described in enough public accounts that it can fairly be described as a pattern, not an isolated incident.

If you are a small business owner whose Google Ads or Google Local Services account was hijacked, suspended, and either inadequately remediated or pressured toward dismissal of legal claims, your documentation may be relevant to ongoing legal proceedings. The contact information appears below.

The standard of proof for any claim is documentation. Save the emails. Save the screenshots. Save the dates and times. Preserve the original files in their original format. Build the record before it is needed. That is the only thing courts cannot take away.

A Note on the Court System

Two observations about American federal courts are relevant to this analysis. Both are matters of published scholarship.

First, the structural insulation of the federal judiciary from the parties whose disputes it adjudicates has been the subject of substantial public reporting. ProPublica's 2023 investigations documented previously undisclosed financial relationships between sitting Supreme Court justices and parties with interests in litigation pending before the Court. The Court remains, as of this writing, the only federal institution without an enforceable code of conduct. Fix the Court, a nonpartisan judicial reform organization, maintains an ongoing record of disclosed and undisclosed conflicts of interest among federal judges.

Second, the Court's general direction in cases involving corporate defendants and consumer or employee plaintiffs has been the subject of academic analysis by serious scholars over decades. Erwin Chemerinsky, the founding dean of the U.C. Irvine School of Law and current dean of the U.C. Berkeley School of Law, documented the pattern in The Case Against the Supreme Court (Viking, 2014). Adam Cohen extended the analysis in Supreme Inequality: The Supreme Court's Fifty-Year Battle for a More Unjust America (Penguin Press, 2020). Their thesis, supported by case-by-case analysis, is that the Court has consistently — across appointments by both parties — ruled in favor of corporate, government, and majority interests against the relatively powerless. They are not the only scholars to have reached this conclusion.

These are matters of public scholarship, not personal allegation. They form the backdrop against which any individual plaintiff — particularly a small business plaintiff — undertakes litigation against a multi-trillion-dollar corporation. The court that hears Public Locks v. Google LLC will, like every court, rule on the law and the evidence before it. This analysis is not a comment on that court. It is a comment on the structure within which that court operates.

What Comes Next

The legal proceedings will follow their course. Whatever the outcome — settlement, verdict, dismissal, withdrawal — this page will be updated. Prior versions will be preserved.

If Public Locks v. Google LLC ends in a settlement, the terms of that settlement will be reported here to the extent permitted by any agreement. If the case is dismissed, the basis of dismissal will be reported. If it proceeds to verdict, the verdict will be reported.

The purpose of this page is the documentation of a record. The record will be maintained.