Attorneys generally have a fiduciary and ethical duty to further their clients interests if the method is legal. The idea is roughly that in an adverarial system two advocates with contrary aims will ultimately lead courts to path to the ideal outcome (when the underlying law at issue is unjust this is a less helpful regime).
These hidden arb clauses are a toss up, with some courts enforcing them and others finding them invalid. If you’re an attorney working for Snuggie you likely have a duty to tell Snuggie mgmt that they have an option to include this, it’s up to the client whether to do so.
I’d note that these things all over the place especially in e commerce. Ever bought an item off Amazon? Their terms and conditions mandate arbitration ( at least one appellate ourt has found them non binding, yay).
I’m not pro arb btw, I’ve done consumer protection work on the plaintiffs’ side. These things are pretty abhorrent but the federal law on arb clauses only gives courts so much wiggle room to invalidate these things. Fittingly enough that law was passed well before the practice of concraled arb agreements really came to the fore. Don’t expect the Trump years to lead to much change here.
