"When you subscribe to Netflix . . . you cannot bring a class action lawsuit"

I've been loving the series of DIRECTV "when you get cable" commercials (such as how if you sign up for cable you'll either "wake up in a roadside ditch" or you'll be unable to "stop taking in stray animals").  Having recently added a third child to my family, I'd have to say may favorite is the commercial explaining how if you sign up for cable, then you will have a grandson with a dog collar:

 

My colleague Derek Muller has also recently alerted me to a similar fact: if you sign up for Netflix, then you waive your right to a class action lawsuit (Sony did something similar for its Play Station Network a few months back).  

This new provision in Netflix's terms of service contains both an arbitration provision and a class action waiver - an increasingly popular new tool in the wake of the Supreme Court's decision in AT&T Mobility v. Concepcion.  In a previous post (and in a recently posted piece on SSRN), I raised the possibility that class action waivers may still be held to be unconscionable where a company fails to provide its customers with the type of pro-consumer provisions - provisions that provide alternative mechanisms for plaintiffs to bring low-value claims - that AT&T had incorporated into its own agreement.  

I don't have a Netflix login so I can't tell if Netflix has incorporated similar provisions into its new arbitration agreement.  But I'm guessing it hasn't (feel free to correct me in the comments) and is therefore another example of the type of new arbitration agreements we're likely to see in the wake of Concepcion.  And, as a result, courts are going to have to figure out how to interpret Concepcion quickly - unless, of course, everybody just decides to get cable.