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Valparaiso Univ. Law School

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Friday, April 6, 2012

UCC 2-207 Set to Music

MdeangelisHere's another law lessong from Professor Mark DeAngelis of the University of Connecticut's School of Business:

Here is Professor DeAngelis's intro:

This is a "Law Lessong" - a law lesson in a song, that summarizes some of the legal principles applicable under the Uniform Commercial Code for formation of sales contracts. In my experience, the Battle of Forms issue under the UCC seems to give students dreadful problems. The rules under the UCC can be confusing because there is a general rule for non-merchants, a different rule for merchants and then exceptions to the rule. So, you end up with "if this then that but if this then that but if this, this or this, then something else." I think that the song helps!

And here are the lyrics:

This Form is Your Form

Words by M. DeAngelis
Tune: This Land is Your Land

Refrain: This form is your form, that form is my form.
They show a contract for us to perform.
You sent and order, I sent an invoice.
What terms are binding on you and me?

I am a merchant. I am a seller.
You're not a merchant, just a regular fella'.
And my invoice is an acceptance.
But additional terms aren't binding on you and me.

If you're a merchant, our forms do battle.
It isn't merely, idle prattle.
We have a contract, and the invoice terms are added in,
Unless it's an exception, and there are three.

 

This form is your form, that form is my form.
They show a contract for us to perform.
You sent and order, I sent an invoice.
What terms are binding on you and me?

Between merchants, new terms are binding,
Unless you find them, quite surprising.
If unexpected, then material alteration you'll claim,
And the new terms will not bind you and me.

Perhaps your offer expressly stated,
Contract terms could not be annotated,
Or perhaps you previously objected to the invoice terms,
Or you raised your objection, timed reasonably.

This form is your form, that form is my form.
They show a contract for us to perform.
You sent and order, I sent an invoice.
What terms are binding on you and me?

[JT]

April 6, 2012 in Music, Teaching | Permalink | Comments (1) | TrackBack (0)

Thursday, April 5, 2012

University of Chicago to Host Conference on European Contract Law

The conference will be hosted by the Institute for Law and Economics and the University of Chicago Law School and held April 27-28, 2012. 

Here is a list of the participants and the topics of their presentaions.

Conference Program

UofC LawThomas Ackermann, Ludwig-Maximilians University, Munich
Public Supply of Optional Standardized Consumer Contracts: A Rationale for the Common European Sales Law?

Douglas Baird, University of Chicago Law School
Precontractual Disclosure and the European Sales Law

Omri Ben-Shahar, University of Chicago Law School, and Oren Bar-Gill, New York University Law School
Regulatory Techniques in Consumer Protection: A Critique of the Common European Sales Law

Lisa Bernstein, University of Chicago Law School
Custom and the CESL

Fabrizio Cafaggi, European University Institute, Florence
CESL and precontractual liability from a status to a transaction based approach

Horst Eidenmuller, University of Munich
What can be wrong with an Option? The proposal for an Optional Common European Sales Law

Richard Epstein, New York University Law School, Hoover Institution, University of Chicago Law School
Harmonization, Heterogeneity, and Regulation: Why the Common European Sales Law Should Be Scrapped

Fernando Gomez, Universidad Pompeu Fabra, Barcelona
Optional Law for Firms and Consumers: An Economic Analysis of Opting into the Common European Sales Law

Stefan Grundmann, Humboldt Universitat, Berlin
The Desirability of an Optional European Contract Law—and the Impact of a Particular Code Design on this Question

William Hubbard, University of Chicago Law School
Another Look at the Eurobarometer Contract Law Survey Data

Saul Levmore, University of Chicago Law School
Harmonization, Preferences, and Convergence

Ariel Porat, University of Chicago Law School and Tel Aviv Law School
Mistake under the Common European Sales Law

Eric Posner, University of Chicago Law School
The Questionable Basis of the Common European Sales Law: The Role of an Optional Instrument in Jurisdictional Competition

Jan Smits, Maastricht University
Contract Law as Optional Law: On the Potential and Limits of Choice

Gerhard Wagner, Universitat Bonn
Buyers' Remedies under the CESL: Rejection, Rescission, and the Seller's Right to Cure

Simon Whittaker, Oxford University
Identifying Legal Costs of the Operation of the Common European Sales Law:  Legal Framework, Scope of the Uniform Law and National Judicial Evaluations

More details are available here.

[JT]

April 5, 2012 in Conferences | Permalink | TrackBack (0)

Court to HuffPo Writers: A Deal's a Deal

A group of unpaid bloggers brought a class action against AOL, the Huffington Post (HuffPo) and its founders, including the eponymous Arianna Huffington (pictured) in the Southern District of New York on the ground that HuffPo unjustly and deceptively denied the bloggers compensation for their submissions and promotion of that website’s content.  Last week, Judge Koeltl granted the defendants’ motion to dismiss the action, styled Tasini v. AOL, Inc.

Arianna_HuffingtonPlaintiffs are “professional or quasi professional” writers who contributed to HuffPo’s success.  It was/is a spectacularly successful enterprise, attracting 26 million unique visitors per month (even the ContractsProf Blog cannot rival those numbers).  HuffPo made clear from the start that, rather than monetary compensation, the writers/bloggers would get exposure—namely visibility, promotion, and distribution, for themselves and their work.  All went along swimmingly until 2011, when AOL bought HuffPo for $315 million.  The  bloggers then sued, claiming a violation of New Yorks General Business Law § 349 (deceptive business practices) and that HuffPo was unjustly enriched, and sought at least $105 million in compensatory damages. 

Judge Koeltl began by setting out New York’s law on unjust enrichment: Under New York law, a plaintiff must establish: “(1) that the defendant benefitted; (2) at the plaintiff's expense; and (3) that equity and good conscience require restitution.”  Noting that the bloggers “entered into their transactions with the defendants with full knowledge of the facts and no expectation of compensation other than exposure,” Judge Koeltl concluded that “equity and good conscience counsel against retroactively altering the parties’ clear agreements.” He then dismissed both the unjust enrichment claim and the § 349 claim with prejudice.  

Some see an injustice in that the plaintiffs were committed to a certain sort of institution -- they may have seen HuffPo as a not-for-profit enterprise with a clear political mission -- and that institution was then swallowed by a soulless corporation associated with the noise an old-fashioned dial-up modem makes.  Plaintiffs did not make that argument, perhaps because they did not want to seem like starry-eyed idealists who never noticed that HuffPo is a full-service content aggregator that, according to Wikipedia "covers politics, business, entertainment, technology, popular media, life & style, culture, comedy, healthy living, women's interest, and local news."  Rather, as there was no question that HuffPo benefitted from the bloggers' contributions, the legal issue at the heart of the case is whether New York law ever supports a claim for restitution when there is no initial expectation of payment.     

Plaintiffs presented the court with a number of cases in which plaintiffs successfully brought restitution claims even without a clear initial expectation of payment.  The heart of the court's reasoning on this matter runs as follows:

At best, these cases stand for the proposition that plaintiffs who are unsure of whether they will be compensated if their services are not used may still sue if the services they render do ultimately benefit a defendant who then denies compensation. . . .   Stated in other terms, the plaintiffs in these cases expected compensation but the exact terms of the compensation were unclear. These cases therefore fail to support the plaintiffs’ argument that unjust enrichment does not require an expectation of compensation. Indeed, in this case, the plaintiffs expected only exposure rather than monetary compensation if their submissions were used, and those terms were clear from the outset.

In the court's view, this was a case in which the parties initial expectations were clear and the plaintiffs sought a "do over" when they learned that the price that AOL was willing to pay HuffPo for the privilege of access to the services that HuffPo writers were giving away. 

[JT and Christina Phillips]

April 5, 2012 in In the News, Recent Cases, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 4, 2012

More Contracts Cases Set to Music: Raffles v. Wichelhaus

A few months back, we ran a series of contracts songs YouTube videos created by Professor Richard Craswell.  But the market is not saturated.  Noting that Professor Craswell has no song about the good ship Peerless, Professor Mark DeAngelis, of the University of Connecticut School of Business (pictured), rushed to fill the gap. 

Professor DeAngelis introduces his material as follows: Mdeangelis

This is a "Law Lessong" - a law lesson in a song - that I wrote to help students consider the issues of mistake in contract formation. This song chronicles the story of the case of Raffles v Wichelhaus: establishing the rule of mutual mistake in contract law.

The Bonnie Ships Peerles
By Mark DeAngelis

Sing Ho! For the mighty Peerless as through the waves she steers
A bonnie name for a bonnie ship that surely has no peer.
Can there be another like her cargo-bound for Britain's shore
On her treacherous journey into contract lore?

In America the cotton states were subject to blockade
For the fate of worldwide commerce other plans had to be made
In the colony of India English merchants solace found
Though treacherous be the journey the Cape round

And the halls of British commerce saw negotiations bold
A hundred and a quarter bales of Surat cotton to be sold
And bound to "arrive ex Peerless" from the port of far Bombay
A cargo of great value to convey

Sing Ho! For the mighty Peerless as she plows the briney main
A gallant bark no match for her we'll likely see again
Her name being inked upon the page had given the call for
Her treacherous journey into contract lore?

 

In October's balmy weather it was she first set sail
Her hold was brimmed with goods the merchants contracted for sale
And owing to the faithfulness and skill of her fine crew
Along the docks of Liverpool she drew.

The merchant halls received the word she'd arrived from far Bombay
And the buyer with expectancy made haste unto the quay
As the Peerless spilled her cargo down upon the dock below
No cotton would be found to buyer's woe

Sing Ho! For the mighty Peerless as she rolls upon the seas
With sails aloft and Britain bound she harnesses the breeze
But naught one bale of cotton could be found from aft to fore
On her treacherous journey into contract lore.

But lo and hark the Peerless sits embarking for to sail
Holding precious cotton bound up in a hundred and a quarter bales
A fine Bombay December morn saw her mainsail full unfurled
As she sought to journey halfway 'round the world

The Peerless tossed and pitched so hard as 'round the Cape she flew
When another ship was spied and hailed by her intrepid crew
So, now as peers they plowed the swells bound for opposing shores
Peerless once, now peerless nevermore.

And once again in Liverpool the word passed with all speed
The Peerless had arrived and all with business should take heed
And the Seller stood upon the dock full satisfied and bold
As bail on bail poured from the Peerless' hold.

But alas the buyer ne'er appeared, seller's tender was in vain
For the Buyer'd long since covered other cotton for his skeins
The Seller's suit was filed and for contract breach he claimed
And the case went on to earn them legal fame

Sing Ho! For the mighty Peerless now her voyage it is done
Her seafaring o'er but in the law her legacy's begun.
Though the merchants both invoked her name it left the seller sore
O'er her treacherous journey into contract lore.

Peerless? Nay the gallant ship was equaled by one more
For two ships by name "Peerless" sailed the brine to Britain's shore
On the merchants' fateful term to "arrive exl Peerless" they'd agreed
But no contract formed that either one must heed.

The words were fraught with meaning neither party could foresee
That each had meant a different ship to sail the rolling seas
Like two ships passing in the night, each one to the other blind
Though words agreed, no meeting of their minds.

Sing Ho! For the mighty Peerlesses as through the waves they steer
A bonnie name for bonnie ships that surely have no peers.
Can there be another like them cargo-bound for Britain's shores
On their treacherous journey into contract lore?

It's a treacherous journey into contract lore!

 Professor DeAngelis's other Law Lessongs can be accessed here.

[JT]

April 4, 2012 in Famous Cases, Music, Teaching | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 3, 2012

Breaking: NY Ct of Appeals Dismisses Husband's Claim in Maddoff Mutual Mistake Case

We've blogged a great deal about Simkin v. Blank and even live blogged the Valentine's Day oral argument.  Today the New York Court of Appeals unanimously reversed and dismissed the husband's case.  Judge Graffeo reasoned:

Even putting the language of the agreement aside, the core allegation underpinning husband's mutual mistake claim --that the Madoff account was "nonexistent" when the parties executed their settlement agreement in June 2006 -- does not amount to a "material" mistake of fact as required by our case law. The premise of husband's argument is that the parties mistakenly believed that they had an investment account withBernard Madoff when, in fact, no account ever existed. In husband's view, this case is no different from one in which parties are under a misimpression that they own a piece of real or personal property but later discover that they never obtained rightful ownership, such that a distribution would not have been possible at the time of the agreement. But that analogy is not apt here. Husband does not dispute that, until the Ponzi scheme began to unravel in late 2008 -- more than two years after the property division was completed -- it would have been possible for him to redeem all or part of the investment. In fact, the amended complaint contains an admission that husband was able to withdraw funds (the amount is undisclosed) from the account in 2006 to partially pay his distributive payment to wife. Given that the mutual mistake must have existed at the time the agreement was executed in 2006 (see Gould, 81 NY2d at 453), the fact that husband could no longer withdraw funds years later is not determinative.

This situation, however sympathetic, is more akin to a marital asset that unexpectedly loses value after dissolution of a marriage; the asset had value at the time of the settlement but the purported value did not remain consistent. Viewed from a different perspective, had the Madoff account or other asset retained by husband substantially increased in worth after the divorce, should wife be able to claim entitlement to a portion of the enhanced value? The answer is obviously no. Consequently, we find this case analogous to the Appellate Division precedents denying a spouse's attempt to reopen a settlement agreement basedon post-divorce changes in asset valuation.

Simkin v. Blank (NY April 3, 2012).

[Meredith R. Miller]

April 3, 2012 in In the News, Recent Cases, Teaching | Permalink | Comments (0) | TrackBack (0)

Binding Consent for Rough Sex?

Over at the Koncision blog, Ken Adams has a post about a novel called "Fifty Shades of Grey" in which bondage is a theme.  He analyzes the language of the fictional contract for a bondage relationship.  He does quite a number on it.  But we don't see the need to get all tied up in knots about a fictional agreement when there one could be bound and gagged by a real world contract that covers the same ground.  It is the notorious Antioch College Sexual Offense Protection Policy.


We do not have access to the actual policy, but according to the Foundation for Individual Rights in Education's website (the FIRE), the policy defines consent as follows:

Consent:
 
Consent is defined as the act of willingly and verbally agreeing to engage in specific sexual conduct. The following are clarifying points:
  • AntiochConsent is required each and every time there is sexual activity.
  • All parties must have a clear and accurate understanding of the sexual activity.
  • The person(s) who initiate(s) the sexual activity is responsible for asking for consent.
  • The person(s) who are asked are responsible for verbally responding.
  • Each new level of sexual activity requires consent.
  • Use of agreed upon forms of communication such as gestures or safe words is acceptable, but must be discussed and verbally agreed to by all parties before sexual activity occurs.
  • Consent is required regardless of the parties’ relationship, prior sexual history, or current activity (e.g. grinding on the dance floor is not consent for further sexual activity).
  • At any and all times when consent is withdrawn or not verbally agreed to, the sexual activity must stop immediately.
  • Silence is not consent.
  • Body movements and non-verbal responses such as moans are not consent.
  • A person can not give consent while sleeping.
  • All parties must have unimpaired judgement (examples that may cause impairment include but are not limited to alcohol, drugs, mental health conditions, physical health conditions).
  • All parties must use safer sex practices.
  • All parties must disclose personal risk factors and any known STIs. Individuals are responsible for maintaining awareness of their sexual health.
These requirements for consent do not restrict with whom the sexual activity may occur, the type of sexual activity that occurs, the props/toys/tools that are used, the number of persons involved, the gender(s) or gender expressions of persons involved.

The FIRE hates this stuff, but it seems a perfectly reasonable way to educate college students about the perils of date rape, which may be why Gettysburg College has adopted a simlar policy.  But that is not to say the definition of consent could not use Ken Adams's touch.  Ken, give it your best shot!

In the meantime, while the FIRE celebrates Antioch's demise, Wikipedia reports that it reopened in October 2011.

[JT]

April 3, 2012 in Commentary, True Contracts | Permalink | Comments (0) | TrackBack (0)

Weekly Top Tens from the Social Science Research Network

SSRNRECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of Contracts & Commercial Law eJournal 

February 3, 2012 to April 3, 2012

RankDownloadsPaper Title
1 248 Emerging Policy and Practice Issues (2011) 
Steven L. SchoonerDavid J. Berteau
George Washington University - Law School, Center for Strategic and International Studies, Defense - Industrial Initiatives Group
2 223 Empirical Studies of Contract 
Zev J. Eigen
Northwestern University School of Law
3 203 A License is Not a 'Contract Not to Sue': Disentangling Property and Contract in the Law of Copyright Licenses 
Christopher M. Newman
George Mason University - School of Law, Facult
4 199 A Numbers Game – The Legal Basis for an Optional Instrument in European Contract Law 
Gary Low
Maastricht European Private Law Institute
5 156 The Impact of the Broker-Dealer Fiduciary Standard on Financial Advice 
Michael S. FinkeThomas Patrick Langdon
Texas Tech University, Unaffiliated Authors - affiliation not provided to SSRN
6 130 The Effect of Bargaining Power on Contract Design 
Albert H. ChoiGeorge G. Triantis
University of Virginia School of Law, Stanford Law Schoo
7 123 Regulating Shadow Banking 
Steven L. Schwarcz
Duke University - School of Law
8 122 Boomer-Ang Eldercare: Deductible Claim? 
Wendy C. Gerzog
University of Baltimore - School of Law
9 88 Does the Constitution Protect Economic Liberty? 
Randy E. Barnett
Georgetown University Law Center
10 86 What is Securitization? And for What Purpose? 
Steven L. Schwarcz
Duke University - School of Law

RECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of LSN: Contracts (Topic)  

February 3, 2012 to April 3, 2012

RankDownloadsPaper Title
1 439 A Legal Analysis of Romantic Gifts 
Ruth Sarah Lee
Harvard Law School
2 223 Empirical Studies of Contract 
Zev J. Eigen
Northwestern University School of Law
3 212 The Common European Sales Law and the CISG - Complicating or Simplifying the Legal Environment? 
Nicole KornetNicole Kornet
Maastricht University - European Private Law Institute (M-EPLI), Maastricht University - METRO Institutey
4 203 A License is Not a 'Contract Not to Sue': Disentangling Property and Contract in the Law of Copyright Licenses 
Christopher M. Newman
George Mason University - School of Law, Faculty
5 199 A Numbers Game – The Legal Basis for an Optional Instrument in European Contract Law 
Gary Low
Maastricht European Private Law Institute
6 130 The Effect of Bargaining Power on Contract Design 
Albert H. ChoiGeorge G. Triantis
University of Virginia School of Law, Stanford Law School
7 101 The Psychology of Contract Precautions 
David A. HoffmanTess Wilkinson-Ryan
Temple University - James E. Beasley School of Law, University of Pennsylvania Law School
8 88 The Case for a Common European Sales Law in an Age of Rising Nationalism 
Martijn W. Hesselink
University of Amsterdam - Centre for the Study of European Contract Law (CSECL),
9 88 Does the Constitution Protect Economic Liberty? 
Randy E. Barnett
Georgetown University Law Center
10 58 Parallel Contract 
Aditi Bagchi
University of Pennsylvania - Law School - Faculty

[JT]

April 3, 2012 in Recent Scholarship | Permalink | TrackBack (0)

Monday, April 2, 2012

CBS Squashes Production of Original Series Star Trek Episode: "He Walked Among Us"

As reported in The New York Times, the discovery of a lost episode of Star Trek has sparked a, so far, non-litigious debate over CBS’s decision to enforce its right in the material and to prohibit the online airing of an amateur production based on the episode’s script. 

Norman Spinrad wrote the episode, He Walked Among Us,” in 1967 after the show’s producers approached him with a four-day deadline and a box of no-doze.  The producers thought the episode might provide an opportunity for comedian Milton Berle to work a dramatic role.  Tragically, the episode never aired, and Spinrad’s script ended up getting donated to the archives at Cal State Fullerton, where it sat unnoticed for decades.

Trekkies
Years later, Spinrad was approached at a convention by a Trekkie (depicted in the image above) who asked Spinrad to sign a copy of “He Walked Among Us.”  Spinrad later teamed up with James Cawley to discuss the possibility of finally producing “He Walked Among Us.”  Cawley is senior executive producer for “Phase II,”  a web-based production studio that uses unpaid amateur actors to act out Trekkies’ favorite episodes.  In these productions, Cawley plays Captain Kirk, which is a bit like putting together a Shakespeare company so that you can play Hamlet.  But still . . . .

CBS sent Cawley an email, asking him to cease production of the episode.  CBS has been consistently buying merchandising, television and online rights to Star Trek.  Cawley and Spinrad apparently have good relations with CBS and want to keep things that way.  As Spinrad puts it on his website,

I and CBS have agreed to resolve our disputes concerning the ownership of the Work; as part of the settlement between the Parties, the Parties have agree that there will be no further comment; and CBS is considering opportunities to offer licensed copies of the Work.

Because of the above, I can no longer comment on the He Walked Among Us screenplay myself.

It is uncertain exactly why CBS has allowed Phase II to produce other unaired Trek projects but has decided to stonewall this project.   Here are the leading theories:

  • The subject matter of “He Walked Among Us” has been mined so thoroughly in other Star Trek episodes, CBS is concerned that further probing in this area could open up a rift in the time/space continuum;
  • Due to a holodeck malfunction, the person calling himself Norman Spinrad is really Kirk’s arch-nemesis, Khan, returned to destroy the good name of the Star Trek franchise;
  • After consulting with its resident half-Betazoid advisor, CBS concluded that there was something not quite right about the episode – some sort of deception may be involved, or not;
  • William Shatner was insisting on playing the Milton Berle part and that the part include a fist-fight;
  • CBS producers thought the episode's lower decks discussion of why Star Fleet could mandate health care coverage but not require that all replicators be programmed to synthesize broccoli when receiving requests for "junk food" was too dated; and
  • A crucial element in the plot is the possibility of traveling at speeds in excess of light speed, and now that the faster-than-light neutrinos theory has been debunked, CBS thinks viewers will be unable to suspend disbelief

[JT and Justin Berggren]

April 2, 2012 in Current Affairs, In the News, Television, Web/Tech | Permalink | Comments (2) | TrackBack (0)

Arbitration Provision Not Unconscionable under PA Law, Says Third Circuit

3d CirJanice Quilloin (“Quilloin”) is a nurse employed by a hospital owned by Tenet Healthsystem (“Tenet”).  She was hired in 2006, quit, and was rehired in 2008.  Both times that she was hired, Quilloin signed the “Employee Acknowledgement” form (EA), acknowledging receipt of the “Fair Treatment Process” brochure (FTP).  The EA provided for arbitration of all but a few enumerated “excluded issues.”  The FTP sets out the steps an employee would need to take to resolve a dispute and provides an approximate time in which Tenet would take to respond to each step. 

In 2009, Quilloin filed a collective action suit against Tenet in the District Court for the Eastern District of Pennsylvania under the Fair Labor Standards Act of 1938, as well as several state-based class action and common law claims. Although the Third Circuit inexplicably declines to say so, the District Court opinion notes that the basis of her suit is that Tenet allegedly makes her and her co-workers work through their meal breaks without pay.

Tenet moved to compel arbitration.  Quilloin responded that the arbitration agreement was unconscionable.  The District Court found that genuine disputes of material fact remained as to whether the arbitration agreement was enforceable, and denied Tenet’s Motion to Compel.  In Quilloin v. Tenet Healthsystem Philadelphia, Inc., the Third Circuit reversed and remanded with instructions to stay litigation proceedings and compel arbitration.    

Tenet contended that because Quilloin did not direct her challenge at a specific clause within the agreement, the District Court could not inquire into arbitrability issues.  However, the Third Circuit disagreed, stating that the Federal Arbitration Act (FAA) places arbitration agreements on “an equal footing with other contracts.”  Therefore a plaintiff may challenge an arbitration agreement, like any other contract, by claiming fraud, duress, or unconsionability.  Tenet, relying on Rent-A-Center v. Jackson, about which we blogged extensively in April 2010, attempted to argue that Quilloin’s claim had to go to arbitration because she was attempting to challenge the arbitration agreement as a whole.  The Third Circuit was not persuaded, finding Rent-A-Center inapposite as that case only applied where the parties specified that the agreement to arbitrate was itself arbitrable.  There was no such provision in the EA.

The Court then proceeded to the merits of Ms. Quilloin’s claim that the arbitration provision was unconscionable.  Under Pennsylvania law, a party must show a contract to be both substantively and procedurally unconscionable.  The District Court found three bases on which the arbitration agreement might be substantively unconscionable: (1) a potential prohibition against recovery of attorney’s fees and costs, (2) potential inclusion of a class action waiver, and (3) the possibility that Tenet could “run out the clock” on the statute of limitation, because the FTP provides internal steps and procedures that Tenet could drag out until Quilloin’s claim expired.   While the Court found the arbitration agreement ambiguous on the first two issues, Supreme Court precedent clearly establishes that the arbitrator can resolve such ambiguities.  As to the Quilloin’s run-out-the clock argument, the Court found that Quilloin could prevent Tenet from doing so by filing a motion to compel arbitration.

Furthermore, the Court found no procedural unconscionability. While Quillion is the weaker party to the agreement, she did not lack meaningful choice.  She has a college degree, and twice agreed to the arbitration agreement. 

[JT and Christina Phillips]

April 2, 2012 in Recent Cases | Permalink | Comments (0) | TrackBack (0)