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					ARBITRATION
CLAUSES
IN FLORIDA

       Prepared and Presented By:
      Christopher B. Hopkins, Esq.
     Allison S. Miller-Bernstein, Esq.
       Cole, Scott & Kissane, P.A.
I. Introduction to Arbitration
Clauses
   Purpose
   Costs and Benefits
   Analysis of Florida Arbitration Code
   Analysis of FAA
   Conflicts and Emerging Trends of
    Law
Purpose
   Alternative Form of Dispute
    Resolution:

There several avenues available to
 resolve a dispute…trial, mediation,
 and arbitration
Purpose
   Trial
    – Formal
    – Timely
    – Extensive Discovery
    – Jury
Purpose
   Mediation
    – Informal
    – No rulings
    – Not structured
    – Parties control outcome
Purpose
   Arbitration – Best of Both Worlds
    – Informal
    – Quick resolution
    – Neutral Arbitrator – “rulings”
    – Discovery
    – May be binding or non-binding
Costs and Benefits
   Benefits
    – Quick??
      • Process of Enforcement
      • Process of Discovery
      • Process of Arbitration
Costs and Benefits
   Benefits
    – Less expensive
    – Eliminate unpredictable jury (conventional
      wisdom)
    – Less formal
    – Less discovery
    – Finality/Limited right of appeal
    – Businesses want it; studies suggest
      consumers-plaintiffs win more than 50% of
      claims (split the difference outcome?)
Costs and Benefits
   Costs
    – Access to a Jury
    – Formality
    – Structure
    – Guidance
Conflicts and Emerging Trends
of Law
Analysis of Florida Arbitration
Code - Chapter 682, Fla. Statutes
   F. S. 682.02 – Arbitration Agreements
    – 2 or more parties
    – Agree in writing after or in contract
      before

    **This Act does not apply to an
      agreement that stipulates so.
Analysis of Florida Arbitration
Code - Chapter 682, Fla. Statutes
   F.S. 682.03 – Proceedings to Compel
    – Proceedings to Compel and Stay
      Arbitration
      • Party may make an application to the court
        for an order directing the parties to proceed
        with arbitration
      • Provides that court shall order arbitration as
        long as there is no “substantial issue raised
        as to the making of the agreement or
        provision”
Analysis of Florida Arbitration
Code - Chapter 682, Fla. Statutes
   F. S. 682.03 – Proceedings to Compel
    – If there is an issue regarding the making
      of the agreement, the court shall
      summarily hear and determine the
      issue.
Analysis of Florida Arbitration
Code - Chapter 682, Fla. Statutes
   F. S. 682.03 – Proceedings to Compel
    – Proceeding shall be stayed
    – Order shall not be refused on ground
      claim at issue lacks merit
Analysis of Florida Arbitration
Code - Chapter 682, Fla. Statutes
   F. S. 682.04 – Appointment of
    Arbitrators
    – By agreement
    – Court appointed


   F.S. 682.05 – Majority Action by
    Arbitrators
Analysis of Florida Arbitration
Code - Chapter 682, Fla. Statutes
   F.S. 682.06 – Hearing
    – Arbitrators appoint time and place of
      hearing
    – Parties entitled to:
      • Be heard
      • Present material evidence
      • Cross-examine witnesses
Analysis of Florida Arbitration
Code - Chapter 682, Fla. Statutes
 682.07 – Representation by Attorney
 682.08 – Witnesses, Subpoenas,
  depositions
    – Arbitrators may issue subpoenas and
      permit depositions to be taken
    – Provisions of law regarding subpoenas
      apply
Analysis of Florida Arbitration
Code - Chapter 682, Fla. Statutes
   682.09 – Award
    – In writing
    – Signed by arbitrators who deliver copy to each
      party
    – Made within time fixed by the agreement,
      provision for arbitration or, if not fixed, by the
      court
   682.12 – Confirmation of award
    – Upon application by party, court shall confirm
      unless Motion to Vacate or Modify
Analysis of Florida Arbitration
Code - Chapter 682, Fla. Statutes
   F.S. 682.11 – Fees and expenses
    – Unless provided otherwise by the
      Agreement, the arbitrator’s fees and
      expenses and other expenses (not
      including counsel fees) shall be paid as
      provided by the award.
Analysis of Florida Arbitration
Code - Chapter 682, Fla. Statutes
   F.S. 682.13 – Vacating an award
    – Court shall vacate an award when:
       • Procured by corruption, fraud, or undue means
       • Evident partiality by neutral arbitrator
       • Corruption of arbitrator
       • Arbitrator exceeds his/her powers
       • Arbitrator conducts proceedings in a way that
         substantially prejudices the rights of a party
       • No agreement or provision for arbitration unless
         objecting party waives objection
Analysis of Florida Arbitration
Code - Chapter 682, Fla. Statutes
   682.13 – Vacating an award
    – Application for vacation of award:
      • Shall be made within 90 days unless if
        because of corruption, fraud or other undue
        means, then 90 days from date such
        grounds are discovered
    – Vacation of Award:
      • Court may order rehearing before the same
        arbitrators or new arbitrators
Analysis of Florida Arbitration
Code - Chapter 682, Fla. Statutes
   F.S. 682.14 – Modification of award
    – Application within 90 days of award
    – Evident miscalculation or mistake, or
    – Award made on matter not submitted to
      the arbitrators which can be corrected
      without affecting the merits of the
      decision, or
    – Award is imperfect as matter of form,
      not affecting the merits
Analysis of Florida Arbitration
Code - Chapter 682, Fla. Statutes
   F.S. 682.15 – Judgment or decree
    – Upon granting of order confirming,
      modifying or vacating award, judgment
      or decree shall be entered
    – Costs of the application and
      proceedings subsequent may be
      awarded by the court
Analysis of Florida Arbitration
Code - Chapter 682, Fla. Statutes
   F.S. 682.17 – Application to court
    – Made by motion
    – Notice of initial application shall be served
      same as summons, unless agreed otherwise
   F.S. 682.19 – Venue
    – Initially to court of county where other party
      resides or has place of business, otherwise
      any court
    – After initial application, to the court hearing
      the initial application unless ordered otherwise
Analysis of Florida Arbitration
Code - Chapter 682, Fla. Statutes
   F.S. 682.20 – Appeals
    – An appeal may be taken from:
       •   Order denying application to compel arbitration
       •   Order granting application to stay arbitration
       •   Order confirming/denying confirmation of award
       •   Order modifying/correcting award
       •   Order vacating award without rehearing
       •   Judgment or decree entered
Federal Arbitration Act
Title 9, U.S. Code, Chapters 1-3
 FAA provides alternative procedures for
  arbitration
 FAA applies in state as well as federal
  courts
 Permits arbitration of disputes arising in
  maritime transactions or transactions
  involving interstate commerce shall be
  valid, irrevocable and enforceable
Federal Arbitration Act
Title 9, U.S. Code, Chapters 1-3
   To compel arbitration under FAA,
    must prove the transaction had a
    “substantial effect” on interstate
    commerce.
Federal Arbitration Act
Title 9, U.S. Code, Chapters 1-3
   Five factors to determine “substantial
    effect” on interstate commerce:
    – Citizenship of the parties
    – Whether tools and equipment moved in
      interstate commerce
    – Allocation of costs of services and materials
    – Whether object of contract is capable of
      subsequent movement across state lines
    – Degree of separability from other contracts
Federal Arbitration Act
Title 9, U.S. Code, Chapters 1-3
   Interesting examples of interstate
    commerce…does everything involve
    interstate commerce?:
    – Nursing Home
    – Lending - Purchase of home/car
    – Cellular Phone Plans
II.Drafting the Arbitration Clause
A.   Language
B.   Limitations
C.   Severance
D.   Venue for Resolving Disputes
E.   Exculpatory Clauses
A. Language
   Keep language broad…plain vanilla clause
    – Consolidated v. Fenelus (4th DCA)
    OPTIONAL ARBITRATION CLAUSE
    (If the parties to this Agreement do not wish to include the
        following arbitration provision, please indicate so by
        marking an “X” through this clause. Both parties shall
        also initial that “X” to signify their agreement to refuse
        arbitration.”) Any controversy or claim arising out of or
        relating to the Agreement, or the breach thereof, shall be
        settled by arbitration in accordance with the provisions of
        the Florida Arbitration Code found at Chapter 682, Florida
        Statutes, and judgment upon the award rendered by the
        arbitrator(s) may be entered in any court having
        jurisdiction thereof.
A. Language
   Gainesville v. Weston (1st DCA)
    – Agreement in materials
    – While lengthier than the Fenelus agreement,
      the majority of the language is simply stating
      that arbitration is to be used for ANY dispute
      arising out of the healthcare provided
    – Only requirements:
       • FAA
       • Administration by National Health Lawyers
         Association
A. Language
   Voicestream v. U.S. Communications (4th
    DCA)
    – …all claims, counterclaims, cross-claims, and
      disputes…shall be resolved by submission to
      binding arbitration
    – Limitations:
       • Venue
       • Selection of arbitration service
       • Governing Rules – Commercial Arbitration Rules of
         the American Arbitration Association
       • One neutral arbitrator
B. Limitations
 The less the better…“plain vanilla
  language”
 The more limitations, the more the chance
  that the agreement will be determined
  substantively unconscionable
 Although need both substantive and
  procedural unconscionability (even under
  the Romano “sliding scale test,” if the
  agreement is substantively
  unconscionable, the courts are half way to
  finding it unenforceable
C. Severance
   Severability clause
    – Even if courts do not like some of the
      provisions in the agreement, the others will
      remain
   No Severability clause
    – May still be severable if:
       • Illegal portion does not go to contract’s essence, and
       • Without illegal portion, still valid legal promises
    – Depends on the intent of the parties
      determined by the terms of the contract and
      the subject matter
C. Severance
   J.R.D. Management v. Dulin (4th DCA)
    – Test to determine severance without a
      severability clause:
      • Did the parties give a single assent to the
        whole transaction or assent separately to
        different things?
      • To determine intent, look at contract as a
        whole
C. Severance
   Healthcomp v. O’Donnell (2nd DCA)
    – Severed unenforceable term precluding
      judicial review of the arbitration award
    – Contained severability clause
   Meriring v. Northbay (2nd DCA)
    – Severed arbitration agreement’s forum
      selection clause
    – Contained severability clause
D. Venue for Resolving Disputes
 F.S. Sec. 47.011 reflects that venue for
  resolving a dispute over the terms of a
  contract it to take place in the county
  where the contract is executed
 In construction, important to specify
  venue
 In application, important to check venue
E. Exculpatory Clauses
 Defined – clause that denies an
  injured party the right to recover
  damages from the person negligently
  causing his injury
 Not favored so try not to use
 If used, make sure there is a
  severability clause
 Arbitration is favored
III. Signing the Arbitration Agreement –
Is the right person signing?
A. Competent Party
B. Representative of Party
      1)   Power of Attorney
      2)   Guardian
      3)   Health Care Proxy/Surrogate
      4)   Relatives
C.   Presentation and Execution
      1) To Explain or Not to Explain
      2) Proper Training to Explain
IV. Procedure for Enforcement
in Court
A.   Motion to Compel Arbitration
B.   Motion to Stay Discovery and
     Proceedings
C.   Discovery
D.   Avoidance of Waiver
A. Motion to Compel Arbitration
 Confirm whether there is an
  Arbitration Agreement in the
  contract…very important to avoid
  waiver!!
 File a Motion to Compel Arbitration
 Attach a copy of the Agreement to
  the Motion
A. Motion to Compel Arbitration
 Arbitration is favored
 Seifert Test (Florida Supreme Court)
    – Valid arbitration agreement exists
    – Arbitrable issue exists
    – No waiver
   Powertel (1st DCA)/Romano (4th DCA)
    (need at least some of both not to enforce)
    – Not substantively unconscionable (language of
      agreement is not unconscionable) and/or
    – Not procedurally unconscionable
      (circumstances surrounding execution are not
      unconscionable)
A. Motion to Compel Arbitration
 Challenges regarding validity of the
  contract as a whole go to the arbitrator
  (Cardegna – U.S.S.C)
 The court should only determine whether
  there is a valid agreement to arbitrate…all
  other disputes over contractual terms
  (even remedial limitations) should go to
  the arbitrator (Rollins – 2nd DCA)
B. Motion to Stay Discovery and Proceedings
and Motion for Protective Order Limiting
Discovery to Arbitration
 File to prevent waiver
 Once compelling arbitration, do not
  want to move the underlying case
  forward
 Limit any discovery to arbitration
  issues only
C. Arbitration Discovery
   Limited to arbitration issues only:
    – Competence of signor
    – Construction of the agreement
    – Language of the agreement
    – Circumstances surrounding the
      execution of the agreement
C. Arbitration Discovery
   Types of Arbitration Discovery
    – Depositions
      • Individual who presented the agreement
      • Individual who executed the agreement
    – Interrogatories regarding the
      circumstances surrounding the
      execution of the agreement
C. Arbitration Discovery
   Types of Arbitration Discovery
    – Request for Production for any
      documents used with regard to the
      execution of the agreement (e.g. Power
      of Attorney, Health Care Surrogate,
      other documents executed
      contemporaneously)
C. Arbitration Discovery
   Types of Arbitration Discovery
    – Request for Admissions
      •   Completeness of contract
      •   Verifying signatures
      •   Acknowledging competency
      •   Verifying date of execution
    – Medical Subpoenas to
      determine/confirm competency
D. Avoidance of Waiver
 Verify whether there is an arbitration
  agreement immediately!
 If so, immediately file a Motion to Compel
  Arbitration and Motion to Stay
  Proceedings and Motion for Protective
  Order Limiting Discovery to Arbitration
  Issues
 File arbitration discovery ONLY
 Set the Motion to Compel Arbitration for
  an evidentiary hearing
V. Arguments at Evidentiary
Hearing
A.   Illegal Contract
B.   Seifert Test
C.   Unconscionability Test
D.   Public Policy Test
E.   Rollins Test
                                                 Ten Steps of Arbitration Enforcement


                                   2. Def’s                3. FAA or              4. K itself                5. Public Policy               6. Who Decides/
 1. Complaint
                                   Response                State Law                                         “Threshold Test”               Interprets other clauses
                                                                                 •small print
•nursing home
                                                           •interstate comm                                   •contrary to remedial       •Cardegna:
                                                                                 •location
• lending                                                                                                     statute
                                                           •waiver                                                                        - challenge K – Arbitrator
                                                                                 •breadth                     ☞ add remedial counts
•investments                                                                                                                              decides
                                   Waiver                  •who decides                                       ☞ avoids uncon 2-step
                                                                                 •complete
•auto sales                                                limits on statutory                                                            - challenge Arb Clause –
                                                           remedies?             •who is arbitrator?                                      Court decides
•cell phones
                                                                                 •notice of arb                                           - as substantive federal law,
•anything w/ a K
                                                                                 rules?                                                   arb clause is severable from
                                                                                                                                          remainder of contract
              FL – no prejudice                   Federal =                      •signed?
              “Inconsistent act”              Waiver + Prejudice                                                                          • Rollins but see Romano and
                                                                                 •severability
                ☞ Knowing                                                                                                                 Lacey
                                                                                                                                          •Morton: trial court decides
 7. Procedural                                     8. Sliding Scale?              9. Substantive                                          “arbitrability” unless K says
 Unconscionability                                                                Unconscionability                                       otherwise
 Enforceable:                                     Romano and FL 4th DCA
                                                                                  •“outrageous” vs. unfair
 •clearly visible – bold/above signature          ☞ Is this court alone in
                                                  approach?                       •attorneys’ fees
 •optional
                                                                                  •caps on damages?                               10. Arbitration
 •explained or opportunity to ask questions
                                                                                  •bar punitives?                                      yes?
 •recission                                                                                                                             no?
                                                                                  •exculpatory clauses?
 TESTS: Weston and Broughsville
                                                                                  •too costly to arbitrate
 Issues:
                                                                                  •unfair discovery scheme
 •age/infirmity vs. incompetence
                                                                                  •who arbitrates? (e.g. NHLA)
 •agency – actual, apparent
                                                                                  •biased arbitrator
 •health care surrogate / proxy
                                                                                  •clause language upheld in
 •when signed vs. when performed
                                                                                  other cases
 •estoppel/performance
                                                                                  •no denial of statutory rights
                                                                                                                         Christopher B. Hopkins- hopkins@csklegal.com
                                                                                                                          Allison S. Bernstein - bernstein@csklegal.com
 1. Complaint                                                          3. FAA or
                                                                       State Law
• nursing home                   2. Def’s Response
• lending                                                              • interstate commerce

• investments                                                          • waiver standard different

• auto sales                                                           • who decides limits on
                                         Waiver                        statutory remedies?
• cell phones
                                                                       ☞ in light of Cardegna,
• anything w/ a K
                                                                       defendants should invoke FAA


                    FL – no prejudice                 Federal =
                    “Inconsistent act”            Waiver + Prejudice
                      ☞ Knowing




                                                                        Christopher B. Hopkins- hopkins@csklegal.com
                                                                         Allison S. Bernstein - bernstein@csklegal.com
“The key to challenging an arbitration clause is to
attack the unfair aspects of the particular clause at
     issue in the case, not to make generalized
      arguments that would effectively bar all
                     arbitration.
 The goal is to beat the arbitration clause you face
by making case-specific contractual arguments and,
 where necessary, bearing the burden of proof on
              disputed factual issues.”

                                                 -“Keeping Your Clients in Court: Update on the Law for Fighting
                                                                Mandatory Arbitration Clauses”
                                                                       Richard H. Frankel
Christopher B. Hopkins- hopkins@csklegal.com                    1 Ann.2005 ATLA-CLE 793 (2005)
 Allison S. Bernstein - bernstein@csklegal.com
4. K itself                   5. Public Policy                  6. Who Decides/ Interprets
                              “Threshold Test”                  Limitation Clauses
• small print
• location                    • contrary to remedial statute   •Rollins but see Romano and Lacey

• breadth                     •☞ add remedial counts           •Cardegna:
                                                               -challenge K – arbitrator decides
• complete                    •☞ avoids 2-step
                                                               -challenge arb clause – court decides
                              unconscionability test
• who is arbitrator?
• notice of arb rules?
• signed?
• severability
•Morton v. Polivchak         2006
WL335042 (Fla. 2nd DCA) –
court decides arbitrability unless
K says otherwise
•jury waiver anyways?

                                                                     Christopher B. Hopkins- hopkins@csklegal.com
                                                                      Allison S. Bernstein - bernstein@csklegal.com
7. Procedural                             8. Sliding Scale?          9. Substantive
Unconscionability                                                    Unconscionability
                                          Romano and FL 4th
Enforceable:                              DCA
                                                                     • “outrageous” vs. unfair
•clearly visible – bold/above signature   ☞ Is this court alone in
                                                                     • attorneys’ fees
•optional                                 approach?
                                                                     • caps on damages?
•explained or opportunity to ask
questions                                                            • bar punitives?
•recission                                                           • exculpatory clauses?
TESTS: Weston and Broughsville                                       • too costly to arbitrate
Issues:                                                              • unfair discovery scheme
                                           Must Have Both
•age/infirmity vs. incompetence               Forms of               • who arbitrates? (e.g. NHLA)
•agency – actual, apparent                 Unconscionability         • biased arbitrator
•health care surrogate / proxy                                       •clause language upheld in other
                                                                     cases
•when signed vs. when performed
                                                                     •no denial of statutory rights
•estoppel/performance


                                                                     Christopher B. Hopkins- hopkins@csklegal.com
                                                                      Allison S. Bernstein - bernstein@csklegal.com
                                                                  Why not just
                                                                  jury waiver?




                     10. Arbitration
                          yes?
                           no?




                                                 Lagniappe:
                                                 ☞ clause upheld in other cases?
                                                 ☞ signor asks no questions, can’t argue ambiguous,
                                                 adhesion, not visible
                                                 ☞ 2 sides to explaining terms
                                                 ☞ 2 sides to self-serving affidavits
Christopher B. Hopkins- hopkins@csklegal.com
 Allison S. Bernstein - bernstein@csklegal.com
VI. Arguments Against Arbitration

A.   Waiver of Arbitration
B.   Invalid Agreement
C.   Procedural Unconscionability
D.   Substantive Unconscionability
E.   Public Policy
F.   Arbitration Biased and/or Costly
G.   Statutory Claim Not Arising from the
     Contract
A. Waiver of Arbitration
 Active participation in litigation may waive
  arbitration – not consistent with arbitration
 Any doubts should be resolved in favor of
  arbitration
 Some Florida courts (and Florida Federal
  courts) require the non-waiving party to be
  prejudiced for arbitration to be waived
A. Waiver of Arbitration
   Answer = Waiver
    – The courts consistently hold that filing
      an Answer is active participation in the
      lawsuit and, therefore, equates waiver
      of the right to arbitration.
A. Waiver of Arbitration
   Motion to Dismiss  Waiver
    – Does not constitute active participation
      • Addresses technical aspects of the
        complaint (e.g. failure to state a cause of
        action)
      • Motion granted
      • 4th DCA test: Does the Motion attack the
        merits of the complaint?
A. Waiver of Arbitration
   Discovery alone is not waiver
    – Questionable whether discovery is
      record activity
    – Not inconsistent with arbitration since it
      is available through arbitration
B. Invalid Agreement
1) Wrong signor/Unsigned Agreement
  – Signed by a third party or not signed at
    all
  – A third party can be:
    •   Spouse
    •   Power of Attorney
    •   Responsible Party
    •   Guardian
    •   Health care surrogate or proxy
B. Invalid Agreement
1) Wrong signor/Unsigned Agreement
  – Third parties permitted to sign
     • Power of Attorney
     • Legal guardian
  – Third parties not permitted to sign
     • Health care surrogate/proxy (4th DCA) – right to make
       medical decisions, not legal decisions
     • Responsible party/family member/spouse who is not
       POA or legal guardian
B. Invalid Agreement
1) Wrong signor/Unsigned Agreement
  –   If signed by wrong party or not signed, make
      estoppel, performance and/or agency
      argument
      •   Performance/Estoppel
          –   Party is estopped from arguing the validity of an
              arbitration clause because their actions amounted to
              acceptance of the contract (4th and 5th DCAs)
          –   Ex. Party acted under the contract for years, yet now
              wants to claim it is not enforceable – argue that they
              are estopped from making this argument
B. Invalid Agreement
1) Wrong signor/Unsigned Agreement
  –   If signed by wrong party or not signed, make
      estoppel, performance and/or agency
      argument
      •   Agency
          –   Argue that the person signing was an agent of the
              person they signed on behalf of and, therefore, had
              authority to execute the agreement
          –   Ex. Nursing home scenerio:
              Resident in room and signs first page of agreement
              along with daughter (not POA or guardian). Daughter
              signs remainder of agreement. No evidence resident
              ever left room. Resident lived at facility for 3 years.
              Estate sues and facility moves to enforce arbitration.
B. Invalid Agreement
1) Wrong signor/Unsigned Agreement
  –   If permitted to argue that despite
      performance failure of a person with “legal”
      authority to execute the contract excuses a
      party from their obligations under the
      contract, brings into question:
      •   Contracts with the elderly who have not designated
          a POA or guardian
      •   Contracts for medical care
          Ex. Having a baby…husband signs wife into the
          hospital??
          Ex. Any emergency medical care
          situations…nursing home, hospital, etc.
B. Invalid Agreement
   Incompetent Signor
    – Make sure signor is competent
    – Just because “legally” competent does not
      mean “medically” competent
    – Even if not deemed medically incompetent by
      a doctor, courts have held that assessments of
      problems with short term memory and/or
      confusion in new situations can make an
      individual incompetent to sign
    – If healthcare agreement, check admission
      assessments
C. Procedural Unconscionability
   Questions the circumstances under which
    the agreement was entered
    –   Emergency nature of the situation
    –   Presentation of the contract
    –   Presentator’s understanding of the agreement
    –   Age of signor
    –   Legal savvy of signor
    –   Ability to read
    –   Ability to ask questions
C. Procedural Unconscionability
   Weston Tests
    – Look to circumstance surrounding the
      transaction to exhibit whether the
      complaining party had a meaningful
      choice at the time the contract was
      entered
      • Burden is on party seeking to avoid
        arbitration
C. Procedural Unconscionability
   Weston Tests
    – Circumstances to consider:
      • Bargaining power regarding the terms of the
        contract or “take it or leave it”
      • Was it a contract of adhesion – “take it or
        leave it” to someone with no other means of
        obtaining the desired services
      • Ability to understand the contract
C. Procedural Unconscionability
   Weston Tests
    – Circumstances to consider:
       • Opportunity to read the contract before executing and
          whether this opportunity would have made a difference
       • Whether signor asked any questions…did they show their
          attorney
       • Whether signor did anything to advise they did not have
          the opportunity to read before signing
       • Whether contract was presented on a “take it or leave it”
          basis
       • Whether signor requested the arbitration provision to be
          deleted and, if so, would it have been deleted…was it
          optional??
       • Whether signor could have obtained services elsewhere
C. Procedural Unconscionability
   Weston Tests – Although these
    circumstances are considered:
    – Presumption that by signing contract,
      signor read and understood it
    – Florida courts have even held a contract
      valid that was executed by a blind
      person
D. Substantive Unconscionability
   Questions the language of the agreement
    itself
    – Is the arbitration provision “unreasonable and
      unfair”
    – How much is the signor giving up…is it fair
       • Must be more than just a bad bargain
       • How extensive are the limitations…the greater the
         limitations, the more substantively unconscionable
         the agreement
          – Limited discovery
          – Caps on damages
          – Punitive damages exclusion
E. Public Policy –               4 th   DCA
   Blankfeld/Lacey
    – Holding that a contractual provision is
      unenforceable if it defeats the remedial portions of
      a statute, and is thus contrary to public policy
    – Lacey addressed the same arbitration clause as
      Romano, but without any procedural
      unconscionability. Instead of performing an
      unconscionability analysis, the 4th DCA found the
      arbitration agreement void holding that its
      limitations on discovery, punitive damages and
      noneconomic damages defeated the remedial
      purpose of Florida’s Nursing Home Resident’s Act
F. Arbitration Biased and/or Costly
   Additional substantive unconscionability
    arguments
    1) Costly
    – Party seeking to avoid arbitration must provide
      competent substantial evidence that there is a
      “likelihood” that they will not be able to pursue
      the claim due to the cost
    – Conclusory statements are insufficient
    – Evidence regarding the potential cost of
      arbitration has been held to be insufficient
    – Evidence regarding the party’s financial
      situation should be provided
F. Arbitration Biased and/or Costly
   Additional substantive unconscionability
    arguments
    2) Biased
    – While arguments have been made that
      arbitrators are biased and the party seeking to
      avoid arbitration will, therefore, be prejudiced,
      the courts have generally disagreed without
      competent substantial evidence that the bias
      actually exists
VII. What to Expect in Arbitration

A.   Upcoming Trends
B.   Lessons from Arbitrations
C.   Questions & Answers
The End

				
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