OTLA Trial Lawyer Fall 2020

59 Trial Lawyer • Fall 2020 that both the agreement and its arbitra- tion provisions were unconscionable, unenforceable and, by their terms, would deprive him and proposed class members the ability to adjudicate relatively small wage claim damages under state law. The plaintiff argued the agreement expressly requires a three-arbitrator panel to re- strict its consideration of claims to those arising from or relating to “the interpre- tation or breach [of the Agreement or its] existence, scope or validity.”The plaintiff further argued he could not pursue his state law claims under the agreement because the panel may not “alter, amend or modify” any of the agreement’s inde- pendent contractor terms or award penalties. The plaintiff also specifically argued the arbitration provision was substantively unconscionable because it required a three-arbitrator panel and that each party “pay an equal share of any required administrative fees and arbitra- tion panel compensation,” “bear the cost of attorneys, expert witnesses, or other expenses incurred by that party,” and that “the arbitrator shall have no authority to allocate or apportion such costs.” In ad- dition to those arguments, the plaintiff submitted and argued evidence that an individual arbitration of his relatively smaller wage claim was cost prohibitive, he was unemployed and could not afford those costs, and, consequently, he would be forced to default on any order to ar- bitrate his claims. The trial court was unpersuaded and issued an order staying the proceedings and compelling arbitration. After several attempts to position the case for immedi- ate appeal, the plaintiff voluntarily sought a judgment of dismissal in order to appeal the court’s order. On appeal, the defendants waited until after the fil- ing of the opening brief before moving the court to dismiss the appeal, arguing the judgment was unappealable because it was voluntarily sought. The Court of Appeals agreed with the defendants and dismissed the appeal. The plaintiff See Sheets p 60