OTLA Trial Lawyer Fall 2021

33 Trial Lawyer • Fall 2021 ties. Now people often click on web pages and, according to the company, bind themselves to unknown terms, in- cluding arbitration clauses. While we have not litigated this issue, there is a tremendous recent Massachu- setts Supreme Judicial Court decision, Kauders v. Uber Technologies, Inc. 486 Mass 557, 159 NE3d 1033 (2021). It holds that, without reasonable notice, terms buried in a website are not con- tractually enforceable. 5 This is a great case and should be relied upon when appro- priate. Conclusion Businesses, eager to suppress claims against them, have relied upon arbitra- tion clauses to create barriers to justice. Careful analysis and attention to case law developments can enable you to con- found such efforts. Christina Stephenson specializes in repre- senting workers who have been discrimi- nated against. She is a partner in the Portland employment law firm, Meyer Stephenson, 1 SW Columbia St., Ste. 1850, Portland, OR 97204. Stephenson contributes to OTLA Guardians at the OTLA Stalwart level. She can be reached at christina@oregonworkplacelaw.com or (503) 459-4010. Phil Goldsmith focuses on class actions and the representation of defrauded homeown- ers, in addition to challenging arbitration clauses. He practices at 1205 NW 25th Ave., Portland OR 97210. Goldsmith contributes to the OTLA Guardians at the Sustaining Member level. He can be reached at phil@lopglaw.com or 503-545- 9904. 1 In Grant v. Adair Homes, Inc. , Court of Appeals No. A172426, recently settled, Phil Goldsmith and Lisa K. Hunt, along with Ellen Noble of Public Justice, co-wrote the amicus brief for OTLA and Public Justice focusing on delega- tion clause-related arguments. The plaintiff- appellee in Grant was represented by Susan Eggum and Christina Stephenson. In Gist v. ZoAn Management, Inc. Supreme Court No. S067992, Stephenson, aided by Goldsmith, wrote OTLA’s amicus brief dealing with the transportation worker exception to the Federal Arbitration Act (FAA). Please contact one of us if you wish to read the arguments in more detail than we can present here. We also strongly encourage those bringing arbitration challenges to purchase the extraor- dinarily comprehensive treatise “Consumer Arbitration Agreements” by Public Justice and the National Consumer Law Center, available through library.nclc.org. 2 “Arbitrability” or “gateway” issues include whether the parties formed an agreement to arbitrate, whether the arbitration agreement is unconscionable or otherwise unenforceable, whether the arbitration venue was waived and whether the arbitration agreement covers the dispute at issue. See, e.g., Rent-A-Center , 561 US at 77-78 (Stevens, J., dissenting on other grounds) (collecting cases). For a discussion of the elements of unconscionability under Ore- gon law, see Faith Morse, “Defeating Nursing Home Arbitration Clauses,” in this issue of Trial Lawyer, page 42. 3 Whether the parties have agreed to a valid ar- bitration clause is a classic “gateway” issue to be decided by the court. AT & T Technologies , 475 US at 649. The exception to this general rule is that some “gateway” issues may be del- egated to the arbitrator. Id. In order to employ this exception to the general rule, the court must find: Whether the parties have agreed to a valid ar- bitration clause is a classic “gateway” issue to be decided by the court. AT&TTechnologies, 475 US at 649. The exception to this general rule is that some “gateway” issues may be delegated to the arbitrator. Id . In order to employ this excep- tion to the general rule, the court must find: 1) A validly formed arbitration agreement; 2) A valid delegation provision within the ar- bitration agreement; and 3) A delegation provision that “clearly and unmistakably” delegates the particular “gateway” issue to the arbitrator. 4 Henry Schein , 139 S. Ct. at 530; Rent-A-Center , 561 US at 68, 79 (“Like other contracts, how- ever, [arbitration agreements] may be invali- dated by “generally applicable contract de- fenses, such as fraud, duress, or unconscionabil- ity”; “‘question[s] of arbitrability’ may be del- egated to the arbitrator, so long as the delega- tion is clear and unmistakable”). 5 Such websites generically are called “shrink wrap.” In contrast to websites where a person clicks “I agree,” which are denominated “click wrap.” The latter generally are enforced. See Selden v. Airbnb, Inc ., 4 F4th 148, 156-158 (DC Cir 2021) (under facts, content of “I agree” page gave plaintiff reasonable notice of the arbitration clause).