OTLA Trial Lawyer Fall 2021

35 Trial Lawyer • Fall 2021 See Push and Pull p 36 have to pay the defendant’s attorney fees. Livingston illustrates another principle of recent arbitration decisions. The sub- stantive unconscionability analysis is case-by-case and focuses on the one- sided effect of an arbitration clause, rather than on its one-sided applicability . Thus, in Motsinger v. Lithia Rose-FT, Inc. , 211 Or App 610 (2007), the court approved of an arbitration clause that required arbitration of the employee’s claims but not the employer’s claims, because the plaintiff was still entitled to all of the same remedies — and most of the same procedural protections — as the defendant. She simply had to bring her claims in a different forum. Other substantive challenges have likewise failed in the Oregon Court of Appeals. The court has approved of con- fidentiality provisions that apply only to the amount of the award ( Vasquez-Lopez ) and that otherwise are even-handed and equally benefit and burden both parties ( Livingston ). Likewise, the court in Sprague and Hatkoff approved shortened contractual periods for bringing claims because they did not effectively deprive the plaintiffs of a reasonable opportu- nity to vindicate their rights. For its part, the Ninth Circuit has approved continued judicial review of arbitration clauses for unconscionability under terms that are neutral as to arbitra- tion. Compare Chavarria v. Ralphs Gro- cery Co. , 733 F3d 916 (9th Cir 2013) (clause was unconscionable), with Pou- blon v. C.H. Robinson Co. , 846 F3d 1251 (9th Cir 2017) (clause was not uncon- scionable), and Tompkins v. 23andMe, Inc. , 840 F3d 1016 (9th Cir 2016) (same).” Consent is paramount One area where plaintiffs have suc- cessfully challenged arbitration clauses in recent years is when they did not agree to arbitration with the defendant. See Revitch v. DIRECTV, LLC , 977 F3d 713 (9th Cir 2020) (arbitration clause ap- plicable to defendant’s “affiliates” applied only to affiliates existing at time of con- tract formation); DeLashmutt v. Parker Grp. Investments, LLC , 276 Or App 42 (2016) (where contract requires arbitra- tion for certain named parties, other parties cannot force plaintiff to arbitrate claims against them); Eugene Water & Elec. Bd. v. MWH Americas, Inc. , 293 Or App 41 (2018) (same; developer’s agree- ment to arbitrate with general contractor did not apply to subcontractors); Bates v. Andaluz Waterbirth Ctr. , 298 Or App 733 (2019), rev den, 366 Or 292 (2020) (same; mother-to-be’s agreement to ar- bitrate her claims against midwife did not apply to claims of newborn baby). In Livingston , the Oregon Court of Appeals explained, where an arbitration clause is broad enough, a nonsignatory defendant can enforce the clause against a signatory plaintiff. But it is more difficult for a defendant (signatory or nonsignatory) to enforce an arbitration clause against a nonsignatory plaintiff. In Drury v. Assisted Living Concepts, Inc. , 245 Or App 217 (2011), the court ex- plained a plaintiff who is a third-party beneficiary of a contract with an arbitra- tion clause can be bound by the clause only if they manifest assent to be bound by the contract — for example, by ratify- ing it or asserting a claim for relief under it. Thus, where the resident of an assisted living facility did not sign an arbitration agreement (her son did), and her claims against the facility sounded in tort in- stead of contract, her claims were not subject to arbitration. Who decides arbitrability? Recent decisions have also clarified who decides whether a claim goes to arbitration. In Rent-A-Ctr., W., Inc. v. Jackson , 561 US 63 (2010), the Court reiterated the rule from prior cases that challenges to the enforceability of a con- tract that contains an arbitration clause are for the arbitrator to decide, while challenges to the enforceability of just