Litigation & Arbitration,
Contracts
Feb. 22, 2023
Delegating unconscionability to the arbitrator
A recent decision serves as a reminder to litigants about the potential impact of specific language in arbitration clauses, and raises a number of issues and insights regarding the delegation doctrine.
Gary A. Watt
Partner
Hanson Bridgett LLP
State Bar Approved, Certified Appellate Specialist
Email: gwatt@hansonbridgett.com
Gary chairs Hanson Bridgett's Appellate Practice. He is a State Bar-approved, certified appellate specialist. In addition to writs and appeals, his practice includes anti-SLAPP and post-trial motions as well as trial and appellate consulting. His blog posts can be read at www.appellateinsight.com.
Patrick Burns
Partner
Hanson Bridgett LLP
Email: pburns@hansonbridgett.com
Patrick is a partner in the firm's Appellate Practice. Patrick focuses on writs and appeals, as well as law and motion in the state and federal courts. A former litigator at a global law firm, Patrick has experience litigating high-stakes disputes. He can be reached at pburns@hansonbridgett.com and his blog posts can be read at www.appellateinsight.com.
Whether an arbitration agreement is unconscionable is ordinarily an issue determined by a court, not the arbitrator. OTO, L.L.C. v. Kho, 8 Cal. 5th 111, 138 (2019). At the same time, parties to an arbitration agreement may “delegate” certain threshold issues to the arbitrator, including unconscionability, so long as the agreement does so by “clear and unmistakable” evidence. Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 5...
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