Denson v. Keplr Vision, LLC
- Proceeding
- district
- Area
- civil
- Panel
- Myron James Lorenz (author)
Analysis
The court reviewed Defendants' motion to compel arbitration, noting Plaintiff's argument that the arbitration agreement's fee-shifting clause is unconscionable. The court ordered supplemental briefing on whether the clause is substantively unconscionable and severable.
| What the court decided | The model |
|---|---|
Order requiring supplemental briefing on the substantive unconscionability and severability of the fee-shifting clause in the arbitration agreement.“The Court therefore orders the parties to brief whether the above clause is substantively unconscionable... The parties shall also address whether the clause — if unconscionable — is severable.” | agree with court The court correctly identified a factual and legal dispute regarding the unconscionability of the fee-shifting clause, which is a prerequisite to compelling arbitration. Ordering supplemental briefing is a standard procedural mechanism to resolve such disputes before ruling on the motion to compel. |
The order itself: sound — The order is a procedural directive to obtain further briefing on a specific legal issue (unconscionability of a fee-shifting clause) that is central to the pending motion to compel. It correctly cites relevant Ninth Circuit and California authority to frame the issue for the parties. It does not make a final ruling on the merits of the motion to compel, so it is not subject to the same level of scrutiny as a final judgment, but the procedural step is sound and necessary.
Opinion
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 VALERIE DENSON, Case No.: 3:20-cv-2228-L-BGS 11 Plaintiff, 12 v. ORDER REQUIRING 13 KEPLR VISION, LLC, et al., SUPPLEMENTAL BRIEFING ON 14 Defendants, DEFENDANTS’ MOTION TO COMPEL (DOC. NO. 20) 15 16 Pending before the Court is Defendants’ motion to compel arbitration. (Doc. No. 17 20). Plaintiff opposed, and Defendants replied. (Doc. Nos. 25 and 26). 18 In the opposition, Plaintiff argues the arbitration agreement at issue (Doc. No. 20, 19 Exhibit 1 at 1-5) is unconscionable. (Doc. No. 25 at 10). Plaintiff relies, in part, on her 20 right to attorneys’ fees. (Id. at 11) (citing cases on fee-shifting). In response, Defendants 21 cite a clause from the agreement that authorizes the arbitrator to award a prevailing party 22 reasonable attorneys’ fees. (Doc. No. 26 at 9) (“the arbitrator may award the prevailing 23 party his or her expenses and fees of arbitration, including reasonable attorney fees.”) 24 The Court finds supplemental briefing is warranted on the above clause. The 25 Court therefore orders the parties to brief whether the above clause is substantively 26 unconscionable. See Pokorny v. Quixtar, Inc., 601 F.3d 987, 1004 (9th Cir. 2010) (“we 27 agree that because the fee-shifting clause puts [the party] who demands arbitration at risk 28 of incurring greater costs than they would bear if they were to litigate their claims in 1 || federal court, the district court properly held that the clause is substantively 2 ||unconscionable.”); Wherry v. Award, Inc., 192 Cal. App. 4th 1242, 1249 (2011) 3 || (although an arbitration agreement did not require the arbitrator to award costs against 4 || plaintiffs if they were unsuccessful, it authorized the arbitrator to impose them). The 5 || parties shall also address whether the clause — if unconscionable — is severable. 6 Plaintiff shall file her supplemental brief on (or before) July 9, 2021. Defendants 7 file their brief on (or before) July 16, 2021. The briefs are limited to five pages 8 || each. 9 IT IS SO ORDERED. 10 11 Dated: July 1, 2021 fee Soop 13 H . James Lorenz, 4 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Cites, in this corpus
- Wherry v. Award, Inc. No. G042404 · 2011-02-09