Arbitration

Fifth District Enforces Mortgage Company Arbitration Agreement Except as to Class Actions

October 13, 2010 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Our Chicago alternative dispute resolution lawyers noted a recent Fifth District Court of Appeal ruling upholding an arbitration agreement but severing its class-action waiver. In Keefe v. Allied Home Mortgage Corporation, No. 5-07-0463 (Ill. 5th 2009) (PDF), Rosemary Keefe was the lead plaintiff in a proposed class action against her mortgage broker. She refinanced through Allied Home Mortgage Capital Corp. in 1999, and as part of that deal, she signed a rider requiring binding arbitration of most disputes. Five years later, she filed a proposed class action against Allied, accusing it of consumer fraud and other torts for charging third-party fees (such as credit check fees) in excess of their actual cost and failing to disclose this. Allied moved to compel arbitration. Without an evidentiary hearing, the trial court ruled that the arbitration agreement was illusory and procedurally and substantively unconscionable, and Allied filed an interlocutory appeal.

The Fifth District started by examining de novo whether the agreement was indeed illusory. An illusory promise is something that appears to be a promise but holds out no performance, or only an optional performance. The Fifth found that it was not illusory, because the arbitration rider specified that the borrower may request arbitration in any judicial proceeding started by Allied. Furthermore, it noted, the rest of the contract may be considered part of the consideration granted to the plaintiff.

It next looked at the finding that the agreement was both procedurally and substantively unconscionable. A contract is procedurally unconscionable when some impropriety during the signing of the contract — such as language that is difficult to find or understand — robs the signer of a reasonable choice. That was not the case here, the court said. The arbitration rider was not hidden by fine print, it wrote, nor was it difficult to read or understand. Rather, the arbitration rider “conspicuously” used bold capital letters to notify the plaintiff that she was signing a contract that gave away her right to a jury trial. Nor did she need to sign it to obtain the refinancing.

The court also rejected the plaintiff’s argument that the rider was unconscionable because it failed to notify her of the cost of arbitration. The Fifth noted that the arbitration rider did contain a provision notifying the plaintiff that she can get copies of rules and forms related to arbitration at any National Arbitration Forum office or by mail order. Under Kinkel v. Cingular Wireless LLC, 223 Ill. 2d 1, 22, 857 N.E.2d 250, 264 (2006), this is not enough by itself to render the contract unconscionable, the court wrote, but it may be considered along with findings on substantive unconscionability.

Finally, the Fifth looked at whether the arbitration rider was substantively unconscionable. A contract is substantively unconscionable when the contract terms are unfair, one-sided or create a large imbalance between price and cost. The plaintiff first argued that the rider is cost-prohibitive because it specifies that no claim may be brought by class action. The Fifth found some merit in this. In Kinkel, the Illinois Supreme Court found that class-action waivers are not per se unconscionable, but courts should look at their fairness as well as the cost of bringing an individual claim relative to the damages. Once again following that decision, the Fifth found the cost of pursuing an individual claim was high relative to the potential damages, especially including arbitration and attorney fees. Taking into account Allied’s failure to reveal the cost of arbitration, the court ruled that the class-action waiver was unconscionable. But rather than declare the entire contract unconscionable, the court simply severed the class-action clause, reversed the rest of the trial court’s decision and remanded the case with directions to enforce the remainder.

Second District Declines to Compel Arbitration Based Only on Oral Agreement

September 16, 2010 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Our Illinois alternative dispute resolution lawyers were interested to see an appeals case clarifying that parties can only be compelled to binding arbitration if they have an explicit written contract. In Heider v. Knautz, No. 2-09-0808 (Ill. 2nd Dec.4, 2009), Arlie Heider sued Carl Knautz for injuries arising out of a car accident, including a knee injury. During a September hearing on admission of Heider’s Wisconsin-based attorney to Illinois courts, that attorney asked to suspend his request for admission because both parties had agreed to binding arbitration. The court stayed the case for six months pending the arbitration.

However, some months later, Knautz filed for a protective order preventing Heider from attending the arbitration, saying that during discovery, he had learned that Heider had reinjured his knee in a subsequent car accident, despite statements to the contrary. He wanted to delay the arbitration to conduct further discovery, and because he had changed attorneys, but the plaintiff’s attorney refused to reschedule. The court denied Knautz’s motion, so he filed a motion for judicial determination of whether he could revoke his agreement to arbitrate. In that motion, he said the Illinois Uniform Arbitration Act did not apply because he had signed no written agreement to binding arbitration. The trial court disagreed, finding at Heider’s urging that the Act applies because Knautz agreed on the record during the September hearing that such an agreement existed, and because that hearing was written down and entered into the record. Knautz filed an interlocutory appeal.

After dismissing what it saw as a meritless jurisdictional argument by Heider, the Second District Court of Appeal turned to the merits of Knautz’s appeal. Knautz argued that he should not be compelled to use binding arbitration because he did not sign a formal written agreement to do so. In considering this, the court considered the plain language of the Act, which refers to “a written agreement” or “a provision in a written contract.” This language makes it clear that the Act was intended only to apply to written agreements, the Second wrote. In support, it cited multiple out-of-state cases based on very similar language, as the Illinois Act was adopted from the Uniform Arbitration Act. Furthermore, the court said, there is nothing in the transcript of the September hearing to suggest that the parties intended to make a binding contract to arbitrate.

That order was based on an oral agreement, the court said, and the common law says oral agreements to arbitrate may be revoked anytime before an award is entered. The Act does not abrogate that rule, the court wrote, so Knautz is entitled to revoke his agreement to arbitrate. In fact, it wrote, if it were to decide otherwise, “parties who choose to enter into only an oral agreement could never obtain an order staying trial court proceedings pending arbitration, for fear that such an order would be viewed as a written agreement subjecting them to the Act and thereby destroying the purpose of entering into only an oral agreement for arbitration.” Thus, it reversed the order to arbitrate and remanded the case to trial court.

Will The Supreme Court Alllow Big Business to Force Consumers and Employees to Give Up The Right to Pursue a Class-Action

August 22, 2010 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Publich Justice reports on its website:

The consumer and civil rights communities are closely watching AT&T Mobility v. Concepcion, a case that will be argued in the Supreme Court this November. Depending on how broadly the Court reads the question presented in Concepcion, the case could decide the fate of consumer and employee class actions for years to come.

Public Justice’s Senior Attorney Paul Bland, Staff Attorney Claire Prestel and Brayton-Baron Fellow Melanie Hirsch explain what is at stake in ATT Mobility v. Concepcion, a case with profound consumer and civil rights implications. The U.S. Supreme Court is scheduled to hear the case this fall. Click here to see what is at stake.

Arbitration Clause in Written Contract Cannot Compel Arbitration in Oral Agreement, First District Finds

August 17, 2010 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

As Chicago alternative dispute resolution attorneys, we were pleased to read a decision from the First District Court of Appeal on compelling arbitration in an oral contract related to a written contract. In Marks v. RSM et al, No. 1-09-1988 (Ill. 1st. March 12, 2010), Carol Marks allegedly contracted with RSM McGladrey Inc. to do accounting for investments she held. That was a written contract including an arbitration clause. Marks alleges that she later entered a separate oral contract with the managing director of RSM and RSM for investment advice. However, she was unhappy with the advice she received and later sued the defendants. The defendants sought to compel arbitration under the written contract, and the trial court denied this, saying there was no arbitration agreement for the oral contract. The First upheld that decision.

Marks allegedly originally retained RSM to monitor her investment accounts. For that work, she signed an “engagement letter” as a contract, which included two clauses of interest. One specifies that RSM will use its professional judgment in applying “rule applicable to this engagement.” The other is a binding arbitration clause requiring dispute resolution to go through the American Arbitration Association. Marks signed, but during the remainder of her first year with RSM, she alleges that RSM failed to provide the portfolio reporting services she expected and instead allegdly began to promote various investments to her. She further alleged that RSM charged her separately for those services and emphasized that they were separate, but no written contract was signed. The court also notes that Bober and RSM allegedly were not registered with the state of Illinois or with the SEC as providers of investment services.

As a result of the alleged solicitations, Marks allegedly put $500,000 into Lancelot Investors Fund II, which put the money into a hedge fund called Thousand Lakes. Marks alleged this conduct damaged her economically. She sued RSM and its managing director, alleging that they breached their fiduciary duties and oral contract with her by allegedly failing to investigate Lancelot and that they allegedly negligently held themselves out as investment experts. She sought to void the oral contract and the Lancelot investment.

In trial court, the defendants denied all of her allegations and also moved to compel arbitration under the engagement letter. This motion was denied without any decision rendered on the merits of the underlying breach of fiduciary duty claim. On their motion for consideration, the defendants alleged that they provided no investment advice and did not recommend Lancelot; rather, the RSM managing director saw from the accounting work that Marks could use such advice, so he introduced her to advisors who did recommend Lancelot. This motion too was denied, and defendants appealed, saying the dispute is covered by the arbitration agreement. They also argued that the Federal Arbitration Act supports this because it has a presumption of arbitrability.

The First rejected this position. Under the FAA, which it said was the governing law in this case, it was proper for the trial court rather than an arbitrator to decide arbitrability. Under that law and the Supreme Court’s decision in AT&T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 649, 89 L. Ed. 2d 648, 656, 106 S. Ct. 1415, 1418 (1986), parties cannot be compelled to arbitration unless they have agreed to do so in their contract.

Illinois case law seems to confirm this. The court cited Johnson v. Noble, 240 Ill. App. 3d 731, 732-33 (1992), which also concerned a case with one written contract and one oral contract. In that case, as in this one, the defendant sought to compel arbitration based on the written contract, but the plaintiff argued that the claims arose from the oral contract. The trial and appeals courts agreed, saying the dispute was not arbitrable because it arose from a separate oral contract. Similarly, in Board of Managers of Chestnut Hills Condominium Ass’n. v. Pasquinelli, Inc., 354 Ill. App. 3d 749 (2004), an appeals court upheld the plaintiff’s right to sue because the claims at issue were outside the scope of the arbitration agreement.

In this case, the First wrote, defendants had two separate agreements, one oral and one written. The dispute arose out of the oral contract, it said, so Marks was not required to conform to the terms of the written contract. In fact, the court said the language of the written contract indicates that the parties did not intend to extend the contract past “this engagement.” For those reasons, it upheld the trial court’s decision and remanded it to the trial court for further proceedings.

When the case returned to the trial court, the parties ultimately agreed to it being dismissed with prejudice pursuant to a stipulation to dismiss. The defendants denied all of the allegations and the case did not proceed to trial so plaintiff’s claims remained allegations that were not proven at a trial. Defendants maintain that the allegations that they did anything wrong were baseless and lacked any merit.

State Supreme Court Finds Federal Law Preempts Illinois Nursing Home Care Act

August 12, 2010 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

As mediation and arbitration attorneys in Chicago, we were interested to see an Illinois Supreme Court decision from this year that clarifies state law’s relationship with the Federal Arbitration Act. Carter v. SCC Operating Company, No. 106511 (Ill. April 15, 2010) (PDF). The plaintiff, Sue Carter, is administering the estate of Joyce Gott, who was a resident of Odin Healthcare Center, a nursing home, for two months in 2005 19 more days in January of 2006. She died in the home that month. Carter, acting as Gott’s legal representative, signed an agreement on Gott’s original admission to the home agreeing to binding arbitration; Gott signed the same agreement herself on her second admission. The agreement also specifically mentioned that it is governed by the Federal Arbitration Act.

After Gott’s death, Carter filed a lawsuit in Marion County alleging Odin violated the state Nursing Home Care Act and the Wrongful Death Act by failing to provide proper care and supervise caregivers, resulting in juries that led to Gott’s death. Odin answered the complaint and then moved to compel arbitration under the arbitration agreement and then FAA. Carter answered that the arbitration agreement is null because it is against Illinois public policy under the Nursing Home Care Act, and the FAA allows arbitration agreements to be voided for “grounds that exist at law or in equity to void any contract.” At an evidentiary hearing, the trial court accepted that argument and others made by Carter and voided the arbitration agreement. Odin appealed, and the Fifth District Court of Appeal upheld the trial court’s decision, but only as to the FAA argument. In essence, the appeals court said the Nursing Home Care Act is an ordinary defense available for all contracts under state law, putting it outside the FAA.

Odin appealed to the Illinois Supreme Court, which initially denied the appeal but changed its mind after the Second District split with the Fifth on this issue and the U.S. Supreme Court denied certiorari to Odin. Attorney General Lisa Madigan was also permitted to intervene.

In its analysis, the state Supreme Court had only to consider the idea that the Nursing Home Care Act’s anti-waiver provision is a defense to any contract dispute in Illinois. It did not accept that argument. While the court noted that there was no express or implied preemption in the FAA, it said preemption can also be found where state law specifically conflicts with federal law. After examining how the FAA and the Nursing Home Care Act have been interpreted, it concluded that this is such a case. It cited Southland Corp. v. Keating, 465 U.S. 1, 79 L. Ed. 2d 1, 104 S. Ct. 852 (1984), in which the Supreme Court found that the FAA applies in state court and preempts conflicting state laws. The majority opinion specifically addressed the issue at hand, saying a state law governing investment contracts was not a “ground… for revocation of any contract,” but only for contracts that fall under that law. Similarly, in Preston v. Ferrer, 552 U.S. 346, 169 L.Ed. 2d 917, 128 S. Ct. 978 (2008), the Supreme Court found that an arbitration contract was enforceable even though state law referred the underlying dispute to an administrative agency.

Thus, the Supreme Court said, the lower courts were wrong to believe that the Nursing Home Care Act (or other state laws) could only be preempted by the FAA if it singled out arbitration. It also rejected an argument from the Attorney General that the right to a jury trial is too fundamental to be waived, noting that “it is axiomatic” that parties may make arbitration agreements. However, the court noted that there are numerous other issues in this case, including whether the nursing home contract constituted interstate commerce under the FAA. Thus, it reversed and remanded the case to the Fifth District for consideration of those issues.