Short note today, since I’m packing boxes in preparation for the office move this weekend.  The [1] very first post I did here was about arbitration clauses in consumer contracts, and I followed up the subject with another one [2] here.  For the most part, the decisions out of our court have been quite favorable to consumers.

Not so much this time, in last week’s case, [3] Handler v. Southerland Custom Bldrs., where a homeowner had sued the builder, and the builder had asked to stay proceedings and submit the case to arbitration, as the contract specified.  The court overruled the motion to stay without a hearing, but the court reversed, finding that there was no evidence in the record to support a finding of either substantive or procedural unconscionability, which the decisions I talked about before require.

It’s hard to quibble with the decision; this wasn’t a normal consumer contract, and there’s reason to believe that the homeowners might have been able to modify it or even get rid of it if they’d asked.  The biggest problem was that there was absolutely no record, other than the documents themselves, to argue from.  A better course of action for plaintiff’s counsel might have been to request a hearing in the trial court, at which point he could presented evidence supporting a finding of unconscionability.  Then again, there might not have been much there.

And with that, back to the boxes.