Contractual Arbitration Clauses and Unconscionability – IL 4th Dist. Case Note

Courts generally favor contractual arbitration clauses. The reason is that they (in theory at least) save litigants’ time and money and also reduce court congestion.

Arbitration provisions appear in varied business settings ranging from franchise agreements and personal services contracts to employment agreements and most everything in between.

Willis v. Captain D’s , 2015 IL App (5th) 140234-U examines an arbitration clause in the employment contract context and whether the clause is expansive enough to cover an employee’s sexual harassment claim involving a co-worker.

There, a plaintiff grocery store cashier signed an employment contract that contained broad arbitration language.  Claiming her co-employee sexually harassed her and the defendant did nothing to stop it, the plaintiff filed multiple state court tort claims without first demanding arbitration. The trial court denied the employer defendant’s motion to compel arbitration finding the plaintiff’s assault and battery claims did not arise out of her employment and were beyond the scope of arbitration.  Defendant appealed.

Held: Reversed

In finding that plaintiff’s claims fell within scope of the arbitration clause, the court announced the key rules that govern arbitrability:

– Under the Illinois Uniform Arbitration Act, 710 ILCS 5/1 et seq., parties are bound to arbitrate the issues they agreed to arbitrate;

– A court (not an arbitrator) decides whether a particular dispute is subject to arbitration;

– The two main arbitrability issues are (1) whether the parties are bound by a given arbitration agreement, and (2) whether an arbitration provision applies to a particular type of controversy;

– Where two parties mutually agree to arbitrate, there is sufficient consideration to bind each side to the arbitration provision;

– Inclusion of the phrase “arising out of” or “related to” in connection with an arbitration agreement denotes broad application of the arbitration agreement;

– An arbitration clause will be deemed procedurally unconscionable where it’s difficult to find, read or understand and where a party didn’t have reasonable opportunity to appreciate the clause;

– Substantive unconscionability will negate an arbitration agreement where it’s terms are blatantly skewed in one side’s favor to the exclusion of the weaker contracting party or where arbitrating would impose substantial costs on a party;

– Continued employment after notice of an arbitration agreement is sufficient consideration to enforce the agreement.

(¶¶ 12-32)

Validating the arbitration clause, the court held that it was supported by consideration. It found the employer’s promise to employ the plaintiff and to keep employing her in exchange for plaintiff signing the employment contract was sufficient to bind the plaintiff to the arbitration agreement.

The court also rejected the plaintiff’s unconscionability arguments. On the procedural unconscionability front, the court found that the plaintiff had two separate occasions to review and accept the arbitration agreement (plaintiff was previously hired a few years ago by the same defendant) and the arbitration language conspicuously appeared in all-caps. It wasn’t buried in a maze of fine print.

Substantively, the court found that the plaintiff failed to support her claim that submitting to arbitration was cost-prohibitive – especially since the court filing fee exceeds the contractual arbitration fee.

The court also found that the arbitration agreement encompassed the plaintiff’s claims. While her assault and battery claims were against an individual employee, her remaining claims against the corporate defendant sounded in negligent hiring, retention and supervision. In light of the arbitration clause’s sweeping language, these claims clearly fell within the reach of the arbitration clause.

Take-aways:

– The court (not an arbitrator) determines whether a dispute is subject to arbitration;

– A promise of employment conditioned on employee signing arbitration agreement will likely meet requirements of a valid contract;

– Broad arbitration language that contains “arising out of” and “related to” phrasing will constitute strong support for a broad application of an arbitration clause.

Illinois LLC Manager Liability For LLC Contract Obligations – Some Basics

This unpublished case is dated (2011) but still post-worthy for its discussion of the nature of limited liability company (LLC) contract obligations and when someone is privileged to intentionally tamper with an existing contract.

In 6030 Sheridan Road, LLC v. Wright Management, LLC, 2011 IL App. (1st) 093282-U, the plaintiff real estate developer sued defendants – an LLC property owner and its principal – for tortious interference with business relationship after a planned condominium conversion tanked.

The plaintiff sued when the defendants terminated the condo conversion agreement because of their displeasure with the plaintiff’s handpicked real estate broker and marketing firm.

The plaintiff sued claiming the defendants tortiously interfered with plaintiff’s contracts with the broker and marketing firm and caused the plaintiff to breach those contracts.  The trial court granted summary judgment for the defendants.

Held: Affirmed.

Reasons: the court first held that an individual LLC member could conceivably interfere with a contract entered into by that LLC.  The elemental LLC rules relied on by the court:

– An LLC is a separate entity from its principal members and can sue and be sued and make contracts in its own capacity.

– An LLC is a hybrid form of doing business that combines the advantages of a corporation’s limitation on personal liability with a partnership’s pass-through tax treatment (i.e., the LLC pays no entity level state or federal income tax.)

– The Limited Liability Company Act (the Act) (805 ILCS 180/1-1 et seq.) requires an LLC to have one or more members and is a separate legal entity from its members.

– An LLC can be member-managed or manager-managed and LLC members owe an LLC’s other members a fiduciary duty of loyalty and care. The same holds true for managers of manager-managed companies.

– The debts of an LLC, whether arising in contract, tort, or otherwise, are solely the debt of the LLC; not its managers or members;

– A member or manager is not personally liable for a debt, obligation, or liability of the company solely by reason of being or acting as a member or manager.

– An LLC member can only be responsible for LLC debts where: (1) the articles of organization provide for individual liability; and (2) the member has consented in writing.

See 805 ILCS 180/10-10; 180/1-30; 180/15-1, 15-3.

Afterwords:

This case provides detailed discussion of the LLC business entity and the scope of an LLC member’s liability for contract obligations.

 

Fraud, Partnership Formation and Confidentiality Agreements in Illinois: A Case Illustration

The Northern District examines several recurring commercial litigation and employment law issues in nClosures Inc. v. Block and Company, Inc., 2013 WL 6498528. Chief among them are the facts giving rise to common law fraud liability, the fundamentals of a partnership relationship and the fiduciary duties that business partners owe one another.

Plaintiff designs and sells tablet computer accessories. In 2011, plaintiff and defendant entered a partnership agreement and a related Non–Disclosure Covenant (NDA) for the sale of the tablet items. The business relationship later imploded and plaintiff sued for damages.

Granting summary judgment for the defendant, the court examined the quantum of evidence needed to sustain fraud, breach of fiduciary duty and breach of partnership claims under Illinois law.

To establish common law fraud, a plaintiff must prove that: (1) defendant made a false statement; (2) of material fact; (3) which defendant knew or believed to be false; (4) with the intent to induce plaintiff to act; (5) the plaintiff justifiably relied on the statement; and (6) the plaintiff suffered damage from such reliance. But mere expressions of opinion or statements that relate to future or contingent events are not actionable.

Rejecting the plaintiff’s fraud claim, the court found that the plaintiff failed to establish reliance – that it took some action or refrained from action based on a false statement. The defendant’s alleged fraudulent statement – that a partnership existed – was made several months after plaintiff supplied tablet accessories. As a result, it was chronologically impossible for the plaintiff to have relied on the statement.

Next, the court found for the defendant on the plaintiff’s breach of fiduciary duty claim. To prevail on this claim, a plaintiff must show: (1) the existence of a fiduciary duty (basically, a relationship of business trust and loyalty); (2) a fiduciary duty was breached, and (3) that the breach damaged the plaintiff.

A partnership is a quintessential fiduciary relationship in Illinois. To establish a partnership under Illinois law, the plaintiff must show that two or more parties (1) joined together to carry on a trade or venture, (2) for their common benefit, (3) with each contributing property or services to the enterprise, and (4) sharing in the profits.

Here, the court rejected plaintiff’s fiduciary duty claim because there was no partnership between the parties as a matter of law. Since there was no joint sharing of profits and losses, there could be no partnership.

The plaintiff also lost its breach of contract claim based on the defendant’s alleged breach of the confidentiality agreement. In Illinois, a confidentiality agreement will be enforced only “when the information sought to be protected is actually confidential and reasonable efforts were made to keep it confidential.” How much effort is reasonable to keep information confidential is decided on case-by-case basis.

The record was devoid of any efforts the plaintiff made to safeguard its product design drawings. In fact, just the opposite was true: plaintiff freely provided copious design and product data to the defendant for sale to its ( defendant’s) customers. Since plaintiff didn’t expend any physical or fiscal resources to shield its data from disclosure, it couldn’t enforce the confidentiality agreement.

Afterwords:

A central partnership component is the sharing of profits. Without it, there can be no partnership or breach of fiduciary duty;

Fraud claims requires reliance on the false statement before the statement. If the false statement occurs after plaintiff takes action/non-action, the plaintiff will be unable to show he relied on the statement;

Valid nondisclosure agreement requires proof that the subject information is truly confidential and treated as such by the plaintiff.