JAMES DUHON v. ACTIVELAF LLC SKYZONE LAFAYETTE AND UNDERWRITERS AT LLOYDS LONDON (2016)

I agree with the majority's assessment that the factors outlined in Aguillard v. Auction Management Corp., 04-2804 (La. 6/29/05), 908 So.2d 1, are an appropriate starting point for analyzing the issue presented in this matter.¹ See Duhon v. ActiveLaf, LLC, 16-0818, slip op. at 7 (La. 10/__/16). However, I respectfully disagree with the majority's conclusion that analysis of the Sky Zone Agreement using Aguillard's four-factor “framework” supports a finding that the arbitration clause is adhesionary and not enforceable. To the contrary, I find the arbitration clause to be valid and enforceable. I also find that analysis of the clause using Aguillard's factors, viewed in light of the strong and, as Aguillard describes it, “heavy” presumption in favor of arbitration, dictates that finding of enforceability. Aguillard, 04-2804 at 25, 908 So.2d at 18.

As the majority recognizes, a contract of adhesion is broadly defined as “a standard contract, usually in printed form, [often in small print,] prepared by a party of superior bargaining power for adherence or rejection of the weaker party.” Duhon, 16-0818, slip op. at 7-8 (quoting Aguillard, 04-2804 at 9, 908 So.2d at 8-9.) (Emphasis added.) Pursuant to this definition, a predicate factor to consider in determining whether a contract is adhesionary is the existence of unequal bargaining power. Indeed, this is one of the four factors delineated in the Aguillard analysis. Yet, the majority opinion does not mention, much less weigh, this factor in conducting its analysis–this, despite the fact that there must be unequal bargaining power for the contract to meet the definitional hurdle of a contract of adhesion in the first instance.

In this case, it is clear that, as in Aguillard, there was not “such a difference in bargaining positions between the parties so as to justify the application of the principle of contract of adhesion to the arbitration clause.” Aguillard, 04-2804 at 22, 908 So.2d at 16-17. As Aguillard explained in defining a contract of adhesion, “[o]wing to the necessities of modern life a particular kind of contract has been developed where one of the parties is not free to bargain.” Id., 04-2804 at 10, 908 So.2d at 9 (quoting Saul Litvinoff, Consent Revisited: Offer, Acceptance, Option, Right of First Refusal, and Contracts of Adhesion in the Revision of the Louisiana Law of Obligations, 74 La.L.Rev. 699, 757-59 (1986-1987)). Such a lack of bargaining power exists where “[t]he party in the weaker position is left with no other choice than to adhere to the terms proposed by the other.” Id. (Emphasis added.) Typical examples of such contracts include those entered into with “airlines, public utilities, railroad or insurance companies.” Id.

In Aguillard, this court recognized that the relative bargaining positions of the real estate auctioneer and the individual auction participant involved in that case were not so unequal as to justify invalidating the arbitration clause on grounds of adhesion, reasoning that, although the participant was required to sign the agreement containing the arbitration clause in order to participate in the auction, “the underlying transaction, the real estate auction, [was] not ․ such a necessary transaction” that the participant “was compelled to enter it.” Id., 04-2804 at 22-23, 908 So.2d at 16-17. Indeed, the participant could have avoided arbitration by not signing the agreement, not participating in the auction, and simply walking away. See id. 04-2804 at 22, 908 So.2d at 17. Under such circumstances, the court found “nothing sufficient to establish the [auctioneers] were in such a superior bargaining position as to render the [auction participant] a far weaker party or the contract adhesionary.” Id. 04-2804 at 23, 908 So.2d at 17.

The rationale of the court in Aguillard applies with equal force to the Sky Zone Agreement at issue in this case. Here, the Agreement concerns not a “necessity of modern life,” but a purely voluntary recreational activity. The plaintiff was not compelled–physically, economically or otherwise–to visit the trampoline park, jump on its trampolines, or sign the Agreement containing the arbitration clause. Jumping on a trampoline is simply not a practical necessity of modern living like water, electricity, or even airline flight. Like the auction participant in Aguillard, the plaintiff, here, retained the ultimate bargaining chip in this situation: he could have refused to sign Sky Zone's Agreement, walked away, and pursued an alternative form of recreational activity. Given these circumstances, there is simply no evidence to establish that Sky Zone was in such a superior bargaining position as to render the plaintiff a far weaker party or the contract adhesionary.

Further, and also contrary to the majority, I find nothing in the Sky Zone Agreement, itself, that would call into question the validity of the plaintiff's consent to the terms of the Agreement. This determination is based on my analysis of the three factors that are addressed in the majority's Aguillard analysis–(1) the physical characteristics of the arbitration clause; (2) the distinguishing features of that clause; and (3) the mutuality of the clause–and my differing conclusions as to each.

In addressing the first Aguillard factor–the physical characteristics of the arbitration clause–the majority acknowledges that “the arbitration language is consistent in size and font with the other provisions in Agreement.” Duhon, slip op. at 9. In fact, the clause is not in small print or otherwise unreadable, but is just as legible as every other word in the Agreement. The majority apparently concedes, therefore, and I agree, that the physical characteristics of the arbitration clause weigh in favor of finding the clause enforceable.

In addressing the second of the Aguillard factors–the distinguishing features of the clause–the majority, in my view, falls into error. It downplays the very feature that distinguishes the arbitration clause and calls its attention to the participant: the box located next to the paragraph in which the clause appears, a box which must be affirmatively checked before the Agreement can be completed. The majority chooses, instead, to focus solely on the fact that the arbitration language is not set out in a stand-alone paragraph to reach the conclusion that it is “camouflaged” and “cloak[ed] ․ within a blanket of boilerplate language” to such an extent that plaintiff could not have not consented to its terms, despite affirmatively indicating by checking the electronic box that he did just that. See Duhon, 16-0818, slip op. at 10. While it is true that the arbitration clause appears in a paragraph not limited to the single topic of arbitration, more than one-half of that paragraph concerns the agreed-upon arbitration, its procedure, its locale, governing law, and the consequences for refusing or otherwise breaching the agreement to arbitrate.² The arbitration language is hardly camouflaged. Further, the majority's suggestion, that failure to set the arbitration language out in a stand-alone paragraph fails to sufficiently distinguish the arbitration clause, ignores the check box. See Duhon, 16-0818, slip op. at 10. The presence of that box is akin to, and has the same legal force and effect as, requiring the plaintiff to initial next to the paragraph, a requirement that affirmatively alerts the participant to the contents and significance of the paragraph.³ Like the arbitration provision in Aguillard, and contrary to the majority, I find the arbitration language in the Sky Zone Agreement was not concealed in any way and that the use of the electronic check boxes reasonably distinguished the clause.

Finally, as to the third Aguillard factor, the mutuality of the obligation to arbitrate, the majority acknowledges that “Aguillard did not create a per se rule that any degree of non-mutuality in an arbitration agreement renders it unenforceable,”⁴ and that “requiring term-for-term mutuality in an arbitration clause could risk running afoul of the [Federal Arbitration Act],”⁵ but then inexplicably invalidates the arbitration clause in the Sky Zone Agreement precisely because it lacks the term-for-term mutuality that it acknowledges the law does not require, and may even prohibit.⁶ In truth, the only difference between the arbitration clause in Aguillard and the one in the Sky Zone Agreement is the use of the “I” in the Sky Zone Agreement. However, the mere use of the word “I” does not render the clause non-mutual, particularly in light of the fact, acknowledged by the majority, that the Agreement does not reserve to Sky Zone the right to pursue litigation.⁷

Consequently, unlike the majority, I find an analysis of all four of the factors outlined in Aguillard leads to the conclusion that the Sky Zone Agreement is not adhesionary and is valid and enforceable. This conclusion is strengthened, not only by the strong legislative policy that favors arbitration,⁸ but also by the long-standing principle that signatures to documents are not mere ornaments.⁹ As Aguillard notes: “It is well [-]settled that a party who signs a written instrument is presumed to know its contents and cannot avoid its obligations by contending that he did not read it, that he did not understand it, or that the other party failed to explain it to him.” Id., 04-2804 at 22, 908 So.2d at 17. In this case, as in Aguillard, the plaintiff signed the Agreement acknowledging that he “had sufficient opportunity to read this entire document ․ understand this Agreement and ․ voluntarily agree to be bound by its terms.”¹⁰ As in Aguillard, there was no evidence that the plaintiff was not in an equal bargaining position with Sky Zone because the plaintiff could have avoided arbitration and the contractual provisions as a whole by simply not signing the Sky Zone Agreement and pursuing an alternative recreational activity. Also as in Aguillard, there is nothing in the Sky Zone Agreement itself–its physical or distinguishing characteristics–that would call into question the validity of the plaintiff's consent to the terms of the Sky Zone Agreement as indicated by his signature. I would affirm the decision of the court of appeal.

FOOTNOTES

1.   While I dissented in Aguillard, I did so solely on grounds that there was a threshold legal question that I believed needed to be resolved before reaching the issue of the enforceability of the arbitration clause: whether the arbitration clause at issue even applied in light of the fact that the Auction Agreement for the Purchase and Sale of Real Estate had been completed. Aguillard, 04-2804 at 1, 980 So.2d at 20-21 (Weimer, J., dissenting.).

2.   See Duhon, 16-0818, slip op'n at 3.

3.   Modern technology has introduced what is referred to as a “clickwrap” agreement as a mechanism for having a “user manifest his or her assent to the terms of the ․ agreement by clicking on an icon.” See Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 429 (2nd Cir. 2004).

4.   See Duhon, 16-0818, slip op. at 13.

5.   See Duhon, 16-0818, slip op. at 12.

6.   See Duhon, 16–0818, slip op. at 11-13.

7.   See Duhon, 16-0818, slip op. at 11.

8.   See Duhon, 16-0818, slip op. at 5 (citing La. R.S. 9:4201, et seq.).

9.   See Tweedel v. Brasseaux, 433 So. 2d 133, 137 (La. 1983) (quoting Boullt v. Sarpy, 30 La.Ann. 494, 495 (La. 1878)).

10.   See Duhon, 16-0818, slip op. at 4.

WEIMER, J., dissenting.