John M. Baker and Katherine M. Swenson

Under the Federal Arbitration Act, a court can invalidate an arbitration agreement based on the traditional contract defenses, including unconscionability. 9 U.S.C. §2 (arbitration clauses "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract"); Kindred Nursing Ctrs. Ltd. P'ship v. Clark, 137 S. Ct. 1421, 1426 (2017). The Eighth Circuit has considered whether to strike down arbitration clauses as unconscionable in a variety of contexts, including credit-cardholder agreements (Cicle v. Chase Bank USA, 583 F.3d 549 (8th Cir. 2009)), employment agreements (EEOC v. Woodmen of World Life Ins. Soc'y, 479 F.3d 561 (8th Cir. 2007)), construction contracts (Pro Tech Indus. v. URS, 377 F.3d 868 (8th Cir. 2004)), and mobile-home purchase agreements (Dobbins v. Hawk's Enters., 198 F.3d 715 (8th Cir. 1999)). But it was not until October 2019, in Plummer v. McSweeney, No. 18-3059, ____ F.3d. ___ (8th Cir. Oct. 23, 2019), that the Eighth Circuit analyzed the unconscionability of an arbitration clause in a retainer agreement between a law firm and its client. The Eighth Circuit concluded, without fully addressing the issue of unconscionability, that the law firm cured any potential substantive unconscionability by offering to pay the client's share of the arbitration costs—but left open the possibility that arbitration fees might render an agreement unconscionable in another case.

The Plummer case dates back to an unsolicited call to the cellphone of Jerri Plummer, an Arkansas mother of three. According to her allegations, the caller, a stranger who identified herself only as Yolanda, warned that Plummer's transvaginal mesh implant was defective and that Plummer would die if the implant were not removed. Plummer, who had received such a mesh implant several years earlier, listened as Yolanda told Plummer that Yolanda's company would set Plummer up with a doctor and surgery center in Florida to get the mesh removed, as well as attorneys who could seek compensation for Plummer for the surgery by suing the mesh's manufacturer. Yolanda also told Plummer that transportation to and from Florida for the surgery, as well as the surgery itself, would not cost Plummer anything.

Three days before Plummer traveled to Florida for the surgery, she received a message marked "URGENT" requesting her to sign several accompanying documents. One was a retainer agreement between Plummer and two law firms. The agreement contained a paragraph by which client and counsel agreed to resolve any potential disputes through confidential mediation. If mediation was not successful, the agreement provided that the dispute would proceed to binding arbitration in Washington, D.C. The paragraph also included the following language about the rights Plummer would be giving up by agreeing to arbitration: "CLIENT HEREBY ACKNOWLEDGES THAT ARBITRATION IS CLIENT'S ONLY RECOURSE AND THAT CLIENT WAIVES CLIENT'S RIGHT TO TRIAL BY JURY AND JUDICIAL APPEAL BY SIGNING THIS AGREEMENT."

Plummer signed all of the documents electronically. She alleged that she did not read any of the documents or have them explained to her. Plummer traveled to Florida and underwent the mesh-removal surgery on Dec. 12, 2014. Plummer later sued various entities in federal court (the Eastern District of Arkansas), claiming that the surgery caused her substantial and ongoing medical problems.

Among those sued was a law firm that was a party to the retainer agreement Plummer had signed. The law firm moved the district court to compel arbitration. The district court declined to enforce the retainer agreement, holding that it was unconscionable under the law of the jurisdiction named in the choice-of-law provision (the District of Columbia). The district court emphasized the circumstances surrounding the formation of the agreement, including the pressure on Plummer to sign the agreement so she could receive what she understood to be a life-saving surgery, Plummer's 10th-grade education and lack of experience in reading contracts, and the attorneys' failure to explain the terms of the agreement to Plummer. The district court also noted that arbitration would be "cost prohibitive" for Plummer, who had produced evidence that she could not afford to travel to Washington, D.C. even by bus, let alone pay for food, lodging, or the thousands of dollars in arbitration fees.

The law firm appealed to the Eighth Circuit. After noting some procedural oddities, the court concluded that it would accept the district court's factual findings as true and review the legal questions de novo—starting with whether the arbitration agreement was unconscionable under D.C. law.

The law firm made a promise on appeal that kept the Eighth Circuit from deciding whether the district court was correct that Plummer had shown substantive unconscionability. On appeal, the law firm had offered to pay Plummer's share of the arbitration costs, and the Eighth Circuit held that this was sufficient to cure "any substantive unconscionability that the agreement may have contained." In addition to relying on the decisions of Washington, D.C. federal courts applying D.C. law, the Eighth Circuit also cited two of its own decisions—EEOC v. Woodmen of the World Life Insurance Society (2007) and Dobbins v. Hawk's Enterprises (1999)—that did not apply D.C. law. In Dobbins, the Eighth Circuit recognized that arbitration fees have the potential to render an arbitration agreement unconscionable, and that this is an issue "that must be determined on a case-by-case basis in light of the state law governing unconscionability." 198 F.3d at 717. The Woodmen decision also recognized that "[e]xcessive arbitration costs can make an arbitration agreement unconscionable … ." 479 F.3d at 567. Plummer leaves open this possibility.

With regard to the circumstances surrounding the formation of the agreement (procedural unconscionability), the Eighth Circuit concluded that although the facts of the case were "troubling," Plummer did not lack a "meaningful choice" when it came to agreeing to arbitration.

Finally, the Eighth Circuit rejected Plummer's argument, not reached by the district court, that the agreement was unenforceable because the law firm allegedly violated a rule of professional conduct by failing to explain the arbitration agreement to her. D.C. Rule of Prof'l Conduct 1.4(b) ("A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."). The Eighth Circuit assumed for the sake of argument that the arbitration agreement would be unenforceable as against public policy if the law firm had indeed violated the rule, but concluded that the law firm had not violated the rule. In making this conclusion, the Eighth Circuit relied on "the ethics rules themselves" and D.C. case law instead of the ethics opinions of the D.C. Bar Committee and the American Bar Association.

The Eighth Circuit reversed the denial of the motion to compel arbitration and remanded for the district court to compel arbitration—at the law firm's expense.

John M. Baker and Katherine M. Swenson are attorneys at Greene Espel PLLP in Minneapolis.