In Davis v. O'Melveny & Meyers, the 9th U.S. Circuit Court of Appeals has determined that O'Melveny's DRP (dispute resolution procudure) is both procedurally unconscionable and substantively unconscionable, and therefore unenforceable. The ruling means that plaintiff Jacquelin Davis, a paralegal who left the firm in 2003, can proceed directly to court with her claims, and so can any of the 1,044-lawyer firm's employees. Among the reasons the agreement failed: (i) it was a take-it-or-leave-it deal forced upon employees in 2002 via an e-mail that said it "applies to and is binding on all employees (including associates) hired by -- or who continue to work for -- the firm on or after November 1, 2002"; (ii) the firm had the greater bargaining power; (iii) it imposed improper confidentiality restrictions on employees; (iv) it allowed the firm to opt out of arbitration in cases involving attorney-client issues; (v) it limited employees' ability to bring administrative actions with public agencies; and (vi) it purported shortened the workers' claims period to one year.
Though a firm spokesman has refused to say whether O'Melveny attorneys or outside counsel drafted the DRP, our guess is that the same attorneys who wrote the firm's arbitration agreement also wrote a lot of their client's DRPs. (On its website, O'Melveny & Myers touts that "much of our work and advice is preventive in nature, conducted with the goal of minimizing or eliminating the employer's exposure to liability and costly litigation." ) If you have a case against that firm in which arbitration is an issue, Davis should be required reading immediately.
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