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> my contract had a sneaky clause in it that said both parties are responsible for 50% of attorney fees. Which contract? The one you did the arbitration? If t

by ascar 4y ago

> my contract had a sneaky clause in it that said both parties are responsible for 50% of attorney fees. Which contract? The one you did the arbitration? If the consumer law says the winner has to pay the fees, how can such a clause be legal?

thathndude 4y ago
I just re-read that comment, and had the same question. If the company is trying to include such a provision in its contract with you, such a provision, would be illegal, unconscionable, void against public policy, etc etc. I’ve never seen anything like that in all of my arbitrations. What you will see for B2B claims (not consumer claims) is an agreement that the parties will split the cost of arbitration. But that’s different than their respective attorneys please.
- sillysaurusx 4y ago
  My apologies, I think I was mistaken. The contract is here: https://twitter.com/theshawwn/status/1476573099902611457 https://twitter.com/theshawwn/status/1476573099902611457 You're right. It says "Each will separately pay their own counsel fees and expenses." I was focused on the part that said "Company and Contractor will each pay one-half of the costs and the expenses of arbitration." Wouldn't a $50k judgement be considered an expense? I suppose not, but it's all quite confusing for non-lawyers. The 50% clause was confusing enough that when I went to someone for advice, they mentioned that it would limit my upside. Here's the full advice I got from them. (They were relaying what their father said, who is a lawyer.) > He said $10k is a little small to bother recouping Bc you might burn thru 20% just retaining a lawyer + covering half of initial arbitration fees > And arbitration—if it happens, and if it’s extensive—will absolutely burn thru the rest > He said your best bet was a friend or young out-of-law-school kid without a crazy hourly rate to help out, make a few calls, make sure the company is willing to move forward with arbitration > But, if they are, it might not be worth it… > Unlike mediation—where a neutral third party tries to guide the parties to a resolution before arbitration—arbitration is adversarial, involves a legal decision, and will require things like discovery (surfacing all the relevant facts + documentation etc.) > He said arbitration can be as expensive + complex as regular ol’ litigation > Grain of salt from a non-Washington lawyer who probably did most of his work in a different scale / context, but in case it’s helpful > Your agreement says you half to cover half of arbitration costs, separate from your lawyer, unfortunately. Some agreements split cost disproportionally between winner + loser, but this one doesn’t (I think, skimmed), and even if it did it would be a risky / ambitious gambit
  - thathndude 4y ago
    My read of that contract (and it's a pretty standard term) is that you're just splitting the invoices for costs/fees from the arbitration provider. This has nothing to do with respective attorneys' fees. However, that can still limit your upside. If the arbitration fees are $5,000, then you're paying $2,500 win, lose, or draw, and so that has to be factored into your calculations.
    - encryptluks2 4y ago
      It needs to be factored into the law and forced arbitration clauses need to be abolished.
maccard 4y ago
> If the consumer law says the winner has to pay the fees, how can such a clause be legal? And if it's not, you're back in arbitration...
SamWhited 4y ago
If your state has a loser-pays law then the clause likely isn't enforceable. They probably know this and have a severability clause as well ("if any one clause isn't enforceable, the others remain in effect") and just leave it in to try and scare people into not bringing a lawyer. Of course, that's assuming that your state does actually have a law that makes this clause unenforceable.

by ascar 4y ago

thathndude 4y ago

I just re-read that comment, and had the same question. If the company is trying to include such a provision in its contract with you, such a provision, would be illegal, unconscionable, void against public policy, etc etc. I’ve never seen anything like that in all of my arbitrations. What you will see for B2B claims (not consumer claims) is an agreement that the parties will split the cost of arbitration. But that’s different than their respective attorneys please.

sillysaurusx 4y ago
My apologies, I think I was mistaken. The contract is here: https://twitter.com/theshawwn/status/1476573099902611457 https://twitter.com/theshawwn/status/1476573099902611457 You're right. It says "Each will separately pay their own counsel fees and expenses." I was focused on the part that said "Company and Contractor will each pay one-half of the costs and the expenses of arbitration." Wouldn't a $50k judgement be considered an expense? I suppose not, but it's all quite confusing for non-lawyers. The 50% clause was confusing enough that when I went to someone for advice, they mentioned that it would limit my upside. Here's the full advice I got from them. (They were relaying what their father said, who is a lawyer.) > He said $10k is a little small to bother recouping Bc you might burn thru 20% just retaining a lawyer + covering half of initial arbitration fees > And arbitration—if it happens, and if it’s extensive—will absolutely burn thru the rest > He said your best bet was a friend or young out-of-law-school kid without a crazy hourly rate to help out, make a few calls, make sure the company is willing to move forward with arbitration > But, if they are, it might not be worth it… > Unlike mediation—where a neutral third party tries to guide the parties to a resolution before arbitration—arbitration is adversarial, involves a legal decision, and will require things like discovery (surfacing all the relevant facts + documentation etc.) > He said arbitration can be as expensive + complex as regular ol’ litigation > Grain of salt from a non-Washington lawyer who probably did most of his work in a different scale / context, but in case it’s helpful > Your agreement says you half to cover half of arbitration costs, separate from your lawyer, unfortunately. Some agreements split cost disproportionally between winner + loser, but this one doesn’t (I think, skimmed), and even if it did it would be a risky / ambitious gambit
- thathndude 4y ago
  My read of that contract (and it's a pretty standard term) is that you're just splitting the invoices for costs/fees from the arbitration provider. This has nothing to do with respective attorneys' fees. However, that can still limit your upside. If the arbitration fees are $5,000, then you're paying $2,500 win, lose, or draw, and so that has to be factored into your calculations.
  - encryptluks2 4y ago
    It needs to be factored into the law and forced arbitration clauses need to be abolished.

maccard 4y ago

> If the consumer law says the winner has to pay the fees, how can such a clause be legal? And if it's not, you're back in arbitration...

SamWhited 4y ago

If your state has a loser-pays law then the clause likely isn't enforceable. They probably know this and have a severability clause as well ("if any one clause isn't enforceable, the others remain in effect") and just leave it in to try and scare people into not bringing a lawyer. Of course, that's assuming that your state does actually have a law that makes this clause unenforceable.