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Arbitration Agreements Strike Back

| Dec 1, 2020 | Firm News |

It is something of a legal truism that if a court can send a dispute to arbitration under The Federal Arbitration Act (FAA), they’ll do it. Arbitration clauses exist in contexts from consumer agreements (there’s one in most of those website Terms of Service) to employment contracts. As a matter of both freedom of contract as well as judicial efficiency, courts generally rule that arbitration agreements are enforceable. However, in many cases such agreements effectively are used by more powerful parties to block access to the courts. This appears to be the case in the November 23rd  decision in William Biermann v. Comcast Cable Communications Management, LLC, Case No. 20 C 2986 in the U.S. District Court of the Northern District of Illinois, which is notable mostly due to the Plaintiff’s somewhat novel (if unsuccessful) argument about the arbitration agreement itself.

William Biermann was a longtime employee of Comcast before being terminated in 2019. He alleges in his complaint that his firing was due to his age, in violation of the Age Discrimination in Employment Act. Comcast, rather than addressing the merits of the allegations, instead argued that the case should not be in court at all, because in 2013 they sent a notice to all Illinois employees stating that, if they did not choose to opt out, they were automatically changing their workplace policy to mandate the arbitration of disputes. They then sent an email containing a link to the program description and reminding them of the opt-out deadline. Biermann argued that he should not be bound by this policy since he has no memory whatsoever of either the letter or the email, and that Comcast has no proof that he actually received either of them. Because of this, he argues that no arbitration agreement was ever created.

The problem with Biermann’s argument, as the court points out, is that while Comcast can’t dispute Biermann’s memory, they can show that they both mailed and emailed the notice of the policy to Biermann’s correct addresses. Even if Biermann can’t remember reading them, based on the existing caselaw that’s enough for the court to rule that he probably did. Because he presumptively received them and did not choose to opt out of the policy change, the court can assume that, through his inaction and the fact he continued to work for Comcast under the new policy, that Biermann was agreeing to the mandatory arbitration. Biermann also argued that, since the email only contained a hyperlink, it was not a contract offer itself. The court pointed out that Biermann (presumably) got the mailed full version so that’s a bit of a moot point, and also said that there was enough information in the email itself to put him on notice that he probably should inquire if there was some sort of issue. So off to arbitration the case goes.

Now, William Biermann might still get a good result at arbitration (because the court was only ruling on the arbitration agreement it did not get into the merits of the case), but it probably was not the outcome tat Biermann was hoping for when he filed his claim in the civil court system.

-Attorney Travis Dunn