delegation clause in Missouri

2020Nevertheless, the holdings of the United States Supreme Court in Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010), that were quoted in Pinkerton, Soars, and Newberry were broad enough to imply that the failure of a party to separately challenge a delegation clause in an arbitration agreement required a court to sustain a motion to compel arbitration so that formation disputes, including challenges to the delegation clause, could be decided by the arbitrator.

2020Rent-A-Ctr., West, Inc. v. Jackson, 561 U.S. 63, 68-69 (2010). 2 By the delegation clause's plain terms, this is a matter for the arbitrator to decide. ___________________________ Zel M.

2021She dedicated nearly two pages of her sur-reply in opposition to the Motion to Compel, making specific arguments against the validity of the delegation clause, including the argument that “Volt could change the delegation clause at any time it wanted because it reserved the ‘right to change, interpret or cancel any of its rules, policies, benefits, procedures or practices….’” 3 Appellants resist this notion, relying on Soars v. Easter Seals Midwest, 563 S.W.3d 111 (Mo. banc 2018), to contend that Respondent failed to separately challenge the delegation provision and that she directed her argum

2021Cf. Soars, 563 S.W.3d at 117 (“Because neither [party] retains any unilateral right to amend the delegation clause nor avoid its obligations, the delegation clause is bilateral in nature and consideration is present.”).

2020The principal opinion is correct that this Court did not adjudicate a challenge to the existence of an arbitration agreement in State ex rel Pinkerton v. Fahnestock, 531 S.W.3d 36 (Mo. banc 2017), Soars v. Easter Seals Midwest, 563 S.W.3d 111 (Mo. banc 2018), or State ex rel.

2019See Rent-A-Ctr. , 561 U.S. at 71 , 130 S.Ct. 2772 ; Pinkerton , 531 S.W.3d at 51 .

2020In New Prime, the employer asserted that the delegation clause gave the arbitrator authority to decide even the initial question of whether the parties’ dispute was subject to arbitration because the delegation clause was not challenged separately. 139 S. Ct. at 538 .

2020The opinion noted the employer also argued that Rent-A-Center required the Court to “treat a challenge to the validity of an arbitration agreement (or a delegation clause) separately from a challenge to the validity of the entire contract in which it appears.” Id.

2021However, when one party “retains unilateral authority to amend the agreement retroactively, its promise to arbitrate is illusory and is not consideration.” Baker, 450 S.W.3d at 776–77; accord Esser, 567 S.W.3d at 652 .

2020See, e.g., Baker, 450 S.W.3d at 774 ; Ellis v. JF Enterprises, LLC, 482 S.W.3d 417, 419 (Mo. banc 2016).

2023The Supreme Courts of Georgia and Alabama have reached results consistent with Bedrosian and Jones: they held that claims of litigation-waiver must be referred to an arbitrator, under arbitration agreements delegating disputes about the “validity” or “enforceability” of the arbitration agreement, or concerning the “arbitrability” of particular disputes.3 On the other hand, the substantial majority of the out-of-state decisions have reached the opposite result: they hold that the courts must decide litigation-waiver claims despite a generically-worded delegation clause.4 3 Key v. Warren Averett

2023The Supreme Courts of Georgia and Alabama have reached results consistent with Bedrosian and Jones: they held that claims of litigation-waiver must be referred to an arbitrator, under arbitration agreements delegating disputes about the “validity” or “enforceability” of the arbitration agreement, or concerning the “arbitrability” of particular disputes.3 On the other hand, the substantial majority of the out-of-state decisions have reached the opposite result: they hold that the courts must decide litigation-waiver claims despite a generically-worded delegation clause.4 3 Key v. Warren Averett

2022Distribution Co., 570 S.W.3d 138, 142-43 (Mo. App. 2019) (citation omitted).

2021Ctrs., Inc., 410 S.W.3d 735, 738 (Mo. App. W.D. 2013) (citing Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661, 662 (Mo. banc 1988)); accord McIntosh v. Tenet Health Sys.

2021In Points II and III, Menard asserts that the arbitration agreement contained in the EEA was valid in that it was supported by sufficient consideration.6 Finally, in its fourth point, Menard complains that circuit court cases denying arbitration in cases with similar EEAs cannot constitute collateral estoppel, arguing that “the previous cases involving Menard concerned contracts with different language and Missouri caselaw has changed.”7 “‘Arbitration is a matter of contract under the Federal Arbitration Act (FAA).’” Pinkerton, 616 S.W.3d at 482 (quoting Soars v. Easter Seals Midwest, 563 S.W.

2021Ctrs., Inc., 410 S.W.3d 735, 738 (Mo. App. W.D. 2013) (citing Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661, 662 (Mo. banc 1988)); accord McIntosh v. Tenet Health Sys.

2021However, when one party “retains unilateral authority to amend the agreement retroactively, its promise to arbitrate is illusory and is not consideration.” Baker, 450 S.W.3d at 776–77; accord Esser, 567 S.W.3d at 652 .

2020See, e.g., Baker, 450 S.W.3d at 774 ; Ellis v. JF Enterprises, LLC, 482 S.W.3d 417, 419 (Mo. banc 2016).

2014Since no specific attacks were made on the delegation provisions in the subject arbitration agreements, we need not, and do not, address any public policy issues relating to those provisions when contained in an adhesion contract, in particular, whether such provisions are per se unconscionable or infringe on rights relating to access to the courts. 7 Roper, 112 S.W.3d 397, 419 (Mo. banc 2003); Schlereth v. Hardy, 280 S.W.3d 47, 53 (Mo. banc 2009).

2014Since no specific attacks were made on the delegation provisions in the subject arbitration agreements, we need not, and do not, address any public policy issues relating to those provisions when contained in an adhesion contract, in particular, whether such provisions are per se unconscionable or infringe on rights relating to access to the courts. 7 Roper, 112 S.W.3d 397, 419 (Mo. banc 2003); Schlereth v. Hardy, 280 S.W.3d 47, 53 (Mo. banc 2009).