Possibility Of Incurring Transcription Costs Does Not Render Arbitration Agreement Substantively Unconscionable

In Bufford v. VXI Global Solutions LLC an Arizona District Court, in compelling arbitration, rejected a claim that the agreement was substantively unconscionable in requiring a party to pay for transcription of arbitration proceedings. As the court explained,

“Transcript costs are not significantly prohibitive. They are comparable to the costs
associated with transcribing the matter in district court. Moreover, Plaintiff has not shown why transcription is essential to vindicate Plaintiffs’ rights or presented any evidence as to what the costs would be. In addition, the AAA guidelines, under which the parties agreed to arbitrate, requires payment for transcripts from ‘the requesting party.’…
Therefore, the Agreement’s provision is not inconsistent with the costs of typical AAA arbitration. Finally, even if the cost-bearing provision was unconscionable, the remedy would be to sever the violative section from the Agreement, not to find the Delegation Provision unconscionable.

Thus, as the court held, “[t]he Court cannot find that the speculative costs would deter an employee from arbitrating his or her claim or cost significantly more than raising the same claim in federal court. As a result, the Court will not conclude the Agreement forecloses the vindication of Plaintiffs’ rights.”

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