11th Circuit Sends Class Action Arbitration Waiver Case to Florida Supreme Court

Dear 11th Circuit, if this were the standard you'd be sending every question of Florida law there:
After review and oral argument, we determine conflicting decisions in the Florida intermediate appellate courts require that we certify certain questions to the Florida Supreme Court.
HAHAHAHA, oh 11th Circuit you make me laugh!

Actually, the 11th noted conflicting decisions just within our own Resplendently Robed Circuit:
Our review of Florida law confirms the district court’s interpretation of Florida law as requiring a showing of both procedural and substantive unconscionability. Precedent from the Florida Third District Court of Appeal consistently requires a showing of both procedural and substantive unconscionability. Hialeah Auto., LLC v. Basulto, __ So.2d __, No. 3D07-855, 2009 WL 187584, at *2 (Fla. 3d Dist. Ct. App. Jan. 28, 2009) (“Our court has said that, to invalidate a contract for unconscionability ‘under Florida law, a court must find that the contract is both procedurally and substantively unconscionable.’”) (quoting Murphy v. Courtesy Ford, L.L.C., 944 So.2d 1131, 1134 (Fla. 3d Dist. Ct. App. 2006)); see also Golden v. Mobil Oil Corp., 882 F.2d 490, 493 (11th Cir. 1989) (stating in a commercial lease setting that Florida courts require a plaintiff to show both procedural and substantive unconscionability). Decisions from other Florida appellate districts also consistently require a showing of both procedural and substantive unconscionability. E.g., Bland v. Health Care & Retirement Corp. of Am., 927 So.2d 252, 256 (Fla. 2d Dist. Ct. App. 2006); Fonte v. AT&T Wireless Servs., Inc., 903 So.2d 1019, 1025 (Fla. 4th Dist. Ct. App. 2005); Powertel, Inc. v. Bexley, 743 So.2d 570, 574 (Fla. 1st Dist. Ct. App. 1999).

Nonetheless, there is some tension in Florida law regarding the analytical framework courts should use in evaluating both procedural and substantive unconscionability. Must courts evaluate both prongs simultaneously in a balancing exercise, or may courts stop the analysis after finding either procedural or substantive unconscionability to be independently lacking?

Some Florida courts appear to reject the procedural-plus-substantive unconscionability requirement as a rule of law or use a balancing or sliding scale approach. Steinhardt v. Rudolph, 422 So.2d 884, 889 (Fla. 3d Dist. Ct. App. 1982) (stating that although most courts take a “balancing approach” requiring “a certain quantum of procedural plus a certain quantum of substantive unconscionability,” the “procedural-substantive analysis is . . . only a general approach to the unconscionability question and is not a rule of law”) (quotation omitted and emphasis added); Fonte, 903 So.2d at 1025 (“‘The prevailing view is that procedural and substantive unconscionability must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability. But they need not be present in the same degree . . . .’”); Romano v. Manor Care, Inc., 861 So.2d 59, 62 (Fla. 4th Dist. Ct. App. 2003) (stating “[e]ssentially a sliding scale is invoked” and “the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa”).

Other Florida courts do not use, and some in fact never mention, a balancing or sliding scale approach and assess procedural and substantive unconscionability independently, concluding that if one part of the unconscionability test is not established, the other part need not be examined at all. Bland, 927 So.2d at 257 (“This court, however, eschews the ‘sliding scale’ approach. Rather, we assess procedural unconscionability and substantive unconscionability independently.”); Nat’l Fin. Servs., L.L.C. v. Mahan, 19 So.3d 1134, 1136-37 (Fla. 3d Dist. Ct. App. 2009) (“Because the arbitration provisions in this case suffered from no procedural malady, we do not reach the question of substantive unconscionability.”); Belcher v. Kier, 558 So.2d 1039, 1045 (Fla. 2d Dist. Ct. App. 1990) (stating “the court must view unconscionability in a two-pronged approach, i.e., procedural unconscionability and substantive unconscionability” and “because the appellees were unable to carry their burden as to both prongs, the ruling in their favor cannot stand.”); see also Hialeah, __ So.2d __, 2009 WL 187584, at *5 n.4 (“Speaking for himself, the writer of the opinion suggests that in an appropriate future case, this court should reconsider Murphy v. Courtesy Ford, L.L.C., 944 So.2d 1131 (Fla. 3d Dist. Ct. App. 2006) . . . . Although the requirement for both procedural and substantive unconscionability has been repeated in a number of arbitration cases in recent years, I respectfully suggest that holding is (a) illogical, and (b) inconsistent with this court’s decision in Steinhardt v. Rudolph, 422 So.2d 884 (Fla. 3d Dist. Ct. App. 1982).”) (Cope, J.).
I can't be certain, but I believe this is a genteel Atlantan way of saying "once again, Florida case law is hopelessly screwed up on this issue."


  1. Wayne Delowdd, Esq.January 4, 2010 at 1:28 PM

    I'm calling the Shumie! First of the year. First of the year. I win. WHat do I get?

  2. Judge Shepherd for the Florida Supreme Court!!

  3. Best Legal Anecdote 2009January 4, 2010 at 2:17 PM

    Carlos Loumiet and Stanford-


  4. Shumie Time ReferreeJanuary 4, 2010 at 2:27 PM

    We have an illegal procedure, calling the Shumie way too soon. That's a fifteen yard penalty, still first down, and Wayne Delowdd, Esq., is prohibited from calling the Shumie for ten days.

  5. Shumie's been called for tomorrow-- 9am.

  6. Shumie Time Referree-- post rules, please.

  7. Calling it. The big man needs to see a friend.

  8. Shumie Time ReferreeJanuary 4, 2010 at 3:22 PM

    After further review, the ruling on the blog stands- way too early to call the Shumie on the first day back of 2010. The Real Shumie is penalized 15 yards and prohibited from calling the Shumie for 10 days. Second down!

  9. http://www.lasvegasnow.com/Global/story.asp?S=11764674

    video of shooting at Las Vegas Courthouse

  10. OK tough guy- well why don't you print some rules because I've worked my ass off today and want to get outta here but dont want a 15 yd penalty much less being banned from calling the shuime.

  11. Haven't any of you heard? Shumie was sent to the nut house.

  12. Don't know about shumie time, but the big fella was at the dolphin game handing out fat cuban cigars (the real deal) hosting a sumptuous tailgate buffet (steak, lobster, shrimp louis) and then saw the game from the splendor of a private box on the 40. Man knows how to live.

  13. Shumie Time ReferreeJanuary 4, 2010 at 5:46 PM


  14. Go back to JBB state court hacks!

  15. The Ol Huck-a-buckJanuary 4, 2010 at 8:37 PM

    I'll handle this. Remain seated everyone.

    While I generally frown on lawyers quitting work before 9pm, especially on a Monday, especially on the first Monday of the new year, I think we can make an exception it being close to 9pm.

    Therefore, it is now Shumie Time.

    Done and ordered on this the 4th Day in January, in Miami, Dade County, Florida.
    Paul Huck
    Federal Court Judge

  16. Jack Thompson for Florida Supreme Court!

  17. While I am no expert on the Shumie rules, some simple guidelines seem common sense. Make money, feel free to call the Shum. Broke, no Shum for you.

    Shumie time starts high on Monday, gets higher on Tuesday, then slowly dips Wed and Thurs. Friday is something of a free for all.

    If you are swamped with work (truely swamped), you may call the Shum only after 7pm, except that you get a mid-week "f*** this" Shumie call at about 3pm one day that week.

    Winning a trial or appeal, allows for the Shum to be called immediately, no matter what time or day of the week it is.

    A running Shum (one which lasts beyond the work day on which it is called), may be called a couple of times a year, but ONLY after BIG wins or settlements.

    I leave the finer points to all of you experts out there.

  18. Pretty well said..!!!!

    lawyer marketing

  19. http://markonzo.edu saga http://blog.bakililar.az/webergrills/ http://jguru.com/guru/viewbio.jsp?EID=1534487 http://forums.maniacalragepodcast.com/users/2660 certificated hochiminh http://chictini.com/tartsandwhores

  20. Howdy,

    When ever I surf on web I come to this website[url=http://www.weightrapidloss.com/lose-10-pounds-in-2-weeks-quick-weight-loss-tips].[/url]Plenty of useful information on southfloridalawyers.blogspot.com. Do you pay attention towards your health?. Here is a fact for you. Recent Research points that almost 80% of all USA grownups are either fat or overweight[url=http://www.weightrapidloss.com/lose-10-pounds-in-2-weeks-quick-weight-loss-tips].[/url] Therefore if you're one of these citizens, you're not alone. In fact, most of us need to lose a few pounds once in a while to get sexy and perfect six pack abs. Now the question is how you are planning to have quick weight loss? Quick weight loss can be achived with little effort. Some improvement in of daily activity can help us in losing weight quickly.

    About me: I am author of [url=http://www.weightrapidloss.com/lose-10-pounds-in-2-weeks-quick-weight-loss-tips]Quick weight loss tips[/url]. I am also health expert who can help you lose weight quickly. If you do not want to go under hard training program than you may also try [url=http://www.weightrapidloss.com/acai-berry-for-quick-weight-loss]Acai Berry[/url] or [url=http://www.weightrapidloss.com/colon-cleanse-for-weight-loss]Colon Cleansing[/url] for fast weight loss.

  21. Hey,

    Do you guys watch movies in theater or on internet? I use to rent DVD movies from [b]Netflix.com[/b]. Recently I discovered that we can watch all new movies on internet on day, they are released. So why should I spend money on renting movies??? So, can you guys please tell me where I can [url=http://www.watchhotmoviesfree.com]watch latest movie Ca$h 2010[/url] for free?? I have searched [url=http://www.watchhotmoviesfree.com]Youtube.com[/url], [url=http://www.watchhotmoviesfree.com]Dailymotion.com[/url], [url=http://www.watchhotmoviesfree.com]Megavideo.com[/url] but, Could not find a good working link. If you know any working link please share it with me.


  22. HI friends, this information is very interesting, I would like read more information about this topic, thanks for sharing. homes for sale in costa rica

  23. Costa Rica is an excellent country to invest in real estate its economy is very stable, being a peaceful country and have their exuberant nature makes it much more attractive costa rica best investment in your life!!

  24. Hello .. firstly I would like to send greetings to all readers. After this, I recognize the content so interesting about this article. For me personally I liked all the information. I would like to know of cases like this more often. In my personal experience I might mention a book called Generic Viagra in this book that I mentioned have very interesting topics, and also you have much to do with the main theme of this article.

  25. The holidays are a time ed hardy of getting together with friends ed hardy shoes and family, attending elaborate ed hardy clothing parties, and other exciting events ed hardy clothes that involves dressing up in stunning ed hardy store wardrobes. If you ed hardy Bikini are pregnant during ed hardy swimsuits the holidays, it does not ed hardy Caps mean that you are unable buy ed hardy to look fabulous and ed hardy swimwear stylish. Now, an expectant ed hardy sale mother has many styles of chic ed hardy glasses maternity clothing that allows cheap ed hardy her to show off her baby bump Christian audigier while looking spectacular.

  26. Its the post which written well which is very easy to understand. Thanks a lot for sharing.

  27. Hi Everybody! I'm originally from London but am living in Berlin at the moment.
    Gotta love this place!

    [url=http://stephetteh.wordpress.com/]Barrater is my life[/url]

  28. Very smart and funny blog. Thank you for sharing it.

  29. Great article.Thanks for sharing.
    uk seo firms

  30. I saw really much worthwhile data above!

  31. You wrote a very interesting article. And I agree with you. hair loss Read a useful article about tramadol tramadol

  32. Probably the best thing to do. It is to try something new every time that you can. A friend found out that he can be a professional runner because he tried it out.
    Generic Viagra | kamagra

  33. Know your marketOne of the most important aspects of running any type of business is to know whom your market is And clubs could expended as much or even as little as they need on earningsOkay, back on track For instance, to sort messages by the sender, click once on the Sender heading
    I hate that6 Boy, am I glad I saved this This assured that the Orisha would survive the transatlantic passage and live on

    [url=http://www.denverbroncosofficialstore.com/]Nike Elvis Dumervil Jersey[/url]
    [url=http://www.greenbaypackersteamproshop.com/]Aaron Rodgers Kids Jersey[/url]

    You might make a little less profit per-sale, but if you make 50 more sales per month, you will end up making more!6 Others like the lightweight polyester styles that have a mesh feel to achieve the same effect, keeping competitors cool under pressure1

    [url=http://www.jjwattjerseys.com/]Authentic J.J. Watt Jersey[/url]

  34. requires both identify the basis of the fundamentals but also some collecting of technical study shanghai escort Probationer can lay


Post a Comment