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Appellate panel hears dispute over arbitration clause in Hopkins v. Bristol Myers Squibb
Summary
At oral argument, appellants’ counsel said the arbitration clause was supported by three independent forms of consideration; appellee’s counsel argued no agreement was ever formed and urged that procedural unconscionability voids the clause for Hopkins.
An appellate panel heard argument in Hopkins v. Bristol Myers Squibb over whether an employer-presented arbitration agreement was ever formed and, if formed, whether it was supported by consideration.
Thomas Peterson, attorney for the appellants, told the court the trial court "errored as a matter of law" when it concluded the bilateral arbitration agreement lacked consideration. Peterson said the agreement itself recites three independent bases for consideration: the agreement's bilateral, reciprocal structure; a promised bonus tied to continued employment; and the promise of continued employment itself. He cited precedent including Mackin and Romney, and argued that delegation provisions and incorporated JAMS rules support sending threshold arbitrability questions to an arbitrator.
Kathleen Bensburg, counsel for Tracy Hopkins, urged the opposite conclusion. "The trial court correctly denied the motion to compel arbitration because no agreement to arbitrate was ever formed," she said, arguing that procedural unconscionability is dispositive for Hopkins and that, in context, Hopkins did not meaningfully assent. Bensburg noted Hopkins sought answers to questions through the talent-acquisition representative, who functioned as a messenger and did not, according to the declaration, resolve her concerns. Bensburg told the court those unresolved factual questions justify a limited remand to develop the record rather than a ruling as a matter of law.
The judges pressed both sides on several factual and doctrinal points. One judge asked counsel to address procedural unconscionability; another queried whether Section 7 of the agreement—acknowledgments that the employee had a "reasonable period" to consider the six-page document and the opportunity to consult an attorney—undercut a claim of coercion given the 30-day effective period. Counsel debated whether employer payment of arbitration costs or the bilateral label constitutes sufficient consideration and whether the agreement was functionally illusory if the employer could unilaterally alter terms.
Peterson emphasized that the agreement contains delegation language and expressly incorporates JAMS rules, which, he said, point threshold arbitrability and validity questions to an arbitrator. Bensburg countered that, for Hopkins specifically, the presentation and follow-up were problematic and that a trier of fact should resolve whether Hopkins was pressured or whether she had a meaningful choice.
The court did not issue a decision from the bench; argument concluded and the court recessed. The panel's treatment of whether factual development is needed and whether the delegation clause governs arbitrability will shape whether the dispute returns to the trial court, goes to an arbitrator, or is decided on the existing record.
