Arbitration Provisions and Exotic Dancers
Are arbitration provisions binding against exotic dancers? Well, if you’re wondering, in this Connecticut case, Horrocks v. Keepers, Inc., CV156054684S (behind a paywall), the answer is yes.
The plaintiffs here filed the lawsuit alleging that they were employees, not independent contractors as the gentleman’s club maintained, and as such the club had violated plaintiffs’ legal rights as employees, including failing to pay minimum wage. The club moved to stay the proceedings arguing that it had signed an entertainment lease agreement with all of the dancers that required binding arbitration to resolve disputes.
The plaintiffs’ main argument was that the entire entertainment lease agreement was void because it had an illegal purpose in seeking to implement the club’s violation of labor laws as alleged in the plaintiffs’ complaint. Because the entire agreement was void, the argument went, the arbitration clause wasn’t enforceable. In the alternative, the plaintiffs argued that the arbitration provision was unconscionable.
On the plaintiffs’ first point, the court concluded that the legality of the overall entertainment lease agreement was a matter for the arbitrator to decide. According to Connecticut precedent, the courts’ job is only to determine if the arbitration clause is valid; every other issue is left to the arbitrator. Therefore, all of the arguments about the illegality of the entertainment lease agreement were left to the arbitrator, and the court focused its analysis on the alleged unconscionability of the arbitration provision.
We’ve seen this story before. And, in fact, courts have seemed pretty determined to find arbitration provisions enforceable, even when other parts of the contract were unconscionable (or, as here, where it was questionable whether the contract was enforceable at all). There was actually Connecticut precedent about another set of exotic dancers suing another gentlemen’s club with similar allegations, and in that case, D’Antuono v. Service Road Corp, 789 F. Supp. 2d 308 (D. Conn. 2011), the court upheld the arbitration provision against attacks of unconscionability. The court in this case follows the precedent, finding this case indistinguishable from D’Antuono.
The court here allows for the possibility that this arbitration clause was part of an unenforceable adhesion contract presented in bad faith with a knowing illegal purpose, but says that alone isn’t enough to deny enforcement of the arbitration clause, because that would only be procedural unconscionability. As far as substantive unconscionability went, the cost and fee shifting provisions provided in the arbitration clause weren’t unreasonable, and the class action waiver included in the arbitration provision was also not unconscionable according to precedent: “Requiring the plaintiffs to pursue their claims individually is not an ineffective vindication of their rights.”
I admit that I’d never really given a lot of thought to class action waivers, but it does seem odd to assert that class action waivers do not harm the plaintiffs’ ability to vindicate their rights. After all, class actions are frequently understood to exist to correct the problem that, sometimes, individual pursuit of claims isn’t effective.
At any right, individual pursuit through arbitration is what these plaintiffs are left with.