Ferguson v. Countrywide

• Ms. Ferguson = plaintiff = "Ferguson" = employee
• Countrywide Credit Industries, Inc. = "Countrywide" = employer = Bank of America's mortgage unit as of 2024
• Countrywide hired Ferguson who signed a required arbitration agreement.

Ferguson sued Countrywide & her supervisor for sexual harassment, retaliation, & hostile-work environment.

Countrywide petitioned the court to compel arbitration.

The district court found the arbitration clause (which precluded jury, for example) to be un-conscionable. Thus, Countrywide lost.

May a contractual provision be both a

1. Procedural Unconscionability &
2. a Substantive Unconscionability

to be un-enforceable?

Justice Pregerson argued in the 9th Circuit's holding that Countrywide's arbitration clause was substantially 1-sided.

Yes. A contractual provision may be un-enforceable only if it's both

1. procedurally &
2. substantively unconscionable.

Holding was in favor of Ferguson.

Affirmed.

Usually, arbitration & bench trials tend to favor businesses.

Judge Pregerson: Procedural un-conscionability focuses on 2 factors:

1. oppression &
2. surprise.