Opinion
Civil No. 04-6171-TC.
October 15, 2004
ORDER
Plaintiff is a former employee of defendant and has brought claims for sexual harassment, sex discrimination, retaliation and wrongful discharge.
Presently before the court is defendant's petition (#5) for abatement of action pending arbitration. For the reasons set forth below, such petition is allowed.
DISCUSSION
Plaintiff argues that she should not be bound to the terms of the arbitration agreement she signed because it is unenforceable and unconscionable.Plaintiff argues the arbitration costs and the party responsible for such costs are not set forth in the agreement, that these are essential terms, and that, as such, the agreement is rendered unenforceable under Oregon law. However, the failure of the costs and party responsible for the costs to be set forth in the agreement does not preclude the matter from going to arbitration.
Plaintiff cites a case that states that the essential terms for a contract in Oregon include: "(1) the parties; (2) the subject matter; (3) the mutual promises; and (4) the price and consideration and terms of payment." Hand v. Starr-Wood Cardiac Group of Corvallis, P.C., 2001 WL 215803, 7 (D. Or. 2001) (quoting U.S. Employees of Lane County Credit Union v. Royal, 44 Or. App. 275, 281 (1980)). Plaintiff focuses on the fourth term set forth in Hand, but the case quoted in Hand was a real property case that set forth the fourth term fully as "(4) the price and consideration and terms of payment if the sale is not for cash" and derived such term from a treatise on conveyances of real property. U.S. Employees, 44 Or. App. at 281. The contract at issue here does not involve the sale of and payment for real property. The contract at issue here involves an agreement to arbitrate employment disputes. As such, it is appropriate to inquire if the applicable essential term typically set forth in Oregon contract law is met. Such is generally stated simply as "consideration." See, e.g., Shaw Wholesale Co. v. Hackbarth, 102 Or. 80, 94 (1921); Feenaughty v. Beall, 91 Or. 654, 661 (1919). Plaintiff does not argue that the essential element of consideration is not present and silence on the issue of who pays what amount to an arbitrator does not render the arbitration agreement unenforceable. See Cole v. Burns Int'l Security Services, 105 F.3d 1465, 1482 (DC 1997) and Green Tree Financial Corp. v. Randolph, 121 S. Ct. 513 (2000).
Moreover, the agreement states: "Because of the mutual benefits (such as reduced expense and increased efficiency) which private binding arbitration can provide both the Company and myself, I voluntarily agree that. . . ." Exh. 1 to Memo (#6).
Although not a basis for this opinion, it is noted here that defendant concedes that it is responsible for the arbitrator's fee and "fully intends to pay the arbitrator's fee." p. 3 of Reply (#13).
Plaintiff also argues that the arbitration agreement has a confidentiality provision, and, as such, the agreement is unconscionable. However, there is not a confidentiality provision in the agreement. The provision at issue comes after a sentence discussing immunity for the arbitrator and states: "Likewise, all communications during or in connection with the arbitration proceedings are privileged." Exh 1 to Memo (#6). Such says nothing about confidentiality, but refers to communications in the course of or incident to the qausi-judicial proceeding of the arbitration. Such communications can have an absolute privilege attached to them under Oregon law for claims such as defamation. See Franson v. Radich, 84 Or. App. 715, 719 (1987); Hyles v. Mensing, 849 F.2d 1312, 1217 (9th Cir. 1988); Delong v. Yu Enterprises, Inc., 334 Or. 166, 171 (2002).
CONCLUSION
Defendant's petition (#5) for abatement of action pending arbitration is allowed. Defendant shall make a filing with this court every six months that indicates the status of the matter.