Higgins v. Superior Court, ---
Homeowners invited five orphaned siblings to live with them, then later expelled them after the home had been rebuilt to accommodate the siblings on Extreme Makeover: Home Edition. (This description of the episode "The Leomiti-Higgins family" describes the homeowners as "caring and generous," which must be an embarrassment for all concerned now.) The siblings sued the homeowners, the network, and the producers, alleging intentional and negligent misrepresentation, false advertising, and breach of contract. The network and producers tried to compel arbitration pursuant to a release agreement executed by the siblings (some of whom were minors) prior to the broadcast. The court found the arbitration clause unconscionable and thus unenforceable.
Though it would be easy to call this another in the line of California cases hostile to arbitration despite the FAA, these facts would probably support an unconscionability finding anywhere – the TV defendants presented the siblings, who’d recently lost their parents, with a dense agreement that hid the arbitration provisions in small print near the end under the heading “Miscellaneous.” The TV defendants then gave them only minutes to sign. Moreover, the reason they were interested in the siblings was their vulnerable situation, so the defendants had specific knowledge of factors likely to prevent real understanding or bargaining. The substantive provisions were extremely one-sided (in fact, the TV defendants didn’t bother to sign the agreement until after filing the motion to compel arbitration, showing how seriously they took it for themselves.)
43(b)log hook: the siblings alleged that the rebroadcast of the show, at a time when the siblings had already been kicked out of the new McMansion, was false advertising, or maybe put them in a false light; the opinion doesn't go into detail. Hard to believe the rebroadcast is commercial speech, even under Nike, but the court didn’t analyze the merits.
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