Cert grant – Arbitration – how small is too small

Caplin Enters., Inc. v. Arrington, decided in May 2013. Cert granted on Nov. 21, 2013. Plaintiffs sued Zippy Check, a delayed deposit check cashing business. At issue were two arbitration agreements. Some plaintiffs had signed the “first agreement” and others a “second.” The trial court found that the arbitration agreement in the first agreement “was intermingled with other non-distinguishable provisions and was typed in finer print than the terms on the front page” and was unenforceable. The second agreement “highlight[ed] the arbitration provision in capital letters and bolded text, and provided a more detailed statement about arbitration than the first agreement.” The cert. petition presents the issue as the trial court erred in finding the first agreement unenforceable where the type was “slightly smaller than the font of other parts of the contract. Other Courts have stated the font must be significantly smaller to make a determination that the smaller font size makes the provision procedurally unconscionable.”

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