# Supreme Court of Louisiana

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #057

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 19th day of October, 2016 , are as follows:

BY JOHNSON, C.J. :

2016 -C C -0 818 JAMES DUHON v. ACTIVELAF, LLC, D/B/A SKYZONE LAFAYETTE AND UNDERWRITERS AT LLOYDS, LONDON (Parish of E. Baton Rouge) Accordingly, we find the court of appeal erred in reversing the district court’s ruling on Sky Zone’s exception of prematurity. Therefore, the ruli n g of the court of ap peal is reversed, an d the ruling of the district court is reinstated. REVERSED AND REMANDED TO THE DIST RICT COURT FOR FURTHER PROCEEDINGS. WEIMER, J., dissents and assigns reasons. GUIDRY, J., dissents and assigns reasons. CLARK, J., concurs with reasons. HUGHES, J., concurs with reasons. CRICHTON, J., additionally concurs and assigns reasons.10/1 9/2016
SUPREME COURT OF LOUISIANA
No. 2016-CC-0818

JAMES DUHON
VERSUS ACTIVELAF, LLC, D/B/A SKYZONE LAFAYETTE AND UNDERWRITERS AT LLOYDS, LONDON ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE JOHNSON, CHIEF JUSTICE Patrons of Sky Zone Lafayette, an indoor trampoline park, are r equired to complete a “Participant Agreement, Release and Assumption of Ri sk” document (“Agreement”) prior to entering the facility. The Agreement con tains a clause waiving the participant’s right to trial and compelling arbitration. Pl aintiff, James Duhon, was a patron at Sky Zone and was inju red in the course of participa ting in the park’s activities. After Mr. Duhon filed suit seeking damages, Sky Zon e filed an exception of prematurity seeking to compel arbitration pursuant to the Ag reement. The district court overruled Sky Zone’s exception, but the court of appeal r eversed, finding the arbitration provision should be enforced. For the following reasons, we reverse the ruling of the court o f appeal, holding the arbitration clause in the Sky Zone agreement is adhesionary and therefore unenforceable.
FACTS AND PROCEDURAL HISTORY On April 19, 2015, James Duhon, accompanied by three minors, we nt to Sky Zone in Lafayette. Upon entering the facility, Mr. Duhon was di rected by Sky Zone staff to a computer screen to check himself and the minors into the facility. Check-in

1required all participants to comp lete a Participation Agreement which requested names and dates of birth for all partic ipants, required participants to check three boxes next to certain terms of the Agreement, and required participants to digitally sign the Agreement. The Agreement provided that in consideration for gaining access to Sky Zone Lafayette and engaging in the services, patrons agreed:
G I acknowledge that my participation in [Sky Zone] trampoline games or activities entails known and unanticipated risks that could result in physical or emotional injury including, but not limited to broken bones, sprained or torn ligaments, paralysis, death, or other bodily injury or property damage to myself my children, or to third parties. I understand that such risks sim ply cannot be eliminated without je opardizing the essential qualiti es of the activity. I expressly agree and promise to accept and as sume all of the risks existing in this activity. My and/or my childr en’s participation in this activity is purely voluntary and I elect to participate, or allow my children to participate in spite of th e risks. If I and/or my children are inju red, I acknowledge that I or my children may require medical assistance, which I acknowledge will be at my own expense or the expense of my personal insurer s. I hereby represent and affirm t hat I have adequate and appropri ate insurance to provide covera ge for such medical expense.
G In consideration for allowing me and the minor child(ren) identified herein to participat e in the [Sky Zone] activities a nd use the [Sky Zone] facility, I expressly and voluntarily agree to forever release, acquit, indemnif y and discharge [Sky Zone] and agree to hold [Sky Zone] harm less on behalf of myself, my spouse, my children, my parents, my guardians, and my heirs, assigns, personal representative and estate, and any and all ot her persons and entities who could in any way represent me, or the minor children identified herein or act on our respective halve s, from any and all actions or omissions, cause and causes of acti on, suits, debts, damages, judgments, costs, including, but not lim ited to attorney’s fees, and claims and demands whatsoever, in law o r in equity, for any personal injury, death, or property damages that I and/or the minor children’s use of [Sky Zone] activities, [Sk y Zone] premises or at offsite and camp activities related to [Sk y Zone]. This waiver is intended to be a complete release of any and all responsibility or duties owed by [Sky Zone] as indemnitees for personal injuries, death and/or property loss/damage sustained by myself or any minor children identified herein while on the [Sk y Zone] premises, or with respect to [Sky Zone] activities, wheth er using [Sky Zone] equipment or not, even if such injury or damag e results from [Sky Zone] negligence, [Sky Zone] employee

2negligence, improper supervision, improper maintenance of [Sky Zone] equipment or premises or negligence by other [Sky Zone] guests.
G I certify that I and/or my child(ren) are physically able to participate in all activities at the Location without aid or assistance. I further certify that I am willing to assume the r isk of any medical or physical condition that I and/or my child(ren) m ay have. I acknowledge that I have r ead the rules, (the “Sky Zone Rules”) governing my and/or my child(ren)’s participation in an y activities at the Location. I certify that I have explained the [Sky Zone] Rules to the child(ren) i dentified herein. I understand t hat the [Sky Zone] Rules have been implemented for the safety of al l guests at the Location. I agree that if any portion of this Agreement is found to be void and unenforceable, the remaining portions shall remain in full force and effect. If there are an y disputes regarding this agreement, I on behalf of myself and/or my child(ren) hereby waive any right I and/or my child(ren) may ha ve to a trial and agree that such dispute shall be brought within one year of the date of this Agreement and will be determined by binding arbitration before one a rbitrator to be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. I further agree that the arbitration will take plac e solely in the state of Louisiana and that the substantive law o f Louisiana shall apply. If, desp ite the representations made in this agreement, I or anyone on behalf of myself and/or my child(ren) file or otherwise initiate a lawsuit against [Sky Zone], in add ition to my agreement to defend and indemnify [Sky Zone], I agree to pay within 60 days liquidated damages in the amount of $5,000 t o [Sky Zone]. Should I fail to pay this liquidated damages amount within the 60 day time period provided by this Agreement, I further agree to pay interest on the $5,000 amount calculated a t 12% per annum. I further grant [Sky Zone] the right, without reservation or li mitation, to videotape, and/or record me and/or my children on closed circui t television. I further grant [Sky Zone] the right, without reservation or li mitation, to photograph, videotape, and/or reco rd me and/or my children and to use my or my children’s name, face, likeness, voice and appearance in connection with exhibitions, public ity, advertising and promoti onal materials. I would like to receive free email promotions and discounts to the email address provided below. I may unsubscribe from emails from Sky Zone at any time. By signing this document, I acknowledge that if anyone is hurt or property is damaged during my participation in this activity, I may be found by a court of law to have waived my right to maintain a l awsuit

3against [Sky Zone] on the basis of any claim from which I have released them herein. I have had sufficient opportunity to read this ent ire document. I understand this Agreement and I voluntarily agree t o be bound by its terms. I further certify that I am the parent or legal guardian of the children listed above on this Agreement or that I have been granted powe r of attorney to sign this Agreement on behalf of the parent or lega l guardian of the children listed above. Mr. Duhon electronically completed the Agreement on behalf of h imself and the minors by checking the three boxes provided in the agreement, f urnishing the relevant personal identifying informati on, and clicking on an “accept” b utton. Mr. Duhon and the minors then entered the facility. Mr. Duhon asserts he was injured at the facility due to Sky Zon e’s negligence. On August 12, 2015, Mr. Duhon filed suit against Activelaf, L.L .C., d/b/a Sky Zone Lafayette and its insurer (“Sky Zone”). In response, Sky Zone f iled several exceptions, including an exception of prematurity. Sky Zone alleged that th e Agreement contained a mandatory arbitration clause, thereby rendering Mr. Duhon’s s uit premature. Mr. Duhon asserted he did not knowi ngly consent to arbitration, and argued the Agreement was adhesionary and ambiguous. Following a hearing, the district court determined there was a lack of mutuality in the Agreement relative to the arbitration clause because onl y Mr. Duhon was bound to arbitrate claims. Thus, relying on this court’s decision in Aguillard Auction Management Corp., 04-2804 (La. 6/29/05), 908 So. 2d 1 and the Third Circuit’s opinion in Sutton Steel & Supply, Inc. v. Bellsouth Mobility, Inc ., 07-146 (La. App. 3 Cir. 12/12/07), 971 So. 2d 1257, the district court refused t o enforce the arbitration agreement and overruled Sky Zone ’s exception of prematurity. The court of appeal granted Sky Zone’s writ and reversed the di strict court’s ruling: There is a strong presumption favoring the enforceability of ar bitration

4clauses. The weight of this presumption is heavy and arbitratio n should not be denied unless it can be said with positive assurance tha t an arbitration clause is not susceptible of an interpretation that could cover the dispute at issue. Aguillard v. Auction Management Corp ., 2004-2804 (La. 6/29/05), 908 So. 2d 1. We find that plaintiff failed to e stablish that this arbitration provision is adhesionary, and accordingly, the arbitration provision should be enforced. Judge Theriot dissented without reasons, stating he would deny the writ application. Duhon v. ActiveLaf, LLC , 16-0167 (La. App. 1 Cir. 4/5/16) (unpublished). On Mr. Duhon’s application, we granted certiorari to review the correctness of the court of appeal’s ruling. Duhon v. ActiveLaf, LLC , 16-0818 (La. 6/17/16), 192 So. 3d 762.
DISCUSSION This case involves the legal questions of whether the court of appeal erred in its “contract of adhesion” analy sis of the arbitration clause i n the Agreement, and whether the arbitration clause is unenforceable on general cont ract principles of consent or adhesion. Thus, we review the matter de novo

. See Aguillard , 908 So. 2d at 3; Prasad v. Bullard , 10-291 (La. App. 5 Cir. 10/12/10), 51 So. 3d 35, 39; Horseshoe Entertainment v. Lepinski , 40,753 (La. App. 2 Cir. 3/8/06), 923 So. 2d 929, 934, writ denied , 06–792 (La. 6/2/06), 929 So. 2d 1259. Louisiana and federal law explicitly favor the enforcement of a rbitration clauses in written contracts. Aguillard , 908 So. 2d at 7. Louisiana Binding Arbitration Law (“LBAL”) is set forth in La. R.S. 9:4201 et seq . and expresses a strong legislative policy favoring arbitrati on. La. R.S. 9:4201 provides: A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal t o perform the whole or any part thereof, or an agreement in writing between t wo or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, ir revocable, and enforceable, save upon such grounds as exist at law or in e quity for the revocation of any contract. As this court recognized in Aguillard , “[s]uch favorable treatment echos the Federal

5Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq .” 908 So. 2d at 7. We noted the LBAL is virtually identical to the F AA, and determinations regarding the viability and scope of arbitration clauses are the same under either law, thus fede ral jurisprudence interpreting the FAA may be cons idered in construing the LBAL. Id . at 18. Further, to the extent that federal and state law differ, the FAA preemp ts state law as to any written arbitration agreement in a contract involving interstat e commerce. Hodges v.
Reasonover , 12-0043 (La. 7/2/12), 103 So. 3d 1069, 1072; FIA Card Services, N.A.
v. Weaver , 10-1372 (La. 3/15/11), 62 So. 3d 709, 712; Collins v. Prudential Ins. Co. of America , 99-1423 (La. 1/19/00), 752 So. 2d 825, 827. The FAA makes arbitration agreem ents “valid, irrevocable, and e nforceable, save upon such grounds as exist at law or in equity for the revocation of any contact .” 9 U.S.C. §2 (emphasis added). Th e United States Supreme Court h as explained that this provision reflects both a “liberal federal policy favoring arbitration,” and the “fundamental principle that arb itration is a matter of contract .” AT&T Mobility LLC v. Concepcion , 563 U.S. 333, 339, 131 S. Ct. 1740, 1745, 179 L.Ed. 2d 742 (2011) (citing Moses H. Cone Memorial Hospital v. Mercury Constr. Corp ., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed. 2d 765 (1983) and Rent–A–Center, West, Inc. v. Jackson , 561 U.S. 63, 67, 130 S.Ct. 2772, 2776, 177 L.Ed. 2d 403 (2010)). The Supreme Court has instructed that in line with the se principles, courts must place arbitration agreements on an equal footing with othe r contracts. Concepcion , 563 U.S. at 339 (citing Buckeye Check Cashing, Inc. v. Cardegna , 546 U.S. 440, 443, 126 S.Ct. 1204, 163 L.Ed. 2d 1038 (2006)). Despi te this policy favoring enforcement of arbitrati on agreements, the Supreme Cou rt has also recognized that, under the savings clause in §2, general state contract principles still apply to assess whether those ag reements to arbitrate are valid and enforceable, just as they would to any other contract dispute arising under state law. Doctor’s

6Associates, Inc. v. Casarotto , 517 U.S. 681, 686–87, 116 S.Ct. 1652, 1656, 134 L. Ed. 2d 902 (1996). Accordingly, ordinary state-law principles that govern the formation of contracts are applied when deciding whether the parties agre ed to arbitration. First Options of Chicago, Inc. v. Kaplan , 514 U.S. 938, 944, 115 S.Ct. 1920, 1924, 131 L.Ed. 2d 985 (1995). Importantly, the savings clause in § 2 doe s not permit courts to invalidate an arbitration agreem ent under a state law applicabl e only to arbitration provisions. Concepcion , 563 U.S. at 339; Aguillard , 908 So. 2d at 8. With these principles in mind, we consider whether the arbitrat ion clause in the Sky Zone Agreement should be invalided under Louisiana law. As an initial matter, we note the electronic nature of the Agreement in this case is of no legal consequence and does not fundamentally change t he principles of contract. L ouisiana law gives legal effect to both electroni c contracts and signatures. See La. R.S. 9:2607. We interpret and analyze the terms of the Agreement using the same rules that we would apply to oral and written contracts. Aguillard is the seminal case from this court addressing the validity of an arbitration agreement in a s tandard form contract. In Aguillard , the winning bidder at a real estate auction brought suit to enforce the auction sales agreement. This court, pursuant to its authority under La. R.S. 9:4201 and 9 U.S.C. § 2, applied a “contract of adhesion” analysis to determine the enforceability and valid ity of an arbitration agreement in the auction contract. In discussing the “contract of adhesion” doctrine, we explained: “Broadly defined, a contract of adhesion is a sta ndard contract, usually in printed form, prepared by a party of superior bargaining pow er for adherence or rejection of the weaker party. Often in small print, these cont racts sometimes raise a question as to whether or not the weaker party actually consent ed to the terms.” 908 So. 2d at 10. This court furthe r stated that “although a contra ct of adhesion is a contract executed in a standard form in the vast majority of in stances, not every

7contract in standard form may be regarded as a contract of adhe sion. Therefore, we are not willing to declare all standard form contracts adhesion ary; rather, we find standard form serves merely as a possible indicator of adhesion .” Id . (Internal citations removed). We made clear that the “real issue in a contract of a dhesion analysis is not the standard form of the contract, but rather whether a party t ruly consented to all the printed terms. Thus, the issue is one of consent.” Id . (Internal citations removed). The court explained: Consent is called into question by the standard form, small pri nt, and most especially the disadvantageous position of the accepting p arty, which is further emphasized by the potentially unequal bargaini ng positions of the parties. An unequal bargaining position is evi dent when the contract unduly burdens one party in comparison to the burd ens imposed upon the drafting party and the advantages allowed to t hat party. Once consent is called into question, the party seeking to invalidate the contract as adhesionary must then demonstrate th e non-drafting party either did not consent to the terms in dispu te or his consent was vitiated by error, wh ich in turn, renders the contr act or provision unenforceable. In summation, a contract is one of adhesion when either its for m, print, or unequal terms call into question the consent of the non-draf ting party and it is demonstrated that the contract is unenforceable, due to lack of consent or error, which vitiates consent. Accordingly, even if a contract is standard in form and printed in small font, if it does not c all into question the non-drafting party’s consent and if it is not demo nstrated that the non-drafting party did not consent or his consent is v itiated by error, the contract is not a contract of adhesion.
Id . at 10-11. Thus, the question we consider is whether Mr. Duhon truly consented to the arbitration provision in the Agreement. In concluding the arbitration provision in Aguillard was not adhesionary, we noted (1) the arbitration provision was contained in a short, t wo-page document and was contained in a single senten ce paragraph; (2) the arbitrati on provision was not concealed; (3) the contract did not lack mutuality because defe ndants did not reserve their right to litigate issues arising from the contract; and ( 4) the parties did not have a significant difference in bargaining power because a real est ate auction is not a

8necessary transaction that plaintiff was compelled to enter. Id . Thus, while not declaring a definitive test, this court effectively established a framework for examining the validity of an arbitration clause within a standa rd form contract by generally describing the charact eristics of an unenforceable ad hesionary agreement. Finding our analysis in Aguillard instructive, we consider the following factors to determine the enforceability of th e arbitration clause in the S ky Zone Agreement: (1) the physical characteristics of the arbitration clause, (2) the distinguishing features of the arbitration clause, (3) the mutuality of the arbitration cl ause, and (4) the relative bargaining strength of the parties. After our review of the Agr eement in light of the above factors, we hold the arbitration clause is adhesionary an d not enforceable because of its placement in the Ag reement and its lack of mutua lity. Examining the physical characteristics of the arbitration claus e, we observe the arbitration language is consiste nt in size and font with the ot her provisions in the Agreement. However, the lack of distinguishing features and the specific placement of the arbitration clause serve to conceal the arbitration lang uage from Sky Zone patrons. The Agreement is structured with check boxes next to t he first three paragraphs, followed by five add itional paragraphs without corr esponding check boxes. The first check box is placed next to a single, six-sent ence paragraph generally discussing participants’ risks of injuries and assumption of th ose risks. The second check box is placed next to a single paragraph containing two l ong sentences purporting to release Sky Zone from any liability. The third ch eck box is placed next to one long paragraph discussing multiple topics. Specifically, the arbitration language is located starting in the eleventh line of this third paragrap h, following provisions regarding patrons’ physical ability to participate in the activ ities, assumption of the risks, certification that Sky Zone’s rules have been explained to any children, and expressing agreement to follow those rules.

9In Aguillard , we noted “the arbitration provision, although not distinguish ed, was not concealed in any way, but rather was contained in a sin gle sentence paragraph separated from the preceding a nd following paragraphs by double spacing.” 908 So. 2d at 16. Sky Zone argues the paragraph containing the arbitrat ion clause was sufficiently distinguished and brought to patrons’ attention th rough the use of the check box feature. We disagree. Although patrons are required t o check a box adjacent to the top of the third paragraph, significantly no check box w as placed next to the arbitration language. In contrast , the other two check boxes in the Agreement were placed next to paragraphs limited to one subject matter. The Ag reement also contains five additional paragraphs follo wing the third paragraph that d o not include corresponding check boxes. Each of these are short one-topic pa ragraphs addressing such items as Sky Zone’s right to videotape and record patrons and to use recordings for promotional materials. Thus, looking at the Agreement as a whole, the arbitration language appears to be the only specific provision not relegate d to a separate paragraph or set apart in some explicit way. Here, the two-sent ence provision mandating arbitration is camouflaged within the confines of an eleven sentence paragraph, nine of which do not discuss arbitration. The effect of the placement of the arbitration language is to cloak it within a blanket of boilerp late language regarding rules and risks of participati ng in the Sky Zone activities. Th us, although it is undisputed that Mr. Duhon electronically signed the Agreement, purportedly demonstrating an acceptance of its terms, under Louisiana contr act law, we find Mr. Duhon did not truly consent to the arbitration provision. Additionally, the lack of mutuality in the arbitration clause f ortifies our finding that it is adhesionary. The arbitration provision requires only Sky Zone patrons to submit their claims to arbitration. The entire contract, includ ing the arbitration clause, repeatedly includes “I acknowle dge” and “I agree” language, wit h the “I” referencing

10the “applicant” – here, Mr. Duhon. Specifically, the Agreement provides if there are any disputes regarding this agreem ent “I ... hereby waive any rig ht ... to a trial and agree that such dispute shall be ... determined by binding arbitr ation ....” Although Sky Zone does not expressly reserve itself the right to pursue litigation, nowhere in the Agreement are “the parties” or Sky Zone particularly bound to arbitration. This is in stark contrast to the arbitration clause in Aguillard which clearly applied to both parties by providing: “Any contr oversy or claim arising from or relating to this agreement or any breach of such a greement shall be settled by a rbitration administered by the American Arbitration Association under is [sic] rules, a nd judgment on the award rendered by the arbitrator may be entered in any court ha ving jurisdiction thereof.” 908 So. 2d at 4. Thus, in Aguillard , we found the arbitration clause did not lack sufficient mutuality to invalidate the clause as adhesiona ry because the arbitration clause severely limited both the defendants’ and the plaintiff’ s right to litigate, and the defendants did not reserve their right to litigate in the docum ent. Id . at 16. Even more troublesome in this case is the punitive provision compelling p atrons to pay Sky Zone liquidated damages of $5,000 within sixty days should the patro n file suit, with legal interest added at 12% per year. Sky Zone has no mutual obligati on in the Agreement.

The party seeking to enforce an arbitration provision has the b urden of showing the existence of a valid contract to arbitrate. FIA Card Services , 62 So. 3d at 719. Sky Zone has failed to meet this burden. Considering the lack of mu tuality together with the obscure placement of the arbitration language in the Agreem ent, and in comparison to the contract in Aguillard , we are compelled to find the arbitration clause in the Sky Zone Agreem ent is adhesionary and unenforceab le. In finding this arbitration clause invalid, we have carefully c onsidered the Supreme Court’s admonition that, under the doctrine of preempti on, state courts

11cannot adopt defenses that apply only to arbitration or that de rive their meaning from the fact that an agreement to arbitrate is at issue. See , e.g ., Concepcion , 563 U.S. at 339; Casarotto , 517 U.S. at 687. Nor can we apply state law rules that stand as an obstacle to the accomplishment of the FAA’s objectives. Concepcion , 563 U.S. at 343. We are mindful that setting fort h a legal requirement relative to a particular form or method of distinguishing or highlighting arbitration clauses, o r requiring term-forterm mutuality in an arbitration clause could risk running afou l of the FAA. However, the Supreme Court has made it clear that state courts may apply standard state law contract defenses to a rbitration agreements. Id . at 339. Our appli cation of Louisiana contract law to invalidate the arbitration provision in the ins tant case is consistent with § 2 of the FAA, and we find no conflict between our holding tod ay and Supreme Court decisions discussing preemption. As explained earlier, consideration of enforceability of contra cts of adhesion is an issue of consent, and determining whether a party truly c onsented to the contract terms. Consideration of consent is not limited to arbitration c lauses; we consider the issue of consent in any contract. Lack of consent is a generall y applicable contract defense. See La. C.C. art. 1927. The factors discussed in Aguillard simply provided a template for considering consent to an arbitration clause con tained in a standard

contract. Aguillard did not create a per se rule that any degree of non-mutuality in an arbitration agreement renders it unenforceable, nor did Aguillard prescribe a definitive rule that arbitration agreements must be delineated a particula r way to be enforceable. Considering the Aguillard analysis in its entirety, it is clear we viewed the arbitration provision in the context of the overall contract and the surrou nding circumstances, and our determination was based on we ighing several factors. Were w e not to consider factors relative to consent when examining the validity of an a rbitration agreement, we would be operating in contrave ntion to the mandate of the Su preme Court by

12treating arbitration agreements differently from other contract s. Thus, we find our application of Louisiana contract law to invalidate the arbitra tion provision in this case is consistent with the savings c lauses in § 2 of the FAA and La . R.S. 9:4201.
CONCLUSION The determination of whether an arbitration clause in a standar d form contract is adhesionary is necessarily made on a case by case basis. Bas ed on the facts of this case, the concealment of the arb itration clause and the lack of mutuality compels us to find the arbitration clause in the Sky Zone Agreement is adh esionary and unenforceable. Accordingly, we find the court of appeal erred i n reversing the district court’s ruling on Sky Zone’s exception of prematurity. 1 Therefore, the ruling of the court of appeal is reversed, and the ruling of the district cou rt is reinstated.
DECREE
REVERSED AND REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS.

1 Because we hold the arbitration clause is adhesionary and unen forceable based on consideration of the factors set forth in Aguillard , we pretermit discussion of Mr. Duhon’s additional arguments relative to ambiguity o f the Agreement or whether the scope of the arbitration clause covers personal injury. 13

### 10/19/16
SUPREMECOURT OF LOUISIANA

NO. 2016-CC-0818 JAMES DUHON VERSUS ACTIVELAF, LLC, D/B/A SKYZONE LAFAYETTE AND UNDERWRITERS AT LLOYDS, LONDON

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT,

PARISH OF EAST BATON ROUGE
WEIMER, J. , dissenting. I agree with the majority’s assessment that the factors outlined in Aguillard v. Auction Management Corp. , 04-2804 (La. 6/29/05), 908 So.2d 1, are an appropriate starting point for analyzing the issue presented in this matter. 1 See Duhon v. ActiveLaf, LLC , 16-0818, slip op. at 7 (La. 10/__/16). However, I respectfully disagree with the majority’s conclusion that analysis of the Sky Zone Agreement using Aguillard ’s four-factor “framework” supports a finding that the arbitration clause is adhesionary and not enforceable. To the contrary, I find the arbitration
clause to be valid and enforceable. I also find that analysis of the clause using Aguillard ’s factors, viewed in light of the strong and, as Aguillard describes it, “heavy” presumption in favor of arbitration, dictates that finding of enforceability. Aguillard , 04-2804 at 25, 908 So.2d at 18.
As the majority recognizes, a contract of adhesion is broadly defined as “a standard contract, usually in printed form, [often in small print,] prepared by a party While I dissented in Aguillard , I did so solely on grounds that there was a threshold legal question 1 that I believed needed to be resolved before reaching the issue of the enforceability of the arbitration clause: whether the arbitration clause at issue even applied in light of the fact that the Auction Agreement for the Purchase and Sale of Real Estate had been completed. Aguillard , 04-2804 at 1, 980 So.2d at 20-21 (Weimer, J., dissenting.).of su

pe ri or ba rg ai ni ng po wer fo r ad he ren ce or reject io n of th e weak er p a r t y .”
Duho n , 16 -0 81 8, sl ip op
. at 7- 8 (q uo ti ng Agu il la rd , 04 -2 80 4 at 9, 90 8 So .2d at 8- 9.) (Em ph as is ad de d.) Pu rs ua nt to th is de fin it io n, a pr ed ic at e fact or to co ns id er in
de te rm in in g whe th er a co nt ract is ad he si on ary is th e ex is te nc e of un eq ua l ba rg ai ni ng
p o wer. In de ed , th is is on e of th e fo ur fact or s de li ne at ed in th e Agu il la rd an al ys i s
. Yet, th e m ajor it y op in io n do es no t m en ti on , m uc h le ss weig h, th is f

a ct or in

co nd uc ti ng it s an al y si s– th is , de sp it e th e fact th at th ere m us t be un eq ua l b a r g ai ni ng
po wer fo r th e co nt ract to m eet th e de fin it io na l hu rd le of a co nt ract of ad he si on in th e fir st in st an ce. In th is cas e, it is cl ear th at , a s in Agu i l l a r d , t he re was no t “ su ch a di ffer en ce in ba rg ai ni ng po si ti on s be twee n th e pa rti es so as to ju st ify th e ap pl ic at io n of th e
pr in ci pl e of co nt ract of ad he si on to th e arb it rat io n cl au se .” Agu il la rd , 04 -2 80 4 at 22 , 90 8 So .2d at 16 -1 7. As Agu i l l a r d e x pl ai ne d in de fin in g a co nt ract of ad he si on ,

“ [o ]w in g to th e ne c e s s i t i e s o f m od ern li fe a pa rti cu la r ki nd of co nt ract ha s be en de ve lo pe d whe re on e o f th e pa rti es is no t free to ba rg ai n.” Id . , 04 -2 80 4 at 10 , 90 8
So .2d a t 9 (q uo ti ng Sau l Lit vi no ff, Co ns en t Revi si te d: Off er , Accep ta nc e, Opt io n, Rig ht of Fir

st Refu sa l, an d Co nt ra ct

s of Adh e s i o n in th e Revi si on of th e Lo ui si an a La w of Obl ig at i o n s , 74 La.L.Rev

. 69 9, 75 7- 59 (1 98 6- 19 87 )). Su ch a la ck of
ba rg ai ni ng po wer ex is ts whe re “ [t]he pa rty in th e weak er po si ti on is le ft wi th no ot he r ch oi ce th an to ad he re to th e te rm s pr op os ed by th e ot he r.” Id . (Em ph as is ad de d.) Ty pi cal ex am

pl es of su ch co nt ract s in cl ud e th os e en te red in to wit h “ ai rli ne s, pu bl ic

ut il it ie s, ra il ro ad or i ns ur an ce co m pa ni es .” Id . In Agu il la rd , th is co ur t reco gn iz ed th at th e rel at iv e ba rg ai ni ng po si ti on s of th e real es ta te au ct io ne er an d th e in di vi du al au ct io n pa rti ci pa nt in vo lv ed in th at cas e were

no t so un eq ua l as to jus ti fy in va li da ti ng th e arb it rat io n cl au se on gr ou nd s of ad he si on , 2reas on in g th at , al th ou gh th e pa rti ci pa nt was req ui red to si gn the agreem en t co nt ai ni ng

th e arb it rat io n cl au se in or de r to pa rti ci pa te in th e au ct io n, “ th e un de rlyin g
tra ns act io n, th e real es ta te au ct io n, [was ] no t

... su ch a ne ces sa ry tra ns act io n” th at th e
pa rti ci pa nt “ was co m

pe ll ed to en te r it .” Id . , 0 4- 28 04 at 22 -2 3, 90 8 So .2d at 16 -1 7.
In de ed , th e pa rti ci pa nt co ul d ha ve av oi de d arb it rat io n by no t si gn in g th e ag reem en t,

no t pa rti ci pa ti ng in th e au ct io n, an d si m pl y walk in g away. See id . 04 -2 80 4 at 22 , 90 8
So .2d at 17

. Und er su ch ci rcu m st an ces , th e co ur t fo un d “ no th in g su f f i c i e n t t o

es ta bl is h th e [au ct io ne ers ] were in su ch a su pe rio r ba rg ai ni ng po si ti on as to ren de r th e [au ct io n pa rti ci pa nt ] a far weak er pa rty or th e co nt ract ad he si on ary. ” Id . 04 -2 80 4 at
23 , 90 8 S o.2 d a t 1 7.
The rat io na le of th e c o u r t i n Agu il la rd ap pl ie s wit h eq ua l fo rce to th e Sk y Zon e Agr eem en t at is su e in th is cas e. Here, th e Agr eem en t co nc ern s no t a “ ne ces si ty of m od ern li fe,” bu t a pu rel y vo lu nt ary recr eat io na l act iv it y . The pl ai nt iff w a s n o t

co m pe ll ed –p hysic al ly, eco no m ic al ly or ot he rwis e– to vi si t th e tra m po li ne pa rk , jum

p

on it s tra m

po li ne s, or si gn th e Agr eem en t co nt ai ni ng th e arb it rat io n cl au se
. Ju m pi ng

on a tra m

po li ne is si m

pl y no t a pr act ic al ne ces si ty of m od ern li v i n g li ke wate r, el ect ric it y , or ev en ai rli ne fli gh t. Lik e th e au ct io n pa r t i c i p a n t in Agu il la rd , th e pl ai nt iff , her e, ret ai ne d t he ul ti m at e b arg ai ni ng ch ip in th is si tu at io n: he co ul d h av e refu se d to si gn Sk y Zon e’s Agr eem en t, walk ed away, an d pu rs ue d an al te rn at iv e fo rm of recr eat io na l act iv it y . Giv en th es e ci r cu m st an ces , th ere is si m pl y no ev id en ce to

es ta bl is h th at Sk y Zon e was in su ch a su pe rio r ba rg ai ni ng po si ti o n a s t o ren de r th e pl ai nt iff a far wea ke r pa rty or t he co nt ract ad he si on ary. Fu rth er, an d al so co nt rary to th e m ajor it y , I f i n d n o t hi ng in th e Sk y Zon e Agr eem en t, it se lf, th at wou ld cal l in to qu es ti on th e va li di ty of th e pl ai nt iff ’s co ns en t
to th e te rm s of th e Agr eem en t. Thi s d e t e r mi n a t io n is ba se d on m y an al y si s of th e

3th ree fact or s th at are ad dr es se d in th e m ajor it y ’s Agu il la rd an al y si s– (1 ) th e ph y si cal

ch arac te ris ti cs of th e arb it rat io n cl au se ; (2 ) th e di st in gu is hi ng feat ur es of th at cl au se ;

an d (3 ) th e m

ut ua li ty of th e cl au se –a nd m y di ffer in g c on cl us io ns as t o e ach

. In ad dr es s in g th e fir st Agu il la rd fact or –t he ph y si cal ch arac te ris ti cs of th e arb it rat io n cl au se –t he m ajor it y ack no wled ge s th at “ th e arb it rat io n l a n g ua ge is

co ns is te nt in si ze an d fo nt wit h th e ot he r pr ov is io ns in Agr eem en t.” Duho n , sl ip op
. at 9. In fact , t h e c l a u s e i s no t in sm al l pr in t or ot he rwis e un read ab le , bu t is jus t as le gi bl e as ev ery ot he r wor d i n th e Agr eem en t. The m ajor it y ap pa ren tl y co nc ed es , th eref or e, an d I ag ree, th at th e ph y si cal ch arac te ris ti cs of th e arb it rat io n cl au se weig h
in fav or of f

in di ng th e cl au se en fo rcea bl e. In ad dr es si ng th e se co nd of th e Agu il la rd fact or s– th e di st in gu is hi ng feat ur es of th e cl au se –t he m ajor it y , in m y vi ew, fal ls in to erro r. It do wnp la y s th e ve ry feat ur e th at di st in gu is he s th e arb it rat io n c la us e an d c al ls it s at te nt io n t o t he pa rti ci pa nt : t he
bo x l oc at ed ne xt to th e p arag rap h in whi ch th e cl au se ap pe ars , a bo x wh ic h mus t b e af fi rma ti vel

y ch ecke d be

fo re th e Agr eemen t ca n be co mpl et ed

. The m ajor it y ch oo se s, in st ead , to fo cu s so le ly on th e fact th at th e arb it rat io n la ng ua ge i s no t se t ou t in a
st an d- al on e pa rag rap h to reac h th e co nc lu si on th at it is “ cam ou fla ge d” an d “ cl oa k[ ed ]

... wit hi n a bl an ke t of bo il erp la te la ng ua ge ” to su ch an ex te nt th at pl ai nt iff co ul d no t ha ve no t co ns en te d to it s te rm s, de sp it e affi rm at iv el y in di cat in g by ch eck in g th e el ect ro ni c bo x t ha t he did jus t th at

. See Duho n , 16 -0 81 8, sli p op
. at 10

. W hi le it is

tru e th at th e arb it rat io n c la us e ap pe ars in a pa rag rap h no t lim it ed to th e si ng le to pi c of a rb it rat io n, m or e th an on e-h al f of th at pa rag rap h co nc ern s th e ag reed -u po n arb it rat io n, it s pr oc ed ur e, it s lo cal e, go ve rn in g la w, an d th e co ns eq ue nc es fo r refu si ng

or ot he rwis e br each in g th e ag reem en t to arb it rat e. The arb it rat io n la ng ua ge is ha rd ly 2

See Duhon , 16-0818, slip op’n at 3. 2
4c a mou fla ge d. Fu rth er, th e m ajor it y ’s su gg es ti on , th at fai lu re to se t th e arb it r a t i o n

la ng ua ge ou t in a stand -al on e pa rag rap h fai ls to su ffi ci en tl y di st in gu is h th e arb it rat io n cl au se , ig no res th e ch eck bo x. See Duho n , 16 -0 81 8, sl ip op
. at 10

. The pr es en ce of
th at bo x is ak in to , an d ha s th e sa m e le ga l fo rce and effe ct as , req ui rin g th e pl ai nt iff

to in it ia l ne xt to th e pa rag rap h, a req ui rem en t th at affi rm at iv el y al ert s th e pa rti ci pa nt
to th e co nt en ts an d si gn ifi can ce o f th e p arag rap h. Lik e th e arb it rat io n pro vi si on in 3 Agu il la rd , an d co nt rary to t h e majo rit y , I fin d th e arb it rat io n la ng ua ge in th e Sk y Zon e Agr eem en t was no t co nc eal e d i n a n y w ay an d th at th e us e of th e el ect ro ni c ch eck bo xe s re as on ab ly dis ti ng ui sh ed th e cl au se
. Fi na ll y , a s t o t h e t hi rd Agu il la rd fact or , th e m ut ua li ty of th e ob li ga ti on to arb it rat e, th e m ajor it y ack no wled ge s th at “ Agu il la rd di d no t crea te a pe r se ru le th at

an y de gr ee of non -m

ut ua li ty in an arb it rat io n a gr eem en t rend ers it un en fo rcea bl e,” 4

an d th at “ req ui rin g te rm -fo r-t erm m ut ua li ty in an arb it rat io n cl au se co ul d ris k ru nn in g afo ul of th e [Fed eral Arb it rat io n Act],” bu t th en in ex pl ic ab l y i n v a l id at es th e 5
arb it rat io n cl au se in th e Sk y Zon e Agr eem en t pr eci se ly be cau se it la ck s th e te rm -fo rte rm m ut ua li ty th at it ack no wled ge s th e la w do es no t req ui re, an d m ay ev en pr oh ib it

. 6
In tru th , th e on ly di ffer en ce be twee n th e arb it rat io n cl au se in Agu il la rd an d th e on e in th e S k y Zon e Agr eem en t is th e us e of th e “ I” in th e Sk y Zon e Agr eem en t.
Howev er, th e m ere us e of th e wor d “ I ” d o e s n o t ren de r th e cl au se no n- m ut ua l,

Modern technolog y has introduced what is ref err ed to as a “clickw rap” ag ree ment as a mecha nism 3 for having a “user manifest his or her assent to the terms of the

... ag ree ment by clicking on an icon.” See Registe r.com , Inc. v. Ver io, Inc. , 356 F.3d 393, 429 ( 2 Cir. 2004). n d
See Duhon , 16-0818, slip op. at 13. 4
See Duhon , 16-0818, slip op. at 12. 5
See Duhon , 16–0818, slip op. at 11-13. 6
5pa rti cu la rly in li gh t of th e fact , a c kn owl ed ge d by th e m ajor it y , th at th e Agr eem en t

do es no t re se rv e to Sk y

Zon e th e ri gh t t o p ur su e li ti ga ti on
. 7
Co ns eq ue nt ly, un li ke th e m ajor it y , I fin d a n a na lysis of a ll fou r of th e fact or s

ou tl in ed in Agu il la rd le ad s to th e c on cl us io n th at th e Sk y Zon e Agr eem en t is no t ad he si on ary an d is va li d an d en fo rcea bl e. Thi s co nc lu si on is st ren gt he ne d, no t on ly by th e st ro ng le gi sl at iv e po li cy th at fav or s arb it rat io n, bu t al so by th e lo ng -s ta nd in g 8

pr in ci pl e th at si gn at ur es to do cu m en ts are no t m ere or na m en ts

. As Agu il la rd no te s: 9

“ It is well [-]set tl ed th at a pa rty who si gn s a writ te n in st ru m en t is pr es um ed to kn ow it s co nt en ts an d can no t av oi d it s ob li ga ti on s by co nt en di ng th at he di d no t read it , th at he di d n ot un de rs ta nd it , o r th at th e ot he r pa rty fail ed to ex pl ai n i t t o h im .” Id . , 04

- 28 04 at 22 , 90 8 So .2d at 17

. In th i s c a s e , a s i n Agu il la rd , th e pl ai nt iff si gn ed th e Agr eem en t ack no wled gi ng th at he “ ha d su ffi ci en t op po rtu ni ty to rea d t h i s en ti re do cu m en t ... u nd ers ta nd t hi s Agr eem en t an d ... v ol un ta ril y ag ree to be bo un d by i ts

te rm s.” As in Agu il la rd , th ere w a s n o e v id en ce th at th e pl ai nt iff was no t in an

1 0

eq ua l ba rg ai ni ng po si ti on wit h Sk y Zo ne be cau se th e pl ai nt iff co ul d ha ve av oi de d
arb it rat io n a nd th e co nt ract ua l pr ov is io ns as a who le by s im pl y no t si gn in g th e Sk y Zon e Agr eem en t an d p u r s u in g an al te rn at iv e recr eat io na l act iv it y . Als o as in Agu il la rd , th ere is no th in g in th e Sk y Zon e Agr eem en t it se lf– it s ph y s i cal or di st in gu is hi ng ch a r a c t e ris ti cs –t ha t wou ld cal l in to qu es ti on th e va li di ty of th e pl ai nt iff ’s co ns en t to th e te rm s of th e Sk y Zon e Agr eem en t as in di c a te d by hi s si gn at ur e. I wou ld affi rm th e d eci si on of t he co ur t o f ap pe al

.

See Duhon , 16-0818, slip op. at 11. 7
See Duhon , 16-0818, slip op. at 5 (citing L a. R.S. 9:4201, et seq .). 8
See Tw eedel v. Brasseaux , 433 So. 2d 133, 137 (L a. 1983) (quoting Boul lt v. Sarpy , 30 L a.Ann. 9 494, 495 (L a. 1878))

. See Duhon , 16-0818, slip op. at 4. 1 0
610/1 9/2016
SUPREME COURT OF LOUISIANA
NO. 2016-CC-0818

JAMES DUHON
VERSUS ACTIVELAF, LLC, D/B/A SKYZONE LAFAYETTE AND UNDERWRITERS AT LLOYDS, LONDON
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE

GUIDRY, J. , dissents and assigns reasons. I respectfully dissent from the majority’s reversal of the ruli ng of the court of appeal. In my view, the arbitra tion clause in the Sky Zone Agr eement is not part of a contract of adhesion which would render it unenforceable. As the majority correctly states, a contract of adhesion is a “ standard contract, usually in printed form, prepared by a party of superior bargai ning power for adherence or rejection of the weaker party.” Aguillard v. Auct ion Management Corp. , 2004-2804, 2004-2857, p.9 (La. 6/29/05), 908 So.2d 1, 8-9. It is undisputed that the real issue in a contract of adhesion analysis is consent, wheth er the non-drafting party, considered to be the weaker party, truly consented to all the p rinted terms. Id . In addressing the issue of consent, a court must look to the form, print, or unequal terms of the contract by considering the factors set forth in Aguilla rd , namely, the physical characteristics and distinguishing features of the arbitration clause, the relative bargaining position of the parties, and the mutuality or lack t hereof in the arbitration clause. Id. , 2004-2804, 2004-2857, p. 9, 908 So.2d at 17. As an initial matter, I disagree with the majority’s finding that the arbitration clause was hidden and camouflaged within the Sky Zone Agreement in such a way that would indicate the plaintiff’s consent to the agreement co uld be called intoquestion. Neither the print nor the font size of the arbitrat ion clause differed from that of the remainder of the cont ract executed by the plaintiff . The standard form agreement was relatively short and straightforward, consisting of a total of nine paragraphs, three of which were set off with boxes to be checke d to signify the patron’s consent. The arbitration clause, while not set off al one, consisted of one-half of a paragraph that was required to be checked off. The clause commenced midway through the paragraph and ran un til the end of the paragraph. The plaintiff does not dispute that he checked off the box reflecting his consent to t he terms of the arbitration clause. Furthermore, the record is absent any evidence that the plainti ff was not in an equal bargaining position with the defendants. At the heart of the transaction, the plaintiff was seeking admittance to a recreational facility. I ndisputably, this was not a contract to which the plaintiff was compelled to enter into t he terms. He could have simply elected to not sign the agreement and bypass the recreat ional activity. Instead, the plaintiff signed the arbitration agreement acknowledging th at he had sufficient opportunity to read the entire document and understood its term s. Having signed the agreement, the plaintiff cannot seek to avoid his obligations b y contending that he did not read or understand it. Basic contract law dictates that a party who signs a written instrument is presumed to know its contents and cannot avoid it s obligations by contending that he did not read it, that he did not understand it, or that the other party failed to explain it to him. Coleman v. Jim Walter Homes, Inc. , 2008-1221, p. 7 (La. 3/17/09), 6 So.3d 179, 183 (citing Tweedel v. Brasseaux , 433 So.2d 133, 137 (La.1983)). To overcome the presumption, the party has the bur den of proving with reasonable certainty that he was deceived. Id. The plaintiff is unable to satisfy this burden, because there is no evidence in the record that the pla intiff made any effort to contact the defendant for an e xplanation or to discuss the t erms of the contract in

2any respect. Next, the arbitration clause at issue substantially mirrors the Aguillard arbitration clause, which this court found to be mutual. The p laintiff has not shown anything in the clause that reserves Sky Zone’s right to litiga te disputes related to the agreement that is not equally afforded to the plaintiff. As su ch, the majority errs in finding the lack of mutuality as to the parties. Finally, in Aguillard , this court addressed the presumption of arbitrability: [E]ven when the scope of an arbitration clause is fairly debata ble or reasonably in doubt, the court should decide the question of co nstruction in favor of arbitration. The weight of this presumption is he avy and arbitration should not be denied unless it can be said with pos itive assurance that an arbitration clause is not susceptible of an i nterpretation that could cover the dispute at issue. Therefore, even if som e legitimate doubt could be hypothesized, this Court, in conjunction with th e Supreme Court, requires resolu tion of the doubt in favor of arb itration. Id. , 04-2804 at 18, 908 So.2d at 25. In light of the controlling law indicating the favorable consid eration afforded arbitration agreements, coupled with the plaintiff’s failure to satisfy his burden of proving the contract was adhesionary, the majority erred in inv alidating the contract. Accordingly, I respectfully dissent and would affirm the ruling of the court of appeal.

310/19/16

SUPREME COURT OF LOUISIANA No. 2016

- CC

- 0818

JAMES DUHON VERSUS ACTIVELAF, LLC, D/B/A SKYZONE LAFAYETTE AND UNDERWRITERS AT LLOYDS, LONDON ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE CLARK, J., concurring. I find that the contract at issue lacks mutuality to such an extent that the contract is adhesionary. Not only does the contract bind only patrons to arbitration, the contract stipulates that if a patron files a lawsuit against Sky Zone, the patron is lia ble for $5,000 in liquidated damages. At the same time, Sky Zone is free to file a lawsuit against the patron without any penalty.1 10/ 19/ 16

SUPREME COURT OF LOUISIANA No. 2016
- C C
- 0818 JAMES DUHON VERSUS ACTIVELAF, LLC, D/B/A SKYZONE LAFAYETTE AND UNDERWRITERS AT LLOYDS, LONDON ON WRIT OF CERTIORARI TO THE COURT OF APPEAL , FIRST CIRCUIT, PARISH OF EAST BATON ROUGE
Hughes, J., concurring. Although I do not agree that the arbitration language was hidden, I concur that it lacked mutuality, and thus with the result.1 10/19/16 SUPREME COURT OF LOUISIANA
No . 2016
- CC
- 0818 JAMES DUHON VERSUS ACTIVELAF, LLC, D/B/A SKYZONE LAFAYETTE AND UNDERWRITERS AT LLOYDS, LONDON ON WRIT OF CERT IOR ARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE
CRICHTON, J. , additiona lly concurs and assigns reasons.
I agree with the majority decision , and write separately to emphasize that I do not view this decision as a rejection of arbitration agreements. To the contrary, Louisiana law favors the enforcement of arbitration agreemen ts

. See La. R.S. 9:4201 (Validity of arbitration agreements). Consistent with the Federal
Arbitration Act (“FAA”) , arbitration agreements must be placed “upon the same footing” as other types of contracts.” Scherk v. Alberto

- Culver Co. , 417 U.S. 506, 511 (1974); see also 9 U.S.C. § 2. But just as Louisiana law should not create obstacles to the enforceability of arbitration agreements, see AT&T Mobility LLC v. Concepcion , 563 U.S. 333 (2011) (applying the FAA to preempt a state law condition to the enforceability of an arbitration agreement) , neither should Louisiana law create exceptions for arbitration agreements that do not exist for other types of contracts.
Without question, arbitratio n can be a waiver of the traditional access to our judicial system. And so, applying Aguillard v. Auction Management Corp. , 04

- 2804 (La. 6/29/05), 908 So. 2d 1, this waiver must be in accord with Louisiana contract law , otherwise a party’s consent may be called into question

. Thus, a2 business entity or individual seeking to draft a contract that includes an arbitration agreement must meet all of the elements of an enforceable contract.
By concealing the existence of the arbitration agreement, this agreem ent deprives a party of redress in the justice system. To make a bad situation worse,
this agreement does not bind Sky Zone to arbitration , yet it penalizes a Sky Zone patron

— but not Sky Zone

— for seeking to initiate a lawsuit

. These blatant asymmetries exhibit a stunning lack of draftsmanship and fail to adhere to the principles set forth in Aguillard

. Accordingly , in my view , this Court is bound to deem this agreement unenforceable.