";s:4:"text";s:26526:"1985)). In this case, the arbitration agreement contains a severability provision, which states: Therefore, the arbitrator may find the limitation of liability clause to be unconscionable and unenforceable and therefore sever that clause, preserving the remaining terms of the arbitration agreement. I was initially upset with the 'bait n switch' approach even though they do cover their tracks in paperwork and signoffs. 2d 937, 940 (W.D. (Docket #1-2). Ky. 2011) ("Unlike the clause in Abner, the LHRA arbitration clause does not limit the arbitrator's powers to award damages or to modify or vary the terms of the contract. It does not obscure the class action waiver in legalese, but plainly states: This waiver is repeated in the concluding line, which states: The arbitration agreement and class action waiver is not procedurally unconscionable because it is brief, relatively devoid of legalese, and contained in a separate document. Mortg. In Abner, the arbitration agreement did not contain a severability clause and therefore the entire arbitration agreement was found unconscionable. Corporation-Alabama v. Randolph, 531 U.S. 79, 90-91 (2000); Morrison v. Circuit City Stores, 317 F.3d 646, 659 (6th Cir. When Blue World arrived to install the pool, the customer was presented with additional paperwork that included the finance charges, interest rate, and total purchase price. . (citation and punctuation omitted). LEXIS 47909 *13 (W.D. My husband tried to explain to the guy that we had just got home, just received the paperwork today, and had not had a chance to look it over. Preston v. Ferrer,552 U.S. 346, 349 (2008). He was very professional and knowledgeable and answered all my questions and concerns. "A provision limiting remedies in such a way is a substantial waiver of a plaintiff's rights, and an arbitration clause that contains a substantial waiver of a party's rights is unenforceable." For the following reasons, Defendant's motion to compel arbitration (Docket #5) is DENIED. Id. Blue World Pools - $299.00 pool Resolved Blue World Pools - Don't do business with them Resolved Blue World Pools - credit report Resolved Blue World Pools - cancelling contract contract without penalty Blue World Pools - swimming pool Blue World Pools - the whole company Blue World Pools - customer service and payment to sales people Registration Sys. 2001) (citing Cline v. Allis-Chalmers Corp., 690 S.W.2d 764 (Ky. App. At the time we purchased the pools neither of us were aware of the others purchase and the slaes practices and follow-up by the company was the same as yours actually maybe worse, it has forced us into bankruptcy. They are just scaring you into letting them continue to rob your bank account. This comment was posted by a verified customer. from effectively vindicating her federal statutory rights in the arbitral forum." All pool packages come with a manufacturer's warranty. Plaintiffs seek to assert this action on behalf of all similarly situated individuals. C.B.S. 2001), vac'd by 294 F.3d 1275 (11th Cir. "[I]f the claim is fraud in the inducement of the arbitration clause itself an issue which goes to the `making' of the agreement to arbitrate the federal court may proceed to adjudicate it." Davis v. Global Client Solutions, LLC,765 F.Supp.2d 937, 940 (W.D. Nothing in the Sixth Circuit's analysis suggests it has wavered from its stance that "when the arbitration agreement at issue includes a severability provision, courts should not lightly conclude that a particular provision of an arbitration agreement taints the entire agreement." (Docket #1-2). Blue World Pools is an above ground pool dealer that offers high-quality products at an affordable price. Love the beautiful photo of your deck, fence, and pool! The company delivers and installs above ground pools. Blue World Pools Inc. Blue World Pools Overview. Kentucky, Louisville Division.https://leagle.com/images/logo.png. During that pitch, customers learned the $399 price did not include the costs of delivery, preparing a site for installation, and "hiring an attorney to execute a full liability release." 2003) ("if the fees and costs of the arbitral forum deter potential litigants, then that forum is clearly not an effective, or even adequate, substitute for the judicial forum"). Masco Corp. v. Zurich Am. Our content is intended to be used for general information purposes only. v. Abner,260 S.W.3d 351, 355 (Ky. App. Plaintiffs also request additional time to "conduct discovery regarding whether the arbitration agreement is valid." Depending on whether or not your All-Clad had "sharp edges" after Blue World Pools offers three above ground pool packages: Econoline, Midline and Classic. 2008). "[A]n unconscionable contract us 'one which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept, on the other.'" (Docket #6). When Blue World arrived to install the pool, the customer was presented with additional paperwork that included the finance charges, interest rate, and total purchase price. But when the pool got there we had to pay extra for 52 inches. We recently purchased a new pool from Blue World Pools and we couldn't be happier with our decision. This matter is before the Court upon Defendant's motion to compel arbitration. (Docket #5). It took them about three days to complete the job. The Plaza 851 Brickell Condominium Association will pay up to 300000 to settle a class-action lawsuit accusing the group of charging illegal fees to residents. Plaintiffs have responded. 3d at 790; Brookdale Senior Living Inc. v. Hibbard, 2014 U.S. Dist. Conseco Fin. By entering your email, you agree to sign up for consumer news, tips and giveaways from ConsumerAffairs. Holifield v. Beverly Health & Rehab. Id. Butterick explains that the "shapes of lowercase letters - some tall (dhkl), some short (aens), some descending (gypq) - create a varied visual contour" that is easier to recognize than uniformly sized capital letters. Plaintiffs also criticize the arbitration clause for being entirely capitalized. Based on these arbitration provisions, Blue World Pools asks the court to stay this action and compel the parties' to arbitrate their dispute. "[I]f a plaintiff asserts valid statutory or common law claims and an arbitration provision prevents the plaintiff from seeking all remedies available under those claims, the arbitration provision essentially prevents the plaintiff from meaningfully pursuing the claims." My husband agreed. Plaintiffs make two arguments for why the arbitration agreement is substantively unconscionable: (1) it disclaims all substantive remedies; and (2) it imposes excessive costs on Plaintiffs. (She ripped 6 years after I fixed the leaky liner. Gen. Fin. Top Class Actions has helped law firms across the country successfully find plaintiffs for class action lawsuits & mass torts since 2008, receiving tens of thousands of leads per month. (Docket #1-2). You can choose to pay in full or select a financing option. 2003). "A fundamental rule of contract law holds that, absent fraud in the inducement, a written agreement duly executed by the party to be held, who had an opportunity to read it, will be enforced according to its terms." The Court agrees that having the entire one-page arbitration agreement capitalized is a poor way to draw attention to the specific rights being waived. The Court will address the (A) procedural unconscionability argument, before turning to the (B) substantive unconscionability argument. Id. When everything is emphasized, nothing is emphasized. My family was sccammed also with this pool. As a result, some Blue World customers were left with debt ranging from $23,000 to $55,000.The office also alleged Blue World violated the law by failing to give consumers proper notice of the three-day right to cancel, requiring consumers to sign contracts that were incoherent and virtually unreadable, and requiring consumers to make payments by electronic funds transfers, which violates federal law.Blue World denied that it violated any aspect of the Consumer Credit and Protection Act or any other laws.In the assurance, Blue World agreed to pay the state $1 million, $500,000 of which is designated for consumer restitution. Plaintiff must file any reply on or before November 13, 2015. Blue World attempts to rehabilitate this broad limitation, pointing out the agreement also allows an arbitrator to award "REASONABLE ATTORNEY'S FEES AND OTHER EXPENSES OF ARBITRATION IF SUCH AN AWARD IS AUTHORIZED BY LAW . Defendant must file a response on or before November 6, 2015. Blue World Pools offers affordable and deluxe above-ground swimming pool package options. The goal of this section is to provide consumers with a comprehensive resource on class action and mass tort lawsuits. The United States Supreme Court has since interpreted the FAA as codifying "a national policy favoring arbitration when the parties contract for that mode of dispute resolution." No chemicals, just a gallon of bleach a week. Honestly, it would have lasted longer if I had detected leak on side wall close to water level sooner! Listed below are those cases in which this Featured Case is cited. Corp.,183 F.3d 173 (3rd Cir. Energy Home v. Peay, 406 S.W.3d 828, 835 (Ky. 2013). Then, when I was called with confirmation of my pool order, the folks at puronics told me that they had included a ionic water filter system for my home, valued at $2900, and had been added to my loan amount. However, Cooper reinforces the standard that a severability provision may salvage an arbitration agreement that contains an unconscionable provision. Plaintiffs have requested they be granted time to conduct discovery on this issue. The next day they called my husband and told him they would give him the better pool for the same cost if we agreed to be a show house. I moved the pool myself, and continue to pay on it, but if I could find a way to make them feel the pain I have since I got the darn thing, I would love to. They ask the court to void the transactions. The pump is very strong and keeps the pool clean. See Matthew Butterick, Typography for Lawyers, 87 (2010) ("All-caps paragraphs are an example of self-defeating typography"). "The doctrine of unconscionability has developed as a narrow exception to this fundamental rule." Plaintiffs also request additional time to "conduct discovery regarding whether the arbitration agreement is valid." Among other claims, Plaintiffs claim Blue World misrepresented terms of financing in violation of the Kentucky Consumer Protection Act and the Truth in Lending Act. C.B.S. Energy Home v. Peay, 406 S.W.3d 828, 835 (Ky. 2013). Four days later Leach says the company finally called them back saying the payment would be 256 per month for the next ten years totalling 30000. I decided to check it out and the sales rep was awesome. No materials from this website may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way. Plaintiffs Leroy Brown and Linda Brown similarly allege their purchase price jumped from $14,810.48 in the initial contract to $31,434.48 at the time of installation. My wife and I reject their offer. BLUE WORLD POOLS, INC., Defendant. The Cooper court cited the Eleventh Circuit for the notion that "To sever the costs and fees provision and force the employee to arbitrate a Title VII claim despite the employer's attempt to limit the remedies available would reward the employer for its actions and fail to deter similar conduct by others." I only mention this since it was a major part of my decision to spend the extra money for the no maintenance pool with the 25 year warranty. Well, I have my contract, and it shows $14000 as the financed amount, and I would love to take them to court over this, but am not sure who I can sue. THOMAS B. RUSSELL, Senior District Judge. He was right. United States District Court, W.D. Indiana Consumer Law Group/The Law Office of Robert E. Duff announces the recent filing of a class action lawsuit against Condor Securitization Trust, Condor Holdco Securitization Trust, Condor Assetco Securitization Trust and Condor Recovery . In 2011 the pool and spa industry entered the world of class-action lawsuits. Servs., Inc., 507 F.3d 967, 972 (6th Cir. People interested in purchasing an above ground pool should look at Blue World Pools options. Plaintiffs also criticize the arbitration clause for being entirely capitalized. "It is directed against one-sided, oppressive and unfairly surprising contracts, and not against the consequences per se of uneven bargaining power or even a simple old-fashioned bad bargain." All Rights Reserved. "Pleading that an arbitration clause was part of a broader fraudulent scheme without more, is no longer sufficient to overcome the strong federal policy in favor of arbitration." My family has greatly enjoyed the pool! For more information about reviews on ConsumerAffairs.com please visit our For the foregoing reasons, Defendant's motion to compel arbitration (Docket #5) is DENIED. Do you have a paper that says when they will stop stealing from your bank accountNOPE. LEXIS 76486 *20-21 (E.D. Plaintiffs are a collection of pool owners who purchased and financed their pools from Defendant Blue World Pools, Inc. ("Blue World"). 2004); Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 80 (2010) (listing two exceptions to the general rule that "questions related to the validity of an arbitration agreement are usually matters for a court to resolve before it refers a dispute to arbitration"). The arbitration clause is sufficiently notable. Ky. 2014). We are pleased that your family is enjoying your pool purchase! Among other claims, Plaintiffs claim Blue World misrepresented terms of financing in violation of the Kentucky Consumer Protection Act and the Truth in Lending Act. (Docket #6). The appointment was set, the sales person arrived in a timely manner, she was respectful and knowledgeable. I had been told it would be free of charge. Morrison, 664 F.3d at 664. However, Cooper reinforces the standard that a severability provision may salvage an arbitration agreement that contains an unconscionable provision. II. LEXIS 76486 *20-21 (E.D. This is an overbroad limitation that does not provide Plaintiffs with an adequate opportunity to pursue their rights. COUNTY OR FEDERAL COURT ANY CLAIM ON A CLASS-ACTION BASIS OR IN ANY OTHER COLLECTIVE OR REPRESENTATIVE PROCEEDING AS EITHER A REPRESENTATIVE OR MEMBER OF A CLASS OR AS A PRIVATE ATTORNEY GENERAL OR TO OTHERWISE PURSUE ANY CLAIM IN A CLASS. The installation crew was courteous and professional and Customer Service answered all my questions and concerns when I contacted them by phone. The Court will address this issue after further discovery. "[A]s subsequent courts construing Abner have emphasized, the question is whether the arbitration clause is so intertwined with the unconscionable provision that the two clauses cannot be severed from each other." 1959) ("one who signs a contract is presumed to know its contents"). Id. Servs., 253 F.3d 1280, 1287 (11th Cir. "A fundamental rule of contract law holds that, absent fraud in the inducement, a written agreement duly executed by the party to be held, who had an opportunity to read it, will be enforced according to its terms." Copyright 2022 Consumers Unified LLC. . Id. The "existence of large arbitration costs could preclude a litigant . Energy Home v. Peay,406 S.W.3d 828, 835 (Ky. 2013). The sales team does over sale the zero maintenance, no chemicals and no draining for winter. Then when they showed up to set the pool up, the amount was 15000 more than we were originally told. We paid faithfully on-time for the first year and a half. The United States Supreme Court has since interpreted the FAA as codifying "a national policy favoring arbitration when the parties contract for that mode of dispute resolution." Conseco Fin. It is a single page. Thank you for choosing us! "Substantive unconscionability refers to contractual terms that are unreasonably or grossly favorable to one side and to which the disfavored party does not assent." Class Action, Mass Tort and Multidistrict Litigation In 2011, the pool and spa industry entered the world of class-action lawsuits. Econoline pools are the most affordable option these pools start at $399 and include a filter, pump, liner,. The pool is $299 to $399 and when they come to your house the price goes up between $7000 and $10000. Green Tree, 531 U.S. at 90-91. "Substantive unconscionability refers to contractual terms that are unreasonably or grossly favorable to one side and to which the disfavored party does not assent." The customer was also required to grant Blue World a lien on the customer's property. Attorneys are either actively filing these cases or investigating to determine whether lawsuits can be filed. With a manufacturer 's warranty Abner,260 S.W.3d 351, 355 ( Ky. App time to `` conduct discovery whether! Above ground pool dealer that offers high-quality products at an affordable price, 2015 letting continue... Defendant 's motion to compel arbitration ( Docket # 5 ) is DENIED and! Respectful and knowledgeable ) ( `` All-caps paragraphs are an example of Typography... # 5 ) is DENIED required to grant Blue World a lien on the customer was also to!, 349 ( 2008 ) either actively filing these cases or investigating to determine whether lawsuits can be filed above-ground... Pump, liner, questions and concerns when i contacted them by phone from your bank.! Entered the World of class-action lawsuits decided to check it out and the sales team does sale! 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