The Hays Group, Inc. v. Biege, CV06120134.

Decision Date24 September 2008
Docket NumberA135640.,CV06120134.
Citation222 Or. App. 347,193 P.3d 1028
PartiesThe HAYS GROUP, INC., a foreign business corporation, dba Hays Companies of Oregon, Plaintiff-Appellant, v. Philip BIEGE, an individual, Defendant-Respondent, and LaPorte & Associates, Inc., an Oregon corporation, Defendant.
CourtOregon Court of Appeals

Kim E. Hoyt, Salem, argued the cause for appellant. With her on the briefs was Garrett Hemann Robertson P.C.

Moe A. Brown argued the cause and filed the brief for respondent.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and HASELTON, Judge.


This is an interlocutory appeal of an order denying plaintiff's motion to abate and to compel arbitration. Plaintiff contends that the trial court erred in concluding that the arbitration clause that is the basis for the motion is unenforceable. We agree and reverse and remand.

The relevant facts are not in dispute. Plaintiff The Hays Group, Inc., (Hays) is an insurance producer, that is, one who is licensed to sell, solicit, or negotiate insurance. ORS 731.104. Hays hired defendant Biege to work as a senior vice-president. As a condition of employment, Biege was required to execute a Confidentiality and Anti-Solicitation Agreement with Hays. The agreement provides that, among other things, if Biege ever left employment with Hays, he would not solicit insurance from any of Hays's customers for a period of 18 months after the end of employment. The agreement includes an arbitration provision, which states:

"Arbitration. Any controversy or claim arising out of or relating to (a) this Agreement or the breach thereof, or (b) the employment relationship between Employer and Employee, be it for sexual harassment, employment or age discrimination, infliction of emotional distress or any other common law or statutory claims, shall be settled by final and binding arbitration administered by the American Arbitration Association. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding the above, Employer shall have the right and authority to petition any court with subject matter and personal jurisdiction for temporary and/or permanent injunctive relief to enforce and prevent the breach of [specified paragraphs, including the non-solicitation provision] of this Agreement."

(Boldface and underscoring in original.) The agreement also contains a choice-of-law provision requiring Minnesota law to apply to controversies under its terms.

Hays terminated Biege's employment. The reasons for, and the propriety of, that termination are not material to the dispute before us. Shortly after the termination, Biege began working for a Hays competitor. Hays sued Biege for breach of contract and intentional interference with economic relations and, a few days later, moved for a temporary restraining order enjoining Biege from any further solicitations of Hays's customers. Biege answered and asserted a number of counterclaims, including claims for wrongful termination, breach of contract, failure to pay wages, and age discrimination. Hays then moved to abate the proceedings and to compel arbitration.

Biege opposed the motion to abate. He asserted that the arbitration provision is unenforceable because it does not contain an explicit waiver of his right to a jury trial, which is guaranteed by Article I, section 17, of the Oregon Constitution. He also asserted that the entire employment agreement is void on the ground that it amounts to an unconscionable contract of adhesion. Hays asserted that, under Minnesota law, the agreement and its arbitration clause are fully enforceable.

The trial court agreed with Biege that the arbitration provision is unenforceable. The court expressly based its ruling on the holding that "the law at this point[ ] requir[es] notice that you are waiving the right to a jury trial," apparently applying Oregon law. The court did not reach Biege's other arguments.

On appeal, Hays contends that neither Oregon nor Minnesota law conditions the validity of an arbitration provision on an explicit waiver of the right to a jury trial. Biege concedes that no case from either jurisdiction supports the trial court's decision. He nevertheless asserts that we should hold that, given the constitutional guarantee to a jury trial, the validity of arbitration agreements should depend on the presence of an explicit waiver of that right. In the alternative, Biege contends that the agreement is void as an unconscionable contract of adhesion.

The Federal Arbitration Act, 9 U.S.C. § 2, provides...

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6 cases
  • Livingston v. METROPOLITAN PEDIATRICS, LLC, 060100470
    • United States
    • Oregon Court of Appeals
    • 3 d3 Março d3 2010
    ...bargaining power." Motsinger v. Lithia Rose-FT, Inc., 211 Or.App. 610, 623, 156 P.3d 156 (2007); see also The Hays Group, Inc. v. Biege, 222 Or.App. 347, 351-52, 193 P.3d 1028 (2008). Plaintiff here makes no claim of procedural unconscionability. Although defendants are willing to assume th......
  • Hatkoff v. Portland Adventist Med. Ctr.
    • United States
    • Oregon Court of Appeals
    • 12 d3 Setembro d3 2012
    ...156 (2007) (internal quotation marks, footnote, and citations omitted; emphasis in original); see also The Hays Group, Inc. v. Biege, 222 Or.App. 347, 351–52, 193 P.3d 1028 (2008) (same). We most recently summarized the test for unconscionability as follows: “In Oregon, the test for unconsc......
  • Barney v. Henderson
    • United States
    • Oregon Court of Appeals
    • 23 d3 Fevereiro d3 2011
    ...We review the trial court's denial of plaintiff's motion to compel arbitration for errors of law, see The Hays Group, Inc. v. Biege, 222 Or.App. 347, 350, 193 P.3d 1028 (2008) (so reviewing), and reverse and remand. We begin by determining which law applies. Section 2 of the Federal Arbitra......
  • Opal Labs Inc. v. Sprinklr, Inc.
    • United States
    • U.S. District Court — District of Oregon
    • 20 d5 Agosto d5 2021
    ... ... 1984)); see also BladeRoom Group Ltd. v. Facebook, ... Inc. , Case No. 5:15-cv-01370-EJD, 2018 WL ... by agreement.” Hays Group, Inc. v. Biege , 222 ... Or.App. 347, 351, 193 P.3d 1028 ... ...
  • Request a trial to view additional results
2 books & journal articles
  • Chapter §6.3 CIVIL PROCEEDINGS
    • United States
    • Oregon Constitutional Law (OSBar) Chapter 6 Right To Jury Trial
    • Invalid date
    ...Right A party may not be compelled to give up a constitutional right to a civil jury. Hays Group, Inc. v. Biege, 222 Or App 347, 351, 193 P3d 1028 (2008); see Molodyh v. Truck Ins. Exch., 304 Or 290, 295, 744 P2d 992 (1987). A party may, however, waive or forfeit the right to a jury. ORCP 5......
  • Chapter § 6.3
    • United States
    • Oregon Constitutional Law (2022 ed.) (OSBar) Chapter 6 Right To Jury Trial
    • Invalid date
    ...remain inviolate.' A party may not be compelled to give up that right, even by statute." Hays Group, Inc. v. Biege, 222 Or App 347, 351, 193 P3d 1028 (2008); see Molodyh, 304 Or at 295. A party, however, may waive or forfeit the right to a jury. ORCP 51 C provides: The trial of all issues o......

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