In McFarland v. Almond Board of California, No. 2:12–CV–02778–JAM–CKD (E.D. Cal. Apr. 25, 2013), a federal court found an employment arbitration agreement unconscionable because the employer retained the right to modify the agreement unilaterally and because the arbitration agreement permitted lawsuits for trade secret claims, which are claims that only the employer is likely to bring. The court, however, recognized that it may be appropriate to exclude certain types of claims from arbitration as long as there is a legitimate business reason for doing so.
When drafting an arbitration clause, it is important to make sure the contract is not one-sided.