Opinion
CV156054684S
01-04-2016
Crystal Horrocks et al. v. Keepers, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR STAY OF PROCEEDINGS (#101)
Robin L. Wilson, J.
FACTS
On May 18, 2015, the plaintiffs, Crystal Horrocks, Yaritza Reyes, Dina Danielle Caviello, Jacqueline Green, Sugeily Ortiz, and Zuleyma Bella Lopez, filed an eight-count complaint against the defendants, Keepers, Inc. and Joseph Regensburger. The plaintiffs allege the following facts in their complaint. The plaintiffs are a class of self-described exotic dancers who worked at Keepers Gentlemen's Club. Keepers Gentlemen's Club is a business of defendant Keepers, Inc., of which defendant Regensburger is the president and director. The plaintiffs began their employment as exotic dancers with the defendants in or about January 2011. Between 2011 and 2014, the plaintiffs regularly worked approximately forty hours or more per weekly pay period for the defendants' business. The plaintiffs provided adult entertainment and earned tips and/or gratuities from customers for dances they performed on stage or for personal dances they performed in common areas of the club and in semi-private rooms.
In the complaint, Ms. Greens' name is spelled " Jacquelyne, " however, her name is spelled " Jacqueline" in the summons, continuation of parties form.
Throughout the plaintiffs' employment, the plaintiffs had no real opportunity to profit from the success of the defendants' business. The plaintiffs were not shareholders or officers of the defendants' business nor did they have any direct or indirect financial investment in the business. Because the plaintiffs depended solely on the customers' tips and gratuities, they relied on the defendants to advertise the business and attract customers so the plaintiffs could perform their services. Accordingly, the plaintiffs were under the control of the defendants to earn any payment for their services. The defendants also controlled the plaintiffs' work schedule, conduct, dress, songs they danced to, and the rates they charged for dances. Further, the defendants had the ability to hire and fire the plaintiffs. In light of these working conditions, the plaintiffs contend that they should be classified as " employees" and that the defendants are " employers" under General Statutes § § 31-58(e) and 31-222(a)(1), as well as the Fair Labor Standards Act, 29 U.S.C. § 203(e)(1) (2014).
In the plaintiffs' complaint, they cite to subsection (f), however, the relevant subsection is (e). General Statutes § 31-58(e) provides: " 'Employee' means any individual employed or permitted to work by an employer but shall not include any individual employed in camps or resorts which are open no more than six months of the year or in domestic service in or about a private home, except any individual in domestic service employment as defined in the regulations of the federal Fair Labor Standards Act, or an individual employed in a bona fide executive, administrative or professional capacity as defined in the regulations of the Labor Commissioner or an individual employed by the federal government, or any individual engaged in the activities of an educational, charitable, religious, scientific, historical, literary or nonprofit organization where the employer-employee relationship does not, in fact, exist or where the services rendered to such organizations are on a voluntary basis, or any individual employed as a head resident or resident assistant by a college or university, or any individual engaged in babysitting, or an outside salesman as defined in the regulations of the federal Fair Labor Standards Act, or any individual employed by a nonprofit theater, provided such theater does not operate for more than seven months in any calendar year, or a member of the armed forces of the state performing military duty, as such terms are defined in section 27-61."
General Statutes § 31-222(a)(1) provides: " 'Employment, ' subject to the other provisions of this subsection, means: (A) Any service, including service in interstate commerce, and service outside the United States, performed under any express or implied contract of hire creating the relationship of employer and employee."
Title 29 of the United States Code, § 203(e)(1), provides: " Except as provided in paragraphs (2), (3), and (4), the term 'employee' means any individual employed by an employer."
The defendants, however, classified the plaintiffs as independent contractors, such that the plaintiffs have not received the benefits that are required from an employment relationship, including but not limited to workers' compensation and unemployment benefits. Additionally, the defendants violated the plaintiffs' legal rights as employees in the following ways: failing to pay minimum wage; failing to pay time and a half for work done in excess of forty hours per week; improperly retaining plaintiffs' gratuities; improperly deducting fees from the plaintiffs' wages; requiring plaintiffs to pay fines for violating the defendants' rules; requiring plaintiffs to share their tips and gratuities with the defendants; and requiring plaintiffs to pay a fee to the disc jockey and other employees. As a result, the plaintiffs request damages sustained for not receiving employee benefits and other violations to their legal rights. Further, the plaintiffs bring forth their claims as members of a class action.
On May 25, 2015, the defendants filed a motion for stay of proceedings on the ground that the plaintiffs signed an entertainment lease agreement providing for exclusive binding arbitration in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (2006) (FAA). In support of the motion, the defendants filed a memorandum of law. On September 14, 2015, the plaintiffs filed an objection to the defendants' motion to dismiss. Oral argument was heard on the motion at short calendar on October 13, 2015.
The defendants also filed a motion to dismiss for lack of subject matter jurisdiction. Following oral arguments, the court, Wilson J., issued an order denying the defendants' motion to dismiss (#101.10). Only the motion for stay of proceedings is at issue.
DISCUSSION
General Statutes § 52-408 provides in relevant part that " [a]n agreement in any written contract . . . to settle by arbitration any controversy thereafter arising out of such contract, or out of the failure or refusal to perform the whole or any part thereof . . . shall be valid, irrevocable and enforceable, except when there exists sufficient cause at law or in equity for the avoidance of written contracts generally." " [O]ur courts have wholeheartedly endorsed arbitration as an effective alternative method of settling disputes intended to avoid the formalities, delay, expense and vexation of ordinary litigation." MSO, LLC v. DeSimone, 313 Conn. 54, 63, 94 A.3d 1189 (2014). " [A]rbitration is a creature of contract . . . It is designed to avoid litigation and secure prompt settlement of disputes . . . [A] person can be compelled to arbitrate a dispute only if, to the extent that, and in the manner which, he has agreed so to do . . . No one can be forced to arbitrate a contract dispute who has not previously agreed to do so." (Internal quotation marks omitted.) State v. Philip Morris, Inc., 279 Conn. 785, 796, 905 A.2d 42 (2006). " [A]n agreement to arbitrate must meet the requirements of [General Statutes § 52-408], including the requirement that the agreement be in writing, or it is invalid." Bennett v. Meader, 208 Conn. 352, 364, 545 A.2d 553 (1988).
" General Statutes § 52-409 provides that where an action is brought by any party to a written agreement to arbitrate, the court shall stay the action upon motion by any party to the agreement, provided that the issue involved is referable to arbitration and that the person seeking the stay is ready and willing to proceed with arbitration." KND Corp. v. Hartcom, Inc., 5 Conn.App. 333, 336, 497 A.2d 1038 (1985). " When parties have a valid arbitration agreement, the courts are empowered to direct compliance with its provisions . . . To this end, General Statutes § 52-409 provides relief when a party to a contract that contains an arbitration clause desires arbitration of a dispute and the other party, instead of proceeding with arbitration, institutes a civil action to resolve the dispute. The party desiring arbitration can then seek a stay of the civil action." (Citation omitted; internal quotation marks omitted.) MSO, LLC v. DeSimone, supra, 313 Conn. 63.
The defendants argue that the court should grant a stay of this action pursuant to § 52-409 until the arbitration is concluded. Specifically, the defendants argue that the plaintiffs signed entertainment lease agreements committing to exclusive binding arbitration in accordance with the FAA. Further, the defendants argue that the plaintiffs agreed not to participate or bring class action suits and that they signed releases and waivers acknowledging they are independent contractors and not employees.
The arbitration provision contained in the entertainment lease agreement reads in relevant part:
In opposition, the plaintiffs first argue that the arbitration agreement cannot be severed from the entertainment lease agreement. Second, the plaintiffs argue that the entertainment lease agreement is void because it seeks to implement an illegal employment scheme with a purpose to violate labor laws and undermine public policy considerations. And third, the plaintiffs argue that the arbitration agreement itself is void as unconscionable because the cost and fee shifting provisions and the class action waivers are illegal. Specifically, the plaintiffs argue that the arbitration agreement is procedurally unconscionable because the defendants presented an adhesion contract that they knew was a misrepresentation of employment law, violating their duty of good faith and fair dealing as an employer. The plaintiffs also argue that the arbitration agreement is substantively unconscionable because the class action waiver is unilateral: the defendants can sue the plaintiffs as a class but not vice-versa. Lastly, the plaintiffs argue that the defendants improperly seek a stay of the proceedings because they failed to first file a motion to compel arbitration pursuant to General Statutes § 52-410.
Statutes § 52-410 provides in relevant part: " (a) A party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration thereunder may make application to the superior court for the judicial district in which one of the parties resides . . . for an order directing the parties to proceed with the arbitration in compliance with their agreement." " The procedure authorized by General Statutes § 52-410 is an adversary process commenced by writ of summons and complaint . . . It would make little sense to require a party being sued to initiate such an action. To do so would merely plunge the defendant deeper into the sea of litigation, thus causing it the very inconvenience it sought to avoid by arbitration." (Citation omitted; internal quotation marks omitted.) KND Corp. v. Hartcom, Inc., supra, 5 Conn.App. 336-37; see also Covenant Ins. Co. v. Banks, 177 Conn. 273, 278-79, 413 A.2d 862 (1979). Therefore, the defendants were not required to file a motion to compel arbitration before filing the motion for stay of the proceedings because the plaintiffs initially chose to sue the defendants regarding the arbitration matters.
I
SEVERABILITY OF THE ARBITRATION AGREEMENT
The court will first address whether the arbitration agreement can be severed from the entertainment lease agreement to address the challenges to both agreements separately. " Arbitration is a creature of contract. It is the province of the parties to set the limits of the authority of the arbitrators, and the parties will be bound by the limits they have fixed . . . The arbitration provision in an agreement is, in effect, a separate and distinct agreement. Courts of law can enforce only such agreements as the parties actually make . . . No one is under a duty to submit any question to arbitration except to the extent that he has signified his willingness." (Internal quotation marks omitted.) Success Centers, Inc. v. Huntington Learning Centers, Inc., 223 Conn. 761, 772, 613 A.2d 1320 (1992). " Accordingly, because an arbitrator's jurisdiction is rooted in the agreement of the parties . . . a party who contests the making of a contract containing an arbitration provision cannot be compelled to arbitrate the threshold issue of the existence of an agreement to arbitrate." (Emphasis in original; internal quotation marks omitted.) MBNA America Bank N.A. v. Boata, 283 Conn. 381, 386-87, 926 A.2d 1035 (2007). Our Supreme Court has acknowledged three propositions regarding arbitration agreements: " First, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract. Second, unless the challenge is to the arbitration clause itself, the issue of the contract's validity is considered by the arbitrator in the first instance. Third, this arbitration law applies in state as well as federal courts." C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 75, 919 A.2d 1002 (2007).
In the present case, the plaintiffs argue both that the entertainment lease agreement as a whole is void and also that the arbitration agreement itself is void. Our Supreme court has stated that an arbitration provision is severable from the contract and that attacks on the contract as a whole should be submitted to the arbitrator and the decision on whether the arbitration provision is valid and enforceable is left for the court to decide. Therefore, the arbitration agreement can be severed as a separate and distinct agreement from the entertainment lease agreement. Accordingly, the court will address separately the plaintiffs' arguments as to why the validity of the entertainment lease agreement should not be decided by an arbitrator. The court will then address whether the arbitration agreement itself is void as a matter of law.
II
THE ENTERTAINMENT LEASE AGREEMENT
In determining whether the court or an arbitrator should decide if the entertainment lease agreement is void, the court must assess how much power the parties have agreed to give the arbitrator. " [A]n arbitrator's power to arbitrate claims consists of the power to hear and determine issues that fall within the class of matters that the parties have agreed to resolve using this alternative forum." MBNA America Bank, N.A. v. Boata, supra, 283 Conn. 389. Claims that arise out of or relate to the contract itself are subject to arbitration. See Nussbaum v. Kimberly Timbers, Ltd., 271 Conn. 65, 856 A.2d 364 (2004). In Nussbaum, the plaintiffs attacked the enforceability of a new home construction contract that contained an arbitration clause, arguing that the contract was illegal, unenforceable, and contrary to public policy because it did not comply with the laws governing new home construction contractors. Id., 74. In holding that the arbitrator should decide whether the contract was illegal and unenforceable, our Supreme Court looked at the language of the arbitration clause to conclude that claims within the scope of the arbitration clause must initially be decided by an arbitrator. Id., 75. The language of the arbitration clause stated that " any controversy or claim arising out of or relating to this Contract . . . shall be settled by arbitration . . ." Id., 73. Thus, because of the broad scope of the arbitration clause, the arbitrator was empowered to decide any controversy or claim involving the contract between the parties. See also C.R. Klewin Northeast, LLC v. Bridgeport, supra, 282 Conn. 78 (claim of contract illegality based on ethical and statutory violations resulting from formation of contract is to be decided by arbitration panel because language of the arbitration agreement provided that scope of arbitration agreement was to cover " all disputes" between parties).
In the present case, the language of the arbitration agreement reads in relevant part: " Any and all controversies between the Entertainer and Club, regardless of whether such claims sound in contract, tort, and/or based upon a federal or state statu[t]e, shall be exclusively decided by binding arbitration held pursuant to and in accordance with the Federal Arbitration Act . . ." (Emphasis added.) (Pls.' Ex. A.) The arbitration agreement in the present case uses the language " any and all controversies." This language is substantially similar in scope to that of Nussbaum v. Kimberly Timbers, Ltd., supra, 271 Conn. 73 which used the language " any controversy or claim, " and C.R. Klewin Northeast, LLC v. City of Bridgeport, supra, 282 Conn. 59 n.6 which stated " all disputes." Thus, the arbitration agreement provides that the scope of the arbitrator's authority is to decide any and all claims, state or federal, that arise between the plaintiffs and the defendants. The claim that the entertainment lease agreement violates state and federal employment laws, as well as public policy considerations, falls within the arbitration agreement's " any and all controversies" requirement.
The only Connecticut law that the plaintiffs rely on for their position that the court and not the arbitrator should decide the validity of the entertainment lease agreement is Parente v. Pirozzoli, 87 Conn.App. 235, 866 A.2d 629 (2005), however, the parties in that case did not enter into an arbitration agreement requiring binding arbitration. In Parente, the plaintiff and defendant entered into a partnership agreement and the defendant claimed that the purpose of the partnership agreement was to violate the law. Not once was arbitration or the issue of whether an arbitrator should decide the validity of the partnership agreement presented to the court because the parties did not sign an arbitration agreement. The plaintiffs in the present case merely use Parente v. Pirozzoli for the proposition that a general contract claim of illegality is a question of law to be decided by the court and provide no on point authoritative source for why an arbitrator should not decide the validity of the entertainment lease agreement. Thus, the plaintiffs' claim that the entertainment lease agreement is void should be initially determined by an arbitrator.
III
THE ARBITRATION AGREEMENT
The next issue arising out of the defendants' motion for stay of proceedings is whether the arbitration agreement itself is void as unconscionable. " The purpose of the doctrine of unconscionability is to prevent oppression and unfair surprise." (Internal quotation marks omitted.) Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 88, 612 A.2d 1130 (1992). " The classic definition of an unconscionable contract is 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 . . . In practice, [the court has] come to divide this definition into two aspects of unconscionability, one procedural and the other substantive, the first intended to prevent unfair surprise and the other intended to prevent oppression." (Citation omitted; internal quotation marks omitted.) Smith v. Mitsubishi Motors Credit of America, Inc., 247 Conn. 342, 349, 721 A.2d 1187 (1998). " Substantive unconscionability focuses on the content of the contract, as distinguished from procedural unconscionability, which focuses on the process by which the allegedly offensive terms found their way into the agreement." (Internal quotation marks omitted.) Cheshire Mortgage Service, Inc. v. Montes, supra, 223 Conn. 87 n.14. " Under Connecticut law, a court cannot find procedural unconscionability unless the party opposing enforcement of a contractual provision has introduced some specific evidence of overreaching by the other party in the formation of the agreement." (Emphasis in original.) Daimlerchrysler Insurance Co., LLC v. Pambianchi, 762 F.Supp.2d 410, 423 (D.Conn. 2011), aff'd, 469 Fed.Appx. 65 (2d Cir. 2012); see also Smith v. Mitsubishi Motors Credit of America, Inc., supra, 247 Conn. 351-52.
The only Connecticut Supreme Court case to address the unconscionability of an arbitration clause is Hottle v. BDO Seidman LLP, 268 Conn. 694, 846 A.2d 862 (2004), however, in that case, our Supreme Court applied New York unconscionability laws as per the choice of law clause in the contract. Given the fact that the arbitration agreement in the present case is governed by the FAA and there is no Connecticut case law that is directly on point in determining the conscionability of an arbitration clause, the court will look for guidance from the applicable federal law.
After extensive research, the court is not aware of any Connecticut cases that have applied Connecticut procedural and substantive unconscionability law to determine the unconscionability of an arbitration clause.
The plaintiffs ask the court to adopt a position from various United States Circuit Courts of Appeals, however, Connecticut sits within the Second Circuit Court of Appeals and will follow Second Circuit federal law. Further, arbitration is favored in Connecticut; see Waterbury Teachers Association v. City of Waterbury, 164 Conn. 426, 434, 324 A.2d 267 (1973); while other states such as California tend show disfavor to arbitration. See Discover Bank v. Superior Court, 36 Cal.4th 148, 113 P.3d 1100, 30 Cal.Rptr.3d 76 (2005) (waiver of class arbitration in consumer contract of adhesion is unconscionable and prohibition of class action waivers in arbitration agreements is not preempted by the FAA).
" [W]hen there is no Connecticut case law directly on point, [the court] may turn for guidance to the applicable federal law." Nussbaum v. Kimberly Timbers, Ltd., supra, 271 Conn. 73 n.6. The FAA provides in relevant part: " A written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2 (2006). " This text reflects the overarching principle that arbitration is a matter of contract . . . And consistent with that text, courts must rigorously enforce arbitration agreements according to their terms . . ." (Citation omitted; internal quotation marks omitted.) American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304, 2309, 186 L.Ed.2d 417 (2013). " [T]he FAA's central purpose is to ensure that private agreements to arbitrate are enforced according to their terms." (Internal quotation marks omitted.) Stolt-Nielsen S.A. v. Animal Feeds International Corp., 559 U.S. 662, 664, 130 S.Ct. 1758, 176 L.Ed.2d. 605 (2010). " The Second Circuit instructs us that any analysis of a party's challenge to the enforcement of an arbitration agreement must begin by recognizing the FAA's strong policy in favor of rigorously enforcing arbitration agreements." (Internal quotation marks omitted.) Morales v. Rent-A-Center, Inc., 306 F.Supp.2d 175, 179 (D.Conn. 2003). " When state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA . . . But the inquiry becomes more complex when a doctrine normally thought to be generally applicable, such as duress or . . . unconscionability, is alleged to have been applied in a fashion that disfavors arbitration." (Citation omitted.) AT& T Mobility LLC v. Concepcion, 563 U.S. 333, 340, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011). " [A] court may not rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable, for this would enable the court to effect what . . . the state legislature cannot." (Internal quotation marks omitted.) Id.
Turning now to the unconscionability claims in the present case, the court will determine whether the class action waiver as well as the cost and fee shifting provisions make the arbitration agreement unconscionable and void. In D'Antuono v. Service Road Corp., 789 F.Supp.2d 308 (D.Conn. 2011), which is factually on point with the present case, the federal district court held that an arbitration clause containing a collective action and class action waiver, a cost and fee-shifting provision, and a provision shortening the statute of limitations was not unconscionable under Connecticut law. The plaintiffs were a group of exotic dancers who brought almost identical claims of breach of employment law as the plaintiffs in the present case. Id. The federal district court addressed first the plaintiffs' claims that the arbitration clause was procedurally unconscionable because it was " hidden in a maze of fine print, [because] no effort was made to alert [them] directly to the existence of the [provision], [and because] the parties had unequal bargaining power." Id., 328. The federal district court, however, held that the arbitration clause was not procedurally unconscionable because the clause was written in ordinary size type, in bold, capital letters, and underlined. Further, the federal district court held that a " take it or leave it" employment contract that is written by a relatively sophisticated employer is not per se procedurally unconscionable despite it being an adhesion contract where the parties had unequal bargaining power. Addressing the substantively unconscionable argument, the federal district court held that the collective action and class action waiver, the cost and fee-shifting provision, and the provision shortening the statute of the limitations, taken together under Connecticut law, are not " so unfair that no sensible person would make it and that no fair and honest person would accept it." Id., 329.
The arbitration clause in D'Antuono v. Service Road Corp. provides: " 21. Arbitration/Attorney Fees and Costs/Waiver of Class Action, ANY CONTROVERSY, DISPUTE, OR CLAIM ARISING OUT OF THIS LEASE OR OTHERWISE OUT OF ENTERTAINER PERFORMING AT THE PREMISES OF THE CLUB. SHALL BE EXCLUSIVELY DECIDED BY BINDING ARBITRATION UNDER THE FEDERAL ARBITRATION ACT, IN CONFORMITY WITH RULES AND PROCEDURES AS ESTABLISHED BY THE AMERICAN ARBITRATION ASSOCIATION AND AS MAY BE MODIFIED BY ANY STATE ARBITRATION ACT . Any judgment or award may be entered in any court having jurisdiction thereof.
The plaintiffs, however, attempt to distinguish D'Antuono from the present case, arguing that the federal district court did not consider that the class action waiver was unilateral in the sense that the defendants did not waive their right to bring a class action. Since D'Antuono, the Second Circuit, however, has clarified that a class action waiver in an arbitration agreement in the employment context is not unconscionable. With respect to the Fair Labor Standards Act (FLSA), " [a court] consider[s] whether the FLSA contains a contrary congressional command barring waivers of class arbitration." (Internal quotation marks omitted.) Sutherland v. Ernst & Young LLP, 726 F.3d 290, 296 (2d Cir. 2013). The FLSA does not contain a contrary congressional command barring waiver of class actions and thus, " FLSA does not preclude the waiver of collective action claims." Id. " First, the text of the FLSA does not [evince] an intention to preclude a waiver of class-action procedure." Id. " Second, Supreme Court precedents inexorably lead to the conclusion that the waiver of collective action claims is permissible in the FLSA context." Id., 297; see also Raniere v. Citigroup, Inc., 533 Fed.Appx. 11, 14 (2d Cir. 2013) (holding that waiver of right to proceed collectively under FLSA is enforceable as a matter of law); see also Owen v. Bristol Care, Inc., 702 F.3d 1050, 1055 (8th Cir. 2013) (same); Carter v. Countrywide Credit Industry, Inc., 362 F.3d 294, 298 (5th Cir. 2004) (same); Adkins v. Labor Ready, Inc., 303 F.3d 496, 503 (4th Cir. 2002) (same).
The United States Supreme Court has stated: " The class-action waiver merely limits arbitration to the two contracting parties. It no more eliminates those parties' right to pursue their statutory remedy than did federal law before its adoption of the class action for legal relief in 1938. . . . Or, to put it differently, the individual suit that was considered adequate to assure effective vindication of a federal right before adoption of class-action procedures did not suddenly become ineffective vindication upon their adoption." (Citations omitted; internal quotation marks omitted.) American Express Co. v. Italian Colors Restaurant, supra, 133 S.Ct. 2310.
In the present case, the plaintiffs argue that the arbitration agreement is procedurally unconscionable because the defendants presented an adhesion contract that they knew was a misrepresentation of employment law, violating their duty of good faith and fair dealing as an employer. An adhesion contract with unequal bargaining power, by itself, is not sufficient to make an arbitration agreement unconscionable. The plaintiffs also provide no specific evidence that the defendants knowingly presented the plaintiffs with a contract containing an illegal purpose. Even if proffering this contract with a known illegal purpose makes the arbitration agreement procedurally unconscionable, the court is not aware of any Connecticut precedent that would allow the court to void a contract based solely on procedural unconscionability. See Daimlerchrysler Insurance Co., LLC v. Pambianchi, supra, 762 F.Supp.2d 423.
The plaintiffs have also brought to the court's attention the defendants failure to present the court with complete contracts in their motion to dismiss. It is the plaintiffs' burden, however, to prove the court has subject matter jurisdiction to prevent the case from going to arbitration and the plaintiffs could have produced any missing portions of the agreements that they signed with the defendants. See Brennan v. Butnick, Superior Court, judicial district of Hartford, Docket No. CV-09-5032114, (March 23, 2010, Aurigemma, J.).
The plaintiffs request the court to take judicial notice of defendant Regensburger as a sophisticated consumer of legal services, and therefore, having knowledge that the entertainment lease agreements were illegal, due to his role as a proprietor of exotic dance clubs litigating a planning and zoning decision in the cases Regensberger v. City of Waterbury, Docket No. 3:04-CV-01900 (PCD), 2008 WL 3992650 (D.Conn. August 25, 2008) and 500 North Avenue LLC v. City of Bridgeport, Docket No. 3:10cv1281 (MRK), 2012 WL 1067649 (D.Conn. March 30, 2012). These two cases, however, involve zoning issues and do not relate to any issues that are presently before the court in this case. Therefore, the court will not take judicial notice that defendant Regensburger knowingly proffered the entertainment lease agreements with an illegal purpose based on prior litigation dealing with zoning issues.
The plaintiffs' substantively unconscionable argument is also unavailing because agreeing to the cost and fee shifting provisions is not so unfair that no sensible person would offer the agreement with these provisions and that no fair and honest person would accept the provisions. Further, the plaintiffs' argument that the entertainment lease agreement is substantively unconscionable because the class action waiver is unilateral is without merit as the Second Circuit has made it clear that collective and class action waivers are not unconscionable in the labor and employment context. The plaintiffs are no more limited to pursue their statutory remedy than they would have been prior to the adoption of the class action as a form of legal relief. Requiring the plaintiffs to pursue their claims individually is not an ineffective vindication of their rights. See American Express Co. v. Italian Colors Restaurant, supra, 133 S.Ct. 2310.
The plaintiffs have failed to present the court with specific evidence of procedural and substantive unconscionability surrounding the entertainment lease agreement. Rather, the plaintiffs rely on federal case law in jurisdictions that are less favorable to arbitration than Connecticut and not within the Second Circuit, and accordingly, are not binding nor persuasive on this court. Thus, the arbitration agreement is not procedurally or substantively unconscionable and therefore it does not violate public policy and is not void as a matter of law.
CONCLUSION
For the foregoing reasons, the defendants' motion for stay of proceedings is granted because the plaintiffs' claims fall within the scope of the arbitration agreement, mandating that they should be decided by an arbitrator, and the arbitration agreement is not unconscionable nor void as a matter of law.
" 23. Arbitration/waiver of Class and Collective Actions/Attorney Fees and Costs . A. Binding Arbitration . Any and all controversies between the Entertainer and Club, regardless of whether such claims sound in contract, tort, and/or based upon a federal or state statu[t]e, shall be exclusively decided by binding arbitration held pursuant to and in accordance with the Federal Arbitration Act (" FAA"), and shall be decided by a single neutral arbitrator agreed upon by the parties, who shall be permitted to award, subject only to the restrictions contained in this Paragraph 23, any relief available in court. All parties waive any right to litigate such controversies, disputes, or claims in a court of law, and waive the right to trial by jury . **** " C. Class and Collective Action Waiver . Entertainer agrees that all claims or disputes between the Entertainer and the Club (and any other persons or entities associated with the Club) will be brought individually; that she will not consolidate her claims with the claims of any other individual; that she will not seek class or collective action treatment for any claim that she may have; that she will not participate in any class or collective action against the Club or against any persons or entities associated with the club. If at any time Entertainer i[s] made a member of a class in any proceeding, she will " opt out" at the first opportunity, and should any third party pursue any claims on her behalf, Entertainer shall waive her rights to any such monetary recovery. In other words the Entertainer expressly waives her right to prosecute, participate in, or pursue a class or collective action and/or other joint proceeding against the Club. This Paragraph 23(C) shall survive any judicial determination that the arbitration agreement contained herein is unenforceable for any reason ." (Emphasis in original.) (Pls.' Ex. A.)
" Any judgment, order, or ruling arising out of a dispute between the parties shall award costs incurred for the proceedings and reasonable attorney fees to the prevailing party. " ENTERTAINER AGREES THAT ALL CLAIMS BETWEEN HER AND THE CLUB WILL BE LITIGATED INDIVIDUALLY AND THAT SHE WILL NOT CONSOLIDATE OR SEEK CLASS TREATMENT FOR A CLAIM. ENTERTAINER FURTHER AGREES NOT TO COMMENCE ANY ACTION, SUIT OR ARBITRATION PROCEEDING RELATING, IN ANY MANNER WHATSOEVER, TO THIS LEASE OR TO HER PERFORMING AT THE PREMISES OF THE CLUB, MORE THAN SIX MONTHS AFTER SHE LAST PERFORMED AT THE PREMISES, AND FURTHER AGREES TO WAIVE ANY STATUTE OF LIMITATIONS TO THE CONTRARY. (Emphasis in original.) Id., 316-17.