Lucey et al Vs FedEx Ground

This case originated in Superior Court for New Jersey Burlington County in 2006.  FedEx was granted a removal order to U.S. District Court for New Jersey but was not granted a motion to move it into the multi-district litigation proceedings. 

FedEx moved to compel arbitration and the plaintiffs opposed by claiming the arbitration clause of the FedEx Ground "Operating Agreement" was unconscionable.  In October 2007, the Judge ruled that the arbitration clause was both procedurally and substantially unconscionable.

While parties are free to contract for the remedies of their choosing, the Court cannot ignore the circumstances in which these remedies were "chosen" - ie, FedEx drafted the [Operating Agreement] with these restrictions and presented it to Plaintiffs on a 'take-it or leave-it' basis.  Nor can the Court ignore the parties' overall disparity in bargaining power.  The reasoning in Alexander and the facts of this situation point to the same conclusion: the provision of the [Operating Agreement] limiting damages to reinstatement and remaining net earnings is unconscionable.

The basis for the Judge's ruling in this case are specific to the situation of this group of former drivers.

This ruling is another instance of the arbitration clause being found to be unconscionable.  Another instance is the McHenry civil case in Oregon.