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A college student who claims he was permanently scarred in a fraternity hazing incident must submit his claim to binding arbitration, a federal judge has ruled, because he signed an intake form that made it crystal clear that any dispute he had would be resolved that way. “Fraternity hazing does not present a novel issue outside the purview of what is appropriate for arbitration,” U.S. District Judge Gene E.K. Pratter wrote in her 18-page opinion in Griffen v. Alpha Phi Alpha Inc. Significantly, Pratter rejected the argument that such an arbitration clause must be deemed “unconscionable” because Pennsylvania has outlawed hazing. “The court cannot infer from the mere criminality of hazing in Pennsylvania a broad, overriding intent to prohibit private resolution of hazing incidents,” Pratter wrote. In the suit, plaintiff E. Martyn Griffen claims that during his junior year at the University of Pennsylvania, when he pledged the Alpha Phi Alpha fraternity – a historically black frat whose members in past years included W.E.B. DuBois, Martin Luther King Jr. and Thurgood Marshall – he was specifically promised that his induction would not include any hazing. But the suit alleges that Griffen was summoned to the frat house one evening in October 2005 by two members, Kelechi Okereke and Lionel Anderson-Perez, who allegedly imposed discipline on a group of “aspirants” as punishment for violating fraternity rules by disclosing confidential information to a nonmember. Griffen claims that he was “repeatedly and violently punched in the thighs” by Anderson-Perez, and that a rubber band was placed on his arm, which Okereke repeatedly snapped until it cut into his flesh. The suit says the rubber band “caused a serious and permanent scar – a de facto branding.” And the bruising of Griffen’s thigh was so severe, the suit says, that it caused calcification of his muscles. Griffen filed a criminal complaint, and both Okereke and Anderson-Perez were convicted on misdemeanor charges of simple assault, according to court papers. The fraternity’s lawyers – Richard G. Freeman of Philadelphia and Kevin B. Wiggins and Tracey R. Wallace of Adorno Yoss White & Wiggins in Dallas – moved for a stay of the suit and an order referring the case to arbitration. The defense motion said that Griffen had signed a one-page document that described the fraternity’s “intake process” and explicitly stated that “any grievances and disputes” that could not be resolved by the fraternity’s national director would be “referred to arbitration.” The final sentence of the arbitration clause defined the term disputes to include “contract claims, personal-injury claims, bodily injury claims, injury-to-character claims and property-damage claims arising out of or relating in any manner whatsoever to the intake process,” and said they “shall be subject to and resolved by compulsory and binding arbitration under the Federal Arbitration Act.” But Griffen’s lawyers – Robert L. Sachs Jr. and Steven L. Chung of Shrager Spivey & Sachs – argued that the arbitration clause is unenforceable because it is both procedurally and substantively unconscionable. Procedurally, the plaintiff’s lawyers argued, the clause is invalid because it is a “contract of adhesion” – an invalid agreement that was prepared by a party with excessive bargaining power and presented to the other party on a “take-it-or-leave-it” basis. Pratter disagreed, saying that while it was clear that the fraternity had “unilaterally prepared” the application, there was no evidence that it had “refused to negotiate the terms.” And since Griffen not only signed the contract, but initialed every paragraph, Pratter found there was no evidence that Griffen did not understand the contract or found it unfair. Pratter also found there was no evidence that Griffen “lacked a meaningful choice” of whether or not to enter the membership contract. Turning to the question of whether the arbitration clause was substantively unconscionable, Pratter found it had none of the attributes that Pennsylvania and federal courts have found objectionable. “The arbitration clause does not restrict discovery, it has no cost-shifting provisions, no limitation of remedies, and no unilateral access to the courts. Moreover, the arbitration clause at issue does not ‘create an arbitration procedure that favors one party over another,’” Pratter wrote. “Though Mr. Griffen argues that the nature of binding arbitration is in itself so restrictive as to be substantively unconscionable, this court will not rule, inconsistent with the law in favor of private arbitration, that alternative dispute resolution is unfavorable to Mr. Griffen or in general,” Pratter wrote. The plaintiff’s lawyers argued that since the Pennsylvania Antihazing Statute criminalizes hazing, arbitration would be inappropriate because only a public court proceeding would protect students and the public. Pratter disagreed, saying “the court finds no inconsistency between the important social policies protected and advanced by Pennsylvania’s Antihazing statute and enforcing agreements to arbitrate claims of hazing, because both arbitration and judicial resolution of claims focus on specific disputes between the parties involved, and both can advance broader social purposes.” In an interview, Sachs said he was “surprised and disappointed” by the ruling. Griffen, he said, will now be forced to bear the expense of private arbitration and is effectively denied appellate review of Pratter’s ruling. Sachs said he was disappointed that Pratter did not hold an evidentiary hearing because he believes the evidence would prove that the contract was unconscionable and that Griffen was “coerced” into agreeing to all of its terms. (Copies of the 18-page opinion in Griffen v. Alpha Phi Alpha Inc., PICS No. 07-0390, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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