Jerri Plummer v. Rhett McSweeney, 941 F.3d 341

Background:

In Oct. 2014 Jerri Plummer (Ark.) was contacted by a stranger who urged urgent removal of previously implanted transvaginal mesh; Plummer traveled to Florida and had surgery.
Plummer later sued multiple medical and legal defendants, including Minnesota attorneys Rhett McSweeney and David Langevin (McSweeney Langevin), alleging fraud, malpractice, and related claims.
McSweeney Langevin sought to compel arbitration under a retainer agreement Plummer signed; the agreement specified JAMS arbitration in Washington, D.C., and stated arbitration was the client’s only recourse, waiving jury trial and appeal.
The district court found a contract existed but refused to enforce the arbitration clause as unconscionable under D.C. law, citing Plummer’s alleged vulnerability, lack of contract knowledge, electronic delivery of the retainer shortly before surgery, and prohibitive arbitration costs.
On appeal the Eighth Circuit reviewed de novo, accepted the district court’s factual findings, considered whether unconscionability (procedural and substantive) barred enforcement, and assessed an alternative argument that attorneys violated ethical duties by failing to explain arbitration consequences.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Substantive unconscionability — arbitration costs prohibit access	Plummer: arbitration would be prohibitively expensive given her income and pro rata JAMS fees, making the clause unconscionable	McSweeney Langevin: arbitration clause valid; on appeal offered to pay Plummer’s share of arbitration costs	Offer to pay cured substantive unconscionability; court enforces arbitration and orders arbitration at defendants’ expense
Procedural unconscionability — lack of meaningful choice/duress	Plummer: solicited under fear of death, short time, low education, electronic bulk signing; lacked meaningful choice	McSweeney Langevin: Plummer had opportunity to seek other counsel, agreement disclosed "Freedom to Contract," she had time to investigate	Court: circumstances troubling but did not show lack of meaningful choice; procedural unconscionability not established
Who decides enforceability (delegation)	(Not pressed below)	McSweeney Langevin: arbitrator should decide unconscionability (Buckeye principle)	Defendant failed to preserve argument; court reviewed unconscionability itself and resolved it (no plain-error relief warranted)
Ethical duty / public-policy defense	Plummer: attorneys violated D.C. ethical Rule 1.4(b) by not explaining arbitration’s ramifications, rendering the clause unenforceable	McSweeney Langevin: retainer adequately disclosed arbitration, waiver of jury and appeal; no ethical-violation-based invalidation	Court assumed rule could render a contract unenforceable but found disclosures sufficient (following Haynes); arbitration clause enforceable

Key Cases Cited

Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (U.S. 2006) (party may challenge enforceability of entire contract, but delegation issues matter for who decides arbitrability)
Kindred Nursing Ctrs. Ltd. P'ship v. Clark, 137 S. Ct. 1421 (U.S. 2017) (FAA presumes arbitration agreements are enforceable like other contracts)
Urban Invs., Inc. v. Branham, 464 A.2d 93 (D.C. 1983) (unconscionability requires procedural and substantive inquiry; egregious procedural alone may sometimes suffice)
Haynes v. Kuder, 591 A.2d 1286 (D.C. 1991) (attorney-client retainer with arbitration clause upheld where disclosure of arbitration’s basic consequences was adequate)
E.E.O.C. v. Woodmen of World Life Ins. Soc'y, 479 F.3d 561 (8th Cir. 2007) (court may allow post-hoc offer to cure unconscionability concerns, including paying arbitration costs)
Dobbins v. Hawk's Enters., 198 F.3d 715 (8th Cir. 1999) (Eighth Circuit has accepted late offers to cure arbitration-cost concerns)
Kenyon Ltd. P'ship v. 1372 Kenyon St. Nw. Tenants' Ass'n, 979 A.2d 1176 (D.C. 2009) (courts may sever unconscionable terms and enforce remainder)