The case involved a claim for overtime pay by a Marysville, Washington employee.??? ?The employee?s contract contained an arbitration clause that provided, among other things, an award of attorneys? fees to the prevailing party and the arbitration of disputes in Denver.?? The employer moved to dismiss the employee?s suit based on the arbitration clause.?? The Superior Court ruled for the employer and the Court of Appeals?? originally?? affirmed?? in?? a?? published opinion (120 Wn. App. 354, 85 P.2d 389). ?The Supreme Court granted review and remanded for reconsideration in light of Adler and Zuver.

On remand, Division I held that an arbitration clause providing attorneys? fees shall be awarded to the prevailing party is unconscionable, where the substantive law permits only prevailing employees an award of attorneys? fees and costs. The Court also held that the employee had shown the costs of participating in arbitration in Denver were prohibitive, even though his household income was $94,000.00. The Court found sufficient that the costs of airfare, hotel, and lost income for the plaintiff himself, his wife, his lawyer and two witnesses would have eaten up the family paycheck for the period at issue. ?The Court rejected the employer?s arguments that because the plaintiff had family in the area, it should be presumed they would offer room and board.?? The Court also rejected the employer?s claim that the arbitrator would likely allow the witnesses to testify telephonically, over the plaintiff?s objections, as a cost-saving measure. The Court, however, severed the two offending provisions and allowed the arbitration to proceed.

Walters v. AAA Waterproofing, 211 P.3d 454 (July20, 2009) (Becker, Leach, Lau).