Employment Contract and Unconscionability

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While Al-Safin was still employed by Circuit City, the DRRP was amended, effective December 31, 1997 (the “1998 DRRP”). The 1998 DRRP was essentially the same as the 1997 DRRP, except that Rule 19 was amended to state that “all claims arising before alteration or termination shall be subject to the [DRA] and corresponding [DRRP] in effect at the time the Arbitration Request Form and accompanying filing fee is received by the Company.” (Emphasis added.) The result of this modification would be that any arbitration filed in 2003 would be governed by the DRRP in effect in 2003, as opposed to the DRRP in effect when the claim arose.
Al-Safin continued to work for Circuit City after the 1998 modification until his employment was terminated in November 1998.
On December 2, 1999, Al-Safin filed a complaint against Circuit City in the United States District Court for the Western District of Washington alleging violations of both federal and state anti-discrimination laws. Circuit City filed a motion to compel arbitration, which was denied, and Circuit City appealed.
Effective December 31, 2002, long after Al-Safin was terminated by Circuit City, and over three years into this litigation, the DRRP was again amended (the “2003 DRRP”). The 2003 DRRP modified many of the provisions that have been deemed unconscionable or unenforceable in other proceedings.
One week after adopting the 2003 DRRP, Circuit City renewed its motion to compel arbitration and argued that under the new DRRP the arbitration agreement is enforceable.