IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS & ST. JOHN

KERR KICK IK
JANUSZ PIWOWAR, )
)
Plaintiff, ) CASE NO. ST-2020-CV-00337
)
-vSs- )
)
LAW OFFICES OF KARIN A. BENTZ, P.C., _)
)
_Defendant'. )

Cite as: 

CORRECTED MEMORANDUM OPINION?

ql On September 28, 2020, an evidentiary hearing was held on the preliminary injunctive
relief sought by Plaintiff's Emergency Application for Temporary Restraining Order and
Preliminary Injunction.’ For the following reasons, a preliminary injunction will issue.

I. FINDINGS OF FACT.

{2 Having heard the testimony of the parties and reviewed the exhibits and pleadings on file
herein, the Court makes the following findings of fact as relevant to deciding the issue presented:
whether the Plaintiff, Janusz Piwowar, has demonstrated that he is entitled to the remedy of a
preliminary injunction pending a final determination on whether the portion of the August 20,
2013 retainer agreement requiring that any disputes between the Law Offices of Karin A. Bentz,
P. C. and her former client, Janusz Piwowar, be submitted to the American Arbitration Association
in accordance with their rules for Commercial Disputes is unconscionable and therefore
unenforceable.

"3 The Plaintiff Janusz Piwowar is a resident of Canada.

74 Piwowar’s first language is Polish. English is his second language. Piwowar can read
simple English.

; By Order of Partial Dismissal entered on October 7, 2020, the American Arbitration Association and Ava Borrasso
were dismissed from this action.

? The original Memorandum Opinion failed to inctude the citation required by Supreme Court Rule 106.

3 Plaintiff was represented by Attorney Jennifer Koockogey (Lee J. Rohn and Associates, LLC); Defendant Law
Offices of Karin A, Bentz, P.C. was represented by Attorney Charlotte K. Perrell (Dudley Newman Feuerzeig LLP);
and the American Arbitration Association was represented by Attorney Simone R. D. Francis (Ogletree, Deakins,
Nash, Smoak & Stewart, LLC).
Piwowar v. Law Offices of Karin A, Bentz, P.C. 

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5. Piwowar describes himself as a handyman involved in construction. He charges $80.00 per
hour for his work.

"6. In 2010, Piwowar purchased condominium Unit 10 at Shibui Condominiums, St. Thomas,
U. S. Virgin Islands. Upon advice of his legal counsel in that real estate transaction, title to the
condominium unit was placed in the name of a holding company: Darian Solutions, LLC. Neither
Piwowar nor Darian Solutions was engaged in any business activities in the U. S. Virgin Islands.

7. On July 30, 2013, the Board of Directors of Shibui Condominium Association filed a
Complaint and an Emergency Motion for a Temporary Restraining Order and a Preliminary
Injunction in the Superior Court of the Virgin Islands, Division of St. Thomas and St. John, in a
civil action captioned The Board of Directors of Shibui Condominium Association v. Darian
Solutions, LLC; Janusz Piwowar, and Dariusz Chudyk, and docketed as Case No. ST-13-CV-395.4

48. Piwowar has not had any legal training. Prior to the 2013 Shibui lawsuit, he had never had
any exposure to the American legal system and he had never been a party in litigation in any

capacity.

99. Piwowar had no prior experience hiring lawyers. He had leamed of his real estate attorney,
who had handled the purchase of the condominium, through his friend Dariusz Andrzejewski.
Piwowar did not know anyone on St. Thomas, so he asked his friend Andrzejewski to help him
find an attorney to respond to the Shibui lawsuit.

q10. Andrzejewski told Piwowar that the real estate lawyer could not help him in the Shibui
case,

411. Piwowar made arrangements to travel to St. Thomas and he had a limited amount of time
to look for an attorney.

qi2. Piwowar had an initial meeting with Attorney Karin Bentz (“Bentz”) in her office on
August 19, 2020.

43. Piwowar was told by Bentz that the matter was time-sensitive because he could be in
trouble with the condominium association.

{l4. Bentz did not read the retainer agreement to Piwowar. Dariusz Andrzejewski, Dariusz
Chudyk and Julita de Leon, an attorney in the Bentz Law Firm, were in the room when Piwowar
signed the retainer agreement. No one read the retainer agreement to Piwowar.

4V.1.R. EVID. 201(b); See also People In Interest of J.J.J., 59 V.1. 319, 329 (V.L. 2013) (trial court may take judicial
notice of the existence of a document that has been filed with it) and Defendant Bentz’ hearing Exhibit 3 admitted
into evidence.
Piwowar v. Law Offices of Karin A. Bentz, P.C. 

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415. Bentz placed the retainer agreement and a pen in front of Piwowar and showed him where
to sign.

416. Bentz neither explained her retainer agreement’s arbitration clause nor the AAA’s
Commercial Rules to Piwowar.

417. | Piwowar did not fully understand the retainer agreement.
418. The retainer agreement was drafted by Bentz and it was not subject to negotiation.

4!9. When the retainer agreement was presented to Piwowar to sign he was stressed and under
pressure. Shibui’s attorney had called Piwowar in Canada. Bentz insinuated that he could be ina
lot of trouble with the Shibui lawsuit and told him that the matter was urgent.

420. Bentz never told Piwowar that if they had a dispute that they, as client and attorney, would
have to present their dispute to the American Arbitration Association using the Commercial Rules.

{21. Bentz never discussed the difference between arbitration using the AAA’s Commercial
Rules as opposed to its Consumer Rules.

22. Bentz never discussed with Piwowar splitting the costs of a dispute submitted to the AAA
pursuant to the Commercial Rules.

23. The portions of the retainer agreement requiring arbitration are not differentiated from the
rest of the agreement in the way that the sections on accepted credit cards, interest charges or the
paragraph that begins with READ BEFORE SIGNING.

24. Piwowar signed the retainer agreement on August 20, 2013 on his own behalf.

25. On December 30, 2014, the Law Offices of Karin A. Bentz, P.C. filed a Motion to
Withdraw from representing all three defendants in Case No. ST-13-CV-395 for failure to pay
attomey’s fees.”

426. Atsome point, Attorney Julita de Leon left the Law Offices of Karin A. Bentz, and started
her own law practice. On February 23, 2015, de Leon filed a Notice of Appearance on Behalf of
Defendants in Case No. ST-13-CV-395.

"27. On March 19, 2015, Law Offices of Karin A. Bentz, P.C. filed a Notice of Fee Lien
claiming a lien in the amount of $41,774.02 for fees and costs as of March 19, 2015.°

> Bra of Dir. of Shibui Cond, Ass'n. v. Darian Solutions, LLC et al., Case No. ST-13-C¥-395,
6
ld.
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28. By Order entered April 21, 2015, Bentz’ Motion to Withdraw as Counsel for the
Defendants was granted.’

29. On September 3, 2015, the parties in Case No. ST-13-CV-395 filed a Joint Motion for
Dismissal with Prejudice moving for the dismissal with prejudice of the remaining unresolved
counts of the Complaint and Counterclaim with prejudice.*

130. By Order of Dismissal dated September 4, 2015, and entered on September 8, 2015, the
Joint Motion for Dismissal with Prejudice was granted and Case No. ST-13-CV-395 ended.?

431. Meanwhile, in the matter of Mohammed A. Suid v. Law Offices of Karin A. Bentz, PC and
Karin A. Bentz, Case No. 01-18-0004-1377, also before the American Arbitration Association and
involving the same retainer agreement between Bentz and her former client, the parties were
notified by letter dated November 27, 2018, from the AAA that it “has determined that this
arbitration arises out of a consumer agreement and, as such, the Consumer Arbitration Rules
(“Consumer Rules”) apply to this dispute.” The November 27, 2018 letter from the AAA goes on
to state:

We note that the arbitration provision has a material or substantial deviation
from the Consumer Rules and/or Protocol. Specifically, the provision states:

“The expenses of Mediation and Arbitration will be divided by the Client and
the Firm.”

The above provision violates Principle 6: Reasonable Cost.

932. The Bentz Law Firm’s Demand for Arbitration Consumer Arbitration Rules submitted to
the AAA is dated March 26, 2020.!!

"33. According to the August 25, 2020 Procedural Order No. | issued in Law Offices of Karin
A. Bentz, PC v. Darian Solutions; Janusz Piwowar; and Dariusz Chudyk, ICDR Case No.: 01-20-
0003-9977: “On April 6, 2020, the AAA notified the Parties that the Commercial Arbitration Rules
would apply to the dispute.'? “The Parties were further advised that any objection to application
of the Rules would need to be served at [the] time their answering statement was provided. Neither
party asserted any such objection within the time frame permitted. Accordingly, the Arbitrator
finds that objection to application of the AAA Commercial Rules has been waived.”'"? The
Procedural Order No. | goes on to state that: “Notwithstanding said waiver, the Arbitrator further

’ Def. Bentz Ex. 3.

8 Def. Bentz Ex. 3.

” Id

10 pL Ex. 1,

' Def. Bentz Ex. 12.

'2 Def. Bentz Ex. 17 and 18.
'3 Def. Bentz Ex. 18.
Piwowar v, Law Offices of Karin A. Bentz, P.C. 

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finds that the Parties agreed to application of the AAA Commercial Rules to this matter as set forth
in the Agreement dated August 20, 2013.” Procedural Order No. 1 goes on to determine that the
underlying dispute constitutes a commercial dispute, the provision calling for application of the
AAA Commercial Rules is not unconscionable in any respect and that the matter shall proceed
pursuant to the AAA Commercial Rules.'*

934. On April 13, 2020, the Bentz Law Firm paid an Initial Administrative Fee to the AAA."5

435. The Bentz Law Firm’s demand for arbitration seeks damages for legal services rendered in
the amount of $75,000.00 plus interest, attorney’s fees, costs of the arbitration and
punitive/exemplary damages.'®

36. Following the Bentz Law Firm’s Demand for Arbitration Consumer Arbitration Rules, the
arbitration proceedings captioned Law Offices of Karin A. Bentz, PC v. Darian Solutions; Janusz
Piwowar; and Dariusz Chudyk, CDR Case No. 01-20-0003-9977 before the American Arbitration
Association commenced.

§37. The Bentz Law Firm’s demand for arbitration was made pursuant to the AAA’s Consumer
Arbitration Rules.!”

938. When Piwowar received correspondence from the AAA on his doorstep, he did not
understand it and hired a law firm in Canada to assist him in finding an American lawyer because
he could not travel during the pandemic.

439. Piwowar would have to incur further debt to pay for any costs and fees associated with
participating in the AAA proceedings.

40. The expedited proceedings in Law Offices of Karin A. Bentz, PC y. Darian Solutions;
Janusz Piwowar; and Dariusz Chudyk, ICDR Case No. 01-20-0003-9977 before the American
Arbitration Association do not permit the parties to conduct discovery.

941. By letter dated April 30, 2020, Piwowar’s Canadian legal counsel wrote to the AAA
requesting a 90-day extension to appropriately respond to the arbitration proceedings due to
Piwowar’s location in Canada and the ongoing COVID-19 pandemic restricting his ability to meet
with counsel and travel."

"42. Piwowar filed his Answer and Counterclaim on April 30, 2020, denying any amount due
and claimed damages in the amount of $40,000.00 by way of refund in fees previously paid to

14 74
'5 Def. Bentz Ex. 20.
'6 Def. Bentz Ex. 12.
7 4
'8 Def. Bentz Ex. 13.
Piwowar v. Law Offices of Karin A, Bentz, P.C. 

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Bentz. Piwowar also seeks interest, attorney’s fees, costs of the arbitration and punitive/exemplary
damages.'?

"43. By letter dated May 18, 2020, Piwowar’s Canadian legal counsel wrote to the AAA
asserting, inter alia, that Piwowar did not agree to expedited proceedings and requested that the
matter be administered under the regular procedures.”” Arguing that the COVID-19 pandemic
constituted exceptional circumstances, Piwowar again requested a 90-day extension of time.

44. By letter dated June 5, 2020, Piwowar’s Canadian legal counsel wrote to the AAA
requesting that mediation and arbitration proceedings not be scheduled until Piwowar could retain
counsel licensed to practice in the United States.”'

(45. By letter dated July 23, 2020, Piwowar’s U. S. Virgin Islands counsel notified the AAA
that Piwowar objected to proceeding under the AAA’s Commercial Rules as opposed to its
Consumer Rules.

146. On July 31, 2020, Arbitrator Borrasso”’ issued an Amended Scheduling Order which
acknowledged the filing of Piwowar’s objection to proceeding under the Commercial Rules. The
Amended Scheduling Order directed that the Bentz Law Firm file its response to Piwowar’s
objection by August 24, 2020. The matter of Law Offices of Karin A. Bentz, PC v. Darian
Solutions; Janusz Piwowar; and Dariusz Chudyk, ICDR Case No. 01-20-0003-9977, was set for
a hearing on September 25, 2020 by videoconference.

47. Bentz paid Piwowar’s AAA fee in the amount of $525.00 described as “Opposing Party’s
Share of the Arbitrator Compensation Deposit” so that the AAA proceedings would advance and
not be halted by Piwowar’s failure to pay.”

"48. Bentz provided the following reasons for requiring that disputes with clients be submitted
to the AAA in accordance with its Commercial Rules: (1) speed; (2) expedited process without
discovery is less expensive; and (3) concern about making fee disputes a matter of public record
by filing in the Superior Court of the Virgin Islands.

49. Although the Amended Scheduling Order does not specify that the September 25, 2020
hearing shall be conducted by the Commercial Rules, the setting of a hearing a month later did not
provide an opportunity for Piwowar to conduct discovery.

'? Def. Bentz Ex. 14.
20 Def. Bentz Ex. 15.
2! Def. Bentz Ex. 16.
22 Arbitrator Borrasso is mis-identified in the caption as Ava Borasso.
23 Def. Bentz Ex. 20.
Piwowar v. Law Offices of Karin A, Bentz, P.C. 

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Il. STANDARD FOR THE ISSUANCE OF A PRELIMINARY INJUNCTION.

q50. In the instant case, Plaintiff does not dispute or contest that the parties have a valid
agreement to arbitrate. The Plaintiff requested a preliminary injunction against the Law Offices of
Karin A. Bentz, P.C. to stay the arbitration proceedings in Law Offices of Karin A. Bentz, PC vy,
Darian Solutions; Janusz Piwowar; and Dariusz Chudyk, CDR Case No. 01-20-0003-9977
before the American Arbitration Association, until a determination is made on the
unconscionability and, therefore, the enforceability of the provision of the retainer agreement that
requires use of the AAA Commercial Arbitration Rules and Mediation Procedures. Piwowar’s
challenge is to the arbitration provision that requires application of the Commercial Rules.
Piwowar does not challenge the retainer agreement in general. Therefore, Piwowar’s challenge
may be adjudicated by the Court,”*

q51. When ruling on a motion for a preliminary injunction, the Court must consider four factors:
(1) whether the movant has shown a reasonable probability of success on the merits; (2) whether
the movant will be irreparably injured by denial of injunctive relief; (3) whether granting
preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting
the preliminary relief will be in the public interest.° A party seeking a preliminary injunction “has
the burden of making some showing on all four injunction factors”? that amounts to “a clear
showing that [it] is entitled to [injunctive] relief.”?’

(52. Because “[ijnjunctive relief is an equitable remedy,””* and “because ‘[a] court of equity
has traditionally had the power to fashion any remedy deemed necessary and appropriate to do
justice in [a] particular case,””’? this Court must evaluate the movant's showing on all four
factors—considering them together and weighing them against each other—in order to determine
whether the movant has discharged its burden.*” Thus, “the showing on the merits may be as
minimal as simply making out a prima facie case if the showing on the moving party's likelihood
of irreparable harm is strong enough—and the likelihood that the injunction would cause
irreparable harm to the nonmoving party is low enough—to outweigh the weaker showing on the
merits.”?' Conversely, a showing of irreparable harm is “less decisive where the likelihood of
success on the merits is very strong.”°?

24 Ostroffv. Alterra Healthcare Corp., 

 (E.D. Pa. 2006) citing Buckeye Check Cashing,
Inc. v. Cardegna, 

 (2006) and Prima Paint Corp. v. Flood & Conklin Mfg. Co., 

 (1967).

25 3RC & Co. v. Boynes Trucking System. Inc., 63 V.1. 544, 557 (V.I, 2015) (quoting Marco St. Croix, Inc. v. VL
Housing Authority, 62 V.1. 586, 590 (V.1.2015)); Tip Top Construction Corp. v. Gov't of Virgin Islands, 60 V.1. 724,
739 (V.1.2014) (citing Yusuf'v. Hamed, 

 (V.1.2013)).

28 3RC & Co., 63 VL at 550.
27 tet at 557 (quoting Yusuf, 59 V.1. at 847) at 847 (internal quotations omitted) (alterations in original),
28
fd. at 553.
29 td. (quoting Kalioo v. Estate of Small, 62 V.1. 571, 584 (V.L 2015)).
30

3H td at 555 (quoting Nuuanu Valley Ass'n v. City & Cnty. of Honolulu, 

 (Haw.2008)).
32 14. at 556 (quoting District af Columbia v. Greene, 

 (D.C.2002)).
Piwowar v. Law Offices of Karin A. Bentz, P.C. 

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A. Plaintiff has demonstrated a reasonable probability of success on the merits.

153. Piwowar’s Complaint seeks: (1) declaratory judgment and injunctive relief with respect to
the unconscionability and unenforceability of Defendant Law Firm’s retainer agreement
arbitration clause requirement that any arbitration be subject to Defendant AAA Commercial
Rules; and (2) an order staying the arbitration proceedings pending a determination by this Court.*

954. On September 30, 2020, Piwowar agreed to the dismissal of the American Arbitration
Association and Arbitrator Ava Borrasso as Defendants in this matter following the filing of the
Motion of the American Arbitration Association and Ava Borrasso to Dismiss Plaintiff's
Complaint Based on Arbitral Immunity.**

q55. Piwowar’s Complaint seeks a declaratory judgment that the requirement that the parties
arbitrate under the AAA’s Commercial Arbitration Rules and Mediation Procedures is
unconscionable and therefore unenforceable. The Virgin Islands Declaratory Judgment Act
permits any person whose rights, status or other legal relations are affected by a contract to
have determined any question of construction or validity arising under the contract “and obtain
a declaration of rights, status or other legal relations thereunder.”?> Declaratory judgment is only
permissible where a justiciable controversy exists.*° The Court finds that the controversy at issue
is definite and concrete touching on the legal relations of the parties who have adverse legal
interests.>”

956. “In order to show a reasonable probability of success on the merits, [a party does not] need
to show that [it] will actually prevail on the merits at trial, or that [its] success is ‘more likely than
not,’ only that [it] has ‘a reasonable chance, or probability, of winning.””*® A party “must introduce
evidence supporting each element of [its] cause of action.”*? “Where the moving party makes out
a very strong showing on the merits—for example a clear and convincing one—injunctive relief
may still be appropriate even where the moving party's showing of [irreparable harm] is much
weaker, so long as the nonmoving party's likelihood of irreparable harm is similarly very low.” *°

33 Pl. Compl. 4 18.

34 Pl.’s Notice of No Objection to the Motion (Sept. 30, 2020).

35 V1. CODE ANN. tit. 5, § 1262.

36 Walsh v. Daly, Case No. ST-01-CV-165, 

, at *28 (V.L. Super. Ct. June 18, 2014)

(citing Companion Assurance Co. v. Alliance Assurance Co., Ltd., 

 (D.V.I. 1984)). See
also Pate v. Government of the Virgin Islands, Case No, ST-14-CV-479, 

, *10-11 (V.L.
Super. Ct. Dec. 11, 2014) (observing that, “[a]lthough the decision to entertain a declaratory action is within the

discretion of the Court, the matter must involve an actual and justiciable controversy”) (internal quotation marks
omitted).

37 ris v, Dennis, 

 (3d Cir. 1984) (citing Aetna Life Insurance Co. v. Haworth, 300 U.W., 227,
240-241 (1937).

ao Yusuf, 59 V.1. 849 (quoting Singer Mgmt. Consultants, Inc. v. Milgram, 

, 229 (3d Cir.2011)).

39 SBRMCOA, LLC v. Morehouse Real Estate Investments, LLC, 62 V.1. 168 (V.I. Super. Ct. March 12, 2015)
(citation omitted).

40 3RC& Company, Inc. v. Boynes Trucking System, Inc., 63 V.1. 544, 556 (V.L. 2015).
Piwowar v. Law Offices of Karin A. Bentz, P.C. 

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457. | Piwowar argues that he will be successful on the merits of his claim that the Bentz Law
Firm’s arbitration clause requiring the use of the AAA’s Commercial Rules is unconscionable
and therefore unenforceable. The section of the retainer agreement at issue provides:

Questions or disputes as to the amount of a statement shall be brought to the
attention of the Firm within fifteen (15) days of receipt of the bill. The statement
will be reviewed and you may be charged for this time unless that statement is
in error. If Agreement cannot be reached, the matter shall be submitted to
Mediation first and then to the American Arbitration Association in accordance
with their rules for Commercial Disputes for a final binding and judicially
enforceable arbitration award concerning amounts due. Any other disputes or
claims between Client and Firm may be resolved in accordance with the rules of
the American Arbitration Association for Commercial Disputes. The expenses
of Mediation and Arbitration will be divided by the Client and the Firm.

(1) Procedural Unconscionability

158. In order to find that a contract provision is unconscionable, both the procedural and
substantive elements of unconscionability must be shown.*' “Generally, a contract or provision
thereof is procedurally unconscionable if it constitutes a contract of adhesion."* “A contact of
adhesion is one prepared by the party with excessive bargaining power and presented to the other

party on a take-it-or-leave-it basis.”** The burden is on Piwowar to prevail on his unconscionability
claim:

Unconscionability encompasses both procedural and substantive
unconscionability, and the party seeking to invalidate a contract on this basis
bears the burden of showing both. Procedural unconscionability may exist, for
example, with a contract of adhesion—where one party has no meaningful
choice regarding acceptance—or, where the contract drafter obfuscates terms
with convoluted or unclear language.4

959. The paragraph containing the arbitration provision in question is located on the third page
of a four-page document and is not differentiated or contrasted against the body of the agreement
unlike the separate paragraph in all capitals for the section regarding interest charges on unpaid

41 See Allen v. Hovensa, 59 VI. 430, 440 (V.1. 2013) (“...the mere fact that a contract is adhesive does not-without
more—render it unconscionable.”).

“2 Moore v. Hovensa, LLC, 47 V1, 104, 107 (V.1. Super. June 22, 2005) (internal citations omitted).

“3 Id at 107 (citation omitted); Williams v. Groundwater & Envtl. Servs. Inc., Super. Ct. Civ. No. SX-18-CV-552

, at *3 (V.1. Super. Jan. 8, 2020).

44 Valentin v. Grapetree Shores, Super. Ct. Civ, No. SX-11-CV-305, 

 *5 (V.I. Super. Ct. June

30, 2015) quoting Browne v. Acuren Inspection, Inc., 

, *2, 

, *4—5
(D.V.I. Mar. 31, 2014).
Piwowar v. Law Offices of Karin A, Bentz, PC, 2020 Vi Super 88U
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balances owed to the Bentz Law Firm. In contrast, a dispute resolution clause that was printed in
all caps on a receipt that the plaintiff signed when he checked into a resort hotel was not found to
be an unfavorable “buried” term.

60. On page 3, two paragraphs below the arbitration provision, the retainer agreement states:

READ BEFORE SIGNING: Read this Contract carefully before
signing and retain a copy. ASK ANY QUESTIONS BEFORE SIGNING. Your
signature acknowledges you understand the Contract and agree to all its terms.
Please review the foregoing and, if it meets with your approval, sign a copy of
this letter and return it to me by facsimile and the original by mail. If you have
any questions, please feel free to call me.

61. In the case at hand, the retainer agreement was presented by Bentz to Piwowar on a take-
it-or-leave-it basis.“© The retainer agreement was not subject to negotiation. Bentz placed the
agreement and pen in front of Piwowar and told him where to sign. Piwowar testified that he signed
the retainer agreement because he wanted Bentz’s help. If he did not sign it, then he would not
have legal representation in the Shibui lawsuit. Piwowar thought the situation was urgent and this
was underscored by the fact that once hired, Bentz’s associate attorney Julita de Leon called
opposing counsel on the same day the retainer agreement was signed to request an extension of
time to file an answer and counterclaim.*”

62. It is not disputed that: Bentz drafted the retainer agreement containing the arbitration
clause. She testified that she adopted the retainer agreement from an ABA Law Practice and
Management book since 1996 and that this form was used for all of her hourly cases. Bentz had
no independent recollection of reviewing the agreement with Piwowar. Rather, she couched her
response with she “would have gone over everything” with Piwowar on the 19" of August and
that “I believe we discussed what we normally discussed [with new clients]...”.

63. The Court finds that Bentz was the more financially powerful and sophisticated party as
compared to Piwowar. Bentz argues that Piwowar has much more business acumen than he will
admit to possessing because: he purchased a condominium in the name of a limited liability
company (on the advice of his real estate counsel Attorney David Bornn); that he lent money to
his erstwhile partner Darius Chudyk and to Bentz’s former associate, Attorney Julita de Leon and
that these transactions were documented by promissory notes and mortgages. However, Piwowar
did not prepare the promissory notes and mortgage documents for these transactions focused on
by Bentz as supposed proof of Piwowar’s sophistication.

45 Id at *5,

“8 Berrios v. Hovic, No. CIV. 05-CV-192, 

, at *5 (D.V.L June 9, 2010)

(A contract that is prepared by the party with greater bargaining power and presented to the other party on a take-it-
or-leave-it basis is known as a contract of adhesion and is generally found to be proceduraily unconscionable (citations
omitted)); Moore v. Hovensa, LLC, 

 (V.L Super. June 22, 2005) (“A contract of adhesion is one prepared
by the party with excessive bargaining power and presented to the other party on a take-it-or-leave-it basis. See Trailer
Marine Transp. Corp. v. Charley's Trucking, Inc., 20 V.1. 28 (V.I. Super. Ct. 1984).

47 Pls Ex. 2.
Piwowar v. Law Offices of Karin A. Bentz, P.C. 2020 Vi Super 88U
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64. Piwowar testified with an obvious accent and with the syntax of a non-native English-
speaker. He testified that he could read simple English. While Bentz did not cause Piwowar’s
predicament of having to retain legal counsel in order to respond to the lawsuit in 2013, she did
emphasize the urgent and serious nature of the litigation indicating that a lien could be placed
against his condominium unit and insinuating that he could lose the unit. There is no evidence that
Bentz explained her retainer agreement to Piwowar or that she offered to. Piwowar and Bentz
never discussed the arbitration clause or the use of the AAA’s Commercial Rules. She did not read
it to Piwowar, and he testified that while he read the retainer agreement as best as he could under
the circumstances, he did not understand it. Nor did Bentz ever explain to Piwowar the difference
between proceeding under the AAA’s Commercial Rules as opposed to the Consumer Rules.

(2) Substantive Unconscionability.

(65. “[S]ubstantive unconscionability refers to terms that unreasonably favor one party to
which the disfavored party does not truly assent.”** When Piwowar signed the retainer agreement,
he was not aware that the AAA’s Commercial Arbitration Rules require that all expenses of the
arbitration including the administrative fees and the arbitrator’s fees, with the exception of the
filing fee, be shared equally between the parties.” In this case, the arbitrator’s hourly rate is $595
for study time and $4,165.00 for each additional hearing day. Piwowar testified that he charges
$80.00 for his work.

66. Commercial Rule 54 regarding expenses provides “[t]he AAA may, in the event of extreme
hardship on the part of any party, defer or reduce the administrative fees.” R-54 does not address
reduction of the arbitrator’s hourly rate or fee.

"67. Piwowar argues that by requiring the use of the Commercial Rules, the Bentz Law Firm’s
retainer agreement has made the arbitral forum prohibitively expensive. Under the Commercial
Rules, Piwowar would have to pay, in addition to his attorney’s fees, one-half of the following:
AAA’s administrative fees and the arbitrator’s compensation. While Bentz has paid Piwowar’s
share of the arbitrator’s compensation deposit, this payment does not include additional AAA
administrative fees and future charges for the arbitrator’s time, in the very likely event that the
hearing exceeds one day, and time spent by the arbitrator considering the evidence and preparing
the arbitration award. By requiring Piwowar to arbitrate under the Commercial Rules, Bentz
effectively placed one-half of the cost of arbitration on Piwowar. If the retainer agreement required
that the parties arbitrate under the Consumer Rules, then the Bentz Law Firm would be required
to pay the following™:

48 Uyen Le v. Treasure Bay VI Corp., No. SX-16-CV-316, 

, at *4 (V.I. Super. Feb. 27, 2017)
(quoting Canton v. Toyota Motor Corp., Super. Ct. Civ. No. SX-10-CV-227, 

 (VI. Super. Ct.
April 20, 2011).

# R-54 (Def. Bentz Ex. 19-A)

°° Def. Bentz. Ex. 19 at page 33.
Piwowar v. Law Offices of Karin A, Bentz, P.C. 

Case No. ST-2020-CV-00337

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Filing fee: $1,700.00
Hearing fee: $ 500.00
Arbitrator Compensation: $1,500.00 per hearing per day

68. Under the Consumer Rules, Piwowar would not have to pay any fees unless he filed a
demand for arbitration in which case the filing fee is $200.00.°' Based upon the foregoing, the
Court finds the requirement to proceed under the Commercial Rules unreasonably favored the
Bentz Law Firm, which was the party with the greater bargaining power.

q69. The Court acknowledges that in light of the Covid-19 pandemic, the arbitration hearing
will be conducted remotely by video conferencing thereby eliminating the costs that would have
been incurred if the arbitrator, parties, and witnesses had to travel to a designed location for the
hearing.

70. Piwowar also argues that the expedited proceeding directed by Arbitrator Borrasso, which
does not allow discovery, makes the arbitration clause in the retainer agreement substantively
unconscionable. The Court notes that Consumer Rule 22 provides for the exchange of information
such as documents, specific information, and witnesses between the parties before the hearing, but
there are no specific provisions regarding discovery as opposed to Commercial Rule 11.
Interestingly enough, Rules 22 and 23 acknowledge that “to otherwise achieve a fair, efficient and
economical resolution of the case...” the arbitrator has the authority to issue any orders regarding
the conduct of document requests.*?

71. Bentz never explained to Piwowar the difference between proceeding under the AAA’s
Commercial Rules as opposed to the Consumer Rules. Given Piwowar’s ability to read only simple
English and that he did not fully understand what he was reading, the Court finds that Piwowar
did not truly assent to using the Commercial Rules.

72. The Bentz Law Firm relies heavily upon Farrell v. Grapetree claiming that “this Court
rejected the argument that an arbitration agreement is unconscionable as a result of the application
of Commercial Rules”°? However, Farrell v. Grapetree is distinguishable from the case at hand in
at least two aspects. First, in Farrell v. Grapetree, the underlying Membership Agreement stated
that the arbitrator will decide which rules apply. Second, the Court in Farre//! determined that the
underlying Membership Agreement

attempts to prevent potential unconscionability from being imposed on the
Plaintiff by including a provision, which states that “[i]f you cannot afford the
Administrator's [AAA] fees or you believe they are too high, we will consider
in good faith any reasonable written request for us to bear the cost.” We will not

51 Id
>2 Def. Bentz Ex. 19-A.

53 Defendant Bentz’s Closing Brief and Opposition to Plaintiff's Motion for Entry of a Preliminary Injunction at
page 10 (October 2, 2020}.
Piwowar v. Law Offices of Karin A, Bentz, P.C. 

Case No. ST-2020-CV-00337

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ask you to pay or reimburse us for any fees ....” Given this provision the Court
finds that the arbitration agreement is not unconscionable and therefore
enforceable.**

Such a provision (addressing the inability of a party to pay) was not included in the retainer
agreement requiring the parties to arbitrate their dispute using the AAA’s Commercial Rules.

473. Finally, while Farrell v. Grapetree is instructive with respect to the elements of
unconscionability, the decision of a single Superior Court judge is not binding precedent on other
Superior Court judges.”

474. Based upon the foregoing, the Court finds Piwowar has shown that he has reasonable
probability of success on the merits of his action for declaratory relief seeking a declaration that
the retainer agreement arbitration clause requiring that any arbitration be subject to the AAA’s
Commercial Rules is unconscionable and unenforceable. Therefore, this showing by Piwowar
weighs in favor of granting the requested preliminary injunction.

B. Plaintiff has demonstrated that he will suffer an irreparable injury if an
injunction does not issue.

475. “[A] party moving for a preliminary injunction must demonstrate primarily that irreparable
harm is likely without the injunction.”°° Irreparable harm is “harm for which a monetary award
does not adequately compensate....”°’ “When the moving party's loss is a matter of simple
mathematic calculation, [the movant] fails to establish irreparable injury for preliminary injunction
purposes.”>* Irreparable injury is suffered where monetary damages are difficult to ascertain or are
inadequate.*? Because “the basic purpose of a preliminary injunction is to protect the movant from
irreparable injury that would occur before a full trial took place,” the Court is only concerned
with whether the injuries that Plaintiffs suffer—if any—between now and the trial of this matter
are irreparable in nature.

76. Proceeding under the AAA’s Commercial Rules will be prohibitively expensive for
Piwowar. He has testified as to his personal financial problems caused by the Covid-19 pandemic.
If forced to proceeding under the Commercial Rules, his only options are to add to his current debt

** Farrell v. Grapetree Shores, Inc,, No. SX-12-CV-358, 

, at *3 (V.I. Super. Oct. 25, 2019).
3 tn the Matter of O. G., 60 V.L. 654, 661 n.8 (V.1. 2014) citing Threadgill v. Armstrong World Indus., 

, 1371 & n.?7 (3d Cir.1991) (“The doctrine of stare decisis does not compel one [trial] court judge to follow
the decision of another.”) (collecting cases); Edney v. Edney, 

, 665 1.2 (V.L 2016).

98 Id. at 554.

57 td at $$4 (quoting Yusuf'v. Hamed, 59 V.1. 841, 854 (V.1.2013)).

58 Yusuf'y. Hamed, $9 V.1. 841, 854 (V.I. 2013).

>? Gourmet Gallery Crown Bay, Inc. v. Crown Bay Marina, L.P., 68 V.1. 584, 597 (V1. 2018).

6° 3RC & Co., Inc. v. Boynes Trucking Sys., Inc, 63 V1. 544, 559 (V.1. 2015) (citations omitted).
Piwowar v. Law Offices of Karin A, Bentz, P.C. 

Case No. ST-2020-C V-00337

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by borrowing more money, or to simply fail to pay the expenses of arbitration and any arbitrator’s
fees. If he proceeds under the expedited schedule implemented by the Arbitrator pursuant to the
Commercial Rules, then he will not have the benefit of discovery to help defend against a
$75,000.00 claim.

977. On March 19, 2015, the Bentz Law Firm filed a Notice of Fee Lien in the amount of
$41,774.02 for fees and costs as of March 19, 2015. The Bentz Law Firm’s demand for arbitration
now seeks the sum of $75,000.00 plus interest, attorney’s fees, costs of the arbitration and
punitive/exemplary damages. The amount claimed by the Bentz Law Firm has almost doubled. In
light of the financial hardship and the expedited proceedings which do not allow for any discovery,
the Court finds that Piwowar will suffer irreparable injury if an injunction does not issue restraining
the Bentz Law Firm from forcing him to arbitrate under the AAA’s Commercial Rules.

78. | Piwowar has demonstrated he will suffer irreparable injury if an injunction preventing the
parties from arbitrating under the AAA’s Commercial Rules if the status quo is not preserved and
an injunction does not issue. This factor weighs in favor of granting the preliminary injunction.

Cc. Plaintiff has demonstrated that the balance of hardships favors the issuance
of an injunction.

79 Bentz testified that she has been harmed because she has had to notify her carrier, that she
has not been paid the attormey’s fees and costs she claims are owed, and she has lost a day of
billable hours by having to testify at the hearing on the Motion for Preliminary Injunction.
However, Bentz did not address the issue of whether she would have had to notify her insurance
carrier anyway with respect to Piwowar’s counterclaim filed in the arbitration proceedings initiated
by her law firm. As for losing billable hours, this will also occur when testifying in the arbitration
proceedings. Piwowar has also argued that the Bentz Law Firm still has the option of filing an
action in the Superior Court against him. However, Bentz argues that this latter option does not
have the confidentiality attendant to arbitration, and there is the delay caused by judges’ recusals.
The Court finds that the harm to Piwowar by being forced to arbitrate under the more expensive
Commercial Rules on an expedited basis outweighs any hardships to the Bentz Law Firm and,
therefore, favors the issuance of the injunctive relief sought by Piwowar. This factor weighs in
favor of granting the preliminary injunction.

D. The issuance of a preliminary injunction in this matter will serve the public
interest.

480. The public interest will be served by the issuance of a preliminary injunction because
persons who hire attorneys, oftentimes when a matter is time-sensitive should not unwittingly enter
into arbitration clauses that cause them to pay for a dispute resolution procedure selected by the
Piwowar v. Law Offices of Karin A, Bentz, P.C. 

Case No. ST-2020-CV-00337

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party in the superior bargaining position. “Further, ‘the public interest ... factor will typically favor
the moving party ‘if [it] demonstrates both a likelihood of success on the merits and irreparable
roe 9996

injury.

Il. CONCLUSION

481. Having evaluated Piwowar’s proofs of the four preliminary injunction factors on a sliding
scale analysis, the Court finds that the factors weigh in favor of granting Piwowar’s Motion for
Preliminary Injunction until a trial on the merits. An Order consistent with this Memorandum
Opinion shall follow.

Dated: \o|30[2020 RAUL NALD

DENISE M. FRANCOIS
Judge of the Superior Court of the Virgin Islands

ATTEST:

TAMARA CHARLES
Clerk of the Court

LOKI BOYNES |

/ r
Chief Deputy Clek Il» Q-, JOGO

®! Fenster v. Dechabert, Super. Ct. Civ. No. SX-16-CV-343, 

, at *9 (V.L Super. July 13, 2016)
citing 3RC & Co. v. Baynes Trucking Sys., 63 V1. 554, 557 (V1. 2015).