•  
  •  
 

Abstract

Arbitration and confidentiality clauses have become popular contract provisions for preclusion and obstruction of potential lawsuits. While such contract provisions are legitimate mechanisms under our freedom to contract, their enforcement may simultaneously run afoul of New Mexico’s strong public policy interests in consumer protection under the Unfair Practices Act. In State ex rel. Balderas v. ITT Educational Services, Inc., the New Mexico Court of Appeals heard interlocutory appeal from the defendant seeking to use a confidentiality agreement within an arbitration provision to block discovery by the plaintiff Attorney General. The court held that enforcing the arbitration provision would be contrary to public policy considering the statutory power of the AG and the policy interests of the UPA. The court raised but did not reach the question of whether a private UPA litigant would similarly be able to void enforcement of a contract clause used to shield a defendant. This Case Comment argues that, given the legislative intent, public policy, and broad jurisprudence of the UPA, a private litigant may prevail in such a case. Such a plaintiff must navigate many considerations, but the UPA presents a positive mechanism of consumer protection to potentially void a contract provision that is contrary to public policy.

Creative Commons License

Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Included in

Law Commons

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.