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'Challenger pays' fee clause is struck.

Byline: Peter Vieth

A private school's enrollment contract requiring parents to pay the school's fees and costs in any litigation, regardless of which side prevails, is unenforceable, a Fairfax circuit judge held in a declaratory judgment action brought by a parent.

Judge David Bernhard ruled that the fee-shifting clause was unconscionable and struck it.

The case, McIntosh v. Flint Hill School (VLW 018-8-083), is the first step in anticipated litigation between a family and the school over termination and barring from campus of a coach whose daughter attends the school.

Harris D. Butler III of Richmond and Cyrus Mehri of Washington, DC, represent the plaintiff.

Butler said the dec action was filed to determine if in fact the "challenger pays" clause in the school's enrollment contract was valid.

According to Bernhard's opinion, the contract has this clause: "We (I) agree to pay all attorneys' fees and costs incurred by Flint Hill School in any action arising out of or relating to this Enrollment Contract."

The requirement is unusual if not unprecedented. Butler said he had never seen such an attorneys' fee provision before. He added that a different judge in Fairfax who heard a different issue in the case "took a straw poll" of his colleagues, and they had never seen it either.

Butler said he found two cases from New York with a similar issue, and in both the fee clauses were struck down.

In his analysis, Benhard wrote that "the contract clause before the court is more than unwise or unfair, it is unconscionable."

He said the school's agreement was an adhesion contract. Such a contract is not unconscionable per se, he said, while noting that this one "does rise to such level."

Parents are presented with the contract in order for their children to attend the school. "Assent to the contract's terms is done by online electronic signature leaving no room for bargaining," the judge wrote.

He also said the contract clause was against public policy.

"The Enrollment Contract calls for attorneys' fees and costs in favor of defendant irrespective of their reasonableness and the results obtained," Benhard said.

"This provision is void as against public policy in contravening the public welfare significantly barring potentially meritorious resort to the courts by plaintiff, and in flouting the corollary principle expressed in the Rules of Professional Conduct not to punish the prevailing party in litigation with payment of the loser's expenses," he concluded.

Reston lawyer Timothy B. Hyland, who represents Flint Hill, could not be reached for comment.

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Title Annotation:McIntosh v. Flint Hill School, Fairfax Circuit Court, Virginia
Author:Vieth, Peter
Publication:Virginia Lawyers Weekly
Date:Sep 25, 2018
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