Consumer Arbitration Agreements: 8.8.2.2.5 Incentivizing drafter overreach and contracting in bad faith
Courts hesitate to sever illegal terms when there is evidence of drafter overreach, particularly when the frequency of illegal terms or extent of illegality suggests that the drafter acted with the illegal purpose of attempting to insulate itself from the law.488 Again, there could be overlap between a court’s consideration of this factor and the first two factors.