Consumer Arbitration Agreements: 4.9.3 Application of the Doctrine
Although the Ninth Circuit has seemingly struck down the Montana rule,282 Montana cases provide good illustrations of how the knowing and voluntary waiver doctrine has worked in practice. The Montana Supreme Court has found that a ninety-five-year-old widow did not knowingly and voluntarily give up the right to a jury trial when she established a living trust with a brokerage and the fine print included an arbitration clause.283 Courts must rigorously examine such agreements.