How Much Risk Is Too Much Risk When It Comes To PFAS?

Identifying per- and polyfluoroalkyl substances (“PFAS”) as a major environmental issue is no longer open for discussion. It is one of the nation’s biggest environmental problems. We know that both nationally and locally, the Environmental Protection Agency and the states are struggling to determine how to address this problem. Given the pervasive nature of PFAS compounds and the extremely low levels at which health impacts have been encountered, the regulators and other decision-makers (including banks who need to evaluate loans) are faced with the practical determination of what risks are acceptable between protecting human health and promoting economic development

This blog intends to initiate the discussion of what constitutes acceptable risk. Two recent events have altered the risk. First, EPA established an enforceable Maximum Containment Level for drinking water of 4 parts per trillion. Second, EPA specified that certain PFAS and PFOA are considered hazardous wastes under Superfund.

Given this scenario, it is important to identify the factors decision makers should utilize in determining if investigation and/or remediation of PFAS is required. The following is a list of some key factors:

1. Is there a likely source of known PFAS contamination on-site? Some states have lists of operations or land uses likely associated with PFAS. If your operations and uses are not on such a list, sampling for PFAS should not be needed. For example, in Connecticut, Part 4 of the Environmental Condition Assessment form provides a list of likely PFAS sources.

2. If PFAS are located on-site, did they originate from an off-site source? This may require upgradient sampling to determine if the PFAS have migrated on-site from an off-site release.

3. Is there potable water nearby or on-site? This may result in a need for investigation/remediation regardless of whether the site is currently in a regulatory program.

4. Is there a history of firefighting foam being used on the property or does the property contain certain fire suppression systems?

Example: A site in an area with degraded groundwater quality, not in a regulatory program and not performing operations anticipated to generate PFAS should not be required to perform PFAS sampling.

Many states have yet to determine appropriate regulatory standards. Such standards and viable treatment methods will certainly be developed in the near future. The sky is definitely NOT falling. However, PFAS and PFOS are undisputedly a big problem and would best be resolved through cooperation between the regulators and regulated community. It appears that the federal government and the states are hoping to develop programs that will balance the interest of protecting health and maintaining our economy. We need to work together!

EPA Promulgates Regulations Concerning PFAS Chemicals Drinking Water

The Environmental Protection Agency (“EPA”) and the Biden Administration announced the first federal regulations regarding the presence of per- and polyfluoroalkyl substances (“PFAS”) in drinking water. Known as “forever chemicals” because of their resistance to breaking down in the environment, PFAS present significant health risks. While PFAS are found in a myriad of consumer items, one of the primary sources of human exposure is through drinking water.

These regulations aim to reduce the concentration of PFAS in drinking water by establishing enforceable levels of PFAS in the roughly 66,000 public drinking water systems across the country. Within three years, all public drinking systems must monitor, measure, and publish their respective PFAS levels. And within five years, all systems above regulatory criteria must implement remedies that will successfully reduce PFAS concentrations.

Depending on the specific PFAS compound (of which there are thousands, though only six are included in the regulations), EPA has set maximum contamination levels as low as four parts per trillion. Although unenforceable, EPA also set containment level goals for some PFAS compounds even lower than that. Individual states may further regulate PFAS, though these EPA regulations represent the maximum containment levels that the states may permit.

The federal government has no authority to regulate most communities who procure drinking water from private wells. Nevertheless, EPA recognizes that PFAS contamination is widespread and may impact well owners. To address this shortcoming, EPA is funding a grant program to the states to help small and disadvantaged communities address PFAS contamination in private wells. It is still unclear just how much funding will go towards mitigating PFAS levels in private wells, or even how this will work from a practical perspective. Thus, while it is encouraging that EPA has given this topic some thought, the path for private well owners to acquire funding to measure and remedy the PFAS issues is still murky at best. This is not an issue which requires well owners or industrial facilities to take any regulatory action at this time. However, it is certainly an issue worth watching.

If you have any questions on this topic or other environmental issues, please call Eric Jacobi at (434) 260-7978. Jacobi & Case, P.C. has offices in Connecticut and Virginia and has been practicing environmental law for almost 37 years.

The Problem with PFAS

One major environmental issue plaguing the country right now is the ubiquitous presence of PFAS. PFAS stands for Per- and Polyfluoroalkyl Substances, and they are synthetic chemicals that have been used in firefighting foam as well as in a litany of consumer products including cookware, paints, electronics, sealants, and lubricants, among many others. The problem is that these substances do not break down in the environment. Given their strong chemical bonds, PFAS have gained the moniker of “forever chemicals.” Furthermore, PFAS exposure has been associated with adverse health effects at very low levels. The extent of these adverse health effects (and how they are impacted by a myriad of factors) are still being studied.

In Virginia, the Department of Environmental Quality (DEQ) and the state legislature have been actively evaluating the PFAS problem. In 2022, the Virginia General Assembly appropriated funds to conduct PFAS sampling throughout the Commonwealth. In 2023, the General Assembly passed a law requiring certain industrial users discharging to Publicly Owned Treatment Works to test for PFAS.

This is just the beginning. Many states have already begun to develop regulatory criteria. The United States Environmental Protection Agency, of course, is also developing regulatory standards.

There is no doubt that this is a problem that will impact the industrial and commercial sectors in Virginia and throughout the country. We will keep you apprised of regulatory and statutory activities in Virginia.

Jacobi & Case is a law firm with offices in Virgina and Connecticut. We have substantial experience in Environmental Law going back to 1976. If you have any questions, feel free to contact Eric Jacobi at our Charlottesville office at (434) 260-7978.

Using Environmental Experts in Commercial Negotiations

Too often we only think of employing environmental experts in an adversarial context. In truth, battles between experts rarely assist in advancing negotiations and often become the issue that unnecessarily kills deals.

We suggest a change in strategy. Utilize your experts earlier in the negotiating process, before the process becomes adversarial. How do we do this?

 

THE RIGHT CONSULTANT

1) Select the right consultant. First, retain one who is proficient in the required field of expertise (for example, remediation strategy, hazardous waste disposal or regulatory familiarity). Second, the environmental consultant should be someone who looks for solutions. Third, the consultant should not have a reputation as a hired gun who would rather “win” than facilitate the completion of the deal.

 

DEFINE THE BIG ISSUE

2) If there is a critical issue which may significantly affect the deal, identify it and define it from a technical perspective as soon as possible. Hoping it will go away is rarely a viable solution.

 

DOES THE LAW APPLY TO YOU?

3) If the outstanding issue involves the potential applicability of a state or federal statute, try to resolve any ambiguity prior to the commencement of negotiations. Unknowns may result in a huge expenditure of time and money as counsel tries to protect its clients from uncertainty through contract drafting.

 

REASONABLY QUANTIFY COSTS

4) Similarly, if the uncertainty involves issues pertaining to the likely cost of investigation/remediation, obtaining a reasonable cost estimate may help the parties and lenders narrow the range of anticipated costs.

In summary, consider utilizing environmental experts earlier in the transaction process. It may save time and money. Furthermore, if there is a “deal breaking issue”, the earlier the parties discuss it, the less time is wasted.

If you have any questions related to this blog please contact Attorney Eric Jacobi via email at ejacobi@jacobicase.com or via phone at 434.260.7978.

How Landlords Can Protect Health & Avoid Liability During Covid-19

States have needed to continuously update their coronavirus response protocols as infection rates rise and as the world learns more about the Covid-19 pandemic. Moreover, the Centers for Disease Control and Prevention (CDC) also provides guidance that states, business owners, and landlords should follow. Landlords and businesses are expected to keep up with the myriad changes, implement programs and policies in accordance with the protocols and guidelines, and take new precautions as the situation evolves.

Both landlords and businesses may face liability if they fail to adhere to the protocols and rules, or fail to adapt to changes quickly enough, even when the precautions are already taken would have been viewed as sufficient just days before. Many states invite whistleblowers to report noncompliance, and failure to abide by the applicable rules can lead to fines and possibly even lawsuits. Accordingly, it is important that landlords and business owners promptly identify the applicable rules and protocols, that they implement compliant programs and policies so that people stay safe, and that owners mitigate their potential liability.

Although each state has different rules, the CDC and state guidelines provide that landlords generally are responsible for maintaining and cleaning common areas. This includes lobbies, communal bathrooms, hallways, and stairways. The CDC provides detailed guidance on the types of cleaning solutions that should be used. Owners of office buildings should also increase ventilation and circulate outdoor air where possible. The particular details, however, often present unique challenges to landlords who are used to operating under one set of rules, only to discover a different set now applies.

As a firm with offices in Connecticut and Virginia, we will be focusing this document on the law of these two states. Under Connecticut law and CDC guidance, landlords should develop a cleaning plan to ensure their buildings remain safe. In addition to thoroughly cleaning the common areas, buildings should post signs displaying the updated policies, including social distancing, use of masks, and ordering people to go home if they are sick. Facilities are encouraged to complete a self-certification to receive a “Reopen CT Badge” which advertises that the building adheres to Connecticut’s rules.

Business owners and landlords should be aware that Governor Ned Lamont has reverted back to Phase 2.1 in Connecticut. While marketed as a “slightly modified version of Phase 2,” this stage introduces several material changes that can confuse even careful observers [1].

[1] “Latest Guidance,” Connecticut Covid-19 Response; available at: https://portal.ct.gov/Coronavirus/Covid-19-Knowledge-Base/Latest-Guidance (Nov. 6, 2020).

For instance, private gatherings in indoor commercial venues may have no more than 25 people, the same as in Phase 2. However, private gatherings in outdoor commercial venues can have no more than 50 people (far fewer than the 100 allowed in Phase 2). A commercial venue could receive fines for hosting a group of 75 people, mistakenly thinking the gathering was still legal under Phase 2 rules. It is important to note that the capacity requirements vary depending on the type of business, so it is essential to check with the Phase 2.1 regulations before implementing a capacity policy for your business or building.

Overall, restrictions under Virginia law are similar. Owners must ensure that social gatherings are limited to 50% of the event spaces’ occupancy or 25 people, whichever is less. However, one particularly unique aspect is that different parts of the Commonwealth can operate under different sets of rules. For instance, until recently, it was only restaurants in the Eastern Region of Virginia which were required to stop selling alcohol in restaurants at 10 PM. A restaurant chain’s Virginia Beach location, therefore, had different responsibilities than the same restaurant’s Alexandria location.

Landlords and business owners must be diligent to ensure compliance with rules and guidance promulgated by the CDC. It is better to proactively avoid problems than to react to accusations or respond to whistleblower complaints or even lawsuits. Landlords and business owners should be vigilant in complying with the state rules to mitigate potential liability. The stakes go beyond just avoiding a fine; these actions also help save lives. And regardless of the financial penalties, the public relations problems alone should incline landlords to comply with the rules.

Legal counsel can help you navigate the Covid-19 rules so that buildings avoid noncompliance, mitigate potential liability, and minimize the risk of spreading Covid-19. Jacobi & Case has trained lawyers in both Connecticut and Virginia who are available to answer questions.

Essential Legal Issuses in Purchasing Mult-Family Investment Properties

Investing in multi-family property is a great way to build wealth. Multi-families are also great first investments for new investors looking to make a smaller purchase to get their feet wet before buying something bigger. However, when buying a multi-family property there are a number of legal issues that every real estate investor should be aware of that do not arise when purchasing a condominium or single-family home. I have outlined three important issues to consider when purchasing a multi-family property.

1. ZONING: IS THE PROPERTY A LEGAL MULTI-FAMILY PROPERTY?

One of the first things I advise clients buying multi-families is that they need to understand whether the property is a legal multi-family. This comes in two forms: it must be either a permitted use under the current zoning regulations or a “legally non-conforming” property. If it is neither, then the purchaser may be in for serious problems down the road. That is why every investor should understand the zoning issues that can arise when purchasing a multi-family property and how to navigate through them.

If the multi-family property is a permitted use under the zoning regulations, then you can rest comfortably that the property’s use does not violate the zoning regulations. However, what if the multi-family is in a zone where a multi-family property is not a permitted use? Is it an illegal use, and therefore should a buyer shy away from the purchase? Not necessarily?

The multi-family property may be a legal non-conforming use. A property is considered legally non-conforming if the use complied with the zoning requirements prior to the date that the town changed the zone to remove such use from that zone. For example, if a multi-family was a permitted use in the R2 Zone in 1999 and the town thereafter removed multi-family from the R2 zone, as long as the property was in use as a multi-family prior to the change of zoning it can continue as a multi-family property after the change of zoning as a “legally non-conforming” property.

However, it is possible that an owner illegally converted property to a multi-family property in a zone that does not permit it. This would mean the property is an illegal multi-family, and is, therefore, a property you do not want to purchase. This is why it is important to explore the zoning and the history of the property to make sure you do not purchase a property that violates the zoning regulations. As long as the property is in a zone that permits multi-family or the property is legal–nonconforming, you can safely purchase the property. Make sure you ask your attorney these questions as part of your due diligence activities.

2. PROTECT YOURSELF: CREATE A LIMITED LIABILITY COMPANY (LLC) TO LIMIT LIABILITY

Buying a multi-family, or any property with tenants is a transaction that comes with risks and potential exposure to liability. For example, what if a tenant slips and falls and files a lawsuit against you arguing that her injuries are a result of you failing to comply with your obligations under the lease? What if a tenant accidentally starts a fire that spreads and causes damage to other homes in the surrounding neighborhood? These are examples of the inherent risks in buying multi-family properties. One important thing you can do to limit your liability is to create a Limited Liability Company (LLC) and to take the title in the name of the LLC.

Taking title in the name of the LLC will limit your liability to the value of the Property and will insulate you from most personal liabilities. Since the LLC is the owner of the property, any lawsuit concerning the property properly names the company as the defendant and not you individually. Since the LLC’s only asset is the property, the maximum exposure from any lawsuit is the value of the property. In other words, any judgment obtained by a tenant, neighbor, or other potential plaintiffs may only look to the company’s assets to satisfy the judgment and not your personal assets. If the property was owned by you individually, a plaintiff could look to your personal assets (bank accounts, other real estates, etc.) to satisfy a judgment.

Setting up the LLC may seem like a simple process, but there are various things to consider. For example, if you are creating an LLC with more than one member, you should think about the authority of each member. Drafting a detailed operating agreement will prevent problems between members in the future.

3. TENANTS AND LEASES: DO YOUR DUE DILIGENCE

When buying any property with tenants, it is essential to do your due diligence with respect to the tenants and the leases. As an investor, you want to make sure that the tenants are current on the rent. You do not want to purchase the property only to learn that the tenants are six months behind on the rent and are vigorously fighting an eviction lawsuit. Therefore, it would be prudent to request that the seller sign a document called an estoppel certificate. This document will require the Seller to make a representation that the leases are in full force and effect and that the tenant, and current on the rent.

It is also prudent to review each lease with your attorney. You should be aware of the termination date of each lease and whether the tenant has the option to renew. If the leases are to terminate a month after closing, you should be prepared for the possibility of vacancies. Moreover, if the tenants have an option to renew, this may interfere with your plans to lease to other tenants. Occasionally, leases have options to purchase. This type of provision is problematic for any investor as the tenant would have the option to purchase the property after you closed. You would need to obtain a waiver from the tenant in this situation. This is why it is imperative to review each lease thoroughly with your attorney to make sure you know what you are getting into.

In summary, it is in your best interest as a real estate investor to carefully perform due diligence and review each lease carefully before purchasing an investment property.

The End of The Transfer Act

The Connecticut legislature overwhelmingly voted to sunset the Connecticut Transfer Act, the law which has regulated contaminated properties in the state for the last 35 years. Instead, Connecticut will shift to a release-based remediation program where “any person who creates or maintains a release to the land and waters . . . shall, upon discovery of such release (1) Report the release . . . and (2) Remediate any release to the standards identified in [the adopted] regulations.”

This massive revision to the environmental laws is theoretically intended to accelerate the cleanup of polluted lands while revitalizing the economy. The program will become effective when implementing regulations are first adopted.

However, the law contains only the most rudimentary guidelines, instead of leaving to a Working Group the process of developing the myriad regulations necessary to provide standards, prioritize cleanup sites, and identify contaminant concentration levels. Without any of this information, it remains to be seen whether this release-based system will actually benefit the Connecticut economy or lead to a cleaner environment.

The breadth of this new law also presents increased liability challenges to businesses and property owners. Failing to properly report a release or merely maintaining a polluted property is enough to constitute a violation. Furthermore, the legislature expanded the definition of a “person” for purposes of the release-based remediation program. A person will include “any officer or governing or managing body of any partnership, association, firm or corporation or any member or manager of a limited liability company.”

An amendment to the bill clarifies that (A) the officer, body, member, or manager must be in a position of responsibility that allows the person to influence corporate policy, (B) there must be a nexus between the individual’s actions (or inactions) and the violation of the Act, and (C) the actions (or inactions) of the individual facilitated such a violation.

The largest implication of this expanded definition is the ease with which liability can attach to the individual without having to undergo the difficult process of piercing the corporate veil. Under the release-based system, an entity’s officers can face significant liability for creating or maintaining a release even if the conduct was performed within the scope of their corporate authority. This language also conveys that it will be far easier to target parent corporations who may have deeper pockets.

Businesses and their executives must be very careful to avoid inadvertent violations. Those potentially impacted by this new law should reach out to environmental counsel to help guide them through the new laws.

Coronavirus Contract Clauses – What Every Real Estate Investor Should Know About Signing

Real Estate Contracts During the Coronavirus Pandemic

The Covid-19 health crisis has changed everything for the foreseeable future. How we socialize. How we do business. How we interact with our family. And even how we purchase real estate.  While I am confident that we will all get through this together and come out stronger, we can still carefully conduct business and do real estate deals while we social distance and quarantine. However, there are critical contract provisions that must be included in real estate contracts during this crisis to account for delays and contract performance hindered by the crisis. This clause is called force majeure clause (also known now as a Coronavirus clause) which accounts for what happens to the parties’ contractual obligations in the event of unforeseen events such as strike, war, or a pandemic such as the Coronavirus.

What is a Force Majeure Clause / Coronavirus Clause?

A force majeure / Coronavirus clause addresses the parties’ obligations in the event that events such as a strike, war, or a pandemic such as a Coronavirus interfere with a contract. Sometimes, force majeure clauses do not include pandemics so it is essential to make sure that the clause specifically calls out the Coronavirus pandemic. A comprehensive Coronavirus clause will provide that the parties’ obligations to each other are reasonably delayed/postponed if the Coronavirus interferes with their obligations, and such obligations may be completely discharged if the parties are not able to close the deal due to the outbreak.

How can the Coronavirus Interfere with Real Estate Deals? 

The Coronavirus can interfere with real estate deals in various ways. A common and reoccurring problem is that the title searches and due diligence are delayed due to town hall closures or reduced hours. Accordingly, a title search, municipal search, or zoning due diligence could take significantly longer. It is a good idea to determine whether the town hall of the subject property is closed, has reduced hours, or whatever the case may be, so the parties can plan an appropriate closing date.

Moreover, if environmental testing is required for the deal, such could also be delayed due to the virus. Many companies have reduced staff and are working from home. Similarly, surveys could take longer to complete if required on a particular deal.

The Coronavirus is also causing banks to change their loan packages or even to withdraw certain loans altogether. Accordingly, mortgages may take longer to be approved and processed due to the virus.

These are just some of the ways that the virus is impacting real estate deals. Of course, coordinating the closing can be challenging as many law firms are closed and are doing their best to close through the mail, or using very limited office hours.

Do Coronavirus Clauses Protect Buyers, Sellers, or Both? 

The Coronavirus clause protects both buyers and sellers, but they primarily protect buyers. Of course, sellers may have to obtain a payoff statement for existing mortgages, resolve title issues, or do repairs, all of which could be impacted by the Coronavirus. However, the buyer is typically the party that has much more to do before closing, including inspections, due diligence on public records, obtain a mortgage, and so forth.

Moreover, the buyer has a deposit to lose while the seller, although could face a lawsuit in the event of a breach, is not putting up earnest money. Accordingly, the Coronavirus clause protects both parties but primarily the buyer.

Are All Coronavirus Clauses the Same?

Not all Coronavirus clauses are the same and depending on whether you are the buyer or seller, you will have slightly different objectives using a Coronavirus clause. As a buyer, you want very broad protection, which includes delaying dates and allowing the termination of the contract if the Coronavirus significantly interferes with the closing.

A seller should also want to include the Coronavirus clause, but only to allow the reasonable delay of dates; not termination, so the buyer is locked in the deal and is not provided a way out of the deal.

Accordingly, buyers and sellers have slightly different objectives when including such a clause, which is why it is important to retain a good lawyer to negotiate your interests in transactions during the Coronavirus pandemic.

Do I need a Separate Provision for the Inspection and Mortgage Contingency Clauses to Address Delays Caused by Coronavirus? 

A good Coronavirus provision will account for delays of the mortgage, inspection, due diligence, and any other contract dates, so typically you will not need a separate provision in the mortgage or inspection contingency clauses, but it cannot hurt to include it anyways.

Should I use a Coronavirus Clause in Other Contracts Such as Leases, Management Agreements, etc.?

Yes. Force Majeure / Coronavirus clauses are not unique to real estate contracts and are important in other types of contracts. They may and should be used in any contract, including leases, management agreements, vendor agreements, buyouts, etc. However, as with real estate contracts, you may want a broader or narrower provision depending on which side of the table you are on.

In summary, real estate deals can still occur during the Coronavirus. However, it is important to include a Coronavirus clause, be ready for possible delays, and be ready to close by mail, or possibly in masks and gloves at your lawyer’s office.

New Transfer Act Changes Reflect A Friendlier Business Environment

Is there light at the end of the tunnel?

Last month Governor Lamont signed Public Act No. 19-75, a new law that amended several provisions in the Transfer Act. These amendments are favorable to the regulated community and are designed to narrow the scope of real properties and businesses that are subject to the Transfer Act, as well as to lessen the burden for those already in the program.

The amendments include the addition of several new important exceptions to the definition of an “establishment,” and the shortening of the time period that DEEP has to audit an LEP Verification.

In particular, the amendments exclude from the definition of an “establishment” any real property or business operation from which more than 100 kilograms of hazardous waste was generated in any one month from the following activities:

  • The one-time generation of hazardous waste in any one month, as a result of either the first time such waste was generated or such a one-time generation since the last time a Form I, Form II, Form III or Form IV was required to be submitted.
  • The removal of unused chemicals or materials as a result of the emptying or clearing out of a building.
  • The complete cessation of a business operation provided the waste is removed not later than ninety days after such cessation.

Another important change is the shortening of the time period DEEP has to audit an LEP Verification from three years to one year. Further, DEEP must complete the audit within three years from the date of submittal.

These amendments will provide some relief to the regulated community for transactions involving real property or businesses that are not major generators of hazardous wastes. Although some of the language is not ideal and will be subject to some interpretation, overall the amendments are a step in the right direction.

The amendments will become effective on October 1, 2019. Application of the new provisions will not be retroactive and will not apply to transactions that occur prior to the October 1, 2019 effective date. Of note, the legislation mandates the convening of a new working group to develop recommendations for additional legislative changes to the Transfer Act.

This is an important opportunity for the regulated community and signals a willingness on the part of the legislature to facilitate commercial transactions in which environmental issues may exist. Lenders, developers, and commercial realtors are well-advised to participate in this process and make their concerns known.

Practicing Law In The Age Of E-Commerce: Navigating A Dispute With eBay

Even though I am technically considered a millennial, I distinctly remember a time when technology was not an integral part of my life. Today, it would be foolish to fail to recognize its significance in my daily life and prevalence in the practice of law on many different levels. One of the bigger players in the e-commerce world today is eBay, Inc., a company that provides an online auction and shopping platform to its users. I recently represented an eBay user in a dispute with the company, which resulted in a successful and cost-efficient disposition for my client. Drawing on my experience, I hope to shed some light on the unique process of navigating a dispute with eBay, Amazon, Etsy and similar e-commerce giants.

Although it may not be so obvious to a non-lawyer, the obvious starting point with navigating such a dispute is eBay’s “User Agreement”, which of course, is a legally binding contract between the user and eBay. I have no doubt that the vast majority of eBay users have never read this document and just accept its terms with one click of the mouse. Perhaps the most important sentence within the introductory provision of the User Agreement is the following statement: “Please be advised that this User Agreement contains provisions that govern how claims you and we have against each other are resolved.” It should also come as no surprise that the User Agreement is littered with various disclaimers, limitations of liability and exclusions of damages. Applicable law regarding the enforceability of those provisions can vary from jurisdiction to jurisdiction.

One of the more significant tactical decisions a commercial litigator will have to make is whether to attempt to resolve a dispute via alternative dispute resolution or litigation. Courts strongly favor the use of alternative dispute resolution mechanisms such as arbitration and seek to enforce arbitration clauses whenever possible. Different types of commercial or consumer disputes present unique considerations in this regard, and dealing with eBay was certainly different from other types of such disputes I have handled. In many contexts, litigation may seem like the only answer, but arbitration is often preferred over litigation for several reasons (speed, cost, efficiency, simplicity, etc.). In my case, arbitration was even more appealing. The procedure outlined in the “Agreement to Arbitrate” within eBay’s User Agreement highlights several of those distinct advantages. The Agreement to Arbitrate also mandates that all claims against eBay are to be resolved through arbitration, and gives the eBay user the alternate option of asserting a qualifying claim in small claims court. Additionally, any claim that is pursued outside of arbitration in the courts of a state other than Utah faces the possibility that it will be removed or transferred to a court in Utah.

The prospect of pursuing a claim against eBay may seem like a daunting one. We here at Jacobi & Case, P.C. relish the challenge, and have the skills, experience and mindset needed to tackle unique challenges like this, to do so aggressively and to advocate on your behalf no matter who your adversary might be.