14 N.Y.3d 459 (2010)
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An arbitration agreement’s provision for equal sharing of arbitration fees and costs is enforceable unless the litigant demonstrates that they are financially unable to pay their share, considering their ability to pay, the cost differential between arbitration and litigation, and whether the cost differential deters them from pursuing their claims in arbitration.
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Summary
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Brady, a former employee of Williams Capital Group, sought to compel arbitration for her discrimination claim, but a dispute arose over the arbitration fees, which the agreement stipulated should be shared equally. When the arbitration service canceled the arbitration due to non-payment, Brady initiated a proceeding to compel Williams to pay the full fee. The New York Court of Appeals held that the enforceability of the cost-sharing provision depends on Brady’s financial ability to pay her share, requiring consideration of her financial resources, the cost difference between arbitration and litigation, and whether the cost difference would deter her from arbitrating. The case was remitted to determine Brady’s financial capacity.
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Facts
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Brady was employed by Williams as a salesperson, earning $100,000 or more annually. As a condition of employment, she signed an agreement to arbitrate disputes, sharing arbitration fees equally. After her termination, Brady filed a discrimination complaint, later demanding arbitration. The American Arbitration Association (AAA) initially invoiced Williams for the full arbitrator’s fee, citing its