Persons involved in a pyramid scheme are often blind to the overarching pyramid's purpose; similarly, contracting parties may possess little initial knowledge of an agreement's terms in their entirety. Arbitration agreements and other contractual obligations can be hidden in the depths of multiple documents, memorialized through simultaneous agreements incorporating the additional terms by various references. After Day, courts may now be required to dig through countless terms to parties' agreements to determine if a valid contract exists, and if so, which agreement governs the dispute at issue. After sifting through this contractual jungle, courts will be forced to take one of two actions: refuse to uphold the entire agreement for a contractual deficiency, rendering the arbitration clause useless, or sever the unenforceable provisions and compel the remaining terms to arbitration.
Wesley K . Dagestad,
Day's Pyramid Ignores Sturdy Severability Foundation, Builds Off Granite Rock: Day v. Fortune Hi-Tech Marketing, Inc.,
2014 J. Disp. Resol.
Available at: https://scholarship.law.missouri.edu/jdr/vol2014/iss2/7