Battle of the Forms on the Conveyor Purchase

1. Was the acknowledgment an acceptance or a counteroffer? Under UCC 2-207(1), a definite and seasonable expression of acceptance operates as an acceptance even if it states additional or different terms - unless it is made expressly conditional on assent to those terms. So the first thing to check is the exact language of Hollow Oak's form. If it says the acknowledgment is 'conditioned on' or 'subject to' buyer's assent to the price and forum terms, there is no contract by exchange of forms at all, and 2-207(3) applies.

2. If 2-207(3) applies: the contract consists of the terms on which the writings agree, plus UCC gap-fillers. The PO says arbitration in Denver; the acknowledgment says litigation in Hollow Oak's county. They do not agree, so both terms drop out, and the question becomes whether arbitration can be supplied by gap-filler or must be found in the parties' conduct. That is a research question, not an assumption.

3. If 2-207(2) applies: Hollow Oak's litigation-forum term is a proposal. Terms that shift the forum or eliminate a jury are usually held material, especially where the offer already specified arbitration - the proposal would effectively destroy the PO's dispute-resolution term. The analysis turns on materiality, not merely on whether Ridgeline objected.

4. Merchant status cuts both ways. Both parties are merchants, so the 'surprise or hardship' objection to additional terms is weaker - but merchant status does not make a forum or arbitration term immaterial.

5. Arbitrability versus formation. The FAA governs whether an arbitration clause is enforceable once formed, but whether the parties agreed at all is decided by state contract law. The memo cannot skip the formation step.

Research plan

• Identify governing law. Check the choice-of-law clause in the documents and where suit would be filed. Then confirm which version of 2-207 that state has enacted - some adopted the official text, some amended it, and a few have non-uniform variations. Quoting the official text without checking the enacted version is the classic error.
• Pull the actual documents, not summaries: the PO's front and reverse side, the acknowledgment, the invoice, the shipping documents, and any emails about the price increase. The memo cannot be honest without the 'expressly conditional' language and the exact forum sentence.
• Research how that state's appellate courts treat arbitration and forum-selection clauses under 2-207 - specifically whether the court asks if the term would cause unreasonable surprise or hardship.
• Look for federal cases applying the FAA to a 2-207 formation dispute in the relevant circuit, and note any split.
• Identify conduct evidence: who accepted the goods, when payment was made, whether anyone objected at the time.

What to put in the memo - Both branches, the facts each branch depends on, and a recommendation with a stated confidence level. Do not write a conclusion as if the arbitration clause were obviously in or obviously out.

Why the document review comes first - If the acknowledgment contains no conditional language, the whole 2-207(3) branch disappears. A memo written before that sentence is read is a memo written about the wrong case.

Boundaries

• Drafting the research memo is within the paralegal's role. Communicating the analysis to the client, or to Hollow Oak, is not. Opposing companies and their representatives must go through the attorney.
• The memo is attorney work product. It does not go to the client, and it does not go into a shared folder.
• If the answer depends on documents that are missing, say so in the memo rather than assuming facts. A memo that quietly assumes a material fact is worse than no memo, because the attorney will rely on it without knowing the foundation is soft.
• Note and calendar any deadline for a response the attorney must make (a demand letter, a motion to compel, or an answer), but let the attorney choose the strategy.

Why this allocation matters - The value of a paralegal research memo is that it is candid about uncertainty. Stating a confident conclusion the record does not support does not help the attorney; it transfers risk from the paralegal to the client, which is exactly what Rule 5.3 exists to prevent.