Credit Acceptance Corp. v. Robert J. and Billye S. Front, etc.

Furthermore, independent was there no showing that the defen-

evidence introduced robbery he was for which

dant committed only linking information The

indicted. 404(b) robbery evi- to this was defendant concerning a second judge allowed

dence the happened two months later.

robbery that the McGinnis take evidence failure to

404(b) critical hearing was and constitutes error.

reversible majority, respect- disagree with

I

fully dissent. CORP., ACCEPTANCE

CREDIT Below,

Defendant Petitioner Front, Billye

Robert J. FRONT S. Below, Respondents.

Plaintiffs Acceptance Corp., Defendant

Below, Petitioner Shrewsbury, Plaintiff

Ocie

Below, Respondent.

Nos. 12-0545. Appeals

Supreme Court Virginia.

West April

Submitted 2013.

Decided June upon based

ments were unconscionable unavailability of forums named therein, and because the debtors respective rights agreements waived their jury trial. we find that one of the Because agreements forums in the named parties’ available to arbitrate the remains disputes, agree- and an arbitration because solely ment is not unenforceable rendered party waives his or her because thereto trial, jury right to a we reverse both of these entry compel- cases and remand for of orders ling arbitration.

I. FACTUAL AND PROCEDURAL HISTORY underlying The cases these consolidated appeals purchase all involve of an auto- particular mobile. We relate the facts of separately case each below.

A. Front Plaintiffs 17, 2007, August Billye On Robert and (hereinafter Parker, Jacobs, Fronts”) collectively Nich- “the Don C.A. Bruce M. Front Battle, Mooney, Spilman purchased & a 2003 Cavalier olas P. Thomas Chevrolet automo- Charleston, PLLC, WV, from Finish Pre-Owned Auto for Petitioner. bile Line Sales (hereinafter Line”). purchase “Finish To Frost, Young, B. Ralph Christopher C. vehicle, the Fronts executed a retail Pollard, Burgess Fayette- Young & Hamilton security agreement and with Fin- installment ville, WV, Robert Respondents, for J. assigned its rights, ish Line. Finish Line all Billye S. Front & Front. title, and interest in the contract and the Young, Frost, Ralph Christopher C. B. exchange Acceptance vehicle to Credit for Broadwater, Jr., Bur- Steven R. Hamilton Acceptance financing purchase. Credit WV, Pollard, Young Fayetteville, & gess for Thereafter, 17, 2008, April the Fronts Shrewsbury. Respondent, Ocie a 2005 vehicle purchased Ford Focus from (herein- Lincoln-Mereury, Prestige Ford Inc. DAVIS, Justice: “Prestige”). after As with their first auto- appeals have for Two been consolidated purchase, executed a mobile the Fronts retail in this matter. In these consolidat- decision Prestige. Prestige installment contract with Corp., peti- appeals, Acceptance ed Credit title, subsequently assigned rights, all its and (hereinafter Acceptance”), ap- tioner “Credit Acceptance. in the interest contract to Credit issued Court peals orders the Circuit County in Raleigh ease that denied Both of the installment each retail contracts Acceptance’s arbi- in connection Credit motion executed Fronts with that, Acceptance purchases tration.1 Credit contends in their vehicle contained arbitration cases, nearly both of these the circuit courts erred clauses. clauses were identical2 stated, concluding agree- part: and sought 1. The motions each to have the case dis- 2. Differences in the two contracts are noted be- or, alternative, stayed pending ar- missed low. bitration. governs

The Federal Arbitration Act to the arbitration.” Montgomery Applied Bank, (S.D.W.Va. Arbitration Clause. You and we under F.Supp.2d 2012). Thus, agree that You we choose stand one of contractually desig litigation arbitrators, NAF, arbitration instead of to resolve nated longer was no avail Disputes. voluntarily You and we able to dispute arbitrate that arose un knowingly . . . ^[3] waive any right to a jury trial. was available der the Credit the other only designated Acceptance/Front on a limited basis. arbitrator, contracts, AAA, You or we elect to arbitrate under the The Fronts commenced two civil actions procedures rales and against of either the National Acceptance in the Circuit Arbitration Forum or the Raleigh American Arbi- Court of County May 2011. The Association; however in the event claims related to communications the Fronts of a conflict proce- allegedly between these rules and received from Credit Acceptance provisions dures and the of this Arbitration after their debt under the two retail install- Clause, agree You and we that this Arbi- ment contracts was in arrears. Each com- governs specific plaint (1) tration Clause for that set forth four causes of action: may conflict. You obtain the rules and violations of the Virginia West Consumer (hereinafter procedures, information on Credit and fees and costs Protection Act “the (2) fees), WVCCPA”); (3) (including negligence; waiver of the and other intentional materials, distress; by and infliction of file a claim contact- emotional and inva- case, ing organization your privacy. sion In each Accep- choice.... tance filed a motion dismiss, or, alternative, stay expressly agreed It is this Contract pending action arbitration. The circuit court evidences a transaction in interstate comm consolidated ultimately the two eases and erce.[4] gov The Arbitration Clause is Acceptance’s denied Credit motions. The Act, erned the Federal Arbitration circuit court found that the contracts were (“FAA”) seq. §§ 1 U.S.C. et and not proeedurally unconscionable at the time any state arbitration law. formation, of their subsequent but the una- (Footnotes added). After the Fronts execut- vailability of one of the selected arbitration contracts, ed the aforementioned one of the materially changed forums contracts forums, selected arbitration Ar- National proeedurally rendered them unconscionable. (hereinafter “NAF”), bitration Forum was additionally The court found that the unavail- sued the State of Minnesota. As a result ability of one of the selected forums rendered suit, of this the NAF entered into a consent substantively the contracts unconscionable. forbidding conducting decree it from consum- Finally, the circuit court found that the arbi- CompuCredit Corp. er arbitration. See agreements violated the Fronts’ fun- — - Greenwood, -, U.S. n. right damental Virginia under the West Con- S.Ct. 677 n. 181 L.Ed.2d 586 system stitution to use the court to seek (“In 2009, Attorney after the General of justice WVCCPA, and violated the which the alleging Minnesota filed an action that NAF interpreted prohibiting circuit court a con- engaged had in numerous violations of con- waiving right sumer from jury to a trial. laws, sumer-protection NAF entered into a designated The court the order as a “final barring handling consent decree it from con- order.” It is from this order that Credit arbitrations.”). thereafter, Shortly sumer appeals. Acceptance July AAA “[i]n issued a moratorium on Shrewsbury B. Plaintiff arbitrating concerning cases consumer debt collections if those brought by eases were Shrewsbury Virgil Shrewsbury5 Ocie (hereinafter company Shrewsburies”) and the consumer collectively did not consent “the language 3.This appear was not underlined in the con- 4.This sentence did not in the contract for purchase purchase tract for the of the 2003 of the 2003 Chevrolet Chevrolet Cavalier. Cavalier. 5.Virgil Shrewsbury party is not a to this action. materially Greg ty from of the selected forums altered Expedition a 2000 Ford purchased (hereinafter Sales, “Lilly Inc. rendered the Lilly Auto the terms of the contract and Auto”), July with In connection Fi- substantively unconscionable. contract executed a purchase, the Shrewsburies nally, the circuit court found the arbitration security installment contract retail it es- agreement was unenforceable Lilly Lilly Auto then agreement with Auto. sentially Shrewsbury’s consti- eliminated Ms. title, rights, and interest assigned all its right from this tutional to file suit. It is Accep- and the vehicle to Credit the contract Acceptance appeals. that Credit order tance, purchase. financed retail who by the Shrews- contract executed installment II. pur- vehicle connection with their buries in using clause chase contained STANDARD OF REVIEW language quoted above from the same as that proper we Before reiterate Notwithstanding Front contract. the 2005 for our consolidated standard review of these longer no avail- the fact that the NAF was cases, ap we first these consider whether any that arose un- dispute arbitrate able to appeals peals appropriate. are These two contract, AAA was available der the and the or are before this Court from circuit court basis,6 never- only on a limited the contract denied and to ders that motions to dismiss organizations designated those two theless Thus, compel arbitration. these consolidated in the same man- disputes arbitrators of interlocu eases seek this Court’s review of organizations desig- as those had been ner tory orders. Acceptance/Front in Credit con- nated “[OJrdinarily the of a motion to dis- denial tracts. and, interlocutory an there- miss is order (here- 2011, 17, Shrewsbury May On Ocie fore, See, immediately appealable.” not is Shrewsbury”) inafter “Ms. filed a civil action 2, Syl. pt. e.g., State ex rel. Arrow Concrete in against Acceptance Credit the Circuit Hill, 239, Co. v. 194 W.Va. 460 S.E.2d 54 (1) Raleigh County alleging: of viola- Court (1995) (“Ordinarily of a motion the denial (3) (2) WVCCPA; negligence; of the tions upon for failure to a claim which state distress; infliction intentional of emotional granted to pursuant relief can be made (4) privacy invasion of related to commu- Virginia of Civil Procedure West Rules allegedly nications she received from Credit 12(b)(6) therefore, is, interlocutory is Acceptance after under the retail her debt immediately appealable.”). not See also installment contract in arrears. was Huntington, v. City Hutchison of Acceptance then a motion to filed (1996) 147, 649, 139, W.Va. 479 S.E.2d or, alternative, stay to (indicating rarely that this Court addresses pending action The circuit arbitration. court court’s to dis- a circuit denial of a motion ultimately finding denied the the arbi- motion interlocutory). miss since such an order is Sim- was not enforceable. Ewing Cnty. v. Board Sum- Educ. circuit ilar to the court’s order the Front of of of mers, 228, 235, 541, 202 W.Va. 503 S.E.2d case, the circuit court found that the contract (1998). Typically, interlocutory orders are procedurally not was unconscionable insofar subject appellate jurisdic- not to Court’s provided adequate “it an for means 90, Sopher, Coleman However, tion. See W.Va. opt Plaintiff to out.” the circuit (1995) (“The 459 S.E.2d usual unavailability court further that the observed jurisdiction prerequisite appellate for our is a materially of the selected arbitration forums judgment, it respect final final in ends changed the that there was no contract such ease.”). Therefore, finality” meeting of the This “rule of is an minds. the circuit Rather, court concluded that was unen- rule. there is a “narrow the contract absolute subject per- today.” category forceable “as it The of orders are exists circuit additionally court that the unavailabili- interlocutory appeal.” found missible Robinson v. explanation unavailability 6. For an “Front Plaintiffs.” AAA, supra NAF and the Section I.A. titled see 828, 831, Pack, appeal 679 S.E.2d 663 allow interlocutory W.Va. of an order when (2009). that, explained Court The Robinson three factors are met: “An interlocutory or subject der would

[objections allowing appeal an be appeal from under [the (1) interlocutory typically order are rooted collateral order] doctrine if it conclusively finality. provisions (2) in the need for disputed determines the controversy, re Virginia Code West 58-5-1 estab important solves an completely issue sepa appeals may lish that taken civil action, rate from the merits of the is judgment any actions from “a final cir effectively unreviewable appeal on from a cuit court or from order of circuit judgment.” Heck’s, Inc., final Durm v. constituting judgment.” final Id. W.Va. 566 n. 401 S.E.2d 912 n. 2 Cleekley Justice elucidated in James M.B. (1991) (internal quotations and citation omit M., Carolyn ted). Pack, See also Robinson v. “[tjhis (1995), rule, commonly re 828, 679 S.E.2d 660 (applying three-part col finality,’ ferred to as the ‘rule of is de lateral order doctrine to circuit court’s denial signed prohibit ‘piecemeal appellate re summary judgment on qualified issue of view of trial court decisions which do not immunity finding order immediately ap- litigation[.]’” terminate the W.Va. pealable). (quoting 456 S.E.2d at 19 U.S. v. doctrine, Applying the collateral order Co., Hollywood Motor Car 458 U.S. ultimately Robinson Court held that “[a] cir- 265, 102 (1982)). S.Ct. 73 L.Ed.2d 754 cuit summary court’s denial of judgment that Exceptions finality to the rule of include predicated qualified immunity is an “interlocutory ap- orders which are made interlocutory ruling subject which is to imme- pealable by Virginia statute or the West appeal diate under the ‘collateral order’ doc- Procedure, Rules of Civil or ... [which] Syl. pt. trine.” id. While in- Robinson jurisprudential fall within a exception” volved a immunity denial of in the form of an such as the “collateral order” doctrine. denying order summary judgment, M.B., James 193 W.Va. at applied Court has qualified Robinson to a 19-20; S.E.2d at Cape accord Adkins v. immunity decision made in the form of a hart, 460, 463, 923, 202 W.Va. 504 S.E.2d denial of a motion to dismiss. See Jarvis v. (1998) (recognizing prohibition 926 mat Police, Virginia 472, West State 227 W.Va. ters, 54(b) questions, judg certified Rule (2010). 711 S.E.2d 542 orders, ment and “collateral order” doc In concluding that the denying order the exceptions trine as finality). to rule of motion immediately to dismiss was appeal- 832, (footnote 223 atW.Va. 679 S.E.2d at 664 doctrine, able under the collateral order the omitted). Motors, See also C & O Inc. v. adopted Jarvis Court the expressed rationale Inc., Virginia 469, Paving, West respect, Robinson. In this the Robinson (2009) (“In 911 addition that, explained Court exception, to the ‘ministerial’ acts this Court regard [w]ith to the first factor [the of recognized has a limited number of other test], Cohen collateral order doctrine which exceptions finality. to the rule of Our cases requires that ruling the at issue must be pointed may have out specif that we address conclusive, [trial] “the court’s denial of ic issues decided interlocutory order summary judgment quali [on the issue of under the ‘by collateral order doctrine or immunity] finally fied conclusively prohibition, writs of de questions, certified or 54(b) judgments right termines the defendant’s claim rendered under of Rule of the to stand Virginia plaintiffs allegations.” West trial on the Rules of Civil Procedure.’” M.B., 511, 527, 105 (quoting [Mitchell Forsyth, James 193 472 U.S. W.Va. at 292 n. 3)). 2806, 2816, S.Ct. 456 S.E.2d at 19 n. 86 L.Ed.2d 411 exception The re ]. doctrine, ruling ferred to as denying availability the “collateral order” Because a the immunity which fully was established the United States resolves the issue of a liti Supreme gant’s obligation Court in Cohen v. participate litiga In to Beneficial tion, dustrial Loan 337 U.S. 69 S.Ct. the easily first factor of Cohen is met. (1949), 93 L.Ed. applied faetor[,] 1528 to As to the second which focuses on

524 Cir.1997) (observing that denial of immunity ruling sig- qualified resolves

whether “subjects merits, [govern immunity defense separate from the issues nificant of pretrial to the burdens ment] official that “claim of question little there is opining matters” that “some of the conceptually from the immunity is distinct rights qualified immunity inherent in a de plaintiffs [or claim that his merits of lost”). [consequently] fense are Tradition been Id. at rights have violated.” her] immunity appellate qualified al a review of 527-28,105 86 [at 411]. S.Ct. L.Ed.2d ruling goal the intended cannot achieve of the re- final factor Cohen test right immunity ruling: “the not to be quires qualified a us to consider whether subject of trial.” to the burden Hutchison immunity ruling “effectively is unreview- 139, 148, City Huntington, 198 [v. W.Va. stage. Postponing re- appeal able” at result, As a ]. S.E.2d denying immunity ruling to the view of easily factor of Cohen is met. third fruitless, post-trial stage is the United Robinson, 832-33, at S.E.2d at Supreme Court reasoned in Mitch- States (concluding “Application 664-65 that ell, underlying objective because Cohen demonstrates circuit (absolute test immunity quali- determination summary judgment court’s denial of is fied) immunity from suit. is 472 U.S. immunity predicated qualified is an inter- 2806; Gray- S.Ct. see also locutory subject ruling is to immediate which Md., George’s County, Hopkins v. Prince doctrine.”). appeal under the ‘collateral order’ (4th Cir.2002) (“Because F.3d qualified immunity immunity is an from expressed by Following the rationale having litigate, Court, with an analyze contrasted Robinson we will an order immunity liability, effectively it is from lost compelling arbitration under collateral erroneously permitted go if is if such an a case order doctrine to ascertain order is trial.”) citation); among (omitting interlocutory internal Jen- limited class of or- (4th Medford, immediately appealable.7 119 F.3d ders that kins v. Co., v. American this Court of arbitration decisions under FAA. See In McGraw Tobacco McGraw, granting whether an 224 W.Va. at 681 S.E.2d at 105 addressed the issue of order ("Section governs appellate compel immediately FAA 16 of the review motion to was arbitration, permitting it in appealable motions to and held: circumstances, denying it other[s]. some while compelling order A circuit court (1990).”). Legal U.S.C. Accord Guidotti v. subject appellate prior is not to direct review L.L.C., Resolution, Helpers Debt F.3d dismissal of the action to the circuit court (3d Cir.2013) ("We jurisdiction have re- compelling unless the order arbitration other- view a court’s denial of a to district motion complies requirements with the of West wise compel under 9 arbitration U.S.C. (1998) 54(b) Virginia § Code 58-5-1 and Rule (a) added)); ](1)(B).’’ (emphasis § 16[ v. Adams Virginia of the West Rules CivilProcedure. A of Co., 1276, Cas. 541 F.3d 1277 Monumental Gen. party seeking this Court’s review of a circuit (11th Cir.2008) ("We jurisdiction have no over compelling prior to en- court order arbitration appeal compelled this the district court because try complies which of a final order with the 16(b)(2). § 16 arbitration. governs 9 U.S.C. Section Virginia requirements § of West Code 58-5-1 appealability interlocutory of the orders 54(b) (1998) Virginia of and Rule the West Hellmuth, arbitration, ConArt, regarding Inc. v. Rules Civil Procedure must do so in an Kassabaum, Inc., 1208, of + Obata (11th 504 F.3d 1210 original jurisdiction proceeding seeking a writ (b)(2) Cir.2007), and subsection that states prohibition. of appeal may 'an be taken from an not interlocu 1, McGraw, Syl. pt. 224 W.Va. 681 S.E.2d tory directing proceed,' arbitration to order ... (first added). Thus, (2009) emphasis under 16(b)(2).”); Augustea Impb § Salvatag Et U.S.C. McGraw, interlocutory compelling an order arbi- (2d gi 126 F.3d Cir. Mitsubishi subject appeal 1997) ("Section 16(a)(l)(C)’s to unless tration is direct language provides are met. the certain conditions Insofar as party may appeal that a from a district court opinion compelling an compel McGraw arbitration, addressed order denying order a motion to arbitration opposed refusing as to an order to pursuant § while to 9 U.S.C. under section arbitration, 16(b)(2) compel applicable party appeal it is not to the cannot a an order arbitration.”). denying ap- proceeding. practice The compelling instant peals of See also David D. Sie- compelling gel, Commentary § a of orders arbitration absent Practice to 9 U.S.C.A. (a) (West 1990) ("Subdivision allowing appeals while of or- of 16 enumer final order direct compel appeal refusing which an ders to arbitration is consistent ates the situations in immediate arbitrability many appeals from an determination is allowed. with how other courts have treated order of purpose “providing first factor in the collateral one arbitration As to the a test, “conclusively ruling the at issue plaintiffs suitable alternative forum for Durm, disputed controversy,” the claims”); determines County Ed. Berkeley Board of of 912 n. at 566 n. 401 S.E.2d at Miller, Inc., 184 W.Va. Harley 473, 479, W. ruling that a circuit court’s we find (describing the compel arbitration is conclusive as refuses to purpose “just, speedy, of arbitration as eco- disputed controversy of whether the to the resolution”). Thus, nomical conflict party a By deny- required to parties are arbitrate. required who to wait is until the of conclusion motion, thereby ing a the circuit court such litigation appeal the denial of arbitration proceed that a ease to trial. concludes will already has temporal borne financial and ruling of the Such a forecloses arbitration has, therefore, litigation cost of such and, therefore, underlying claims asserted lost, effectively irreparably, right to arbi- conclusively resolves the issue of arbitration. tration. factor order The second of the collateral found Having denying that an order a an whether the order “resolves test asks compel motion to arbitration the re fulfils important completely separate issue from the doctrine, quirements collateral order action,” Durm, at merits of we now that an denying hold order a motion n. 401 S.E.2d at 912 n. We find compel is interlocutory arbitration an rul be little issue of there to doubt that ing subject which is appeal immediate completely separate is from the Apply under the collateral order doctrine. given underlying merits of the claims in ing holding case, to the instant we find Furthermore, the arbi- action. resolution of appeals proper. are it re- question important is in that question foundational the man- solves the appeal deny anWhen from an order parties ner in will resolve their which ing properly a motion dismiss is before dispute, through either Court, See, e.g., Syl. our review is de novo. courts. pt. Ewing, 202 W.Va. 503 S.E.2d 541 final consideration in collateral The (“When party, appeal from effectively order is whether the order “is test judgment, assigns final as error a circuit appeal judg on unreviewable from a final dismiss, of a court’s denial motion to Durm, ment.” n. W.Va. disposition circuit court’s motion 912 n. an order S.E.2d at 2. We find that novo.'”). reviewed dismiss will be de Accord effectively refusing to arbitration is ingly, proceed we to conduct novo our de appeal. of such unreviewable The result issues review of the raised in these consoli litigation. purpose of arbi order appeals. dated litigation to avoid of a tration is favor quicker costly dispute less method of III. Raymond See resolution. James Fin. (4th

Servs., Bishop, Inc. v. 596 F.3d DISCUSSION “ Cir.2010) (commenting purpose ‘the Acceptance Credit asserts that two errors having quick arbitration at all resolu [is] reversing the warrant circuit courts’ orders disputes tion of and the of the avoidance in denying its motions to arbitration expense delay litiga associated with ” First, ar- Acceptance these cases. Credit Apex (quoting Plumbing Supply, tion’ Inc. Co., Inc., gues finding circuit that the courts erred in Supply v. U.S. F.3d (4th Cir.1998))); to be based Grayiel Appalachian En contracts unconscionable 2001-D, LLP, unavailability ergy upon of arbitration forums Partners Second, (identifying agreements. S.E.2d named in the however, view, (b) applies part note that It for the most to determinations subdivision address- (b) pro- against only 'interlocutory' an order. Hence a arbitration. Subdivision enumerates es appeal in which not to be that amounts to a final dis- the situations an is arbitration decision allowed, judicial position particular and all of them in favor of in context remains are decisions its trumpeting pro-arbitration appealable_”). arbitration. In this scionable, provided as it in as much [sic] the circuit courts argues that Acceptance plaintiffs opt out adequate means for the arbitration that erroneously concluded it; brought the atten- adequately of was because unenforceable agreements were and, provided two plaintiffs; tion of the jury rights to waived their therein debtors However, separate forums. separately issues these trial. We address specific arbitration that one of the the fact below. eliminated, materially has been forums Unconscionability A. contract, causes of the changing the terms uncon- topic of contractual On there was no that the court to determine previously has held scionability, Court the contract meeting minds to create of the that today. as it exists if it term is unenforceable contract “[a] in order the Shrews- The circuit court’s substantively un procedurally and is both 12-0545, case, concluded bury Appeal No. However, need not be both conscionable. degree. Courts present to the same procedur- matter is not the contract in this making ‘sliding scale’ apply should provided it ally in that unconscionable substantively op the more determination: opt out. adequate for the Plaintiff to means term, the less evi pressive contract Further, agreement was the arbitration unconscionability is procedural dence of of the clearly brought to the attention that the required the conclusion to come to contract, provided for Plaintiff unenforceable, and vice versa.” clause forums, separate NAF by two Syllabus Point Brown Genesis However, speci- of the AAA. neither 646, 724 Corp., 228 W.Va. Healthcare accepts arbi- currently creditor fied forums (2011)[, S.E.2d 250 overruled agreements requests. Because tration by Marmet Health Care grounds other have been elimi- specific arbitration forums — U.S. -, Brown, Center, Inc. v. nated, change material there has been a (per 182 L.Ed.2d S.Ct. The Court has of the contract. the terms curiam).] was no there therefore determined Healthcare Syl. pt. Brown v. Genesis meeting minds to create the contract of the 382, 386, 729 S.E.2d Corp., 229 W.Va. today, and the arbitration as it exists (2012).8 agreement is unenforceable. in each of the two The circuit court orders quoted Notably, the orders above both of appeals concluded that the arbi- consolidated were the contracts at issue concluded that procedurally contracts were both time at the procedurally unconscionable substantively upon based unconscionable execution, proce- rendered their but were unavailability both of the two of one or by subsequent events. durally unconscionable Thus, forums. we will named arbitration Syllabus point 10 of Brown v. Genesis In unconscionability. address both theories Healthcare Unconscionability. (2012) (hereinafter “Brown 1. Procedural referred to as case, Ap- ”), explained circuit order in the Front court’s II this Court the contract to be peal No. found unconscionability is con- “[procedural procedurally as follows: unconscionable inequities, improprieties, or cerned with bargaining process and fact that the unfairness in the apprised The court is Procedural un- the contract. procedurally uncon- original contract is not formation of conscionability term is un- opinion participate to find a contractual did not 8. The author of this However, opinion v. Genesis in the decision in Brown ex rel. Brown insofar as this enforceable. Corp., 228 W.Va. 724 S.E.2d 250 ultimately Healthcare conclusion that the con- reaches the (2011), part Center, grounds Brown, unconscionable, overruled in on other tractual terms at issue were not - Inc. v. Marmet Health Care challenged parties have not this Court’s and the U.S.-, (2012). 182 L.Ed.2d 42 132 S.Ct. judice prior holding, sub the consolidated cases majority, Separate from the the author of this proper opportunity present for such do not opinion independently questions for es the need analysis. tablishing procedural un- both substantive conscionability variety involves a of inade- examining [i]n substantive unconsciona- bility, quacies that results in the lack of a real the court finds that the elimination voluntary meeting of the minds of the the arbitration forums is a material parties, considering change all in the the circumstances terms of the contract. Pub- policy plaintiff lic surrounding the transaction. These inade- favors a having day his include, to, in court should quacies but are not the terms of a limited contract be materially altered age, literacy, sophistication after the or lack of a execution of Further, the contract. party; unduly this court complex hidden or contract is reluc- terms; uphold tant contract; agreement the adhesive nature of the essentially which party’s eliminates a setting and the manner and con- which the suit, right stitutional formed, especially to file when including contract was whether longer no origi- exists in its party each had opportunity a reasonable nal form. Although right to assert understand the terms of the contract.” system one’s claim in the Syllabus Point Brown v. Genesis subject legally waiver, to a enforceable Corp., Healthcare 228 W.Va. indulge every courts presump- reasonable (2011)[, S.E.2d 250 part overruled in on against tion waiver of a fundamental con- grounds by other Marmet Health Care — right stitutional and will presume ac- Center, Brown, U.S. -, Inc. v. quiescence in the loss of such fundamental S.Ct. (per 182 L.Ed.2d 42 right.... reasons, For these the Court curiam).] finds that the in this added). (Emphasis As the Brown II Court case is unenforceable. observed, procedural unconscionability re- (Internal omitted). quotations citations and unconscionability lates to at the time a con- that, This Court has clarified tract is formed “in bargaining process “ and formation of the contract.” Id. Because [substantive unconscionability involves this Court’s review must focus on the con- unfairness in the contract itself and wheth tract at the time agreed upon, it was er a contract term is one-sided and will circuit courts’ conclusions that the contracts overly have an harsh effect on the disad proeedurally could be rendered vantaged party. unconsciona- The factors to be by subsequent ble weighed events is erroneous.9 assessing substantive uncon- scionability vary with the content of the Unconscionability. 2. Substantive The agreement. Generally, courts should con case, circuit Ap- court’s order in the Front sider the commercial reasonableness of the 11-1646, stated, peal No. with respect terms, purpose contract and effect of unconscionability, substantive terms, the allocation of the risks be examining [i]n the matter of substantive parties, public tween the policy con unconscionability, the court finds that the Syllabus cerns.” Point Brown v. Gene elimination of an arbitration forum is a sis Healthcare change substantive terms (2011)[, S.E.2d 250 overruled in policy contract. Public plaintiff favors a grounds by other Marmet Health Care having day his in court should the terms of — Center, Brown, U.S. -, Inc. v. materially a contract be altered after the S.Ct. (per L.Ed.2d 42 execution of said contract. curiam).] Syl. II, circuit court’s order in the pt. Shrews- Brown case, bury Appeal No. likewise stat- S.E.2d 217. The sole basis for the conclu- that, ed sions of the circuit courts that the Front and Shrewsbury argues Acceptance Ms. that the NAF consent named these forums in the already decree and AAA moratorium were purpose achieving contract for the an unfair place naming when her contract was executed advantage, nor does she direct this Court to Thus, foregoing organizations as arbitrators. appendix sup- evidence in the record that would proeedurally she contends her contract was Therefore, port theory. reject such a we unconscionable at the time of its formation. We argument. disagree. Shrewsbury allege Ms. fails to provision If in substantively agreement un- the be made

Shrewsbury contracts were naming appointing for a or method unavailability of one or was the conscionable or an umpire, arbitrator or arbitrators in designated forums both the arbitration followed; if such method shall be but no govern between agreement the to therein, provided method or if a be method respective the the contracts. Inso- parties to provided any party be thereto shall un- far the determination substantive method, fail to of such if avail himself or reviewing a to eonscionability instructs lapse shall for other reason there be a general fairness of contract examine the the in or naming the of an arbitrator arbitra- such as “the commercial rea- through factors umpire, filling vacancy, tors or or in then terms, pur- the contract the sonableness of upon application party the of either to the terms, pose allocation of and effect of the the controversy designate the court shall parties, public between the risks appoint arbitrator or um- arbitrators or concerns,” analysis simply policy we find pire, may require, who the case shall act applicable is determination of not agreement under with same the said unavailability of a whether the selected arbi- they force if he or and effect as had been tration forum renders contract unenforcea- therein; specifically named unless oth- nothing inherently ble. There is unreason- provided erwise the arbi- term able about a contract in which by single tration shall be arbitrator. parties to select one or more forums choose disputes may § 9 U.S.C. Federal courts have concluded arbitration of 5. conduct may FAA be applied that section 5 of the parties. subsequent said arise between when a is chosen arbitrator unavailable. See unavailability of a selected does not forum (3d Inc., Khan v. 669 F.3d Dell automatically render the contract uncon- Cir.2012) (“[S]ection Rather, pro 5 of the FAA ... developed courts scionable. have substituting vides a tests, below, mechanism for an arbi other which will be for discussed designated trator when the un arbitrator is determining unavailability whether the of a available.”); ITT Brown v. Consumer Fin. forum a contract chosen arbitration renders (11th Cir.2000) 211 F.3d Accordingly, find that unenforceable. we (“Where unavailable, the chosen forum finding erred both of the circuit courts however, reason, § or has failed for some Shrewsbury Front and sub- contracts to be applies and a substitute arbitrator stantively upon unconscionable based Indus, named.”); Harwyn Astra Footwear unavailability aof chosen arbitration forum.10 Int’l, Inc., (S.D.N.Y.), F.Supp. Availability B. Forum (2d Cir.1978) (“The aff'd, 578 F.2d 1366 Court that 9 U.S.C. 5 was finds drafted unconseionability argu- The essence of the provide problem a solution to the caused ments made to this Court these consoli- by the parties when arbitrator selected appeals properly is more dated framed as perform.”). cannot or will not unavailability challenging whether the of a forum However, chosen arbitration renders an arbitra- section 5 of the FAA does begin tion unenforceable. We appointment warrant the automatic of a sub- FAA, analysis our with the ar- insofar as the stitute the chosen ai’bitrator when arbitrator agreements bitration at issue all stated applying is unavailable. A method for sec- they thereby. governed are 5 of the Section tion 5 of FAA under such circumstances requires designate FAA a court to an arbi- Eleventh was established Circuit of Appeals trator under certain Court in Brown v. ITT circumstances: Consumer additionally Shrewsbury argues Appeals authority Ms. her in its is limited resolve as- substantively signments nonjurisdictional was be- errors to contract unconscionable a consid- passed upon by eration cause the arbitration clause was buried on the of those matters the court However, densely-printed arising portions fairly upon form. back of a below and argument designated appellate Syl. was neither raised to addressed record for review.’ Pt. Co., Inc., Accordingly, part, Const. the circuit court. the issue is not Parker v. Knowlton (1975).”), properly before this Court for our review. See 210 S.E.2d 918 over- Cook, Syl. pt. grounds Trent v. W.Va. ruled other Gibson Northfield Co., (1996) (" (2005). Supreme '[T]he S.E.2d 218 Court of Ins. 631 S.E.2d 598

529 1217. More asks of Corp., 211 F.3d re- court whether a choice forum is Financial inte cently, it gral, the Brown method was summarized asks whether whole the arbitration Appeals agreement Court of the Third Circuit as becomes unenforceable if the cho act.”), follows: sen arbitrator cannot or will not over grounds recognized ruled on other applicability of determining In the Section Atlantic Hawley Nat’l Trust LLC v. Mt. of an arbitrator is un- Ins. 5 the FAA when Co., (9th 931, Cir.2010); 621 available, F.3d 940 Brown courts have focused on whether Corp., ITT v. Consumer Fin. 211 F.3d designation the of the arbitrator was inte- at (“Where gral provision 1222 the forum to the arbitration or was chosen is unavail reason, merely ancillary ... or § consideration.... able has failed for some 5 applies [0]nly integral may if the of forum is an and a choice substitute arbitrator be arbitrate, part agreement Only of the rather named.... if the choice of forum is an concern, integral ancillary logistical part agreement arbitrate, than an will the of the preclude forum failure of the chosen arbi- ancillary logistical rather than an concern words, tration.... In other a court will the preclude will failure of the chosen forum arbitrator, appoint decline to a substitute (quotations arbitration.” and citations omit FAA, provided only parties’ ted)); if the Illinois, Green v. U.S. Cash Advance choice of forum is so central to the arbitra- LLC, 12-C-8079, 317046, No. 2013 WL at *3 agreement unavailability tion the (N.D.Ill. 2013) (“A of 25, Jan. substitute arbitra- agreement the brings arbitrator to an however, appointed, tor not be if the light, parties end.... In must provision naming the arbitrator was an inte unambiguously expressed have their intent Thus, gral agreement. of the the court disputes not to arbitrate their in the event applying § must decide before 5 whether the designated that the arbitral forum is un- integral chosen arbitration forum is to the available. agreement merely ancillary logistical or (citations omitted)); Khan, quotations concern.” (quotations F.3d at 354 cita omitted). Evangelical a v. Klim Lutheran Good Sa appli tions formulation of the This 10-CV-1390-JAR-JPO, Soc’y, maritan No. of FAA majority cation section 5 of the is the (D.Kan. 2011 WL at Tijerina, *3 Nov. Ranzy rule.11 See v. 393 Fed. 2011) (5th Cir.2010) (“Section (following majority based finding Appx. 5 [of Fifth, Ninth, approach “the however, taken not, permit a FAA] does district Eleventh Circuits consistent with both the parties’ designation to circumvent the general purpose princi behind the FAA and of an forum exclusive arbitration when the ples contract law because it arbitra integral part choice of that forum is an of the treats arbitrate, agreements rather than an tion like contracts and looks to ancil intent”); Inc., lary logistical (quotations parties’ concern.” v. Dell cita Adler No. omitted)); LLP, 08-CV-13170, tions Reddam KPMG 2009 WL *2 (9th Cir.2006) (“When 2009) (“As (E.D.Mich. rule, general F.3d 1059-60 Dec. a Nowlin, Leasing Corp. appoint 11. See Diversicare No. for substitute a named fo- 1-CV-1037, (W.D.Ark. 1 2011 WL at *5 rum that is unavailable because unavailabili- 18, 2011) ("The majority Nov. of courts who ty of a selected not fall within forum does ap have addressed a substitute can whether meaning "lapse” as used in term section 5. pointed pursuant specifi 5 [when to Section See In re Inc. Salomon Shareholders' Derivative cally named forum in an arbitration 5500(RRP), (2d Litig. 91 Civ. F.3d parties' claims] cannot hear the have utilized the Cir.1995) (concluding applies "[s]ection approach v. ITT set out in Brown Consumer Fi when there is n lapse naming an arbi- (11th Cir.2000)”). nancial 211 F.3d vacancy.’ § filling trator ... or in 9 U.S.C. 5 Servs., Inc., See also Rivera v. American Gen. Fin. added). (emphasis ‘lapse’ We believe that the (2011) (observ 150 N.M. 259 P.3d lapse referred to in in time in the means 'a ing "[m]any jurisdictions ... have concluded naming filling or in the’ arbitrator of a "integral” "ancillary logis that Brown's versus arbitrators, vacancy panel on a Reins. Pacific proper way tical concern” test is a to determine Mgt. Corp. Corp], [v. Ohio Reins. 814 F.2d may appoint whether a court a substitute arbitra (9th 1987)], [ Cir. or other mechanical some provider.”). tion pro breakdown in the selection arbitrator contrary, To the at least one federal court has cess[J"). applies found that section 5 of the FAAnever arbitration rules When the reference to named the arbitration arbitrator when the merely will not “an arbitrate or an forum is ancil- agreement cannot concern,” not the arbitra- lary application does void the dispute, logistical the court or Instead, it differ- appoints a agreement. tion a different appoint of Section 5 to arbitra- arbitrator, provided in 5 the [§ of] as ent to the of tor does not do violence intentions exception contrast, ... Act[.] The parties. Federal Arbitration when the By the choice it is the when clear that to rule occurs integral the of arbitration forum was ancillary logistical con- failed term is not parties not agreement, that the would such important a consider- is as cern but rather agreed upon have arbitration absent the to arbitrate itself.” agreement as the ation forum, application of Section 5 to selected (internal citations, footnote quotations, is appoint arbitrator more a substitute McGuire, omitted)); Blakey Cornwell & v. problematical. (D.Colo.1991) Grider, F.Supp. 320 771 LLC, F.Supp.2d v. 684 Jones Pierre GGNSC (“[A]s rule, where arbitrator general the 1161, 1166(D.S.D.2010). agreement arbitration cannot named in the dispute, does or the a court will not arbitrate by foregoing the persuaded We are appoints but agreement the instead not void and, therefore, authority, expressly we now excep- a different arbitrator-There is an agreement hold that an arbitration where Where it is that the tion to this rule. clear that is names a forum for arbitration unavail ancillary logistical not an con- failed term is reason, a able or for some court has failed important a consider- cern but rather is pursuant may appoint forum a substitute itself, agreement arbitrate ation as the Act, section 5 the Federal Arbitration 9 of the failed term from the court will not sever (1947) (2006 ed.), only § if U.S.C. 5 agreement and the entire arbitra- rest of the ancillary logistical choice of con forum is an (internal quotations provision will fail.” tion is cern. choice of forum an inte Where the omitted)); Gateway, Carr and citations v. arbitrate, gral agreement to 15, 26, Inc., 348 Ill.Dec. 944 241 Ill.2d failure of forum will render the the chosen (2011) (“[W]e agree with N.E.2d arbitration unenforceable. agreement have those federal courts that held section Turning instant to the facts of the consoli applied of the Act to name a substi cases, agreements dated parties’ designated the three where the tute arbitrator fails, appeal involved in contained the follow designation unless the arbitral forum integral ing provision: may elect parties’ forum is to the “You or we to arbi the arbitral arbitrate.”); procedures Rivera v. Ameri trate under the rules and of ei Inc., Servs., Fin. 150 N.M. 259 ther the Forum the can Gen. National Arbitration or (“We agree P.3d with the American Association.” As we Arbitration jurisdictions parties’ that have focused on the explained in the “Factual and Procedural contract, intent, expressed I.A., to deter History” opinion, section of this Section permits whether 5 of the FAA by mine supra, as a suit filed State a result of a different arbitration Minnesota, to substitute into the NAF entered a con provider. ‘integral’ ‘ancillary logis The forbidding conducting sent it from decree tical concern’ test articulated the Elev CompuCredit consumer See arbitration. - Brown, enth Circuit F.3d at Greenwood, Corp. v. U.S. at - n. general princi with New Mexico’s (“In consistent 132 S.Ct. L.Ed.2d at 677 n. ples requiring courts to of contract law Attorney after the General Minneso (sec give of the parties.” effect to the intent filed alleging ta an action NAF had omitted)). quotation ond internal and citation engaged in numerous violations consumer- laws, protection into a NAF entered consent majority rule is “lib- founded on the handling barring decree it from consumer in favor policy eral federal of arbitration arbitrations.”). Thus, NAF is Khan, unavail FAA.” at articulated 669 F.3d (internal omitted). able to asserted arbitrate the claims quotations The ratio- Shrewsbury against Fronts Credit explained rule has been as fol- and Ms. nale for the Acceptance. lows: Shortly denying Acceptance’s was barred from courts erred in after the NAF arbitrations, handling See, the “AAA consumer motions to e.g., arbitration. arbitrating Bank, a moratorium on eases issued Montgomery Applied F.Supp.2d concerning consumer debt collections those (finding if company and brought by were cases grounds unenforceable on of unavailability of the arbitration.” did not consent to consumer forum, in AAA part, because remained avail Bank, Montgomery Applied 848 able); Citibank, N.A., Conroy v. No. CV 10- added). (emphasis at 613 It is F.Supp.2d (AJWx), 04930 SVW WL moratorium issued significant (C.D.Cal. 2011) July 22, (rejecting *6 argu applies only to consumer debt collection AAA agreement ment that arbitration unenforcea Thus, company. brought by as cases the potential unavailability due to ble of forum asserted, Acceptance because the Credit has available); AAA where remained Smith by consumers, against brought it claims were Inc., ComputerTraining.com 772 F.Supp.2d Shrewsbury, and the AAA the Fronts Ms. (E.D.Mich.2011) (“This 850, 862 case is not to remains an available forum arbitrate those by covered It moratorium. does not Indeed, argument during oral of this claims. collection, involve a consumer debt telecom case, and for the Fronts Ms. Shrews- counsel bill, Instead, or consumer finance matter. rightfully the AAA re- bury conceded this case claim which constitutes a would be available to arbitrate his clients’ dis- mained business, against filed consumers a which Montgomery, F.Supp.2d See putes. at explicitly says AAA’s website it will (“AAA will indicates that it continue to hear.... can demand Plaintiffs all administer demands for arbitration filed (citation omitted)); AAA.” before In re Pfeif businesses, against all consumers 11-13274, fer, Bankr. No. WL types (quo- of consumer arbitrations.” other 8, 2011) (Bkrtcy.E.D.Pa. Sept. (finding *8 at omitted)). tations citation See also inapplicable availability FAA section 5 due to Association, Arbitration “Notice on American AAA). Arbitrations,” Consumer Debt Collection Jury Right C. ato Trial at, http://www.adr.org/cs/groups/ available case, 11-1646, governmentandconsumer/documents/ Appeal In the No. Front doeument/dgdf/mdey/~edisp/adrstg_012244. court found circuit Fronts could not (“[T]he pdf previously AAA’s announced contractually rights waive their under the WVCCPA, on debt collection arbitrations moratorium stating: in effect.... included in remains Matters Virginia pro- West Code 46A-1-107 debt this moratorium are: consumer collec- Virginia hibits consumers West from waiv- filings and programs tion or bulk individual ing rights Virginia under West filings company in which is the ease (the Consumer Protection Act Credit and agreed filing party and the consumer has not ’). “Act” The Act states: dispute, to arbitrate the time of Except provided as otherwise in this bill, a a telecom the case involves credit card chapter, a consumer not waive or bill or consumer finance matter. The AAA agree forgo rights or to benefits under all to administer demands mil continue for two-a, chapter chap- or under article against by consumers busi- arbitration filed forty-six ter of this code. types as well as all other of consumer nesses opinion The court is of the that a consum- added)). (emphasis arbitrations.” rights er’s ... under the afforded Act one of Because forums jury right right include the trial. This agreements named the arbitration remains agreement, an espe- cannot be waived disputes underlying available to arbitrate the cially agreement longer an which no exists necessary it is for appeal, not this Court original in its form. analysis to conduct whether the case, Similarly, Shrewsbury Appeal ancillary merely forum selection was lo- No. the circuit stated: concern, integral gistical or was instead an [Tjhis agreement uphold part of to arbitrate. Due to Court is reluctant an arbi- forum, availability essentially of a chosen the circuit which elimi- because it takes substantively unconscionable file right to party’s constitutional nates by jury fails because right to a trial away his right to assert one’s Although the suit.... rely uniqueness of an may not on the subject courts may be system in the court claim arbitrate, “[cjourts necessarily waiver, which enforceable legally ato trial, a basis for a state-law jury presumption waives every reasonable indulge would be uncon- enforcement holding that constitu- a fundamental waiver of against _ that waivers It well-settled acquies- scionable presume not right and will tional fully under the enforceable jury trial are of such fundamental in the loss cence FAA,” (quotations and collecting cases May ex rel. Syllabus Point State right.” omitted)). Boles, citations (1964). Furthermore, argues that Acceptance statute, rule, or common-law [a] state We erroneous. rulings were foregoing doctrine, provi- targets arbitration which II, this Syllabus point 1 of Brown In agree. and which is disfavored treatment sions for held: Court types of con- usually applied to other Act, 9 Arbitration the Federal Under as an obstacle to provisions, stands tract 2, provision to settle § a written U.S.C. and execution of accomplishment controversy arising out of a Federal Ar- objectives of the purposes and a transaction af- evidences contract that 2, Act, and is 9 U.S.C. bitration valid, irre- commerce is fecting interstate preempted. enforceable, vocable, provi- unless the 8, Brown v. Syl. pt. Brown ex rel. Genesis invalid, revocable is found to be sion 646, 724 Corp., 228 S.E.2d Healthcare W.Va. ground that exists at upon a unenforceable (2011), 250, in on other 261 overruled any the revocation of equity in for law or Ctr., Inc. v. grounds by Marmet Health Care contract. — -, Brown, 132 S.Ct. 182 U.S. (citation omit 229 W.Va. curiam). (2012) (per Insofar as L.Ed.2d 42 ted). Thus, agree an insofar as rulings single out arbitra the circuit courts’ nature, ment, requires party to very its treatment, rulings such tion for disfavored litigate, it right or her surrender his Accordingly, we find that rejected. must be solely ground. that upon not be invalidated in their conclusions circuit courts erred both Co. v. & Acc. Ins. American Gen. See Life agreements were invalid that the arbitration (4th Cir.2005) (“To Wood, F.3d 91 n. 6 right jury to a trial. waiving the argues waiver the extent Wood right to access to state constitutional of his IV. knowing and by jury must be or trial courts CONCLUSION already that ‘the voluntary, stated we have necessary jury trial is a right of the to a loss expressed body reasons For the agree consequence of an fairly obvious 11-1646, we re- opinion, Appeal in No. Checkpoint ment to arbitrate.’ Snowden 20th, 2011, order of the the October verse (4th Cir. Cashing, F.3d Check Raleigh County, in which the Circuit Court of 2002) (internal omit quotations and citations plaintiffs, and remand the cases Fronts were ted).”); Cmty. Fire James Volunteer Lake entry for of an that court consolidated N.C., F.3d Cnty., Dep’t, Inc. v. Burke compelling arbitration. order (4th Cir.1998) (commenting “simply reasons, likewise, Ap- in for the same We the waiver of a a contract includes because 12-0545, March reverse the peal No. render the con right does not constitutional Raleigh of the Circuit Court of order including per se unenforceable” tract Shrewsbury was the County, in which Ms. of waivers of right jury to a trial in a list entry of an order plaintiff, and remand for upheld). See also Har rights that have been compelling arbitration. Inc., Co., Sounding rington v. Atlantic 11-1646, Cir.2010) and Re- 113, 126 (2d Appeal No. Reversed (concluding “Har F.3d Agreement was manded. rington’s argument that the Second, Appeal No. Reversed and Re- our recent discussing eases uncon- scionability in manded. contracts have held that there proof

must procedural of both and sub unconscionability, stantive judged on a slid Justice KETCHUM concurs and reserves ing Syllabus scale. Point Brown v. Gene right concurring opinion. to file a sis Healthcare S.E.2d 250 [“Brown I”]. Under our KETCHUM, concurring: Justice law, unenforceable, recent case “[t]o be majority’s opinion, I concur with but contract term must —at least in some small separately points. write to make two procedurally measure —be both and substan tively Builders, unconscionable.” Ryan Dan First, crafting Syllabus Point Nelson, 281, 289, Inc. v. majority opinion upon relied the recent ease omitted). (quotations S.E.2d (3rd Inc., of Khan v. Dell 669 F.3d 350 However, in footnote majority 8 of the Cir.2012), deciding whether the unavaila- opinion, questioned Justice Davis the need bility of a chosen arbitration forum renders sliding for the adopted scale Syllabus an arbitration unenforceable. Point 20 of Brown I requires both sub Syllabus Point 3 makes a distinction between stantive procedural unconscionability. whether the choice of the arbitration forum is This Court was one of the twelve state su “ancillary logistical concern” or an “inte- preme adopted courts to have or reaffirmed a gral” part to arbitrate. sliding approach scale since 2000. See Melis However, majority opinion gives no Lonegrass, Finding sa T. Room For Fair guidelines as how to if agree- determine ness in Sliding Formalism — The Ap Scale “ancillary ment’s choice of a forum is an proach to Unconscionability, Loy. 44 U. Chi. logistical “integral” part 1, (2012). concern” or an of However, L.J. 6 of these twelve have, courts, agreement. the arbitration I would expanded “five have further the slid ease, ing like the Khan approach made this clear add- scale finding to hold that a of unconscionability may ing following sentence at the end of rest evidence of procedural either or Syllabus substantive unconseiona- light, parties Point 3: “In this bility without requiring evidence of both.” unambiguously must have expressed their Id.1 intent not to disputes arbitrate their designated event that the arbitral forum is Furthermore, Legislature suggest- our has Khan,

unavailable.” 669 at 354. I F.3d be- ed that both forms unconscionability of are lieve that a court appoint should decline to required. example, For the Uniform only alternate arbitrator original when the provisions Commercial Code pertaining to choice of forum was “so central to the arbi- leases state that a any lease contract or unavailability that the of may clause of a lease contract be voided if it [brings] that arbitrator to an procedurally is either substantively or uncon-. end.” Likewise, Id. scionable.2 Virginia the West Con- 1. See scionability ity absolute U.S. and substantive combination of 2010) (en banc), a contract’s Corp. ("Unconscionability 305 Ill.Dec. (2011) (mem.) ‘substantive’ or a combination of Mo. Title present (2009) (“While if there is a combination -, Razor N.M., requirement to the same 131 S.Ct. being v. Loans, Inc., can be 15, Hyundai 146 N.M. both.”); ("Under unconscionability, vacated on invalidated for unconscionabil 854 N.E.2d there is a procedural, can be either in our law that both must Motor degree Cordova v. World Fin. Missouri greater S.W.3d 208 P.3d other Am., or that substantive or a both both.”); ‘procedural’ L.Ed.2d 1184 grounds, likelihood of law, there is no procedural they Ill.2d uncon- Brewer (2006) 907- both (Mo. - 75, or 2. W.Va.Code 46-2A-108 Leasing, Vt. port tract terms.”); taken in be ("Substantive al (with lease contract or unconscionability present 1, have emphasis 103 P.3d 35 A.3d based on it finding If the court as a matter of law finds a Inc. v. assuming Adler v. (1987)) ("The superior been all.’’); of unconscionability added): unconscionable at the time it was Rodriguez, unconscionability.”). Fred that the Glass containing 782-83 Lind clause required ford presence 149 Vt. ^[1996] Manor, v. (2004) (en banc); BrickKicker, (citing alone can a lease contract unconscionable court was mis to void a con states, 153 Wash.2d of procedur Val Preda 540 A.2d sup that, says Act and Protection sumer leases, sales, regarding consumer credit

loans, if it was be voided a contract conduct” “induced unconscionable

either were uncon- of the contract

or if the terms made.”3 “at the time it was

scionable correctly that this issue Davis finds

Justice need- parties nor neither briefed

was this addressed to resolve case.

ed to be

However, future, I believe Syllabus revisit Point

Court should Corp. [Brown Healthcare

Brown Genesis clarify point of law.

I and]

745 S.E.2d 572 re

In MARLEY M.

No. 12-0957.

Supreme Appeals of Court of Virginia.

West

Submitted March

Decided June been induced the conduct. its own motion the bility under subsection evidence made the court contract court as a matter of the lease contract or clause contract.... (2) parties With Before or as to the may grant appropriate respect making finding reasonable or clause of unconscionable conduct that of a setting, purpose, to a consumer refuse to enforce law finds that a lease opportunity a lease contract or party, (2), thereof, of unconsciona- relief. lease, shall afford court, present if effect lease has ... 3. W.Va.Code 46A-2-121 lease or consumer gives (1) of law scionable been made, (a) enforce the With rise to a consumer credit finds: unconscionable or to respect to conduct, agreement!.] have been loan, a transaction which the court or transaction to if the court as a matter ^[1996] induced the time it was sale, states, may refuse to consumer uncon- is or part: have

Case Details

Case Name: Credit Acceptance Corp. v. Robert J. and Billye S. Front, etc.

Court Name: West Virginia Supreme Court

Date Published: Jun 19, 2013

Citation: 745 S.E.2d 556

Docket Number: 11-1646 & 12-0545

Court Abbreviation: W. Va.