Did the trial court correctly decide that an arbitration agreement did not exist or, alternatively, that the agreement was unconscionable?
Respondent, Janice Fuller, was staying at a hotel in Las Vegas, Nevada. On two occasions, she used a check cashing service of the hotel. Petitioners provide management and debt recovery services in connection with the check cashing. In all, Respondent obtained $1,200. Respondent admits that she cashed checks at the hotel and that she signed an electronic credit card terminal. However, she specifically denies being presented with or signing any paper forms. The arbitration language which Petitioners seek to enforce appears on the face of the paper forms.
Respondent alleges that she repaid the $1,200, but that Plaintiffs attempted to collect the debt after payment was made. Petitioners moved to compel arbitration, citing the language in the paper forms. Respondent opposed the motion on two grounds. First, Respondent argued that an agreement to arbitrate did not exist because of a lack of assent. Second, Respondent argued that the agreement, if any, was unconscionable. Citing multiple factors, the trial court found that an agreement to arbitrate did not exist. Accordingly, Petitioners’ motion was denied. The parties, however, disagree over whether the trial court’s denial was based on assent, unconscionability, or both.
Petitioners focus entirely on the unconscionability claim. According to Petitioners, the trial court’s order does not make any findings regarding assent. Petitioners argue that none of the terms in the arbitration agreement are substantively unconscionable, including (1) a provision applying Florida law, (2) the selection of AAA’s commercial rules instead of its consumer rules, and (3) a class action waiver. In addition, the signing of the agreement by Respondent was not done “in a rushed environment” as the trial court found. Respondent had a choice whether, or not, to sign the agreement and did so freely. Thus, there is no factual support for the court’s unconscionability finding.
To begin with, Respondent argues that Petitioners fail to prove the existence of an arbitration agreement. Specifically, Respondent attacks Petitioners’ affidavits, pointing out that neither of the affiants had personal knowledge regarding the transaction. At best, Petitioners’ employees can testify what the company policies and practices are, but they cannot testify whether, in fact, Respondent was presented with the paper forms or signed them. Regarding the unconscionability claim, Respondent argues that there was procedural unconscionability because Respondent was never informed that she was “agreeing to arbitration of any kind.” Respondent also argues that the agreement is substantively unconscionable. Forcing a consumer to submit to Florida law is unconscionable when, as here, Florida law has no connection with the underlying transaction. Respondent also argues that the costs associated with AAA’s commercial rules make them unconscionable when applied in a consumer case.
Together with Employee Resource Group v. Collins, which is scheduled for argument the same day, this case will clarify the law regarding assent. In this case, it appears that some aspects of the transaction were done electronically. Others, however, involved paper forms that had to be signed by the consumer. The burden of proving that an arbitration agreement exists always rests with the party enforcing the agreement. Here, it does not appear that Petitioners have managed to carry their burden. This case also provides an opportunity for the Supreme Court to delve deeper into the law of unconscionability. It will be interesting to see if the Court is willing to find the choice-of-law provision and the adoption of AAA’s commercial rules to be substantively unconscionable.