Brief Fact Summary. The validity of an arbitration clause in a contract to sell a computer between a computer company and various consumers was at issue.
Synopsis of Rule of Law. It is generally necessary to prove both procedural and substantive unconscionability when arguing a provision of an agreement is unconscionable. However, substantive unconscionability alone is enough in a case where the consumer is "[b]arred from resorting to the courts by the arbitration clause in the first instance, the designation of a financially prohibitive forum effectively bars consumers from this forum as well; [and] consumers are thus left with no forum at all in which to resolve a dispute."
Issue. Is the arbitration clause violative of § 2-207 of the Uniform Commercial Code ("UCC")?
• Is the arbitration clause unenforceable as a contract of adhesion?
• Does the arbitration clause violate § 2-302 of the UCC "due to the unduly burdensome procedure and cost for the individual consumer?"
Held. No. Pursuant to [Hill v. Gateway 2000] and [ProCD, Inc. v. Zeidenberg], the arbitration clause does not violate UCC § 2-207. Based on [Hill], which construed the identical arbitration clause, the court here observed "the contract was not formed with the placement of a telephone order or with the delivery of the goods. Instead, an enforceable contract was formed only with the consumer's decision to retain the merchandise beyond the 30-day period specified in the agreement." During this time, the purchaser "has presumably examined and used the product(s) and read the agreement." Additionally, the court recognized how the [Hill] court recognized the realities of conducting business and observed "the concept of '[p]ayment preceding the revelation of full terms' is particularly common in certain industries, such as air transportation and insurance." The court also recognized that the [ProCD] court observed "UCC 2-207 did not apply and indeed was 'irrelevant' to such transactions, noting that the section is generally invoked where multiple agreements have been exchanged between the parties in a classic 'battle of the forms,' whereas ProCD (as well as Hill and this case) involves but a single form."
• No, irrespective of the fact that the parties do not possess equal bargaining power. Since the consumer had "the ability to make the purchase elsewhere and the express option to return the goods, the consumer is not in a 'take it or leave it' position at all; if any term of the agreement is unacceptable to the consumer, he or she can easily buy a competitor's product instead–either from a retailer or directly from the manufacturer–and reject Gateway's agreement by returning the merchandise." The consumer had 30 days to make their decision. The fact that the consumer does not read or understand certain portions of the contract is irrelevant.
• Yes. Under New York law, unconscionablity requires that a contract was "both procedurally and substantively unconscionable when made." In other words "some showing of 'an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.' " The procedural element is assessed by examining the contract formation process to determine if "in fact one party lacked any meaningful choice in entering into the contract, taking into consideration such factors as the setting of the transaction, the experience and education of the party claiming unconscionability, whether the contract contained 'fine print,' whether the seller used 'high-pressured tactics' and any disparity in the parties' bargaining power." The court concluded the transaction here was not procedurally unconscionable. The substantive portion of the analysis requires "an examination of the substance of the Agreement in order to determine whether the terms unreasonably favor one party." Alone, the site of the arbitration (Chicago) being inconvenient is not enough to rise to the level of unconscionability. However, the "excessive cost factor that is necessarily entailed in arbitrating before the ICC is unreasonable and surely serves to deter the individual consumer from invoking the process." Since the consumer is "[b]arred from resorting to the courts by the arbitration clause in the first instance, the designation of a financially prohibitive forum effectively bars consumers from this forum as well; consumers are thus left with no forum at all in which to resolve a dispute." The court then recognized that in this case, unlike most other cases, both procedural and substantive unconscionability did not need to exist for unconscionability to be found.
Discussion. This case offers an interesting discussion of §2-207 and §2-302 of the UCC and the common law principle of adhesion.