A few months ago, you would have reasonably thought that West Virginia was one of the most anti-arbitration states in the country. There was not an unconscionability argument that the state didn’t seem to buy with respect to arbitration clauses. (Recall its arbitration feud with SCOTUS in 2012?) But, this month, West Virginia’s highest court issued two decisions enforcing arbitration agreements, suggesting it has had a change of heart.
In the first opinion, New v. Gamestop, __S.E.2d__, 2013 WL 5976104 (W. Va. Nov. 6, 2013), the court found an employee handbook was sufficient to create an arbitration agreement between the employee and employer and that the arbitration agreement was enforceable. The primary argument from the employee was that the agreement was unconscionable because the employer could change it at any time. (Didn’t I tell you the illusory argument is hot this year?!)
The arbitration agreement provided that “GameStop may from time to time modify or discontinue [its dispute resolution program] by giving covered employees thirty (30) calendar days notice…any such modification…shall be applied prospectively only.” The court found that the 30-day notice requirement, and the fact that existing disputes would proceed under the terms existing when they were submitted, meant the agreement was not unconscionable
In the second opinion, Ocwen Loan Serv. v. Webster, __S.E.2d__, 2013 WL 6050723 (W. Va. Nov. 13, 2013), the court reversed a circuit court’s denial of a motion to compel individual arbitration. The lower court had concluded the Dodd-Frank Act prevented arbitration of claims by mortgagees and that the arbitration agreement was unconscionable.
On appeal, West Virginia’s highest court made short work of the Dodd-Frank argument. (One part of Dodd-Frank provides that residential mortgage loans may not require arbitration. 15 USC § 1639c(e)(1).) It noted that the named plaintiffs’ mortgage was executed in 2006 while the Dodd-Frank Act was not effective until 2010 and was not retroactive.
With respect to procedural unconscionability, the plaintiffs argued their relative lack of sophistication and lack of counsel. The court disagreed, finding that presence of counsel is not dispositive and because of language in all caps in the agreement providing “THIS IS A VOLUNTARY ARBITRATION AGREEMENT. IF YOU DECLINE TO SIGN THIS ARBITRATION AGREEMENT, LENDER WILL NOT REFUSE TO COMPLETE THE LOAN TRANSACTION.”
The plaintiffs argued the arbitration agreement was substantively unconscionable because it waived class actions, restricted attorneys’ fees, lacked mutualty, and limited discovery. After block quoting ad nauseum from AmEx (reading these opinions, I started to wonder if the members of this court get paid per block-quoted word…), the court concluded that the class waiver did not make the agreement unconscionable. The court also found that the requirement that each party pay its own attorneys fees, and the lender’s carveout of its foreclosure right (and a few others) from the scope of the arbitration, did not render the agreement unconscionable. Finally, the agreement’s statement that “discovery in the arbitration proceedings may be limited by the rules” of the provider also did not make the agreement unconscionable.
I am not convinced that West Virginia is a bellwether and other reliably anti-arbitration states may be following suit. But this is still an interesting shift.