The plaintiffs arguably had an even stronger claim of substantive unconscionability
, which the court refused to consider.
The Fifth Circuit and judges in California, Florida, New York, and Texas have found that selecting AAA or JAMS rules "delegate[s] the issue of class arbitration to the arbitrator." (330) But other courts have refused to indulge in what the Third Circuit called "a daisy-chain of cross-references." (331) Instead, they demand a conventional delegation clause in order "to wrest that decision from the courts." (332) On the other hand, when the arbitrability issue is unconscionability
, plaintiffs assert that delegation provisions must be explicit.
But when, for example, the terms of the agreement are clear, employees are given reasonable time to review and assent to the class-action waiver in the arbitration agreement, and especially when they are given the opportunity to opt out of the arbitration agreement, courts may be reluctant to find procedural unconscionability
. (27) Although there is an inherent inequality in bargaining power between employees and employers, that alone is not sufficient to constitute procedural unconscionability
On the issue of procedural unconscionability
, the district court
(328) Substantive unconscionability
focuses on the fairness of
grounds such as fraud, unconscionability
, or undue influence."
and substantive unconscionability
. This section will also include an
Additionally, the doctrine that the courts had applied in Concepcion was unconscionability
, a well-established and broadly applicable contract law doctrine and one that the Court had previously approved as an appropriate ground for a court to consider.
This attractive approach justifies the decision in terms which have nothing to do with unconscionability
. However, others (including those who accept the absence of basis analysis in respect of constructive trusts) disagree that the case was correctly decided.
(74) Parties can contract for the forum in which they wish to litigate; however, state courts retain the power to invalidate forum selection clauses through either the doctrine of unconscionability
or finding it against public policy for other reasons (e.g.
First, the Supreme Court of Missouri found that "the expressly stated issue in Concepcion was whether California's Discover Bank rule was preempted, not whether all state law unconscionability
defenses are preempted." (72) The court cited the unique criteria laid out in the Discover Bank rule and determined that the contract laws of other states are sufficiently different from the Discover Bank rule.
(114) If one were to pursue the argument that mandatory arbitration clauses are unfair in standard-form contracts for the provision of free digital services, it would be best to focus on the description of unconscionability
found in the judgment of Justice Lambert in Harry v Kreutziger.