(85) The Garcias, both former Scientologists, sought to invalidate on grounds of unconscionability
a contractual provision binding them to Scientologist arbitration.
For example, as noted, before Rent-A-Center, several courts did not allow arbitrators to decide unconscionability
challenges because of their "self-interest in deciding that a dispute is arbitrable." (149) After Rent-A-Center, these same courts have reluctantly acknowledged that their previous rulings "discriminate!] against arbitration, putting agreements to arbitrate on a lesser footing than agreements to select any judicial forum for dispute resolution." (150) Thus, they have "reject[ed] the argument, however practical it may be, that an arbitrator will be unable to determine the question of arbitrability because he or she may potentially be driven by an ulterior interest in keeping the case in arbitration to generate fees." (151)
In cases in which the facts include, for example, a failure to allow one party to fully review and retain a copy of the agreement, coercion, or pressure into signing the agreement, prevention of one party from understanding the agreement, or a roll-out of an agreement containing a class-action waiver after a class-action is threatened or has been initiated, courts may be more likely to find procedural unconscionability
"sliding scale" approach to unconscionability
hinges on the contract formation process.
question of procedural unconscionability
. Thus, it is apparent that the
note will outline the doctrine of unconscionability
(95) For the Ninth Circuit, California precedent on this point was a "refinement of the unconscionability
analysis applicable to contracts generally in California." (96) Accordingly, in the view of the Ninth Circuit, the FAA did not preempt California's application of its well settled unconscionability
Having identified the concept of unconscionability
as the touchstone of the trust, he professed himself unable to see how the bank's conscience could be affected.
(68) In Italian Colors, the Court held that even if the cost of arbitration would exceed the possible total recovery the plaintiff could expect, the challenge of unconscionability
was still preempted by the FAA.
(69) The loan company contended "that all state law unconscionability
defenses are preempted by the [FAA] in all cases," pursuant to the holding in Concepcion.
Courts may also turn to the common law doctrine of unconscionability
to address mandatory arbitration clauses in the provision of these free digital services.