The issue before this Court is whether a named plaintiff in a class action lawsuit must be dismissed when that plaintiff subsequently signs a consumer form-contract containing a mandatory arbitration clause that includes a class action waiver. We find the clause unenforceable.
¶14 Consumers signing such adhesion contracts are susceptible to unpleasant surprises prepared for the protection of the corporation, not the consumer. The law has begun to take a more active role in the protection of the consumer against abuses. That consumers have not read or do not understand the implications of contract provisions has been implicitly recognized in our insurance case law by the use of the phrase "hidden in policy provisions." Max True Plastering Co., 1996 OK 28, ¶ 2, 912 P.2d at 863. As a result, new rules in such adhesion contracts have been applied to protect the "reasonable expectations" of the parties. Max True Plastering Co., 1996 OK 28, ¶ 6, 912 P.2d at 864.
¶15 The question we must answer is whether the clause in the May 23, 2001, contract that asserts the parties "agree" to arbitrate any disputes arising from any prior agreement including those from predecessors in interest, is enforceable. The question is not whether the arbitration clause in the May 23, 2001, contract is valid as it relates to that specific contract, but whether it controls the previous Southwestern Bell Mobile Systems contract, which is the contract at the center of this class action.
¶20 Cingular cites Barnes v. Helfenbein, 1976 OK 33, 548 P.2d 1014, which provides the test for unconscionability.
"The basic test of unconscionability of a contract is whether under the circumstances existing at the time of making of the contract, and in light of the general commercial background and commercial need of a particular case, clauses are so one-sided as to oppress or unfairly surprise one of the parties. Unconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties, together with contractual terms which are unreasonably favorable to the other party."
Barnes, 1976 OK 33, at ¶ 23, 548 P.2d at 1020.
¶22 Despite Cingular's argument, it defies reason to conclude that Bilbrey intended to halt a class action suit filed February 15, 2001, in exchange for a free cell phone on May 23, 2001. He even continued to pursue the case for another ten months at which time Cingular finally discovered the arbitration clause. Clearly, Bilbrey did not know the implications of the May 23, 2001, contract, and Cingular's agents, the attorneys in this lawsuit, did not realize he had signed it. It is equally clear that both Bilbrey and Cingular's agents were surprised by Bilbrey's signing a contract that could potentially result in the dismissal of a class action lawsuit that was currently being actively prosecuted by Bilbrey and vigorously defended by Cingular.
¶23 Such an effect is one-sided and unreasonably favorable to Cingular. The cases cited by Cingular that give effect to retrospective clauses in arbitration agreements are not on point.7 We accordingly find the retroactive clause in the arbitration agreement unconscionable as it relates to a presently active lawsuit that would be dismissed if this clause were given effect.
Hat Tip: Elaine Dowling at Consumer Law Updates