(recognizing that the party opposing an arbitration provision's
enforceability bears the burden of establishing a defense to the provision's
enforcement). In particular, respondents have not identified any part of
the arbitration provision that could be construed as depriving them of
their NRS Chapter 40 rights or remedies. See Gonski, 126 Nev. at 562,
245 P.3d at 1172 (concluding that an arbitration provision was
substantively unconscionable because it deprived homebuyers of their
Chapter 40 rights and remedies).
Insofar as the district court found the provision's
individualized-arbitration•requirement to be cost-prohibitive, the record
contains no evidence to support that finding. See D.R. Horton, 120 Nev. at
553, 96 P.3d at 1162 (recognizing that a district court's factual findings
are not accepted by this court if they are not supported by substantial
evidence); cf. Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 91
(2000) ("The 'risk' that [a plaintiff] will be saddled with prohibitive costs is
too speculative to justify the invalidation of an arbitration agreement.").
Thus, to the extent that the district court based its substantive
unconscionability determination on its finding that individualized
arbitrations would be cost-prohibitive, that determination was in error.
D.R. Horton, 120 Nev. at 553, 96 P.3d at 1162. Accordingly, in the absence
of other evidence to support respondents' argument that the arbitration
provision was substantively unconscionable, the district court improperly
found the arbitration provision to be unenforceable. Gonski, 126 Nev. at
557, 245 P.3d at 1169; D.R. Horton, 120 Nev. at 553, 96 P.3d at 1162. We
therefore
SUPREME COURT
OF
NEVADA
2
(0) 1947A ea
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
Saitta
Piet,. di
Pickering
,J.
cc: Hon. William D. Kephart, District Judge
John Walter Boyer, Settlement Judge
Payne & Fears LLP
Fuller Law Group P.C.
Bourassa Law Group, LLC
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
3
(CI 1947A e