Scott v. Cingular Wireless

¶ 28 (dissenting) — The public policy that the majority says is violated by the class action waiver at issue is a public policy created by the majority itself. If there is to be state policy forbidding class action waivers in consumer agreements, it should come from our legislature, not this court.

Madsen, J.

¶29 Perhaps more troubling, though, is that the majority’s new policy disfavors arbitration, contradicting the strong legislative public policy favoring arbitration of disputes embodied in the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16. Under the act, every presumption must be resolved in favor of an arbitration agreement. This policy of presuming validity of an arbitration agreement is of particular force where, as here, the arbitration agreement includes significant financial protection for consumers, belying the majority’s claim that, because small claims are at issue, recovery is effectively unattainable and the class action waiver acts as an exculpatory clause. If this arbitration clause violates “public policy,” then I cannot imagine any in the consumer context that would not.

¶30 Finally, without justification, the majority departs from the usual case-by-case analysis for determining contract unconscionability in favor of a sweeping rule that will invalidate thousands of arbitration contracts without regard to the specific terms of those agreements.

*861¶31 Because the majority takes on the legislative prerogative of making public policy and contravenes federal law requiring that arbitration agreements be accorded the same consideration as other contracts, I dissent.

ANALYSIS

f 32 The majority concludes that the class action waiver is unconscionable because it violates public policy by forestalling attempts to bring class suits vindicating consumer rights. The Consumer Protection Act (CPA), chapter 19.86 RCW, unquestionably embodies the legislature’s statement of strong public policy favoring private actions to enforce the act in addition to actions brought by the attorney general. “[C]lass suits are an important tool for carrying out the dual enforcement scheme of the CPA.” Dix v. ICT Group, Inc., 160 Wn.2d 826, 837, ¶24, 161 P.3d 1016 (2007). “Individual claims may be so small that it otherwise would be impracticable to bring them; a class action may be the only means” of vindicating the public interest in prohibiting “ ‘restraints of trade, unfair competition and unfair, deceptive, and fraudulent acts or practices in order to protect the public and foster fair and honest competition.’ ” Id. at 837, ¶24, 840, ¶30 (quoting RCW 19.86.920).

¶33 However, nothing in the CPA states the legislature’s intent, or even hints, that class suits are so essential to enforcement of the CPA that a class action waiver can never appear in a consumer contract governing transactions involving small amounts of money. Absent any such statement of policy by our state legislature, which is, after all, the branch of government establishing the public policy embodied in the CPA, I cannot agree to the majority’s sweeping statement of its own policy that class suits can never be waived in such a contract.

¶34 The majority rests on the faulty premise that the purposes of the CPA require invalidation of all class action waivers. In an analogous case, Johnson v. W. Suburban Bank, 225 F.3d 366 (3d Cir. 2000), the plaintiff argued that *862under Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S. Ct. 1647, 114 L. Ed. 2d 26 (1991), his arbitration agreement, which precluded class actions, should not be enforced. He contended that arbitration irreconcilably conflicted with the purposes of the Truth in Lending Act (TILA), 15 U.S.C. §§ 1601-1667f (which contemplates class actions), and the Electronic Fund Transfer Act, 15 U.S.C. §§ 1693-1693r, because under these acts, public policy is served through plaintiffs acting as private attorneys general in class litigation. The court held that the TILA does not create a nonwaivable right to bring a class action and that no irreconcilable conflict exists because individual rights and the public policy goals of the TILA can be vindicated through arbitration on an individual basis.

¶35 Similarly, consumer rights can be vindicated through individual actions where small claims are involved. As Cingular points out, its revised arbitration provision specifies that Cingular will pay all American Arbitration Association filing, administrative, and arbitrator fees, unless the arbitrator finds the claim frivolous. Thus, under this arbitration clause, the costs of arbitration do not present an insurmountable barrier to seeking recovery, even in the event of small value claims. Moreover, the arbitration agreement does not foreclose actions in small claims courts, and the plaintiffs can vindicate their consumer rights through actions in small claims court, at nominal costs.

¶36 Unlike the consumer protection laws of some other states, such as California’s consumer protection law, our CPA does not address waiver of class actions. As the court explained in Discover Bank v. Superior Court, 36 Cal. 4th 148, 113 P.3d 1100, 30 Cal. Rptr. 3d 76 (2005), the California Legislature has specifically provided for consumer class actions under the California Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750-1784. See Cal. Civ. Code §§ 1752, 1781. In fact, class actions in consumer actions are so favored that the California State Legislature also enacted an antiwaiver provision stating, “[a]ny waiver by a con*863sumer of the provisions of this title is contrary to public policy and shall be unenforceable and void.” Cal. Civ. Code § 1751. While there was a choice of law question that remained to be resolved in the case, there is no question the court was highly sensitive to the legislature’s policy choice.8

¶37 There is no comparable provision in the Washington CPA, nor is there any provision prohibiting waiver of class actions. Of course our state legislature could, as the California Legislature has, enact specific legislation addressing class suits in consumer actions. But in the absence of such legislation, it is inappropriate for this court to enforce such public policy in the face of an arbitration clause to the contrary — an arbitration clause that provides for expenses to be paid by Cingular Wireless.

¶38 The majority also reasons that the class action waiver acts as an exculpatory clause. In rejecting a claim that the bar on class proceedings in an arbitration agreement had the effect of immunizing the company from low-value claims, the Fifth Circuit pointed out that it “must take into account that both federal and [the relevant state] policy favor arbitration as a method of dispute resolution” and concluded that “the fact that certain litigation devices may not be available in an arbitration is part and parcel of arbitration’s ability to offer ‘simplicity, informality, and expedition.’ ” Iberia Credit Bureau, Inc. v. Cingular Wire*864less, LLC, 379 F.3d 159, 174 (5th Cir. 2004) (quoting Gilmer, 500 U.S. at 31).

¶39 Numerous courts have rejected the argument that the small claims at issue effectively made recovery unattainable, as a practical matter, where the arbitration agreement included financial protection for the consumers. For example, in Hutcherson v. Sears Roebuck & Co., 342 Ill. App. 3d 109, 121-24, 793 N.E.2d 886, 276 Ill. Dec. 127 (2003), the court noted the primary motive underlying the FAA was to enforce private arbitration agreements and, while recognizing “the importance of class actions as a tool for protecting consumers,” upheld the class-action waiver because the burden of costs fell primarily on the defendant bank. See also, e.g., Billups v. Bankfirst, 294 F. Supp. 2d 1265, 1276 n.6 (M.D. Ala. 2003) (the defendant agreed to pay the plaintiff’s administrative fees associated with arbitration); Tsadilas v. Providian Nat’l Bank, 13 A.D.3d 190, 191, 786 N.Y.S.2d 478 (2004) (because the plaintiff “failed to make use of her contractual right to ask defendant to pay her arbitration fees, her claim that the arbitration provision is unenforceable and unconscionable due to the potentially high arbitration fees is premature”).

¶40 In many of the cases the majority cites for the proposition that class action waivers in arbitration agreements are unconscionable, the contracts at issue did not provide that the defendant would pay costs of arbitration. Because they essentially precluded any recovery by consumers due to small claims making individual actions impracticable and effectively served to insulate the other party from any liability for its misconduct, the courts found these class action waivers substantively unconscionable. See, e.g., Whitney v. Alltel Commc’ns, Inc., 173 S.W.3d 300, 313-14 (Mo. Ct. App. 2005); Leonard v. Terminix Int’l Co., 854 So. 2d 529 (Ala. 2002); Powertel, Inc. v. Bexley, 743 So. 2d 570 (Fla. Dist. Ct. App. 1999); State ex rel. Dunlap v. Berger, 211 W. Va. 549, 554-55, 567 S.E.2d 265 (2002).

¶41 But as stated, in these cases there were no provisions for costs to be borne by the defendants comparable to *865Cingular’s contractual obligations. In Whitney, for example, the arbitration agreement provided that the defendant would reimburse the customer for filing or hearing fees, but only to the extent they exceeded what court costs would have been. Whitney, 173 S.W.3d at 304. It also provided that the defendant would not be liable for any attorney fees. Id. at 304 n.3. In Dunlap, 211 W. Va. at 554-55, the agreement provided for arbitration fees to be equally divided. In Luna v. Household Finance Corp. III, 236 F. Supp. 2d 1166, 1171-72 (W.D. Wash. 2002), a complicated cost sharing schedule was set up. The court said that the arbitration rider’s fee splitting arrangements weighed “heavily in favor of a finding of unconscionability” because they were “likely” to “drastically ... exceed the costs of pursuing the claims in court.” Id. at 1182. In Leonard, the arbitration agreement provided that the plaintiffs would have to pay a $500 filing fee; a minimum $150 administrative fee; a $150-$250 administrative fee per day for each hearing day; one-half of the arbitrator fee, which averaged $700 per day; and one-half of the cost of the hearing room. Leonard, 854 So. 2d at 535; see also Ingle v. Circuit City Stores, Inc., 328 F.3d 1165, 1177-78 (9th Cir. 2003) (arbitration provision required that employee pay one-half of the costs of arbitration); Ting v. AT&T, 319 F.3d 1126, 1151 (9th Cir. 2003) (the arbitration agreement required the customer to split the arbitrator’s fees, which could require some plaintiffs to face prohibitive costs); ACORN v. Household Int’l, Inc., 211 F. Supp. 2d 1160, 1174 (N.D. Cal. 2002) (the record showed that the plaintiff’s cost of arbitration would be approximately 10 times that of bringing an action in state court and that plaintiffs would bear a share of the entire arbitration costs, including the cost of the arbitrator’s fee). In other cases, the agreement did not address such costs or fees, or there is no indication in the opinion whether the arbitration agreement included any provisions relating to payment of costs of arbitration. E.g., Al-Safin v. Circuit City Stores, Inc., 394 F.3d 1254 (9th Cir. 2005); Discover Bank, 36 Cal. 4th 148; Szetela v. Discover Bank, 97 Cal. App. 4th 1094, 118 Cal. Rptr. 2d 862 (2002); Powertel, 743 So. 2d 570 (but *866noting the arbitration provision precluded punitive damages and other statutorily mandated relief).9

¶42 The majority’s analysis ultimately is based on the premise that plaintiffs will be unable to obtain adequate legal representation because the individual claims at issue are too small and complex for plaintiffs to find lawyers willing to represent them.

¶43 Many courts have rejected the argument that the plaintiffs in the particular case would be unable to obtain legal representation because of its cost in comparison to potential recovery. For example, in Billups the plaintiffs submitted affidavits from several attorneys who stated that the amount and cost of attorney time would far exceed any potential individual recovery and that the only practical method for pursuing the plaintiff’s claim was through a class action. Billups, 294 F. Supp. 2d at 1274. The court rejected this argument, noting that the Fair Credit Billing *867Act, 15 U.S.C. §§ 1666-1666j, which applied to the claim, provides that if the plaintiff is successful, the creditor will be liable for costs of the action as well as reasonable attorney fees. Billups, 294 F. Supp. 2d at 1274. The court determined that this was adequate incentive for parties and attorneys, adding that despite the fact that the plaintiff and her lawyers might be “unwilling” to litigate because they believe there is “not... enough financial incentive,” the court still could not conclude the class action waiver in the parties’ arbitration clause was unconscionable. Id. at 1275; see also Snowden v. CheckPoint Check Cashing, 290 F.3d 631, 638-39 (4th Cir. 2002) (rejecting on similar grounds the argument that the arbitration clause was unconscionable because without a class procedure the plaintiff would be unable to maintain her legal representation); Johnson, 225 F.3d at 374 (stating in response to the argument the TILA’s goal of encouraging private actions conflicted with an arbitration agreement precluding class actions that because attorney fees are recoverable under the TILA, “arbitration [will not] necessarily choke off the supply of lawyers”); Jenkins v. First Am. Cash Advance of Ga., LLC, 400 F.3d 868, 878 (11th Cir. 2005) (the court rejected the argument that an arbitration agreement precluding class actions meant that consumers would be unlikely to obtain legal representation, reasoning that the agreement expressly permitted consumers to recover attorney fees and expenses if allowed by statute or applicable law and, under Georgia’s Racketeer Influenced and Corrupt Organizations statute (Ga. Code Ann. §§ 16-14-1 to 16-15), which applied to the plaintiff’s claim, attorney fees are recoverable); Randolph v. Green Tree Fin. Corp.-Ala., 244 F.3d 814, 819 (11th Cir. 2001).

¶44 As in Snowden, the plaintiffs may not feel that there is “enough financial incentive” to pursue their small value claims, but, as the court did in Snowden, the majority should find the incentive is sufficient, particularly when coupled with Cingular’s promise to pay attorney fees and expenses and the costs of arbitration, as well as any relief that is available in a court, including, presumably, exemplary damages and statutory penalties.

*868¶45 The majority’s conclusion that the arbitration clause is substantively unconscionable is, in the end, a claim that legal representation will be essentially impossible to obtain for pursuing small value claims in arbitration proceedings and therefore by default Cingular will always “win.” This same argument would apply as well to claims brought in small claims court, where legal representation is not permitted. Yet, of a certainty this court would not hold small claims court proceedings substantively unconscionable because plaintiffs cannot be represented by attorneys.

¶46 Because other effective avenues of recourse exist in this case, class suits are simply not necessary to vindicate the CPA under the terms of the contracts these plaintiffs signed, nor does the class action waiver act as an exculpatory clause.

¶47 Fundamentally, the majority ignores the fact that the class action waiver appears in an arbitration agreement. Section 2 of the FAA“is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983) (citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S. Ct. 1801, 18 L. Ed. 2d 1270 (1967)). Every presumption must be indulged in favor of arbitration. Id. at 25. Like federal law, state law expresses a strong public policy favoring arbitration of disputes. Zuver v. Airtouch Commc’ns, 153 Wn.2d 293, 301 n.2, 103 P.3d 753 (2004) (citing cases).

¶48 In accord with the importance of enforcing arbitration agreements according to their terms when possible, the majority should, like other courts, determine whether a class action waiver in an arbitration agreement is substantively unconscionable on a case-by-case basis, considering all the surrounding circumstances. See generally, e.g., Adkins v. Labor Ready, Inc., 303 F.3d 496, 503 (4th Cir. 2002); Schultz v. AT&T Wireless Servs., Inc., 376 F. Supp. 2d *869685, 690 (N.D. W. Va. 2005); O’Quin v. Verizon Wireless, 256 F. Supp. 2d 512, 520 (M.D. La. 2003); AutoNation USA Corp. v. Leroy, 105 S.W.3d 190, 201 (Tex. App. 2003). Instead, the majority adopts a sweeping rule that without doubt invalidates thousands, if not millions, of arbitration agreements without regard to the specific terms of those agreements.

¶49 This court should, instead, focus on the importance of satisfying the purpose of the FAA to ensure that private agreements to arbitrate are enforced according to their terms. Other courts have done so when faced with arguments that class action waivers should be invalidated. E.g., Livingston v. Assocs. Fin., Inc., 339 F.3d 553, 558-59 (7th Cir. 2003); Lomax v. Woodmen of World Life Ins. Soc’y, 228 F. Supp. 2d 1360, 1365 (N.D. Ga. 2002); Rosen v. SCIL, LLC, 343 Ill. App. 3d 1075, 1082, 799 N.E.2d 488, 278 Ill. Dec. 770 (2003); AutoNation, 105 S.W.3d at 200; see Volt Info. Scis., Inc. v. Bd. of Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 478-79, 109 S. Ct. 1248, 103 L. Ed. 2d 488 (1989).

¶50 The majority should not ignore the importance of arbitration and the liberal federal policy favoring arbitration agreements; it is not free to disregard federal law because a different outcome is preferred. This arbitration agreement is as “consumer friendly” as an arbitration agreement can be. The majority’s refusal to enforce this agreement as written is, without any doubt whatsoever, contrary to federal policy favoring arbitration. Given the circumstances, if the contractual class action waiver is to be disregarded, it should be done only at the express direction of our state legislature.

¶51 The court should align itself with the many courts that have rejected arguments that class action waivers are substantively unconscionable. See, e.g., Adkins, 303 F.3d at 502-03; Snowden, 290 F.3d at 638-39; Iberia Credit Bureau, 379 F.3d at 174-75; Carter v. Countrywide Credit Indus., Inc., 362 F.3d 294, 298, 301 (5th Cir. 2004); Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1378 (11th Cir. *8702005), cert. denied, 547 U.S. 1128 (2006); Jenkins, 400 F.3d at 877-78; Provencher v. Dell, Inc., 409 F. Supp. 2d 1196, 1206 (C.D. Cal. 2006); Schultz, 376 F. Supp. 2d at 689-91; Gipson v. Cross Country Bank, 294 F. Supp. 2d 1251, 1260-64 (M.D. Ala. 2003); Billups, 294 F. Supp. 2d at 1273-77; O’Quin, 256 F. Supp. 2d at 519-20; Lomax, 228 F. Supp. 2d at 1365; Doctor’s Assocs., Inc. 0v. Hollingsworth, 949 F. Supp. 77, 80-81 (D. Conn. 1996); Brown v. KFC Nat’l Mgmt. Co., 82 Haw. 226, 246 n.23, 921 P.2d 146 (1996); Hutcherson, 342 Ill. App. 3d at 121-24; Rosen, 343 Ill. App. 3d at 1082-84; Walther v. Sovereign Bank, 386 Md. 412, 436-38, 872 A.2d 735 (2005); Gras v. Assocs. First Capital Corp., 346 N.J. Super. 42, 49-55, 786 A.2d 886 (2001); Tsadilas, 13 A.D.3d at 191; AutoNation, 105 S.W.3d at 199-200; see Stein v. Geonerco, Inc., 105 Wn. App. 41, 17 P.3d 1266 (2001).

¶52 Finally, the majority suggests that the class action waiver unilaterally limits the remedies of only one side. Majority at 857. Mere one-sidedness without more, however, does not make a contract term unconscionable. Instead, the one-sidedness must involve an undue burden to one side or unfair advantage or benefit to the other, as the cases that the plaintiffs cite demonstrate. Recently, for example, the court determined that an employment arbitration provision limiting the time in which to bring discrimination claims could force an employee to forgo the opportunity to file a complaint with the Equal Employment Opportunity Commission or Washington Human Rights Commission and have the complaint investigated and mediated and, in addition, could bar an employee from seeking damages for a hostile work environment arising out of discriminatory behavior occurring outside the limitation period. Adler v. Fred Lind Manor, 153 Wn.2d 331, 357-58, ¶ 41, 103 P.3d 773 (2004). Because of these possible effects of the contractual limitations period, the court concluded that it “unreasonably favors” the employer and was substantively unconscionable. Id. (emphasis added).

¶53 In Luna, cited by the plaintiffs on this issue, an arbitration rider barred class actions in arbitration pro*871ceedings between borrowers and a finance company from which they had obtained home loans. The borrowers brought a class action in federal district court, claiming, among other things, violations of the CPA based on allegations that they were misled into entering the home loan agreements at an interest rate higher than promised. The defendant moved to stay the proceedings pending arbitration, and the borrowers countered by arguing that the arbitration agreement was unenforceable on the grounds of substantive and procedural unconscionability.

¶54 The court said that while the provision was nominally mutual, it was effectively one-sided because there was no reasonable possibility that the finance company would institute a class suit against its borrowers. Luna, 236 F. Supp. 2d at 1179. But the court did not rest its conclusion that the arbitration agreement was substantively unconscionable on this basis alone. Instead, the court said that the “prohibition of class actions would prevent borrowers from effectively vindicating their rights for certain categories of claims,” noting that this would be “a particular concern when, as alleged here, the plaintiffs are financially strapped.” Id. at 1178, 1179. Thus, the court tied the absence of a class procedure to the inability to vindicate rights and to the burden that the costs of arbitration would place on “financially strapped” plaintiffs. Moreover, the court in Luna also determined that substantive unconscionability resulted from the totality of several aspects of the arbitration rider that unreasonably favored defendant Household or unduly burdened the plaintiffs, i.e., the class action waiver; nonmutuality of the use of court proceedings for ancillary or preliminary remedies, which in effect benefited only the defendant Household; a confidentiality requirement, which benefited only Household as a repeat arbitration participant; and one-sided fee-sharing provisions, which unduly burdened the plaintiffs. Id. at 1180-82. The court said that all of these aspects of the agreement, “taken together, grossly favor[ed] Household.” Id. at 1182-83.

*872¶55 Thus, mere one-sidedness of the class action waiver in the sense that the defendant was unlikely to seek to bring a class suit against its customers did not, in and of itself, render the arbitration agreement substantively unconscionable. Instead, it was the effect of the waiver along with the effect of other provisions that unreasonably favored the defendant Household or unduly burdened the plaintiffs that led the court in Luna to hold the arbitration agreement unenforceable on the grounds of substantive unconscionability.

¶56 The majority ignores the qualification provided by our case law that the one-sidedness must involve a demonstrable undue burden to one side or unfair advantage or benefit to the other and fails to explain how any asserted one-sidedness in fact constitutes an undue burden or unfair advantage under this agreement.

CONCLUSION

¶57 In essence, the majority creates a public policy that forbids a class action waiver in consumer actions because it believes that the assistance of an attorney is required to remedy consumer wrongs. It reasons that attorneys will not represent litigants if the amount at stake is too small. Therefore, it declares that class suits are necessary so that attorneys will be attracted by the prospect of sufficient remuneration to justify their representation.

¶58 I would reject the argument that plaintiffs will be unable to obtain legal representation and therefore the arbitration agreement’s class action waiver is unconscionable. Instead, because Cingular has promised to pay the costs of arbitration plus attorney fees and costs if the plaintiffs are successful in obtaining the relief they seek, plaintiffs are able to pursue their small value claims and the class action waiver does not effectively act as an exculpatory clause relieving Cingular of liability. The plaintiffs’ important goal of vindicating the public interest under the CPA can be accomplished on an individual basis. I would *873hold that the plaintiffs have failed to show that the class action waiver is substantively unconscionable because it is one-sided in effect, as they have not shown an undue burden to one side or unfair advantage or benefit to the other. I would affirm the superior court’s order compelling arbitration.

Bridge and J.M. Johnson, JJ., concur with Madsen, J.

The California court noted in Discover Bank that the plaintiff had not relied on the California Consumers Legal Remedies Act; rather, the plaintiff brought the action under the Delaware Consumer Fraud Act, Del. Code Ann. title 6, §§ 2511-2527, and Delaware contract law. Discover Bank, 36 Cal. 4th at 174. The court observed that the plaintiff did “seek[] to enforce those Delaware laws in a California court with a California unconscionability rule against class action waivers that arguably is not found under Delaware law.” Id. The California Supreme Court directed that on remand, there must be a determination of whether the plaintiff could successfully rely on California law, among other issues. On remand, the Court of Appeals held that (1) Delaware law applied to determine the enforceability of the class action waiver, (2) unconscionability was not a procedural issue that would be governed by California law, and (3) under Delaware law class action waivers are enforceable and not unconscionable. Discover Bank v. Superior Court, 134 Cal. App. 4th 886, 36 Cal. Rptr. 3d 456 (2005), petition for review and depublication request denied, 2006 Cal. LEXIS 4098 (Mar. 29,2006). The court directed reinstatement of the trial court’s original order compelling arbitration. Id.

In Kristian v. Comcast Corp., 446 F.3d 25 (1st Cir. 2006), the First Circuit held that a class action waiver in an arbitration agreement was not enforceable because it meant that individual plaintiffs would be unable to vindicate statutory rights, contravening the holdings in United States Supreme Court decisions. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985) (“so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function”); Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 90, 92, 121 S. Ct. 513, 148 L. Ed. 2d 373 (2000) (existence of large arbitration costs could preclude a litigant from effectively vindicating federal statutory rights in the arbitral forum; the party seeking to invalidate an arbitration agreement on the grounds that it would be prohibitively expensive bears the burden of showing the likelihood that such costs will be incurred). The antitrust claims raised in Kristian were far more complex than claims involving specific transactions, such as the deferred deposit transaction (an agreement that for a fee a check will not be cashed until a specified time) in Snowden v. Checkpoint Check Cashing, 290 F.3d 631 (4th Cir. 2002). The plaintiffs in Kristian submitted unopposed expert declarations estimating each putative class member’s recovery, assuming treble damages, at from a few hundred to a few thousand dollars, while expert fees were estimated to be in the hundreds of thousands of dollars and attorney fees could reach into the millions of dollars. In these circumstances, the class action bar precluded the plaintiffs from vindicating their statutory rights, and thus, the court held, the “[p]laintiffs cannot be compelled to arbitrate their antitrust claims, both state and federal, if that bar remains in place.” Kristian, 446 F.3d at 59. The court did not address unconscionability claims. In another case, relied on by the plaintiffs, the court held that there was no arbitration agreement between the parties and thus the arbitration provision was not enforceable. In re Knepp, 229 B.R. 821, 836-37 (Bankr. N.D. Ala. 1999). The court’s subsequent discussion of whether the arbitration agreement was unconscionable is therefore clearly dicta.