Brewer v. Missouri Title Loans

WILLIAM RAY PRICE, JR., Judge,

dissenting.

I. Introduction

The Federal Arbitration Act (“FAA”) states that “an agreement in writing to submit to arbitration ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. In AT & T Mobility, LLC v. Concepcion, the Supreme Court stated that this section reflects a “federal policy favoring arbitration” and the “fundamental principle that arbitration is a matter of contract.” — U.S. -, -, 131 S.Ct. 1740, 1745, 179 L.Ed.2d 742 (2011). “[C]ourts must place arbitration agreements on an equal footing with other contracts, and enforce them according to their terms.’ Id. (emphasis added) (internal citations omitted). The FAA and Concepcion preclude states from using contract defenses to inhibit the enforcement of agreements to arbitrate. Section 2 of the FAA permits agreements to arbitrate to be invalidated only by “generally applicable contract defenses, such as fraud, duress, or unconscionabilit/’ but not by defenses that “apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.” Id. at 1746. “States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.” Id. at 1753.

Nonetheless, the majority here, just as in Brewer I, strikes down an arbitration clause in an attempt to balance the scales between poor consumers and businesses. See Brewer v. Missouri Title Loans, Inc., 323 S.W.3d 18 (Mo. banc 2010) (Brewer I). Regardless of whether this is a laudable goal,1 it is forbidden by the FAA, Concepcion and the law of Missouri because the rule the majority establishes is directed solely at invalidating arbitration agreements.

I dissent. I would enforce the contract as written.

II. Procedural History

In Brewer I, this Court found that a class arbitration waiver — combined with an alleged unavailability of counsel to take an individual arbitration, a small amount of damages, and small fees for the attorney— removed any possible remedy for plaintiff Beverly Brewer. Brewer I, 323 S.W.3d at 21. As a result, the Court found that requiring individual arbitration would make the agreement unconscionable. Id. at 21-23. The Court struck the entire arbitration agreement for these substantive, not procedural, considerations and allowed Brewer to proceed with class action litigation. Id. at 24.2 Brewer I specifically held that “the unconscionable aspects of the arbitration contract are a result of the *498class arbitration waiver.” Id. This holding was vacated by the United States Supreme Court and remanded back to this Court for further consideration in light of AT & T Mobility v. Concepcion. Missouri Title Loans, Inc. v. Brewer, — U.S. -, 131 S.Ct. 2875, 179 L.Ed.2d 1184 (2011).

Concepcion addressed an issue similar to the one in Brewer I. California courts recently had established the “Discover Bank rule,” which “classified] most collective-arbitration waivers in consumer contracts as unconscionable.” Concepcion, 131 S.Ct. at 1746. By applying the Discover Bank rule, courts could invalidate class arbitration waivers and compel class arbitrations by allowing a consumer to demand class procedures after the contract had been signed. Id. The rule allowed California courts to apply California state-law unconscionability analysis in a way that singled out and disfavored arbitration agreements. Id. at 1747-48.

The Supreme Court found section 2 of the FAA preserves “generally applicable contract defenses” such as California’s un-conscionability law prior to the Discover Bank rule, which requires a showing of both procedural and substantive uncon-scionability. Id. at 1746. However, state law contract defenses that inhibit the accomplishment of the FAA’s objectives and the enforcement of agreements to arbitrate are preempted.- Id. at 1747. The Discover Bank rule stood as “an obstacle to the accomplishment of the FAA’s objectives” and thereby was preempted by the FAA. Id. at 1753. The ruling in Concepcion required the holding from Brewer I, that the class arbitration waiver caused the arbitration agreement to be unconscionable, be overturned.

The Supreme Court reaffirmed Concepcion and overturned a state court ruling in the recent case of Marmet Health Care Center, Inc., et al. v. Brown, et al., 565 U.S. -, 132 S.Ct. 1201, 182 L.Ed.2d 42 (2012). The state court below had ruled that arbitration agreements in nursing home contracts were unenforceable because it was against state public policy to require arbitration of personal injury or wrongful death claims. Brown v. Genesis Healthcare Corp., 724 S.E.2d 250 (W.Va.2011). The state court held that, in the alternative, the arbitration agreements were unenforceable because they were unconscionable. The Supreme Court rejected both alternative judgments. First, holding that personal injury or -wrongful death claims cannot be arbitrated creates a “categorical” state law that contravenes the FAA, and therefore is displaced by the FAA. Op. at 487-88. Second, it was “unclear” to the Supreme Court how the invalid, categorical rule against arbitration agreements influenced the finding of un-conscionability. Id. The Supreme Court remanded for the state court to consider whether the arbitration clauses are unenforceable under state common law principles “not specific to arbitration and preempted by the FAA.” Op. at 492.

Today, this Court addresses another case with a trial court ruling that is inconsistent with Concepcion — Robinson v. Title Lenders, 364 S.W.3d 505 (Mo. banc 2012) (decided concurrently with this case).3 In Robinson, the trial court found a class arbitration waiver caused an arbitration agreement between a consumer and a business to be unconscionable. Id. at 509. Because Concepcion “instructs clearly that a court cannot invalidate an arbitration agreement on the sole basis *499that it contains a class waiver,” the enforceability of an arbitration agreement is instead tested though a “lens of ordinary state-law principles that govern contracts.” Id. at 515. Robinson was remanded for a hearing to determine whether the “arbitration agreement is improper in light of generally applicable contract defenses” such as fraud, duress, or unconscionability. See id. at 515, 517-18.

While the majority here claims to fall in line with Robinson, Concepcion and Mar-met, it reaches the opposite result from all three cases on similar facts. By striking Brewer’s arbitration agreement, allowing the arbitration agreement to influence the finding of unconscionability, and not analyzing this case according to traditional Missouri unconscionability principles, the majority does not follow the law established in Concepcion, reaffirmed in Mar-met and articulated in Robinson.

III. Analysis

A. Concepcion’s Holding

Despite the majority’s claims to the contrary, Concepcion is not difficult to understand or apply. It provides that an agreement to arbitrate may be invalidated by “generally applicable contract defenses, such as fraud, duress, or unconscionability, but not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.” Concepcion, 131 S.Ct. at 1746. Concepcion instructs us to look to state law principles when deciding if an agreement to arbitrate may be unenforceable because it is unconscionable. Id. Missouri state law principles of unconsciona-bility apply, unless those principles apply only to agreements to arbitrate or they derive meaning just because an agreement to arbitrate is at issue.

While Justice Thomas wrote separately in Concepcion, he expressly concurred in the majority opinion and made it the controlling statement of law.4 Justice Thomas, however, individually advocated that only issues related to the “making of the agreement” should be grounds for revocation of an agreement to arbitrate. Id. at 1754 (Thomas, J., concurring) (reasoning that an agreement to arbitrate should be enforced unless a defense concerning the formation of the agreement applies, such as fraud, duress or mutual mistake).

The majority of this Court uses Justice Thomas’ concurrence to combine the issues of substantive and procedural unconsciona-bility and do away with the requirement that the contract be proeedurally unconscionable. The majority’s reliance on the concurrence is misplaced, though, as Justice Thomas argued that a deficiency in the “formation of the contract” must exist to find the agreement unconscionable. Traditional procedural unconscionability issues are those that reflect problems in the formation of the contract.5 The majority fails to establish that Brewer has proven a defense regarding the formation of the agreement, thereby failing to meet Justice Thomas’ suggested test, the Concepcion majority’s test and the requirements of unconscionability under Missouri law.

B. Missouri Requires Both Procedural and Substantive Unconscionability

An unconscionable contract is unenforceable. State ex rel. Vincent v. Schneider, *500194 S.W.3d 853, 858 (Mo. banc 2006). An unconscionable contract is “one in which no man in his senses and not under delusion would make, on the one hand, and as no honest and fair man would accept on the other, or one where there is an inequality so strong, gross, and manifest that it must be impossible to state it to one with common sense without producing an exclamation at the inequality of it.” Cicle v. Chase Bank USA, 583 F.3d 549, 554 (8th Cir.2009) (internal quotations and citations omitted).

Traditional unconscionability law in Missouri requires a showing that the contract is both procedurally and substantively unconscionable. Funding Sys. Leasing Corp. v. King Louie Int’l, Inc., 597 S.W.2d 624, 633-34 (Mo.App.1979); see also Brewer I (Price, J., dissenting) and cases cited therein. Substantive unconscionability concerns the actual terms of the contract, asking whether the terms are so one-sided that they are unenforceable as a matter of public policy. Vincent, 194 S.W.3d at 858.6

Procedural unconscionability, on the other hand, deals with the formalities of making the contract and focuses on whether the parties had a voluntary and sufficient meeting of the minds to bind each other to the terms of the writing. “Procedural un-conscionability focuses on things such as high pressure sales tactics, unreadable fine print, or misrepresentation among other unfair issues in the contract formation process.” Repair Masters Const., Inc. v. Gary, 277 S.W.3d 854, 857 (Mo.App.2009) (internal citations omitted). A showing of procedural unconscionability is required; otherwise, a party is presumed to know what he signed and that he agreed to it. See Sanger v. Yellow Cab Co., Inc., 486 S.W.2d 477, 481 (Mo. banc 1972). The idea is that if a contract provision is so substantively unfair that “no man in his senses” would agree to it, only deception and like acts would have caused him to agree to it; and that deception must be shown as a matter of fact.

C. The Majority’s Reasons for Finding the Contract Unenforceable Fail

The majority points to numerous facts to avoid the holding of Concepcion and Missouri law. First, it claims that procedural issues existed with the contract, in that the entire contract was non-negotiable; the contract was difficult to understand; and the contract was a product of Missouri Title Loan’s (the title company’s) superior bargaining position. Next, the majority finds the contract was substantively unconscionable in that the terms were one-sided and favored the title company because it did not waive the right to seek attorneys’ fees; the title company retained the right to use the judicial process to repossess the automobiles that secured their loans; and the contract provided for a high interest rate. Finally, the majority attempts to bolster its holding by stating that the class arbitration waiver shields the title company from liability and removes any remedy for consumers, as attorneys are unlikely to take a single arbitration case that has small damages and results in small attorneys’ fees. Upon even the most cursory examination, the majority’s procedural and formational arguments fall away.

*5011. The arbitration agreement is not procedurally unconscionable

a. Brewer did not prove that the contract is non-negotiable

When evaluating possible procedural un-conscionability in the formation of a contract, courts look to the plaintiffs actual experiences with the business defendant. See Funding Sys. Leasing Corp., 597 S.W.2d at 635. For example, testimony that an arbitration provision never has been negotiated by consumers “does not prove the negative” or thereby prove that the contract was non-negotiable as to one specific consumer. Vincent, 194 S.W.3d at 857.

Brewer does not claim that she, personally, tried to negotiate the contract and failed. Neither has Brewer provided evidence that she could not go to some other lender and obtain a different contract. See discussion in III.C.l(c). Although the majority claims that “no customer” has negotiated a contract with the title company, this does not prove that Brewer’s contract was “non-negotiable.” Finally, there is no evidence that the title company used tactics designed to coerce Brewer into agreeing to the contract without negotiating the terms. Without some evidence of coercion, or a failed attempt to negotiate, Brewer does not show that the contract was non-negotiable in a way that makes the agreement procedurally unconscionable.

b. Brewer did not prove she did not understand the contract

A simple misunderstanding of a contract does not create an “unfair issue in the contract formation process” that establishes procedural unconscionability. See Repair Masters Const., Inc., 277 S.W.3d at 857. In addition, “[t]he failure to read a document prior to signing it is not a defense, and does not make a contract voidable, absent fraud.” Id.7 Even if a consumer does not read a contract he signs with a business, he may expect that it contains an arbitration agreement. “[A]n average person would reasonably expect that disputes arising out of an agreement [between an individual and a business] might have to be resolved in arbitration.” Swain v. Auto Services, Inc., 128 S.W.3d 103, 107-08 (Mo.App.2003).

The majority speculates that it is “unlikely” that the contract could be “comprehended by the average consumer” or that it “comport[s] with the reasonable expectations of an average member of the public.” However, this statement is totally unrelated to the present case because we have specific facts on which we can rely.

Brewer did not claim she misunderstood the contract. In fact, Brewer admits that she did not even read the contract. If Brewer had read the contract, she would have seen the class arbitration waiver in the loan agreement was in bold, capital letters, and that bold, capital letters immediately above the signature line stated that the agreement “contains a binding arbitration provision.” Cf. Whitney v. Alltel Commc’ns, Inc., 173 S.W.3d 300, 308 (Mo. App.2005) (finding an agreement to arbitrate unconscionable when it was “in fine print on the back side of the sheet sent to plaintiff because this was “insufficient to call its customers’ attention” to the provision).

*502 c. Brewer did not prove the contract was a result of a disparity in bargaining power

An unconscionable contract of adhesion is one that is created by a stronger party with greater bargaining power and imposed on a weaker party. Vincent, 194 S.W.3d at 857. The weaker party is unable to look elsewhere for a more attractive contract, and the terms in the contract “unexpectedly or unconscionably” limit the obligations of the stronger party. Id.; see also Swain, 128 S.W.3d at 108 (“[t]he service plan was presented as the only warranty available on the car in a mostly-preprinted form ...” (emphasis added)). This is a matter of fact that must be proven to the trial court; one “cannot simply allege that a pre-printed contract is a contract of adhesion and offer no other proof on the matter.” Vincent, 194 S.W.3d at 857.

The majority mentions that the parties here had a “disparity in bargaining positions” and that the title company was in a “superior bargaining position.” However, neither the trial court nor the majority state how this bargaining position affected the process of forming the contract. Brewer stated she could have looked elsewhere for a loan agreement with different terms; in fact, she compiled a list of 20 competing companies offering the same service. Brewer never claimed that all of these companies used the same contract or included the same terms, leaving her with no possible alternative. Finally, an unequal balance of power between the parties, alone, does not support a finding of unconscionability post-Concepcion. See Robinson, 364 S.W.3d at 517, fn. 14.

2. The alleged substantively unconscionable terms do not justify striking the arbitration agreement

a. Finding some terms substantively unconscionable interferes with the parties’ right to contract for those terms

“Courts should not interfere with a party’s right to contract so long as the contract is not otherwise void.” Malan Realty Investors, Inc. v. Harris, 953 S.W.2d 624, 627 (Mo. banc 1997). When the terms of a contract are clear, “the court is bound to enforce the terms as written.” Id. at 626-27. There is no requirement in Missouri that contract terms be “an exchange of reciprocal promises.” See Vincent, 194 S.W.3d at 859, quoting Harris v. Green Tree Financial Corp., 183 F.3d 173, 181 (3d Cir.1999).

The majority attacks many of the contract terms, calling them unconscionable and one-sided. Of those terms, though, it is disingenuous to fault the title company for the need to use the judicial process to repossess vehicles that secure loans.8 This is not evidence of a contract containing one-sided terms to benefit the title company; arbitration simply cannot provide for a secured creditors’ replevin right.9 See *503also Marmet, 565 U.S.-, 132 S.Ct. at 1202-03 (noting that the nursing home arbitration agreement required parties to arbitrate all disputes except claims by the defendant to collect late payments owed by the patient).

The majority also concludes that the provisions retaining the title company’s right to seek attorneys’ fees and establishing the high interest rate are substantively unconscionable. However, this ignores the fact that Brewer could have gone to at least 20 different companies — which she had researched and listed — to find better terms.

The majority compares these provisions with ones from the contract the Supreme Court enforced in Concepcion, noting that in that case, AT & T agreed to waive the right to attorneys’ fees and to shoulder the costs of arbitration. However, the Supreme Court did not state that these consumer-favorable provisions are required for an agreement to arbitrate to be found conscionable. Furthermore, the parties are not required to make promises equal in consideration as long as the contract is supported by consideration.

b. Finding individual arbitration does not provide a remedy contravenes the FAA and Concepcion

The core purpose of the FAA is to “ensure that private arbitration agreements are enforced according to their terms.” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., — U.S. -, -, 130 S.Ct. 1758, 1763, 176 L.Ed.2d 605 (2010). A contract defense may not be used to strike down an arbitration clause if that defense would “apply only to arbitration or that derive[s] meaning from the fact that an agreement to arbitrate is at issue.” Concepcion, 131 S.Ct. at 1746. The generally applicable contract defenses that may invalidate agreements to arbitrate “cannot in reason be construed as allowing a common law right, the continued existence of which would be absolutely inconsistent with the provisions of the act. In other words, the act cannot be held to destroy itself.” Id. at 1748. “[Ajfter Concepcion and Cruz [v. Cingular Wireless, 648 F.3d 1205 (11th Cir.2011) ], courts may not invalidate arbitration agreements ... even if, as a practical matter, the class action waiver has a claim-suppressing effect.” In re Checking Account Overdraft Litig., 813 F.Supp.2d 1365 (S.D.Fla.2011) (internal quotations omitted).

The majority alleges that the class arbitration provision shields the title company from liability and provides Brewer no remedy because it is “unlikely that a consumer could retain counsel to pursue individual claims.” Op. at 494 (emphasis added). The majority is attempting to give effect to the public policy it established in Brewer I — that class arbitration procedures are more desirable than individual arbitration. But in doing so, the majority creates a state law contract defense that attacks only arbitration clauses and inhibits their enforcement.

Creating a new “common law right” to an attorney; extending it to a right to class arbitration proceedings; and then using those two new rights as a contract defense just to strike agreements to arbitrate is “absolutely inconsistent” with the FAA and its goal of providing individual arbitration when parties contract for that remedy. Courts simply may not apply state public policy concerns to invalidate an arbitration agreement, even if the public policy at issue aims to prevent undesirable results to consumers. Concepcion, 131 S.Ct. at 1753 (rejecting the argument that small-dollar claims require class proceedings because states “cannot require a procedure that is inconsistent with the FAA.”). The Supreme Court has made it *504clear that a state public policy against enforcing arbitration agreements shall not influence a state court’s unconscionability finding. Marmet, 565 U.S. -, 132 S.Ct. at 1204 (“It is unclear, however, to what degree the state court’s alternative holding [of unconscionability] was influenced by the invalid, categorical rule discussed above, the rule against predispute arbitration agreements.”)

The majority tries to distinguish this case from Concepcion and come to a different conclusion by saying the contract at issue here is different than the agreement enforced in Concepcion. Under the contract in that ease, the company defendant would pay costs of arbitration, pay double the plaintiffs attorneys’ fees if the consumer recovered more than the last company offer in arbitration, and could not seek attorneys’ fees incurred in defending the claim.

The rewards and attorneys’ fees in the Concepcion contract, however, were never stated as requirements for finding the contract conscionable. Moreover, Missouri law already provides effective alternative remedies. The Missouri merchandising practices act allows a court to award a consumer attorneys’ fees and punitive damages if appropriate.10 While it may be generous for a company to contract as the company did in Concepcion, such a contract would create duplicate remedies in Missouri.

No evidence was presented showing that Brewer could not get an attorney to handle her case. In fact, the suit itself, with Brewer’s counsel of record, proves the contrary. More importantly, such provisions in a contract provide no evidence as to the procedural conscionability of the contract at formation.

IV. Conclusion

The majority’s newly created right to an attorney for consumer claims morphs into a right to class arbitration proceedings, and then morphs into a right to void individual arbitration agreements altogether. While this is certainly clever lawyering, it is not the law and it openly flaunts the FAA and Concepcion. In this case, Brewer admits she did not read the contract and, although she knew of other lenders, she did not shop around for better terms and provisions. Despite the harsh terms of the contract she signed, it was her agreement. She was not cheated in its formation, and she should not be allowed to escape the contract’s substantive provisions, including a provision to arbitrate, after receiving the benefits of the contract.

This case is nothing more than evidence of the majority’s refusal to abide by controlling federal law because it disfavors the use of individual arbitration clauses in consumer contracts and prefers class action litigation that dramatically increases the cost and risk to the business community. These types of value decisions are more appropriately left to the legislative arena. In fact, those decisions were made by the United States Congress in the FAA and interpreted by the United States Supreme Court in Concepcion. It is our role to follow and apply the controlling law, not to engage in intellectual gymnastics to create “life after Concepcion.’

. I do not contest that some of the terms in the title loan agreement are harsh.

. All of the reasoning from my dissent in Brewer I applies to this decision as well.

. See Robinson for a full discussion of the impact Concepcion makes on the interpretation of agreements to arbitrate in Missouri.

. Realizing that “the Court’s test will often lead to the same outcome” as his “textual interpretation,” Justice Thomas joined the majority to "give lower courts guidance from a majority of the Court.” Concepcion, 131 S.Ct. at 1754 (Thomas, J., concurring).

. "[Procedural unconscionability in general is involved with the contract formation process." Funding Sys. Leasing Corp. v. King Louie Int'l, Inc., 597 S.W.2d 624, 634 (Mo.App.1979) (emphasis added).

. Courts and scholars alike have misconstrued Vincent. That case did not eliminate the requirement that some procedural uncon-scionability must be shown to invalidate a contract. Vincent, 194 S.W.3d at 858. Procedural unconscionability was simply not at issue in the appeal of that case. See Brewer I (Price, J., dissenting) and discussion therein; cf. Whitney Hampton, A New Twist on an Old Approach: Missouri's Use of Unconscion-ability and Consent in the Class Arbitration Waiver Analysis, 2011 J. Disp. Resol. 209, 213 (2011).

. See also Sanger, 486 S.W.2d at 481 ("The rule is that the one who signs a paper, without reading it, if he is able to read and understand, is guilty of such negligence in failing to inform himself of its nature that he cannot be relieved from the obligation contained in the paper thus signed, unless there was something more than mere reliance upon the statements of another as to its contents." (internal quotations omitted)).

. The law of secured transactions is highly regulated. Allowing creditors to utilize the court process for repossession is intended to protect the consumer, should he default on a loan secured by his personal vehicle. See comment to section 400.9-609, RSMo Supp. 2009. In contrast, the use of nonjudicial foreclosures is criticized by consumer protection advocates because of the risk that they will not be preformed peaceably. See Christopher P. Bennett, The Buck Stops Here — Peaceable Repossession is a Nondelegable Duty, 63 Mo. L.Rev. 785, 797 (1998).

. See also R. Wilson Freyermuth, Foreclosure by Arbitration?, 37 Pepp. L. Rev. 459, 480 (2010), for a similar discussion in the context of commercial mortgages ("To this point, standard mortgage forms do not contain arbitration clauses at all, or, if they do, they ‘carve out’ foreclosure from their scope.”).

. "The court may, in its discretion, award punitive damages and may award to the prevailing party attorney’s fees, based on the amount of time reasonably expended, and may provide such equitable relief as it deems necessary or proper.” Section 407.025, RSMo Supp.2009.