ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Monday, June 2, 2014

Divided Mississippi Supreme Court Strikes One-Sided Arbitration Clause as Unconscionable

Mississippi SealPlaintiffs in Caplan Enterprises, Inc. v. Ainsworth signed two versions of a delayed-deposit agreement with a business called Zippy Check.  The agreements included two versions of arbitration clauses that applied to all of plaintiffs' potential claims, but Zippy Check remained free to pursue all judicial remedies.  In addition, plaintiffs' potential damages were limited to the price paid by plaintiffs for services rendered.

In 2010, plaintiffs brought actions against Zippy Check, alleging fraudulent misrepresentation and predatory lending.  Zippy Check moved to compel arbitration.  The trial court found the aribtration clauses in both versions of the agreement to be unconscionable and unenforceable.  The appellate court found only one version to be unenforceable.  The Mississippi Supreme Court agreed with the trial court.  Its analysis focused on the substantive unconconscionability of the arbitration clauses.  Apparently, a showing of substantive unconscionability alone is enough in Mississippi, at least in connection with adhesion contracts.  The Supreme Court concluded that while arbitration agreements need not impose identifical obligations on each side, "under the particular facts of this case, the arbitration agreements were unreasonably favorable to Zippy Check, oppressive, unconscionable, and unenforceable."

Two dissenting Justices found that plaintiffs had not demonstrated procedural unconscionability because "plaintiffs presented no evidence that they were 'prevented by market factors, timing[,] or other pressures from being able to contract with another party on more favorable terms or to refrain from contracting at all.'"  The dissenting Justices also noted that Mississippi does not require mutuality of obligation in arbitration clauses and thus found no substantive unconscionability in the arbitration agreements at issue in the case.

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