Szetela v. Discover Bank

In Szetela v. Discover Bank (2002) 97 Cal.App.4th 1094, the court used language that suggests a clause might qualify as a contract of adhesion when it stated, "even if the clause at issue here is not an adhesion contract, it can still be found unconscionable." (Id. at p. 1100.) In Szetela, a credit card company inserted a notice in its customer's billing statement that stated the cardmember agreement was being amended to include an arbitration clause. (Id. at p. 1096.) If the customer did not wish to accept the terms of the amendment, the only option was to notify the credit card company, which would then close the account. (Id. at p. 1097.) When the customer challenged the arbitration clause as unconscionable, the court analyzed the process by which that clause was added to the contract, not the formation of the original contract. The court stated: "Procedural unconscionability focuses on the manner in which the disputed clause is presented to the party in the weaker bargaining position. When the weaker party is presented the clause and told to 'take it or leave it' without the opportunity for meaningful negotiation, oppression, and therefore procedural unconscionability, are present. . These are precisely the facts in the case before us. Szetela received the amendment to the Cardholder Agreement in a bill stuffer, and under the language of the amendment, he was told to 'take it or leave it.' His only option, if he did not wish to accept the amendment, was to close his account. We agree with Szetela that the oppressive nature in which the amendment was imposed establishes the necessary element of procedural unconscionability." (Id. at p. 1100.)