Class Action Waiver Containing an Arbitration Provision in California

In Discover Bank, supra, 36 Cal.4th 148, the Supreme Court addressed the question whether a class action waiver contained in an arbitration provision that had been added to an existing credit card agreement was unconscionable under California law. The initial credit card agreement between the plaintiff (Christopher Boehr) and Discover Bank contained neither an arbitration provision nor a class action waiver. In 1999, after Boehr had been a Discover Bank credit card holder for several years, Discover Bank added an arbitration clause and class action waiver to its credit card agreement pursuant to a change-of-terms document that it mailed to Boehr (and other Discover Bank cardholders) in the same envelope with Boehr's monthly billing statement. Boehr was advised in the change-of-terms document if he did not wish to accept the new arbitration clause, he would have to notify Discover Bank of his objections and cease using his account at the end of a designated grace period. Boehr's continued use of the account after the stated ending date would be deemed by Discover Bank to constitute acceptance of the new terms. Boehr did not notify Discover Bank of any objection to the arbitration and continued to use his account after the stated deadline. (Id. at pp. 153-154.) In 2001 Boehr filed a putative nationwide class action complaint alleging Discover Bank had unlawfully imposed a late fee on payments it received on the payment due date but after an arbitrarily imposed 1:00 p.m. "cut-off time," in violation of several Delaware consumer protections statutes. (Discover Bank, supra, 36 Cal.4th at p. 154.) Discover Bank promptly moved to compel Boehr to individually arbitrate his claims pursuant to the arbitration and class action waiver provisions contained in the 1999 change-of-terms document. Boehr opposed the motion, contending the class action waiver was unconscionable and unenforceable under California law. (Ibid.) The Court found the class action waiver provision in Discover Bank's cardholder agreement unconscionable under California law. The Court began its analysis by observing both the adhesive and substantively unconscionable aspects of the agreement: "When a consumer is given an amendment to its cardholder agreement in the form of a 'bill stuffer' that he would be deemed to accept if he did not close his account, an element of procedural unconscionability is present. Moreover, although adhesive contracts are generally enforced , class action waivers found in such contracts may also be substantively unconscionable inasmuch as they may operate effectively as exculpatory contract clauses that are contrary to public policy," particularly in cases by consumers involving individually small amounts of damages. (Discover Bank, supra, 36 Cal.4th at pp. 160-161.) In those cases, the class action is the "'only effective way to halt and redress such exploitation.'" The Court also observed class action waivers are "indisputably one-sided" as "'credit card companies typically do not sue their customers in class action lawsuits.'" (Id. at p. 161.)