On What Grounds Can Enforcement of a Clause Requiring Arbitration Be Denied by National Arbitration Forum ?
In Aetna Fin. Co. v. McGhee (1993 WL 944559 [Ct Common Pleas, Ohio, Aug. 26, 1993, Sutula, J.]), enforcement of a clause requiring arbitration of disputes before the National Arbitration Forum (NAF) was denied on the ground of unconscionability in view of NAF rules, procedures, and fees.
Moreover, it was not clear to the court whether the arbitrations were conducted before genuinely neutral officials or before those who depended on the lender for a "large volume" of their business.
In Baron v. Best Buy Co. (75 F Supp 2d 1368 [SD Fla 1999]), the defendant lenders moved to compel arbitration before NAF of a class action alleging, inter alia, violations of the Truth in Lending Act (TILA) (15 USC 1601 et seq.), but the court denied their motion on the ground that the arbitration clause was unenforceable and unconscionable. the court concluded, inter alia, that the arbitrator had not been shown to be efficient, inexpensive, and neutral.
In Johnson v. Tele-Cash, Inc. (82 F Supp 2d 264 [Del 1999]), a borrower brought a class action against lenders, including County Bank, charging violations of the Truth in Lending Act (TILA) and Electronic Funds Transfer Act (EFTA) (15 USC 1693 et seq.) by, inter alia, failing to inform him of high interest rates for short-term loans.
The court held, inter alia, that the arbitration clause in the loan agreement was not unconscionable under Delaware law, but the arbitration clause contained in the note could not be enforced in regard to class claims under TILA and under Electronic Funds Transfer Act (EFTA) because enforcement would contravene legislative policy to encourage class actions under TILA and under EFTA.
In Lozada v. Baker Oldsmobile (91 F Supp 2d 1087 [WD Mich 2000]), automobile buyers brought a class action against the seller and assignee of retail installment sales contracts, alleging, inter alia, violations of the Truth in Lending Act (TILA).
The court denied enforcement of an arbitration clause in the credit agreements on the grounds of procedural and substantive unconscionability.
The court concluded (at 1105), inter alia, "because the arbitration agreement prohibits the pursuit of class relief, it impermissibly waives a state statutory remedy."