No. 11-1646 – Credit Acceptance Corp. v. Robert J. Front and Billye S. Front
and
No. 12-0545 – Credit Acceptance Corp. v. Ocie Shrewsbury                    FILED
                                                                             June 19, 2013
                                                                         released at 3:00 p.m.
                                                                       RORY L. PERRY II, CLERK
                                                                     SUPREME COURT OF APPEALS
                                                                          OF WEST VIRGINIA
Justice Ketchum, concurring:

              I concur with the majority’s opinion, but write separately to make two

points.

              First, in crafting Syllabus Point 3, the majority opinion relied upon the

recent case of Kahn v. Dell, Inc., 669 F.3d 350 (3rd Cir. 2012), in deciding whether the

unavailability of a chosen arbitration forum renders an arbitration agreement

unenforceable. Syllabus Point 3 makes a distinction between whether the choice of the

arbitration forum is an “ancillary logistical concern” or an “integral” part of the

agreement to arbitrate.

              However, the majority opinion gives no guidelines as how to determine if

an agreement’s choice of a forum is an “ancillary logistical concern” or an “integral” part

of the arbitration agreement. I would have, like the Kahn case, made this clear by adding

the following sentence at the end of Syllabus Point 3: “In this light, the parties must have

unambiguously expressed their intent not to arbitrate their disputes in the event that the

designated arbitral forum is unavailable.” Kahn 669 F.3d at 354. I believe that a court

should decline to appoint an alternate arbitrator only when the original choice of forum

was “so central to the arbitration agreement that the unavailability of that arbitrator

[brings] the agreement to an end.” Id.
                                             1
              Second, our recent cases discussing unconscionability in contracts have

held that there must be proof of both procedural and substantive unconscionability,

judged on a sliding scale. Syllabus Point 20, Brown v. Genesis Healthcare Corp., 228

W.Va. 646, 724 S.E.2d 250 (2011) [“Brown I”]. Under our recent case law, “[t]o be

unenforceable, a contract term must—at least in some small measure—be both

procedurally and substantively unconscionable.” Dan Ryan Builders, Inc. v. Nelson, 230

W.Va. 281, 289, 737 S.E.2d 550, 558 (2012) (quotations omitted).

              However, in footnote 8 of the majority opinion, Justice Davis questioned

the need for the sliding scale adopted in Syllabus Point 20 of Brown I that requires both

substantive and procedural unconscionability. This Court was one of the twelve state

supreme courts to have adopted or reaffirmed a sliding scale approach since 2000. See

Melissa T. Lonegrass, Finding Room For Fairness in Formalism – The Sliding Scale

Approach to Unconscionability, 44 Loy. U. Chi. L. J. 1, 6 (2012). However, of these

twelve courts, “five have further expanded the sliding scale approach to hold that a

finding of unconscionability may rest on evidence of either procedural or substantive

unconscionability without requiring evidence of both.” Id.1

1




           See Razor v. Hyundai Motor Am., 854 N.E.2d 607, 622 (Ill. 2006)
(“Unconscionability can be either ‘procedural’ or ‘substantive’ or a combination of both.”);
Brewer v. Mo. Title Loans, Inc., 323 S.W.3d 18, 22 (Mo. 2010) (en banc), vacated on other
grounds, 131 S. Ct. 2875 (2011) (mem.) (“Under Missouri law, unconscionability can be
procedural, substantive or a combination of both.”); Cordova v. World Fin. Corp. of N.M.,
208 P.3d 901, 907-08 (N.M. 2009) (“While there is a greater likelihood of a contract’s being
invalidated for unconscionability if there is a combination of both procedural and substantive
unconscionability, there is no absolute requirement in our law that both must be present to
                                              2
              Furthermore, our Legislature has suggested that both forms of

unconscionability are not required.       For example, the Uniform Commercial Code

provisions pertaining to leases state that a lease contract or any clause of a lease contract

may be voided if it is either procedurally or substantively unconscionable.2 Likewise, the

West Virginia Consumer Credit and Protection Act says that, regarding consumer credit

sales, leases, or loans, a contract may be voided if it was either “induced by

unconscionable conduct” or if the terms of the contract were unconscionable “at the time

it was made.”3

the same degree or that they both be present at all.”); Glassford v. BrickKicker, 35 A.3d
1044, 1049 (Vt. 2011) (citing Val Preda Leasing, Inc. v. Rodriguez, 540 A.2d 648, 652 (Vt.
1987)) (“The superior court was mistaken in assuming that the presence of procedural
unconscionability is required to void a contract based on it containing unconscionable
terms.”); Adler v. Fred Lind Manor, 103 P.3d 773, 782-83 (Wash. 2004) (en banc);
(“Substantive unconscionability alone can support a finding of unconscionability.”).
2
       W.Va. Code § 46-2A-108 [1996] states, in part (with emphasis added):

                      (1) If the court as a matter of law finds a lease contract
              or any clause of a lease contract to have been unconscionable
              at the time it was made the court may refuse to enforce the
              lease contract. . . .

                      (2) With respect to a consumer lease, if the court as a
              matter of law finds that a lease contract or any clause of a
              lease contract has been induced by unconscionable conduct . .
              . the court may grant appropriate relief.

                    (3) Before making a finding of unconscionability under
            subsection (1) or (2), the court, on its own motion or that of a
            party, shall afford the parties a reasonable opportunity to
            present evidence as to the setting, purpose, and effect of the
            lease contract or clause thereof, or of the conduct.
3
       W.Va. Code § 46A-2-121 [1996] states, in part:

              (1) With respect to a transaction which is or gives rise to a
                                              3
              Justice Davis correctly finds that this issue was neither briefed by the

parties nor needed to be addressed to resolve this case. However, in the future, I believe

that this Court should revisit Syllabus Point 20 of Brown v. Genesis Healthcare Corp.

[Brown I] and clarify this point of law.




              consumer credit sale, consumer lease or consumer loan, if the
              court as a matter of law finds:

                     (a) The agreement or transaction to have been
                     unconscionable at the time it was made, or to
                     have been induced by unconscionable conduct,
                     the court may refuse to enforce the agreement[.]
                                            4
