Earlier today, an appellate court in Mississippi reversed a finding of unconscionability in connection with arbitration provisions in agreements between consumers and a check-cashing business. Caplin Enterprises v. Arrington, No. 2011-CA-01332-COA (Court of Appeals of Mississippi May 7, 2013). (Click here to see the decision.)
Consumers filed separate lawsuits against the check cashing business in state court in Mississippi, alleging fraud, breach of contract, negligence, and predatory lending. The defendant check cashing business responded to the lawsuits by filing motions to compel arbitration, and there were two different varieties of check cashing agreements at issue. The trial courts found both types of agreements were unconscionable, and the check cashing business appealed the decisions, which were consolidated on appeal.
In one type of agreement, the arbitration clause was buried in fine print on the back page of a one-page contract. The appellate court described this first type of agreement as follows: “no separate headings, no bolded words, no capitalized words, and no distinguishable provisions. And the print used on the back page is smaller than on the front. The arbitration clause . . . is found in the fifth of these nine nondescript, small-print, back-page paragraphs….” The appellate court upheld the finding of unconscionability for this particular agreement because of the inconspicuous fine print.
However, the second type of agreement was different. The entire contract appeared only on the front side of one page, and there were several bolded headings, including one titled “ARBITRATION PROVISION.” Also, there was a separate italicized paragraph emphasizing that by signing the agreement, the signer was agreeing to be bound by all terms, including the arbitration provision. The appellate court found that this second type of agreement was enforceable.