unconscionability analysis in Tennessee

2015“The unconscionability analysis can be broken down into two component parts: (1) procedural unconscionability, which is an absence of the meaningful choice' on the part of one of the parties and (2) substantive unconscionability, which refers to contract terms which are unreasonably favorable to the other party.” Philpot v. Tenn. Health Mgmt., Inc., 279 S.W.3d 573, 579 (Tenn.Ct.App.2007) (citing Elliott v. Elliott, No. 87-276-II, 1988 WL 34094 , at *4 (Tenn.Ct.App.

2014This Court has recognized “two component parts” to an unconscionability analysis: “(1) procedural unconscionability, which is an absence of the meaningful choice on the part of one of the parties and (2) substantive unconscionability, which refers to contract terms which are unreasonably favorable to the other party.” Philpot v. Tenn. Health Mgmt., Inc., 279 S.W.3d 573, 579 (Tenn.Ct.App.2007); see Reagan v. Kindred Healthcare Operating, Inc., No. M2006-02191-COA-R3-CV, 2007 WL 4523092 at *11 (Tenn.Ct.App.W.S, filed Dec. 20, 2007).

2020In that eventuality, Delta, which previously offered to pay all of Harris’s arbitration costs, would be responsible for the entire cost of arbitration.”); Smith v. Beneficial Ohio, Inc., 284 F. Supp. 2d 875, 880 (S.D.

2020See, e.g., Kinkel v. Cingular Wireless LLC, 857 N.E.2d 250, 259 (Ill. 2006) (“[A] defendant’s after-the-fact offer to pay the costs of arbitration should not be allowed to preclude consideration of whether the original arbitration clause is unconscionable.”); Delta Funding Corp. v. Harris, 912 A.2d 104, 113 (N.J. 2006) (“[C]ontract unconscionability must be decided based on the contract as written[.]”).2 Accordingly, we are of the opinion that the trial 2 Aside from the fact that Tennessee law directs unconscionability to be determined based on circumstances existing at the contract’s executio

2020See Harris, 912 A.2d at 113 n.5, 114 (holding that the offer to pay by drafter of agreement would not moot the unconscionability analysis but noting that severance would be possible and that the drafter of the agreement seeking to compel arbitration would be responsible for costs: “[I]f the agreement is held to permit the shifting of arbitration costs to Harris, then the unconscionable cost-shifting provision must be severed from the agreement.

2020See, e.g., Kinkel v. Cingular Wireless LLC, 857 N.E.2d 250, 259 (Ill. 2006) (“[A] defendant’s after-the-fact offer to pay the costs of arbitration should not be allowed to preclude consideration of whether the original arbitration clause is unconscionable.”); Delta Funding Corp. v. Harris, 912 A.2d 104, 113 (N.J. 2006) (“[C]ontract unconscionability must be decided based on the contract as written[.]”).2 Accordingly, we are of the opinion that the trial 2 Aside from the fact that Tennessee law directs unconscionability to be determined based on circumstances existing at the contract’s executio

2009He also argues that, because the trial court has the authority to consider a defense of public policy even if not pled, see Cummins v. McCoy, 22 Tenn.App. 681 , 125 S.W.2d 509, 513 (1938), and uncon-scionability is a public policy-based defense, ergo the trial court has the authority to consider unconscionability even if the defense is not specifically pled.

2009He also argues that, because the trial court has the authority to consider a defense of public policy even if not pled, see Cummins v. McCoy, 22 Tenn.App. 681 , 125 S.W.2d 509, 513 (1938), and uncon-scionability is a public policy-based defense, ergo the trial court has the authority to consider unconscionability even if the defense is not specifically pled.