class action waiver in California

2025(See AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333 [FAA preempts California’s unconscionability rule prohibiting class waivers in consumer arbitration agreements].) He argues that the second paragraph quoted above is substantively unconscionable because it allows LegalZoom to “slip out” of arbitration and go to court if the class-action waiver provision were ever found to be unenforceable.

2025Viking River Cruises, the employer, framed its analysis under Stolt- Nielsen, supra, 559 U.S. 662 ,5 AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333 [ 131 S.Ct. 1740 ] (AT&T Mobility),6 and Epic Systems Corp. v. Lewis (2018) 584 U.S. 497 [ 138 S.Ct. 1612 ] (Epic Systems),7 a line of cases that, in its view, stands for the proposition that “ ‘a party may not be 5 Stolt-Nielson held that, absent express consent allowing it, arbitration of a class action claim is incompatible with “the consensual nature of private dispute resolution” and thus violates “the basic precept that arbitration ‘is a

2022(See Concepcion, supra, 563 U.S. at pp. 337–338 [plaintiffs brought false advertising claims against their cell phone service provider, whose terms of service included agreement to arbitration containing a class action waiver]; Broughton, supra, 21 Cal.4th at pp. 1072‒1073 [plaintiffs brought deceptive advertising claims against health insurance company, whose evidence of coverage and disclosure documents contained mandatory arbitration provision]; Cruz, supra, 30 Cal.4th at pp. 308‒309 [plaintiff brought deceptive advertising claims against health care provider, who moved to compel claims to

2022(See Concepcion, supra, 563 U.S. at pp. 337–338 [plaintiffs brought false advertising claims against their cell phone service provider, whose terms of service included agreement to arbitration containing a class action waiver]; Broughton, supra, 21 Cal.4th at pp. 1072‒1073 [plaintiffs brought deceptive advertising claims against health insurance company, whose evidence of coverage and disclosure documents contained mandatory arbitration provision]; Cruz, supra, 30 Cal.4th at pp. 308‒309 [plaintiff brought deceptive advertising claims against health care provider, who moved to compel claims to

2026In particular, Gentry concluded “[t]he presence of a class arbitration waiver in an employee arbitration agreement . . . does not by itself ‘indicate a systematic effort to impose arbitration on an employee not simply as an alternative to litigation, but as an inferior forum that works to the employer’s advantage.’ ” (Gentry, supra, 42 Cal.4th at p. 466 .) Gentry further noted that “severance is particularly appropriate in the case of class arbitration waivers” as distinguished from “limitations on remedies or other limitations that are invalid on their face.” (Ibid.) 12 10 To be clear, the tr

2023They asserted that under Gentry v. Superior Court (2007) 42 Cal.4th 443 (Gentry), the class action waiver was unenforceable.

2025(Viking River, supra, 596 U.S. at p. 652 .) That assertion is consistent with California cases rejecting the idea that 5 Stolt-Nielson held that, absent express consent allowing it, arbitration of a class action claim is incompatible with “the consensual nature of private dispute resolution” and thus violates “the basic precept that arbitration ‘is a matter of consent, not coercion.’ ” ( Stolt-Nielsen, supra, 559 U.S. at pp. 683, 681.) 6 AT&T Mobility abrogated on federal preemption grounds the holding in Discover Bank v. Superior Court (2005) 36 Cal.4th 148 that a class action waiver in a con

2025Viking River Cruises, the employer, framed its analysis under Stolt- Nielsen, supra, 559 U.S. 662 ,5 AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333 [ 131 S.Ct. 1740 ] (AT&T Mobility),6 and Epic Systems Corp. v. Lewis (2018) 584 U.S. 497 [ 138 S.Ct. 1612 ] (Epic Systems),7 a line of cases that, in its view, stands for the proposition that “ ‘a party may not be 5 Stolt-Nielson held that, absent express consent allowing it, arbitration of a class action claim is incompatible with “the consensual nature of private dispute resolution” and thus violates “the basic precept that arbitration ‘is a

2012In Arguelles-Romero v. Superior Court (2010) 184 Cal.App.4th 825, 844-845 [ 109 Cal.Rptr.3d 289 ] (Arguelles-Romero), the Court of Appeal found an arbitration agreement that included a class action waiver was not unconscionable because the value of the plaintiff’s individual claim, which exceeded $16,000, was not “so small that individuals would . . . be [un]willing to spend the time and effort to pursue an individual claim for the amount, particularly when the prospect of an award of statutory attorney fees is also possible. [Citations.]” (Id. at p. 844.) Similarly, in Walnut Producers, the C

2012In contrast to the unconscionability analysis in Discover Bank , the rule in Gentry concerns “the effect of a class action waiver on unwaivable statutory rights regardless of unconscionability.” (Arguelles-Romero v. Superior Court (2010) 184 Cal.App.4th 825, 836 [ 109 Cal.Rptr.3d 289 ] (Arguelles-Romero).) Specifically, Gentry addresses whether a class arbitration “is a significantly more effective practical means of vindicating unwaivable statutory rights.” (Arguelles-Romero, at p. 841.) Discover Bank and Gentry established two different tests of whether to enforce a class arbitration waiver,

2013(Walnut Producers of Cal. v. Diamond Foods, Inc. (2010) 187 Cal.App.4th 634, 641 (Walnut Producers); Prince v. CLS Transportation, Inc. (2004) 118 Cal.App.4th 1320, 1322, fn. 2 .) Plaintiffs allege the class action waiver present in the receivables purchase agreement is unconscionable.

2013(Walnut Producers, supra, 187 Cal.App.4th at p. 642 ; Morris v. Redwood Empire Bancorp (2005) 128 Cal.App.4th 1305, 1316 [“The issue whether a contract provision is unconscionable is a question of law.”] (Morris).) 26 Regarding an appellate court’s reviewing role, the Third District Court of Appeal held: “At the pleading stage of this case, where [the defendant] has sought to strike the class allegations, and plaintiffs assert the contractual prohibitions of those class allegations are unconscionable, our review under Civil Code section 1670.5, subdivision (b), is to determine de novo whether

2022(See Concepcion, supra, 563 U.S. at pp. 337–338 [plaintiffs brought false advertising claims against their cell phone service provider, whose terms of service included agreement to arbitration containing a class action waiver]; Broughton, supra, 21 Cal.4th at pp. 1072‒1073 [plaintiffs brought deceptive advertising claims against health insurance company, whose evidence of coverage and disclosure documents contained mandatory arbitration provision]; Cruz, supra, 30 Cal.4th at pp. 308‒309 [plaintiff brought deceptive advertising claims against health care provider, who moved to compel claims to

2022(See Concepcion, supra, 563 U.S. at pp. 337–338 [plaintiffs brought false advertising claims against their cell phone service provider, whose terms of service included agreement to arbitration containing a class action waiver]; Broughton, supra, 21 Cal.4th at pp. 1072‒1073 [plaintiffs brought deceptive advertising claims against health insurance company, whose evidence of coverage and disclosure documents contained mandatory arbitration provision]; Cruz, supra, 30 Cal.4th at pp. 308‒309 [plaintiff brought deceptive advertising claims against health care provider, who moved to compel claims to

2015Code, §§ 98-98.8), which allow a labor commissioner to resolve wage claims in a speedy and informal manner. (57 Cal.4th at pp. 1128-1129.) Our Supreme Court held: “The fact that the FAA preempts Sonic I’s [Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659 ] rule requiring arbitration of wage disputes to be preceded by a Berman hearing does not mean that a court applying the unconscionability analysis may not consider the value of benefits provided by the Berman statutes, which go well beyond the hearing itself.” (Sonic II, supra, 57 Cal.4th 1109, 1149 .) In Chavarria, the United States C

2014(Id. at pp. 2309–2310.) The American Express Court noted that Concepcion “specifically rejected the argument that class arbitration was necessary to prosecute claims ‘that might otherwise slip through the legal system’” (American Express, supra, 133 S.Ct. at p. 2312 ), and that Concepcion “established . . . that the FAA’s command to enforce arbitration agreements trumps any interest in ensuring the prosecution of low-value claims” and that “the FAA does . . . favor the absence of litigation when that is the consequence of a class action waiver” (American Express, supra, at p. 2312, fn. 5 ).3 C

2025Viking River Cruises, the employer, framed its analysis under Stolt- Nielsen, supra, 559 U.S. 662 ,5 AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333 [ 131 S.Ct. 1740 ] (AT&T Mobility),6 and Epic Systems Corp. v. Lewis (2018) 584 U.S. 497 [ 138 S.Ct. 1612 ] (Epic Systems),7 a line of cases that, in its view, stands for the proposition that “ ‘a party may not be 5 Stolt-Nielson held that, absent express consent allowing it, arbitration of a class action claim is incompatible with “the consensual nature of private dispute resolution” and thus violates “the basic precept that arbitration ‘is a

2017In that case, decided in 2010, the court held that, under the FAA, no party may be compelled to participate in class arbitration "unless there is a contractual basis for concluding that the party agreed to do so." ( Stolt-Nielsen, supra, 559 U.S. at p. 684 , 130 S.Ct. 1758 .) The case did not involve a class action waiver; rather, the contract at issue was silent on the issue of class arbitration. 8 The court concluded that an agreement for class arbitration could not be inferred from the contract "because class-action arbitration changes the nature of arbitration to such a degree that it cann

2013(Walnut Producers, supra, 187 Cal.App.4th at p. 642 ; Morris v. Redwood Empire Bancorp (2005) 128 Cal.App.4th 1305, 1316 [“The issue whether a contract provision is unconscionable is a question of law.”] (Morris).) 26 Regarding an appellate court’s reviewing role, the Third District Court of Appeal held: “At the pleading stage of this case, where [the defendant] has sought to strike the class allegations, and plaintiffs assert the contractual prohibitions of those class allegations are unconscionable, our review under Civil Code section 1670.5, subdivision (b), is to determine de novo whether

2013(Walnut Producers, supra, 187 Cal.App.4th at p. 642 ; Morris v. Redwood Empire Bancorp (2005) 128 Cal.App.4th 1305, 1316 [“The issue whether a contract provision is unconscionable is a question of law.”] (Morris).) 26 Regarding an appellate court’s reviewing role, the Third District Court of Appeal held: “At the pleading stage of this case, where [the defendant] has sought to strike the class allegations, and plaintiffs assert the contractual prohibitions of those class allegations are unconscionable, our review under Civil Code section 1670.5, subdivision (b), is to determine de novo whether

2004In the absence of a class action waiver, California law authorizes classwide arbitrations and vests jurisdiction in our trial courts to determine whether in a particular case that approach "offer[s] a better, more efficient, and fairer solution" than the alternatives. ( Keating v. Superior Court (1982) 31 Cal.3d 584, 613 , 183 Cal.Rptr. 360 , 645 P.2d 1192 , reversed on another ground in Southland Corp. v. Keating (1984) 465 U.S. 1 , 104 S.Ct. 852 , 79 L.Ed.2d 1 ; Lewis v. Prudential-Bache Securities, Inc. (1986) 179 Cal.App.3d 935 , 225 Cal.Rptr. 69 ; Izzi v. Mesquite Country Club (1986) 186

2004In the absence of a class action waiver, California law authorizes classwide arbitrations and vests jurisdiction in our trial courts to determine whether in a particular case that approach "offer[s] a better, more efficient, and fairer solution" than the alternatives. ( Keating v. Superior Court (1982) 31 Cal.3d 584, 613 , 183 Cal.Rptr. 360 , 645 P.2d 1192 , reversed on another ground in Southland Corp. v. Keating (1984) 465 U.S. 1 , 104 S.Ct. 852 , 79 L.Ed.2d 1 ; Lewis v. Prudential-Bache Securities, Inc. (1986) 179 Cal.App.3d 935 , 225 Cal.Rptr. 69 ; Izzi v. Mesquite Country Club (1986) 186

2010That, in the circumstances of an unpaid overtime action, a $37,000 claim is not necessarily a sufficient incentive to pursue an individual claim does not render $37,000 a “small sum[] of money.” 17 In Olvera v. El Pollo Loco, Inc. (2009) 173 Cal.App.4th 447, 457 [ 93 Cal.Rptr.3d 65 ], we used some of the factors from the rule of Gentry to bolster our finding of substantive unconscionability of a class action waiver.

2010That, in the circumstances of an unpaid overtime action, a $37,000 claim is not necessarily a sufficient incentive to pursue an individual claim does not render $37,000 a “small sum[] of money.” 17 In Olvera v. El Pollo Loco, Inc. (2009) 173 Cal.App.4th 447, 457 [ 93 Cal.Rptr.3d 65 ], we used some of the factors from the rule of Gentry to bolster our finding of substantive unconscionability of a class action waiver.

2022(See also Lacayo v. Catalina Restaurant Group Inc. (2019) 38 Cal.App.5th 244, 254 [trial court’s order denying request to dismiss class claims and permitting arbitrator to decide whether to arbitrate class claims was not appealable].) HCI nonetheless urges us to find that the trial court’s order was the functional equivalent of an order denying a petition to compel arbitration, and thus appealable under section 1294 because, by declining to strike the class claims, the trial court refused to enforce the class action waiver in the agreement.

2021Although an order granting a motion to compel arbitration is not appealable (Lacayo v. Catalina Restaurant Group Inc. (2019) 38 Cal.App.5th 244, 253 (Lacayo)), SDHM contends it has standing to appeal because (1) the trial court denied its motion to compel arbitration by retaining jurisdiction over claims for public injunctive relief, which SDHM maintains plaintiff Blake Miliate did not actually seek; (2) SDHM received relief different from the relief it sought; and (3) the court failed to affirmatively enforce the arbitration agreement’s class action waiver.

2022FSG contended Mills consented to the arbitration agreement; Mills’s individual claims were subject to the arbitration agreement; the class claims must be dismissed because of the class action waiver; and the arbitration agreement satisfied the requirements set forth in Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 (Armendariz).

2010A sliding scale is applied so that ‘the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.’ (Armendariz [v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 ,] 114 [ 99 Cal.Rptr.2d 745 , 6 P.3d 669 ].)” (Morris, supra, 128 Cal.App.4th at p. 1317 .) Applying this test to plaintiffs’ allegations, we conclude plaintiffs have failed to plead sufficiently that the class action waiver is unconscionable.

2018On July 12, 2011, we reversed the trial court's ruling invalidating the class action waiver because plaintiff's opposition to the petition had not made the necessary factual showing under the test in Gentry v. Superior Court (2007) 42 Cal.4th 443 , 446, 64 Cal.Rptr.3d 773 , 165 P.3d 556 . ( Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489 , 497, 128 Cal.Rptr.3d 854 .) But we affirmed the ruling that the PAGA waiver was substantively unconscionable and held PAGA was not preempted by the Federal Arbitration Act. ( 197 Cal.App.4th at pp. 500-503, 128 Cal.Rptr.3d 854 .) We reversed and reman

2018On July 12, 2011, we reversed the trial court's ruling invalidating the class action waiver because plaintiff's opposition to the petition had not made the necessary factual showing under the test in Gentry v. Superior Court (2007) 42 Cal.4th 443 , 446, 64 Cal.Rptr.3d 773 , 165 P.3d 556 . ( Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489 , 497, 128 Cal.Rptr.3d 854 .) But we affirmed the ruling that the PAGA waiver was substantively unconscionable and held PAGA was not preempted by the Federal Arbitration Act. ( 197 Cal.App.4th at pp. 500-503, 128 Cal.Rptr.3d 854 .) We reversed and reman

2010Plaintiffs claim the class action waiver is unconscionable under Independent Assn. of Mailbox Center Owners, Inc. v. Superior Court (2005) 133 Cal.App.4th 396 [ 34 Cal.Rptr.3d 659 ] (Mailbox Center), a case from the Fourth Appellate District that invalidated a class action waiver in a standardized franchise agreement’s arbitration clause.

2010Plaintiffs claim the class action waiver is unconscionable under Independent Assn. of Mailbox Center Owners, Inc. v. Superior Court (2005) 133 Cal.App.4th 396 [ 34 Cal.Rptr.3d 659 ] (Mailbox Center), a case from the Fourth Appellate District that invalidated a class action waiver in a standardized franchise agreement’s arbitration clause.

2007Code, § 1668.) Under these circumstances, such waivers are unconscionable under California law and should not be enforced.” (Discover Bank, supra, 36 Cal.4th at pp. 162-163.) The class action waiver in the case at bench is also “patently one-sided” (Ingle v. Circuit City Stores, Inc. (9th Cir. 2003) 328 F.3d 1165, 1175 [describing prohibition against classwide arbitration of employment disputes]), and Discover Bank applies when the class action waiver is “in practice the exemption” of defendant from responsibility because a class action would be “ ‘ “the only effective way to halt and redress”

2006The class action clause is therefore "substantively unconscionable." ( Ibid. ) The plaintiff employee here alleged that he and other similarly-situated employees were covered by the Labor Code and California Industrial Welfare Commission orders, and asserted a claim for damages for various Labor Code violations, including damages and penalties for overtime compensation, waiting time, and failures to provide required rest breaks.

2006But for the application of state law unconscionability to avoid the limited preemptive effect of the United States Arbitration Act, it must apply to all contracts, not merely arbitration clauses. ( Doctor's Associates, Inc. v. Casarotto (1996) 517 U.S. 681, 686-687 , 116 S.Ct. 1652 , 134 L.Ed.2d 902 ; Ting v. AT & T (9th Cir.2003) 319 F.3d 1126 , 1150 fn. 15; see also Discover Bank v. Superior Court, supra, 36 Cal.4th at pp. 153, 163-168, 30 Cal.Rptr.3d 76 , 113 P.3d 1100 ; Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 971-973 , 64 Cal.Rptr.2d 843 , 938 P.2d 903 ; Kinney v.

2006But for the application of state law unconscionability to avoid the limited preemptive effect of the United States Arbitration Act, it must apply to all contracts, not merely arbitration clauses. ( Doctor's Associates, Inc. v. Casarotto (1996) 517 U.S. 681, 686-687 , 116 S.Ct. 1652 , 134 L.Ed.2d 902 ; Ting v. AT & T (9th Cir.2003) 319 F.3d 1126 , 1150 fn. 15; see also Discover Bank v. Superior Court, supra, 36 Cal.4th at pp. 153, 163-168, 30 Cal.Rptr.3d 76 , 113 P.3d 1100 ; Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 971-973 , 64 Cal.Rptr.2d 843 , 938 P.2d 903 ; Kinney v.

2026(See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 .) b.

2016(Id. at p. 907; Auto Equity, supra, 57 Cal.2d at p. 455 .) IV Class Action Waiver Provision Although we conclude the Contract's arbitration clause is not unconscionable, Goodridge argues it is nevertheless void because it contains a class action waiver provision illegal under applicable law.

2021(Gilmer v. Interstate/Johnson Lane Corp. (1991) 500 U.S. 20, 33 [“Mere inequality in bargaining power, however, is not a sufficient reason to hold that arbitration agreements are never enforceable in the employment context.”].) As for the class action waiver, defendant has not sought to enforce that provision and, as we already explained, it is not even at issue since plaintiff has not raised any class or PAGA claims.

2014In fact, they were enacted decades before the advent of Federal Rule of Civil Procedure 23 . . . .‖ (Italian Colors, supra, 570 U.S. at p. __ [ 133 S.Ct. at p. 2309 ].) Here as well, like the Fifth Circuit, ―[w]e find limited force to the argument that there is an inherent conflict between the FAA and NLRA when the NLRA would have to be protecting a right of access to a procedure that did not exist when the NLRA was (re)enacted.‖ (Horton II, at p. 362, fn. omitted.) Furthermore, as the high court stated in Italian Colors: ―In Gilmer, supra, we had no qualms in enforcing a class waiver in an ar

2021Fourth, there were real world obstacles to the vindication of employee’s rights, as “ ‘the instant case involves precisely the sort of arbitration agreement with a class action waiver entered as a condition of employment by low-wage, limited-information employees in vulnerable, at-will employment environments[.]’ ” (Garrido v. Air Liquide Industrial U.S. LP (2015) 241 Cal.App.4th 833, 847 (Garrido).) Based on the trial court’s analysis of the Gentry factors, it concluded that both the class action waiver and the arbitration provision were not enforceable.

2021Citing similar evidence, Garrido concluded that “the trial court could reasonably infer that absent class members may be ill informed of their rights.” (Garrido, supra, 241 Cal.App.4th at p. 846 .) Fourth, the trial court found that there were real world obstacles to the vindication of employee’s rights, as “ ‘the instant case involves precisely the sort of arbitration agreement with a class action waiver entered as a condition of employment by low-wage, limited-information employees in vulnerable, at-will employment environments[.]’ ” (Garrido, supra, 241 Cal.App.4th at p. 847 .) While defend

2014(Volt, supra, 489 U.S. at p. 481, fn. 4 (dis. opn. of Brennan, J.) [“I do not disagree with the Court’s holding . . . that the FAA does not pre[]empt state arbitration rules, even as applied to contracts involving interstate commerce, when the parties have agreed to arbitrate by those rules to the exclusion of federal arbitration law.” (citation omitted)].) 5 DIRECTV argues that if the class action waiver is unenforceable as to plaintiffs’ CLRA claims, then, at most, the arbitration agreement would be unenforceable as to those claims, and the motion to compel arbitration should have been grant

2005Just as they may limit by contract the issues which they will arbitrate [citation], so too may they specify by contract the rules under which that arbitration will be conducted." ( Volt, supra, 489 U.S. at p. 479 , 109 S.Ct. 1248 .) The Court of Appeal in the present case concluded that, unlike in Volt , the imposition of class action arbitration despite a class action waiver in the arbitration agreement would defeat the purpose of the FAA because it would not be enforcing the arbitration agreement according to its terms.

2014(Aral v. Earthlink, Inc. (2005) 134 Cal.App.4th 544, 558-562 (Aral).) Aral, however, involved California consumers who each incurred only about $50 in damages and who would have been required to litigate their claims in Georgia under the forum selection 19 clause and on an individual basis (due to a class action waiver).

2007Villa Milano Homeowners Assn. v. II Davorge (2000) 84 Cal.App.4th 819 , 827 [ 102 Cal.Rptr.2d 1 ], took a different view of Madden, stating: “[T]he court [in Madden] left open the possibility that, in a given case, a contract might be adhesive even if the weaker party could reject die terms and go elsewhere. [Citation.]” In Aral v. Earthlink, Inc. (2005) 134 Cal.App.4th 544 [ 36 Cal.Rptr.3d 229 ] the terms of the services agreement for a digital subscriber line (DSL), including a class action waiver, were presented in what Aral characterized as a “ ‘take it or leave it’ ” basis, either through

2005The courts in AOL, supra, 90 Cal.App.4th 1 , Szetela v. Discover Bank (2002) 97 Cal.App.4th 1094 [ 118 Cal.Rptr.2d 862 ] (Szetela), and Independent Assn, of Mailbox Center Owners, Inc. v. Superior Court (2005) 133 Cal.App.4th 396 [ 34 Cal.Rptr.3d 659 ] (Mailbox Center), have all invalidated class action waivers in arbitration agreements. 11 In Discover Bank, supra, 36 Cal.4th 148 , our Supreme Court concluded that when a class action waiver “is found in a consumer contract of adhesion in a setting in which disputes between the contracting parties predictably involve small amounts of damages, a

2005The courts in AOL, supra, 90 Cal.App.4th 1 , Szetela v. Discover Bank (2002) 97 Cal.App.4th 1094 [ 118 Cal.Rptr.2d 862 ] (Szetela), and Independent Assn, of Mailbox Center Owners, Inc. v. Superior Court (2005) 133 Cal.App.4th 396 [ 34 Cal.Rptr.3d 659 ] (Mailbox Center), have all invalidated class action waivers in arbitration agreements. 11 In Discover Bank, supra, 36 Cal.4th 148 , our Supreme Court concluded that when a class action waiver “is found in a consumer contract of adhesion in a setting in which disputes between the contracting parties predictably involve small amounts of damages, a