class waiver in Missouri

2012Because Concepcion "instructs clearly that a court cannot invalidate an arbitration agreement on the sole basis *499 that it contains a class waiver," the enforceability of an arbitration agreement is instead tested though a "lens of ordinary state-law principles that govern contracts." Id. at 515.

2012Because Concepcion “instructs clearly that a court cannot invalidate an arbitration agreement on the sole basis that it contains a class waiver,” the enforceability of an arbitration agreement is instead tested though a “lens of ordinary state-law principles that govern contracts.” Id. at 515 .

2012Therefore, a fundamental problem with the Discover Bank rule is that it requires courts to invalidate contractual provisions requiring individual arbitration and to order class arbitration even though the defendant, by including a class waiver, expressly withheld consent to class arbitration. [3] While Missouri courts traditionally have discussed unconscionability under the lens of procedural unconscionability, Woods, 280 S.W.3d at 94-95 , and substantive unconscionability, State ex rel.

2012While Missouri courts traditionally have discussed unconscionability under the lens of procedural unconscionability, Woods, 280 S.W.3d at 94-95 , and substantive unconscion-ability, State ex rel.

2012See Marmet, - U.S. -, 132 S.Ct. 1201 (2012) (remanding for additional findings regarding whether, absent a public policy rationale, the arbitration clause at issue in the case was “unenforceable under state common law principles that are not specific to arbitration and pre-empted by the FAA”); see also Mission Viejo Emergency Med.

2012See Cruz v. Cingular Wireless, LLC, 648 F.3d 1205, 1210 (11th Cir.2011) (indicating that the FAA’s section 2 “saving clause” and Concepcion permit the analysis of whether a class waiver in an arbitration agreement is enforceable to include consideration of whether the arbitration agreement is valid in light of generally applicable contract defenses).

2012But this policy concern about whether a class waiver is im-permissibly exculpatory seemingly was rejected in Concepcion, insofar as it "observed that California’s Discover Bank rule [had] ‘its origins in California's unconscionability doctrine and California’s policy against exculpation.’ " Cruz, 648 F.3d at 1214 (citing Concepcion, 131 S.Ct. at 1746, for the proposition that Concepcion rejected the plaintiffs’ policy arguments regarding whether the waiver was exculpatory).

2012But this policy concern about whether a class waiver is im-permissibly exculpatory seemingly was rejected in Concepcion, insofar as it "observed that California’s Discover Bank rule [had] ‘its origins in California's unconscionability doctrine and California’s policy against exculpation.’ " Cruz, 648 F.3d at 1214 (citing Concepcion, 131 S.Ct. at 1746, for the proposition that Concepcion rejected the plaintiffs’ policy arguments regarding whether the waiver was exculpatory).

2012Vincent v. Schneider, 194 S.W.3d 853, 858 (Mo. banc 2006), Concepcion instead dictates a review that limits the discussion to whether state law defenses such as unconscionability impact the formation of a contract.

2012As such, Concepcion invalidates this Court’s reasoning in Brewer I that concluded that the unconscionable aspects of the arbitration agreement in that case were “a result of the class arbitration waiver.” See Brewer I, 328 S.W.3d at 24; see also Ruhl v. Lee’s Summit Honda, 322 S.W.3d 136 (Mo. banc 2010) (citing Brewer I ’s uncon-scionability reasoning and invalidating an entire arbitration agreement when the class waiver was found unconscionable).

2012In support of this holding, the trial court cited Stolt-Nielsen and this Court’s opinion in Brewer v. Missouri Title Loans, Inc., 323 S.W.3d 18 (Mo. banc 2010) (Brewer I), vacated, Missouri Title Loans, Inc. v. Brewer, — U.S. -, 131 S.Ct. 2875 , 179 L.Ed.2d 1184 (2011), 5 wherein this Court had found unconscionable and unenforceable a class waiver that was included in an arbitration agreement that was part of a title loan contract.

2012See Brewer I, 323 S.W.3d at 20-24 .

2009See Ruhl, — S.W.3d at —, 2009 WL 3571309 at *6. (holding that the class waiver “would immunize [dealership] from [consumers’] claims and allow it to continue in its alleged deceptive practices against individuals purchasing a new car.”); Whitney, 173 S.W.3d at 314 (holding that “since no single customer could undertake a case against [the defendant], the company could continue its improper and deceptive charges ad infinitum since none of its customers would have a practical remedy to bring about a stop to the conduct.”).

2009Finally, the arbitration agreement at issue is unconscionable because “it effectively stripfs] consumers of the protections afforded to them under the Merchandising Practices Act and unfairly allows companies ... to insulate themselves from the consumer protection laws of this State.” Whitney, 173 S.W.3d at 314 .