substantive unconscionability doctrine in New Mexico

2018“But states cannot invalidate arbitration 18 agreements through the application of ‘defenses that apply only to arbitration or 19 that derive their meaning from the fact that an agreement to arbitrate is at issue.’ ” 20 Id. ¶ 17 (quoting AT&T Mobility LLC v. Concepcion, 563 U.S. 333 , 339 (2011)). 21 Our Supreme Court has repeatedly held that New Mexico courts may invalidate 16 1 arbitration agreements through the doctrine of substantive unconscionability 2 without violating the FAA.

2012Concepcion, ___ U.S. at ___, 131 S. Ct. at 1750-51. {12} Based on Concepcion’s reference to the substantive unconscionability analysis of Discover Bank, Defendant argues that Fiser was implicitly overruled, that Cordova is likewise “inapposite,” and therefore, the district court erred in relying on Cordova as authority for precluding enforcement of its agreement.

2012See Concepcion,__U.S. at__, 131 S. Ct. at 1750-53 (concluding that the rule that rendered class action waiver provisions in an arbitration contract unenforceable was preempted by the FAA); Doctor’s Assocs., Inc., 517 U.S. at 684 (concluding that a statute targeted arbitration agreements by requiring any agreement for arbitration, specifically, to have a notice provision on the first page in capital, underlined letters and was therefore preempted by the FAA).

2012See Concepcion, ___ U.S. at ___, 131 S. Ct. at 1750-53 (concluding that the rule that rendered class action waiver provisions in an arbitration contract unenforceable was preempted by the FAA); Doctor’s Assocs., Inc., 517 U.S. at 684 (concluding that a statute targeted arbitration agreements by requiring any agreement for arbitration, specifically, to have a notice provision on the first page in capital, underlined letters and was therefore preempted by the FAA).

2024See Figueroa v. THI of N.M. at Casa Arena Blanca, LLC, 11 2013-NMCA-077, ¶ 15 , 306 P.3d 480 (stating we are bound by New Mexico 12 Supreme Court precedent).

2022It “is a means of invalidating an otherwise valid contract.” Flemma, 2013-NMSC- 022, ¶ 19 (emphasis added); see also Figueroa v. THI of N.M. at Casa Arena Blanca, LLC, 2013-NMCA-077, ¶ 17 , 306 P.3d 480 (“[C]onsideration and unconscionability are two different analyses under contract law.

2012See, e.g., Bowlin’s, Inc. v. Ramsey Oil Co., 99 N.M. 660, 668 , 662 P.2d 661, 669 (Ct. App. 1983) (discussing substantive unconscionability as applied to all contracts, stating that it applies to “contract clauses which are illegal or contrary to public 9 policy” and that “‘[u]nconscionability has generally been recognized to include . . . contract terms which are unreasonably favorable to the other party,’” (quoting Williams v. Walker- Thomas Furniture Co., 350 F.2d 445, 449 (D.C.

2012See, e.g., Bowlin’s, Inc. v. Ramsey Oil Co., 99 N.M. 660, 668 , 662 P.2d 661, 669 (Ct. App. 1983) (discussing substantive unconscionability as applied to all contracts, stating that it applies to “contract clauses which are illegal or contrary to public policy” and that “‘[u]nconscionability has generally been recognized to include . . . contract terms which are unreasonably favorable to the other party,’” (quoting Williams v. Walker- Thomas Furniture Co., 350 F.2d 445, 449 (D.C.

2012See, e.g., Bowlin’s, Inc. v. Ramsey Oil Co., 99 N.M. 660, 668 , 662 P.2d 661, 669 (Ct. App. 1983) (discussing substantive unconscionability as applied to all contracts, stating that it applies to “contract clauses which are illegal or contrary to public 9 policy” and that “‘[u]nconscionability has generally been recognized to include . . . contract terms which are unreasonably favorable to the other party,’” (quoting Williams v. Walker- Thomas Furniture Co., 350 F.2d 445, 449 (D.C.

2012See, e.g., Bowlin’s, Inc. v. Ramsey Oil Co., 99 N.M. 660, 668 , 662 P.2d 661, 669 (Ct. App. 1983) (discussing substantive unconscionability as applied to all contracts, stating that it applies to “contract clauses which are illegal or contrary to public 9 policy” and that “‘[u]nconscionability has generally been recognized to include . . . contract terms which are unreasonably favorable to the other party,’” (quoting Williams v. Walker- Thomas Furniture Co., 350 F.2d 445, 449 (D.C.

2022See id. ¶¶ 26, 35. {4} Lastly, we reject Defendant’s claim that our notice of proposed disposition was erroneous on the basis that we failed to apply the substantive unconscionability analysis set forth in Peavy v. Skilled Healthcare Group, Inc., 2020-NMSC-010 , 470 P.3d 218 . [MIO 1, 4] “Unconscionability is an affirmative defense to contract enforcement.” Id. ¶ 10.

2022See id. ¶¶ 26, 35. {4} Lastly, we reject Defendant’s claim that our notice of proposed disposition was erroneous on the basis that we failed to apply the substantive unconscionability analysis set forth in Peavy v. Skilled Healthcare Group, Inc., 2020-NMSC-010 , 470 P.3d 218 . [MIO 1, 4] “Unconscionability is an affirmative defense to contract enforcement.” Id. ¶ 10.

2018See Cordova, 2009-NMSC-021, ¶ 38 (“Our 3 unconscionability analysis, which is applied in the same manner to arbitration 4 clauses as to any other clauses of a contract, is therefore not inconsistent with the 5 dictates of the FAA.”); see also Rivera, 2011-NMSC-033, ¶ 17 (“Despite the 6 policy favoring enforcement of arbitration agreements, under the FAA an 7 arbitration agreement is not enforceable where grounds exist at law or in equity for 8 the revocation of any contract.” (internal quotation marks and citation omitted)); 9 Fiser v. Dell Computer Corp., 2008-NMSC-046, ¶ 23 , 144 N.M. 464 ,

2018See Cordova, 2009-NMSC-021, ¶ 38 (“Our 3 unconscionability analysis, which is applied in the same manner to arbitration 4 clauses as to any other clauses of a contract, is therefore not inconsistent with the 5 dictates of the FAA.”); see also Rivera, 2011-NMSC-033, ¶ 17 (“Despite the 6 policy favoring enforcement of arbitration agreements, under the FAA an 7 arbitration agreement is not enforceable where grounds exist at law or in equity for 8 the revocation of any contract.” (internal quotation marks and citation omitted)); 9 Fiser v. Dell Computer Corp., 2008-NMSC-046, ¶ 23 , 144 N.M. 464 ,