C. JOHNSON, J.
¶ 1 This case involves the enforceability of a binding arbitration clause included within a debt adjustment contract. The trial court denied the defendant's motion to compel arbitration, ruling that the motion was untimely and that the binding arbitration clause was unconscionable. We affirm the trial court's holding that the clause is unconscionable, which then requires us to decide whether this conclusion as to the validity of the binding arbitration clause is preempted by the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-14, as recently determined by the United States Supreme Court in AT&T Mobility LLC v. Concepcion, ___ U.S. ___, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011). We find no preemption and affirm.
¶ 2 On May 6, 2008, the respondent, Patty Gandee, entered into a debt adjustment contract with appellants, LDL Freedom Enterprises Inc. (Freedom) doing business as Financial Crossroads. As neither company was registered to do business in Washington, the contract was sent as part of a packet to Gandee's home. She filled out the packet and returned it to Freedom. Three years later, on May 9, 2011, Gandee filed a class action in Pierce County Superior Court alleging violations of the debt adjusting act, chapter 18.28 RCW, and the Consumer Protection Act (CPA), chapter 19.86 RCW. The claims were based on allegations that Freedom charged excessive fees for debt adjusting under Washington law. The defendants were served on May 18 and 19, 2011. On August 10, 2011, Freedom moved to compel arbitration and stay the superior court proceedings pursuant to the original contract. The contract contained the following arbitration and severability clauses:
Clerk's Papers (CP) at 75.
¶ 3 Gandee opposed the motion to compel arbitration, arguing that Freedom failed to move for arbitration within 30 days as required by the arbitration clause and that the arbitration clause was unconscionable. Freedom responded that these issues had to be resolved by the arbitrator. The trial court denied the motion to compel because it was not "timely brought," found the requirement that arbitration occur in Orange County unconscionable, and severed the attorney fee provision. Verbatim Report of Proceedings at 28. Freedom timely appealed the decision. We accepted direct review.
¶ 4 We review a trial court's decision to deny a motion to compel arbitration de novo. The party seeking to avoid arbitration has the burden to show that the arbitration clause is unenforceable. Under the FAA, arbitration agreements are "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. Further, both state and federal law strongly favor arbitration and require all presumptions to be made in favor of arbitration. Zuver v. Airtouch Commc'ns, Inc., 153 Wn.2d 293, 301, 103 P.3d 753 (2004).
¶ 5 We begin our analysis by examining the substantive unconscionability of the clause at issue here because it illuminates why Concepcion, as applied to this case, is consistent with Washington law. In Washington, either substantive or procedural unconscionability is sufficient to void a contract. Adler v. Fred Lind Manor, 153 Wn.2d 331, 347, 103 P.3d 773 (2004). Here, only substantive unconscionability is alleged.
¶ 6 Freedom devotes little effort in arguing that the terms of the arbitration clause are, in fact, conscionable. Rather, its argument centers on preemption and whether Gandee's arguments are "mooted" by Freedom's offer to waive objectionable provisions. Gandee argues that three unconscionable provisions so permeate the arbitration clause as to make severance of the specific provisions impossible.
¶ 7 Gandee first challenges the venue provision and argues that the arbitration clause effectively denies her the ability to vindicate her rights. Both this court and the United States Supreme Court have recognized this type of prohibitive-cost challenge to mandatory arbitration clauses. Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000); Adler, 153 Wn.2d 331, 103 P.3d 773. In Adler, this court adopted a burden-shifting analysis whereby the party seeking to avoid arbitration must present evidence showing that arbitration would impose prohibitive costs. "[A]n affidavit describing [the party's] personal finances as well as fee information obtained from the American Arbitration Association[]" can be sufficient to meet this burden. Adler, 153 Wash.2d at 353, 103 P.3d 773. The party seeking arbitration can then present offsetting evidence as to the likelihood of bearing those costs. Adler, 153 Wash.2d at 353, 103 P.3d 773. This was the approach utilized by the trial court in this case.
¶ 8 Gandee estimated her underlying claim to involve roughly $3,500 in actual damages.
¶ 9 Freedom then presented offsetting financial evidence. It argued that the clause does not require arbitration with the AAA but only that the rules of the AAA be followed. This assertion appears correct. However, Freedom failed to present any evidence as to what other arbitration organizations could be used or what they would cost. Freedom argued that Gandee failed to consider or include the cost savings of arbitration as opposed to litigation. Arbitration can be cheaper than litigation and this is sometimes recognized in support of using arbitration. See, e.g., Concepcion, 131 S.Ct. at 1749 (recognizing potential cost benefits of arbitrating over litigating). However, none of the cases relied upon by Freedom acknowledge that these potential savings should be considered in this context.
¶ 10 Gandee next addresses the "loser pays" provision, arguing, in essence, that the provision is one-sided and harsh because if she prevails she is already entitled to costs and fees under the CPA but is forced to bear
¶ 11 Finally, Gandee challenges the 30-day provision. Both sides argue that the provision is ambiguous, potentially operating as either a private statute of limitations or as a time frame within which a party must seek to compel arbitration. However, we find no ambiguity in the clause. It requires "[a]ll disputes or claims ... be submitted to binding arbitration ... within 30 days from the dispute date or claim." CP at 75. A plain language reading of this provision indicates that Gandee supposedly had 30 days within which to bring her claim.
¶ 12 Generally, a private statute of limitations will control over general statutes of limitation, "`"unless prohibited by statute or public policy, or unless [it is] unreasonable."'" Adler, 153 Wash.2d at 356, 103 P.3d 773 (quoting Resp'ts' Br. at 43 (quoting Ashburn v. Safeco Ins. Co. of Am., 42 Wn.App. 692, 696, 713 P.2d 742 (1986))). Here, the provision shortens the statute of limitations from the four years provided by the CPA to 30 days. In Adler, we held a shortening of the statute of limitations from three years to 180 days to be substantively unconscionable. Adler, 153 Wash.2d at 355-58, 103 P.3d 773. Consistent with Adler's holding, we find the statute of limitations provision here to be substantively unconscionable.
¶ 13 Having found all three challenged provisions unconscionable, we are left to determine whether the proper remedy is severance of the provisions or invalidation of the arbitration clause. Generally, courts are "loath to upset the terms of an agreement and strive to give effect to the intent of the parties," especially where the agreement contains a severance clause. Zuver, 153 Wash.2d at 320, 103 P.3d 753. However, where unconscionable terms "pervade" an agreement, courts should refuse to rewrite the agreement and instead invalidate the provision. Zuver, 153 Wash.2d at 320, 103 P.3d 753.
¶ 14 Here, we are confronted with a short, four-sentence arbitration clause containing three unconscionable provisions. Severing all three provisions would significantly alter both the tone of the arbitration clause and the nature of the arbitration contemplated by the clause. The location, fee structure, and timing of the arbitration would be changed. Little would be left of the arbitration "agreed" to by the parties. On these facts, the unconscionable terms pervade the entire clause and severing three out of four provisions would require essentially a
¶ 15 Freedom attempts to escape this result by offering to "waive" objectionable provisions, which it suggests, somehow moots Gandee's challenges. Contracts are generally interpreted as of the time of contracting, making any subsequent offer to waive unconscionable terms irrelevant. See, e.g., Zuver, 153 Wash.2d at 310 n. 7, 103 P.3d 753. We have, however, recognized an exception to this rule in the context of arbitration agreements. Zuver, 153 Wn.2d 293, 103 P.3d 753.
¶ 16 But Zuver did not announce a broad rule requiring courts to simply accept all offers of waiver, especially where the offer is presented in appellate briefing. Here, Freedom writes in its final briefing that "if this Court finds a provision offensive, Freedom waives it." Reply Br. at 20. This promise is essentially meaningless and contrary to the general approach to view the contractual terms at the time of formation. It also provides little to no benefit to Gandee in this case to accept the "offer" after an appellate determination. Given our determination that the provisions are substantively unconscionable, Freedom has no choice but to "waive" them. Strong reasons exist for encouraging contracts to be conscionable at the time they are written and allowing after-the-fact waiver to moot unconscionability challenges is the exception, not the rule.
¶ 17 In this case, Freedom made only one arguably legitimate attempt at waiver: its offer at the trial court to waive the venue provision. However, as discussed above, the overall clause remains unconscionable. For these reasons, we hold the arbitration clause unenforceable.
¶ 18 Freedom argues that the above analysis is preempted by the United States Supreme Court's opinion in Concepcion. In Concepcion, the United States Supreme Court examined the Discover Bank
¶ 19 Read in context, the holding in Concepcion is less than surprising. When Discover Bank was applied in Concepcion, the rule became, in essence, an overbroad rule invalidating an arbitration clause that might be otherwise conscionable under California law. As our above analysis shows, the arbitration clause at issue here contained numerous unconscionable provisions based on the specific facts at issue in the current case. Concepcion provides no basis for preempting our relevant case law nor does it require the enforcement of Freedom's arbitration clause.
¶ 20 We affirm the trial court's denial of the motion to compel arbitration. The arbitration clause itself is so permeated with unconscionable provisions as to make severance impossible. Without an enforceable arbitration clause, the plaintiff cannot be compelled to arbitrate. Accordingly, we remand for further proceedings consistent with this opinion.
WE CONCUR: BARBARA A. MADSEN, Chief Justice, SUSAN OWENS, MARY E. FAIRHURST, JAMES M. JOHNSON, DEBRA L. STEPHENS, CHARLES K. WIGGINS, STEVEN C. GONZÁLEZ, Justices and TOM CHAMBERS, Justice Pro Tem.
"The revised agreement provides that customers may initiate dispute proceedings by completing a one-page Notice of Dispute form available on AT & T's Web site. AT & T may then offer to settle the claim; if it does not, or if the dispute is not resolved within 30 days, the customer may invoke arbitration by filing a separate Demand for Arbitration, also available on AT & T's Web site. In the event the parties proceed to arbitration, the agreement specifies that AT & T must pay all costs for nonfrivolous claims; that arbitration must take place in the county in which the customer is billed; that, for claims of $10,000 or less, the customer may choose whether the arbitration proceeds in person, by telephone, or based only on submissions; that either party may bring a claim in small claims court in lieu of arbitration; and that the arbitrator may award any form of individual relief, including injunctions and presumably punitive damages. The agreement, moreover, denies AT & T any ability to seek reimbursement of its attorney's fees, and, in the event that a customer receives an arbitration award greater than AT & T's last written settlement offer, requires AT & T to pay a $7,500 minimum recovery and twice the amount of the claimant's attorney's fees." Concepcion, 131 S.Ct. at 1744.