TED STEWART, District Judge.
This matter is before the Court on Defendant's Motion to Compel Individual Arbitration and Stay Proceedings Pending Arbitration. Plaintiffs, former students at Everest College, seek to bring an action on behalf of themselves and others who are similarly situated against Defendant alleging four causes of action under the Utah Consumer Sales Practices Act ("UCSPA"), as well as claims for fraudulent misrepresentation, negligent misrepresentation, and declaratory judgment. Defendant seeks an order compelling Plaintiffs to submit their claims to arbitration before the American Arbitration Association ("AAA") and to stay this matter pending arbitration, in accordance with the enrollment agreements signed by each Plaintiff. For the reasons discussed below, the Court will grant Defendant's Motion, compel individual arbitration, and stay this matter pending arbitration.
Plaintiffs are all former students of Everest College, a career education institution wholly owned by Defendant. Plaintiffs allege that Defendant engaged in various deceptive practices, including making misrepresentations concerning the transferability of credits to other institutions and making misrepresentations and omissions concerning the costs of its program at Everest. Plaintiffs brought this putative class action against Defendant on behalf of themselves and others who are similarly situated. Plaintiffs allege four causes of action under the UCSPA, as well as claims for fraudulent misrepresentation, negligent misrepresentation, and declaratory judgment.
Defendant seeks an order compelling Plaintiffs to submit their claims to arbitration before the AAA and to stay this matter pending arbitration. In their enrollment agreements, each of Plaintiffs agreed to arbitration. Additionally, Plaintiffs Miller and Marty's arbitration agreements contained class action waivers. Based on
Plaintiffs oppose Defendant's Motion. Plaintiffs do not contest the existence of the arbitration agreements, nor do they question that their disputes fall within the scope of those agreements. Rather, Plaintiffs argue that the waivers run afoul of the UCSPA and, therefore, cannot be enforced. Plaintiffs further argue that the arbitration agreements and class actions waivers are unconscionable. Plaintiffs final argument is that, if the Court concludes that a dispute of fact exists as to whether the arbitration agreements are unconscionable, they are entitled to discovery and a trial on that issue.
The FAA provides, in relevant part, "[a] written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract."
Courts have adopted a "liberal federal policy favoring arbitration."
Plaintiffs acknowledge the existence of the arbitration agreements here and do not dispute Defendant's assertion that their claims fall within the scope of those agreements. Plaintiffs argue that the arbitration agreements should not be enforced for the reasons discussed below.
Plaintiffs argue that the arbitration clauses are barred by the UCSPA. Defendant argues that Plaintiffs' claims under the UCSPA fail for a number of reasons.
The UCSPA enumerates various acts and practices that are deemed deceptive under the Act.
Further, with respect to monetary damages, "[a] consumer who suffers loss as a result of a violation of this chapter may bring a class action for the actual damages caused by an act or practice" if that act was prohibited by an administrative rule,
The Act further provides that a supplier commits a deceptive act or practice if the supplier knowingly or intentionally "includes in any contract, receipt, or other written documentation of a consumer transaction, or any addendum to any contract, receipt, or other written documentation of a consumer transaction, any confession of judgment or any waiver of any of the rights to which a consumer is entitled under this chapter."
Plaintiffs argue that, when read in conjunction, these provisions of the UCSPA bar the waivers at issue here. Defendant makes various arguments in opposition.
Defendant first argues that Plaintiffs' claims under the UCSPA are time barred. The UCSPA requires an action to be brought "within two years after occurrence of a violation of this chapter."
This argument, however, is not without its problems. It could be argued that Defendant's deceptive acts continued each time Plaintiffs were required to obtain additional financing. This would likely have occurred at least once per year, likely leaving some claims within the limitations period. It could also be argued that any statute of limitations should be tolled because Defendant's deceptive acts prevented them from learning the truth. Under Utah law, a statute of limitations may be tolled where a plaintiff does not become aware of the cause of action because of the defendant's concealment or misleading conduct.
The UCSPA does not apply to "an act or practice required or specifically permitted by or under federal law . . . ."
Defendant next argues that Plaintiffs have failed to assert claims that allow for class treatment under the UCSPA. As stated above, the UCSPA allows for class treatment in narrow circumstances: when a consumer brings a claim for declaratory judgment, an injunction, and appropriate ancillary; and for money damages if that act was prohibited by an administrative rule, judicial decision, or consent judgment.
Plaintiffs' Complaint does bring a claim for declaratory judgment and an injunction. Based on this, Plaintiffs' claims for declaratory judgment and an injunction may be permitted under the class action provisions of the UCSPA. Further, Plaintiffs' Complaint alleges that certain practices of Defendant violate the administrative rules authorized under the UCSPA.
Defendant argues that the FAA preempts any provision of the UCSPA invalidating arbitration agreements that do not authorize class-wide dispute resolution.
As stated, Section 2 of the FAA provides that arbitration agreements "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract."
The Supreme Court has considered the issue of whether a state law is preempted by the FAA on a number of occasions. In Southland Corp. v. Keating
In Casarotto, the Supreme Court invalidated a Montana statute which rendered arbitration clauses unenforceable unless typed in underlined capital letters on the first page of the contract.
In Commerce Park at DFW Freeport v. Mardian Construction Co,
Similarly, the Ninth Circuit, in Ting v. AT & T,
The UCSPA applies to a narrow set of transactions. By its nature, it is limited to consumer transaction, not contracts generally. Further, there are certain contracts, such as securities, which are exempted from the Act. Because the Act does not apply to contracts generally, it cannot bar arbitration agreements under the FAA. To the extent that it does, it is preempted by the FAA under the case law discussed above.
For all of the reasons discussed above, Plaintiffs' argument that the UCSPA bars Defendant's Motion to Compel must be rejected.
Plaintiffs argue that the arbitration agreement and class action waivers are
In Utah, a party claiming unconscionability bears a heavy burden.
The first issue to consider is whether the arbitration agreements themselves are unconscionable, without the class action
Arbitration agreements, generally speaking, are not substantively unconscionable under Utah law. The Utah Supreme Court has made clear "that arbitration agreements are favored in Utah."
Plaintiffs argue that the arbitration agreements are substantively unconscionable because: (1) individual arbitration is not a practical, effective mechanism for Plaintiffs or the class they seek to represent; (2) the arbitration agreements prevent a review of Defendant's practices and eliminate any chance of preventing future harm through injunctive or class-wide relief; (3) the arbitration agreement are effective only against the students; and (4) the agreement in the arbitration agreement for Defendant to bear the costs does little to lessen the student's burden as they would still have to pay their own attorneys fees and expenses.
Here, the terms of the arbitration agreement provide that any arbitration will be conducted by the American Arbitration Association ("AAA"). Further, the agreement provides that the cost of the arbitration filing fee, arbitrator's compensation and facilities fees will be paid by Defendant, to the extent they are greater than the applicable court filing fee. Additionally, the agreements provide that any remedy available from a court under the law shall be available in arbitration.
Considering the substantive terms of the arbitration agreement here, the Court cannot find that it is substantively unconscionable. The arbitration agreement here is readily distinguishable from Sosa where the arbitration clause required the patient to pay the doctor's arbitration fees (personal as well as for attorneys fees and costs) if the arbitration award was not more than half of the amount claimed. Here, there is nothing substantively unconscionable about the terms of the arbitration agreements and the arguments raised by Plaintiffs do not touch on substantive unconscionability. Therefore, the arbitration agreements themselves are not substantively unconscionable.
The bulk of Plaintiffs arguments concern procedural unconscionability. As set forth above, procedural unconscionability focuses on the negotiation of the contract and the circumstances of the parties. The factors to consider include: (1) whether each party had a reasonable opportunity to understand the terms and conditions of the agreement; (2) whether there was a lack of opportunity for meaningful negotiation; (3) whether the agreement was printed on a duplicate or boilerplate form drafted solely by the party in the strongest
The Utah Supreme Court found the arbitration agreement at issue in Sosa to be procedurally unconscionable.
The court distinguished Sosa in Ryan v. Dan's Food Stores, Inc. In Ryan, an employee of a grocery store pharmacy argued that an acknowledgment form, which provided that he was an at-will employee was unconscionable. The court first concluded that the agreement was not substantively unconscionable, based on the fact that Utah law presumes employment to be at-will. The court then went on to consider procedural unconscionability. The court found that Ryan had a reasonable opportunity to understand the terms of the acknowledgment form and that the terms had been explained to him by his employer. Further, the court found no use of deceptive practices. As to the fifth factor, the court distinguished that case from Sosa, citing the unique facts of Sosa discussed above. The court recognized that the form was drafted solely by the employer and that Ryan did not have an opportunity to negotiate the at-will term, but stated "that these factors alone do not render the acknowledgment unconscionable."
With these cases in mind, the Court turns to a consideration of the above-listed factors here. The first factor is whether each party had a reasonable opportunity to understand the terms and conditions of the agreement. Here, Plaintiffs assert that they did not read and understand the arbitration agreement and that they were rushed through the enrollment process. Plaintiffs assert that Defendant's enrollment process was designed to reduce their ability to read or understand the arbitration provisions. However, there is at least some evidence to suggest that Plaintiffs had the ability to read the agreement, though they did so quickly and understood that signing the agreements was a necessary step toward admission. Additionally, Plaintiffs had the ability to cancel the agreement in its entirety within three days.
The second and third factors are related: whether there was a lack of opportunity for meaningful negotiation and whether the agreement was printed on a duplicate
Fourth, Plaintiffs provide declarations that the terms of the agreement were not explained to them. Further, the Motion to Supplement Exhibits contains information to suggest that Defendant's employees were specifically instructed no to go through each disclosure in the enrollment agreement, but instead be available for specific questions.
The fifth factors concerns whether the aggrieved party had a meaningful choice or instead felt compelled to accept the terms of the agreement. The Utah Supreme Court discussed this factor at length in distinguishing Ryan from Sosa:
The case is much more like Ryan than Sosa. Like Sosa, Plaintiffs felt rushed and hurried and did not read the enrollment agreements in full. However, as in Ryan, Plaintiffs simply could have refused to sign the enrollment agreement and pursued their academic interest elsewhere. Further,
Finally, Plaintiffs have provided some evidence to suggest that Defendant employed deceptive practices to obscure key contractual provisions. Much of the evidence provided by Plaintiffs concern the high pressure sales tactics used by Defendant's employees and the attempts to quickly enroll students. Further, Plaintiffs' Complaint is rife with allegations of Defendant's alleged deceptive practices. Thus, there is at least some suggestion that Defendant used deceptive practices in the enrollment.
Considering all of the above factors, the Court finds that the arbitration agreements are not procedurally unconscionable. While there is evidence to show that Plaintiffs felt rushed into signing the enrollment agreements and that Defendant may have employed questionable practices in getting students to sign enrollment agreements, in the end each Plaintiff had the ability to refuse to sign the agreement and not enroll at Everest. Even if Plaintiffs did sign the agreements, they had the ability to cancel them within three days. The Court cannot find, based on all of the facts presented here, that the agreements here are procedurally unconscionable.
Two of the three arbitration agreements also contained class actions waivers. Even though Plaintiff Cotton's enrollment agreement did not contain a class action waiver, under Stolt-Nielsen, class arbitration could not be maintained absent an agreement to allow for class arbitration.
The analysis of whether a class action waiver provision is unconscionable under Utah law is the same as that set forth above. Specifically, the Court considers whether a class action waiver provision is substantively unconscionable and whether it is procedurally unconscionable.
The first issue to consider is whether a class action waiver is substantively unconscionable. No Utah case has considered whether class action waivers are substantively unconscionable. That does not mean, however, the Court is without guidance on this issue. As set forth above, the Utah Supreme Court in Sosa held that an arbitration clause which required a patient to pay the doctor's arbitration fees (personal as well as for attorneys fees and costs) if the arbitration award was not more than half of the amount claimed was substantively unconscionable. The class action waiver provision here provides no such requirements. The class action waiver simply require students to arbitrate their claims on an individual basis.
Plaintiffs have provided nothing to suggest that, under Utah law, class action waiver provisions would be considered substantively unconscionable. While Plaintiffs have cited provisions of the UCSPA which provide class-wide relief to consumers in certain situations, the Court cannot find that such provisions denote a public policy in opposition to class action waivers. Indeed, recent statements by the Utah Attorney General in an amicus brief to the United States Supreme Court suggest that Utah favors the enforcement of class action
Plaintiffs argue, in the alternative, that if the Court concludes that a dispute of fact exists with respect to whether the arbitration agreements are unconscionable, then Plaintiffs are entitled to discovery and a trial on that issue. Plaintiffs argue that, if Defendant is able to present evidence that conflicts with the declarations provided by Plaintiffs, then a dispute of fact would exist entitling them to a jury trial. Here, Defendant has not submitted any evidence to dispute Plaintiffs' declarations, therefore, there is no need for discovery or a trial on this issue. Rather, this is an issue to be decided by the Court considering the factors set forth above.
At oral argument, the Court asked counsel their positions on whether this matter should be stayed pending a decision by the United States Supreme Court in A & T v. Concepcion. Concepcion involves an appeal from the Ninth Circuit Court of Appeals where the court held that an arbitration agreement was unconscionable under California law.
As stated, Concepcion involves California law. The California Supreme Court has held that class action waivers are at least sometimes unconscionable under California law.
Further, the facts of this case are considerably different from those in Concepcion. In that case, the damages amount involved was very small, approximately $30.
For these reasons, the Court will not await a decision in Concepcion before issuing
It is therefore
ORDERED that Defendant's Motion to Compel Individual Arbitration and Stay Proceedings Pending Arbitration (Docket No. 6) is GRANTED.
The Clerk of the Court is directed to administratively close this matter.
