Section 26 Arbitration

LibraryMerchandising Practices Act 2013

Many consumer contracts include arbitration clauses. Arbitration of consumer contracts is problematic for many reasons, but that subject is constantly evolving and best
left to a much more specific and technical discussion of arbitration. Suffice it to say that many consumer contracts now contain arbitration provisions, and under these, a consumer may be required to arbitrate an MPA claim. The Supreme Court of Missouri has held that arbitration clauses may be unenforceable if they are procedurally or substantively unconscionable or a combination of both. Arbitration provisions that specifically ban class arbitrations are particularly suspect because these provisions may immunize bad acts. Before tackling an arbitration clause, counsel would be wise to spend time learning the contemporaneous state of this ever-evolving subject. Currently, the critical cases addressing arbitration are as follows:

· AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011). The U.S. Supreme Court held that the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., preempted a conflicting California law that rendered all class-action bans unconscionable and unenforceable. The Court held that the agreement between the consumers and AT&T for a cellular telephone that had a provision compelling arbitration of disputes and binding class actions was proper and that the conflicting California law was an impediment to the enforcement of the Federal Arbitration Act.

· Brewer v. Mo. Title Loans, Inc., 323 S.W.3d 18 (Mo. banc 2010), vacated and remanded by 131 S. Ct. 2875 (2011), aff’d in part, 364 S.W.3d 486 (Mo. banc 2012), cert. denied, 133 S. Ct. 191 (2012), cert. denied, 133 S. Ct. 684 (2012). The trial court determined
that the arbitration clause that prohibited class actions and allowed only for individual arbitration was...

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