Consumer Protection — mandatory arbitration clauses

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Wisconsin Court of Appeals

Civil

Consumer Protection — mandatory arbitration clauses

Darcie Estes appeals a judgment and an order confirming an arbitration award and an order compelling arbitration. Estes argues that the arbitration agreement was unconscionable and, therefore, unenforceable. In an opinion dated May 25, 2010, we concluded that the arbitration agreement was substantively unconscionable because it required Estes to waive her ability to proceed as part of a class. We therefore reversed and remanded for evidentiary findings on whether the agreement was also procedurally unconscionable. See Cottonwood Fin., LTD v. Estes, 2010 WI App 75, ¶1, 325 Wis. 2d 749, 784 N.W.2d 726 (Cottonwood I).

In October 2011, the supreme court granted review, vacated our decision, and remanded for reconsideration in light of the United States Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 563 U.S. __, 131 S. Ct. 1740 (2011). In Concepcion, 131 S. Ct. at 1746, 1753, the Supreme Court held that a state law that “classif[ied] most collective-arbitration waivers in consumer contracts as unconscionable[,]” and thus unenforceable, was preempted by the Federal Arbitration Act (FAA). In light of Concepcion, the classwide arbitration waiver in Estes’s arbitration agreement is enforceable and is not substantively unconscionable. Accordingly, we affirm the circuit court’s

judgment and order confirming the arbitration award and order compelling arbitration. This opinion will not be published.

2009AP760 Cottonwood Financial Ltd v. Estes

Dist III, Pierce County, Wing, J., Per Curiam

Attorneys: For Appellant: Crandall, Eric L., New Richmond; For Respondent: Dillon, Duffy, Janesville; Olson, Kim M., Janesville; Dawson, William B., Dallas, TX; Tonkinson, Stuart, Dallas, TX