N.J
The analysis of California unconscionability law in Concepcion applies with equal force to Pennsylvania unconscionability law. In Thibodeau v. Comcast Corp., 912 A.2d 874, 885-86 (Pa. Super. Ct. 2006), the Pennsylvania Superior Court held that an arbitration clause with a class action waiver, contained in a Comcast cable television agreement, was unconscionable under Pennsylvania law. The court determined the class action waiver was procedurally unconscionable because plaintiff « was forced to accept every word of all 10 pages of the mass-delivered Comcast [C]ustomer [A]greement or have no cable television service whatsoever, since Comcast holds a government-authorized geographic monopoly. » Id. at 885. The court determined the class action waiver was substantively unconscionable because plaintiff’s damages, a $9.60 per month overcharge, were so small that individual arbitration was economically unfeasible, and without an available class action, defendants were effectively immunized from liability. Id. at 885-86.
Under Concepcion, state law requiring the availability of classwide arbitration undermines the FAA’s central purpose and is preempted by the FAA. See 131 S. Ct. at 1753. The FAA preempts Pennsylvania’s unconscionability law as to a class action waiver in an arbitration agreement. 3 The instant arbitration clause containing a class action waiver is valid under Section 2 of the FAA. Continue Reading The Pennsylvania Superior Court decision in Thibodeau does not differ materially from the California Supreme Court decision in Discover Bank