Cara New v. Gamestop, Inc.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2013 Term

FILED

No. 12-1371 November 6, 2013

released at 3:00 p.m.

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

CARA NEW, OF WEST VIRGINIA

Plaintiff Below, Petitioner

v.

GAMESTOP, INC. d/b/a GAMESTOP;

AARON DINGESS, Individually; and

DAVID TREVATHAN, Individually;

Defendants Below, Respondents

Appeal from the Circuit Court of Logan County

Honorable Roger L. Perry

Civil Action No. 11-C-190

AFFIRMED

Submitted: September 24, 2013

Filed: November 6, 2013

Richard W. Walters, Esq. Allyson N. Ho, PHV

Brian L. Ooten, Esq. Craig A. Stanfield, PHV

Shaffer & Shaffer, PLLC Morgan, Lewis & Bockius, LLP

Madison, West Virginia Houston, Texas

Attorneys for Petitioner Sam S. Shaulson, PHV

Morgan, Lewis & Bockius, LLP

New York, New York

Joseph M. Price, Esq.

Benjamin W. Price, Esq.

Robinson & McElwee PLLC

Attorneys for Respondents

The Opinion of the Court was delivered PER CURIAM.

SYLLABUS BY THE COURT

1. “Appellate review of a circuit court’s order granting a motion to dismiss

a complaint is de novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyon Pontiac-Buick,

Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).

2. “‘When a trial court is required to rule upon a motion to compel

arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1-307 (2006), the authority

of the trial court is limited to determining the threshold issues of (1) whether a valid

arbitration agreement exists between the parties; and (2) whether the claims averred by the

plaintiff fall within the substantive scope of that arbitration agreement.’ Syllabus Point 2,

State ex rel. TD Ameritrade, Inc. v. Kaufman, 225 W.Va. 250, 692 S.E.2d 293 (2010).” Syl.

Pt. 5, Brown v. Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250 (2011), overruled

in part on other grounds by Marmet Health Care Center, Inc. v. Brown, U.S. , 132 S.Ct.

1201, 182 L.Ed.2d 42 (2012)].

3. “‘Under the Federal Arbitration Act, 9 U.S.C. § 2, a written provision

to settle by arbitration a controversy arising out of a contract that evidences a transaction

affecting interstate commerce is valid, irrevocable, and enforceable, unless the provision is

found to be invalid, revocable or unenforceable upon a ground that exists at law or in equity

for the revocation of any contract.’ Syllabus Point 6, Brown v. Genesis Healthcare Corp.,

i

228 W.Va. 646, 724 S.E.2d 250 (2011)[, overruled in part on other grounds by Marmet

Health Care Center, Inc. v. Brown, U.S. , 132 S.Ct. 1201, 182 L.Ed.2d 42 (2012)].” Syl.

Pt. 1, State ex rel. Johnson Controls, Inc. v. Tucker, 229 W.Va. 486, 729 S.E.2d 808 (2012).

4. “‘Nothing in the Federal Arbitration Act, 9 U.S.C. § 2, overrides normal

rules of contract interpretation. Generally applicable contract defenses–such as laches,

estoppel, waiver, fraud, duress, or unconscionability–may be applied to invalidate an

arbitration agreement.’ Syllabus Point 9, Brown v. Genesis Healthcare Corp., 228 W.Va.

646, 724 S.E.2d 250 (2011)[ , overruled in part on other grounds by Marmet Health Care

Center, Inc. v. Brown, U.S. , 132 S.Ct. 1201, 182 L.Ed.2d 42 (2012)].” Syl. Pt. 2, State

ex rel. Johnson Controls, Inc. v. Tucker, 229 W.Va. 486, 729 S.E.2d 808 (2012).

5. “‘A valid written instrument which expresses the intent of the parties

in plain and unambiguous language is not subject to judicial construction or interpretation

but will be applied and enforced according to such intent.’ Cotiga Development Co. v. United

Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (1962), Syllabus Point 1.” Syl. pt. 1, Bennett

v. Dove, 166 W.Va. 772, 277 S.E.2d 617 (1981).

6. “‘The doctrine of unconscionability means that, because of an overall

and gross imbalance, one-sidedness or lop-sidedness in a contract, a court may be justified

ii

in refusing to enforce the contract as written. The concept of unconscionability must be

applied in a flexible manner, taking into consideration all of the facts and circumstances of

a particular case.’ Syllabus Point 12, Brown v. Genesis Healthcare Corp., 228 W.Va. 646,

724 S.E.2d 250 (2011)[ , overruled in part on other grounds by Marmet Health Care Center,

Inc. v. Brown, U.S. , 132 S.Ct. 1201, 182 L.Ed.2d 42 (2012)].” Syl. Pt. 4, Brown v.

Genesis Healthcare Corp., 229 W.Va. 382, 729 S.E.2d 217 (2012).

7. “‘A determination of unconscionablity must focus on the relative

positions of the parties, the adequacy of the bargaining position, the meaningful alternatives

available to the plaintiff, and the “existence of unfair terms in the contract.”’ Syllabus Point

4, Art’s Flower Shop, Inc. v. Chesapeake and Potomac Telephone Co. of West Virginia, Inc.,

186 W.Va. 613, 413 S.E.2d 670 (1991).” Syl. Pt. 6, Brown v. Genesis Healthcare Corp., 229

W.Va. 382, 729 S.E.2d 217 (2012).

8. “‘A contract term is unenforceable if it is both procedurally and

substantively unconscionable. However, both need not be present to the same degree.

Courts should apply a ‘sliding scale’ in making this determination: the more substantively

oppressive the contract term, the less evidence of procedural unconscionability is required

to come to the conclusion that the clause is unenforceable, and vice versa.’ Syllabus Point

20, Brown v. Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250 (2011)[, overruled

iii

in part on other grounds by Marmet Health Care Center, Inc. v. Brown, U.S. , 132 S.Ct.

1201, 182 L.Ed.2d 42 (2012)].” Syl. Pt. 9, Brown v. Genesis Healthcare Corp., 229 W.Va.

382, 729 S.E.2d 217 (2012).

9. “‘Procedural unconscionability is concerned with inequities,

improprieties, or unfairness in the bargaining process and formation of the contract.

Procedural unconscionability involves a variety of inadequacies that results in the lack of a

real and voluntary meeting of the minds of the parties, considering all the circumstances

surrounding the transaction. These inadequacies include, but are not limited to, the age,

literacy, or lack of sophistication of a party; hidden or unduly complex contract terms; the

adhesive nature of the contract; and the manner and setting in which the contract was formed,

including whether each party had a reasonable opportunity to understand the terms of the

contract.’ Syllabus Point 17, Brown v. Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d

250 (2011), [overruled in part on other grounds by Marmet Health Care Center, Inc. v.

Brown, U.S. , 132 S.Ct. 1201, 182 L.Ed.2d 42 (2012)].” Syl. Pt. 10, Brown v. Genesis

Healthcare Corp., 229 W.Va. 382, 729 S.E.2d 217 (2012).

10. “‘A contract of adhesion is one drafted and imposed by a party of

superior strength that leaves the subscribing party little or no opportunity to alter the

substantive terms, and only the opportunity to adhere to the contract or reject it. A contract

iv

of adhesion should receive greater scrutiny than a contract with bargained-for terms to

determine if it imposes terms that are oppressive, unconscionable or beyond the reasonable

expectations of an ordinary person.’ Syl. Pt. 18, Brown v. Genesis Healthcare Corp., 228

W.Va. 646, 724 S.E.2d 250 (2011), [overruled in part on other grounds by Marmet Health

Care Center, Inc. v. Brown, U.S. , 132 S.Ct. 1201, 182 L.Ed.2d 42 (2012)].” Syl. Pt. 11,

Brown v. Genesis Healthcare Corp., 229 W.Va. 382, 729 S.E.2d 217 (2012).

11. “‘Substantive unconscionability involves unfairness in the contract itself

and whether a contract term is one-sided and will have an overly harsh effect on the

disadvantaged party. The factors to be weighed in assessing substantive unconscionability

vary with the content of the agreement. Generally, courts should consider the commercial

reasonableness of the contract terms, the purpose and effect of the terms, the allocation of

the risks between the parties, and public policy concerns.’ Syllabus Point 19, Brown v.

Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250 (2011), [overruled in part on

other grounds by Marmet Health Care Center, Inc. v. Brown, U.S. , 132 S.Ct. 1201, 182

L.Ed.2d 42 (2012)].” Syl. Pt. 12, Brown v. Genesis Healthcare Corp., 229 W.Va. 382, 729

S.E.2d 217 (2012).

12. “In assessing whether a contract provision is substantively

unconscionable, a court may consider whether the provision lacks mutuality of obligation.

v

If a provision creates a disparity in the rights of the contracting parties such that it is one-

sided and unreasonably favorable to one party, then a court may find the provision is

substantively unconscionable.” Syl. Pt. 10, Dan Ryan Builders, Inc. v. Nelson, 230 W.Va.

281, 737 S.E.2d 550 (2012).

vi

Per curiam:

The petitioner, Cara New, appeals the October 10, 2012, order of the Circuit

Court of Logan County, which granted the motions to dismiss of the respondents, GameStop,

Inc., Aaron Dingess, and David Traevathan (collectively referred to as “GameStop”),

pending the petitioner’s submission of her claims to final and binding arbitration. On appeal,

the petitioner argues that she did not enter into a valid arbitration agreement with GameStop.

Nonetheless, she argues that even if this Court determines that a valid arbitration agreement

exists, the agreement is still unconscionable and unenforceable. We find no error and,

accordingly, affirm the circuit court’s order.

I. Factual and Procedural Background

GameStop operates retail stores that sell new and used video games and video

gaming hardware. On March 29, 2009, GameStop hired the petitioner as an assistant

manager at its store in Logan County, West Virginia. When the petitioner began her

employment with GameStop, she received a “Store Associate Handbook” (“the Handbook”),

which summarized the company’s policies, procedures, and practices. The Handbook further

provided that the petitioner did

not have, nor does this Handbook constitute, an employment

contract, express or implied. Your employment is not confined

to a fixed term and may be ended by either you or GameStop,

Inc. at any time and for any reason. All terms and conditions of

1

employment are subject to change without notice, other than

GameStop C.A.R.E.S. Rules for Dispute Resolution.1

(Footnote added).

Set forth in a separate, fourteen-page document included with, but set off from,

the forty-page Handbook, is the arbitration agreement at issue in this case. This agreement,

entitled the “GameStop C.A.R.E.S.2 Rules of Dispute Resolution Including Arbitration” (“the

GameStop C.A.R.E.S. Rules,” “the GameStop C.A.R.E.S. program,” or “the arbitration

agreement”), is a multi-step internal dispute resolution program that includes binding

arbitration. Among other things, the document states that the GameStop C.A.R.E.S. Rules

are a mutual agreement to arbitrate Covered Claims (as defined

below). The Company and you agree that the procedures

provided in these Rules will be the sole method used to resolve

any Covered Claim as of the Effective Date of the Rules,

regardless of when the dispute or claim arose. The Company

and you agree to accept an arbitrator’s award as the final,

binding and exclusive determination of all Covered Claims.

These Rules do not preclude any employee from filing a charge

with a state, local or federal administrative agency such as the

Equal Employment Opportunity Commission.

1

The Handbook also advises employees that it “is intended to answer most of your

questions, explain our important policies and provide guidelines on our Company’s standards

and expectations.” It includes information about, inter alia, GameStop’s drug, alcohol and

smoke-free policy; “work guidelines” (e.g., the use of name badges; personal and general

appearance; schedules, attendance and absence policies; store hours; and parking); proper use

of company resources; payroll; safety; loss prevention; performance and promotion; benefits;

and standards of conduct.

2

C.A.R.E.S stands for “Concerned Associates Reaching Equitable Solutions.”

2

GameStop C.A.R.E.S. is an agreement to arbitrate pursuant to

the Federal Arbitration Act, 9 U.S.C. Sections 1-14, or if that

Act is held to be inapplicable for any reason, the arbitration law

in the state of Texas will apply. The parties acknowledge that

the Company is engaged in transactions involving interstate

commerce.

. . . .

If any court of competent jurisdiction declares that any part of

GameStop C.A.R.E.S., including these Rules, is invalid, illegal

or unenforceable (other than as noted for the class action,

collective action and representative action waiver above), such

declaration will not effect [sic] the legality, validity or

enforceability of the remaining parts, and each provision of

GameStop C.A.R.E.S. will be valid, legal and enforceable to the

fullest extent permitted by law.

Nothing in these Rules changes or in any way modifies the

parties’ employment relationship of employment-at-will; that is,

the parties can each end the relationship at any time for any

reason with or without cause. The Arbitrator has no authority to

alter the at-will nature of your employment.

. . . .

GameStop may from time to time modify or discontinue

GameStop C.A.R.E.S. by giving covered employees thirty (30)

calendar days notice; however, any such modification or

rescission shall be applied prospectively only. An employee

shall complete the processing of any dispute pending in

GameStop C.A.R.E.S. at the time of an announced change,

under the terms of the procedure as it existed when the dispute

was initially submitted to GameStop C.A.R.E.S.

Upon being hired by GameStop, the petitioner signed and dated an

“Acknowledgment and Receipt of the Store Associate Handbook and GameStop C.A.R.E.S.

Rules Including Arbitration” (“the Acknowledgment”). The signed Acknowledgment was

3

on a separate page. In this Acknowledgement, the petitioner specifically agreed that all

workplace disputes or claims could not be taken to court, but must, instead, be resolved

through the dispute resolution and arbitration system set out in the GameStop C.A.R.E.S.

Rules. It stated as follows:

I acknowledge that I have received a copy of the GameStop

Store Associate Handbook, including the GameStop C.A.R.E.S.

Rules for Dispute Resolution. The Rules set forth GameStop’s

procedure for resolving workplace disputes ending in final and

binding arbitration. The Handbook summarizes certain

information about my job and company policies, procedures and

practices. I understand that it is my responsibility to read and

familiarize myself with the information contained in the

Handbook. I understand that by continuing my employment

with GameStop following the effective date of GameStop

C.A.R.E.S., I am agreeing that all workplace disputes or claims,

regardless of when those disputes or claims arose, will be

resolved under the GameStop C.A.R.E.S. program rather than

in court. This includes legal and statutory claims, and class or

collective action claims in which I might be included. I

understand that at any time and for any reason, GameStop may

make changes to the Handbook, except for the Rules, without

prior notice. I understand that my employment with GameStop

is “at will,” and that either I or GameStop may end my

employment at any time and for any reason.

On September 9, 2011, the petitioner filed a Complaint against GameStop in

the Circuit Court of Logan County, alleging wrongful discharge, sexual harassment, hostile

work environment, intentional infliction of emotional distress, negligent infliction of

emotional distress, and violations of the West Virginia Wage Payment and Collection Act.

The petitioner alleged that she had been sexually harassed by Respondent Aaron Dingess, the

4

store manager and her direct supervisor, and Respondent David Trevathan, a GameStop

district manager who had supervisory authority over both Respondent Dingess and the

petitioner. The petitioner further alleged that she was wrongfully demoted and discharged

based upon her gender and/or in retaliation for reporting the misconduct of Respondent

Dingess to Respondent Trevathan.

In response to the petitioner’s lawsuit, each of the respondents filed a separate

“Motion to Dismiss Pending Mandatory Arbitration,” or, in the alternative, to stay the

proceedings pending referral “to arbitration as is required by the GameStop C.A.R.E.S.

program which [the petitioner] agreed through her continued employment GameStop would

provide the exclusive means by which her claims in this matter would be resolved.”

By order entered October 10, 2012, the circuit court granted the respondents’

motions to dismiss. This appeal by the petitioner followed.

II. Standard of Review

The petitioner appeals the circuit court’s order granting GameStop’s motion

to dismiss and compelling her to submit her claims to arbitration. “Appellate review of a

circuit court’s order granting a motion to dismiss a complaint is de novo.” Syl. Pt. 2, State

ex rel. McGraw v. Scott Runyon Pontiac-Buick, Inc., 194 W.Va. 770, 773, 461 S.E.2d 516,

5

519 (1995). With regard to the circuit court’s dismissal order, which directs the petitioner

to arbitrate her claims, this Court will preclude enforcement of such an order

only after a de novo review of the circuit court’s legal

determinations leads to the inescapable conclusion that the

circuit court clearly erred, as a matter of law, in directing that a

matter be arbitrated or that the circuit court’s order constitutes

a clear-cut, legal error plainly in contravention of a clear

statutory, constitutional, or common law mandate.

Syl. Pt. 4, McGraw v. American Tobacco Co., 224 W.Va. 211, 214, 681 S.E.2d 96, 99

(2009). With these standards in mind, we proceed to consider the parties’ arguments.

III. Discussion

When reviewing a motion to compel arbitration under an arbitration agreement,

a court’s consideration of the motion is limited to two issues: is the arbitration agreement

valid, and does the agreement cover the plaintiff’s claims? As we have explained,

When a trial court is required to rule upon a motion to compel

arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. §§

1-307 (2006), the authority of the trial court is limited to

determining the threshold issues of (1) whether a valid

arbitration agreement exists between the parties; and (2) whether

the claims averred by the plaintiff fall within the substantive

scope of that arbitration agreement. Syllabus Point 2, State ex

rel. TD Ameritrade, Inc. v. Kaufman, 225 W.Va. 250, 692

S.E.2d 293 (2010).

Syl. Pt. 5, Brown v. Genesis Healthcare Corp., 228 W.Va. 646, 656, 724 S.E.2d 250, 260

(2011), overruled in part on other grounds, U.S. , 132 S.Ct. 1201, 182 L.Ed.2d 42 (2012)

6

(“Brown I”). See also Syl. Pt. 4, Ruckdeschel v. Falcon Drilling Co., L.L.C., 225 W.Va. 450,

452, 693 S.E.2d 815, 817 (2010).

A. Validity of arbitration agreement

The petitioner concedes that, if a valid arbitration agreement exists, her

substantive claims would come within the scope of that agreement. She asserts, however,

that the parties did not form a contract to arbitrate their disputes. Furthermore, she asserts

that if a contract was formed, then the contract is unenforceable because it is unconscionable.

By its express terms, the GameStop C.A.R.E.S. program clearly advises its

employees that it is an arbitration agreement. It provides that

GameStops C.A.R.E.S. is an agreement to arbitrate pursuant to

the Federal Arbitration Act, 9 U.S.C. Sections 1-14, or if that

Act is held to be inapplicable for any reason, the arbitration law

in the state of Texas will apply. The parties acknowledge that

the Company is engaged in transactions involving interstate

commerce.

In syllabus point one of State ex rel. Johnson Controls, Inc. v. Tucker, 229 W.Va. 486, 729

S.E.2d 808 (2012), this Court explained:

“Under the Federal Arbitration Act, 9 U.S.C. § 2, a

written provision to settle by arbitration a controversy arising

out of a contract that evidences a transaction affecting interstate

commerce is valid, irrevocable, and enforceable, unless the

provision is found to be invalid, revocable or unenforceable

upon a ground that exists at law or in equity for the revocation

of any contract.” Syllabus Point 6, Brown v. Genesis Healthcare

7

Corp., 228 W.Va. 646, 724 S.E.2d 250 (2011)[, overruled in

part on other grounds, U.S. , 132 S.Ct. 1201, 182 L.Ed.2d 42

(2012)].

229 W.Va. at 489, 729 S.E.2d at 811.

In considering whether an arbitration agreement has been validly formed,

normal rules of contract interpretation apply. In syllabus point two of Johnson Controls, we

recognized:

“Nothing in the Federal Arbitration Act, 9 U.S.C. § 2, overrides

normal rules of contract interpretation. Generally applicable

contract defenses–such as laches, estoppel, waiver, fraud,

duress, or unconscionability–may be applied to invalidate an

arbitration agreement.” Syllabus Point 9, Brown v. Genesis

Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250 (2011)

[subseq. History].

229 W.Va. at 489, 729 S.E.2d at 811. See State ex rel. Clites v. Clawges, 224 W.Va. 299,

685 S.E.2d 693 (2009) (“While it is clear that the FAA preempts state law that would

invalidate ‘or undercut the enforcement of arbitration agreements,’ the issue of whether an

arbitration agreement is a valid contract is a matter of state contract law and capable of state

judicial review.” 224 W.Va. at 305, 685 S.E.2d at 699 (quoting Southland Corporation v.

Keating, 465 U.S. 1, 16 (1984)). Indeed, this Court has established that the FAA “‘does not

elevate arbitration clauses to a level of importance above all other contract terms.’” Johnson

Controls, 229 W.Va. at 493-94, 729 S.E.2d at 815-16 (quoting Brown I, 228 W.Va. at 671,

724 S.E.2d at 275). Rather, the FAA “‘places arbitration agreements on an equal footing

8

with other contracts, and requires courts to enforce them according to their terms.’” Johnson

Controls, 228 W.Va. at 494, 729 S.E.2d at 816 (quoting Rent-A-Center, West, Inc. v.

Jackson, 561 U.S. 1142, __ (2010)). See Dan Ryan Builders, Inc. v. Nelson, 230 W.Va. 281,

737 S.E.2d 550 (2012) (“‘[A]rbitration is simply a matter of contract between the parties; it

is a way to resolve those disputes–but only those disputes–that the parties have agreed to

submit to arbitration.’” 230 W.Va. at __, 737 S.E.2d at 555 (quoting First Options of

Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995)). With these principles in mind, we

proceed to determine whether the petitioner and GameStop entered into a valid arbitration

agreement.

The petitioner does not dispute that she received a copy of the GameStop

C.A.R.E.S. Rules which plainly state that it is an agreement to arbitrate under the F.A.A.

More importantly, the petitioner does not dispute that the GameStop C.A.R.E.S. Rules

evidence a transaction affecting interstate commerce such that it would be governed by the

F.A.A. Likewise, she does not dispute that she signed the Acknowledgment of the mutual

agreement to arbitrate, which indicated, inter alia, that she understood that “by continuing

my employment with GameStop . . . I am agreeing that all workplace disputes or claims . .

. will be resolved under the GameStop C.A.R.E.S. program rather than in court.” However,

the petitioner challenges the arbitration agreement, arguing that the disclaimer in the

Handbook that “[y]ou do not have, nor does this Handbook constitute, an employment

9

contract, express or implied” renders the arbitration agreement unenforceable. GameStop

counters that a valid agreement to arbitrate was formed, as evidenced by the clear and

unambiguous language set forth in the GameStop C.A.R.E.S. Rules and the

Acknowledgment signed by the petitioner at the time of her employment.

The crux of the petitioner’s argument is that, given the disclaimer language in

the Handbook, no arbitration agreement was formed because there was no mutual assent or

meeting of the minds with respect to arbitration. West Virginia contract law requires mutual

assent to form a valid contract. See Ways v. Imation Enterprises Corp., 214 W.Va. 305, 313,

589 S.E.2d 36, 44 (2003) (“‘It is elementary that mutuality of assent is an essential element

of all contracts.’” (internal citations omitted)).3 “‘In order for this mutuality to exist, it is

necessary that there be a proposal or offer on the part of one party and an acceptance on the

part of the other. Both the offer and acceptance may be by word, act or conduct that evince

the intention of the parties to contract. That their minds have met may be shown by direct

evidence of an actual agreement . . . .’” Id. (quoting Bailey v. Sewell Coal Co., 190 W.Va.

138, 140-41, 437 S.E.2d 448, 450-51 (1993) (citations omitted). Indeed, “[t]he contractual

3

See also Syl. Pt. 4, State ex rel. AMFM, LLC v. King, __ W.Va. __, __, 740 S.E.2d

66, 69 (2013) (“‘The fundamentals of a legal contract are competent parties, legal subject

matter, valuable consideration and mutual assent. There can be no contract if there is one of

these essential elements upon which the minds of the parties are not in agreement.’ Syllabus

Point 5, Virginian Export Coal Co. v. Rowland Land Co., 100 W.Va. 559, 131 S.E. 253

(1926).” Syllabus point 3, Dan Ryan Builders, 230 W.Va. 281, 737 S.E.2d 550 (2012).”).

10

concept of ‘meeting of the minds’ or ‘mutual assent’ relates to the parties having the same

understanding of the terms of the agreement reached.” Messer v. Huntington Anesthesia

Group, Inc., 222 W.Va. 410, 418, 664 S.E.2d 751, 759 (2008). However, the unambiguous

language of the GameStop C.A.R.E.S. Rules that were separate from the Handbook, and the

Acknowledgment signed by the petitioner, coupled with the petitioner’s continued

employment with GameStop, clearly demonstrate that the parties mutually assented to

arbitrate all covered workplace disputes or claims. Other jurisdictions are in accord with this

view.

In Patterson v. Tenet Health Care, Inc., 113 F.3d 832 (8th Cir. 1997), the

Eighth Circuit Court of Appeals considered whether an arbitration provision set forth on the

last page of the company’s handbook constituted a valid arbitration agreement. The

handbook at issue included a disclaimer that it was “‘not intended to constitute a legal

contract with any employee’” and that “‘no written statement or agreement in this handbook

concerning employment is binding,’” while also providing that all disputes are to be resolved

through binding arbitration. Id. at 834. Not unlike the case sub judice, the plaintiff employee

in Patterson also signed an acknowledgment form which stated that there was no contract

of employment and that “as a condition of employment and continued employment, I agree

to submit any complaints to the published process and agree to abide by and accept the final

decision of the arbitration panel as ultimate resolution of my complaint(s) for any and all

11

events that arise out of employment or termination of employment.” Id. at 834-35. The court

in Patterson found the arbitration clause to be separate from the handbook provisions stating

that the handbook is not a binding contract. More specifically, the court noted that the

arbitration clause was set forth on a separate page of the handbook with a conspicuous

heading: “IMPORTANT! Acknowledgment Form.” Id. at 835. The court was further

persuaded by the arbitration clause’s use of “contractual terms such as ‘I understand,’ ‘I

agree,’ I ‘agree to abide by and accept,’ ‘condition of employment,’ ‘final decision,’ and

‘ultimate resolution.’” Id. The court concluded that “the difference in language used in the

handbook and that employed in the arbitration clause would sufficiently impart to an

employee that the arbitration clause stands alone, separate and distinct from the rest of the

handbook.” Id.

Similarly, in Curry v. MidAmerica Care Foundation., 2002 WL 1821808

(S.D.Ind. 2002), the United States District Court for the Southern District of Indiana found

that, notwithstanding the disclaimer that the employee “handbook is neither a contract of

employment nor a legal document[,]” the language in the arbitration agreement included

therein provided that the employee and employer “‘voluntarily promise, irrevocably agree,

12

understand, agree to abide by and to accept’ the conditions contained [therein] . . . .”4 Id. at

*2, 4. The court in Curry concluded that this language

conveys to an employee such as [the plaintiff employee] that the

arbitration agreement is a separate and distinct part of the

handbook and constitutes an agreement by the parties.

Moreover, the arbitration agreement further conveys this . . . by

expressly stating that ‘[t]his is the complete agreement of the

parties on the subject of employment and arbitration of disputes

and claims.’

Id. at *4. Indeed,

[a]ny doubt as to whether the arbitration agreement is separate

from the rest of the employee handbook is resolved by [the

additional] language . . . that “[the parties] understand that if any

other provision of this manual is deemed to violate any local,

state, or federal law or regulation, that this provision stands by

itself and is fully enforceable to the fullest extent provided by

law.”

Id. The court in Curry concluded that mutual assent was present by virtue of the employer

offering the arbitration agreement to the plaintiff as a condition of her employment and the

plaintiff accepting the arbitration agreement by accepting employment. Id. at *5.

Likewise, in Brown v. KFC National Management Co., 921 P.2d 146

(Haw.1996), the Supreme Court of Hawaii concluded that an arbitration agreement was valid

and enforceable even though the “Agreement” section on the plaintiff employee’s

4

The plaintiff in Curry brought an action alleging pregnancy and disability

discrimination against her former employer. 2002 WL 1821808 at *1. The court found that

the arbitration agreement purportedly covered those claims. Id. at *4.

13

employment application clearly stated that his employment would be “at will” and “that the

application was not an implied or express contract of employment.” Id. at 150. The court

in Brown concluded that

[t]he arbitration agreement . . . is manifestly unambiguous in its

expressed intent that employment-related disputes be arbitrated

rather then resolved via resort to the federal or state court

systems. Indeed, no other construction could be accorded the

recitation that “[Employer] and [employee] agree to submit to

binding arbitration any controversies concerning [the

employee’s] compensation, employment[,] or termination of

employment[.]”

Id. at 159. The court in Brown accordingly determined that “on its face, [the arbitration

agreement] reflects both mutual assent to the arbitration of employment-related disputes and

consideration for that mutual assent.” Id., at 160; see also Lumuenemo v. Citigroup, Inc.,

2009 WL 371901 at *3 (D.Colo. 2009) (finding that “a reasonable reading of the relevant

disclaimer is that it precludes the Handbook provisions from altering the Plaintiff’s

employment-at-will status, while excepting the Arbitration Agreement from its purview. . .

. the language of the disclaimer [is] clear and not ambiguous. Therefore, despite the

existence of the disclaimer, . . . the agreement is generally enforceable.”).

This Court adheres to the basic principle that “‘[a] valid written instrument

which expresses the intent of the parties in plain and unambiguous language is not subject

to judicial construction or interpretation but will be applied and enforced according to such

intent.’ Cotiga Development Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626

14

(1962), Syllabus Point 1.” Syl. Pt. 1, Bennett v. Dove, 166 W.Va. 772, 277 S.E.2d 617

(1981); see also id. at 772, 277 S.E.2d at 618, syl. pt. 2 (“‘It is not the right or province of

a court to alter, pervert or destroy the clear meaning and intent of the parties as expressed in

unambiguous language in their written contract or to make a new or different contract for

them.’ Cotiga Development Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626

(1962), Syllabus Point 3.”).

In the case sub judice, we find that there was a clear and unequivocal intent by

both parties to arbitrate. The GameStop C.A.R.E.S. Rules clearly state that it “is an

agreement to arbitrate pursuant to the [FAA][;];” that it is “a mutual agreement to arbitrate

Covered Claims[;]” and that both GameStop and the petitioner “agree that the procedures

provided in these Rules will be the sole method used to resolve any Covered Claim . . . .”

The Rules further provide that both GameStop and the petitioner “agree to accept an

arbitrator’s award as the final, binding and exclusive determination of all Covered Claims.”

The GameStop C.A.R.E.S. Rules were set apart from the forty-page Handbook and consisted

of an additional, separately numbered, fourteen-page document.

Additionally, even a cursory review of the Handbook (such as by an employee

receiving it upon employment) reveals that it is merely informative of GameStop’s various

15

practices, policies and procedures.5 By comparison, the language in the GameStop

C.A.R.E.S. Rules is clearly more contractual in nature. This is demonstrated not only by the

language stating that “[t]hese Rules . . . govern” and “are a mutual agreement to arbitrate,”

“I acknowledge,” “I understand,” and “I am agreeing,” but also by the agreement’s provision

that “[i]f any court . . . declares that any part of GameStop C.A.R.E.S. . . . is invalid, illegal

or unenforceable . . . such declaration will not effect [sic] the legality, validity or

enforceability of the remaining parts, and each provision of GameStop C.A.R.E.S. will be

valid, legal and enforceable to the fullest extent permitted by law.” See Patterson, 113 F.3d

at 835; Curry, 2002 WL 1821808, at *4.

Furthermore, the petitioner signed the separate Acknowledgment which

unequivocally states that the GameStop C.A.R.E.S. Rules “set forth GameStop’s procedure

for resolving workplace disputes ending in final and binding arbitration. . . . [and] I

understand that by continuing my employment with GameStop . . . I am agreeing that all

workplace disputes or claims . . . will be resolved under the GameStop C.A.R.E.S. program

rather than in court.” (emphasis added). GameStop offered the arbitration agreement to the

petitioner as a condition of her employment and the petitioner accepted the agreement by

accepting employment. Clearly, notwithstanding the disclaimer that the Handbook did not

constitute a contract of employment, the parties entered into a separate agreement to arbitrate.

5

See supra, n.1.

16

“Viewed in context, the arbitration agreement highlights–rather than camouflages–its general

purpose and the limited scope of the disclaimer [i.e., to emphasize the employee’s at-will

employment status] is clear and unambiguous . . . .” Brown, 921 P.2d at 165. The GameStop

C.A.R.E.S. Rules and the Acknowledgment signed by the petitioner expressly provided that

the parties agreed to submit all covered claims to arbitration. The fact that the Handbook did

not constitute an employment contract “in no way undermines this simple reality.” Id.6

6

The GameStop C.A.R.E.S. Rules were previously considered in Ellerbee v.

GameStop, Inc., 604 F.Supp.2d 349 (D.Mass 2009). In Ellerbee, the District Court of

Massachusetts addressed “[t]he essential question [of] whether Plaintiff accepted the

arbitration agreement contained in the Rules document.” Id. at 354. The plaintiff argued,

inter alia, that he did not agree to the GameStop C.A.R.E.S. Rules and “that he did not initial

for their receipt.” Id. In concluding that the plaintiff had entered into a valid agreement to

arbitrate with GameStop, the Ellerbee court reasoned, inter alia, that the GameStop

C.A.R.E.S. Rules were given to the plaintiff; were “crystal clear;” and that the evidence

showed that the store manager advised the plaintiff “of both the binding nature of the

arbitration agreement and its scope.” Id. at 355. The court stated that, under Massachusetts

law, “[f]or the arbitration agreement to be binding, [GameStop] was not required to explain

C.A.R.E.S. to Plaintiff’s satisfaction, to obtain his initials on a receipt, or to ensure that

Plaintiff read the document he was handed . . . .” Id. Rather, GameStop “was required only

to give Plaintiff the information sufficient to put a reasonably prudent employee on adequate

notice of the agreement to arbitrate.” Id. The court in Ellerbee found that “[t]here can be

no doubt that the Rules specified that the C.A.R.E.S. Program covered arbitration and was

binding upon Plaintiff . . . . [t]he Rules contained a mandatory arbitration procedure.” Id.

See also Pomposi v. GameStop, Inc., 2010 WL 147196 *4, 5 (D.Conn. 2010) (holding that

former GameStop store manager executed valid agreement to arbitrate claims upon receiving

C.A.R.E.S. Program documents and executing written acknowledgment. “[T]he Plaintiff’s

continued employment in this case was not the only evidence of his assent to the C.A.R.E.S.

program, as he also signed an acknowledgment in which he expressly agreed to resolve

claims under C.A.R.E.S.” The court concluded that the plaintiff “expressly agreed to resolve

any employment-related dispute . . . through binding arbitration.”); McBride v. GameStop,

Inc., 2011 WL 578821 *2 (N.D.Ga. 2011) (determining that, under Georgia contract law,

offer and acceptance of GameStop arbitration agreement existed: evidence of offer included

that copy of C.A.R.E.S. policy was given and explained to plaintiff, flow chart depicting

17

Upon consideration of the foregoing, we conclude that, given the clear and

unambiguous language of the Acknowledgment and the GameStop C.A.R.E.S. Rules, the

petitioner and GameStop entered into an agreement to arbitrate the petitioner’s claims. See

Bennett, 166 W.Va. at 772, 277 S.E.2d at 618, syl. pts. 1 and 2.7

B. Unconscionability

The petitioner next argues that if it is determined that the parties entered into

an agreement to arbitrate, as we have concluded, then it was an unconscionable contract of

adhesion and, therefore, unenforceable. See Johnson Controls, 229 W.Va. at 489, 729 S.E.2d

at 811, syl. pt. 2 (holding that defense of, inter alia, unconscionability “may be applied to

invalidate an arbitration agreement”). GameStop counters that even if it is determined that

the arbitration agreement was a contract of adhesion, it was not unconscionable. This court

has explained the doctrine of unconscionability as follows:

The doctrine of unconscionability means that, because of

an overall and gross imbalance, one-sidedness or lop-sidedness

in a contract, a court may be justified in refusing to enforce the

arbitration policy was displayed in store, and policy was made available in store manual and

on GameStop intranet; acceptance occurred when plaintiff signed Acknowledgment

form–which plaintiff had duty to read–and GameStop’s actions of distributing and displaying

information about C.A.R.E.S. process “would have put a reasonably prudent employee on

notice of the agreement to arbitrate.”).

7

Given our conclusion that the terms of the GameStop C.A.R.E.S. Rules and the

Acknowledgment are clear and unambiguous as to the parties’ mutual intent to arbitrate, we

need not address the petitioner’s argument that they were ambiguous by virtue of the

disclaimer.

18

contract as written. The concept of unconscionability must be

applied in a flexible manner, taking into consideration all of the

facts and circumstances of a particular case. Syllabus Point 12,

Brown v. Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d

250 (2011)[, overruled in part on other grounds, U.S. , 132

S.Ct. 1201, 182 L.Ed.2d 42 (2012)].

Syl. Pt. 4, Brown v. Genesis Healthcare Corp., 229 W.Va. 382, 385, 729 S.E.2d 217, 220

(2012) (“Brown II”).

Our analysis of whether the arbitration agreement at issue is “‘unconscionable

necessarily involves an inquiry into the circumstances surrounding [its] execution and the

fairness of [it] as a whole.’” Id. at 385, 729 S.E.2d at 220, syl. pt. 5, in part (quoting Syl. Pt.

3, Troy Mining Corp. v. Itmann Coal Co., 176 W.Va. 599, 346 S.E.2d 749 (1986).).8

Furthermore,

[a] determination of unconscionablity must focus on the

relative positions of the parties, the adequacy of the bargaining

position, the meaningful alternatives available to the plaintiff,

and the “existence of unfair terms in the contract.” Syllabus

Point 4, Art’s Flower Shop, Inc. v. Chesapeake and Potomac

Telephone Co. of West Virginia, Inc., 186 W.Va. 613, 413

S.E.2d 670 (1991).

8

“‘Unconscionability is an equitable principle, and the determination of whether a

contract or a provision therein is unconscionable should be made by the court.’” Brown II,

229 W.Va. at 386, 729 S.E.2d at 221, syl. pt. 7 (quoting Troy Mining Corp., 176 W.Va. 559,

346 S.E.2d at 749, syl. pt. 1); see also Dan Ryan Builders, 230 W.Va. at __, 737 S.E.2d at

552, syl. pt. 9 (“A court in its equity powers is charged with the discretion to determine, on

a case-by-case basis, whether a contract provision is so harsh and overly unfair that it should

not be enforced under the doctrine of unconscionability.”).

19

Brown II, 229 W.Va. at 386, 729 S.E.2d at 221, syl. pt. 6.9

There is a growing body of case law in West Virginia which has indicated that

this Court chooses to “analyze unconscionability in terms of two component parts: procedural

unconscionability and substantive unconscionability.” Id. at 392, 729 S.E.2d at 227; see also

State ex rel. Richmond American Homes of W.Va., Inc. v. Sanders, 228 W.Va. 125, 136, 717

S.E.2d 909, 920 (2011). As we held in syllabus point nine of Brown II,

“[a] contract term is unenforceable if it is both

procedurally and substantively unconscionable. However, both

need not be present to the same degree. Courts should apply a

‘sliding scale’ in making this determination: the more

substantively oppressive the contract term, the less evidence of

procedural unconscionability is required to come to the

conclusion that the clause is unenforceable, and vice versa.”

Syllabus Point 20, Brown v. Genesis Healthcare Corp., 228

W.Va. 646, 724 S.E.2d 250 (2011)[, overruled in part on other

grounds, U.S. , 132 S.Ct. 1201, 182 L.Ed.2d 42 (2012)].

229 W.Va. at 386, 729 S.E.2d at 221, syl. pt. 9; see also Johnson Controls, 229 W.Va. at 490,

729 S.E.2d at 812, syl. pt. 6. Applying this sliding scale analysis, as discussed in more detail

9

However, we have recognized that “‘[i]n most commercial transactions[,] it may be

assumed that there is some inequality of bargaining power, and this Court cannot undertake

to write a special rule of such general application as to remove bargaining advantages or

disadvantages in the commercial area, nor do we think it is necessary that we undertake to

do so.’” Johnson Controls, 229 W.Va. at 495, 729 S.E.2d at 817 (quoting Ashland Oil, Inc.

v. Donahue, 159 W.Va. 463, 474, 223 S.E.2d 433, 440 (1976)).

20

below, we find that the arbitration agreement at issue is neither procedurally nor

substantively unconscionable.10

1. Procedural Unconscionability

With regard to procedural unconscionability, this Court has stated as follows:

Procedural unconscionability is concerned with

inequities, improprieties, or unfairness in the bargaining process

and formation of the contract. Procedural unconscionability

involves a variety of inadequacies that results in the lack of a

real and voluntary meeting of the minds of the parties,

considering all the circumstances surrounding the transaction.

These inadequacies include, but are not limited to, the age,

literacy, or lack of sophistication of a party; hidden or unduly

complex contract terms; the adhesive nature of the contract; and

the manner and setting in which the contract was formed,

including whether each party had a reasonable opportunity to

understand the terms of the contract.” Syllabus Point 17, Brown

v. Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250

(2011)[, overruled in part on other grounds, U.S. , 132 S.Ct.

1201, 182 L.Ed.2d 42 (2012)].

Brown II, 229 W.Va. at 386, 729 S.E.2d at 221, syl. pt. 10; see also Johnson Controls, 229

W.Va. at 490, 729 S.E.2d at 812, syl. pt. 7.

This Court has recognized that it is not uncommon for procedural

unconscionability to begin with a contract of adhesion. Brown II, 229 W.Va. at 393, 729

10

For a recent discussion on the use of a sliding scale in assessing unconscionablity,

see Melissa T. Lonegrass, “Finding Room for Fairness in Formalism – The Sliding Scale

Approach to Unconscionability,” 44 Loyola U. Chi.L.J. 1 (2012).

21

S.E.2d at 228; Sanders, 228 W.Va. at 137, 717 S.E.2d at 921. In syllabus point eleven of

Brown II, we held that

A contract of adhesion is one drafted and imposed by a

party of superior strength that leaves the subscribing party little

or no opportunity to alter the substantive terms, and only the

opportunity to adhere to the contract or reject it. A contract of

adhesion should receive greater scrutiny than a contract with

bargained-for terms to determine if it imposes terms that are

oppressive, unconscionable or beyond the reasonable

expectations of an ordinary person. Syl. Pt. 18, Brown v.

Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250

(2011)[, overruled in part on other grounds, U.S. , 132 S.Ct.

1201, 182 L.Ed.2d 42 (2012)].

229 W.Va. at 386, 729 S.E.2d at 221. See Sanders, 228 W.Va. at 137, 717 S.E.2d at 921.

We have also recognized that “‘[a]dhesion contracts’ include all ‘form contracts’ submitted

by one party on the basis of this or nothing[.]” Clites, 224 W.Va. at 306, 685 S.E.2d at 700.

However, as a practical matter, given that

“the bulk of contracts signed in this country . . . are adhesion

contracts, a rule automatically invalidating [such] contracts

would be completely unworkable. Instead[,] courts engage in a

process of judicial review[.] Finding that there is an adhesion

contract is the beginning point for analysis, not the end of it;

what courts aim at doing is distinguishing good adhesion

contracts which should be enforced from bad adhesion contracts

which should not.”

Id. (quoting State ex rel. Dunlap v. Berger, 211 W.Va. 549, 557, 567 S.E.2d 265, 273 (2002)

(internal citation omitted)); see also Brown II, 229 W.Va. at 393, 729 S.E.2d at 228; Sanders,

228 W.Va. at 137, 717 S.E.2d at 921.

22

In the case sub judice, the petitioner argues that although she was aware that

her employment at GameStop was at will, she claims that she was never advised that she was

agreeing to arbitrate future claims against the company simply by signing the

Acknowledgment. The petitioner argues that she is a high school graduate who was

unemployed when she sought employment with GameStop11 and that she possessed no

bargaining power against GameStop, an international corporation. She contends that she was

required to sign the Acknowledgment if she wished to be employed by GameStop; that “there

were no meaningful alternatives available” to her; and that “[t]here was no negotiation.”

GameStop counters that there is simply no evidence that the petitioner, who was twenty-

seven years old and qualified for employment as a GameStop Assistant Manager, was not

capable of understanding the clear import of the Acknowledgment that stated: “I understand

that . . . I am agreeing that all workplace disputes or claims . . . will be resolved under the

GameStop C.A.R.E.S. program rather than in court.” GameStop further argues that the

petitioner had the ability to reject its offer of employment.

Notwithstanding her assertions to the contrary, the petitioner has failed to offer

any evidence that she was incapable due to age, literacy or lack of sophistication to

understand the clear terms of the arbitration agreement or the Acknowledgment she signed

11

The petitioner represents that she had previously been employed at a gas station and

held only a few part time jobs prior to working at GameStop.

23

upon her employment.12 See Brown II, 229 W.Va. at 386, 729 S.E.2d at 221, syl. pt. 10. She

has also failed to offer any evidence that the arbitration agreement’s terms were hidden from

her or were couched in unduly complex terms. The petitioner’s bald assertions that the

arbitration agreement is procedurally unconscionable because the agreement was not subject

to negotiation and because she was unemployed and had no other “meaningful alternatives

available to her” other than to sign the Acknowledgment are simply not sufficient. See

Montgomery v. Applied Bank, 848 F.Supp.2d 609, 616 (S.D.W.Va. 2012) (concluding that

where plaintiff failed to offer evidence “that she had no other alternative but to enter into a

credit card agreement with . . . defendant[,] . . . [she] wholly fail[ed] to put forth any evidence

that the Agreement was procedurally unconscionable other than her assertion that [it] was a

contract of adhesion, which . . . does not in itself make a contract procedurally

unconscionable.”); Clites, 224 W.Va. at 306, 685 S.E.2d at 700 (finding that although

arbitration agreement entered into upon plaintiff’s employment was a contract of adhesion

because the “entire Agreement is boiler-plate language that was not subject to negotiation

and there is no contention . . . that the Petitioner had any role or part in negotiating [its]

terms[,]” the agreement was not unconscionable). There is simply no evidence in the record

to show that the manner or setting in which the petitioner signed the Acknowledgment

12

The petitioner concedes that she did not seek to introduce evidence or otherwise

develop a factual record regarding whether her age, literacy, or lack of sophistication

precluded her from understanding the GameStop C.A.R.E.S. Rules or the Acknowledgment

form she signed.

24

prevented her from having a reasonable opportunity to understand the terms of the

agreement.

Furthermore, the petitioner’s claim that she was not advised that she was

agreeing to arbitrate furture claims against GameStop by signing the Acknowledgment is

without merit. As previously established, the language of the Acknowledgment was

abundantly clear: “I understand that . . . I am agreeing that all workplace disputes or claims

. . . will be resolved under the GameStop C.A.R.E.S. program rather than in court.” “A court

can assume that a party to a contract has read and assented to its terms, and absent fraud,

misrepresentation, duress, or the like, the court can assume that the parties intended to

enforce the contract as drafted.” Adkins v. Labor Ready, Inc., 185 F.Supp.2d 628, 638

(S.D.W.Va. 2001). See Sedlock v. Moyle, 222 W.Va. 547, 551, 668 S.E.2d 176, 180 (2008)

(stating that “‘in the absence of extraordinary circumstances, the failure to read a contract

before signing it does not excuse a person from being bound by its terms. . . . [and] [t]he

person who fails to read a document to which he places his signature does so at his peril.’”

quoting Reddy v. Cmty. Health Found. of Man, 171 W.Va. 368, 373, 298 S.E.2d 906, 910

(1982)). The petitioner does not point to any evidence “to rebut the presumption that a party

to a contract is charged with knowledge of its terms.” Adkins, 185 F.Supp.2d at 638.

Further, the petitioner does not allege that she was fraudulently induced to enter into the

25

arbitration agreement or that she did so under duress or as the result of misrepresentations

by GameStop. Id.

As previously discussed, upon her employment with GameStop, the petitioner

was presented with the GameStop C.A.R.E.S. Rules, at which time she was also presented

with and signed the Acknowledgment. It is beyond cavil that the stated purpose of the

Acknowledgment was to make clear to the petitioner that by continuing her employment with

GameStop, she agreed to submit all covered disputes to arbitration. The petitioner fails to

offer any evidence demonstrating that the arbitration agreement was procedurally

unconscionable because it “involve[d] . . . inadequacies that result[ed] in the lack of a real

and voluntary meeting of the minds . . . .” Brown II, 229 W.Va. at 386, 729 S.E.2d at 221,

syl. pt. 10. Accordingly, we conclude that the petitioner has failed to demonstrate that the

arbitration agreement is procedurally unconscionable.

2. Substantive Unconscionability

With regard to substantive unconscionability, this Court has held as follows:

Substantive unconscionability involves unfairness in the

contract itself and whether a contract term is one-sided and will

have an overly harsh effect on the disadvantaged party. The

factors to be weighed in assessing substantive unconscionability

vary with the content of the agreement. Generally, courts should

consider the commercial reasonableness of the contract terms,

the purpose and effect of the terms, the allocation of the risks

between the parties, and public policy concerns. Syllabus Point

26

19, Brown v. Genesis Healthcare Corp., 228 W.Va. 646, 724

S.E.2d 250 (2011)[, overruled in part on other grounds, U.S.

, 132 S.Ct. 1201, 182 L.Ed.2d 42 (2012)].

Brown II, 229 W.Va. at 386, 729 S.E.2d at 221, syl. pt. 12; see also Dan Ryan Builders, 230

W.Va. at __, 737 S.E.2d at 552, syl. pt. 8.

The petitioner argues that, under the terms of the arbitration agreement, there

is no mutual obligation to arbitrate because the agreement gives GameStop the unfettered and

unilateral right to modify or discontinue the GameStop C.A.R.E.S. program. The petitioner

contends that this provision renders the agreement substantively unconscionable and,

therefore, unenforceable. GameStop counters that the agreement does not give it the

unfettered right to change or discontinue the C.A.R.E.S. program; to the contrary, GameStop

argues that, under the terms of the agreement, it is required to give employees thirty days

notice of any modification to, or rescission of, the GameStop C.A.R.E.S. program, and any

such modification or rescission is to be applied prospectively only. Therefore, GameStop

argues that the arbitration agreement is not substantively unconscionable and, as a result, is

enforceable.

This Court has recognized that “‘[s]ome courts suggest that mutuality of

obligation is the locus around which substantive unconscionability analysis revolves[]’” and

that, “‘[i]n assessing substantive unconscionability, the paramount consideration is

27

mutuality.’” Sanders, 228 W.Va. at 137, 717 S.E.2d at 921 (internal citations omitted). See

Dan Ryan Builders, 230 W.Va. at __, 737 S.E.2d at 558 (stating that “the lack of mutuality

in a contractual obligation–particularly in the context of arbitration–is an element a court may

consider in assessing the substantive unconscionability of a contract term”). Moreover,

“‘[a]greements to arbitrate must contain at least “a modicum of bilaterality” to avoid

unconscionability.’” Sanders, 228 W.Va. at 137, 717 S.E.2d at 921 (internal citation

omitted); see also Brown II, 229 W.Va. at 393, 729 S.E.2d at 228.

As we held in syllabus point ten of Dan Ryan Builders,

In assessing whether a contract provision is substantively

unconscionable, a court may consider whether the provision

lacks mutuality of obligation. If a provision creates a disparity

in the rights of the contracting parties such that it is one-sided

and unreasonably favorable to one party, then a court may find

the provision is substantively unconscionable.

230 W.Va. at __, 737 S.E.2d at 552. With regard to GameStop’s right to modify or

discontinue the GameStop C.A.R.E.S. program, the arbitration agreement states as follows:

GameStop may from time to time modify or discontinue

GameStop C.A.R.E.S. by giving covered employees thirty (30)

calendar days notice; however, any such modification or

rescission shall be applied prospectively only. An employee

shall complete the processing of any dispute pending in

GameStop C.A.R.E.S. at the time of an announced change,

under the terms of the procedure as it existed when the dispute

was initially submitted to GameStop C.A.R.E.S.

28

Thus, contrary to the petitioner’s argument that the foregoing provision gives

GameStop the unfettered right to alter or rescind the GameStop C.A.R.E.S. Rules, the clear

language of this provision limits GameStop’s ability in this regard by requiring it to give

covered employees thirty days notice of any modification or rescission, which “shall be

applied prospectively only.” Furthermore, any dispute pending at the time GameStop

modifies the agreement is to proceed “under the terms of the procedure as it existed when the

dispute was initially submitted . . . .” This provision does not render the arbitration

agreement substantively unconscionable.

A similar provision was considered in Martin v. Citibank, Inc., 567 F.Supp.2d

36 (D.C.C. 2008), in which the United States District Court for the District of Columbia

concluded that “in order to modify terms of the [arbitration] policy, defendant must provide

thirty (30) days advance notice to employees, barring any ‘unfair retroactive application of

amendments.’” Id. at 45. The court in Martin determined that, based upon this language, it

was “satisfied that requiring defendant to provide thirty days notice of prospective

modifications affords employees sufficient protection against inequitable assertions of

power.” Id. See Hardin v. First Cash Financial Services, 465 F.3d 470, 478 (10th Cir.

2006) (concluding that clause in arbitration agreement providing that defendant employer

“‘retains the right to terminate the [Agreement] and/or modify or discontinue the [Dispute

Resolution Program]’” was valid because employer was required to provide ten days notice

29

to current employees, not amend the agreement if it had actual notice of a potential dispute

or claim, and not terminate the agreement as to any claims which arose prior to the date of

termination); Seawright v. Amer. Gen’l. Financial Services, 507 F.3d 967, 975 (6th Cir.

2007) (determining that although the “defendant companies reserved the right to terminate

the [Employee Dispute Resolution program] at any time, they also agreed to be bound by the

terms of the agreement for 90 days after giving reasonable notice of the termination and as

to all known disputes arising before the date [of] termination. Thus, the companies were

bound by the terms for at least 90 days after the agreement came into effect. This reciprocal

obligation to arbitrate at least those claims arising in the 90-day period after the effective date

of the agreement satisfies the mutuality requirement.” (footnote omitted)); Miguel v.

JPMorgan Chase Bank, N.A., 2013 WL 452418 *6 (C.D.Cal. 2013) (holding that arbitration

agreement that “shall be effective thirty (30) calendar days after such amendments are

provided. . . and will apply on a going forward basis” is not substantively unconscionable);

Lumuenemo, 2009 WL 371901 at *5 (holding arbitration provision valid where defendant’s

right to modify or change agreement was not unrestricted reasoning that “if Defendant

decides to modify or terminate the agreement, the change will not become effective until

Defendant has provided its employees 30-days notice[,] . . . [and] any alterations would apply

prospectively only . . . .”); Brackett v. Gen’l. Dynamics Armament, 2010 WL 2628525 *3

(D.Me.2010) (concluding that employee’s challenge of, inter alia, employer’s right to change

or terminate arbitration agreement upon thirty days notice only as to claims not yet filed is

30

not unconscionable because it is an “ordinary, some would say desirable, incident[] of

arbitration and dispute resolution procedures”).

As previously established, the GameStop C.A.R.E.S. Rules are “a mutual

agreement to arbitrate” under which both GameStop and the petitioner “agree that the

procedures provided in these Rules will be the sole method used to resolve any Covered

Claim” and that an arbitrator’s decision is final and binding. GameStop’s limited ability

under the arbitration agreement to modify or discontinue the GameStop C.A.R.E.S. Rules in

no way negates the parties’ mutual agreement to arbitrate. GameStop is required to give

employees thirty days notice of any modification or rescission and any such modification or

rescission may only be applied prospectively. Furthermore, if a dispute is pending at the time

a modification to the program is made, such disputes are to proceed under the terms of the

program as they existed when the dispute was initiated. This provision and its effects are not

overly harsh and in no way “create[] a disparity in the rights of the contracting parties such

that it is one-sided and unreasonably favorable to” GameStop. Dan Ryan Builders, 230

W.Va. at__, 737 S.E.2d at 552, syl. pt. 10. We, therefore, conclude that the provision that

permits modification does not render the arbitration agreement substantively

unconscionable.13

13

The petitioner also argues that the GameStop C.A.R.E.S. program is substantively

unconscionable because it shortens the statute of limitations within which the petitioner may

bring her claims. However, GameStop’s position before both the circuit court and this Court

31

IV. Conclusion

Based upon all of the above, the October 10, 2012, circuit court order

dismissing the petitioner’s claims pending their submission to final and binding arbitration

is hereby affirmed.

Affirmed.

is that the petitioner’s claims are not barred under the arbitration provision and that the state

law claims alleged by the petitioner are subject to the two-year statute of limitations

applicable to the petitioner’s claims. This is also consistent with the GameStop C.A.R.E.S.

Rules which provide that “[t]he Notice of Intent to Arbitrate must be received within the time

period allowed by law applicable to the Covered Claim at issue, just as if you were

proceeding in court.” As the Rules further make clear, “[t]his is commonly referred to as a

statute of limitations and is the period of time that is provided by law for bringing a claim.”

See Pomposi, 2010 WL 147196 at *12 (holding that “under the plain language of the

agreement, the only mandatory deadline imposed by C.A.R.E.S. is the one imposed by law,

namely, the deadline provided by the statute of limitations applicable to the claim in

dispute.”). Therefore, given GameStop’s position that the arbitration provision above does

not shorten the statute of limitations within which the petitioner may bring a claim under

state law, we need not address the petitioner’s argument that the provision is substantively

unconscionable.

32