# Discover Bank v. Superior Court > California Supreme Court · June 27, 2005 · 30 Cal. Rptr. 3d 76 URL: https://www.frixlaw.com/law-library/cases/9785575 ## Case - **Full name:** DISCOVER BANK, Petitioner, v. SUPERIOR COURT OF LOS ANGELES, Respondent; CHRISTOPHER BOEHR, Real Party in Interest - **Court:** California Supreme Court - **Decided:** June 27, 2005 - **Citations:** 30 Cal. Rptr. 3d 76; 36 Cal. 4th 148; 2005 Daily Journal DAR 7782; 113 P.3d 1100; 2005 Cal. Daily Op. Serv. 5684; 2005 Cal. LEXIS 6866 - **Precedential status:** Published - **Opinion:** Concurring in part by Baxter - **Judges:** Moreno, Baxter - **Cited by:** 331 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9785575 ## How later opinions describe it (automated extraction) - stating in judicial dicta that class action waivers are unconscionable Aat least under some circumstances,@ such as Awhen the waiver is found in a consumer contract of adhesion in a setting in which disputes between the contracting parties predictably involve small amounts of … - stating in judicial dicta that class action waivers are unconscionable “at least under some circumstances,” such as “when the waiver is found in a consumer contract of adhesion in a setting in which disputes between the contracting parties predictably involve small amounts of … - stating that “the FAA does not federalize the law of unconscionability or related contract defenses except to the extent that it forbids the use of such defenses to discriminate against arbitration clauses.” - applying California law and holding that a class action waiver was unconscionable, but without any evidence on the availability of attorney’s fees; the court was not "persuaded by the rationale stated by some courts that the potential availability of attorney fees to the preva… - holding waiver of class arbitration "in a consumer contract of adhesion in a setting in which disputes between the contracting parties predictably involve small amounts of damages" unconscionable and therefore unenforceable ## Opinion text BAXTER, J., Concurring and Dissenting. I concur in part and dissent in part. I agree with the majority that federal law does not compel enforcement of contractual class action waivers simply because they are contained in *175 arbitration agreements. But I lament the majority’s determination to use this case as a vehicle to resolve the issue of California’s policy on class action waivers. For two reasons, we need not, and should not, confront that question here. First, because the Court of Appeal upheld the instant waiver solely by finding federal preemption of any California antiwaiver policy, that court did not decide whether such a policy exists. Ordinarily, we do not address, on review, issues that were not decided by the Court of Appeal. Second, the majority’s questionable decision to deem the class action waiver in this contract unconscionable by California standards—a determination at odds with the vast weight of authority elsewhere (see discussion, post)—is simply moot under the particular circumstances. The parties reasonably agreed that Delaware law would govern all aspects of their contractual relationship, and plaintiff has asserted only Delaware causes of action. Thus, regardless of California’s position on class waivers, California has a manifest obligation to evaluate the waiver under Delaware law alone. Because Delaware, like most other jurisdictions, would uphold the waiver, California—the fortuitous venue for this “nationwide” class action—must honor it. If the majority insists on reaching beyond the issues addressed by the Court of Appeal, it should at least identify and resolve the dispositive one. Instead, the majority, so bold on the waiver issue, avoids deciding the choice-of-law issue. Despite some mild cautionary admonitions, the majority leaves the Court of Appeal free on remand to dishonor the class waiver under California law despite the contrary Delaware rule. In that event, the parties’ reasonable contractual expectations, as well as the strong interest of Delaware itself in the application of its own law to this issue, would be frustrated. Moreover, if California courts must, or may, dishonor class action waivers that are perfectly valid under the governing law selected by the parties themselves, California—which now takes a minority position on this issue—might well become the magnet for countless nationwide consumer class lawsuits that could not be maintained elsewhere. I cannot accept such a result. I briefly review what I deem the pertinent aspects of this controversy. The cardholder agreement at issue in this case, as modified by Discover Bank in 1999, specifies that either party may choose arbitration, rather than litigation, of a dispute under the contract, and that neither party may obtain class treatment. As plaintiff concedes, the agreement provides that it will be governed, not by the law of California, but by federal law and the law of Delaware. The choice of Delaware law is hardly startling in view of Discover Bank’s Delaware domicile. Indeed, Delaware requires that “[a] revolving credit plan *176 between a [Delaware-chartered] bank and an individual borrower shall be governed, by the laws of [Delaware].” (Del. Code Ann., tit. 5, § 956, italics added.) For all but one purpose, plaintiff has embraced the choice of Delaware law. He has expressly and intentionally asserted only Delaware causes of action. At oral argument, his counsel explained that his complaint is so framed in deference to the agreement’s choice of law, and also in hopes of certifying a nationwide class subject to uniform legal principles. But Delaware permits arbitration agreements that preclude class treatment, even if such provisions are contained in standard-form consumer contracts. (E.g., Edelist v. MBNA America Bank (Del.Super.Ct. 2001) 790 A.2d 1249, 1261 ; see also Lloyd v. MBNA America Bank, N.A. (D.Del. 2001) 2001 WL 194300 ; Pick v. Discover Financial Services, Inc. (D.Del. 2001) 2001 WL 1180278 , *4-*5.) 1 Furthermore, under specific provisions of Delaware statutory law, Discover Bank could insert such a provision in a preexisting contract, as the bank did here, by issuing a unilateral notice, under which plaintiff’s inaction or continued use of his credit card constituted acceptance. (Del. Code Ann., tit. 5, § 952.) *177 Thus, unwilling to take the bitter with the sweet, plaintiff would now rather apply California law to a single issue governed by the contract. After agreeing to one-on-one arbitration in a contract choosing Delaware law, he now seeks to proceed as a nationwide class representative by persuading California courts, through the application of California law, to dishonor his contractual waiver of class treatment. As the majority itself cogently states the matter, he and his counsel have selected a California forum so that, in an action representing Discover Bank cardholders from all 50 states, he can “enforce . . . Delaware laws . . . [but] with a California unconscionability rule against class action waivers.” (Maj. opn., ante, at p. 174.) He should not be allowed to do so. The solution to this case lies in a straightforward application of the choice-of-law test set forth in Nedlloyd Lines B.V. v. Superior Court (1992) 3 Cal.4th 459 [ 11 Cal.Rptr.2d 330 , 834 P.2d 1148 ] (Nedlloyd) and Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906 [ 103 Cal.Rptr.2d 320 , 15 P.3d 1071 ] (’Washington Mutual). Under that test, California will apply the law of contractual choice if (1) the chosen state has a substantial relationship to the parties or their transaction or (2) there is any other reasonable basis for the parties’ choice of law, unless the chosen state’s law offends a “fundamental” California policy. Even where there is a “fundamental” conflict, the chosen state’s law will apply unless California has a materially greater interest than the chosen state in resolving the particular issue. (Washington Mutual, supra, at pp. 916-917; Nedlloyd, supra, at pp. 464-466 .) By these standards, plaintiff’s effort to apply California class waiver law, to the extent it differs from Delaware’s, clearly fails. The first two considerations favoring application of the chosen state’s law are easily satisfied here. Delaware, where Discover Bank is domiciled, has a substantial relationship to the parties and the transaction. Moreover, the choice of Delaware’s law as uniformly applicable to Discover Bank’s nationwide credit card business is entirely reasonable. The relationship to Delaware becomes even more substantial, and the choice of its law even more reasonable, by virtue of Delaware’s express statutory requirement that its law shall govern. Furthermore, in the circumstances of this case, the contractual waiver is not so contrary to “fundamental” California policy that California should invalidate it despite contrary Delaware law. The majority suggests the waiver is unconscionable. But unconscionability is simply a matter of contract law—it constitutes a “ ‘generally applicable contract defenseQ’ ” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114 [ 99 Cal.Rptr.2d 745 , 6 P.3d 669 ] (Armendariz), quoting Doctor’s Associates, Inc. v. Casarotto (1996) 517 U.S. 681, 687 [ 134 L.Ed.2d 902 , 116 S.Ct. 1652 ]) based on a claim that a particular agreement, or a term thereof, is *178 unfairly oppressive to one party under the particular circumstances. (See Civ. Code, § 1670.5 [court may decline to enforce unconscionable contract, but only after giving parties opportunity to explain context].) States may, of course, differ in their conception of what constitutes an unconscionable contract term. Thus, what is “unconscionable” in an agreement seems peculiarly an issue to be decided under the law chosen by the parties in the agreement itself. As noted, these parties chose Delaware law to govern and construe their agreement. Even if California, applying its own contract law, might find certain class waivers unconscionable, there is no “fundamental” reason to impose that defense upon an agreement in which the parties, acting reasonably, chose the contract law of a jurisdiction where such a defense would not apply. The majority also notes that California affords certain substantive rights, particularly those specified by statute, that are “unwaivable.” (See, e.g., Civ. Code, §§ 1751, 1781 [unwaivable right to bring class action under Consumers Legal Remedies Act]; see also Armendariz, supra, 24 Cal.4th 83, 100-101 .) But as the majority is forced to concede, that principle has no application here, where plaintiff himself has carefully avoided invoking any such California statutory right. The majority suggests that class waivers in standard consumer contracts may violate California’s arguably “fundamental” statutory policy against direct or indirect “exculpatory” clauses. (See Civ. Code, § 1668.) In the majority’s view, such waivers may have an exculpatory effect because, given the usually modest amount of each cardholder’s personal claim against Discover Bank, litigation or arbitration on an individual basis is impractical and uneconomic. The majority posits that because cardholders and their attorneys have no incentive to pursue such claims except by aggregating them with other similar complaints, Discover Bank will escape liability or punishment for its improper practices. I find this analysis unpersuasive for several reasons. At the outset, I cannot accept the facile premise that lack of a class remedy is equivalent to exculpation of an alleged wrongdoer. Class treatment, in whatever forum, is a relatively recent invention, designed to encourage and facilitate the resolution of certain kinds of disputes. It may provide valuable procedural leverage to one side. But as we noted in Washington Mutual, supra, 24 Cal.4th 906 , “ ‘[c]lass actions are provided only as a means to enforce substantive law.’ ” (Id., at p. 918, quoting City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 462 [ 115 Cal.Rptr. 797 , 525 P.2d 701 ], fn. omitted, italics added.) They must not be confused with the substantive law to be enforced. (Ibid.) Even if *179 the unavailability of class relief makes a plaintiff’s pursuit of a particular claim “less convenient” (Moses H. Cone Hospital v. Mercury Constr. Corp. (1983) 460 U.S. 1, 19 [ 74 L.Ed.2d 765 , 103 S.Ct. 927 ]; see also Gilmer v. Interstate/Johnson Lane Corp. (1991) 500 U.S. 20, 32 [ 114 L.Ed.2d 26 , 111 S.Ct. 1647 ]), such claims may nonetheless be pursued on an individual basis. Moreover, the majority exaggerates the difficulty of pursuing modest claims where class treatment is unavailable and overlooks the many other means by which Discover Bank could be called to account for the mischarges plaintiff alleges. For example: (1) The cardholder may contact the bank and attempt to resolve the matter informally. Discover Bank’s cardholder agreement specifically provides a 60-day period in which to contact the company with billing questions and disputes. Plaintiff’s complaint does not state that he pursued this avenue. (Indeed, though the complaint asserts widespread improper billing practices by Discover Bank, it does not allege that the bank has ever mischarged plaintiff himself. Plaintiff admitted in his deposition that he does not know whether Discover Bank has ever done so.) (2) Pursuant to the agreement, the cardholder may pursue one-on-one arbitration of Delaware state law claims, including those under the Delaware Consumer Fraud Act (Del. Code Ann., tit, 6, § 2511 et seq.). The agreement includes several provisions designed to make the individual arbitration process fair and accessible. Under the agreement’s terms, Discover Bank will arbitrate in the federal judicial district where the cardholder resides. Further, the cardholder may obtain an advance of all forum costs and will never pay forum costs exceeding those he or she would have had to pay in court litigation. (3) For claims under $5,000, the cardholder may proceed in small claims court. (See Code Civ. Proc., § 116.210 et seq.) In the cardholder agreement, Discover Bank promises that it “will not invoke [its] right to arbitrate an individual claim,” involving less than $5,000, which is pending only in a small claims court. 2 The only mandatory expense of a small claims action is a modest filing fee plus the actual cost of any mail service by the court clerk. (Id., §§ 116.230, subds. (a), (c), 116.910.) The claim is pled by filling out a standard form. (Id., §§ 116.310, subd. (a), 116.320.) No formal discovery is permitted (id., § 116.310, subd. (b)), and neither party may be represented by *180 a lawyer (id., § 116.530, subd. (a)), though free advisory assistance is available to the claimant (id., § 116.260). (4) The cardholder may arbitrate, pursuant to the terms of the cardholder agreement, his rights under such federal statutes as TELA. ( 15 U.S.C. § 1601 et seq.) 4 This statute imposes mandatory disclosure requirements for consumer credit transactions, including those arising on credit card accounts. As to the latter, the statute provides for detailed disclosure of the terms on which credit is being extended, including annual percentage rates, methods of computing outstanding balances, finance charges, grace periods, and late fees. ( 15 U.S.C. § 1637 .) The cardholder, if he or she prevails, may recover actual damages, twice the finance charge imposed in connection with each violative transaction, and attorney fees and costs. (Id., § 1640(a)(1), (2)(A), (3).) (5) If Discover Bank’s conduct violates California’s unfair competition statutes (Bus. & Prof. Code, § 17200 et seq.), which broadly prohibit “any unlawful, unfair or fraudulent business act or practice” (id., § 17200), the Attorney General and designated local law enforcement officials (who are not bound by the cardholder agreement) may sue on the People’s behalf for injunctive relief and for mandatory civil penalties of up to $2,500 for each violation (id., §§ 17203, 17204, 17206). The amount of a civil penalty shall be calculated in accordance with “any one or more of the relevant circumstances . . . including, but not limited to ... the nature and seriousness of the misconduct, the number of violations, the persistence of the misconduct, the length of time over which the misconduct occurred, the willfulness of the defendant’s misconduct, and the defendant’s assets, liabilities, and net worth.” (Id., § 17206, subd. (b).) (6) Finally, in the highly regulated banking and credit industry, other means of sanctioning and remediating illegal conduct are available at the behest of both federal and Delaware law. (See, e.g., 12 U.S.C. § 1818 (b) [Federal Deposit Insurance Corporation may issue cease-and-desist orders and order corrective measures including restitution]; Del. Code Ann., tit. 5, § 121 *181 et seq. [investigative and enforcement powers of Delaware State Banking Commissioner]; Del. Code Ann., tit. 29, § 2504 [investigative and enforcement powers of Delaware Attorney General].) Under these circumstances, it cannot be said that, by upholding cardholders’ contractual waiver of a class remedy under Delaware law, we would effectively absolve Discover Bank of its objectionable conduct. Thus, there is no basis to conclude that enforcement of the class waiver pursuant to the parties’ choice of Delaware law would contravene a fundamental California statutory policy against exculpatory agreements. Finally, even if the application of Delaware law permitting class waivers would violate fundamental California public policy, I conclude that California has no materially greater interest in applying its own policy to this controversy than does Delaware. California is, to be sure, the home of this individual plaintiff, with his modest personal monetary claim, and of some of the other similarly situated Discover Bank cardholders, with similarly modest individual claims, he seeks to represent. But to the extent plaintiff proposes to vindicate the rights of a nationwide class under Delaware consumer protection laws, California has no greater interest than any other jurisdiction, including Delaware, in protecting the interests of its resident class members. Indeed, California, its courts, and its judicial resources will be negatively impacted if, by invoking its own liberal antiwaiver rule in derogation of contrary law chosen by the parties, this state attracts nationwide consumer class litigation of the sort plaintiff seeks to maintain. Such an adverse affect on California detracts further from this state’s interest in applying its own law under such circumstances. Moreover, any factors in California’s favor are outweighed by Delaware’s far greater concern with the primacy of its own law, both contractual and regulatory, in relations between Discover Bank and its nationwide cardholders. Delaware is Discover Bank’s domicile, as well as the source of the substantive law plaintiff expressly seeks to apply. Robert A. Glen, the Delaware State Bank Commissioner, explains in his amicus curiae brief that Delaware has a paramount interest in the economic and business regulation of financial and banking institutions domiciled in that state. As Discover Bank’s domicile, Delaware has a specific regulatory interest in applying its own laws and policies, uniformly and exclusively, to Discover Bank’s operations. Delaware thereby seeks to minimize Discover Bank’s exposure to the varying and possibly conflicting laws, regulations, and procedures of 49 sister jurisdictions. In particular, Delaware has ample grounds for concern that the terms of the standardized credit agreements *182 entered by its locally chartered banks, including those terms governing resolution of customer disputes, will have the same meaning no matter where the banks’ customers reside. As Commissioner Glen observes, Delaware also strives, for the benefit of the banks’ customers, including their nationwide credit card customers, to promote financial stability, safety, and soundness in such institutions. These interests are substantially affected by the banks’ costs of consumer litigation, including their exposure to consumer class actions. In Commissioner Glen’s words, “[arbitration helps keep the costs of dispute resolution down because it is more efficient, expeditious and economical than litigation. If a bank has to spend substantial sums in connection with litigation and, in particular, class action litigation, that threatens the bank’s safety and soundness and forces the bank to increase the costs of operations, all of which redounds to the detriment of the bank and its customers, including customers located in states outside of Delaware.” Delaware has evidenced its concerns, as noted above, by specifically providing that credit card agreements issued by Delaware-chartered banks must be governed by Delaware law. (Del. Code Ann., tit. 5, § 956.) Commissioner Glen explains that “[t]he purpose of this requirement is to ensure the safe and sound operation of Delaware banks by effectuating the uniform construction of credit card agreements issued by [such] banks in accordance with Delaware law, no matter where disputes concerning those agreements might arise.” Because Delaware has a substantial relationship to this controversy, the parties’ choice of Delaware law was reasonable, and Delaware’s interest in applying its own law—including its acceptance of class waivers—exceeds California’s, California must uphold that choice of law. Under Delaware law, the parties’ waiver of class treatment of disputes between them is valid, and California courts must enforce it. Plaintiff suggests that the choice-of-law principles set forth in Washington Mutual, supra, 24 Cal.4th 906 , and Nedlloyd, supra, 3 Cal.4th 459—as derived from section 187 of the Restatement Second of Conflicts of Law (Restatement)—apply to matters of “substantive” law but not of “procedure.” The forum state, plaintiff asserts, always has a paramount interest in applying its own procedures. Assuming without deciding that we confront an issue of “procedure,” plaintiff’s argument nonetheless lacks merit. As primary support for his position, plaintiff cites Restatement sections 122 and 125. The former section states that the forum “usually applies its own” litigation rules even when the *183 law of another jurisdiction is applied for other purposes. The latter section declares that the forum’s law determines “who may and who must be parties . . . unless the substantial rights and duties of the parties would [thereby] be affected . . . .” 5 (Rest., § 125.) But Restatement sections 122 and 125, like most of the Restatement, set forth principles for determining which jurisdiction’s law to apply “[i]n the absence of an effective choice of law by the parties.” (Rest., § 188, subd. (2).) Nothing in those sections, or in the comments thereto, indicates a purpose to supersede Restatement section 187 where the parties have contractually chosen the applicable law, or to impose a forum rule for dispute resolution despite the express contrary provisions of an agreement that specifies the law of a jurisdiction in which that choice is valid. Indeed, the comments to both these Restatement sections demonstrate their inapplicability here. For example, the comments to section 122 point out that “in matters of judicial administration, it would often be disruptive or difficult for the forum to apply the local law rules of another state [without any repayment] by a furtherance of the values that the application of another state’s local law is designed to promote.” (Rest., § 122, com. a, p. 350.) Moreover, it is explained, “[pjarties do not usually give thought to matters of judicial administration before they enter into legal transactions. They do not usually place reliance on the applicability of the rules of a particular state to issues that would arise only if litigation should become necessary. Accordingly, the parties have no expectations as to such eventualities, and there is no danger of unfairly disappointing their hopes by applying the forum’s rules in such matters.” (Rest., § 122, com. a, p. 351.) Here, the parties gave extensive and detailed contractual consideration to the “issues that would arise ... if litigation [became] necessary.” They specifically agreed that disputes would be resolved, upon either party’s election, by mandatory arbitration, and that class treatment of the dispute would not be permitted. Further, they expressly provided that their agreement would be governed by the law of Delaware—a jurisdiction which, for policy reasons of its own, allows contractual provisions requiring nonclass arbitration and further demands that credit card agreements issued by Delaware-chartered banks be applied according to that state’s law. The reasonable expectations of both Discover Bank and the State of Delaware would thus be *184 “unfairly disappointed” if a California rule banning class waivers were applied despite the parties’ agreement. Moreover, by honoring the parties’ agreement in this respect, California courts risk no disruption or confusion in matters of judicial administration. There is no need to delve deeply into the procedural rules of another jurisdiction. All that is required is to compel arbitration, and to deny class certification, as the parties agreed. Similarly, the comments to section 125, like the text of that section itself, make clear that the forum’s rules on the identity of parties will not be applied “when [such] application would substantially affect the rights and duties of the parties.” (Rest., § 125, com. a, p. 356.) Here, Discover Bank’s rights would be substantially affected were it forced into a class proceeding contrary to a specific term of its contract with plaintiff. Finally, as the majority must concede, neither Szetela v. Discover Bank (2002) 97 Cal.App.4th 1094 [ 118 Cal.Rptr.2d 862 ], nor America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1 [ 108 Cal.Rptr.2d 699 ] (America Online) undermines the dispositive effect in this case of Delaware law. In Szetela , the Court of Appeal concluded that because choice-of-law issues had not been briefed, they were waived. (Szetela, supra, at p. 1099, fn. 3 .) America Online involved a suit brought under a law of this state, the Consumers Legal Remedies Act, which specifically grants the right to bring a class action and makes the rights granted by the statute unwaivable by contract. (Civ. Code, §§ 1751, 1781, subd. (a).) As noted above, plaintiff in this case bases his claims solely on Delaware substantive law. If, as the majority hints, California would refuse to enforce the parties’ agreement for individual arbitration as Delaware law demands, the legitimate purpose of that agreement—uniform, inexpensive, efficient dispute resolution—will be entirely frustrated. No matter how many other courts, state and federal, would enforce the agreement according to its terms, if California declines to do so, this state will simply become a forum of choice for putative nationwide class suits like this one. It will only be necessary to find a single California cardholder to act as a representative plaintiff, and to sue in a California court. I cannot join the majority’s willingness to countenance such a result. I would hold the parties to their agreement, expressly governed by Delaware law, which calls for individual arbitration of disputes arising between Discover Bank and its cardholders. Accordingly, I would affirm the *185 judgment of the Court of Appeal, which directed the issuance of a petition for mandate requiring the trial court to (1) compel arbitration of plaintiff’s complaint and (2) reinstate the waiver of class treatment. Chin, J., and Brown, J., concurred. Delaware’s position is in accord with the vast majority of decisions, applying federal law or the law of other states, which hold that arbitration clauses are not invalid either because they specifically exclude class treatment or because they preclude such treatment by failing expressly to provide for it. (E.g., Livingston v. Associates Finance, Inc. (7th Cir. 2003) 339 F.3d 553, 559 (Livingston) [federal Truth in Lending Act (TELA)]; Snowden v. Checkpoint Check Cashing (4th Cir. 2002) 290 F.3d 631 , 638-639 (Snowden) [same]; Burden v. Check Into Cash of Kentucky, LLC (6th Cir. 2001) 267 F.3d 483, 492 (Burden) [same]; Randolph v. Green Tree Financial Corp.-Alabama (11th Cir. 2001) 244 F.3d 814, 819 (Randolph) [same]; Johnson v. West Suburban Bank (3d Cir. 2000) 225 F.3d 366, 370-378 (Johnson) [same]; Champ v. Siegel Trading Co., Inc. (7th Cir. 1995) 55 F.3d 269, 277 ; Shales v. Discover Card Services, Inc. (E.D.La. 2002) 2002 WL 2022596 , *2; Lomax v. Woodmen of the World Life Ins. Society (N.D.Ga. 2002) 228 F.Supp.2d 1360, 1365 ; Vigil v. Sears Nat. Bank (E.D.La. 2002) 205 F.Supp.2d 566, 572 [applying federal and Arizona law]; McIntyre v. Household Bank (N.D.Ill. 2002) 216 F.Supp.2d 719, 724 [TELA]; Thompson v. Illinois Title Loans, Inc. (N.D.Ill. 2000) 2000 WL 45493 , *4 [same]; Zawikowski v. Beneficial National Bank (N.D.Ill. 1999) 1999 WL 35304 , *2, & fn. 2 [upholding clauses that compelled arbitration and precluded class litigation, but declining to decide if class arbitration was proper]; Med Center Cars, Inc. v. Smith (Ala. 1998) 727 So.2d 9, 20 ; Rains v. Foundation Health Systems (Colo.Ct.App. 2001) 23 P.3d 1249, 1253-1254 ; Brown v. KFC National Management Co. (1996) 82 Haw. 226 [ 921 P.2d 146, 166, fn. 23 ]; Rosen v. SCIL, LLC (2003) 343 Ill.App.3d 1075 [ 799 N.E.2d 488, 494 , 278 Ill.Dec. 770 ] [applying federal arbitration law]; Walther v. Sovereign Bank (2005) 386 Md. 412 [ 872 A.2d 735, 749-751 ] [federal and Maryland law]; Strand v. U.S. Bank Nat. Ass'n ND (2005) 2005 ND 68 [ 693 N.W.2d 918 ]; Gras v. Associates First Capital Corp. (2001) 346 N.J. Super. 42 [ 786 A.2d 886, 889-895 ]; Ranieri v. Bell Atlantic Mobile (App.Div. 2003) 304 A.D.2d 353 [ 759 N.Y.S.2d 448, 449 ]; AutoNation USA Corp. v. Leroy (Tex.App. 2003) 105 S.W.3d 190, 199-200 .) The agreement does not eliminate the theoretical possibility that Discover Bank might seek to remove a small claims action to another court, then elect to arbitrate. However, a small claimant can suffer removal to another forum only if the defendant files a counterclaim exceeding the $5,000 small claims jurisdictional limit—an unlikely development in cases like plaintiff’s. (Code Civ. Proc., § 116.390.) As indicated above (see fn. 1, ante), federal circuits addressing the issue have uniformly held that claimants must arbitrate TILA claims pursuant to agreement, that arbitration precludes class relief under TELA, that arbitration agreements containing express waivers of class treatment, even for small individual amounts in dispute, are not unconscionable with respect to TILA claims, and that, although TELA contemplates class actions, it includes no “unwaivable” right to class relief. ( Livingston, supra, 339 F.3d 553, 559 ; Snowden, supra, 290 F.3d 631, 638-639 ; Burden, supra, 267 F.3d 483, 492 ; Randolph, supra, 244 F.3d 814, 819 ; Johnson, supra, 225 F.3d 366, 370-378 .) Restatement section 122 provides: “A court usually applies its own local law rules prescribing how litigation shall be conducted even when it applies the local law rales of another state to resolve other issues in the case.” Section 125 provides: “The local law of the forum determines who may and who must be parties to a proceeding unless the substantial rights and duties of the parties would be affected by the determination of this issue.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9785575. Public record. Not legal advice.