No. 11-1646 – Credit Acceptance Corp. v. Robert J. Front and Billye S. Front 

and 

No. 12-0545 – Credit Acceptance Corp. v. Ocie Shrewsbury FILED 

June 19, 2013 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

Justice Ketchum, concurring: OF WEST VIRGINIA 

I concur with the majority’s opinion, but write separately to make two 

points. 

First, in crafting Syllabus Point 3, the majority opinion relied upon the 

recent case of Kahn v. Dell, Inc., 669 F.3d 350 (3rd Cir. 2012), in deciding whether the 

unavailability of a chosen arbitration forum renders an arbitration agreement 

unenforceable. Syllabus Point 3 makes a distinction between whether the choice of the 

arbitration forum is an “ancillary logistical concern” or an “integral” part of the 

agreement to arbitrate. 

However, the majority opinion gives no guidelines as how to determine if 

an agreement’s choice of a forum is an “ancillary logistical concern” or an “integral” part 

of the arbitration agreement. I would have, like the Kahn case, made this clear by adding 

the following sentence at the end of Syllabus Point 3: “In this light, the parties must have 

unambiguously expressed their intent not to arbitrate their disputes in the event that the 

designated arbitral forum is unavailable.” Kahn 669 F.3d at 354. I believe that a court 

should decline to appoint an alternate arbitrator only when the original choice of forum 

was “so central to the arbitration agreement that the unavailability of that arbitrator 

[brings] the agreement to an end.” Id. 

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Second, our recent cases discussing unconscionability in contracts have 

held that there must be proof of both procedural and substantive unconscionability, 

judged on a sliding scale. Syllabus Point 20, Brown v. Genesis Healthcare Corp., 228 

W.Va. 646, 724 S.E.2d 250 (2011) [“Brown I”]. Under our recent case law, “[t]o be 

unenforceable, a contract term must—at least in some small measure—be both 

procedurally and substantively unconscionable.” Dan Ryan Builders, Inc. v. Nelson, 230 

W.Va. 281, 289, 737 S.E.2d 550, 558 (2012) (quotations omitted). 

However, in footnote 8 of the majority opinion, Justice Davis questioned 

the need for the sliding scale adopted in Syllabus Point 20 of Brown I that requires both 

substantive and procedural unconscionability. This Court was one of the twelve state 

supreme courts to have adopted or reaffirmed a sliding scale approach since 2000. See 

Melissa T. Lonegrass, Finding Room For Fairness in Formalism – The Sliding Scale 

Approach to Unconscionability, 44 Loy. U. Chi. L. J. 1, 6 (2012). However, of these 

twelve courts, “five have further expanded the sliding scale approach to hold that a 

finding of unconscionability may rest on evidence of either procedural or substantive 

unconscionability without requiring evidence of both.” Id.

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See Razor v. Hyundai Motor Am., 854 N.E.2d 607, 622 (Ill. 2006) 

(“Unconscionability can be either ‘procedural’ or ‘substantive’ or a combination of both.”); 

Brewer v. Mo. Title Loans, Inc., 323 S.W.3d 18, 22 (Mo. 2010) (en banc), vacated on other 

grounds, 131 S. Ct. 2875 (2011) (mem.) (“Under Missouri law, unconscionability can be 

procedural, substantive or a combination of both.”); Cordova v. World Fin. Corp. of N.M., 

208 P.3d 901, 907-08 (N.M. 2009) (“While there is a greater likelihood of a contract’s being 

invalidated for unconscionability if there is a combination of both procedural and substantive 

unconscionability, there is no absolute requirement in our law that both must be present to 

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Furthermore, our Legislature has suggested that both forms of 

unconscionability are not required. For example, the Uniform Commercial Code 

provisions pertaining to leases state that a lease contract or any clause of a lease contract 

may be voided if it is either procedurally or substantively unconscionable.2 Likewise, the 

West Virginia Consumer Credit and Protection Act says that, regarding consumer credit 

sales, leases, or loans, a contract may be voided if it was either “induced by 

unconscionable conduct” or if the terms of the contract were unconscionable “at the time 

it was made.”3 

the same degree or that they both be present at all.”); Glassford v. BrickKicker, 35 A.3d 

1044, 1049 (Vt. 2011) (citing Val Preda Leasing, Inc. v. Rodriguez, 540 A.2d 648, 652 (Vt. 

1987)) (“The superior court was mistaken in assuming that the presence of procedural 

unconscionability is required to void a contract based on it containing unconscionable 

terms.”); Adler v. Fred Lind Manor, 103 P.3d 773, 782-83 (Wash. 2004) (en banc); 

(“Substantive unconscionability alone can support a finding of unconscionability.”). 

2 W.Va. Code § 46-2A-108 [1996] states, in part (with emphasis added): 

(1) If the court as a matter of law finds a lease contract 

or any clause of a lease contract to have been unconscionable 

at the time it was made the court may refuse to enforce the 

lease contract. . . . 

(2) With respect to a consumer lease, if the court as a 

matter of law finds that a lease contract or any clause of a 

lease contract has been induced by unconscionable conduct . . 

. the court may grant appropriate relief. 

(3) Before making a finding of unconscionability under 

subsection (1) or (2), the court, on its own motion or that of a 

party, shall afford the parties a reasonable opportunity to 

present evidence as to the setting, purpose, and effect of the 

lease contract or clause thereof, or of the conduct. 3 W.Va. Code § 46A-2-121 [1996] states, in part: 

(1) With respect to a transaction which is or gives rise to a 

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Justice Davis correctly finds that this issue was neither briefed by the 

parties nor needed to be addressed to resolve this case. However, in the future, I believe 

that this Court should revisit Syllabus Point 20 of Brown v. Genesis Healthcare Corp. 

[Brown I] and clarify this point of law. 

consumer credit sale, consumer lease or consumer loan, if the 

court as a matter of law finds: 

(a) The agreement or transaction to have been 

unconscionable at the time it was made, or to 

have been induced by unconscionable conduct, 

the court may refuse to enforce the agreement[.] 

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