In Brewer v. Missouri Title Loans, — S.W.3d —-, 2012 WL 716878 (Mo. 2012), the Missouri Supreme Court found that Concepcion permitted unconscionability analysis as to an automobile title lender’s effort to enforce a class action waiver in an arbitration clause. The Missouri Supreme Court held, in part, that the lender’s clause’s reservation of self-help remedies — often the title lender’s chief course of recourse — was one factor in the unconscionability analysis.
For these reasons, title cmopany is incorrect in its assertion that the majority opinion compels the conclusion that the federal act requires state courts to replace the essentially categorical Discover Bank rule requiring class arbitration with another categorical rule requiring individual arbitration in every case, irrespective of the application of generally applicable contract defenses specifically retained by the § 2 saving clause. Instead, analysis of whether a particular state contract defense is preempted because it “stand[s] as an obstacle to the accomplishment of the act’s objectives” depends on the factual posture of individual cases. . . . For these reasons—and as this Court also holds in Robinson v. Title Lenders, Inc., ––– S.W.3d –––– (Mo. banc 2012)(No. SC91728, decided concurrently with this case)— Concepcion permits state courts to apply state law defenses to the formation of the particular contract at issue on a case-by-case basis. Accordingly, this Court will analyze the issues in this appeal to determine if, under the factual record presented, Brewer has established a defense to the formation of the agreement’s arbitration clause. Because no party has requested remand, and because, unlike in Robinson, here the trial court did reach other factual issues in determining that the arbitration clause was unconscionable, the record is sufficient in this case for this Court to determine the conscionability of the arbitration clause. . . . In contrast, the agreement at issue in this case does not provide for informal complaint resolution. Arbitration is required for any dispute, at the cost of the customer, while the title company has a choice of simply repossessing the collateral by force or through suit in court rather than using arbitration. The title company never pays the costs of arbitration or attorney’s fees for the customer, even if the customer wins. The obstacle to dispute resolution posed by these provisions is illustrated by the simple fact that no customer has utilized the arbitration clause to recover. As arbitration is the only remedy, this means that no customer has obtained relief. As a result, far from fulfilling the purpose of the federal act of providing a prompt and informal method of resolving disputes, the arbitration clause here is itself “an obstacle to the accomplishment of the act’s objectives.”