Pub. 4 2013 Issue 3

fall 2013 9 West Virginia Banker I n June, the West Virginia Supreme Court of Appeals issued three decisions that bolster a defendant’s ability to enforce valid arbitration clauses. An ad- ditional opinion favoring enforcement of arbitration was issued by the United States Supreme Court. Credit Acceptance Corporation v. Front, Nos. 11-1646, 12-0545 (W. Va. June 19, 2013). In Credit Acceptance Corporation v. Front , the West Virginia Supreme Court of Appeals held for the first time that an order deny- ing a motion to compel arbitration is an interlocutory ruling that may be immediately appealed under the collateral order doctrine. Prior to this decision, a court’s refusal to enforce an agreement to arbitrate at the outset of litigation was not appealable until the end of the case, effectively eliminating a defendant’s ability to challenge the court’s adverse decision. Additionally, the Court observed that an arbitration agreement cannot be rendered procedurally unconscionable by events that occur after origination of the con- tract, such as when an arbitration forum becomes unavailable subsequent to the formation of the contract. The Court held that where an arbitration agreement names a forum for arbitration that be- comes unavailable, a court may appoint a substitute forum if the choice of forum was an “ancillary logistical concern,” rather than “integral” to the contract. Finally, the Court considered whether an agreement to arbitrate a claim under the West Virginia Consumer Credit and Protection Act is an unenforceable waiver of a consumer’s right to a jury trial under the Act’s anti-waiver provision. The Court concluded that the West Virginia statute could not be applied to invalidate consum- er arbitration agreements because a state law cannot target arbitration provisions for disfavored treatment. Price v. Morgan Financial Group, No. 12-1026 (W. Va. June 24, 2013). In Price v. Morgan Financial Group , the West Virginia Supreme Court of Appeals affirmed the enforcement of an arbitration agreement by a defendant that was not a party to the agreement. The arbitration provision extended its coverage to the contracting party’s “directors, officers and employees and to any Registered Representative,” and the Court held this language was broad enough to include the non-party defendant. The Court also found that, although the contract was not a negotiated contract, the arbitration provision was neither procedur- ally nor substantively unconscionable. The Court observed that the plaintiff was able to obtain the contracted-for services from another source, the plaintiff was an educated woman working as a teacher, the contract was not complex, the arbitration provision was expressly referenced directly above the signature line in capital letters, the arbitration provision was equally binding on both parties, and the costs of arbitrating were readily discoverable at the time the parties entered into the agree- ment. Salamie v. TD Ameritrade, Inc., and Salamie v. Conrad, No. 12-0634 (W. Va. June 24, 2013). In Salamie v. TD Ameritrade, Inc. , and Sa- lamie v. Conrad , the West Virginia Supreme Court of Appeals upheld a West Virginia Recent Decisions Enforcing Arbitration Provisions By Angela L. Beblo, Brienne T. Marco, and Sarah B. Smith, Spilman Thomas & Battle, PLLC For banking executives and in-house counsel, arbitration can be a preferable alternative to litigation to avoid costly trials and home-town advantages. In this article, we highlight four recent court decisions that affect the way arbitration clauses are enforced.  Arbitration Provisions — continued on page 10