New v. Gamestop, Inc., No. 12–1371.

CourtSupreme Court of West Virginia
Writing for the CourtPER CURIAM:
Citation753 S.E.2d 62,232 W.Va. 564
PartiesCara NEW, Plaintiff Below, Petitioner v. GAMESTOP, INC. d/b/a GameStop; Aaron Dingess, Individually; and David Trevathan, Individually; Defendants Below, Respondents.
Docket NumberNo. 12–1371.
Decision Date06 November 2013

232 W.Va. 564
753 S.E.2d 62

Cara NEW, Plaintiff Below, Petitioner
v.
GAMESTOP, INC. d/b/a GameStop; Aaron Dingess, Individually; and David Trevathan, Individually; Defendants Below, Respondents.

No. 12–1371.

Supreme Court of Appeals of
West Virginia.

Submitted Sept. 24, 2013.
Decided Nov. 6, 2013.


[753 S.E.2d 65]



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 Runyan 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., 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 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).

[753 S.E.2d 66]

7. “ ‘A determination of unconscionability 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 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 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. 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).


Richard W. Walters, Esq., Brian L. Ooten, Esq., Shaffer & Shaffer, PLLC, Madison, WV, for Petitioner.

[753 S.E.2d 67]

Allyson N. Ho, PHV, Craig A. Stanfield, PHV, Morgan, Lewis & Bockius, LLP, Houston, TX, Sam S. Shaulson, PHV, Morgan, Lewis & Bockius, LLP, New York, NY, Joseph M. Price, Esq., Benjamin W. Price, Esq., Robinson & McElwee PLLC, for Respondents.


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 Trevathan (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 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...

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  • Horizon Ventures of W. Va., Inc. v. Am. Bituminous Power Partners, L.P., No. 19-0171
    • United States
    • Supreme Court of West Virginia
    • April 1, 2021
    ...Messer v. Huntington Anesthesia Group, Inc. , 222 W. Va. 410, 418, 664 S.E.2d 751, 759 (2008) [(per curiam)].New v. GameStop, Inc. , 232 W. Va. 564, 572-73, 753 S.E.2d 62, 70-71 (2013) (per curiam) (footnote omitted).15 As we held in Syllabus point 10 of Dan Ryan Builders ,[i]n assessing wh......
  • Mey v. DirecTV, LLC, No. 18-1534
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • August 7, 2020
    ...86 (emphases added). That acknowledgement suffices to demonstrate her assent to the arbitration agreement. See New v. GameStop, Inc. , 232 W.Va. 564, 753 S.E.2d 62, 72–73 (2013) (employee agreed to arbitrate by virtue of signing acknowledgement of arbitration policy and continuing employmen......
  • United States ex rel. TBI Invs., Inc. v. BrooAlexa, LLC, Civil Action No. 2:14–cv–29074.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • August 10, 2015
    ...included ADR Clause due to any purported lack of sophistication or other impairment. (See ECF No. 11 at 7–8.); cf. New v. GameStop, Inc., 232 W.Va. 564, 753 S.E.2d 62, 76 (2013) (finding that an agreement was not procedurally unconscionable because, in part, "the petitioner ... failed to of......
  • Kirby v. Lion Enters., Inc., No. 13–0379.
    • United States
    • Supreme Court of West Virginia
    • March 7, 2014
    ...at 556 (citing First Nat'l Bank of Gallipolis v. Marietta Mfg. Co., 151 W.Va. 636, 153 S.E.2d 172 (1967); see New v. GameStop, Inc., 232 W.Va. 564, 573, 753 S.E.2d 62, 71 (2013) (“West Virginia contract law requires mutual assent to form a valid contract.... “ ‘In order for this mutuality t......
  • Request a trial to view additional results
33 cases
  • Horizon Ventures of W. Va., Inc. v. Am. Bituminous Power Partners, L.P., No. 19-0171
    • United States
    • Supreme Court of West Virginia
    • April 1, 2021
    ...Messer v. Huntington Anesthesia Group, Inc. , 222 W. Va. 410, 418, 664 S.E.2d 751, 759 (2008) [(per curiam)].New v. GameStop, Inc. , 232 W. Va. 564, 572-73, 753 S.E.2d 62, 70-71 (2013) (per curiam) (footnote omitted).15 As we held in Syllabus point 10 of Dan Ryan Builders ,[i]n assessing wh......
  • Mey v. DirecTV, LLC, No. 18-1534
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • August 7, 2020
    ...86 (emphases added). That acknowledgement suffices to demonstrate her assent to the arbitration agreement. See New v. GameStop, Inc. , 232 W.Va. 564, 753 S.E.2d 62, 72–73 (2013) (employee agreed to arbitrate by virtue of signing acknowledgement of arbitration policy and continuing employmen......
  • United States ex rel. TBI Invs., Inc. v. BrooAlexa, LLC, Civil Action No. 2:14–cv–29074.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • August 10, 2015
    ...included ADR Clause due to any purported lack of sophistication or other impairment. (See ECF No. 11 at 7–8.); cf. New v. GameStop, Inc., 232 W.Va. 564, 753 S.E.2d 62, 76 (2013) (finding that an agreement was not procedurally unconscionable because, in part, "the petitioner ... failed to of......
  • Kirby v. Lion Enters., Inc., No. 13–0379.
    • United States
    • Supreme Court of West Virginia
    • March 7, 2014
    ...at 556 (citing First Nat'l Bank of Gallipolis v. Marietta Mfg. Co., 151 W.Va. 636, 153 S.E.2d 172 (1967); see New v. GameStop, Inc., 232 W.Va. 564, 573, 753 S.E.2d 62, 71 (2013) (“West Virginia contract law requires mutual assent to form a valid contract.... “ ‘In order for this mutuality t......
  • Request a trial to view additional results

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