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Strand v. U.S. Bank National Association ND3/31/2005
prevailing plaintiffs. We recognize that, due to the procedural posture of this case, there was a limited record on this issue and no full-blown evidentiary hearing was held. In answering the certified questions, however, we may consider only the facts as stated in the order of certification and accompanying documents.
[ ] Nor has Strand established that he will be left without an effective remedy if the "no class action" provision is enforced. The arbitration provision here requires that the arbitration take place in Strand's home jurisdiction and provides for advancement of fees and costs by the Bank. Furthermore, if Strand prevails in his claim against the Bank he will be entitled to an award of attorney fees. In Construction Assocs., the parties' agreement excluded the weaker party's substantive remedies otherwise available at law, and the "remedy" available under the contract, replacement of the defective product, was "useless" and "amount to nothing whatsoever." Construction Assocs., 446 N.W.2d at 244. Strand, however, retains all substantive remedies he would otherwise have without the "no class action" provision. Although the unavailability of a class action or class arbitration may make recovery of damages less convenient for the purported class as a whole, under the facts of this case the arbitration provision between Strand and the Bank creates a chance that Strand can be made whole through individual arbitration.
[ ] Unlike the plaintiff in Construction Assocs., the facts certified to us have failed to show that enforcement of the disputed contractual provision would leave Strand without an effective remedy. We therefore conclude Strand has failed to demonstrate that the "no class action" provision is substantively unconscionable.
D.
[ ] Because a showing of both procedural and substantive unconscionability is required to declare a contractual provision unconscionable and unenforceable, we conclude that, under the facts of this case, the "no class action" provision is not unconscionable. The answer to the first certified question is "no."
III.
[ ] The federal district court made resolution of the second certified question, relating to severability of the "no class action" clause, contingent on our resolution of the first question. The second question needed to be answered only if we first determined that the "no class action" provision was unconscionable. Because we have determined the "no class action" provision is not unconscionable, we need not address the second certified question.
[ ] Carol Ronning Kapsner
William F. Hodny, S.J.
Robert O. Wefald, D.J.
Benny A. Graff, S.J.
Gerald W. VandeWalle, C.J.
[ ] The Honorable Benny A. Graff, Surrogate Judge, the Honorable William F. Hodny, Surrogate Judge, and the Honorable Robert O. Wefald, D.J., sitting in place of Neumann, Maring, and Sandstrom, JJ., disqualified.
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