Labor & Employment Law

Bill stuffer cannot add an arbitration clause

When Santana Kortum-Managhan signed up for a credit card with the Herbergers department store, the agreement did not include an arbitration clause. However, it did contain a provision purporting to allow Herbergers to unilaterally change the agreement as it saw fit and specifying that a cardholder?s continued use of their Herbergers? credit card or other services constituted agreement to Herbergers? unilateral change in terms.

Later, Herbergers mailed out a notice (known as a "bill stuffer") in Kortum-Managhan's monthly bill. This document contained various changes in the terms of the agreement including the addition of an arbitration clause.

When Kortum-Managhan brought suit alleging violation of federal and state statutes, the store moved to compel arbitration. The trial court entered an order compelling arbitration, but the Montana Supreme Court reversed.

Kortum-Managhan v. Herbergers (Montana 03/17/2009) (5-1 vote).

The court cited a Montana constitutional provision protecting the rights to trial by jury and access to courts, and labeled these "fundamental constitutional rights that deserve the highest level of court scrutiny and protection." The court said "the waiver of a fundamental constitutional right must be proved to have been made voluntarily, knowingly and intelligently."

The court held that the store failed to show that the cardholder had "deliberately, understandingly and intelligently waived [her] fundamental constitutional rights to trial by jury and access to the courts."

The court said that the bill stuffer "is ambiguous and misleading because it seeks to waive the cardholder?s fundamental constitutional rights with a clause blended into the end of a document when bold type, capital letters and larger fonts are used to draw attention to other clauses."

"Based on the foregoing, we conclude that making a change in a credit agreement by way of a ?bill stuffer? does not provide sufficient notice to the consumer on which acceptance of the unilateral change to a contract can be expressly or implicitly found."

The DISSENT said, "people should read their mail - especially when it comes from their credit card companies."

Full post as published by Arbitration Blog on March 19, 2009 (boomark / email).