Summary
This Fourth Circuit opinion addresses whether a credit card agreement's unilateral change-in-terms clause renders the arbitration provision illusory under Maryland law. The court holds that contract formation challenges, including claims of illusoriness due to lack of consideration, are for the court to decide rather than an arbitrator. Applying Maryland law, the court finds the clause allows the lender to escape all obligations at will, thus lacking consideration and rendering the arbitration agreement unenforceable.
Topics
Practice areas
Questions Presented
- Whether the threshold issue of contract formation/illusoriness is for the court or the arbitrator.
- Whether the agreement's choice‑of‑law provision can be applied before determining whether the contract was formed.
- Whether the arbitration agreement is illusory under Maryland law because the change‑in‑terms clause lacks consideration.
Holdings
- The court holds that the threshold issue of contract formation is for the district court, not the arbitrator.
- The court holds that the choice‑of‑law clause cannot be applied because the contract’s formation must be decided first.
- The court holds that the arbitration agreement is illusory and unenforceable because the change‑in‑terms clause gives Continental unfettered discretion, providing no consideration.
Key quotations
“Consequently, the first question in any arbitration dispute must be: What have these parties agreed to?” (at 527)
“The change‑in‑terms clause here is so one‑sided as to deprive the purported contract of any meaningful idea of reciprocity that a contractual bargain is meant to embody.” (at 527)
Factual background
Continental Finance Company, a high‑interest lender, issued credit‑card agreements containing a unilateral "change‑in‑terms" clause that allowed it to modify any term at its sole discretion. Plaintiffs Johnson and Crider alleged violations of Maryland usury laws and argued the arbitration clause was illusory because the change clause eliminated any meaningful consideration.
Procedural history
The district court denied Continental's motions to compel arbitration of state law claims, finding the arbitration agreement illusory under Maryland law. Continental appealed.