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b. Procedural Unconscionability Procedural unconscionability speaks to the fundamental fairness of the bargaining process, as opposed to terms of the contract, emphasizing things like fine print, misrepresentations, disparate bargaining power, and so on. These things tend to show that the party asserting unconscionability did not truly assent to the contract’s terms, despite objective indications of assent like signing a written agreement, but rather did so because she had no other meaningful choice. In this vein, procedural unconscionability often goes hand in hand with unfair surprise and oppression arising from unequal bargaining power. [ See Sanchez v. Valencia Holding Co., LLC , 353 P.3d 741 (Cal. 2015); Simpson v. MSA of Myrtle Beach, Inc. , 644 S.E.2d 663 (S.C. 2007); 2 Hawkland UCC Series §§ 2-302:2, 2-302:3, Westlaw (database updated June 2021).] Factors Considered in Evaluating Procedural Unconscionability Courts consider various factors in evaluating procedural unconscionability, including: the phrasing, clarity, and placement of the assertedly unconscionable terms; whether the terms were available to the party asserting unconscionability before she entered the contract; the parties’ relative sophistication; whether one would reasonably expect the challenged terms to appear in the type of transaction involved;
the parties’ relative bargaining power and ability to negotiate; and whether the party asserting unconscionability had other options.
[2 Hawkland UCC Series § 2-302:3, Westlaw (database updated June 2021).]
Facts Tending to Show Procedural Unconscionability Common facts tending to show procedural unconscionability include high-pressure tactics, unequal bargaining power, deceptive practices, misleading contractual language, and unequal sophistication or acumen between the parties. [ Capitol Discount Corp. v. Rivera , No. CV–6114–12/KI, 2013 WL 692940 (N.Y. Civ. Ct. 2013).] Note : Many parties, especially consumers, ordinarily do not read contracts of adhesion, at least not entirely. This fact may weigh against defendants in some cases. Even so, it by no means precludes a finding of unconscionability, especially if the party asserting unconscionability is a consumer. [ Compare Sanchez v. Valencia Holding Co., LLC , 353
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