A federal court in Illinois held that a potential award of attorney's fees available under the Fair and Accurate Transactions Act (FACTA) means that an arbitration agreement containing a class action waiver is not substantively unconscionable even if the amount of damages claimed is individually small.

In Harris v. DirecTV Group, Inc., No. 07 C 3650, 2008 WL 342973 (N.D. Ill. Feb. 05, 2008), William Harris brought a putative class action suit against DirecTV for allegedly including his credit card expiration date on a computer-generated receipt.

DirecTV moved to compel arbitration pursuant to the arbitration agreement within the service contract, which also contained a class action waiver. The Court rejected Harris's argument that the agreement was unconscionable.

First, the agreement was not procedurally unconscionable. Despite the fact that DirectTV was in a superior bargaining position to Harris, Harris had not "substantially changed his economic position".

Further, the Court presumed that he had a copy of the arbitration agreement since he was an established customer. And, finally, the arbitration agreement was conspicuously placed within the service agreement. See Bess v. DirecTV, Inc., 2007 Ill. App. LEXIS 757 (Ill. Appt. Ct. Jul. 2007).

Second, the agreement was not substantively unconscionable. The arbitration agreement disclosed the costs of arbitration.

Significantly, Harris had the opportunity of receiving reasonable attorney's fees under FACTA in addition to damages. See 15 U.S.C. § 1681n(a). Due to this opportunity, it was not "an absolute certainty that [Harris] would not be made whole." See Kinkel v. Cingular Wireless LLC, 857 N.E.2d 250, 263 (Ill. 2006).

Moreover, there was no allegation in this case of a scheme to defraud customers out of small amounts of money. Finally, the arbitration agreement in this case does not limit remedies available in arbitration.