The California Supreme Court’s decision in Fuentes v. Empire Nissan, Inc. resolves a growing split among the lower courts over whether tiny, hard‑to‑read print in an arbitration agreement counts as procedural unconscionability, substantive unconscionability, or both. For most of the last decade “fine‑print terms” and near‑illegible print in an arbitration agreements were treated as an indicator of substantive unfairness as well as procedural defects. More recently, the Fuentes Court of Appeal held that “tiny and unreadable print” was a problem only on the procedural side and should not be “double counted” as both procedural and substantive unconscionability. The California Supreme Court granted review to resolve this split and adopted the Fuentes Court of Appeal’s approach: a contract’s format, including small or blurry font, is generally relevant only to procedural unconscionability, not to the substance of its terms.

In Fuentes, Empire Nissan’s arbitration provision appeared as a single 900‑word paragraph, crammed into about three vertical inches, in “tiny, blurry font,” dense with legal jargon, statutory citations, and references to multiple agencies. The provision was purportedly presented to a job applicant as part of an application packet that she was given about five minutes to complete, and was under explicit time pressure to finish before a drug testing facility closed. She was not told there was an arbitration agreement in the packet, was not given an opportunity to ask questions, and did not receive a copy. The trial court described the document as “visually impenetrable” and “challeng[ing] the limits of legibility,” and used those features to support both a finding of “very high” procedural unconscionability and a “low to moderate” degree of substantive unconscionability.

The Supreme Court agreed that small, nearly unreadable print is powerful evidence of procedural unconscionability. It emphasized that procedural unconscionability focuses on the circumstances of contract formation – oppression and surprise arising from unequal bargaining power. In Fuentes, oppression was shown by the adhesive nature of the agreement, the employment context, the take‑it‑or‑leave‑it condition of employment, the rushed signing, and the lack of any real opportunity to review or negotiate. Surprise was heightened by the clause’s tiny, blurry font, its placement in a prolix printed form, and its complex, jargon‑heavy drafting. Together, these features created an “unusually high degree of surprise” and “significant oppression,” placing the case at the severe end of the procedural unconscionability spectrum and triggering the rule that only a relatively low degree of substantive unconscionability would be needed to render the agreement unenforceable.

At the same time, the Court firmly rejected the notion that illegible fine print is itself a substantive defect. Clarifying its earlier reference “fine‑print terms,” the Court explained that this phrase refers not to font size per se, but to substantively harsh or one‑sided provisions that are hidden from the nondrafting party – whether by small type, dense “block” text, placement on the back of a form, or other techniques. The “common theme,” the court wrote, is terms that are “both hidden and unfavorable to the nondrafting party.” On that understanding, the Fuentes Court held that “tiny print and almost illegible format” do not themselves establish substantive unconscionability; an otherwise fair, bilateral term is not rendered substantively unconscionable simply because it is hard to read. Font size and format, in other words, affect the procedural side of the analysis by contributing to surprise, but they do not alter the fairness of the actual obligations.

Practically, Fuentes tells employers that small, dense, barely legible arbitration clauses are problematic for two reasons – but only one of them is substantive. Unreadable formatting and rushed presentation substantially increase procedural unconscionability and lower the threshold of substantive unfairness needed to defeat enforcement, and they invite searching judicial review of the terms themselves. However, those formatting choices do not, standing alone, make the terms “overly harsh” or “unreasonably favorable” for substantive purposes; a mutual, even‑handed arbitration obligation is not invalid just because it appears in tiny print.

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