FOURTH DIVISION
March 20, 2003

PRESIDING JUSTICE THEIS delivered the opinion of the court:

Defendant, Blockbuster, Inc.⁽¹⁾, appeals from an interlocutory order of the circuit courtdenying its motion to compel certain class action members to arbitrate their claims for relief fromunlawful penalties, unjust enrichment, breach of implied contract, and breach of express contract. Blockbuster contends that (1) those class members who signed membership agreements aftermid-August 2001 are bound to arbitrate their individual claims; (2) the cost of arbitration doesnot render the arbitration agreement invalid or preclude plaintiffs from vindicating their rights;and (3) the terms of the agreement barring class actions or class arbitration is not unconscionable.

BACKGROUND

On February 18, 1999, plaintiffs filed a class-action-styled complaint against Blockbusteralleging that it charged improper and excessive fees to its customers who returned videosuntimely or failed to return them. Thereafter, the circuit court certified the class to include (1) allUnited States residents who rented videos from Blockbuster who incurred late fees betweenFebruary 18, 1994, and the date this case is resolved; (2) all United States residents who rentedvideos from Blockbuster and were forced to purchase an unreturned video between February 18,1994, and the date this case is resolved; and (3) all entities that have done or are doing businessin the United States as Blockbuster at any time since February 18, 1994.

Simultaneously, numerous other state court class action lawsuits were filed throughoutthe country asserting similar causes of action on behalf of Blockbuster customers. On April 11,2001, Blockbuster entered into a nationwide settlement in the case of Scott v. Blockbuster, Inc.,No. D 162-535 (Jefferson County, Texas)(Scott). The Scott settlement class was defined toinclude "[a]ll members of Blockbuster who incurred an extended viewing fee or non-return feebetween January 1, 1992, and April 1, 2001." The settlement was finally approved in January2002. An appeal taken by some of plaintiffs' class representatives remains pending in the TexasAppellate Court.

On January 22, 2002, plaintiffs filed a first amended consolidated complaint. Therein,they acknowledged that unless the Scott settlement is reversed on appeal, the class will need tobe redefined. The complaint additionally alleges that in approximately mid-August 2001,Blockbuster began using a new membership application form for new members. Themembership application contains an arbitration agreement, which provides as follows:

"To fairly resolve any dispute between you and Blockbusterregarding your membership, account, fees, any transaction withBlockbuster, or any Blockbuster policies, you and Blockbusteragree that any claims of these types by either you or Blockbustershall be settled exclusively by binding arbitration governed by theFederal Arbitration Act and administered by the AmericanArbitration Association under its rules for the resolution ofconsumer-related disputes, or under other mutually-agreedprocedures. Because this method of dispute resolution is personal,individual, and provides the exclusive method for resolving suchdisputes, you further agree that you will not participate in a classaction or class-wide arbitration for any claims covered by thisagreement."

Plaintiffs attached the revised membership agreement to their amended complaint. Plaintiffsadditionally alleged that the representative plaintiffs of the class did not sign a membershipagreement containing an arbitration provision. Thus, questions remain regarding the extent ofthe claims that would proceed in court. Plaintiffs maintained that they may assert the followingclaims on behalf of blockbuster members: (1) all pre-settlement claims if Scott is reversed onappeal; (2) all pre-settlement claims of those members who opted out of the Scott settlement; (3)all post-settlement claims of members, including the representative class, who did not sign theAugust 2001 membership agreement; and (4) all post-settlement claims of members who signedthe August 2001 membership agreement if it is found to be invalid and unenforceable.

In response to the amended complaint, Blockbuster filed motions to dismiss pursuant tosections 2-615 and 2-619 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-615,2-619 (West 2000)). As part of its section 2-615 motion, Blockbuster argued, citing both theFederal Arbitration Act (9 U.S.C.