FISHER, P.J.Ch.

The common law doctrine of unconscionability has proved difficult to define and has been rarely invoked undoubtedly because, other than in exceptional cases, it has been largely viewed as grossly interfering with the freedom to contract. Notwithstanding this philosophical discomfort, the surrounding circumstances regarding defendant’s desire to sell her property provided fertile ground for, and did in fact result in, a one-sided agreement which this court finds unconscionable.1

I

Defendant Phyllis E. Ropes (“Mrs.Ropes”) and her husband, John M. Ropes, Jr., were the owners of waterfront property in Brielle, New Jersey. This was their principal residence although they also owned a winter home in the Cayman Islands. It was in the Cayman Islands that John M. Ropes, Jr. died suddenly on January 3,2000.

Grief-stricken, Mrs. Ropes, then 81 years old, took a number of rapid and inconsistent steps regarding the Brielle property. Apparently, not long before his death, it had been her and Mr. Rope’s desire to sell the property. With his death, Mrs. Ropes almost immediately executed two separate powers of attorney on the same day — January 13, 2000; one in favor of third-party defendant Marlene Van Noord and the other in favor of Linda Dowhan. On January 26, 2000 another power of attorney, prepared by plaintiff Sitogum Holdings, Inc. (“Sitogum”), was also *558executed by Mrs. Ropes in favor of Ms. Van Noord. The next day, Ms. Van Noord executed an option to purchase the Brielle property in favor of Sitogum.2 This option contract, which Mrs. Ropes now claims is unconscionable, provided Sitogum — an entity which would not even be incorporated for another six days — with the right to purchase the Brielle property, within eight months, for $800,000. Sitogum agreed to pay $1000 per month for this option.

A February, 2000 appraisal suggested the Brielle property was worth between $1,500,000 and $1,750,000. Apparently recognizing the windfall about to come its way, Sitogum claims to have prepaid six of its monthly $1000 payments on or about February 28, 2000.3

Apparently, at the same time, efforts were being made to market the property through Mrs. Ropes’ other attorney-in-fact. Sitogum may have become aware of this since it recorded a “Memorandum of Option to Purchase Real Property” on or about April 11, 2000. On April 13, 2000, Mrs. Ropes executed a contract for the sale of the Brielle property to another party for $1,500,000. Upon learning of this, Sitogum, on April 28, 2000, exercised its option to purchase. Notwithstanding, Mrs. Ropes advised that she would not transfer the property to Sitogum. As a result, on May 19, 2000, Sitogum filed this suit to compel specific performance of the January 27, 2000 option agreement.4 Mrs. Ropes now moves for summary judgment.

*559II

Mrs. Ropes recognizes that the claim of her alleged capacity to contract or the voluntariness of the power of attorney elude resolution by way of summary judgment.5 Other contentions also cannot be resolved on this motion.6 The only issue which is ripe for summary judgment is Mrs. Ropes’ claim that the option contract is unconscionable.

A

The power of a court to relieve parties from unconscionable contracts has ancient roots.7 In Earl of Chesterfield v. Janssen, *560plaintiff borrowed 5000 pounds in exchange for his agreement to pay 20,000 pounds upon the death of his then 70-year old grandmother. In referring to the agreement as “uneonscientious,” the Chancellor described the power to set it aside, which still has traces in the doctrine currently applied by modem courts:

It may be apparent from the intrinsic nature and subject of the bargain itself; such as no man in his sense and not under a delusion would make on the one hand, and as no honest man would accept on the other; which are unequitable and uneonscientious bargains, and of such even the common law take notice.

[2 Ves. Sr. 125, 155, 28 Eng. Rep. 82, 100 (1750).]

The Supreme Court of the United States recognized this common law authority in the nineteenth century 8 and courts of equity have traditionally refused their assistance to parties who obtain such one-sided bargains.9

Notwithstanding its venerable history, the application of the doctrine has always been viewed as controversial and it would appear, judging from the paucity of reported decisions, that its use has been infrequent. The reason for this is undoubtedly over a heightened concern that its uncertain parameters “increase[ ] the potential for unreasoned or arbitrary decisions based on personal value judgments.” Hillman, “Debunking Some Myths about Un-conscionability: A New Framework for U.C.C. Section 2-302,” 67 *561Cornell L.Rev. 1, 15 (1981). Courts normally examine challenges to the validity of contracts by first recognizing the parties’ freedom to contract and by applying the principle that the execution of a contract manifests an intent to be bound by all its terms. See, e.g., Restatement of Contracts, § 70 (1932). As a result, the principle that courts “should not rewrite contracts,” is often intoned in such disputes. See, e.g., Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43, 161 A.2d 717 (1960); Carroll v. United Airlines, Inc., 325 N.J.Super. 353, 358-59, 739 A.2d 442 (App.Div.1999); Chemical Bank v. Bailey, 296 N.J.Super. 515, 527, 687 A.2d 316 (App.Div.), certif. denied, 150 N.J. 28, 695 A.2d 671 (1997). Regardless, however, of the unease which its potential use produces, the doctrine of unconscionability has a place in our jurisprudence so that grossly unfair or one-sided contracts may be properly “policed.” White & Summers, Uniform Commercial Code (4th ed., 1995) 206; Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 549 P.2d 903 (1976).

Considering the rapid evolution of the implied covenant of good faith and fair dealing in New Jersey10 — allowing for the watchful examination of the bona fides of the performance of valid contracts — it is plain to see that the application of the doctrine of unconscionability to the bona fides of the creation of contracts should not be viewed as a relic, as labelled by one commentator. Brown, “The Uncertainty of U.C.C. Section 2-302: Why Unconscionability Has Become A Relic,” 105 Com. L.J. 287 (2000). In appropriate cases, the doctrine of unconscionability provides a *562more than proper and valid basis for interdicting an inequitable result which would otherwise flow from the cold enforcement of the terms of a contract.

B

Besides existing at common law, the doctrine of unconscionability was included within the Uniform Commercial Code, becoming, as Professor Hawkland said, “undoubtedly the most controversial section in the entire Code.” Hawkland, A Transactional Guide to the U.C.C., Vol. I, § 1.16 at p. 44 (1964). The Uniform Commercial Code (“the Code”) handles the issue in two interesting ways. First, the Code “assigns the issue of uneonseionability exclusively to the judge.” White & Summers, Uniform, Commercial Code (2d ed.,1980) 151. Accord, County Asphalt, Inc. v. Lewis Welding & Eng. Corp., 444 F.2d 372 (2d Cir.1971); Fleming Companies, Inc. v. Thriftway Medford Lakes, Inc., 913 F.Supp. 837 (D.N.J.1995); Bishop v. Washington, 331 Pa.Super. 387, 480 A.2d 1088 (1984); Smith v. Price’s Creameries, 98 N.M. 541, 650 P.2d 825 (1982). Second, the Code provision contains no helpful definition or parameters, stating only:

If the court as a matter of law finds the contract of any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result. [N.J.S.A. 12A:2 — 302(1).]

The Code’s official comments, intended to explain the meaning of this provision, also do not lend any great insight into what constitutes an unconscionable contract. Rather, the comment states that the “basic test” requires an examination into the general commercial background and seeks the “prevention of oppression and unfair surprise and not of disturbance of allocation of risks because of superior bargaining power.”

The leading commentators refer to section 2-302 and the official comments as “unintelligible and abstract.” Leff, “Unconscionability and the Code — The Emporer’s New Clause, 115 U. Pa. L.Rev. 485, 488-89 (1967). Professors White and Summers observed that

*563Experimentation with even a single ease shows this litmus to be useless; in no sense is the comment an objective definition of the word. It is simply a string of hopelessly subjective synonyms Iadened with a heavy “value” burden: “oppression,” “unfair,” or “one-sided.” [White & Summers, nv.pra, at 151.]

See also, Spanogle, “Analyzing Unconscionability Problems,” 117 II. Pa. L.Rev. 931, 942 (1969) (“The terms ‘unfair surprise’ and ‘oppression’ are no more concretely definable than the term ‘unconscionable’ so the Comment seems to offer slogan words rather than an explanation of the purposes behind the statute”).11

While this criticism may be accurate, in this court’s view it erroneously suggests that the imprecise defining of uneonsciona-bility is a weakness. In short, the critics’ “reproof is something too round.” Shakespeare, Henry V: 4.1.202 (1598-99). Unquestionably the common law rule, the Code’s controversial section 2-302 and the Restatement’s descriptions are general and abstract, but they also possess wisdom — the wisdom of understanding that the bright-line rule sought by the leading commentators is not only utterly elusive but also quite undesirable.12 Instead, the erecting of parameters has been left to the courts to consider in light of their general experience with contract disputes and upon an understanding of the particular facts of each case. In short, the lawmakers undoubtedly anticipated that the skeletal uncon-scionability framework would be filled out through case-by-case determinations. WTiile the risk of defining the doctrine through *564such a ease-by-ease approach is the possible loss of restraint and consistency, the advantage is a device inherently governed by the particular circumstances of each case measured against the experiences of past and present judges, the lifeblood of the common law.

C

Raising other questions about uneonscionability is the fact that this case-by-case process, which began in earnest in the mid-1960’s, slowed soon thereafter. Most of the decisions of note concerning the Code’s uneonscionability provision took place in the District of Columbia, New York and New Jersey. Unlike the present case, those decisions generally involved contracts where, due to unsophistication or lack of education, the consumer entered into a grossly unfair agreement. White & Summers, supra, at 149-60. The most important of these was Williams v. Walker-Thomas Furniture Co., 121 U.S.App.D.C. 315, 350 F.2d 445 (D.C.Cir.1965), where the consumer purchased on installment a number of household items at different times. A provision in the contract cross-collateralized all past and present purchases so that no item was ever fully paid off until the last payment was made on the last item. When a default occurred the seller sought to repossess everything. The court found this unconscionable because of an “absence of meaningful choice” at the inception of the contract coupled with contractual terms “unreasonably favorable to the other party.” Id. at 449.

For the most part, the uneonscionability cases follow Williams v. Walker-Thomas and look for two factors: (1) unfairness in the formation of the contract, and (2) excessively disproportionate terms. Professor Leff labelled these two elements as “procedural” and “substantive” uneonscionability. Leff, supra, 115 U. Pa. L.Rev. at 487. The first factor — procedural unconseionability — can include a variety of inadequacies, such as age, literacy, lack of sophistication, hidden or unduly complex contract terms, bargaining tactics, and the particular setting existing during the contract formation process. See, e.g., Gillman v. Chase Manhattan Bank, 73 N.Y.2d 1, 537 N.Y.S.H 787, 534 N.E.2d 824 *565(1988); Complete Interiors, Inc. v. Behan, 558 So.2d 48 (Fla.App.), review denied, 570 So.2d 1303 (Fla.1990). The second factor— substantive unconscionability — simply suggests the exchange of obligations so one-sided as to shock the court’s conscience. See, e.g., State ex rel. Lefkowitz v. ITM, Inc., 52 Misc.2d 39, 275 N.Y.S.2d 303 (Sup.Ct.1966) (purchase price/market value ratio approximately 2]é times); American Home Improvement, Inc. v. MacIver, 105 N.H. 435, 201 A.2d 886 (1964) (2½ times); Toker v. Perl, 103 N.J.Super. 500, 247 A.2d 701 (Law Div.1968), aff'd on other grounds, 108 N.J.Super. 129, 260 A.2d 244 (App.Div.1970) (2½ times).

Most courts have looked for a sufficient showing of both factors in finding a contract unconscionable. See, e.g., Williams v. Walker-Thomas, supra; Patterson v. Walker-Thomas Furniture, 277 A.2d 111 (D.C.1971); Mobile Am. Corp. v. Howard, 307 So.2d 507, 508 (Fla.Dist.Ct.App.1975); K.D. v. Education Testing Service, 87 Misc.2d 657, 386 N.Y.S.2d 747 (Sup.Ct.1976); Truta v. Avis Rent A Car System, Inc., 193 Cal.App.3d 802, 238 Cal.Rptr. 806 (1987); Adams v. American Cyanamid Co., 1 Neb.App. 337, 498 N.W.2d 577 (1992). Other courts have been satisfied merely by proof of substantive unconscionability, i.e., an excessively disproportionate exchange of material promises. See, e.g., Ahern v. Knecht, 202 Ill.App.3d 709, 150 Ill.Dec. 660, 563 N.E.2d 787, 792 (1990) (“[g]ross excessiveness of price alone can make an agreement unconscionable”); MacIver, supra, 105 N.H. 435, 201 A.2d 886; Frostifresh Corp. v. Reynoso, 52 Misc.2d 26, 274 N.Y.S.2d 757 (Dist.Ct.1966), rev’d as to damages only, 54 Misc.2d 119, 281 N.Y.S.2d 964 (App.Div.1967); Toker v. Perl, supra, 103 N.J.Super. 500, 247 A.2d 701; Toker v. Westerman, 113 N.J.Super. 452, 274 A.2d 78 (Dist.Ct.1970).13 Still other courts have determined that the two elements need not have equal effect but work together,

*566creating a “sliding scale” of unconscionability. Funding Systems Leas. Corp. v. King Louie Intern., 597 S.W.2d 624, 634 (Mo.Ct. App.1979) (“if there exists gross procedural unconscionability then not much be needed by way of substantive unconscionability, and that the same ‘sliding scale’ be applied if there be great substantive unconscionability but little procedural unconscionability”); Tacoma Boatbuilding, Inc. v. Delta Fishing Co., 28 UCC Rep. Serv. 26, 1980 WL 98403 n. 20 (W.D.Wash.1980) (“The substantive/procedural analysis is more of a sliding scale than a true dichotomy”); Spanogle, supra, 117 U. Pa. L.Rev. at 950 (if a “court considered the terms especially harsh, only a slight procedural abuse would be necessary”); cf., Campbell Soup Co. Wentz, supra, 172 F. 2d 80.14

D

In Kugler v. Romain, 58 N.J. 522, 279 A.2d 640 (1971), the Court considered the validity of contracts for the door-to-door sale of education books and materials for two and a half times a reasonable price. Speaking for the Court, Justice Francis observed, as discussed earlier, that unconscionability is not defined by the Code, and described unconscionability as

an amorphous concept obviously designed to establish a broad business ethic. The framers of the Code naturally expected the courts to interpret it liberally so as to effectuate the public purpose, and to pour content into it on a case-by-ease basis. In that way a substantial measure of predictability will be achieved and professional sellers of consumer goods as well as draftsmen of contracts for them sale to ordinary consumers will become aware of the abuses the court have declared unacceptable and will avoid them. The intent of the clause is not to erase the doctrine of freedom of contract, but to make realistic the assumption of the law that the agreement has resulted from real bargaining between parties who had freedom of choice and understanding and ability to negotiate in a meaningful fashion. Viewed in that sense, freedom to contract survives, but marketers of *567consumer goods are brought to an awareness that the restraint of uneonseionability is always hovering over their operations and that courts will employ it to balance the interests of the consumer public and those of the sellers.

[Id. at 543-44, 279 A.2d 640.]

While the Court did not refer to procedural and substantive uneonseionability in those terms, there is little question but that the Court acknowledged the importance of both: “We have no doubt that an exorbitant price ostensibly agreed to by a purchaser of the type involved in this case — but in reality unilaterally fixed by the seller and not open to negotiation — constitutes an unconscionable bargain from which such a purchaser should be relieved.” Id. at 544-45, 279 A.2d 640. Within that statement, the Court included not only the need for proof of an “exorbitant price” but also the presence of a “purchaser of the type involved in this case” (i.e., a financially distressed person), and a contract “unilaterally fixed” and “not open to negotiation.” In short, the Court clearly included both the procedural and substantive unconseiona-bility concepts.

Since Kugler v. Romain, nothing has emanated from our courts, by way of published decisions, which would suggest any change or modification in that approach. Rather, the courts have repeatedly emphasized that a case-by-case approach would “pour content” into the meaning of “uneonseionability.” Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 472, 541 A.2d 1063 (1988); Associates Home Eq. Servs. v. Troup, 343 N.J.Super. 254, 278, 778 A.2d 529 (App.Div.2001).

The one aspect which went unmentioned in Kugler v. Romain was whether the two factors of procedural and substantive uncon-scionability operate on the sliding scale suggested by a few courts (and mentioned above). There is a good deal of sense to the adoption of such an approach. The clear import of the doctrine of uneonseionability has been its flexibility or, as Justice Francis said in Kugler v. Romain, its “amorphous” nature. 58 N.J. at 543, 279 A.2d 640. That being so, this court fails to see why such a claim should be barred if some unknown barrier for both factors is not surpassed instead of allowing such a claim to succeed when one factor is greatly exceeded, while the other only marginally so.

*568III

Against this flexible standard, the court must canvass the factual record to determine whether the option contract was the product of both procedural and substantive uneonscionability. Since the factual contentions of the parties are not in dispute— except for the ultimate fact as to whether this contract was unconscionable — and since both parties acknowledged during oral argument they had no other facts or information to provide on this issue, the matter is ripe for summary judgment.15

A

The concept of procedural uneonscionability arises in this ease in an unusual way. That is, Mrs. Ropes’ situation does not fit the pattern seen in most of the cases cited above. She was not financially vulnerable nor does it appear she was either illiterate or of limited education. But, the events in question came immediately upon her husband’s unexpected death and, thus, it is fair to say that Mrs. Ropes was vulnerable to an unfair transaction, albeit in a different sense from the consumer in Williams v. Walker-Thomas and most other such cases. Certainly, the law,16 and particularly courts of equity,17 have shown special solicitude to persons of Mrs. Ropes’ age and situation.

*569Also, while it may have been her own voluntary way of approaching the sale of her Brielle property, Mrs. Ropes was not directly involved in the transaction because she had given a power of attorney to Ms. Van Noord. While it is recognized that the question of Mrs. Ropes’ competency or vulnerability to influence cannot be resolved on this motion, the fact that more than one power of attorney was executed at the same time18 adds further procedural irregularities to the transaction. In addition, while Sitogum had the assistance of counsel (indeed, Sitogum appears to be made up of a consortium of attorneys), neither Mrs. Ropes nor Ms. Van Noord appeared to have received any sound advice from counsel. While counsel on the Cayman Islands assisted in the preparation and execution of certain documents, there admittedly was no advice rendered as to the appropriate steps to be taken in securing the highest and best price. And the rationale behind simultaneously appointing two different attorneys-in-fact, as occurred here, both with the power to sell the same property on Mrs. Ropes’ behalf — with the potential, for different contracts concerning the same property — has not been explained or justified.

After communications with a Florida attorney regarding the sale of the Brielle property, Ms. Van Noord received yet another form of a power of attorney and a proposed option contract. Ms. Van Noord claims to have brought these papers to Mrs. Ropes, who “appeared to be nervous but certainly seemed to know what she was doing and what she wanted to do.” A few days later, according to Ms. Van Noord, she received a telephone call from Mrs. Ropes indicating that she wanted to sell the property. They both went to the office of a second Cayman Islands attorney. No explanation has been offered to explain why they did not return to *570the Cayman Islands attorney they saw a few days earlier. Mrs. Ropes signed yet another power of attorney, apparently in the form proposed by Sitogum’s Florida attorney. For reasons, also not explained, Ms. Van Noord did not then sign the option contract but did so the next day.19 Ms. Van Noord then sent both the January 25 power of attorney and the January 26 option contract to the Florida attorney. In the same time frame, Mrs. Ropes’ other attorney-in-fact reached an agreement with a different buyer.

So many questions arise from these events. Most notable is the curious fact that Mrs. Ropes did not sign the option contract, but only signed a power of attorney which authorized Ms. Van Noord to sign the option contract. Why would she first sign a power of attorney in favor of Ms. Van Noord on one day, in the presence of an attorney, allowing Ms. Van Noord to sign an option contract the next day, apparently outside the presence of an attorney, when, according to Ms. Van Noord, the option contract had already been seen and reviewed by Mrs. Ropes? Clearly, if Ms. Van Noord’s version is accurate, the events in question must be found to be quite irregular. And, most incredibly, nearly all these events appeared to occur in the presence of attorneys apparently engaged to assist in Mrs. Ropes’ efforts to sell the Brielle property. Accepting as true all the facts asserted by Sitogum in opposition to this motion, the court must conclude that the transactions in question, leading up to the creation of the option contract, were most unusual and made in the absence of the meaningful representation of counsel. Neither Mrs. Ropes nor those acting on her behalf obtained the type of zealous and careful advocacy required by aged persons or, for that matter, any other person in Mrs. Ropes’ situation.20 While the present record does *571not yet suggest sufficient irregularity about the procedural events as to rise to the level of fraud, at best Mrs. Ropes’ attorney-in-fact exhibited only some desultory interest in obtaining fair value for the property. The court is satisfied that a sufficient degree of procedural unconseionability is present to permit examination into the substantive fairness of the contract.

B

Most startling about this transaction is the size of the purchase price locked in by the option contract. As indicated, Ms. Van Noord entered into the option contract without having engaged professional assistance for determining the value of the Brielle property. As a result, the price set by the option contract was $800,000, a figure apparently discussed and considered by Mrs. Ropes’ husband prior to his untimely death. However, as later revealed, the Brielle property’s true value was approximately twice that amount. An appraisal rendered by Diane Turton Realtors, at the request of Mrs. Ropes’ current counsel, opined that the value of the property ranged between $1,500,000 and $1,750,000 and, in fact, the property was ultimately sold for $1,500,000. The great disparity between the $800,000 at which Sitogum had gained the right to purchase the property for and the later appraisal and the ultimate sale of the property to others for nearly twice that much demonstrates the substantive unconscionability of the option contract.

In seeking to defeat the claim of substantive unconseionability, Sitogum observes that Ms. Van Noord believed Mrs. Ropes was more concerned about disposing of the property than the price. In her answers to interrogatories, Ms. Van Noord swore to the following facts:

*572[Mrs. Ropes] was adamant that she wanted the “Brielle property off my back.” [Ms. Van Noord] counseled [Mrs. Ropes] in the presence of everyone to not do anything rash, to be patient. [Mrs. Ropes] kept stating that she wanted the property off her back, regardless of the content of house — regardless of the price— just sell it. [Ms. Van Noord] accompanied [Mrs. Ropes] to at least three or four meetings with Mr. Broadbent [the first of the two Cayman Island attorneys mentioned earlier]. During each of those conversations, I remember that there was a desire by [Mrs. Ropes] to get rid of, to just sell the Brielle property in New Jersey.

If those facts are true — as the court presently assumes — it becomes apparent that Ms. Van Noord did not act consistently with that goal. Not only did she obligate Mrs. Ropes to sell for approximately half the property’s value, but she failed to “get the property off’ Mrs. Ropes’ back. Instead, Ms. Van Noord entered into an option contract which had the potential of tying up the property for eight months, without any guarantee of it actually being sold. Within that eight month period, Sitogum could unilaterally determine whether it would purchase the property; if Sitogum chose to walk away, Mrs. Ropes would be left where she started. And, if Sitogum decided to purchase within the initial eight month period, the transaction need not actually occur for yet another 90 days.21 So, the result of the option contract was to require Mrs. Ropes to potentially wait for as long as 11 months to be “rid” of the property at an unreasonably low price. The contention that this option contract is not unconscionable because Mrs. Ropes allegedly did not care about the price (so long as it was at least $800,000) if the property could be gotten rid of quickly is proved fallacious in light of the terms of the option contract. And the option contract appears all the more unconscionable when *573it is observed that Mrs. Ropes received no consideration for tying up the property for potentially eight months (and possibly eleven months) if Sitogum ultimately decided to purchase because the option payments — -which were either never sent, sent but not received, or received by Ms. Van Noord but lost, purloined, or at least never given to Mrs. Ropes22 — were to be deducted from the purchase price. On the other hand, if Sitogum determined not to exercise the option, then Mrs. Ropes would only have benefitted to the meagre tune of $1000 per month,23 and still would not have been rid of the property.

While the existing case law does not precisely define what exchange of promises might be classified as “substantively unconscionable,” certainly a price $700,000 less than what the property ultimately sold for meets this court’s definition of uneonscionability-

IV

For the foregoing reasons, Mrs. Ropes’ motion for summary judgment will be granted, declaring the option contract void ab initio. While questions about the unconscionability of contracts normally would suggest the presence of factual disputes, it seems clear, in accepting the truth of Sitogum’s allegations and in light of the parties’ acknowledgement that there are no other sources of factual information known to them, that summary judgment is available at this stage of the litigation. This seems particularly *574trae considering the fact that determinations of unconscionability are matters left exclusively to the court for resolution.

An appropriate order has been entered.

OPINION

LASTER, Vice Chancellor.

Defendant National Financial, LLC (“National”) is a consumer finance company that operates under the trade name Loan Till Payday. In May 2013, National loaned $200 to plaintiff Gloria James (the “Disputed Loan”). National described the loan product as a “Flex Pay Loan.” In substance, it was a one-year, non-amortizing, unsecured cash advance.

The terms of the Disputed Loan called for James to make twenty-six, bi-weekly, interest-only payments, of $60, followed by a twenty-seventh payment comprising both interest of $60 and the original principal of $200. The total repayments added up to $1,820, representing a cost of credit of $1,620. According to the loan document that National provided to James, the annual percentage rate (“APR”) for the Disputed Loan was 838.45%.

James defaulted. After National rejected her request for a workout agreement, she filed this action seeking to rescind the Disputed Loan. She proved at trial that the Disputed Loan was unconscionable, resulting in an order of rescission. She also proved that National violated the federal Truth in Lending Act, resulting in an award of statutory damages plus attorneys fees and costs.'

I. FACTUAL BACKGROUND

Trial took place on September 21, 22, and 24, 2015. The parties submitted seventy-two exhibits, introduced live testimony from six fact witnesses, called two expert witnesses, and lodged five depositions. The following facts were proven by a preponderance of the evidence.

A. Hardworking But Poor

James is a resident of Wilmington, Delaware. From 2007 through 2014, James worked in the housekeeping department at the Hotel DuPont. In May 2013, when she obtained the Disputed Loan, James earned $11.83 per hour. As a part-time employee, her hours varied. On average, after taxes, James took home approximately $1,100 per month.

James’ annualized earnings amounted to roughly 115% of the federal poverty line, placing her among what scholars call the working poor.1 Contrary to pernicious stereotypes of the poor as lazy, many work extremely hard.2 James exemplified this attribute. She got her first job at age thirteen and has been employed more or less continuously ever since. Her jobs have included stints in restaurants, at a gas station, as a dental assistant, as a store clerk, and at a metal plating company. In *8042007, she obtained her position with the Hotel DuPont. She was laid off on December 31, 2014, when the hotel reduced its part-time staff.

B, James’ Use Of Credit

James is undereducated and financially unsophisticated. She dropped out of school in the tenth grade because of problems at home. Approximately ten years later, she obtained her GED.

Around the same time she obtained her position with the Hotel DuPont, James attempted to improve her skills by enrolling in a nine-month course on- medical billing and coding. For seven months, she worked from 8:00 a.m. to 4:00 p.m. at the hotel, then attended classes starting at 5:00 p.m. She was also taking care of her school-age daughter. Two months before the end of the program, the schedule became too much and she dropped out. James thought she received a grant to attend the program, but after dropping out she learned she actually had taken out á student loan. She eventually repaid it.

-James does not have a savings account or a checking account. She has no savings. She uses, a Nexis card, which is a pre-paid VISA card.

In May 2013, when she took out the Disputed Loan, James had been using high-interest, unsecured loans for four to five years. She obtained loans from several finance companies. She used the loans for essential needs, such as groceries or rent. On at least one occasion, she used a loan from one provider to pay off an outstanding loan from another provider.

Before the, Disputed Loan, James had obtained, five prior loans from National. James' believed that she repaid those loans in one or two payments. The payment history for the loans shows otherwise.

For her first loan from National, James borrowed $100 on September 1, 2011. She repaid a total of $205 by making five payments over the course of two months.

• 9/9/11 — Payment of $30.00.

• 9/21/11 — Payment of $80.00.

• 10/7/11 — Payment of $15.00.

• 10/21/11 — Payment of $15.00.

• 11/3/11 — Payment of $65.00.

For her second loan, James borrowed $100 on August 22, 2012. -She again repaid a total of $205, this time by making four payments over the course of two months.

• 9/7/12 — Payment of $30.00.

• 9/21/12 — Payment of $30.00.

• 10/5/12 — Payment of $80.00.

• 10/19/12 — Payment of $65.00.

For her third loan, James borrowed $150 on October 31, 2012, less than two weeks after repaying her second loan. She repaid a total of $252 by making three payments over the course of two months,

• 11/16/12 — Payment of $100.00.

.• 11/30/12 — Payment of $28.50.

• 12/14/12 — Payment of $123.50.

For her fourth loan, James borrowed $100 on December 20, 2012, one week after repaying her third loan. She repaid it the next day by making a single payment of $102. The prompt repayment suggests that James refinanced her loan through another provider.

For her fifth loan, James borrowed $200 on December 27, 2012, less than one week after repaying her fourth loan. James failed to make the second payment, failed to make the fourth payment, and finally repaid the loan two months later. Her repayments totaled $393.

• 1/11/13 — Payment of $60.00.

• 1/24/13 — Attempted debit of $60 declined.

*805• 1/29/13 — Attempted debit of $60 declined.

• 2/8/13 — Payment of $73.00.

• 2/22/13 — Attempted debit of $60 declined.

• 2/27/13 — Payment of $260,00.

Despite James’ difficulty in repaying her fifth loan, National sent her text messages soliciting her interest in another loan, A text message on March 29, 2013, stated, “Loan Til [sic] Payday welcomes you with open arms. If you ever need a loan again we want to be your source! :)” A text message on April 5,2013, stated, “Loan Til [sic] Payday misses you! Call NOW and receive $20 off your first payment.”

C. The Disputed Loan

On May 7, 2013, James needed money for food and rent. She went to National’s “Loan Till Payday” storefront operation at 1935 West Fourth Street in Wilmington, Delaware. At the time, National operated fourteen stores in Delaware.

James dealt with Ed Reilly, National’s general manager. In that capacity, Reilly oversaw National’s business operations and supervised its loan approvals. He also filled in at stores from time to time. He happened to be working in the store at 1935 West Fourth • Street when James came in for a loan.

James told Reilly that she wanted to borrow $200. Reilly looked up James in the computer program that National uses to track its customers and their loans, which is known as the “Payday Loan Manager.” It has a main page for each customer that provides identifying information and the account’s status. It also has tabs that allow the user to review information about current or past loans, including the payment history, and to enter and review notes about the loans.

James was a customer in good standing, meaning that she did not have to fill out a new loan application. She provided Reilly with her Nexis card, two recent paystubs, and her driver’s.license.

Using the internet, Reilly pulled up James’ Nexis card' account history for the preceding sixty days and printed out a copy. It showed that James started the period with a positive balance on her card of $384.70. During the sixty days, she received direct deposit credits totaling $2,216.58 and incurred debits totaling $2,594.38, for negative cash flow of $377.80. Her ending balance was $6.90, and she had a pending authorization for that amount. Her available cash was zero.

During the sixty day period, James’ Nexis card was declined fourteen times. Reilly testified at trial that if someone’s transaction history showed three or four declines, then they probably should not receive a loan.

After reviewing her transaction history, Reilly offered to loan James $400 rather than $200. The $400 would have represented almost 40% of James’ after-tax monthly income. Reilly offered that amount because National has a policy of loaning borrowers up to 40% of their after-tax monthly income, regardless of their other expenditures. National only checks to “make sure they’re positive on payday.” Tr. 244 (Vazquez); see Tr. 472 (Reilly) (“[S]he started with a surplus.”).

James declined the offer of $400. She only wanted $200, and she did not believe she could repay $400.

James thought she was getting a payday loan with a block rate of “$30 on $100.” As James understood it, this meant, she would pay $60 to borrow the $200.

Lenders developed the block rate concept to describe the finance charge for a traditional payday loan, which was a sin*806gle-payment loan designed to be repaid on the ■ borrower’s next payday. National’s trade name — Loan Till Payday — embodies this concept. Because the loan was technically intended to be outstanding only for a single block of time, payday loan companies described the finance charge by identifying the dollar amount per $100 borrowed that the customer would owe at the end of the period. A block rate of “$30 on $100” meant that a customer .who borrowed $100 would repay $130 on her next payday.

In May 2013, when James approached National for a $200 loan, National was no longer making traditional payday loans. Effective January 1, 20Í3, the General Assembly amended Delaware’s statutory framework for closed-end consumer credit to impose limits on payday loans. See 78 Del. Laws ch. 278 (2012) (codified at 5 Del. C. §§ 2227, 2235A, 2235B, & 2235C) (the “Payday Loan Law”).

In response to the Payday Loan Law, National recast its payday loans as non-amortizing installment loans that were structured to remain outstanding for seven to twelve months. The Payday Loan Law only applied to loans designed to be outstanding for sixty days or less, so by making this change, National sidestepped the law. Throughout this litigation, National insisted that it no - longer made payday loans.

Despite shifting to longer-dated installment loans, National continued to frame its finance charges using a block rate. National adhered to this practice for a simple reason: It made a high cost loan product sound cheaper than it was. On an annualized basis, a customer who repays $100 by making an interest-only payment of $30 every two weeks followed by $130 at the end of a year pays $810 in interest for an annualized rate of 838%. By framing the interest as a block rate, National’s employees could tell customers that the interest rate was 30%. Although National’s customers eventually saw an APR on the loan agreement, National’s employees followed a practice of telling customers that the APR had “nothing to do with the loan.” Tr. 335 (Carter). As National pitched it, the APR was “irrelevant” unless the customer kept the loan outstanding for an entire year; if the customer only planned to keep the loan outstanding for a few weeks, National’s employees said that the APR “means nothing.”3

.•When James obtained the Disputed Loan, she focused on the block rate and the concept of $30 in interest per $100 borrowed, just as National intended. She thought' she would have to pay back $260. She told Reilly that she would repay the *807loan in two payments of $130 each. She planned to pay $130 on her next payday of May 17,2013, and another $130 on May 31.

James told Reilly that she wanted to make her payments in cash and that she did not want to have her Nexis card debited. James viewed this as important because she knew from past experience that she could incur additional charges if a lender debited her account when there were insufficient funds to make a payment, particularly if the lender attempted to debit her account multiple times. Reilly entered a note in the Payday Loan Manager reflecting that James did not want to have electronic debits from her account. The note stated “No ACH debits,” using the abbreviation for the automated clearinghouse for electronic payments operated by the Federal Reserve and the National Automated Clearing House Association. JX 29B at 659. He entered another comment stating, “Customer wants to walk in cash payments.” Id,

Reilly also entered a note in the Payday Loan Manager reflecting James’ plan to repay the loan in two payments. But Reilly’s note contemplated different payments than what James understood she would be making. Reilly recorded that James would make one payment of $150 on May 17 and a second payment of $143 on May 31. Reilly’s note thus had James repaying $293. James thought she was repaying $260.

Reilly printed out a copy of National’s standard form loan, document and showed James where to sign. The loan document was titled “Delaware Consumer Installment Loan Agreement.” JX 19 at 1 (the “Loan Agreement”). In a box labeled “Type of Contract,” it said “FlexPay.” The repayment' schedule did not reflect either the two repayments that James wanted to. make or the two repayments that Reilly, entered in the Payday Loan Manager. The Loan Agreement instead contemplated twenty-six interest-only payments of $60 each, followed by a balloon payment comprising a twenty-seventh interest payment of $60 plus repayment of the original $200 in principal. The total amount of interest was $1,620. According to the Loan Agreement, the APR for the loan was 838.45%. Using Reilly’s planned repayment schedule, the APR was 1,095%.

James signed the Loan Agreement, and Reilly gave her a check. "From the time James walked into the store, the whole process took about twenty minutes.

D. James Cannot Repay The Loan.

On May 8, 2013, the day after obtaining the Disputed Loan,1 James -broke her hand while cleaning a toilet at the Hotel DuPont.. After missing an entire week of work, she. asked her supervisor to allow her to return because she could not afford to remain out any longer. As James explained at trial: “I don’t get paid if I don’t work.” Tr. 34 (James). Her supervisor agreed that she. could work two or three days per week on light duty.

On May 17, 2013, James went to the • Loan Till Payday store arid made the first interest payment of $60. She spoke with Brian Vazquez, the store manager. She told him that she .had broken her hand and would not be able to work, and she asked him to accommodate her with some type of arrangement. Vazquez told her that she would have to make the scheduled payments and that National would debit-her account if she ■ did not pay in cash. Vazquez then suggested that James increase her payment from $60 to $75. James was nonplussed and asked him, “How can I pay $75 if I can’t pay $60 interest,” Tr. 36 (James). Vaáquez responded that being able to work fewer hours was not the same as losing her job.

*808At trial, Vazquez recalled that when James asked for help, he suggested that she increase her payment. He tried to portray this as an accommodation that was advantageous to James, because the additional money would pay down principal. Leaving aside the obvious problem that his proposal contemplated James paying more' when she could not pay less, it was not an accommodation. James had the right to pre-pay .principal at any time. Vazquez offered James something that she already had.

Vazquez also testified that he wanted James to make payments to “keep[] her active,' not past due, so she was still in good standing with our company and able to get loans with us in the future.” Tr. 257 (Vazquez). Yet Vazquez testified later that if a customer missed a payment, then National would stop charging interest and only add a late fee of 5%. This meant that Vazquez proposed an arrangement that kept interest accruing, whereas if James had defaulted, then interest would have stopped and she only would have owed a $3 late fee.

At bottom, Vazquez refused to lower James’ payments or give her any kind of accommodation. His proposals tried to get National more money and faster.

E. James Defaults.

On May 31, 2013, National attempted on four separate occasions to debit James’ Nexis account for $60. Each time, the debit was declined. At trial, Vazquez justified the debits by distinguishing between an electronic debit from a Nexis card and an ACH withdrawal from a bank account. Vazquez claimed that James only told National not to make ACH withdrawals.

Despite being a stickler for this distinction, Vazquez was less punctilious when it came to National’s authority for taking the debit. For that purpose, Vazquez relied on a provision found on the last page of the Loan Agreement, which was titled “Credit Card Authorization.” Vazquez asserted that this provision applied because a credit card payment and a debit card payment were “the same thing.” Tr. 287 (Vazquez). It is true that from a consumer’s perspective, they are functionally the same thing, but so are a bank account and a Nexis card.4 National tried to have it *809both ways, taking a legalistic approach when that advanced its purposes, then taking a functional approach when that was advantageous.

On June 3, 2013, National tried twice more to debit James’ Nexis card, each time for $60. Both debits were declined. On June 7, National tried twice more. At that point, the attempted debits were for $63, which included a $3 late fee. Both were declined.

On June 8, 2013, an unidentified National employee called James at the Hotel DuPont and left a message with her employer. National also sent her a “Collection Text” stating, “Gloria, to avoid further occurrences on your account, you must call Tracey, at Loan Till Payday.”

On June 13, 2013, an unidentified National employee again called James .at the Hotel DuPont and left a message with her employer. That same day, National successfully made an ACH withdrawal of $63, comprising $60 in interest plus a $3 late fee. Recall that James had told National not to make electronic withdrawals, and that Reilly had entered a note on the account stating “No ACH debits.” Recall also that National justified debiting her Nexis card on the theory that a debit was different than an ACH withdrawal. At this point, however,: National made an ACH withdrawal.

On June 14, 2013, the notes in the Payday Loan Manager indicate that an unidentified National representative spoke with James. On June 27, National debited her Nexis account for $75: National also sent James an automated text: “Refer a friend and get $20 credit on your next payment! Call now! Loan Till Payday.”

F. James Hires Counsel And Files Suit In Federal Court.

After her discussion' with Vazquez on May 17, 2013, James decided to contact counsel. On June 14,- James sent a letter to National opting out of the arbitration provision in the Loan Agreement. On July 1, James filed suit- in the United States District Court for the District of Delaware. James v. Nat’l Fin., d/b/a Loan Till Payday LLC, C.A. No. 13-CV-1175-RGA (D. Del. filed July 1, 2013).

Tim McFeeters is the sole owner of National. On July 8, 2013, after -being served with the federal action, he entered a note in the Payday Loan Manager: “DONT WORK DONT CALL DONT TAKE ANY $ $ $.” JX 29B at 662.

As of July 8, 2013, James had repaid National $197. .She has not made any payments on the Disputed Loan since then.

G. This Litigation

On September 20, 2013, after voluntarily dismissing her federal action, James filed this lawsuit on behalf of herself and other similarly situated borrowers. Count I of the complaint sought a permanent injunction barring National from collecting on the loans made to James and other class members. Count II sought a declaration that the terms of National’s loan, documents were unconscionable. Count III alleged that National breached the implied covenant of good faith and fair dealing *810inherent in the loan agreements. Count IV alleged that National unjustly enriched itself at the expense of the class members. Count V alleged'violations of the Delaware Consumer Fraud Act, 6 Del: C. §§ 2511-2527. James later dropped Counts IV and V.

On October 10, 2013, National moved to compel arbitration. National also sought to dismiss the .complaint under the creative theory that James could not state a claim for a class action. I denied the motion to dismiss, noting that James had opted out of arbitration and that National’s arguments against class certification were premature.

When National moved to compel arbitration, it knew that James had opted out. National had made that point affirmatively as a ground for dismissing her federal action. Because National knew that their motion to compel arbitration had no factual ba,sis, James moved for Rule 11 sanctions. I granted the motion.

H. Problems With Discovery

During discovery, James sought documents and information relating to the loans offered by National since September 20, 2010, including an electronic copy of the data from any database containing the loan information. National moved for a protective order, contending that the discovery was overbroad. I partially granted National’s motion, but I also required National to respond to particular requests or narrowed versions. See Dkt. 44 (the “First Discovery Order”). Most pertinently, I required National to provide specified categories of information about loans made between September 20, 2010, and September 30, 2013 (the “Loan History Information”).

On February 28, 2014, National produced an Excel spreadsheet that purported to provide the Loan History Information (the “Initial Spreadsheet”). The Initial Spreadsheet did not include all of the Loan History Information.

Using the few loan documents he had, James’ counsel checked the APRs for those loans against the limited data provided on the Initial Spreadsheet. The figures did not match. He then deposed McFeet-ers, who suggested that the Initial Spreadsheet contained errors. McFeeters also testified that the Delaware State Banking Commission had audited National between four and ten times after he purchased the company and had expressed concerns about inaccurate APRs.

On May 6, 2014, James filed an amended complaint that added a claim that National violated the federal Truth in Lending Act (“TILA”), 15 U.S.C.. § 1501 et seq., by failing to accurately disclose APRs on its loan agreements. James sought further discovery regarding the APR issue. On July 17, James again moved to compel production of the Loan History Information. I entered a second order requiring National to provide it. Dkt. 120 (the “Second Discovery Order”).

National did not comply-with the Second Discovery Order, resulting in a written decision granting James’ motion for sanctions. See James v. Nat’l Fin. LLC, 2014 WL 6845560, at *1 (Del. Ch. Dec. 5, 2014). The decision held that because of National’s discovery misconduct, it was established for purposes of trial that the APRs disclosed on an updated spreadsheet of Loan History Information were incorrect and fell outside the tolerance permitted by TILA. Id.

On March 25, 2015, I denied James’ motion for class certification. The case proceeded to trial solely on James’ individual claims.

*811II. LEGAL ANALYSIS

James proved at trial that the Loan Agreement was unconscionable, and the Disputed Loan is rescinded on that basis. Because the Disputed Loan is invalid, this decision need not consider whether National breached the ■ implied covenant of good faith and fair dealing. James also proved that National violated TILA.

A. The Regulatory And Public Policy Backdrop .

This case was about the Disputed Loan, but both sides litigated against a backdrop of regulatory and public policy issues that numerous jurisdictions are confronting. Put mildly, widespread controversy exists over high-interest credit products that are predominantly marketed to and used by lower-income, credit-impaired consumers. Products falling into this category include traditional payday loans, pawnbroker loans, installment loans, subprime credit cards, automobile title loans, income tax refund products, and credit substitutes like rent-to-own financing. Labels for the category include “fringe products” and “alternative financial services.” The products fall within the larger heading of subprime credit.

An extensive and growing body of scholarship exists about alternative financial products, with the bulk focusing on traditional payday loans. The empirical evidence tt> date, however; has considerable gaps. Studies have reached different findings, and researchers have drawn different inferences.5 Moreover, although the total volume of scholarship is large, much of it seems repetitive and polarized.

Consumer groups uniformly condemn alternative financial products.6 The Pew Charitable Trust has.published a series of reports that criticize the payday loan industry.7 The Department of Defense and *812representatives of the armed services also have opposed payday lending.8 Aligned With these groups are scholars who write from the consumer perspective. Nathalie Martin, a law professor from the University of Arizona, is a leading critic of alternative financial products.9 She testified as an expert for James at trial.

Championing a competing view is the industry’s national trade organization, the Community Financial Services Association of America, and a group of scholars who draw heavily on economic theory. Todd J. Zywicki, a law professor from George Mason University, is a prominent defender of alternative financial products and a coauthor of a recent treatise on consumer credit. See Thomas A. Durkin et al., Consumer Credit and the American Economy (2014) [hereinafter Consumer Credit ]. He testified as an expert for National at trial.

This court’s task is not to regulate the payday loan industry in Delaware. It is only to rule on the Disputed Loan. Paramount Commc’ns Inc. v. QVC Network Inc., 637 A.2d 34, 51 (Del. 1994) (“It is the nature of the judicial process that we decide only the case before us — ”). Nevertheless, in the course of evaluating the record, I have read Martin’s and Zywicki’s expert reports, as well as many of the works that they cited. I agree with both experts .that although the Disputed Loan was not technically a traditional payday loan, the literature provides helpful background.

B. Unconscionability

The doctrine of unconscionability stands as a limited exception to the law’s broad support for freedom of contract. “Delaware courts seek to ensure freedom of contract and promote clarity in the law in order to facilitate commerce.” ev3, Inc. v. Lesh, 114 A.3d 527, 530 n. 3 (Del. 2014). “There is ... a strong American tradition of freedom of contract, and that tradition is especially strong in our State, which prides itself on having commercial laws that are efficient.” Abry P’rs V, L.P. v. F & W Acq. LLC, 891 A.2d 1032, 1059-60 (Del. Ch. 2006) (Strine, V.C.). “When parties have ordered their affairs voluntarily through' a binding contract, Delaware law is. strongly inclined to respect their agreement, and will only interfere upon a strong showing that dishonoring the contract is required to vindicate' a public policy interest even .stronger than freedom of contract.” Libeau v. Fox, 880 A.2d 1049, 1056-57 (Del. Ch. 2005) (Strine, V.C.), aff'd in pertinent part, 892 A.2d 1068 (Del. *8132006). “As a matter of ordinary, course, parties who sign contracts and other binding documents, or authorize someone else to execute those documents on their behalf, are bound by the obligations that those documents contain.” Official Comm. of Unsec. Motors Liquid. Co. v. JPMorgan Chase Bank, N.A., 103 A.3d 1010, 1015 (Del. 2014).

But as with many areas' of the law, there are countervailing principles that prevent an indisputably important and salutary doctrine from operating as a tyrannical absolute. One such ground is unconscionability, traditionally defined as a contract “such as no man in his senses and not under delusion would make on the one hand, and no honest or fair man.-would accept, on the other.” Tulowitzki v. Atl. Richfield Co., 396 A.2d 956, 960 (Del. 1978) (quotation marks and citation omitted). It would be difficult to improve on Chancellor Allen’s incisive summary of the interplay between the core concept of contractual freedom and the residual protection against unconscionability: ■

The right of competent persons to- make contracts and thus privately to acquire rights and obligations is a basic part of our general liberty. This ability to enter and enforce contracts is universally thought not only to reflect and promote liberty, but as well to promote the production of wealth. Thus, the right to make and enforce contracts is elemental in our legal order. But not every writing purporting to contain a promise or every document purporting to make a transfer will be given legal effect. A large body of law defines when valid contracts are formed and when and how they can be enforced.

It is a general rule, recited by courts for well over a century, that the adequacy or fairness of the consideration that adduces a promise or a transfer is not alone grounds for a court to refuse to enforce a promise or to give effect to a transfer. This rule, present in 17th and 18th century cases, achieved its greatest dignity in the jurisprudence of 19th century classical liberalism. i Thus, the classical liberal’s premise concerning the subjectivity (and thus non-reviewability) of value has plainly been a dominant view in our contract law for a very long time— But as standard as that generalization is, it has not precluded courts, on occasion, from striking down contracts or transfers in which inadequacy of price is coupled with some circumstance 'that amounts to inequitable or oppressive conduct.' That1 is, the “rule” that Courts will not weigh consideration or assess the wisdom of bargains has not fully excluded the opposite proposition, that at some point, courts will do so even in the absence of actual fraud-, duress or incapacity.

Ryan v. Weiner, 610 A.2d 1377, 1380-81 (Del. Ch. 1992) (Allen, C.) (citations and footnote omitted).

In Ryan, Chancellor Allen delineated the history of the doctrine of unconsciona-bility, describing it as “old when Justice Story summarized it in 1835” as part of his Commentaries on Equity Jurisprudence. Id. at 1381. After citing a range of cases from the twentieth century, Chancellor Allen observed that

[statutory developments over the last thirty years reflect an explicit legislative endorsement of this ancient equitable doctrine. . The most important example of this .mid-twentieth century codification is the unconscionability provision contained in Section 2-302 of the Uniform Commercial Code. That provision has, of course, been adopted in almost all of the states and applies to the sale of all-goods.

*814Id. at 1383. Delaware’s version of Section 2-302 states:

(1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.

(2) When it is claimed or appears to the court -that the contract or any clause thereof may be unconscionable the parties shall be afforded a,reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination,

6 Del C. § 2-302. Although technically limited in scope to sales of goods,' Delaware decisions have applied Section 2-302 more broadly.10

This estimable pedigree does not mean that the doctrine of unconscionability will' be invoked freely. “Unconscionability is a concept that is used sparingly.” Ketler v. PFPA, LLC, 132 A.3d 746, 748, 2016 WL 192599, at *2. (Del. 2016). Chancellor Allen’s words again capture the essential point:

The notion that a court (can and will review contracts for fairness is apt for good reason to strike us as dangerous, subjecting negotiated bargains to the loosely constrained review of the judicial process. Perhaps for this reason,-courts have evoked this doctrine with extreme reluctance and only when all of the facts suggest a level of unfairness that is unconscionable.

Ryan, 610 A.2d at 1381. A finding of unconscionability generally requires “the taking of an unfair advantage by one party over the other.” Tulowitzki, 396 A.2d at 960 (quotation marks omitted). “A court must find that the party with superior bargaining power used it to take unfair advantage of his weaker counterpart.” Graham v. State Farm Mut. Auto. Inc. Co., 565 A.2d 908, 912 (Del. 1989). “For a contract clause ..to be unconscionable, its terms must be so one-sided as to be oppressive.” Id. (quotation .marks and citation omitted).

Whether a contract is unconscionable is determined at the time it was made. Lecates v. Hertrich Pontiac Buick Co., 515 A.2d 163, 173 (Del. Super. 1986); see Restatement (Second) - of Contracts § 208 (1981) (“If a contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforce the contract....”). The outcome turns on “the totality of the circumstances.” Tulowitzki, 396 A.2d at 962; see Restatement (Second) of Contracts § 208, cmt. a (“The determination that a contract or term is or is not unconscionable is made in light of its setting, purpose and effect.”).

This court has identified ten factors to guide the analysis of unconscionability. See Fritz v. Nationwide Mut. Ins. Co., 1990 WL 186448 (Del. Ch. Nov. 26, 1990). In the language of the Fritz decision, they are:

(1) The use' of printed form or boilerplate contracts drawn skillfully by the party in the strongest economic position, which establish industry wide standards *815offered on a take it or leave it basis to the party in a weaker economic position!;]

(2) a significant cost-price disparity or excessive price;

(3) a denial of basic right's and remedies to a buyer of consumer goods!;]

(4) the inclusion of penalty clauses;

(5) the circumstances surrounding the execution of the contract, including its commercial setting, its purpose and actual effect!;]

(6) the hiding of clauses which are disadvantageous to one party in a mass of fine print trivia or in places which are inconspicuous to the party signing the contract!;]

(7) phrasing clauses in language that is incomprehensible to a layman or that divert his attention from the problems raised by them or the rights given up through them;

(8) an overall imbalance in the obligations and rights imposed by the bargain;

(9) exploitation" of the underprivileged, unsophisticated, uneducated and the illiterate!;] and ■

(10) inequality of bargaining or economic power.

Id. at *4-5 (citations omitted).' Although this opinion uses the ten Fritz factors, it analyzes them in a different order and under two broader headings: substantive unconscionability and procedural uncon-scionability.

The concept of substantive unconscionability'tests 'the substance of the exchange. An agreement is substantively unconscionable if the terms evidence a gross imbalance that “shocks the conscience.” Coles v. Trecothick, 32 Eng. Rep. 592, 597 (Ch. 1804). In more modern terms, it means a bargain on terms “so extreme as to appear unconscionable according to the mores and business practices of the time and place.” Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 450 (D.C. Cir. 1965) (quoting 1 Arthur L. Corbin, Corbin -on . Contracts § 128 (1963)).

"The concept of procedural unconsciona-bility examines the procedures that led to the contract with the goal of evaluating whether seemingly lopsided terms might have resulted from arms’-length bargaining. Courts focus on the relative bargaining strength of the parties and whether the weaker party could make a meaningful choice. The concept is “broadly conceived to encompass no.t only the employment of sharp bargaining practices and . the use of fine print and convoluted language, but a lack of understanding and an inequity of bargaining power.” 1 E. Allan Farns-worth, Farnsworth on Contracts '§ 4.28, at 583-84 (3d ed. 2004) (footnotes omitted).

The two dimensions of unconscionability do not function as separate elements of a two prong test. The analysis is unitary, and “it is generally agreed that if more of one is present, then less of the other is required.” Id. § 4.28, at 585.

1. Factors Relating To Substantive . Unconscionability

Six of the Fritz factors relate to the concept of substantive unconscionability. They are:

• A significant cost-price disparity or excessive price.

• The denial of basic rights and remedies.

• Penalty.clauses.

• The placement of disadvantageous clauses in inconspicuous locations or among fine print trivia.

• The phrasing of disadvantageous clauses in confusing language or in a manner that obscures the problems they raise.

*816• An overall imbalance-in the obligations and rights imposéd by the bargain.

Within this lineup, the first factor tést's for a threshold indication of fundamental unfairness. The second and. third factors examine two types of contract terms where overreaching may occur. The fourth and fifth factors ask about other types of contract terms and whether they are adequately disclosed and comprehensible. The sixth factor examines the agreement as a whole.

a. A Threshold Indication Of Unfairness

The first Fritz factor considers whether there is a threshold indication of unfairness, such as‘“a significant cost-price disparity or excessive price.” Fritz, 1990 WL 186448, at *4. “[G]ross disparity between price and value can be used to demonstrate unconscionability.”11 “Inadequacy of consideration does not of itself invalidate a bargain, but gross disparity in the values exchanged may be. an important factor in a determination that a contract in unconscionable_” Restatement (Second) of Contracts § 208, cmt. c. “Such a disparity may also corroborate indications of defects in the bargaining process.... ” Id. “[A]n unreasonably high or exorbitant price at the very least is a factor to be considered in determining whether a particular provision is harsh and whether one party has in fact been imposed .upon by another party in an inequitable or unconscionable manner.” 8 Williston on Contracts § 18:15 (4th ed. 2015).

In this case, there are obvious indications of unfairness. The Loan Agreement called for finance charges of $1,620 for a $200 loan, resulting in a disclosed APR of 838.45%. That level of pricing shocks the conscience. .Even defenders of fringe credit have recognized that “[a]t first glance, it would seem irrational for any consumer to borrow money at an interest ■ rate exceeding 400% under any circumstance.”12 Zywicki conceded that *817“to a layman in some sense, it just looks kind of shocking to see a price this high.”13 More broadly, Zywicki and his co-authors admit in their recent book that the finance charges for fringe products “are indeed high when expressed in terms of [APR].” Consumer Credit, supra, at 352. When making this observation, they cited APRs that “often exceed 100 percent.” Id. The rate for the Disputed Loan was eight times that level.

Zywicki recognized that the interest rate on the Disputed Loan was high in other ways as well. He testified that the APRs for unsecured consumer installment loans generally cluster around 150%.14 Unlike the Disputed Loan, consumer installment loans “are amortized with part of each payment repaying principal so that the loan is paid in full by the last scheduled payment.” Consumer Credit, supra, at 355. The Disputed Loan was a twenty-six period interest-only loan culminating in a balloon payment at the year mark.

The rate charged for the Disputed Loan exceeded even the rates charged for traditional payday loans. Zywicki testified that the industry average for payday loans is !a block rate of $15 per $100, half what National charged. Tr. 589-90, 594 (Zywicki). Other sources cite similar figures.15 The rate for the Disputed Loan also far exceeded what Zywicki and his co-authors report as typichl rates for other fringe products.16

National’s efforts to explain the cost of the Disputed Loan were unconvincing. MeFeeters would not say what would be an excessive price for a loan. . He only would say, “I follow the state laws, and that’s what I follow.” Tr. at 435 (MeFeet-ers). Delaware does not impose any cap on' interest rates, so MeFeeters effectively was saying that no price is too high.17

*818Zywieki advanced two types of arguments to explain the price of the Disputed Loan. First, he contended that an APR of 838% could, in theory, result from a competitive market. Second, he argued that there could be situations where it would be rational for a consumer to use a high-interest credit product.

i. Arguments About Market Pricing

To support his claim about market pricing, Zywieki cited academic studies which have observed that some features of the alternative financial product market are consistent with meaningful price competition, such as low barriers to entry and a large number of stores. Like many aspects of the industry, however, evidence on this issue is mixed, and other researchers have identified evidence consistent with a variety of strategic pricing practices.18 Importantly for this case, Zywieki did not conduct any analysis of the Disputed Loan itself, nor did he assess the competitiveness of the Wilmington market. At the same time, he admitted that prices in Wilmington were higher than the ranges he expected. He also recognized that consumers who use fringe products generally lack meaningful alternatives.

In a variant of his market pricing argument, Zywieki contended that the price of the Disputed Loan should not be viewed as excessive unless National was able to generate supra-normal economic profits, which he equated with monopoly rents. Zywieki emphasized one study that has questioned whether payday loan companies generate supra-normal economic profits.19 The broader evidence is again mixed, with the authors of a study on payday-loan profitability noting that “a recent private analysis for potential investors ... asserts that a store set up for $30,000 will generate more than $258,000 in operating cash flow over its first five -years of operation, which implies an extraordinary average annual pretax rate of return — around 170 percent— on the initial investment.” Flannery & Samolyk, supra, at 4 (citation omitted). In their own study, the same authors found that “mature stores appear to earn quite healthy operating . profits — on average $18.73 per loan made, or approximately $1.89 per average dollar of loans outstanding.” Id. at 19. They declined to take a position on whether this level of returns could be described in the abstract as “high” or “reasonable.” Id. Opponents of fringe products point to other indicators, such as marketing materials from payday loan franchisors that describe high profit levels and .the rapid expansion of the industry, which suggests attractive returns.20 *819For purposes of this case, Zywicki again did not conduct any, analysis specific to Wilmington or National, and he could not offer any opinion as to whether National enjoyed supra-normal profits.

As a third basis for his market-pricing claim, Zywicki posited that high-interest loans are very costly to make, due in part to high default risk. He contended at trial that default rates “are usually in the range of 15, 20, to 25 percent.” Tr. 505 (Zy-wicki). A study by the Pew' Charitable Trust found that loan loss rates for payday loans are only 3%. See How Borrowers Repay, supra, at 6. Zywicki again did not do any analysis specific to this case. He did not analyze default rates in the Wilmington area, nor did he examine National’s default rates.

Zywicki’s opinion that an APR of 838% could, in theory, result from a competitive market wás just that — a theoretical possibility. It was not a persuasive response to the facially shocking price of the Disputed Loan.

ii. Arguments About Hypothetically Rational Uses

Zywicki’s second explanation for the price of the Disputed Loan rested on the sensible claim that the price of a consumer product should be assessed, among other things, “by reference to the utility of the loan to the consumer.” JX 46 at 43. ' This approach posits that there can be situations where it is rational and wealth-enhancing for consumers to use high-cost loans. Zywicki touched on thesé justifications at trial when he explained that consumers can use alternative credit products “to avoid what might kind of be bigger catastrophes like eviction and that sort of thing.” Tr. 541 (Zywicki).

In their book on consumer credit, Zy-wicki and his co-authors offer an expanded version of this argument which asserts that high-interest, small-dollar loans “can facilitate the accumulation of household assets even when they are not used directly to finance the household investment by enhancing overall liquidity, even at high cost.” Consumer Credit, supra, at 369; accord Lawrence & Elliehausen, supra, at 302. They provide two examples of situations where it could be rational for a consumer to take out a $200 payday loan at a block rate of $15 per $100 (half the rate of the Disputed Loan).

The simplest scenario involves a looming bill, such as a utility payment, where nonpayment will trigger a late fee exceeding the finance charge for the loan. Assuming the borrower can repay the loan on schedule, the borrower does better by paying the lower finance charge rather than the higher late fee. A slightly more complex variant involves a late fee that may not exceed the finance charge, but where failing to pay the bill will generate other hardships, such as the loss of electricity for a period of time. Again assuming the borrower can repay the loan on schedule, the borrower does better by paying the finance charge and avoiding the combination of the late fee and the negative consequences. See Consumer Credit, supra, at 369.

A second and more nuanced scenario posits a borrower who can use the loan proceeds to make a net-present-value-positive choice, such as repairing an automobile immediately instead of -'delaying the repair while saving the money to pay for it. To construct a viable example, Zywicki and his co-authors assume that uhtil the *820repair is completed, the consumer -will (i) pay fees for- public transit and (ii) lose leisure time to commuting, which they value at the consumer’s hourly wage. Depending on the assumptions, the model supports scenarios where it makes sense for the consumer to use a payday loan with a nominally high APR of 309% to repair the car sooner rather than later. See id. at 370-72.

In each of these cases, the viability of using high-cost credit rationally depends on the consumer'having a use for the funds which generates monetary and non-monetary returns that exceed the price of the loan. -To their credit, the authors recognize that the ability of a. consumer to overcome a high APR (309% in their model) depends largely on “the very short term to, maturity” for a single-period payday loan. Id. at 371. They observe that “[t]his would not be the case .for a long-term loan,” and that “[e]xtended use .of this sort of credit is where it becomes most highly controversial.” Id. at 372.

And there’s the rub. The Disputed Loan was not structured as a short-term loan. It was a twelve-month, interest-only installment loan. -The Disputed Loan also charged an interest rate that was more than double what Zywicki and his co-authors modeled (838% vs. 309%). Zywicki did not identify any scenarios in which it could be rational for a consumer to borrow on the terms contemplated by the Disputed Loan.

Perhaps anticipating this disconnect, Zy~ wicki attempted at trial to re-characterize the Disputed Loan as a short-term loan by pointing out that James had the option to prepay. The decision to prepay parallels the decision to pay a traditional payday loan on time. Consumer groups have modeled the likelihood that a typical user of high-cost credit will repay a traditional payday loan in a single period and avoid a cycle of long-term indebtedness. The Center for Responsible Lending provides the example of a borrower making $35,000 per year who obtains a payday loan for $200 plus a finance charge of $20. Assuming average levels of consumer expenditures for food, housing, utilities, transportation, healthcare, and other essentials, and excluding costs such as childcare and clothing,- the borrower finishes the next pay period with a $96 deficit,, forcing a loan rollover. See Borné et al., supra, at 8-9. The same report examines how a payday loan affects the account balance of a typical borrower on a fixed income, such as social security. It demonstrates that although the loan temporarily boosts the customer’s bank balance, the combination of the balloon payment and fees makes the borrower worse off and necessitates another loan.21 A report by the Pew Charitable Trust concludes that

the lump-sum repayment model appears to make it difficult for borrowers to avoid renewal. Pew’s analysis of state and industry data indicates that borrowers are indebted for an average of about five months of the year. Recording to one study, 76 percent of these loans, including renewals, are borrowed within two weeks following an existing payday loan’s due date, meaning the borrower could not pay back the loan and make it to the next payday without another loan. In addition, Pew’s analysis of data from Oklahoma finds that more borrowers use .at least 17 loans in a year than use just one.

Who Borrows, supra, at 7 (footnotes omitted). A follow-up study found that “[o]nly 14 percent of borrowers can afford enough of their monthly budgets to repay an average payday loan,” although most could af*821ford to pay the interest-only fee to roE over the loan. How Borrowers Repay, supra, at 6. The study' observed that “[a]verage borrowers end up indebted for five months, paying $520 in finance charges for loans averaging. $375.”22

It may be that a consumer with the-wherewithal to repay a high-cost loan after one period could rationally use some high-cost products in a wealth-enhancing way, but that thought experiment does not persuasively justify the pricing and terms of the Disputed Loan. The loan James obtained was a twenty-six period, interest-only loan followed by a twenty-seventh period balloon payment at an APR of 838%. As noted, Zywicki and his co-authors recognize that it is difficult to imagine a situation where it would make sense for a consumer to use a multi-period loan at the interest rates charged for payday loans. See Consumer Credit, supra, at 370-72. Zywicki’s testimony about the hypothetically rational use of some high-cost credit products failed to legitimize the Disputed Loan’s facially disturbing price.

iii. Fundamental Unfairness

The economic terms of the Disputed Loan are so extreme as to suggest fundamental unfairness. The price of the Disputed Loan is particularly egregious given its multi-period, non-amortizing, structure. The finance charges incurred over the course of the loan are so high that no rational borrower would agree to pay them, unless under duress or operating under a misapprehension of fact. The first Fritz factor is satisfied.

b. Contract Provisions Suggesting Unfairness

The next four Fritz factors focus on contract' provisions that can contribute to a finding of unfairness. They include provisions that deny or waive “basic rights and remedies,” “penalty clauses,” and “disadvantageous” clauses' that are hidden or difficult to identify and understand. 1990 WL 186448, at *4. The more general question is whether the contract provisions evidence “[a]n overall imbalance in the obligations and rights imposed by the bargain.” Id. at *5. Specific provisions might not be unconscionable in isolation or under different circumstances, yet still may contribute to. a finding of unconscionability in a given case.23

The Loan Agreement contains provisions that raise concerns, but they are not sufficiently onerous to support a finding of unconsdonability standing alone. They contribute to the overall assessment of the Loan Agreement,, but as a secondary factor. ■ ’

*822One category of provisions called out in Fritz encompasses waivers and denials of basic rights and remedies that a consumer otherwise would possess. The Loan Agreement included a waiver of the right to a jury trial, which extended to “any dispute you may have against us or a related third party.” JX 19 at 3. It did not define what it meant by “related third party.” The Loan Agreement also con-' tained an arbitration provision in which the borrower gave up the right to sue in court (other than in small claims court) and the right to arbitrate on a class-wide basis. The Loan Agreement did give James sixty calendar days to opt out of the arbitration provision, and it contained some procedural features to make arbitration less onerous. Had James moved forward with arbitration, her greátest disadvantage would have been limited discovery. As shown by National’s conduct in this case, it took a determined attorney with the benefit of court-ordered discovery to obtain'responsive information from National, and even then National did not produce all of its responsive information.

The jury waiver and the arbitration provision fall within the meaning of the Fritz factor that focuses on waivers of rights and remedies, but they do not contribute meaningfully to a finding of uneonsciona-bility. The same is true for penalty clauses, which is another category of provisions that Fritz-identifies. 1990 WL 186448, at *4. The Loan Agreement contemplates a late fee “on any installment not paid in full within 5 days after its due date as originally scheduled, in the amount of 5% of the unpaid amount of the delinquent balance.” JX 19 at 3. A 5% late fee is authorized by statute. See 5 Del C. § 2231(2). The Loan Agreement also gives National the right to declare a default after a missed payment and to cause all outstanding amounts to accelerate, and it obligates the borrower “to pay the actual expenditures, including reasonable attorneys’ fees, for legal process or proceedings to collect the amounts owing hereunder.” JX 19 at 3-4. This type of attorneys’ fee provision is also permitted by- statute. See 5 Del. C. § 2236, As with the discussion -of waivers of rights and. remedies, these provisions satisfy the Fritz factor that focuses on penalty clauses, but they do not contribute meaningfully to a finding of unconsciona-bility.

The Fritz decision also calls for consideration of “disadvantageous” clauses that are “inconspicuous,” as well as “language that is incomprehensible to a layman” or seems designed to “divert his attention from the problems raised by them or the rights given up through them.” 1990 WL 186448, at *4. Two aspects of the Loan Agreement warrant mention.

The first involves the ■ provisions addressing ACH withdrawals. Comprising fifteen single-spaced paragraphs and sub-paragraphs, and written in what- appears to be eight-point font, the provisions span a full page of the six-page agreement. These provisions are highly favorable to National, but the Loan Agreement portrays them as beneficial to the consumer. At one point, it states that “THIS ACH AUTHORIZATION IS FOR YOUR CONVENIENCE IN PAYING AMOUNTS OWED AND RECEIVING THE LOAN PROCEEDS.” JX 19 at 3. Elsewhere the Loan Agreement states, “For your protection, this form authorizes Loan Till Payday to automatically collect each periodic payment due under the terms of this Contract.” Id. at 6. The provisions, are actually a form of security interest that is for National’s protection and convenience.

The provisions governing ACH withdrawals are confusing because they speak of making “ACH” transfers from “the *823checking or savings account specified in your Application/Data Verification form (‘Your Bank Account’).” Id. at 2. National, however, treats the authorization as covering debits from a pre-paid debit card like James’ Nexis card, and National- repeatedly debited James’ account. ‘Further complicating matters, the signature page where the borrower specifically authorizes the withdrawals appears under the heading “Credit Card Authorization.” Id. at 6. Despite this language, National does not accept credit cards, and James did not have a credit card; she had a debit card.-

The inconsistent language in the Loan Agreement could easily confuse an unsophisticated customer like James. The difficulties with National’s language had particular salience for this case, because when James obtained the Disputed Loan, she told Reilly that she did' not want electronic withdrawals made from her account. Reilly made two notes in the Payday Loan Manager. One stated “No ACH debits,” and another stated, “Customer wants to walk in cash payments.” JX 29B at 659. Yet National debited James’ Nexis card and made at least one ACH withdrawal from her Nexis account.

James’ instruction and National’s ac-knowledgement catches National on the horns of a dilemma. To the extent that National’s witnesses took a narrow -and legalistic view at trial by arguing that James only opted out of ACH withdrawals and not debits from her Nexis card, then the same logic meant that James only granted “Credit Card Authorization,” not debit card -authorization.. To the extent that National’s witnesses argued broadly at trial-that the “Credit Card Authorization” encompassed all types of electi’onic withdrawals, then James’ insistence that she did not want ACH withdrawals should have been sufficient to opt out. In neither case did National get the authorization it needed to debit James’- account.

■ The debate over whether James validly opted out of ACH transfers identifies a second problem with the ACH provisions: they make it extremely difficult for a customer to avoid granting National the authorization it wants. In the fourteenth of fifteen paragraphs and subparagraphs addressing ACH transfers, the Loan Agreement does say that the ACH authorization is optional, but the borrower can opt out only “BY MANUALLY CROSSING OUT ALL ACH AUTHORIZATION LANGUAGE IN THIS AGREEMENT.” JX 19 at 3.- The formal authorization then comes three pages later, under .the heading “Credit Card Authorization,” in a paragraph that makes no reference to ACH debits and does not contain the abbreviation “ACH.” See id. at 6. There is nothing to alert customers to the fact that by signing the language under the heading “Credit Card Authorization,” they are agreeing to ACH transfers.

Once a customer has authorized ACH transfers, it is difficult to terminate them. According to the Loan Agreement,

You may terminate one or all of .the authorizations, to initiate ACHs from Your Bank Account set forth above by calling us at 302-328-1370 and by writing,us at 1511 North DuPont Highway, New Castle, DE 19720 and specifying which authorizations you would like to terminate. We will discontinue initiating any ACHs you specify as soon as-we reasonably can and in any event within three business days after receiving your termination request.

This ACH Authorization will remain in full force and effect until (i) we have received written notification from you of its terminationfin such time and in such manner as to afford us and the Deposi*824tory a reasonable opportunity to act on it or (ii) upon full and final payment of the amount you owe us under this Agreement.

Id. at 3 (emphasis added). McFeeters testified that he would insist on full compliance with the language of the contract before terminating an ACH authorization, meaning-that a customer only could terminate ACH withdrawals, by calling the phone number and confirming in Uniting.

The Loan Agreement skews the' ACH withdrawal provisions in National’s favor in another way as well: National can withdraw whatever amount it wants from a customer’s account, up to the full amount of the outstanding loan plus fees and charges, without prior notice to the customer that a higher amount will be debited. The operative language states:

Please note that you have the right to receive notice of all transfers varying in amount, and that by signing this ACH Authorization you acknowledge that we have elected to offer you a specified range of amounts for debiting (in lieu of providing the notice of transfers in varying in amount [sic]). The amount of any ACH debit' will range from (i) the payment amount provided in the payment schedule'(which may be less than a scheduled payment if partial prepayments have been made), to (ii) an amount equal to the total outstanding balance (which may be greater than or less than a payment based upon your actual payments), plus as applicable, any returned payment charges and/or any date charges you may owe under the Agreement. For any debit outside of this specified range, we will send you a notice. Therefore, by agreeing to the terms of this ACH Authorization you are choosing to only receive notice, when a transfer amount exceeds the range specified above.

JX 19 at 3. National relied on this paragraph to debit James’ account for amounts greater than her scheduled payment, without prior notice to. James. For National’s cash-constrained customers, a higher withdrawal easily could overdraw their account or sweep up the bulk of their available cash.

In my view, the. provisions governing ACH withdrawals are “disadvantageous,” drafted in “language that is incomprehensible to a layman,” and appear designed to “divert [the customer’s]' attention from the problems raised by them or the rights given up through them.” Fritz, 1990 WL 186448, at *4. As drafted and implemented, the ACH provisions support a finding of unconscionability.

The same is true for the provisions governing rescission and prepayment, which the Loan Agreement combines confusingly in a single paragraph. The Delaware Code addx-esses these concepts separately. One statutory section addresses prepayment. See 5 Del. C. § 2234. A separate statutory section requires a right of rescission. See id. § 2235A(a)(3). The Loan Agreement, by contrast, shoves the right of rescission into the middle of six sentences addressing prepayment. The paragraph in question states:

You shall have the right to make payment in advance and in any amount on this Loan Agreement at any time.' You will not incur an additional charge, fee or penalty for prepayment. Prepayments of principal may reduce the total amount of interest you are scheduled to pay under ■ this Loan Agreement. To rescind future payment obligations under this Loan Agreement and receive a refund of the finance charge,- you must (i) inform us by visiting a store-of your intent to rescind no later than k-QO PM Eastern Time on the next business day immediately following the Disburse*825ment Date (“Rescission Deadline”), and (ii) give us written authorization to effect a debit entry to Your Bank Account, defined in the Repayment Authorization below, for the principal amount of the loan. If we receive payment of the principal amount of the loan via such authorization, then we will refund the interest owing and rescind the future payment obligations under this Loan Agreement. Thereafter, if you prepay this Loan Agreement in full or in part, no earned interest will be refunded. To process a partial or full prepayment or receive a payoff balance, you should call us (302-328-1370) or visit a store of your intent to prepay. Please note that the payoff amount will be calculated as of the date we debit Your Bank Account for the balance owing.

JX 19 at 2 (emphasis added). As structured, the first three sentences address prepayment, including the customer’s right to prepay any amount at any time. The italicized portion shifts to the customer the right to rescind the loan agreement within the first twenty-four hours after obtaining the loan. The last three sentences return to the concept of prepayment.

In my view, this is another provision that is “disadvantageous,” drafted in “language that is incomprehensible to a layman,” and designed to “divert [the customer’s] attention from the problems raised ,. or the rights given up.” Fritz, 1990 WL 186448, at *4. As drafted and implemented, it supports a finding of Uncon-scionability.

National argues that because James did not read the Loan Agreement, none of its terms should matter in the uneonseiónability analysis. When a business relies on a contract of adhesion, a court does not take into account whether the consumer has read the document: “Such a writing is interpreted wherever reasonable as treating .alike all those similarly situated, without regard to their knowledge or understanding of the standard terms of the writing.” Restatement (Second) of Contracts § 211(2) (emphasis added). “[C]ourts in construing and applying a standardized contract seek to effectuate the reasonable expectations of the average member of the public who accepts it.” Id. § 211, i cmt. e. This approach rests on the rationale that

[a] party who makes regular use of a standardized form of agreement does not ordinarily expect his customers to understand or even to read the standard terms. One of’the purposes of standardization is to eliminate bargaining over details - of individual transactions, and that purpose would not be served if a substantial number of customers retained counsel and reviewed the standard terms. Employees regularly using a form often have only- a limited understanding of its terms and-limited authority to vary them. Customers do not in fact ordinarily understand or even read the standard terms. They trust to the good faith of the party Using the form and to the tacit representation that like terms are being accepted regularly by others similarly situated. But they" understand that they are assenting to the terms not read or not understood, subject to such limitations as the law may impose.

Id., § 211 cmt. b,

The final factor relating to the contract terms is whether the agreement evidences “[a]n overall imbalance in the obligations and rights imposed by. the bargain.” Fritz, 1990 WL 186448, at *5. Some insight into this factor can be gleaned from the degree to which the Loan Agreement devoted attention to particular subjects.

The Loan Agreement covered six pages. Five contained substantive provisions. The sixth was a signature page. Of the *826five substantive pages, one full page of text (spanning most of page one and part of page two) created the most significant im-' balance in the agreement: the financial terms. In return for a loan of $200, James agreed to repay National $1,820, structured as twenty-six non-amortizing, interest-only payments of $60- followed by a balloon payment of $260. Another full page (spanning part of page two and most of page three) detailed National’s ability to make ACH withdrawals. A page and a half (spanning the bulk of page four and the bulk of page five) addressed the arbitration provision.

In total, the Loan Agreement devoted nearly two-thirds of its contents to these three subjects, evidencing their importance to National. Through these provisions, National imposed onerous financial terms and gave itself the right to collect unilaterally from James any amount it wished, up to the full amount of the loan plus fees and charges. National ensured ■ that in any challenge to the Disputed Loan, James would not be able to represent a class. She would have to challenge National alone, based on a loan where the amount in question vrould make the representation economically irrational for a.lawyer, unless he could recover .his fees from National. Moreover, unless James , opted out of the arbitration provision within sixty days— something that no customer other than James has ever done — then James would have to challenge the Disputed Loan in arbitration, which was National’s chosen forum. Taken as a whole, for purposes of the Fritz factors, the Loan Agreement evidences “[a]n overall imbalance in the obligations and rights imposed by the bargain.” Id.

2. Factors Relating To Procedural Unconscionability

The next four Fritz factors shed light on the concept of procedural -unconscionability. They are:

• Inequality of bargaining or economic power.

• Exploitation of the underprivileged, unsophisticated, uneducated, and illiterate.

• The use of printed form or boilerplate contracts drawn skillfully by the party in the strongest economic position, which establish industry-wide standards offered on a take it or leave it basis to the party in a weaker economic position.

• The circumstances surrounding the execution of the contract, including its commercial setting, its purpose, and actual effect.

As I see it, these factors help a court test the degree to which a seemingly disproportionate outcome could have resulted from legitimate, arms’-length bargaining. The first and second factors plumb this issue by considering the extent to which the parties to the agreement were capable of bargaining at arms’-length. A court rarely will intervene when the contracting parties are both commercial entities or otherwise sophisticated. By contrast, .a court may be more concerned where the contracting process involved significant inequalities of bargaining power, economic power, or sophistication, particularly between a business and a consumer. An aggravated version of this scenario arises when one of the parties is an individual who is underprivileged, uneducated, or illiterate.

The third and fourth factors similarly contribute by examining the degree to which actual.bargaining took place. The third factor considers whether the agreement is a contract of adhesion. The fourth factor takes into account the contracting environment, including the commercial setting and the purpose and effect of the disputed agreement.

*827Together, these factors weigh an initial showing of unfairness against the bargaining dynamic. If the contract resulted from legitimate negotiation, then a court should not intervene. “There is a significant distinction between an unconscionable contract and a bad bargain.” Obaitan v. State Farm, 1997 WL 208959, at *3 (Del. Ch. Apr. 17, 1997). “Parties have a right to enter into good and bad contracts, the law enforces both.” Nemec v. Shrader, 991 A.2d 1120, 1126 (Del. 2010). But if the contract appears fundamentally unfair and there are valid reasons to suspect that the outcome did not result from legitimate negotiation, then a different picture emerges.

a. The Attributes Of The Parties

The first two factors that fall under the heading of procedural unconscionability examine the relative attributes of the parties and whether they were capable of bargaining. The first of the two factors examines whether there is an “inequality of bargaining or economic power.” Fritz, 1990 WL 186448, at *5. The second considers whether the contract involved “exploitation of the underprivileged, unsophisticated, uneducated and the illiterate.” Id. To my mind, the second is an aggravated version of the first.

These factors do not mean that the law censures every power imbalance. To the contrary, “[a] bargain is not unconscionable merely because the parties to it are unequal in bargaining position, nor even because the inequality results in an allocation of risks to the weaker party.” Restatement (Second) of Contracts § 208, cmt. d. After all, “bargaining power will rarely be equal.” Progressive Int’l Corp. v. E.I. Du Pont de Nemours & Co., 2002 WL 1558382, at *11 (Del. Ch. July 9, 2002) (Strine, V.C.) (quoting Farnsworth on Contracts § 4.28 (2d ed. 2000)). Consequently, a “mere disparity between the bargaining power of parties to a contract will not support a finding of unconseiona-bility.” Graham v. State Farm Mut. Auto. Inc. Co., 565 A.2d 908, 912 (Del. 1989); accord Tulowitzki v. Atl. Richfield Co., 396 A.2d 956, 960 (Del. 1978) (“Superi- or bargaining power alone without the element of unreasonableness , does not permit a finding of unconscionability or unfairness.”),

“But gross inequality of bargaining power, together with terms unreasonably favorable to the stronger party, ... may show that the weaker party had no meaningful choice, no real alternative, or did not in fact assent or appear to assent to the unfair terms.” Restatement (Second) of Contracts § 208, cmt. d. The inequality must be sufficiently great' such that one side is placed at a meaningful disadvantage, and the court must find as part of its overall analysis that the stronger party used its position “to take unfair advantage of his weaker counterpart.” Graham, 565 A.2d at 912.

This approach manifests itself in a judicial reluctance to invalidate contracts between business'entities or other sophisticated parties. For example, Delaware courts are “particularly reluctant to find unconscionability in contracts between sophisticated corporations.” Reserves Mgmt., LLC v. Am. Acq. Prop. I, LLC, 86 A.3d 1119, 2014 WL 823407, at *9 (Del. Feb. 28, 2014) (ORDER). By contrast, courts are more willing to step in when a contract involves a business and a consumer.24 Delaware decisions also exhibit sen*828sitivity to situations in which a sophisticated actor has taken advantage of someone who is underprivileged, unsophisticated, uneducated, or illiterate. In the Ryan decision, for example, Chancellor Allen recognized that a constellation of attributes such as poverty, financial distress, and lack of sophistication can make an individual vulnerable. Ryan v. Weiner, 610 A.2d 1377, 1385 (Del. Ch. 1992) (Allen, C.).‘ He noted that although these disadvantages do not prevent a person from making a valid contract, they are factors that a court can take into account. See id.

The Disputed Loan was a contract between a business and a consumer. It therefore falls within the category of contracts where courts are relatively more likely to invoke the unconscionability doctrine.

More importantly, the Loan Agreement was a contract between (i) a specialized business addressing a target market of underprivileged, cash-constrained, and credit-rationed, consumers, and (ii) an unsophisticated member of the target market. The Disputed Loan thus raises concerns about predatory lending.25 Indeed, the experts and the supporting literature on alternative financial services find rare agreement on two points. First, the consumers who use the products tend to be cash-constrained and credit-rationed, meaning that they have limited resources and few, if any, credit alternatives.26 Sec*829ond, consumers typically use high-interest financial.products for necessities, such as food, rent, utility bills, and mortgage payments,27 meaning that they face an urgent need for funds.28 Defenders and critics of high-interest products differ only in how they spin these facts, Defenders view fringe products as virtuous, because they provide a form of credit, albeit at high cost, to consumers who otherwise would not have any. Critics charge that high-interest lenders take advantage of people in economic duress.

i. National

National specializes in providing high interest loans to underprivileged consumers who are cash-constrained and lack alternative sources of credit. When McFeeters acquired National, he applied to have National’s banking licenses renewed. See JX 4 (the “Licensing Application”). National disclosed in its Licensing Application that many, of its customers “have had credit problems in the past or have reached the maximum limit on their bank cards.” Id, at 510; see Tr. 371-72 (McFeeters).

National is a well-funded operation. The Licensing Application projected that National’s business model would generate free cash flow of $1.5 million to $2 million per year. Its actual performance has been on the order of $1 million per year.

National’s owner and its personnel are sophisticated and knowledgeable. McFeeters acquired National after working in the payday loan industry for approximately ten years.' In 2013, National had fourteen stores ‘throughout Delaware, which it ran using a centralized model. ‘ At trial, National maintained that it had a manual sétting out its policies and proce*830dures. Tracey- Annand, ¿ District Manager at National, trained all of National’s personnel. National employed legal counsel to draft its loan- agreements.

National’s employees recognize that'its customers have difficulty predicting how long their loans will be outstanding and virtually never estimate correctly when they will be able -to repay their loans. Customers who believe they will have a loan outstanding typically end up keeping the loan for “a couple months.” See Tr. 341 (Carter).

ii. James

James is unsophisticated and undereducated. She dropped out of school in, the tenth grade, then obtained her GED approximately ten years later. She tried to improve her skills through a nine-month course on medical billing and coding, but she stopped two months short of graduation. Evidencing her lack-of financial sophistication, she believed that the financial aid she received for the program was a grant. It was actually a loan that she struggled to pay back.

Further evidence of James’ lack of financial sophistication comes from her testimony about why she uses a pre-paid Nexis card. At trial, James explained that she previously had a checking account with PNC Bank but switched to her Nexis-card because she did not like paying a monthly fee to maintain the checking account, Before making the Disputed Loan, .National obtained a sixty-day transaction history for the Nexis account. It shows that during that period, James paid Nexis a total of $127.07 in transaction fees. Each time the Hotel DuPont paid James by direct deposit, Nexis charged her a load fee equal to 2% of the direct deposit amount. The load fees totaled $44.07. Each time James used her card to pay for a transaction and authorized it with- her signature, Nexis charged her a signature transaction fee of $1. She signed for twelve transactions for total signature fees of $12. Each time James used her card to pay for a transaction and authorized it with her pin number, Nexis charged her a PIN transaction fee of $1.50. She completed thirteen PIN transactions for total PIN fees of $19.50. Each time, James attempted a transaction and her card was declined, Nexis charged her a decline fee of $0.50. Her card was declined fourteen times for total decline fees of $7. Each time she withdrew cash, Nexis charged her an ATM usage fee of $2.50. She withdrew cash on twenty-one occasions for total fees of $52.50. The amounts of the cash withdrawals suggest that the' ATM provider also charged a withdrawal fee that was incorporated into the amount of the debit.

James does not appear to have comprehended the magnitude of the per-transaction fees that Nexis charged her, or the reality that those fees far exceeded the flat monthly fee that a bank would charge for a no-minimum-balance checking account, particularly where the client had direct deposit. She seems only to have considered the headline fee charged for the account each month.

James’ perception of the financial charge for the Disputed Loan reflected a similar short-term focus. National contended James understood the block rate she would pay, which was $30 on $100. It is true that James could recite the block rate, but that does not mean she understood its implications. To the contrary, the evidence convinced me that National used a block rate and de-emphasized the APR to mislead its customers and make them think their cost of credit was an order of magnitude lower than -it really was. James did not understand how interest accrued, and she did not understand what would happen upon default.

*831James underestimated her likelihood of repaying the Disputed Loan quickly. She thought she could pay it off in two payments, but she failed to do so. She similarly misremembered her success in repaying previous loans. She thought she paid off each of her previous loans in one or two payments, but for the previous loan's from National (the only loans in the record), James took longer. For the loan immediately preceding the Disputed Loan, there were seven attempted payments, four of which were declined..

James is also underprivileged. : In 2013, she took home approximately $1,100 per month, and .her annualized income of approximately $13,200 represented 115% of the federal poverty line for a single-person household. She lived paycheck to paycheck and had no savings to fall back on. She did not. have access to alternative sources of credit. By 2013, when James took out the Disputed Loan, she had been using high-interest, unsecured loans for four to five years, perhaps longer. She did not use the loans in response to unforeseen emergencies. She used them on a relatively regular basis for essential needs. She obtained the Disputed Loan because she needed money for groceries and rent. James’ frequent use of high-cost loans was a detriment and- should have been a red flag to National.

At trial, National'tried to turn 'James’ weakness into a strength, arguing that she was an experienced consumer who was competent to use high-interest financial products.’ Zywicki- stressed this point, contending'that James’ prior use of similar loans “suggested] that she was familiar with the material terms of the loan; understood the risks, and ’the like.” Tr. 509 (Zywicki); see id. at 523-24, 549-50. In' contrast to National’s arguments at trial, both defenders and critics of payday loans generally agree that’frequent use is problematic.29 ' ■

Given the relative attributes of National and James, the Disputed ‘ Loan involved both “inequality of bargaining or economic power” and the “exploitation of the underprivileged, unsophisticated, [and] uneducated.” Fritz, 1990 WL 186448, at *5. These factors favor a finding of uncon-scionability. , ‘

b. A Take-It-Or-Leave-It, One-Sided Form Agreement

The next Fritz factor ■ asks directly whether there was actual bargaining in*832volved. As framed in Fritz, the court should consider “[t]he use of printed form or boilerplate contracts drawn skillfully by the party in the strongest economic position, which, establish industry wide standards offered on a take it or leave it basis to the party in a weaker economic position.” Id. at *4. The type of standardized contract that this factor describes is also called a contract of adhesion. See Worldwide Ins. Gp. v. Klopp, 603 A.2d 788, 790 (Del. 1992); Graham v. State Farm Mut. Auto. Inc. Co., 565 A.2d 908, 912 (Del. 1989).

“[A] contract of adhesion is not unconscionable per se, and ... all unconscionable contracts are not contracts of adhesion.” Restatement (Second) of Contracts § 208, Reporter’s Note, cmt. a. Contracts of adhesion provide many benefits:

Standardization of agreements serves many of the same functions as .standardization of goods and services; both are essential to a system of mass production and distribution. Scarce and costly time and skill can be devoted to a class of transactions rather than to details of individual transactions. Legal rules which would apply in the absence of agreement can be shaped to fit the particular type of transaction, and extra copies of the form can be used for purposes such as record-keeping, coordination and supeiyision.... Operations are simplified and costs reduced, to the advantage of all concerned.

Id. § 211, cmt, a.

But standardized agreements also carry a heightened risk of unfair terms:

Standardized agreements are commonly prepared by one party. The customer assents to a few terms, typically inserted in blanks on the printed form, and gives blanket assent to the type of transaction embodied in thé standard form. He is commonly not represented in the drafting, and the draftsman may be tempted to overdraw in the interest of his employer. ■ :

Id., § 211, cmt. c. This dynamic creates an “obvious danger of overreaching.” Id. “The weaker party, in need of the good or services, is frequently not in a position to shop around for better terms, either because , the author of the standard contract has a monopoly (natural or artificial) or because all competitors use the same clauses.” 8 Williston on Contracts § 18:13 (quoting Weaver v. Am. Oil Co., 257 Ind. 458, 276 N.E.2d 144, 147 (1971)).

All else equal, the fact that an agreement is a contract of adhesion makes it relatively more likely that the agreement will be found unconscionable. Like the other Fritz factors, the fact that an agreément is a contract of adhesion is not sufficient, standing alone, to render an agreement unconscionable.

The Loan Agreement is a contract of adhesion. It was form agreement, drafted by National, and provided to James on a take-it-or-leave-it basis. James had no ability to negotiate the terms of the Loan Agreement. Other than to rely on the truism that a standard form agreement is not inherently unconscionable, National does not dispute this factor. National’s position is .correct, but this factor nevertheless favors a finding of unconscionability-

c. The Bargaining Environment

The final Fritz factor considers the “[t]he circumstances surrounding the execution of the contract.” 1990 WL 186448, at *4. One pertinent attribute is the commercial setting. Id. Another is whether a party confronts “an absence of meaningful choice.” Ketler v. PFPA, LLC, 132 A.3d 746, 748, 2016 WL 192599, at *2 (Del. 2016) (quotation marks omitted). A third is the “purpose and actual effect” of the agree*833ment. Fritz, 1990 WL 186448, at *4; see 6 Del. C. § 2-302(2) (instructing a court to consider “the purpose and effect” of the contract when evaluating unconscionability). For the Disputed Loan, that necessarily takes into account its relationship to the Payday Loan Law.

i. The Commercial Setting

James obtained the Disputed Loan from a small, store-front office. She was given the documents and told where to sign. Reilly’s main role was to try to induce her to take out twice the loan amount she wanted ($400 instead-,of $200). Those were not ideal conditions, but they were not,inherently oppressive. They are consistent with a standardized financial transaction accomplished through a contract of adhesion.

A more problematic issue is that National’s employees denigrate the importance of the APR while describing the interest rate in simplistic ways that are designed to mislead customers. For example, National takes the position that the APR “has nothing to do with the loan.” Tr- 335 (Carter). National’s employees suggest to borrowers that that the APR is “irrelevant” unless the loan remains outstanding for an entire year. Tr, 337 (Carter). If a customer only plans to keep the loan outstanding for a few weeks, then National’s employees discount the APR as “meaning[less].” Tr. 337-38 (Carter).

Instead of focusing on the APR, National’s employees describe the interest rate in terms that make the cost of the loan seem much lower. At trial, for example, James’ counsel and Vazquez had the following exchange;

Q: Typically, if someone comes in to borrow $100 at Loan Till Payday, what is the interest rate, that they pay?

A: 30 percent

Q: Your understanding is they pay 30 percent? Is that right?

A: It’s a 30 percent block rate.

Tr. 246 (Vazquez). Vazquez did not know how a 30% block rate compared to an APR. Tr. 254 (Vazquez).

These statements are highly problematic. By “describ[ing] the loan cost in terms of a misleading” bi-weekly rate, National understated the total cost of the Disputed Loan.30 Because. National framed the price as “$30 on $100,’’.James thought she would pay $60 for the $200. when she actually agreed to pay $1,620 in finance charges. James understood the simple block rate, but she did not understand the more complex financing arrangement captured by the Loan Agreement,

ii. Lack Of Meaningful Choice

A more significant aspect of the circumstances surrounding the Loan Agreement was James’ lack of ,a meaningful choice. When affirming a finding that .a contract of *834adhesion for membership in a fitness club was not unconscionable, the Delaware Supreme Court observed that “[t]here is no deprivation of meaningful choice if a party-can walk away from the contract.” Ketler, 132 A.3d at 748, 2016 WL 192599, at *2.

Unlike the choice to spend discretionary income on a fitness contract, James needed money for food and to pay her rent. She lived paycheck to paycheck, had no savings to fall back on, and did not have access to alternative sources of credit. She had reached a point where she was using high-interest, unsecured loans on a regular basis to make ends meet. As a practical matter, James’ precarious financial situation meant she did not "have meaningful options other than a high-interest loan like the Disputed Loan.

iii. The Purpose And Effect Of The Loan Agreement

Perhaps the most "critical aspect of the bargaining environment was "the purpose and effect of the Loan Agreement, which was to evade the Payday Loan Law. To reiterate, a traditional payday loan was a short-term loan designed to be repaid in a single balloon payment on the borrower’s next payday, usually within two weeks or, if the borrower was paid monthly, within one month: See Consumer Credit, supra, at 356 (“A payday loan is a small, short-term, single-payment consumer- loan.”). Many borrowers, however, "did not repay their loans when the balloon payments were due. When that happened, the payday loan company rolled the outstanding balance into a new payday loan for the total amount of unpaid principal and interest, plus fees. The short-term loan effectively became a.longer term loan at the same high interest rate. Consumer advocates regarded the rollover as “[p]erhaps the most dangerous feature of the payday-loan product.”31

To address the interest-only rollover problem in Delaware, the General Assembly adopted the Payday Loan Law. The synopsis of. the bill stated:

This bill limits to five the number of short-term consumer loans (sometimes called payday loans) that any one borrower may obtain in a twélve month period.1 It changes the definition of short-term consumer loan- to include loans up to $1000 rather than $500. The bill alsó provides for establishment of a database to track the number of short-term consumer loans ah individual has obtained in a twelve month period. Finally, the Banking Commissioner is directed to provide a report on the prevalence and nature of these payday loans to the General Assembly.

Del. H.B. 289 syn., 146th Gen. Assem. (2012). - '

The centerpiece of the legislation was the cap on the number of payday loans that any one consumer could obtain in a single twelve-month period, combined with a provision that defined a rollover as a new loan. The pertinent statutory language stated:

Notwithstanding any other provision of law, no licensee shall make, and no borrower shall receive, a short-term consumer loan that would cause the borrower to have more than five (5) short-term consumer loans from all licensees in any twelve-month period. For the purposes of this section a rollover or a refinancing shall be considered a short-term consumer loan. Any loan made or collected *835in violation of this paragraph is void, and the licensee does not have the right to collect, receive, or retain any principal, interest, fees or other charges. A violation of this section is a violation of Chapter 25 of Title 6 of the Delaware Code.32

5 Del. C. § 2235A(a)(l) (the “Five Loan Limit”; footnote added). The Five Loan Limit sought to help borrowers avoid being trapped in longer-term, ultra-high interest loans by capping the number of times that payday lenders could roll over payday loans.

Importantly, the Payday Loan Law only applied to short-term consumer loans, which the statute defined as “a loan of $1,000 or less made to an individual borrower that charges interest and/or fees for which the stated repayment period is less than 60 days and is not secured by title to a motor vehicle.” Id. § 2227(7). But the Payday Loan Law also incorporated an anti-evasion provision, which stated:

A licensee or licensee’s agent shall not engage in any device or subterfuge intended to evade the requirements of this chapter through any method including, but not limited to, mail, telephone, Internet or any electronic means, including:

(1) Offering, making, or assisting a borrower to obtain a loan in violation of [the Five Loan Limit], or brokering or acting as an agent for a third party in such a transaction, regardless of whether approval, acceptance or ratification is necessary to create a legal obligation for the third party.

(2) Disguising a short-term consumer loan as a revolving line of credit or making or assisting a borrower to obtain a revolving line of credit for the purpose of avoiding the requirements of [the Five Loan Limit],

Id. § 2235A(f) (the “Anti-Evasion Provision”).

The Payday Loan Law was enacted before McFeeters acquired National. Under its prior owner, National responded to the Payday Loan Law by capping the number of times a customer could rollover a payday loan. Loan Till Payday’s website described National’s “Quick Payday Loan” product as follows:

Term: One pay period (usually 2 weeks or 1 month)

Fee/Rate: $20 per $100 borrowed ($30 per $100 borrowed if you get paid monthly)

*836Payment Type: Payment in full due on each pay date. Option to roll over loan 4 times by paying the interest only. Af■ter the 4th rollover, payment in full (principle [sic] + interest) is due

Due: On each Pay Date[.]

JX 9 at 6. By limiting the customer to four rollovers, National stayed under the Five Loan Limit.

Once McFeeters acquired National, he caused National to stop making .payday loans and switch to installment loans. The new structure built the rollover problem into the design of the loan.

In its initial manifestation, National’s installment loan product was a seven-month term loan called the Flex Pay Loan. Its economic substance mirrored a one-month payday loan that was rolled over seven times (or a two-week payday loan that was rolled over fourteen times). Loan Till Payday’s website described the Flex Pay Loan product as follows:

Term: 7 Months.

Fee/Rate: $20 per $100 borrowed ($30 per $100 borrowed if you get, paid monthly)

Payment Type: Interest Only, Principle [sic] due at end of loan (Balloon Payment). You can pay more than interest and lower, your principle [sic] balance at any time. ...

Due: On each Pay Date[.]

Id.; see Tr. 272-73 (Vazquez). Because it was designed to. be outstanding for seven months, the Flex Pay Loan fell outside the coverage of the Payday Loan Law.

From an economic standpoint, however, the Flex Pay Loan product and the Quick Payday Loan product were functionally equivalent.33 The Quick Payday Loan product ostensibly contemplated full repayment in one period but could be extended longer with interest-only payments leading to a final balloon payment. The Flex Pay Loan product ostensibly contemplated a series of interest-only payments followed by a1 final balloon payment,' but the customer could pay it off earlier.34

National láter developed the Flex Loan product that it sold to James. The main difference was that the Flex Loan product contemplated twelve months of bi-weekly, interest-only payments before the final balloon payment.

Put simply, National designed its installment loan products to evade the Five Loan Limit. From National’s standpoint, the shift was actually beneficial, because the new products built the concept of interest-only rollovers into the loans themselves.

The Anti-Evasion Provision recognized the risk that a lender might disguise “a short-term, consumer loan as a revolving line of credit.”' 5 Del. C. § 2235A(f)(2). National took the opposite- approach. It disguised a short-term consumer loan as an interest-only, non-amortizing install*837ment loan. National’s shift to ■ interest-only installment loans as a means of evading the Five Loan Limit followed a strategy employed by payday lenders in other jurisdictions.35 '

3. Balancing The Factors

All of the Fritz factors point in favor of a finding of unconseionability, albeit to varying degrees. The most telling factors include (i) the economic terms of the Disputed Loan, which support a prima facie ease of substantive unconseionability, (ii) the purpose and effect of the installment loan structure- in circumventing the Payday Loan Law and the Five Loan Limit, and .(iii) the exploitation of. an underprivileged, undereducated, and financially vulnerable person. .Secondary factors include (a) the use of a contract of adhesion, .(b) the overall -imbalance of rights and obligations, and (c) National’s practices when describing the block rate finance charge versus the APR, which present a misleading picture of the cost of credit.

On balance, the Loan Agreement is unconscionable. No one would borrow rationally on the terms it contemplated unless that person was delusional, mistaken about its terms or a material fact, or under economic duress.

4. The Remedy For The Unconscionable Agreement

Because the Loan Agreement is unconscionable, it is voidable. The proper remedy is to declare it invalid. See Restatement (Second) of Contracts § 208, cmt. g.

Declaring the Loan Agreement invalid is likewise appropriate because National sought to use an interest-only, non-amortizing, installment loan to evade the Payday Loan Law. “Equity always attempts to ... ascertain, uphold, and enforce-rights and duties which spring from the real relations of parties.” 2 John Norton Pomeroy, Equity Jurisprudence § 378,. at 41 (Spencer W. Symons ed., 5th ed. 1941). “[Ejquity regards substance rather than form.” Monroe Park v. Metro. Life Ins. Co., 457 A.2d 734, 737 (Del. 1983). Equity also “regards that as done which in good conscience ought to- be done.”- Id. *838In substance, the Disputed Loan was a payday loan designed to roll over twenty-six times, which contravened the Five Loan Limit.

National loaned James $200. James has repaid National $197. As a consequence of rescinding the Loan Agreement, James owes National another $3. James may satisfy this obligation by setting it off against amounts that this decision orders National to pay.

James also asked for a permanent injunction barring National from collecting on similar loans it made to other customers. That relief is too broad to be granted in the current case and would embroil this court in on-going oversight of National’s business.

C. The Truth In Lending Act

James separately provided at trial that National violated TILA. Originally enacted in 1968, TILA’s stated goal is to “as1 sure a meaningful disclosure of credit terms so that .the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and , unfair credit billing and credit card practices.” 15 U.S.C. § 1601(a). The Board of Governors of the Federal Reserve System implemented this disclosure-based regime through Regulation Z, which requires lenders to calculate and disclose interest rates according to a prescribed formula. See 12 C.F.R. part 226 (2011). Consumers have standing to enforce the Federal Reserve’s rules through private litigation. See 26 Causes of Action 2d § 409 (2004).

.TILA applies to closed-end consumer credit transactions like the Disputed Loan.36 A lender violates TILA if it discloses an APR on a consumer loan that is “more than 1/8 of 1 percentage point above or below” the APR determined in accordance with certain actuarial methods. 12 C.F.R. § 226.22(a)(2). There is a statutory defense for inadvertent mistakes made in good faith:

A creditor or assignee may not be held liable in any action brought under this section or section 1635 of this title for a violation of this subchapter if the creditor or assignee shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error. Examples of a bona fide error include, but-are not limited to, clerical, calculation, computer malfunction and programming,' and printing errors, except that an error of legal judgment with- respect to a person’s. obligations under this subchapter is not a bona fide error.

15 U.S.C. § 1640(c) (the “Bona Fide Error Defense”). For purposes of APR calculation errors, the Federal Reserve has issued a regulation providing that a creditor can establish a Bona Fide Error Defense by proving that “(1) [t]he error resulted from a corresponding error in a calculation tool used in good faith by the creditor; and (2) upon discovery of the error, the creditor promptly discontinue[d] use of that calculation tool for disclosure purposes and notifie[d] the [Federal Reserve] in writing of the error in the calculation tool.” 12 C.F.R. § 226.22(a)(1) n.45d. This decision applies the regulatory test *839for the Bona Fide Error Defense because it speaks specifically to an APR calculation error. Cf. Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 557, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980) (stating that courts should give “a high degree of deference” to the Federal Reserve’s interpretation of TILA).

As a sanction' for National’s discovery misconduct, this court previously determined that the “APRs for the loans disclosed on the Updated Spreadsheet fell outside the acceptable range set forth in TILA.” James v. Nat’l Fin. LLC, 2014 WL 6845560, at *13 (Del. Ch. Dec. 5, 2014). The Disputed Loan was . one of the loans on the spreadsheet. The operative question is whether National established a Bona Fide Error Defense.

National failed to prove its Bona Fide Error Defense. Although National claims to have relied on computer software to calculate the APR, the Delaware Bank Commissioner told National on multiple occasions that it had concerns about National’s APR calculations. ■ Nationál did not promptly discontinue its use of its computer software and did not provide notice in writing to the Federal .Reserve. National only discontinued its use of the software in 2014, a year after making the Disputed Loan.

TILA contemplates an award of actual damages if the plaintiff proves that she relied on the incorrect APR. See, e.g., Turner v. Beneficial Corp., 242 F.3d 1023, 1026-28 (11th Cir. 2001) (collecting cases and analyzing TILA’s history). James did not rely on the incorrect figure, so she cannot recover actual damages.

TILA also contemplates statutory damages. 15 U.S.C. § 1640(a)(2). In the event of a violation, a court should award “in the case of an individual action twice the amount of any finance charge in connection with the transaction.” Id. § 1640(a)(2)(A)(i). The finance charge “is the cost of consumer credit as a dollar amount” and includes interest, transaction charges, fees, and any other charges other than repayment of principal. 12 C.F.R. § 226.4(a)-(b),

The finance charge for the Disputed Loan was $1,620. Twice this amount is $3,240. Offsetting the $3.that James still owes National results in a judgment for James in the amount of $3,237. ;

TILA directs the court to award reasonable attorneys’ fees and costs “in the case of any successful action to enforce” liability under § 1640(a)(2)(A)(i). ' 15 U.S.C. § 1640(a)(3). James is entitled to a fee award.

III. CONCLUSION

The Disputed Loan is invalid. Judgment is entered in favor of James in the amount of $3,237. Pre- and post-judgment interest on this amount will accrue at the legal rate, compounded quarterly, beginning on May 7, 2013. James is awarded her attorneys’ fees and costs. Counsel shall submit a Rule 88 affidavit. If the parties can agree on an amount, then they shall submit a form of final order and judgment that is agreed as to form. Otherwise they shall propose a schedule for a fee application.

Borden, J.

The defendants Luis A. Montes and Dalila Montes1 (defendants) appeal2 from the judgment of strict foreclosure by the trial court rendered in favor of the plaintiff, Cheshire Mortgage Service, Inc., on the plaintiffs complaint, and from the judgment rendered in favor of the plaintiff on the defendants’ counterclaims. The defendants claim that the trial court’s decision was improper because: (1) the terms and conditions of two second mortgage loan transactions were unconscionable; (2) the plaintiff violated the federal Truth in Lending Act (TILA) by its failure accurately to disclose and include, in the finance charge, a fee that it charged the defendants for recording a future assignment of the second mortgage; (3) the plaintiff violated General Statutes § 36-224l3 by charg*83ing the defendants a prepaid finance charge that exceeded 10 percent of the principal amount of the loan; and (4) based on the defendants’ first three claims,4 the plaintiff violated the Connecticut Unfair Trade Practices Act (CUTPA), codified in General Statutes § 42-110a et seq.5 We reverse and remand the case to the trial court for further proceedings.

The relevant facts are as follows. The defendants were a married couple from Puerto Rico who had been *84living on the mainland of the United States for more than twenty years. In February, 1984, the defendants purchased a home in New Haven for $25,000.6 They financed the purchase with a down payment of $3000 and a $23,700 mortgage loan from People’s Bank, with monthly mortgage payments of $407. In July, 1987, Tech Energy, a Connecticut home repair and improvement company, contacted Dalila Montes and offered to provide vinyl siding for the defendants’ home at a cost of approximately $10,000. The defendants agreed to purchase the siding, and thereafter Tech Energy submitted a loan application of the defendants to the Tolland Bank in order to finance the cost of the siding. The loan application stated that the defendants had a monthly income of $1195. Tolland Bank denied the application.

Tech Energy then submitted the same Tolland Bank loan application to the plaintiff in order to obtain a second mortgage loan. The plaintiff approved the loan based upon the following factors, in addition to the information contained in the loan application. The plaintiff had obtained a credit report indicating that the defendants had been regularly paying their first mortgage loan to People’s Bank. The plaintiff also took into consideration the fact that there was “good loan equity in this case” and that the funds were going to be used to improve the property and, thus, the security for the loan. Furthermore, Dalila Montes stated to the plaintiff’s president that, in addition to the income listed on the application form, Luis Montes “had some additional income” from work in “some sort of trade.” Neither the plaintiff nor the defendants documented the amount of this additional income or its specific source. On the basis of the foregoing information, the plaintiff approved the loan and placed the defendants in a “no-income verification loan program.” Under the “no-*85income verification loan program” the plaintiff did not require the defendants to verify the amount of Luis A. Montes’ additional income.

The loan closing was held on November 16, 1987. The defendants were required to grant to the plaintiff a second mortgage on their residence in order to secure the loan. In order for the plaintiff to obtain a second mortgage position, however, it was necessary to pay off three prior liens on the defendants’ residence—a lien held by the state for child support in the amount of $8950, a lien held by the city of New Haven welfare department in the amount of $1290.31 and a judgment lien for a medical bill in the amount of $2431. These prior liens on the residence totaled $12,671.31. Therefore, the principal amount of the loan, as stated in the note and the loan closing statement, was $26,500,7 which included the payment of the prior liens, $9902 for the cost of the siding,8 $1300 in closing costs,9 a $2500 prepaid finance charge and $126.69 paid directly to the defendants. The annual interest rate was 18 percent. The promissory note provided that the defendants were to make thirty-five monthly payments of $399.38, and a final “balloon” payment of $26,810.61.

*86Approximately seven months later, after they had made seven timely mortgage payments, the defendants sought another loan for approximately $9000 from the plaintiff to be used for additional improvements to their home in order for them to sell it within one year. On the basis of a new credit report indicating that the defendants had continued to pay their first mortgage and had made every payment on the plaintiffs second mortgage, the plaintiff approved the new loan. The loan closing was held on May 26, 1988.10 The principal amount of the new loan, as stated in the note and the loan closing statement, was $43,500,11 which included $27,070.05 to pay off the November, 1987 loan, $2451.33 in closing costs,12 a $4350 prepaid finance charge and $9628.62 paid directly to the defendants. The annual interest rate was 19 percent. The promissory note provided that the defendants were to make thirty-five monthly payments of $691.17, and a final “balloon” payment of $44,075.03. The defendants made no payments on this mortgage loan.13

*87The plaintiff thereafter filed this foreclosure action. The defendants proffered special defenses, alleging failure to release the November, 1987 mortgage, an unconscionable contract and a violation of General Statutes § 36-2241. The defendants also filed counterclaims alleging violations of CUTPA, TILA and § 36-224l. The trial court rejected the defendants’ special defenses and counterclaims and rendered a judgment of strict foreclosure. The defendants appealed to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

I

The defendants’ first claim is that the trial court improperly concluded that the terms of the two second mortgage loan transactions were not unconscionable and thus were enforceable. The defendants argue that the loan transactions were procedurally unconscionable, due to the defendants’ “lack of knowledge and lack of voluntariness,” and that the transactions were substantively unconscionable due to the “oppressive character of the contract terms.”14 We conclude, however, from the facts as found by the trial court and as supported by sufficient evidence in the record, that the mortgage transactions in question were not unconscionable.

We first consider our standard of review of a claim of unconscionability. “The question of unconscionability is a matter of law to be decided by the court based on all the facts and circumstances of the case. Iamar*88tino v. Avallone, 2 Conn. App. 119, 125, 477 A.2d 124 (1984); see Hamm v. Taylor, 180 Conn. 491, 493, 429 A.2d 946 (1980). Fairfield Lease Corporation v. Romano’s Auto Service, 4 Conn. App. 495, 498, 495 A.2d 286 (1985). Thus, our review on appeal is unlimited by the clearly erroneous standard. Iamartino v. Avallone, supra.” (Internal quotation marks omitted.) Texaco, Iñc. v. Golart, 206 Conn. 454, 461, 538 A.2d 1017 (1988). This means that the ultimate determination of whether a transaction is unconscionable is a question of law, not a question of fact, and that the trial court’s determination on that issue is subject to a plenary review on appeal. It also means, however, that the factual findings of the trial court that underlie that determination are entitled to the same deference on appeal that other factual findings command. Thus, those findings must stand unless they are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). This is particularly apt in a case such as this, where the factual claims involve the extent of the defendants’ lack of commercial acumen, their unfamiliarity with the English language resulting in their inability to comprehend the terms of the mortgage that they signed, and their unfamiliarity with the ordinary incidents of mortgage loans. The trial court is in a unique position to assess such factual questions.

“The purpose of the doctrine of unconscionability is to prevent oppression and unfair surprise. J. Calamari & J. Perillo, Contracts (3d Ed.) § 9-40.” Edart Truck Rental Corporation v. B. Swirsky & Co., 23 Conn. App. 137, 142, 579 A.2d 133 (1990). “As applied to real estate mortgages, the doctrine of unconscionability draws heavily on its counterpart in the Uniform Commercial Code which, although formally limited to transactions involving personal property, furnishes a useful guide for real property transactions. Olean v. Treglia, 190 *89Conn. 756, 762, 463 A.2d 242 (1983); Hamm v. Taylor, [supra, 495].” Iamartino v. Avallone, supra, 125; see generally A. Leff, “Unconscionability and the Code—The Emperor’s New Clause,” 115 U. Pa. L. Rev. 485, 546, 550-53 (1967); M. Ellinghaus, “In Defense of Unconscionability,” 78 Yale L.J. 757, 812-14 (1969). “As Official Comment 1 to § 2-302 of the Uniform Commercial Code suggests, [t]he basic test is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract. Hamm v. Taylor, supra, 495-96.” (Internal quotation marks omitted.) Texaco, Inc. v. Golart, supra, 462. The determination of unconscionability is to be made on a case-by-case basis, taking into account all of the relevant facts and circumstances. Id. Applying this test to the underlying facts found by the trial court, we conclude that the defendants have not established that the mortgage transactions in question were either procedurally or substantively unconscionable.

The defendants argue that the mortgage loan transactions were procedurally unconscionable due to their “lack of knowledge” about the terms of the loans and their “lack of voluntariness” in entering into the loans. The defendants argue that because of their illiteracy in English and their lack of business acumen, the terms of the mortgages unfairly surprised them and that, therefore, there was a “lack of voluntariness” in the transactions. The defendants bolster this claim by the fact that they were unrepresented by counsel in both loan transactions. They contend, moreover, that they did not know that they would have to pay off the prior liens on their home in order to obtain the November, 1987 mortgage loan. Were the defendants’ arguments *90based upon favorable factual findings, they might well have prevailed on appeal. Their assertions, however, are contrary to the facts found by the trial court.

The trial court found, on the basis of its observation of both defendants, who testified without the aid of a Spanish interpreter, that neither defendant had any difficulty with the English language, in understanding any questions put to them by counsel or the court, or in understanding the judicial proceedings. The court also found that the defendants had entered into a prior mortgage transaction, namely, their first mortgage with People’s Bank. The court further found that the defendants were “intelligent and energetic” persons, and that, having lived in the mainland United States for more than twenty years, they understood its judicial, “legal and financial systems.” Finally, the court found that the defendants defaulted on the mortgage, not because they did not understand their obligations thereunder or because their income while living together was insufficient to support the mortgage payments, but because the breakdown of their marriage subsequent to the mortgage closing impaired their financial situation. These findings are adequately supported by the evidence in the record.

Both defendants testified that the attorney closing the loan fully explained the documents to them. Luis Montes testified that he had no questions and Dalila Montes testified that she fully understood the terms of the loan. The attorney for the plaintiff testified that he had spent approximately one-half hour fully explaining each document to them. Furthermore, Dalila Montes testified that although the plaintiff’s lending officer spoke both English and Spanish, Dalila Montes spoke to her only in English. Regarding the defendants’ lack of business acumen, the defendants had been through a loan closing once before when they had purchased their home and, therefore, the trial court was *91entitled to infer that they had had some experience with loan transactions. Moreover, although the defendants had a right to be represented by their own counsel, which was fully explained to them by the plaintiffs attorney, the defendants signed a form waiving that right. Also, the plaintiffs president testified that “[e]very customer we work on is told right up front [that] we would have to secure a second position on the security.” The trial court could infer from this statement that the defendants were so informed. Further, it is clearly stated on the forms, which were fully explained to the defendants, that the prior liens on their home were being paid. There was evidence, moreover, that the defendants’ financial situation had deteriorated after they had separated, and that Dalila Montes had used some of the mortgage proceeds to pay her legal fees resulting from their marital dissolution. Finally, although Dalila Montes testified that she could not read or write in any language and although Luis Montes testified that he speaks English only a “little bit,” the trial court was not required to, and did not, credit that testimony.

Thus, the trial court’s findings, adverse to the defendants’ claims of procedural unconscionability, are supported by the record and are not clearly erroneous. On the basis of those findings and the record, we cannot conclude that this transaction was procedurally unconscionable as a matter of law.

The defendants next argue that the mortgage loan transactions were substantively unconscionable due to the oppressive “mathematics” of the loan transaction. This claim is based on the defendants’ contention that they had only the $1195 in monthly income listed on the loan application form with which to pay the $1098 monthly mortgage payments due for the first and second mortgages. Thus, the defendants argue, they were left with only $97 per month for living expenses after *92the mortgage payments. On the basis of these figures, they claim “it is obvious that [the plaintiff did not] believe the defendants would make the payments,” and that the plaintiff intended only to foreclose on the loan in order to reap the equity in their home. This argument, however, like the defendants’ earlier arguments regarding procedural unconscionability, founders on the absence of a factual foundation. First, the trial court did not find either that the plaintiff believed that the defendants would fail to make their mortgage payments, or that the plaintiff intended simply to reap the defendants’ equity in the home by making a loan to them that the plaintiff knew they could not repay. Nor is such a finding compelled by this record, because there was evidence to support a contrary finding, namely, that the defendants were able, and considered themselves able, to make the payments.15

The plaintiff’s president testified that Dalila Montes had told the plaintiff that her husband had additional income. Therefore, the plaintiff could reasonably have believed that the defendants had more monthly income than was reported on the loan application form. Such a belief was somewhat bolstered by the fact that the defendants had made every mortgage payment on their first mortgage and had made all seven payments on the initial, November, 1987 loan.16 Moreover, the *93defendants represented to the plaintiff that they intended to use the loan proceeds to improve their home so that they could sell it within one year. Since the defendants had made the previous seven loan payments, there was evidence to support a finding that the plaintiff could have reasonably believed that the defendants would continue to do so until they sold the property within the year. Moreover, the trial court specifically found that the defendants’ separation and marital dissolution caused their default. Thus, although in a case where the court has found an intentional reaping of equity a mortgagor might prevail on a claim of unconscionability, this record does not compel such an inference.

The defendants next argue that it was unconscionable for the plaintiff to charge a 10 percent prepaid finance charge on the November, 1987 loan transaction and then charge another 10 percent prepaid finance charge again, within six months, on the May, 1988 loan transaction. We disagree.

General Statutes § 36-2241 permits a person engaged in the secondary mortgage loan business, such as the plaintiff, to charge prepaid finance charges in an amount not greater than 10 percent of the principal amount of the loan. See footnote 3, supra. The November, 1987 transaction was unrelated to the May, 1988 transaction. The defendants sought the loan in November, 1987, in order to finance vinyl siding for their home. In May, 1988, the defendants sought a loan for additional home improvements, with the intention to sell the property within one year.

Had the defendants obtained the May, 1988 loan from a second mortgage company other than the plaintiff, *94that company certainly could have required payment of the November, 1987 loan in order to secure a second mortgage position and could have charged 10 percent in prepaid finance charges pursuant to § 36-224l. Thus, the fact that the plaintiff charged the same amount for undertaking a new and increased risk does not ipso facto make this transaction unconscionable. Moreover, there was no evidence that the interest rates or points charged on either loan, or on the two loans taken together, were beyond the ordinary charges then prevailing in the secondary loan market. Indeed, the only evidence regarding that issue was that those charges were “in the middle of the market on the private sector loan.” We cannot conclude, therefore, that, solely because the plaintiff charged a total of twenty points on two separate, albeit closely related in time, loan transactions, that the second loan transaction was unconscionable.

In sum, while the defendants may have been imprudent in entering into the May, 1988 transaction, we cannot conclude, on the basis of the record in this case, that the defendants were oppressed or unfairly surprised, or that the terms of the transactions were so one-sided as to be unconscionable as a matter of law.

II

The defendants’ second claim is that the plaintiff violated the federal Truth in Lending Act (TILA) by its failure accurately to disclose and include, as part of the finance charge, a fee that it charged the defendants for recording a future assignment of the May, 1988 mortgage. The defendants seek, therefore, to rescind the May, 1988 mortgage loan transaction. The plaintiff claims that such fees are specifically exempted from the finance charge and, therefore, it was not required to disclose and include such a charge in the finance charge. We agree with the defendants that the plaintiff violated TILA.

*95The following facts are relevant to this issue. In both the November, 1987 and May, 1988 mortgage loan transactions, the plaintiff included in the amount financed by the defendants a fifty dollar recording fee.17 In both transactions the plaintiff also charged the defendants a prepaid finance charge. During the trial, the plaintiffs president testified that the fifty dollar recording fee charged in each transaction included fees to record the mortgage, to record any releases, and to record any future assignment of the mortgage to a buyer of the mortgage loan. Thus, in the November, 1987 loan transaction, $27.50 was charged to the defendants to record the mortgage and releases, pursuant to General Statutes § 7-34a (a),18 and $22.50 was charged to record, in the future, the assignment of the mortgage to a buyer of the mortgage loan.19 The plaintiff, however, *96never assigned the mortgage and, thus, never incurred a recording fee for such an assignment. In the May, 1988 loan transaction, $17.50 was charged to record the mortgage and to record the release of the November, 1987 mortgage, and $32.50 was charged to record any future assignment of the mortgage.20 This mortgage, however, was also never assigned. The defendants claim that the failure accurately to disclose and include, in the finance charge, the fees charged to the defendants to record a future assignment of the mortgage violated TILA. We agree.

“We approach this question according to well established principles of statutory construction designed to further our fundamental objective of ascertaining and giving effect to the apparent intent of the legislature. State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984). In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 572, 522 A.2d 763 (1987) .... Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 589, 522 A.2d 771 (1987).” (Internal quotation marks omitted.) Lauer v. Zoning Commission, 220 Conn. 455, 459, 600 A.2d 310 (1991).

The federal Truth in Lending Act, as amended in particular by the Truth-in-Lending Simplification Reform *97Act of 1980, was enacted as part of the Consumer Credit Protection Act of 1968, and is codified at 15 U.S.C. § 1601 et seq. The purpose of TILA is “to promote the informed use of consumer credit by requiring disclosures about its terms and cost.” 12 C.F.R. § 226.1 (b). Title 15 of the United States Code, § 1604 provides that “[t]he Board [of Governors of the Federal Reserve System] shall prescribe regulations to carry out the purposes of this title [15 U.S.C.S. § 1601 et seq.]” That board has promulgated TILA regulations, known as Regulation Z, which are codified at 12 C.F.R. § 226.1 et seq. (Regulation Z).

“The regulations adopted by the Federal Reserve Board pursuant to authority of the Truth in Lending Act require that the cost of credit, or, in the words of the regulations, the ‘finance charge’ be clearly disclosed and that its component charges be identified.” George v. General Finance Corporation of Louisiana, 414 F. Sup. 33, 34 (E.D. La. 1976). We must first determine, therefore, whether a fee charged to a borrower to record a future mortgage assignment is a finance charge. If we conclude that such a fee is a finance charge, we must then determine what disclosure requirements TILA imposes on a lender and whether the plaintiff violated TILA by not complying with those requirements.

Regulation Z, § 226.4 (a) defines a finance charge as “the cost of consumer credit as a dollar amount. It includes any charge payable directly or indirectly by the consumer and imposed directly or indirectly by the creditor as an incident to or a condition of the extension of credit.”21 Based on this definition, a fee charged *98to a borrower to record the future assignment of a mortgage is a finance charge because it certainly is a charge payable directly by the consumer and imposed directly by the creditor as an incident to the extension of credit. This conclusion is bolstered by Regulation Z, § 226.4 (b) (6) which states that a finance charge includes “[c]harges imposed on a creditor by another person for purchasing ... a consumer’s obligation, if the consumer is required to pay the charges in cash as an addition to the obligation . . . .” In the present case, the plaintiff required the defendants to pay in cash a “[charge] imposed on [the plaintiff] by another person [namely, an assignee,] for purchasing . . . [the defendants’] obligation . . . .”

The plaintiff argues, however, that a charge for the future assignment of the mortgage falls within two exemptions from the definition of finance charge—Regulation Z, § 226.4 (c) (7) (i) and (e) (1). We do not agree.

Regulation Z, § 226.4 (c) (7) (i) excludes from the definition of finance charge “[f]ees for title examination, abstract of title, title insurance, property survey, and similar purposes.” A fee for recording a future assignment of the mortgage is not a fee for such a “similar [purpose].” The purposes of the specified fees are to ensure that the borrower actually owns the property in question, and that the lender’s security interest therein is protected. Recording of a potential future assignment, however, does not share either of those closely related purposes; rather, it relates solely to the lender’s future attempt to realize its investment in the mortgage.

Similarly, Regulation Z, § 226.4 (e) (1) specifically exempts certain security interest charges from the definition of finance charge, including “fees prescribed by law that actually are or will be paid to public officials *99for . . . perfecting . . . a security interest.” A fee for recording a future assignment of the mortgage does not relate to a perfection of the security interest created by the mortgage. That security interest was perfected when the mortgage itself was recorded. Furthermore, those two sections of Regulation Z apply to fees charged to a borrower that relate to the loan transaction at hand. In the present case, the potential assignment of the mortgage to another person would have been unrelated to the loan made to the defendants, but would have related to a separate future transaction between the plaintiff and a buyer of the mortgage loan. Our conclusion is supported by 15 U.S.C. § 1605 (d) and (e), which exclude certain fees from the definition of finance charge if they are fees “with respect to that transaction.”22 (Emphasis added.) We conclude, therefore, that *100a fee charged to a borrower to record the future assignment of a mortgage is a finance charge and that since, in the present case, the charge was paid at the consummation of the transaction, it was a prepaid finance charge.23 Our conclusion is in accord with at least one other court. See In re Brown, 106 B.R. 852 (Bankr.E.D. Pa. 1989); but see Shroder v. Suburban Coastal Corporation, 729 F.2d 1371 (11th Cir. 1984).24

Having concluded that the fee charged to the defendants to record the future assignment of the mortgage was a prepaid finance charge, we next consider what disclosure requirements TILA imposed on the plaintiff and whether the plaintiff complied with such requirements. A lender is required to make “material disclosures” to a borrower and, if it fails to do so, the borrower has the right to rescind the loan transaction. Regulation Z, § 226.23 (a) (3). Regulation Z, § 226.23 (a) (3) n.48 provides that “[t]he term material disclosures means [inter alia,] the required disclosures of the . . . finance charge . . . .” (Emphasis in original.) Regulation Z, § 226.18 requires: “For each transaction the creditor shall disclose the . . . (d) . . . *101finance charge . . . .”25 Regulation Z, § 226.18 (c) (1) (iv) further mandates a lender to itemize, in the amount financed, the “prepaid finance charge.” Thus, the failure of a lender accurately to disclose both the prepaid finance charge and the overall finance charge constitutes a violation of TILA.

In the present case, the prepaid finance charge that was disclosed to the defendants in the November, 1987 loan transaction was $2500. The actual finance charge, however, that should have been disclosed was $2522.50, which included the $22.50 future mortgage assignment recording fee that was charged to the defendants. Similarly, the finance charge that was disclosed to the defendants in the May, 1988 loan transaction was $4350. The actual finance charge, however, that should have been disclosed was $4405, which included the $32.50 charge to the defendants for the future assignment of the May, 1988 mortgage and the $22.50 charge to the defendants for the future assignment of the November, 1987 mortgage, mortgages that were never actually assigned.26 Thus, the plaintiff failed accurately to disclose and include the future mortgage assignment recording fee in the prepaid finance charge. Since this charge was not included in the prepaid finance charge, the overall finance charge was also underdisclosed. This resulted in a material nondisclosure in violation of TILA and, therefore, the defendants had the right to rescind the May, 1988 loan transaction. We recognize that non*102disclosure of a $55 fee may seem minuscule in the context of a $43,500 loan transaction. “However, once the court finds a violation, no matter how technical, it has no discretion with respect to the imposition of liability.” Grant v. Imperial Motors, 539 F.2d 506, 510 (5th Cir. 1976); see also Lewis v. Award Dodge, Inc., 620 F. Sup. 135 (D. Conn. 1985) (failure of creditor to disclose $1 as filing fee to list creditor’s security interest violated TILA).27

Having concluded that the plaintiff violated TILA by failing accurately to disclose and include, in the prepaid finance charge, the future mortgage assignment recording fee, we next turn to the defendants’ remedies for such a violation. Regulation Z, § 226.23 (a) (1) provides that “[i]n a credit transaction in which a security interest is or will be retained . . . each consumer . . . shall have the right to rescind the transaction . . . .” Regulation Z, § 226.23 (a) (3) further provides that “[i]f the required . . . material disclosures are not delivered, the right to rescind shall expire 3 years after consummation [of the transaction] . . . .”28 Thus, the defendants had the right to rescind the May, 1988 loan transaction within three years of the consummation of the loan transaction. The defendants claim *103that since they rescinded the loan on October 15, 1990, within three years of the May, 1988 transaction, they timely rescinded the transaction. Because the issue of whether the defendants effectively rescinded the transaction was not considered by the trial court and was not briefed on appeal, we remand the case to the trial court for a determination of the rights and remedies afforded the defendants for the plaintiffs TILA violation.

III

The defendants’ third claim is that the plaintiff violated General Statutes § 36-2241; see footnote 3, supra; in the May, 1988 loan transaction by charging the defendants a prepaid finance charge that exceeded 10 percent of the principal amount of the loan. On the basis of our analysis in part II of this opinion, we agree.

Section 36-224l (a) provides in relevant part that “[n]o person engaged in the secondary mortgage loan business in this state as a lender or a broker . . . may (1) charge . . . directly or indirectly, as an incident to or a condition of the extension of credit in any secondary mortgage loan transaction, any loan fees, points, commissions, transaction fees or similar prepaid finance charges determined in accordance with chapter 657 and regulations adopted thereunder which exceed in the aggregate ten per cent of the principal amount of the loan . . . .” The statute is clear and unambiguous on its face that a second mortgage lender cannot charge a prepaid finance charge that exceeds 10 percent of the principal amount of the loan. In the present case, the principal amount of the May, 1988 loan was $39,150.29 *104As we concluded in part II of this opinion, the actual amount of the prepaid finance charge was $440530 or approximately 11 percent of the principal amount of the loan.31 Therefore, the plaintiff violated § 36-224l32 *105with respect to the May, 1988 loan transaction.33 Having concluded that the plaintiff violated § 36-224l (a), we remand the issue of the defendants’ remedies to the trial court.34

IV

The defendants’ final claim is that the plaintiff violated the Connecticut Unfair Trade Practices Act (CUTPA); see footnote 5, supra; because of: (1) the unconscionability of the mortgage loan transactions; (2) the plaintiff’s violation of General Statutes § 36-224l; and (3) the plaintiff’s violation of the federal Truth in Lending Act (TILA). We agree that the plaintiff’s violation of § 36-224l and TILA constituted a violation of CUTPA.35

It is well settled that in determining whether a practice violates CUTPA we have “adopted the criteria set out in the ‘cigarette rule’ by the federal trade commission for determining when a practice is unfair: ‘(1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public *106policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessmen].’ Conaway v. Prestia, [191 Conn. 484, 492-93, 464 A.2d 847 (1983)], quoting FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244-45 n.5, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972) [Sperry] . . . .” McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 567-68, 473 A.2d 1185 (1984).

“All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three. Statement of Basis and Purpose, Disclosure Requirements and Prohibitions Concerning Franchising and Business Opportunity Ventures, 43 Fed. Reg. 59,614, [and] 59,635 (1978).” (Internal quotation marks omitted.) Id., 569 n.15. “Thus a violation of CUTPA may be established by showing either an actual deceptive practice; see, e.g., Sprayfoam, Inc. v. Durant’s Rental Centers, Inc., 39 Conn. Sup. 78, 468 A.2d 951 (1983); or a practice amounting to a violation of public policy. See, e.g., Sportsmen’s Boating Corporation v. Hensley, [192 Conn. 747, 474 A.2d 780 (1984)].” Web Press Services Corporation v. New London Motors, Inc., 203 Conn. 342, 355, 525 A.2d 57 (1987). Furthermore, a party need not prove an intent to deceive to prevail under CUTPA. See id., 363 (knowledge of falsity, either constructive or actual, need not be proven to establish CUTPA violation).36

*107The first criterion of the Sperry rule requires us to consider whether the unfair practice alleged, in the present case, a violation of § 36-2247 and TILA, offends public policy to the extent that it constitutes a breach of established concepts of fairness. Web Press Services Corporation v. New London Motors, Inc., supra, 355. We conclude that the plaintiff’s violations of both statutes amount to such a breach. This conclusion is bolstered by the fact that the plaintiff violated two different statutes, each implementing different public policies and effectuating those policies through different legislative means. An examination of each statute’s public policies, and means of effectuating those policies, is necessary.

The primary public policy underlying TILA is to promote “the informed use of consumer credit.” 12 C.F.R. § 226.1 (b). Title 15 of the United States Code, § 1601 (a) states in relevant part that “the purpose of [TILA is] to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices.” (Emphasis added.) The House of Representatives report accompanying TILA *108provides that “[y]our committee believes that ... the credit disclosure features of [TILA] . . . [are] fundamental to its legislative purpose. This aspect of the bill is designed to provide consumers with basic information in connection with their credit transactions so that they may effectively ‘comparison shop’ for credit in order to obtain credit on the most favorable terms available in the market place.” (Emphasis added.) H. Rep. No. 1040, 90th Cong., 1st Sess. 18, reprinted in 1968 U.S. Code Cong. & Admin. News 1975. Thus, TILA seeks to effectuate its public policy of promoting the informed use of credit by requiring lenders to disclose credit terms to consumers.

By promoting the informed use of credit, TILA also seeks to increase competition and to protect consumers from unfair practices. For example, 15 U.S.C. § 1601 (a) states that TILA was enacted because “Congress [found] that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit.”37 The House of Representatives report further provides that “[f]or the relatively unsophisticated consumer, particularly those of modest means, [TILA] . . . will provide their only protection against unscrupulous merchants or lenders. . . .These provisions not only will protect the consumer, but will further protect the honest businessman from unethi*109cal forms of competition engaged in by some unscrupulous creditors who prey upon the poor through deceptive credit practices.” H. Rep. No. 1040, 90th Cong., 1st Sess. 18, reprinted in 1968 U.S. Code Cong. & Admin. News 1975-76.

TILA does not, however, seek to effectuate its public policies by imposing a cap on any credit terms. “[T]he truth in lending and credit advertising title, neither regulates the credit industry, nor does it impose ceilings on credit charges. It provides for full disclosure of credit charges, rather than regulation of the terms and conditions under which credit may be extended. It is the view of your committee that such full disclosure would aid the consumer in deciding for himself the reasonableness of the credit charges imposed and further permit the consumer to ‘comparison shop’ for credit. It is your committee’s view that full disclosure of the terms and conditions of credit charges will encourage a wiser and more judicious use of consumer credit.” H. Rep. No. 1040, 90th Cong., 1st Sess. 7, reprinted in 1968 U.S. Code Cong. & Admin. News 1963.

The primary public policy underlying § 36-224l is to protect consumers of credit regardless of whether they are informed of the credit terms. This statute is particularly aimed at those consumers who will pay an exorbitant prepaid finance charge because they desperately require credit. In hearings before the Banking Joint Standing Committee, the then department of banking commissioner Brian J. Woolf38 stated: “Unfortunately the individual [credit consumers are] in a posi*110tion in which they . . . desperately [need] . . . funds and when one desperately needs funds they are willing to pay—take out a loan for $10,000, a loan that's only going to [give them] $6,000 after they have paid the upfront fees . . . .” Conn. Joint Standing Committee Hearings, Banks, 1983 Sess., p. 29. Woolf further stated that “there does come a point in time where ... a person ... of this kind who is desperate in the need of funds should have some type of protection and I think that there is a . . . time when a government . . . [sees] gross abuses, I think that it's time the government should—step in and say, well, the limit has been reached and therefore some type of protection is necessary for the . . . [consumer].''Conn. Joint Standing Committee Hearings, Banks, 1983 Sess., p. 31. “I think the best approach would be to limit . . . [the] upfront points that any second mortgage lender can charge to a—to a borrower.” Id., p. 26.

Section 36-224l, thus, effectuates its public policy through different legislative means than does TILA. Rather than requiring a lender to disclose the prepaid finance charge to the consumer of credit, § 36-2241 requires that a lender cannot charge a prepaid finance charge that exceeds 10 percent of the principal amount of the loan. Thus, while TILA seeks to promote the informed use of consumer credit by requiring lenders to disclose credit terms, § 36-224l seeks to protect credit consumers, particularly those who desperately require credit and whose choice of creditors is limited, by limiting the prepaid finance charge that a lender can charge to a borrower.

*111Section 36-224l also seeks to protect a more narrow class of consumers, namely, consumers of credit in the secondary mortgage market. Second mortgage businesses often aggressively advertise the ease with which a consumer can obtain credit. Furthermore, such advertisements are often aimed at unsophisticated and desperate consumers. In hearings before the Joint Standing Committee on Banks, in response to questions by various Senators and Representatives, Raphael Podolsky, a representative from the Legal Services Training and Advocacy Project, stated that “[t]his is not a competitive market in kind of a classic economic sense. You have to remember that unlike say [Connecticut Bank and Trust Company], which does not go out and aggressively push in second mortgage loans. This is an industry in which people go out and try and sell you a loan. They may contact you at your house. They may make aggressive use of advertising. Unless the customer is fairly sophisticated and understands that they could go shopping at a bank and maybe get a better deal, they very often don’t know that there are alternative ways of financing plus they tend to be upgraded.”39 Conn. Joint Standing Committee Hearings, Banks, 1983 Sess., p. 101.

*112In light of the foregoing, it is clear that § 36-224l and TILA both express equally strong, yet different, public policies of informing and protecting consumers of credit. We conclude, therefore, that the plaintiff’s violations of both statutes offend public policy so as to amount to an established concept of unfairness.40

Turning to the second criterion of the Sperry rule, we must consider whether the plaintiff’s violation of TILA and § 36-224l was “immoral, unethical, oppressive, or unscrupulous.” Our consideration of this criterion is guided by the factual findings of the trial court. The court found that “the actions of the plaintiff were not unfair or deceptive in the conduct of its business nor were they immoral or unethical or oppressive or unscrupulous . . . .” Since the record does not reflect any intent by the plaintiff to deceive the defendants, we conclude that these factual findings are not clearly erroneous. We therefore conclude that the second criterion of the Sperry rule has not been satisfied in this case. We note, however, that “ ‘[a]ll three criteria do not need to be satisfied to support a finding of unfairness. . . .’ ” McLaughlin Ford, Inc. v. Ford Motor Co., supra, 569 n.15. Therefore, we turn to the third criterion of the Sperry rule.

The third criterion requires us to consider whether the plaintiff’s violation of TILA and § 36-224l caused substantial injury to the defendants. In considering this criterion, the Federal Trade Commission has stated: *113“ ‘The independent nature of the consumer injury criterion does not mean that every consumer injury is legally “unfair,” however. To justify a finding of unfairness the injury must satisfy three tests. It must be substantial; it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and it must be an injury that consumers themselves could not reasonably have avoided.’ ” McLaughlin Ford, Inc. v. Ford Motor Co., supra, 569-70, quoting letter from Federal Trade Commission to Senators Ford and Danforth (Dec. 17, 1980) (reprinted in Averitt, “The Meaning of ‘Unfair Acts or Practices’ in § 5 of the Federal Trade Commission Act,” 70 Geo. L.J. 225, 291 [1981]). We conclude that, in the present case, the plaintiff’s violation of TILA and § 36-2247 did cause the defendants substantial injury. We cannot conclude that the plaintiff’s TILA violation, by itself, in failing accurately to disclose and include $55 in the prepaid finance charge, caused the defendants a substantial injury. This TILA violation, however, coupled with the plaintiff’s violation of § 36-224l did cause the defendants a substantial injury since they were charged a prepaid finance charge of $490; see footnote 30, supra; or a full percentage point above the maximum 10 percent of the principal amount of the loan that a lender may charge to a borrower pursuant to § 36-2247.

On the the basis of the foregoing considerations, we conclude that the plaintiff’s violations of TILA and § 36-224l did cause substantial injury to the defendants. Although the second criterion of the Sperry rule has not been met, the degree to which the other two criteria have been met leads us to conclude that the plaintiff’s violation of TILA and § 36-224l was an unfair trade practice in violation of CUTPA. See McLaughlin Ford, Inc. v. Ford Motor Co., supra, 569 n.15. This conclusion is particularly appropriate since CUTPA’s “cover*114age is broad and its purpose remedial. Hinchliffe v. American Motors Corporation, 184 Conn. 607, 616, 440 A.2d 810 (1981).” Id., 566.

Having concluded that a violation of either § 36-2241 or TILA may constitute a violation of CUTPA, we next turn to the defendants' remedies under CUTPA. General Statutes § 42-110g41 provides the remedy for a *115CUTPA violation and states in subsection (a) that “[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, [see footnote 5, supra,] may . . . recover actual damages.”42 Subsection (d) further provides for recovery of costs, reasonable attorney’s fees and injunctive or other equitable relief. See footnote 41, supra. These elements of relief will have to be determined on the remand.

In their special defenses and counterclaims, the defendants pleaded that the plaintiff’s mortgage was unenforceable. As noted above, the issues of remedies flowing from those defenses and counterclaims were not considered by the trial court or briefed in this court. Accordingly, we have, with respect to the defendants’ special defenses and counterclaims based upon TILA, CUTPA and § 36-2241, left the issues of the appropriate remedies therefor to the trial court upon the remand.

If the trial court concludes that any such remedy justifies withholding enforcement of the plaintiff’s mortgage, the judgment on the plaintiff’s complaint must be reversed. If, however, the trial court does not conclude that any such remedy justifies withholding enforcement of the plaintiff’s mortgage, the judgment on the plaintiff’s complaint must be affirmed and new law days set. We therefore reverse the judgment of foreclosure on the plaintiff’s complaint in order to permit the trial court on the remand to consider the issue of the effect, if any, on the judgment of foreclosure of the remedies flowing from the plaintiff’s violation of TILA, CUTPA and § 36-224l.

*116With respect to the judgment on the defendants’ counterclaims based upon TILA, CUTPA and § 36-224l, the judgment of the trial court is reversed, and the remedies are to be determined upon the remand.

The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion Shea, Callahan and Glass, Js., concurred.

Berdon, J.,

dissenting in part and concurring in part. We sit as a court of equity in reviewing this appeal from the granting of foreclosure of the defendants’ property. See Reynolds v. Ramos, 188 Conn. 316, 320, 449 A.2d 182 (1982). A long standing equitable principle requires that “[e]quity will not afford its aid to one who by his conduct or neglect has put the other party in a situation in which it would be inequitable to place him [or her].” Glotzer v. Keyes, 125 Conn. 227, 231-32, 5 A.2d 1 (1939). Simply put, “[e]quitable power must be exercised equitably.” Hamm v. Taylor, 180 Conn. 491, 497, 429 A.2d 946 (1980). Since I believe that the cumulative effect of the two loans made by the plaintiff and secured by the mortgages (second mortgage I and II) is unconscionable under established principles of equity, I would not enforce the terms of the note secured by second mortgage II according to its tenor. Id.

Instead, the majority allows the equitable powers of this court to be used to the advantage of the plaintiff mortgagee, Cheshire Mortgage Service, Inc., a sophisticated money lender, in the foreclosure of a mortgage on the property of the defendant mortgagors, Luis Montes and Dalila Montes. The defendants are uneducated Hispanic persons who are far from fluent in the English language,1 and who were not represented by *117counsel. Compounding these problems, the closing attorney for the plaintiff chose to conduct the closing for second mortgage II out of his vehicle at the parking lot of a restaurant in Branford.

In the often cited case of Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449-50 (D.C. Cir. 1965), the Court of Appeals for the District of Columbia held that “[u]nconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party. Whether a meaningful choice is present in a particular case can only be determined by consideration of all the circumstances surrounding the transaction. In many cases the meaningfulness of the choice is negated by a gross inequality of bargaining power. The manner in which the contract was entered is also relevant to this consideration. Did each party to the contract, considering his obvious education or lack of it, have a reasonable opportunity to understand the terms of the contract, or were the important terms hidden in a maze of fine print and minimized by deceptive . . . practices? Ordinarily, one who signs an agreement without full knowledge of its terms might be held to assume the risk that he has entered a one-sided bargain. But when a party of little bargaining power, and hence little real choice, signs a commercially unreasonable contract with little or no knowledge of its terms, it is hardly likely that his [or her] consent, or even an objective manifestation of his [or her] consent, was ever given to all the terms. In such a case the usual rule that the terms of the agreement are not to be questioned should be abandoned and the court should consider whether the terms of the contract are so unfair that enforcement should be withheld.”

In the present case, the loan transactions began with a contractor’s attempt to finance the sale of vinyl sid*118ing to the defendants for their home through the Tolland Bank and now ends in this foreclosure action in which they may lose their home. Unable to obtain conventional financing at the bank for the siding, the contractor took the defendants’ application that was originally completed for the Tolland Bank “down the line” into the hands of the plaintiff. The defendants then completed the two loan transactions with the plaintiff.

At the time of entering into the loans, the defendant Luis Montes, who had previously suffered a heart attack, was afflicted with a kidney disease that necessitated dialysis treatment, which left him permanently disabled and unable to work. The defendants had a total monthly income of $1195, including Luis Montes’ social security disability benefits. The trial referee found that the defendants “were not neophytes in the financial world,” but this finding is not supported by the evidence. The trial referee predicated his finding on the fact that when the defendants originally purchased their home for $25,000, it was financed by a first mortgage of $23,700 from People’s Bank that provided for monthly payments of $407, including property taxes. The defendants’ participation in one legitimate transaction with People’s Bank, however, does not support the trial referee’s conclusion that they had the sophistication to understand fully the present transactions and the financial implications.

Under the terms of second mortgage II, plus the seven monthly payments previously made under second mortgage I, the defendants would have been required to pay principal, bonus points,2 interest, attorney’s fees, and other associated costs totaling $70,486.613 for less *119than four years of financing. In return, they only received benefits in cash, payment to other creditors and the vinyl siding, totaling $32,328.62.4 The result is a net cost of $38,157.99 to the defendants for approximately forty-two months of financing. Equalizing these costs of $38,157.99 over that period (seven months under second mortgage I and thirty-five months under second mortgage II), the cost of the net actual economic benefits of $32,328.62 was $908.52 per month. This amounts to a shocking 33.7 percent per annum costs for the financing, which the plaintiff conceded was fully secured.5 Furthermore, when second mortgage II was entered into the defendants received an additional benefit of only $10,897.95 (cash of $9628.62 and credit life insurance of $1251.33), for which they not only had to pay interest but also bonus points of $4350 which, put in percentage terms, was a bonus of approximately 40 percent. Although the exorbitant rates on a fully secured loan, under the circumstances of this case, do not shock the conscience of the majority, they do mine.6

*120The defendants’ case, however, does not stop there. Equally problematic is that the defendants could never repay either one of the loans that had been secured by the mortgages. Second mortgage I required monthly payments of $806.38 ($407 for the first mortgage and taxes and $399.38 for second mortgage I) from the defendants’ monthly income of $1195, which amounts to 67 percent of their total income. How could they be expected to live on the balance of $388.62, that is—pay for utilities, heat, food, clothing and other necessities, plus any payroll deductions?

Second mortgage II called for outrageous payments of $1098.17 per month ($407 for the first mortgage and taxes and $691.17 for second mortgage II) or a whopping 92 percent of the defendants’ gross monthly income. The majority speculates that the defendants had additional income because they were able to live and pay second mortgage I for seven months. When this speculation is applied to second mortgage II, it is obvious that the monthly payments were outrageous because the defendants were unable to make a single payment.

Furthermore, the defendants could never be expected to pay the balloon payments—the lump sum payment due at the end of the term of the loan—on second mortgage I in the amount of $26,810.61 and on second mortgage II in the amount of $44,075.03, both of which were in excess of the original principal amounts of the notes secured by the mortgages.7 As the court in Campbell Soup Co. v. Wentz, 172 F.2d 80, 84 (3d Cir. 1948), stated, the “sum total of its provisions drives too hard a bargain for a court of conscience to assist.”

*121To justify its finding that the loans were not unconscionable, the trial referee and the majority rely on the plaintiff’s claim that it was told that the defendant Luis Montes had some additional income, not shown on the application. There is no evidence to support such a finding. The plaintiff’s president, Richard Coppola, was unable to testify as to the dollar amount of this additional income, there was no documentary evidence to support this claim and there was not even a note in the corporation’s records to verify that he was so advised.8 *122“It does not seem too much to say that one who voluntarily extends credit by disregarding a known risk, or risks which could be discovered by a reasonable effort, should bear the loss when loss occurs. If such a standard imposes some brake on the credit boom, it would be a brake wisely applied in the interests of both the consumers and the extenders of credit.” V. Countryman, “Improvident Credit Extension: A New Legal Concept Aborning?” 27 Mex. L. Rev. 1, 23 (1975).

It is clear to me that the defendants could neither pay the monthly payments nor pay the balloon payment at the end of the term of the loan. Indeed, the loan secured by second mortgage II was made solely on the *123basis of the equity that the defendants had in the house. “Many financial experts refer to such mortgage companies as ‘equity skimmers’ because the loans are based not on a person’s ability to repay them, but on the amount of equity in their home. They charge that the companies make these loans with the intention of foreclosing upon the homeowner and reaping a profit through the equity in the home.” J. Morris, “Borrowers Beware,” Manchester, New Hampshire, Sunday News, Feb. 4, 1990, p. A-7.9 The evidence indicated that at the time of the foreclosure the house had a value of $90,000. The possible practice of equity skimming under the circumstances of this case is unconscionable and this court should hold as much.

The defendants concede that they are not entirely without blame; any credit extension that is improvident on the part of the creditors is also improvident on the part of the debtor. Nevertheless, “typically the creditor is better equipped—by education, experience, resources, and the nature of his role—to avoid and distribute the risk of improvidence. Hence, as between the two blameworthy participants in the improvident credit extension, it seems . . . that in most cases the burden of loss should be placed on the improvident creditor by means of a remedy conferred on the improvident debtor.” V. Countryman, supra, 17. Surely, taking into consideration the circumstances of the defendants, this is such a case. “ [Protection must be given to those who do not have the economic sophistication or the awareness possessed by others who may be less concerned about credit; the [Connecticut Unfair Trade Practices Act (CUTPA)] must be applied to protect the unthinking, the unsuspecting and the credulous . . . . *124Exposition Press, Inc. v. Federal Trade Commission, 295 F.2d 869, 872 (2d Cir. [1961]), cert. denied, 370 U.S. 917 [82 S. Ct. 1554, 8 L. Ed. 2d 497 (1962)]; Progress Tailoring Co. v. Federal Trade Commission, 153 F.2d 103, 105 (7th Cir. [1946]); Aronberg v. Federal Trade Commission, 132 F.2d 165, 167 (7th Cir. [1942]).” Murphy v. McNamara, 36 Conn. Sup. 183, 190, 416 A.2d 170 (1979).

The majority treats this case just as it would a transaction between commercial parties. It relies on such cases as Texaco, Inc. v. Golart, 206 Conn. 454, 538 A.2d 1017 (1988) (commercial property); Hamm v. Taylor, supra (mortgage on a roadside tavern); Edart Truck Rental Corporation v. B. Swirsky & Co., 23 Conn. App. 137, 579 A.2d 133 (1990) (rental of truck for paper recycling business); Iamartino v. Avallone, 2 Conn. App. 119, 122, 477 A.2d 124, cert. denied, 194 Conn. 802, 478 A.2d 1025 (1980) (residential property wherein mortgagee was contractor, involved in home improvement business and owned a variety of property, including a shopping center).

Instead of reviewing this case through the lens of commercially savvy parties, we must determine whether the loans were unconscionable on the basis of a transaction between a professional mortgage lender and unsophisticated credit consumers who had a total monthly income below the poverty level. Paraphrasing the language of the United States Supreme Court in Hume v. United States, 132 U.S. 406, 411, 10 S. Ct. 134, 33 L. Ed. 393 (1889), unconscionability is defined as a transaction that no person in his or her senses and not under delusion would make on the one hand and no honest and fair person would accept on the other. The New York courts have applied the doctrine of unconscionability as follows: “In Frostifresh Corp. v. Reynoso, [52 Misc. 2d 26, 27, 274 N.Y.S.2d 757 (1966), rev’d on other grounds, 54 Misc. 2d 119, 281 N.Y.S.2d *125964 (1967)], the court refused to enforce a contract where the Spanish speaking customers had signed an installment contract for a refrigerator, and agreed to pay $1,145.88 for a refrigerator worth $348. The court held that the [defendants were handicapped by a lack of knowledge, both as to the commercial situation and the nature and terms of the contract which was submitted in a language foreign to them. The same situation invalidated a contract in Jones v. Star Credit Corp., [59 Misc. 2d 189, 298 N.Y.S.2d 264 (1969)]. The court there stated its concern for the uneducated and often illiterate individuals who are the victims of the gross inequality of bargaining power and the overreaching by merchants who would take advantage of their ignorance.” (Internal quotation marks omitted.) Blake v. Biscardi, 62 App. Div. 2d 975, 976-77, 403 N.Y.S.2d 544 (1978); see also Community Acceptance Corporation of Denham Springs, Inc. v. Kinchen, 417 So. 2d 22 (La. App. 1982) (unconscionable promissory note made between a finance and loan company and three individuals). Applying this standard, I conclude that the cumulative effect of both loan transactions was unconscionable.

Accordingly, I would reverse on this issue and remand the case to the trial court with direction to reduce the finance charges and other associated costs on the loan secured by second mortgage II in order to reflect the legal rate of interest. General Statutes § 37-1 (a). I also disagree with part IV of the majority decision which holds that there was no violation of CUTPA as a result of the loan transaction being unconscionable.

I write separately on Part II because I am not certain what the majority means by an “effective” rescission. If the trial court finds that the defendants gave notice of the rescission in accordance with 15 U.S.C. § 1635 (b), which no one disputes, then the defendants were not required to return the consideration to the *126plaintiff as a condition of the rescission. Section 1635 states the following: “(b) When an obligor exercises his right to rescind under subsection (a) of this section, he is not liable for any finance or other charge, and any security interest given by the obligor, including any such interest arising by operation of law, becomes void upon such a rescission. Within 20 days after receipt of a notice of rescission, the creditor shall return to the obligor any money or property given as earnest money, downpayment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction. If the creditor has delivered any property to the obligor, the obligor may retain possession of it.” Only when the creditor fulfills these obligations, is the obligor required to “tender the property to the creditor.” 15 U.S.C. § 1635 (b). Furthermore, to the extent that the remand of the majority could be interpreted to give the trial court discretion to determine whether the plaintiff is entitled to a foreclosure if there was a rescission, I disagree. Under the circumstances of this case, the rescission would void the mortgage and there can be no remedy of foreclosure.

I concur with the majority opinion insofar as it holds in part II that the plaintiff violated the federal Truth in Lending Act, in part III that the plaintiff violated General Statutes § 36-2241 and in part IV that there were other unfair trade practices.

Accordingly, I dissent in part and concur in part.

OPINION OF THE COURT

AMBRO, Circuit Judge.

The Federal Trade Commission Act prohibits “unfair or deceptive acts or practices in or affecting commerce.” 15 U.S.C. § 45(a). In 2005 the Federal Trade Commission began bringing administrative actions under this provision against companies with allegedly deficient cybersecurity that failed to protect consumer data against hackers. The vast majority of these cases have ended in settlement.

On three occasions in 2008 and 2009 hackers successfully accessed Wyndham Worldwide Corporation’s computer systems. In total, they stole personal and financial information for hundreds of thousands of consumers leading to over $10.6 million dollars in fraudulent charges. The FTC filed suit in federal District Court, alleging that Wyndham’s conduct was an unfair practice and that its privacy policy was deceptive. The District Court denied Wyndham’s motion to dismiss, and we granted interlocutory appeal on two issues: whether the FTC has authority to regulate cybersecurity under the unfairness prong of § 45(a); and, if so, whether Wyndham had fair notice its specific cybersecurity practices could fall short of that provision.1 We affirm the District Court.

1. Background

A. Wyndham’s Cybersecurity

Wyndham Worldwide is a hospitality company that franchises and manages hotels and sells timeshares through three subsidiaries.2 Wyndham licensed its brand name to approximately 90 independently owned hotels. Each Wyndhambranded hotel has a property management system that processes consumer information that includes names, home addresses, email addresses, telephone numbers, payment card account numbers, expiration dates, and security codes. Wyndham “manage[s]” these systems and requires the hotels to “purchase and configure” them to its own specifications. Compl. at ¶ 15, 17. It also operates a computer network in Phoenix, Arizona, that connects its data center with the property management systems of each of the Wyndham-branded hotels.

The FTC alleges that, at least since April 2008, Wyndham engaged in unfair cybersecurity practices that, “taken together, unreasonably and unnecessarily exposed consumers’ personal data to unauthorized access and theft.” Id. at ¶ 24. This claim is fleshed out as follows.

1. The company allowed Wyndhambranded hotels to store payment card information in clear readable text.

2. Wyndham allowed the use of easily guessed passwords to access the property management systems. For example, to gain “remote access to at least one hotel’s system,” which was developed by Micros Systems, Inc., the user ID and password were both “micros.” Id. at ¶ 24(f).

*2413. Wyndham failed to use “readily available security measures” — such as firewalls — to “limit access between [the] hotels’ property management systems, ... corporate network, and the Internet.” Id. at ¶ 24(a).

4. Wyndham allowed hotel property management systems to connect to its network without taking appropriate cybersecurity precautions. It did not ensure that the hotels implemented “adequate information security policies and procedures.” Id. at ¶ 24(c). Also, it knowingly allowed at least one hotel to connect to the Wyndham network with an out-of-date operating system that had not received a security update in over three years. It allowed hotel servers to connect to Wyndham’s network even though “default user IDs and passwords were enabled ..., which were easily available to hackers through simple Internet searches.” Id. And, because it failed to maintain an “adequate[] inventory [of] computers connected to [Wyndham’s] network [to] manage the devices,” it was unable to identify the source of at least one of the cybersecurity attacks. Id. at ¶ 24(g).

5. Wyndham failed to “adequately restrict” the access of third-party vendors to its network and the servers of Wyndhambranded hotels. Id. at ¶ 24(j). For example, it did not “restrict[] connections to specified IP addresses or grant[] temporary, limited access, as necessary.” Id.

6. It failed to employ “reasonable measures to detect and prevent unauthorized access” to its computer network or to “conduct security investigations.” Id. at 1124(h).

7. It did not follow “proper incident response procedures.” Id. at ¶ 24(i). The hackers used similar methods in each attack, and yet Wyndham failed to monitor its network for malware used in the previous intrusions.

Although not before us on appeal, the complaint also raises a deception claim, alleging that since 2008 Wyndham has published a privacy policy on its website that overstates the company’s cybersecurity.

We safeguard our Customers’ personally identifiable information by using industry standard practices. Although “guaranteed security” does not exist either on or off the Internet, we make commercially reasonable efforts to make our collection of such [i]nformation consistent with all applicable laws and regulations. Currently, our Web sites utilize a variety of different security measures designed to protect personally identifiable information from unauthorized access by users both inside and outside of our company, including the use of 128-bit encryption based on a Class 3 Digital Certificate issued by Verisign Inc. This allows for utilization of Secure Sockets Layer, which is a method for encrypting data. This protects confidential information — such as credit card numbers, online forms, and financial data — from loss, misuse, interception and hacking. We take commercially reasonable efforts to create and maintain “fire walls” and other appropriate safeguards....

Id. at If 21. The FTC alleges that, contrary to this policy, Wyndham did not use encryption, firewalls, and other commercially reasonable methods for protecting consumer data.

B. The Three Cybersecurity Attacks

As noted, on three occasions in 2008 and 2009 hackers accessed Wyndham’s network and the property management systems of Wyndham-branded hotels. In April 2008, hackers first broke into the local network of a hotel in Phoenix, Arizona, which was connected to Wyndham’s network and the Internet. They then *242used the brute-force method — repeatedly guessing users’ login IDs and passwords— to access an administrator account on Wyndham’s network. This enabled them to obtain consumer data on computers throughout the network. In total, the hackers obtained unencrypted information for over 500,000 accounts, which they sent to a domain in Russia.

In March 2009, hackers attacked again, this time by accessing Wyndham’s network through an administrative account. The FTC claims that Wyndham was unaware of the attack for two months until consumers filed complaints about fraudulent charges. Wyndham then discovered “memory-scraping malware” used in the previous attack on more than thirty hotels’ computer systems. Id. at ¶ 34. The FTC asserts that, due to Wyndham’s “failure to monitor [the network] for the malware used in the previous attack, hackers had unauthorized access to [its] network for approximately two months.” Id. In this second attack, the hackers obtained unencrypted payment card information for approximately 50,000 consumers from the property management systems of 39 hotels.

Hackers in late 2009 breached Wyndham’s cybersecurity a third time by accessing an administrator account on one of its networks. Because Wyndham “had still not adequately limited access between ... the Wyndham-branded hotels’ property management systems, [Wyndham’s network], and the Internet,” the hackers had access to the property management servers of multiple hotels. Id. at ¶ 37. Wyndham only learned of the intrusion in January 2010 when a credit card company received complaints from cardholders. In this third attack, hackers obtained payment card information for approximately 69,000 customers from the property management systems of 28 hotels.

The FTC alleges that, in total, the hackers obtained payment card information from over 619,000 consumers, which (as noted) resulted in at least $10.6 million in fraud loss. It further states that consumers suffered financial injury through “unreimbursed fraudulent charges, increased costs, and lost access to funds or credit,” Id. at ¶ 40, and that they “expended time and money resolving fraudulent charges and mitigating subsequent harm.” Id.

C. Procedural History

The FTC filed suit in the U.S. District Court for the District of Arizona in June 2012 claiming that Wyndham engaged in “unfair” and “deceptive” practices in violation of § 45(a). At Wyndham’s request, the Court transferred the case to the U.S. District Court for the District of New Jersey. Wyndham then filed a Rule 12(b)(6) motion to dismiss both the unfair practice and deceptive practice claims. The District Court denied the motion but certified its decision on the unfairness claim for interlocutory appeal. We granted Wyndham’s application for appeal.

II. Jurisdiction and Standards of Review

The District Court has subject-matter jurisdiction under 28 U.S.C. §§ 1331, 1337(a), and 1345. We have jurisdiction under 28 U.S.C. § 1292(b).

We have plenary review of a district court’s ruling on a motion to dismiss for failure to state a claim under Rule 12(b)(6). Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir.2006). In this review, “we accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Pinker v. Roche Hold*243ings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.2002).

III. FTC’s Regulatory Authority Under § 45(a)

A. Legal Background

The Federal Trade Commission Act of 1914 prohibited “unfair methods of competition in commerce.” Pub.L. No. 63-203, § 5, 38 Stat. 717, 719 (codified as amended at 15 U.S.C. § 45(a)). Congress “explicitly considered, and rejected, the notion that it reduce the ambiguity of the phrase ‘unfair methods of competition’ ... by enumerating the particular practices to which it was intended to apply.” FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 239-40, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972) (citing S.Rep. No. 63-597, at 13 (1914)); see also S.Rep. No. 63-597, at 13 (“The committee gave careful consideration to the question as to whether it would attempt to define the many and variable unfair practices which prevail in commerce .... It concluded that ... there were too many unfair practices to define, and after writing 20 of them into the law it would be quite possible to invent others.” (emphasis added)). The takeaway is that Congress designed the term as a “flexible concept with evolving content,” FTC v. Bunte Bros., 312 U.S. 349, 353, 61 S.Ct. 580, 85 L.Ed. 881 (1941), and “intentionally left [its] development ... to the Commission,” Atl. Ref. Co. v. FTC, 381 U.S. 357, 367, 85 S.Ct. 1498, 14 L.Ed.2d 443 (1965).

After several early cases limited “unfair methods of competition” to practices harming competitors and not consumers, see, e.g., FTC v. Raladam Co., 283 U.S. 643, 51 S.Ct. 587, 75 L.Ed. 1324 (1931), Congress inserted an additional prohibition in § 45(a) against “unfair or deceptive acts or practices in or affecting commerce,” Wheeler-Lea Act, Pub.L. No. 75-447, § 5, 52 Stat. 111, 111 (1938).

For the next few decades, the FTC interpreted the unfair-practices prong primarily through agency adjudication. But in 1964 it issued a “Statement of Basis and Purpose” for unfair or deceptive advertising and labeling of cigarettes, 29 Fed.Reg. 8324, 8355 (July 2, 1964), which explained that the following three factors governed unfairness determinations:

(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common-law, statutory or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; [and] (3) whether it causes substantial injury to consumers (or competitors or other businessmen).

Id. Almost a decade later, the Supreme Court implicitly approved these factors, apparently acknowledging their applicability to contexts other than cigarette advertising and labeling. Sperry, 405 U.S. at 244 n. 5, 92 S.Ct. 898. The Court also held that, under the policy statement, the FTC could deem a practice unfair based on the third prong — substantial consumer injury — without finding that at least one of the other two prongs was also satisfied. Id.

During the 1970s, the FTC embarked on a controversial campaign to regulate children’s advertising through the unfair-practices prong of § 45(a). At the request of Congress, the FTC issued a second policy statement in 1980 that clarified the three factors. FTC Unfairness Policy Statement, Letter from the FTC to Hon. Wendell Ford and Hon. John Danforth, Senate Comm, on Commerce, Sci., and Transp. (Dec. 17, 1980), appended to Int’l Harvester Co., 104 F.T.C. 949, 1070 (1984) [herein*244after 1980 Policy Statement]. It explained that public policy considerations are relevant in determining whether a particular practice causes substantial consumer injury. Id. at 1074-76. Next, it “abandoned” the “theory of immoral or unscrupulous conduct ... altogether” as an “independent” basis for an unfairness claim. Inti Harvester Co., 104 F.T.C. at 1061 n. 43; 1980 Policy Statement, supra at 1076 (“The Commission has ... never relied on [this factor] as an independent basis for a finding of unfairness, and it will act in the future only on the basis of the [other] two.”). And finally, the Commission explained that “[u]njustified consumer injury is the primary focus of the FTC Act” and that such an injury “[b]y itself ... can be sufficient to warrant a finding of unfairness.” 1980 Policy Statement, supra at 1073. This “does not mean that every consumer injury is legally ‘unfair.’ ” Id. Indeed,

[t]o justify a finding of unfairness the injury must satisfy three tests. [1] It must be substantial; [2] it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and [3] it must be an injury that consumers themselves could not reasonably have avoided.

Id.

In 1994, Congress codified the 1980 Policy Statement at 15 U.S.C. § 45(n):

The Commission shall have no authority under this section ... to declare unlawful an act or practice on the grounds that such act or practice is unfair unless the act or practice causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition. In determining whether an act or practice is unfair, the Commission may consider established public policies as evidence to be considered with all other evidence. Such public policy considerations may not serve as a primary basis for such determination.

FTC Act Amendments of 1994, Pub.L. No. 103-312, § 9, 108 Stat. 1691, 1695. Like the 1980 Policy Statement, § 45(n) requires substantial injury that is not reasonably avoidable by consumers and that is not outweighed by the benefits to consumers or competition. It also acknowledges the potential significance of public policy and does not expressly require that an unfair practice be immoral, unethical, unscrupulous, or oppressive.

B. Plain Meaning of Unfairness

Wyndham argues (for the first time on appeal) that the three requirements of 15 U.S.C. § 45(n) are necessary but insufficient conditions of an unfair practice and that the plain meaning of the word “unfair” imposes independent requirements that are not met here. Arguably, § 45(n) may not identify all of the requirements for an unfairness claim. (While the provision forbids the FTC from declaring an act unfair “unless” the act satisfies the three specified requirements, it does not answer whether these are the only requirements for a finding of unfairness.) Even if so, some of Wyndham’s proposed requirements are unpersuasive, and the rest are satisfied by the allegations in the FTC’s complaint.

First, citing FTC v. R.F. Keppel & Brother, Inc., 291 U.S. 304, 54 S.Ct. 423, 78 L.Ed. 814 (1934), Wyndham argues that conduct is only unfair when it injures consumers “through unscrupulous or unethical behavior.” Wyndham Br. at 20-21. But Keppel nowhere says that unfair conduct must be unscrupulous or unethical. Moreover, in Sperry the Supreme Court rejected the view that the FTC’s 1964 policy *245statement required unfair conduct to be “unscrupulous” or “unethical.” 405 U.S. at 244 n. 5, 92 S.Ct. 898.3 Wyndham points to no subsequent FTC policy statements, adjudications, judicial opinions, or statutes that would suggest any change since Sperry.

Next, citing one dictionary, Wyndham argues that a practice is only “unfair” if it is “not equitable” or is “marked by injustice, partiality, or deception.” Wyndham Br. at 18-19 (citing Webster’s Ninth New Collegiate Dictionary (1988)). Whether these are requirements of an unfairness claim makes little difference here. A company does not act equitably when it publishes a privacy policy to attract customers who are concerned about data privacy, fails to make good on that promise by investing inadequate resources in cybersecurity, exposes its unsuspecting customers to substantial financial injury, and retains the profits of their business.

We recognize this analysis of unfairness encompasses some facts relevant to the FTC’s deceptive practices claim. But facts relevant to unfairness and deception claims frequently overlap. See, e.g., Am. Fin. Sens. Ass’n v. FTC, 767 F.2d 957, 980 n. 27 (D.C.Cir.1985) (“The FTC has determined that ... making unsubstantiated advertising claims may be both an unfair and a deceptive practice.”); Orkin Exterminating Co. v. FTC, 849 F.2d 1354, 1367 (11th Cir.1988) (“[A] practice may be both deceptive and unfair.... ”).4 We cannot completely disentangle the two theories here. The FTC argued in the District Court that consumers could not reasonably avoid injury by booking with another hotel chain because Wyndham had *246published a misleading privacy policy that overstated its cybersecurity. Plaintiffs Response in Opposition to the Motion to Dismiss by Defendant at 5, FTC v. Wyndham Worldwide Corp., 10 F.Supp.3d 602 (D.N.J.2014) (“Consumers could not take steps to avoid Wyndham’s unreasonable data security [before providing their personal information] because Wyndham falsely told consumers that it followed ‘industry standard practices.’ ”); see JA 203 (“On the reasonably] avoidable part, ... consumers certainly would not have known that Wyndham had unreasonable data security practices in this case.... We also allege that in [Wyndham’s] privacy policy they deceive consumers by saying we do have reasonable security data practices. That is one way consumers couldn’t possibly have avoided providing a credit card to a company.”). Wyndham did not challenge this argument in the District Court nor does it do so now. If Wyndham’s conduct satisfies the reasonably avoidable requirement at least partially because of its privacy policy — an inference we find plausible at this stage of the litigation — then the policy is directly relevant to whether Wyndham’s conduct was unfair.5

Continuing on, Wyndham asserts that a business “does not treat its customers in an ‘unfair’ manner when the business itself is victimized by criminals.” Wyndham Br. at 21 (emphasis in original). It offers no reasoning or authority for this principle, and we can think of none ourselves. Although unfairness claims “usually involve actual and completed harms,” Int’l Harvester, 104 F.T.C. at 1061, “they may also be brought on the basis of likely rather than actual injury,” id. at 1061 n. 45. And the FTC Act expressly contemplates the possibility that conduct can be unfair before actual injury occurs. 15 U.S.C. § 45(n) (“[An unfair act or practice] causes or is likely to cause substantial injury” (emphasis added)). More importantly, that a company’s conduct was not the most proximate cause of an injury generally does not immunize liability from foreseeable harms. See Restatement (Second) of Torts § 449 (1965) (“If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act[,] whether innocent, negligent, intentionally tortious, or criminal[,] does not prevent the actor from being liable for harm caused thereby.”); West-farm Assocs. v. Wash. Suburban Sanitary Comm’n, 66 F.3d 669, 688 (4th Cir.1995) (“Proximate cause may be found even where the conduct of the third party is ... criminal, so long as the conduct was facilitated by the first party and reasonably foreseeable, and some ultimate harm was reasonably foreseeable.”). For good reason, Wyndham does not argue that the cybersecurity intrusions were unforeseeable. That would be particularly implausible as to the second and third attacks.

Finally, Wyndham posits a reductio ad absurdum, arguing that if the FTC’s unfairness authority extends to Wyndham’s conduct, then the FTC also has the authority to “regulate the locks on hotel room doors, ... to require every store in the land to post an armed guard at the door,” Wyndham Br. at 23, and to sue supermarkets that are “sloppy about sweeping up banana peels,” Wyndham Reply Br. at 6. *247The argument is alarmist to say the least. And it invites the tart retort that, were Wyndham a supermarket, leaving so many banana peels all over the place that 619,-000 customers fall hardly suggests it should be immune from liability under § 45(a).

We are therefore not persuaded by Wyndham’s arguments that the alleged conduct falls outside the plain meaning of “unfair.”

C. Subsequent Congressional Action

Wyndham next argues that, even if cybersecurity were covered by § 45(a) as initially enacted, three legislative acts since the subsection was amended in 1938 have reshaped the provision’s meaning to exclude cybersecurity. A recent amendment to the Fair Credit Reporting Act directed the FTC and other agencies to develop regulations for the proper disposal of consumer data. See Pub.L. No. 108-159, § 216(a), 117 Stat. 1952, 1985-86 (2003) (codified as amended at 15 U.S.C. § 1681w). The Gramm-Leach-Bliley Act required the FTC to establish standards for financial institutions to protect consumers’ personal information. See Pub.L. No. 106-102, § 501(b), 113 Stat. 1338, 1436-37 (1999) (codified as amended at 15 U.S.C. § 6801(b)). And the Children’s Online Privacy Protection Act ordered the FTC to promulgate regulations requiring children’s websites, among other things, to provide notice of “what information is collected from children ..., how the operator uses such information, and the operator’s disclosure practices for such information.” Pub.L. No. 105-277, § 1303, 112 Stat. 2681, 2681-730-732 (1998) (codified as amended at 15 U.S.C. § 6502).6 Wyndham contends these “tailored grants of substantive authority to the FTC in the cybersecurity field would be inexplicable if the Commission already had general substantive authority over this field.” Wyndham Br. at 25. Citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000), Wyndham concludes that Congress excluded cybersecurity from the FTC’s unfairness authority by enacting these measures.

We are not persuaded. The inference to congressional intent based on post-enactment legislative activity in Brown & Williamson was far stronger. There, the Food and Drug Administration had repeatedly disclaimed regulatory authority over tobacco products for decades. Id. at 144, 120 S.Ct. 1291. During that period, Congress enacted six statutes regulating tobacco. Id. at 143-44, 120 S.Ct. 1291. The FDA later shifted its position, claiming authority over tobacco products. The Supreme Court held that Congress excluded tobacco-related products from the FDA’s authority in enacting the statutes. As tobacco products would necessarily be banned if subject to the FDA’s regulatory authority, any interpretation to the contrary would contradict congressional intent to regulate rather than ban tobacco products outright. Id. 137-39, 120 S.Ct. 1291; Massachusetts v. EPA 549 U.S. 497, 530-31, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). Wyndham does not argue that recent privacy laws contradict reading corporate cybersecurity into § 45(a). Instead, it merely asserts that Congress had no reason to enact them if the FTC could already regu*248late cybersecurity through that provision. Wyndham Br. at 25-26.

We disagree that Congress lacked reason to pass the recent legislation if the FTC already had regulatory authority over some cybersecurity issues. The Fair Credit Reporting Act requires (rather than authorizes) the FTC to issue regulations, 15 U.S.C. § 1681w (“The Federal Trade Commission ... shall issue final regulations requiring....” (emphasis added)); id. § 1681m(e)(l)(B) (“The [FTC and other agencies] shall jointly ... prescribe regulations requiring each financial institution. ...” (emphasis added)), and expands the scope of the FTC’s authority, id. § 1681s(a)(l) (“[A] violation of any requirement or prohibition imposed under this subchapter shall constitute an unfair or deceptive act or practice in commerce ... and shall be subject to enforcement by the [FTC] ... irrespective of whether that person is engaged in commerce or meets any other jurisdictional tests under the [FTC] Act.”). The Gramm-Leach-Bliley Act similarly requires the FTC to promulgate regulations, id. § 6801(b) (“[The FTC] shall establish appropriate standards for the financial institutions subject to [its] jurisdiction.... ”), and relieves some of the burdensome § 45(n) requirements for declaring acts unfair, id. § 6801(b) (“[The FTC] shall establish appropriate standards ... to protect against unauthorized access to or use of ... records ... which could result in substantial harm or inconvenience to any customer.” (emphasis added)). And the Children’s Online Privacy Protection Act required the FTC to issue regulations and empowered it to do so under the procedures of the Administrative Procedure Act, id. •§ 6502(b) (citing 5 U.S.C. § 553), rather than the more burdensome Magnuson-Moss procedures under which the FTC must usually issue regulations, 15 U.S.C; § 57a. Thus none of the recent privacy legislation was “inexplicable” if the FTC already had some authority to regulate corporate cybersecurity through § 45(a).

Next, Wyndham claims that the FTC’s interpretation of § 45(a) is “inconsistent with its repeated efforts to obtain from Congress the very authority it purports to wield here.” Wyndham Br. at 28. Yet again we disagree. In two of the statements cited by Wyndham, the FTC clearly said that some cybersecurity practices are “unfair” under the statute. See Consumer Data Protection: Hearing Before the Sub-comm. on Commerce, Mfg. & Trade of the H. Comm, on Energy & Commerce, 2011 WL 2358081, at *6 (June 15, 2011) (statement of Edith Ramirez, Comm’r, FTC) (“[T]he Commission enforces the FTC Act’s proscription against unfair ... acts ... in cases where a businesses] ... failure to employ reasonable security measures causes or is likely to cause substantial consumer injury.”); Data Theft Issues: Hearing Before the Subcomm. on Commerce, Mfg. & Trade of the H. Comm, on Energy & Commerce, 2011 WL 1971214, at *7 (May 4, 2011) (statement of David C. Vladeck, Director, FTC Bureau of Consumer Protection) (same).

In the two other cited statements, given in 1998 and 2000, the FTC only acknowledged that it cannot require companies to adopt “fair information practice policies.” See FTC, Privacy Online: Fair Information Practices in the Electronic Marketplace — A Report to Congress 34 (2000) [hereinafter Privacy Online]; Privacy in Cyberspace: Hearing Before the Subcomm. on Telecomms., Trade & Consumer Prot. of the H. Comm, on Commerce, 1998 WL 546441 (July 21, 1998) (statement of Robert Pitofsky, Chairman, FTC). These policies would protect consumers from far more than the kind of “substantial injury” typically covered by § 45(a). In addition *249to imposing some cybersecurity requirements, they would require companies to give notice about what data they collect from consumers, to permit those consumers to decide how the data is used, and to permit them to review and correct inaccuracies. Privacy Online, supra at 36-37. As the FTC explained in the District Court, the primary concern driving the adoption of these policies in the late 1990s was that “companies ... were capable of collecting enormous amounts of information about consumers, and people were suddenly realizing this.” JA 106 (emphasis added). The FTC thus could not require companies to adopt broad fair information practice policies because they were “just collecting th[e] information, and consumers [were not] injured.” Id.; see also Order Denying Respondent LabMD’s Motion to Dismiss, No. 9357, slip op. at 7 (Jan. 16, 2014) [hereinafter LabMD Order or LabMD ] (“[T]he sentences from the 1998 and 2000 reports ... simply recognize that the Commission’s existing authority may not be sufficient to effectively protect consumers with regard to all data privacy issues of potential concern (such as aspects of children’s online privacy).... ” (emphasis in original)). Our conclusion is this: that the FTC later brought unfairness actions against companies whose inadequate cybersecurity resulted in consumer harm is not inconsistent with the agency’s earlier position.

Having rejected Wyndham’s arguments that its conduct cannot be unfair, we assume for the remainder of this opinion that it was.

IV. Fair Notice

A conviction or punishment violates the Due Process Clause of our Constitution if the statute or regulation under which it is obtained “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” FCC v. Fox Television Stations, Inc., — U.S. -, 132 S.Ct. 2307, 2317, 183 L.Ed.2d 234 (2012) (internal quotation marks omitted). Wyndham claims that, notwithstanding whether its conduct was unfair under § 45(a), the FTC failed to give fair notice of the specific cybersecurity standards the company was required to follow.7

A. Legal Standard

The level of required notice for a person to be subject to liability varies by circumstance. In Bouie v. City of Columbia, the Supreme Court held that a “judicial construction of a criminal statute” violates due process if it is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” 378 U.S. 347, 354, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) (internal quotation marks omitted); see also Rogers v. Tennessee, 532 U.S. 451, 457, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001); In re Surrick, 338 F.3d 224, 233-34 (3d Cir.2003). The precise meaning of “unexpected and indefensible” is not entirely clear, United States v. Lata, 415 F.3d 107, 111 (1st Cir.2005), but we and our sister circuits frequently use language implying that a conviction violates due process if the defendant could not reasonably foresee that a court might adopt the new interpretation of the stat*250ute.8

The fair notice doctrine extends to civil cases, particularly where a penalty is imposed. See Fox Television Stations, Inc., 132 S.Ct. at 2317-20; Boutilier v. INS, 387 U.S. 118, 123, 87 S.Ct. 1563, 18 L.Ed.2d 661 (1967). “Lesser degrees of specificity” are allowed in civil cases because the consequences are smaller than in the criminal context. San Filippo v. Bongiovanni, 961 F.2d 1125, 1135 (3d Cir.1992). The standards are especially lax for civil statutes that regulate economic activities. For those statutes, a party lacks fair notice when the relevant standard is “so vague as to be no rule or standard at all.” CMR D.N. Corp. v. City of Phila., 703 F.3d 612, 631-32 (3d Cir.2013) (internal quotation marks omitted).9

A different set of considerations is implicated when agencies are involved in statutory or regulatory interpretation. Broadly speaking, agencies interpret in at least three contexts. One is where an agency administers a statute without any special authority to create new rights or obligations. When disputes arise under this kind of agency interpretation, the courts give respect to the agency’s view to the extent it is persuasive, but they retain the primary responsibility for construing the statute.10 As such, the standard of notice afforded to litigants about the meaning of the statute is not dissimilar to the standard of notice for civil statutes generally *251because the court, not the agency, is the ultimate arbiter of the statute’s meaning.

The second context is where an agency exercises its authority to fill gaps in a statutory scheme. There the agency is primarily responsible for interpreting the statute because the courts must defer to any reasonable construction it adopts. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Courts appear to apply a more stringent standard of notice to civil regulations than civil statutes: parties are entitled to have “ascertainable certainty” of what conduct is legally required by the regulation. See Chem. Waste Mgmt., Inc. v. EPA, 976 F.2d 2, 29 (D.C.Cir.1992) (per curiam) (denying petitioners’ challenge that a recently promulgated EPA regulation fails fair notice principles); Nat'l Oilseed Processors Ass’n v. OSHA, 769 F.3d 1173, 1183-84 (D.C.Cir.2014) (denying petitioners’ challenge that a recently promulgated OSHA regulation fails fair notice principles).

The third context is where an agency interprets the meaning of its own regulation. Here also courts typically must defer to the agency’s reasonable interpretation.11 We and several of our sister circuits have stated that private parties are entitled to know with “ascertainable certainty” an agency’s interpretation of its regulation. Sec’y of Labor v. Beverly Healthcare-Hillview, 541 F.3d 193, 202 (3d Cir.2008); Dravo Corp. v. Occupational Safety & Health Rev. Comm’n, 613 F.2d 1227, 1232-33 (3d Cir.1980).12 Indeed, “the due process clause prevents ... deference from validating the application of a regulation that fails to give fair warning of the conduct it prohibits or requires.” AJP Const., Inc., 357 F.3d at 75 (internal quotation marks omitted).

A higher standard of fair notice applies in the second and third contexts than in the typical civil statutory interpretation case because agencies en*252gage in interpretation differently than courts. See Frank H. Easterbook, Judicial Discretion in Statutory Interpretation, 57 Okla. L.Rev. 1, 3 (2004) (“A judge who announces deference is approving a shift in interpretive method, not just a shift in the identity of the decider, as if a suit were being transferred to a court in a different venue.”). In resolving ambiguity in statutes or regulations, courts generally adopt the best or most reasonable interpretation. But, as the agency is often free to adopt any reasonable construction, it may impose higher legal obligations than required by the best interpretation.13

Furthermore, courts generally resolve statutory ambiguity by applying traditional methods of construction. Private parties can reliably predict the court’s interpretation by applying the same methods. In contrast, an agency may also rely on technical expertise and political values.14 -It is harder to predict how an agency will construe a statute or regulation at some unspecified point in the future, particularly when that interpretation will depend on the “political views of the President in office at [that] time.” Strauss, supra at 1147.15

Wyndham argues it was entitled to “ascertainable certainty” of the FTC’s interpretation of what specific cybersecurity practices are required by § 45(a). Yet it has contended repeatedly — no less than seven separate occasions in this case — that there is no FTC rule or adjudication about cybersecurity that merits deference here. The necessary implication, one that Wyndham itself has explicitly drawn on two occasions noted below, is that federal courts are to interpret § 45(a) in the first *253instance to decide whether Wyndham’s conduct was unfair.

Wyndham’s argument has focused on the FTC’s motion to dismiss order in LabMD, an administrative case in which the agency is pursuing an unfairness claim based on allegedly inadequate cybersecurity. LabMD Order, supra. Wyndham first argued in the District Court that the LabMD Order does not merit Chevron deference because “selfiserving, litigation-driven decisions ... are entitled to no deference at all” and because the opinion adopted an impermissible construction of the statute. Wyndham’s January 29, 2014 Letter at 1-2, FTC v. Wyndham Worldunde Corp., 10 F.Supp.3d 602 (D.N.J.2014).

Second, Wyndham switched gears in its opening brief on appeal to us, arguing that LabMD does not merit Chevron deference because courts owe no deference to an agency’s interpretation of the “boundaries of Congress’ statutory delegation of authority to the agency.” Wyndham Br. at 19-20.

Third, in its reply brief it argued again that LabMD does not merit Chevron deference because it adopted an impermissible construction of the statute. Wyndham Reply Br. at 14.

Fourth, Wyndham switched gears once more in a Rule 28(j) letter, arguing that LabMD does not merit Chevron deference because the decision was nonfinal. Wyndham’s February 6, 2015 Letter (citing LabMD, Inc. v. FTC, 776 F.3d 1275 (11th Cir.2015)).

Fifth, at oral argument we asked Wyndham whether the FTC has decided that cybersecurity practices are unfair. Counsel answered: “No. I don’t think consent decrees count, I don’t think the 2007 brochure counts, and I don’t think Chevron deference applies. So are ... they asking this federal court in the first instance ... [?] I think the answer to that question is yes.... ” Oral Arg. Tr. at 19.

Sixth, due to our continuing confusion about the parties’ positions on a number of issues in the case, we asked for supplemental briefing on certain questions, including whether the FTC had declared that cybersecurity practices can be unfair. In response, Wyndham asserted that “the FTC has not declared unreasonable cybersecurity practices ‘unfair.’ ” Wyndham’s Supp. Memo, at 3. Wyndham explained further: “It follows from [our] answer to [that] question that the FTC is asking the federal combs to determine in the first instance that unreasonable cybersecurity practices qualify as ‘unfair’ trade practices under the FTC Act.” Id. at 4.

Seventh, and most recently, Wyndham submitted a Rule 28(j) letter arguing that LabMD does not merit Chevron deference because it decided a question of “deep economic and political significance.” Wyndham’s June 30, 2015 Letter (quoting King v. Burwell, — U.S. -, 135 S.Ct. 2480, 192 L.Ed.2d 483 (2015)).

Wyndham’s position is unmistakable: the FTC has not yet declared that cybersecurity practices can be unfair; there is no relevant FTC rule, adjudication or document that merits deference; and the FTC is asking the federal courts to interpret § 45(a) in the first instance to decide whether it prohibits the alleged conduct here. The implication of this position is similarly clear: if the federal courts are to decide whether Wyndham’s conduct was unfair in the first instance under the statute without deferring to any FTC interpretation, then this case involves ordinary judicial interpretation of a civil statute, and the ascertainable certainty standard does not apply. The relevant question is not whether Wyndham had fair notice of the FTC’s interpretation of the statute, but *254whether Wyndham had fair notice of what the statute itself requires.

Indeed, at oral argument we asked Wyndham whether the cases cited in its brief that apply the “ascertainable certainty” standard — all of which involve a court reviewing an agency adjudication16 or at least a court being asked to defer to an agency interpretation17 — apply where the court is to decide the meaning of the statute in the first instance.18 Wyndham’s counsel responded, “I think it would, your Honor. I think if you go to Ford Motor [Co. v. FTC, 673 F.2d 1008 (9th Cir.1981) ], I think that’s what was happening there.” Oral Arg. Tr. at 61. But Ford Motor is readily distinguishable. Unlike Wyndham, the petitioners there did not bring a fair notice claim under the Due Process Clause. Instead, they argued that, per NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974), the FTC abused its discretion by proceeding through agency adjudication rather than rulemaking.19 More importantly, the Ninth Circuit was reviewing an agency adjudication; it was not interpreting the meaning of the FTC Act in the first instance.

In addition, our understanding of Wyndham’s position is consistent with the District Court’s opinion, which concluded that the FTC has stated a claim under § 45(a) based on the Court’s interpretation of the statute and without any reference to LabMD or any other agency adjudication or regulation. See FTC v. Wyndham Worldwide Corp., 10 F.Supp.3d 602, 621-26 (D.N.J.2014).

*255We thus conclude that Wyndham was not entitled to know with ascertainable certainty the FTC’s interpretation of what cybersecurity practices are required by § 45(a). Instead, the relevant question in this appeal is whether Wyndham had fair notice that its conduct could fall within the meaning of the statute. If later proceedings in this case develop such that the proper resolution is to defer to an agency interpretation that gives rise to Wyndham’s liability, we leave to that time a fuller exploration of the level of notice required. For now, however, it is enough to say that we accept Wyndham’s forceful contention that we are interpreting the FTC Act (as the District Court did). As a necessary consequence, Wyndham is only entitled to notice of the meaning of the statute and not to the agency’s interpretation of the statute.

B. Did Wyndham Have Fair Notice of the Meaning of § 45(a)?

Having decided that Wyndham is entitled to notice of the meaning of the statute, we next consider whether the case should be dismissed based on fair notice principles. We do not read Wyndham’s briefs as arguing the company lacked fair notice that cybersecurity practices can, as a general matter, form the basis of an unfair practice under § 45(a). Wyndham argues instead it lacked notice of what specific cybersecurity practices are necessary to avoid liability. We have little trouble rejecting this claim.

To begin with, Wyndham’s briefing focuses on the FTC’s failure to give notice of its interpretation of the statute and does not meaningfully argue that the statute itself fails fair notice principles. We think it imprudent to hold a 100-year-old statute unconstitutional as applied to the facts of this case when we have not expressly been asked to do so.

Moreover Wyndham is entitled to a relatively low level of statutory notice for several reasons. Subsection 45(a) does not implicate any constitutional rights here. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). It is a civil rather than criminal statute.20 Id. at 498-99, 102 S.Ct. 1186. And statutes regulating economic activity receive a “less strict” test because their “subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action.” Id. at 498,102 S.Ct. 1186.

In this context, the relevant legal rule is not “so vague as to be ‘no rule or standard at all.’ ” CMR D.N. Corp., 703 F.3d at 632 (quoting Boutilier, 387 U.S. at 123, 87 S.Ct. 1563)'. Subsection 45(n) asks whether “the act or practice causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.” While far from precise, this standard informs parties that the relevant inquiry here is a cost-benefit analysis, Pa. Funeral Dirs. Ass’n v. FTC, 41 F.3d 81, 89-92 (3d Cir.1994); Am. Fin. Servs. Ass’n, 767 F.2d at 975, that considers a number of relevant factors, including the probability and expected size of reasonably unavoidable harms to consumers given a certain level of cybersecurity and the costs to consumers that would arise from investment in stronger cybersecurity. We ac*256knowledge there will be borderline cases where it is unclear if a particular company’s conduct falls below the requisite legal threshold. But under a due process analysis a company is not entitled to such precision as would eliminate all close calls. Cf Nash v. United States, 229 U.S. 378, 377, 33 S.Ct. 780, 57 L.Ed. 1232 (1913) (“[T]he law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree.”). Fair notice is satisfied here as long as the company can reasonably foresee that a court could construe its conduct as falling within the meaning of the statute.

What appears to us is that Wyndham’s fair notice claim must be reviewed as an as-applied challenge. See United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975); San Filippo, 961 F.2d at 1136. Yet Wyndham does not argue that its cybersecurity practices survive a reasonable interpretation of the cost-benefit analysis required by § 45(n). One sentence in Wyndham’s reply brief says that its “view of what data-security practices are unreasonable ... is not necessarily the same as the FTC’s.” Wyndham Reply Br. at 23. Too little and too late.

Wyndham’s as-applied challenge falls well short given the allegations in the FTC’s complaint. As the FTC points out in its brief, the complaint does not allege that Wyndham used weak firewalls, IP address restrictions, encryption software, and passwords. Rather, it alleges that Wyndham failed to use any firewall at critical network points, Compl. at ¶ 24(a), did not restrict specific IP addresses at all, id. at ¶ 24(j), did not use any encryption for certain customer files, id. at ¶ 24(b), and did not require some users to change' their default or factory-setting passwords at all, id. at ¶ 24(f). Wyndham did not respond to this argument in its reply brief.

Wyndham’s as-applied challenge is even weaker given it was hacked not one or two, but three, times. At least after the second attack, it should have been painfully clear to Wyndham that a court could find its conduct failed the cost-benefit analysis. That said, we leave for another day whether Wyndham’s alleged cybersecurity practices do in fact fail, an issue the parties did not brief. We merely note that certainly after the second time Wyndham was hacked, it was on notice of the possibility that a court could find that its practices fail the cost-benefit analysis.

Several other considerations reinforce our conclusion that Wyndham’s fair notice challenge fails. In 2007 the FTC issued a guidebook, Protecting Personal Information: A Guide for Business, FTC Response Br. Attachment 1 [hereinafter FTC Guidebook ], which describes a “checklist[ ]” of practices that form a “sound data security plan.” Id. at 3. The guidebook does not state that any particular practice is required by § 45(a),21 but it does counsel against many of the specific practices alleged here. For instance, it recommends that companies “consider encrypting sensitive information that is stored on [a] computer network ... [, cjheck ... software vendors’ websites regularly for alerts about new vulnerabilities, and implement policies for installing vendor-approved patches.” Id. at 10. It recommends using “a firewall to protect [a] computer from hapker attacks while it is connected to the *257Internet,” deciding “whether [to] install a ‘border’ firewall where [a] network connects to the Internet,” and setting access controls that “determine who gets through the firewall and what they will be allowed to see ... to allow, only trusted employees with a legitimate business need to access the network.” Id. at 14. It recommends “requiring that employees use ‘strong’ passwords” and cautions that “[h]ackers will first try words like ... the software’s default password[ ] and other easy-to-guess choices.” Id. at 12. And it recommends implementing a “breach response plan,” id. at 16, which includes “[ijnvestigat[ing] security incidents immediately and tak[ing] steps to close off existing vulnerabilities or threats to personal information,” id. at 23.

As the agency responsible for administering the statute, the FTC’s expert views about the characteristics of a “sound data security plan” could certainly have helped Wyndham determine in advance that its conduct might not survive the cost-benefit analysis.

Before the attacks, the FTC also filed complaints and entered into consent decrees in administrative cases raising unfairness claims based on inadequate corporate cybersecurity. FTC Br. at 47 n.16. The agency published these materials on its website and provided notice of proposed consent orders in the Federal Register. Wyndham responds that the complaints cannot satisfy fair notice principles because they are not “adjudications on the merits.”22 Wyndham Br. at 41. But even where the “ascertainable certainty” standard applies to fair notice claims, courts regularly consider materials that are neither regulations nor “adjudications on the merits.” See, e.g., United States v. Lachman, 387 F.3d 42, 57 (1st Cir.2004) (noting that fair notice principles can be satisfied even where a regulation is vague if the agency “provide[d] a sufficient, publicly accessible statement” of the agency’s interpretation of the regulation); Beverly Healthcare-Hillview, 541 F.3d at 202 (citing Lachman and treating an OSHA opinion letter as a “sufficient, publicly accessible statement”); Gen. Elec. Co., 53 F.3d at 1329. That the FTC commissioners — who must vote on whether to issue a complaint, 16 C.F.R. § 3.11(a); ABA Section of Antitrust Law, FTC Practice and Procedure Manual 160-61 (2007) — believe that alleged cybersecurity practices fail the cost-benefit analysis of § 45(n) certainly helps companies with similar practices apprehend the possibility that their cybersecurity could fail as well.23

*258Wyndham next contends that the individual allegations in the complaints are too vague to be relevant to the fair notice analysis. Wyndham Br. at 41-42. It does not, however, identify any specific examples. And as the Table below reveals, the individual allegations were specific and similar to those here in at least one of the four or five24 cybersecurity-related unfair-practice complaints that issued prior to the first attack.

■ Wyndham also argues that, even if the individual allegations are not vague, the complaints “fail to spell out what specific cybersecurity practices ... actually triggered the alleged violation, ... providing] only a ... description of certain alleged problems that, ‘taken together,’” fail the cost-benefit analysis. Wyndham Br. at 42 (emphasis in original). We part with it on two fronts. First, even if the complaints do not specify which allegations, in the Commission’s view, form the necessary and sufficient conditions of the alleged violation, they can still help companies apprehend the possibility of liability under the statute. Second, as the Table below showá, Wyndham cannot argue that the complaints fail to give notice of the necessary and sufficient conditions of an alleged § 45(a) violation when all of the allegations in at least one of the relevant four or five complaints have close corollaries here. See Complaint, CardSystems Solutions, Inc., No. C-4168, 2006 WL 2709787 (F.T.C.2006) [hereinafter CCS].

Table: Comparing CSS and Wyndham Complaints

CSS

1Created unnecessary risks to personal information by storing it in a vulnerable format for up to 30 days, CSS at ¶ 6(1)._

2Did not adequately assess the vulnerability of its web application and computer network to commonly known or reasonably foreseeable attacks; did not implement simple, low-cost and readily available defenses to such attacks, CSS at ¶ 6(2)-(3)._

3Failed to use strong passwords to prevent a hacker from gaining control over computers on its computer network and access to personal information stored on the network, CSS at ¶ 6(4).

4Did not use readily available security measures to limit access between computers on its network and between those computers and the Internet, CSS at ¶ 6(5).

5Failed to employ sufficient measures to detect unauthorized access to personal infor*259mation or to conduct security investigations, CSS at ¶ 6(6)._

*258Wyndham

Allowed software at hotels to store payment card information in clear readable text, Compl. at ¶ 24(b)._

Failed to monitor network for the malware used in a previous intrusion, Compl. at ¶ 24(i), which was then reused by hackers later to access the system again, id. at ¶ 34.

Did not employ common methods to require user IDs and passwords that are difficult for hackers to guess. E.g., allowed remote access to a hotel’s property management system that used defaulVfactory setting passwords, Compl. at ¶ 24(f)._

Did not use readily available security measures, such as firewalls, to limit access between and among hotels’ property management systems, the Wyndham network, and the Internet, Compl. at ¶ 24(a)._

Failed to employ reasonable measures to detect and prevent unauthorized access to *259computer network or to conduct security investigations, Compl. at ¶ 24(h)._

In sum, we have little trouble rejecting Wyndham’s fair notice claim.

V. Conclusion

The three requirements in § 45(n) may be necessary rather than sufficient conditions of an unfair practice, but we are not persuaded that any other requirements proposed by Wyndham pose a serious challenge to the FTC’s claim here. Furthermore, Wyndham repeatedly argued there is no FTC interpretation of § 45(a) or (n) to which the federal courts must defer in this case, and, as a result, the courts must interpret the meaning of the statute as it applies to Wyndham’s conduct in the first instance. Thus, Wyndham cannot argue it was entitled to know with ascertainable certainty the cybersecurity standards by which the FTC expected it to conform. Instead, the company can only claim that it lacked fair notice of the meaning of the statute itself — a theory it did not meaningfully raise and that we strongly suspect would be unpersuasive under the facts of this case.

We thus affirm the District Court’s decision.