Janda v. T-Mobile USA, Inc.

267 F. App'x 727

Opinion

MEMORANDUM

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T-Mobile USA, Inc.’s (“T-Mobile”) arbitration agreement, which requires customers to waive class action and bring claims only in an individual capacity, is not substantively distinguishable from the Cingular arbitration agreement we held unconscionable in Shroyer v. New Cingular Wireless Servs., Inc., 498 F.3d 976 (9th Cir.2007). See also Lowden v. T-Mobile, 512 F.3d 1213 (9th Cir.2008).

Even though T-Mobile’s customers may have accepted the arrangement from the outset (rather than seeking another service provider), this court specifically rejected the “marketplace alternatives” rationale in Shroyer, 498 F.3d at 985-86, and California courts have done the same, Gatton v. T-Mobile USA, Inc., 152 Cal.App.4th 571, 582-85, 61 Cal.Rptr.3d 344 (2007). Shroyer also expressly and conclusively rejected the argument that California law on this issue is preempted by the Federal Arbitration Act. Shroyer, 498 F.3d at 987-93. We therefore affirm the district court’s denial of T-Mobile’s motion to dismiss the action and to compel arbitration.¹

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1 . T-Mobile asks us to further rule that plaintiff Singh must proceed in court; however, this issue is not before us at this time, as Singh does not currently seek to proceed in arbitration proceedings (and affirmatively disavows any interest in doing so).

Similarly, because the arbitration clauses are substantively and procedurally unconscionable under Shroyer, we need not address T-Mobile’s arguments regarding the additional provisions the district court found objectionable in Singh's arbitration agreement.