Rizwan Ali v. Jp Morgan Chase Bank Na

647 F. App'x 783

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 7, 2016
• Docket: 14-15076
• Status: Unpublished

Opinion

MEMORANDUM *

J.P. Morgan Chase Bank (JPMC) appeals the district court’s order denying its motion to compel arbitration. We have jurisdiction under 9 U.S.C. § 16(a)(1)(B). Reviewing de novo, see Kilgore v. Key-Bank, Nat’l Ass’n, 718 F.3d 1052, 1057 (9th Cir.2013) (en banc), we affirm in part, reverse in part and remand with instruction to compel arbitration.

1. The district court properly concluded the arbitration agreement was adhesive, and thus at least minimally procedurally unconscionable. The agreement governing various aspects of Ali’s employment with JPMC, of which the “Binding Arbitration Agreement” (“BAA”) was part, was adhesive because it was offered “on essentially a ‘take it or leave it’ basis.” Sanchez v. Valencia Holding Co., LLC, 61 Cal.4th 899, 190 Cal.Rptr.3d 812, 353 P.3d 741, 762 (2015). Adhesive contracts are at least minimally procedurally unconscionable under California law. See Baltazar v. Forever 21, Inc., 62 Cal.4th 1237, 200 Cal.Rptr.3d 7, 367 P.3d 6, 11 (2016) (citing Gentry v. Superior Court, 42 Cal.4th 443, 64 Cal.Rptr.3d 773, 165 P.3d 556, 573 (2007)).

2. The district court erred in concluding it is substantively unconscionable for the BAA to exclude from its coverage certain actions seeking only provisional in-junctive relief. This carve-out “does no more than recite the procedural protections already secured by [California Code of Civil Procedure] section 1281.8(b), which expressly permits parties to an arbitration to seek preliminary injunctive relief during the pendency of the arbitration.” Id., 200 Cal.Rptr.3d 7, 367 P.3d at 13. A provision “which does no more than restate existing law does not render the agreement unconscionable.” Id., 200 Cal.Rptr.3d 7, 367 P.3d at 9 (citation omitted). 1 .

3. The district court also erred in concluding the BAA’s initiation provision is substantively unconscionable. Although this provision lacks mutuality, substantive unconscionability “turns not only on a one-sided result, but also on an absence of justification , for it.” Armendariz v. Found. Health Psychcare Servs., 24 Cal.4th 83, 99 Cal.Rptr.2d 745, 6 P,3d 669, 692 (2000) (quoting A & M Produce Co. v. FMC Corp., 135 Cal.App.3d 473, 186 Cal.Rptr. 114, 122 (1982)) (internal quotation marks omitted). The initiation provision is narrowly designed to accommodate JPMC’s legal obligation to pay all costs unique to arbitration, and thus has a “reasonable justification ... based on ‘business realities.’ ” See Armendariz, 99 Cal.Rptr.2d 745, 6 P.3d at 687-89, 691.

4. The district court properly concluded the BAA’s confidentiality provision is not substantively unconscionable. Ali suggests, in a brief and conclusory argument and without citing any authority, that the confidentiality provision is unfairly one-sided because “having the hearing closed benefits Chase, not the Plaintiff as it prevents others from observing and learning of Chase’s illegal policies and practices.” Ali does'not argue he would be unfairly disadvantaged in resolving his own dispute with JPMC; rather, his concern appears to be solely for other, potential plaintiffs. This “concern[ ] ha[s] nothing to say about the fairness or desirability of a secrecy provision with respect to the parties themselves.” Woodside Homes of Cal., Inc. v. Superior Court, 107 Cal. App.4th 723, 132 Cal.Rptr.2d 35, 42 (2003). “[A] provision which favors one side is not substantively unconscionable if the advantage is completely collateral to the issues surrounding a fair resolution of the dispute.” Id, at 42 n. II. 2

5. None of the other provisions in the BAA are substantively unconscionable. The BAA’s discovery “guidelines” may be expanded or restricted in the arbitrator’s “reasonable discretion” and the BAA expressly requires discovery “consistent with ... general standards of due process [and] the Rules of AAA.” See Dotson v. Amgen, Inc., 181 Cal.App.4th 975, 104 Cal.Rptr.3d 341, 349 (2010) (enforcing an arbitration discovery limitation because “the agreement gives the arbitrator the broad discretion contemplated by the AAA rules to order the discovery needed to sufficiently litigate the parties’ claims”). The BAA’s unilateral modification clause is subject to “the fundamental limit ... imposed by the covenant of good faith and fair dealing implied in every contract.” Serpa v. Cal. Sur. Investigations, Inc., 215 Cal.App.4th 695, 155 Cal.Rptr.3d 506, 514 (2013). It is not inherently unfair for the BAA to authorize an arbitrator to rule on summary judgment motions. See Little v. Auto Stiegler, Inc., 29 Cal.4th 1064, 130 Cal. Rptr.2d 892, 63 P.3d 979, 986 n. 1 (2003) (“To the extent that the availability of dispositive pre-arbitration motions favor [sic] [the employer] as defendant, they confer no more of an advantage than would be the case had the action been brought in court.”).

■ 6. In sum, because the BAA is not substantively unconscionable, the district court erred in failing to enforce it. See Chavarria v. Ralphs Grocery Co., 733 F.3d 916, 922 (9th Cir.2013) (“Under California law, a contract must be both procedurally and substantively unconscionable to be rendered invalid.” (citing Armendariz, 99 Cal.Rptr.2d 745, 6 P.3d at 690)). Accordingly, we reverse the district court’s order, and remand with the instruction to compel arbitration.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

The parties shall bear their own costs on appeal.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . The district court did not have the benefit of the California Supreme Court's recent decision in Baltazar.

2 . We have recognized that confidentiality provisions in an arbitration agreement are not per se unconscionable under California law. See Davis v. O’Melveny & Myers, 485 F.3d 1066, 1079 (9th Cir.2007) (citing Mercuro v. Superior Court, 96 Cal.App.4th 167, 116 Cal.Rptr.2d 671, 679 (2002); see also Baltazar, 200 Cal.Rptr.3d 7, 367 P.3d at 15 ("Agreements to protect sensitive information are a regular feature of modern litigation, and they carry with them no inherent unfairness.”)). But we have also held that a confidentiality provision is "written too broadly,” and thus substantively unconscionable, when, for example, it "precludes even mention to anyone ‘not directly involved in the mediation or arbitration’ of .., even ‘the existence of a controversy and the fact that there is a mediation or an arbitration proceeding’ ” because ‘‘[s]uch restriction[ ] would prevent an employee from contacting other employees to assist in litigating (or arbitrating) an employee's case.” Davis, 485 F.3d at 1078. Ali has not, however, contended the confidentiality provision here "would handicap [or] stifle [his] ability to investigate and engage in discovery.” Id. Ali remains free to argue to the arbitrator that the confidentiality provision is unenforceable as applied in his case. See Kilgore, 718 F.3d at 1059 n. 9 (“[T]he enforceability of the confidentiality clause is a matter distinct from the enforceability of the arbitration clause in general. Plaintiffs are free to argue during arbitration that the confidentiality clause is not enforceable.”).