Household Bank v. Allen ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
In the April 10, 2003
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
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m 02-60417
Summary Calendar
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HOUSEHOLD BANK,
Plaintiff-Appellee,
H&R BLOCK, INC.; H&R BLOCK EASTERN TAX SERVICES, INC.;
H&R BLOCK TAX SERVICES, INC.; BLOCK FINANCIAL CORPORATION,
Intervenor Plaintiffs-
Appellees,
VERSUS
PATRICIA ALLEN; ET AL.,
Defendants,
LINA C. BLACK; MILDRED BROOKS; ANNIE R. BELL;
WALLACE BROOKS; EVELYN BELL; ET AL.,
Defendants-
Intervenor Defendants-
Appellants.
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Appeals from the United States District Court
for the Southern District of Mississippi
m 4:00-CV-142-LN
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Before HIGGINBOTHAM, SMITH, and scionability.2 9 U.S.C. § 2 (preserving
CLEMENT, Circuit Judges. common law grounds for “revocation of any
contract”). “Procedural unconscionability may
PER CURIAM:* be proved by showing a lack of knowledge,
lack of voluntariness, inconspicuous print, the
Certain defendants appeal an order to com- use of complex legalistic language, disparity in
pel arbitration of their claims against sophistication or bargaining power of the
Household Bank (“Household”) and several parties and/or a lack of opportunity to study
H&R Block affiliates (“Block”). Reviewing the contract and inquire about the contract
the order de novo, Primerica Life Ins. Co. v. terms.” Russell v. Performance Toyota, Inc.,
Brown, 304 F.3d 469, 471 (5th Cir. 2002), and 826 So. 2d 719, 725 (Miss. 2002) (quotation
finding no error, we affirm. marks omitted).
Defendants opted out of a settlement class Yet, defendants offer mere assertions, not
alleging various state and federal claims evidence, to satisfy this standard. They assert
against Household (or its predecessor) and that the arbitration clause is an adhesion con-
Block in connection with tax refund tract. “Adhesion contracts are not
anticipation loans. Household then filed this automatically void. Instead, the party seeking
petition, in which Block joined as intervenor, to avoid the contract generally must show it is
for a declaratory judgment and order to unconscionable.” Dillard, 961 F.2d at 1154.
enforce an arbitration clause in the loan They also assert that Block did not explain the
agreements between Household and clause to them, but this unremarkable fact
defendants. 1 The court entered an order to cannot support a claim of procedural uncon-
compel arbitration, 9 U.S.C. § 4, rejecting scionability. Fleetwood Enters., Inc. v. Gas-
defendants’ claims of unconscionability. kamp, 280 F.3d 1069, 1077 (5th Cir. 2002).
Defendants concede that the arbitration The arbitration clause is written in plain
clauses cover their claims, but contend that the English and has a conspicuous capitalized
clauses are void because of procedural uncon- heading and an entire capitalized paragraph ac-
knowledging but waiving defendants’ right to
a trial. Moreover, just above the signature line
on the loan agreements is a boldface statement
acknowledging that defendants specifically had
read the arbitration clause. In short, far from
*
Pursuant to 5TH CIR. R. 47.5, the court has being unconscionable, the clause is a model of
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
2
Because defendants challenge only the arbi-
1
The arbitration clause states, in relevant part, tration clause, not the entire loan agreement, the
that “any claim or dispute (whether in contract, tort district court properly adjudicated their challenge.
or otherwise) in a ny way relating to the Agree- Prima Paint Corp. v. Flood & Conklin Mfg. Co.,
ments or relating to the relationships of such 388 U.S. 395, 403-04 (1967); Dillard v. Merrill
parties . . . shall be resolved upon the election of Lynch, Pierce, Fenner & Smith, 961 F.2d 1148,
either party, by binding arbitration.” 1154 n.9 (5th Cir. 1992).
2
fair draftsmanship, better even than clauses we
have upheld against unconscionability charges
in the past. See, e.g., id. at 1071 n.2.
AFFIRMED.3
3
Defendants also contend that the arbitration
clause is void because it lacks mutuality and un-
lawfully limits punitive damages. We decline to
address these arguments, because defendants did
not raise them in the district court. See Little v.
Liquid Air Corp., 37 F.3d 1069, 1071 n.1 (5th Cir.
1994) (en banc).
3