Sarinya Reabroy v. Typhoon, Inc. ( 2010 )

FILED
NOT FOR PUBLICATION JUN 23 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SARINYA REABROY, No. 09-35521
Plaintiff - Appellee, D.C. No. 3:08-cv-01178-HA
v.
MEMORANDUM *
TYPHOON!, INC.; STEVE KLINE; BO
KLINE,
Defendants - Appellants.
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, Senior District Judge, Presiding
Argued and Submitted May 6, 2010
Portland, Oregon
Before: KOZINSKI, Chief Judge, BEA and IKUTA, Circuit Judges.
Under Oregon law we determine unconscionability by looking at a
contract’s terms. Vasquez-Lopez v. Beneficial Or., Inc., 152 P.3d 940, 951 (Or.
Ct. App. 2007). Because the arbitration agreement does not say who will pay the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
page 2
USA&M arbitrator’s costs, the district court looked outside the contract to
USA&M rules and fees to determine the agreement’s practical effects. The
arbitration clause does not itself pose a certain enough “risk” that Reabroy “will be
saddled with prohibitive costs” to justify invalidating the agreement. Green Tree
Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 91 (2000) (emphasis added); see
Motsinger v. Lithia Rose-FT, Inc., 156 P.3d 156, 162 (Or. Ct. App. 2007). We
also know that Reabroy will not actually bear “any costs at all in the arbitration.”
Motsinger, 156 P.3d at 162. Typhoon!’s counsel stated at oral argument that her
client agreed to pay the full cost of arbitration, including the arbitrator’s fees,
regardless of the substantive outcome of the arbitration. Thus neither the terms nor
the performance of the arbitration agreement requires Reabroy to pay arbitration
costs. We therefore reverse the district court’s finding of unconscionability and
consequent denial of Typhoon!’s motion to compel arbitration.
REVERSED.