Nagrampa v. Mailcoups, Inc.

Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONNIE A. NAGRAMPA, 
Plaintiff-Appellant, No. 03-15955
v.
 D.C. No.
CV-03-00208-MJJ
MAILCOUPS, INC.; THE AMERICAN
ARBITRATION ASSOCIATION, OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Martin J. Jenkins, District Judge, Presiding
Argued and Submitted En Banc
September 27, 2005—San Francisco, California
Filed December 4, 2006
Before: Mary M. Schroeder, Chief Judge, Stephen Reinhardt,
Alex Kozinski, Diarmuid F. O’Scannlain,
Sidney R. Thomas, Susan P. Graber, Kim McLane Wardlaw,
Raymond C. Fisher, Ronald M. Gould, Richard C. Tallman,
and Richard R. Clifton, Circuit Judges.
Opinion by Judge Wardlaw;
Partial Concurrence and Partial Dissent by Judge Clifton;
Dissent by Judge O’Scannlain;
Dissent by Judge Kozinski
18885
NAGRAMPA v. MAILCOUPS, INC. 18891
COUNSEL
Kate Gordon & Leslie A. Bailey, Trial Lawyers for Public
Justice, Oakland, California; F. Paul Bland, Trial Lawyers for
Public Justice, Washington, D.C.; Sanford M. Cipinko, Law
Offices of Sanford M. Cipinko, San Francisco, California, for
the plaintiff-appellant.
Glenn J. Plattner and Christine S. Oh, Jenkens & Gilchrist,
LLP, Los Angeles, California, for the defendant-appellee
MailCoups, Inc.
John S. Warnlof, Warnlof & Sumnick, Walnut Creek, Califor-
nia; Shirley M. Hufstedler, Morrison & Foerster, LLP, Los
Angeles, California, for the defendant-appellee, American
Arbitration Association.
OPINION
WARDLAW, Circuit Judge, with whom Chief Judge
SCHROEDER, Judges REINHARDT, THOMAS, GRABER,
FISHER, and GOULD join, and with whom Judge CLIFTON
joins as to Part II-A and II-B:
The question before us is whether a provision to submit to
arbitration in a written franchise agreement is valid and
enforceable, therefore requiring the district court to stay pro-
ceedings and refer the disputed franchise agreement to arbitra-
tion under the Federal Arbitration Act (“FAA”), 9 U.S.C.
18892 NAGRAMPA v. MAILCOUPS, INC.
§§ 1-16 (2000). In a now-withdrawn opinion, a three-judge
panel of our court held that the unconscionability of an arbi-
tration provision contained in the franchise agreement is a
question for the arbitrator to decide. Here, however, the plain-
tiff did not seek invalidation of the franchise agreement as a
whole on grounds of unconscionability; instead she chal-
lenged the unconscionability of solely the arbitration provi-
sion. Therefore, it was error to hold that consideration of the
unconscionability of the arbitration provision was to be deter-
mined by the arbitrator.
We review this case en banc to clarify, as the Supreme
Court has recently reiterated, that when the crux of the com-
plaint challenges the validity or enforceability of the agree-
ment containing the arbitration provision, then the question of
whether the agreement, as a whole, is unconscionable must be
referred to the arbitrator. See Buckeye Check Cashing, Inc. v.
Cardegna, 126 S. Ct. 1204, 1209 (2006); Prima Paint Corp.
v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04 (1967).
When the crux of the complaint is not the invalidity of the
contract as a whole, but rather the arbitration provision itself,
then the federal courts must decide whether the arbitration
provision is invalid and unenforceable under 9 U.S.C. § 2 of
the FAA.1 The federal courts cannot shirk their statutory obli-
gation to do so simply because controlling substantive state
law requires the court to consider, in the course of analyzing
the validity of the arbitration provision, the circumstances sur-
rounding the making of the entire agreement. See Buckeye,
126 S. Ct. at 1209-10; Doctor’s Assocs., Inc. v. Casarotto,
517 U.S. 681, 687 (1996); Prima Paint, 388 U.S. at 403-04.
Judge O’Scannlain’s dissent mistakenly argues that holding
1
Judge O’Scannlain’s dissent acknowledges that Nagrampa challenges
the arbitration provision separately and independently from the contract as
a whole in two isolated causes of action. Indeed, no cause of action in the
complaint alleges that the franchise agreement is invalid because it is a
contract of adhesion; nor does Nagrampa seek to invalidate the franchise
agreement; nor would it be invalidated if the arbitration provision is
deemed unconscionable.
NAGRAMPA v. MAILCOUPS, INC. 18893
the arbitration agreement unconscionable based partly on a
finding that the franchise agreement is a contract of adhesion
— the required California law analysis — is a “ground that
directly affects the entire agreement.” Buckeye, 126 S. Ct. at
1208. Judge O’Scannlain’s dissent fails to recognize a further
aspect of California law that provides for striking unconscio-
nable provisions, while leaving the remainder of the agree-
ment intact, valid, and enforceable.
One must closely examine Nagrampa’s complaint and
apply California legal principles to understand why striking
the arbitration provision does not affect the validity of the
franchise agreement at issue. Nagrampa asserts six separate
causes of action2 in her (since removed) state complaint, none
of which seeks to invalidate the contract as a whole. Her fifth
and sixth causes of action specifically and exclusively chal-
lenge the validity of the arbitration provision. Although she
argues appropriately under California law that the arbitration
provision is procedurally unconscionable based, in part, on its
inclusion in a contract of adhesion, Nagrampa does not assert
that the entire agreement is unconscionable or invalid; nor
does she seek any form of relief from the agreement as a
whole. To the contrary, the other four causes of action provide
relief only if the franchise agreement is valid and binding
upon the parties.
2
A “cause of action” under California law is equivalent to a “claim”
under federal law, although the California system is based upon the old
code pleading system, which creates differences between the two pleading
systems that affect splitting, amendment, and res judicata principles. See
4 B.E. Witkin, California Procedure § 25 (4th ed. 2006). Under the federal
system, “[t]he word ‘claim’ denotes the allegations that give rise to an
enforceable right to relief.” Moore’s Federal Practice § 10.03[2][a] at 10-
23 (3d ed. 2006); see also Fed. R. Civ. P. 8(a)(2) (“A pleading which sets
forth a claim for relief . . . shall contain . . . (2) a short and plain statement
of the claim showing that the pleader is entitled to relief . . . .” ); Original
Ballet Russe, Ltd. v. Ballet Theatre, Inc., 133 F.2d 187, 189 (2d Cir. 1943)
(A claim “denote[s] the aggregate of operative facts which give rise to a
right enforceable in the courts.”).
18894 NAGRAMPA v. MAILCOUPS, INC.
Because § 2 of the FAA provides that arbitration agree-
ments are generally valid and enforceable, “save upon such
grounds as exist at law or in equity for the revocation of any
contract,” we are required to turn to California law to address
Nagrampa’s arguments regarding the unconscionability of the
arbitration provision. California law holds that unconsciona-
ble provisions generally are unenforceable. Such unenforce-
able provisions may, however, be severed from any valid and
enforceable provisions, even those also contained within the
arbitration provision. The district court correctly proceeded to
an analysis of unconscionability under California law as a
defense to enforcement of the arbitration provision included
in Nagrampa’s franchise agreement. Because the district court
failed to properly apply California law, which has continued
to evolve since the district court ruled, we reverse and remand
for further proceedings in accordance with this opinion.
I
In June 1998, Connie Nagrampa received an offering circu-
lar from MailCoups, Inc. On August 24, 1998, Nagrampa
entered into an agreement with MailCoups to establish and
operate a direct mail coupon advertising franchise under Mail-
Coups’s Super Coups system. The franchise agreement con-
tains a provision requiring the parties to arbitrate, in
accordance with the rules of the American Arbitration Associ-
ation (“AAA”), any dispute that arises out of or relates to the
franchise agreement. The arbitration provision further pro-
vides:
[T]his clause shall not be construed to limit Mail-
Coups’ right to obtain any provisional remedy,
including, without limitation, injunctive relief from
any court of competent jurisdiction, as may be nec-
essary in MailCoups’ sole subjective judgment, to
protect its Service Marks and proprietary informa-
tion. The decision of the arbitrator shall be binding
upon the parties and judgment upon the award may
NAGRAMPA v. MAILCOUPS, INC. 18895
be entered in any court having jurisdiction thereof.
The situs of the arbitration proceedings shall be the
regional office of the American Arbitration Associa-
tion which is located in Boston, Massachusetts. The
costs of arbitration shall be borne equally by Mail-
Coups and Franchisee. Each party shall be responsi-
ble for the fees and expenses of its respective
attorneys and experts.
In September 2000, after two years of unprofitable opera-
tion of her MailCoups franchise, Nagrampa unilaterally termi-
nated the franchise agreement. This contract dispute arose in
December 2001 when MailCoups initiated arbitration pro-
ceedings by filing a Demand for Arbitration with the AAA,
claiming that at the time Nagrampa terminated the agreement,
she owed MailCoups in excess of $80,000 in fees. Nagrampa,
in turn, charged that rather than making a forty-one percent
profit per year, as MailCoups had promised, she incurred over
$180,000 in personal debt and had to pay over $400,000 in
various fees to MailCoups. Nagrampa states that the forty-one
percent profit figure was orally communicated to her by Mail-
Coups and that this was not a figure that she had calculated
herself. Furthermore, in a letter sent to MailCoups on Septem-
ber 22, 2000, Nagrampa agreed to pay only the amount due
on the mailings, which would be reduced by unused Advertis-
ing Funds and CoolSavings charges.
MailCoups’s initial arbitration demand designated Los
Angeles, California, as the hearing locale. In a letter dated
February 6, 2002, Nagrampa’s attorney objected to the arbi-
tration proceeding. He clearly stated, “We are not ready or
willing to proceed with arbitration.” He also asserted “serious
concerns about the validity of the arbitration clause” and dis-
agreed that Nagrampa was “in fact compelled by the alleged
clause to arbitrate.” He further objected to the venue selec-
tion, requesting that the venue for the arbitration be Contra
Costa, California, the county in which Nagrampa operated her
MailCoups franchise. He also objected to the arbitration fee
18896 NAGRAMPA v. MAILCOUPS, INC.
clause. Based on those objections, Nagrampa’s counsel
refused to file a response to the arbitration.
Following further procedural skirmishes, on September 11,
2002, the AAA case manager notified the parties that the arbi-
tration hearing would take place in Boston, Massachusetts, in
accordance with the forum selection clause in the arbitration
provision. On October 16, 2002, the arbitrator suggested that
arbitration proceed in Fresno, California, as a more cost-
efficient and convenient venue. MailCoups vigorously
objected to the Fresno venue, and the AAA case manager
confirmed that the arbitration would take place in Boston,
Massachusetts. After Nagrampa failed to obtain a fee waiver
from the AAA, Nagrampa sent a letter indicating that she
would not participate in the arbitration proceedings.
Instead, Nagrampa filed this action against MailCoups and
AAA in the Superior Court of the State of California, Contra
Costa County. Because Buckeye instructs that we examine the
crux of the complaint to determine whether it is a challenge
to the contract as a whole or to the arbitration provision, 126
S. Ct. at 1208, we describe the complaint at length. The first
three causes of action allege common law torts: first,
Nagrampa claims relief for intentional misrepresentation; sec-
ond, she claims relief for negligent misrepresentation; and
third, she claims relief for fraud and deceit and suppression of
fact. For these three causes of action, Nagrampa prays for
damages, costs of suit, legal interest, attorney’s fees, and any
other relief the court might deem proper. The fourth cause of
action sets forth allegations that MailCoups violated the Cali-
fornia Franchise Law, and Nagrampa again prays for dam-
ages, cost of suit, legal interest, attorney’s fees, and any other
relief deemed proper. Nagrampa’s fifth and sixth causes of
action specifically challenge the validity and enforceability of
the arbitration provision. The fifth cause of action, for viola-
tion of the California Consumer Legal Remedies Act, Cal.
Civ. Code §§ 1750-1785, alleges that the arbitration provision
is substantially one-sided, does not fall within the reasonable
NAGRAMPA v. MAILCOUPS, INC. 18897
expectations of Nagrampa, and is unduly oppressive, unlaw-
ful, unfair, fraudulent, and unconscionable. Nagrampa further
alleges that the arbitration provision is contained within a
contract of adhesion, that the AAA has a strong incentive to
be biased, and that the arbitration provision denies her and
other franchisees due process. For this cause of action,
Nagrampa prays for damages, costs of suit, legal interest,
attorney’s fees, and any other relief that the court might deem
proper. The sixth cause of action, for violation of the Califor-
nia Unfair Competition Law, Cal. Bus. & Prof. Code
§§ 17200-17208, alleges that Nagrampa is acting as a private
attorney general to contest MailCoups’s requirement that its
franchisees resolve disputes through arbitration. The relief
Nagrampa seeks for the sixth cause of action is that “this
court preliminarily and permanently enjoin MailCoups Inc.
from unilaterally imposing its Arbitration Provision on plain-
tiff Connie A. Nagrampa” and that she be awarded attorney’s
fees, costs of suit, and any other relief that the court might
deem proper. Nagrampa nowhere in her complaint seeks to
have the franchise agreement as a whole invalidated or
declared unenforceable.
On January 14, 2003, invoking jurisdiction on the basis of
diversity of citizenship, MailCoups removed this action to the
United States District Court for the Northern District of Cali-
fornia. MailCoups thereafter filed a motion to compel arbitra-
tion and dismiss or stay Nagrampa’s action, alternatively
seeking transfer to the United States District Court for the
District of Massachusetts, which Nagrampa opposed princi-
pally upon the ground that the arbitration provision is uncon-
scionable.
Although the choice of law clause in article 36.17 of the
franchise agreement provides that the governing law is that of
the State of Massachusetts, both parties have proceeded
throughout the district court and on appeal on the assumption
that the franchise agreement is governed by California law.
As a result, the district court applied California law in deter-
18898 NAGRAMPA v. MAILCOUPS, INC.
mining whether the arbitration provision is unconscionable.
We will follow suit because the parties through their course
of conduct have waived the provision of the agreement that
specifies the application of Massachusetts law. See 13 Willis-
ton on Contracts § 39:27 (4th ed. 2005) (stating that parties to
a contract impliedly waive a term through a course of conduct
clearly manifesting an intention to waive the term). This prin-
ciple is recognized both in California, Daugherty Co. v.
Kimberly-Clark Corp., 14 Cal. App. 3d 151, 158 (1971), and
in Massachusetts, see Porter v. Harrington, 159 N.E. 530,
531 (Mass. 1928).
In ruling on the motion, the district court, quoting Bischoff
v. DirecTV, Inc., 180 F. Supp. 2d 1097, 1107 (C.D. Cal.
2002), and citing Prima Paint, 388 U.S. at 403-04, properly
recognized: “On a motion to compel arbitration, a court can-
not consider whether the contract as a whole is unconsciona-
ble. Instead, a court is limited to considering whether the
arbitration clause in the agreement is unconscionable.” Misap-
plying California law, the district court glossed over the ques-
tion of whether the arbitration provision is procedurally
unconscionable and concluded that procedural unconsciona-
bility was not a “dispositive” issue for the motion to compel.
The district court addressed only whether the arbitration pro-
vision is substantively unconscionable and found that the arbi-
tration provision is both valid and enforceable and that the
contract issues were for the arbitrator to decide. Finally,
because it found that the parties had agreed to arbitrate in
Boston, Massachusetts, not the district in which the court pre-
sides, see 9 U.S.C. § 4, it dismissed the action, permitting
MailCoups to move in the District Court for the District of
Massachusetts to compel arbitration.
Nagrampa timely appealed. On March 21, 2005, in a now-
withdrawn opinion, a three-judge panel of our court affirmed
the district court on grounds different from those upon which
the district court relied. Nagrampa v. MailCoups, Inc., 401
F.3d 1024 (9th Cir. 2005). We now address en banc the valid-
NAGRAMPA v. MAILCOUPS, INC. 18899
ity and enforceability of the arbitration provision in Nagram-
pa’s franchise agreement.
II
The validity and scope of an arbitration clause are reviewed
de novo. See Ticknor v. Choice Hotels Int’l, Inc., 265 F.3d
931, 936 (9th Cir. 2001). Whether a party has waived the right
to sue by agreeing to arbitrate is reviewed de novo. See Kum-
metz v. Tech Mold, Inc., 152 F.3d 1153, 1154 (9th Cir. 1998).
A dismissal without leave to amend also is reviewed de novo.
See Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1100
(9th Cir. 2003), cert. denied, 543 U.S. 869 (2004) (noting
underlying legal determination requires de novo review). We
review for clear error the factual findings underlying the dis-
trict court’s decision. Woods v. Saturn Distrib. Corp., 78 F.3d
424, 427 (9th Cir. 1996).
A.
[1] The arbitrability of a particular dispute is a threshold
issue to be decided by the courts. See Howsam v. Dean Witter
Reynolds, Inc., 537 U.S. 79, 83 (2002) (“The question
whether the parties have submitted a particular dispute to
arbitration, i.e., the ‘question of arbitrability,’ is ‘an issue for
judicial determination [u]nless the parties clearly and unmis-
takably provide otherwise.’ ” (alteration in original) (quoting
AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S.
643, 649 (1986))); John Wiley & Sons, Inc. v. Livingston, 376
U.S. 543, 547 (1964) (“The duty to arbitrate being of contrac-
tual origin, a compulsory submission to arbitration cannot
precede judicial determination that the . . . agreement does in
fact create such a duty.”). Under the FAA, arbitration agree-
ments “shall be valid, irrevocable, and enforceable, save upon
such grounds as exist at law or in equity for the revocation of
any contract.” 9 U.S.C. § 2. In analyzing whether an arbitra-
tion agreement is valid and enforceable, “generally applicable
contract defenses, such as fraud, duress, or unconscionability,
18900 NAGRAMPA v. MAILCOUPS, INC.
may be applied to invalidate arbitration agreements without
contravening § 2.” Doctor’s Assocs., 517 U.S. at 687.
[2] In Buckeye, the United States Supreme Court recog-
nized that challenges to arbitration agreements fall into two
categories: (1) those “challeng[ing] specifically the validity of
the agreement to arbitrate;” and (2) those “challeng[ing] the
contract as a whole, either on a ground that directly affects the
entire agreement (e.g., the agreement was fraudulently
induced), or on the ground that the illegality of one of the
contract’s provisions renders the whole contract invalid.” 126
S. Ct. at 1208. The Court held that “unless the challenge is to
the arbitration clause itself, the issue of the contract’s validity
is considered by the arbitrator in the first instance.” Id. at
1209. The complaint in Buckeye, unlike Nagrampa’s com-
plaint, did not contain claims that the arbitration provision
alone was void and unenforceable, but rather alleged that the
arbitration provision was unenforceable because it was con-
tained in an illegal usurious contract which was void ab initio.
Id. at 1208. The opinion by the Florida Court of Appeal
describes the claims of the plaintiff class in Buckeye:
Appellees do not challenge the validity of the arbi-
tration provision. Rather, they contend that the
underlying contract is void ab initio because it is
criminally usurious and, therefore, never existed at
all. They further argue . . . that a trial court must
determine the legal validity of the underlying con-
tract before compelling arbitration.
Buckeye Check Cashing, Inc. v. Cardegna, 824 So. 2d 228,
230 (Fla. Dist. Ct. App. 2002). The Supreme Court in Buck-
eye examined the claims alleged in the complaint to determine
the nature of the challenge to the validity of the arbitration
agreements under § 2 of the FAA. 126 S. Ct. at 1208. It noted
that “[t]he crux of the complaint [was] that the contract as a
whole (including its arbitration provision) [was] rendered
invalid by the usurious finance charge.” Id. A conclusion that
NAGRAMPA v. MAILCOUPS, INC. 18901
the agreement was usurious or violated Florida’s public policy
necessarily would invalidate the entire contract because “Flor-
ida public policy and contract law . . . permit no sever[ance]
or salvage[ ] [of] parts of a contract found illegal and void
under Florida law.” Id. at 1209 (internal quotation marks
omitted). The Buckeye Court rejected the application of state
severability rules, holding that enforceability of the arbitration
agreement cannot turn on state public policy and contract law.
Id. The Supreme Court further reasoned, that Prima Paint had
established the proposition that, as a matter of substantive fed-
eral arbitration law, “an arbitration provision is severable
from the remainder of the contract.” Id. The Court concluded
that “because respondents challenge the Agreement, but not
specifically its arbitration provisions, those provisions are
enforceable apart from the remainder of the contract.” Id.
Thus, the Supreme Court in Buckeye held that the claim that
the contract as a whole, including the arbitration provision,
was rendered void ab initio by the usurious finance charges,
was for the arbitrator to decide. Id. at 1208-09.
Similarly, in Prima Paint, the plaintiff did not include a
claim challenging the validity of the arbitration provision, but
rather alleged that the contract as a whole was fraudulently
induced, rendering the arbitration provision unenforceable.
388 U.S. at 398-400. The Court in Prima Paint made clear
that “no claim ha[d] been advanced by Prima Paint that F &
C fraudulently induced it to enter into the agreement to arbi-
trate ‘(a)ny controversy or claim arising out of or relating to
this Agreement, or the breach thereof.’ ” Id. at 406 (alteration
in original). Because “the statutory language does not permit
the federal court to consider claims of fraud in the inducement
of the contract generally,” the Court held that the dispute was
for the arbitrator to decide. Id. at 404. However, the Court
also held that challenges specifically to the arbitration agree-
ment were for the court to decide:
[T]he federal court is instructed to order arbitration
to proceed once it is satisfied that “the making of the
18902 NAGRAMPA v. MAILCOUPS, INC.
agreement for arbitration or the failure to comply
(with the arbitration agreement) is not in issue.”
Accordingly, if the claim is fraud in the inducement
of the arbitration clause itself—an issue which goes
to the “making” of the agreement to arbitrate—the
federal court may proceed to adjudicate it.
Id. at 403-04 (footnotes omitted) (quoting 9 U.S.C. § 4 of the
FAA).
On the other hand, the Court in Buckeye noted approvingly
that the claims advanced by the plaintiff class in Southland
Corp. v. Keating, 465 U.S. 1 (1984), were of the type “chal-
leng[ing] specifically the validity of the agreement to arbi-
trate,” 126 S. Ct. at 1208, and thus were for the court to
decide. The plaintiff class in Southland alleged violation of
the disclosure requirements of the California Franchise
Investment Law, Cal. Corp. Code § 31512, arguing that
claims brought under the Franchise Investment Law required
judicial consideration and, therefore, the arbitration agreement
was unenforceable as to such claims. 465 U.S. at 4. The
Southland Court held that the claims were arbitrable because
it “s[aw] nothing in the Act indicating that the broad principle
of enforceability is subject to any additional limitations under
State law.” Id. at 11. The Court concluded that “the defense
to arbitration found in the California Franchise Investment
Law is not a ground that exists at law or in equity ‘for the
revocation of any contract’ but merely a ground that exists for
the revocation of arbitration provisions in contracts subject to
the California Franchise Investment Law.” Id. at 16 n.11
(quoting 9 U.S.C. § 2 of the FAA).
[3] We must “remain attuned to well-supported claims that
the agreement to arbitrate resulted from the sort of fraud or
overwhelming economic power that would provide grounds
for the revocation of any contract.” Mitsubishi Motors Corp.
v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 627 (1985)
(internal quotation marks omitted). Examining the “crux of
NAGRAMPA v. MAILCOUPS, INC. 18903
the complaint” makes it abundantly clear that Nagrampa’s
challenge goes specifically, and only, to the arbitration clause.
Nagrampa’s complaint does not allege a single ground for
invalidation of the entire agreement. To the contrary, the very
first request Nagrampa makes in paragraph six of her com-
plaint is that “this court decide that the arbitration require-
ments unilaterally imposed on its franchisees by MailCoups
Inc. are each unlawful, unfair, deceptive and unenforceable,
and enjoin MailCoups Inc. from unilaterally imposing these
requirements on its franchisees.” The two arbitration-related
claims, her fifth and sixth causes of action, seek to invalidate
the arbitration agreement only on the basis of unconsciona-
bility. Although Nagrampa makes an allegation in support of
her fifth cause of action that the contract is one of adhesion,
her contract of adhesion allegation is not a separate cause of
action for which Nagrampa seeks independent relief, such as
rescission or invalidation of the entire contract.3 Nor does this
3
Pleading requirements differ between federal law and California law.
California law requires that a complaint contain “a statement of the facts
constituting the cause of action, in ordinary and concise language,” Cal.
Civ. Proc. Code § 425.10(a)(1), which explains why Nagrampa’s attorney
would include the factual allegation that the contract was one of adhesion
in support of the cause of action challenging the arbitration agreement as
unconscionable, even though she did not seek invalidation of the entire
agreement on that ground. On the other hand, “[t]he Federal Rules do not
use the term ‘cause of action,’ and their emphasis is on the factual rather
than the ‘legal right’ aspects of the cause of action.” 4 B.E. Witkin, Cali-
fornia Procedure § 25 (4th ed. 2006). The Federal Rules do not require
that the complaint state all of the facts constituting a cause of action:
Conspicuously absent from Federal Rule 8(a)(2) is the require-
ment found in the codes that the pleader set forth the ‘facts’ con-
stituting a ‘cause of action.’ The substitution of ‘claim showing
that the pleader is entitled to relief’ for the code formulation of
the ‘facts’ constituting a ‘cause of action’ was intended to avoid
the distinctions drawn under the codes . . . and eliminate the
unfortunate rigidity and confusion surrounding the words ‘cause
of action.’
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 1216 (3d ed. 2006). Under federal law, the primary aim of the pleading
18904 NAGRAMPA v. MAILCOUPS, INC.
allegation, though necessary to establish unconscionability of
the arbitration provision, serve as a ground that directly
affects the entire agreement, unlike the usurious finance
ground in Buckeye. Prevailing on the fifth or sixth cause of
action means only that the arbitration provision is not enforce-
able; there is absolutely no effect, direct or indirect, on the
contract as a whole. In addition, forty-one of the forty-eight
General Allegations in Nagrampa’s complaint state facts sup-
porting the causes of action challenging arbitration. Although
Nagrampa also includes four other causes of action not target-
ing the arbitration provision, California’s strict pleading
requirements and rules restricting the splitting of causes of
action provided a strong incentive for her to do so.
[4] Furthermore, the genesis of Nagrampa’s complaint can
be found in the arbitration proceedings: Nagrampa filed suit
only after MailCoups successfully moved the arbitral venue
for the contract claims at issue to Boston and the AAA
rejected her petition to waive the arbitral fees. In other words,
Nagrampa filed suit only after the very issues rendering the
provision unconscionable against her had been resolved.
Thus, the crux of Nagrampa’s complaint is a challenge to the
arbitration provision itself. Where, as here, no claim threatens
to invalidate or otherwise directly affect the entire contract,
the federal court must decide claims attacking the validity of
the arbitration provision, even if substantive state law requires
an examination of the making of the entire contract as part of
that analysis.
requirements is to give fair notice to the other party. Unlike under Califor-
nia law, “[a] reading of Garcia, Conley, and Swierkiewicz, and a host of
other cases . . . suggests that the complaint, and other relief-claiming
pleadings need not state with precision all of the elements that are neces-
sary to give rise to a legal basis for recovery as long as fair notice of the
nature of the action is provided to the opposing party.” Id. (citing Swier-
kiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002); Conley v. Gibson, 355
U.S. 41, 45-46 (1957); Garcia v. Hilton Hotels Int’l, 97 F. Supp. 5, 8
(D.P.R. 1951)).
NAGRAMPA v. MAILCOUPS, INC. 18905
Our sister circuits also examine the nature of claims to
determine whether they are arbitrable. They hold that, where
the causes of action or claims within a complaint are, in
essence, an effort to invalidate the entire contract, then the
federal court will send the dispute to arbitration. They also
hold that where, as here, there are separate and independent
claims specifically challenging enforcement of the arbitration
provision, then the federal court will proceed to consider the
challenge to arbitrability of the dispute.
The plaintiff in the First Circuit case, Rosenberg v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d 1, 16 (1st Cir.
1999), alleged that the arbitration provision contained in the
Uniform Application For Securities Industry Registration Or
Transfer (“U-4 Form”), a prerequisite to work as a securities
broker, was unenforceable because it was adhesive. The plain-
tiff did not seek to invalidate the entire U-4 agreement, but
rather argued that the arbitration clause was adhesive and
invalid because signing the U-4 was a condition of employ-
ment and excision of the arbitration provision was not permit-
ted. Id. at 17. The First Circuit did not find it necessary to
address whether the plaintiff’s contract of adhesion argument
was precluded by Prima Paint; to the contrary, it proceeded
without comment to consider the contract of adhesion argu-
ment in determining whether the plaintiff had satisfied the
requirements for unconscionability. Id. The First Circuit ulti-
mately found the arbitration clause enforceable because the
plaintiff failed to satisfy the additional requirements for
unconscionability in demonstrating “both a lack of meaning-
ful choice about whether to accept the provision in question,
and that the disputed provisions were so onesided as to be
oppressive.” Id. (internal quotation marks omitted).
Similarly, the Second Circuit considered a plaintiff’s claim
that the arbitration provisions of the London Metal Exchange
Rules were unenforceable because the contracts which incor-
porated them were contracts of adhesion. David L. Threlkeld
& Co. v. Metallgesellschaft Ltd., 923 F.2d 245, 249 (2d Cir.
18906 NAGRAMPA v. MAILCOUPS, INC.
1991). Like Nagrampa, the plaintiff there did not seek to
invalidate the entire contract on the basis of adhesion but to
strike its arbitration clause. Id. The Second Circuit considered
the contract of adhesion claim and ultimately rejected it
because, “[f]or an arbitration provision to be stricken as a
contract of adhesion there must be a showing of unfairness,
undue oppression, or unconscionability.” Id. (internal quota-
tion marks omitted).
The Third Circuit examined a contract of adhesion allega-
tion while analyzing the procedural unconscionability of an
arbitration provision in a wrongful discharge and employment
discrimination suit. Alexander v. Anthony Int’l, L.P., 341 F.3d
256, 265 (3d Cir. 2003). The complaint filed by the plaintiff
class contained five causes of action under Virgin Islands law.
Id. at 261. The plaintiffs alleged that the arbitration provision
in the employment agreement was unenforceable as a contract
of adhesion presented to them on a “take-it-or-leave-it” basis
as a condition of employment, unconscionable, and offensive
to public policy by forcing plaintiffs to arbitrate statutory
claims. Id. at 261-62. Like Nagrampa, the plaintiffs did not
allege that the entire employment contract was an invalid con-
tract of adhesion. Id. The Third Circuit found that because an
“agreement to arbitrate may be unenforceable based on a gen-
erally applicable contractual defense, such as unconscionabili-
ty,” the court had the authority to consider plaintiffs’
arguments that the arbitration provision was invalid. Id. (cit-
ing Doctor’s Assoc., 517 U.S. at 687). The Third Circuit then
proceeded to hold that the arbitration provision was procedur-
ally unconscionable under Virgin Islands law because “[a]
multinational corporation presented [the plaintiffs] with an
agreement to arbitrate without providing any opportunity to
negotiate its terms,” and thus, the agreement was one of adhe-
sion. Id. at 265, 270. The court further ruled that the arbitra-
tion provision was substantively unconscionable because it
limited the time in which to bring a claim, limited the dam-
ages and fees awardable to plaintiffs, and required the losing
party to bear the costs of arbitration. Id. at 266-71. Because
NAGRAMPA v. MAILCOUPS, INC. 18907
unconscionability permeated the agreement to arbitrate, the
Third Circuit refused to sever the unconscionable provisions
or to enforce the arbitration clause, and remanded the case to
the district court for resolution of plaintiffs’ claims. Id. at 270-
72.
The Fifth Circuit likewise has considered defenses to arbi-
tration provisions that implicate the entire contract, but has
limited its consideration to claims which challenge the
enforceability and validity of the arbitration provision. In
Washington Mutual Finance Group, LLC v. Bailey, 364 F.3d
260 (5th Cir. 2004), the plaintiffs, who were illiterate, filed
suit against Washington Mutual, alleging primarily that they
had been sold and charged for insurance that they did not
need or want. Id. at 262. In defense to a motion to compel
arbitration, plaintiffs claimed that Washington Mutual had
fraudulently induced them into entering into the agreements
to arbitrate by misrepresenting the nature of the documents
that they were signing. Id. at 265. The district court denied
Washington Mutual’s motion to compel arbitration, finding
that the arbitration provision was procedurally unconscionable
and thus unenforceable. Id. at 268. On appeal, the Fifth Cir-
cuit rejected Washington Mutual’s argument that plaintiffs’
fraudulent inducement claim was for an arbitrator to decide
under Prima Paint and Primerica Life Insurance Co. v.
Brown, 304 F.3d 469, 472 (5th Cir. 2002). The Fifth Circuit
explained that in both Prima Paint and Primerica Life Insur-
ance Co., the claims asserted applied to the entire contract and
were therefore part of the underlying dispute, whereas, the
Washington Mutual plaintiffs’ claim “relates specifically to
the arbitration agreement, [and therefore] a federal court may
consider the [claim] as it relates to the making and perfor-
mance of the agreement to arbitrate.” Wash. Mut. Fin. Group,
364 F.3d at 266 n.4 (internal quotation marks omitted). The
Fifth Circuit ultimately held that the arbitration provision was
enforceable, but only because the Washington Mutual plain-
tiffs had not fulfilled their legal obligation to read the contract
or have someone read it to them, and thus could not advance
18908 NAGRAMPA v. MAILCOUPS, INC.
a claim of oral misrepresentation or fraudulent inducement
under Mississippi law. Id. at 266.
In the Sixth Circuit case, Burden v. Check Into Cash of
Kentucky, LLC, 267 F.3d 483, 486 (6th Cir. 2001), the plain-
tiff class alleged that defendants loaned money at usurious
interest rates through a scheme where the defendants would
provide cash in exchange for a check written for a higher
amount. If the customer did not have sufficient funds to cover
the check at the payment date, defendants would permit the
borrower to “roll-over” the debt and execute a new loan
agreement, paying an additional service fee. Id. Plaintiffs’
complaint alleged violations of the Truth in Lending Act
(“TILA”), 15 U.S.C. §§ 1601-1667f, the Racketeer Influenced
and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968, and
several consumer protection statutes under Kentucky law.
Burden, 267 F.3d at 486. In defense to a motion to compel
arbitration, plaintiffs alleged that the arbitration provision was
unenforceable because the initial loan agreements that they
had signed did not include an arbitration provision. Id. at 487.
Plaintiffs became aware of the provision, which defendants
had added to the reverse side of the “roll-over” loan agree-
ments, only when defendants attached it to their motion to
compel. Id. The Sixth Circuit, however, rejected this claim
because the “[p]laintiffs offer[ed] no legal authority for the
position that Defendants had a duty to inform them of their
insertion of the arbitration clauses.” Id. at 491 n.2. Plaintiffs
additionally alleged that the arbitration provision was used to
further defendants’ overall fraudulent scheme and, alterna-
tively, that the provision would impose burdensome costs on
unsophisticated consumers of limited education, deny statu-
tory rights, and constitute an uninformed waiver of jury trial
rights. Id. at 491-92. The Sixth Circuit rejected the fraudulent
scheme defense to arbitration because “[p]laintiffs fail[ed] to
identify, in connection with the alleged fraudulent scheme,
any misrepresentation particular to the arbitration agreements,
separate from the loan agreements.” Id. at 491. However, the
Sixth Circuit held that the alternative grounds offered by the
NAGRAMPA v. MAILCOUPS, INC. 18909
plaintiffs attacked the enforceability of the arbitration clause
itself, separate from the underlying loan agreements, and thus
required a remand to the district court to decide in the first
instance. Id. at 492-93.
The Sixth Circuit employed similar reasoning in Stout v.
J.D. Byrider, 228 F.3d 709, 713-15 (6th Cir. 2000), where the
plaintiff class alleged that the defendant vehicle sales and
leasing company engaged in a standard practice of misrepre-
senting the quality and value of the used vehicles sold and the
cost and value of warranties purchased. Plaintiffs’ complaint
alleged violations of the TILA, the Ohio Consumer Sales
Practices Act (“OCSPA”), Ohio Rev. Code § 1345.01, and
common law fraud. Stout, 228 F.3d at 713-14. In defense to
arbitration, plaintiffs claimed that the arbitration agreements
were unconscionable and unenforceable because they were
against Ohio public policy. Id. at 715-16. The Sixth Circuit
found that Ohio public policy could not mandate judicial reso-
lution of the claims because there is “nothing in the [FAA]
indicating that the broad principle of enforceability is subject
to any additional limitations of state law.” Id. at 716 (internal
quotation marks omitted). The court further found that plain-
tiffs’ claims for fraud and for violations of the OCSPA and
the TILA arose under the purchase and finance contracts as a
whole and, thus, were arbitrable absent a showing under Ohio
law that the arbitration provision itself was unconscionable.
Id. However, the Sixth Circuit asserted that had plaintiffs
alleged that the contract was one of adhesion, the court could
address it. Id. But, “[i]n the absence of any factual evidence
that these agreements were entered into fraudulently or mis-
takenly, and absent any showing by Plaintiffs that the arbitra-
tion arrangements are themselves one-sided or unfair,” the
plaintiffs’ claims were arbitrable. Id.
The Eighth Circuit has also required federal courts to
examine claims made by a party seeking to invalidate an arbi-
tration clause in order to determine whether the claims of
invalidity go to the contract as a whole or relate specifically
18910 NAGRAMPA v. MAILCOUPS, INC.
to the arbitration provision. In Madol v. Dan Nelson Automo-
tive Group, 372 F.3d 997, 998 (8th Cir. 2004), the plaintiff
class alleged that in the course of selling and financing vehi-
cles, defendants had violated Iowa consumer protection stat-
utes and the federal TILA, and committed common-law fraud.
In response to a motion to compel arbitration, plaintiffs
argued that the dispute resolution agreement (“DRA”) that
they had signed was invalid because the vehicle transactions
as a whole were unconscionable. Id. The plaintiffs argued that
they were given no choice as to what they signed, and that
they were overwhelmed by the sheer magnitude of the paper-
work and number of clauses per document. Id. Unlike
Nagrampa, the plaintiffs in Madol made no independent chal-
lenges to the DRA itself, and “plaintiffs acknowledged in a
hearing before the district court that they were not arguing
that the DRA [was] ‘in and of itself invalid,’ but that their the-
ory was that ‘the transactions as a whole from start to finish’
were unconscionable.” Id. at 1000. The Eighth Circuit thus
held that “plaintiffs’ arguments that their vehicle purchase
transactions were generally unconscionable were subject to
resolution by an arbitrator, absent a showing by the plaintiffs
that the DRA, standing alone, was invalid.” Id.
The only circuit that appears to be at odds with this
approach is the Eleventh. In Jenkins v. First American Cash
Advance of Georgia, LLC, 400 F.3d 868, 877 (11th Cir.
2005), cert. denied, 126 S. Ct. 1457 (2006), the plaintiffs, like
the putative plaintiff classes in Buckeye and Burden, had
entered into a series of “payday loans”— small-dollar, short-
term loans with high interest rates used to obtain cash
advances. Id. at 871. Each time the plaintiff had obtained a
loan, she was required to sign a promissory note and an arbi-
tration agreement that obligated her to submit all disputes
between the parties to binding arbitration under the FAA. Id.
at 871-72. As in Buckeye, the plaintiff filed a complaint chal-
lenging the contract as a whole. Id. at 872-73. The Jenkins
plaintiff alleged that the payday loan agreements violated
Georgia’s usury statutes, Ga. Code Ann. §§ 7-4-2, 7-4-18
NAGRAMPA v. MAILCOUPS, INC. 18911
(2004), and that the loans violated the Georgia Racketeer
Influenced and Corrupt Organizations Act, Ga. Code Ann.
§ 16-14-4. Id. at 873.
When the defendants removed the case to federal court and
sought to enforce the arbitration agreement, the plaintiff
asserted that the FAA did not apply to the loan agreements at
issue, that the arbitration agreements were unconscionable,
and that the arbitration agreements were unenforceable
because the underlying payday loans were illegal and void ab
initio under Georgia law. Id. at 873-74. In assessing the
unconscionability of the arbitration provision, the Eleventh
Circuit concluded that the plaintiff’s contract of adhesion
claim challenged the validity of the loan agreements as a
whole, not the arbitration agreements specifically. Id. at 877.
The “adhesion arguments were (1) that the consumers lacked
bargaining power because these type[s] of consumer loans . . .
would only appeal to extremely desperate consumers, and (2)
that the consumers were allegedly unable to negotiate the
terms and conditions of the preprinted agreements.” Id. (inter-
nal quotation marks omitted and alteration in original). The
Eleventh Circuit applied Prima Paint and Benoay v.
Prudential-Bache Securities., Inc., 805 F.2d 1437, 1441 (11th
Cir. 1986), which hold that if the unconscionability claims
“ ‘pertain to the contract as a whole, and not to the arbitration
provision alone,’ ” then those claims should be decided by the
arbitrator. Jenkins, 400 F.3d at 877 (quoting Benoay, 805 F.2d
at 1441) (emphasis added). In Jenkins, the Eleventh Circuit
therefore held that “the FAA does not permit a federal court
to consider claims alleging the contract as a whole was adhe-
sive.” Jenkins, 400 F.3d at 877.
The Eleventh Circuit may have applied Prima Paint too
broadly by requiring that the contract of adhesion claim per-
tain specifically and exclusively to the arbitration agreement.
The Supreme Court has clarified that to decide whether the
federal court or the arbitrator will hear the claims, we are to
determine whether the crux of the complaint is a challenge to
18912 NAGRAMPA v. MAILCOUPS, INC.
the arbitration clause itself or the validity of the contract as a
whole. Buckeye, 126 S. Ct. at 1208-09. The Supreme Court
did not require that the claims in the complaint address the
arbitration agreement alone.4 Id.
Judge O’Scannlain’s dissent misconstrues the holdings of
our sister circuits. The dissent asserts that the Second Circuit
in JLM Industries, Inc. v. Stolt-Nielsen SA, 387 F.3d 163, 170
(2d Cir. 2004), refused to consider a contract of adhesion
claim that did not apply to “the arbitration clause alone.”
However, the dissent disregards the significant fact that
JLM’s sole challenge to arbitration was that the contract as a
whole was one of adhesion. Indeed, JLM did not assert any
independent claim specifically directed to the invalidity of the
arbitration clause contained in the contract. Id. at 170. As the
Second Circuit itself noted, “[a]lthough JLM’s brief is not
wholly clear on this point, we understand its argument to be
that the [standard form charter contract] as a whole amounts
to a contract of adhesion, rather than that the arbitration
clause alone so qualifies.” Id. at 169. The Second Circuit fur-
ther explained that “there is no indication [in JLM’s argu-
ments] that the arbitration clause itself is an unconscionable
or oppressive term of adhesion.” Id. at 170 n.5. The Second
Circuit distinguished between a claim that the entire contract
was invalid as a contract of adhesion, as opposed to a claim
that the arbitration clause itself was adhesive. “ ‘For an arbi-
tration provision to be stricken as a contract of adhesion there
must be a showing of unfairness, undue oppression, or uncon-
scionability.’ ” Id. (quoting David L. Threlkeld, 923 F.2d at
249). Here, Nagrampa, unlike JLM, argues that the arbitration
provision itself is procedurally and substantively unconscio-
nable because she was unaware of its existence and that it was
4
Indeed, it would be absurd to require that the complaint allege only
claims attacking the arbitration agreement and not also include any other
claims related to the contract. Moreover, as discussed infra at n.5, a Cali-
fornia state plaintiff would be precluded from doing so by California’s
pleading requirements.
NAGRAMPA v. MAILCOUPS, INC. 18913
hidden on page twenty-five of a thirty-page agreement. If
Nagrampa, like JLM, had made only a claim that the entire
contract was invalid because it was a contract of adhesion, we
certainly would agree with our dissenting colleagues that it
would be a question for the arbitrator to decide.
Nor can Rojas v. TK Communications, Inc., 87 F.3d 745,
749 & n.3 (5th Cir. 1996), bear the weight that Judge
O’Scannlain’s dissent assigns to it. In Rojas, the Fifth Circuit
found that the plaintiff’s contract of adhesion claim was
solely a challenge to the entire contract and not specifically
directed to the arbitration clause. Id. at 749 n.3. While the
court acknowledged that Rojas had attacked the arbitration
clause in her brief, the Rojas court did not indicate whether
she had made a claim challenging the procedural or substan-
tive unconscionability of the arbitration clause itself. Id.
Therefore, when the Rojas court held that the claim was for
the arbitrator to resolve, it was discussing a claim that chal-
lenged the validity of the contract as a whole.
Judge O’Scannlain’s dissent also misreads the Sixth Cir-
cuit’s statement in Burden, that “ ‘the grounds for revocation
must relate specifically to the arbitration clause and not just
to the contract as a whole.’ ” 267 F.3d at 492-93 (quoting
Hooters of Am., Inc. v. Phillips, 173 F.3d 933, 938 (4th Cir.
1999)). However, the Burden court did not say that the
grounds for revocation must relate only to the arbitration
clause; it said that the grounds for revocation must be asserted
separately as to the arbitration clause “and not just to the con-
tract as a whole.” Id. (emphasis added). Unlike the plaintiffs’
claims in Burden, Nagrampa’s claims of procedural and sub-
stantive unconscionability attack the arbitration provision
itself, separate and apart from the underlying contract.
Furthermore, the Eighth Circuit holdings in Houlihan v.
Offerman & Co., 31 F.3d 692, 695 (8th Cir. 1994) and Madol,
372 F.3d at 1000, are consistent with our majority opinion,
not with Judge O’Scannlain’s dissent. In Houlihan, the plain-
18914 NAGRAMPA v. MAILCOUPS, INC.
tiffs’ sole argument was that they had been fraudulently
induced to enter into the contract; none of their claims sepa-
rately and independently challenged the arbitration clause. 31
F.3d at 695. Similarly, in Madol, the claims of invalidity went
only to the contract as a whole, as the plaintiffs themselves
acknowledged. 372 F.3d at 1000.
[5] We do not construe either Buckeye or Prima Paint to
stand for the principle that if plaintiffs challenge an arbitration
provision as unenforceable due to unconscionability, they
may not include additional contractual or statutory claims in
their complaint.5 An argument that the arbitration agreement
itself is procedurally unconscionable may be informed, as
required by California state substantive law, by a determina-
tion of whether it is contained within a larger contract of
adhesion. If the district court decides that the arbitration pro-
vision is unenforceable, then the remaining claims that
address the contract as a whole were never properly arbitra-
ble; a claim such as fraud in the inducement would lie within
the jurisdiction of the district court. The district court also has
the discretion under federal arbitration law, Buckeye, 126
S. Ct. at 1209, as well as under California law, Cal. Civ. Code
§ 1670.5, to sever the unconscionable arbitration provision
and enforce the remainder of the contract. If, on the other
hand, the district court decides that the arbitration agreement
is valid and enforceable, then it should stay or dismiss the
action pending arbitration proceedings to allow the arbitrator
to decide the remaining claims, including those relating to the
5
Indeed, California pleading requirements prohibit plaintiffs from split-
ting causes of action into separate suits. See Crowley v. Katleman, 8 Cal.
4th 666, 682 (1994) (“[N]umerous cases hold that when there is only one
primary right an adverse judgment in the first suit is a bar even though the
second suit is based on a different theory or seeks a different remedy.”
(citations omitted)); see also 4 B.E. Witkin, California Procedure § 25 (4th
ed. 2006) (“The special situations presented by the rule against splitting
a cause of action sometimes make it necessary to say that the same set of
facts will, for one purpose, constitute only one cause of action, but for
other purposes may be regarded as creating multiple causes.”).
NAGRAMPA v. MAILCOUPS, INC. 18915
contract as a whole. Finally if, after examining the crux of the
complaint, the district court concludes that the challenge is
not to the arbitration provision itself but, rather, to the validity
of the entire contract, then the issue of the contract’s validity
should be considered by an arbitrator in the first instance.
Buckeye, 126 S. Ct. at 1208-09.
[6] Throughout the course of these proceedings—before the
AAA, the district court, and on appeal—Nagrampa has con-
tinuously challenged the validity of the arbitration provision
separate from any litigation over the entire contract. Unlike
the complaints in Jenkins and Buckeye, Nagrampa’s com-
plaint asserts two causes of action specifically challenging
only the arbitration provision. Nagrampa’s first, second, third,
and fourth causes of action are claims for relief under the con-
tract and, thus, are not before us. However, Nagrampa’s fifth
and sixth causes of action are directed specifically to the arbi-
tration provision, placing these challenges squarely within the
category of claims that must be decided by a federal court.
Buckeye, 126 S. Ct. at 1208-10. In addition, Nagrampa, in her
appellate brief, further emphasizes the substantively uncon-
scionable aspects of the arbitration provision, arguing that the
arbitration provision is one-sided and that the venue and cost
provisions are unfair. While Nagrampa argues that the arbitra-
tion provision is procedurally unconscionable because it is
contained in a contract of adhesion, nowhere in her complaint
does she seek rescission or invalidation of the entire contract
based on it being a contract of adhesion.6 Therefore, Nagram-
6
Judge O’Scannlain’s dissent disregards what the Supreme Court
plainly said in Buckeye and Prima Paint—that we must look to the com-
plaint to determine whether the validity of the arbitration provision is in
jeopardy. The obvious reason for the Court’s instruction is that relief is
granted, or not, as to claims, or under California law, causes of action. The
type of claim asserted in the complaint dictates the nature of the relief that
may be afforded to the plaintiff. Nagrampa does not assert any claim for
which the appropriate relief would be invalidation of the entire franchise
agreement. The inclusion of language in the remedies section seeking
“such other and further relief as the court may deem proper” is mere
18916 NAGRAMPA v. MAILCOUPS, INC.
pa’s contract of adhesion argument may be addressed insofar
as it bears on the question of procedural unconscionability of
the arbitration provision.
B.
Before we reach the question of whether the arbitration
agreement is unconscionable under California law, we detour
to address MailCoups’s argument that Nagrampa “voluntarily
participat[ed] in arbitration proceedings . . . without objecting
to the arbitration” and therefore waived her right to challenge
the arbitrability of the dispute.7
As a factual matter, MailCoups is wrong. Nagrampa’s
counsel’s first act was to object to proceeding with arbitration,
stating: “We are not ready or willing to proceed with arbitra-
tion.” He also asserted “serious concerns” about the validity
of the arbitration provision and his disagreement with the
notion that “we are in fact compelled by the alleged clause to
arbitrate.” He further specifically objected to the venue and
fee provisions, although he left open the possibility of negoti-
ating those issues.
Nagrampa’s “participation” in the arbitration proceedings
thereafter was minimal, limited to procedural issues and
undertaking certain actions to preserve her rights.8 Nagram-
boilerplate, meant to cover all bases as to the claims asserted in the com-
plaint. That boilerplate language does not constitute a claim not already
asserted in the complaint, as Judge O’Scannlain suggests. It hardly needs
to be said that an attorney’s arguments also do not constitute a claim if
they are not asserted in the complaint.
7
We note that the district court elected not to reach the question of
waiver and the three-judge panel, by addressing the unconscionability of
the arbitration agreement on the merits, implicitly rejected MailCoups’s
waiver argument.
8
It is ironic that Nagrampa’s very efforts to amicably resolve the ques-
tion of the substantive unconscionability of the arbitration provision and
to preserve her rights have been twisted by MailCoups into an alleged
waiver of those rights.
NAGRAMPA v. MAILCOUPS, INC. 18917
pa’s “participation” consisted of a letter to seek a ninety-day
continuance, a letter objecting to the validity of the arbitration
provision (specifically its venue and fee clauses), one confer-
ence call that resulted in a scheduling order, an unsuccessful
attempt to file a counter-demand, that was not accepted when
she could not afford to pay the fee demanded by the arbitrator,
and one set of discovery requests. Both the counter-demand
and discovery requests were filed to avoid losing her right to
do so in the event the venue, fee, and costs issues were amica-
bly resolved before the proceeding reached the merits of the
contract dispute.
The record clearly demonstrates that only two telephonic pre-
liminary9 hearing conferences were held, and that Nagrampa
was present during only one of the two.10 On June 20, 2002,
the arbitrator scheduled the first conference call for the first
week of July 2002. On June 23, 2002, Nagrampa notified the
arbitrator that her attorney would not be available. On July 2,
2002, the hearing took place in the absence of both Nagrampa
and her attorney. Nagrampa was present during a second pre-
liminary conference call held on July 30, 2002.
On August 15, 2002, AAA sent Nagrampa and MailCoups
the arbitrator’s scheduling order outlining deadlines that
would be “strictly enforced.” The deadline for discovery
requests was August 30, 2002, the day on which Nagrampa
filed her discovery request. The deadline for filing a counter-
claim was August 19, 2002; Nagrampa attempted to file her
counterclaim on August 15, 2002. In the scheduling order, the
arbitrator made clear that the parties were “awaiting a final
9
By definition a “preliminary” hearing conference takes place before a
hearing on the merits and deals with preliminary matters, such as schedul-
ing and deadlines. See Am. Arb. Ass’n, Commercial Arbitration Rules and
Mediation Procedures, R-20 (2003).
10
Judge Kozinski says there were three teleconferences, but there is no
evidence in the record, other than a statement in MailCoups’s Motion to
Compel, that a third call took place.
18918 NAGRAMPA v. MAILCOUPS, INC.
decision with regard to the venue” and that the Notice of
Hearing would be issued only once venue had been deter-
mined. Thus, Nagrampa acted reasonably by filing her discov-
ery request and counterclaim to preserve her rights on the
chance that AAA and MailCoups would relent in their efforts
to impose the one-sided and onerous fee, venue and associ-
ated costs clauses upon Nagrampa. Indeed, venue remained an
open issue through October 16, 2002. Although the arbitra-
tor’s August 15, 2002 order noted that a third preliminary
conference call was scheduled, there is no evidence that this
conference occurred. Thus, Nagrampa never participated in
any proceedings which even touched the merits of the con-
tractual claims that were to be the subject of arbitration.
Although Nagrampa withdrew from arbitration in October
2002, she never withdrew her original objections to the arbi-
tration agreement. She elected instead to include them in her
state court complaint filed November 12, 2002.
[7] The Supreme Court has defined waiver as the “inten-
tional relinquishment or abandonment of a known right.”
United States v. Olano, 507 U.S. 725, 733 (1993) (internal
quotations omitted). There is no evidence that Nagrampa
intentionally relinquished or abandoned her right to object to
arbitration. Judge Kozinski attempts to twist Nagrampa’s lim-
ited participation in preliminary matters—while she main-
tained her objection to proceeding by way of arbitration at all
—into conduct that would constitute a waiver. The evidence
simply does not support Judge Kozinski’s conclusion.
[8] Nagrampa’s limited involvement in preliminary matters
does not preclude her from challenging arbitrability. The
Supreme Court, in First Options of Chicago, Inc. v. Kaplan,
514 U.S. 938, 946 (1995), considered whether an objecting
party had consented to arbitration. The plaintiffs “denied that
their disagreement . . . was arbitrable and filed written objec-
tions to that effect with the arbitration panel.” Id. at 941. After
the arbitrator rejected the plaintiffs’ objections, they partici-
pated in the arbitration on the merits and lost. The Court
NAGRAMPA v. MAILCOUPS, INC. 18919
allowed the plaintiffs to challenge arbitrability because
“merely arguing the arbitrability issue to an arbitrator does
not indicate a clear willingness to arbitrate that issue.” Id. at
946. Even though the issue in First Options was consent, the
reasoning is applicable to waiver because the considerations
are essentially the same.11
Our decision in Textile Unlimited, Inc. v. A..BMH & Co.,
240 F.3d 781 (9th Cir. 2001), makes it even more clear that
Nagrampa did not waive her right to object to arbitration. In
Textile Unlimited, Textile failed to object to arbitration within
the time period provided by the AAA, but eventually objected
by sending a letter claiming that the arbitration provision was
not part of the contract. We held that there was no valid arbi-
tration agreement, and also made clear that “Textile only par-
ticipated in the arbitration to contest the arbitration itself [and]
[i]n so doing, Textile did not waive its objection to the arbitra-
tion.” Id. at 788.
[9] In cases where we have found waiver, the objecting
party has participated far more extensively than Nagrampa did
before resorting to the courts. In Nghiem v. NEC Electronic,
Inc., 25 F.3d 1437, 1440 (9th Cir. 1994), we held that the
plaintiff, a terminated employee, could not challenge the
authority of the arbitrator because the plaintiff had “initiated
the arbitration, attended the hearings with representation,
presented evidence, and submitted a closing brief of fifty
pages” before filing suit in state court. Similarly, in Fortune,
Alsweet & Eldridge, Inc. v. Daniel, 724 F.2d 1355 (9th Cir.
1983) (per curiam), on which MailCoups bases its waiver
argument, the plaintiff objected to arbitration after attending
two hearings on the merits and after his employer had pre-
sented all of its evidence. Id. at 1356-57. In Textile Unlimited,
11
In an attempt to distinguish First Options, Judge Kozinski presumes
that the parties “consented” to arbitration. But that is a shaky premise,
given that Nagrampa’s position throughout was that she did not voluntar-
ily consent to the arbitration provision.
18920 NAGRAMPA v. MAILCOUPS, INC.
we distinguished Fortune on the basis that “the [Fortune]
plaintiff participated in the arbitration proceedings on the
merits of the dispute and did not like the final results.” 240
F.3d at 788 (second emphasis added). Similarly, in Ficek v.
Southern Pacific Co., 338 F.2d 655, 656-57 (9th Cir. 1964),
we held that the claimant, an injured former employee,
waived his right to contest arbitrability because he voluntarily
participated in arbitration and waited until after an unfavor-
able decision had been handed down before challenging the
authority of the arbitrators.
[10] Unlike in the arbitration cases where we have found
waiver, Nagrampa forcefully objected to arbitrability at the
outset of the dispute, never withdrew that objection, and did
not proceed to arbitration on the merits of the contract claim.
Thus, she did not waive her right to challenge the arbitrability
of the dispute.
C.
[11] It is well-established that unconscionability is a gener-
ally applicable contract defense, which may render an arbitra-
tion provision unenforceable. See Doctor’s Assocs., 517 U.S.
at 686-87. California courts have extended the doctrine of
unconscionability to embrace franchise agreements. See
Indep. Ass’n of Mailbox Ctr. Owners, Inc. v. Superior Court,
133 Cal. App. 4th 396, 407 (2005) (“Franchise agreements are
not per se unenforceable, but their provisions can be exam-
ined to see if the characteristics of unconscionability are pres-
ent in part or in whole.”). Because we exercise our diversity
jurisdiction to entertain this contract dispute, we must apply
California law to determine whether the arbitration provision
in the MailCoups contract is unconscionable. See Ferguson v.
Countrywide Credit Industry, Inc., 298 F.3d 778, 782-83 (9th
Cir. 2002); see also Abramson v. Juniper Networks, Inc., 115
Cal. App. 4th 638, 651 (2004) (“Employing general contract
law principles, [California] courts will refuse to enforce arbi-
NAGRAMPA v. MAILCOUPS, INC. 18921
tration provisions that are unconscionable or contrary to pub-
lic policy.” (internal quotation marks omitted)).
[12] California courts analyze contract provisions for both
procedural and substantive unconscionability. See Armendariz
v. Found. Health Psychcare Servs., Inc., 24 Cal. 4th 83, 114
(2000). In California, the “prevailing view” is that procedural
unconscionability and substantive unconscionability need not
both be present to the same degree: “ ‘Essentially a sliding
scale is invoked which disregards the regularity of the proce-
dural process of the contract formation . . . in proportion to
the greater harshness or unreasonableness of the substantive
terms themselves.’ ” Id. (quoting 15 Williston on Contracts
§ 1763A, at 226-27 (3d ed. 1972)). “In other words, the more
substantively oppressive the contract term, the less evidence
of procedural unconscionability is required to come to the
conclusion that the term is unenforceable, and vice versa.” Id.;
see also Mercuro v. Superior Court, 96 Cal. App. 4th 167,
175 (2002) (“Given Countrywide’s highly oppressive conduct
in securing Mercuro’s consent to its arbitration agreement, he
need only make a minimal showing of the agreement’s sub-
stantive unconscionability.”).
Procedural unconscionability analysis focuses on “ ‘oppres-
sion’ or ‘surprise.’ ” Flores v. Transamerica HomeFirst, Inc.,
93 Cal. App. 4th 846, 853 (2001). “Oppression arises from an
inequality of bargaining power that results in no real negotia-
tion and an absence of meaningful choice,” while “[s]urprise
involves the extent to which the supposedly agreed-upon
terms are hidden in a prolix printed form drafted by the party
seeking to enforce them.” Id. (citing A & M Produce Co. v.
FMC Corp., 135 Cal. App. 3d 473, 486 (1982)).
An arbitration provision is substantively unconscionable if
it is “ ‘overly harsh’ ” or generates “ ‘one-sided’ results.”
Armendariz, 24 Cal. 4th at 114 (quoting A & M Produce, 135
Cal. App. 3d at 486-87). “[T]he paramount consideration in
assessing conscionability is mutuality.” Abramson, 115 Cal.
18922 NAGRAMPA v. MAILCOUPS, INC.
App. 4th at 657. California law requires an arbitration agree-
ment to have a “modicum of bilaterality,” see Armendariz, 24
Cal. 4th at 117, and arbitration provisions that are “unfairly
one-sided” are substantively unconscionable, see Little v.
Auto Stiegler, Inc., 29 Cal. 4th 1064, 1071 (2003).
[13] The district court sidestepped the requisite procedural
unconscionability analysis, erroneously finding it “nondispo-
sitive.” Instead, it proceeded directly to the substantive analy-
sis. The district court’s failure to analyze the evidence of
procedural unconscionability in proportion to the evidence of
substantive unconscionability was error. Because California
courts employ a sliding scale in analyzing whether the entire
arbitration provision is unconscionable, even if the evidence
of procedural unconscionability is slight, strong evidence of
substantive unconscionability will tip the scale and render the
arbitration provision unconscionable. Armendariz, 24 Cal. 4th
at 114.
1.
The threshold inquiry in California’s unconscionability
analysis is “whether the arbitration agreement is adhesive.”
Armendariz, 24 Cal. 4th at 113. A contract of adhesion is
defined as “a standardized contract, imposed upon the sub-
scribing party without an opportunity to negotiate the terms.”
Flores, 93 Cal. App. 4th at 853. The California Court of
Appeal has held that “[a] finding of a contract of adhesion is
essentially a finding of procedural unconscionability.” Id.; see
also Circuit City Stores, Inc. v. Adams, 279 F.3d 889, 893
(9th Cir. 2002) (“The DRA is procedurally unconscionable
because it is a contract of adhesion: a standard-form contract
. . . .” ); Aral v. Earthlink, Inc., 134 Cal. App. 4th 544, 557
(2005) (finding “quintessential procedural unconscionability”
where “the terms of the [arbitration] agreement were pre-
sented on a ‘take it or leave it’ basis . . . with no opportunity
to opt out”). However, the California courts have also held
that though “adhesion contracts often are procedurally oppres-
NAGRAMPA v. MAILCOUPS, INC. 18923
sive, this is not always the case.” Morris v. Redwood Empire
Bancorp, 128 Cal. App. 4th 1305, 1320 (2005); see also Dean
Witter Reynolds, Inc. v. Superior Court, 211 Cal. App. 3d
758, 769 (1989) (“While we recognize significant overlap
between the two concepts [adhesion and oppression], we are
not prepared to hold that they are identical.”). Under current
California law, it is unclear whether a contract of adhesion is
inherently oppressive, and therefore automatically procedur-
ally unconscionable, or whether oppression is a separate ele-
ment that must be present. However, both standards for
procedural unconscionability are satisfied by a finding that the
arbitration provision was presented on a take-it-or-leave-it
basis and that it was oppressive due to “an inequality of bar-
gaining power that result[ed] in no real negotiation and an
absence of meaningful choice.” Flores, 93 Cal. App. 4th at
853.
MailCoups concedes that the contract was non-negotiable
and that Nagrampa’s only choice was to sign it as written or
to opt out. However, MailCoups argues that there was no
oppression because Nagrampa had meaningful choice and
bargaining power, specifically the freedom to continue to
work for ValPak, her then employer, or to enter into a con-
tract with another direct mail company. In addition, Mail-
Coups posits that there was no surprise because Nagrampa is
a sophisticated party who could have read and understood the
terms and thus had at least constructive notice. In addition,
Nagrampa signed a declaration under penalty of perjury that
she had read the entire Franchise Agreement and accepted and
agreed to all of its provisions, including the arbitration provi-
sion.
[14] Under California law, the critical factor in procedural
unconscionability analysis is the manner in which the contract
or the disputed clause was presented and negotiated:
Procedural unconscionability focuses on the man-
ner in which the disputed clause is presented to the
18924 NAGRAMPA v. MAILCOUPS, INC.
party in the weaker bargaining position. When the
weaker party is presented the clause and told to “take
it or leave it” without the opportunity for meaningful
negotiation, oppression, and therefore procedural
unconscionability, are present.
Szetela v. Discover Bank, 97 Cal. App. 4th 1094, 1100
(2002); see also Martinez v. Master Prot. Corp., 118 Cal.
App. 4th 107, 114 (2004) (“An arbitration agreement that is
an essential part of a ‘take it or leave it’ employment condi-
tion, without more, is procedurally unconscionable.”); Mer-
curo, 96 Cal. App. 4th at 174 (“Procedural unconscionability
turns on adhesiveness—a set of circumstances in which the
weaker or ‘adhering’ party is presented a contract drafted by
the stronger party on a take it or leave it basis.”). California
courts have long recognized that franchise agreements have
some characteristics of contracts of adhesion because of the
“vastly superior bargaining strength” of the franchisor. See
Keating v. Superior Court, 31 Cal. 3d 584, 593 (1982), over-
ruled on other grounds by Southland Corp. v. Keating, 465
U.S. 1 (1984). As the California Court of Appeal stated in
Postal Instant Press, Inc. v. Sealy, 43 Cal. App. 4th 1704,
1715-16 (1996):
Although franchise agreements are commercial
contracts they exhibit many of the attributes of con-
sumer contracts. The relationship between franchisor
and franchisee is characterized by a prevailing,
although not universal, inequality of economic
resources between the contracting parties. Fran-
chisees typically, but not always, are small business-
men or businesswomen or people like the Sealys
seeking to make the transition from being wage earn-
ers and for whom the franchise is their very first
business. Franchisors typically, but not always, are
large corporations. The agreements themselves tend
to reflect this gross bargaining disparity. Usually
NAGRAMPA v. MAILCOUPS, INC. 18925
they are form contracts the franchisor prepared and
offered to franchisees on a take-[it-] or leave-it basis.
. . . Franchising involves the unequal bargaining
power of franchisors and franchisees and therefore
carries within itself the seeds of abuse. Before the
relationship is established, abuse is threatened by the
franchisor’s use of contracts of adhesion presented
on a take-it-or-leave-it basis.
Internal quotation marks and citations omitted.
[15] Here, Nagrampa was in a substantially weaker bar-
gaining position than MailCoups. As reported in the franchise
offering circular attached to Nagrampa’s complaint, Advo,
MailCoups’s parent company, is a large corporation which in
1997 had $208,553,000 in assets and $1,016,492,000 in reve-
nues. Nagrampa, on the other hand, had a yearly salary of
approximately $100,000 and had never owned her own busi-
ness. As the district court noted, MailCoups conceded that it
presented the contract on a take-it-or-leave-it basis. Nagram-
pa’s complaint specifically alleges that she attempted to nego-
tiate the “line-charges” cost calculation to be “lump-sum,” but
was rebuffed by MailCoups, who responded only that the base
rate “line-charges” would be reduced by “credits.”
The California Court of Appeal has rejected the notion that
the availability in the marketplace of substitute employment,
goods, or services alone can defeat a claim of procedural
unconscionability. See, e.g., Martinez, 118 Cal. App. 4th at
114 (finding employment contract adhesive where arbitration
agreement was presented as a specific “condition of employ-
ment”); Villa Milano Homeowners Ass’n v. IL Davorge, 84
Cal. App. 4th 819, 827 (2000) (“[I]n a given case, a contract
might be adhesive even if the weaker party could reject the
terms and go elsewhere.”); Stirlen v. Supercuts, Inc., 51 Cal.
App. 4th 1519, 1533-34 (1997) (noting that even though
sophisticated corporate executive “was not a person desper-
18926 NAGRAMPA v. MAILCOUPS, INC.
ately seeking employment,” the employment contract was
procedurally unconscionable because it was presented on a
“take it or leave it basis”). But see Dean Witter, 211 Cal. App.
3d at 771 (noting that “even though a contract may be adhe-
sive, the existence of ‘meaningful’ alternatives available to
such contracting party in the form of other sources of supply
tends to defeat any claim of unconscionability”). Dean Witter,
on which Judge Kozinski’s dissent relies, is factually distin-
guishable. There, the California Court of Appeal held that the
combination of the plaintiff’s sophistication and “a meaning-
ful choice of available alternative sources of supply” defeated
his claim of procedural unconscionability in a dispute over the
assessment of fees on an individual retirement account. Id. at
772. The Dean Witter plaintiff was an investor-attorney who
specialized in class action litigation involving financial insti-
tutions, and who had a great degree of experience with finan-
cial service contracts. Id. at 762. Whereas Nagrampa, who
was a first-time franchise owner and, despite having been a
sales manager in the direct marketing industry, apparently had
no specialized education or training in the field. Therefore,
the potential availability of other franchise opportunities alone
does not defeat Nagrampa’s claim of procedural unconsciona-
bility.
Moreover, the sophistication of a party, alone, cannot
defeat a procedural unconscionability claim. See Graham v.
Scissor-Tail, Inc., 28 Cal. 3d 807, 818-19 (1981) (finding pro-
cedural unconscionability where successful and prominent
music producer Bill Graham was required by the “realities of
his business as a concert promoter to sign [union] form con-
tracts”); A & M Produce Co., 135 Cal. App. 3d at 489-90
(commenting that the California Supreme Court is among the
many courts that “have begun to recognize that experienced
but legally unsophisticated businessmen may be unfairly sur-
prised by unconscionable contract terms”); Nyulassy v. Lock-
heed Martin Corp., 120 Cal. App. 4th 1267, 1283-84 (2004)
(finding procedural unconscionability even where employee
was represented by a lawyer in settlement negotiations).
NAGRAMPA v. MAILCOUPS, INC. 18927
Nagrampa argues that the element of surprise was present
because the contract was adhesive and she was not informed
of the existence of the arbitration provision, which appeared
on page twenty-five of a thirty-page agreement. See Wheeler
v. St. Joseph Hosp., 63 Cal. App. 3d 345, 359-60 (1976) (cit-
ing Smith v. Westland Life Ins. Co., 15 Cal. 3d 111, 122-23
(1975) (“Where the contract is one of adhesion, conspicuous-
ness and clarity of language alone may not be enough to sat-
isfy the requirement of awareness. Where a contractual
provision would defeat the ‘strong’ expectation of the weaker
party, it may also be necessary to call his attention to the lan-
guage of the provision.”). However, under California law, sur-
prise need not be demonstrated if the court determines that the
arbitration provision of an adhesive contract is oppressive.
See Armendariz, 24 Cal. 4th at 113 (“[A] contract or provi-
sion, even if consistent with the reasonable expectations of the
parties, will be denied enforcement if, considered in its con-
text, it is unduly oppressive or unconscionable.” (internal quo-
tation marks omitted)); Nyulassy, 120 Cal. App. 4th at 1281
(“ ‘Where an adhesive contract is oppressive, surprise need
not be shown.’ ” (quoting Abramson, 115 Cal. App. 4th at
656)); Mercuro, 96 Cal. App. 4th at 174 (“[P]rocedural
unconscionability focuses on the oppressiveness of the
stronger party’s conduct.”). The California Court of Appeal
recently extended these principles to a franchise agreement,
reversing a trial court’s ruling that the arbitration provisions
of the franchise agreements at issue were not unconscionable.
Indep. Ass’n of Mailbox Ctr. Owners, 133 Cal. App. 4th at
410. The Court of Appeal there held that the trial court’s find-
ings regarding sophistication of the franchisees, alternative
business opportunities, and ability of the franchisees to read
and understand the terms of the agreement “beg the question
of whether the nature of these franchise agreements and the
business relationship between the parties fell within accepted
criteria for adhesion contracts.” Id.
Judge O’Scannlain’s dissent mistakenly asserts that Brook-
wood v. Bank of America, 45 Cal. App. 4th 1667, 1672
18928 NAGRAMPA v. MAILCOUPS, INC.
(1996), stands for the proposition that MailCoups had no duty
to apprise Nagrampa of the existence of the arbitration clause
or the costs of arbitration. In Brookwood, the plaintiff did not
argue that the arbitration clause was invalid because it was
procedurally or substantively unconscionable, but rather that
the arbitration clause should not be enforced because of uni-
lateral mistake. Id. at 1673. The analysis of procedural uncon-
scionability under California law focuses on the manner in
which the contract or the disputed clause was presented and
negotiated and the disparity in bargaining power, not on
whether the party claiming procedural unconscionability
should have known of the arbitral provision.
[16] Therefore, regardless of whether MailCoups had a
duty to inform Nagrampa of the clause, it remains true that
MailCoups had overwhelming bargaining power, drafted the
contract, and presented it to Nagrampa on a take-it-or-leave-it
basis. While we acknowledge that the evidence of procedural
unconscionability appears minimal, it is sufficient to require
us, under California law, to reach the second prong of the
unconscionability analysis. We therefore next examine the
extent of substantive unconscionability to determine, whether
based on the California courts’ sliding scale approach, the
arbitration provision is unconscionable.
2.
Nagrampa argues that the arbitration provision is substan-
tively unconscionable because it is “one-sided,” contains
unconscionable fee-splitting and arbitral forum provisions,
and does not counteract the “repeat player effect,” thus failing
to ensure an impartial arbitrator.12 We reject Nagrampa’s con-
12
Contrary to Judge O’Scannlain’s dissent, Nagrampa did not waive her
argument that the arbitration provision was unconscionably “one-sided.”
She alleged the one-sided nature of the arbitration provision in her com-
plaint and argued this point in her opening brief, stating in support of her
contention that California courts “have refused to uphold venue provisions
NAGRAMPA v. MAILCOUPS, INC. 18929
tentions that the fee-splitting provision and the “repeat player
effect” render the arbitration provision substantively uncon-
scionable. First, the fee-splitting provision is not per se sub-
stantively unconscionable under California law. See Cal. Civ.
Proc. Code § 1284.2 (mandating default rule of arbitration
that administrative costs be split equally and legal costs be
borne individually). However, as discussed infra, to the extent
the fee-splitting provision may impede Nagrampa from vindi-
cating statutory rights, it would be unenforceable and illegal
under California law as contrary to public policy.
Second, merely raising the “repeat player effect” claim,
without presenting more particularized evidence demonstrat-
ing impartiality, is insufficient under California law to support
an unconscionability finding. See McManus v. CIBC World
Mkts. Corp., 109 Cal. App. 4th 76, 94-95 (2003) (holding that
an arbitration provision was not unconscionable because the
plaintiff produced no specific evidence of “repeat player
effect” or that the arbitrator would not be impartial, where
arbitration rules allowed each party one peremptory challenge
and an unlimited number of challenges for cause); Mercuro,
96 Cal. App. 4th at 178 (“While our Supreme Court has taken
notice of the ‘repeat player effect,’ the court has never
declared this factor renders the arbitration agreement uncon-
scionable per se.”); cf. Sheet Metal Workers Int’l Ass’n v. Kin-
ney Air Conditioning Co., 756 F.2d 742, 746 (9th Cir. 1985)
(holding that to challenge an arbitral award in a collective bar-
gaining dispute, “[t]he party alleging evident partiality must
that work to deny the weaker party any real access to a forum in which
to air — or defend — her or his claims, while allowing the stronger party
full access to the same forum.” Moreover, MailCoups’s brief argued in
response that the arbitration provision does have mutuality of obligation.
We may consider the claim that the fee-splitting provision is unconsciona-
ble because both parties have briefed the issue and argued the question
before us, the record is adequately developed, and the cost of arbitration
is undisputed. See In re Am. West Airlines, Inc., 217 F.3d 1161, 1165 (9th
Cir. 2000).
18930 NAGRAMPA v. MAILCOUPS, INC.
establish specific facts which indicate improper motives on
the part of the [arbitrators]”). Nagrampa has not specifically
pointed to evidence of bias on the part of the AAA or its arbi-
trators.
Two other provisions set forth in the arbitration clause,
however, exhibit a lack of mutuality supporting a finding of
substantive unconscionability. First, the contract gives Mail-
Coups access to a judicial forum to obtain provisional reme-
dies to protect its intellectual property, while it provides
Nagrampa with only the arbitral forum to resolve her claims.
Second, the arbitral forum is designated as Boston, Massachu-
setts, a location considerably more advantageous to Mail-
Coups.
[17] Where the party with stronger bargaining power has
restricted the weaker party to the arbitral forum, but reserved
for itself the ability to seek redress in either an arbitral or judi-
cial forum, California courts have found a lack of mutuality
supporting substantive unconscionability. As the California
Supreme Court held in Armendariz, substantive unconsciona-
bility may manifest itself in the form of “an agreement requir-
ing arbitration only for the claims of the weaker party but a
choice of forums for the claims of the stronger party.” 24 Cal.
4th at 119; see also Martinez, 118 Cal. App. 4th at 115 (hold-
ing that an arbitration agreement requiring employees to arbi-
trate all claims, but reserving the right of employer to obtain
injunctive or other equitable relief in a judicial forum for cer-
tain causes of action, lacks mutuality).
In O’Hare v. Municipal Resource Consultants, 107 Cal.
App. 4th 267, 277 (2003), the California Court of Appeal was
called upon to analyze the unconscionability of an arbitration
clause in an employment contract that required the employee
to arbitrate all claims against the employer, but expressly per-
mitted the employer to file a lawsuit seeking injunctive and
equitable relief against the employee and remained silent as
to the employer’s obligation to arbitrate claims. The Court of
NAGRAMPA v. MAILCOUPS, INC. 18931
Appeal there recognized that “unconscionability turns not
only on a one-sided result, but also on an absence of justifica-
tion for it.” Id. at 273 (internal quotation marks omitted).
Therefore, the Court of Appeal rejected the employer’s con-
tention that it had a legitimate business justification in the
“highly confidential and proprietary nature” of its auditing
and consulting work for allowing it, but not the employee, to
seek injunctive relief in court. Id. at 277. Citing the California
Supreme Court’s Armendariz opinion, the Court of Appeal
noted that to constitute a reasonable business justification, the
justification must be “ ‘something other than the employer’s
desire to maximize its advantage based on the perceived supe-
riority of the judicial forum.’ ” Id. at 277 (quoting Armen-
dariz, 24 Cal. 4th at 120). Reasoning that the arbitration rules
themselves permit such relief, the Court of Appeal held that
there was no justification for the one-sided provision. Id. at
278. Because the one-sided clause permeated the entire arbi-
tration provision, the Court of Appeal refused to enforce it on
grounds of unconscionability. Id. at 277-78; see also Flores,
93 Cal. App. 4th at 854 (finding lack of mutuality of remedies
where a debtor was forced to arbitrate any controversy arising
out of a loan, but the lender could “proceed by judicial or
non-judicial foreclosure, by self-help remedies such as setoff,
and by injunctive relief to obtain appointment of a receiver”);
Stirlen, 51 Cal. App. 4th at 1539-42 (finding an arbitration
provision unconscionable where employment disputes were
required to be submitted to arbitration, but breach of non-
compete or confidentiality clause claims could be brought in
court).
[18] The MailCoups arbitration provision lacks mutuality.
Like the contract in O’Hare, it requires that Nagrampa submit
to arbitration any controversy related to the franchise agree-
ment, “or any breach thereof, including without limitation,
any claim that this Agreement or any portion thereof is
invalid, illegal or otherwise voidable or void,” while reserving
MailCoups’s right to obtain any provisional remedy “includ-
ing, without limitation, injunctive relief from any court of
18932 NAGRAMPA v. MAILCOUPS, INC.
competent jurisdiction, as may be necessary in MailCoups’s
sole subjective judgment to protect its Service Marks and pro-
prietary information.” This language, read plainly, means that
MailCoups could go to court to obtain “any provisional reme-
dy,” even if it related to a claim for breach of contract, as long
as the claim also implicated MailCoups’s Service Marks or
proprietary information. Moreover, it is far more likely that
Nagrampa—and not MailCoups—would assert claims related
to the invalidity or unenforceability of the non-negotiable
contract written by MailCoups. Thus, this provision is clearly
one-sided, effectively giving MailCoups the right to choose a
judicial forum and eliminating such a forum for Nagrampa.
California courts consistently have found such arbitration pro-
visions unconscionable. See Martinez, 118 Cal. App. 4th at
115; Mercuro, 96 Cal. App. 4th at 176; Stirlen, 51 Cal. App.
4th at 1541-42.
[19] As noted, the arbitration provision itself states the pur-
ported business justification for excluding MailCoups’s right
to obtain provisional relief on any cause of action it might
assert: “to protect its Service Marks and proprietary informa-
tion.” California courts routinely have rejected this justifica-
tion as a legitimate basis for allowing only one party to an
agreement access to the courts for provisional relief. O’Hare,
107 Cal. App. 4th at 277; Mercuro, 96 Cal. App. 4th at 177;
Stirlen, 51 Cal. App. 4th at 1536-37. In California, “[a] party
to an arbitration agreement may file in . . . court . . . an appli-
cation for a provisional remedy in connection with an arbitra-
ble controversy, but only upon the ground that the award to
which the applicant may be entitled may be rendered ineffec-
tual without provisional relief.” Cal. Civ. Proc. Code
§ 1281.8(b). This provision ensures mutuality between the
parties so that both have access to the courts to obtain prelimi-
nary injunctions, temporary restraining orders, and other
forms of provisional relief. We conclude, therefore, that the
clause providing for MailCoups’s right to obtain provisional
relief is one-sided and thus substantively unconscionable.
NAGRAMPA v. MAILCOUPS, INC. 18933
[20] Nagrampa also argues that the forum selection clause
in the arbitration provision requiring her to arbitrate in Bos-
ton, Massachusetts, is unconscionable. “[F]orum selection
clauses are valid and should be given effect unless enforce-
ment of the clause would be unreasonable.” Intershop
Commc’ns AG v. Superior Court, 104 Cal. App. 4th 191, 196
(2002) (citing Smith, Valentino & Smith, Inc. v. Superior
Court, 17 Cal. 3d 491, 495-96 (1976)). However, if the “place
and manner” restrictions of a forum selection provision are
“unduly oppressive,” see Bolter v. Superior Court, 87 Cal.
App. 4th 900, 909-10 (2001), or have the effect of shielding
the stronger party from liability, see Comb v. PayPal, Inc.,
218 F. Supp. 2d 1165, 1177 (N.D. Cal. 2002), then the forum
selection provision is unconscionable. To that end, a “party
may attempt to make a showing that would warrant setting
aside the forum-selection clause—that the agreement was
affected by fraud, undue influence, or overweening bargain-
ing power; that enforcement would be unreasonable and
unjust; or that proceedings in the contractual forum will be so
gravely difficult and inconvenient that the resisting party will
for all practical purposes be deprived of his day in court.”
Mitsubishi Motors Corp., 473 U.S. at 632 (citations and alter-
ations omitted); see also Hayes Children Leasing Co. v. NCR
Corp., 37 Cal. App. 4th 775, 787 n.5 (1995). Similarly, “Cali-
fornia favors contractual forum selection clauses so long as
they are entered into freely and voluntarily, and their enforce-
ment would not be unreasonable.” Am. Online, Inc. v. Supe-
rior Court, 90 Cal. App. 4th 1, 11 (2001). The Court of
Appeal discussed the rationale for this favorable treatment in
Wimsatt v. Beverly Hills Weight Loss Clinics Int’l, Inc., 32
Cal. App. 4th 1511, 1523 (1995), a case involving weight-loss
center franchises. The Court of Appeal there stated that
“[f]orum selection clauses are important in facilitating
national and international commerce, and as a general rule
should be welcomed.” Id. However, this favorable treatment
of forum selection clauses is conditioned on their free and
voluntary procurement, “with the place chosen having some
logical nexus to one of the parties or the dispute, and so long
18934 NAGRAMPA v. MAILCOUPS, INC.
as California consumers will not find their substantial legal
rights significantly impaired by their enforcement.” Am.
Online, 90 Cal. App. 4th at 12. Therefore, to be enforceable,
the selected jurisdiction must be “ ‘suitable,’ ‘available,’ and
able to ‘accomplish substantial justice.’ ” Id. (citing Bremen
v. Zapata Off-Shore Co., 407 U.S. 1, 17 (1972)).
To assess the reasonableness of the “place and manner”
provisions in the arbitration clause, we must take into account
the “respective circumstances of the parties.” Bolter, 87 Cal.
App. 4th at 909. In Bolter, the Court of Appeal held that place
and manner restrictions were unconscionable where small
“Mom and Pop” franchisees located in California were
required to travel to Utah to arbitrate their claims against an
international carpet-cleaning franchisor. Id. The Court of
Appeal found a forum selection provision unreasonable and
“unduly oppressive” because the remote forum would work
severe hardship upon the franchisees and would unfairly ben-
efit the franchisor by effectively precluding the franchisees
from asserting any claims against it. Id.; see also Comb, 218
F. Supp. 2d at 1177 (“Limiting venue to PayPal’s backyard
appears to be yet one more means by which the arbitration
clause serves to shield PayPal from liability instead of provid-
ing a neutral forum in which to arbitrate disputes.”); Armen-
dariz, 24 Cal. 4th at 118 (holding that structuring an
arbitration provision to effectively preclude the other party
from pursuing its claims would be unconscionable, because
“[a]rbitration was not intended for this purpose”). Because the
unconscionable time and place requirements in Bolter had not
tainted the entire agreement, the Court of Appeal chose to
sever them. 87 Cal. App. 4th at 911.
We respectfully disagree with the view expressed in Judge
O’Scannlain’s dissent that the holding in Bolter rested on the
unfairness and lack of notice engendered by the franchisor’s
insertion of a clause setting the arbitral forum to be out-of-
state into a subsequent franchise agreement. The Bolter court
repeatedly emphasized that its holding rested on the financial
NAGRAMPA v. MAILCOUPS, INC. 18935
hardship the forum selection provision would impose on the
franchisees, effectively precluding them from litigating their
claims, and that the forum selection provision had “no justifi-
cation other than as a means of maximizing an advantage over
the petitioners.” 87 Cal. App. 4th. at 910. Moreover, Judge
O’Scannlain’s dissent mistakenly relies on Lu v. Dryclean-
U.S.A. of California, Inc., 11 Cal. App. 4th 1490, 1493
(1992), to support its position that California courts uphold
forum selection provisions where the extenuating circum-
stances of Bolter are not present. The plaintiffs in Lu did not
argue that the arbitration provision was unconscionable, but
merely stated that the forum selection provision was unrea-
sonable. Id. Unlike Nagrampa and the plaintiffs in Bolter, the
Lu plaintiffs did not argue or present evidence that the out-of-
state forum would impose a financial hardship or preclude
them from litigating their claims, but rather argued that the
clause was unenforceable because they had insufficient con-
nection to the selected forum and because two of the defen-
dants had not signed the agreement containing the forum
selection clause. Id. The court construed the plaintiffs’ first
argument as being, in essence, that the forum was inconve-
nient and then proceeded simply to state that “[m]ere inconve-
nience or additional expense is not the test of
unreasonableness.” Id. (internal quotation marks omitted).
Here, the district court erred by misapplying California law
on the substantive unconscionability of the forum selection
clause. Although it had not actually analyzed procedural
unconscionability, it found that the absence of restrictions
which could be considered “unfair, harsh, or overly one-
sided” distinguished Nagrampa’s case from Bolter. It then
concluded that because Nagrampa had signed the franchise
agreement containing the arbitration provision, it was “valid,
irrevocable and enforceable.”
Moreover, the district court did not consider Nagrampa’s
allegations, as stated in the fourth, fifth, and sixth causes of
action in her complaint, that MailCoups’s imposition of the
18936 NAGRAMPA v. MAILCOUPS, INC.
arbitration provision violated three California statutes — (1)
the California Franchise Investment Law (“FIL”), Cal. Corp.
Code §§ 31000-31516; (2) the California Unfair Competition
Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200-17208; and
(3) the California Consumer Legal Remedies Act (“CLRA”),
Cal. Civ. Code §§ 1750-1785 — which establish nonwaivable
statutory rights. See Indep. Ass’n of Mailbox Ctr. Owners, 133
Cal. App. 4th at 416 (holding that claims under the FIL and
the UCL “affect the public interest and appear to fall . . .
within the rules of Armendariz”); Gutierrez v. Autowest, Inc.,
114 Cal. App. 4th 77, 99-100 (2003) (holding that an arbitra-
tion provision may not impede statutory rights under the
CLRA). Those allegations bear on both the questions of (1)
who has the burden of proving the unfairness or unreason-
ableness of the forum selection clause; and (2) the enforce-
ability of the clause itself. Wimsatt, 32 Cal. App. 4th at 1522
(shifting burden of proof to party seeking to enforce a forum
selection clause “to show that litigation in the contract forum
will not diminish in any way the substantive rights afforded
California franchisees under California law”); Am. Online, 90
Cal. App. 4th at 10-11 (finding “identical policy consider-
ations which command shifting the burden of proof here to
[the franchisor], the party seeking enforcement of the forum
selection clause,” because the statute at issue (CLRA) and the
statute in Wimsatt (FIL) contained the same provision prohib-
iting waivers by consumers of any statutorily granted reme-
dies). Thus, under California law, the burden of proving not
only the reasonableness and fairness of the arbitration provi-
sion, but also that the CLRA’s anti-waiver provision is not
violated, rests with MailCoups. Wimsatt, 32 Cal. App. 4th at
1522. MailCoups has not met this burden.
[21] The parties’ bargaining positions were unequal, result-
ing in an oppressive contract of adhesion containing a forum
selection clause that places venue in Boston, Massachusetts,
only a few miles away from MailCoups headquarters in Avon,
but three thousand miles away from Nagrampa’s home. As in
Bolter, the MailCoups contract would require a one-woman
NAGRAMPA v. MAILCOUPS, INC. 18937
franchisee who operates from her home to fly across the coun-
try to arbitrate a contract signed and performed in California.
Nagrampa would incur additional traveling and living
expenses and “increased costs associated in having counsel
familiar with [Massachusetts] law.” Bolter, 87 Cal. App. 4th
at 909. Nagrampa lost money operating her MailCoups fran-
chise and faces financial hardship. She may not be able to
maintain her claim to recover any of her losses if forced to do
so in Massachusetts. The forum selection provision has “no
justification other than as a means of maximizing an advan-
tage over [franchisees].” Id. at 910. As in Bolter, “[a]rguably,
[MailCoups] understood those terms would effectively pre-
clude its franchisees from ever raising claims against it,
knowing the increased costs and burden on their small busi-
nesses would be prohibitive.” Id. Indeed, that was the effect
of requiring arbitration to proceed in Boston, a location so
prohibitively costly to Nagrampa that she was precluded from
participating in the proceeding.13
Moreover, Nagrampa did not have reason to expect that the
arbitration would take place in Boston; nor, apparently, did
MailCoups. We have found that, where the franchise-offering
circular contained language suggesting that the out-of-state
forum selection and choice of law clauses may not be enforce-
able under California law, there was “no reasonable expecta-
13
Judge O’Scannlain’s dissent asserts that Nagrampa had more than
enough money to pay the $6,500 in arbitration fees and to litigate in an
out-of-state forum, on the false assumption that she had an average of
$16,000 in her bank account during the relevant time period. However, the
dissent misconstrues the record, which contains three bank statements for
the three months preceding September 2002 for the account held jointly
by Nagrampa and her husband. The average monthly deposits during this
period were $41,151.17 and the average monthly withdrawals and debits
were $45,031.30. The ending balance on August 14, 2002 was $9,991.90.
Assuming that, in the following month, Nagrampa and her husband’s
deposits and withdrawals were close to the average, then payment of the
initial $6,500 filing fee alone, without consideration of the additional
expenses required to litigate in an out-of-state forum, would result in a
bank account overdrawn by $388.23.
18938 NAGRAMPA v. MAILCOUPS, INC.
tion that [the franchisee] had agreed to a forum other than
California.” Laxmi Invs., LLC v. Golf USA, 193 F.3d 1095,
1097 (9th Cir. 1999) (internal quotation marks omitted). We
held in Laxmi that, regardless of whether the California statute
limiting venue to California for franchise disputes, Cal. Bus.
& Prof. Code § 20040.5, was preempted by the FAA, the
franchisor could not include such misleading language in the
offering circular and then later take the position that Califor-
nia law will not control. “A contrary approach would unnec-
essarily undercut the California public policy which requires
honest disclosures to franchisees.” Laxmi, 193 F.3d at 1098;
see also Bradley v. Harris Research Inc., 275 F.3d 884, 891
(9th Cir. 2001) (holding that section 20040.5 is preempted by
the FAA, but distinguishing Laxmi because, in Laxmi, “there
was no evidence that the franchisor ‘ever indicated that it
would insist upon an out-of-state forum despite the contraven-
ing California law’ referred to in the [circular], and the
franchisee had no reason to expect that it had agreed to an
out-of-state forum,” indicating that “there was no ‘meeting of
the minds on the forum selection provision’ ” (quoting Laxmi,
193 F.3d at 1097)).
Nagrampa and MailCoups entered into the franchise agree-
ment in 1998, when section 20040.5 was still considered good
law and out-of-state forum selection provisions in franchise
agreements were not enforceable under California law. To
this end, the MailCoups offering circular,14 like the offering
circular in Laxmi, 193 F.3d at 1096, contained language sug-
gesting that the forum selection, choice of law, and termina-
tion or nonrenewal clauses may be unenforceable under
California law. Under the FIL, the franchisor must disclose
certain information about the subject franchise and franchisor
through a Uniform Franchise Offering Circular and a regis-
tered prospectus. Cal. Corp. Code § 31119(a). The FIL pro-
14
We may properly consider the franchise offering circular, which was
attached as an exhibit to Nagrampa’s complaint and was admitted before
the district court.
NAGRAMPA v. MAILCOUPS, INC. 18939
hibits franchisors from making material misrepresentations or
omissions in the offer and sale of any franchise. Id. at
§§ 31200-31203. Under California law, when fraud or illegal-
ity is alleged, the parol evidence rule does not apply, and evi-
dence of pre-contract representations which vary or contradict
the terms of an integrated contract are admissible. See Cal.
Civ. Proc. Code § 1856(g). The theory supporting the excep-
tion is that “[s]uch evidence does not contradict the terms of
an effective integration since it shows that the purported
instrument has no legal effect.” See Cont’l Airlines, Inc. v.
McDonnell Douglas Corp., 216 Cal. App. 3d 388, 424-25
(1989) (quoting 2 Witkin, California Evidence § 997 at 944
(3d ed. 1986)). Because Nagrampa argues that the forum
selection provision did not fall within her reasonable expecta-
tions, we examine the representations in the franchise offering
circular to discern her reasonable expectations. The salient
point is that, just as in Laxmi, “there is no evidence that [Mail-
Coups] ever indicated that it would insist upon an out-of-state
forum despite the contravening California law” in place at the
time the contract was executed. Laxmi, 193 F.3d at 1097.
The clauses in Section H of the MailCoups offering circu-
lar, which Nagrampa filed as an exhibit to her complaint, are
virtually identical to those at issue in Laxmi:
(4) Item 17 of this disclosure document is modi-
fied to include the following paragraph under the
Summary column of part (u) of both charts:
The franchise agreement requires binding
arbitration. The arbitration will occur at the
offices of the American Arbitration Associ-
ation nearest our home office. This provi-
sion may not be enforceable under
California law.
(5) Item 17 of this disclosure document is modi-
fied to include the following paragraphs under the
Summary column of parts (v) and (w) of both charts:
18940 NAGRAMPA v. MAILCOUPS, INC.
California Business Professional Code
Sections 20000 through 20043 provide
rights to you concerning termination or
nonrenewal of a franchise. If the franchise
agreement contains a provision that is
inconsistent with the law, the law will con-
trol.
The franchise agreement requires appli-
cation of the laws of the State of Massachu-
setts. This provision may not be
enforceable under California law.
[22] Like the Laxmi court, we conclude that the misleading
language of the MailCoups offering circular provided inade-
quate notice to Nagrampa that the forum selection clause was
valid. Nagrampa thus had no reason to expect that arbitration
would take place in Boston. To the contrary, she had every
reason to expect that the arbitration, if any, would take place
in California, in accordance with California law, as expressly
raised in the circular. That MailCoups initially filed for Los
Angeles, California, as the arbitration venue only reinforces
the conclusion that both parties reasonably expected arbitra-
tion to take place in California.
[23] Moreover, where a party has not received actual notice
of a forum selection clause, the California Court of Appeal
has refused to enforce it. See Intershop Commc’ns AG, 104
Cal. App. 4th at 201-02 (“A forum selection clause within an
adhesion contract will be enforced ‘as long as the clause pro-
vided adequate notice to the [party] that he was agreeing to
the jurisdiction cited in the contract.’ ” (alteration in original)
(quoting Hunt v. Superior Court, 81 Cal. App. 4th 901, 908
(2000))); Carnival Cruise Lines, Inc. v. Superior Court, 234
Cal. App. 3d 1019, 1026-27 (1991) (citing Cal. Civ. Code
§§ 1550, 1565, 1580) (“[T]he forum selection clause is unen-
forceable . . . if the court determines that [the] plaintiff did not
have sufficient notice of [it]. . . . Absent such notice, the req-
NAGRAMPA v. MAILCOUPS, INC. 18941
uisite mutual consent to that contractual term is lacking and
no valid contract with respect to such clause thus exists.”).
The misleading language of the offering circular, as well as
MailCoups’s institution of proceedings in California, lead us
to conclude that Nagrampa had no reasonable expectation that
arbitration would take place in Boston.
Second, California courts refuse to enforce arbitration pro-
visions on public policy grounds if they impede the enforce-
ment of unwaivable statutory rights. See Boghos v. Certain
Underwriters at Lloyd’s of London, 36 Cal. 4th 495, 506-07
(2005) (stating that employees subject to mandatory arbitra-
tion agreements must be ensured certain minimum standards
of fairness to “vindicate their public rights in an arbitral
forum” (internal quotation marks omitted)). Under California
law, a right or cause of action created for a public purpose
cannot, by private agreement, be waived, contravened, bur-
dened, or subjected to procedural shortcomings that would
preclude its vindication. See Armendariz, 24 Cal. 4th at 100
(explaining that this rule derives from California Civil Code
section 3513, which prohibits the contractual waiver of legal
rights established for a public purpose, and section 1668,
which makes unlawful those contracts that would exempt a
party from violations of law); see also Little, 29 Cal. 4th at
1076-77; Abramson, 115 Cal. App. 4th at 652. Following this
principle, California courts have stricken arbitration provi-
sions that would prevent the enforcement and vindication of
public rights by imposing unreasonable fees on a party,
Armendariz, 24 Cal. 4th at 110-11, or by requiring arbitration
in a distant and inconvenient forum, Am. Online, 90 Cal. App.
4th at 12 (“California courts will refuse to defer to the
selected forum if to do so would substantially diminish the
rights of California residents in a way that violates our state’s
public policy.”). Because the forum selection provision in this
case could “force [Nagrampa] to forgo unwaivable public
rights,” Little, 29 Cal. 4th at 1079, by imposing unreasonable
costs to arbitrate her claims in Massachusetts, it may also be
18942 NAGRAMPA v. MAILCOUPS, INC.
unenforceable as contrary to California public policy, see Am.
Online, 90 Cal. App. 4th at 12-15.
To the extent that the fee-splitting clause in the arbitration
provision impedes the exercise of unwaivable statutory rights
under California law, it may also be unenforceable. The arbi-
tration agreement provides:
The costs of arbitration shall be borne equally by
MailCoups and Franchisee. Each party shall be
responsible for the fees and expenses of its respec-
tive attorneys and experts.
The California Court of Appeal has previously found that the
vindication of statutory rights under the FIL, the UCL, and the
CLRA deserves protection from insurmountable and unrea-
sonable arbitration fees. See Indep. Ass’n of Mailbox Ctr.
Owners, 133 Cal. App. 4th at 417 (remanding to trial court to
determine whether fee structure in arbitration agreement
would impede rights under FIL, UCL, and other statutes);
Gutierrez, 114 Cal. App. 4th at 98-99 (holding that imposition
of up-front arbitration fees is unconscionable because it would
prevent consumers from enforcing rights under CLRA). To
qualify for fee protection, Nagrampa’s claims “must be care-
fully tethered to statutory or constitutional provisions.”
Boghos, 36 Cal. 4th at 508. Nagrampa’s statutory claims must
affect the public interest such that she is invoking “substan-
tive and procedural rights not just for the benefit of individu-
als but also for public purposes.” Id. at 506. Therefore, at a
minimum, if Nagrampa were to make a prima facie showing
that her statutory claims affect the public interest, she would
be entitled to an advance fee allocation ruling to enable vindi-
cation of her statutory rights on that ground.
D.
[24] We hold that the arbitration provision in the Mail-
Coups’s franchise agreement is both procedurally and sub-
NAGRAMPA v. MAILCOUPS, INC. 18943
stantively unconscionable. Applying California’s sliding scale
test for unconscionability, even though the evidence of proce-
dural unconscionability is slight, the evidence of substantive
unconscionability is strong enough to tip the scale and render
the arbitration provision unconscionable.
MailCoups’s reservation to itself of the right to seek any
provisional remedy it decides it needs from any court of com-
petent jurisdiction is substantively unconscionable because it
lacks mutuality. Further, the forum selection clause is sub-
stantively unconscionable because (1) as part of a contract of
adhesion, it was not entered into freely and voluntarily; (2)
Nagrampa was provided inadequate notice in the offering cir-
cular because the circular contained misleading language cre-
ating the reasonable expectation that it would not be enforced;
and (3) considering the respective circumstances of the par-
ties, the “place and manner” requirements are unduly oppres-
sive and harsh upon Nagrampa, who had no bargaining
power. In addition, the forum selection clause, as well as the
fee-splitting clause, may contravene California public policy
to the extent that they impede the exercise of Nagrampa’s
unwaviable statutory rights. Because the district court did not
reach the public policy issue, however, we decline to reach it
now.
[25] The only portion of the arbitration provision that may
yet be viable is the fee-splitting clause. However, we must
conclude that the fee-splitting clause does not save the arbitra-
tion provision from a finding of invalidity. The MailCoups
arbitration provision is so permeated by substantive uncons-
cionability that it cannot be cured by severance or any other
action short of rewriting the contract. See Armendariz, 24 Cal.
4th at 124-25; Legis. Comm. cmt., Cal. Civ. Code § 1670.5
(West 1985). The arbitration provision at issue has “multiple
defects [that] indicate a systematic effort to impose arbitration
on [Nagrampa], not simply as an alternative to litigation, but
as an inferior forum that works to [MailCoups’s] advantage.”
Armendariz, 24 Cal. 4th at 124. There simply is “no single
18944 NAGRAMPA v. MAILCOUPS, INC.
provision [we] can strike or restrict in order to remove the
unconscionable taint from the agreement.” Id. at 124-25. Cali-
fornia Civil Code section 1670.5 does not grant us the discre-
tion to reform or modify the arbitration provision through
augmentation and neither does the FAA. Because we are
unable to save the arbitration agreement by severance or
restriction, we hold that the entire arbitration provision is
invalid and unenforceable. Therefore, FAA § 4 did not require
the district court to direct the parties to proceed to arbitration.
Proceedings should continue in the district court. We do not
reach the question of the validity of any provision in the fran-
chise agreement other than “Article 35: Dispute Resolution,”
the arbitration provision.
III
The district court properly undertook to decide whether the
arbitration provision in the MailCoups franchise agreement is
valid and enforceable within the meaning of FAA § 2, and
properly relied upon California law in its analysis. However,
the district court erred by failing to analyze whether there is
evidence of procedural unconscionability and to weigh both
procedural and substantive unconscionability on a sliding
scale as dictated by the California Supreme Court in Armen-
dariz. Thus, we conclude that the district court erroneously
found that the arbitration provision was valid and enforceable
and improperly dismissed the action. We therefore REVERSE
and REMAND for further proceedings consistent with this
opinion.
REVERSED AND REMANDED.
NAGRAMPA v. MAILCOUPS, INC. 18945
Volume 2 of 2
18946 NAGRAMPA v. MAILCOUPS, INC.
CLIFTON, Circuit Judge, concurring in part and dissenting in
part:
I agree with the majority that the district court properly
undertook in this case to decide whether the arbitration provi-
sion in the MailCoups franchise agreement is valid and
enforceable within the meaning of the Federal Arbitration
Act. I also agree that Nagrampa did not waive her right to
object to the arbitrability of the dispute. I thus concur in sec-
tions II-A and II-B of the majority opinion by Judge
Wardlaw.
I part company with the majority as to its conclusion that
the arbitration provision was unconscionable under California
law. I believe that the district court was correct in concluding
that the arbitration provision was valid and enforceable. I con-
cur in the relevant portions of the dissents by Judge
O’Scannlain (sections II-D and III) and by Judge Kozinski
(section II). Like them, I would affirm the judgment of the
district court.
O’SCANNLAIN, Circuit Judge, with whom Judges KOZIN-
SKI and TALLMAN join, and with whom Judge CLIFTON
joins as to Parts II-D and III, dissenting:
I respectfully dissent because I believe that the Court
ignores clear Supreme Court precedent in choosing to enter-
tain Nagrampa’s challenge to the validity of the entire fran-
chise contract. In addition, I cannot agree with much of the
majority’s analysis regarding the substantive unconsciona-
bility of the arbitration clause.
I
Connie A. Nagrampa, a resident of Contra Costa County
(in the San Francisco Bay area), California, earned over
NAGRAMPA v. MAILCOUPS, INC. 18947
$100,000 per year as a Sales Manager for ValPak Direct Mar-
keting Systems, a position she held from 1992-1998.
In the summer of 1998, a MailCoups, Inc.,1 representative
approached Nagrampa and encouraged her to become a Mail-
Coups franchisee.2 In June of that year, MailCoups sent
Nagrampa a notebook containing a franchise offering circular
and franchise agreement. After Nagrampa prepared a spread-
sheet showing her expected costs and profits, her contact at
MailCoups confirmed that her calculated 41 percent profit fig-
ure was “about right.”
On August 24, 1998, Nagrampa signed the thirty-page fran-
chise agreement, declaring under penalty of perjury that she
had read and agreed to each of its provisions. Article 35 of the
agreement, entitled “Dispute Resolution,” reads:
Arbitration. Any controversy or claim arising out of
or relating to this Agreement, or any breach thereof,
including, without limitation, any claim that this
Agreement or any portion thereof is invalid, illegal
or otherwise voidable or void, shall be submitted to
arbitration before and in accordance with the rules of
the American Arbitration Association or successor
organization. Provided, however, that this clause
shall not be construed to limit MailCoups’ right to
obtain any provisional remedy, including, without
limitation, injunctive relief from any court of compe-
tent jurisdiction, as may be necessary in MailCoups’
sole subjective judgment, to protect its Service
Marks and proprietary information. The decision of
the arbitrator shall be binding upon the parties and
judgment upon the award may be entered in any
1
MailCoups is a corporation incorporated under the laws of Delaware
and has its principal place of business in Massachusetts.
2
A MailCoups franchisee recruits businesses to advertise through cou-
pons mailed to residences in her service area.
18948 NAGRAMPA v. MAILCOUPS, INC.
court having jurisdiction thereof. The situs of the
arbitration proceedings shall be the regional office of
the American Arbitration Association which is
located in Boston, Massachusetts. The costs of arbi-
tration shall be borne equally by MailCoups and
Franchisee. Each party shall be responsible for the
fees and expenses of its respective attorneys and
experts.
The term of the franchise agreement was ten years.
Although Nagrampa worked over sixty hours a week, her
MailCoups franchise was a failure. Despite her efforts, she
claims that she never received any personal income, instead
incurring substantial debt to cover her living expenses. Owing
in part to her precarious financial situation, Nagrampa sent
MailCoups a September 22, 2000, letter terminating her fran-
chise agreement and stating her intent to pay certain “amounts
due” under the agreement.
MailCoups never received payment for the full amount it
claimed was due under the franchise agreement, and in
December 2001, it filed a Demand for Arbitration, seeking
payment of over $80,000 owed by Nagrampa. MailCoups
requested the arbitration be held in Los Angeles, the location
of its regional office. Nagrampa initially participated in the
prehearing procedures, but she objected to holding the arbitra-
tion in Los Angeles, requesting instead that it take place in
Contra Costa County. When the parties were unable to agree
on a location, the American Arbitration Association (“AAA”)
arbitrator determined that—per the terms of the franchise
agreement—the arbitration would be held in Boston.
When she received a schedule of fees for the arbitration,
Nagrampa requested a waiver for all fees from the AAA.
However, she failed to complete the necessary forms to
receive the waiver, despite being advised of the requirements.
The waiver became moot when Nagrampa ceased her partici-
NAGRAMPA v. MAILCOUPS, INC. 18949
pation in the arbitration following the designation of Boston
as the venue. The arbitration proceeded without her and
resulted in an award against her of over $160,000.
In the meantime, Nagrampa filed suit against MailCoups
and the AAA in California state court, alleging that Mail-
Coups was liable for common-law misrepresentation and
fraud, as well as for violating the California Consumer Legal
Remedies Act and California’s franchise and unfair competi-
tion laws. Nagrampa sought monetary damages from Mail-
Coups and an injunction preventing the company from
enforcing the arbitration clause against her.
Invoking the parties’ diversity of citizenship, MailCoups
removed the case to federal court and then moved to compel
arbitration and to stay or dismiss the court proceedings. In
opposition, Nagrampa argued that the arbitration clause was
unconscionable and thus unenforceable. She argued that the
arbitration clause was procedurally unconscionable because
her “franchise agreement [was] a contract of adhesion. It was
presented to her on a take-it-or-leave-it basis. She was not
allowed to negotiate any of its terms.” She then gave three
grounds for the arbitration clause’s substantive unconsciona-
bility: 1) a venue of Boston was unfair, 2) the arbitrator was
not neutral, and 3) MailCoups did not disclose the costs of
arbitration.
The district court concluded that the agreement was valid
and granted MailCoups’ motion to dismiss.3 Nagrampa timely
3
The district court denied MailCoups’ motion to compel arbitration
because § 4 of the Federal Arbitration Act (“FAA”) requires that an arbi-
tration hearing take place in the district in which the motion to compel was
filed. See 9 U.S.C. § 4 (“The hearing and proceedings . . . shall be within
the district in which the petition for an order directing such arbitration is
filed.”). Relying upon the franchise agreement’s designation of Boston as
the arbitration forum, the district court concluded that the District of Mas-
sachusetts was the proper venue for MailCoups to obtain an order compel-
ling arbitration. MailCoups did not file a cross-appeal.
18950 NAGRAMPA v. MAILCOUPS, INC.
appealed, and a three-judge panel affirmed the district court
by written opinion on March 21, 2005. Following Nagrampa’s
petition for rehearing, a majority of the Court voted to rehear
the case en banc.
II
California law places the burden of proving unconsciona-
bility on the party challenging the validity of the arbitration
clause.4 See Szetela v. Discover Bank, 97 Cal. App. 4th 1094,
1099 (Ct. App. 2002). “[U]nconscionability has both a proce-
dural and a substantive element, the former focusing on
oppression or surprise due to unequal bargaining power, the
latter on overly harsh or one-sided results.” Armendariz v.
Found. Health Psychcare Servs., Inc., 6 P.3d 669, 690 (Cal.
2000) (internal quotation marks omitted). Although both ele-
ments must be present for a court to exercise its discretion to
invalidate an agreement as unconscionable, they need not be
present in the same degree. Id. Because procedural and sub-
stantive unconscionability exist on a sliding scale, “the more
substantively oppressive the contract term, the less evidence
of procedural unconscionability is required to come to the
conclusion that the term is unenforceable, and vice versa.” Id.
Nagrampa claims that the franchise agreement’s arbitration
clause was both procedurally and substantively unconsciona-
ble. At the district court, Nagrampa insisted that the “fran-
chise agreement [was] a contract of adhesion” and therefore
procedurally unconscionable. I remain convinced that this
Court lacks jurisdiction to consider that argument.
4
I agree with the majority that the parties have waived the franchise
agreement’s choice of law provision, which specified Massachusetts law
as controlling, by arguing their respective causes on the basis of California
law both in the district court and here. See Panno v. Russo, 186 P.2d 452,
454 (Cal. Ct. App. 1947) (“[A] party to a contract may by conduct or rep-
resentations waive the performance of a condition thereof or be held
estopped by such conduct or representations to deny that he has waived
such performance.”).
NAGRAMPA v. MAILCOUPS, INC. 18951
A
The Supreme Court has identified two types of challenges
to the validity of an arbitration agreement. Buckeye Check
Cashing, Inc. v. Cardegna, 126 S. Ct. 1204, 1208 (2006).
“One type challenges specifically the validity of the agree-
ment to arbitrate.” Id. “The other challenges the contract as a
whole, either on a ground that directly affects the entire con-
tract (e.g., the agreement was fraudulently induced) or on the
ground that the illegality of one of the contract’s provisions
renders the whole contract invalid.” Id. Section 4 of the FAA
requires that these two types of challenges be treated differ-
ently. See id.
Prima Paint Corp. v. Flood & Conklin Manufacturing Co.,
388 U.S. 395, 402 (1967), recognized as much when it con-
sidered the question of “whether a claim of fraud in the
inducement of the entire contract is to be resolved by the fed-
eral court, or whether the matter is to be referred to the arbi-
trators.” Under § 4 of the FAA, 9 U.S.C. § 4, a federal court
must order arbitration “once it is satisfied that ‘the making of
the agreement for arbitration or the failure to comply [with the
arbitration agreement] is not in issue.’ ” Id. at 403 (quoting 9
U.S.C. § 4) (alteration in original). “Accordingly, if the claim
is fraud in the inducement of the arbitration clause itself—an
issue which goes to the ‘making’ of the agreement to arbitrate
—the federal court may proceed to adjudicate it.” Id. at
403-04. However, the court may not “consider claims of fraud
in the inducement of the contract generally.” Id. at 404; see
id. (“[A] federal court may consider only issues relating to the
making and performance of the agreement to arbitrate.”).
Buckeye reaffirmed this approach. 126 S. Ct. at 1208-09.
Drawing from Prima Paint, Buckeye states that “unless the
challenge is to the arbitration clause itself, the issue of the
contract’s validity is considered by the arbitrator in the first
instance.” Id. at 1209. Therefore, “a challenge to the validity
of the contract as a whole, and not specifically to the arbitra-
18952 NAGRAMPA v. MAILCOUPS, INC.
tion clause, must go to the arbitrator.” Id. at 1210 (emphasis
added). Although Buckeye concerned an attempt to invalidate
an entire contract based on “the illegality of one of the con-
tract’s provisions,” the Supreme Court equated this type of
challenge with one brought “on a ground that directly affects
the entire agreement.” See id. at 1208.
B
Nagrampa clearly challenged the validity of the contract as
a whole. Even her more directed complaint against the arbitra-
tion clause incorporates a contract-of-adhesion claim that “di-
rectly affects the entire agreement.” See id. Considering the
Supreme Court’s classification of this type of challenge as
one that must be considered by an arbitrator, our duty could
not be clearer. When an agreement to arbitrate is challenged,
we must look to see whether the challenge goes to the validity
of the contract as a whole or whether it goes “specifically” to
the arbitration clause. Id. Whether difficulties result from our
lack of jurisdiction should have no bearing on our decision on
the issue; we “are bound to apply rules enacted by Congress
with respect to matters—here, a contract involving commerce
—over which it has legislative power.” Prima Paint, 388 U.S.
at 406. The FAA was specifically enacted with respect to just
such a matter. See id. at 405.
Contrary to the majority’s view, Nagrampa does not specif-
ically and exclusively target the arbitration clause as a con-
tract of adhesion. Nor could she, considering her argument on
appeal that the clause was “hidden” in the contract and never
“pointed out or explained to her.” Indeed, she argues that the
arbitration agreement is procedurally unconscionable because
the entire contract was a contract of adhesion, offered on a
“take-it-or-leave-it” basis. A clear statement of her position
can be found in the Plaintiff’s Opposition to Motion to Com-
pel [Arbitration], filed with the district court: “Ms. Nagram-
pa’s franchise agreement is a contract of adhesion.” It is the
validity of the entire franchise agreement that Nagrampa chal-
NAGRAMPA v. MAILCOUPS, INC. 18953
lenges. The opposition brief continues: “Ms. Nagrampa’s
entire contract was obtained by fraud and therefore should be
revoked.”
Refusing to acknowledge these statements made by
Nagrampa to the district court,5 the majority proclaims:
“[N]owhere in her complaint does she seek rescission or
invalidation of the entire contract based on it being a contract
of adhesion.” Majority Opinion at 18915. Yet not only does
Nagrampa’s argument in her opposition brief reveal her
request to revoke the entire agreement, but her complaint
itself offers no reason to believe that she wished the court
only to sever the arbitration clause. In her fourth, fifth, and
sixth causes of action, Nagrampa asked for “such other and
further relief as the court may deem proper.” The majority
blindly ignores Nagrampa’s later statements that shed light on
what “further relief” she desired.
Adequate review of the district court requires us to evaluate
all relevant documents filed with that court, including those
that led the district court to state: “Plaintiff characterizes the
franchise agreement as a contract of adhesion, and argues that
it is therefore procedurally unconscionable per se.” Because
the full record makes evident that Nagrampa’s claims of pro-
5
The majority states that under Buckeye and Prima Paint a court must
consider only the complaint to discern the “nature of the relief that may
be afforded.” Majority Opinion at 18915 n.6. The majority then concedes
that it is the “type of claim asserted in the complaint” that matters. Id.
(emphasis added). Next the majority decides that certain parts of the com-
plaint should be ignored. In particular, the majority discounts the portion
of the complaint requesting “such other and further relief as the court may
deem proper” as “mere boilerplate,” id. (emphasis added), although
Nagrampa later explained what other relief she sought.
The majority’s flawed analysis both contorts the claims presented in the
complaint, and disrespects Nagrampa’s abilities. I believe Nagrampa was
capable of choosing substance over form in her complaint, and capable of
reading her “attorney’s arguments” before accepting their inclusion in her
submissions to the district court.
18954 NAGRAMPA v. MAILCOUPS, INC.
cedural unconscionability were not aimed specifically at the
arbitration provision, Prima Paint and Buckeye require us to
leave this argument to be decided by an arbitrator.
Turning away from a comprehensive analysis of the docu-
ments filed by Nagrampa, the majority seeks to distill the
“crux of the complaint.” Majority Opinion at 18892. This nar-
rowing technique leads the majority to conclude that Nagram-
pa’s cognizable claims “specifically and exclusively challenge
the validity of the arbitration provision.” Id. at 18893. Having
reached this conclusion, the majority apparently allows
Nagrampa to attack such clause on any ground, “even if sub-
stantive state law requires an examination of the making of
the entire contract.” Id. at 18904. Such interpretation would
allow us to reach grounds that the Buckeye Court recognized
to “directly affect[ ] the entire agreement,” Buckeye, 126
S. Ct. at 1208, thus making a mockery of the FAA and its “na-
tional policy” in favor of arbitration. Mitsubishi Motors Corp.
v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 627 (1985).
The majority adopts certain language from Buckeye, while
ignoring more relevant passages. Buckeye notes that two dif-
ferent types of challenges fall within the broader category that
must be submitted to an arbitrator. 126 S. Ct. at 1208. One of
those types is a challenge on a ground that “renders the whole
contract invalid,” id., but that is not the type of challenge
Nagrampa brings. Hers is more correctly characterized as a
challenge “on a ground that affects the entire agreement.” See
id. Nothing in Buckeye suggests that a party can base an
attack on grounds that directly affect the entire contract, so
long as the “crux of the complaint” is not a challenge to the
contract as a whole.
The majority insists that none of Nagrampa’s claims would
invalidate the entire contract, if proved. Majority Opinion at
18904. Buckeye does not support this approach; it identifies
the first type of challenge that must be submitted to an arbitra-
tor, not based on whether the ground for attack invalidates the
NAGRAMPA v. MAILCOUPS, INC. 18955
entire contract, but on whether the ground “directly affects”
it. See Buckeye, 126 S. Ct. at 1208. The Supreme Court could
have stated that challenges to an arbitration clause “on a
ground that [invalidates] the entire contract” must be decided
by an arbitrator, but it did not do so. See id. Thus, where
Buckeye draws a distinction between the two types of chal-
lenges that must be submitted to an arbitrator, the majority’s
approach collapses the two into one. In my view, had the
Supreme Court meant to adopt such an approach, it simply
would have done so.
C
Our sister circuits do not follow the majority’s approach.
Instead, the Second, Fifth, Sixth, Eighth, and Eleventh Circuits6
all agree that any argument of unconscionability must be
directed to the arbitration clause alone to be considered by a
court rather than the arbitrator.
Speaking directly to the issue, the Eleventh Circuit held
that “the FAA does not permit a federal court to consider
claims alleging the contract as a whole was adhesive.” Jenkins
v. First Am. Cash Advance of Ga., LLC, 400 F.3d 868, 877
(11th Cir. 2005). Specifically, “ ‘[i]f . . . [the party’s] claims
of adhesion, unconscionability, . . . and lack of mutuality of
obligation pertain to the contract as a whole, and not to the
arbitration provision alone, then these issues should be
resolved in arbitration.’ ” Id. (quoting Benoay v. Prudential-
Bache, Secs., Inc., 805 F.2d 1437, 1441 (11th Cir. 1986))
(alterations in original). The Second Circuit7 reached a similar
6
Neither Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170
F.3d 1 (1st Cir. 1999), nor Alexander v. Anthony International, L.P., 341
F.3d 256 (3d Cir. 2003), cited (much less discussed) Prima Paint or ana-
lyzed the jurisdictional issue presented in this case. As such, they offer lit-
tle insight into the approaches taken by our sister circuits on this issue.
7
The majority cites David L. Threlkeld & Co. v. Metallgesellschaft Ltd.,
923 F.2d 245 (2d Cir. 1991), but that case did not discuss the issue of
jurisdiction. As such, like Alexander and Rosenberg, it provides little sup-
port for the majority’s position, particularly in light of the Second Cir-
cuit’s later JLM decision.
18956 NAGRAMPA v. MAILCOUPS, INC.
result in JLM Industries, Inc. v. Stolt-Nielsen SA, 387 F.3d
163, 170 (2d Cir. 2004), when it refused to consider a
contract-of-adhesion claim that did not apply to “the arbitra-
tion clause alone.”
Similarly, the Sixth Circuit8 in Burden v. Check Into Cash
of Kentucky, LLC, 267 F.3d 483, 493 (6th Cir. 2001), specifi-
cally rejected plaintiffs’ claims that arbitration agreements
were unenforceable because contained in contracts of adhe-
sion; such claims could not be considered because they did
not “attack the arbitration clause, separate from the underly-
ing loan agreements.” Id. at 492 n.3 (emphasis added). While
the Sixth Circuit returned several claims to the district court
because they specifically concerned the arbitration clause, the
contract-of-adhesion claim was not one of them. Id. at 492.
Burden’s holding on the issue we face is unambiguous:
“When determining the enforceability of an arbitration agree-
ment, a court ‘can investigate the existence of such grounds
as exist at law or in equity for the revocation of any contract
. . . . However, the grounds for revocation must relate specifi-
cally to the arbitration clause and not just to the contract as
a whole.’ ” Id. at 492—93 (quoting Hooters of Am. v. Phillips,
173 F.3d 933, 938 (4th Cir. 1999), which cites 9 U.S.C. § 2;
Prima Paint, 388 U.S. at 402-04 (alteration in original)).
Similarly, the Fifth Circuit has stated that “unless a defense
relates specifically to the arbitration agreement, it must be
submitted to the arbitrator as part of the underlying dispute.”
Primerica Life Ins. Co. v. Brown, 304 F.3d 469, 472 (5th Cir.
2002).9 In the same vein, Rojas v. TK Communications, Inc.,
8
Stout v. J.D. Byrider, 228 F.3d 709 (6th Cir. 2000), is not relevant to
the analysis. The decision does not discuss the jurisdictional issue or even
cite to Prima Paint. Moreover, the decision involved free-standing arbitra-
tion agreements and is therefore distinguishable from the present case.
9
The majority cites Washington Mutual Finance Group, LLC v. Bailey,
364 F.3d 260, 266 (5th Cir. 2004), but like the Sixth Circuit’s decision in
Stout, the decision concerned an “Alternative Dispute Resolution Agree-
ment” which was executed separately from other contract provisions,
unlike here.
NAGRAMPA v. MAILCOUPS, INC. 18957
87 F.3d 745 (5th Cir. 1996), rejected an attack on an arbitra-
tion clause as an unconscionable contract of adhesion because
it was “an attack on the formation of the contract generally,
not an attack on the arbitration clause itself.” Id. at 749. For
the Rojas Court, one indication that the plaintiff’s attack was
not limited to the arbitration provision was her argument that
the agreement was based on “inequality of bargaining power.”
Id. at 749 n.3. Tellingly, Nagrampa’s contract-of-adhesion
claim is based, in part, on just such an argument.
Finally, the Eighth Circuit has held that a plaintiff’s claims
must be referred to arbitration when the “arguments of uncon-
scionability ‘cannot fairly be limited to the making of the
arbitration clause.’ ” Madol v. Dan Nelson Auto. Group, 372
F.3d 997, 1000 (8th Cir. 2004) (quoting Houlihan v. Offerman
& Co., Inc., 31 F.3d 692, 695 (8th Cir. 1994)). In Houlihan,
the Eighth Circuit rejected an attempt to target an arbitration
clause on grounds that applied to the entire contract, reason-
ing that the plaintiff had not presented “any rationale for con-
cluding that the alleged misrepresentations relate[d] only to
the arbitration clause.” 31 F.3d at 695 (emphasis added).
The majority chooses to focus only on whether a plaintiff’s
claim would invalidate the entire contract, ignoring Buckeye’s
plain statement regarding challenges brought on “a ground
that directly affects the entire agreement,” 126 S. Ct. at 1208.
As a result, despite protestations to the contrary, our decision
today places us yet again in conflict with our sister circuits
and likely on course for yet another reversal by the Supreme
Court.
D
In addition to proffering her contract-of-adhesion argu-
ment, Nagrampa also contends that the arbitration clause
alone is procedurally unconscionable because it is found on
the twenty-fifth page of the thirty-page franchise agreement
and because she was not informed about the clause or the
18958 NAGRAMPA v. MAILCOUPS, INC.
costs of arbitration. These claims pertain solely to the arbitra-
tion provision’s validity and are thus cognizable under Prima
Paint and Buckeye.
Nagrampa does not cite any authority for the proposition
that MailCoups was required to apprise her of the existence
of the arbitration clause or the costs associated with arbitra-
tion. Indeed, California case law establishes that MailCoups
had no such obligation. In Brookwood v. Bank of America, 45
Cal. App. 4th 1667, 1672 (Ct. App. 1996), for example, an
employee sought to obtain a judicial forum for her employ-
ment discrimination suit by claiming that she was not aware
that her new-employee paperwork included an arbitration
clause. The court rejected the employee’s attempt to evade
arbitration and explained that she “was bound by the provi-
sions of the [arbitration] agreement regardless of whether
[she] read it or [was] aware of the arbitration clause when
[she] signed the document.” Id. at 1674 (internal quotation
marks omitted; alterations in original); see also id.
(“Reasonable diligence requires the reading of a contract
before signing it. A party cannot use his own lack of diligence
to avoid an arbitration agreement.” (internal quotation marks
omitted)).
Here, MailCoups sent the franchise agreement to Nagrampa
and asked her to return it with her signature. Nagrampa—an
experienced businessperson who had worked for more than
seven years in the direct marketing field—had ample opportu-
nity to read the arbitration clause and to consider its implica-
tions; by her own admission, she had the franchise agreement
containing the arbitration clause for nearly two months. It fol-
lows that this case is appreciably different from those in
which an inexperienced consumer was pressured to sign an
agreement without being afforded an opportunity to read or to
comprehend the fine print. See, e.g., Gutierrez v. Autowest,
Inc., 114 Cal. App. 4th 77, 89 (Ct. App. 2003) (holding that
an arbitration clause in an automobile lease was procedurally
unconscionable where the clause was “particularly inconspic-
NAGRAMPA v. MAILCOUPS, INC. 18959
uous,” it was “printed in eight-point typeface on the opposite
side of the signature page,” and the consumer was not
informed of the clause’s existence). Nagrampa’s failure to
read the arbitration clause—or to consult a lawyer about its
ramifications—does not excuse her from complying with its
terms.10 Thus, in my view, Nagrampa has failed to make any
showing that the arbitration provision was procedurally
unconscionable, and her claim of unconscionability cannot
succeed because California law requires both procedural and
substantive unconscionability.
III
Though Nagrampa’s unconscionability claim fails for the
lack of procedural unconscionability, we may reject her argu-
ments that the arbitration agreement is substantively uncon-
scionable as well. As the majority notes, Nagrampa argued
that the arbitration agreement was substantively unfair for
three reasons. First, she asserted that the venue provision
10
The majority concludes that Brookwood is inapplicable because “[t]he
analysis of procedural unconscionability under California law focuses on
the manner in which the contract or the disputed clause was presented and
negotiated and the disparity in bargaining power, not on whether the party
claiming procedural unconscionability should have known of the arbitral
provision.” Majority Opinion at 18928. But when the majority later argues
that procedural unconscionability may exist even with sophisticated par-
ties, it cites A & M Produce Co. v. FMC Corp., 135 Cal. App. 3d 473, 486
(4th Dist. 1982)), and states that the California Supreme Court “is among
the many courts that ‘have begun to recognize that experienced but legally
unsophisticated businessmen may be unfairly surprised by unconscionable
contract terms.’ ” Majority Opinion at 18926. On the one hand, the major-
ity discounts foreknowledge as irrelevant; on the other hand, the majority
enlists unfair surprise to support its conclusion regarding unconsciona-
bility. And the majority continues to discuss the importance of advance
knowledge under California law when it concludes that Nagrampa
received “inadequate notice” of the forum selection provision and there-
fore that the provision must be ignored “on public policy grounds.” Major-
ity Opinion at 18940-42. It is hard for the majority to say that Brookwood
sheds no light on the case at bar, given the fact that the majority itself
accords substantial weight to considerations of advance awareness.
18960 NAGRAMPA v. MAILCOUPS, INC.
defeated her ability to defend her claims. Second, she claimed
that the agreement’s fee-splitting provision was unconsciona-
ble. Third, she contended that the AAA was a repeat player
and therefore biased against her.
A
I agree with the majority that Nagrampa’s “repeat player”
argument is without merit. See Majority Opinion at 18928-30.
Nagrampa contends that the AAA and its arbitrators have
an interest in ruling in favor of “repeat players” such as Mail-
Coups because corporate parties that frequently appear before
the AAA will take their business elsewhere if they receive an
adverse ruling. Nagrampa is unable, however, to muster any
case law in which courts have questioned the neutrality of the
AAA. Instead, she relies upon Mercuro v. Superior Court,
which held that it was substantively unconscionable to require
an employee to arbitrate his employment discrimination claim
before the National Arbitration Forum because the employer
benefitted from repeatedly appearing before the eight arbitra-
tors the organization employed in the Central District of Cali-
fornia. 96 Cal. App. 4th 167, 178 (Ct. App. 2002).
Mercuro is readily distinguishable because there is no evi-
dence to suggest that the AAA uses a comparably small num-
ber of arbitrators or that MailCoups has repeatedly appeared
before the organization. Moreover, the AAA Commercial
Arbitration Rules incorporate safeguards to neutralize any
bias in favor of repeat litigants, requiring arbitrators to “dis-
close to the AAA any circumstance likely to affect impartial-
ity or independence, including . . . any past or present
relationship with the parties or their representatives.” See
AAA Commercial Arbitration Rules, R-19(a). Because either
party can then request that the arbitrator be removed from the
matter, this rule minimizes the risk of a repeat player effect
favoring corporate parties. See AAA Commercial Arbitration
Rules, R-19(b).
NAGRAMPA v. MAILCOUPS, INC. 18961
Indeed, California courts have uniformly concluded that the
AAA provides a neutral forum for dispute resolution. See
Armendariz, 6 P.3d at 687-88 (“there are sufficient institu-
tional safeguards, such as scrutiny by the plaintiff’s bar and
appointing agencies like the AAA, to protect against corrupt
arbitrators”); Izzi v. Mesquite Country Club, 186 Cal. App. 3d
1309, 1318 (Ct. App. 1986) (stating that the AAA is not “pre-
sumptively biased against either party. The rules of the
[AAA] specified by the clause as governing the resolution of
disputes are generally regarded to be neutral and fair.”).
Because there is neither case law nor record evidence sup-
porting the proposition that the AAA is a biased forum,
Nagrampa has failed to establish that the arbitration clause is
substantively unconscionable on that basis.
B
I also agree with the majority that the fee-splitting provi-
sion of the arbitration clause is not substantively unconsciona-
ble, but I cannot agree that the provision could endanger
Nagrampa’s ability to vindicate her statutory rights.
Nagrampa argues that the arbitration clause is substantively
unconscionable because it requires the parties to share the
costs of arbitration.11 Her argument is premised, however,
upon an uncountenanced extension of California law.
11
Nagrampa did not raise this argument in opposing MailCoups’ motion
to compel; she argued only that the arbitration clause failed to disclose the
costs. Nowhere did Nagrampa contend that the fee-splitting provision
imposed unconscionably high costs. She accordingly failed to cite any of
the extensive California case law concerning the propriety of fee-splitting
arrangements, and the district court had no opportunity to pass upon this
issue. Therefore, Nagrampa waived it. See In re Am. West Airlines, Inc.,
217 F.3d 1161, 1165 (9th Cir. 2000) (“Absent exceptional circumstances,
we generally will not consider arguments raised for the first time on
appeal, although we have discretion to do so.”). Notwithstanding the fore-
going, because Nagrampa did raise the issue in her appellate opening
brief, I will assume that the majority is exercising its discretion to consider
the issue.
18962 NAGRAMPA v. MAILCOUPS, INC.
Much of Nagrampa’s argument relies upon Armendariz v.
Foundation Health Psychcare Services, Inc. and its progeny.
6 P.3d 669 (Cal. 2000). In Armendariz, the Supreme Court of
California held that where an employer imposes mandatory
arbitration as a condition of employment, the arbitration
agreement cannot “require the employee to bear any type of
expense that the employee would not be required to bear if he
or she were free to bring the action in court.” Id. at 687
(emphasis omitted). The Armendariz decision was strictly
confined to the employment setting, and the Supreme Court
of California recently refused to address whether its holding
should be extended to other contexts. See Cruz v. PacifiCare
Health Sys., Inc., 66 P.3d 1157, 1165 n.3 (Cal. 2003). Further,
as Armendariz recognized, California has established a default
rule that explicitly calls for the parties to split both adminis-
trative and legal costs. Cal. Civ. Proc. Code § 1284.2. There-
fore, the fee-splitting provision does not automatically render
the parties’ arbitration clause substantively unconscionable.
Neither have the fees in this particular case forced
Nagrampa “to forgo unwaiveable public rights.” Majority
Opinion at 18941 (quoting Little v. Auto Stiegler, Inc., 29 Cal.
4th 1064, 1079 (2003)). In certain cases, a party may be enti-
tled to fee allocation where it “is necessary to enable [ ] statu-
tory rights to be vindicated.” Indep. Ass’n of Mailbox Ctr.
Owners, Inc., v. Superior Court, 133 Cal. App. 4th 396, 417
(Ct. App. 2005); see also Gutierrez, 114 Cal. App. 4th at 89
(“We conclude that where a consumer enters into an adhesive
contract that mandates arbitration, it is unconscionable to con-
dition that process on the consumer posting fees he or she
cannot pay.”). However, in Mailbox Center, the court was
unable “to evaluate the financial capabilities of the fran-
chisees,” and so returned the case to the trial court for further
hearings on the issue. 133 Cal. App. 4th at 417. Meanwhile,
in Gutierrez, the plaintiffs “presented substantial evidence in
the trial court that the administrative fees exceeded their abil-
ity to pay.” Gutierrez, 114 Cal. App. 4th at 90. In any event,
NAGRAMPA v. MAILCOUPS, INC. 18963
the defendant in Gutierrez never contested the plaintiffs’
inability to pay the fees. Id. at 91.
Nagrampa cannot present evidence that the arbitration fees
would prevent her from vindicating her statutory rights, and
MailCoups never conceded the issue, instead arguing that
Nagrampa’s bank account balance during the relevant time
period belied her claim that she could not afford to pay the
arbitration fees or to go to Boston. Nagrampa had an average
balance of $16,000 in her personal bank account during the
relevant time period, more than enough to pay the $6,500 in
fees. In light of this, there is simply no basis for holding that
the arbitration fees here were insurmountable or unreasonable.12
C
I must also disagree with the majority’s conclusion that the
venue provision—specifying Boston as the arbitration site—
was unconscionable.
Nagrampa’s argument on this point relies heavily upon
Bolter v. Superior Court, 87 Cal. App. 4th 900 (Ct. App.
2001). There, the court held that a forum selection clause in
a franchise agreement was unconscionable because it required
California carpet-cleaning franchisees to arbitrate their claims
against the franchisor in Utah. Id. at 909. In reaching this con-
clusion, the court emphasized that the parties’ original fran-
chise agreement did not contain either an arbitration clause or
a forum selection provision and that the franchisees therefore
could not have anticipated that they would be required to
12
For the same reason, I reject the majority’s contention that the forum
selection clause might “substantially diminish [Nagrampa’s] rights.”
Unlike the plaintiffs in America Online, Inc. v. Superior Court, 90 Cal.
App. 4th 1, 15 (Ct. App. 2001), who would receive “significantly less con-
sumer protection” under Virginia law when compared to California law,
Nagrampa cannot point to any injury she will suffer from arbitrating in
Boston, particularly where MailCoups conceded at oral argument that it is
not contesting the applicability of California law.
18964 NAGRAMPA v. MAILCOUPS, INC.
travel to an inconvenient location to arbitrate their claims. Id.
The franchisor added the forum selection clause to subsequent
versions of the contract, to which the franchisees were
required to give their assent if they wished to keep their busi-
nesses. Id. at 907. The court specifically noted that “[o]nly a
person contemplating whether to purchase a franchise for the
first time would have been in the position to reject [the
franchisor’s] ‘take it or leave it’ attitude.” Id.
Where Bolter’s extenuating circumstances are absent, how-
ever, California courts have sustained the validity of forum
selection clauses in franchise agreements. In Lu v. Dryclean-
U.S.A. of California, Inc., for example, the court upheld a
clause requiring California franchisees to litigate claims
against their franchisor in Florida. 11 Cal. App. 4th 1490,
1493 (Ct. App. 1992). The court held that it was reasonable
for the franchisor, which had its principal place of business in
Miami, to designate Florida as the forum for all litigation. Id.
at 1493 n.2. The court explained that “[m]ere inconvenience
or additional expense is not the test of [the forum selection
clause’s] unreasonableness since it may be assumed that the
plaintiff received under the contract consideration for these
things.” Id. at 1493 (internal quotation marks omitted).
Nagrampa’s situation is comparable to that of the fran-
chisees in Lu, because—as the district court recognized—the
oppressive features of the Bolter case are absent from Mail-
Coups’ franchise agreement. Like in Lu, MailCoups’ designa-
tion of Boston as the arbitration site is reasonable, as Boston
is MailCoups’ principal place of business. Unlike in Bolter,
the provision designating Boston as the arbitration forum was
included in the original franchise agreement presented to
Nagrampa, and she thus knew—or, if she neglected to read
the agreement, she should have known—that the contract
included a forum selection clause. Moreover, the franchisees
in Bolter introduced evidence suggesting that they would have
been financially unable to pursue their claims against the
franchisor if they were required to arbitrate in Utah. 87 Cal.
NAGRAMPA v. MAILCOUPS, INC. 18965
Ohio App. 4th at 909-10. The limited financial evidence presented
by Nagrampa does not establish that her financial situation
precludes her from traveling to Boston for the arbitration. The
forum selection clause therefore is not substantively unconscio-
nable.13
Because Nagrampa had sufficient funds to pursue her claim
against MailCoups even in Boston, there is no danger that the
venue provision would “impede Nagrampa from vindicating
statutory rights.” Majority Opinion at 18929. There is no rea-
son to consider Boston “a location so prohibitively costly to
Nagrampa” that she could not participate. Id. at 18937.
Nagrampa had the funds to participate and chose not to. The
majority’s assertion to the contrary, that Nagrampa “may not
be able to maintain her claim to recover any of her losses if
forced to do so in Massachusetts,” is directly contrary to the
record. Id. Any such claim is also flimsy given the amounts
13
The majority’s reliance on Laxmi Investments, LLC v. Golf USA, 193
F.3d 1095 (9th Cir. 1999), is curious, particularly with respect to its analy-
sis of the franchise-offering circular. Nagrampa never cited to this circular
or argued that the statements in the circular had rendered it impossible for
the parties to reach a “meeting of the minds” on venue. Indeed, she did
not include the offering circular in her excerpts of record, and every state-
ment made in her briefs concerned the “contract.” Thus, to the extent she
ever made any argument regarding the offering circular, she has arguably
waived it. Perhaps more importantly, the franchise agreement here states
that the “Agreement . . . constitutes the entire agreement between Mail-
Coups and Franchisee as to the . . . franchise and supersedes all prior
negotiations, understandings, representations and agreements, if any.”
Thus, any reliance on the circular is foreclosed based on the franchise
agreement’s integration clause. “Terms set forth in a writing intended by
the parties as a final expression of their agreement with respect to such
terms as are included therein may not be contradicted by evidence of any
prior agreement or of a contemporaneous oral agreement.” Cal. Civ. Proc.
Code § 1856(a).
Even if the forum selection clause were substantively unconscionable,
the appropriate remedy would be for this Court to sever that provision,
rather than to invalidate the arbitration clause in its entirety. See Bolter,
87 Cal. App. 4th at 910 (“the unconscionable provisions can be severed
and the rest of the agreement enforced”).
18966 NAGRAMPA v. MAILCOUPS, INC.
of money that were involved in the franchise. Nagrampa
claims that she paid more than $400,000 in fees to MailCoups
over her franchise’s brief two-year existence, all while receiv-
ing no personal income. To claim now that the cost of a
round-trip plane ticket from San Francisco to Boston
($338.60), a four-night hotel stay ($316.00), and twelve meals
($160.00), will prevent her from vindicating her statutory
rights (priceless) is laughable.14
The arbitration provision’s specification of a Boston venue
is not unconscionable, nor will it result in the waiver of
Nagrampa’s statutory rights.
D
Inexplicably, the majority manufactures an argument that
was never raised by either party. Without explanation as to
why it decided to create a new issue, the majority concludes
that the burden of proof is on MailCoups to establish that the
venue provision will not diminish Nagrampa’s substantive
rights as a California franchisee. While her original complaint
alleged violations of the statutes cited by the majority,
Nagrampa never argued that these statutes shifted the burden
to MailCoups while before the district court, in her opening
brief here, in front of the three-judge panel, or before the en
banc panel.
Pursuant to Federal Rule of Appellate Procedure 28, our
usual practice is to require parties to make an argument con-
14
The arbitration in this case was scheduled to last only two days. The
price of a round-trip ticket from San Francisco to Boston on American
Airlines is $338.60, assuming Sunday departure and Wednesday return
and sufficient advance notice. See www.mobissimo.com. The La Quinta
in Somerville, Massachusetts, approximately seven minutes from the
AAA’s downtown Boston office, charges $79 per night. See www.lq.com.
As Rachael Ray demonstrated, one can eat well in Boston on $40 per day.
See $40 a Day: Boston, http://www.foodnetwork.com/food/show_ad/episo
de/0,1976,FOOD_9947_22423,00.html.
NAGRAMPA v. MAILCOUPS, INC. 18967
taining their “contentions and the reasons for them, with cita-
tions to the authorities and parts of the record on which the
appellant relies.” We generally enforce this rule by reviewing
“only issues argued specifically and distinctly in a party’s
opening brief.” Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.
1994); see also Carroll v. Nakatani, 342 F.3d 934, 944 (9th
Cir. 2003) (same); United States v. Hernandez-Valdovinos,
352 F.3d 1243, 1248 n.4 (9th Cir. 2003) (“Issues that were not
presented to the district court generally cannot be raised for
the first time on appeal.”). Indeed, we have refused to “manu-
facture arguments” for a party who offers only bare asser-
tions. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d
912, 919 (9th Cir. 2001).
Here the majority manufactures an argument for Nagrampa
that lacks even so much as a bare assertion in support. I am
puzzled; I would have expected a reasoned explanation for
such a drastic departure from our past precedent and practice.
I continue to believe that “[a]s judges, the essence of our role
is restrained service as impartial arbiters of disputes framed
by litigants. It is not, I respectfully suggest, to act as backup
counsel when litigants make poor arguments, or when they
come into court without first having ‘figure[d] out’ their
cases.” Kennedy v. Lockyer, 379 F.3d 1041, 1065 (9th Cir.
2004) (O’Scannlain, J., dissenting). There is no justification
for creating new issues or new arguments to resolve this case,
especially when MailCoups lacks a meaningful opportunity to
be heard on these issues.
Thus, I would avoid this issue entirely and hold that it was
waived by the parties.
IV
In summary, I continue to believe that we ignore the
Supreme Court’s direction in Prima Paint and Buckeye at our
peril when we choose to consider Nagrampa’s contract-of-
adhesion claim. In any event, the arbitration clause here was
18968 NAGRAMPA v. MAILCOUPS, INC.
neither procedurally nor substantively unconscionable. I
would therefore affirm the judgment of the district court.
I respectfully dissent.
KOZINSKI, Circuit Judge, with whom Judges
O’SCANNLAIN and TALLMAN join, and with whom Judge
CLIFTON joins as to Part II, dissenting:
I agree with Judge O’Scannlain that Nagrampa’s uncons-
cionability challenge should have been decided by an arbitra-
tor, and that her contract with MailCoups was not
substantively unconscionable. I write separately to dispute the
majority’s conclusion that Nagrampa did not waive the right
to contest arbitrability after participating in the arbitration
proceedings for almost a year, and its finding that the arbitra-
tion was procedurally unconscionable.
I. Waiver
The majority reads Nagrampa’s February 6, 2002, letter to
the arbitrator as a “forceful” objection to arbitrability. Maj. at
18920. But Nagrampa never said she objected—she merely
expressed “serious concerns” about the “validity” of the arbi-
tration clause. This statement contained none of the traditional
indicia of a properly articulated objection. She never said “I
object,” and she provided no grounds for her purported con-
cerns. Most significantly, she never submitted the issue to the
arbitrator.
For an example of a real objection, we need look no farther
than that same letter, where Nagrampa clearly states that she
“objects” to MailCoups’s proposal to hold the arbitration in
Los Angeles. MailCoups and the arbitrator recognized this as
an objection, and everyone spent the better part of the next
eight months dealing with the matter. The parties submitted
NAGRAMPA v. MAILCOUPS, INC. 18969
written statements and argued by way of telephone conference
about where the proceedings should be held.1 The arbitrator
recognized his duty to resolve the issue and ultimately did so
by issuing a formal ruling on the matter.
There was no similar response to Nagrampa’s “concerns”
about arbitrability. MailCoups never briefed the issue, and the
arbitrator never ruled on it. And Nagrampa never explained
her legal theory or any facts on which her concerns were
based. Had they thought that Nagrampa was actually object-
ing to arbitrability, MailCoups and the arbitrator would cer-
tainly have turned to this issue first, rather than wasting
months resolving matters that are of no consequence if the
contract is not arbitrable in the first place. That Nagrampa’s
expression of “concerns” was met with silence, and that she
did nothing to press an arbitrability claim, fatally undermines
the majority’s conclusion that Nagrampa preserved her objec-
tion by presenting it to the arbitrator.2
While Nagrampa failed to make the faintest allusion to her
“concerns” about arbitrability during the course of the arbitra-
tion, she showed no such reticence when dealing with other
issues. In addition to fighting tooth-and-nail over venue, she
filed a broad discovery request, pressed four counterclaims
1
The majority says there were two conference calls, maj. at 18917, but
MailCoups’s attorney asserts that Nagrampa or her lawyer participated in
at least three calls, and Nagrampa does not contest this assertion in her
brief.
2
Even if one reads the February 6, 2002, letter as objecting to arbitra-
bility, I’m not sure how it helps Nagrampa. All it would mean is that
Nagrampa submitted the question to the arbitrator, thereby acquiescing in
his authority to decide the issue. It would certainly not preserve her right
to withdraw from the arbitration and have the arbitrability issue decided
de novo by a court. Because, unlike the respondent in First Options of
Chicago, Inc. v. Kaplan, 514 U.S. 938, 941 (1995), Nagrampa consented
to arbitration, she was not entitled to submit a question to the arbitrator yet
retain the right to de novo consideration of the same issue in judicial pro-
ceedings.
18970 NAGRAMPA v. MAILCOUPS, INC.
and sought to have fees waived. The majority dismisses these
activities as mere “procedural skirmishes,” but the record
shows that Nagrampa’s participation went to the heart of her
dispute with MailCoups. Take the discovery request:
Nagrampa asked for all documents describing “assumptions
made by Claimant in preparing the Earnings Claims” set forth
in the franchise offering circular, the economic and marketing
conditions existing at the time the offer was made and the
financial status of MailCoups’s existing franchisees. This is
far more information than Nagrampa would have needed to
contest arbitrability; it is information that would only have
been useful to her in litigating her case on the merits. When
the time came for raising counterclaims, Nagrampa didn’t
elaborate on her “concerns” about arbitrability. Instead, she
claimed that MailCoups violated multiple provisions of Cali-
fornia’s franchise law. Nagrampa’s actions bespeak not only
acquiescence in the arbitrator’s authority, but a desire to be a
full participant in the proceedings.
Thus, even if we could somehow read the February 6,
2002, letter as objecting to arbitrability, we must still consider
whether Nagrampa’s participation in the proceedings on mat-
ters that have no conceivable bearing on arbitrability was so
extensive as to waive any right she may have had to with-
draw. Waiver doctrine in this context is guided by the practi-
cal policies of the Federal Arbitration Act, which is designed
to give businesses access to a cheap and speedy means of
resolving disputes. See Dean Witter Reynolds, Inc. v. Byrd,
470 U.S. 213, 218-19 (1985). When a party actively partici-
pates in the arbitration process for many months and then sud-
denly withdraws, it wastes valuable time and resources. As
we stated in Fortune, Alsweet & Eldridge, Inc. v. Daniel, 724
F.2d 1355 (9th Cir. 1983) (per curiam), “[i]t would be unrea-
sonable and unjust to allow [a party] to challenge the legiti-
macy of the arbitration process, in which he had voluntarily
participated over a period of several months . . . .” Id. at 1357;
see also Comprehensive Accounting Corp. v. Rudell, 760 F.2d
138, 140 (7th Cir. 1985) (“It was then too late for [the parties
NAGRAMPA v. MAILCOUPS, INC. 18971
contesting arbitrability] to sit back and allow the arbitration to
go forward, and only after it was all done, and enforcement
was sought, say: oh by the way, we never agreed to the arbi-
tration clause. That is a tactic that the law of arbitration, with
its commitment to speed, will not tolerate.”).
The majority discounts Nagrampa’s participation in the
proceedings, because she never participated in a merits hear-
ing. But I don’t see why it should matter whether the hearings
in which Nagrampa or her lawyer participated were on the
merits or preliminary matters; in either event, the opposing
party suffered the unfairness of unnecessary cost and delay.
None of the cases on which the majority relies holds that par-
ticipation in the merits hearings is necessary for waiver. See
First Options, 514 U.S. at 9463; Textile Unlimited, Inc. v.
A..BMH & Co., 240 F.3d 781, 788 (9th Cir. 2001); Fortune,
724 F.2d at 1357; Ficek v. S. Pac. Co, 338 F.2d 655, 657 (9th
Cir. 1964). And the two cases on which the majority relies
most heavily, First Options and Textile Unlimited, don’t deal
with waiver at all, but rather with what conduct amounts to
consent to arbitrate where there is no written agreement to do
so. See First Options, 514 U.S. at 941; Textile Unlimited, 240
F.3d at 788.4 As the record in this case demonstrates, parties
3
First Options is particularly unhelpful to the majority, even if it were
on point. But see note 4 infra. The party objecting to arbitrability in First
Options appeared only to contest arbitrability; he did not participate in any
other aspect of the arbitration. 514 U.S. at 940-41 (explaining that the
Kaplans made an objection to arbitrability in their personal capacities
while Mr. Kaplan participated only as the principal shareholder of his
company for the remainder of the proceedings).
4
Contrary to what the majority claims, consent and waiver are quite dif-
ferent. There is no presumption that parties have consented to arbitration
and thus the party wishing to establish consent by conduct must do so by
making a clear showing that the opposing party’s conduct amounts to con-
sent. First Options, 514 U.S. at 944. But where the parties have consented
to arbitration by contract, as they did here, there is a presumption that all
issues between them are to be decided by the arbitrator. Id. In such cir-
cumstances, the party attempting to withdraw a question from arbitration
must affirmatively establish that it preserved the right to do so. Thus, con-
duct that is insufficient to establish consent may be more than sufficient
to establish waiver.
18972 NAGRAMPA v. MAILCOUPS, INC.
can waste considerable time and money before ever getting to
a hearing on the merits. It is contrary to the policies of the
Arbitration Act to hold, as the majority does, that waiver can
only occur once an arbitrator hears the merits, no matter how
deeply a party gets involved in the arbitration process. It is
also significant that Nagrampa didn’t attempt to get out of the
arbitration until she lost on venue and hired a new lawyer—at
which point, she picked up her marbles and left. Waiver doc-
trine, with its emphasis on fairness and efficiency, should dis-
courage such gamesmanship. And before today’s decision,
such was the law in this circuit. See Ficek, 338 F.2d at 657
(“A claimant may not voluntarily submit his claim to arbitra-
tion, await the outcome, and, if the decision is unfavorable,
then challenge the authority of the arbitrators to act.”). The
majority’s ruling that there can be no waiver until the merits
hearings means that parties can never be sure, until that point,
that they are litigating in the right forum. No matter how
much time and effort are spent in pre-merits proceedings, the
opposing party retains the right to abort the proceedings and
leave the other side behind to pay the fees. This rule contra-
dicts our caselaw and the policies of the Arbitration Act,
which seeks to promote swift and inexpensive resolution of
commercial disputes.
II. Procedural Unconscionability
After some handwringing, the majority finds that
Nagrampa has presented “minimal” evidence of procedural
unconscionability, but even this is an overstatement. To show
procedural unconscionability, Nagrampa was required to
prove surprise or oppression. Armendariz v. Found. Health
Psychcare Servs., Inc., 6 P.3d 669, 690 (Cal. 2000). She
comes nowhere close. First as to surprise: Nagrampa had the
contract for almost two months before she signed it, ample
time to read and digest its contents. She could afford to con-
sult a lawyer and had every incentive to do so. She was not
purchasing cell phone service or an everyday consumer good
—she was leaving a secure, six-figure job to invest her future
NAGRAMPA v. MAILCOUPS, INC. 18973
in a national franchise with one of her employer’s competi-
tors. Nagrampa admits that she carefully reviewed the finan-
cial elements of the contract and obtained confirmation of her
anticipated profit margin. She declared under penalty of per-
jury that she had read the agreement. Nagrampa doesn’t claim
that she was unaware of the arbitration clause when she
signed the contract. What Nagrampa does claim is that she
was “never informed” of the arbitration clause. This claim is
specious. Page one of the offering circular contains a heading
labeled “Risk Factors,” the first of which reads as follows:
THE FRANCHISE AGREEMENT REQUIRES
YOU TO ARBITRATE AND SUE IN MASSA-
CHUSETTS. OUT-OF-STATE ARBITRATION OR
LITIGATION MAY FORCE YOU TO ACCEPT A
LESS FAVORABLE SETTLEMENT. IT MAY
ALSO COST YOU MORE TO ARBITRATE OR
LITIGATE WITH US IN MASSACHUSETTS
THAN IN YOUR HOME STATE.
You’d have to be blind to miss this warning. There was no
surprise here.
So if this agreement is procedurally unconscionable, it must
be because Nagrampa was somehow oppressed. The majority
finds oppression because of the great financial disparity
between MailCoups and Nagrampa, and because MailCoups
presented Nagrampa with a form contract, the terms of which
were non-negotiable. But, these conditions are always present
where an individual signs up for a franchise, and yet
“[f]ranchise agreements are not per se unenforceable” in Cali-
fornia. Maj. at 18920 (quoting Indep. Ass’n of Mailbox Ctr.
Owners, Inc. v. Superior Court, 133 Cal. App. 4th 396, 407
(4th Dist. 2005) (internal quotation marks omitted)).
Franchisors are typically large enterprises with an estab-
lished business model and a suite of products and services that
enjoy widespread—often nationwide—recognition. That’s the
18974 NAGRAMPA v. MAILCOUPS, INC.
very point of buying a franchise rather than starting a business
from scratch. Franchisees tend to be individuals or families
who hope to achieve economic self-sufficiency by marketing
the franchisor’s products and services. The franchisor invari-
ably has financial resources that far exceed those of the pro-
spective franchisee, but “large business entities may have
relatively little bargaining power, depending on the identity of
the other contracting party and the commercial circumstances
surrounding the agreement.” A&M Produce Co. v. FMC
Corp., 135 Cal. App. 3d 473, 489-90 (Ct. App. 1982).
Likewise, franchise agreements are typically offered by
means of form contracts, consistent with the standardized
nature of the franchise business model. And, California courts
have recognized that “the fact that [a] provision for arbitration
is contained in a contract of adhesion will not, of itself, render
the provision unenforceable.” Keating v. Superior Court, 645
P.2d 1192, 1198 (Cal. 1982), rev’d on other grounds, South-
land Corp. v. Keating, 465 U.S. 1 (1984). So, if franchise
agreements in general and form arbitration clauses in particu-
lar are not per se oppressive, we must find a way to separate
enforceable agreements from those that are not. To do this, we
must examine closely the facts and circumstances of this
negotiation. When we do so, it is perfectly clear Nagrampa
was not oppressed.
First, Nagrampa is a sophisticated businesswoman with
special expertise in the direct mail business. In her complaint,
Nagrampa states: “On or about July 1998 plaintiff prepared a
spreadsheet reflecting her prospective costs and profits based
on conversations with MAILCOUPS INC.’s agent . . . .” In
her declaration, she states:
I reviewed the materials from SuperCoups and dis-
covered that instead of calculating costs on a line by
line basis, SuperCoups charged its franchisees an
inflated lump sum that is later reduced by postage
overcharge refund and other production credits.
NAGRAMPA v. MAILCOUPS, INC. 18975
The majority’s romantic vision of Nagrampa as a modern-day
Candide is shattered by her ability to do complicated financial
forecasting and her easy use of terms such as “inflated lump
sum,” “postage overcharge refund” and “production credits.”
In reality, Nagrampa was a savvy businesswoman who knew
the direct mail industry inside and out, and was more than
capable of taking care of herself. To suggest otherwise denies
Nagrampa the respect a woman in her position deserves.
All this is easily dismissed, according to the majority,
because Nagrampa “apparently” didn’t have “specialized edu-
cation or training in the field.” Maj. at 18926. But even if this
were supported by the record—and I’ve found nothing to sup-
port it—it’s not clear why it matters. Nagrampa obviously had
what it takes to be a high-level executive in this very industry.
Whether she gained these skills through formal training, expe-
rience, a knack for business, or a combination of the three, the
point is that if Nagrampa was not sophisticated enough to sign
up as a direct-mail franchisee, nobody is.
It’s also significant that Nagrampa was under no economic
pressure because she held a lucrative job with another com-
pany. That Nagrampa continued to work at her six-figure job
while she considered whether to sign the contract meant that
she was negotiating from a position of strength. She could
have easily said “no” at any time and sought another franchise
opportunity or kept her job and six-figure salary. California
courts have recognized that inequality of bargaining power
“depends in part on the absence of meaningful choice by a
contracting party; and even though a contract may be adhe-
sive, the existence of ‘meaningful’ alternatives available to
such contracting party in the form of other sources of supply
tends to defeat any claim of unconscionability.” Dean Witter
Reynolds, Inc. v. Superior Court, 211 Cal. App. 3d 758, 771
(Ct. App. 1989).
The majority tries to distinguish Dean Witter by pointing
out that the attorney there “had a great degree of experience
18976 NAGRAMPA v. MAILCOUPS, INC.
with financial service contracts,” maj. at 18926, but misses
the point of that case entirely. In Dean Witter, the plaintiff, an
attorney who specialized in litigation against financial institu-
tions, purchased a self-directed IRA from Dean Witter and
sued to contest the contract’s fee provisions. Dean Witter, 211
Cal. App. 3d at 762. The court held the contract was not pro-
cedurally unconscionable, because plaintiff had failed to show
“lack [of] a meaningful choice” in where to purchase an IRA.
Id. at 772. That the plaintiff in Dean Witter was an experi-
enced lawyer while Nagrampa is an experienced business-
woman is a distinction without a difference. Just as the plain-
tiff in Dean Witter could have purchased an IRA from another
financial institution, so Nagrampa could have looked for
another franchisor—all the while continuing to draw her sal-
ary. Dean Witter cites numerous cases, from California and
elsewhere, that reach precisely the same conclusion: A party
who has a meaningful choice cannot be oppressed. See id. at
769-72 (citing Kurashige v. Indian Dunes, Inc., 200 Cal. App.
3d 606, 614 (Ct. App. 1988); Parr v. Superior Court, 139 Cal.
App. 3d 440, 444 (Ct. App. 1983); Henningsen v. Bloomfield
Motors, Inc., 161 A.2d 69, 87, 94 (N.J. 1960)).
Stirlen v. Supercuts, Inc., 51 Cal. App. 4th 1519 (Ct. App.
1997), turns on this very point. In Stirlen, the corporation did
not disclose the arbitration requirement to a sophisticated
executive until after he had already accepted employment
with the defendant. Id. at 1534. By that time, he had quit his
previous “highly paid position with a major corporation,” id.
at 1533, and thus was dependent on his new job for his liveli-
hood. That is a very different situation from the one here,
where Nagrampa could have rejected the franchise agreement
and still have had an income with which to pay the mortgage
and put food on the table.
Our case is the antithesis of Stirlen. As Nagrampa admits,
MailCoups approached her about the possibility of opening a
franchise and pursued her aggressively to keep the negotia-
tions alive. As the solicited party, with a good income and a
NAGRAMPA v. MAILCOUPS, INC. 18977
secure job with one of MailCoups’s competitors, Nagrampa
held the trump card in the negotiations: She could have “just
said no,” and forced MailCoups to go scrambling for the busi-
ness partner it seems to have desperately needed. Walking
away from the deal would have caused her no loss of liveli-
hood, no inconvenience of any sort, since her sole motivating
factors were self-interest and ambition. These are swell rea-
sons, to be sure, but hardly the stuff of economic duress.
Under these circumstances, I cannot conclude that the con-
tract negotiations were oppressive, nor that the resulting con-
tract was procedurally unconscionable.
I’d be much less troubled by the majority’s contrary con-
clusion if my colleagues took seriously the sliding scale test
they discuss in the procedural unconscionability section of the
opinion. Maj. at 18922. After all, the difference between no
procedural unconscionability (as I see it) and “minimal” or
“slight” procedural unconscionability (as the majority sees it)
should make no difference unless there is evidence of over-
whelming substantive unconscionability to offset the “mini-
mal” showing on the procedural side of the scale. And, as
Judge O’Scannlain shows, if there is substantive unconsciona-
bility at all, it is nowhere near overwhelming; the majority
doesn’t even pretend that it is.
As it is, the majority pays only lip service to the sliding
scale test. It briefly discusses the test in the procedural uncon-
scionability part of its opinion, but then forgets all about it
when it gets to the other end of the sliding scale. The majority
does say that the evidence of substantive unconscionability is
“strong enough” to offset the “slight” evidence of procedural
unconscionability. Maj. at 18943. But this merely states the
conclusion the majority wants to reach; it does not explain
why the substantive unconscionability it finds is of such a
“high degree” as to offset the “slight” or “minimal” degree of
procedural unconscionability. See, e.g., Nyulassy v. Lockheed
Martin Corp., 120 Cal. App. 4th 1267, 1286-87 (Ct. App.
2004).
18978 NAGRAMPA v. MAILCOUPS, INC.
So what we’re left with is a sophisticated executive who
willingly left a six-figure job to buy a franchise in an industry
where she’d been doing business for years. There was no
coercion, surprise or duress in the negotiations—indeed,
Nagrampa was being aggressively courted by MailCoups. She
had the contract for two months before she signed it and could
have taken longer if she’d liked. But because she might be
forced to spend something like $800, see O’Scannlain dissent
at 18966, in order to arbitrate in the venue she freely agreed
to, the arbitration clause is thrown out the window.
As with most paternalistic endeavors, the majority’s opin-
ion carries the seeds of great irony. By invoking the uncon-
scionability doctrine to protect “the little guy” in this case, the
majority has construed California franchise law in a way that
will result in fewer opportunities for other “little guys” in the
future. The ever-growing cost of litigation is one of the most
serious and uncontrollable risks faced by modern businesses.
As the California courts have recognized, arbitration helps
businesses manage this risk by “providing for resolution of
disputes in a presumptively less costly, more expeditious, and
more private manner by an impartial person or persons typi-
cally selected by the parties themselves.” Keating, 645 P.2d
at 1198. But, according to the majority, only those who
already control the means of production or possess vast eco-
nomic resources on par with those of a major corporation are
sophisticated enough to enter into enforceable arbitration
agreements. This undermines the important policies of the
Arbitration Act, denying potential first-time business owners
the very benefits Congress meant to secure for them. The
result is that fewer aspiring business owners—many of whom
are minorities and first generation Americans—will find
franchisors willing to offer them opportunities like the one
MailCoups offered to Nagrampa.
While I believe that this contract is entirely valid under
California law as construed by the courts in that state, the
majority’s exegesis of unconscionability doctrine does point
NAGRAMPA v. MAILCOUPS, INC. 18979
to a disturbing trend of judicial hostility to form contracts.
Commercial transactions today are typically governed by
standardized contracts, the terms of which are non-negotiable.
The era of the individually-negotiated contract—like that of
the hand-crafted flivver—is fading from living memory. As
the majority opinion demonstrates, however, California courts
have shown a lamentable tendency to hold the arbitration
clauses in such contracts unenforceable. The effect of these
developments is that such provisions are now easily chal-
lenged on grounds of unconscionability, routinely channeling
contract disputes away from arbitrators and into the courts.
Buckeye Check Cashing, Inc. v. Cardegna, 126 S. Ct. 1204,
1209 (2006), stands squarely for the proposition that state law
may not be used to so easily divest arbitrators of their author-
ity. I would not be the least surprised to see the Supreme
Court of the United States soon take a close look at whether
the unconscionability doctrine, as developed by some state
courts, undermines the important policies of the Arbitration
Act.