McCarthy v. Stifel, Nicolaus & Company Incorporated
ORDER granting 12 Motion to Compel. The clerk of court shall enter judgment dismissing plaintiff's complaint without prejudice. Signed by Judge H Russel Holland on 8/29/16.(KGM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
KENTON V. McCARTHY,
STIFEL, NICOLAUS & COMPANY
Motion to Compel Arbitration
Defendant moves to compel arbitration.1 This motion is opposed.2 Oral argument
was not requested and is not deemed necessary.
Plaintiff is Kenton V. McCarthy.
Defendant is Stifel, Nicolaus & Company,
Plaintiff began working for Stone & Youngberg (S&Y), “a regional, privately-held
investment banking firm based in San Francisco, California, in or about 2002 as a Vice
Docket No. 12.
Docket No. 13.
President/Institutional Fixed-Income Broker.”3 In 2011, defendant, “a national, publically
traded brokerage firm, based in St. Louis Missouri, acquired S&Y.”4 Defendant retained
some S&Y employees, including plaintiff.5
On August 22, 2011, plaintiff “signed a Continuation Letter agreeing to continue [his]
employment with S&Y during the acquisition and to continue [his] employment with Stifel
according to the terms and conditions of th[e] letter once the acquisition was complete.”6
The Continuation Letter provided that plaintiff would
receive $87,500.00 in the form of a Demand Promissory Note....
The promissory note will be forgiven over four years in
accordance with the terms set forth in the attached promissory
note, which you will sign on the effective date of the acquisition
of Stone & Youngberg LLC by Stifel, Nicolaus & Company,
The Continuation Letter also provided that plaintiff would “receive $87,500.00 in the form
of stock units under the Stifel Wealth Accumulative Plan.... These units will have a base
Complaint at 1, ¶ 7, Docket No. 1.
Id. at 2, ¶ 8.
Id. at ¶¶ 9-10.
Julie Flynn’s Declaration in Support of Defendant’s Motion to Compel Arbitration
at 2, ¶ 7 and Exhibit 1 thereto, Exhibit A, Motion to Compel Arbitration, Docket No. 12.
Continuation Letter at 1, ¶ B, Exhibit 1, Flynn’s Declaration, Exhibit A, Motion to
Compel Arbitration, Docket No. 12.
year of 2011, will cliff vest after completing the fourth year and will be distributed in
January 2016.”8 The Continuation Letter contained an arbitration clause that provided:
This letter agreement shall be governed by and construed in
accordance with the laws of the State of Missouri without
giving effect to any choice of law or conflicts of law principles.
Any controversy or dispute arising between you and the Firm
regarding your employment or separation there from, including any and all statutory claims or claims at common law, shall
be submitted for arbitration before the Financial Industry
Regulatory Authority (‘FINRA’) or successor agency, as the
Firm chooses, in accordance with the applicable provisions of
the arbitration rules of such organizations. A copy of the
current rules is available at:
You further acknowledge that you have freely and voluntarily
agreed to arbitrate all of your claims as a freely negotiated term
and condition of your employment with the Firm, and that you
have read and reviewed the applicable arbitration rules.
On September 29, 2011, plaintiff signed the promissory note.10 The promissory note
also contained an arbitration clause, which provided:
Employee agrees that any controversy or dispute arising under
this Note, or out of Employee’s employment by Stifel (including, but not limited to, claims arising under the Civil Rights Act
Id. at ¶ C.
Id. at 2, ¶ F.
Exhibit 2, Flynn’s Declaration, Exhibit A, Motion to Compel Arbitration, Docket
of 1964, the Civil Rights Act of 1991, the Age Discrimination in
Employment Act of 1967, the Age Discrimination in Employment Act, the Family Medical Leave Act and analogous state
statutes) shall be submitted for arbitration upon demand of
either party in St. Louis County, Missouri, in accordance with
the rules of FINRA Dispute Resolution or its successor.
Employee agrees that arbitration shall be the exclusive remedy
and that the results of such arbitration shall be final and
binding upon him. Judgment upon any award rendered by an
arbitration panel may be entered in any state or federal court of
Plaintiff alleges that while employed by defendant, he “suffered from medical
impairments related to his heart, including Atrial Fibrillation (‘A-Fib’), which substantially
limits his ability to perform numerous life activities.”12 Plaintiff alleges that he requested
reasonable accommodations,13 but that defendant failed to provide the requested
accommodations;14 that defendant “failed to engage in the interactive process to discuss
potential reasonable accommodations[,]”15 that defendant put him on a performance
improvement plan after he requested reasonable accommodations,16 that defendant treated
Id. at 3.
Complaint at 2, ¶ 16, Docket No. 1.
Id. at 2, ¶ 19; 3, ¶ 23 & 4, ¶ 38.
Id. at 2, ¶ 20; 3, ¶ 25 & 4, ¶ 39.
Id. at 3, ¶ 21; see also 3, ¶ 25 & 4, ¶ 39.
Id. at 4, ¶ 40.
him differently than similarly situated non-disabled employees,17 and that defendant
ultimately terminated him because of his disability.18 Based on these allegations, plaintiff
asserts three claims under the Americans with Disabilities Act: 1) a failure to accommodate
claim, 2) a discrimination claim, and 3) a retaliation claim.
Defendant now moves to compel plaintiff to arbitrate his claims.
“With limited exceptions, the Federal Arbitration Act (FAA) governs the
enforceability of arbitration agreements in contracts involving interstate commerce.”
Kramer v. Toyota Motor Corp., 705 F.3d 1122, 1126 (9th Cir. 2013). Under the FAA,
arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such
grounds that exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2.
“Accordingly, while the Supreme Court has emphasized that the FAA clearly enunciates
a congressional intention to favor arbitration, general contract defenses such as ...
unconscionability, grounded in state contract law, may operate to invalidate arbitration
agreements[.]” Kam-Ko Bio-Pharm Trading Co. Ltd-Australasia v. Mayne Pharma (USA)
Inc., 560 F.3d 935, 940 (9th Cir. 2009) (internal citations omitted). “In determining whether
an arbitration clause is unenforceable, a federal court sitting in diversity must apply the
Id. at 6, ¶ 52.
Id. at 5, ¶ 42.
relevant state law.” Id. “If the court finds that an arbitration clause is valid and
enforceable, the court should stay or dismiss the action to allow the arbitration to proceed.”
“‘A motion to compel arbitration is decided according to the standard used by
district courts in resolving summary judgment motions pursuant to Rule 56, Fed. R. Civ.
P.’” Longnecker v. American Exp. Co., 23 F. Supp. 3d 1099, 1105 (D. Ariz. 2014) (quoting
Coup v. Scottsdale Plaza Resort, LLC, 823 F. Supp. 2d 931, 939 (D. Ariz. 2011)). “Where, as
here, a party attempts to litigate claims covered by a commercial contract containing an
arbitration agreement subject to the FAA, the court must determine ‘(1) whether a valid
agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the
dispute at issue.’” Lowden v. T-Mobile USA, Inc., 512 F.3d 1213, 1217 (9th Cir. 2008)
(quoting Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000)).
Here, there is no dispute that the two arbitration agreements cover plaintiff’s ADA claims.
Rather, the dispute focuses on whether the arbitration agreements are valid and
Plaintiff argues that the arbitration agreements are unenforceable because they are
unconscionable. See A.R.S. § 47-2302(A) (“If the court as a matter of law finds the contract
or any clause of the contract to have been unconscionable at the time it was made the court
may refuse to enforce the contract”). “Because [p]laintiff [is an] Arizona resident, w[as]
employed in Arizona, and the parties do not dispute that Arizona law applies, Arizona
law determines whether the subject arbitration agreement[s are] valid” and enforceable.
Coup 823 F. Supp. 2d at 941.
“Arizona courts have held that unconscionability can be either procedural or
substantive.” Batory v. Sears, Roebuck and Co., 456 F. Supp. 2d 1137, 1139 (D. Ariz. 2006).
“Either doctrine can provide an independent defense to enforceability.” Duenas v. Life
Care Centers of Amer., Inc., 336 P.3d 763, 768 (Ariz. Ct. App. 2014). A plaintiff has “‘a high
bar to meet in demonstrating that an arbitration agreement is unconscionable.’”
Longnecker, 23 F. Supp. 3d at 1108 (quoting Coup, 823 F. Supp. 2d at 947).
“‘Procedural unconscionability addresses the fairness of the bargaining process,
which is concerned with unfair surprise, fine print clauses, mistakes or ignorance of
important facts or other things that mean bargaining did not proceed as it should.’”
Duenas, 336 P.3d at 768 (quoting Clark v. Renaissance West, L.L.C., 307 P.3d 77, 79 (Ariz.
Ct. App. 2013)).
Plaintiff argues that the arbitration agreements are procedurally
unconscionable because they were provided to him on a “take-it-or-leave” basis. Plaintiff
avers that he “did not negotiate the terms” of the arbitration agreements and that agreeing
The Continuation Letter provides that Missouri law governs that agreement, but
defendant contends, and plaintiff does not dispute, that there is no difference between the
relevant Missouri and Arizona law.
to the terms of the agreements “was a condition of [his] employment with Stifel.”20 Plaintiff
cites to two California cases in support of his argument.21 In Chavarria v. Ralphs Grocery
Co., 733 F.3d 916, 923 (9th Cir. 2013), the court found an arbitration agreement procedurally
unconscionable under California law, in part, because it had been offered on a “take-it-orleave” basis, such that “Chavarria could only agree to be bound by the policy or seek work
elsewhere.” Similarly, in Ferguson v. Countrywide Credit Industries, Inc., 298 F.3d 778, 784
(9th Cir. 2002), the court found an arbitration agreement unconscionable under California
law, in part, because “the arbitration agreement was imposed as a condition of employment
and was non-negotiable.”
Plaintiff is basically arguing that the arbitration agreements were contracts of
adhesion, but “‘[t]here is [no] Arizona law supporting the assertion that a finding of
adhesion equates to a finding of procedural unconscionability.’” Longnecker, 23 F. Supp.
3d at 1109 (quoting R & L Ltd. Investments, Inc. v. Cabot Inv. Properties, LLC, 729 F. Supp.
2d 1110, 1115 (D. Ariz. 2010)). Under Arizona law, “[c]ontracts of adhesion are not per se
unenforceable.” Id. “A contract of adhesion is only unenforceable if it does not fall within
the reasonable expectations of the weaker party and if the contract is unconscionable.” Id.
Declaration of Kenton V. McCarthy at 1, ¶¶ 10-11, Exhibit 1, Plaintiff’s Response
to Defendant’s Motion to Compel Arbitration, Docket No. 13.
Plaintiff cites to California law throughout his opposition because he contends that
A.R.S. § 47-2302 is identical to California Civil Code § 1670.5.
Because “[p]laintiff advances no reasonable expectations arguments, the [substantive]
unconscionability analysis below would ... be the dispositive inquiry.” Jones v. General
Motors Corp., 640 F. Supp. 2d 1124, 1130 (D. Ariz. 2009).
But if the court were to do a reasonable expectations analysis, the court would
conclude that the arbitration agreements fall within the reasonable expectations of plaintiff.
In a reasonable expectations analysis “in the employment context, a court must ... consider
whether the employer had ‘reason to believe that [plaintiff] would not have accepted the
agreement if [he] had known that the agreement contained the particular [arbitration]
term.’” Coup, 823 F. Supp. 2d at 945 (quoting Harrington v. Pulte Home Corp., 119 P.3d
1044, 1050 (Az. Ct. App. 2005)).
A reason to believe:
may be (1) shown “by the prior negotiations,” (2) “inferred
from the circumstances,” (3) “inferred from the fact that the
term is bizarre or oppressive,” (4) proved because the term
“eviscerates the non-standard terms explicitly agreed to,” or (5)
provided if the term “eliminates the dominant purpose of the
Id. (quoting Harrington, 119 P.3d at 1050). “Additionally, the doctrine of reasonable
expectations ‘(6) requires drafting of provisions which can be understood if the [employee]
does attempt to check on his rights’ and consideration of ‘(7) any other facts relevant to the
issue of what [the party] reasonably expected in this contract.’” Id. (quoting Harrington,
119 P.3d at 1051).
First of all, plaintiff surely knew that the Continuation Letter and the promissory
note contained arbitration clauses. This is not a case of an unwary consumer signing a
standard agreement in which an arbitration clause is buried somewhere in pages and pages
of fine print. Rather, in this case, plaintiff, who had been employed in the financial services
industry for nearly a decade, was signing documents that provided him with a substantial
benefit, in the form of $87,500 in loan forgiveness and $87,500 in stock options. The
documents in question were relatively short (the Continuation Letter was 2 pages and the
promissory note was 4 pages) and the arbitration clause in each agreement was prominently displayed. In light of these facts, it would not be reasonable to infer that plaintiff did
not know that the agreements contained arbitration clauses.
But even if plaintiff did not know that the agreements contained arbitration clauses,
there is no evidence to support a conclusion that defendant had reason to believe that
plaintiff would not have signed the Continuation Letter and the promissory note if he had
known about the arbitration clauses. There is no evidence of any prior negotiations
between plaintiff and defendant, the arbitration terms are not bizarre or oppressive, the
arbitration clauses did not eviscerate any non-standard terms, and the arbitration clauses
did not eliminate the dominant purpose of the transaction, which was to provide plaintiff
with $87,500 in loan forgiveness and $87,500 in stock units for becoming a Stifel employee.
Thus, even if the arbitration agreements were contracts of adhesion, they are not
But even if the arbitration agreements are not procedurally unconscionable, which
they are not, plaintiff argues that they still cannot be enforced because they are substantively unconscionable. “Substantive unconscionability addresses ‘the actual terms of the
contract and ... the relative fairness of the obligations assumed.’” Duenas, 336 P.3d at 769
(quoting Maxwell v. Fidelity Financial Srvcs., Inc., 907 P.2d 51, 58 (Ariz. 1995)). “Relevant
factors include whether the contract terms are so one-sided as to oppress or unfairly
surprise an innocent party, whether there is an overall imbalance in the obligations and
rights imposed, and whether there is a significant cost-price disparity.” Id.
Plaintiff first argues that the arbitration agreements are substantively unconscionable
because they do not allow for adequate discovery. Plaintiff relies on authority from
California in support of this argument. California courts have held that an arbitration
agreement is substantively unconscionable if it does not allow for adequate discovery,
particularly in cases involving statutory claims. For example, in Fitz v. NCR Corp., 118 Cal.
App. 4th 702, 709 (Cal. Ct. App. 2004), the plaintiff asserted a Fair Employment and
Housing Act age discrimination claim along with common law claims. The arbitration
agreement in question “limit[ed] discovery to the sworn deposition statements of two
individuals and any expert witnesses expected to testify at the arbitration hearing.” Id. at
716. “No other discovery [was] allowed unless the arbitrator f[ound] a compelling need to
allow it. The [agreement] require[d] the arbitrator to limit discovery as specified in the
agreement unless the parties c[ould] demonstrate that a fair hearing would be impossible
without additional discovery.” Id. The court held that these limitations “fail[ed] to ensure
that Fitz is entitled to discovery sufficient to adequately arbitrate her claims.” Id. at 719.
Arizona courts, however, have rejected the argument that arbitration agreements
that limit discovery are substantively unconscionable. For example, in Wernett v. Service
Phoenix, LLC, Case No. CIV 09–168–TUC–CKJ, 2009 WL 1955612, at *6 (D. Ariz. July 6,
2009), the plaintiff argued that “the failure of the [Arbitration] Agreement to incorporate
the relevant rules of civil procedure, the Agreement’s limitation of depositions, and the
Agreement’s requirement of subpoenas to obtain documents and depose a representative
of Service exhibits the unconscionability of the Agreement.” The court rejected this
argument based on Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 31 (1991), in which
the Court found that
“there ha[d] been no showing ... that the ... discovery provisions, which allow for document production, information
requests, depositions, and subpoenas, will prove insufficient to
allow [plaintiff] ... a fair opportunity to present [her] claims.
Although those procedures might not be as extensive as in the
federal courts, by agreeing to arbitrate, a party trades the
procedures and opportunity for review of the courtroom for
the simplicity, informality, and expedition of arbitration.”
Id. (quoting Gilmer, 500 U.S. at 31). Similarly, the Wernett court found that “[a]lthough
discovery is limited pursuant to the terms of the Agreement, it is not precluded. Indeed,
although the parties are limited in the number of depositions, they are not limited in the
number of interviews they are permitted. This provision is cost-saving to all parties and
the [c]ourt finds this term is not unconscionable.” Id. at *7.
Here too, plaintiff has failed to make a showing that the discovery permitted under
the FINRA rules would be inadequate. As for depositions, FINRA Rule 13510 provides that
“[d]epositions are strongly discouraged in arbitration. Upon motion of a party, the panel
may permit depositions, but only under very limited circumstances[.]”22 Plaintiff argues
that this limitation on depositions is even more restrictive than that in Fitz, where the
plaintiff was allowed to take two fact witness depositions as well as depositions of experts.
But here, under the FINRA rules, plaintiff can only take depositions if the arbitration panel
allows him to do so, which plaintiff suggests is unlikely.
However, one of the limited circumstances listed in FINRA Rule 13510 is “in cases
involving claims of statutory employment discrimination, if necessary and consistent with
the expedited nature of arbitration[.]”23 This indicates that it is much more likely that
plaintiff would be permitted to take depositions, if he so requested, than he contends.
A copy of FINRA Rule 13510 is attached as Exhibit 2 to Plaintiff’s Response to
Defendant’s Motion to Compel Arbitration, Docket No. 13.
Plaintiff also argues that the written discovery provided for under the FINRA rules
is inadequate. FINRA Rule 13506 provides:
Parties may request documents or information from any party
by serving a written request directly on the party. Requests for
information are generally limited to identification of individuals, entities, and time periods related to the dispute; such
requests should be reasonable in number and not require
narrative answers or fact finding. Standard interrogatories are
generally not permitted in arbitration.
Plaintiff contends that this limited ability to obtain written discovery will not allow him to
adequately litigate his claims. Plaintiff avers that he does not know which individuals were
involved or who made the final decision to 1) not provide him with reasonable accommodations, 2) not engage in the interactive process, 3) take away many of his long-time, revenue
producing clients, 4) take him off potential matters in which he had had substantial
communications with prospective clients, 5) deny his request to lead sales efforts in the
college and university market, 6) pull him off several large California accounts, 7) put him
on a performance improvement plan, 8) terminate his employment, and 9) state on an
internal form that he was discharged for failure to meet performance expectations.25
Plaintiff suggests that he will not be able to obtain this information under the FINRA rules.
A copy of FINRA Rule 13506 is attached as Exhibit 3 to Plaintiff’s Response to
Defendant’s Motion to Compel Arbitration, Docket No. 13.
McCarthy Declaration at 1-2, ¶¶ 12-19 & 21, Exhibit 1, Plaintiff’s Response to
Defendant’s Motion to Compel Arbitration, Docket No. 13.
Plaintiff has averred that he does not know the identity of the persons involved in
certain decisions. FINRA Rule 13506 plainly states that requests for information can ask for
the identity of individuals. There is no reason why, under the FINRA rules, plaintiff could
not get the information he avers he needs.
Plaintiff also avers that he has reason to believe that there were 23 other employees
who had performance metrics lower than his but that these employees were not
terminated.26 Plaintiff argues that because of the limited scope of discovery allowed under
FINRA Rule 13506, he will not be able to obtain the information that he needs to show that
these employees were similarly situated and that he was treated differently from them.
But, FINRA Rule 13506 allows plaintiff to request documents that “relate to the
matter in controversy.”27 There is no reason why, under the FINRA rules, plaintiff could
not obtain documents and information about the 23 other employees.
Plaintiff also avers that he “complied with all of Stifel’s policies and procedures
regarding refraining from storing corporate documentation/information on anything other
than corporate hardware and refraining from taking corporate documentation/information
out of [his] office.”28 Plaintiff thus argues that he has even less documentation/information
Id. at 2, ¶ 20.
Exhibit 3, Plaintiff’s Response to Defendant’s Motion to Compel, Docket No. 13.
McCarthy Declaration at 3, ¶ 25, Exhibit 1, Plaintiff’s Response to Defendant’s
in his possession than a typical former employee and the limitations on discovery will
prevent him from adequately pursuing his claims. But, as discussed above, under FINRA
Rule 13506, plaintiff can obtain documents and other information related to the matters in
controversy. The fact that he has complied with defendant’s policies and procedures
regarding corporate documents and information does not mean that he will lack sufficient
opportunity to present his claims during arbitration.
Plaintiff also makes reference to the
Initial Discovery Protocols for employment cases alleging adverse actions that courts in this
district use.29 The Protocols call for the early production of discovery in employment
discrimination cases. The discovery that must be produced under the Protocols is “[t]he
information and documents identified as those most likely to be requested automatically
by experienced counsel” in adverse employment actions.30
These documents and
information differ from “initial disclosures pursuant to F.R.C.P. 26(a)(2) because they focus
on the type of information most likely to be used in narrowing issues for employment
discrimination cases.”31 The Protocols require the defendant to produce, among other
Motion to Compel, Docket No. 13.
A copy of the Standing Order for Certain Employment Cases is attached as Exhibit
4 to Plaintiff’s Response to Defendant’s Motion to Compel Arbitration, Docket No. 13.
Id. at 4.
things, documents containing communications concerning the factual allegations of the
plaintiff’s complaint, documents concerning the formation and termination of the
employment relationship, and documents relied on to make the employment decisions at
issue.32 The defendant must also identify the persons involved in any of the adverse
employment actions and any other persons believed to have “knowledge of the facts
concerning the claims or defenses at issue” and provide “a brief description of that
knowledge.”33 Plaintiff argues that he will not have access to any of this information if he
has to arbitrate his claims.
The FINRA rules allow plaintiff to obtain all the documents and information that he
would receive under the Initial Discovery Protocols. The discovery that plaintiff may take
under the FINRA rules is adequate. Plaintiff will not be deprived of a fair opportunity to
present his claims during arbitration.
Second, plaintiff argues that the arbitration agreements are substantively
unconscionable because they require him to incur costs that he would not incur if he
litigates his claims in court. Plaintiff cites to Armendariz v. Foundation Health Psychcare
Services, Inc., 6 P.3d 669 (Cal. 2000), in support of this argument. There, the court
conclude[d] that when an employer imposes mandatory
arbitration as a condition of employment, the arbitration
Id. at 6-8.
Id. at 8.
agreement or arbitration process cannot generally 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
Id. at 687.
Under FINRA Rule 13802(d)(2), plaintiff may be assessed any of the following: 1)
costs for recording a prehearing conference, 2) subpoena costs, 3) reasonable costs of
appearances of witnesses and production of documents without subpoenas, 4) costs
associated with an “explained decision”, 5) fees imposed for requesting a postponement of
a hearing, and 6) costs of obtaining a transcription and/or stenographic record of a
hearing.34 Plaintiff argues that with the exception of the costs associated with taking a
deposition, the foregoing costs and fees are not costs that he would have to bear if he
litigates this matter in court.
Under Arizona law, “‘[a]n arbitration agreement may be substantively unconscionable if the fees and costs to arbitrate are so excessive as to ‘deny a potential litigant the
opportunity to vindicate his or her rights.’” Duenas, 336 P.2d at 769 (quoting Clark, 307
P.3d at 79). “To show this type of unconscionability, the party challenging the arbitration
agreement must present specific, non-speculative evidence regarding several factors.” Id.
“First, the party must present reasonably certain evidence regarding the probable costs of
Copies of the relevant FINRA Rules are attached as Exhibits 5-11 to Plaintiff’s
Response to Defendant’s Motion to Compel Arbitration, Docket No. 13.
arbitration; second, he must present individualized evidence regarding h[is] inability to
pay those costs.” Id. at 769-70. “The court also must consider whether the arbitration
agreement or relevant arbitration rules allow for waiver or reduction of costs based on
financial hardship.” Id. at 770.
All plaintiff has presented here is speculation. He has submitted no specific facts to
establish actual costs or his inability to pay such costs. Moreover, some of the fees that
plaintiff contends he may incur in arbitration are also fees that he might incur if he were to
litigate his claims in court. Besides deposition costs, plaintiff may also have to pay
subpoena costs and transcription costs. Because plaintiff has not shown that the costs of
arbitrating his claims are excessive, this is not a ground for finding the arbitration clauses
Because the arbitration agreements are not procedurally or substantively
unconscionable, defendant’s motion to compel arbitration35 is granted. The clerk of court
shall enter judgment dismissing plaintiff’s complaint without prejudice.
DATED at Anchorage, Alaska, this 29th day of August, 2016.
/s/ H. Russel Holland
United States District Judge
Docket No. 12.
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