Holl v. U.S. Dist. Court for the N. Dist. of Cal.
| Decision Date | 30 May 2019 |
| Docket Number | No. 18-70568,18-70568 |
| Parties | IN RE Randall HOLL, Randall Holl, individually, on behalf of others similarly situated, and as a representative of the class, Petitioner, v. United States District Court for the Northern District of California, Oakland, Respondent, United Parcel Service, Inc., Real Party in Interest. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Adam W. Hansen (argued), Apollo Law LLC, Minneapolis, Minnesota; Matthew C. Helland, Nichols Kaster LLP, San Francisco, California; Brock J. Specht and Kai H. Richter, Nichols Kaster LLP, Minneapolis, Minnesota; for Petitioner.
Deanne E. Maynard (argued), Morrison & Foerster LLP, Washington, D.C.; Benjamin J. Fox and Gregory B. Koltun, Morrison & Foerster LLP, Los Angeles, California; Joel Jacinto Ramirez, James R. Sigel, and Stacey M. Sprenkel, Morrison & Foerster LLP, San Francisco, California; for Real Party in Interest.
Anne Richardson and Magdalena Reyes Bordeaux, Public Counsel, Los Angeles, California, for Amici Curiae Public Counsel, Public Good Law Center, and Public Law Center.
Petition for Writ of Mandamus, D.C. No. 4 :16-cv-05856-HSG
Before: Michael Daly Hawkins and Milan D. Smith, Jr., Circuit Judges, and Barbara M. G. Lynn,* District Judge.
This case tests the outer limits of what constitutes a "reasonably conspicuous" provision as part of the terms of usage so prevalent in the adhesion contracts of modern internet commerce. Here, Randall Holl employs the extraordinary writ of mandamus to test the district court’s conclusion that United Parcel Service, Inc.’s ("UPS’s") arbitration provision passed muster. Viewing Holl’s challenge through the lens of the strict requirements of Bauman v. United States District Court , 557 F.2d 650, 654–55 (9th Cir. 1977), we deny the writ, noting that UPS has since made its arbitration provision more apparent.
On June 28, 2016, Holl shipped a package from the UPS Store in Healdsburg, California to Big Lake, Minnesota. The store charged an additional fee of $ 5.92 based on the shipment’s remote destination (the "Delivery Area Surcharge"). According to Holl, the Delivery Area Surcharge for this shipment should have been $ 3.15 as advertised in UPS’s Retail Rates. Based on the rate discrepancy, Holl filed a putative class action complaint against UPS, alleging that the company systematically overcharges retail customers shipping packages through third-party facilities by applying Delivery Surcharge Rates higher than the rates UPS advertised.
UPS moved to compel arbitration of Holl’s individual claims under the Federal Arbitration Act. UPS argued that, before making the shipment that gives rise to his claims in this litigation, Holl enrolled in the UPS My Choice program—a free, optional program that allows UPS customers to track and manage deliveries—and, in doing so, agreed to arbitrate all claims relating to UPS’s shipping services.
Here is the path a user like Holl would take to get to the arbitration clause while enrolling in the UPS My Choice program. The user first encounters the following enrollment page:
All users have to click on the box, affirmatively indicating assent to the UPS Technology Agreement and the UPS My Choice Service Terms, in order to continue the enrollment process. Although Holl has "no memory of reading any of UPS’s terms in the course of signing up" for My Choice, the blue "UPS Technology Agreement" and "UPS My Choice Service Terms" text depicted above hyperlinks to the controlling versions of the agreements.
The "UPS Technology Agreement" hyperlink directs the user to a 96-page document that "grants [the My Choice user] ... a limited, revocable, non-sublicenseable, non-exclusive, non-transferable, license to use the UPS Technology and associated Technical Documentation in the Permitted Territory for such UPS Technology." Section 12.6 of that Agreement, entitled "Governing Law; Jurisdiction and Language," provides:
The exclusive jurisdiction for any claim, case, or controversy arising out of or relating to this Agreement (whether for breach of contract, tort or otherwise) shall be a federal or state court in Atlanta, Georgia, and the parties hereby consent to such exclusive jurisdiction and irrevocably waive and shall not assert any defenses based on lack of in personam jurisdiction, improper venue or inconvenient forum.
Exhibit B to the Agreement, however, specifies that for customers in "Middle Eastern Countries" all disputes "arising out of or in connection with th[e] Agreement ... shall be referred to and finally resolved by arbitration." Otherwise, the UPS Technology Agreement does not contain a generally applicable arbitration clause.
The UPS My Choice Service Terms hyperlink directs the user to a three-page document consisting of nine numbered paragraphs. Those paragraphs do not mention arbitration, but the very first section incorporates several other documents by reference:
The My Choice Service Terms do not contain hyperlinks to the referenced documents, but the documents are available on ups.com.
To access the first referenced document—UPS Tariff/Terms and Conditions of Service—on ups.com, a user must follow the "Service Terms and Conditions" link that appears at the bottom of the website. Once selected, the "Service Terms and Conditions" link directs the user to the following page:
The UPS Tariff/Terms and Conditions of Service link directs the user to the version of the terms in effect at the time.1
The UPS Tariff/Terms and Conditions of Service span 32 pages and "contain[ ] the general terms and conditions of contract" under which UPS and its affiliates transport shipments. The Table of Contents indicates that Section 52 is entitled "Claims and Legal Actions: Individual Binding Arbitration of Claims." In relevant part, Section 52 provides in bold print:
Claimant and UPS agree that, except for disputes that qualify for state courts of limited jurisdiction (such as small claims, justice of the peace, magistrate court, and similar courts with monetary limits on their jurisdictions over civil disputes), any controversy or claim, whether at law or equity, arising out of or related to the provision of services by UPS, regardless of the date of accrual of such dispute, shall be resolved in its entirety by individual (not class-wide nor collective) binding arbitration.
The paragraphs following this bolded text contain information about arbitration and specific waivers, including an acknowledgment of the class representation and participation waiver.
The ups.com Service Terms and Conditions page depicted above also contains a link entitled "Claims and Legal Actions: Individual Binding Arbitration of Claims." That link directs a user to a page that (1) explains "[t]he UPS Tariff/Terms and Conditions of Service ... include an Agreement to Arbitrate Claims, providing for binding arbitration of claims (except as otherwise provided)," and (2) provides a downloadable version of the arbitration provision. It is this arbitration provision contained in the UPS Tariff/Terms and Conditions of Service on which UPS relied to compel arbitration in these proceedings.
Before the district court, Holl conceded that he checked the box indicating his agreement to the UPS My Choice Service Terms and the UPS Technology Agreement when enrolling in the My Choice program. Nevertheless, he contended that he could not be bound by the arbitration clause contained therein for two primary reasons: (1) the arbitration provision was so inconspicuous that no reasonable user would be on notice of its existence, and (2) the arbitration provision conflicted with the jurisdictional provision of the UPS Technology Agreement such that there could not have been a meeting of the minds as to a dispute resolution process. The district court disagreed and granted UPS’s motion to compel arbitration and stay proceedings. Holl then filed a petition for a writ of mandamus asking our court to vacate the order compelling arbitration.
The All Writs Act confers our jurisdiction to issue writs of mandamus. 28 U.S.C. § 1651. Mandamus is an extraordinary remedy, and "only exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion will justify the invocation of this remedy." Cheney v. U.S. Dist. Ct. , 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (internal quotation marks and citations omitted). To determine whether mandamus is warranted, we weigh five non-exhaustive factors assessing whether:
(1) The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires[;] (2) The petitioner will be damaged or prejudiced in a way not correctable on appeal[;] (3) The district court’s order is clearly erroneous as a matter of law[;] (4) The district court’s order is an oft-repeated error, or manifests a...
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