Randall Holl v. Usdc-Caoak ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE RANDALL HOLL, No. 18-70568
D.C. No.
RANDALL HOLL, individually, on 4:16-cv-05856-
behalf of others similarly situated, HSG
and as a representative of the class,
Petitioner,
OPINION
v.
UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF
CALIFORNIA, OAKLAND,
Respondent,
UNITED PARCEL SERVICE, INC.,
Real Party in Interest.
Petition for Writ of Mandamus
Argued and Submitted April 19, 2019
San Francisco, California
Filed May 30, 2019
2 IN RE HOLL
Before: Michael Daly Hawkins and Milan D. Smith, Jr.,
Circuit Judges, and Barbara M. G. Lynn, * District Judge.
Opinion by Judge Hawkins
SUMMARY **
Mandamus / Arbitration
The panel denied a petition for a writ of mandamus
seeking to vacate the district court’s order compelling
arbitration of claims that United Parcel Service, Inc.,
overcharged retail customers who shipped packages through
third-party facilities.
Applying California law, the district court determined
that the plaintiff and UPS entered into a binding arbitration
agreement. The panel held that the district court’s order was
not clearly erroneous as a matter of law, and so the
extraordinary remedy of mandamus was not warranted,
because the plaintiff assented to online terms that
incorporated the document containing the arbitration clause
in question.
*
The Honorable Barbara M. G. Lynn, Chief United States District
Judge for the Northern District of Texas, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
IN RE HOLL 3
COUNSEL
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.
OPINION
HAWKINS, Senior Circuit 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.
4 IN RE HOLL
BACKGROUND
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:
IN RE HOLL 5
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
6 IN RE HOLL
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:
IN RE HOLL 7
(1) Governing Terms. These Service
Terms (“Terms”) govern your use of UPS My
Choice services (the “Service”). Except as
modified by these Terms, the UPS
Tariff/Terms and Conditions of Service, the
UPS Rate and Service Guide and the
description of the Service available at
ups.com/mychoice in effect at the time of
service (all of which are subject to change
without notice) govern the Service, and are
expressly incorporated here by this reference.
The most current and controlling versions of
the UPS Tariff/Terms and Conditions of
Service and the UPS Rate and Service Guide
are published at ups.com. You expressly
acknowledge having reviewed, understood
and agreed to the UPS Tariff/Terms and
Conditions of Service and the UPS Rate and
Service Guide and accept their application.
In the case of a conflict between the terms of
the UPS Tariff/Terms and Conditions of
Service or the UPS Rate and Service Guide
on the one hand, and these Terms on the
other, these Terms shall control as to the
Service.
By using the Service, you agree to these
Terms.
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
8 IN RE HOLL
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:
1
The UPS Rate and Service Guide, the other document incorporated
in the My Choice Service Terms, is a 367-page document that informs
customers about choosing services, preparing shipments, determining
the rates for shipments, and tracking and payment of shipments. In its
final section, the Rate and Service Guide sets forth the UPS Tariff/Terms
and Conditions of Service in their entirety, including the arbitration
provision.
IN RE HOLL 9
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
10 IN RE HOLL
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.
DISCUSSION
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 (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
persistent disregard of the federal rules[;]
[and] (5) The district court’s order raises new
and important problems, or issues . . . of first
impression.
IN RE HOLL 11
Bauman, 557 F.2d at 654–55 (citations omitted). A
petitioner must satisfy the third Bauman factor—clear
error—but need not satisfy all five factors at once. In re
Henson, 869 F.3d 1052, 1058 (9th Cir. 2017). Even if the
petitioner satisfies all five factors, it is within our discretion
to grant or deny the petition. San Jose Mercury News, Inc.
v. U.S. Dist. Court, 187 F.3d 1096, 1099 (9th Cir. 1999).
Because we cannot grant the extraordinary remedy that
Holl seeks absent a “definite and firm conviction that a
mistake has been committed,” United States v. Fei Ye,
436 F.3d 1117, 1123 (9th Cir. 2006), we look first to the
district court’s determination that the parties entered into a
valid arbitration agreement. We hold that the district court’s
order is not “clearly erroneous as a matter of law,” and
therefore need not reach the remaining Bauman factors. See
Henson, 869 F.3d at 1058.
The issue before the district court was one of basic
contract formation. See Norcia v. Samsung Telecomms. Am.,
LLC, 845 F.3d 1279, 1283 (9th Cir. 2017). Indeed, “a party
cannot be required to submit to arbitration any dispute which
he has not agreed so to submit.” United Steelworkers of Am.
v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960).
State law, here the law of California, supplies the relevant
contract principles to determine whether Holl and UPS
entered into a binding arbitration agreement. See Norcia,
845 F.3d at 1283.
Under California law, “an offeree, knowing that an offer
has been made to him but not knowing all of its terms, may
be held to have accepted, by his conduct, whatever terms the
offer contains.” Windsor Mills, Inc. v. Collins & Aikman
Corp., 25 Cal. App. 3d 987, 992 (1972). Yet, “an offeree,
regardless of apparent manifestation of his consent, is not
bound by inconspicuous contractual provisions of which he
12 IN RE HOLL
was unaware, contained in a document whose contractual
nature is not obvious.” Id.; see also Knutson v. Sirius XM
Radio Inc., 771 F.3d 559, 565 (9th Cir. 2014) (applying
California law). There is no special rule, however, that an
offeror of an adhesive consumer contract specifically
highlight or otherwise bring an arbitration clause to the
attention of the consumer to render the clause enforceable.
See Sanchez v. Valencia Holding Co., 61 Cal. 4th 899, 914
(2015).
As the district court recognized, locating the arbitration
clause at issue here requires several steps and a fair amount
of web-browsing intuition. The user must access the UPS
My Choice Service Terms via the enrollment page’s
hyperlink, potentially after following the first hyperlink to
the 96-page Technology Agreement. The user must then
read the UPS My Choice Service Terms and understand that
they incorporate the UPS Tariff/Terms and Conditions of
Service. Because the My Choice Service Terms do not
include hyperlinks to the incorporated documents, the user
must visit the full ups.com website, intuitively find the
Service Terms and Conditions link at the bottom of the
webpage, select it, and locate yet another link to the UPS
Tariff/Terms and Conditions of Service. Then, the user must
read the UPS Tariff/Terms and Conditions of Service to find
the arbitration clause.
The task of the district court below, and our task in these
mandamus proceedings, would be much easier if we were
reviewing the current My Choice Service Terms. The My
Choice Service Terms now include a hyperlink to the UPS
Tariff/Terms and Conditions of Service and expressly
inform the user that the incorporated document contains an
agreement to arbitrate. But, even under the version of the
My Choice Service Terms in effect at the time of Holl’s
IN RE HOLL 13
enrollment, the district court’s determination regarding the
arbitration provision’s validity does not warrant the
extraordinary remedy of mandamus.
The rules of consumer online agreements and consumer
paper agreements are the same. See Long v. Provide
Commerce, Inc., 245 Cal. App. 4th 855, 862 (2016). A
contract may incorporate documents and terms by reference.
Shaw v. Regents of Univ. of Cal., 58 Cal. App. 4th 44, 54
(1997). Where it is clear that a party is assenting to a
contract that incorporates other documents by reference, the
incorporation is valid—and the terms of the incorporated
document are binding—so long as the incorporation is “clear
and unequivocal, the reference [is] called to the attention of
the other party and he [] consent[s] thereto, and the terms of
the incorporated document [are] known or easily available
to the contracting parties.” Id. (quoting Williams Constr. Co.
v. Standard–Pac. Corp., 254 Cal. App. 2d 442, 454 (1967)).
Here, there is no question Holl affirmatively assented to
the UPS My Choice Service Terms. He checked a box
acknowledging as much. So, if the UPS My Choice Service
Terms validly incorporate the UPS Tariff/Terms and
Conditions of Service, his assent encompassed the
arbitration clause. See id. at 54–55.
We cannot say, with “definite and firm conviction,” that
the district court erred by finding the incorporation valid.
Fei Ye, 436 F.3d at 1123. The incorporation appears in the
very first section of the My Choice Service Terms, which
span only three pages. That section states in clear language
that (1) the UPS Tariff/Terms and Conditions of Service “are
expressly incorporated,” (2) the most current version of the
document is published on ups.com, and (3) the user
expressly acknowledges having “reviewed, understood and
agree[d] to the UPS Tariff/Terms and Conditions of
14 IN RE HOLL
Service.” It is undisputed that, at all relevant times, users
could access the UPS Tariff/Terms and Conditions of
Service on ups.com, as the My Choice Service Terms
instruct.
In the context of paper transactions, California courts
have deemed analogous incorporations by reference valid
and the incorporated terms binding. See, e.g., Wolschlager
v. Fid. Nat’l Title Ins. Co., 111 Cal. App. 4th 784, 791 (2003)
(arbitration provision in policy binding where preliminary
title report clearly incorporated policy and “directed the
plaintiff to where he could inspect it”); King v. Larsen
Realty, Inc., 121 Cal. App. 3d 349, 353, 357 (1981)
(arbitration clause contained in bylaws binding where
plaintiffs expressly agreed to abide by the board’s
constitution and bylaws when applying for membership and
bylaws were readily available for review); Larrus v. First
Nat’l Bank of San Mateo Cty., 122 Cal. App. 2d 884, 889–
90 (1954) (bank’s rules and regulations binding where bank
card clearly stated plaintiff agreed to rules by signing and
plaintiff could have asked to review rules before signing).
Federal courts likewise have recognized the general
enforceability of similar online agreements that require
affirmative user assent. See, e.g., Meyer v. Uber Techs., Inc.,
868 F.3d 66, 78–79 (2d Cir. 2017) (applying California law
and determining user assented to arbitration provision
contained in online Terms of Service where enrollment page
clearly stated user’s enrollment signaled assent to terms and
terms were reasonably conspicuous even though lengthy);
see also Nguyen v. Barnes & Noble Inc., 763 F.3d 1171,
1176 (9th Cir. 2014) (“[C]ourts have consistently enforced
[terms of use] agreements where the user had actual notice
of the agreement. . . . [or] where the user is required to
IN RE HOLL 15
affirmatively acknowledge the agreement before proceeding
with use of the [service.]”).
Despite Holl’s urging, the characteristics of the UPS
Technology Agreement—its length; incorporation of rules,
regulations, and documents by reference; and inclusion of a
jurisdictional provision—do not alter our assessment of the
district court’s holding. The UPS Technology Agreement
grants licenses for the use of certain technology and sets
forth terms and conditions “that apply to each UPS
Technology [a UPS My Choice member] may use.”
According to the Technology Agreement’s plain language,
its jurisdictional clause applies only to claims arising out of
or relating to the Technology Agreement itself. The use of
UPS services remains governed by any agreement the user
enters with UPS in connection with those services,
“including for example, the applicable UPS Terms and
Conditions of Carriage/Service.” Given the expressly stated
scope of the Technology Agreement, the district court did
not clearly err by determining that the Technology
Agreement’s jurisdictional clause and the My Choice
Service Terms’ incorporated arbitration clause cover
different subject matters and thus are not in conflict.
Because Holl unequivocally assented to the My Choice
Service Terms and those terms clearly incorporated the
document containing the arbitration clause in question, we
are not left with the definite and firm conviction that the
district court erred in a manner sufficient to justify
mandamus.
CONCLUSION
Faced with the heavy burden of showing a “clear and
indisputable” right to the extraordinary remedy he seeks,
Holl fails to establish the type of “judicial usurpation of
16 IN RE HOLL
power” or “clear abuse of discretion” that might justify
issuance of the writ. In re Van Dusen, 654 F.3d 838, 840–
41 (9th Cir. 2011). Therefore, we deny his petition.
DENIED.