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In re Holl

United States Court of Appeals, Ninth Circuit

May 30, 2019

In re Randall Holl,
v.
United States District Court for the Northern District of California, Oakland, Respondent, Randall Holl, individually, on behalf of others similarly situated, and as a representative of the class, Petitioner, United Parcel Service, Inc., Real Party in Interest.

          Argued and Submitted April 19, 2019 San Francisco, California

          Petition for Writ of Mandamus D.C. No. 4:16-cv-05856-HSG.

          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.

          Before: Michael Daly Hawkins and Milan D. Smith, Jr., Circuit Judges, and Barbara M. G. Lynn, [*] District Judge.

         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.

          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.

         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 ...


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