and Submitted April 19, 2019 San Francisco, California
Petition for Writ of Mandamus D.C. No. 4:16-cv-05856-HSG.
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.
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
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.
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
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.
HAWKINS, Senior Circuit Judge.
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.
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.
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.
the path a user like Holl would take to get to the
arbitration clause while enrolling in the UPS My Choice
program. The user ...