Elite Logistics Corp. v. Hanjin Shipping Co.

*818 MEMORANDUM *

Hanjin Shipping Co. (“Hanjin”) appeals the district court’s order denying Hanjin’s motion to compel arbitration. We affirm. Because the parties are familiar with the history of this case, we need not recount it here.

I

Following submission of this appeal, the district court entered an order resolving certain claims. We requested the parties to brief the question of whether or not the district court order rendered this appeal moot. Both parties agree that it did not and, after reviewing their submissions we conclude that the appeal is justiciable.

II

The district court did not err in holding that the arbitration agreement was unconscionable under California law and, therefore, that the motion to compel arbitration should be denied. 1 In California, a contract clause is unconscionable if both procedurally and substantively unconscionable. See Armendariz v. Found. Health Psychcare Servs., Inc., 24 Cal.4th 83 , 99 Cal.Rptr.2d 745 , 6 P.3d 669, 689-90 (2000) (articulating “general principles” of uncon-scionability). California law utilizes a sliding scale to determine the ultimate question of unconscionability — greater substantive unconscionability may…

dissenting:

I respectfully dissent. In holding that the district court correctly voided the arbitration clause as unconscionable under California law, the majority relies on Pokorny v. Quixtar, 601 F.3d 987 (9th Cir. 2010), Shroyer v. New Cingular Wireless Services, Inc., 498 F.3d 976 (9th Cir.2007), Abramson v. Juniper Networks, Inc., 115 Cal.App.4th 638 , 9 Cal.Rptr.3d 422 (2004), Ingle v. Circuit City Stores, Inc., 328 F.3d 1165 (9th Cir.2003), Harper v. Ultimo, 113 Cal.App.4th 1402 , 7 Cal.Rptr.3d 418 (2003), Szetela v. Discover Bank, 97 Cal.App.4th 1094 , 118 Cal.Rptr.2d 862 (2002), and Armendariz v. Found. Health Psychcare Services, Inc., 24 Cal.4th 83 , 99 Cal.Rptr.2d 745 , 6 P.3d 669 (2000).

In so doing, the majority fails to acknowledge that in AT & T Mobility LLC v. Concepcion, — U.S. -, 131 S.Ct. 1740 , 1747, 179 L.Ed.2d 742 (2011), the Supreme Court held that the Federal Arbitration Act preempts certain state law contract defenses that have a disproportionate effect on arbitration clauses. The Supreme Court also clarified that an arbitration clause is not procedurally unconscionable merely because it appears in a contract of adhesion. Id. at 1750-53.

Following…

FILED

NOT FOR PUBLICATION SEP 19 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELITE LOGISTICS CORPORATION, No. 12-56238 and on behalf of all others similarly situated, D.C. No. 2:11-cv-02961-DDP-

PLA

Plaintiff - Appellee,

v. MEMORANDUM*

HANJIN SHIPPING CO., LTD.,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Dean D. Pregerson, District Judge, Presiding

Argued and Submitted April 10, 2014 Pasadena, California

Before: THOMAS, M. SMITH, Jr., and CHRISTEN, Circuit Judges.

Hanjin Shipping Co. (“Hanjin”) appeals the district court’s order denying

Hanjin’s motion to compel arbitration. We affirm. Because the parties are familiar

with the history of this case, we need not recount it here.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. I

Following submission of this appeal, the district court entered an order

resolving certain…