FILED

NOT FOR PUBLICATION

OCT 04 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTERPHOR ZIGLAR; et al., No. 17-16920

Plaintiffs-Appellees, D.C. No. 2:16-cv-02726-SRB

v.

MEMORANDUM*

EXPRESS MESSENGER SYSTEMS,

INC., dba OnTrac, a Delaware corporation,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding

Argued and Submitted August 15, 2018 San Francisco, California

Before: SCHROEDER, SILER,** and GRABER, Circuit Judges.

Express Messenger Systems, Inc. (“OnTrac”) appeals the district court’s

order denying its motion to compel arbitration of wage-and-hour claims brought by

delivery drivers. We have jurisdiction under 9 U.S.C. § 16, and we review the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. denial of arbitration de novo. Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1259

(9th Cir. 2017). We vacate the district court’s order and remand for further

proceedings.

The district court denied OnTrac’s motion to compel arbitration on the

ground that the arbitration provision in the “Owner Operator Agreements” between

the drivers and Subcontracting Concepts CT, LLC, was substantively

unconscionable under Arizona law. After the district court entered its order, the

Supreme Court issued its opinion in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612

(2018), addressing the applicability of the Federal Arbitration Act’s “saving

clause,” which permits arbitration agreements to be invalidated by “such grounds

as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2; see

AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011).

We therefore vacate the district court’s order denying OnTrac’s motion to

compel arbitration and remand for further proceedings in light of Epic Systems

Corp., including, if appropriate, consideration of the parties’ other arguments

regarding arbitrability. We also note for the district court’s further consideration

that there is a pending case, currently on the court’s Seattle calendar for November

2018, that may raise similar issues: Ege v. Express Messenger Sys., Inc., No. 17-

35123.

2 VACATED and REMANDED. The parties shall bear their own costs on

appeal.

3