Sylvia Carson v. LendingTree LLC, No. 11-1056 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1056 SYLVIA CARSON, Case No. 3:08-cv-247, Plaintiff Appellant, and CONSTANCE SPINOZZI, Case No. 3:08cv229; ANGELA MITCHELL, Case No. 3:08cv303; EUGENE MILLER, JR., Case No. 3:08cv2077; MARVIN GARCIA, Case No. 3:08cv2078; AMY BERCAW, Case No. 3:08cv2079; RUSSELL WINSETT, Case No. 3:08cv2079; TY WOODS, Case No. 08cv2079; GERALDINE BRADLEY, Case No. 3:08cv2080; JOY PAXTON-COLLIS, Case No. 3:08cv2080; JAMES LARSON, Case No. 3:08cv2080; MARK SWEARINGEN, Case No. 3:08cv2080; PAUL SHAVER, Case No. 3:08cv2081; BRADLEY PLAINTIFFS, 08cv2080; BERCAW PLAINTIFFS, 08cv2079, Plaintiffs, v. LENDINGTREE LLC, a Delaware Corporation, Defendant Appellee, and NEWPORT LENDING CORPORATION; SOUTHERN CALIFORNIA MARKETING CORPORATION; HOME LOAN CONSULTANTS INCORPORATED; CHAPMAN CAPITAL INCORPORATED; SAGE CREDIT COMPANY; HOME LOAN CENTER INCORPORATED, d/b/a LendingTree Loans, a California Corporation; NEWPORT LENDING GROUP INCORPORATED, Defendants. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:08-md-01976-FDW) Submitted: October 20, 2011 Decided: November 17, 2011 Before WILKINSON, GREGORY, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Gary W. Jackson, Sam McGee, JACKSON & MCGEE, LLP, Charlotte, North Carolina, for Appellant. Sascha Henry, SHEPPARD, MULLIN, RICHTER & HAMPTON LLP, Los Angeles, California; Robert E. Harrington, Jonathan C. Krisko, ROBINSON, BRADSHAW & HINSON, P.A., Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Sylvia Carson appeals the district court s order compelling arbitration and its subsequent order confirming an arbitration award. arbitration Carson argues on appeal that because the provision was unconscionable, the erred in compelling arbitration of the case. This court reviews de novo district court We affirm. a determination that a dispute is arbitrable. district court s Wash. Square Sec., Inc. v. Aune, 385 F.3d 432, 435 (4th Cir. 2004). In conducting its review this court must first examine whether the parties agreed to arbitrate the claims at issue. United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 380 (4th Cir. 2008); Sydnor v. Conseco Fin. Servicing Corp., 252 F.3d 302, 305 (4th Cir. 2001) ( While federal policy broadly favors arbitration, the initial inquiry is whether the parties agreed to arbitrate their dispute. ) (citation omitted). Here, Carson affirmatively checked the box indicating that she agreed to the terms of Further, use, no which one included prevented her the from arbitration perusing the provision. arbitration provision and she was at liberty to choose a different service provider. We conclude that Carson agreed to arbitrate the claims at issue. Having established that Carson agreed to arbitrate her claims, this court must next determine whether the arbitration 3 clauses are 525 F.3d at require enforceable. 381. United Under invalidation unconscionable. limited of an for ex rel. circumstances, arbitration Wilson, equity agreement may that is Murray v. United Food & Commercial Workers, 289 F.3d 297, 302 (4th Cir. 2002). proof States this affirmative Carson bears the burden of defense. Tillman v. Commercial Credit Loans, Inc., 655 S.E.2d 362, 369 (N.C. 2008). An inquiry into unconscionability requires that a court consider all the facts and circumstances of a particular case, and if the provisions are then viewed as so one-sided that the contracting party is denied any opportunity for a meaningful Id. at 370 choice, the contract should be found unconscionable. (internal alterations asserting that procedural and a and contract substantive citations is omitted). unconscionable A prove must party both unconscionability. Id. (citations Carson her burden omitted). We establish that unconscionability. application external conclude from her pressure. home She has She was computer visited not the at met able her peruse leisure, website applied for LendingTree s service for free. to on her to the with no own and Prior to submitting her application, she was expressly advised to print the policies for her records. She affirmatively indicated that she had read, understood, agreed to, and accepted the terms of the LendingTree 4 agreement. Further, Carson has not shown that the arbitration costs prohibitively were expensive, or that the arbitration provision was unfairly one-sided. On these facts, we conclude that the district court did not err arbitration. in granting Accordingly, LendingTree s we affirm motion the to judgment compel of the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5
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