STEVEN MCARDLE V. AT&T MOBILITY LLC, No. 09-17218 (9th Cir. 2012)
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The court issued a subsequent related opinion or order on August 31, 2012.
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS JUN 29 2012 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT No. 09-17218 STEVEN MCARDLE, Plaintiff - Appellee, D.C. No. 4:09-cv-01117-CW v. MEMORANDUM* AT&T MOBILITY, LLC; NEW CINGULAR WIRELESS PCS, LLC; NEW CINGULAR WIRELESS SERVICES, INC., Defendants - Appellants. Appeal from the United States District Court for the Northern District of California Claudia A. Wilken, District Judge, Presiding Submitted June 15, 2012** San Francisco, California Before: HUG, RAWLINSON, and IKUTA, Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). AT&T Mobility, LLC (AT&T) appeals the district court s order denying its motion to compel arbitration. When the district court denied the motion to compel arbitration, it did not have the benefit of the decisions by the United States Supreme Court in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) and by this court in Coneff v. AT&T Corp., 673 F.3d 1155 (9th Cir. 2012). The district court ruled that the arbitration clause in the agreement between McArdle and AT&T was unenforceable due to the absence of class action relief. This ruling is not consistent with the holdings of Concepcion and Coneff. See Concepcion, 131 S. Ct. at 1751-52; Coneff, 673 F.3d at 1161. In Coneff, we remanded the issue of procedural unconscionability to the district court, reasoning that generally applicable contract defenses survive under ยง 2 of the Federal Arbitration Act (FAA). Coneff, 673 F.3d at 1161 (quoting Concepcion, 131 S. Ct. at 1746). As in Coneff, the district court in this case did not address procedural unconscionability, although the issue was raised by McArdle. Therefore, we remand to the district court for initial consideration of the issue of procedural unconscionability. See id. REVERSED and REMANDED. 2
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