Iberia Credit Bureau, Inc. v. Cingular Wireless LLC

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED AUGUST 16, 2004
July 21, 2004
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk

_____________________

No. 03-30613
_____________________

IBERIA CREDIT BUREAU INC, Etc; ET AL

Plaintiffs

IBERIA CREDIT BUREAU INC, doing business as Information
Services; WARDELL X GERHARDT; CONSTANCE WHITE LOUVIERE;
CHARLES V LANDRY; SID HEBERT, on behalf of Iberia Parish
Sheriff’s Department

Plaintiffs - Appellees

v.

CINGULAR WIRELESS LLC, Etc; ET AL

Defendants

CINGULAR WIRELESS LLC, formerly known as BellSouth Mobility,
also known as Cingular/Bellsouth; SPRINT SPECTRUM COMPANY
LP; CENTENNIAL BEAUREGARD CELLULAR LLC, formerly known as
Iberia Cellular Telephone Company LLC, doing business as
Centennial Wireless

Defendants - Appellants

_________________________________________________________________

Appeals from the United States District Court
for the Western District of Louisiana
_________________________________________________________________

Before KING, Chief Judge, and REAVLEY and EMILIO M. GARZA,
Circuit Judges.

KING, Chief Judge:
 The appellees in this action are customers of three

cellular-telephone service providers, Cingular Wireless LLC,

Sprint Spectrum LP, and Centennial Beauregard Cellular LLC. The

customers alleged that the service providers engaged in deceptive

trade practices and breached the customers’ service agreements.

The companies moved to compel arbitration of the dispute under

the Federal Arbitration Act and written arbitration clauses in

the customers’ service agreements. The district court denied the

motions to compel arbitration, and the companies brought this

interlocutory appeal. We conclude that the district court

correctly denied Centennial’s motion but erred in denying

Cingular’s and Sprint’s motions. We therefore affirm in part,

reverse in part, and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

In September 2001, a group of cellular-telephone customers

filed suit in Louisiana state court against their respective

service providers--Cingular, Sprint, Centennial, and Telecorp

Communications, Inc.1--and the providers’ local agents. The

suit, which alleged causes of action for breach of contract and

violation of the Louisiana Unfair Trade Practices Act, LA. REV.

STAT. ANN. § 51:1401 et seq. (West 2003), was predicated on

certain allegedly deceptive billing procedures, most notably the

providers’ practice of rounding up calls to the next whole minute

1
The fourth defendant, Telecorp, is not involved in this
appeal.

2
for billing purposes. The defendants removed the case to federal

court on the basis of diversity of citizenship. The district

court denied a motion to remand and dismissed the local agents on

the ground that they had been fraudulently joined to destroy

complete diversity. The case is a putative class action, but no

class has yet been certified.

Some of the various plaintiffs’ contracts with their

respective service providers include arbitration provisions, but

other contracts do not, depending on the plaintiff and the date

of the contract. The plaintiffs’ original complaint and the

first two amended complaints stated that the plaintiffs were not

pursuing claims related to contracts that contain arbitration

clauses. A later version of the complaint dropped that

limitation. When the plaintiffs began to pursue claims that

involved contracts containing arbitration clauses, Cingular,

Sprint, and Centennial filed motions to compel arbitration and to

stay the judicial proceedings as regards the plaintiffs who were

their respective customers. The state attorney general has also

intervened in the case as a plaintiff. The defendants did not

attempt to compel arbitration with regard to any contracts with

the state, however, and the state is not involved in this appeal.

The arbitration clauses in the various contracts differ in

some relevant respects, as set forth more fully below.

A. Centennial plaintiff

3
 Plaintiff Sid Hebert, Sheriff of Iberia Parish, is suing as

a representative of the Iberia Parish Sheriff’s Department.

Through one of the Department’s deputies, Walter Dodge, who acts

as its purchasing agent, the Department opened a multi-telephone

account with Centennial in 1999. Extra phones were added to the

account during the next couple of years. These agreements did

not contain arbitration clauses.

On October 24, 2002, thirteen months after the original

complaint in this case had been filed (but several months before

the Sheriff’s Department was added as a plaintiff in the case),

the Department added still another phone to its Centennial

account, with Dodge signing another standard-form service

agreement. This latest form stated, above the signature line: “I

acknowledge I have read and understand the terms and conditions

on the back of this order form and agree to those terms.” The

final paragraph on the back of the form contains an arbitration

clause requiring the customer (but perhaps not the company--a

matter of dispute) to arbitrate all claims.2 The clause provides

that the arbitrator may not order consolidation or class

arbitration. It further states that any arbitration would be

confidential, and it includes a severability clause stating that

if any portion of the arbitration clause is deemed invalid, the

2
The disputed portion of the arbitration clause is set
forth at length in conjunction with our legal analysis, in Part
III.B.1.

4
rest would remain in force. Dodge and the Sheriff state that

they did not negotiate the terms and were not told of the

arbitration clause, which had not been a part of the parties’

previous agreements.

Another section of the Centennial Terms and Conditions

states that Centennial can change the contract terms by sending

written notice to the customer.

B. Cingular plaintiffs

Plaintiffs Iberia Credit Bureau, Inc., Constance Louviere,

and Wardell Gerhardt entered into service agreements with

Cingular. The agreements are standard forms consisting of a

number of blank boxes for filling in various customer and service

details, followed by six paragraphs of text. The third paragraph

of each agreement explicitly incorporates by reference Cingular’s

Terms and Conditions. Each plaintiff signed the form.

Immediately above the signature line was the following statement:

I ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THIS
AGREEMENT AND THE TERMS AND CONDITIONS, AND THE PLAN
PROVISIONS AND CONDITIONS. I AGREE TO BE BOUND THEREBY.

The Terms and Conditions were (depending on which plaintiff is

involved) either printed on the back of the form or presented in

a separate pamphlet that accompanied the form. The two versions

of the Terms and Conditions are substantially identical.

The section of the Terms and Conditions concerning

arbitration provides that “instead of suing in court, CINGULAR

5
and you agree to arbitrate any and all disputes and claims

(including but not limited to claims based on or arising from an

alleged tort) arising out of or relating to this Agreement.”

The Terms and Conditions further provide, among other things,

that the parties “agree that no arbitrator has the authority to

. . . order consolidation or class arbitration” and that neither

party “may disclose the existence, content, or results of any

arbitration.”3 The arbitration provision concludes by stating

that “[n]otwithstanding the foregoing, either party may bring an

action in small claims court.”

Another section of the Terms and Conditions permits Cingular

to change any terms, conditions, rates, or fees at any time. A

customer who has signed a term contract, such as a one-year

commitment, may cancel service in response to such a change

without incurring a termination fee. Finally, the Terms and

Conditions include a severability clause providing that the

unenforceability of one provision of the agreement does not

affect the remaining terms.

C. Sprint plaintiff

Plaintiff Charles Landry, the only plaintiff in this appeal

who is suing Sprint, has two Sprint cellular accounts. The first

one, opened in July 2001, does not contain an arbitration clause,

3
Cingular’s arbitration clause, like the others involved
in this case, also contains provisions regarding matters such as
responsibility for the costs of arbitration proceedings, but
those provisions are not at issue in this appeal.

6
but the second account, opened in August 2002, does. This second

account was opened after the initial complaint in the lawsuit was

filed. Sprint’s request for arbitration concerns only claims

arising from the second account.

Sprint includes its Terms and Conditions in the box with the

handset that the customer purchases. The Terms and Conditions do

not call for a signature, but they provide that the customer

accepts them by activating his account. The version of the Terms

and Conditions included with Landry’s phone contained the

following provision:

ARBITRATION OF DISPUTES. ANY CLAIM, CONTROVERSY OR
DISPUTE, WHETHER SOUNDING IN CONTRACT, STATUTE, OR TORT,
INCLUDING FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL
THEORY, RELATED DIRECTLY OR INDIRECTLY TO THE [Sprint
services], WHETHER BETWEEN THE COMPANY AND THE CUSTOMER
OR BETWEEN THE COMPANY OR THE CUSTOMER, ON THE ONE HAND,
AND EMPLOYEES, AGENTS OR AFFILIATED BUSINESSES OF THE
OTHER PARTY, ON THE OTHER HAND, SHALL BE RESOLVED BY
ARBITRATION AS PRESCRIBED IN THIS SECTION.4

This section of the Terms and Conditions further provides that no

discovery will be permitted in the arbitration, except that the

parties will exchange, before the hearing, the evidentiary

materials that they plan to submit to the arbitrator.5

4
A new version of the arbitration clause appears in the
Terms and Conditions that became effective August 1, 2002. The
parties agree that this later version, which was the version that
was in effect when Landry actually activated his phone, is
relevantly equivalent.
5
The arbitration provision is several paragraphs long,
but the portion concerning discovery provides as follows:

No discovery will be permitted, except that the parties

7
 Other parts of the Sprint Terms and Conditions set forth

additional provisions relevant to this appeal. Like Centennial

and Cingular, Sprint reserves the right to change the parties’

agreement at any time by publishing new Terms and Conditions. If

the customer uses the Sprint services or pays a bill after the

effective date of the change, he is deemed to have accepted the

change. The Sprint Terms and Conditions also include a

severability clause stating that if any provision in the contract

is deemed invalid, the remaining terms remain in force.

D. The district court’s decision

The district court heard argument on the motions to compel

arbitration on May 23, 2003, and denied the motions with oral

reasons. The judge expressed his view that, based on the

circumstances of contract formation, the plaintiffs had not

really assented to the arbitration clauses. Moreover, he

concluded that the agreements “simply put[] all the benefit to

the company and none to the consumer” and were thus

unconscionable under Louisiana law. The court was apparently of

the view that all of the agreements bound only the customer, but

not the company, to pursue arbitration; this was one of the major

factors behind the court’s unconscionability holding, though the

will exchange, thirty days prior to the hearing on their
dispute, all documents to be submitted to the arbitrator,
including any reports or summaries, and a list of the
names and addresses of those persons to be called to
testify. Following exchange of this information, the
parties may agree to waive a hearing.

8
court also found other features of the contracts worryingly

harsh.

The court formalized the ruling with a written order dated

May 27. Centennial, Cingular, and Sprint timely appealed,

asserting appellate jurisdiction under 9 U.S.C. § 16.

II. APPELLATE JURISDICTION

We have appellate jurisdiction over this interlocutory

appeal by virtue of 9 U.S.C. § 16(a)(1), which permits immediate

appeals of district court orders denying requests to compel

arbitration and to stay litigation. See Am. Heritage Life Ins.

Co. v. Lang, 321 F.3d 533, 536 (5th Cir. 2003).

Despite the apparent statutory basis for our jurisdiction,

the plaintiffs have filed a motion to dismiss the appeal. Citing

Cerveceria Cuauhtemoc Moctezuma S.A. v. Montana Beverage Co., 330

F.3d 284 (5th Cir. 2003) (per curiam), they argue that we lack

jurisdiction whenever the district court determines that the

parties did not form a binding agreement to arbitrate. (The

district court’s decision in this case, as described above, was

based on both unconscionability and a failure of mutual assent.)

A recent decision of this court squarely addressed and rejected

the precise argument that the plaintiffs raise here. See May v.

Higbee Co., 372 F.3d 757 (5th Cir. 2004). Section 16(a)(1)

confers jurisdiction over this appeal notwithstanding the

district court’s opinion that the documents at issue in this case

9
failed to constitute a binding agreement to arbitrate.

Accordingly, we will deny the plaintiffs’ motion to dismiss the

appeal and proceed instead to the merits of the district court’s

decision.

III. ANALYSIS

The parties’ dispute has become relatively narrow. The

plaintiffs do not deny that the scope of the arbitration clauses

is broad enough to encompass their causes of action. Nor do they

contend in their appellate brief, though they did at times below,

that they never assented to the arbitration clauses. They do

contend, however, that the arbitration clauses at issue in this

case are unconscionable and unenforceable.6 The district court

agreed with them and refused to compel arbitration. We review

the denial of the motion to compel arbitration de novo. Carter

v. Countrywide Credit Indus., Inc., 362 F.3d 294, 297 (5th Cir.

2004).

6
With one exception that we will note later, see infra
note 16, the parties on both sides of the case, both in the
district court and here, have treated the question of the
possible unconscionability of the arbitration clause as a matter
to be decided by the court rather than by the arbitrator. Cf.
Banc One Acceptance Corp. v. Hill, 367 F.3d 426, 429-31 (5th Cir.
2004) (concluding that a procedural unconscionability attack on
an arbitration clause was a question for the court); Inv.
Partners, L.P. v. Glamour Shots Licensing, Inc., 298 F.3d 314,
316 (5th Cir. 2002) (holding that the court should decide an
attempt to void an arbitration clause as violative of public
policy). But cf. Anders v. Hometown Mortgage Servs., Inc., 346
F.3d 1024, 1031 (11th Cir. 2003) (holding that where an
arbitration clause’s limitations on remedies were severable, a
challenge to them was for the arbitrator to decide). We will
therefore proceed on the same basis.

10
A. Applicability of state unconscionability principles

The argument that an arbitration agreement or clause is

unconscionable or otherwise unenforceable requires consideration

of both federal and state law. The Federal Arbitration Act (FAA)

was in large part motivated by the goal of eliminating the

courts’ historic hostility to arbitration agreements. Allied-

Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 270-71 (1995).

Section 2 of the FAA puts arbitration agreements on the same

footing as other contracts:

A written provision in any maritime transaction or a
contract evidencing a transaction involving commerce to
settle by arbitration a controversy thereafter arising
out of such contract or transaction . . . shall be valid,
irrevocable, and enforceable, save upon such grounds as
exist at law or in equity for the revocation of any
contract.

9 U.S.C. § 2 (emphasis added). That is, as a matter of federal

law, arbitration agreements and clauses are to be enforced unless

they are invalid under principles of state law that govern all

contracts. Therefore, “generally applicable contract defenses,

such as fraud, duress, or unconscionability, may be applied to

invalidate arbitration agreements without contravening § 2.”

Doctor’s Assocs. v. Casarotto, 517 U.S. 681, 687 (1996) (emphasis

added).7 But a state court or legislature may not invalidate

7
Alone among the defendants, Sprint makes an argument
(in a single paragraph in its brief) that, notwithstanding the
role for state law that 9 U.S.C. § 2 expressly permits, the
Federal Communications Act preempts any state-law rules that
would lead to the invalidation of its arbitration agreement.

11
arbitration agreements on the basis of a rule of law that applies

only to such agreements, such as by declaring them invalid unless

they contain a special notice on the front page. Id.

In the case at bar, the district court invalidated the

defendants’ various arbitration clauses based on general contract

principles of unconscionability. In doing so, the court relied

heavily on a recent Louisiana case, Sutton’s Steel & Supply, Inc.

v. BellSouth Mobility, Inc., 776 So. 2d 589 (La. App. 3 Cir.

2000), that ruled that an arbitration clause very much like one

of the clauses at issue in this case (namely, Centennial’s) was

invalid under Louisiana law. Another recent Louisiana case, also

relied upon heavily by the plaintiffs in this appeal, held that

an arbitration clause somewhat similar to all of the clauses at

issue here was likewise unconscionable and unenforceable under

state law. See Simpson v. Grimes, 849 So. 2d 740 (La. App. 3

Cir.), writ denied, 861 So. 2d 567 (La. 2003).

Compare Boomer v. AT&T, 309 F.3d 404, 417-23 (7th Cir. 2002)
(adopting such a theory), with Ting v. AT&T, 319 F.3d 1126, 1135-
47 (9th Cir.) (rejecting it), cert. denied, 124 S. Ct. 53 (2003).
Sprint’s fleeting reference to this argument in its motion to
compel arbitration failed to present this complex issue in a
sufficient manner to give the district court a reasonable
opportunity to rule on it, FDIC v. Mijalis, 15 F.3d 1314, 1327
(5th Cir. 1994), especially considering that Sprint did not
mention the issue during the lengthy hearing at which the
district court made its decision. See Louque v. Allstate Ins.
Co., 314 F.3d 776, 780 n.1 (5th Cir. 2002) (“As a general rule, a
party may not allude to an issue in the district court, abandon
it at the crucial time when the district court might have been
called to rule upon it, and then resurrect the issue on
appeal.”). In any event, we determine that Sprint’s agreement
survives the application of Louisiana unconscionability rules.

12
 The parties sharply disagree about the import of these

Louisiana cases. For the plaintiffs, they are practically

determinative inasmuch as they show that agreements relevantly

equivalent to those at issue in this case are invalid under

general Louisiana rules of unconscionability. But the defendants

respond that these cases are both incorrect as a matter of state

law and inconsistent with federal law in that they single out

arbitration clauses for especially searching review.

That a state decision employs a general principle of

contract law, such as unconscionability, is not always sufficient

to ensure that the state-law rule is valid under the FAA. Even

when using doctrines of general applicability, state courts are

not permitted to employ those general doctrines in ways that

subject arbitration clauses to special scrutiny. As the Supreme

Court has cautioned:

A court may not . . . in assessing the rights of
litigants to enforce an arbitration agreement, construe
that agreement in a manner different from that in which
it otherwise construes nonarbitration agreements under
state law. Nor may a court rely on the uniqueness of an
agreement to arbitrate as a basis for a state-law holding
that enforcement would be unconscionable, for this would
enable the court to effect what we hold today the state
legislature cannot.

Perry v. Thomas, 482 U.S. 483, 493 n.9 (1987); see also Banc One,

367 F.3d at 432 (explaining that “state courts may properly

strike down arbitration clauses, but they may not treat

arbitration clauses differently than other contract terms”).

13
 State judges, no less than federal judges, are sworn to

uphold supreme federal law. U.S. CONST. art. VI. Indeed, we

ordinarily presume that state courts are aware of and faithfully

follow federal law, including of course the FAA. Cf. Allen v.

McCurry, 449 U.S. 90, 105 (1980). Our own duty to follow federal

law does, however, mean that we must exercise a degree of care

when applying state decisions that strike down arbitration

clauses as unconscionable. Such scrutiny of state decisions is

unusual in our comity-driven federal system, but it is our duty

under the FAA.

Having set forth the role of state contract law in

invalidating arbitration clauses, we turn now to the substance of

the relevant Louisiana law. No section of the Louisiana Civil

Code directly addresses, in so many words, the doctrine of

unconscionability or the related concept of adhesionary

contracts. Nonetheless, Louisiana jurisprudence does recognize

that certain contractual terms, especially when contained in

dense standard forms that are not negotiated, can be too harsh to

justly enforce. The theory of such decisions, often, is that an

unconscionable contract or term can be thought of as lacking the

free consent that the Code requires of all contracts. See

generally Ronald L. Hersbergen, Unconscionability: The Approach

of the Louisiana Civil Code, 43 LA. L. REV. 1315 (1983).8 In

8
The civil law concept of lesion--which concerns the
relative value of the performance agreed to be received and the

14
order to be invalidated, a provision must possess features of

both adhesionary formation and unduly harsh substance. See Andry

v. New Orleans Saints, 820 So. 2d 602, 603-04 (La. App. 5 Cir.

2002) (“[A]dhesion contracts are not per se unenforceable, but

rather lend themselves to an inquiry as to whether the weaker

party consented to the fine print, and if so whether the

adhesionary clause is unduly burdensome or extremely harsh.”);

Saúl Litvinoff, Consent Revisited: Offer Acceptance Option Right

of First Refusal and Contracts of Adhesion in the Revision of the

Louisiana Law of Obligations, 47 LA. L. REV. 699, 758 (1987)

(“[W]here a party had no power to negotiate a contract, [the

Louisiana courts] may disregard a particular clause in the

contract when that clause is unduly burdensome or extremely

harsh.”).

B. Application of the principles to the arbitration agreements

The arbitration clauses at issue in this case share several

features in common and to that extent lend themselves to a common

analysis. But each is also distinctive in certain ways. The

agreement drafted by one of the defendants, Centennial, possesses

a significant feature that the others lack. Namely, among its

other challenged features, the agreement appears to require only

performance agreed to be rendered--can serve a similar role in
policing bargains, though only with regard to certain types of
transactions. See generally Saúl Litvinoff, Vices of Consent,
Error, Fraud, Duress and an Epilogue on Lesion, 50 LA. L. REV. 1,
107-15 (1989).

15
the customer to arbitrate all disputes, leaving the company with

the choice of pursuing a lawsuit instead of arbitrating.

Louisiana cases suggest that this is a particularly troubling

provision, and so we discuss Centennial’s arbitration clause

separately from the other defendants’ agreements.

1. Centennial

Centennial denies the charge that its arbitration clause is

one-sided, arguing that its arbitration provision equally binds

both parties to arbitrate disputes. The arbitration clause

provides as follows:

Dispute Resolution; Waiver of Trial by Jury; Waiver of
Class Actions - Please read this section carefully. It
affects rights that you may otherwise have. It provides
for resolution of most disputes through arbitration
instead of court trials and class actions. . . . You
agree that instead of suing in court, you will arbitrate
any and all disputes and claims arising out of this
Agreement or the Service. Even if applicable law
provides otherwise, you and we each waive our right to a
trial by jury and to participate in class actions. . . .
By this agreement, both you and we are waiving certain
rights to litigate disputes in court. If for any reason
this arbitration clause is deemed inapplicable or
invalid, you and we both waive, to the fullest extent
allowed by law, any claims to recover punitive or
exemplary damages and any right to pursue any claims on
a class or consolidated basis or in a representative
capacity.

(emphasis added). Read carefully, the language is quite precise.

While most of the statements in this paragraph refer to “you and

we” waiving certain rights, the critical sentence in the middle

that sets forth the duty to arbitrate says only that “you agree”

that “you will arbitrate” rather than sue in court. Centennial’s

16
brief repeatedly asserts that both parties are required to

arbitrate, but it never really explains this key sentence, the

plain meaning of which binds only the customer. The conclusion

that only the customer, but not Centennial, is required to

arbitrate is further bolstered (if such bolstering were needed)

by the sentence stating that “most disputes” between the parties

will be resolved through arbitration. If both parties were

required to arbitrate “any and all disputes,” as Centennial

claims, then one would wonder why the contract says that only

“most disputes,” not all disputes, are subject to resolution

through arbitration.9 Centennial’s answer is that the language

was drafted using the qualifier “most” in order to take into

account the possibility that a customer could, for example, bring

a tort suit after randomly being hit by one of the companies’

vans on the street. Such a suit, according to Centennial, would

not be covered by the duty to arbitrate because it does not

“aris[e] out of this Agreement or the Service”; thus the use of

“most.” We find it quite improbable that the language was

drafted with such a scenario in mind and, in any event, the

9
The arbitration clause contains another sentence that
states that “[t]he arbitration of any dispute or claim shall be
conducted in accordance with” certain American Arbitration
Association rules. We do not read this as stating that both
parties must arbitrate all disputes but rather as a statement
that any arbitration that does occur must be governed by the
specified AAA rules.

17
proffered explanation is insufficient to overcome the clear

import of the critical sentence in the agreement.

The one-sidedness of the duty to arbitrate raises a serious

question as to the clause’s validity. Recent Louisiana appellate

cases have deemed such an arrangement unconscionable and

unenforceable. One of those cases, Sutton’s Steel v. BellSouth

Mobility, is on all fours with the present case. Sutton’s Steel

involved a standard-form cellular-phone contract that generally

required disputes to be arbitrated but expressly carved out an

exception for attempts to collect debts from the customer, which

actions BellSouth could pursue in the courts. 776 So. 2d at 594-

96. Like Centennial’s arbitration clause, the clause in Sutton’s

Steel also barred the arbitrator from ordering consolidation or

class arbitration. Id. The court recognized that arbitration is

favored in the law and cited Louisiana’s cognate to 9 U.S.C. § 2.

Id. at 596. It nonetheless refused to enforce the clause. The

court observed that the clause was printed in small type on a

standard form and had not been bargained over. Id. The court

further determined that “the substance of the arbitration

provision is unduly burdensome and extremely harsh.” Id. The

court found particular fault with the one-sidedness of the duty

to arbitrate. Id. at 596-97.10 The court concluded that “[s]uch

10
Although subsequent cases state that the “lack of
mutuality” in the Sutton’s Steel arbitration agreement was of
particular concern, see Simpson, 849 So. 2d at 747-48, both
Sutton’s Steel and Simpson make clear that the lack of a

18
disproportionate dispensation . . . of rights and remedies is

arbitrary and is lacking in good faith,” and it refused to

enforce the clause. Id. at 597. Likewise, in another recent

case, a different Louisiana appellate court invalidated a one-

sided arbitration clause in a consumer form contract because it

was written in small print and was “unduly burdensome” to the

consumer. See Posadas v. The Pool Depot, Inc., 858 So. 2d 611,

614 (La. App. 1 Cir.), writ denied, 857 So. 2d 502 (La. 2003).11

reciprocal duty to arbitrate rendered the arbitration clause
unconscionable and unenforceable because it was an adhesionary
provision that was “unduly burdensome” to the consumer. See id.
at 746-47; Sutton’s Steel, 776 So. 2d at 596-97. Thus, the
court’s decision in Sutton’s Steel was based on adhesion and
unconscionability, with the one-sidedness of the duty to
arbitrate acting as the primary indicator of unfairness. The
court’s decision was not based on the distinct doctrine of
mutuality of remedy, according to which (it is said) courts will
not order an equitable remedy such as specific performance unless
it is available to both parties. See generally 3 RICHARD A. LORD,
WILLISTON ON CONTRACTS § 7:14 (4th ed. 1992); J.E. Macy, Annotation,
Comment Note--Mutuality of Remedy as Essential to Granting of
Specific Performance, 22 A.L.R.2d 508 (1952).
11
While the Louisiana Supreme Court has not addressed the
enforceability of such a provision, “a decision by an
intermediate appellate state court ‘is a datum for ascertaining
state law which is not to be disregarded by a federal court
unless it is convinced by other persuasive data that the highest
court of the state would decide otherwise.’” Tex. Dep’t of Hous.
& Cmty. Affairs v. Verex Assurance, Inc., 68 F.3d 922, 928 (5th
Cir. 1995) (quoting West v. Am. Tel. & Tel. Co., 311 U.S. 223,
237 (1940)). Here, of course, we have two such data points. We
are aware that courts in other jurisdictions have reached varying
decisions when faced with unconscionability challenges to one-
sided arbitration clauses. See, e.g., Ingle v. Circuit City
Stores, Inc., 328 F.3d 1165, 1174-75 (9th Cir. 2003) (holding
such an agreement unconscionable per se), cert. denied, 124 S.
Ct. 1169 (2004); Harris v. Green Tree Fin. Corp., 183 F.3d 173,
183-84 (3d Cir. 1999) (enforcing such a clause); Ex parte Parker,
730 So. 2d 168, 171 (Ala. 1999) (stating that lack of a bilateral

19
 As explained earlier, federal law would not give effect to

these state court holdings if they single out arbitration clauses

for especially strict scrutiny. We cannot conclude, at this

time, that the controlling state decisions apply different rules

than other Louisiana cases or that they apply the usual rules

differently. They certainly purport to apply general rules of

Louisiana contract law. The Sutton’s Steel opinion bases its

understanding of adhesion contracts and unconscionability on

generally applicable codal provisions and learned commentary, 776

So. 2d at 593-94, not sources applicable specifically to

arbitration. Posadas cites § 2 of the FAA, which states that

arbitration clauses are valid except when they are invalid under

generally applicable rules of contract law, and Sutton’s Steel

cites a nearly identical provision of state law; thus both cases

recognize the favored status of arbitration. The cases do not

necessarily express the impermissible view that arbitration is

inferior to litigation, for a choice of remedies is better than

being limited to one forum. Cf. Sutton’s Steel, 776 So. 2d at

596 (stating that BellSouth attempts to bind customers to

arbitration but “reserves unto itself the option of pursuing

other remedies” (emphasis added)); id. at 597 (referring to

BellSouth’s “disproportionate dispensation . . . of rights and

remedies”). In sum, while we underscore again that federal

duty to arbitrate can be “one factor” in the unconscionability
analysis but is not determinative).

20
courts must exercise care in enforcing state doctrines of

unconscionability to invalidate arbitration clauses, we conclude

in this case that the controlling state cases can properly be

applied under 9 U.S.C. § 2, which permits invalidation of

arbitration agreements under generally applicable rules of state

law. Our decision in this regard accords with this court’s

recent decision in Banc One, 367 F.3d at 431-32, which applied an

on-point Mississippi unconscionability holding where the state

decision did not appear to discriminate against arbitration.12

Despite the evident similarities between Sutton’s Steel and

the present case, Centennial attempts to distinguish Sutton’s

Steel on the grounds that the parties bargained over the contract

at issue here. When a contract is bargained over, Centennial

says, the substantive harshness of any term is irrelevant under

Louisiana law. According to Centennial’s brief, the Sheriff’s

Department’s “sophisticated purchasing agent” negotiated a

special arrangement whereby many phones shared the same block of

airtime.13 The record generated in the district court, however,

12
As Banc One also explained, later developments could
show that the apparently evenhanded state holdings are in fact
applicable only to arbitration agreements. 367 F.3d at 432 n.3.
But as in Banc One, we are unable to so conclude at this point.
13
Centennial also argues that its clause must be enforced
because the customer could choose to take his business to another
cellular service provider who, perhaps, would not have an
arbitration clause. But the same was true in Sutton’s Steel, and
Simpson v. Grimes expressly rejects such an argument. See
Simpson, 849 So. 2d at 746-48; cf. Simpson v. Pep Boys–Manny Moe
& Jack, Inc., 847 So. 2d 617, 622 (La. App. 4 Cir. 2003)

21
does not support Centennial’s efforts to paint this as a

negotiated contract. So far as the record suggests, the

purchasing agent, Deputy Dodge, was simply a member of the

department. Importantly, Sheriff Hebert and Deputy Dodge both

state in affidavits, filed as attachments to their opposition to

the motion to compel arbitration, that they “did not negotiate

nor . . . have the opportunity to negotiate the terms of” the

service agreements; both likewise say that they simply agreed to

purchase “a set number of minutes for a set monthly price.”

Centennial did not controvert these affidavits or argue, during

the hearing on the motion, that the contracts were negotiated.

The sole evidentiary basis for Centennial’s argument on

appeal is the contracts themselves. The documents reflect that

tens of phones were part of the same account and that more phones

were added periodically, but beyond that they are rather

unilluminating standing alone. All of these transactions,

including the October 2002 transaction that first added the

arbitration clause, were accomplished on Centennial’s standard

service-agreement forms. There is certainly no indication that

Dodge had any opportunity to quarrel with the boilerplate terms

and conditions printed on the back of the forms; his affidavit in

fact states that he could not and did not negotiate anything.

(recognizing the availability of other options as one factor in
the analysis but also observing that the challenged contract was
not in fine print and was not unduly burdensome).

22
Assuming that Centennial did not forfeit this issue by failing to

press it below, we reject Centennial’s attempt to bring its case

outside of Sutton’s Steel.

Before closing our discussion of the Centennial agreement,

we observe that the contract contains a severability clause,

which provides that “[i]f any portion of this arbitration

agreement is determined by a court to be inapplicable or invalid,

the remainder shall still be given full force and effect.” While

the clause might come into play if (for example) we deemed

Centennial’s confidentiality rule invalid, it cannot cure the

one-sidedness of the duty to arbitrate. This case does not

present a situation in which a certain offensive term can be

stricken from an otherwise valid agreement to arbitrate, which is

what a severability clause permits the court to do. See SWAT 24

Shreveport Bossier, Inc. v. Bond, 808 So. 2d 294, 308-09 (La.

2001). On the contrary, the offensive provision here is the

sentence in which the customer, but not Centennial, is required

to arbitrate. Saving the clause would require not that we excise

an invalid excrescence and then send the pared-down contract to

arbitration but that we redraft the contract to add important new

material--a duty on Centennial’s part to arbitrate. The

severability clause therefore cannot accomplish the needed

repair. Cf. Armendariz v. Found. Health Psychcare Servs., Inc.,

6 P.3d 669, 697-99 (Cal. 2000) (concluding that a severance could

not save such an arbitration agreement).

23
 In conclusion, we hold that the district court did not err

in denying Centennial’s motion to compel arbitration.

2. Cingular and Sprint

We next turn to Cingular and Sprint. We discuss the

Cingular and Sprint agreements in tandem, since some of the same

considerations are applicable to both. Although we examine each

challenged feature of the arbitration clauses one at a time, we

are mindful (as the plaintiffs urge us to be) that we must

consider the combined effect of the various aspects of the

clauses.

a. Fine print (Cingular and Sprint)

The plaintiffs complain that the arbitration clauses are in

difficult-to-read fine print. The district court so remarked at

the hearing on the motions to compel arbitration. Type size

would seem to bear most directly on the question whether the

contracts were formed in an adhesionary manner, which then

triggers a review for substantive harshness. See Andry, 820 So.

2d at 603-04. But the plaintiffs’ type-size argument does not by

itself show that the arbitration clause is invalid. The

companies’ arbitration clauses are not printed in type that is

smaller than that generally used in the rest of the contract.14

14
Indeed, parts of the arbitration clause in the Sprint
contract are printed in type that is somewhat larger than the
type that is generally employed. Similarly, the first paragraph
of the Cingular contract specifically adverts to the arbitration
clause, the only provision given such prominent billing.

24
See Reimonenq v. Foti, 72 F.3d 472, 477 (5th Cir. 1996). The FAA

prohibits states from passing statutes that require arbitration

clauses to be displayed with special prominence, Casarotto, 517

U.S. at 686-88, and courts cannot use unconscionability doctrines

to achieve the same result, Perry v. Thomas, 482 U.S. at 492 n.9.

We therefore reject the type-size argument as a basis for

invalidating the arbitration clauses.

b. Change-in-terms clause (Cingular and Sprint)

All of the contracts at issue in this case include a clause

permitting the cellular service provider to change the terms of

the agreement. The plaintiffs argue that these clauses render

the agreement illusory15 or render the arbitration clause

unconscionable, or both.16

15
The doctrine of illusory promises is familiar within
the common law. See generally RESTATEMENT (SECOND) OF CONTRACTS § 77
cmt. a (1981); WILLISTON ON CONTRACTS, supra, § 7:7. The Louisiana
civil-law tradition recognizes some of the same basic principles
that lie behind the common-law doctrine, albeit by employing
different terminology. See 5 SAúL LITVINOFF, LOUISIANA CIVIL LAW
TREATISE: THE LAW OF OBLIGATIONS § 5.6 (2d ed. 2001).
16
Although the defendants do not dwell on this point
(only Cingular mentions it, and only in a footnote), we note that
the change-in-terms clause potentially implicates the so-called
separability doctrine, which requires certain challenges to
contracts containing arbitration clauses to be heard by the
arbitrator rather than by the court. See Prima Paint Corp. v.
Flood & Conklin Mfg. Co., 388 U.S. 395 (1967) (holding that a
fraudulent-inducement defense that applied to the contract as a
whole, as opposed to the arbitration clause in particular, was
for the arbitrators to consider in the first instance). No other
defendant takes such a position, however, and so we will consider
the plaintiffs’ challenge to the clause on its merits. Moreover,
here the plaintiffs link the change-in-terms clause specifically
to the arbitration clause in that they claim that the former

25
 There is some support in Louisiana law for the plaintiffs’

position. A Louisiana appellate court recently concluded that a

change-in-terms provision in a standard-form contract between a

securities brokerage firm and its customers rendered the

contract’s arbitration clause one-sided and therefore

unconscionable. See Simpson, 849 So. 2d at 746-49. Unlike the

contract in Sutton’s Steel, which we discussed earlier, the terms

of the arbitration clause in Simpson facially bound both parties

to arbitrate their disputes. But the contract in Simpson also

contained another paragraph stating that the brokerage “may amend

this Agreement upon written mailing [sic] notice to Customer.”

According to the Simpson court, this change-in-terms clause

allowed the brokerage to achieve “through clever subterfuge” the

forbidden one-sided arbitration clause condemned in Sutton’s

Steel. Id. at 748. The court accordingly deemed the arbitration

clause unconscionable and unenforceable. Id. at 749.

The defendants vigorously oppugn Simpson, both as a

statement of Louisiana law and as a matter of § 2 of the FAA,

under which a court may invalidate an arbitration clause only on

grounds that would invalidate any contract. They aptly point out

that the economy is saturated with contracts that contain change-

in-terms provisions of the sort involved here. The party with

could at any time be used to render the duty to arbitrate one-
sided--making it unconscionable under Sutton’s Steel. As
discussed in the text, one Louisiana court has adopted precisely
that reasoning in striking down an arbitration clause.

26
the power to change the terms could, in theory, change any term

in the contract in a way that would make the contract

unconscionable. (The cell phone company could, for example,

surreptitiously raise the monthly fee to thousands of dollars and

give itself a security interest in the customer’s house, all in

easy-to-miss fine print.) But while we are not lightly to

disregard the rulings of state intermediate appellate courts, we

do not agree that the Louisiana Supreme Court would use Simpson’s

reasoning to declare unenforceable every contract with a change-

in-terms clause. In fact, other Louisiana cases have enforced

contracts, including arbitration contracts, that contain such

provisions. See Stadtlander v. Ryan’s Family Steakhouses, Inc.,

794 So. 2d 881 (La. App. 2 Cir. 2001) (arbitration agreement with

change-in-terms provision); cf. Seals v. Calcasieu Parish

Voluntary Council on Aging, Inc., 758 So. 2d 286, 291-93 (La.

App. 3 Cir. 2000) (explaining that an employment contract that

gave the employee a right to cancel upon notice was not invalid,

citing Long v. Foster & Assocs., 136 So. 2d 48 (La. 1961)).17

The plaintiffs have also directed us to several recent

federal cases concerning arbitration agreements that contain

change-in-terms clauses. Some of these decisions have

17
The majority opinion in Stadtlander did not explicitly
analyze the change-in-terms provision, but the majority twice
quoted the potentially problematic language, 794 So. 2d at 887,
889 n.9, and the dissent relied on that aspect of the contract,
id. at 893 & n.2 (Peatross, J., dissenting).

27
invalidated arbitration agreements that give the company the

right to alter the terms of the agreement at any time, at least

when the company is not required to give notice of the change.

See, e.g., Dumais v. Am. Golf Corp., 299 F.3d 1216, 1219 (10th

Cir. 2002) (citing cases). Such cases reason that the company,

having reserved to itself the right to change or to eliminate its

obligation, has not really bound itself at all. Here, however,

the defendant companies are required to give the customer notice

of the proposed change. See Morrison v. Circuit City Stores,

Inc., 317 F.3d 646, 668 (6th Cir. 2003); Pierce v. Kellogg, Brown

& Root, Inc., 245 F. Supp. 2d 1212, 1215 (E.D. Okla. 2003) (both

rejecting challenges to arbitration clauses containing change-in-

terms provisions and distinguishing prior decisions in which the

company was not required to give notice of the change).

The change-in-terms provisions in the contracts before us do

not render the contracts’ obligations illusory. The notice of

the change in terms can be understood as an invitation to enter

into a relationship governed by the new terms. The customer then

accepts the new terms by continuing to use the service.18 Cf.

18
Cingular’s contract specifically provides that a
customer who cancels after a change in terms would not be liable
for any early-termination fees that might otherwise apply.
Sprint’s contract is not as clear in this regard, though counsel
represented to us at oral argument that this is a month-to-month
contract without a termination charge. If a customer was
compelled to accept a burdensome change in the terms on pain of
forfeiting a deposit or paying a termination fee, that might show
that the attempt to change the terms was unconscionable or
otherwise unenforceable. Cf. LA. CIV. CODE ANN. art. 1983

28
Bank of La. v. Berry, 648 So. 2d 991, 993 (La. App. 5 Cir. 1994)

(“[A]s per the credit card agreement, the contract between the

parties was perfected upon use of the card by [the customer].”).

The fact that the company has the right to change the terms upon

notice does not mean that the contract never bound it. Nor does

the fact that the companies could later attempt to change the

arbitration clause to render it oppressive mean that the

arbitration clause, as it stands, is unconscionable.

c. Bar on class actions (Cingular)

Cingular’s arbitration agreement contains provisions barring

the arbitrator from ordering consolidation or class arbitration.

The record does not reveal whether, in the absence of such a

provision, there would otherwise be a realistic possibility that

an arbitrator would order a class-wide proceeding; it may be that

the contractual prohibitions merely make explicit what would

otherwise happen in practice. In any event, the plaintiffs argue

that the bar on collective proceedings has the effect of

immunizing the defendants from low-value claims, no matter how

meritorious those claims might be. The companies can accordingly

wrong their customers with impunity, say the plaintiffs, so long

as they do not harm any particular person to a degree that makes

it worthwhile to pursue an arbitration case. The arbitration

(requiring that contracts be performed in good faith). But it
would not mean that the original agreement never bound the
company to anything.

29
clause is therefore not so much an alternative method of dispute

resolution as it is a system for avoiding liability altogether.

While we do not discount the plaintiffs’ complaints, our

calculus also must take into account that both federal and

Louisiana policy favor arbitration as a method of dispute

resolution. See Moses H. Cone Mem’l Hosp. v. Mercury Constr.

Corp., 460 U.S. 1, 24-25 (1983) (noting the “liberal federal

policy favoring arbitration agreements”); Thomas v. Desire Cmty.

Hous. Corp., 773 So. 2d 755, 759 (La. App. 4 Cir. 2000) (en banc)

(referring to the “strong public policy in Louisiana favoring the

enforcement of arbitration clauses”). As the Supreme Court has

explained, the fact that certain litigation devices may not be

available in an arbitration is part and parcel of arbitration’s

ability to offer “simplicity, informality, and expedition,” see

Gilmer, 500 U.S. at 31 (internal quotation marks omitted),

characteristics that generally make arbitration an attractive

vehicle for the resolution of low-value claims. Moreover, this

court recently rejected an argument that an arbitration clause

prohibiting plaintiffs from proceeding collectively was

unconscionable under Texas law. See Carter, 362 F.3d at 298,

301; accord O’Quin v. Verizon Wireless, 256 F. Supp. 2d 512, 519-

20 (M.D. La. 2003) (applying Louisiana law). But see Ting, 319

F.3d at 1150 (holding that an arbitration agreement’s bar on

class-wide relief is unconscionable under California law).

30
 A highly relevant factor in considering the equities of the

arbitration clauses in this case is that the Louisiana Unfair

Trade Practices Act (LUTPA), which is one basis of the

plaintiffs’ claims, does not permit individuals to bring class

actions. See LA. REV. STAT. ANN. § 51:1409(A) (authorizing an

aggrieved individual to sue “but not in a representative

capacity”); Morris v. Sears, Roebuck & Co., 765 So. 2d 419, 421-

22 (La. App. 4 Cir. 2000).19 Although this prohibition does not

apply to the plaintiffs’ breach-of-contract cause of action, it

does significantly diminish the plaintiffs’ argument that

prohibiting class proceedings in consumer litigation is

unconscionable under Louisiana law. Moreover, LUTPA does permit

the state attorney general to sue on behalf of the state and its

consumers and to pursue restitutionary relief on behalf of a

class of aggrieved consumers. LA. REV. STAT. ANN. §§ 51:1404(B),

1407, 1408, 1414; State ex rel. Guste v. Gen. Motors Corp., 370

So. 2d 477, 487 (La. 1978). This further tends to show that the

arbitration clause does not leave the plaintiffs without remedies

or so oppress them as to rise to the level of unconscionability.

d. Confidentiality (Cingular)

19
LUTPA does, however, seek to make it feasible to
vindicate low-value claims by providing for awards of attorneys’
fees, which an arbitrator would presumably be empowered to award
in enforcing a LUTPA plaintiff’s substantive rights. See LA.
REV. STAT. ANN. § 51:1409(A); cf. Carter, 362 F.3d at 298-99. We
observe as well that Cingular’s arbitration clause expressly
permits customers to bring inexpensive small-claims actions.

31
 Cingular’s contract includes terms stating that the

existence and result of any arbitration must be kept

confidential. (This restriction does not apply to actions in

small claims court, which the agreement also permits.) The

district court was troubled by this feature of the agreement

because it deprived plaintiffs of the ability to establish

precedent. The plaintiffs add that the confidentiality

requirement, although neutral on its face, gives an informational

advantage to the repeat-player companies, who have first-hand

knowledge of how prior arbitrations against them have fared. The

plaintiffs again cite in support the Ninth Circuit’s decision in

Ting, which noted such considerations in holding unconscionable,

as a matter of California law, a confidentiality provision in a

consumer arbitration agreement. See 319 F.3d at 1151-52.20

While the confidentiality requirement is probably more

favorable to the cellular provider than to its customer, the

plaintiffs have not persuaded us that the requirement is so

20
Although couched in terms of unconscionability, the
plaintiffs’ arguments relate more to broader considerations of
public policy than to the harshness of a particular bargain.
These particular plaintiffs might be better off if prior
arbitrations had been public, and later plaintiffs might benefit
if the confidentiality provision were invalidated in this case.
The vice (if any) of the confidentiality clause lies mostly in
its systematic effect, not in its oppressiveness as regards the
particular plaintiffs before us. The difference in emphasis is
not of much moment, however, as the Louisiana courts recognize
public policy (like unconscionability) as a basis for
invalidating certain agreements. See, e.g., Boudreaux v.
Boudreaux, 745 So. 2d 61, 63 (La. App. 3 Cir. 1999).

32
offensive as to be invalid. Confidentiality can be desirable to

customers in some circumstances. Cf. Rosenberg v. Merrill Lynch,

Pierce, Fenner & Smith, Inc., 170 F.3d 1, 8 n.4 (1st Cir. 1999)

(observing, in an employment case, that both sides might prefer

the confidentiality of arbitration); American Arbitration

Association, Consumer Due Process Protocol, Principle 12(2)

(April 17, 1998), at http://www.adr.org. Indeed, the plaintiffs’

attack on the confidentiality provision is, in part, an attack on

the character of arbitration itself. If every arbitration were

required to produce a publicly available, “precedential” decision

on par with a judicial decision, one would expect that parties

contemplating arbitration would demand discovery similar to that

permitted under Rule 26, adherence to formal rules of evidence,

more extensive appellate review, and so forth--in short, all of

the procedural accoutrements that accompany a judicial

proceeding. But part of the point of arbitration is that one

“trades the procedures and opportunity for review of the

courtroom for the simplicity, informality, and expedition of

arbitration.” Mitsubishi Motors Corp. v. Soler Chrysler-

Plymouth, Inc., 473 U.S. 614, 628 (1985). We note as well that

the creation of precedent--one of the plaintiffs’ main concerns--

can cut both ways, since precedent can be helpful or harmful,

depending on the decision. Finally, a corporate repeat-player

can use confidential settlements to prevent a court from making

adverse findings, and, while confidential settlements are not

33
completely analogous to confidential arbitration, it is

instructive that Louisiana law does not prohibit them.

e. Discovery (Sprint)

Plaintiff Landry, the only plaintiff in this case who is a

Sprint customer, has complained on appeal of a clause that

prohibits discovery requests. Landry did not advert to this

aspect of the arbitration clause in his submissions in the

district court. Not only does the failure to raise the matter in

the district court invoke the rule that issues generally cannot

be raised for the first time on appeal, see Alford v. Dean Witter

Reynolds, Inc., 975 F.2d 1161, 1163 (5th Cir. 1992), but it also

means that Landry has not created the factual record that would

be necessary to shoulder his burden of showing that the

restriction would prevent him from vindicating his substantive

rights. See Carter, 362 F.3d at 298-99.21

f. Summary

Having considered the challenged features of the Cingular

and Sprint arbitration clauses, we have determined that the

clauses are not unconscionable or otherwise unenforceable under

generally applicable principles of Louisiana law. Cingular and

21
We express no view regarding whether the result of the
arbitration could later be challenged on the ground that the
restrictions on discovery frustrated Landry’s ability to
effectuate his substantive rights.

34
Sprint are therefore entitled to an order compelling arbitration

and staying the judicial proceedings. See 9 U.S.C. §§ 3-4.22

IV. CONCLUSION

The plaintiffs’ motion to dismiss the appeal for want of

jurisdiction is DENIED. We AFFIRM the district court’s judgment

to the extent that it denied Centennial’s motion to compel

arbitration. We REVERSE the judgment to the extent that it

denied the motions of Cingular and Sprint, and we REMAND the case

to the district court for entry of an appropriate order

compelling arbitration.

22
We note that Sprint requested that the district court
compel arbitration and then dismiss, rather than simply stay, the
judicial proceedings. We leave it to the district court to
determine whether such would be proper in this case. Cf. Alford,
975 F.2d at 1164.

35