FILED
NOT FOR PUBLICATION JUN 12 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LAURIE CHERNY; ALEX CHERNY; No. 09-56964
WAYNE CHANG, on behalf of
themselves and all others similarly D.C. No. 2:09-cv-03625-GW-
situated, AGR
Plaintiffs - Appellees,
MEMORANDUM *
v.
AT&T MOBILITY LLC,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted June 8, 2012 **
Pasadena, California
Before: TROTT and BYBEE, Circuit Judges, and DUFFY, District Judge.***
*
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).
***
The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
AT&T Mobility LLC appeals the district court’s denial of its motion to
compel arbitration. We have jurisdiction under 9 U.S.C. § 16(a)(1)(B).
In determining that the arbitration clause was unenforceable, the district
court relied solely on this court’s previous decision in Laster v. AT&T Mobility
LLC, 584 F.3d 849 (9th Cir. 2009), which was later reversed by the Supreme Court
in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011). The district court
expressly declined to address Plaintiffs’ other arguments as to why the arbitration
clause might be unenforceable -- that AT&T’s modification to the arbitration
clause in 2009 was improper because Plaintiffs lacked adequate notice of the
change, and that the arbitration clause is unconscionable even after Concepcion.
Therefore, we reverse and remand to the district court for further proceedings
consistent with Concepcion and this court’s recent decision in Coneff v. AT&T
Corp., 673 F.3d 1155 (9th Cir. 2012). See Flexible Lifeline Sys., Inc. v. Precision
Lift, Inc., 654 F.3d 989, 1000 (9th Cir. 2011) (per curiam); Jones v. Blanas, 393
F.3d 918, 936 (9th Cir. 2004).
REVERSED and REMANDED.
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