FILED
NOT FOR PUBLICATION JUN 29 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN MCARDLE, No. 09-17218
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
§ 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