In Meyer v. T-Mobile USA Inc., 2011 WL 4434810 (N.D.Cal. 2011), Judge Breyer followed Concepcion and enforced an arbitration provision in T-Mobile’s contract.  As to Concepcion, Judge Meyer enforced the arbitration clause and class-action waiver, explaining:


Plaintiff’s argument is flawed both factually and legally. First, the arbitration agreement is not governed only by California law. See Baca Decl. (dkt.17) Ex. D (“2008 T & C”) ¶ 25 (“This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state in which your billing address in our records is located.”). Second, Plaintiff’s citations to the CLRA and Discover Bank are misplaced, as the FAA preempts both. See Ting v. AT & T, 319 F.3d 1126, 1147 (9th Cir.2003) (holding that the FAA preempts section 1751 of the CLRA prohibiting class action waivers); AT & T Mobility LLC v. Concepcion, ––– U.S. ––––, ––––, 131 S.Ct. 1740, 1753, 179 L.Ed.2d 742 (2011) (holding that the FAA preempts the Discover Bank rule). Although the Supreme Court decided Concepcion after Plaintiff entered the 2008 Service Agreement, this Court must nonetheless apply Concepcion to its review of the agreement. See Ditto v. McCurdy, 510 F.3d 1070, 1076–77 (9th Cir.2007) (holding that an intervening Supreme Court decision “must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate … announcement of the rule”). Considering the language of the Service Agreement and the federal and state law governing it, the arbitration agreement’s class action waiver is valid.


Judge Breyer found that the Arbitration clause was neither procedurally nor substantively unconscionable.  As to procedural unconscionability, Judge Breyer explained: 


The Service Agreement contains some characteristics of a contract of adhesion: it is a standardized contract drafted by T–Mobile, the party with superior bargaining strength. See Opp’n (dkt.20) at 8. However, the Service Agreement did not relegate Plaintiff only to the opportunity to accept the arbitration agreement or reject T–Mobile’s phone service. Instead, the agreement contains an opt-out provision . . . ¶  Neither the opt-out provision nor the arbitration agreement was a hidden term. The arbitration agreement is located in the second numbered paragraph of the T & C of the Service Agreement and is written in capitalized and bolded letters. See id. The opt-out provision immediately follows the arbitration agreement in the second numbered paragraph of the T & C and is also written in capitalized and bolded letters. Id. Finally, the class action waiver is also located in the second numbered paragraph of the T & C, written in capitalized and bolded letters, and contains the heading “CLASS ACTION WAIVER.” Id. ¶ 3 (emphasis in original). T–Mobile’s T & C are also included in a pamphlet packaged in the boxes of all phones sold by T–Mobile, see Baca Decl. (dkt.17) ¶ 9, and although Plaintiff does not recall a pamphlet being included in her phone box, see Meyer Decl. (dkt.20–17) ¶ 7, she does not provide any information countering T–Mobile’s showing. Because the arbitration agreement contains an opt-out provision and is presented in a clear format, the arbitration agreement is not procedurally unconscionable.


As to substantive unconscionability, Judge Breyer explained:


The arbitration agreement provides for neutral arbitration. See Baca Decl. (dkt.17) Ex. D (“2008 T & C”) ¶ 2 (“The American Arbitration Association (AAA) will arbitrate all disputes.”). Parties in arbitration can receive the same damages that would otherwise be available in court. Id. (“An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees.”). Plaintiff also does not have to pay arbitrators’ fees for claims under $75,000. Id. (“We [T–Mobile] will pay upon filing of the arbitration demand, all filing, administration and arbitrator fees for claims that total less than $75,000.”). Plaintiff argues that T–Mobile’s unilateral power to modify the agreement is unconscionable, see Opp’n (dkt.20) at 13, but Plaintiff has not shown how the modification clause has been applied to her. Plaintiff thus lacks standing to challenge the provision. See Lee v. Am. Express Travel Related Servs., Inc., 348 Fed. Appx. 205, 207 (9th Cir.2009) (“Plaintiffs cannot satisfy the requirements of Article III because they have not yet been injured by the mere inclusion of these provisions, nor is the threat of future harm from such provisions sufficiently imminent to confer standing.”).     Notwithstanding some of the bilateral terms in the arbitration agreement, the agreement contains some elements of substantive unconscionability. The arbitration agreement allows T–Mobile to assign outstanding bills to collection agencies that can then pursue the claims against customers in court, but the agreement does not provide customers with the same unequivocal power (customers must opt out of arbitration). Assuming T–Mobile invoked this right in the face of a claim by a customer that the past due amount was wrongly charged, the agreement would compel the customer, the weaker party, to arbitration while exempting T–Mobile, the stronger party, from arbitration. This provision makes the arbitration agreement substantively unconscionable as to this aspect of the agreement, but as there is no procedural unconscionability, the arbitration agreement is not unconscionable on the whole.


Finally, Judge Breyer denied Plaintiff’s request for arbitration-clause related discovery, explaining:


Most of Plaintiff’s discovery requests do not relate to the validity of Plaintiff’s arbitration agreement with T–Mobile. Instead, they concern all agreements, disputes, arbitrations and lawsuits relating to T–Mobile customers in California other than Plaintiff for the entire seven-year “relevant time period.” See id. Ex. G (“First Set of Requests to Produce Documents”) ¶ 9 (requesting “DOCUMENTS showing the highest, median, and mean monetary awards in arbitrations involving T–MOBILE and CUSTOMERS during the RELEVANT TIME PERIOD.”); id. ¶ 11 (requesting “DOCUMENTS showing the amounts paid to CUSTOMERS or the outcomes of all lawsuits filed against T–MOBILE in any small claims, state or federal court during the RELEVANT TIME PERIOD.”). Plaintiff’s remaining discovery requests concern T–Mobile’s past T & C and arbitration procedures. See id. ¶ 2 (“All DOCUMENTS RELATING TO ARBITRATION PROCEDURES, including without limitation all originals and revisions that were in effect during the RELEVANT TIME PERIOD.”); id. ¶ 3 (“The TERMS AND CONDITIONS used by T–MOBILE, including all originals and revisions that were in effect during the RELEVANT TIME PERIOD.”). However, the only arbitration agreement at issue is the 2008 agreement, and the documents relevant to determining the validity of that arbitration agreement-the 2008 Service Agreement, T & C and arbitration agreement—are already accessible by the parties and the Court. See Baca Decl. (dkt.17) Ex. C (“2008 Service Agreement”); id. Ex. D (“2008 T & C”); Rivas Decl. (dkt.20–1) Ex. J (“AAA Sup-plementary Procedures for ConsumerRelated Disputes”). Because Plaintiff’s proposed discovery requests are either overly broad or irrelevant to the disposition of the pending Motion, Plaintiff is not entitled to discovery.