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Sharpe v. Ameriplan Corp., 769 F.3d 909 (5th Cir.

, 2014)

769 F.3d 909 [769 F.3d 912]

Robert John SHARPE; Cindy Guarisco; arbitration, Plaintiffs raise numerous


William Chase Moen; Gary Downard; challenges to an arbitration clause, including
for themselves as individuals and on the following: that the arbitration clause was
behalf of themselves and for all others not supported by consideration, is illusory, is
similarly situated, Plaintiffs unconscionable, does not cover the dispute in
Appellants this case, and was waived because it was not
v. raised early enough in the lawsuit. We find
AMERIPLAN CORPORATION, a Texas these arguments unavailing, but one more
Corporation; Dennis Bloom, an that Plaintiffs raise warrants closer
individual; Daniel Bloom, an consideration under the unusual facts of this
individual; DOES, 1100 Inclusive; case: they contend that the arbitration clause
DefendantsAppellees. cannot be harmonized with other dispute
resolution procedures contained in earlier
No. 1310922. agreements that remain in effect.

United States Court of Appeals, Fifth I.


Circuit.
The independent business owners (IBOs)
Oct. 16, 2014 in AmeriPlan's network earn income by
selling health plans and recruiting additional
Affirmed in part; reversed and remanded IBOs. If IBOs fulfill certain criteria, they can
in part. achieve the rank of Sales Director and
generate lifetime residual income through
[769 F.3d 911] commissions from the IBOs they recruit
known as their down lines. The four named
Andrew Wayne Christman Kenton Scott Brice
Plaintiffs were all Sales Directors by the time
Christman Kelley & Clarke, P.C. Highland
AmeriPlan terminated their contracts.
Village, TX, for PlaintiffsAppellants.
AmeriPlan gave Plaintiffs notice that it
Byron Kevin Henry, Esq., Cowles &
was terminating their contracts without cause
Thompson, P.C., Dallas, TX, Michael Alan
on February 14, 2011, along with
Yanof, Esq., Attorney, Thompson, Coe,
approximately 800 other Sales Directors.
Cousins & Irons, L.L.P., Plaza of the
After issuing one final commission check,
Americas, Dallas, TX, for Defendant
AmeriPlan ceased paying the residual income
Appellee.
generated by the Sales Directors' down lines.
Plaintiffs filed suit, alleging that the promised
lifetime vested residual income was a
Appeal from the United States District Court
misrepresentation and that AmeriPlan had
for the Northern District of Texas.
breached their contracts by ceasing the
Before DAVIS, ELROD, and COSTA,
payments.
Circuit Judges. GREGG COSTA, Circuit
Judge: *
A.

As the use of arbitration clauses grows, so


Three contracts represent the entire
too do the legal arguments surrounding their
agreement by and between the Parties: (1)
validity and enforceability. In this appeal of a
the Broker Application and Agreement; (2)
district court's order compelling
the Sales Director Agreement; and (3) the
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Sharpe v. Ameriplan Corp., 769 F.3d 909 (5th Cir., 2014)

Policies and Procedures Manual. The Broker 6.07.02. WITH RESPECT TO ANY
and Sales Director Agreements, which CLAIMS, CONTROVERSIES OR DISPUTES
incorporate the Manual by reference, include WHICH ARE NOT FINALLY RESOLVED
an amendment provision stating that they THROUGH MEDIATION, SALES DIRECTOR
may not be changed except by written HEREBY IRREVOCABLY SUBMITS TO THE
amendment duly executed by all parties, NON-EXCLUSIVE JURISDICTION OF THE
except as otherwise provided in this STATE COURTS OF DALLAS COUNTY,
Agreement. The Broker Agreement provides, TEXAS AND THE FEDERAL DISTRICT
however, that the Manual can be hereinafter COURT FOR THE NORTHERN DISTRICT
amended, modified or revised in the sole OF TEXAS, DALLAS DIVISION.... VENUE
discretion of AmeriPlan ... and Broker further FOR ANY LEGAL PROCEEDING RELATING
covenants and agrees to obtain and comply TO OR ARISING OUT OF THIS
with any and all such amendments, AGREEMENT SHALL BE DALLAS COUNTY,
modifications or revisions of the Broker TEXAS.... THIS AGREEMENT SHALL BE
Manual which may be hereinafter made by INTERPRETED AND CONSTRUED UNDER
AmeriPlan.1 TEXAS LAWS.

The agreements are not the same for William Moen's Sales Director Agreement
every plaintiff. Two of themRobert John (executed in 2004), while identical in other
Sharpe and Gary Downardsigned Sales relevant respects, moves the jurisdiction and
Director Agreements (in 2001 and 1998, venue provisions one county north, to Collin
respectively) that contain the following County, where AmeriPlan maintains its
language: corporate headquarters.

6.07.01. THE PARTIES AGREE TO In contrast, Cindy Guarisco's Sales


SUBMIT ANY CLAIM, CONTROVERSY OR Director Agreement, signed years earlier in
DISPUTE ARISING OUT OF OR RELATING 1994, contains the following provision titled
TO THIS AGREEMENT (AND Governing Law and Venue: This agreement
ATTACHMENTS) OR THE RELATIONSHIP is to be governed by and construed in
CREATED BY THIS AGREEMENT TO NON- accordance with the laws of the State of
BINDING MEDIATION PRIOR TO FILING Texas. Any action brought on matters relating
SUCH CLAIM CONTROVERSY OR DISPUTE to this Agreement shall be maintained in
IN A COURT.... NOTWITHSTANDING THE Dallas, Dallas County, Texas. The difference
FOREGOING, THE PARTIES MAY BRING between these provisions will become
AN ACTION (1) FOR MONIES OWED, (2) important.
FOR INJUNCTIVE OR OTHER
EXTRAORDINARY None of the Sales Director Agreements
contained an arbitration clause when the
[769 F.3d 913] Plaintiffs entered into them. Nor did the
original Policy Manual.
RELIEF, OR (3) INVOLVING THE
POSSESSION OR DISPOSITION OF, OR That changed after August 2010, when a
OTHER RELIEF RELATING TO, REAL Dallas County jury returned a $ 5.5 million
PROPERTY IN A COURT HAVING verdict in favor of a Sales Director who
JURISDICTION AND IN ACCORDANCE claimed that AmeriPlan had failed to pay the
WITH [THE NEXT PARAGRAPH] BELOW, promised lifetime residual income. Less than
WITHOUT SUBMITTING SUCH ACTION TO three months later, on November 15,
MEDIATION. AmeriPlan issued a revised version of the
Policy Manual, which contained an
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Sharpe v. Ameriplan Corp., 769 F.3d 909 (5th Cir., 2014)

arbitration clause. AmeriPlan made sought a transfer to the Northern District of


continued access to each Sales Director's Texas.
back office web portal contingent upon
agreement to the revised Policy Manual. Once the case reached federal court in
Moen and Sharpe each clicked I Agree on Dallas, AmeriPlan filed an answer asserting,
the website to gain access to their portals. among other things, that the claims were
Guarisco and Downard never logged on to the subject to arbitration. After Plaintiffs filed a
website, so AmeriPlan mailed them a letter motion for class certification, AmeriPlan
explaining that the Policy Manual had been moved to compel arbitration and stay or
updated, along with a paper copy of the dismiss Plaintiffs' claims pursuant to the
revisions. Federal Arbitration Act.

The arbitration provision, located on The magistrate judge issued an opinion


page 22 of the revised Policy Manual under recommending dismissal of the action in
the heading Arbitration of Disputes, states: favor of arbitration. She recommended,
however, that the arbitration not be governed
Any issue, dispute, claim or controversy by two clauses she found to be substantively
(collectively, the Claim) between AmeriPlan unconscionable.2 The district court adopted
or any officer, director, employee, manager, the recommendation and ordered that the
member, affiliate, legal counsel and/or case be dismissed without prejudice in favor
advisor of AmeriPlan and IBO/Sales Director, of arbitration but with the two
arising out of or relating to the Policies and unconscionable provisions severed from the
Procedures Manual then in effect, the IBO arbitration provisions. Plaintiffs appeal the
and/or Sales Director Agreements or any of decision compelling arbitration.
the other documents, shall be resolved by
binding arbitration at the AmeriPlan II.
headquarters in Plano, Texas. The Claim shall
be governed by the laws of the State of Texas. We review a district court's ruling on a
motion to compel arbitration de novo. Klein
Other provisions under the arbitration v. Nabors Drilling USA L.P., 710 F.3d 234,
heading address splitting arbitration 236 (5th Cir.2013).
expenses and limiting awards to actual
damages. The Policy Manual contains a To determine whether the parties agreed
severability clause providing that any to arbitrate this dispute, we ask two
unenforceable questions: (1) is there a valid agreement to
arbitrate the claims and (2) does the dispute
[769 F.3d 914] in question fall within the scope of that
arbitration agreement. Sherer v. Green Tree
provisions will not invalidate the remainder Servicing, LLC, 548 F.3d 379, 381 (5th
of the agreement. Cir.2008). [A]rbitration is simply a matter of
contract between the parties, First Options
B. of Chi., Inc. v. Kaplan, 514 U.S. 938, 943, 115
S.Ct. 1920, 131 L.Ed.2d 985 (1995), and the
On May 21, 2012, Plaintiffs filed this class first step of the analysisthe validity of an
action in the Superior Court of California for agreementis governed by state law contract
the County of Los Angeles. AmeriPlan principles. Klein, 710 F.3d at 236. Both
removed the case to federal court. Then, parties agree that Texas law applies to this
invoking the venue provisions in the Sales dispute. Only at the second step of the
Director Agreements, AmeriPlan successfully analysisdetermining the scope of the
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Sharpe v. Ameriplan Corp., 769 F.3d 909 (5th Cir., 2014)

arbitration agreementdo courts apply the Agreement. So although the Manual could be
federal policy favoring arbitration and resolve amended without the need for a written
ambiguities in favor of arbitration. Id. at 236 agreement executed by all parties, such an
37. amendment could not override a provision in
the Broker and Sales Director Agreements.
Plaintiffs raise a host of issues contesting Otherwise, amendments to the Manual could
both the validity and scope of the arbitration undo the Broker and Sales Director
provision added to the Policy Manual. In Agreements in their entirety, rendering the
addition, they assert that the entire written amendment requirement a nullity.
arbitration provision is unconscionable and Second, AmeriPlan relied on the venue
that AmeriPlan waived its right to enforce any clause, which is included in the dispute
agreement to arbitrate by not raising the issue resolution provisions in the Sales Director
until the case had been transferred to the Agreements but does not appear in the
Northern District of Texas. We first address arbitration provision of the amended Manual,
their argument that the arbitration provision to transfer the case from the Central District
cannot be harmonized with the preexisting of California to the Northern District of
dispute resolution provisions contained in the Texas, and thus is estopped from arguing that
Sales Director Agreements. the dispute resolution provisions are no
longer in effect. Indeed, it concedes that the
[769 F.3d 915] provisions in the Sales Director Agreements
remain in effect, arguing instead that they can
A. be harmonized with the later-added
mandatory arbitration provision.
As this court recently explained, the
question whether an arbitration provision In resolving that harmonization issue,
conflicts with other dispute resolution we must examine and consider the entire
provisions is properly analyzed under the writing in an effort to harmonize and give
validity step of the arbitration analysis. effect to all the provisions of the contract so
Klein, 710 F.3d at 237. State law, which the that none will be rendered meaningless.
parties agree is Texas law, thus controls that Italian Cowboy Partners, Ltd. v. Prudential
question and the Federal Arbitration Act's Ins. Co. of Am., 341 S.W.3d 323, 333
presumption in favor of arbitration is not (Tex.2011) (quoting J.M. Davidson, Inc. v.
implicated. See id. at 23637.3 Webster, 128 S.W.3d 223, 229 (Tex.2003)).
Because of the significant differences noted
In determining whether the arbitration
above between the multifaceted dispute
provision added to the Manual in November
resolution provisions in the Sales Director
2010 can be harmonized with the dispute
Agreements signed by
resolution provisions in the Sales Director
Agreements, the preliminary question is [769 F.3d 916]
whether the latter provisions survived the
amendment to the Manual. Ordinarily an Sharpe, Moen, and Downard, and the
amendment to a contract would supersede provision in the earlier one signed by
prior conflicting provisions,4 but that is not Guarisco that only addresses venue and
the case here for two reasons. First, the choice of law, we address the provisions
Broker and Sales Director Agreements, which separately.
contain the original dispute resolution
provisions, may not be changed except by The magistrate court found no inherent
written amendment duly executed by all conflict between the dispute resolution
parties, except as otherwise provided in this provisions in the Sales Director Agreement
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Sharpe v. Ameriplan Corp., 769 F.3d 909 (5th Cir., 2014)

and the arbitration provision in the Policy they do not merely require nonbinding
Manual, holding that they could each be given mediation prior to arbitration, as AmeriPlan
definite meaning as a matter of law because urges. The dispute resolution provisions in
the Sales Director Agreement merely the Sales Director Agreements, which take up
designates the venue for any [legal] close to a full page and are emphasized
proceedings, while the arbitration provision through the use of all caps, establish a two-
requires that certain claims be submitted to tiered approach to resolving claims. The first
binding arbitration. Sharpe, 2013 WL provision states the parties agree to submit
3927620, at *4. We agree with that any claim ... to non-binding mediation prior
conclusion when it comes to Guarisco's to filing such claims, controversy or dispute in
agreement. The relevant provision in her a court. A second provision then reiterates
Sales Director Agreement includes a choice- that claims will be adjudicated in court if
of-law clause and then states that [a]ny mediation is unsuccessful: With respect to
action brought on matters relating to this any claims, controversies or disputes which
Agreement shall be maintained in Dallas, are not finally resolved through mediation,
Dallas County, Texas. There is nothing else. Sales Director hereby irrevocably submits to
Requiring that any lawsuit be filed in Dallas is the non-exclusive jurisdiction of particular
not incompatible with the later-added state and federal courts. This court-focused
arbitration requirement because lawsuits provision also specifies three types of actions
often precede arbitration (when a court may that the parties may bring ... in a court
be asked to decide the validity, scope, and having jurisdiction ... without submitting
enforceability of an arbitration clause) or such action to mediation. Together, these
follow arbitration (when a court may be asked provisions create a system in which claims
to enforce or set aside an arbitration award). will be submitted to the jurisdiction of a court
See Pers. Sec. & Safety Sys. Inc. v. Motorola if nonbinding mediation is either
Inc., 297 F.3d 388, 39596 (5th Cir.2002) unproductive or not required. The language
(holding that an arbitration clause could be in Guarisco's agreement demonstrates that
harmonized with a forum selection clause, AmeriPlan knew how to draft a narrow forum
which could be read to mean that the parties selection clause, and its decision in later Sales
must litigate in Texas courts only those Director Agreements to add far more
disputes that are not subject to arbitration); extensive language establishing a full
Bank Julius Baer & Co., Ltd. v. Waxfield Ltd.,
424 F.3d 278, 28485 (2d Cir.2005) (The [769 F.3d 917]
Forum Selection Clause can be understood ...
as complementary to an agreement to dispute resolution process must be given
arbitrate.); In re Winter Park Constr., Inc., effect as creating something beyond that.
30 S.W.3d 576, 578 (Tex.App.Texarkana
2000, no pet.) (holding that a forum selection AmeriPlan's argument that the dispute
clause did not supersede a preexisting resolution provisions in the Sales Director
arbitration clause because the two provisions Agreements apply to only a limited scope of
could be reconciled). A forum selection clause claims not governed by arbitration is also at
thus still has effect in determining where any odds with the contracts' broad language. In
lawsuiteven one that may result in an order fact, the categories of claims that are listed in
compelling arbitrationmust be brought. the arbitration provision are quite similar to
those listed in the Sales Director Agreements.
The relevant provisions in the Sales The Sales Director Agreements refer to any
Director Agreements signed by Sharpe, Moen, claim, controversy or dispute being
and Downard, however, are far more submitted first to mediation and then the
extensive than a forum selection clause. And jurisdiction of state or federal court, which
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Sharpe v. Ameriplan Corp., 769 F.3d 909 (5th Cir., 2014)

is similar to the arbitration provision's One final comparison is instructive. The


language stating that any issue, dispute, dispute resolution provisions in the
claim or controversy ... shall be resolved by Sharpe/Moen/Downard Sales Director
binding arbitration. Compare Applied Agreements are far more detailed and
Energetics, 645 F.3d at 525 (Here, the expansive than the nonbinding mediation
Placement Agreement's language that [a]ny provisions we recently harmonized with an
dispute between the parties shall be arbitration clause in Klein v. Nabors Drilling
adjudicated by specified courts stands in USA L.P. Klein held that a general provision
direct conflict with the Engagement stating that nothing in the parties' agreement
Agreement's parallel language that any was intended to violate or restrict any rights
dispute ... shall be resolved through binding of employees guaranteed by state or federal
arbitration. Both provisions are all-inclusive, laws did not conflict with an unambiguous
both are mandatory, and neither admits the arbitration provision creating an exclusive
possibility of the other.), with Pers. Sec. & procedural mechanism for the final resolution
Safety Sys., 297 F.3d at 39596 (Rather than of all Disputes falling within its terms. 710
covering all disputes' or all claims' like the F.3d at 239. The priority between nonbinding
arbitration provision in the Product mediation and arbitration was explicitly
Development Agreement, the forum selection elucidated in the Klein contract, which stated
clause confers exclusive jurisdiction on that if the parties previously attempted and
Texas courts only with respect to any suit or failed to resolve the Dispute by mediation or
proceeding. This limitation suggests that the another nonbinding mechanism, the Dispute
parties intended the clause to apply only in shall be arbitrated. Id. at 238; see also, e.g.,
the event of a non-arbitrable dispute that Bridgestone Firestone N. Am. Tire, LLC v. J
must be litigated in court.). Again, a & J Tire Co., L.L.C., 602 F.Supp.2d 770, 772
comparison with the language in Guarisco's (S.D.Miss.2009) (noting that all parties
agreement is useful. The venue provision in agreed that an arbitration clause was valid
Guarisco's agreement states only that any that stated, [i]f the parties are unable to
action ... shall be maintained in Dallas, not
that the claims, controversies or disputes [769 F.3d 918]
will be submit[ted] to the ... jurisdiction of
any particular court. The submit[ted] to the resolve the dispute through mediation, then
... jurisdiction language demonstrates an the dispute will be submitted for binding
intent for a court to adjudicate the merits of arbitration).
the claims. See Union Elec. Co. v. AEGIS
Energy Syndicate 1225, 713 F.3d 366, 369 The dispute resolution provisions in the
(8th Cir.2013) ([B]y agreeing in the Sharpe/Moen/Downard Sales Director
endorsement to submit to the jurisdiction of Agreements therefore are not simply forum
the Courts of the state of Missouri, [the selection clauses like the one we addressed in
insurer] has agreed to have, in words near the Personal Security & Safety Systems Inc. v.
endorsement's beginning, any dispute Motorola Inc., 297 F.3d 388 (5th Cir.2002),
relating to this Insurance or to a CLAIM and they do not merely impose a
resolved in those courts. The endorsement prearbitration mediation requirement like the
thus entirely supplants the condition's one at issue in Klein. Instead, the Sales
mandatory arbitration provision.). The Director Agreements provide a two-step
mediation language also supports this view, dispute resolution process in which any
as it authorizes claims not resolved in claims, controversies or disputes which are
mediation to [be] fil[ed] ... in a court. not finally resolved through mediation [are]
submit[ted] to the non-exclusive jurisdiction
of particular state and federal courts. Those
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expansive dispute resolution provisions Guarisco contends that even if the


cannot be harmonized with the similarly arbitration clause is valid, this dispute does
expansive arbitration provision without not fall within its scope because she filed the
rendering the dispute resolution provisions lawsuit after she had been terminated and the
meaningless. Accordingly, we hold that Manual containing the arbitration clause only
because the Sales Director Agreements signed applies to Active IBOs. Although this
by Sharpe, Moen, and Downard expressly argument finds some support in the plain text
allow litigation of these claims, these three of the agreement, on this issue the Federal
Plaintiffs are not compelled to arbitrate their Arbitration Act's presumption favoring
claims. See Klein, 710 F.3d at 237 (An arbitration comes into play. Because the Act
agreement that allows for disputes to be requires us to read the scope of the clause
resolved through either an arbitral or a broadly, we conclude that it does cover this
judicial forum can hardly be considered a dispute based on representations made and
valid agreement to arbitrate because the contracts signed while Guarisco was an IBO.
parties would not have agreed to submit any
dispute to arbitrationthey would have Unconscionability is the next ground
simply agreed that they had the option Guarisco cites in her attempt to avoid
available.). arbitration. Aside from the provisions the
district court already found to be
B. unconscionable and that will not apply in
Guarisco's arbitration, we do not find that any
Because Guarisco's limited forum of the other provisions are unconscionable.
selection clause can be reconciled with the
arbitration provision, we must consider the Finally, Guarisco contends that
other arguments she raises challenging the AmeriPlan waived its right to compel
order compelling arbitration. There are many arbitration
of them, but we only briefly address a few
because we largely agree with the reasons [769 F.3d 919]
provided by the district court for why these
challenges to the arbitration clause are by waiting to file a motion to compel
unsuccessful. arbitration until after Plaintiffs filed a motion
for class certification. Even though AmeriPlan
Guarisco argues that the arbitration placed Plaintiffs on notice of its intent to
amendment was not valid for two reasons arbitrate once it filed its original answer in
that it lacked consideration and was illusory. Dallas federal court, Guarisco contends that
But bilateral promises to arbitrate, which the invoking the judicial process to remove the
amendment contained, constitute valid case to federal court and then seek transfer to
consideration. In re Palm Harbor Homes, another federal district indicated an intent to
Inc., 195 S.W.3d 672, 676 (Tex.2006) (orig. litigate rather than arbitrate that amounts to
proceeding). Nor is the arbitration clause waiver. As explained above, however, the
illusory given that AmeriPlan's amendment forum selection clause gave AmeriPlan the
included a savings clause that tracks the one right to have its motion to compel arbitration
the Supreme Court of Texas approved in In re heard in the judicial forum to which the
Halliburton Co., 80 S.W.3d 566, 56970 parties had agreed. Because it provided notice
(Tex.2002) (orig. proceeding) (enforcing an of its intent to arbitrate in the first answer it
arbitration clause that allowed the employer filed and the delay between the filing of that
to unilaterally amend the agreement because answer and the motion to compel was not
of a savings clause that prevented any unreasonable, AmeriPlan did not waive its
unilateral change from being retroactive). right to enforce the arbitration clause. See
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Sharpe v. Ameriplan Corp., 769 F.3d 909 (5th Cir., 2014)

Tenneco Resins, Inc. v. Davy Int'l AG, 770 reference. Broker agrees to abide by all
F.2d 416, 420 (5th Cir.1985) ([O]nce the Policies and Procedures contained therein
defendant, by answer, has given notice of and any amendments, revisions or additions
insisting on arbitration the burden is heavy thereto.
on the party seeking to prove waiver.).
2. The two stricken provisions were
Guarisco therefore must arbitrate her paragraphs (h) and (i). Paragraph (h)
claims. provided that a material breach occurs if
either party circumvents the arbitration
clause by seeking remedies through a court of
law, and the breaching party shall bare [sic]
*** all costs of court, attorneys' fees, and other
fees arising from the breach; and paragraph
It may seem arbitrary that Guarisco must (i) provided that, as a condition precedent
arbitrate her claims while her otherwise to filing a claim, the claimant and respondent
similarly situated co-plaintiffs have the option are each required to deposit $ 25,000 cash
of pursuing litigation. But that result flows into an escrow account, which shall be
from the basic contract law principle that applied to the costs of arbitration. See Sharpe
different contractual language should be read v. AmeriPlan Corp., 2013 WL 3927620, at *7
differently. (N.D.Tex. July 30, 2013).

For these reasons, with respect to 3. Recent cases from other circuits have
Plaintiffs Sharpe, Moen, and Downard, we followed this same approach. See, e.g.,
REVERSE the district court's order Applied Energetics, Inc. v. NewOak Capital
dismissing the claims and compelling Mkts., LLC, 645 F.3d 522, 52526 (2d
arbitration and REMAND for further Cir.2011) (Even assuming, as the district
proceedings consistent with this opinion. court found, that the provisions in the two
With respect to Guarisco, we AFFIRM the agreements could reasonably be read as
district court's order dismissing her claims complementary, we conclude that the district
and compelling arbitration pursuant to all but court erred in applying the presumption in
the two severed unconscionable provisions of favor of arbitration.); Goldman, Sachs & Co.
the arbitration agreement. v. City of Reno, 747 F.3d 733, 746 (9th
Cir.2014) (The flaw in this argument is that
--------
it erroneously assumes that the presumption
in favor of arbitrability applies.... Where, as
Notes:
here, the presumption does not apply,
however, we use general state-law principles
Judge Costa participated by designation
*
of contract interpretation to effectuate the
in the oral argument of this case as a United
intent of the parties. As a result, the mere
States District Judge for the Southern District
availability of an alternative reading of the
of Texas. Since that time he has been
forum selection clauses is beside the point.).
appointed as a Fifth Circuit Judge.
4.See, e.g., Cadle Co. v. Henderson, 982
1.Plaintiff Guarisco's Agreement has
S.W.2d 543, 546 (Tex.App.San Antonio
slightly different wording for this provision:
1998, no pet.) (A modified agreement takes
Broker further acknowledges that he/she has
the place of the original.); Boudreaux Civic
received a copy of AmeriPlan's Policies and
Ass'n v. Cox, 882 S.W.2d 543, 54748
Procedures and Compensation Plan which are
(Tex.App.Houston [1st Dist.] 1994, no writ)
expressly incorporated into this Agreement by
(A modification to a contract creates a new
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Sharpe v. Ameriplan Corp., 769 F.3d 909 (5th Cir., 2014)

contract that includes the new, modified


provisions and the unchanged old
provisions.).

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