     Case: 13-10922       Document: 00512805373         Page: 1    Date Filed: 10/16/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                       Fifth Circuit

                                                                                    FILED
                                                                               October 16, 2014
                                      No. 13-10922
                                                                                 Lyle W. Cayce
                                                                                      Clerk
ROBERT JOHN SHARPE; CINDY GUARISCO; WILLIAM CHASE MOEN;
GARY DOWNARD; for themselves as individuals and on behalf of themselves
and for all others similarly situated,

               Plaintiffs - Appellants

v.

AMERIPLAN CORPORATION, a Texas Corporation; DENNIS BLOOM, an
individual; DANIEL BLOOM, an individual; DOES, 1-100 Inclusive;

               Defendants - Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas


Before DAVIS, ELROD, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge: *
       As the use of arbitration clauses grows, so too do the legal arguments
surrounding their validity and enforceability.             In this appeal of a district
court’s order compelling arbitration, Plaintiffs raise numerous challenges to an
arbitration clause, including the following: that the arbitration clause was not
supported by consideration, is illusory, is unconscionable, does not cover the
dispute in this case, and was waived because it was not raised early enough in



       *Judge Costa participated by designation in the oral argument of this case as a United
States District Judge for the Southern District of Texas. Since that time he has been
appointed as a Fifth Circuit Judge.
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                                No. 13-10922
the lawsuit. We find these arguments unavailing, but one more that Plaintiffs
raise warrants closer consideration under the unusual facts of this case: they
contend that the arbitration clause cannot be harmonized with other dispute
resolution procedures contained in earlier agreements that remain in effect.
                                      I.
      The independent business owners (IBOs) in AmeriPlan’s network earn
income by selling health plans and recruiting additional IBOs. If IBOs fulfill
certain criteria, they can achieve the rank of Sales Director and generate
“lifetime residual income” through commissions from the IBOs they recruit—
known as their “down lines.”     The four named Plaintiffs were all Sales
Directors by the time AmeriPlan terminated their contracts.
      AmeriPlan gave Plaintiffs notice that it was terminating their contracts
without cause on February 14, 2011, along with approximately 800 other Sales
Directors. After issuing one final commission check, AmeriPlan ceased paying
the residual income generated by the Sales Directors’ down lines. Plaintiffs
filed suit, alleging that the promised lifetime vested residual income was a
misrepresentation and that AmeriPlan had breached their contracts by ceasing
the payments.
                                     A.
      Three contracts “represent the entire agreement by and between the
Parties”: (1) the Broker Application and Agreement; (2) the Sales Director
Agreement; and (3) the Policies and Procedures Manual. The Broker and Sales
Director Agreements, which incorporate the Manual by reference, include an
amendment provision stating that they “may not be changed except by written
amendment duly executed by all parties, except as otherwise provided in this
Agreement.” The Broker Agreement provides, however, that the Manual can
“be hereinafter amended, modified or revised in the sole discretion of
AmeriPlan . . . and Broker further covenants and agrees to obtain and comply
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                                     No. 13-10922
with any and all such amendments, modifications or revisions of the Broker
Manual which may be hereinafter made by AmeriPlan.” 1
      The agreements are not the same for every plaintiff. Two of them—
Robert John Sharpe and Gary Downard—signed Sales Director Agreements
(in 2001 and 1998, respectively) that contain the following language:
      6.07.01.  THE PARTIES AGREE TO SUBMIT ANY CLAIM,
      CONTROVERSY OR DISPUTE ARISING OUT OF OR
      RELATING TO THIS AGREEMENT (AND ATTACHMENTS) OR
      THE RELATIONSHIP CREATED BY THIS AGREEMENT TO
      NON-BINDING MEDIATION PRIOR TO FILING SUCH CLAIM
      CONTROVERSY OR DISPUTE IN A COURT. . . .
      NOTWITHSTANDING THE FOREGOING, THE PARTIES MAY
      BRING AN ACTION (1) FOR MONIES OWED, (2) FOR
      INJUNCTIVE OR OTHER EXTRAORDINARY RELIEF, OR
      (3) INVOLVING THE POSSESSION OR DISPOSITION OF, OR
      OTHER RELIEF RELATING TO, REAL PROPERTY IN A
      COURT HAVING JURISDICTION AND IN ACCORDANCE
      WITH [THE NEXT PARAGRAPH] BELOW, WITHOUT
      SUBMITTING SUCH ACTION TO MEDIATION.

      6.07.02.    WITH    RESPECT    TO    ANY    CLAIMS,
      CONTROVERSIES OR DISPUTES WHICH ARE NOT FINALLY
      RESOLVED THROUGH MEDIATION, SALES DIRECTOR
      HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
      JURISDICTION OF THE STATE COURTS OF DALLAS
      COUNTY, TEXAS AND THE FEDERAL DISTRICT COURT FOR
      THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION.
      . . . VENUE FOR ANY LEGAL PROCEEDING RELATING TO OR
      ARISING OUT OF THIS AGREEMENT SHALL BE DALLAS
      COUNTY, TEXAS . . . . THIS AGREEMENT SHALL BE
      INTERPRETED AND CONSTRUED UNDER TEXAS LAWS.




      1  Plaintiff Guarisco’s Agreement has slightly different wording for this provision:
“Broker further acknowledges that he/she has received a copy of AmeriPlan’s Policies and
Procedures and Compensation Plan which are expressly incorporated into this Agreement by
reference. Broker agrees to abide by all Policies and Procedures contained therein and any
amendments, revisions or additions thereto.”
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William Moen’s Sales Director Agreement (executed in 2004), while identical
in other relevant respects, moves the jurisdiction and venue provisions one
county north, to Collin County, where AmeriPlan maintains its corporate
headquarters.
      In contrast, Cindy Guarisco’s Sales Director Agreement, signed years
earlier in 1994, contains the following provision titled “Governing Law and
Venue”: “This agreement is to be governed by and construed in accordance with
the laws of the State of Texas. Any action brought on matters relating to this
Agreement shall be maintained in Dallas, Dallas County, Texas.”              The
difference between these provisions will become important.
      None of the Sales Director Agreements contained an arbitration clause
when the Plaintiffs entered into them. Nor did the original Policy Manual.
      That changed after August 2010, when a Dallas County jury returned a
$5.5 million verdict in favor of a Sales Director who claimed that AmeriPlan
had failed to pay the promised lifetime residual income. Less than three
months later, on November 15, AmeriPlan issued a revised version of the
Policy Manual, which contained an arbitration clause. AmeriPlan made
continued access to each Sales Director’s “back office” web portal contingent
upon agreement to the revised Policy Manual. Moen and Sharpe each clicked
“I Agree” on the website to gain access to their portals. Guarisco and Downard
never logged on to the website, so AmeriPlan mailed them a letter explaining
that the Policy Manual had been updated, along with a paper copy of the
revisions.
      The arbitration provision, located on page 22 of the revised Policy
Manual under the heading “Arbitration of Disputes,” states:
      Any issue, dispute, claim or controversy (collectively, the “Claim”)
      between AmeriPlan or any officer, director, employee, manager,
      member, affiliate, legal counsel and/or advisor of AmeriPlan and
      IBO/Sales Director, arising out of or relating to the Policies and
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                                       No. 13-10922
       Procedures Manual then in effect, the IBO and/or Sales Director
       Agreements or any of the other documents, shall be resolved by
       binding arbitration at the AmeriPlan headquarters in Plano,
       Texas. The Claim shall be governed by the laws of the State of
       Texas.

       Other provisions under the arbitration heading address splitting
arbitration expenses and limiting awards to actual damages.                       The Policy
Manual contains a severability clause providing that any unenforceable
provisions will not invalidate the remainder of the agreement.
                                              B.
       On May 21, 2012, Plaintiffs filed this class action in the Superior Court
of California for the County of Los Angeles. AmeriPlan removed the case to
federal court.     Then, invoking the venue provisions in the Sales Director
Agreements, AmeriPlan successfully sought a transfer to the Northern District
of Texas.
       Once the case reached federal court in Dallas, AmeriPlan filed an answer
asserting, among other things, that the claims were subject to arbitration.
After Plaintiffs filed a motion for class certification, AmeriPlan moved to
compel arbitration and stay or dismiss Plaintiffs’ claims pursuant to the
Federal Arbitration Act.
       The magistrate judge issued an opinion recommending dismissal of the
action in favor of arbitration. She recommended, however, that the arbitration
not be governed by two clauses she found to be substantively unconscionable. 2



       2 The two stricken provisions were paragraphs (h) and (i). Paragraph (h) 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 (i) provided that, as
a “condition precedent” to filing a claim, the claimant and respondent are each required to
deposit $25,000 cash into an escrow account, which shall be applied to the costs of arbitration.
See Sharpe v. AmeriPlan Corp., 2013 WL 3927620, at *7 (N.D. Tex. July 30, 2013).
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The district court adopted the recommendation and ordered that the case be
dismissed without prejudice in favor of arbitration but with the two
unconscionable provisions severed from the arbitration provisions. Plaintiffs
appeal the decision compelling arbitration.
                                       II.
      We review a district court’s ruling on a motion to compel arbitration de
novo. Klein v. Nabors Drilling USA L.P., 710 F.3d 234, 236 (5th Cir. 2013).
      To determine whether the parties agreed to arbitrate this dispute, we
ask two questions: “(1) is there a valid agreement to arbitrate the claims and
(2) does the dispute in question fall within the scope of that arbitration
agreement.” Sherer v. Green Tree Servicing, LLC, 548 F.3d 379, 381 (5th Cir.
2008). “[A]rbitration is simply a matter of contract between the parties,” First
Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943 (1995), and the first step of
the analysis—the validity of an agreement—is governed by state law contract
principles. Klein, 710 F.3d at 236. Both parties agree that Texas law applies
to this dispute. Only at the second step of the analysis—determining the scope
of the arbitration agreement—do courts apply the federal policy favoring
arbitration and resolve ambiguities in favor of arbitration. Id. at 236–37.
      Plaintiffs raise a host of issues contesting both the validity and scope of
the arbitration provision added to the Policy Manual. In addition, they assert
that the entire arbitration provision is unconscionable and that AmeriPlan
waived its right to enforce any agreement to arbitrate by not raising the issue
until the case had been transferred to the Northern District of Texas. We first
address their argument that the arbitration provision cannot be harmonized
with the preexisting dispute resolution provisions contained in the Sales
Director Agreements.




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                                             A.
       As this court recently explained, the question whether an arbitration
provision conflicts with other dispute resolution provisions is properly
analyzed under the “validity” step of the arbitration analysis. Klein, 710 F.3d
at 237. State law, which the parties agree is Texas law, thus controls that
question and the Federal Arbitration Act’s presumption in favor of arbitration
is not implicated. See id. at 236–37. 3
       In determining whether the arbitration provision added to the Manual
in November 2010 can be harmonized with the dispute resolution provisions in
the Sales Director Agreements, the preliminary question is whether the latter
provisions survived the amendment to the Manual. Ordinarily an amendment
to a contract would supersede prior conflicting provisions, 4 but that is not the
case here for two reasons. First, the Broker and Sales Director Agreements,
which contain the original dispute resolution provisions, “may not be changed
except by written amendment duly executed by all parties, except as otherwise
provided in this Agreement.”           So although the Manual could be amended
without the need for a written agreement executed by all parties, such an
amendment could not override a provision in the Broker and Sales Director


       3 Recent cases from other circuits have followed this same approach. See, e.g., Applied
Energetics, Inc. v. NewOak Capital Mkts., LLC, 645 F.3d 522, 525–26 (2d Cir. 2011) (“Even
assuming, as the district court found, that the provisions in the two agreements could
reasonably be read as complementary, we conclude that the district court erred in applying
the presumption in favor of arbitration.”); Goldman, Sachs & Co. 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 here, the presumption does not
apply, however, we use general state-law principles of contract interpretation to effectuate
the intent of the parties. As a result, the mere availability of an alternative reading of the
forum selection clauses is beside the point.”).
       4 See, e.g., Cadle Co. v. Henderson, 982 S.W.2d 543, 546 (Tex.App.—San Antonio 1998,

no pet.) (“A modified agreement takes the place of the original.”); Boudreaux Civic Ass’n v.
Cox, 882 S.W.2d 543, 547–48 (Tex.App.—Houston [1st Dist.] 1994, no writ) (“A modification
to a contract creates a new contract that includes the new, modified provisions and the
unchanged old provisions.”).
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Agreements. Otherwise, amendments to the Manual could undo the Broker
and Sales Director Agreements in their entirety, rendering the “written
amendment” requirement a nullity. Second, AmeriPlan relied on the venue
clause, which is included in the dispute resolution provisions in the Sales
Director Agreements but does not appear in the arbitration provision of the
amended Manual, to transfer the case from the Central District of California
to the Northern District of Texas, and thus is estopped from arguing that the
dispute resolution provisions are no longer in effect. Indeed, it concedes that
the provisions in the Sales Director Agreements remain in effect, arguing
instead that they can be harmonized with the later-added mandatory
arbitration provision.
      In resolving that harmonization issue, “we must examine and consider
the entire writing in an effort to harmonize and give effect to all the provisions
of the contract so that none will be rendered meaningless.” Italian Cowboy
Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011)
(quoting J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003)).
Because of the significant differences noted above between the multifaceted
dispute resolution provisions in the Sales Director Agreements signed by
Sharpe, Moen, and Downard, and the provision in the earlier one signed by
Guarisco that only addresses venue and choice of law, we address the
provisions separately.
      The magistrate court found no “inherent conflict” between the dispute
resolution provisions in the Sales Director Agreement and the arbitration
provision in the Policy Manual, holding that they could each be given definite
meaning as a matter of law because the Sales Director Agreement “merely
designates the venue for any [legal] proceedings,” while the arbitration
provision “requires that certain claims be submitted to binding arbitration.”
Sharpe, 2013 WL 3927620, at *4. We agree with that conclusion when it comes
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to Guarisco’s agreement.      The relevant provision in her Sales Director
Agreement includes a choice-of-law clause and then states that “[a]ny action
brought on matters relating to this Agreement shall be maintained in Dallas,
Dallas County, Texas.” There is nothing else. Requiring that any lawsuit be
filed in Dallas is not incompatible with the later-added arbitration
requirement because lawsuits often precede arbitration (when a court may be
asked to decide the validity, scope, and enforceability of an arbitration clause)
or follow arbitration (when a court may be asked to enforce or set aside an
arbitration award). See Pers. Sec. & Safety Sys. Inc. v. Motorola Inc., 297 F.3d
388, 395–96 (5th Cir. 2002) (holding that an arbitration clause could be
harmonized with a forum selection clause, which could be read to mean “that
the parties must litigate in Texas courts only those disputes that are not
subject to arbitration”); Bank Julius Baer & Co., Ltd. v. Waxfield Ltd., 424 F.3d
278, 284–85 (2d Cir. 2005) (“The Forum Selection Clause can be understood . .
. as complementary to an agreement to arbitrate.”); In re Winter Park Constr.,
Inc., 30 S.W.3d 576, 578 (Tex. App.—Texarkana 2000, no pet.) (holding that a
forum selection clause did not supersede a preexisting arbitration clause
because the two provisions could be reconciled). A forum selection clause thus
still has effect in determining where any lawsuit—even one that may result in
an order compelling arbitration—must be brought.
      The relevant provisions in the Sales Director Agreements signed by
Sharpe, Moen, and Downard, however, are far more extensive than a forum
selection clause. And they do not merely require nonbinding mediation prior
to arbitration, as AmeriPlan urges. The dispute resolution provisions in the
Sales Director Agreements, which take up close to a full page and are
emphasized through the use of all caps, establish a two-tiered approach to
resolving claims. The first provision states “the parties agree to submit any
claim . . . to non-binding mediation prior to filing such claims, controversy or
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                                  No. 13-10922
dispute in a court.” A second provision then reiterates that claims will be
adjudicated in court if mediation is unsuccessful: “With respect to any claims,
controversies or disputes which are not finally resolved through mediation,
Sales Director hereby irrevocably submits to the non-exclusive jurisdiction” of
particular state and federal courts. This court-focused provision also specifies
three types of actions that “the parties may bring . . . in a court having
jurisdiction . . . without submitting such action to mediation.” Together, these
provisions create a system in which claims will be submitted to the jurisdiction
of a court if nonbinding mediation is either unproductive or not required. The
language in Guarisco’s agreement demonstrates that AmeriPlan knew how to
draft a narrow forum selection clause, and its decision in later Sales Director
Agreements to add far more extensive language establishing a full dispute
resolution process must be given effect as creating something beyond that.
      AmeriPlan’s argument that the dispute resolution provisions in the Sales
Director Agreements apply to only a limited scope of claims “not governed by
arbitration” is also at odds with the contracts’ broad language. In fact, the
categories of claims that are listed in the arbitration provision are quite similar
to those listed in the Sales Director Agreements.            The Sales Director
Agreements refer to “any claim, controversy or dispute” being submitted first
to mediation and then the “jurisdiction” of state or federal court, which is
similar to the arbitration provision’s language stating that “any issue, dispute,
claim or controversy . . . shall be resolved by binding arbitration.” Compare
Applied Energetics, 645 F.3d at 525 (“Here, the Placement Agreement’s
language that ‘[a]ny dispute’ between the parties ‘shall be adjudicated’ by
specified courts stands in direct conflict with the Engagement Agreement’s
parallel language that ‘any dispute . . . shall be resolved through binding
arbitration.’ Both provisions are all-inclusive, both are mandatory, and neither
admits the possibility of the other.”), with Pers. Sec. & Safety Sys., 297 F.3d at
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395–96 (“Rather than covering all ‘disputes’ or all ‘claims’ like the arbitration
provision in the Product Development Agreement, the forum selection clause
confers ‘exclusive jurisdiction’ on Texas courts only with respect to ‘any suit or
proceeding.’ This limitation suggests that the parties intended the clause to
apply only in the event of a non-arbitrable dispute that must be litigated in
court.”). Again, a comparison with the language in Guarisco’s agreement is
useful. The venue provision in Guarisco’s agreement states only that “any
action . . . shall be maintained in Dallas,” not that the “claims, controversies or
disputes” will be “submit[ted] to the . . . jurisdiction” of any particular court.
The “submit[ted] to the . . . jurisdiction” language demonstrates an intent for
a court to adjudicate the merits of the claims. See Union Elec. Co. v. AEGIS
Energy Syndicate 1225, 713 F.3d 366, 369 (8th Cir. 2013) (“[B]y agreeing in the
endorsement ‘to submit to the jurisdiction of the Courts of the state of
Missouri,’ [the insurer] has agreed to have, in words near the endorsement’s
beginning, ‘any dispute relating to this Insurance or to a CLAIM’ resolved in
those courts. The endorsement thus entirely supplants the condition’s
mandatory arbitration provision.”).      The mediation language also supports
this view, as it authorizes claims not resolved in mediation “to [be] fil[ed] . . .
in a court.”
      One final comparison is instructive. The dispute resolution provisions
in the Sharpe/Moen/Downard Sales Director Agreements are far more detailed
and expansive than the nonbinding mediation provisions we recently
harmonized with an arbitration clause in Klein v. Nabors Drilling USA L.P.
Klein held that a general provision stating that nothing in the parties’
agreement was “intended to violate or restrict any rights of employees
guaranteed by state or federal laws” did not conflict with an unambiguous
arbitration provision creating “an exclusive procedural mechanism for the final
resolution of all Disputes falling within its terms.” 710 F.3d at 239. The
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priority between nonbinding mediation and arbitration was explicitly
elucidated in the Klein contract, which stated that if the parties “previously
attempted and failed to resolve the Dispute by mediation or another
nonbinding mechanism, the Dispute shall be arbitrated.” Id. at 238; see also,
e.g., Bridgestone Firestone N. Am. Tire, LLC v. J & J Tire Co., L.L.C., 602 F.
Supp. 2d 770, 772 (S.D. Miss. 2009) (noting that all parties agreed that an
arbitration clause was valid that stated, “[i]f the parties are unable to resolve
the dispute through mediation, then the dispute will be submitted for binding
arbitration”).
      The dispute resolution provisions in the Sharpe/Moen/Downard Sales
Director Agreements therefore are not simply forum selection clauses like the
one we addressed in Personal Security & Safety Systems Inc. v. Motorola Inc.,
297 F.3d 388 (5th Cir. 2002), and they do not merely impose a prearbitration
mediation requirement like the one at issue in Klein.        Instead, the Sales
Director Agreements provide a two-step dispute resolution process in which
“any claims, controversies or disputes which are not finally resolved through
mediation [are] submit[ted] to the non-exclusive jurisdiction of” particular
state and federal courts. Those expansive dispute resolution provisions cannot
be harmonized with the similarly expansive arbitration provision without
rendering the dispute resolution provisions meaningless. Accordingly, we hold
that because the Sales Director Agreements signed by Sharpe, Moen, and
Downard expressly allow litigation of these claims, these three Plaintiffs are
not compelled to arbitrate their claims.      See Klein, 710 F.3d at 237 (“An
agreement that allows for disputes to be resolved through either an arbitral or
a judicial forum can hardly be considered a ‘valid agreement to arbitrate’
because the parties would not have agreed to submit any dispute to
arbitration—they would have simply agreed that they had the option
available.”).
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                                      B.
      Because Guarisco’s limited forum selection clause can be reconciled with
the arbitration provision, we must consider the other arguments she raises
challenging the order compelling arbitration. There are many of them, but we
only briefly address a few because we largely agree with the reasons provided
by the district court for why these challenges to the arbitration clause are
unsuccessful.
      Guarisco argues that the arbitration amendment was not valid for two
reasons—that it lacked consideration and was illusory. But bilateral promises
to arbitrate, which the amendment contained, constitute valid consideration.
In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 676 (Tex. 2006) (orig.
proceeding). Nor is the arbitration clause illusory given that AmeriPlan’s
amendment included a savings clause that tracks the one the Supreme Court
of Texas approved in In re Halliburton Co., 80 S.W.3d 566, 569–70 (Tex. 2002)
(orig. proceeding) (enforcing an arbitration clause that allowed the employer to
unilaterally amend the agreement because of a savings clause that prevented
any unilateral change from being retroactive).
      Guarisco contends that even if the arbitration clause is valid, this
dispute does not fall within its scope because she filed the lawsuit after she
had been terminated and the Manual containing the arbitration clause only
applies to “Active” IBOs. Although this argument finds some support in the
plain text of the agreement, on this issue the Federal Arbitration Act’s
presumption favoring arbitration comes into play. Because the Act requires us
to read the scope of the clause broadly, we conclude that it does cover this
dispute based on representations made and contracts signed while Guarisco
was an IBO.
      Unconscionability is the next ground Guarisco cites in her attempt to
avoid arbitration. Aside from the provisions the district court already found to
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                                  No. 13-10922
be unconscionable and that will not apply in Guarisco’s arbitration, we do not
find that any of the other provisions are unconscionable.
      Finally, Guarisco contends that AmeriPlan waived its right to compel
arbitration by waiting to file a motion to compel arbitration until after
Plaintiffs filed a motion for class certification. Even though AmeriPlan placed
Plaintiffs on notice of its intent to arbitrate once it filed its original answer in
Dallas federal court, Guarisco contends that invoking the judicial process to
remove the case to federal court and then seek transfer to another federal
district indicated an intent to litigate rather than arbitrate that amounts to
waiver.   As explained above, however, the forum selection clause gave
AmeriPlan the right to have its motion to compel arbitration heard in the
judicial forum to which the parties had agreed. Because it provided notice of
its intent to arbitrate in the first answer it filed and the delay between the
filing of that answer and the motion to compel was not unreasonable,
AmeriPlan did not waive its right to enforce the arbitration clause.            See
Tenneco Resins, Inc. v. Davy Int’l AG, 770 F.2d 416, 420 (5th Cir. 1985) (“[O]nce
the defendant, by answer, has given notice of insisting on arbitration the
burden is heavy on the party seeking to prove waiver.”).
      Guarisco therefore must arbitrate her claims.
                                  *      *     *
      It may seem arbitrary that Guarisco must arbitrate her claims while her
otherwise similarly situated coplaintiffs have the option of pursuing litigation.
But that result flows from the basic contract law principle that different
contractual language should be read differently.
      For these reasons, with respect to Plaintiffs Sharpe, Moen, and
Downard, we REVERSE the district court’s order dismissing the claims and
compelling arbitration and REMAND for further proceedings consistent with
this opinion. With respect to Guarisco, we AFFIRM the district court’s order
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                               No. 13-10922
dismissing her claims and compelling arbitration pursuant to all but the two
severed unconscionable provisions of the arbitration agreement.




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