                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 23 2010

                                                                        MOLLY C. DWYER, CLERK
                   UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                           FOR THE NINTH CIRCUIT



SARINYA REABROY,                                 No. 09-35521

              Plaintiff - Appellee,              D.C. No. 3:08-cv-01178-HA

  v.
                                                 MEMORANDUM *
TYPHOON!, INC.; STEVE KLINE; BO
KLINE,

              Defendants - Appellants.



                  Appeal from the United States District Court
                            for the District of Oregon
                Ancer L. Haggerty, Senior District Judge, Presiding

                        Argued and Submitted May 6, 2010
                                Portland, Oregon


Before:       KOZINSKI, Chief Judge, BEA and IKUTA, Circuit Judges.

       Under Oregon law we determine unconscionability by looking at a

contract’s terms. Vasquez-Lopez v. Beneficial Or., Inc., 152 P.3d 940, 951 (Or.

Ct. App. 2007). Because the arbitration agreement does not say who will pay the



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                                      page 2

USA&M arbitrator’s costs, the district court looked outside the contract to

USA&M rules and fees to determine the agreement’s practical effects. The

arbitration clause does not itself pose a certain enough “risk” that Reabroy “will be

saddled with prohibitive costs” to justify invalidating the agreement. Green Tree

Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 91 (2000) (emphasis added); see

Motsinger v. Lithia Rose-FT, Inc., 156 P.3d 156, 162 (Or. Ct. App. 2007). We

also know that Reabroy will not actually bear “any costs at all in the arbitration.”

Motsinger, 156 P.3d at 162. Typhoon!’s counsel stated at oral argument that her

client agreed to pay the full cost of arbitration, including the arbitrator’s fees,

regardless of the substantive outcome of the arbitration. Thus neither the terms nor

the performance of the arbitration agreement requires Reabroy to pay arbitration

costs. We therefore reverse the district court’s finding of unconscionability and

consequent denial of Typhoon!’s motion to compel arbitration.


      REVERSED.
