FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MOHAMMED AL-SAFIN, 

Plaintiff-Appellee, No. 03-35297

v. D.C. No.  CV 99-1953 MJP CIRCUIT CITY STORES, INC., a

Virginia corporation, OPINION

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, District Judge, Presiding

Argued and Submitted

May 5, 2004—Seattle, Washington

Filed January 14, 2005

Before: A. Wallace Tashima, Richard A. Paez, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Tashima;

Dissent by Judge Bea

649
COUNSEL

Red Darrell Berry, Livingston & Mattesich, Sacramento, California, for the defendant-appellant. 

Michael C. Subit, Frank Freed Subit & Thomas, LLP, Seattle,

Washington, for the plaintiff-appellee. 

652 AL-SAFIN v. CIRCUIT CITY STORES
OPINION

TASHIMA, Circuit Judge: 

Circuit City Stores, Inc. (“Circuit City”), appeals the district court’s denial of its motion to dismiss and compel arbitration of Mohammed Al-Safin’s employment discrimination

claims. The district court held that the arbitration agreement

between Circuit City and Al-Safin is unconscionable under

Washington state law, and thus unenforceable. We have jurisdiction pursuant to 9 U.S.C. § 16(a)(1)(B), see Ferguson v.

Countrywide Credit Indus., Inc., 298 F.3d 778, 780 (9th Cir.

2002), and we affirm.

BACKGROUND

In June 1997, Al-Safin applied for a job at a Circuit City

store in the state of Washington. Before Circuit City would

consider his application, Al-Safin was required to sign an

arbitration agreement entitled “Circuit City Dispute Resolution Agreement” (“DRA”). By signing the DRA, Al-Safin

agreed to resolve all disputes arising out of his employment

relationship with Circuit City through arbitration in accordance with the “Circuit City Dispute Resolution Rules and

Procedures” (“DRRP”). 

Rule 19 of the DRRP in effect in 1997 (the “1997 DRRP”)

stated that both the DRA and the DRRP could be amended

“on December 31st of any year upon giving 30 calendar days

written notice to Associates, provided that all claims arising

before alteration or termination shall be subject to the [DRA]

and corresponding [DRRP] in effect at the time the claim

arose.”1 (Emphasis added.) 

1

“Circuit City refers to all job applicants and to current and former

employees as ‘Associates.’ ” Ingle v. Circuit City Stores, Inc., 328 F.3d

1165, 1169 n.1 (9th Cir. 2003). 

AL-SAFIN v. CIRCUIT CITY STORES 653
While Al-Safin was still employed by Circuit City, the

DRRP was amended, effective December 31, 1997 (the “1998

DRRP”). The 1998 DRRP was essentially the same as the

1997 DRRP, except that Rule 19 was amended to state that

“all claims arising before alteration or termination shall be

subject to the [DRA] and corresponding [DRRP] in effect at

the time the Arbitration Request Form and accompanying filing fee is received by the Company.” (Emphasis added.) The

result of this modification would be that any arbitration filed

in 2003 would be governed by the DRRP in effect in 2003,

as opposed to the DRRP in effect when the claim arose. 

Al-Safin continued to work for Circuit City after the 1998

modification until his employment was terminated in November 1998. 

On December 2, 1999, Al-Safin filed a complaint against

Circuit City in the United States District Court for the Western District of Washington alleging violations of both federal

and state anti-discrimination laws. Circuit City filed a motion

to compel arbitration, which was denied, and Circuit City

appealed. 

In an unpublished disposition, we reversed the district

court’s decision and held that: (1) the district court improperly

relied on Duffield v. Robertson Stephens & Co., 144 F.3d

1182 (9th Cir. 1998), “to hold that the compulsory arbitration

contract was unenforceable;” (2) “to the extent that the district

court relied on the ‘knowing waiver’ requirement of Prudential Ins. Co. v. Lai, 42 F.3d 1299 (9th Cir. 1994), our examination of the relevant contract reveals that the requirement

was met as a matter of law;” and (3) “although we express no

opinion as to the enforceability of particular provisions, we

are unable to agree with the suggestion that illegal provisions

so infected the contract as to render it invalid as a matter of

federal law.” Al-Safin v. Circuit City Stores, Inc., 46 Fed.

Appx. 446 (9th Cir. 2002) (emphasis added) (“Al-Safin I”).

We explicitly remanded the case for the district court to con654 AL-SAFIN v. CIRCUIT CITY STORES
sider “the validity of these contracts under state law.” Id. at

447. 

Effective December 31, 2002, long after Al-Safin was terminated by Circuit City, and over three years into this litigation, the DRRP was again amended (the “2003 DRRP”). The

2003 DRRP modified many of the provisions that have been

deemed unconscionable or unenforceable in other proceedings. See Circuit City Stores, Inc. v. Mantor, 335 F.3d 1101

(9th Cir. 2003); Ingle, 328 F.3d 1165; Circuit City Stores, Inc.

v. Adams, 279 F.3d 889 (9th Cir.), cert. denied, 535 U.S. 1112

(2002); Gannon v. Circuit City Stores, Inc., 262 F.3d 677 (8th

Cir. 2001); see also Morrison v. Circuit City Stores, Inc., 317

F.3d 646, 666 (6th Cir. 2003) (expressing “serious doubts

about the fairness and reasonableness” of the DRRP’s terms

“concerning remedies, the payment of arbitration fees, discovery, and the limitations period for requesting arbitration”). 

One week after adopting the 2003 DRRP, Circuit City

renewed its motion to compel arbitration and argued that

under the new DRRP the arbitration agreement is enforceable.

The district court held that the 1997 DRRP, and not the 1998

or 2003 DRRP, applies, and that the arbitration agreement is

unenforceable because it is unconscionable under Washington

law. After its motion for reconsideration was denied, Circuit

City appealed. 

STANDARD OF REVIEW

The district court’s denial of a motion to compel arbitration

is reviewed de novo. Ingle, 328 F.3d at 1169.

DISCUSSION

[1] The Federal Arbitration Act (“FAA”) was enacted “to

reverse the longstanding judicial hostility to arbitration agreements . . . and to place arbitration agreements upon the same

footing as other contracts.” Gilmer v. Interstate/Johnson Lane

AL-SAFIN v. CIRCUIT CITY STORES 655
Corp., 500 U.S. 20, 24 (1991). The FAA applies to arbitration

agreements, like the one here, that cover employment-related

claims. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105

(2001). The FAA provides that arbitration agreements generally “shall be valid, irrevocable, and enforceable,” but courts

may decline to enforce them when grounds “exist at law or in

equity for the revocation of any contract.” 9 U.S.C. § 2.

“Thus, generally applicable contract defenses, such as fraud,

duress, or unconscionability, may be applied to invalidate

arbitration agreements without contravening” federal law.

Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996).

Accordingly, we review Al-Safin’s arbitration agreement

with Circuit City in light of the “liberal federal policy favoring arbitration agreements,” Moses H. Cone Mem’l Hosp. v.

Mercury Constr. Corp., 460 U.S. 1, 24 (1983), and consider

its enforceability according to the laws of the state of contract

formation, see First Options of Chicago, Inc. v. Kaplan, 514

U.S. 938, 944 (1995); Ingle, 328 F.3d at 1170. 

The parties dispute whether: (1) we previously decided that

the arbitration agreement is enforceable; (2) the agreement is

unconscionable under Washington law; and (3) any unenforceable contract provisions are severable.2

I. Law of the Case

Circuit City contends that our prior decision instructed the

district court to determine if any particular contract terms are

unenforceable under Washington law, while enforcing the

core contractual obligation to arbitrate. See Al-Safin I, 46 Fed.

Appx. 446. We disagree. 

2Our decision in EEOC v. Luce, Forward, Hamilton & Scripps, 345

F.3d 742 (9th Cir. 2003) (en banc) forecloses Al-Safin’s arguments that

Duffield prohibits enforcement of the arbitration agreement. See id. at 745

(overruling Duffield). 

656 AL-SAFIN v. CIRCUIT CITY STORES
“The law of the case doctrine requires a district court to follow the appellate court’s resolution of an issue of law in all

subsequent proceedings in the same case.” United States ex

rel. Lujan v. Hughes Aircraft Co., 243 F.3d 1181, 1186 (9th

Cir. 2001). The doctrine applies to both the appellate court’s

“explicit decisions as well as those issues decided by necessary implication.” United States v. Cote, 51 F.3d 178, 181

(9th Cir. 1995) (quoting Eichman v. Fotomat Corp., 880 F.2d

149, 157 (9th Cir. 1989)). However, “[t]he doctrine does not

apply to issues not addressed by the appellate court.” Lujan,

243 F.3d at 1186. 

Our prior disposition consists of two paragraphs. The first

addresses the validity of the arbitration agreement under federal law. By citing Duffield, 144 F.3d 1182, and Prudential

Ins. Co. v. Lai, 42 F.3d 1299, we determined that Circuit City

could compel arbitration of Al-Safin’s federal employment

discrimination claims, and that Al-Safin knowingly agreed to

arbitrate his federal claims. Al-Safin I, 46 Fed. Appx. at 446.

Although we expressed “no opinion as to the enforceability of

particular provisions,” we concluded that we were “unable to

agree with the suggestion that illegal provisions so infected

the contract as to render it invalid as a matter of federal law.”

Id. (emphasis added). 

The second paragraph discusses what we did not decide.

We began with the general proposition that to be enforceable,

an arbitration contract “must meet the requirements of generally applicable state [contract] law.” Id. We then remanded

the case for the district court to determine the “validity of [the

agreement] under [Washington] state law.” Id. at 446-47. 

[2] The plain meaning of our decision is that: (1) the arbitration agreement is valid under federal law; but (2) the district court was to determine in the first instance whether it is

valid under state contract law. We did not address whether the

arbitration agreement is enforceable under state law and the

AL-SAFIN v. CIRCUIT CITY STORES 657
district court followed our mandate by determining unconscionability under Washington law. 

II. Washington Law of Unconscionability 

[3] “Unconscionability is a doctrine under which courts

may deny enforcement of all or part of an unfair or oppressive

contract based on abuses during the process of forming a contract or within the actual terms of the contract itself.” David

K. DeWolf, et al., 25 Wash. Practice Series, Contract Law &

Practice § 9.5 (2003). Washington recognizes two classifications of unconscionability, substantive and procedural. See

Zuver v. Airtouch Communications, Inc., 2004 WL 3016484,

at *3 (Wash. Dec. 23, 2004) (citing Nelson v. McGoldrick,

896 P.2d 1258, 1262 (Wash. 1995), and Schroeder v. Fageol

Motors, Inc., 544 P.2d 20, 23 (Wash. 1975)). 

“Substantive unconscionablity involves those cases

where a clause or term in the contract is alleged to

be one-sided or overly harsh. . . .” “ ‘Shocking to the

conscience’, ‘monstrously harsh’, and ‘exceedingly

calloused’ are terms sometimes used to define substantive unconscionability.” Procedural unconscionability is the “lack of a meaningful choice,

considering all the circumstances surrounding the

transaction including “ ‘[t]he manner in which the

contract was entered,” whether the party had “a reasonable opportunity to understand the terms of the

contract,” and whether “the important terms [were]

hidden in a maze of fine print.’ ” 

Zuver 2004 WL 3016484, at *3 (quoting Schroeder, 544 P.2d

at 23, and Nelson, 896 P.2d at 1262) (emendations in the original). See also Adler v. Fred Lind Manor, 2004 WL 3016302,

at *4 (Wash. Dec. 23, 2004). 

[4] In Washington, a contract generally may be invalid

based on either substantive or procedural unconscionability.

658 AL-SAFIN v. CIRCUIT CITY STORES
See M.A. Mortenson Co. v. Timberline Software Corp., 998

P.2d 305, 314-16 (Wash. 2000) (en banc); Tjart v. Smith Barney, Inc., 28 P.3d 823, 830 (Wash. Ct. App. 2001) (recognizing that a contract may be unenforceable based on procedural

unconscionability only); see also Zuver, 2004 WL 3016484,

at *3 n.4. In the employment context, the Washington

Supreme Court, while “hold[ing] that substantive unconscionability alone can support a finding of unconscionability,”

has recently “decline[d] to consider whether [procedural

unconscionability] alone will support a claim of unconscionability.” Adler, 2004 WL 3016302, at *5. 

III. Substantive Unconscionability 

Whether a contract is substantively unconscionable is a

question of law determined as of the time the contract was

made, as opposed to the time when the contract is enforced.

Schroeder, 544 P.2d at 24. 

A. Which DRRP Controls

As a threshold issue, Circuit City contends that Rule 19 of

the DRRPs permitted it to amend the arbitration agreement

each year, and that under the 1998 DRRP, Al-Safin’s dispute

is governed by the rules in effect when he files for arbitration.

Because Al-Safin has not yet filed for arbitration, Circuit City

contends that his dispute is governed by the most recent rules

and procedures and that we should analyze the 2003 DRRP to

determine whether the agreement is enforceable. 

We are not persuaded. Even if we assume that Circuit City

validly amended the 1997 DRRP and is seeking to enforce

Rule 19 of the 1998 DRRP, we could not conclude that the

2003 DRRP applies to Al-Safin.3

3Al-Safin does not dispute that Circuit City effectively implemented the

1998 DRRP. Therefore, we assume that the 1997 DRRP was properly

amended and that Circuit City can enforce the 1998 DRRP. 

AL-SAFIN v. CIRCUIT CITY STORES 659
[5] First, we have held that the modification provision of

Rule 19 of the 1998 DRRP is unenforceable under California

law. See Mantor, 335 F.3d at 1107; Ingle, 328 F.3d at 1179.

The modification provision allows Circuit City to alter the

rules and procedures governing arbitration almost at will. For

example, here, Circuit City has attempted to implement new

rules and procedures over three years after the onset of this

litigation, and over four years after terminating Al-Safin’s

employment. We conclude that Rule 19, which permits this

conduct, is substantively unconscionable under Washington

law and that the modification provision is therefore unenforceable. 

Second, even if we were to accept that the 1998 DRRP

requires us to look at the DRRP in effect when Al-Safin files

for arbitration, we would conclude that the 2003 DRRP is not

effective as to Al-Safin. 

[6] Under Washington law, contract modifications are subject to the general “requisites of contract formation, offer,

acceptance and consideration.” Thompson v. St. Regis Paper

Co., 685 P.2d 1081, 1087 (Wash. 1984). Employers in Washington have been permitted to “unilaterally amend or revoke

policies and procedures established in an employee handbook.” Gaglidari v. Denny’s Rests., Inc., 815 P.2d 1362, 1367

(Wash. 1991) (en banc).

[T]he handbook language constitutes the offer; the

offer is communicated by the dissemination of the

handbook to the employee; the employee’s retention

of employment constitutes acceptance; and by continuing to stay on the job, although free to leave, the

employee supplies the necessary consideration. 

Id. (citing Pine River State Bank v. Mettille, 333 N.W.2d 622

(Minn. 1983)). “However, an employer’s unilateral change in

policy will not be effective until employees receive reasonable notice of the change” and accept the change. Id.

660 AL-SAFIN v. CIRCUIT CITY STORES
[7] Applying the principles set forth in Gaglidari, we conclude that Circuit City did not properly amend the 1998

DRRP, at least as to Al-Safin. Circuit City’s offer to amend

the 1998 DRRP consisted of posting a written notice at Circuit City locations and by including a copy of the modification in its Applicant Packet. Even if this provided “reasonable

notice” to current and prospective employees, it was not “reasonable notice” to former employees like Al-Safin. That is, it

is not reasonable to expect former employees of Circuit City

to check the postings at a Circuit City store every December,

nor is it reasonable to expect that a terminated employee

would review an Applicant Packet, to determine if Circuit

City decided to amend its arbitration rules and procedures.

Thus, as to former employees like Al-Safin, there was no

valid offer to amend the 1998 DRRP. Moreover, Al-Safin did

not continue his employment with Circuit City, sign an acceptance, or accept the modification of the 1998 DRRP in any

other way.4

[8] Therefore, because no contract was formed between

Circuit City and Al-Safin regarding the 2003 DRRP, the 2003

DRRP never went into effect as to Al-Safin and the 1998

DRRP controls the parties’ dispute.5

4The dissent asserts that “[n]othing in Gagliardi varied the well-settled

common-law principles of at-will employment: the terms of employment

and of its termination are set by the employer.” Dissent, slip op. at 671.

That assertion, however, does not address what happened in this case.

Here, Circuit City attempted to change “the terms of employment and of

its termination” after Al-Safin’s employment had been terminated. 

5Circuit City has not cited any case, and our research has revealed none,

where a party was permitted unilaterally to amend a contract midway

through litigation concerning that contract. Rather, courts addressing

whether an arbitration agreement can be amended after it has been challenged during litigation have declined to permit the amendment. See e.g.,

Armendariz v. Found. Health Psychcare Servs., Inc., 6 P.3d 669, 697 (Cal.

2000) (“No existing rule of contract law permits a party to resuscitate a

legally defective contract merely by offering to change it.”). 

AL-SAFIN v. CIRCUIT CITY STORES 661
B. Substantive Unconscionability of the 1998 DRRP

[9] In Mantor, Ingle, and Adams, we held that Circuit

City’s arbitration agreement is substantively unconscionable

under California law and rejected contract provisions: (1)

forcing employees to arbitrate claims against Circuit City, but

not requiring Circuit City to arbitrate claims against employees, Ingle, 328 F.3d at 1173; Adams, 279 F.3d at 893-94; (2)

limiting remedies, Ingle, 328 F.3d at 1178-79; Adams, 279

F.3d at 894; (3) splitting costs and fees, Mantor, 335 F.3d at

1107; Ingle, 328 F.3d at 1177-78; Adams, 279 F.3d at 894; (4)

imposing a one-year statute of limitations, Mantor, 335 F.3d

at 1107; Ingle, 328 F.3d at 1175; Adams, 279 F.3d at 894; (5)

prohibiting class actions, Mantor, 335 F.3d at 1107; Ingle,

328 F.3d at 1175-76; (6) regarding the filing fee and waiver

of the fee, Mantor, 335 F.3d at 1107-08; Ingle, 328 F.3d at

1177; and (7) giving Circuit City the unilateral right to terminate or modify the agreement, Mantor, 335 F.3d at 1107;

Ingle, 328 F.3d at 1179. 

[10] California applies virtually the same definition of substantive unconscionability as Washington. Compare Ingle,

328 F.3d at 1172 (stating that under California law, substantive unconscionability refers to whether terms of the agreement “are so one-sided as to shock the conscience” (quoting

Kinney v. United Healthcare Servs., Inc., 83 Cal. Rptr. 2d

348, 353 (Ct. App. 1999)) with Nelson, 896 P.2d at 1262 (stating that under Washington law, substantive unconscionability

refers to contract terms that are “one-sided or overly harsh”

and “shocking to the conscience” (quoting Schroeder, 544

P.2d at 23)). Each of the provisions we held unconscionable

under California law is present in the 1998 DRRP at issue

here. Thus, we conclude that Mantor, Ingle, and Adams are

persuasive authority that the arbitration agreement is substantively unconscionable under Washington law. And, in fact,

the Washington Supreme Court recently cited Ingle, 328 F.3d

at 1175, and Adams, 279 F.3d 894-95, with approval, in holding that a 180-day limitations provision in an employment

662 AL-SAFIN v. CIRCUIT CITY STORES
arbitration agreement was substantively unconscionable. See

Adler, 2004 WL 3016302, at 11 (stating that “[w]e agree with

the Ninth Circuit”).6

Moreover, the United States Supreme Court has explained

that “[b]y agreeing to arbitrate a statutory claim, a party does

not forgo the substantive rights afforded by the statute; it only

submits to their resolution in an arbitral, rather than a judicial,

forum.” Gilmer, 500 U.S. at 26 (quoting Mitsubishi Motors

Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628

(1985)). Gilmer requires arbitration agreements to embody

“basic procedural and remedial protections so that claimants

can effectively pursue their statutory rights.” Adams, 279 F.3d

at 895. In Adams, we explained that Circuit City’s arbitration

agreement does not meet these minimum requirements

because it limits the remedies that would otherwise be available in a judicial forum, and fails to ensure that employees do

not have to pay unreasonable fees, costs, or expenses “as a

condition of access to the arbitration forum.” Id. Here, we

again conclude that Circuit City’s arbitration agreement

requires employees to forgo essential substantive and procedural rights and that the clauses regarding coverage of claims,

remedies, arbitration fees, cost-splitting, the statute of limitations, class actions, and modifications, render the arbitration

agreement excessively one-sided and unconscionable. 

6The dissent is critical of our reliance on “Ninth Circuit cases that purport to interpret California law.” Dissent, slip op. at 675. In addition to the

Washington Supreme Court’s agreement with Ingle and Adams, as shown

in the text, above, in Zuver, the Washington Supreme Court cited with

approval Ting v. AT&T, 319 F.3d 1126, 1151-52 (9th Cir.) (construing

California law), cert. denied, 540 U.S. 811 (2003), in holding a confidentiality provision substantively unconscionable, Zuver, 2004 WL 3016484, at

*8-*10, and a California case, Armendariz, 6 P.3d at 694, in holding a

remedies limitation provision substantively unconscionable, Zuver, 2004

WL 3016484, at *10-*11. 

AL-SAFIN v. CIRCUIT CITY STORES 663
IV. Severability 

[11] Like California law, Washington law grants courts discretion to sever unconscionable contract provisions or refuse

to enforce the entire contract. Compare Ingle, 328 F.3d at

1180 (explaining that under California law the court may “refuse to enforce the contract in its entirety”) with Schroeder,

544 P.2d at 262 (stating that under Washington law “the court

may refuse to enforce the contract” (quoting Wash. Rev. Code

§ 62A.2-302)). 

[12] In each of the California cases — Mantor, Ingle, and

Adams — we held that the unconscionable terms rendered the

arbitration agreement unenforceable. In Ingle, we specifically

determined that the 1998 arbitration agreement was “permeated with unconscionable provisions” and was unenforceable

in its entirety because “[a]ny earnest attempt to ameliorate the

unconscionable aspects of Circuit City’s arbitration agreement

would require this court to assume the role of contract author

rather than interpreter.” Ingle, 328 F.3d at 1180; see also

Adams, 279 F.3d at 895-96 (reaching the same result regarding an earlier version of the arbitration agreement). Applying

Washington law, we also conclude that the unconscionable

provisions of the 1998 DRRP pervade the entire arbitration

agreement and any attempt to sever those provisions would

render the procedure unworkable. 

[13] The recent cases of Zuver and Adler are not to the contrary. Although in those cases the Washington Supreme Court

severed the unconscionable provisions and enforced the

remainder of the arbitration agreements, that was because

only two discrete provisions of the respective agreements

were held to be unconscionable. See Zuver, 2004 WL

3016484, at *11 (“We can easily excise the confidentiality

and remedies provisions but enforce the remainder.); Adler,

2004 WL 3016302, at *12 (“In this case, however, [the] arbitration agreement contains just two substantively unconscionable provisions.”). The Washington Supreme Court,

664 AL-SAFIN v. CIRCUIT CITY STORES
however, “acknowledge[d] that in instances where an

employer engages in an ‘insidious pattern’ of seeking to tip

the scales in its favor in employment dispites by inserting

numerous unconscionable provisions in an arbitration agreement, courts may decline to sever the unconscionable provisions.” Id. (citing Ingle, 328 F.3d at 1180).7

 Because this

agreement is “permeated with unconscionable provisions,”

Ingle, 328 F.3d at 1180, we hold that the entire arbitration

agreement is unenforceable. 

CONCLUSION

For the foregoing reasons, we conclude that the arbitration

agreement between Circuit City and Al-Safin is substantively

unconscionable. Although we have serious doubts about

whether the agreement is procedurally unconscionable as

well, we do not decide this issue because the agreement’s substantive unconscionability alone renders it invalid under

Washington law. See Adler, 2004 WL 3016302, at *5. Therefore, the judgement of the district court is 

AFFIRMED.

BEA, Circuit Judge, dissenting: 

Circuit City Stores, Inc. (“Circuit City”) appeals the district

court’s denial of its motion to dismiss and compel arbitration

of Mohammed Al-Safin’s employment discrimination claims.

The majority opinion affirms, holding that certain provisions

of Circuit City’s Dispute Resolution Rules and Procedures

(“DRRP”) in effect in 1998 are substantively unconscionable

7The Washington Supreme Court’s recent decisions in Zuver and Adler

have erased any “doubt about the relevance of Ingle and Mantor,” dissent,

slip op. at 677, so that, if it ever was warranted, certifying the question to

the Washington Supreme Court is no longer warranted. 

AL-SAFIN v. CIRCUIT CITY STORES 665
under Washington law and that these unconscionable provisions pervade the entire arbitration agreement such that any

attempt to sever those provisions would render the resulting

procedure unworkable. Slip op. at 662-65. 

I believe that the majority opinion errs in its initial premise

— that is, that it is the DRRP in effect in 1998 that are at

issue. Rather, I believe that the modification provision in Rule

19 of the DRRP in effect in 1998 is enforceable under Washington law (or, at the very least, that there is sufficient doubt

as to certify that question to the Washington Supreme Court)

and, thus, that it is the DRRP in effect at the time Al-Safin

ultimately files his Arbitration Request Form and accompanying filing fee that govern the arbitration here. Further, the

DRRP in effect in 2003 are not substantively unconscionable

under Washington law. Accordingly, I would reverse (or, at

the very least, certify the relevant questions to the Washington

Supreme Court) and, thus, respectfully dissent. 

I.

As the majority opinion sets forth, Al-Safin applied for a

job at Circuit City in June 1997. Before he submitted his

application, he signed an arbitration agreement that bound AlSafin to resolve all disputes arising out of his employment

relationship with Circuit City in accordance with the DRRP.

Rule 19 of the DRRP in effect at the time Al-Safin applied for

his job stated:

Circuit City may alter or terminate the Agreement

and these Dispute Resolution Rules and Procedures

on December 31st of any year upon giving 30 calendar days written notice to Associates, provided that

all claims arising before alteration or termination

shall be subject to the Agreement and corresponding

Dispute Resolution Rules and Procedures in effect at

the time the claim arose. An associate shall be

deemed to have accepted a modification or termina666 AL-SAFIN v. CIRCUIT CITY STORES
tion of the Dispute Resolution Agreement or the

Rules and Procedures by accepting or continuing

employment with Circuit City after receiving notice

of such modification or termination. 

(Emphasis added). 

At year end 1997, Circuit City amended Rule 19.1 Al-Safin

continued working at Circuit City until his employment was

terminated in November 1998. There is no issue raised by AlSafin that he did not receive reasonable notice of the December 31, 1997 change to Rule 19. Indeed, as the majority opinion correctly notes, “Al-Safin does not dispute that Circuit

City effectively implemented the 1998 DRRP.” Slip op. at

659 n.3. 

The December 31, 1997 amendment to Rule 19 — and,

thus, Rule 19 of the DRRP in effect in 1998 — provided in

relevant part:

Circuit City may alter or terminate the Agreement

and these Dispute Resolution Rules and Procedures

on December 31st of any year upon giving 30 calendar days written notice to Associates, provided that

all claims arising before alteration or termination

shall be subject to the Agreement and corresponding

Dispute Resolution Rules and Procedures in effect at

the time the Arbitration Request Form and accompanying filing fee is received by the Company. 

(Emphasis added). As the majority opinion correctly concludes, “[t]he result of this modification would be that any

arbitration filed in 2003 would be governed by the DRRP in

1Although the DRRP in effect in 1998 are dated as of January 1998, the

DRRP in effect in 1997 permitted Circuit City to alter or terminate the

DRRP only on December 31 of any year. Thus, the DRRP in effect in

1998 must have resulted from amendments on December 31, 1997. 

AL-SAFIN v. CIRCUIT CITY STORES 667
effect in 2003, as opposed to the DRRP in effect when the

claim arose.” Slip op. at 654. 

The threshold and determinative question, then, is whether

the DRRP in effect in 1998, when Al-Safin’s employment

was terminated and his employment discrimination claim

arose, govern the arbitration, rather than the DRRP in effect

at the time Al-Safin ultimately files with Circuit City the

Arbitration Request Form and accompanying fee. The plain

meaning of the modification provision in Rule 19 of the

DRRP in effect at the time Al-Safin’s employment was terminated in 1998 admits of no doubt: If he sought arbitration and

paid the arbitration fee immediately upon termination or at

any time before December 31, 1998, his arbitration would be

governed by the DRRP in effect in 1998. If he tarried, he ran

the risk that newer arbitration rules would be adopted which

would be less beneficial to him. On the other hand, delay

could bring rules that would comparatively benefit him,

which, in the event, is what happened. 

Nevertheless, the majority opinion concludes that the

DRRP in effect in 1998 are applicable for two reasons. First,

according to the majority opinion, “ ‘an employer’s unilateral

change in policy will not be effective [under Washington law]

until employees receive reasonable notice of the change’ and

accept the change” and that Circuit City did not provide

“ ‘reasonable notice’ to former employees like Al-Safin” nor

did Al-Safin “continue his employment with Circuit City, sign

an acceptance, or accept the modification of the [substantive

arbitration rules of the] 1998 DRRP in any other way.” Slip

op. at 661. Second, according to the majority opinion, “[t]he

modification provision allows Circuit City to alter the rules

and procedures governing arbitration almost at will” and,

thus, “Rule 19, which permits this conduct, is substantively

unconscionable under Washington law and . . . the modification provision is therefore unenforceable.” Slip op. at 660. 

I believe that the majority opinion errs in both regards and,

thus, believe that the DRRP in effect at the time Al-Safin ulti668 AL-SAFIN v. CIRCUIT CITY STORES
mately files with Circuit City the Arbitration Request Form

and accompanying fee, rather than the DRRP in effect in

1998, govern the arbitration. 

A.

In concluding that “ ‘an employer’s unilateral change in

policy will not be effective [under Washington law] until

employees receive reasonable notice of the change’ and

accept the change,” Slip op. at 660, the majority opinion relies

solely on Gaglidari v. Denny’s Restaurants, Inc., 815 P.2d

1362 (Wash. 1991) (en banc). There, Denny’s hired Gaglidari

to work as a bartender and, on her first day of work, provided

her with a copy of the 1979 employee handbook. Id. at 1364.

The 1979 employee handbook contained a provision stating

that fighting while on duty was grounds for immediate dismissal, but provided for “counseling review and review by a

certain level manager” for rule infractions not covered by the

immediate dismissal provision. Id. In 1986, Denny’s gave

Gaglidari an “alcoholic beverage handbook,” which contained

a provision stating that fighting while on company premises,

whether or not while on duty, was grounds for immediate dismissal. Id. In 1987, while off duty, Gaglidari was involved in

a fight at a Denny’s and was fired shortly thereafter. Id. at

1364-65. Gaglidari sued Denny’s for breach of the employment contract as set forth in the 1979 employee handbook,

and the jury returned a verdict for Gaglidari. Id. at 1365. 

On appeal, the Washington Supreme Court reversed the

judgment entered upon such verdict and remanded for a new

trial, holding that the 1979 employee handbook gave rise to

a contract but that its terms were modified by the alcoholic

beverage handbook that Gaglidari received in 1986. Id. at

1365-66. Although acknowledging that “[a]n employer may

unilaterally amend or revoke policies and procedures established in an employee handbook,” the court cited to Bankey

v. Storer Broadcasting Co., 443 N.W.2d 112, 113 (Mich.

1989), for the proposition that “an employer’s unilateral

AL-SAFIN v. CIRCUIT CITY STORES 669
change in policy will not be effective until employees receive

reasonable notice of the change.” Gaglidari, 815 P.2d at

1367. Quoting Bankey, the court continued: “ ‘An employer

may, without an express reservation of the right to do so, unilaterally change its written policy from one of discharge for

cause to one of termination at will, provided that the employer

gives affected employees reasonable notice of the policy

change.’ ” Id. (emphasis added). The court reasoned: “The

reasonable notice rule of Bankey is persuasive because it is

unfair to place the burden of discovering policy changes on

the employee. While the employee is bound by unilateral acts

of the employer, it is incumbent upon the employer to inform

employees of its actions.” Id. The court then concluded that

the 1986 alcoholic beverage handbook did achieve a modification of the employment contract:

Plaintiff’s receipt of the handbook satisfied the requisites of contract formation. Defendant extended an

offer by providing the handbook and training plaintiff on alcoholic beverage service in accordance with

the requirements contained in the handbook. Plaintiff

accepted the offer by signing for the handbook and

participating in the training. The consideration was

plaintiff’s continuation of her employment. 

The handbook also achieved a unilateral modification of defendant’s policies. Plaintiff had notice of

the provisions of the handbook because she signed a

form saying she read it and understood it.

Id. at 1367-68 (internal citation omitted; emphasis added).

With that background, it is clear that Gaglidari is inapposite and that the reasonable-notice requirement it announced

is not nearly so broad as the majority opinion suggests. 

First, contrary to what the majority opinion asserts, Slip op.

at 659-61, the reasonable-notice requirement is satisfied by

670 AL-SAFIN v. CIRCUIT CITY STORES
notice alone, regardless whether the employee accepts the

change in policy. Again contrary to what the majority opinion

assumes, Slip op. at 650-61, the sole articulated purpose of

the reasonable-notice requirement is not to afford the at-will

employee an opportunity to accept, reject or negotiate an offer

from the employer. Rather, as the court in Gaglidari stated:

“The reasonable notice rule of Bankey is persuasive because

it is unfair to place the burden of discovering policy changes

on the employee.” 815 P.2d at 1367 (emphasis added). In

other words, it would be unfair to allow an employee — even

an employee at will — to be fired for a rule violation, if the

rule had not been made known to her. Thus, the court in

Gaglidari held alternatively that the “[p]laintiff’s receipt of

the [1986 alcoholic beverage] handbook satisfied the requisites of contract formation” and that, because the “[p]laintiff

had notice of the provisions of the handbook,” “[t]he handbook also achieved a unilateral modification of defendant’s

policies.” Id. at 1367-68. Nothing in Gaglidari varied the

well-settled common-law principles of at-will employment:

the terms of employment and of its termination are set by the

employer. 

This interpretation of the scope and purpose served by

Gaglidari’s reasonable-notice requirement was confirmed in

Govier v. North Sound Bank, 957 P.2d 811, 813-14 (Wash.

Ct. App. 1998), wherein a bank presented Govier with an

employment agreement that changed the terms of her employment. Govier refused to sign the agreement, was fired, and

then sued for breach of contract under the prior terms of

employment. Id. at 814. The trial court granted the bank’s

motion for summary judgment. Id. On appeal to the Washington Court of Appeals, Govier contended that although the

bank had presented her with the new terms, she did not have

“reasonable notice” because she had not been notified of the

changes a reasonable length of time before their effective

date. Id. at 816. She reasoned that “the reasonable notice

requirement is necessary ‘to give the employee an opportunity

to make a reasoned decision about whether to stay or leave.’ ”

AL-SAFIN v. CIRCUIT CITY STORES 671
Id. The court rejected this argument, holding that the purpose

of the reasonable notice requirement is merely to inform

employees of policy changes because “ ‘it is unfair to place

the burden of discovering policy changes on the employee.’ ”

Id. at 817 (emphasis in original).2

2This interpretation also finds support in Thompson v. St. Regis Paper

Co., 685 P.2d 1081 (Wash. 1984) (en banc), wherein the Washington

Supreme Court first enunciated the principle that an at-will employment

relationship could be modified by an employee handbook. There, Thompson was asked to resign because he “ ‘stepped on somebody’s toes.’ ” Id.

at 1083. No other reason was given. Id. Thompson sued for breach of contract, and the company moved for summary judgment, arguing that the

employment relationship was terminable at will. Id. Thompson responded

with the company’s “Policy and Procedural Guide,” which he argued provided that he could be fired only for cause. Id. at 1084. The trial court

granted the company’s motion. Id. 

On appeal, the Washington Supreme Court reversed and remanded,

holding first that “the employer’s right to terminate an at will employee

can be contractually modified and, thus, qualified by statements contained

in employee policy manuals or handbooks issued by employers to their

employees.” Id. at 1087. Under this “contractual analysis,” “the requisites

of contract formation, offer, acceptance and consideration are necessary

predicates to establishing that policies in an employment manual are part

of the employees’ original employment contract or part of the employment

contract as modified by the parties.” Id. 

Continuing, the court held: “Independent of this contractual analysis,

however, . . . employers may be obligated to act in accordance with policies as announced in handbooks issued to their employees.” Id. (emphasis

added). Relying on a promissory estoppel theory, the court reasoned: 

[T]he principal, though not exclusive, reason employers issue

such manuals is to create an atmosphere of fair treatment and job

security for their employees. 

* * *

This may create an atmosphere where employees justifiably rely

on the expressed policies and, thus, justifiably expect that the

employers will do the same. Once an employer announces a specific policy or practice, especially in light of the fact that he

expects employees to abide by the same, the employer may not

treat its promises as illusory. 

Id. at 1087-88 (emphasis in original).

672 AL-SAFIN v. CIRCUIT CITY STORES
Thus, the fact that “Al-Safin did not continue his employment with Circuit City, sign an acceptance, or accept the modification of the [substantive arbitration rules of the] 1998

DRRP in any other way,” Slip op. at 661, would have been

irrelevant under Gaglidari had Al-Safin been employed with

Circuit City at the time the modifications were made and,

contrary to the majority opinion’s assertion otherwise, Slip

op. at 661 n.4, can be no less irrelevant under the circumstances here. As explained above, Gaglidari’s reasonablenotice requirement neither requires nor is premised upon the

employee having an opportunity to accept, reject or negotiate

changes in employment policies — regardless when those

changes occur. Further, it bears repeating, by virtue of continuing his employment with Circuit City after the December 31,

1997 amendment to Rule 19 went into effect, Al-Safin

assented to the modification provision itself. 

Second, the fact that Al-Safin may not have received reasonable notice of the modifications made to the substantive

provisions in the DRRP from 1998 to 2003 is likewise irrelevant under Gaglidari. As explained above, the purpose of the

reasonable-notice requirement is to inform employees of policy changes because “it is unfair to place the burden of discovering policy changes on the employee.” Gaglidari, 815

P.2d at 1367; accord Govier, 957 P.2d at 817. This prevents

situations in which employees are fired or suffer other adverse

employment action on the basis of conduct that had been permissible but later was made impermissible by an unpublicized

policy. See Thompson, 685 P.2d at 1087. 

Thus, the reasonable-notice requirement serves no purpose

once the employment relationship has ended. Why give notice

of new rules to former employees who can no longer be fired

for their violations? To insist on the necessity of “reasonable

notice” in such circumstances is to venerate an abstraction.

See United States v. Griefen, 200 F.3d 1256, 1263 (9th Cir.

2000) (“Cessante ratione legis, cessat et ipsa lex[.] (The reason of the law ceasing, the law itself also ceases).”); ATU

AL-SAFIN v. CIRCUIT CITY STORES 673
Legislative Council of Washington v. Washington, 40 P.3d

656, 661 (Wash. 2002) (en banc) (same); State ex rel. King

County v. Superior Court of Pierce County, 176 P. 352, 355

(Wash. 1918) (“The law being founded in reason boasts as its

first cardinal principle that, when the reason for the law

ceases, the law itself ceases.”). Indeed, there appear to be no

Washington cases — including Gaglidari — in which the

reasonable-notice requirement was invoked when the change

in employee policies occurred after the employment relationship had terminated. 

Here, there is no claim that Al-Safin’s employment was terminated because of a violation of the modification provision

in Rule 19 of the DRRP in effect in 1998. Likewise, the modifications made to the substantive provisions in the DRRP

from 1998 to 2003 — all of which occurred after Al-Safin’s

employment was terminated — had no bearing on why AlSafin’s employment was terminated; rather, they concern only

the manner in which the arbitration is to occur. In brief: As

the reason for the reasonable-notice requirement does not

exist, neither does the rule. 

Third, unlike Circuit City, the employer in Gaglidari did

not reserve its right to make changes to the employee handbook. The Michigan case on which Gaglidari relies in setting

forth the reasonable-notice requirement suggests that the

requirement is limited to situations in which the employer

does not make such a reservation:

“An employer may, without an express reservation

of the right to do so, unilaterally change its written

policy from one of discharging for cause to one of

termination at will, provided that the employer gives

affected employees reasonable notice of the policy

change.” 

Gaglidari, 815 P.2d at 1367 (quoting Bankey, 443 N.W.2d at

113) (emphasis added). Such reservations or disclaimers are

674 AL-SAFIN v. CIRCUIT CITY STORES
well-recognized under Washington law. Thompson, 685 P.2d

at 1088 (“[T]he employer may specifically reserve a right to

modify [employment] policies or write them in a manner that

retains discretion to the employer.”). 

This distinction is not without substance given the discussion above explaining that the reasonable-notice requirement

is required not to permit for an acceptance or rejection of an

employer’s offer by the employee, but rather because it provides the basis for the justifiable reliance on which a promissory estoppel theory might be based. Where the employer has

made a disclaimer — that is, has reserved the right to make

changes — employees cannot justifiably rely on the previously outlined policies.

Neither Gaglidari nor its reasonable-notice requirement are

applicable here.

B.

The majority opinion correctly concludes that whether the

provisions of the DRRP are unconscionable is a question of

Washington law. Slip op. at 656. But in concluding that modification provision in Rule 19 of the DRRP in effect in 1998

“is substantively unconscionable under Washington law and

that the modification provision is therefore unenforceable,”

the majority opinion cites no Washington law at all. Slip op.

at 660. Instead, the majority opinion relies on two Ninth Circuit cases that purport to interpret California law, Slip op. at

660, and presumably on its later conclusion that “California

applies virtually the same definition of substantive unconscionability as Washington.” Slip op. at 662. 

To begin, the two Ninth Circuit cases on which the majority opinion relies — Ingle v. Circuit City Stores, Inc., 328

F.3d 1165, 1179 (9th Cir. 2003), and Circuit City Stores, Inc.

v. Mantor, 335 F.3d 1101, 1107(9th Cir. 2003) — themselves

cite no state cases that discuss whether, let alone hold that, the

AL-SAFIN v. CIRCUIT CITY STORES 675
modification provisions at issue or even similar modification

provisions are substantively unconscionable. Thus, their analyses of California law on this point are not so thorough that

we should reflexively import their holdings to Washington

law. 

Moreover, there is good reason not to do so here, even

though the Washington Supreme Court has cited with

approval Ninth Circuit cases interpreting California law in

adjudicating the unconscionability of terms quite different

from the modification provision at issue here, Slip op. at 663

n.6, and even if it is correct that as a general matter California

law and Washington law on unconscionability are similar.

Specifically, although there appear to be no Washington cases

addressing whether the provision at issue or one similar to it

is substantively unconscionable, the Washington Supreme

Court has long held in no uncertain terms that an employer

may reserve the right unilaterally to change the terms of an

employment relationship: “[T]he employer may specifically

reserve a right to modify [employment] policies or write them

in a manner that retains discretion to the employer.” Thompson, 685 P.2d at 1088. Gaglidari affirmed this principle, and

its reasonable-notice requirement in no way undercut the

employer’s ability to make unilateral changes: “An employer

may unilaterally amend or revoke policies and procedures

established in an employee handbook. However, an employer’s unilateral change in policy will not be effective until

employees receive reasonable notice of the change.” 815 P.2d

at 1367 (emphasis added; internal citations omitted). 

Further, the majority opinion overlooks the salient fact that

under Rule 19 of the DRRP in effect at the time Al-Safin’s

employment was terminated, Circuit City could not have

acted “unilaterally” in changing the DRRP until the end of the

year. Thus, Al-Safin, whose employment was terminated in

November 1998, had over a full month in which he could

have insured himself of arbitration under the then-current

DRRP by taking action: requesting arbitration and tendering

676 AL-SAFIN v. CIRCUIT CITY STORES
the filing fee before December 31, 1998. Under Washington

law, voluntarily refusing to invoke rights in a timely manner

may in some contexts constitute a waiver of those rights. See,

e.g., International Association of Firefighters, Local No. 469

v. Public Employment Relations Commission of Washington,

686 P.2d 1122, 1125-27 (Wash. Ct. App. 1984) (holding that

although a union’s waiver of statutorily protected bargaining

rights and its concomitant assent to unilateral employer action

in lieu of collective bargaining must be “intentional and voluntary,” a failure timely to request negotiations following

actual knowledge of the employer’s intentions where there is

sufficient time to “meaningfully” do so constitutes waiver).

Whether Al-Safin’s inactivity amounted to a waiver or consent, and whether that waiver or consent could change the

character of any subsequent modifications to the DRRP from

“unilateral” to “consented to” or “mutual” is a question of

Washington law. It was not a question raised in either of our

cases involving the enforceability of Circuit City’s arbitration

agreements under California law. 

Thus, I am not nearly so confident as are my colleagues

that the modification provision in Rule 19 of the DRRP in

effect in 1998 is substantively unconscionable under Washington law.3

 At the very least, the absence of Washington law

directly on point, coupled with the Thompson and Gaglidari

line of cases and Al-Safin’s ability to have invoked the substantive provisions of the DRRP in effect in 1998, create sufficient doubt about the relevance of Ingle and Mantor to

warrant our certifying the question to the Washington

Supreme Court.4

3Why the DRRP in effect in 2003, made applicable to the arbitration

here by the plain text of the modification provision in Rule 19 of the

DRRP in effect in 1998, are themselves not unconscionable is discussed

in Part II below. 

4Washington provides for certification pursuant to Revised Code of

Washington § 2.60.020 and Washington Rule of Appellate Procedure

16.16(a) where there is a question of state law that has not been “clearly

determined” and its resolution is necessary to the disposition of the proceeding in federal court. 

AL-SAFIN v. CIRCUIT CITY STORES 677
II.

Because I believe that the modification provision in Rule

19 of the DRRP in effect in 1998 is enforceable under Washington law, I would find that the DRRP in effect at the time

Al-Safin files his Arbitration Request Form and accompanying filing fee govern the arbitration. Although Al-Safin did

not file his Arbitration Request Form and accompanying filing fee prior to 2003, the record does not indicate whether he

has since filed the appropriate form and fee or whether Circuit

City has promulgated DRRP beyond those in 2003. Thus, it

is not evident whether the DRRP in effect in 2003 or some

later DRRP are applicable. 

Assuming, however, that the DRRP in effect in 2003 are

applicable, Al-Safin concedes that these rules were substantially revised such that many of the substantively unconscionable provisions in the earlier rules were removed. In fact, he

argues that only two provisions beyond the modification provision discussed above are substantively unconscionable. 

First, Al-Safin argues that the DRRP in effect in 2003

include a provision that requires arbitration decisions to be

confidential and, thus, is substantively unconscionable both

because it places Circuit City in “ ‘a far superior legal posture

by ensuring that none of its opponents have access to precedent’ ” and because “ ‘the unavailability of arbital decisions

may prevent potential plaintiffs from obtaining the information needed to build a case of intentional misconduct or

unlawful discrimination.’ ” However, Rule 12 of the DRRP in

effect in 2003 states: “Associates who have agreed to arbitration may request copies of arbitration decisions in a given

case.” Thus, the confidentiality provision is not so “ ‘onesided or overly harsh’ ” so as to be “ ‘[s]hocking to the conscience,’ ” “ ‘monstrously harsh,’ ” or “ ‘exceedingly calloused’ ” and, thus, substantively unconscionable. See Nelson

v. McGoldrick, 896 P.2d 1258, 1262 (Wash. 1995) (en banc).

678 AL-SAFIN v. CIRCUIT CITY STORES
Second, Al-Safin argues that the DRRP in effect in 2003

prohibit class or consolidated arbitrations and that this is substantively unconscionable. Again, there appears to be no

Washington law addressing whether such provisions are substantively unconscionable. See Stein v. Geonerco, Inc., 17

P.3d 1266, 1271 & n.2 (Wash. Ct. App. 2001) (noting that

“Washington courts have not specifically addressed class

arbitration,” and holding that the court “cannot compel class

arbitration” in the absence of “relevant statutory provisions

that authorize class arbitration,” but not reaching whether

“due process and policy grounds” may otherwise “permit[ ]

class arbitration”). However, an analogous line of cases suggests that the Washington courts would not find the provision

substantively unconscionable on the facts here. 

In Mendez v. Palm Harbor Homes, Inc., 45 P.3d 594, 597,

601, 603 (Wash. Ct. App. 2002), the trial court denied a

motion to compel arbitration pursuant to an arbitration agreement, holding that the agreement was unconscionable because

the “prohibitive entry costs of arbitration compared to the

entry costs of trial” “effectively preclude[d] [Mendez] from

pursuing his claims against Palm Harbor.” Importantly, costs

so prohibitive as to deter arbitration is the implicit concern

that led the Ninth Circuit to conclude on the basis of California law that the provision in Circuit City’s arbitration agreements that preclude class or consolidated arbitration is

substantively unconscionable. See Ingle, 328 F.3d at 1176

(“Circuit City, through its bar on class-wide arbitration, seeks

to insulate itself from class proceedings while conferring no

corresponding benefit to its employees in return.”); see also

Mantor, 335 F.3d at 1107 & n.14 (citing Ingle, 328 F.3d at

1175-76). The Washington Court of Appeals affirmed, “approv[ing] a new rule for this State allowing an equitable and

legal prohibitive cost defense to contractually agreed arbitration,” Mendez, 45 P.3d at 597, but limiting the defense to

“when the party opposing arbitration reasonably shows in

law or equity that prohibitive costs are likely to render the

arbitral forum inaccessible.” Id. at 605 (emphasis added);

AL-SAFIN v. CIRCUIT CITY STORES 679
accord Heaphy v. State Farm Mutual Automobile Insurance

Co., 72 P.3d 220, 224-25 (Wash. Ct. App. 2003) (rejecting

prohibitive cost defense in the absence of any evidence of

prohibitive costs). The Washington Supreme Court has

recently approved this approach. Zuver v. Airtouch Communications, Inc., No. 74156-5, 2004 WL 3016484, at *6-7 (Wash.

Dec. 23, 2004) (en banc); Adler v. Fred Lind Manor, No.

74701-6, 2004 WL 3016302, at *9 (Wash. Dec. 23, 2004) (en

banc). Al-Safin has made no claim nor showing of prohibitive

costs which would render the arbital forum inaccessible. Neither has he evinced any interest in initiating a class or consolidated arbitration. Absent such predicate showing, Washington

law would not hold the relevant provision of the DRRP

unconscionable. 

Further, even if the provision that there be no class or consolidated arbitration were unconscionable, it could be severed

pursuant to the severance provision in Rule 18 of the DRRP

in effect in 2003. Zuver, 2004 WL 3016484, at *11 (noting

that “when parties have agreed to a severability clause in an

arbitration agreement, courts often strike the offending unconscionable provisions to preserve the contract’s essential term

of arbitration,” and doing so when “faced with only two

unconscionable provisions”); Adler, 2004 WL 3016302, at

*12 (holding that where the “arbitration agreement contains

just two substantively unconscionable provisions” and where

“[t]he primary thrust of [the] agreement is the agreement to

arbitrate,” the court can sever those terms “without disturbing

the primary intent of the parties to arbitrate their disputes”).

III.

The kernel of truth in this case is that Al-Safin is so desirous to litigate in federal district court rather than to arbitrate,

that he refuses to accept the substantial concessions that Circuit City made when it promulgated its new DRRP in 2003

relative to the DRRP that obtained and which were within AlSafin’s reach when his employment was terminated in 1998.

680 AL-SAFIN v. CIRCUIT CITY STORES
Instead, he lashes himself to the DRRP in effect in 1998

(except for the modification provision in Rule 19) in the

apparently well-founded hope that this court would find the

substantive provisions in those DRRP so unconscionable the

arbitration agreement as a whole must founder. By holding

that the modification provision in Rule 19 of the DRRP in

effect in 1998 is unenforceable and that various other provisions in the same DRRP are substantively unconscionable, the

majority opinion accedes to Al-Safin and, in so doing, contravenes Washington law. 

I believe that the modification provision in Rule 19 of the

DRRP in effect in 1998 is enforceable under Washington law

or, at the very least, that there is sufficient doubt as to certify

that question, and the further question whether Al-Safin’s

inaction in late 1998 rendered the modification provision

“mutual” rather than “unilateral,” to the Washington Supreme

Court. I believe further that the provisions in the DRRP in

effect in 2003 to which Al-Safin objects are not substantively

unconscionable under Washington law. Accordingly, I would

reverse the district court’s denial of Circuit City’s motion to

dismiss and compel arbitration (or, at the very least, certify

the relevant questions to the Washington Supreme Court) and,

thus, respectfully dissent.

AL-SAFIN v. CIRCUIT CITY STORES 681