FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KATHLEEN LOWDEN and JOHN 

MAHOWALD, individually and on

behalf of all the members of the No. 06-35395 class of persons similarly situated,

Plaintiffs-Appellees, D.C. No.  CV-05-01482-MJP

v.

OPINION T-MOBILE USA, INC., a foreign

corporation,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, District Judge, Presiding

Argued and Submitted

November 7, 2007—Seattle, Washington

Filed January 22, 2008

Before: William C. Canby, Jr., Susan P. Graber, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould

839
COUNSEL

Stephen M. Rummage, Davis Wright Tremaine LLP, Seattle,

Washington, for the defendant-appellant. 

David E. Breskin, and Daniel F. Johnson, Breskin Johnson &

Townsend, Seattle, Washington, for the plaintiffs-appellees.

LOWDEN v. T-MOBILE USA 841
OPINION

GOULD, Circuit Judge: 

I

The issues on appeal are whether the arbitration provisions

in Defendant T-Mobile’s service agreements with two of its

customers are enforceable under Washington state law and, if

not, whether the state law is preempted by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16. After two consumers

of T-Mobile’s cellular phone service brought a class action

against T-Mobile in state court for breach of contract and violation of the Washington Consumer Protection Act (the

“CPA”), Wash. Rev. Code § 19.86.010-19.86.920, T-Mobile

removed the case to federal district court and moved to compel arbitration per its service agreements. The district court

denied T-Mobile’s motion to compel arbitration, holding that

the arbitration agreements were tainted by substantive unconscionability and thus were unenforceable. We conclude that

the Washington State Supreme Court’s decision in Scott v.

Cingular Wireless, 161 P.3d 1000 (Wash. 2007), establishes

that T-Mobile’s arbitration provision is substantively unconscionable and unenforceable under Washington state law, and

that there is no federal preemption in light of our decision in

Shroyer v. New Cingular Wireless Servs., Inc., 498 F.3d 976

(9th Cir. 2007). We therefore affirm.

II

The two named Plaintiffs, Kathleen Lowden and John

Mahowald, are or were T-Mobile customers whose service

agreements contained mandatory arbitration provisions with

slightly varying terms. Plaintiffs sued T-Mobile, alleging that

the service provider had improperly charged them for certain

fees beyond the advertised price of service, charged them for

calls during a billing period other than that in which the calls

were made, and charged them for roaming and other services

842 LOWDEN v. T-MOBILE USA
that should have been free. T-Mobile moved to compel arbitration in accord with the arbitration provisions in Lowden’s

and Mahowald’s service agreements. 

In Lowden’s service agreement,1 immediately above the

signature line, the following provision appeared: “Disputes

are subject to mandatory arbitration pursuant to paragraph 19.

See Reverse.” Paragraph 19 stated: 

Mandatory Arbitration. Any controversy, claim or

dispute between you and Company arising under this

Agreement, excluding actions by Company to collect

unpaid charges, shall be submitted to final, binding

arbitration under the auspices of the American Arbitration Association (“AAA”) pursuant to its published Wireless Industry Arbitration Rules,

incorporated herein by this reference and available

by calling the AAA at 800-778-7879 or visiting its

web site at http://www.adr.org. Notice of an arbitration commenced by you shall be served on Company’s registered agent. All claims shall be arbitrated

individually and you agree that no person shall bring

a punitive [sic] or certified class action to arbitration

or seek to consolidate or bring previously consolidated claims in arbitration. The arbitrator shall have

no authority to award punitive damages. YOU

1We must assure ourselves that the constitutional standing requirements

are satisfied before proceeding to the merits. United States v. Hays, 515

U.S. 737, 742 (1995); Casey v. Lewis, 4 F.3d 1516, 1524 (9th Cir. 1993).

Although the district court and T-Mobile suggest that Lowden may not

have standing to pursue her claims, we need not reach this issue. In a class

action, standing is satisfied if at least one named plaintiff meets the

requirements. See Armstrong v. Davis, 275 F.3d 849, 860 (9th Cir. 2001).

Here, the parties do not dispute that Mahowald has standing from his

alleged injury in fact that is both traceable to T-Mobile’s alleged conduct

and likely to be redressed by the damages that Mahowald seeks. See Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (discussing Article

III standing requirements). 

LOWDEN v. T-MOBILE USA 843
ACKNOWLEDGE THAT THIS ARBITRATION

PROVISION CONSTITUTES A WAIVER OF

ANY RIGHT TO A JURY TRIAL. 

Those provisions were also in the Terms & Conditions that

accompanied the phone delivered to Lowden and that stated

that, “By activating Service with Company, you acknowledge

that you have read and agree to the terms of this Agreement.”

T-Mobile asserts that, had Lowden or her then-husband disagreed with those terms, they could have canceled service and

thereby avoided arbitration. 

The service agreement in effect when Mahowald signed up

with T-Mobile was slightly different in substance. While containing an almost identical provision above the signature line,

the provision on the reverse stated: 

Mandatory Arbitration; Dispute Resolution.

ANY CLAIM OR DISPUTE BETWEEN YOU

AND US ARISING UNDER OR IN ANY WAY

RELATED TO OR CONCERNING THE AGREEMENT, AND/OR OUR PROVISION TO YOU OF

GOODS, SERVICE, OR UNITS, SHALL BE SUBMITTED TO FINAL, BINDING ARBITRATION

WITH THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) PURSUANT TO ITS PUBLISHED WIRELESS INDUSTRY ASSOCIATION

RULES, INCORPORATED HEREIN BY THIS

REFERENCE AND AVAILABLE BY CALLING

THE AAA AT 800-778-7879 OR VISITING ITS

WEBSITE AT http://www.adr.org. Any arbitration

proceeding shall be subject to the choice of law provision in Paragraph 22. Notice of an arbitration commenced by you must be served on our registered

agent. No party may act as a representative of other

claimants or potential claimants in any dispute, and

two or more individuals’ disputes may not be consolidated or otherwise determined in one proceeding.

844 LOWDEN v. T-MOBILE USA
An arbitrator may not award relief in excess of or

inconsistent with the provisions of the Agreement,

order consolidation or arbitration on a class wide

basis, or award lost profits, punitive, incidental, or

consequential damages or any other damages other

than the prevailing party’s direct damages, except

that the arbitrator may order injunctive or declaratory relief pursuant to applicable law. All administrative expenses of an arbitration will be equally

divided between you and Us, except that if the claim

is less that $1,000, you will be obligated to pay only

$25. If the claim is less than $25, We will pay all

administrative expenses. Each party agrees to pay

the fees and costs of its own counsel, experts, and

witnesses at arbitration. Subject to the foregoing limitations on consolidated or classwide proceedings,

you agree, however, that if you fail to timely pay

amounts due, We may assign your account for collection and the collection agency may pursue such

claims in court limited strictly to the collection of the

past due debt and any interest or cost of collection

permitted by law or the Agreement. 

YOU ACKNOWLEDGE AND AGREE THAT

THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO LOST

PROFITS, PUNITIVE, SPECIAL, INDIRECT,

INCIDENTAL, CONSEQUENTIAL OR TREBLE

DAMAGES (“DISCLAIMED DAMAGES”), A

JURY TRIAL, OR PARTICIPATION AS A

PLAINTIFF OR AS A CLASS MEMBER IN A

CLASS ACTION. IF FOR ANY REASON THIS

ARBITRATION CLAUSE IS DEEMED INAPPLICABLE OR INVALID, YOU AND WE BOTH

WAIVE ANY CLAIMS TO RECOVER DISCLAIMED DAMAGES AND ANY RIGHT TO

PURSUE, OR PARTICIPATE AS A PLAINTIFF

OR A CLASS MEMBER IN, CLAIMS ON A

LOWDEN v. T-MOBILE USA 845
CLASSWIDE, CONSOLIDATED, OR REPRESENTATIVE BASIS. 

As in Lowden’s case, the Terms & Conditions accompanying

the phones delivered to Mahowald contained the same arbitration provision, along with a similar warning that service activation constituted an agreement to be bound thereby. 

Relying on those arbitration provisions, T-Mobile brought

its motion to compel individual arbitration. The district court

denied the motion, holding that T-Mobile’s arbitration provisions were tainted by substantive unconscionability and were

therefore unenforceable. 

The district court first determined that each named Plaintiff

had an agreement. Then, after dismissing Plaintiffs’ argument

that the agreements as a whole were procedurally unconscionable, the court assessed the agreements for substantive

unconscionability. The court preliminarily noted that the

Washington State Supreme Court was considering Scott, 161

P.3d 1000, which, the court stated, “places squarely at issue

the question of whether class action prohibitions contained in

arbitration agreements are unconscionable under Washington

law and therefore unenforceable.” However, at the urging of

the parties to decide the issue nonetheless, the district court

declined to stay its ruling pending Scott. The district court

next turned to the unconscionability of each contested provision within the two arbitration agreements. 

The district court held that the prohibition on class relief

and the limitation on punitive damages, found in both agreements, were each substantively unconscionable. The district

court also concluded that Mahowald’s attorney fees provision

was substantively unconscionable. Although the court

rejected the arguments that the remaining provisions were

invalid, it nonetheless declared both arbitration agreements to

be unenforceable, despite the severability provisions, because

they were “tainted with substantive unconscionability.” The

846 LOWDEN v. T-MOBILE USA
district court denied T-Mobile’s motion to compel arbitration

and entered a stay so that T-Mobile could bring the present

interlocutory appeal. We have jurisdiction of this appeal pursuant to 9 U.S.C. § 16(a)(1)(A) and (B). 

III

We review de novo the denial of a motion to compel arbitration. Ticknor v. Choice Hotels Int’l, Inc., 265 F.3d 931, 936

(9th Cir. 2001). We also review de novo the district court’s

interpretation of the validity and scope of the arbitration

clause. Id. We review for clear error the district court’s findings of fact. Bradley v. Harris Research, Inc., 275 F.3d 884,

888 (9th Cir. 2001).

IV

T-Mobile urges us to compel Plaintiffs to arbitrate in

accord with the terms of the agreement. T-Mobile argues that

the service agreements’ terms and the Federal Arbitration Act

mandate this result. Congress enacted the FAA more than

eighty years ago to advance the federal policy favoring arbitration agreements. Section 2 states that arbitration agreements made as part of contracts “evidencing a transaction

involving [interstate] commerce . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law

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

(emphasis added). Where, as here, a party attempts to litigate

claims covered by a commercial contract containing an arbitration agreement subject to the FAA, the court must determine “(1) whether a valid agreement to arbitrate exists and,

if it does, (2) whether the agreement encompasses the dispute

at issue.” Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207

F.3d 1126, 1130 (9th Cir. 2000). We apply state-law principles that govern the formation of contracts to determine

whether a valid arbitration agreement exists. First Options of

Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995). 

LOWDEN v. T-MOBILE USA 847
A

[1] We first address whether, under Washington state contract law, a valid agreement to arbitrate exists. This requires

us to consider what is unconscionable and unenforceable

under Washington state law. After the district court denied TMobile’s motion to compel arbitration, the Washington State

Supreme Court decided Scott v. Cingular Wireless, 161 P.3d

1000. In that case, the Washington State Supreme Court considered the enforceability of an arbitration provision within a

service agreement binding Cingular Wireless customers, and

held that the agreement was unconscionable and unenforceable under Washington law. Id. at 1002-03. As in T-Mobile’s

case, Cingular’s arbitration provision contained a clause barring class action litigation or arbitration.2

Id. at 1003. 

The Washington State Supreme Court initially noted that

the plaintiffs had submitted a declaration from the former

division chief for consumer protection in the Washington

State Attorney General’s office, declaring that that office “did

not have sufficient resources to respond to many individual

cases and often ‘relied on . . . private class action to correct

the deceptive or unfair industry practice and to reimburse consumers for their losses.’ ” Id. at 1004. The court also acknowledged the clear split of authority on the enforceability of class

action waivers in arbitration clauses. Id. 

Turning to the class action waiver’s enforceability, the

2The remaining Cingular provisions differed slightly from T-Mobile’s

provisions. For instance, Cingular’s agreement provided that Cingular

would “pay the filing, administrator, and arbitration fees unless the customer’s claim was found to be frivolous; that Cingular would reimburse

the customer for reasonable attorney fees and expenses incurred for the

arbitration (provided that the customer recovered at least the demand

amount); and that the arbitration would take place in the county of the customer’s billing address.” Scott, 161 P.3d at 1003. The agreement had also

initially limited punitive damages, but Cingular subsequently removed that

limitation. Id. 

848 LOWDEN v. T-MOBILE USA
court first observed that “[a]n agreement that violates public

policy may be void and unenforceable.” Id. at 1005 (citing

Restatement (Second) of Contracts § 178 (1981)). The court

then discussed Washington’s “state policy favoring aggregation of small claims for purposes of efficiency, deterrence,

and access to justice.” Id. It noted that “when consumer

claims are small but numerous, a class-based remedy is the

only effective method to vindicate the public’s rights.” Id. 

The court held that Cingular’s particular class action waiver

was unconscionable. The court discussed the public policies

that class actions advance, declaring that, “without class

actions, consumers would have far less ability to vindicate the

CPA.” Id. at 1006. It also stated that the class action waiver

clause was “an unconscionable violation of [Washington’s]

policy to protect the public and foster fair and honest competition because it drastically forestall[ed] attempts to vindicate

consumer rights” and was, therefore, “substantively unconscionable.” Id. (internal quotation marks and citation omitted).

The court then noted that the agreement was additionally

unconscionable because it “in effect . . . exculpate[d] Cingular

from legal liability for any wrong where the cost of pursuit

outweighs the potential amount of recovery.” Id. at1007. It

asserted that the availability of a class action mechanism

would “transform[ ] a merely theoretically possible remedy

into a real one.” Id. The court reasoned that merely shifting

the cost of arbitration to Cingular did not seem likely to

“make it worth the time, energy, and stress to pursue such

individually small claims,” especially when attorney fees

would be awarded only if the plaintiffs recovered at least the

full amount of their demand. Id. 

[2] The court reasoned that, because the clause barred any

class action, in or outside arbitration, it functioned to “exculpate the drafter from liability for a broad range of undefined

wrongful conduct, including potentially intentional wrongful

conduct, and that such exculpation clauses are substantively

LOWDEN v. T-MOBILE USA 849
unconscionable.” Id. at 1008. The court concluded: “A clause

that unilaterally and severely limits the remedies of only one

side is substantively unconscionable under Washington law

for denying any meaningful remedy.” Id. 

[3] The Cingular class action waiver provision that Scott

declares to be unenforceable is indistinguishable in all material respects from T-Mobile’s class action waiver. The Washington State Supreme Court’s holding in Scott requires us to

determine that T-Mobile’s class action waiver is substantively

unconscionable, and unenforceable, under Washington law.

T-Mobile’s class action waiver, like Cingular’s, bars class

actions in both litigation and arbitration, and the Washington

State Supreme Court’s unconscionability analysis in Scott

applies as forcefully to T-Mobile’s agreement. 

[4] We need not reach whether T-Mobile’s remaining provisions are unconscionable. T-Mobile has expressly stated

that it does not consent to class action arbitration and that, as

a result, if we deem the class action waiver clause unconscionable under Washington law, the entire arbitration provision

should be rendered unenforceable. Having determined that the

(nonseverable) class action waiver is invalid under Washington law, we hold that T-Mobile’s arbitration agreement is

unenforceable under Washington law.

B

[5] We next consider T-Mobile’s argument that the Federal

Arbitration Act preempts Washington law from thus rendering T-Mobile’s class action waiver unconscionable, and

thereby rendering unenforceable its arbitration agreement.

The FAA provides that contractual arbitration agreements

“shall be valid, irrevocable, and enforceable, save upon such

grounds as exist at law or in equity for the revocation of any

contract.” 9 U.S.C. § 2 (emphasis added). 

[6] The United States Supreme Court has interpreted this

statute to require that any state legal principle attempting to

850 LOWDEN v. T-MOBILE USA
invalidate an arbitration agreement must be a principle that

applies to contracts generally. In Doctor’s Assocs., Inc. v.

Casarotto, 517 U.S. 681 (1996), for example, the Supreme

Court stated: 

“[G]enerally applicable contract defenses, such as

fraud, duress, or unconscionability, may be applied

to invalidate arbitration agreements without contravening § 2. Courts may not, however, invalidate

arbitration agreements under state laws applicable

only to arbitration provisions. By enacting § 2, we

have several times said, Congress precluded States

from singling out arbitration provisions for suspect

status, requiring instead that such provisions be

placed ‘upon the same footing as other contracts.’ ”

Id. at 687 (citations omitted). See also Southland Corp. v.

Keating, 465 U.S. 1, 16 n.11 (1984). 

T-Mobile argues that the FAA preempts Washington’s

determination that its class action waiver is unconscionable.

T-Mobile asserts that the Washington State Supreme Court’s

holding in Scott that Cingular’s class action waiver is unconscionable is not a contractual rule of general applicability

under the FAA. 

We recently decided Shroyer v. New Cingular Wireless

Servs., Inc., 498 F.3d 976. In Shroyer, we considered the

enforceability of another Cingular arbitration agreement containing a class action waiver. We determined not only that the

agreement was unconscionable under California law, but also

that the FAA did not preempt California law on this issue. Id.

at 987. We first surveyed California law on unconscionability,

and in particular the test the California Supreme Court set

forth in Discover Bank v. Superior Court of Los Angeles, 113

P.3d 1100 (Cal. 2005), requiring a finding of both procedural

and substantive unconscionability to render a provision

LOWDEN v. T-MOBILE USA 851
invalid. Shroyer, 498 F.3d at 981-82 (citing Discover Bank,

113 P.3d at 1108). We quoted Discover Bank’s reasoning: 

“We do not hold that all class action waivers are necessarily unconscionable. But when the waiver is

found in a consumer contract of adhesion in a setting

in which disputes between the contracting parties

predictably involve small amounts of damages, and

when it is alleged that the party with the superior

bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of

individually small sums of money, then, at least to

the extent the obligation at issue is governed by California law, the waiver becomes in practice the

exemption of the party ‘from responsibility for [its]

own fraud, or willful injury to the person or property

of another.’ (Civ. Code, § 1668.) Under these circumstances, such waivers are unconscionable under

California law and should not be enforced.” 

Id. at 983 (alteration in Shroyer) (quoting Discover Bank, 113

P.3d at 1100). 

Applying Discover Bank’s test, we concluded that Cingular’s class action waiver was unconscionable under California

law because the agreement was of the type that Discover Bank

foreclosed—a contract of adhesion in a setting involving disputes between contracting parties that predictably concerned

only small amounts of damages and where, according to the

Shroyer plaintiffs, the party with the superior bargaining

power (i.e., the wireless provider) had carried out a fraudulent

scheme deliberately to cheat large numbers of consumers out

of individually small sums of money. Id. at 983-84. We

observed that in Discover Bank the California Supreme Court

had been concerned “that when the potential for individual

gain is small, very few plaintiffs, if any, will pursue individual arbitration or litigation, which greatly reduces the aggregate liability a company faces when it has exacted small sums

852 LOWDEN v. T-MOBILE USA
from millions of consumers.” Id. at 986 (emphasis omitted).

As in T-Mobile’s present case, the invalidating of Cingular’s

class action waiver rendered the entire arbitration agreement

unenforceable. Id. at 986-87. 

Having decided that the agreement was unenforceable

under California law, we next considered Cingular’s argument

that the FAA preempted California law. Cingular had argued

that Discover Bank’s unconscionability provisions subjected

arbitration agreements to special scrutiny. Id. at 987. The

United States Supreme Court had previously observed that

“ ‘[a] state-law principle that takes its meaning precisely from

the fact that a contract to arbitrate is at issue does not comport

with th[e] requirement of § 2’ and is preempted.” Id. (first

alteration in original) (quoting Perry v. Thomas, 482 U.S.

483, 492 n.9 (1987)). We held, however, that such a principle

was not at issue in Shroyer; rather, the California principle of

unconscionability was a generally applicable contract defense,

which could be applied to invalidate an arbitration agreement

without contravening the FAA. Id. at 987-88. We further

commented that we had previously rejected Cingular’s argument that California’s unconscionability doctrine was preempted by the FAA and that Discover Bank’s statement that

the doctrine applied to contracts generally, not only to arbitration agreements, affirmed that California law on this point did

not contravene the FAA. Id. at 988. 

We rejected Cingular’s argument that application of California’s unconscionability principles would obstruct Congress’s purposes in enacting the FAA. Congress’s primary

purpose behind the FAA requires that we enforce the terms of

arbitration agreements like other contracts, not more so. Id. at

989. We reasoned: “To hold that California unconscionability

law may be applied only to invalidate a class action waiver,

but not a class arbitration waiver, would place arbitration

agreements on a different footing than other contracts, in

direct contravention of th[e] principal purpose of the [FAA].”

Id. at 990 (citing Scott, 161 P.3d at 1008 (“Congress simply

LOWDEN v. T-MOBILE USA 853
requires us to put arbitration clauses on the same footing as

other contracts, not make them the special favorites of the

law.”)). 

[7] We also rejected Cingular’s suggestions that the FAA

implicitly exalted individual arbitration but disfavored class

arbitration, id. at 990, and that class arbitration would reduce

arbitration’s alleged general efficiency, id. at 990-92. We concluded that the FAA did not preempt California unconscionability principles from invalidating Cingular’s class action

waiver and therefore its arbitration agreement. Id. at 993. 

[8] The invalid class action waiver in Shroyer is, in all

material respects, identical to T-Mobile’s waiver. As in

Shroyer, T-Mobile’s class action waiver lies within a contract

of adhesion governing claims likely to concern only small

sums of money that the defendant is alleged to have fraudulently obtained from the plaintiffs. Most significantly, the

Washington State Supreme Court grounded its unconscionability determination in Scott in concerns almost identical to

those underpinning California’s unconscionability determination in Discover Bank. Thus Shroyer’s conclusion with

respect to California unconscionability law applies equally

here: Just as the FAA does not preempt California’s unconscionability law, it does not preempt Washington’s unconscionability law. As we explained in Shroyer, the California

Supreme Court sought in Discover Bank to remedy its concern that, when the potential for individual gain is small, few

if any plaintiffs will pursue either individual arbitration or litigation, thereby greatly reducing the aggregate liability a company faces when it has exacted small sums from millions.

Those are the same concerns that underlie the Washington

State Supreme Court’s holding in Scott. 

We reject T-Mobile’s argument that Scott’s unconscionability principles do not apply in all contracts—in other words,

that they treat arbitration agreements differently than other

contracts. In Shroyer, we rejected Cingular’s analogous argu854 LOWDEN v. T-MOBILE USA
ment, notwithstanding the California Supreme Court’s recognition in Discover Bank that it was not holding that all class

action waivers are necessarily unconscionable, but rather only

those in certain circumstances. As Shroyer’s holding suggests,

Scott’s unconscionability principles embody grounds to

revoke any contract, not just arbitration agreements. The Scott

principles apply equally to a contract that permits only individual, not aggregate, litigation in court. Stated another way,

the Scott holding targets not the arbitration context, but rather

the class action waiver, which the Washington State Supreme

Court has determined would deprive Washington consumers

of a right generally applicable to arbitration and litigation

contracts alike and which only happens to be within an arbitration agreement in this case.3

Finally, T-Mobile’s claim, in essence, that the FAA

requires a state to enforce a class action waiver merely

because it lies within an arbitration agreement—whereas a

state would be free to find the same waiver to be invalid in

the litigation context—contravenes the FAA’s mandate of an

“equal footing” between arbitration and other forms of dispute

resolution. See Buckeye Check Cashing, Inc. v. Cardegna,

546 U.S. 440, 443 (2006) (“Section 2 embodies the national

policy favoring arbitration and places arbitration agreements

on equal footing with all other contracts . . . .”). The FAA proscribes states from giving arbitration special treatment,

whether it be positive or negative. 

AFFIRMED.

3We also decline T-Mobile’s invitation to follow the Third Circuit’s

holding in Gay v. CreditInform, No. 06-4036 2007 U.S. App. LEXIS

29302 (3d Cir. Dec. 19, 2007). Unlike the Third Circuit’s conclusion as

to the applicable state law in Gay, we determine that the Washington

Supreme Court in Scott does not hold “that an agreement to arbitrate may

be unconscionable simply because it is an agreement to arbitrate.” Id. at

*63. 

LOWDEN v. T-MOBILE USA 855