Citations and pin cites are based on the Westlaw online version of the cited material.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

AUSTIN CORNELIUS, an individual,

Respondent,

v.

ALPHA KAPPA LAMBDA, a national 

organization, ETA CHAPTER OF

ALPHA KAPPA LAMBDA, a 

Washington corporation d/b/a ALPHA 

KAPPA LAMBDA, and ETA OF ALPHA 

KAPPA LAMBDA, a Washington 

corporation,

Appellants,

WASHINGTON STATE UNIVERSITY, a

public university,

Defendant.

No. 82264-1-I 

DIVISION ONE

UNPUBLISHED OPINION

CHUN, J. — Austin Cornelius sued the national fraternity Alpha Kappa 

Lambda and its local chapter, Eta of Alpha Kappa Lambda, (collectively “AKL”) 

for negligence. AKL moved to compel arbitration under an arbitration agreement 

(the Agreement) Cornelius signed when he joined the fraternity. The trial court 

denied the motion, deeming the Agreement procedurally unconscionable. AKL 

appeals, contending that the Agreement is not procedurally unconscionable and 

covers all of Cornelius’s claims. In the alternative, AKL requests remand for an 

evidentiary hearing and limited discovery on the circumstances surrounding the 
No. 82264-1-I/2

2

execution of the Agreement. For the reasons discussed below, we reverse and 

remand, and the trial court may address whether to allow any limited discovery.

I. BACKGROUND

Cornelius began attending Washington State University (WSU) in August 

2017 when he was 18 years old. He participated in “rush week” and received 

“bids”—or invitations to join—from at least five fraternities. He decided to 

“pledge” Alpha Kappa Lambda, a national fraternity with a local chapter, Eta, at 

WSU.

Cornelius attended his first AKL event on August 20, 2017. He alleges 

that AKL members hazed him during this event, leading to his hospitalization for

“acute alcohol intoxication.”

As for the arbitration agreement at issue, Cornelius claims as follows: On 

August 28, 2017, during a fraternity study session, AKL members instructed him

to create a profile on the fraternity’s online membership portal. He did so. On 

August 30, 2017, during another study session, AKL members directed Cornelius 

to “sign off” on “some paperwork” on the online portal. The pledges “were rushed 

through this process and told [they] needed to complete the approval right there 

at the study tables session before [they] left for the evening.” The senior 

members “never [gave] any explanation as to what specifically [the pledges] were 

signing, what the agreements entailed, or even a summary of what was 

contained in the agreements.” The pledges “were not told or encouraged to 

spend more than about a minute or two at most to review the agreements before 
No. 82264-1-I/3

3

checking the box.” The senior members told the pledges that if they did not “sign 

off” on the agreements, they “could not pledge the fraternity and would not be 

allowed at the house.” “There was no opportunity to ask questions, seek clarity, 

review, or otherwise get a meaningful understanding of what it was [the pledges] 

were being asked to approve.”

The portal contained a four-page document called the “New Member 

Agreements” (NMA). On the last page of the NMA is the Agreement, which is

titled “AKL CLAIM AND DISPUTE RESOLUTION PROGRAM” in bold lettering. It

includes the following provision: “If you are unable to resolve a claim or dispute 

arising out of your membership or participation in any Fraternity of Alpha Kappa 

Lambda-related activity, under the terms of the Program the claim or dispute will 

be submitted to binding arbitration instead of through the courts.” (Emphasis 

added.) The Agreement then provides in bold lettering:

YOUR DECISION TO JOIN OR ACCEPT MEMBERSHIP OR 

CONTINUE YOUR CURRENT MEMBERSHIP IN THE 

FRATERNITY . . . MEANS YOU HAVE AGREED TO AND ARE 

BOUND BY THE TERMS OF THIS PROGRAM AS CONTAINED IN 

THE PLAN DOCUMENT AND RULES, A COMPLETE COPY OF 

WHICH IS AVAILABLE FOR YOU TODAY, AND CAN BE FOUND 

ON THE ALPHA KAPPA LAMBDA NATIONAL WEBSITE.

Finally, the Agreement provides,

[Y]ou and the Fraternity of Alpha Kappa Lambda are both waiving all 

rights which either may have with regard to trial by jury for personal 

injury, property damage, contract or any other related matters in state 

or federal court. This Plan covers any legal or equitable claim for 

personal injury, property damage, equity or breach of contract, 

arising out of any tort, statute, contract or law. 

(Emphasis added.) The Agreement incorporates the “Claim and Dispute 

Resolution Plan and Rules” (the Plan) by reference and informs that the Plan is 
No. 82264-1-I/4

4

available on the fraternity’s website. The Plan provides that the Federal 

Arbitration Act1(FAA) applies to the Agreement.

Cornelius signed the NMA on August 30. The online portal provider’s 

records show that Cornelius created his profile on August 28, 2017. It also 

shows that he logged onto his profile around 11:20 p.m. on August 30 and signed 

the NMA around 11:32 p.m. the same night. AKL allegedly continued to haze 

Cornelius as a pledge until October 2017.

On July 30, 2020, Cornelius sued AKL for negligence. AKL moved to 

compel arbitration and for a stay of proceedings. Cornelius opposed the motion, 

claiming that the Agreement does not apply to claims arising from events 

predating its execution and that the Agreement is procedurally unconscionable. 

During a hearing on the matter, AKL requested an evidentiary hearing in the 

alternative. The trial court denied AKL’s motion to compel arbitration. It 

determined that an evidentiary hearing was unnecessary and concluded that the 

Agreement was procedurally unconscionable because Cornelius lacked a 

“meaningful choice regarding his entry into the agreement.” AKL appeals. 

II. ANALYSIS

AKL says the trial court erred by denying its motion to compel arbitration 

because the Agreement is not procedurally unconscionable and covers the 

claims arising from events before the execution of the Agreement.

2

 Cornelius 

 

1 9 U.S.C. §§1–16.

2 AKL says that the contract defense of duress does not apply here. But 

Cornelius does not argue duress on appeal nor did the trial court deny arbitration on 

such grounds. Thus, we do not address the issue. 
No. 82264-1-I/5

5

responds that the Agreement is procedurally unconscionable and does not apply 

retroactively to all of his claims. Because we cannot resolve the issue of

procedural unconscionability on the record before us, we remand for an 

evidentiary hearing. 

We review de novo a trial court’s denial of arbitration. Burnett v. Pagliacci 

Pizza, Inc., 196 Wn.2d 38, 46–47, 470 P.3d 486 (2020). “Unconscionability is 

also a question of law we review de novo.” McKee v. AT&T Corp., 164 Wn.2d 

372, 383, 191 P.3d 845 (2008). 

“[T]he party moving to compel arbitration must make a threshold showing 

that a written agreement to arbitrate exists and that the contract at issue involves 

interstate commerce.”3 Walters v. A.A.A. Waterproofing, Inc., 120 Wn. App. 354, 

358, 85 P.3d 389 (2004), review granted, cause remanded, 153 Wn.2d 1023, 

108 P.3d 1227 (2005). Once that party meets that threshold, the burden shifts to 

the party opposing arbitration “to show that the arbitration clause is 

unenforceable.” Gandee v. LDL Freedom Enters., Inc., 176 Wn.2d 598, 602–03, 

293 P.3d 1197 (2013).

The parties do not dispute that the FAA governs here. The FAA provides 

that written 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. “When the validity of an agreement to arbitrate is

challenged, courts apply ordinary state contract law.” McKee, 164 Wn.2d at 383. 

 

3 Cornelius contends that this language from Walters shows that AKL bears the 

burden to prove that a legally binding and valid arbitration agreement exists and covers 

all of his claims; but it clearly does not support such a contention.
No. 82264-1-I/6

6

“General contract defenses such as unconscionability may invalidate arbitration 

agreements.” Id.; see also Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford 

Junior Univ., 489 U.S. 468, 475–76, 109 S. Ct. 1248, 103 L. Ed. 2d 488 (1989)

(“in applying general state-law principles of contract interpretation to the 

interpretation of an arbitration agreement within the scope of the Act, due regard 

must be given to the federal policy favoring arbitration, and ambiguities as to the 

scope of the arbitration clause itself resolved in favor of arbitration.” (citations 

omitted)). “[B]oth state and federal law strongly favor arbitration and require all 

presumptions to be made in favor of arbitration.” Gandee, 176 Wn.2d at 602–03. 

When reviewing a motion to compel arbitration, we consider “(1) ‘whether the 

arbitration agreement is valid,’ and (2) ‘whether the agreement encompasses the 

claims asserted.’” Cox v. Kroger Co., 2 Wn. App. 2d 395, 404, 409 P.3d 1191 

(2018) (quoting Wiese v. CACH, LLC, 189 Wn. App. 466, 474, 358 P.3d 1213 

(2015)). 

A. Procedural Unconscionability 

“Procedural unconscionability is ‘the lack of meaningful choice, 

considering all the circumstances surrounding the transaction.’” Zuver v. 

Airtouch Commc’ns, Inc., 153 Wn.2d 293, 303, 103 P.3d 753 (2004)

(quoting Nelson v. McGoldrick, 127 Wn.2d 124, 131, 896 P.2d 1258 (1995)). To 

determine whether an agreement is procedurally unconscionable, courts look at 

“(1) the manner in which the contract was entered, (2) whether [the signatory] 

had a reasonable opportunity to understand the terms of the contract, and
No. 82264-1-I/7

7

(3) whether the important terms were hidden in a maze of fine print.” Burnett, 

196 Wn.2d at 54. “‘[T]hese three factors [should] not be applied mechanically 

without regard to whether in truth a meaningful choice existed.’” Zuver, 153 

Wn.2d at 303 (second alteration in original) (quoting Nelson, 127 Wn.2d at 131).

An arbitration agreement may be procedurally unconscionable if it is an 

adhesion contract. Burnett, 196 Wn.2d at 54. Adhesion contracts are standardform contracts presented on a “take it or leave it basis” by a party with 

disproportionately more bargaining power. Zuver, at 305 (internal quotation 

marks omitted) (quoting Yakima County (W. Valley) Fire Prot. Dist. No. 12 v. City 

of Yakima, 122 Wn.2d 371, 393, 858 P.2d 245 (1993)). But “[a]n adhesion 

contract is not necessarily procedurally unconscionable.” Burnett, 196 Wn.2d at 

54–55. “The key inquiry is whether the party lacked meaningful choice.” Id. 

1. The manner in which Cornelius entered the Agreement and whether he 

had a reasonable opportunity to understand the terms of the 

Agreement 

Cornelius contends that circumstances surrounding his entry into the 

Agreement deprived him of a meaningful opportunity to read and understand the 

Agreement. An evidentiary hearing is necessary to assess his claims. 

a. Time to consider the Agreement 

AKL contends that Cornelius had access to the NMA when he first created 

his profile on August 28. While Cornelius does not appear to dispute that he may 

have had access to the NMA starting on August 28, he contends he did not know 

of its existence until August 30. 
No. 82264-1-I/8

8

Assuming that Cornelius did not know about the NMA until August 30, it is 

still unclear how much time he had to review and sign it that day. Cornelius says 

the senior members “rushed” him through the process and that the pledges were 

not “encouraged” to spend more than “a minute or two” reviewing the NMA. But

he does not say that the senior members limited his review to two minutes. And

the online portal provider’s records show that he signed onto his profile for about 

12 minutes before he signed the NMA.

Without more information, it is unclear whether how long Cornelius had to 

consider the Agreement supports a determination that the Agreement is 

procedurally unconscionable. In Tjart v. Smith Barney, Inc., this court saw no 

procedural unconscionability although the plaintiff executed the arbitration 

agreement “relatively rapidly.” 107 Wn. App. 885, 890, 896–97, 28 P.3d 823 

(2001). But Tjart does not clarify the term “relatively rapidly.” AKL also relies on

Hoober v. Movement Mortg., LLC, in which the court noted concern about 

pressure the employer placed on the employee to quickly sign the agreement, 

leading her to return the forms the same day she received them, but still

concluded that there was no procedural unconscionability. 382 F. Supp. 3d 

1148, 1154, 1157 (W.D. Wash. 2019) (applying Washington law).

4

 But here the 

record is unclear whether Cornelius had more than one day, or much less than 

one day, to consider the Agreement. 

 

4 Neither Hoober nor other federal case law we cite in this opinion constitute 

binding precedent. 
No. 82264-1-I/9

9

b. Explanation of the Agreement 

Cornelius says that the senior members told him to just “sign off” without 

explaining what he was signing or what the documents contained. But this court 

rejected a similar argument in Tjart when the plaintiff complained that no one 

explained to her what types of claims would be covered by the arbitration 

agreement. 107 Wn. App. at 890, 896–97. Cornelius cites no law requiring an 

explanation. This contention does not support a determination of procedural 

unconscionability. 

c. Questions about the Agreement

Cornelius says that he had no opportunity to ask questions about the 

agreement. Relying on Hoober, AKL responds that because Cornelius does not 

claim that he tried to ask questions, he cannot claim the Agreement is 

procedurally unconscionable. 382 F. Supp. 3d at 1156–57 (“neither Plaintiff 

argues that they asked questions” in rejecting a claim of procedural 

unconscionability).

5

 Because Cornelius does not explain how he lacked an 

opportunity to ask questions, further factual development is needed to determine 

whether he had a reasonable opportunity to understand the terms of the 

Agreement.

 

5 See also Simpson v. Inter-Con Sec. Sys., Inc., No. C12-1955RAJ, 2013 WL 

1966145, at *3 (W.D. Wash. May 10, 2013) (“Although Plaintiffs contend they had little 

time to consider the agreement, they do not contend that they attempted to consider it, 

attempted to ask questions about it, or even that they would have asked questions if 

they had more time. The agreement is not procedurally unconscionable.”); see GR 

14.1(c).
No. 82264-1-I/10

10

2. Whether important terms were hidden in the Agreement 

Citing Burnett, Cornelius contends that because he did not see the Plan 

before signing the NMA, which incorporated the Plan by reference, the essential 

terms of the Agreement were hidden. Our Supreme Court held in Burnett that an 

employment contract that incorporated an arbitration policy by reference was 

procedurally unconscionable. 196 Wn.2d at 57. The employment contract “did 

not mention arbitration.” Id. at 56–57. After Burnett signed the employment 

contract, he received an employee handbook containing the arbitration policy but

“the arbitration policy was not identified in the handbook’s table of contents.” Id.

The court held that “because essential terms were hidden and Burnett had no 

reasonable opportunity to understand the arbitration policy before signing the 

employment contract, the manner in which the contract was entered 

demonstrated that Burnett lacked a meaningful choice regarding the arbitration 

policy.” Id. at 57.

Here, on the record before us, the essential terms do not appear to have 

been hidden. The Agreement appears on the fourth and final page of the NMA. 

See Tjart, 107 Wn. App. at 898–99 (“the arbitration provision was obvious in the 

fairly short contract”). The Agreement is titled “AKL CLAIM AND DISPUTE 

RESOLUTION PROGRAM” and states that claims and disputes arising out of 

membership or fraternity-related activities will be submitted to arbitration and that 

both parties are waiving their right to go to court. See Romney v. Franciscan 

Med. Grp., 186 Wn. App. 728, 740, 349 P.3d 32 (2015) (“arbitration clause is 
No. 82264-1-I/11

11

understandable and is printed in the same size font as the rest of the agreement 

under a bolded heading”).

And in Burnett, the plaintiff did not receive the handbook containing the 

arbitration clause until after he signed the document incorporating it. Cornelius 

contends this case is similar because he did not recall seeing the Plan, which 

discusses the arbitration rules in detail, before he signed the NMA. But here, the 

arbitration clause itself was in the NMA, and while he says that it is “unclear” 

whether he had access to the Plan before signing, he does not contend he 

lacked such access. The Agreement states the Plan is on AKL’s website. See 

Tjart 107 Wn. App. at 896–99 (holding that, though the plaintiff complained that 

she never received a copy of the rules referred to in the agreement, the 

agreement was not procedurally unconscionable). 

3. Adhesion contract 

a. Offered on a “take it or leave it” basis 

Cornelius says that there was no opportunity to negotiate terms. He says 

the senior members told him that if he did not sign the Agreement, he could not 

continue to be in the fraternity. AKL does not dispute this. Instead, it correctly 

emphasizes that whether the Agreement is an adhesion contract is not 

determinative. See Burnett, 196 Wn.2d at 54–55. 

AKL relies on Hoober and Romney to contend that this adhesion contract 

was not procedurally unconscionable. In Hoober, the court noted that the 

plaintiffs would lose their new job opportunity if they refused to sign the 
No. 82264-1-I/12

12

arbitration agreement, but still determined the agreement was enforceable. 382 

F. Supp. 3d at 1157. The court also noted that “understanding that the terms 

could not be changed is substantively different from asking questions about the 

terms and being refused an answer and has not been found in Washington 

courts to be a basis for procedural unconscionability.” Id. at 1156. And in

Romney, this court determined that the plaintiffs had a meaningful choice in 

agreeing to an arbitration clause in an adhesion employment contract because 

they “could choose employment elsewhere.” 186 Wn. App. at 740.

Given the foregoing, the fact that Cornelius could not negotiate the terms 

of the Agreement is not determinative. But his contention that, if he did not agree 

to its terms, he would be unable to join the fraternity and not be allowed back to 

the house may suggest a lack of meaningful choice.

b. Unequal bargaining power 

Cornelius says a disparity exists in bargaining power between the parties. 

He made the same claim below, without explaining the dynamics leading to such 

a disparity. During the hearing, the trial court noted: 

So that, and coupled with the fact that you have a plaintiff who 

is 18/19 years old -- and I understand, obviously, that he was college 

bound and that he was a pre-med student, but if to sort of continue 

the examination as to the totality of the circumstances or the true 

context of how this all occurred, you know, even though I never 

rushed a fraternity, I’m well aware of what goes on during Rush, and 

I, again, acknowledge that not all fraternities are created equal and 

not all fraternities behave in the same way, but there’s clearly a 

disparity of power between the fraternity and the pledge.

You know, the fraternities, I think -- I believe hold the 

overwhelming advantage because they generally know incoming 

freshman are desiring a group setting, a social setting to which they 

can belong, whether it’s for just fitting in, assimilation purposes, 
No. 82264-1-I/13

13

whether it’s to have cheaper housing or access to housing, whether 

it’s because of peer pressure to have a good social life, there’s a 

clear, I think, disparity in the relationship between pledges and 

fraternities which I would argue is how these types of situations arise.

In its written order, the court similarly found a “clear disparity” in bargaining 

power.

The record does not appear to support this finding. It appears to be based

instead on the trial court’s personal experience.

6

 ER 605 prohibits a judge from 

inserting their “own personal experience into the decision-making process.” In re

Est. of Hayes, 185 Wn. App. 567, 599, 342 P.3d 1161 (2015). Cornelius 

contends that his claim below that no equality of bargaining power existed and 

his statement that he sought to join a fraternity to make friends render this finding 

proper. But these contentions alone do not establish a disparity in bargaining 

power. Further evidentiary development is needed to assess the disparity in 

bargaining power in this particular case. 

4. Meaningful choice

The core inquiry is whether Cornelius had a meaningful choice in entering 

the Agreement. We cannot make this determination based on the record before 

us. AKL requests that if we are not inclined to order arbitration, we remand for 

an evidentiary hearing.7 We agree an evidentiary hearing is necessary. See

 

6 AKL claims the trial court violated Section 2.2 of the Code of Judicial Conduct

but offers no argument on the issue. Thus, we do not address the claim. See Prostov v. 

Dep’t of Licensing, 186 Wn. App. 795, 823, 349 P.3d 874 (2015) (“A party abandons 

assignments of error unsupported by argument and will not be considered on appeal.”). 

7 AKL also requests that we order a limited deposition of Cornelius on remand. It 

is not readily apparent to us why discovery is necessary for either party. The trial court 

may in its discretion allow discovery if it deems it necessary. 

Cornelius contends AKL had prior opportunities to conduct discovery and failed 

to do so and says that such a failure precludes remand for an evidentiary hearing or 
No. 82264-1-I/14

14

Adler v. Fred Lind Manor, 153 Wn.2d 331, 350, 103 P.3d 773 (2004) (“When 

disputes exist as to the circumstances surrounding an agreement, we remand to 

the trial court to make additional findings.”). We remand this case to the trial 

court for an evidentiary hearing on the issue of procedural unconscionability.

B. Application of the Agreement to Cornelius’s claims 

Cornelius says the Agreement does not apply to all his claims because 

some of them, specifically those based on his alleged hazing, arose from events 

before he signed the Agreement. Emphasizing the FAA’s policy favoring 

arbitration, AKL responds that the Agreement is broad and encompasses 

Cornelius’s claims arising from events before its execution. We agree with AKL.

“[W]hen a court interprets such provisions in an agreement covered by the 

FAA, ‘due regard must be given to the federal policy favoring arbitration.’” 

Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62, 115 S. Ct. 

1212, 131 L. Ed. 2d 76 (1995) (quoting Volt, 489 U.S. at 475–76). Any doubt 

about the “‘scope of arbitrable issues’” should be resolved “‘in favor of 

arbitration.’” Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 445, 123 S. Ct. 

2402, 156 L. Ed. 2d 414 (2003) (quoting Mitsubishi Motors Corp. v. Soler 

Chrysler–Plymouth, Inc., 473 U.S. 614, 626, 105 S. Ct. 3346, 87 L. Ed. 2d 444 

(1985)). “Both state and federal courts must enforce [the FAA’s] body of 

substantive arbitrability law.” Zuver, 153 Wn.2d at 301. 

 

limited discovery. But he cites no law supporting his position. See Prostov, 186 Wn. 

App. at 823 (“The failure of an appellant to provide argument and citation of authority in 

support of an assignment of error precludes appellate consideration of an alleged 

error.”). 
No. 82264-1-I/15

15

The Agreement provides, “If you are unable to resolve a claim or dispute 

arising out of your membership or participation in any Fraternity of Alpha Kappa 

Lambda-related activity, under the terms of the Program the claim or dispute will 

be submitted to binding arbitration instead of through the courts.” The Plan 

defines “claim” as 

any legal or equitable claim, demand or controversy for any personal 

injury, equitable relief or property damage arising out of any tort,

statute (local, state or federal) or breach of contract involving the 

Fraternity. This includes but is not limited to any type of allegation of 

negligence, intentional acts, defamation, discrimination, contribution 

or indemnity.

(Emphasis added.) The Plan defines “dispute” as “a claim, demand or 

controversy to which this Plan applies, between persons bound by the Plan or by 

an agreement to resolve disputes under the Plan, or between a person bound by 

the Plan and a person or entity otherwise entitled to its benefits.” Cornelius 

brought negligence claims against AKL, based in part on AKL’s alleged hazing.

Cornelius does not dispute that the Agreement otherwise applies to his 

claims; the question is whether the law prohibits the retroactive application of the 

Agreement. Though Washington courts have not addressed this issue, other 

jurisdictions have consistently held that, absent language in an agreement to the 

contrary, the retroactive application of an arbitration agreement is permitted.

8

 

 

8 See Allbaugh v. Perma-Bound, No. C08-5713-JCC, 2009 WL 10676437, at *1, 

10 (W.D. Wash. Aug. 14, 2009) (applying an arbitration agreement retroactively under 

Washington law where the agreement stated that it applied to any claim “arising out of or 

relating to this Agreement, or the breach, termination, or invalidity thereof”); see GR 

14.1; In re Verisign, Inc., Derivative Litig., 531 F. Supp. 2d 1173, 1224 (N.D. Cal. 2007)

(retroactively applying an arbitration agreement that covered “not just services provided 

under the agreement, but also ‘any other services provided by KPMG,’” and rejecting 

plaintiffs’ contention that the agreement must contain explicit language authorizing 

retroactive application); Zink v. Merrill Lynch Pierce Fenner & Smith, Inc., 13 F.3d 330, 
No. 82264-1-I/16

16

Cornelius emphasizes that Washington courts interpret contracts

according to the “objective manifestation theory,” and contends that this theory

bars the retroactive application of the Agreement. The “objective manifestation 

theory of contracts” directs courts to “focus on the agreement’s objective 

manifestations to ascertain the parties’ intent.” Healy v. Seattle Rugby, LLC, 15 

Wn. App. 2d 539, 544, 476 P.3d 583 (2020) (quoting Martin v. Smith, 192 Wn. 

App. 527, 532, 368 P.3d 227 (2016)). “When considering the language of a 

written agreement, we ‘impute an intention corresponding to the reasonable 

meaning of the words used.’” Id. (quoting Hearst Commc’ns, Inc. v. Seattle 

Times Co., 154 Wn.2d 493, 503, 115 P.3d 262 (2005)). Cornelius says that 

because the Agreement does not explicitly permit retroactive application, such 

application is prohibited. But the Agreement similarly does not prohibit 

retroactive application. Moreover, any doubts about the scope of an arbitration 

clause are resolved in favor of arbitration. See Green Tree Fin. Corp., 539 U.S. 

at 445 (quoting Mitsubishi Motors Corp., 473 U.S. at 626). 

 

331–32 (10th Cir. 1993) (holding that an arbitration agreement applying to any 

controversy “arising out of your business or this agreement” was “clearly broad enough 

to cover the dispute at issue despite the fact that the dealings giving rise to the dispute 

occurred prior to the execution of the agreement.”); Smith/Enron Cogeneration Ltd. 

P’ship, Inc. v. Smith Cogeneration Int’l, Inc., 198 F.3d 88, 99 (2d Cir. 1999) (“As the 

arbitration clause here similarly does not contain any temporal limitation, the relevant 

inquiry is whether SCI’s claims ‘relat[e] to any obligation or claimed obligation under’ the 

1994 Agreement, not when they arose.” (alteration in original)); Kristian v. Comcast 

Corp., 446 F.3d 25, 33–34 (1st Cir. 2006) (rejecting an argument against retroactive 

application of an arbitration agreement because “the phrase ‘or the services provided’ 

covers claims or disputes that do not arise ‘out of this agreement’ and hence are not 

limited by the time frame of the agreements.”); Levin v. Alms & Assocs., Inc., 634 F.3d 

260, 267 (4th Cir. 2011) (“Although the arbitration clause does not specifically state that 

it applies to claims accruing before the 2007 Agreement, courts have generally applied 

broad ‘any dispute’ language retroactively, especially when combined with language that 

refers to all dealings between the parties.”). 
No. 82264-1-I/17

17

Cornelius also contends that interpreting the Agreement as retroactively 

applicable would render the Agreement substantively unconscionable. He says 

such retroactive application to the claims of an 18-year-old who was hazed would 

be “shocking to conscience [sic], monstrously harsh, and exceedingly calloused.” 

Burnett, 196 Wn.2d at 57 (“In determining if a contractual provision is one-sided 

or overly harsh, courts have considered whether the provision is shocking to the 

conscience, monstrously harsh, and exceedingly calloused.”). But he cites no 

cases supporting a determination of substantive unconscionability in this context. 

Given the cases permitting retroactive application of arbitration agreements, we

disagree with Cornelius.

We reverse and remand for an evidentiary hearing. 

WE CONCUR: