IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

HEW AD NOORZAI, 

Plaintiff, 

v. 

DABELLA EXTERIORS, LLC, 

Defendant. 

PAPAK, Magistrate Judge: 

3:15-CV-00045-PK 

FINDINGS AND 

RECOMMENDATION 

On January 9, 2015, plaintiff Hewad Noorzai filed an action for damages against defendant 

DaBella Exteriors, LLC, ("DaBella") pursuant to Title I of the Americans with Disabilities Act of 

1990 and Title I of the Ci vi! Rights Act of 1991. This court has jurisdiction over these 

proceedings pursuant to 28 U.S.C. §§ 1331, 1337 and 1343. 

Now before the cou1i is DaBella's motion (#6) to compel arbitration consistent with an 

arbitration agreement entered into by the paiiies at the staii ofNoorzai's employment with 

DaBella. I have considered the parties' motions, briefs, and the record. For the reasons set fotih 

below, DaBella's motion should be granted and Noorzai should be directed to seek redress through 

the agreed-upon arbitral forum. 

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FACTUAL BACKGROUND 

According to the undisputed facts, DaBella hired Noorzai as a canvasser on or about 

January 2, 2013. Def.'s Mot. to Compel Arb. 2. DaBella provides home improvement goods and 

services to residential customers in Oregon and Washington. Id. 

DaBella provided Noorzai with a then-current version of its Employee Handbook (the 

"Handbook") on his hiring date or shortly thereafter. Def's Mot. 2. The Handbook describes 

DaBella's general employment policies, procedures, and expectations. Def's Mot. 9. Section 2.1 

of the Handbook defines its scope and effect as follows: 

This Handbook is not an employment contract and is not intended to create 

contractual obligations of any kind. Employment with the Company is "at will." 

This means that either the employee or the Company may te1minate the 

employment relationship at any time, with or without cause or prior notice. 

Def. Ex. A at 10. Section 8.4 of the Handbook, titled "Arbitration of Disputes," sets outDaBella's 

policy for resolving grievances that arise during the employee-employer relationship. Section 8.4 

provides as follows: 

DaBella believes that the great majority of workplace disputes can be resolved 

through the info1mal Open Door process described elsewhere in this Handbook. 

However, the Company also recognizes that from time to time there may arise an 

issue between an employee and the Company that cannot be resolved 

cooperatively. In such a situation, DaBella and the employee agree to choose 

arbitration, rather than litigation, to address the unresolved grievance. 

The Company policy to arbitrate disputes is grounded in our belief that this 

resolution process may be more cost-effective and expedient for both parties than 

litigation. By agreeing to arbitrate a dispute you may have with DaBella, or that the 

Company may have with you, both parties are giving up any constitutional right to 

have a dispute decided in a court of law before a jmy. 

This agreement to arbitrate includes any and all disputes, claims or 

controversies arising under or relating to (i) the relationships resulting from 

your employment with the Company; (ii) matters arising from your 

employment at DaBella, including, but not limited to, termination, claims of 

race, age, gender or disability discrimination, sexual harassment or civil 

rights violations; or (iii) the validity of any provision of this Handbook, that is 

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not resolved to the mutual satisfaction of both the Company and the 

employee. 

The arbitration shall be initiated and conducted in accordance with and 

pursuant to the then prevailing rules and procedures of the American 

Arbitration Association, to be held and arbitrated before a single arbitrator in 

the county you resided in during your term of employment with the Company. 

The findings of the arbitrator shall be final and binding on both patties, and may 

include an award of costs and reasonable legal fees. 

Either DaBella or the employee may bring an action in any court having 

jurisdiction to either compel arbitration under this Policy, to obtain 

preliminary relief in support of a claim to be decided by arbitration, or to 

enter or enforce an arbitration award. 

Def. Ex. A at 50 (emphasis added). The last page of the Handbook contains an 

"Acknowledgment and Receipt" form (the "Acknowledgment") that all new employees must sign, 

date, and return to DaBella's Human Resources Department as an express condition of 

employment. Id. The Acknowledgment references Section 8.4 as governing disputes between 

DaBella and its employees. It states in relevant patt as follows: 

In the event of a dispute arising out of any aspect of my employment relationship 

with the Company (including, but not limited to, any claims under t01t or contract 

theories, whether based on common law or otherwise, and all claims or those 

arising under any federal, state, or local laws governing terms or conditions of 

employment), the Company and I will both exercise our best efforts toward a 

resolution by mutual agreement. 

However, in the event that such agreement cannot be reached, in accordance 

with Company policy, and as condition of employment, I agree that the 

dispute shall be settled using the arbitration procedure outlined in Section 8.4 

of the Handbook. 

By signing below, I agree to the foregoing terms and conditions of my employment 

with DaBella, and acknowledge the Company's expectation that I conduct myself 

in accordance with the policies and procedures set forth in the Handbook. 

Def. Ex. A at 51 (emphasis added). Noorzai executed the Acknowledgment on February 22, 

2013. Defs Mot. 4. On April 15, 2014, Noorzai voluntarily resigned his employment with 

DaBella. Id. Noorzai initiated this lawsuit on January 9, 2015. Id. 

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On or about February 17, 2015, DaBella's general counsel contacted Noorzai's counsel via 

e-mail to advise him of the existence of the arbitration agreement. Defs Mot. 4. After not 

receiving a response, DaBella's counsel sent a follow-up letter to Noorzai's counsel on March 9, 

2015, accompanied by additional copies of the Acknowledgment and the relevant portions of the 

Handbook. Defs Mot. 5. Thereafter, Noorzai's counsel advised DaBella's general counsel that 

he did not believe there was an enforceable agreement to arbitrate and refused to voluntarily 

dismiss the Complaint. Id DaBella then filed the instant motion to compel arbitration. Id. 

LEGAL STANDARD 

The parties disagree as to whether the arbitration agreement is governed by state or federal 

law. As the Ninth Circuit explained in Johnson v. Gruma Corp., 614 F.3d 1062 (9th Cir. 2010): 

The F[ederal] A[rbitration] A[ ct], while it does not itself create independent federal 

jurisdiction, creates a body of federal substantive law establishing and regulating 

arbitration agreements that come within the F AA's purview. When an agreement 

falls within the purview of the FAA, there is a strong default presumption that the 

FAA, not state law, supplies the rules for arbitration. To overcome that 

presumption, parties to an arbitration agreement must evidence a "clear intent" to 

incorporate state law rules for arbitration. 

Johnson, 614 F.3d at 1066 (citations, internal quotation marks, and internal modifications 

omitted). 

The FAA generally governs arbitration provisions of employment contracts. Circuit City 

Stores, Inc. v. Adams, 532 U.S. 105, 114 (2001). Where the FAA governs, "state law may be 

applied ifthat law arose to govern issues concerning the validity, revocability, and enforceability 

of contracts generally," but courts cannot "invalidate arbitration agreements under state laws 

applicable only to arbitration provisions." Doctor's Assocs., Inc. v. Casaroflo, 517 U.S. 681, 

686-87 (1996). 

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State law controls where the FAA does not apply. See Howard Fields & Assocs. v. Grand 

Wai/ea Co., 848 F.Supp. 890 (D. Hawaii 1993). Oregon state law requires that employers 

provide written arbitration agreement to its employees no less than 72 hours prior to his first day of 

work. ORS 36.620(5)(a). 

ANALYSIS 

Defendant moves to compel arbitration on the grounds that the parties entered into a valid 

arbitration agreement when Noorzai returned the signed Acknowledgment fonn and accepted 

employment from DaBella. Noorzai counters that: (!)there was no contract; (2) he did not 

knowingly waive his right to a judicial forum; (3) the agreement is substantively and procedurally 

unconscionable. 

I. Existence of a Contract to Arbitrate 

Noorzai argues that the FAA does not apply and neither the Handbook nor 

Acknowledgment are valid contracts because of!anguage in Section 2.1 of the Handbook that 

disclaims any binding effect. Plaintiff responds that Section 2.1 only clarifies the duration and "at 

will" nature ofNoorzai's employment and does not implicate the arbitration policy in Section 8.4. 

Additionally, DaBella argues that the Acknowledgment constitutes a separate contractual 

agreement that only incorporates the arbitration policy from Section 8.4 of the Handbook. 

A. The Employee Handbook 

Noorzai asserts that language in Section 2.1 of the Handbook precludes its binding effect. 

The relevant provision reads: 

This Handbook is not an employment contract and is not intended to create 

contractual obligations of any kind. Employment with the Company is "at will." 

This means that either the employee or the Company may terminate the 

employment relationship at any time, with or without cause or prior notice. 

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Def. Ex. A at 10 (emphasis added). DaBella would construe this provision to apply only to 

Section 2.1 of the Handbook. However, the text of this provision plainly applies to the entirety of 

"[t]his handbook" and disclaims the creation of contractual obligations "of any kind." Def. Ex. A 

at 10 (emphasis added). An employee could not read this section and reasonably believe the 

Handbook created a contractual relationship between herself and DaBella. Under Oregon law, an 

unambiguous disclaimer of contractual obligations is sufficient to make an employee handbook 

nonbinding. }1fobley v. lvfanheim Servs. Corp., 133 Or. App. 89, 93 (1995). Accordingly, the 

Handbook itself does not constitute a contract binding the parties to the arbitration policy found in 

Section 8.4. 

B. The Acknowledgment and Receipt Form 

DaBella argues that, even ifthe Handbook is not binding, the signed Acknowledgment 

fmm constitutes a contract. A contract is formed when there is an offer made, an acceptance of 

that offer, and an exchange of consideration. See Homestyle Direct, LLC v. DHS, 354 Or. 253, 262 

(2013). Consideration is defined as "some right, interest, profit or benefit or some forbearance, 

detriment, loss or responsibility given, suffered or undertaken by the other." Homestyle Direct, 

LLC v. Dep't of Human Servs., 354 Or. 253, 262 (2013), citing Shelley v. Portland Tug & Barge 

Co., 158 Or. 377, 387 (1938). 

Here, the Acknowledgment states as follows: 

In the event of a dispute arising out of any aspect of my employment relationship 

with the Company (including, but not limited to, any claims under tort or contract 

theories, whether based on common law or otherwise, and all claims or those 

arising under any federal, state, or local laws governing terms or conditions of 

employment), the Company and I will both exercise our best efforts toward a 

resolution by mutual agreement. However, in the event that such agreement cannot 

be reached, in accordance with Company policy, and as condition of employment, I 

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agree that the dispute shall be settled using the arbitration procedure outlined in 

Section 8.4 of the Handbook. 

By signing below, I agree to the foregoing terms and conditions of my employment 

with DaBella, and acknowledge the Company's expectation that I conduct myself 

in accordance with the policies and procedures set forth in the Handbook. 

Def. Ex. A at 51. This language makes an express offer of continued employment contingent upon 

assent to the arbitration policy in Section 8.4. The record shows that Noorzai signed the 

Acknowledgment and returned it to DaBella. Def. Mot. at 4. It is a general rnle of contract law 

that a signature is sufficient to signify assent when it is intentionally placed on a contract. Pio v. 

John B. Gilliland Const., 276 Or. 975, 980 (1976). 

The Acknowledgment is supported by consideration because it encompasses claims 

brought by either Noorzai or DaBella. Reciprocal forbearance of the right to a judicial fornm is 

valid consideration under Oregon law. lvfelton v. Phillip }vforris Inc., 71 F. App'x 701, 703 (9th 

Cir. 2003). Additionally, under Ore~on law, a promise of continued employment for an "at will" 

employee is valid consideration when the contract is expressly or impliedly made a condition of 

employment. Yartzoff v. Democrat-Herald Pub. Co., 281 Or. 651, 655 (1978); lvfcCombs v. 

lvfcClelland, 223 Or. 475, 483 (1960). Therefore, the Acknowledgment has all the necessary 

components of a contract. 

II. Knowing Waiver of Right to Judicial Forum 

Noorzai argues that he cannot be bound by the signed Acknowledgment because he never 

knowingly waived his right to a judicial forum. The Ninth Circuit has held that "a knowing 

agreement to arbitrate disputes, and waive a judicial dete1mination, is required under federal civil 

rights statutes and parallel state statutes." Lindgren v. Public Storage, 290 Fed. Appx. 971, 972 

(9th Cir. 2008), citing Nelson v. Cyprus Bagdad Copper Corp., 119 F.3d 756, 761 (9th Cir. 1997). 

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The court explained: 

An employee has not knowingly agreed to arbitrate when the foims he signs fail to 

notify him that an employee handbook contains an arbitration agreement, or that his 

signature on the forms requires him to smTender his statutory right to a judicial 

forum for his civil rights claims. Even though an employee acknowledges receipt of 

an employee handbook and agrees to read and understand the contents of it, he has 

not knowingly waived his right to a judicial determination. 

Id Noorzai contends that the Acknowledgment did not info1m him that he was waiving his right 

to a judicial forum. Generally, a valid arbitration agreement found in an employee handbook 

"requires little more than an acknowledgment which includes language that refers to binding 

arbitration and notifies the employee that he or she is precluded from bringing a lawsuit for 

employment claims." Twilleager v. RDO Vermeer, LLC, WL 1637469, (D. Or. 2011). 

Here, the Acknowledgment suffers from a deficiency similar to the valid acknowledgment 

in Twilleager and the rejected acknowledgment in Kummetz because it incorporates arbitration 

procedures from an employee handbook that DaBella also expressly denies constitutes a contract. 

Compare Def. Ex. A at 10 ("This Handbook is not an employment contract and is not intended to 

create contractual obligations of any kind.") with Twilleager, WL 1637469 at 6 ("Fmihermore, I 

acknowledge that this handbook is neither a contract of employment nor a legal document[.]") and 

Kummetz v. Tech ]o,fold, 152 F.3d 1153, ("I also understand and agree that this Booklet in no way 

constitutes an employment contract and that I remain an at-will employee."). However, similar to 

the enforceable acknowledgement in Twilleager, and unlike the ineffective agreement in 

Kummetz, the Acknowledgment here contains a clause that attempts to reiterate its binding effect. 

Compare Def. Ex. A at 51 ("in accordance with Company policy, and as a condition of 

employment, I agree that [disputes] shall be settled using the arbitration procedure outlined in 

Section 8.4 of this handbook") with Twilleager, WL 1637469 at 6 ("'ce1iain employment-related 

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disputes' [will] be resolved by 'mandatory arbitration,' and ... 'the parties shall be precluded from 

bringing or raising in court or another forum any dispute that was or could have been brought or 

raised under the procedures set foiih in this Agreement.'"). Here, DaBella's Acknowledgment 

does inform employees that their claims are subject to arbitration outside of a judicial forum. The 

Acknowledgement additionally incorporates language expressly confinning waiver of any right to 

litigate from Section 8.4 itself. 1 Therefore, Noorzai was given adequate notice that he was 

assenting to arbitration. 

Plaintiff also contends that the agreement is deficient because it does not specifically 

mention civil rights claims. On the contrary, however, Section 8.4 of the Handbook states: 

This agreement to arbitrate includes any and all disputes, claims or 

controversies arising under or relating to (i) the relationships resulting from your 

employment with [DaBella ]; (ii) matters arising from your employment at DaBella, 

including, but not limited to, termination, claims of race, age, gender or disability 

discrimination, sexual harassment or civil rights violations . .. 

Def. Ex. A at 50 (emphasis added). This language from Section 8.4 is incorporated by reference 

into the Acknowledgment. "It is well established that when a written instrument refers in specific 

te1ms to another writing, the other writing is part of the contract." Northwestern Pac. lnden1. Co. 

v. Junction City Water Control Dist., 295 Ore. 553, 558 (1983), citing Cerino v. Oregon 

Physicians' Service, 202 Ore. 474 (1954). A person who has voluntarily signed a document is 

presumed to be familiar with its contents. Pokorny v. Williams, 199 Or. 17, 33, (1953). 

1 "By agreeing to a.rbitrate a dispute you may have with DaBella, or that the Company may have with you, both 

patiies are giving up any constitutional right to have a dispute decided in a court oflaw before ajmy." Def. Ex. A at 50. 

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III. Substantive and Procedural Unconscionability 

Noorzai argues that the arbitration agreement is unenforceable because it is 

unconscionable. The FAA provides that the enforceability of an arb.itration clause can be 

challenged "upon such grounds as exist at law or in equity for the revocation of any contract." 9 

U.S.C. §2. Accordingly, even ifNoorzai is conect that the FAA governs the arbitration 

agreement, this court must look to Oregon law to resolve the question of unconscionability. 

lvfotsinger v. Lithia Rose-FT, Inc., 211 Or.App 610, 613 (2007), citing Vasquez-Lopez v. 

Beneficial Oregon, Inc., 210 Or.App. 533, 560, (2007). Unconscionability may be procedural or 

substantive. Bagley v. lvft. Bachelor, Inc., 356 Or. 543, 555 (2014). Unlike some other 

jurisdictions, Oregon law does not require both procedural and substantive unconscionability; 

however, "[t]he substantive fairness of the challenged terms is always an essential issue." 

Vasquez-Lopez, 210 Or.App. at 567 (quoting Carey v. Lincoln Loan Co., 203 Or.App. 422, 423 

(2005)). 

A. Substantive Unconscionability 

Noorzai argues that the arbitration agreement is substantively unconscionable because: 

(1) DaBella retained the right to unilaterally amend, supersede, or eliminate any part of the 

Handbook; (2) DaBella failed to adequately inform Noorzai of its legal consequences; (3) DaBella 

conditioned his continued employment on its acceptance. 

Substantive unconscionability generally refers to the terms of the contract, rather than the 

circumstances of its fonnation, and focuses on whether the terms are in conflict with the public 

interest or public policy. Bagley, 356 Or. at 556. "An arbitration agreement is unenforceable 

under the FAA if it denies a litigant the oppo11unity to vindicate his or her rights in the arbitral 

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forum." Vasquez-Lopez, 210 Or.App. at 573, citing Green Tree Financial Cmp.-Ala. v. 

Randolph, 531 U.S. 79, 90 (2000). However, Oregon comis are very reluctant to disturb 

agreements on the basis of substantive unconscionability. Under Oregon law, like federal law, 

courts resolve disputes in favor of arbitration "unless it may be said with positive assurance that 

the arbitration clause is not susceptible of an interpretation that covers the asse1ted dispute." 

Livingston v. 1\!fetropolitan Pediatrics, LLC, 234 Or.App 137, 152 (2010) (internal quotation 

marks omitted). 

Here, I find that there is such an interpretation. First, Noorzai asserts that language in the 

Acknowledgment grants DaBella the unilateral right to supersede, modify, or eliminate any of its 

te1ms, presumably including the Section 8.4 arbitration policy. The relevant part of the 

Acknowledgment states: "I understand that, except for the 'at will' nature of my employment, any 

and all Company policies and procedures described herein may be superseded, modified, or 

eliminated from time to time. Any such changes will be communicated to employees through 

official written notices." Def. Ex. A at 51. DaBella's reservation of the right to modify the 

"policies and procedures described herein" refers to the general policies and procedures found in 

the Handbook, which both parties concede is not a contract. As discussed above, the 

Acknowledgment is a valid contract supported by consideration. Accordingly, while DaBella is 

free to change the policies in its Handbook, the Acknowledgment remains controlling with respect 

to arbitration. Therefore, the Acknowledgment's tenns-which incorporate the Section 8.4 

arbitration agreement as it existed at the time-bind both parties, changes to the Handbook 

notwithstanding. 

Additionally, under Oregon law, courts look to the effect of a one-sided clause in an 

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arbitration agreement and not its hypothetical application. i\Iotsinger v. Lithia Rose-FT, Inc., 211 

Or. App. 610, 623 (2007) (emphasis in original). Here, there is no evidence in the record to 

suggest that DaBella ever exercised this provision and attempted to modify the arbitration 

agreement. 

Next, Noorzai argues that the Acknowledgment is substantively unconscionable because 

he was inadequately informed of its legal consequences. This argument fails for the same 

reasons, explained above, that I find he knowingly waived his right to a judicial forum. 

Lastly, Noorzai contends that the Acknowledgment is substantively unconscionable 

because acceptance was made a condition of his employment. This argument is not persuasive 

because, as both pmiies agree, Noorzai was at all times an "at will" employee. Therefore, he had 

no reasonable expectation of, nor contractual right to, indefinite ongoing employment. 

Furthermore, as defendants note in their reply brief, Noorzai had the option to seek employment 

from any number of businesses that do not require arbitration agreements as a condition of 

employment. Def. Reply Br. at 6. 

B. Procedural Unconscionability 

Procedural unconscionability focuses on two factors: oppression and surprise. Bagley, 356 

Or. at 555. "Oppression arises from an inequality of bargaining power which results in no real 

negotiation and an absence of meaningful choice. Surprise involves the extent to which the 

supposedly agreed-upon terms of the bargain are hidden in a prolix printed form drafted by the 

party seeking to enforce the terms." Vasquez-Lopez v. Beneficial Oregon, Inc., 210 Or.App. at 

566 (internal quotation marks omitted) (quoting ACORN v. Household Intern., Inc., 211 F. Supp. 

2d 1160, 1168 (N.D. Cal. 2002)). 

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1. Oppression Factor 

Noorzai argues that the arbitration agreement is oppressive and therefore procedurally 

unconscionable because: (1) it is a contract of adhesion; (2) it was a mandatory condition of his 

continued employment; (3) its te1ms allowed DaBella to unilaterally modify, supersede, or 

eliminate any part of the Handbook. Pl. Br. at 7. 

First, Noorzai argues that the entire agreement to arbitrate is void because it is a contract of 

adhesion. A contract of adhesion is "an agreement between two pmiies of unequal bargaining 

power, offered to the weaker party on a 'take-it-or-leave-it' basis." Sprague v. Quality Restaurants 

Nw., Inc., 213 Or.App. 521, 526 (2007), citing Reeves v. Chem Industrial Co. 262 Or. 95, 101 

(1972). Contracts of adhesion can be deemed procedurally unconscionable when they contain 

unfair or umeasonable terms. See Sprague, 213 Or.App. at 526 (finding contract of adhesion 

evidence of procedural unconscionability). 

Typically, oppression can be evidenced by a take-it-or~leave it bargaining stance or the fact 

that a contract involves a consumer transaction rather than a commercial bargain, accompanied by 

disparate bargaining power. Bagley, 356 Or. at 555. Oregon cou1is have held, however, that the 

adhesive nature of a contract alone is insufficient to render an agreement procedurally 

unconscionable. Chalkv. T-lvfobile USA, Inc., 560 F.3d 1087, 1094 (9th Cir. 2009). Here, there 

is nothing in the record to suggest that the adhesive nature of the contract is an unconscionable 

deviation from the n01mal course of business. Rather, "the agreement was no more 

unconscionable than the typical employment, consumer, or service contracts that are a common 

feature of contemporary commercial life and that Oregonians sign (and Oregon courts enforce) as 

a matter of course." Sprague v. Quality Restaurants Northwest, Inc., 213 Or.App. 521, 526 

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Case 3:15-cv-00045-PK Document 14 Filed 07/24/15 Page 13 of 16
(2007). 

Noorzai also contends that the agreement is oppressive because his continued employment 

was conditioned upon its acceptance. This is insufficient proof of "oppression", however, for the 

same reasons I find it does not make the agreement substantively unconscionable. 

2. Surprise Factor 

Noorzai next argues that the Acknowledgment is procedurally unconscionable because of 

the surprise factor for several reasons: (1) its title does not refer to the arbitration agreement; (2) it 

fails to draw the reader's attention to the arbitration language; (3) it merely references, but does not 

include, the actual language of the arbitration policy. Pl. Br. at 7. Surprise is generally 

evidenced by terms that are hidden or obscure. Bagley, 356 Or. at 555. 

Noorzai first contends that the title and body of the Acknowledgment unfairly obscure the 

tenns of the arbitration agreement. The Oregon Court of Appeals has held that an arbitration 

agreement was not procedurally unconscionable where: (1) the arbitration clause was not hidden; 

(2) plaintiff was given time to review the documents before agreeing to their terms. lvfotsinger, 

211 Or.App at 513. Here, the arbitration clause was not hidden because "if the acknowledgment 

specifically directs the employee's attention to the arbitration clause in the handbook, then the 

arbitration agreement can be given effect." Kummetz v. Tech lvfold, Inc., F.3d 1153 at 1155-56. 

Noorzai was also given time to read the documents and ask questions prior to signing. Def. Reply 

B1:. at 9. 

Noorzai relies heavily on this court's decision in Twill eager to suppo1i his position. 

Twill eager is too factually distinct from the instant case, however, for its holding to be controlling. 

First, the comi in Twill eager determined that the Acknowledgement's title was misleading because 

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it did not mention the arbitration agreement and included a subtitle directing attention to its email 

and voicemail usage policy. Twilleager, WL 1637469, at 7. In contrast, while here the 

Acknowledgment's title is perhaps unsatisfactorily vague, it is not similarly misleading because it 

does not draw attention to a part of the Acknowledgment that is not the arbitration agreement. 

Second, the coUlt in Twilleager took issue with the misleading typeface in the Acknowledgement 

because it highlighted only the title of the document and the subtitle referring to part of the 

Acknowledgment irrelevant to the arbitration agreement. Id. Here, the typeface in the 

Acknowledgment is uniform, but it is not misleading because differentiated typeface is not used to 

distract or mislead the reader. Given Noorzai's ample opportunity to read the document ask 

questions, the tenns of the Acknowledgment were not in any meaningfol way "hidden." The 

preceding analysis farther demonstrates significant material differences between the DaBella's 

Acknowledgment fotm and the acknowledgment challenged in Twilleager. See supra Section II. 

Accordingly, Noorzai has not carried his burden of proving this Acknowledgment's format is an 

example of unconscionable "slllprise." 

Noorzai's claim that Acknowledgement's incorporation, rather than recitation, of Section 

8.4 establishes procedurally unconscionability also fails because it is out of step with Oregon case 

law. See supra Section II. Here, Section 8.4 is expressly incorporated in the Acknowledgment. 

Additionally, as defendants note in their reply brief, Section 8.4 is the only section of the 

Handbook that is incorporated by reference in the Acknowledgment. Def. Reply Br. at 3. 

CONCLUSION 

For the reasons set forth above, DaBella's motion (#6) to compel arbitration should be 

granted. A final judgment should be prepared. 

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,. 

 

SCHEDULING ORDER 

The Findings and Recommendation will be referred to a district judge. Objections, if any, 

are due fomieen (14) days from service of the Findings and Recommendation. If no objections 

are filed, then the Findings and Recommendation will go under advisement on that date. 

If objections are filed, then a response is due fomieen (14) days after being served with a 

copy of the objections. When the response is due or filed, whichever date is earlier, the Findings 

and Recommendation will go under advisement. 

Dated this 24th day of July, 2015. 

Honorable Paul Papak 

United States Magistrate Judge 

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