United States Court of Appeals

Fifth Circuit 

## FILED

April 10, 2003

Charles R. Fulbruge III Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

_______________



### m 02-60417 Summary Calendar

_______________



### H OUSEHOLD 

### B ANK



### ,

Plaintiff-Appellee,



### H&R B LOCK



### , I NC 

### .; H&R B LOCK 

### E ASTERN 

### T AX 

### S ERVICES



### , I NC 

### .; H&R B LOCK 

### T AX 

### S ERVICES



### , I NC 

### .; B LOCK 

### F INANCIAL 

### C ORPORATION



### ,

Intervenor PlaintiffsAppellees,

VERSUS



### P ATRICIA 

### A LLEN 

### ; ET AL



### .,

Defendants,



### L INA 

### C. B LACK 

### ; M ILDRED 

### B ROOKS 

### ; A NNIE 

### R. B ELL 

### ;
W ALLACE 

### B ROOKS 

### ; E VELYN 

### B ELL 

### ; ET AL



### .,

DefendantsIntervenor DefendantsAppellants.

_________________________

Appeals from the United States District Court for the Southern District of Mississippi



### m 4:00-CV-142-LN

_________________________2

Before H IGGINBOTHAM , S MITH , and

C LEMENT , Circuit Judges.

P ER C URIAM : *

Certain defendants appeal an order to compel arbitration of their c l aims against

Household Bank (“Household”) and several

H&R Block affiliat

es (“Bloc k ”). Reviewing

the orde r d e novo , Primerica Life Ins. Co. v. Brown

, 304 F.3d 469, 471 (5th Cir. 2002), and finding no error, we affirm.

Defendants opted out of a settlement class

a lleging various state and federal cla ims against Household (o r its predecessor) and

Block in connect io n with tax refund anticipation loans. Household then filed this petitio n, in which Block joined as intervenor,

for a declara t ory judgment and order to
enforce an arbitration

clause in the loan agreements between Household and

defendants

. 1 The court entered an order to compel arbitration, 9 U.S. C. § 4, rejecting defendants’ claims of unconscionability.

Defendants concede that the arbitrat ion

clauses cover their claims, but contend that the

clauses are void because of procedural unconscionability. 2 9 U.S.C. § 2 (preserving

common law grounds for “revocation o f any contract”). “Procedural unconscionability may

be proved by showing a lack o f knowledge,

lack of voluntariness, inconspicuous print, the

use of complex legalistic language, disparity in

s o phistication or bargaining power of the parties and/or a lack of opportuni ty to study

the contract and inquire about the contract
terms.” Russell v. Performance Toyota, Inc.

, 826 So. 2d 719, 725 (Miss. 2002) (quotati on marks omitted).

Yet, defendants offer mere assertions, not evidence, to satisfy this standard. They assert

that the arbitration clause is an adhesion contract. “Adhesi

on contracts are not automatically void. Instead, the party seeking

to avoid the contract generally must show it is

un co nscionable.” D illard

, 961 F.2d at 1154. They also assert that Block did not explain the clause to them, but this unremarkable fact

cannot support a claim of procedural unconscionability. F

le e twood Enters., Inc. v. Gaskamp , 280 F.3d 1069, 1077 (5th Cir. 2002).

The arbitration clause is written in plain English an d has a conspicuous capitalized heading and an entire capitalized paragraph acknowledging but waiving defendants’ right to

a trial. Moreover, just above the signature line

on the loan agreements is a boldface statement acknowledging that defendants specifically had

read the arbitration clause. In short, far from being unconscionable, the clause is a model of * Pursuant to 5 TH C IR

. R. 47. 5, the court has

determined that this opinion should not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR

. R. 47.5.4.

1 The arbitration clause states, in relevant part,
that “any claim or dispute (whether in contract, tort

or otherwis e) in a ny way relating to the Agreements or relating to the relationships of such parties

. . . shall be resolved upon the election of either party, by binding arbitration.” 2 Because defendants challenge onl y the arbitration c lause, not the entire loan agreement, the

district court properly adjudicated their challenge. Prima Paint Corp. v. Flood & Conklin Mfg. Co.

, 388 U.S. 395, 403-04 (1967); Dillar d v. Merrill Lynch, Pierce, Fenner & Smith

, 961 F.2d 1148, 1154 n.9 (5th Cir. 1992).3

fair draftsmanship, better even than clauses we have upheld against unconscionability charges in the past. See, e.g.

, id. at 1071 n.2.

AFFIRMED. 3

3 Defendants also contend that the arbitration

clause is void because it lacks mutuality and unlawfully limits punitive damages. We decline to

address the s e arguments, because defendants did

not ra ise them in the district court. S ee Little v. Liquid Air Corp.

, 37 F.3d 1069, 1071 n.1 (5th Cir. 1994) (en banc).