NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MATTHEW LEBOEUF, 

Plaintiff-Appellant, 

ROBERT HANEY, 

Appellant, 

 v. 

NVIDIA CORPORATION, 

Defendant-Appellee.

No. 19-17481 

D.C. No. 5:19-cv-02543-SVK 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Susan G. Van Keulen, Magistrate Judge, Presiding

Submitted January 12, 2021**

San Francisco, California

Before: WALLACE and M. SMITH, Circuit Judges, and RESTANI,***Judge.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Jane A. Restani, Judge for the United States Court of 

International Trade, sitting by designation.

FILED

JAN 14 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Appellants Matthew LeBoeuf and Robert Haney (Appellants) appeal the 

district court’s order granting Appellee NVIDIA Corporation’s (NVIDIA) motion 

to compel arbitration and dismissing the case without prejudice. Because the 

parties are familiar with the facts, we do not recount them here, except as 

necessary to provide context to our ruling. We have jurisdiction under 28 U.S.C. § 

1291. We review de novo the district court’s decision to compel arbitration. Chiron 

Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000). We 

AFFIRM.

Appellants allege they purchased graphics cards that suffered from 

performance issues from third-party manufacturers and retailers. Appellants also 

downloaded and installed NVIDIA’s software that is necessary to operate the 

graphics cards. Before downloading the software, NVIDIA required Appellants to 

consent to its License Agreement that contained an arbitration and class-action 

waiver provision. 

NVIDIA moved to compel arbitration of Appellants’ claims relating to the 

graphics cards, and the district court granted that motion based on the License 

Agreement. Appellants argue on appeal that the district court erred in granting the 

motion for several reasons.

First, Appellants contend the district court erred because their claims relate 

to hardware, not software, such that the parties did not enter into a valid arbitration 
3 

agreement with respect to their claims. This argument fails, however, because the 

undisputed facts show that Appellants entered into a valid arbitration agreement 

when they twice assented to NVIDIA’s License Agreement. Any dispute as to the 

scope of that agreement, and whether Appellants’ claims fall outside the 

agreement, must be determined by the arbitrator under the License Agreement’s 

delegation clause. See Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 

524, 530 (2019).

Second, Appellants contend the district court erred by enforcing the License 

Agreement’s delegation clause and holding that the arbitrator must determine 

issues related to arbitrability. This argument fails because the district court 

properly enforced the License Agreement’s choice-of-law provision that required 

application of Delaware law because Appellants failed to show that Delaware Law 

conflicts with a fundamental California public policy and that California has a 

materially greater interest than Delaware in evaluating the delegation clause. See 

Nedlloyd Lines B.V. v. Superior Court, 3 Cal. 4th 459, 466 (1992). In addition, 

under Delaware law, the broad arbitration clause and incorporation of the Judicial 

Mediation and Arbitration Services (JAMS) Rules clearly and unmistakably 

evidences the parties’ intention to delegate issues of arbitrability to the arbitrator.

See James & Jackson, LLC v. Willie Gary, LLC, 906 A.2d 76, 80 (Del. 2006); Li v. 
4 

Standard Fiber, LLC, No. 8191–VCN, 2013 WL 1286202, at *6 (Del. Ch. Mar. 28, 

2013) (unpublished).

Third, Appellants contend the delegation clause is procedurally and 

substantively unconscionable. This argument fails because Appellants were given 

the opportunity to review the License Agreement at two separate points when they 

downloaded and installed the NVIDIA software. In addition, Appellants were not 

presented with the arbitration agreement on a “take-it-or-leave-it” basis because 

NVIDIA provided them the opportunity to opt out. Despite this opportunity, 

Appellants chose to continue using the graphics cards and software without opting 

out of the arbitration agreement. See Ketler v. PFPA, LLC, 132 A.3d 746, 748 

(Del. 2016); Tulowitzki v. Atl. Richfield Co., 396 A.2d 956, 960 (Del. 1978); see 

also Mohamed v. Uber Techs., Inc., 848 F.3d 1201, 1210–11 (9th Cir. 2016).

Appellants also fail to demonstrate that the delegation clause “shocks the 

conscience” or is on terms “so extreme as to appear unconscionable according to 

the mores and business practices of the time and place.” See Chemours Co. v. 

DowDuPont Inc., No. CV 2019-0351-SG, 2020 WL 1527783, at *12 (Del. Ch. 

Mar. 30, 2020) (citations omitted) (unpublished). To the contrary, the Supreme 

Court requires enforcement of such clauses. See Henry Schein, 139 S. Ct. at 528.

AFFIRMED.