SYLVIA CARSON, Case No. 3:08-cv-247 v. Lendingtree Llc, a Delaware Corporation

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1056
SYLVIA CARSON, Case No. 3:08-cv-247,
Plaintiff – Appellant,
and
CONSTANCE SPINOZZI, Case No. 3:08cv229; ANGELA MITCHELL,
Case No. 3:08cv303; EUGENE MILLER, JR., Case No. 3:08cv2077;
MARVIN GARCIA, Case No. 3:08cv2078; AMY BERCAW, Case No.
3:08cv2079; RUSSELL WINSETT, Case No. 3:08cv2079; TY WOODS,
Case No. 08cv2079; GERALDINE BRADLEY, Case No. 3:08cv2080;
JOY PAXTON-COLLIS, Case No. 3:08cv2080; JAMES LARSON, Case
No. 3:08cv2080; MARK SWEARINGEN, Case No. 3:08cv2080; PAUL
SHAVER, Case No. 3:08cv2081; BRADLEY PLAINTIFFS, 08cv2080;
BERCAW PLAINTIFFS, 08cv2079,
Plaintiffs,
v.
LENDINGTREE LLC, a Delaware Corporation,
Defendant – Appellee,
and
NEWPORT LENDING CORPORATION; SOUTHERN CALIFORNIA MARKETING
CORPORATION; HOME LOAN CONSULTANTS INCORPORATED; CHAPMAN
CAPITAL INCORPORATED; SAGE CREDIT COMPANY; HOME LOAN CENTER
INCORPORATED, d/b/a LendingTree Loans, a California
Corporation; NEWPORT LENDING GROUP INCORPORATED,
Defendants.

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Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:08-md-01976-FDW)
Submitted: October 20, 2011 Decided: November 17, 2011
Before WILKINSON, GREGORY, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gary W. Jackson, Sam McGee, JACKSON & MCGEE, LLP, Charlotte,
North Carolina, for Appellant. Sascha Henry, SHEPPARD, MULLIN,
RICHTER & HAMPTON LLP, Los Angeles, California; Robert E.
Harrington, Jonathan C. Krisko, ROBINSON, BRADSHAW & HINSON,
P.A., Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Sylvia Carson appeals the district court’s order
compelling arbitration and its subsequent order confirming an
arbitration award. Carson argues on appeal that because the
arbitration provision was unconscionable, the district court
erred in compelling arbitration of the case. We affirm.
This court reviews de novo a district court’s
determination that a dispute is arbitrable. Wash. Square Sec.,
Inc. v. Aune, 385 F.3d 432, 435 (4th Cir. 2004). In conducting
its review this court must “first examine whether the parties
agreed to arbitrate the claims at issue.” United States ex rel.
Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 380 (4th
Cir. 2008); Sydnor v. Conseco Fin. Servicing Corp., 252 F.3d
302, 305 (4th Cir. 2001) (“While federal policy broadly favors
arbitration, the initial inquiry is whether the parties agreed
to arbitrate their dispute.”) (citation omitted). Here, Carson
affirmatively checked the box indicating that she agreed to the
terms of use, which included the arbitration provision.
Further, no one prevented her from perusing the arbitration
provision and she was at liberty to choose a different service
provider. We conclude that Carson agreed to arbitrate the
claims at issue.
Having established that Carson agreed to arbitrate her
claims, this court must next determine “whether the arbitration

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clauses are enforceable.” United States ex rel. Wilson,
525 F.3d at 381. Under limited circumstances, “equity may
require invalidation of an arbitration agreement that is
unconscionable.” Murray v. United Food & Commercial Workers,
289 F.3d 297, 302 (4th Cir. 2002). Carson bears the burden of
proof for this affirmative defense. Tillman v. Commercial
Credit Loans, Inc., 655 S.E.2d 362, 369 (N.C. 2008).
“An inquiry into unconscionability requires that a
court consider all the facts and circumstances of a particular
case, and if the provisions are then viewed as so one-sided that
the contracting party is denied any opportunity for a meaningful
choice, the contract should be found unconscionable. Id. at 370
(internal alterations and citations omitted). “A party
asserting that a contract is unconscionable must prove both
procedural and substantive unconscionability. Id. (citations
omitted).
We conclude that Carson has not met her burden to
establish unconscionability. She was able to peruse the
application from her home computer at her leisure, with no
external pressure. She visited the website on her own and
applied for LendingTree’s service for free. Prior to submitting
her application, she was expressly advised to print the policies
for her records. She affirmatively indicated that she had read,
understood, agreed to, and accepted the terms of the LendingTree

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agreement. Further, Carson has not shown that the arbitration
costs were prohibitively expensive, or that the arbitration
provision was unfairly one-sided.
On these facts, we conclude that the district court
did not err in granting LendingTree’s motion to compel
arbitration. Accordingly, we affirm the judgment of the
district court. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED

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