Household Bank, et al v. Allen, et al

United States Court of Appeals
Fifth Circuit
F I L E D
April 10, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-60417
Summary Calendar
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HOUSEHOLD BANK,
Plaintiff-Appellee,
H&R BLOCK, INC.; H&R BLOCK EASTERN TAX SERVICES, INC.;
H&R BLOCK TAX SERVICES, INC.; BLOCK FINANCIAL CORPORATION,
Intervenor Plaintiffs-
Appellees,
VERSUS
PATRICIA ALLEN; ET AL.,
Defendants,
LINA C. BLACK; MILDRED BROOKS; ANNIE R. BELL;
WALLACE BROOKS; EVELYN BELL; ET AL.,
Defendants-
Intervenor Defendants-
Appellants.
_________________________
Appeals from the United States District Court
for the Southern District of Mississippi
m 4:00-CV-142-LN
_________________________

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Before HIGGINBOTHAM, SMITH, and
CLEMENT, Circuit Judges.
PER CURIAM:*
Certain defendants appeal an order to com-
pel arbitration of their claims against
Household Bank (“Household”) and several
H&R Block affiliates (“Block”). Reviewing
the order de 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
alleging various state and federal claims
against Household (or its predecessor) and
Block in connection with tax refund
anticipation loans. Household then filed this
petition, in which Block joined as intervenor,
for a declaratory 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 arbitration
clauses cover their claims, but contend that the
clauses are void because of procedural uncon-
scionability.2 9 U.S.C. § 2 (preserving
common law grounds for “revocation of any
contract”). “Procedural unconscionability may
be proved by showing a lack of knowledge,
lack of voluntariness, inconspicuous print, the
use of complex legalistic language, disparity in
sophistication or bargaining power of the
parties and/or a lack of opportunity to study
the contract and inquire about the contract
terms.” Russell v. Performance Toyota, Inc.,
826 So. 2d 719, 725 (Miss. 2002) (quotation
marks omitted).
Yet, defendants offer mere assertions, not
evidence, to satisfy this standard. They assert
that the arbitration clause is an adhesion con-
tract. “Adhesion contracts are not
automatically void. Instead, the party seeking
to avoid the contract generally must show it is
unconscionable.” Dillard, 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 uncon-
scionability. Fleetwood Enters., Inc. v. Gas-
kamp, 280 F.3d 1069, 1077 (5th Cir. 2002).
The arbitration clause is written in plain
English and has a conspicuous capitalized
heading and an entire capitalized paragraph ac-
knowledging 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 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1 The arbitration clause states, in relevant part,
that “any claim or dispute (whether in contract, tort
or otherwise) in a ny way relating to the Agree-
ments or relating to the relationships of such
parties . . . shall be resolved upon the election of
either party, by binding arbitration.”
2 Because defendants challenge only the arbi-
tration clause, 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); Dillard v. Merrill
Lynch, Pierce, Fenner & Smith, 961 F.2d 1148,
1154 n.9 (5th Cir. 1992).

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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 un-
lawfully limits punitive damages. We decline to
address these arguments, because defendants did
not raise them in the district court. See Little v.
Liquid Air Corp., 37 F.3d 1069, 1071 n.1 (5th Cir.
1994) (en banc).

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