NOT RECOMMENDED FOR PUBLICATION
`File Name: 22a0195n.06
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`No. 21-3570
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`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
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`Plaintiff-Appellant,
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`LORRAINE ADELL, individually and on
`behalf of all others similarly situated,
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`v.
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`CELLCO PARTNERSHIP, doing business
`as Verizon Wireless,
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`Defendant-Appellee.
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`ON APPEAL FROM THE UNITED STATES
`DISTRICT COURT FOR THE NORTHERN
`DISTRICT OF OHIO
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`
`OPINION
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`BEFORE: GILMAN, STRANCH, and NALBANDIAN, Circuit Judges.
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`JANE B. STRANCH, Circuit Judge. Lorraine Adell challenges the district court’s
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`decision compelling her to arbitrate her claims against Cellco Partnership based on an arbitration
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`clause in her Customer Agreement with Verizon Wireless. Adell asserts that the waiver of her
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`Article III right to bring her state-law claims through diversity jurisdiction in federal court was not
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`voluntary and that the Class Action Fairness Act of 2005 overrides the Federal Arbitration Act
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`with respect to the arbitration of class action claims. The district court rejected these arguments
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`in granting Verizon’s motion to compel arbitration, granting Verizon’s request to confirm the
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`arbitration award, and rejecting Adell’s motion to vacate the arbitration reward. For the reasons
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`that follow, we AFFIRM the district court’s judgments.
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`No. 21-3570, Adell v. Cellco Partnership
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`I. BACKGROUND
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`Adell became a Verizon Wireless customer in September 2015. When signing up for
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`Verizon service, Adell accepted Verizon’s Customer Agreement, which included a statement
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`agreeing that both parties would resolve disputes exclusively through arbitration or in small-claims
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`court. In March 2018, she sued Verizon in the U.S. District Court for the Northern District of
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`Ohio. (Adell alleged that, in October 2005, Verizon introduced a monthly administrative charge
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`on wireless customers for each line. This charge was, at some point, as much as $1.23 per line
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`monthly. In 2010, the charge was $0.92 per line and generated approximately $84 million in
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`revenue per month. According to Adell, Verizon first noted the administrative charge in its
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`November 2006 Customer Agreement, explaining that the company “may also include Federal
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`Universal Service, Regulatory and Administrative Charges, and may also include other charges
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`related to our governmental costs.” (R. 7-1, Verizon Customer Agreement, PageID 43) Adell
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`alleged that these charges must be put toward governmental costs. However, “Verizon has used
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`the Administrative Charge as a discretionary pass-through of Verizon’s general costs,” such as the
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`cost of building cell sites. (R. 1, Complaint, PageID 3) The complaint asserted that using the costs
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`in this way allows Verizon to increase the monthly rate for service without disclosure to its
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`customers, breaching Verizon’s contracts with Ohio and nationwide customers.
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`Adell sought to challenge the charge both individually and through a class action on behalf
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`of two classes. The first class would include “all Verizon wireless telephone customers.” Adell
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`brought a declaratory judgment on behalf of this class, seeking a declaration that the arbitration
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`clause in the Customer Agreement was, as applied to state-law claims against Verizon for breach
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`of contract under the Class Action Fairness Act of 2005 (CAFA), not voluntary or enforceable.
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`This class also sought a declaration that the agreements to arbitrate state-law claims that CAFA
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`allows plaintiffs to bring in federal courts through diversity jurisdiction “are not enforceable
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`No. 21-3570, Adell v. Cellco Partnership
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`because of the ‘inherent conflict’ between arbitration under the FAA and CAFA’s express
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`purposes as stated by Congress.” The second class included “all Verizon wireless telephone
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`customers whose wireless phones have an Ohio area code.” Adell sought damages for breach of
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`contract based on Verizon’s imposition of the administrative charge.
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`In June 2018, Adell moved for partial summary judgment on her individual claims for
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`declaratory judgment, including her arguments that the waiver of her right to bring a case in an
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`Article III court against Verizon was not voluntary, conflicted with CAFA, and was therefore not
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`enforceable. Later in June, Verizon moved the district court to compel Adell’s state-law claims to
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`arbitration and to stay the case until the end of the arbitration process. In March 2019, the district
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`court granted Verizon’s motion to compel arbitration, denied Adell’s motion for partial summary
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`judgment, and stayed the case pending the completion of arbitration.
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`Adell and Verizon arbitrated their dispute through the American Arbitration Association.
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`They agreed to a summary disposition based on pre-hearing motions on Adell’s breach of contract
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`claim. On August 22, 2020, the arbitrator concluded, based on Ohio law, that “the Agreement in
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`its entirety does not appear to require that Administrative Charges be related to government costs
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`and cannot be said to be ambiguous as it relates to administrative charges.” Therefore, Adell’s
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`claim for breach based on Verizon’s imposition of administrative charges unrelated to government
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`costs failed. The arbitrator denied Adell’s claims for breach of contract, specific performance, and
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`partial summary disposition, and granted Verizon’s motion for summary adjudication. The
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`arbitrator ordered the parties to pay $1,900.00 in administrative fees and expenses to the American
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`Arbitration Association and $2,500.00 as compensation to the arbitrator.
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`After the district court confirmed the arbitration award and denied Adell’s motion to vacate
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`that award, Adell brought this appeal. She challenges both the district court’s March 2019 opinion
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`No. 21-3570, Adell v. Cellco Partnership
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`and order compelling arbitration and the opinion and order denying her motion to vacate the
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`arbitration award.
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`II. ANALYSIS
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`The Arbitration Agreement Adell signed as part of her Customer Agreement with Verizon
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`states, in pertinent part:
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`YOU AND VERIZON WIRELESS BOTH AGREE TO RESOLVE
`DISPUTES ONLY BY ARBITRATION OR IN SMALL CLAIMS COURT.
`YOU UNDERSTAND THAT BY THIS AGREEMENT YOU ARE GIVING
`UP THE RIGHT TO BRING A CLAIM IN COURT OR IN FRONT OF A
`JURY. . . . WE ALSO BOTH AGREE THAT:
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`(1) THE FEDERAL ARBITRATION ACT APPLIES TO THIS AGREEMENT.
`EXCEPT FOR SMALL CLAIMS COURT CASES THAT QUALIFY, ANY
`DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THIS
`AGREEMENT OR FROM ANY EQUIPMENT, PRODUCTS AND SERVICES
`YOU RECEIVE FROM US (OR FROM ANY ADVERTISING FOR ANY SUCH
`PRODUCTS OR SERVICES), INCLUDING ANY DISPUTES YOU HAVE
`WITH OUR EMPLOYEES OR AGENTS, WILL BE RESOLVED BY ONE OR
`MORE NEUTRAL ARBITRATORS BEFORE
`THE AMERICAN
`ARBITRATION ASSOCIATION (“AAA”) OR BETTER BUSINESS BUREAU
`(“BBB”). YOU CAN ALSO BRING ANY ISSUES YOU MAY HAVE TO THE
`ATTENTION OF FEDERAL, STATE OR LOCAL GOVERNMENT
`AGENCIES, AND IF THE LAW ALLOWS, THEY CAN SEEK RELIEF
`AGAINST US FOR YOU. . . .
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`(3) THIS AGREEMENT DOESN’T ALLOW CLASS OR COLLECTIVE
`ARBITRATIONS EVEN IF THE AAA OR BBB PROCEDURES OR RULES
`WOULD. NOTWITHSTANDING ANY OTHER PROVISION OF THIS
`AGREEMENT, THE ARBITRATOR MAY AWARD MONEY OR
`INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY
`SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO
`PROVIDE RELIEF WARRANTED BY THAT PARTY'S INDIVIDUAL
`CLAIM. NO CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY
`GENERAL THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY
`BE MAINTAINED IN ANY ARBITRATION HELD UNDER THIS
`AGREEMENT. ANY QUESTION REGARDING THE ENFORCEABILITY
`OR INTERPRETATION OF THIS PARAGRAPH SHALL BE DECIDED
`BY A COURT AND NOT THE ARBITRATOR. . . .
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`(R. 21-2, Sandoval Declaration, PageID 263–64) The parties do not dispute that Adell’s Customer
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`Agreement with Verizon from September 2015 includes an arbitration clause that covers Adell’s
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`No. 21-3570, Adell v. Cellco Partnership
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`breach of contract claim. Adell also concedes that the clause requires the bilateral, rather than
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`class, arbitration of disputes and limits her to individual relief in that process. The disagreement
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`lies with whether this clause is enforceable under federal law.
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`Arbitration agreements fall under the ambit of the Federal Arbitration Act (FAA), which
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`provides than an arbitration clause in “a transaction involving commerce . . . shall be valid,
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`irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation
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`of any contract.” 9 U.S.C. § 2. The FAA evinces “a liberal federal policy favoring arbitration
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`agreements.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). As
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`arbitration agreements are contracts, “courts must ‘rigorously enforce’ arbitration agreements
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`according to their terms.” Am. Exp. Co. v. Italian Colors Rest., 570 U.S. 228, 233 (2013) (quoting
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`Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 221 (1985)). If a court is “satisfied that the
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`making of the agreement for arbitration . . . is not in issue, the court shall make an order directing
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`the parties to proceed to arbitration in accordance with the terms of the agreement.” 9 U.S.C. § 4.
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`The district court entered such an order, and Adell asserts on appeal that two independent
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`reasons show the decision to be erroneous. First, Adell insists that she did not voluntarily waive
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`an Article III adjudication of her breach of contract claim against Verizon. Second, she argues
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`that the “inherent conflict” between CAFA and the FAA means that claims falling within a federal
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`court’s diversity jurisdiction through CAFA are no longer within the FAA’s bounds. We take each
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`argument in turn.
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`“When reviewing a district court’s decision to confirm or vacate an arbitration award, we
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`review factual findings for clear error and questions of law de novo.” Uhl v. Komatsu Forklift Co.,
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`Ltd., 512 F.3d 294, 303 (6th Cir. 2008) (quoting Green v. Ameritech Corp., 200 F.3d 967, 974 (6th
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`Cir. 2000)). We review both denials of motions for summary judgment and decisions to compel
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`No. 21-3570, Adell v. Cellco Partnership
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`arbitration pursuant to the FAA de novo. Hergenreder v. Bickford Senior Living Grp., LLC, 656
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`F.3d 411, 415 (6th Cir. 2011); Wilson v. Safelite Grp., Inc., 930 F.3d 429, 433 (6th Cir. 2019).
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`A.
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`Voluntariness Under the Federal Arbitration Act
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`Adell’s first challenge to the enforceability of the arbitration clause in the Customer
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`Agreement is that she did not consent to the arbitration of her claims. Consent is a prerequisite to
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`the enforcement of arbitration agreements under the FAA. See, e.g., Thomas v. Union Carbide
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`Agric. Prods. Co., 473 U.S. 568, 584 (1985). Courts cannot require a party to arbitrate a dispute
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`if that party has not agreed to do so. United Steelworkers of Am. v. Warrior & Gulf Co., 363 U.S.
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`574, 582 (1960). Once parties have agreed to arbitrate, though, courts must “rigorously enforce”
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`those agreements. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985).
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`Adell contends that, on the issue of consent, we have used a “‘knowing and voluntary’
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`standard in the context of FAA arbitration, but not in connection with Article III.” She relies on
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`the decision in Wellness International Network, Ltd. v. Sharif, 575 U.S. 665 (2015), which
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`concluded that the “knowing and voluntary” consent of parties to a bankruptcy court’s adjudication
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`of claims that are otherwise within the jurisdiction of an Article III court does not offend
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`constitutional principles. Adell argues that we should “extend” this standard to assessing whether
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`she consented to the waiver of her right to Article III adjudication. She then asserts that the
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`application of this standard shows “that Verizon’s adhesive denial of the right to refuse non-Article
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`III arbitration by Adell and still receive her equipment and services from Verizon is not ‘voluntary’
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`under the Constitution, and that the waiver of her Article III rights is unenforceable.”
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`Nothing in the record, however, supports Adell’s claim that her consent to the Customer
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`Agreement was not knowing and voluntary. Wellness International, moreover, did not disrupt the
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`firmly established rule that consent is a prerequisite to the enforcement of arbitration agreements.
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`See United Steelworkers of Am., 363 U.S. at 582. We “review the enforceability of an arbitration
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`No. 21-3570, Adell v. Cellco Partnership
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`agreement according to the applicable state law of contract formation.” Seawright v. Am. Gen.
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`Fin. Servs., Inc., 507 F.3d 967, 972 (6th Cir. 2007). Here, the Customer Agreement states that it
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`is “governed by federal law and the laws of the state encompassing the area code of [the
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`customer’s] wireless phone number,” which requires us to apply Ohio law. See AT&T Mobility
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`LLC v. Concepcion, 563 U.S. 333, 346–47 (2011). Adell asserts that Verizon’s requirement that
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`she waive her personal right to bring claims in a federal court to receive Verizon’s equipment and
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`services left her without a choice but to waive her personal rights under Article III. This argument
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`is essentially a claim that the agreement is unconscionable. See Morrison v. Circuit City Stores,
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`Inc., 317 F.3d 646, 666 (6th Cir. 2003) (explaining that an unconscionability argument under Ohio
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`law raised the issue of “the disparity in bargaining power between the parties to the agreement”).
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`We therefore evaluate Adell’s arguments under Ohio’s unconscionability doctrine. A party
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`arguing unconscionability under Ohio law must show:
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`(1) substantive unconscionability, i.e., unfair and unreasonable contract terms, and
`(2) procedural unconscionability, i.e., individualized circumstances surrounding
`each of the parties to a contract such that no voluntary meeting of the minds was
`possible. Both elements must be present to find a contract unconscionable.
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`Id. “The party asserting unconscionability of a contract bears the burden of proving that the
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`agreement is both procedurally and substantively unconscionable.” Hayes v. Oakridge Home, 908
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`N.E.2d 408, 412 (Ohio 2009).
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`Beyond her general arguments against the arbitration clause, Adell does not offer any
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`example of how the Customer Agreement is substantively unconscionable. Instead, she focuses
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`on the fact that she could not receive Verizon services and equipment without waiving her personal
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`Article III rights. She rejects the district court’s finding that she could refuse to sign the Customer
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`Agreement and seek cell phone equipment and service elsewhere, countering that this argument
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`does not comport with the discussion of the importance of cell phones in recent Supreme Court
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`No. 21-3570, Adell v. Cellco Partnership
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`opinions and oral argument. However, our precedent has squarely rejected similar arguments. In
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`evaluating analogous claims that an arbitration clause in a cell-phone contract was procedurally
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`unconscionable, we explained that the plaintiff was not entitled to use a particular wireless
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`provider. Ozormoor v. T-Mobile USA, Inc., 354 F. App’x 972, 974 (6th Cir. 2009). Adell does
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`argue in her reply that the three other major carriers include similar arbitration clauses in their
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`customer agreements, but that alleged fact does not negate the voluntariness of her decision to
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`contract for cell-phone service with Verizon. Although Verizon undoubtedly has greater economic
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`power than Adell, she has not offered the proof necessary to show that the Customer Agreement
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`was both procedurally and substantively unconscionable, especially given that she has offered no
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`evidence that Verizon was her only option for cell-phone service. Without more, we must find
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`Adell’s arbitration agreement with Verizon enforceable.
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`B.
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`The Class Action Fairness Act
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`Adell further argues that her agreement to bilateral arbitration in the Verizon Customer
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`Agreement is unenforceable because CAFA conflicts with and displaces the FAA with respect to
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`class action claims like hers. According to Adell, Congress’s grant of jurisdiction to the federal
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`courts over smaller class action lawsuits in CAFA guaranteed her right to federal adjudication of
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`her claim. She points to the statutory language on Congress’s purpose in enacting CAFA, the
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`legislative history, and the statutory text granting federal courts jurisdiction over class action
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`lawsuits such as hers. Adell asserts that even applying the Supreme Court’s instructions in Epic
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`Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), for evaluating possible displacement of the FAA,
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`CAFA clearly displaces the FAA.
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`In Epic Systems Corp., the Supreme Court considered whether the National Labor
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`Relations Act (NLRA) overrode the enforceability of arbitration clauses in employment
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`agreements. 138 S. Ct. at 1624. The goal when construing two statutes, the Court explained, is to
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`No. 21-3570, Adell v. Cellco Partnership
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`interpret the acts “to give effect to both.” Id. (quoting Morton v. Mancari, 417 U.S. 535, 551
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`(1974)). Courts may find displacement only when there is “‘clear and manifest’ congressional
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`intention to displace one Act with another.” Id. (quoting Morton, 417 U.S. at 551); see also Gaffers
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`v. Kelly Servs., Inc. 900 F.3d 293, 295 (6th Cir. 2018). Furthermore, courts must embrace “the
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`‘stron[g] presum[ption]’ that repeals by implication are ‘disfavored’ and that ‘Congress will
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`specifically address’ preexisting law when it wishes to suspend its normal operations in a later
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`statute.” Epic Sys. Corp., 138 S. Ct. at 1624 (alterations in original) (quoting United States v.
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`Fausto, 484 U.S. 439, 452–53 (1988)). Applying these standards, the Supreme Court concluded
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`that the NLRA, although creating rights to unionization, collective bargaining, and union
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`bargaining to prohibit arbitration, did not show a clear congressional intent to displace the FAA.
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`Id. Also compelling was “the fact that when Congress wants to mandate particular dispute
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`resolution procedures[,] it knows exactly how to do so.” Id. at 1626. Given the absence of such
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`obvious language on the proper “procedures for resolving ‘actions,’ ‘claims,’ ‘charges,’ and
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`‘cases,’” the Court concluded that the evidence pointed against a displacement of the FAA. Id.
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`The Court further emphasized the losing record of cases arguing conflicts between the FAA and
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`other statutes. Id. at 1627. “[E]ven a statute’s express provision for collective legal actions does
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`not necessarily mean that it precludes ‘individual attempts at conciliation’ through arbitration.”
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`Id. Ultimately, “the absence of any specific statutory discussion of arbitration or class actions is
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`an important and telling clue that Congress has not displaced the Arbitration Act.” Id.
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`Adell has not pointed to evidence that could overcome the high barrier for displacement of
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`the FAA, and no other argument she makes in support of her reading requires a different outcome.
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`CAFA undoubtedly discusses class actions, but it neither mentions arbitration nor offers the “clear
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`and manifest congressional intention” signaling FAA displacement. CAFA focuses on the
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`No. 21-3570, Adell v. Cellco Partnership
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`jurisdiction of the federal courts and grants district courts “original jurisdiction” for class actions
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`“in which the matter in controversy exceeds the sum or value of $5,000,000.” 28 U.S.C.
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`§ 1332(d)(2). The “findings and purposes” set out in CAFA express the importance of class action
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`lawsuits, including that broader jurisdiction for class action lawsuits will “restore the intent of the
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`framers of the United States Constitution by providing for Federal court consideration of interstate
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`cases of national importance under diversity jurisdiction.” Class Action Fairness Act of 2005,
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`Pub. L. No. 109-2, § 2(a)–(b), 119 Stat. 4 (2005). These are not clear statements displacing the
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`FAA. The legislative history that Adell cites is similarly unable to surmount the “uphill climb” to
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`prove displacement. Epic Sys. Corp., 138 S. Ct. at 1624. Although the Senate Report expresses
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`the importance of district-court jurisdiction over—meaning the ability to hear—class action cases,
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`it does not indicate that CAFA was meant to preclude parties from privately contracting to
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`adjudicate such cases through bilateral arbitration instead. See S. Rep. No. 109-14 (2005).
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`Ultimately, the jurisdictional changes wrought through CAFA do not show an obvious conflict
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`with the FAA that would make Adell’s arbitration agreement with Verizon unenforceable. We
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`can, and the district court did, give effect to both. The district court here had jurisdiction over
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`Adell’s case through CAFA and exercised that jurisdiction when compelling arbitration and
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`enforcing the arbitration award.
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`III. CONCLUSION
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`For the reasons discussed above, we reject Adell’s challenges to the enforceability of her
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`arbitration agreement with Verizon and AFFIRM the district court’s judgments.
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