Holl v. U.S. Dist. Court for the N. Dist. of Cal., 925 F.3d 1076

Holl shipped a package via a UPS retail location, alleging UPS charged a higher Delivery Area Surcharge than advertised and filed a putative class action for systematic overcharges.
UPS moved to compel arbitration under an arbitration clause it says was incorporated into Holl's enrollment in the free UPS My Choice program.
Holl clicked an enrollment checkbox that referenced two linked documents: the 96‑page UPS Technology Agreement and a 3‑page UPS My Choice Service Terms; he conceded checking the box but said he did not recall reading the terms.
The My Choice Service Terms expressly incorporated by reference the UPS Tariff/Terms and Conditions of Service (hosted on ups.com), which contains a 32‑page arbitration provision requiring individual (not class) binding arbitration.
Holl argued the arbitration clause was inconspicuous and conflicted with a jurisdiction clause in the Technology Agreement; the district court compelled arbitration and Holl filed for mandamus.
The Ninth Circuit denied mandamus, concluding Holl had assented to terms that validly incorporated the arbitration provision and the Technology Agreement’s jurisdiction clause was not in conflict with the arbitration provision.

Issue	Holl's Argument	UPS's Argument	Held
Whether Holl was bound to arbitrate	Clause was inconspicuous; Holl had no actual notice	Holl affirmatively assented by checking the enrollment box that incorporated the tariff terms	Court held assent plus clear incorporation made arbitration binding
Whether incorporation by reference was valid	Incorporation was too buried and not reasonably conspicuous	The My Choice Terms clearly and unequivocally incorporated the Tariff available on ups.com	Court held incorporation valid under California law
Whether arbitration clause conflicted with Technology Agreement jurisdiction clause	Clauses inconsistent; no meeting of the minds	Technology Agreement’s jurisdiction clause applies only to technology licensing, not shipping services	Court held clauses covered different subject matters and did not conflict
Whether extraordinary writ of mandamus was warranted	District court clearly erred in compelling arbitration	District court’s ruling was not a clear legal error; mandamus is extraordinary	Court denied mandamus because no definite and firm conviction of error

Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir. 1977) (factors for granting mandamus)
Norcia v. Samsung Telecomms. Am., LLC, 845 F.3d 1279 (9th Cir. 2017) (contract formation standards with arbitration clauses)
Windsor Mills, Inc. v. Collins & Aikman Corp., 25 Cal. App. 3d 987 (Cal. Ct. App. 1972) (offeree not bound by inconspicuous terms)
Sanchez v. Valencia Holding Co., 61 Cal. 4th 899 (Cal. 2015) (no special rule requiring highlighting arbitration clauses in adhesive contracts)
Meyer v. Uber Techs., Inc., 868 F.3d 66 (2d Cir. 2017) (affirmative assent to online terms can bind users to arbitration)
Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014) (enforceability where user had actual or constructive notice and affirmative assent)
United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (U.S. 1960) (party cannot be required to arbitrate disputes not agreed to)
Cheney v. U.S. Dist. Ct., 542 U.S. 367 (U.S. 2004) (mandamus is an extraordinary remedy)
United States v. Fei Ye, 436 F.3d 1117 (9th Cir. 2006) (standard for "definite and firm conviction" of mistake required for mandamus)