The opinion
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
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AT SEATTLE
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10 CHRISTOPHER M. BERNARD, CASE NO. C25-2037JLR
11 Plaintiff, ORDER
v.
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AMAZON.COM, INC., et al.,
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Defendants.
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15 I. INTRODUCTION
16 Before the court are (1) Defendants Amazon.com, Inc. and Amazon Logistics,
17 Inc.’s (“Amazon Logistics,” and together with Amazon.com, Inc., “Amazon”) motion to
18 compel arbitration and stay litigation (MTC (Dkt. # 20); MTC Reply (Dkt. # 32)) and
19 (2) Plaintiff Christopher M. Bernard’s motion for leave to amend his complaint (MTA
20 (Dkt. # 33); MTA Reply (Dkt. # 36); see Prop. Am. Compl. (Dkt. # 33-1); Redlined Prop.
21 Am. Compl. (Dkt. # 33-2)). Each party opposes the other party’s motion. (MTC Resp.
22 (Dkt. # 29); MTA Resp. (Dkt. # 34).) The court has considered the parties’ submissions,
1 the relevant portions of the record, and the governing law. Being fully advised,1 the court
2 GRANTS Amazon’s motion to compel arbitration, STAYS this action pending the
3 completion of arbitration, and DENIES Mr. Bernard’s motion for leave to amend.
4 II. BACKGROUND
5 A. Factual Background
6 This matter arises from Mr. Bernard’s participation in Amazon’s Delivery Service
7 Partner (“DSP”) program, through which local delivery businesses contract with Amazon
8 Logistics to transport and deliver Amazon goods to customers in a specific delivery area.
9 (Compl. (Dkt. # 1) ¶¶ 1-2, 11; McCabe Decl. (Dkt. # 21) ¶¶ 4-5.) Mr. Bernard, “an
10 experienced operations executive[,]” started his DSP business, Last Mile National City,
11 LLC (“LAMI”) in California in July 2019. (Compl. ¶ 13; McCabe Decl. ¶¶ 3, 6.)
12 To join the DSP program, a prospective DSP owner must first form a business
13 entity. (Bernard Decl. (Dkt. # 30) ¶ 4); see also Fli-Lo Falcon, LLC v. Amazon.com, Inc.,
14 97 F.4th 1190, 1192 (9th Cir. 2024) (describing the process for joining the DSP
15 program). The business entity must then execute Amazon Logistics’ standard DSP
16 Program Agreement (“DSP Agreement”) using a process in which Amazon displays the
17 DSP Agreement on its online portal and the DSP approves it by clicking an “Accept”
18 button. (McCabe Decl. ¶ 5; Bernard Decl. ¶ 8.)
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1 Mr. Bernard requests oral argument on the motion to compel arbitration. Neither party
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requests oral argument on the motion for leave to amend. The court concludes that oral
argument would not assist it in resolving the motions and denies Mr. Bernard’s request for
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argument. See Local Rules W.D. Wash. LCR 7(b)(4).
1 Mr. Bernard executed the DSP Agreement on behalf of LAMI on on July 24,
2 2019. (McCabe Decl. ¶¶ 6-7; Bernard Decl. ¶¶ 8, 12.) The DSP Agreement includes an
3 arbitration provision that provides, in relevant part:
4 Governing Law; Submission to Arbitration. This Agreement is governed by
the United States Federal Arbitration Act, applicable United States federal
5 law, and Washington state law, without reference to any applicable conflict
of laws rules. ANY DISPUTE ARISING OUT OF THIS AGREEMENT
6 WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN
IN COURT . . . . The arbitration will be conducted by the American
7 Arbitration Association (the “AAA”) under its rules, including the AAA’s
Commercial Arbitration Rules. The AAA’s rules are available at
8 www.adr.org or by calling 1-800-778-7879. Payment of all filing,
administration, and arbitrator fees will be governed by the AAA’s rules.
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(McCabe Decl. ¶ 8, Ex. A (“DSP Agreement”) § 13.) The same arbitration provision was
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in effect throughout Mr. Bernard’s participation in the DSP program. (Compare id.; with
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id. ¶ 8, Ex. B (January 1, 2025 version of the DSP Agreement) § 13.)
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Over the next six years, Mr. Bernard grew LAMI’s fleet to 50 delivery vans,
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employed over 100 people, and generated profits of approximately $1.5 million per year.
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(Compl. ¶ 13; see also Bernard Decl. ¶ 7.) Mr. Bernard alleges, however, that in early
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2024, “Amazon unilaterally implemented ‘profit compression’ measures across the DSP
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program” such as “adjusting route assignments, delivery rates, and reimbursement
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formulas” for the purpose of “artificially cap[ping] DSP earnings.” (Compl. ¶ 14.)
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According to Mr. Bernard, these measures reduced his annual profit to approximately
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$650,000 per year. (Id.)
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Mr. Bernard tried to sell his DSP business in 2024 and 2025. (Id. ¶ 15.) He
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alleges that he identified “seven qualified, cash-ready buyers willing to pay up to
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1 $1.2 million for the business” who “came from Amazon’s own DSP candidate pool[.]”
2 (Id.) The DSP Agreement required Mr. Bernard to obtain Amazon’s consent before he
3 could assign the DSP Agreement to a buyer. (Id.) Amazon, however, “systematically
4 rejected” each potential buyer, which “effectively block[ed] Mr. Bernard from ever
5 monetizing the business he had built.” (Id.)
6 In May 2025, the last of Mr. Bernard’s seven potential buyers survived Amazon’s
7 vetting and reached the final interview stage. (Id. ¶ 16.) Just four days before the
8 completion of the sale, however, Amazon “abruptly terminated” Mr. Bernard’s DSP
9 Agreement. (Id.) Mr. Bernard alleges that Amazon’s termination of his DSP Agreement
10 “extinguished [his] business overnight, denying him the $1.2 million sale proceeds and
11 destroying the enterprise value he had created.” (Id.) Mr. Bernard alleges that his
12 experience “is not an isolated incident but part of a pattern of racketeering activity and
13 unlawful conduct by Amazon affecting hundreds of DSPs nationwide.” (Id. ¶ 18.)
14 B. Procedural Background
15 Mr. Bernard filed this action on October 20, 2025. (See Compl.) He raises nine
16 causes of action against Amazon on behalf of himself individually, LAMI, and a
17 proposed class of similarly situated DSP owners: (1) violation of the Racketeer
18 Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1962(c), (d);
19 (2) violation of the Sherman Antitrust Act, 15 U.S.C. §§ 1, 2; (3) fraudulent franchise in
20 violation of state and federal franchise laws; (4) violation of the California Unfair
21 Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq.; (5) breach of the
22 implied covenant of good faith and fair dealing; (6) intentional interference with
1 prospective economic advantage; (7) fraud and fraudulent concealment; (8) declaratory
2 judgment under 28 U.S.C. § 2201; and (9) violation of the Washington Consumer
3 Protection Act (“WCPA”), ch. 19.86 RCW. (Compl. ¶¶ 20-40.) Mr. Bernard also
4 includes in his complaint anticipatory allegations addressing Amazon’s claimed right to
5 compel his case to individual arbitration. (Id. ¶¶ 41-42.) Specifically, he asks the court
6 (1) for an order determining that his claims for public injunctive relief under the UCL and
7 WCPA are not subject to arbitration, and (2) to decide whether the DSP Agreement’s
8 arbitration clause is enforceable rather than leave that question to an arbitrator. (Id.) Mr.
9 Bernard seeks “damages and public injunctive relief to stop Amazon’s unlawful DSP
10 practices and to restore fair, transparent conditions across the DSP network.” (Id. ¶ 4; see
11 also id. at 22-23 (prayer for relief).)
12 On December 19, 2025, the court granted the parties’ stipulated motion to stay
13 initial case deadlines pending its ruling on Amazon’s anticipated motion to compel
14 arbitration. (12/19/25 Order (Dkt. # 19).) Amazon filed its motion to compel arbitration
15 on January 26, 2026. (See MTC.) On February 22, 2026, Mr. Bernard responded to
16 Amazon’s motion. (See MTC Resp.) After several extensions to the briefing schedule,
17 the motion to compel was fully briefed on March 9, 2026. (See generally Dkt.)
18 Mr. Bernard moved for leave to amend his complaint on March 20, 2026. (See
19 MTA.) That motion, too, is now fully briefed and ripe for decision.
20 //
21 //
22 //
1 III. ANALYSIS
2 Below, the court first addresses Amazon’s motion to compel arbitration based on
3 the allegations in the operative complaint. Then, the court considers Mr. Bernard’s
4 motion to file a first amended complaint.
5 A. Motion to Compel Arbitration
6 1. Standard of Review
7 The FAA governs arbitration agreements in any contract affecting interstate
8 commerce. See Cir. City Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001). Under the
9 FAA, arbitration agreements “shall be valid, irrevocable, and enforceable, save upon
10 grounds as exist at law or in equity for the revocation of any contract[,]” such as fraud,
11 duress, or unconscionability. 9 U.S.C. § 2; AT&T Mobility LLC v. Concepcion, 563 U.S.
12 333, 339 (2011). Arbitration agreements may not, however, be invalidated by defenses
13 that apply only in arbitration or that derive their meaning from the fact that an agreement
14 to arbitrate is at issue. Concepcion, 563 U.S. at 339.
15 A district court’s authority to compel arbitration arises under § 4 of the FAA.
16 9 U.S.C. § 4. In general, “[t]he FAA limits federal court review of arbitration agreements
17 to two gateway arbitrability issues: ‘(1) whether a valid agreement to arbitrate exists, and
18 if it does, (2) whether the agreement encompasses the dispute at issue.’” Bielski v.
19 Coinbase, Inc., 87 F.4th 1003, 1009 (9th Cir. 2023) (quoting Chiron Corp. v. Ortho
20 Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000)). The parties may, however,
21 delegate the resolution of these gateway issues to the arbitrator. Fli-Lo Falcon, 97 F.4th
22 at 1199 (explaining that delegable threshold issues may include “whether the parties have
1 agreed to arbitrate,” “whether [the arbitration] agreement covers a particular
2 controversy,” and “whether the [arbitration] [a]greement is unconscionable”) (quoting
3 Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 68-69 (2010)). If “the parties have ‘clearly
4 and unmistakably’ delegated questions regarding arbitrability to the arbitrator, the court
5 need not conduct further inquiries beyond the existence of the arbitration agreement.” Id.
6 at 1194 (first citing Rent-A-Ctr., 561 U.S. at 68-70; and then citing Brennan v. Opus
7 Bank, 796 F.3d 1125, 1130 (9th Cir. 2015)). Incorporation of the AAA Commercial
8 Arbitration Rules (the “AAA Rules”) in an arbitration agreement “constitutes clear and
9 unmistakable evidence that [the] contracting parties agreed to arbitrate arbitrability.” Id.
10 at 1199 (quoting Brennan, 796 F.3d at 1130). Thus, if an arbitration agreement
11 incorporates the AAA Rules, “the only remaining question [for the district court] is
12 whether the particular agreement to delegate arbitrability—the [d]elegation [p]rovision—
13 is itself unconscionable.” Id. (quoting Brennan, 796 F.3d at 1132). “When the parties’
14 contract delegates the arbitrability question to an arbitrator, the courts must respect the
15 parties’ decision as embodied in the contract.” Henry Schein, Inc. v. Archer & White
16 Sales, Inc., 586 U.S. 63, 65 (2019); see also Dean Witter Reynolds, Inc. v. Byrd, 470 U.S.
17 213, 218 (1985) (stating that the FAA “leaves no place for the exercise of discretion by a
18 district court”).
19 2. The Court Grants the Motion to Compel Arbitration
20 Amazon asserts that the court must compel arbitration because the Ninth Circuit
21 held, in Fli-Lo Falcon, LLC v. Amazon.com, Inc., that the same arbitration provision that
22 is at issue here delegates to the arbitrator exclusive authority to resolve questions of
1 arbitrability.2 (MTC at 5-7; DSP Agreement § 13 (incorporating the AAA Rules)); see
2 Fli-Lo Falcon, 97 F.4th at 1201 (affirming the district court’s order compelling
3 arbitration of a proposed class action filed by three DSPs against Amazon). Mr. Bernard
4 does not dispute that the arbitration provision applies to LAMI. (See generally Resp.)
5 He argues, however, that Fli-Lo Falcon does not require him to arbitrate his individual
6 claims because (1) only LAMI and Amazon Logistics are bound by the DSP Agreement’s
7 arbitration provision; (2) his individual claims fall outside the scope of the arbitration
8 provision; (3) the delegation clause is procedurally and substantively unconscionable; (4)
9 he is exempt from the FAA because he is a “worker[] engaged in foreign or interstate
10 commerce” under FAA § 1; (5) the arbitration provision is procedurally and substantively
11 unconscionable; (6) his UCL and WCPA claims “seek public injunctive relief that cannot
12 be waived or arbitrated[;]” and (7) the public interest weighs against compelling
13 arbitration. (See generally id.)
14 As discussed below, the court grants Amazon’s motion to compel arbitration and
15 stay proceedings because (1) Mr. Bernard is bound by the DSP Agreement’s arbitration
16 provision, (2) FAA § 1 does not exempt Mr. Bernard from arbitration, and (3) the
17 delegation clause is not unconscionable. As a result, Mr. Bernard’s remaining
18 arbitrability arguments must be decided by the arbitrator, rather than by this court.
19 //
20 //
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2 Like this case, Fli-Lo Falcon involved the 2018 version of the DSP Agreement. See 97
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F.4th at 1192 n.2; (DSP Agreement at 1).
1 a. Mr. Bernard is Bound by the DSP Agreement
2 Courts apply general contract and agency principles when determining whether an
3 arbitration agreement may be enforced against a nonsignatory to a contract. Comer v.
4 Micor, Inc., 436 F.3d 1098, 1101 (9th Cir. 2006). “Among these principles are [1]
5 incorporation by reference; [2] assumption; [3] agency; [4] veil-piercing/alter ego; and
6 [5] estoppel.” Id. (citation and quotation marks omitted). Mr. Bernard asserts that none
7 of these doctrines apply here. (MTC Resp. at 14-15.) Specifically, he argues that he is
8 not personally bound by the DSP Agreement’s arbitration provision because that
9 agreement is a contract between Amazon Logistics and LAMI, rather than a contract
10 between Amazon Logistics and himself as an individual. (MTC Resp. at 12-13; see also
11 id. at 13 (asserting that Mr. Bernard signed the DSP Agreement only “as owner and
12 authorized agent of LAMI” rather than in his individual capacity).) Amazon counters
13 that agency, equitable estoppel, and third-party beneficiary principles bind Mr. Bernard to
14 the DSP Agreement. (MTC Reply at 4-7.) The court agrees with Amazon that Mr.
15 Bernard is bound to the DSP Agreement under the principle of equitable estoppel.
16 In Washington, a nonsignatory to an arbitration agreement may be compelled to
17 arbitrate if he claims “the benefits of a contract while simultaneously attempting to avoid
18 the burdens that contract imposes.” Townsend v. Quadrant Corp., 268 P.3d 917, 922
19 (Wash. 2012) (quoting Mundi v. Union Sec. Life Ins. Co., 555 F.3d 1042, 1045-46 (9th
20 Cir. 2009)) (internal quotation marks omitted). “[E]quitable estoppel may require a
21 nonsignatory to arbitrate a claim if that person, despite never having signed the
22 agreement, ‘knowingly exploits’ the contract in which the arbitration agreement is
1 contained.” Id. (quoting Mundi, 555 F.3d at 1046); see, e.g., Randall v. FedEx Ground
2 Package Sys., Inc., No. 2:23-CV-0095-TOR, 2023 WL 4632380, at *4-5 (E.D. Wash.
3 July 19, 2023) (holding that equitable estoppel applied to a delivery company owner’s
4 individual discrimination and emotional distress claims because they had an “obvious and
5 close nexus” to the delivery services contract between FedEx and the delivery company).
6 Mr. Bernard argues that equitable estoppel does not bind him to the DSP
7 Agreement because his individual claims “do not seek to enforce the DSP Agreement or
8 depend on its terms.” (Resp. at 14.) Instead, according to Mr. Bernard, his injuries
9 “would exist even if the DSP Agreement were void.” (Id.) The court, however, has no
10 trouble concluding that Mr. Bernard is bound to the arbitration provision because he
11 “knowingly exploited” the benefits of the DSP Agreement. Townsend, 268 P.3d at 922.
12 Mr. Bernard earned millions of dollars in profits during the six years he operated LAMI
13 (Bernard Decl. ¶¶ 3, 16), and all of his claims arise out of or relate to Amazon’s alleged
14 misrepresentations about and operation of the DSP program, its alleged “profit
15 compression” activities, its refusal to approve his chosen buyer, and its eventual
16 termination of his DSP Agreement (see Compl. ¶¶ 20-40). Mr. Bernard cannot,
17 therefore, avoid the burdens of the DSP Agreement, including its agreement to arbitrate.
18 Furthermore, none of the cases Mr. Bernard cites to support his argument are on
19 point. First, Mundi v. Union Security Life Insurance Company, 555 F.3d at 1047-48, and
20 Kramer v. Toyota Motor Corporation, 705 F.3d 1122, 1128 (9th Cir. 2013), both
21 involved nonsignatory defendants that sought to compel signatory plaintiffs to arbitration.
22 This case, in contrast, involves a signatory defendant that seeks to enforce an arbitration
1 provision against a nonsignatory plaintiff. (See generally MTC.) Jackson v.
2 Amazon.com, Inc., 65 F.4th 1093 (9th Cir. 2023), meanwhile, does not address equitable
3 estoppel at all. Instead, the Jackson court (1) determined that it could decide whether the
4 plaintiffs’ claims were arbitrable because the applicable arbitration agreement did not
5 include a delegation clause and (2) held that the plaintiffs’ claims were not subject to
6 arbitration because anyone in the Facebook group at issue in the case could have brought
7 the same privacy and wiretapping claims against Amazon even if they weren’t Amazon
8 employees. Id. at 1101-03.
9 Accordingly, the court concludes that equitable estoppel binds Mr. Bernard to the
10 DSP Agreement’s arbitration provision. As a result, the court need not, and does not,
11 consider the other nonsignatory doctrines.
12 b. Mr. Bernard and LAMI Are Not Exempt under FAA § 1
13 Section 1 of the FAA provides that “‘nothing’ in the Act ‘shall apply’ to ‘contracts
14 of employment of seamen, railroad employees, or any other class of workers engaged in
15 foreign or interstate commerce.’” New Prime Inc. v. Oliveira, 586 U.S. 105, 110 (2019)
16 (quoting 9 U.S.C. § 1). Thus, “a court should decide for itself whether § 1’s ‘contracts of
17 employment’ exclusion applies before ordering arbitration.” Id. at 111. “As the party
18 opposing arbitration, [Mr. Bernard] bears the burden of establishing that the [§ 1]
19 exemption applies.” Fli-Lo Falcon, 97 F.4th at 1194.
20 In Fli-Lo Falcon, the Ninth Circuit made clear that business-to-business contracts
21 like the DSP Agreement do not qualify as “contracts of employment” within the meaning
22 of § 1 because they call for the performance of services by the DSP as a business rather
1 than the performance of services by an employee. Fli-Lo Falcon, 97 F.4th at 1196-98;
2 see also id. at 1196-97 (“[F]or a contract to be a contract of employment covered by § 1,
3 it must have a qualifying worker as one of the parties.”) (emphasis in original). As a
4 result, the § 1 exemption does not apply to “a commercial contract between two business
5 entities.” Id. at 1201 (compiling cases); see Ervin v. Amazon.com Servs., LLC,
6 No. 24-cv-10311-ODW (KSX), 2025 WL 1591967, at *4-5 (C.D. Cal. June 5, 2025)
7 (concluding that the § 1 exemption did not apply to a DSP owner because the DSP
8 Agreement “is a commercial contract and not a ‘contract of employment . . . for the
9 performance of work by workers’”) (quoting Fli-Lo Falcon, 97 F.4th at 1197) (emphasis
10 in Fli-Lo Falcon); Amos v. Amazon Logistics, Inc., 74 F.4th 591, 593 (4th Cir. 2023)
11 (holding that the § 1 exemption did not apply to a DSP owner because the DSP
12 Agreement is a “binding commercial contract” for “a business services deal struck
13 between two corporate entities, not a ‘contract of employment’”).3
14 This case involves the same DSP Agreement that the Ninth Circuit considered in
15 Fli-Lo Falcon, and Mr. Bernard has not provided the court any reason to depart from the
16 Ninth Circuit’s holding in that case. (See MTC Resp. at 18-21.) Mr. Bernard asserts that
17 § 1’s exemption applies to him because he is “suing in his individual capacity as a natural
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3 Mr. Bernard asserts that Ervin and Amos involved “entity plaintiffs” and did not address
20 whether the owner of the DSP was personally bound by the arbitration agreement. (MTC Resp.
at 21.) As Amazon points out, however, Mr. Bernard is mistaken. (See MTC Reply at 4-5.)
Both courts held that the DSP owners’ individual claims were subject to arbitration. See Ervin,
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2025 WL 1591967, at *3 (“Ervin brings this action against Amazon in his individual capacity
and not on behalf of [his DSP].”); Amos, 74 F.4th at 597 (holding that the claims pursued by the
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DSP and by the DSP owner in his individual capacity must be submitted to arbitration).
1 person[.]” (MTC Resp. at 19.) Fli-Lo Falcon, however, makes clear that whether an
2 agreement is a “contract of employment” that gives rise to the § 1 exemption does not
3 turn on the nature of the plaintiff but on the nature of the agreement. Fli-Lo Falcon, 97
4 F.4th at 1201; see also Negrete v. Campbell’s Co., No. 2:25-CV-00555-AB-AGR, 2025
5 WL 4358880, at *4 (C.D. Cal. Aug. 8, 2025) (holding that § 1 did not apply because the
6 agreement at issue “unambiguously highlight[ed] that the parties to the contract are
7 business entities, regardless of whether a natural individual or the business entity is a
8 party to this lawsuit”). Therefore, the court concludes that § 1 of the FAA does not
9 exempt Mr. Bernard from arbitration.
10 c. The Delegation Provision is not Unconscionable
11 “[T]o sufficiently challenge a delegation provision, the party resisting arbitration
12 must specifically reference the delegation provision and make arguments challenging it.”
13 Bielski, 87 F.4th at 1008. Here, Mr. Bernard asserts that the delegation clause is
14 unconscionable and thus unenforceable as to his individual claims. (MTC Resp. at 17.)
15 First, Mr. Bernard avers that the delegation clause is procedurally unconscionable
16 because it was “never separately called to [his] attention” and “exists only by
17 incorporation-by-reference to an external document—the AAA Commercial Rules—that
18 [Mr.] Bernard was never provided and never reviewed.” (Id. at 17-18.) As a result,
19 according to Mr. Bernard, he had no meaningful opportunity to understand that by
20 clicking “Accept” on the DSP Agreement, he was agreeing that an arbitrator, rather than
21 a court, would decide whether his individual claims must be arbitrated. (Id. at 18.)
22 Procedural unconscionability relates to the formation of a contract, and implicates the
1 manner in which the contract was entered, whether the plaintiff had a reasonable
2 opportunity to understand the contract, whether the contract terms are understandable,
3 and whether the terms were “hidden in a maze of fine print[.]” Burnett v. Pagliacci
4 Pizza, Inc., 470 P.3d 486, 495 (Wash. 2020) (citation omitted). In Burnett v. Pagliacci
5 Pizza, for example, the Washington Supreme Court found an agreement to arbitrate
6 unconscionable when it appeared in a second document that the delivery driver plaintiff
7 “had no knowledge or notice” of when he signed his employment agreement. Id. at 496.
8 Here, by contrast, Mr. Bernard is an experienced executive; the DSP Agreement refers by
9 name to the AAA Rules; and the Ninth Circuit has made clear that incorporation of the
10 AAA Rules in an arbitration provision constitutes clear and unmistakable evidence of the
11 intent to delegate questions of arbitrability. (See Compl. ¶ 13; DSP Agreement § 13); see
12 Brennan, 796 F.3d at 1130. The court concludes, therefore, that Mr. Bernard has not
13 shown that the delegation clause is procedurally unconscionable.
14 Second, Mr. Bernard argues that the delegation clause is substantively
15 unconscionable because it “creat[es] . . . a closed-loop adjudicatory system designed to
16 insulate Amazon from accountability for a pattern of racketeering conduct affecting
17 hundreds of DSPs[.]” (MTC Resp. at 21; see also id. at 18 (arguing that the delegation
18 provision “is substantively unconscionable because it creates a self-referential
19 mechanism that insulates Amazon’s chosen forum from judicial review”).) “Substantive
20 unconscionability exists when a provision in the contract is one-sided.” Burnett, 470
21 P.3d at 496 (citation omitted). When determining whether a contractual provision is
22 “one-sided or overly harsh,” Washington courts consider “whether the provision is
1 shocking to the conscience, monstrously harsh, and exceedingly calloused.” Id. (citations
2 omitted). In Burnett, for example, the court concluded that an arbitration provision was
3 substantively unconscionable because it (1) completely barred wage-and-hour claims by
4 terminated employees; (2) shortened the statute of limitations for making wage-and-hour
5 claims; and (3) provided no alternative to submitting a complaint to the employee’s
6 supervisor, even when the supervisor was the person subjecting the employee to unfair
7 treatment. Id. Because Mr. Bernard identifes nothing in the DSP Agreement’s
8 delegation clause that is similarly harsh or callous, the court concludes that Mr. Bernard
9 has not shown that the delegation clause is substantively unconscionable.
10 Finally, Mr. Bernard also argues that, as a matter of public interest, the court
11 “should decline to extend arbitration doctrine to compel an individual who never signed
12 into a private forum designed to suppress public accountability for alleged racketeering.”
13 (MTC Resp. at 28.) The FAA, however, “leaves no place for the exercise of discretion
14 by a district court, but instead mandates that [the court] shall direct the parties to proceed
15 to arbitration” if it determines that the delegation clause is enforceable. Fli-Lo Falcon,
16 97 F.4th at 1193-94 (quoting Dean Witter Reynolds, 470 U.S. at 218). The court cannot
17 depart from Ninth Circuit and Supreme Court precedent defining the scope of a district
18 court’s review of arbitrability questions. Therefore, the court must deny Mr. Bernard’s
19 request to invalidate the delegation clause as unconscionable or contrary to the public
20 interest.
21 Because the delegation clause is valid and enforceable, the court cannot consider
22 Mr. Bernard’s remaining arguments that challenge the scope and enforceability of the
1 DSP Agreement’s arbitration provision. See Henry Schein, 586 U.S. at 68 (holding that
2 where the parties to an arbitration agreement delegate questions of arbitrability to an
3 arbitrator, “a court may not override the contract . . . [and] possesses no power to decide
4 the arbitrability issue”). Specifically, the court may not consider whether the arbitration
5 provision or the class action waiver included in it are unconscionable, whether Mr.
6 Bernard’s claims fall outside the scope of the arbitration provision, or whether Mr.
7 Bernard’s claims for public injunctive relief under the UCL and WCPA are exempt from
8 arbitration. Instead, Mr. Bernard must raise these issues before the arbitrator. See Fli-Lo
9 Falcon, 97 F.4th at 1201 (“[P]laintiffs’ remaining unconscionability challenges to the
10 [a]rbitration [a]greement fall within the scope of the enforceable [d]elegation [p]rovision,
11 and we leave them to the arbitrator in the first instance.”); Reynolds v. Safeway, Inc., No.
12 C22-0197TL, 2023 WL 2560853, at *4 (W.D. Wash. Mar. 17, 2023) (concluding that the
13 parties had delegated to the arbitrator the question of whether the plaintiff’s claim for
14 public injunctive relief under the WCPA was excluded from arbitration). Accordingly,
15 the court grants Amazon’s motion to compel arbitration.
16 B. Motion for Leave to Amend
17 Having granted Amazon’s motion to compel arbitration, the court denies Mr.
18 Bernard’s later-filed motion for leave to file a first amended complaint as moot. Even if
19 the motion were not moot, however, the court would nevertheless deny it. Mr. Bernard
20 insists that his proposed first amended complaint is “a clarifying amendment” that “does
21 not add new parties, new substantive claims, or new material factual allegations.” (MTA
22 at 1.) Instead, according to Mr. Bernard, the proposed amendments “reorganize[] the
1 existing causes of action” and “clarif[y] which claims are asserted by [Mr.] Bernard in his
2 individual capacity and which are asserted by [LAMI].” (Id. at 1-2; see generally
3 Redlined Prop. Am. Compl. (identifying the proposed changes).) Mr. Bernard argues
4 that these clarifications are “intended to ensure that the [c]ourt evaluates arbitrability
5 based on a clear and accurate operative pleading.” (MTA at 2.)
6 A district court ordinarily considers five factors when determining whether to
7 grant leave to amend: undue delay, bad faith, repeated failure to cure deficiencies,
8 prejudice to the opposing party, and futility of amendment. Eminence Cap., LLC v.
9 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (citation omitted). A court may,
10 however, deny leave to amend “where a plaintiff’s proposed amendments would fail to
11 cure the pleading deficiencies and amendment would be futile.” Cervantes v.
12 Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (citation omitted).
13 Here, nothing about Mr. Bernard’s proposed amendments would change the court’s
14 conclusions regarding whether Mr. Bernard is bound by the DSP Agreement, whether
15 FAA § 1 exempts Mr. Bernard’s individual claims from arbitration, or whether the
16 delegation clause is enforceable. (See generally Redlined Prop. Am. Compl.) Therefore,
17 even if the motion to amend were not moot, the court would still deny it. Mr. Bernard
18 must file his motion to amend his complaint in arbitration.
19 IV. CONCLUSION
20 For the foregoing reasons, the court GRANTS Amazon’s motion to compel
21 arbitration and to stay proceedings (Dkt. # 20) and DENIES Mr. Bernard’s motion for
22 leave to amend his complaint (Dkt. # 33). The court COMPELS this matter to arbitration
1 and STAYS this action pending the completion of arbitration. The parties are
2 ORDERED to file a joint report regarding the status of the arbitration proceedings no
3 later than six months from the filing date of this order and every six months thereafter
4 until the arbitration is complete. The parties are further ORDERED to file a joint report
5 no later than fourteen days after the arbitration proceedings end.
6 Dated this 10th day of June, 2026.
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A
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9 JAMES L. ROBART
United States District Judge
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