JEFFREY KISSINGER v. SCHNEIDER NATIONAL CARRIERS INC (2026)

ORDER GRANTING IN PART MOTION TO COMPEL ARBITRATION (ECF No. 18)

I. INTRODUCTION

Before the Court is the Motion of Defendant Schneider National Carriers, Inc. (“Defendant”) to Compel Individual Arbitration of Plaintiff Trimble's Claims and to Stay Proceedings Pending Ruling on Motion and Completion of Court-Ordered Arbitration (“Motion”). (Mot., ECF No. 18.) The Court deems the Motion appropriate for resolution without a hearing. See Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. For the reasons set forth below, the Court GRANTS the Motion in part, as set forth below.

II. SUMMARY OF PROCEEDINGS

On April 17, 2025, Plaintiffs Jeffrey Kissinger and Kolten Trimble (“Plaintiffs”) filed a Complaint in San Bernardino County Superior Court on behalf of themselves and other members of the general public against Defendant and Does 1 through 100 (“Complaint”). (ECF No. 1-1.) Defendant removed the case to this Court on July 10, 2025 (“Notice of Removal”). (NOR, ECF No. 1.)

On October 10, 2025, Defendant filed the instant Motion, supported by a Memorandum of Points and Authorities (“P&A”) (ECF No. 18-1) and three declarations—the Declaration of Sabrina Beldner (“Beldner Declaration”) (ECF No. 18-2), the Declaration of Amy Ward (“Ward Declaration”) (ECF No. 18-3) and its accompanying Exhibits A through G (ECF Nos. 18-4–18-10), and the Declaration of Jill Holley-Gauthier (“Holley-Gauthier Declaration”) (ECF No. 18-11). On October 31, 2025, Plaintiffs filed their Opposition to the Motion (“Opposition”) (ECF No. 19), supported by the Declaration of Plaintiff Kolten Trimble (“Trimble Declaration”) (ECF No. 19-1). On November 21, 2025, Defendant filed its Reply in support of the Motion (“Reply”) (ECF No. 20), supported by the Supplemental Declaration of Jill Holley-Gauthier (“Supplemental Holley-Gauthier Declaration”) (ECF No. 20-2) and its accompanying Exhibits 1 and 2 (ECF Nos. 20-3–20-4). Defendant also filed evidentiary objections to the Trimble Declaration.¹ (ECF No. 20-1.) Accordingly, the Motion is ready for decision.

III. BACKGROUND

Defendant provides logistics and transportation services to customers across numerous industries throughout the United States as a common and contract motor carrier. (Ward Decl. ¶ 3.)² Defendant is a corporate affiliate of Schneider Enterprise Resources, LLC, and its ultimate parent company is Schneider National, Inc., which maintains its corporate headquarters in Green Bay, Wisconsin. (Id.)

Trimble worked for Defendant as a commercial truck driver for two separate periods of time, from July 18, 2018 to April 10, 2023, and again from September 14, 2023 to October 17, 2024. (Holley-Gauthier Decl. ¶ 4; Trimble Decl. ¶ 4.) At the beginning of his employment, he was an Illinois resident and had an Illinois commercial driver's license. (Holley-Gauthier Decl. ¶ 5.) While employed by Defendant, Trimble moved to Oklahoma and obtained an Oklahoma commercial driver's license. (Id. at ¶ 5.) As part of his employment, he drove interstate truck routes across many states, including Arizona, California, Colorado, Idaho, Nevada, New Mexico, Oregon, Texas, Utah, and Washington. (Ward Decl. ¶ 21.)

Defendant routinely advises its drivers of various company policies using an electronic acknowledgement system. (Ward Decl. ¶ 9.) Annual renewals are presented to drivers as “Driver Associate Acknowledgements” (“Driver AAs”). (Id.) The Driver AAs ask Defendant's employees to acknowledge and agree that they will be bound by the referenced policies and advise employees that the full policies are available on the Company's Intranet portal. (Id. at ¶ 10.) The Driver AAs direct Defendant's employees to read and review those policies prior to acknowledging the Driver AAs. (Id.) Since 2022, Defendant has used an Enterprise Contract Management (“ECM”) application to create the Driver AAs and the OneSpan Sign service to send the Driver AAs to its drivers. (Id. at ¶ 12.)

Every driver is provided with a company-issued tablet for use in the driver's company-assigned truck. (Id. at ¶ 13.) Each truck is equipped with GPS tracking, and Defendant maintains “Power Position Polling” reports recording the location of the truck throughout its operation. (Id. at ¶ 6.) Every driver is assigned a unique driver number, which forms part of the driver's “User Principal Name” (“UPN”). (Id. at ¶ 12.) In order to access work assignments and record time worked, a driver must log into that driver's tablet using that driver's driver number and a unique password containing that driver's date of birth. (Id. at ¶ 13.) Drivers are directed not to share their login credentials with anyone else. (Id.)

Driver AAs are created in the ECM based on a driver's name and unique UPN. (Id. at ¶ 12.) This first creates an unsigned electronic version of the Driver AAs, which is assigned a specific and unique contract number. (Id.) The contract number is sent to the driver using the UPN. (Id.) The driver must log in to the tablet and click on the contract number's unique link, generated by OneSpan Sign, to review and electronically sign the Driver AAs assigned that contract number. (Id. at ¶ 13.) Clicking on such a link asks the driver to agree to the use of an electronic signature. (Id. at ¶ 14.) After the driver agrees to the eSignature Disclosure, the electronic version of the Driver AAs containing the unique contract number is provided. (Id. at ¶16.) At the bottom of the Driver AAs, the driver is asked to acknowledge the Driver AAs by e-signing the document, which requires clicking on the “signature box.” (Id.) The electronic signature is applied at the date and time the driver clicks the “signature box” and clicks “Confirm.” (Id.)

Trimble was asked to sign the 2024 Driver AAs in May 2024. (Id. at ¶ 17.) The electronic OneSpan Sign package was created on May 10, 2024, at 21:03:52 GMT (2:03:52 p.m. PDT ³ ); it was assigned a contract number of 129313, and a link was sent to Trimble's UPN. (Id.) At the time the package was created and assigned its contract number, Trimble was likely off-shift in Arizona. (See ECF No. 18-8, Ward Decl. Ex. E, at 1.) The Power Position Polling report for Kimble's truck shows him near Phoenix, Arizona around 11:30 p.m. CST on May 10, 2024.⁴ (Id.) He traveled generally northward throughout the night. (Id. at 1–17.) He stopped in the vicinity of Wells, Nevada around 10:30 a.m. CST (9:30 a.m. PDT) on May 11, 2024, where he stayed for about 12 hours. (Id. at 17–33.) He began traveling again around 10:30 p.m. CST (9:30 p.m. PDT), heading for Idaho. (Id. at 34–36.)

While stopped in Wells, Nevada on May 11, 2024, around 6:30 p.m. PDT, Trimble accessed the link for contract number 129313. (Ward Decl. at ¶ 18.) He acknowledged that he had read and reviewed the terms of the eSign Disclosure document and registered his consent to use an e-signature. (Id.) He then accessed the Driver AAs with contract number 129313, and he affixed his e-signature to that contract number at 6:32:06 p.m. PDT. (Id. at ¶ 19; ECF No. 18-7, Ward Decl. Ex. D, at 1.) A copy of the Driver AAs that Trimble reviewed and signed electronically on May 11, 2024, bearing the legend “Contract Id # 129313,” is found at Exhibit B to the Ward Declaration. (ECF No. 18-5.) The following language is found beginning on page 3 of that document:

I acknowledge, understand and agree that I have been able to read and review a copy of the current version of Schneider's Dispute Resolution Policy (“DRP”) in one or more of the following ways: on Schneider's employee Intranet portal (Compass) by typing “DRP” into the search tool or by going to Compass and then then [sic] to Resources, then to “Company Information” and then to “Policies & Guidelines” to find the DRP; in hard copy; and/or in the Associate Resources Guide (“ARG”) if I am a Warehouse associate. I understand that, upon my initial receipt or notice of the current version of the DRP I can elect to not be bound by that version of the DRP entirely or by its “Chosen State Law” provisions (specifying that it is governed by the laws of the State of Nevada to the extent it is not subject to and governed by the Federal Arbitration Act) by following the procedures in Section 19.0 of the DRP (“Is there a way to opt-out of the DRP or its chosen state law”) within 30 days of my initial receipt or notice of that version of the DRP. I further understand that if I do not or did not make such an election to not be bound when first provided notice of and access to the current version of the DRP, and have not become bound by a later version of the DRP, then Schneider and I will be required to arbitrate any Covered Disputes in accordance with the current version of the DRP to which I have become bound. Further, I acknowledge and understand that if I have timely and properly elected to not be bound by the current version of the SMAP, then I remain bound by any earlier version of the DRP or Schneider's Mediation & Arbitration Policy (“SMAP”) to the extent I previously had notice of and access to a copy of that earlier version, did not make a timely and proper election to not be bound by the earlier version of the DRO or SMAP as specified in any such version, and have not become bound by a more current version of the DRP or SMAP.

I also acknowledge, understand and agree that, unless I have made a timely and proper election to not be bound by the current version of the SMAP, if any employment-related disputes now exist or arise in the future between me and Schneider, we are and will be bound by the terms of the DRP, under which we each waive our rights to have any “Covered Disputes” (as defined in the DRP) be heard or decided through any type of judge or jury trials, administrative hearings, or through any type of “Representative Action” or “PAGA Representative Action” (as defined and specified in the DRP), and agree that any Covered Disputes can only be resolved through voluntary mediation or mandatory individual final and binding arbitration, except as expressly set forth in the DRP. To that end, I acknowledge, understand and agree that Covered Disputes under the DRP include any claims now being or hereafter brought by me or putatively on my behalf or for my benefit as a proposed Representative Action and/or PAGA Representative Action (as defined and specified in the DRP) to the extent that certification or permission to proceed as a Representative Action or PAGA Representative Action has not been granted as of the time I am making these Associate Acknowledgements. I further understand that I may obtain information about any such actions now pending by requesting it from Schneider's Legal Department as provided in footnote 2 of Section 3.0 of the DRP, and that I can only bring a PAGA Action on an individual basis that must be arbitrated under the DRP.

If I primarily reside and work for Schneider (or any of them as defined above) in California, then I acknowledge and agree that I have in fact been individually represented by legal counsel in negotiating the Chosen State Law provisions of the DRP, if I desired to engage in such negotiating, and if no such negotiating occurred, it was because I did not desire to negotiate the Chosen State Law provisions of the DRP.

BY MY CONTINUED EMPLOYMENT WITH SCHNEIDER FOLLOWING MY INITIAL RECEIPT OR NOTICE OF THE CURRENT VERSION OF THE DRP, OR OF ANY PRIOR VERSION OF THE DRP OR SMAP TO WHICH I AM OTHERWISE BOUND, AND BY ELECTRONICALLY SIGNING THESE ASSOCIATE ACKNOWLEDGMENTS WHERE PROVIDED BELOW, I ACCEPT, AGREE AND GIVE MY SPECIFIC AUTHORIZATION TO BE BOUND BY AND MAKE EFFECTIVE ALL OF THE TERMS AND PROVISIONS OF THE CURRENT VERSION OF THE DRP, OR OF ANY PRIOR VERSION OF THE DRP OR SMAP TO WHICH I AM OTHERWISE BOUND.

I acknowledge that Schneider may modify, supplement, terminate, or revise any of the Schneider Policies, except those providing that my employment relationship is at-will, at any time and in accordance with applicable law. I acknowledge, understand and agree that the DRP, SMAP and any stand-alone agreements between me and Schneider (including but not limited to the Schneider Associate Non-Disclosure and Developments Agreement, any non-solicitation or non-compete agreement I may have signed, and the integrated agreement with respect to the at-will nature of my employment relationship set forth below, all of which are referred to collectively hereafter as the “Agreements”) are binding contracts between me and Schneider. I further acknowledge that, other than the Agreements, the Schneider Policies do not, in whole or in part, constitute a guarantee of employment, right, benefit, or contract of employment, expressed or implied.

(ECF No. 5, Ward Decl. Ex. B, at 3–5 (emphasis added).) According to his employment records, Trimble did not elect not to be bound by the DRP or the Chosen State Law provision and never attempted to do so. (Ward Decl. ¶ 27.)

Trimble had also previously signed Driver AAs in 2022 and 2023, in which he agreed to be bound by an earlier version of the DRP, “Schneider's Mediation & Arbitration Policy,” or “SMAP,” which was effective from November 30, 2021 until March 31, 2024. (Ward Decl. ¶ 28.) Trimble did not opt out of the SMAP or its Chosen State Law provision, either. (Id.)

On April 17, 2025, Plaintiffs filed a putative class action in San Bernardino Superior Court. (Compl.) They assert a cause of action under California Labor Code sections 1194, 1197, and 1197.1 for unpaid minimum wages, a cause of action under California Labor Code sections 201 and 202 for wages not timely paid upon termination, a cause of action under California Labor Code section 226(a) for non-compliant wage statements, a cause of action under California Labor Code section 2802 for failure to reimburse business expenses, and a cause of action under California Business and Professions Code section 17200. (Id. ¶¶ 32–58.) Plaintiffs seek to represent a class of similarly situated individuals who worked for Defendant as drivers in California during the four years prior to the filing of the Complaint. (Id. ¶ 14.) Having removed the action to this Court, Defendant now moves to dismiss the class allegations, compel arbitration of Trimble's individual claims, and stay all proceedings until that arbitration concludes. (P&A 7.) While the parties acknowledge that similar disputes exist regarding the arbitrability of the claims raised in this case by the other named plaintiff, Jeffrey Kissinger (see ECF No. 16), the instant Motion addresses only the claims raised by Trimble.

IV. APPLICABLE LAW

A. The Federal Arbitration Act Does Not Govern This Dispute

As an initial matter, the Court must resolve two questions regarding the law applicable to this dispute. First, the parties agree that the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1–9, does not apply, as section 1 of the FAA exempts Trimble's claims from the FAA's coverage. (P&A 11; Opp'n 8.) The parties are correct. Section 1 of the FAA “exempts from the Act's coverage all ‘contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.’ ” Romero v. Watkins & Shepard Trucking, Inc. (“Romero III”),⁵ 9 F.4th 1097, 1100 (9th Cir. 2021) (quoting 9 U.S.C. § 1). As the Ninth Circuit held, in reviewing claims brought by another truck driver employed by Defendant and one of its related companies under a previous version of the DRP, even “a truck driver who did not himself cross state lines but delivered goods that had once crossed state lines[ ] fell within ‘any other class of workers engaged in interstate commerce,’ thereby sweeping his contract within the scope of the exemption.” Romero III, 9 F.4th at 1100. Here, of course, Trimble routinely did cross state lines, making the applicability of the exemption even more clear. (Ward Decl. ¶ 21.)

B. Under California Choice-of-Law Rules, the Court Applies Nevada Law

The parties do not agree, however, on the answer to the next question: if the FAA does not govern this dispute, what law does? Defendant argues that Nevada law controls, as the DRP contains a choice-of-law clause providing that, in the event the FAA does not govern a dispute covered by the DRP, the law of Nevada will. (P&A 11.) Plaintiffs, on the other hand, argue that the Court should apply California law. (Opp'n 7.) Thus, the Court must resolve this preliminary choice-of-law question.

“A federal court sitting in diversity ordinarily must follow the choice-of-law rules of the State in which it sits.” Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Tex., 571 U.S. 49, 65 (2013). As this case was removed to this Court under the Class Action Fairness Act (see NOR 2), which is a form of diversity jurisdiction, 28 U.S.C. § 1332(d)(2), the Court will look to California choice-of-law rules. Romero v. Watkins & Shepard Trucking, Inc. (“Romero I”), No. ED CV 19-2158-PSG-KKx, 2020 WL 5775180, at *2 (C.D. Cal. July 10, 2020), aff'd, No. 20-55768, 2021 WL 3675074 (9th Cir. Aug. 19, 2021), and aff'd, 9 F.4th 1097 (9th Cir. 2021). The parties agree that California choice-of-law rules apply to the determination of this preliminary question. (P&A 11-12; Opp'n 18.)

California generally favors enforcement of choice-of-law clauses in contracts. Nedlloyd Lines B.V. v. Superior Ct. (“Nedlloyd”), 3 Cal. 4th 459, 464 (1992). In examining such clauses, courts must first determine whether: (1) the chosen state has a substantial relationship to the parties or their transaction or (2) there is some other reasonable basis for the parties' choice of law. Id. at 466. If one of these is satisfied, “the court must next determine whether the chosen state's law is contrary to a fundamental policy of California.” Id. (emphasis in original). If no such conflict exists, the choice-of-law provision will be enforced. Id. If “there is a fundamental conflict with California law, the court must then determine whether California has a ‘materially greater interest than the chosen state in the determination of the particular issue.’ ” Id. (quoting Restatement Second of Conflict of Laws § 187(2)).

The DRP includes several provisions relevant to a choice-of-law analysis. Section 18.0 of the DRP reads in part as follows:

18.0 WHAT LAW GOVERNS THE DRP?

This DRP and Covered Disputes, any arbitration proceedings held pursuant to this DRP, and any court or other proceedings concerning arbitration under this DRP are expressly subject to and governed by the FAA․ To the extent that state law is applicable under the FAA and/or in the event a court of competent jurisdiction holds or decides that this DRP and/or any Covered Disputes are not subject to, governed by or enforceable under the FAA, then the Chosen State Law will be the applicable state law and the State Arbitration Act will govern to that extent instead. By becoming bound by this DRP, the Parties agree that they want the State Arbitration Act to apply in the foregoing event. Unless it otherwise already is the Chosen State Law under this DRP, the Default State Law, including the Default Arbitration Act, will only be the applicable state law as to this DRP if the Covered Individual properly elects to not be bound by this Chosen State Law provision pursuant to Section 19.0, below.

(Ward Decl. Ex. A 10.)

The DRP defines “Chosen State Law” as “the laws of the State of Nevada, under which [Defendant] is organized and exists, including the State Arbitration Act, without application of any conflict of laws principles.” (Ward Decl. Ex. A 2.) “State Arbitration Act” is defined to mean “Nevada's Uniform Arbitration Act of 2000, Nevada Revised Statutes section 38.206 et seq.” (Id.) “Default State Law” is defined to mean “the laws of the State in which the Covered Individual becomes bound by this DRP, including that State's Default Arbitration Act.” (Id.)

Plaintiffs do not argue that the “Chosen State Law” should be disregarded here in favor of the “Default State Law.” In fact, in Trimble's case, the two appear to be the same, as Trimble signed the 2024 Driver AAs in Nevada. (Ward Decl. at ¶¶ 18–19.) Nor do they contend that Nevada does not have a “substantial relationship to the parties.” Nedlloyd, 3 Cal. 4th at 466. As Defendant is incorporated in Nevada (NOR ¶ 16), there is no doubt that the required relationship exists, as this is sufficient in itself. Nedlloyd, 3 Cal. 4th at 467. Plaintiffs contest only the second part of the test set forth in Nedlloyd—that is, they argue that Nevada law is contrary to a fundamental policy of California, which they assert has a materially greater interest than Nevada in the outcome of one or more issues in this case. (Opp'n 18–21.)

While the initial burden of demonstrating that there is a reasonable basis for the parties' choice of law may lie with the proponent of the choice-of-law provision, once that has been established the burden lies with “the other side [to] establish both that the chosen law is contrary to a fundamental policy of California and that California has a materially greater interest in the determination of the particular issue.” 1-800-Got Junk? LLC v. Superior Ct., 189 Cal. App. 4th 500, 515 (2010) (italics in original) (quoting Washington Mutual Bank v. Superior Court, 24 Cal. 4th 906, 917 (2001)). Plaintiffs have not satisfied that burden.

Plaintiffs do not identify any ways in which Nevada law is contrary to a fundamental policy of California. They simply list four areas in which the law in California is different than the law in Nevada.⁶ (Opp'n 19.) That cannot be sufficient, or California courts would rarely, if ever, apply any law other than California's under any choice-of-law analysis. The four identified differences are:

1) The California statute of limitations is three years (four for Section 17200 claims), while Nevada law “only allows employees to recover unpaid wages for two years”;

2) California prohibits the mandatory arbitration of wage claims (through California Labor Code section 229), and Nevada does not;

3) California deputizes private citizens to seek representative civil penalties for public law enforcement purposes on behalf of the State against employers who fail to comply with statutory wage and hour protections (through California Labor Code section 2698), and Nevada does not;

4) California authorizes private pursuit of public injunctive relief enjoining statutory violations for the benefit of the general public, regardless of whether the plaintiff employee is personally threatened with future violations, and Nevada does not.

(Id.)

As to three of these four differences, Plaintiffs do nothing more than assert—in a single sentence, with no further analysis—that the two states' laws differ. (Id.) Plaintiffs do not explain how any of the identified differences involve a fundamental policy of California; nor do they explain how some of these differences are even relevant to the case at issue. The Complaint does not seek public injunctive relief enjoining statutory violations for the benefit of the general public, or include a claim for relief under California Labor Code section 2698 (see generally Compl.), so it is unclear how any differences between the two states' laws on these points might impact the outcome of this case. As to the statute of limitations, the “general public policy interest [is to] prevent[ ] the prosecution of stale claims,” which would not be contravened by applying a slightly shorter statutory period. Hatfield v. Halifax PLC, 564 F.3d 1177, 1183 (9th Cir. 2009). Further, California courts generally “have permitted contracting parties to modify the length of the otherwise applicable California statute of limitations, whether the contract has extended or shortened the limitations period.” Hambrecht & Quist Venture Partners v. Am. Med. Internat., Inc., 38 Cal. App. 4th 1532, 1547 (1995).

The only one of these four listed differences for which Plaintiffs provide anything more than the one conclusory reference is with respect to the mandatory arbitration of wage claims. Plaintiffs point to California Labor Code section 229 (“Section 229”), which prohibits the mandatory arbitration of wage claims, something they claim that Nevada law does not do.⁷ (Opp'n 19.) While providing some additional discussion of this issue, however, Plaintiffs still do not address the question of whether this code section reflects a fundamental public policy of California. Plaintiffs simply argue (in a different context) that, since the FAA does not govern Trimble's claims, Section 229 prevents his claims for minimum wage and waiting time penalties from being compelled to arbitration. (Opp'n 9–10.) This begs the question. What impact Section 229 might have on his claims if California law applied does not answer the question of whether California law does or should apply. There are more than two possible choices here. If Nevada law governs, then the fact that the FAA does not apply does not mean that Section 229 prohibits arbitration of these claims. See Blackman v. Aaron's Co. Inc., No. 223CV01248APGMDC, 2024 WL 1053152, at *2 (D. Nev. Feb. 14, 2024) (compelling arbitration of discrimination claims brought by delivery driver exempt under Section 1 of the FAA and stating that, “[e]ven if [the plaintiff] is exempt under the FAA, the arbitration agreement would still be enforceable under Nevada law”). Nor is the fact that California regularly extends its “labor protections to non-residents who perform work in California” (Opp'n 10) controlling. It is not the fact that Trimble is a non-resident that may make Section 229 inapplicable, but rather the fact that he contractually agreed to be bound by Nevada law. The question at issue is whether the policy behind Section 229 is so fundamental to California that it should prevent enforcement of an otherwise valid choice-of-law clause in a contractual agreement. And it is this question that Plaintiffs have failed to analyze in any detail.

The California Supreme Court has stated that:

there are no “bright-line rules for determining what is and what is not contrary to a fundamental policy of California. Comment g to Restatement section 187 itself says that ‘[n]o detailed statement can be made of the situations where a “fundamental” policy ․ will be found to exist.’ ” (Discover Bank v. Superior Court (2005) 134 Cal. App. 4th 886, 893-894, 36 Cal. Rptr. 3d 456.) Likewise, although Nedlloyd observes that a statute, constitution, or principle of contractual unconscionability may establish a fundamental policy, it states no requirement that a fundamental policy must be established by any one of these vehicles. (Nedlloyd, supra, 3 Cal.4th at p. 471, 11 Cal.Rptr.2d 330, 834 P.2d 1148.)

Pitzer Coll. v. Indian Harbor Ins. Co., 8 Cal. 5th 93, 102 (2019) (emphasis in original). Thus, while it is certainly conceivable that Section 229 might represent a fundamental public policy of the State of California, simply pointing out that the statute exists is not sufficient to demonstrate what policy the statute represents or how fundamental it might be, either in the abstract or in the specific circumstances of this case. As Plaintiffs have pointed to no authority finding that Section 229 represents this type of fundamental public policy, they have not carried their burden under California's choice-of-law rules to overcome the general policy in favor of the enforcement of choice-of-law clauses.⁸ Washington Mutual Bank, 24 Cal. 4th at 917.

In any event, even if one of these four identified differences between the two states' laws could be considered contrary to California's fundamental public policy, California does not have a “materially greater interest” than Nevada in the determination of any of these issues in the particular context of Trimble's claims. To make that determination, courts “must analyze the following factors: (1) the place of contracting; (2) the place of negotiation of the contract; (3) the place of performance; (4) the location of the subject matter of the contract; and, (5) the domicile, residence, nationality, place of incorporation, and place of business of the parties.” Ruiz v. Affinity Logistics Corp., 667 F.3d 1318, 1324 (9th Cir. 2012) (citing 1–800–Got Junk? LLC, 116 Cal. Rptr. 3d at 932 n. 10). Here, the “place of contracting” was Nevada; no evidence has been presented that the “place of negotiation” was California; the “place of performance” was throughout the Western United States, including both Nevada and California, as well as many other states; and the “location of the subject matter of the contract” was the same as the “place of performance.” As to the final factor, the location of the parties, Defendant is incorporated in Nevada while Plaintiff lives in Oklahoma. While their place of business includes California, it also includes Nevada and many other states. Thus, while California undoubtedly has some interest in the subject matter of this case, Plaintiffs have failed to show that that interest is materially greater than that of Nevada, where Defendant in incorporated and where the contract was signed. Accordingly, as Plaintiffs have failed to show either that Nevada law is contrary to a fundamental policy of California or that California has a materially greater interest than Nevada in the determination of any issue raised in this case, both of which Plaintiffs bear the burden of demonstrating, the Court finds that, under California's choice-of-law rules, the DRP's choice-of-law clause should be enforced. To the extent any state's law applies, therefore, it is the law of Nevada that governs questions regarding the formation, interpretation, and enforcement of the DRP.

The Court notes that it is not the first to reach this decision, as in at least two previous cases in this district and one appeal to the Ninth Circuit, in which truck drivers employed by Defendant or a related company have been compelled to arbitrate claims under the SMAP, an earlier version of the DRP, courts have found that, under California's choice-of-law rules, the SMAP's choice of Nevada law should be enforced. Romero II, 2021 WL 3675074, at *1; Romero I, 2020 WL 5775180, at *9; Naler v. Schneider Nat'l Carriers, Inc., No. SACV2101019CJCDFMX, 2021 WL 8269177, at *5 (C.D. Cal. Nov. 5, 2021).

V. LEGAL STANDARD

Nevada has adopted the “Uniform Arbitration Act of 2000,” or “UAA.” Nev. Rev. Stat. §§ 38.206–38.248; U.S. Home Corp. v. Michael Ballesteros Tr., 415 P.3d 32, 36 (Nev. 2018). According to the Nevada Supreme Court, “the purpose of the UAA ‘is to prevent courts from intervening when a provision for arbitration has been contractually provided by the parties.’ ” Kindred v. Second Jud. Dist. Ct. ex rel. Cnty. of Washoe, 996 P.2d 903, 907 (Nev. 2000). The UAA provides that, “[o]n motion of a person showing an agreement to arbitrate ․ [i]f the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.” Nev. Rev. Stat. § 38.221. “Nevada has a ‘fundamental policy favoring the enforceability of arbitration agreements,’ and [the Nevada Supreme Court] will ‘liberally construe arbitration clauses in favor of granting arbitration.’ ” Uber Techs., Inc. v. Royz, 517 P.3d 905, 908 (Nev. 2022) (quoting Tallman v. Eighth Judicial Dist. Court, 359 P.3d 113, 118–19 (Nev. 2015)).

Under Nevada law, “[t]o compel arbitration, a moving party must establish that there is an enforceable agreement to arbitrate and that the dispute fits within the scope of the arbitration agreement.” SR Constr., Inc. v. Peek Bros. Constr., Inc., 510 P.3d 794, 798 (Nev. 2022). “There is a strong presumption in favor of arbitrating a dispute where a valid and enforceable arbitration agreement exists between the parties.” Id. (citing AT&T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 650 (1986)). “Nevada courts resolve all doubts concerning the arbitrability of the subject matter of a dispute in favor of arbitration.” Int'l Ass'n of Firefighters, Local No. 1285 v. City of Las Vegas (“Local No. 1285”), 929 P.2d 954, 957 (Nev. 1996) (quoting Int'l Assoc. Firefighters v. City of Las Vegas, 764 P.2d 478, 480 (Nev. 1988)).

VI. DISCUSSION

Defendant asserts that the DRP is an enforceable contract and seeks to enforce two of its provisions: the requirement that Trimble arbitrate his claims and the prohibition on bringing or participating in class actions. (P&A 7.)

The DRP is a standalone document, which broadly requires that parties to the agreement resolve disputes either by voluntary mediation or mandatory binding individual arbitration. (See ECF No. 18-4, Ward Decl. Ex. A, at 2.) Specifically, Section 1.0 of the DRP provides that, “for any issues that are Covered Disputes (as defined below) under this DRP ․ mandatory final and binding individual arbitration pursuant to the terms of this DRP is the sole and exclusive remedy for their formal resolution, except as otherwise expressly provided below.” (Id.) Section 4.0 provides that Covered Disputes:

must only be heard and decided by the arbitrator in accordance with the provisions of this DRP. Except as provided in Section 5.0, Covered Disputes include those arising out of or related to (i) a Covered Individual's employment with Company, applying for or being denied such employment, the performance and/or termination of such employment, and/or any of the terms, conditions, or benefits of such employment (including any wage and hour issues), [and] (ii) issues of arbitrability, such as the formation, interpretation, applicability or enforceability of this DRP ․

(Id. at 5–6.)

Section 12.0 of the DRP bars the parties from bringing or participating in a “Representative Action.” (Id. at 7.) A Representative Action is defined as “any action or proceeding, other than a PAGA Representative Action, brought by any person or entity (whether or not bound by this DRP) seeking to be a representative on behalf or for the benefit of (in whole or in part) any Covered Individuals, Company, and/or any government entity, including any type of (i) class action or arbitration ․” (Id. at 5.)

A. The Parties Entered into an Enforceable Contract, and Plaintiffs Do Not Argue Otherwise

Under Nevada law, “[b]asic contract principles require, for an enforceable contract, an offer and acceptance, meeting of the minds, and consideration.” May v. Anderson, 119 P.3d 1254, 1257 (Nev. 2005). Plaintiffs do not deny the existence of the DRP, and—crucially—do not contest the formation of a contract between Trimble and Defendant. (See generally Opp'n.) Instead, they argue only that the DRP should not be enforced because it is unconscionable, both in its entirety and as to certain specific provisions. (Opp'n 21–28.) There is thus no genuine dispute that the parties entered into an arbitration agreement.⁹

B. The DRP Contains a Valid, Enforceable Delegation Clause

While Plaintiffs argue the Court should find that the entire DRP is unconscionable, and therefore unenforceable, Defendant argues that the question of whether the entire DRP is unconscionable is not a matter for the Court to decide, as the DRP contains a delegation clause. (Reply 13.) A delegation clause “is ‘an agreement to arbitrate threshold issues concerning the arbitration agreement ․ such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy.’ ” RUAG Ammotec GmbH v. Archon Firearms, Inc., 538 P.3d 428, 433 (Nev. 2023) (emphasis in original) (quoting Royz, 517 P.3d at 909). “When the parties have ‘clearly and unmistakably’ delegated questions regarding arbitrability to the arbitrator, the court need not conduct further inquiries beyond the existence of the arbitration agreement.” Fli-Lo Falcon, LLC v. Amazon.com, Inc., 97 F.4th 1190, 1194 (9th Cir. 2024). Threshold questions delegated to an arbitrator under an enforceable delegation clause include the question of whether the agreement to arbitrate is enforceable at all, and if so, whether a particular controversy falls within its scope. Id.

Here, Section 4.0 of the DRP mandates arbitration of Covered Disputes, which specifically include “issues of arbitrability, such as the formation, interpretation, applicability or enforceability of this DRP.” (Ward Decl. Ex. A 6.) Thus, according to Defendant, the only question left to the Court, having found that the parties entered into an agreement to arbitrate, is whether the delegation clause is valid and enforceable—and not whether the agreement as a whole is valid and enforceable. (P&A 19–20.) In response, Plaintiffs argue that the delegation clause cannot be enforced, as (1) “it is not enforceable under California law ․ because California law does not give delegation clauses special treatment,” (2) “it is not clear and unmistakable,” and (3) “it is unconscionable.” (Opp'n 13.)

As discussed above, Nevada law, not California law, governs this case—so the question that Plaintiffs should have addressed is whether this delegation clause is enforceable under Nevada law. Defendant argues that, since “the DRP's delegation clause ‘clearly and unmistakably’ reserves any issue of arbitrability to the arbitrator,” Nevada law requires that the issue of arbitrability be submitted to arbitration. (P&A 19.) In support of this argument, Defendant cites three cases from the Nevada Supreme Court, two published and one unpublished: RUAG Ammotec GmbH, 538 P.3d 428; Royz, 517 P.3d 905; and Rasier, LLC v. Boykin, 543 P.3d 153, 2023 WL 5497052, *1 (Nev. Aug. 24, 2023).

None of these cases is directly on point, however, as all three involve application of the FAA, and the Nevada Supreme Court expressly states that its analysis is governed by “Supreme Court precedent that interprets the FAA.” RUAG Ammotec GmbH, 538 P.3d at 432. Thus, it is under United States Supreme Court case law interpreting the FAA that, “[w]here threshold questions of arbitrability are delegated to an arbitrator, ‘a court possesses no power to decide the arbitrability issue.’ ” Id. (quoting Henry Schein, Inc. v. Archer &t White Sales, Inc., 139 S. Ct. 524, 529 (2019)). Defendant has pointed to no Nevada case reaching the same holding under state law when the FAA does not apply.

Nonetheless, Nevada courts will uphold a delegation clause when a contract's “provisions clearly and unmistakably provide that an arbitrator is to decide any dispute over interpretation and application of the [contract], including the arbitrability of a dispute.” Local No. 1285, 929 P.2d at 957; see also Half Dental Franchise, LLC v. Houchin, 2017 WL 3326425, at *2, 403 P.3d 685 (Nev. 2017) (TABLE) (finding “that the parties ‘clearly and unmistakably’ intended for the issue of arbitrability to be decided by the arbitrator, rather than the court” and reversing district court's order vacating arbitration award). Here, the DRP “clearly and unmistakably” delegates “issues of arbitrability, such as the formation, interpretation, applicability or enforceability of this DRP” to the arbitrator. (Ward Decl. Ex. A 6.) Nevada courts would therefore uphold this delegation clause.

Plaintiffs' arguments that the delegation clause is not “clear and unmistakable” are unconvincing. The delegation clause is found in the arbitration agreement itself, not some other document. It is one of several separately enumerated items in the section under the heading, “WHAT TYPES OF DISPUTES ARE COVERED BY THE DRP?” (Id. at 5.) And the fact that the DRP explicitly exempts certain “Excluded Disputes” from arbitration does not create uncertainty or confusion about the delegation clause. See Mohamed v. Uber Techs., Inc., 848 F.3d 1201, 1209 (9th Cir. 2016) (finding that “[t]he delegation provisions clearly and unmistakably delegated the question of arbitrability to the arbitrator for all claims except challenges to the class, collective, and representative action waivers” and reversing district court's decision not to enforce the delegation clauses).

Plaintiffs' arguments that the delegation clause is unconscionable likewise fail. Nevada courts recognize unconscionability as a reason not to “enforce a contract, or any clause of a contract, including an arbitration clause.” Burch v. Second Jud. Dist. Ct. of State ex rel. Cnty. of Washoe, 49 P.3d 647, 649 (Nev. 2002). “Nevada law requires both procedural and substantive unconscionability to invalidate a contract as unconscionable.” U.S. Home Corp., 415 P.3d at 40. Nevada courts, like California courts, view these factors together, such that “less evidence of substantive unconscionability is required in cases involving great procedural unconscionability,” and vice versa. D.R. Horton, Inc. v. Green, 96 P.3d 1159, 1162 (Nev. 2004), overruled on other grounds by U.S. Home Corp., 415 P.3d 32. Here, Plaintiffs assert that both types of unconscionability were present.¹⁰

Plaintiffs raise three arguments with respect to the claimed procedural unconscionability of the delegation clause, the first of which is an unclear sentence consisting of several buzz words strung together into a not-quite-grammatically correct whole, reproduced here verbatim: “First, key terms of the agreement, including the delegation clause contract of adhesion included in a prolix printed form imposed on a take-it-or-leave-it basis as a condition of employment.” (Opp'n 16.) This statement is fleshed out only by one subsequent sentence, which states that “Trimble was required to sign the Acknowledgement to receive work.” (Id. at 16–17.) Taken together, this appears to be an argument that Trimble was forced to agree to the delegation clause as a condition of continuing to work for Defendant.

That was clearly not the case. Trimble could have opted out of the DRP entirely, including its delegation clause. As stated both in the Driver AAs and in the DRP itself, agreeing to the DRP was not required to maintain employment. (Ward Decl. Ex. A § 19.0, Ex. B 3.) It may be true that he was required to sign the Driver AAs acknowledging, among other things, that he had read the DRP in order to maintain employment (see Ward Decl. ¶ 24), but acknowledging that one has read the DRP and agreeing to be bound by it are not the same thing. Trimble could have both signed the Driver AAs and opted out of the DRP. (Id.) The DRP informs employees that they “should feel free” to opt out “without fear of retaliation or reprisal by Company, which is strictly prohibited.” (Ward Decl. Ex. A § 19.0.) Opting out could be accomplished by email or mail. (Id.) Thus, “while Defendants had the superior bargaining power in this situation because they drafted and imposed the [DRP], it was not procedurally unconscionable because Plaintiff could have opted out.” Romero I, 2020 WL 5775180, at *5; see also Naler, 2021 WL 8269177, at *4 (finding that SMAP, precursor of DRP, was not procedurally unconscionable on the grounds that consent to arbitration was condition of employment because plaintiff “was clearly permitted to opt out of the SMAP”). An arbitration agreement that allows employees “a meaningful choice not to participate in the program” by “mailing in a simple one-page form” is not an unconscionable contract of adhesion. Cir. City Stores, Inc. v. Ahmed, 283 F.3d 1198, 1199 (9th Cir. 2002).

Plaintiffs' second argument in support of the unconscionability of the delegation clause is that this clause is “hidden within [a] long wall of text.” (Opp'n 17.) They point out that Section 4.0 of the DRP is “labeled ‘WHAT TYPES OF DISPUTES ARE COVERED BY THE DRP?,’ ” but argue that a “lay reader would be surprised” to discover that this section “addressed the arbitrator's jurisdiction” instead. (Id.) Though it is not incorrect to say that a list of the types of disputes that are subject to arbitration defines the arbitrator's jurisdiction, it probably would not occur to the average lay reader reviewing this section to characterize it that way. Instead, a lay reader wondering whether a particular type of dispute was covered by the DRP would indeed look to the section clearly labeled, in bright orange, all-caps font larger than the surrounding text, “WHAT TYPES OF DISPUTES ARE COVERED BY THE DRP?” (Ward Decl. Ex. A 5.) Such a reader would then see that the first sentence under this heading clearly states that “Covered Disputes ․ must only be heard and decided by the arbitrator,” and that this sentence is immediately followed by a list of what “Covered Disputes include.” (Id.) This list is comprised of seven separately enumerated types of Covered Disputes subject to arbitration, the second of which is “(ii) issues of arbitrability, such as the formation, interpretation, applicability or enforceability of this DRP.” (Id.) The DRP as a whole is not long, contains clear headings, and is “written in clear language,” Naler, 2021 WL 8269177, at *4 n.6, and in that context the delegation clause clearly communicates to anyone who reads the DRP that threshold issues of arbitrability, including issues regarding the enforceability of the DRP itself, are subject to arbitration.

Plaintiffs' third argument in support of the unconscionability of the delegation clause is that the DRP was not actually provided to Trimble—rather, the document he did sign, the Driver AAs, simply told him where he could find it. (Opp'n 17.) For this point, Plaintiffs cite no authority under any law, let alone that of Nevada. (See id.) However, “incorporation by reference, without more, does not affect the finding of procedural unconscionability.” Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1262 (9th Cir. 2017) (reversing district court's decision not to uphold dispute resolution agreement set forth in document incorporated by reference in one-page summary document signed by plaintiff, and rejecting argument that failure to provide copy of the referenced agreement with the one-page summary document gave rise to procedural unconscionability). In other contexts, courts have held that a delegation clause located not in the primary contract at issue but in some ancillary document incorporated by reference, such as the rules of the American Arbitration Association (“AAA”), nonetheless “constitutes ‘clear and unmistakable’ evidence that the parties intended to delegate the arbitrability question to an arbitrator.” Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015). “[A]lthough the facts in Brennan were limited to sophisticated parties,” courts have held that the holding “applies similarly to non-sophisticated parties.” E.g., Nunn v. Hyundai Motor Am., No. 8:25-CV-01091-JVS-KES, 2025 WL 2683990, at *5 (C.D. Cal. Aug. 28, 2025), appeal dismissed, No. 25-6065, 2025 WL 3896928 (9th Cir. Oct. 15, 2025). Further, in signing the Driver AAs, Trimble represented that he had “been able to read and review a copy of the current version of” the DRP. (Ward Decl. Ex. B 3.) Thus, the fact that the delegation clause was in the DRP itself, rather than in the summary of the DRP contained in the Driver AAs, does not render the delegation clause unconscionable.

Since both procedural and substantive unconscionability must be present, and as the Court has found that the delegation clause was not procedurally unconscionable, there is no need to address the question of substantive unconscionability. U.S. Home Corp., 415 P.3d at 42 (“We do not address substantive unconscionability, since both must exist to invalidate a contract as unconscionable.”); Romero I, 2020 WL 5775180, at *6 (“Because Plaintiff does not demonstrate that the agreement is procedurally unconscionable, the Court does not address whether it was substantively unconscionable.”). However, as the only argument raised by Plaintiffs with respect to the claimed substantive unconscionability of the delegation clause is entirely lacking in merit, the Court will address it.

Plaintiffs' sole argument as to why the delegation clause is substantively unconscionable is that it is “entirely one-sided.” (Opp'n 17.) On its face, this claim is self-evidently untrue. The delegation clause simply states that all questions of arbitrability are referred to the arbitrator, regardless of which party raises those questions. This could include disputes raised by either employees or employer, as some of both types of claims are subject to arbitration. For the delegation clause to be one-sided, therefore, it would have to provide that questions of arbitrability raised by employees go to the arbitrator while questions of arbitrability raised by the employer go to the court, or vice versa. Plaintiffs do not make this argument, nor could they. Rather, the two paragraphs of their brief that follow the assertion that the delegation clause is substantively unconscionable because it is one-sided speak not to the purported one-sidedness of the delegation clause, but of the entire arbitration agreement. (Opp'n 17–18.) Thus, Plaintiffs cite the carve-out for mass arbitrations,¹¹ under which Defendant may opt out of arbitration in certain circumstances. (Ward Decl. Ex. A 8–9.) As characterized by Plaintiffs, this alleged disparity—sometimes Defendant can opt out but Plaintiffs never can!—purportedly makes the agreement one-sided and therefore unconscionable. Plaintiffs do not explain how this might make the delegation clause unconscionable, however. See Bielski v. Coinbase, Inc., 87 F.4th 1003, 1009–10 (9th Cir. 2023) (“First, a party resisting arbitration must mention that it is challenging the delegation provision and make specific arguments attacking the provision in its opposition to a motion to compel arbitration. Second, a party may challenge the delegation provision and the arbitration agreement for the same reasons, so long as the party specifies why each reason renders the specific provision unenforceable.” (emphasis added)). The question of whether something makes the agreement unconscionable is—unless the delegation clause is shown to be unconscionable—a question for the arbitrator to decide.

Since Plaintiffs have failed to show that the delegation clause is either procedurally or substantively unconscionable, therefore, all other threshold questions regarding the arbitrability of Trimble's claims must be left for the arbitrator to decide.

C. The DRP's Class Action Waiver Is Enforceable

Finally, Plaintiffs argue that, since the FAA does not apply to this case, the California Supreme Court's holding in Gentry v. Superior Court, 42 Cal. 4th 443 (2007), means that the DRP's class action waiver is “unenforceable under California law.” (Opp'n 13.) Plaintiffs do not acknowledge the possibility that Nevada law might govern this question if the FAA does not apply and do not argue that the class action waiver would be unenforceable under Nevada law. Defendant argues both that the class action waiver is enforceable under Nevada law and that it would be enforceable under California law if California law applied.¹² (See Reply 8-11.)

As it happens, the Nevada Supreme Court has addressed the validity of class action waivers in arbitration agreements more than once. On March 31, 2011, the Supreme Court of Nevada issued its opinion in the case of Picardi v. Eighth Jud. Dist. Ct. of State, ex rel. Cnty. of Clark, 251 P.3d 723 (Nev. 2011). This case involved a class action brought by purchasers of a new car against the car dealership that had sold them the car. Id. at 724. The court granted a petition for a writ of mandamus directing the district court to vacate its order compelling arbitration of the car purchasers' individual claims, on the grounds that “the class action waiver in the arbitration agreement violate[d] public policy” and was therefore unenforceable. Id. 728. Specifically, the court considered “whether an arbitration agreement is unenforceable because it is unconscionable or contrary to public policy when it requires consumers to waive their rights to participate in any form of class action litigation to pursue common claims that they may have concerning a retail installment sales contract.” Id. at 724 (emphasis added). The court found that “Nevada public policy favors allowing consumer class action proceedings when the class members present common legal or factual questions but their individual claims may be too small to be economically litigated on an individual basis,” and concluded that “a clause in a contract that prohibits a consumer from pursuing claims through a class action, whether in court or through arbitration, violates Nevada public policy.” Id. (emphasis added).

However, one month after the issuance of the Picardi decision, the United States Supreme Court issued its decision in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011). In Concepcion, the Court held that the FAA preempts state laws that would invalidate class action waivers in arbitration agreements as against state public policy. Id. at 352. Thus, the Supreme Court of Nevada abrogated its holding in Picardi in the subsequent case of Tallman, 359 P.3d 113. In Tallman, the court was faced with two purported class actions for statutory overtime and minimum wage claims filed by three individuals against a former employer, in which the district court had entered orders compelling individual arbitration and denying motions for class certification. Id. at 717–18. The petitioners sought a writ of mandamus, and the court considered the petitioners' request in part because the Picardi decision “to invalidate class action waivers in consumer arbitration agreements” conflicted with Concepcion. Tallman, 359 P.3d at 719–20. The court noted that the statutory overtime and minimum wage claims asserted by the petitioners were “relatively small-dollar claims” when brought individually, and that the petitioners, relying on the California Supreme Court's Gentry opinion, had urged the court “to invalidate the class action waiver in the ․ arbitration agreement on the grounds it violate[d] substantive state law by depriving them of the means to vindicate their statutory overtime and minimum wage claim.” Id. at 722. Ultimately, the Nevada Supreme Court held that, in cases governed by the FAA, “Concepcion does not permit a state court to invalidate a class arbitration waiver in a transaction involving commerce on the basis that individual arbitration hampers effective vindication of an employee's state-law-based overtime and minimum wage claims.” Id. at 725.

Since issuing the Tallman decision, it does not appear that the Nevada Supreme Court has addressed the issue of whether a class action waiver in an arbitration agreement governed not by the FAA but by Nevada law would be, as applied to minimum wage claims, unenforceable as against Nevada public policy. However, the United States District Court for the District of Nevada, applying Nevada law in such a situation, has predicted ¹³ that the Nevada Supreme Court, “if confronted with the issue ․ would hold that even where the FAA does not apply, a class or collective action waiver in an arbitration agreement does not render it unenforceable under Nevada law as against public policy in a minimum wage dispute.” Reno, 2020 WL 5606897, at *4. The Reno court pointed to “the following in a footnote in Tallman: ‘While a person's right to minimum wage is unwaivable, Nev. Const. art. 15, § 16, he may validly enter into an arbitration agreement that sets “not only the situs of suit but also the procedure to be used in resolving” ’ it.” Id. at *4. The Reno court explained its reasoning as follows:

Although not express, it appears the Supreme Court of Nevada signaled that it would not hold that an arbitration agreement that precludes class or collective actions for the recovery of minimum wages would be against Nevada public policy. Rather, it appears that the court is more inclined to uphold Nevada's public policy of “encourag[ing] arbitration and liberally constru[ing] arbitration clauses in favor of granting arbitration.”

Id. (quoting Tallman, 359 P.3d at 119). The court therefore granted the defendants' motions to compel arbitration. Reno, 2020 WL 5606897, at *6.

The Reno court's analysis is persuasive. Whatever the Nevada Supreme Court might hold with respect to class action waivers in arbitration agreements for consumer purchases governed by Nevada law, it appears that that court would not find such waivers to be contrary to public policy in the employment context. On other issues involving arbitration contracts, that court has indicated that consumer contracts and employment contracts are not the same. See Kindred, 996 P.2d at 907 (applying the UAA in denying writ relief from district court's order compelling arbitration of employee stock broker's federal statutory claims and stating that “[w]e have never applied the adhesion contract doctrine to employment cases”). The Ninth Circuit seems to agree, having found the SMAP, the previous version of the DRP, enforceable under Nevada law, stating:

Applying Nevada law, the Arbitration Policy is enforceable. [Defendant] questions whether Romero preserved his argument that it violates Nevada public policy. Even if he did, it fails on the merits. The Nevada Supreme Court has held that “public policy favors allowing consumer class action proceedings when the class members present common legal or factual questions but their individual claims may be too small to be economically litigated on an individual basis.” Picardi v. Eighth Jud. Dist. Ct. of State, ex rel. Cty. of Clark, 127 Nev. 106, 108, 251 P.3d 723 (2011) (emphasis added). The Court framed its holding narrowly on the fact that this was a low dollar consumer claim,[ ] stating, “The class action mechanism is important in cases involving small claims consumer cases because ‘[t]he realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.’ ” Id. at 113-14, 251 P.3d 723 (citation omitted). Romero identifies no case expanding Picardi beyond small consumer class actions, and thus, fails to show the Arbitration Policy's waiver violates Nevada law.

Romero II, 2021 WL 3675074, at *2. Thus, the Court finds that the class action waiver in the DRP is not unenforceable as against public policy under Nevada law.

If Plaintiffs had addressed the issue of whether the class action waiver was enforceable under Nevada law, they might have argued that, were the Nevada Supreme Court to address this question, it would adopt a test similar to that in Gentry, rather than an across-the-board rule. Nevada courts often refer to California law. See, e.g., Burch, 49 P.3d at 650 (citing Armendariz v. Foundation Health Psychcare, 24 Cal. 4th 83 (2002), for contract unconscionability standards). However, Plaintiffs have not demonstrated that the DRP's class action waiver would be unenforceable even under Gentry. The Ninth Circuit has already rejected that argument in reviewing the SMAP, a previous version of the DRP. Romero II, 2021 WL 3675074, at *2. In Romero II, the court evaluated the SMAP under Gentry and found that the class action waiver did not violate California public policy. Id. A subsequent district court case, again reviewing a prior version of the DRP at issue here, summarized the Romero cases as follows:

In Romero v. Watkins and Shepard Trucking, Inc., 2021 WL 3675074 (9th Cir. Aug. 19, 2021) (hereafter “Romero II”), the Ninth Circuit evaluated the SMAP—the very same arbitration agreement at issue in the present action—and affirmed the district court's order compelling individual arbitration of the plaintiff's class action claims․

[T]he Ninth Circuit assessed whether Nevada law is contrary to California's policy of disfavoring class action waivers. Id. In making this assessment, the court applied Gentry v. Superior Court, 42 Cal. 4th 443 (2007). Id. In Gentry, the court explained that in determining whether a class action waiver is unenforceable, courts should evaluate (1) “the modest size of the potential individual recovery,” (2) “the potential for retaliation against members of the class,” (3) “the fact that absent members of the class may be ill informed about their rights,” and (4) “other real world obstacles to the vindication of class members' rights” if the class form is disallowed. Gentry, 42 Cal. 4th at 463. The Ninth Circuit found that none of these factors weighed in the Romero plaintiff's favor. Romero II at 2. The court faulted the plaintiff for asserting in conclusory fashion and without supporting evidence his entitlement to only a modest recovery. Id. The court also faulted plaintiff for offering no proof that class members might be ill-informed of their rights and no argument that such class members might suffer retaliation. Id. The court further pointed out that the SMAP's opt-out provision made it so “any real world obstacles to the vindication of rights are not insurmountable.” Id. The court also pointed out additional provisions in the SMAP that enhance its fairness, including that it provides for normal civil discovery and motions and offers an employer-paid mediation option. Id. Thus, “the Gentry factors [did] not show that the [SMAP] violates a fundamental California policy, and thus, [the Ninth Circuit] enforce[d] the choice of law provision.” Id. The Ninth Circuit concluded that the SMAP is enforceable under Nevada law. Id.

In arguing against the application of Nevada law, Plaintiff does nothing to engage with or distinguish Romero. Like the plaintiff in Romero, Plaintiff argues that the SMAP is at odds with Gentry. (Dkt. 16 [Plaintiff's Opposition to Motion to Compel Arbitration, hereinafter “Opp.”] at 7.) However, Plaintiff offers no statement or proof that his recovery would be modest and no argument that his fellow class members are ill-informed of their rights under Cal. Lab. Code section 226 or are likely to suffer retaliation. Plaintiff does not acknowledge or attempt to distinguish the Ninth Circuit's finding that the SMAP's opt-out provision and other fairness-enhancing provisions make it so “any real-world obstacles to the vindication of rights are not insurmountable.” Romero II at *2. Of course, this case is not Romero and the Gentry analysis may vary from case to case. But we are dealing with the same SMAP that contains the same provisions that the Ninth Circuit found minimize any obstacle to the vindication of rights. And in Romero, the Ninth Circuit clearly put the initial burden on the plaintiff to show that the SMAP is at odds with Gentry. See id. As in Romero, however, Plaintiff has offered only conclusory statements regarding the Gentry factors. As such, Plaintiff has failed to meet his burden and cannot avoid application of Nevada law through Gentry.

Naler, 2021 WL 8269177, at *2–3.

In the instant case, Plaintiffs attempt to distinguish Naler by stating that, “[u]nlike in Naler, Trimble provides evidentiary support.” (Opp'n 13.) This “evidence” consists entirely of Trimble's declaration, to which Defendant raises multiple objections. (ECF No. 20-1.) However, even if the Court were to overrule all of Defendant's objections and admit Trimble's entire declaration, it is far too sparse and conclusory to provide the necessary evidentiary support for Plaintiffs to satisfy the Gentry test.

As noted above, Gentry requires an evaluation of four factors: (1) “the modest size of the potential individual recovery,” (2) “the potential for retaliation against members of the class,” (3) “the fact that absent members of the class may be ill informed about their rights,” and (4) “other real-world obstacles to the vindication of class members' right[s].” Gentry, 42 Cal. 4th at 463. “It is the plaintiff's burden to show the class action waiver is invalid by making a factual showing of the four Gentry factors.” Morales v. Activ Enters., LLC, No. 2:23-CV-05943-DSF-SK, 2023 WL 11886019, at *4 (C.D. Cal. Nov. 6, 2023) (quoting Muro v. Cornerstone Staffing Sols., Inc., 20 Cal. App. 5th 784, 793 (2018)).

As to the first factor, Plaintiffs argue that Trimble's potential recovery is “modest,” at $48,619.20. (Opp'n 11.) In support of this figure, they point to paragraphs 4 and 6 of Trimble's declaration, which read in their entirety as follows:

4. I worked for Schneider National Carriers, Inc. (“Schneider”) as an hourly truck driver since approximately from July 2018 to approximately April 2023 and then again from approximately September 2023 to October 2024.

6. During my employment with Schneider, my hourly wage was approximately $10.00 and I worked an estimated 7-10 hours off-the-clock per week.

(Trimble Decl. ¶¶ 4, 6.) From this, Plaintiffs calculate that Trimble worked “approximately 160 weeks within the class period.”¹⁴ (Opp'n 11.) They assert without evidence that California's average minimum wage between 2021 and 2024 was $15.12, calculate from this a time-and-half “overtime premium,” and multiply the result by 10 hours and 160 weeks to reach a claim of $36,288.00. (Id.) To this, they add a $4,000 penalty for California Labor Code section 226 violations, $6,331.20 in waiting time penalties under California Labor Code section 203, and a $2,000 estimate for “reimbursements” supported by no evidence at all, for a total of $48,619.20. (Id.) They argue that, especially in light of inflation since the Gentry opinion was issued in 2007, this amount is “within the realm” of the $37,000 amount found sufficiently modest in Gentry. (Id.)

Defendant, of course, disputes Trimble's assertion that he only made $10 per hour, explaining that his pay was formula-based and providing earnings statements for his final two weeks of work that show his effective hourly rate was $28.97 for one week and $27.14 for the other. (Supp. Holley-Gauthier Decl. ¶¶ 6–7, Exs. 1–2.) Defendant also points out that, even accepting Plaintiffs' figures, the total amount should include $24,192 for liquidated damages on Trimble's minimum wage claim, which would bring the total claim to a slightly-less-modest $72,811.20. (Reply 9 n.4.) The Court is not prepared to find that $72,811.20 is so little money that no one would be motivated to pursue that claim individually. Nonetheless, even if the Court were to accept Plaintiffs' figure of $48,619.20, to assume it is minimal enough to satisfy Gentry's first factor, and to assume it is representative of what other class members might seek (something for which no evidence has been presented), it would not matter because Plaintiffs have not satisfied their burden with respect to any of the other Gentry factors.

With respect to the second factor, Plaintiffs point to the “ ‘inherently inhibiting’ nature of the employment relationship” and to paragraph 8 of Trimble's declaration. (Opp'n 12.) That paragraph reads, in its entirety:

There was a general fear of retaliation among many employees for bringing up issues to management including issues of payment. I recall instances where employees were put “under the radar” by management for bringing up issues about being paid late and were retaliated against. For example, when a minor infraction happened, someone who was not “under the radar” would be disciplined at level one and be given a reprimand. However, when a similar infraction occurred by an employee who was “under the radar” for brin[g]ing up an issue, management would instead treat it as a level 2 or 3 disciplinary issue, heavily increasing the consequence including potential termination.

(Trimble Decl. ¶ 8.) As to Trimble himself, since he is no longer employed by Defendant, risk of retaliation is now non-existent. But even as to other potential class members, some of whom may still be employed, this non-specific, unsupported, conclusory assertion is simply not sufficient to show that any employee has or had specific fears about retaliation. “To allow Plaintiff's vague and potentially unfounded or unreasonable fear to satisfy Gentry's second factor would eviscerate the requirement and functionally eliminate Plaintiff's burden to establish the facts invalidating the class action waiver to which he agreed.” Neims v. Neovia Logistics Distribution, LP, No. EDCV23716PASHKX, 2023 WL 6369780, at *7 (C.D. Cal. Aug. 10, 2023); see also Morales v. Activ Enters., LLC, No. 2:23-CV-05943-DSF-SK, 2023 WL 11886019, at *5 (C.D. Cal. Nov. 6, 2023) (“[Plaintiff's] conclusory statements provide no reasons why an employee might reasonably fear retaliation from [Defendant].”). Thus, the second factor does not support invalidating the class action waiver.

With respect to Gentry's third factor, Plaintiffs argue that Defendant's failure to give notice of other actions to the court, either before or after removal of this case, suggests a “near absence” of “prior or pending actions by putative class members asserting similar claims,” which “confirms that absent class members may be ill informed about their rights.” (Opp'n 12.) Plaintiffs then immediately undercut their own argument by citing to one such action currently pending in the Eastern District of California. (Id. at 12 n.4 (citing Frisvold v. Schneider National Carriers, Inc., E.D. Cal. Case No. 2:25-cv-00964-TLN-CSK).) In any event, a lack of other cases could as easily imply that other employees see no reason to sue as that they are “ill-informed” of their right to do so. Further, the Court notes that, though not referenced in the Opposition, Trimble's declaration includes a statement that he “did not understand all of the employee protections [he] was entitled to under the law.” (Trimble Decl. ¶ 7.) Similar declarations have been found insufficient to satisfy the third Gentry factor. For instance, in granting a motion to compel arbitration and dismiss class claims, another judge in this district upheld a class action waiver against a Gentry challenge and stated “Although Plaintiff's Declaration states that ‘he did not understand all of my rights under California labor law,’ he does not identify what rights he did understand, or that other employees were similarly unaware of their rights.” Neims, 2023 WL 6369780, at *7. The court found that “Plaintiff's Declaration provides none of the detail on which the Garrido [v. Air Liquide Industrial U.S. LP, 241 Cal. App. 4th 833, 845 (2015)] court relied and, in this Court's view, does little to justify invalidating the class action waiver on the basis that he and the putative class were ill-informed of their rights, particularly where Defendants took steps to provide information about those rights.” Id. Specifically, the court referenced the fact that Defendants “displayed the poster required by California's Department of Industrial Relations containing information related to wages, hours, and working conditions, in an area frequented by employees, and provided an employee handbook that referenced meal and rest breaks and overtime.” Id. Similarly, Defendant here took steps to inform their truck drivers about their rights. One of the items the Driver AAs ask signers to acknowledge is the following: “To the extent I am working remotely, I understand that State Employment Posters can be accessed on [Schneider's employee Intranet portal] in the ‘Policies & Guidelines’ section and that I have reviewed or will review the posters applicable to the State in which I work.” (Ward Decl. Ex. B 1.) Since Defendant has provided evidence that information about rights was made available to its drivers, who were asked to acknowledge review of that information annually (id.; Ward Decl. Ex. F 1; Ward Decl. Ex. G 1), and since Trimble's declaration is so vague, the Court finds that the third factor does not support invalidating the class action waiver.

As to Gentry's fourth factor, Plaintiffs initially state that there is no need to address it when the other three factors are satisfied. (Opp'n 12.) Nonetheless, Plaintiffs then cite Garrido and argue generically that requiring “multiple employees suffering from the same illegal practice [to] each separately prove wrongdoing” increases costs and “diminishes the prospect that the individual claims at issue here would ever be enforced absent invalidation of the class waiver.” (Id. at 13.) This type of argument is nothing more than “ ‘a general conclusion that class action waivers inhibit claims.’ ․ Without a particularized showing, this factor weighs in favor of [the defendant].” Morales, 2023 WL 11886019, at *6 (quoting Mejia v. RXO Last Mile, Inc., No. 22-CV-08976-SI, 2023 WL 5184153, at *7 (N.D. Cal. Aug. 10, 2023)). Thus, the fourth factor does not support invalidating the class action waiver.

As Plaintiffs have failed to show convincingly that any of the Gentry factors weigh against enforcement of the class action waiver, the Court finds that the waiver should be enforced even if California law were to govern this case. Thus, under either Nevada or California law, the DRP's class action waiver is enforceable.

VII. ORDER

Consistent with the foregoing, IT IS ORDERED that the Motion is GRANTED IN PART. To the extent the Motion seeks to compel Trimble to arbitrate his individual claims, it is GRANTED. As the Court has found that Trimble waived his right to bring class action claims, he cannot serve as a class representative in this matter. However, as Trimble is not the sole named class representative in this action, and the parties have not yet briefed any issues regarding the arbitrability of the claims of Trimble's co-plaintiff, the Court DENIES the Motion, without prejudice, insofar as it seeks to dismiss all class allegations from the Complaint.

FOOTNOTES

1.   Plaintiffs do not raise any objections to any of Defendant's evidence.

2.   Pinpoint citations of docketed documents refer to paragraphs, or where none, to the page numbers in the ECF-generated headers.

3.   Some of Defendant's documents indicate times in Greenwich Mean Time (“GMT”). (Ward Decl. 4 n.1.) Ms. Ward indicates that times have been converted from GMT to Pacific Standard Time. (Id.) However, at the time of year in question, Nevada would have been on Pacific Daylight Time (“PDT”), rather than Pacific Standard Time. As the times given are consistent with the difference between GMT and PDT, the Court will refer to PDT.

4.   Times in this document are marked as “CST,” which the Court understands to mean “Central Standard Time.” As Arizona is in the Mountain Time Zone, and most of Arizona does not switch to daylight savings time, local time would have been around 10:30 p.m. Mountain Standard Time (“MST”).

5.   The Court uses the same short-form designations for the three related Romero opinions used by Defendant. (See P&A 11.)

6.   Notably, Plaintiffs do not explicitly make the argument that Nevada law is contrary to the fundamental public policy of California set forth in Gentry v. Superior Court, 42 Cal. 4th 443 (2007), an argument they appear to have raised in previous cases. See Romero v. Watkins & Shepard Trucking, Inc. (“Romero II”), No. 20-55768, 2021 WL 3675074, at *2 (9th Cir. Aug. 19, 2021) (“In sum, the Gentry factors do not show that the Arbitration Policy violates a fundamental California policy, and thus, we enforce the choice of law provision.”). As discussed below, however, Plaintiffs have not shown that the class action waiver at issue in this case would be invalidated under Gentry, either, so the choice-of-law analysis would not have had a different outcome even if they had raised this argument in that context. (See infra Section IV.C.)

7.   Plaintiffs make this claim regarding Nevada law without providing any authority and without discussing what Nevada law might actually be.

8.   Nor have they pointed to any concrete law in Nevada demonstrating an actual conflict.

9.   It is worth noting that, if Plaintiffs had argued that no contract was formed between Trimble and Defendant, they would not have prevailed on that argument. The Ninth Circuit has already held that the exact method of digital acknowledgement used here resulted in the formation of a contract between Defendant and another truck driver. Romero II, 2021 WL 3675074, at *1 (finding that “the parties formed a contract to arbitrate when Romero digitally agreed to the [SMAP]”). Nothing in the instant case would result in a different outcome.

10.   Plaintiffs present these arguments using California law, but as they recognize, the two states' laws regarding unconscionability are similar, and mandate similar outcomes. (Opp'n 27.)

11.   Defined as “when, during any consecutive 52-week period, 50 or more arbitration Demands asserting the same or similar Covered Disputes are made and/or sought to be compelled by Covered Individuals against Company, and such Covered Individuals are represented by the same lawyer(s) or law firm(s) and/or by one or more of several affiliated, associated or coordinated lawyers or law firms.” (Ward Decl. Ex. 4.)

12.   The DRP defines “disputes as to whether Company and any Covered Individual agreed to allow any Representative Action, PAGA Representative Action or alleged Mass Arbitrations to be arbitrated under this DRP” as “Excluded Disputes,” and provides that the DRP does not apply to Excluded Disputes, which must be “decided and resolved by a court of competent jurisdiction.” (Ward Decl. Ex. A 4, 6.)

13.   As the Reno court stated, “Where Nevada's highest court has not decided an issue, I must predict how that court would decide. Orkin v. Taylor, 487 F.3d 734, 741 (9th Cir. 2007). I may use ‘decisions from other jurisdictions, statutes, treatises, and restatements as guidance.’ Assurance Co. of Am. v. Wall & Assocs. LLC of Olympia, 379 F.3d 557, 560 (9th Cir. 2004) (quotation omitted).” Reno v. W. Cab Co., No. 218CV00840APGNJK, 2020 WL 5606897, at *4 n.5 (D. Nev. Sept. 18, 2020).

14.   The class period is alleged to begin April 17, 2021, four years prior to the filing of the Complaint. (Compl. ¶ 14.)

HONORABLE MARIA A. AUDERO UNITED STATES MAGISTRATE JUDGE