author: McKAY, Circuit Judge.

text:
    Danijela MOJSILOVIC; Aleksandar Mojsilovic, Plaintiffs-Appellants, v. State of OKLAHOMA EX REL. the BOARD OF REGENTS FOR the UNIVERSITY OF OKLAHOMA, Defendant-Appellee, and Pure Protein LLC; William Hildebrand, Defendants.
    No. 15-6151
    United States Court of Appeals, Tenth Circuit.
    Filed November 17, 2016
    See also 2015 WL 1542236 and 2015 WL 1542273.

      George S. Freedman and Sarah Rowe Clutts, Spencer Fane LLP, Edmond, Oklahoma, for Plaintiffs-Appellants.
    Gus H. Buthman and Gauri D. Nautiyal, Office of Legal Counsel, University of Oklahoma, Norman, Oklahoma; Clyde A. Muchmore and Evan G. E. Vincent, Crowe & Dunlevy, A Professional Corporation, Oklahoma City, Oklahoma, for Defendant-Appellee.
    Before MATHESON, McKAY, and O’BRIEN, Circuit Judges.
   McKAY, Circuit Judge.

Danijela and Aleksandar Mojsilovic appeal the dismissal of their damages claim under the Trafficking Victims Protection Reauthorization Act (TVPRA), 18 U.S.C. § 1595, which provides a civil remedy for victims of forced labor. The Mojsilovics claim the University of Oklahoma, through one of its agents, forced them to work by threatening their immigration status, but the district court concluded the University was entitled to sovereign immunity. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm the district court’s judgment.

I

The Mojsilovics are Serbian scientists recruited and hired by the University of Oklahoma to serve as research assistants at the University’s Health Sciences Center. In that capacity, Aleksandar was hired to conduct DNA sequencing and tissue typing for research and clinical studies; Danijela was hired to make transfectants and tissue cultures. The Mojsilovics were retained by the University through the H-1B visa program, and they were supervised by Dr. William Hildebrand, the director of the medical research laboratory at the Health Sciences Center. Dr. Hildebrand also owns a biotechnology company called Pure Protein, which, through á contractual arrangement, shares the University’s facilities to perform similar work.

According to the Mojsilovics, shortly after they were hired, Dr. Hildebrand demanded that they also work for Pure Protein. He allegedly required them to work longer hours than permitted by their visa applications, without pay, and threatened to have their visas revoked if they objected. Dr. Hildebrand became verbally abusive at times, and because he was authorized to make hiring and firing decisions, the Mojsilovics claimed they feared he would take action against their immigration status if they did not comply with his demands.

The Mojsilovics eventually filed suit, naming the University, Dr. Hildebrand, and Pure Protein as defendants. In a four-count complaint, they claimed violations of the TVPRA’s forced labor provision, 18 U.S.C. § 1589, the TVPRA’s human trafficking provision, id, § 1590, the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b) (permitting employees to recover for unpaid overtime), and the Oklahoma Protection of Labor Act (OPLA), Okla. Stat. tit. 40, § 165.9 (permitting employees to recover for unpaid wages). All claims were premised on Dr. Hildebrand’s threats to have the Mojsilovics deported if they refused to perform additional work for Pure Protein without pay. They sought damages under the TVPRA’s civil remedy provision, 18 U.S.C. § 1595, as well as declaratory and injunctive relief, liquidated and compensatory damages, costs, and attorney’s fees.

Defendants filed separate motions to dismiss, which the district court granted in part and denied in part with respect to Dr. Hildebrand and Pure Protein; those rulings are not implicated in this appeal. For its part, the University argued (among other things) that as a state entity, it was entitled to sovereign immunity. In response, the Mojsilovics conceded that sovereign immunity barred their FLSA and OPLA claims. But they argued that sovereign immunity posed no bar to their TVPRA claims because the statute was enacted under Congress’s Thirteenth Amendment authority to abolish involuntary servitude. According to the Mojsilo-vics, the States surrendered sovereign immunity for claims of involuntary servitude by ratifying the Thirteenth Amendment. And in any event, they argued, the statutory language of the TVPRA expressly abrogates sovereign immunity for “[wjhoever” engages in prohibited conduct, thus mani-testing a clear -intent to abrogate sovereign immunity of the States. 18 U.S.C. §§ 1589, 1595. The district court rejected these arguments and dismissed the Mojsilovics’ claims. This appeal followed.'

II

We review de novo the district court’s dismissal based on sovereign immunity. Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013). “A foundational premise of the federal system is that States, as sovereigns, are immune from suits for damages, save as they elect to waive that defense.” Coleman v. Court of Appeals of Md., — U.S,-, 132 S.Ct. 1327, 1333, 182 L.Ed.2d 296 (2012). A well-established exception to this principle, however, .is that Congress may abrogate the States’ immunity. Id. “[T]o determine whether Congress has abrogated the States’ sovereign immunity, we ask two questions: first, whether Congress has unequivocally expressed its intent to abrogate the immunity, and second, whether Congress has acted pursuant to a valid exercise of power.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (citation, brackets and internal quotation marks omitted). :

In answering the first question— whether Congress intended to abrogate state sovereign immunity—we employ a “simple but stringent test: Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably dear in the language of the statute.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (emphasis added) (internal quotation marks omitted). A general authorization for suit is insufficient to abrogate the States’ sovereign immunity. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985), superseded by statute, 42 U.S.C. § 2000d-7(a), as recognized in Lane v. Pena, 518 U.S. 187, 198, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996); accord Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 786 n.4, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991) (“The fact that Congress grants jurisdiction to hear a claim does not suffice to show Congress has abrogated all defenses to that claim.”).

For example, in Coleman, the Court concluded Congress made “unmistakably clear” its intent to abrogate the States’ immunity by specifying in the language of the relevant statute that any “public agency” could be sued, defining that term to include “both the government of a State or political subdivision thereof and any agency of a State, or a political subdivision of a State.” 132 S.Ct. at 1333 (ellipsis and internal quotation marks omitted). Similarly, in Seminole Tribe, the Court found “unmistakably clear” evidence that Congress intended to abrogate the States’ immunity because “the State” was identified as the appropriate defendant in a lawsuit brought under the statute at issue. 517 U.S. at 56-57, 116 S.Ct. 1114.

By contrast, the TVPRA identifies as a criminal defendant in a forced labor case “[wjhoever” engages in prohibited conduct:

(a) Whoever knowingly provides or obtains the labor or services of a person by any one of, or by any combination of, the following means—
(1) by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person;
(2) by means of serious harm or threats of serious harm to that person or another person;
(3) by means of the abuse or threatened abuse of law or legal process; or
(4) by means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint,
shall be punished as provided in subsection (d).
(b) Whoever knowingly benefits, financially or by receiving anything of value, from participation in a venture which has engaged in the providing or obtaining of labor or services ... knowing or in reckless disregard of the fact that the venture has engaged in the providing or obtaining of labor or services by any of such means, shall be punished as provided in subsection (d).

18 U.S.C. § 1589 (emphasis added). Similarly, the TVPRA’s civil remedy provision establishes a private cause of action against a “perpetrator” or “whoever” violates the TVPRA:

An individual who is a victim of a violation of this chapter may bring a civil action against the perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter) in an appropriate district court of the United States and may recover damages and reasonable attorneys fees.

Id. § 1595(a) (emphasis added). But the terms “perpetrator” and “whoever” are not defined by the statute, and standing alone, these broad terms signal no intent to abrogate sovereign immunity—certainly not an “unmistakably clear” congressional intent to do so. See Atascadero, 473 U.S. at 245-46, 105 S.Ct. 3142 (concluding that statutory language creating liability for “any recipient” of federal assistance was not unmistakably clear intent to abrogate sovereign immunity); see also Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 631-32, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999) (observing that previously undefined statutory language creating liability for “whoever” violated patent laws failed to abrogate sovereign immunity).

Nevertheless, the Mojsilovics contend there need not be an unmistakably clear statement of legislative intent because Congress enacted the TVPRA pursuant to its Thirteenth Amendment authority to eradicate slavery and involuntary servitude. The Mojsilovics argue that the States surrendered sovereign immunity by ratifying the Thirteenth Amendment, which confers upon Congress plenary authority to abolish involuntary servitude, and as a consequence, there is no sovereign immunity for Congress to abrogate. See Aplt. Br. at 24 (“[T]he abrogation of sovereign immunity thus occurs within the Thirteenth Amendment itself, and it is therefore not necessary for Congress to further state its intent to abrogate the States’ immunity.”).

But the Mojsilovics’ premise is incorrect: The TVPRA was not enacted under the Thirteenth Amendment; it was enacted under Congress’s Commerce Clause powers. See H.R. Rep. No. 108-264(1), at 14 (2003) (“[T]he Committee finds the authority for [the TVPRA] in article I, section 8 of the Constitution.”); 18 U.S.C. § 1591(a) (proscribing sex trafficking “in or affecting interstate or foreign commerce”); see also Francisco v. Susano, 525 Fed.Appx. 828, 834 n.8 (10th Cir. 2013) (noting that predecessor statute to TVPRA was enacted under Congress’s Commerce Clause powers); Ditullio v. Boehm, 662 F.3d 1091, 1097 n.4 (9th Cir. 2011) (same). This source of congressional authority is significant because “Congress may not abrogate the States’ sovereign immunity pursuant to its Article I power over commerce.” Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 727, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003); see Seminole Tribe, 517 U.S. at 72-73, 116 S.Ct. 1114 (“The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.”). Thus, even if Congress had intended to abrogate sovereign immunity in the TVPRA, it had no authority to do so under the Commerce Clause.

The Mojsilovics’ arguments to the contrary are unavailing. To support their assertion that the TVPRA was enacted under the Thirteenth Amendment, they cite congressional findings for the TVPRA’s predecessor statute reflecting the evils of human trafficking. See Pub. Law 106-386 §§ 102(b)(1), (12), (21) & (22), 114 Stat. 1464 (2000). Section 102(b)(1) states that “[t]rafficking in persons is a modern form of slavery, and it is the largest manifestation of slavery today.” Section 102(b)(12) actually supports our conclusion that the TVPRA was enacted under the Commerce Clause, indicating that “[tjrafficking in persons substantially affects interstate and foreign commerce.” Section 102(b)(21) states that “[t]rafficking of persons is an evil requiring concerted and vigorous action.” And section 102(b)(22) states that the Declaration of Independence recognizes the “right to be free from slavery and involuntary servitude” as inalienable rights. But none of these findings demonstrate the TVPRA was enacted under the Thirteenth Amendment.

The Mojsilovics also contend there need not always be a clear statement of congressional intent to abrogate sovereign immunity, as the Supreme Court endorsed in Central Virginia Community College v. Katz, 546 U.S. 356, 126 S.Ct. 990, 163 L.Ed.2d 945 (2006). Katz analyzed congressional power under the Bankruptcy Clause to subordinate State sovereign immunity in bankruptcy proceedings. See id. at 362, 126 S.Ct. 990. In that unique context, the Court explained, bankruptcy jurisdiction is “principally in rem” and as a consequence does not usually “interfere with state sovereignty even when States’ interests are affected.” Id. at 369-70, 126 S.Ct. 990. Yet, to the extent ancillary bankruptcy orders do implicate sovereign immunity, the evolution of the Bankruptcy Clause indicates the States agreed in ratifying the Constitution not to assert their immunity in bankruptcy proceedings. Id. at 364-70, 378, 126 S.Ct. 990.

Analogizing to Katz, the Mojsilovics contend the States ceded sovereign immunity by ratifying the Thirteenth Amendment, But as we have already discussed, the TVPRA was enacted under the Commerce Clause, which provides no congressional authority for abrogation. Thus, absent a valid source of constitutional authority to abrogate sovereign immunity and an unmistakably clear statement of congressional intent to do so, the district court correctly dismissed the Mojsilovics’ TVPRA claim.

The judgment of the district court is affirmed.

      . The surviving claims against Dr. Hildebrand and Pure Protein remain pending in the district court, which certified its order dismissing the claims against the University as 'a final, appealable judgment. See Fed. R. Civ. P. 54(b).

      . The Mojsilovics appeal only the dismissal of their forced labor claim under the TVPRA, not the disposition of their FLSA, OPLA, or human trafficking claims. See Aplt. Br. at 4 ml.

      . The Thirteenth Amendment provides that "[n]either slavery nor involuntary servitude ... shall exist within the United States, or any place subject to their jurisdiction.” U.S. Const, amend. XIII, § 1.

      . In their reply brief, the Mojsilovics cite a non-binding district court decision, see John Roe I v. Bridgestone Corp., 492 F.Supp.2d 988, 1003 (S.D. Ind. 2007), and an unpublished magistrate judge’s report and recommendation, see United States v. Garcia, No. 02-CR-110S-01, 2003 WL 22938040 (W.D.N.Y. Dec. 2, 2003) (unpublished), both suggesting the TVPRA was enacted under the Thirteenth Amendment. These decisions provide little or no supporting analysis, however, and we find neither decision authoritative.


source: Caselaw Access Project

author: KELLY, Circuit Judge. GORSUCH, Circuit Judge,

license: Public Domain

text:
    Sami RAGAB, an individual, Plaintiff-Appellee, v. Muhammad HOWARD, individually and in his capacity as owner, partner, and corporate officer, Ultegra Financial Partners, Inc., a Colorado corporation; Clive Funding, Inc., a Utah corporation, Defendants-Appellants, and Seed Consulting, d/b/a Seed Capital, Defendant.
    No. 15-1444
    United States Court of Appeals, Tenth Circuit.
    Filed November 21, 2016

      John Mallonee, Boulder, Colorado, for Defendants-Appellants.

      Todd A. Wells (Theodore J. Gleason, and Coren R. Hinkle, with him on the brief), of Gleason Wells, P.C., Denver, Col.orado, for Plaintiff-Appellee.
    Before KELLY, BRISCOE, and GORSUCH, Circuit Judges.
   KELLY, Circuit Judge.

Defendants-Appellants Ultegra Financial, its CEO Muhammad Howard, (collectively Ultegra Defendants) and Clive Funding, Inc., appeal from the district court’s order denying their motion to compel arbitration. Ragab v. Howard, No. 15-cv-00220-WYD-MJW, 2015 WL 6662960 (D. Colo. Nov. 2, 2015). Our jurisdiction arises under 9 U.S.C. § 16(a)(1) and we affirm.

Background

In 2013, Mr. Ragab entered into a business relationship with the Ultegra Defendants. The parties had six agreements: a Consulting Agreement, a Membership Interest Purchase Agreement (Purchase Agreement), an Operating Agreement, an Assignment of Limited Liability Company Interest Agreement (Assignment Agreement), an Employment Agreement, and a Non Circumvention, Non Disclosure & Confidentiality Agreement (Non-Circumvention Agreement). Aplt. App. 113-50.

The agreements contain conflicting arbitration provisions. See Aplt. App. 167-87. Suffice it to say the conflicts involve (1) which rules will govern, (2) how the arbitrator will be selected, (3) the notice required to arbitrate, and (4) who would be entitled to attorneys’ fees and on what showing.

In 2015, Mr. Ragab sued the Ultegra Defendants for misrepresentation and for violating several consumer credit repair statutes. The district court found that Mr. Ragab’s claims fell within the scope of all six agreements. Ragab, 2015 WL 6662960, at *4. The Ultegra Defendants moved to compel arbitration. Mr. Ragab added Defendant Clive Funding, Inc., which joined the Ultegra Defendants’ motion. The district court denied the motion to compel, concluding that there was no actual agreement to arbitrate as there was no meeting of the minds as to how claims that implicated the numerous agreements would be arbitrated.

Discussion

A. Motion to Compel Arbitration

We review a district court’s denial of a motion to compel arbitration de novo and apply the same legal standard as the district court. Armijo v. Prudential Ins. Co. of Am., 72 F.3d 793, 796 (10th Cir. 1995). We first address whether the inconsistencies across the six arbitration provisions indicate that the parties failed to have a meeting of the minds with respect to arbitration.

The Supreme Court has “long recognized and enforced a ‘liberal federal policy favoring arbitration agreements.’ ” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)); see also 9 U.S.C. § 2 (“A written provision in any ... contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract- or transaction ... shall be valid, irrevocable,-and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”). Therefore, “all doubts must be resolved in favor of arbitration.” Armijo, 72 F.3d at 798.

However, whether a party agreed to arbitration is a contract issue, meaning arbitration clauses are only valid if the parties intended to arbitrate. United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); see also Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). No party cari’ be compelled to submit a dispute to arbitration without having previously agreed to so submit. United Steelworkers, 363 U.S. at 582, 80 S.Ct. 1347.

We apply state-law principles in deciding whether parties agreed to arbitrate. First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Contract formation in Colorado requires evidence “that the parties agreed upon all essential terms.” I.M.A., Inc. v. Rocky Mountain Airways, Inc., 713 P.2d 882, 888 (Colo. 1986). A meeting of the minds is essential. Agritrack, Inc. v. DeJohn Housemoving, Inc., 25 P.3d 1187, 1192 (Colo. 2001). This can be demonstrated by the parties’ “conduct, their oral statements and their writings, and other evidence illuminating the circumstances surrounding the making of an agreement.” I.M.A., 713 P.2d at 888. Courts cannot create or enforce contracts between parties when the contract itself does not clearly demonstrate the parties’ intent. Newton Oil Co. v. Bockhold, 115 Colo. 510, 176 P.2d 904, 908 (1946).

No Colorado court has addressed whether parties can be compelled to arbitrate given conflicting arbitration provisions, but other courts have. A New Jersey court, for example, has concluded that irreconcilable differences across multiple arbitration provisions indicate that the parties did not agree to arbitrate. See, e.g., NAACP of Camden Cty. E. v. Foulke Mgmt. Corp., 421 N.J.Super. 404, 24 A.3d 777, 794 (N.J. Super. Ct. App. Div. 2011). At issue in NAACP were three agreements that each contained an arbitration provision. 24 A.3d at 781-82. The inconsistencies across the six arbitration provisions in the case at hand almost mirror the irreconcilable portions of the arbitration provisions in NAACP, including the governing rules, the day by which the parties had to initiate arbitration, and which party was responsible for the arbitration fees. Id. at 794. Based on these inconsistencies, the court found that “the arbitration provisions ... [were] too plagued with confusing terms and inconsistencies to put a reasonable consumer on fair notice of their intended meaning.” Id. The Ultegra Defendants and Clive Funding, Inc. argue that NAACP is distinguishable because it involved an elderly woman who was not well educated. Id. at 781; Aplt. Br. at 24-25. This distinction, however, is unavailing. As the court in NAACP explained, even if the case involved a prudent purchaser— one who reads arbitration clauses—the conflicting terms would have prevented her from understanding “what the exact terns and conditions of that arbitration process would be.” 24 A.3d at 794. Relying on AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011), the court also recognized that “the FAA does not require an arbitration provision to be enforced if the provision is defective for reasons other than public policy or unconscionability.” Id. at 792. That is the case here.

Courts have granted motions to compel despite the existence of conflicting arbitration provisions when the contracts themselves provide the solution. For example, in Ex parte Palm Harbor Homes, Inc., 798 So.2d 656, 660 (Ala. 2001), the parties had executed several agreements each containing a different arbitration clause. Id, The court ordered arbitration according to the arbitration provision in the contract which contained a merger clause, conclud-mg that provision superceded the others. Id. Here, however, there is no language in the six agreements that suggests one contract overrides the others, and we cannot arbitrarily pick one to enforce because doing so could violate the other five.

The Ultegra Defendants and Clive Funding further' argue that the court should compel arbitration here because courts have compelled arbitration based on a. single provision that merely requires arbitration, but does not spell out any other arbitration-related-terms. Aplt. Br. at 30-31; see Guthrie v. Barda, 188 Colo. 124, 533 P.2d 487, 487 (1975) (upholding an arbitration provision that only stated that claims “shall be submitted to binding arbitration”). But such a scenario is not relevant to this case, which involves multiple, specific, conflicting arbitration provisions, and not one general or vague arbitration clause.

Thus, the conflicting details in the multiple arbitration provisions indicate that there was no meeting of the minds with respect to arbitration. Such a conclusion is fully supported by contract formation requirements in Colorado. See I.M.A., 713 P.2d at 888 (explaining that contract formation requires that parties “agree[ ] upon all essential terms”).

B. Summary Trial

The Ultegra Defendants and Clive Funding also assert that the district court erred in not granting them a summary trial in deciding whether the parties agreed to arbitrate. Aplt. Br. at 44. Our review is de novo. See Howard v. Ferrellgas Partners, L.P., 748 F.3d 975, 978 (10th Cir. 2014).

When parties do not dispute the material facts surrounding an arbitration provision, then a district court, while viewing the facts most favorable to the non-moving party, can decide as a matter of law whether the parties actually agreed to arbitrate. Id. This standard is similar to the summary judgment standard. Id. When there is a genuine dispute of material facts, district courts must “proceed summarily to the trial” to resolve the factual disputes. 9 U.S.C. § 4.

The district court found that there were “ ‘genuine issues of material fact regarding the parties’ agreement,”’ and therefore denied the motion to compel arbitration. Ragab, 2015 WL 6662960, at *6 (quoting Hancock v. AT&T Co., 701 F.3d 1248, 1261 (10th Cir. 2012)). Be that as it may, there are no material factual disputes in this case that we can see: the parties agreed that they entered into six agreements, and do not dispute what the arbitration provisions say. What remained was an application of law: did the provisions conflict to such an extent that the parties could not have had a meeting of the minds? Armijo, 72 F.3d at 797. A summary trial on this issue was unnecessary.

AFFIRMED.

GORSUCH, Circuit Judge,

dissenting.

My colleagues are of course correct that “arbitration clauses are only valid if the parties intended to arbitrate.” Op. at 1137. But, respectfully, I just don’t see any doubt that the parties before us did intend to arbitrate. All six—yes six—of the parties’ interrelated commercial agreements contain arbitration clauses. The plaintiff himself, the party the court today permits to avoid arbitration, instructed his own counsel to draft three of these agreements. In my view, parties to a commercial deal could have hardly demonstrated with greater clarity an intention to arbitrate their disputes and I see no way we might lawfully rescue them from their choice.

To be sure and as my colleagues note, the six agreements before us differ on the details concerning hoiv arbitration should proceed. This disagreement, my colleagues suggest, is fatal because to form a contract the parties must agree on “essential terms.” Op. at 1137,1138-39. But, respectfully, I believe treating the procedural details surrounding arbitration in this case as «^essential terms would do a good deal more-to “effectuate[ ] the intent of the parties” before us, itself always the goal of contract interpretation. Lane v. Urgitus, 145 P.3d 672, 677 (Colo. 2006). Indeed, I see two easy workarounds that I believe would be more consistent with the parties’ expressed purposes than the course my colleagues chart. First, 'it seems pretty clear the plaintiff in this case would be free to initiate arbitration under the terms of whichever of the six agreements he prefers—after all, even the defendants have expressly acknowledged that his claims fall within the scope of every single agreement. So it is the plaintiff need only choose which procedures he likes best. Second, Colorado’s preference for arbitration has led it to enforce even arbitration clauses that say no more than that disputes “shall be submitted to binding arbitration” without' any discussion of procedural details. Guthrie v. Barda, 188 Colo. 124, 533 P.2d 487, 487 (1975). In circumstances' like these, Colorado statutory law provides a method for appointing an arbitrator when the agreement fails to do so, Colo. Rev. Stat. § 13-22-211(1), and a means for the arbitrator to determine any outstanding procedural issues, id. § 13-22-215 (process); id. § 13-22-217 (discovery); id, § 13-22-221 (attorneys’ fees). The Federal Arbitration Act contains similar provisions. See 9 U.S.C. § 5; Green v. U.S. Cash Advance Ill., LLC, 724 F.3d 787, 792-93 (7th Cir. 2013) (collecting cases using § 5 “to complete detail-free arbitration clauses”). We could simply follow that well trodden path here too. Indeed, either of these routes would, it seems to me, effectuate the intent of the parties much better than eradicating all six arbitration agreements root and branch and allowing the plaintiff to escape the consequences of a choice he once so clearly preferred but now simply regrets.

Consider an analogy outside arbitration. In the “battle of the forms”, purchasers and vendors agree to transact but each side memorializes the deal on its own standard forms. See, e.g., Daitom, Inc. v. Pennwalt Corp., 741 F.2d 1569, 1574 (10th Cir. 1984). This court has interpreted the Uniform Commercial Code to mean that conflicting terms in these forms knock each other out but do not void the contract. Id. at 1579. That is because a meeting of the minds occurs with respect to the fundamentals of the deal even if not with respect to the details. Id. at 1580 (explaining that the “fundamental purpose of the U.C.C.... is to preserve a contract and fill in any gaps if the parties intended to make a contract and there is a reasonable basis for giving an appropriate remedy”). Respectfully, I would follow the same course here. Indeed, there may be an argument that both Colorado law and the FAA require it. Colorado law given its strong support for arbitration. See, e.g., Lane, 145 P.3d at 678 (“Our constitution, our statutes, and our case law all support agreements to, arbitrate disputes.”). And the FAA given its non-discrimination principle that requires us to treat arbitration clauses with no less solicitude than we afford to other contractual provisions, like those that apply in the battle of the forms context. See 9 U.S.C. § 2; AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339, 131 S.Ct 1740, 179 L.Ed.2d 742 (2011).

In reaching the opposite judgment, my colleagues place great weight on New Jersey cases that have voided arbitration agreements for inconsistency. But, respectfully, I do not see the relevance of these authorities even taken on their own terms. For example, in NAACP the court held that, as a matter of New Jersey law, consumer contracts must “convey—with precision and consistency—what the exact terms and conditions of th[e] arbitration process.[are].” NAACP of Camden Cty. E. v. Foulke Mgmt. Corp., 421 N.J.Super. 404, 24 A.3d 777, 794 (N.J. Super. Ct. App. Div. 2011). But the reasons for that rule And no purchase here. New Jersey courts say they demand “extra clarity” in arbitration agreements to protect consumers against unknowingly waiving their right to sue under the State’s Consumer Fraud Act. See id. at 797; Rockel v. Cherry Hill Dodge, 368 NJ.Super. 577, 847 A.2d 621, 623 (N.J. Super. Ct. App. Div. 2004). And they say they take “particular care” in scrutinizing mutual assent in the consumer arena “because arbitration provisions are often embedded in contracts of adhesion.” NAACP, 24 A.3d at 790-91; see also Rockel, 847 A.2d at 627. But this case, by contrast, involves parties to a commercial, not a consumer, transaction, with contracts actively negotiated by both sides, not contracts of adhesion thrust upon the plaintiff. Indeed, three of the six agreements before us contain handwritten modifications and, again, three the plaintiff himself proposed (through his own attorney no less). Respectfully, it seems to me that applying New Jersey’s extra clarity i-equirement to this case divorces a rule from its reasons. Because the plaintiff here resembles a merchant much more than a consumer, the battle.of the forms offers the better analogy-

Beyond even that and however instructive NAACP might be about New Jersey law, I am also quite unsure whether it has anything to say about Colorado law or whether it would survive a brush with the FAA. Colorado has not adopted the same extra clarity requirement for consumer contracts that New Jersey has. And until it does so I respectfully suggest we should prefer rules harmonious with the State’s established policy in favor of arbitration and against erecting barriers to arbitration—especially where, as here, both parties have so clearly and repeatedly demonstrated their desire to arbitrate. Then too there is the federal policy favoring arbitration embodied in the FAA and armed with preemptive force. The Supreme Court has held that the FAA preempts state laws that single out arbitration clauses for disfavored treatment. See, e.g., Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996). And our sister circuits have held that states may not disfavor arbitration through special rules about what’s required to show contract formation. See, e.g., Progressive Cas. Ins. Co. v. C.A. Reaseguradora Nacional De Venezuela, 991 F.2d 42, 46 (2d Cir. 1993) (finding preempted New York’s “discriminatory” requirement that arbitration agreements, but not other agreements, be “express” and “unequivocal”). Whether or not the FAA would preempt New Jersey’s special “extra clarity” rule for certain kinds of arbitration agreements, that possibility undoubtedly exists and seems to me to counsel against endorsing it without a good deal more careful investigation than the parties offer us in this case.

All this is not to say that I believe conflicting contract provisions might never render an arbitration agreement void for lack of a meeting of the minds. In some cases, for example, the parties’ contract documents will conflict on the fundamental question whether they wish to arbitrate or not. See, e.g., Bellman v. i3Carbon, LLC, 563 Fed.Appx. 608, 614 (10th Cir. 2014). But that is not our case and ours admits a straightforward resolution. Because the plaintiff asked for and received assent to three arbitration clauses he drafted and signed three others, all in a commercial setting and while represented by counsel, I just don’t see how he can now seriously claim that he never intended to arbitrate— or how we might rightly rescue him from the consequences of his choice. I respectfully dissent.

      . For example:
      (1) the Consulting Agreement states that arbitration will proceed under the rules of Colorado’s Uniform Arbitration Act of 1975, but the Operating Agreement, Membership Interest Purchase Agreement, and the Assignment of LLC Membership Interest all require application of the AAA Commercial Arbitration Rules, and the Confidentiality and Non-circumvention Agreement requires "Rules of the Colorado Court”;
      (2) the Consulting Agreement states that an arbitrator will be chosen by consent of the parties, or appointed by a Colorado court if the parties cannot agree; whereas the Operating Agreement, Membership Interest Purchase Agreement, and the Assignment of LLC Membership Interest all require that the arbitrator be chosen by the American Arbitration Association (AAA);
      (3) the Operating Agreement requires a thirty-day notice period prior to proceeding to arbitration, whereas the Membership Interest Purchase Agreement and the Assignment of LLC Membership Interest require only ten days; and
      (4) the Consulting Agreement requires each party to pay its own arbitration costs and fees, but the Operating Agreement, Membership Interest Purchase Agreement, and the Assignment of LLC Membership Interest all permit the award of costs and fees to the prevailing party.

      . The parties reference extensively Bellman v. i3Carbon, LLC, 563 Fed.Appx. 608 (10th Cir. 2014), an unpublished order and judgment. Bellman is not factually analogous to this case because it does not involve multiple conflicting arbitration provisions, but rather an arbitration provision, and a forum selection clause. Id at 610. We therefore do not find Bellman persuasive.

      . Other jurisdictions have also found that conflicting terms in multiple arbitration provisions eliminate a duty to arbitrate. See, e.g., In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prods. Liab. Litig., 838 F.Supp.2d 967, 992 (C.D. Cal. 2012); Basulto v. Hialeah Auto., 141 So.3d 1145, 1156 (Fla. 2014).

      . “Typically, merger clauses are strong evidence that the parties did not intend to include terms not expressly incorporated into the document containing the clause.” Summit Contractors, Inc. v. Legacy Corner, L.L.C., 147 Fed.Appx. 798, 801 (10th Cir. 2005).