Jessica Hines, individually and on behalf of all others similarly situated v. National Entertainment Group, LLC

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0154p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JESSICA HINES, individually and on behalf of all others
similarly situated,
Plaintiff-Appellee,
v.
NATIONAL ENTERTAINMENT GROUP, LLC,
Defendant-Appellant.
┐
│
│
│
│
│
│
│
│
┘
No. 24-3725
Appeal from the United States District Court for the Southern District of Ohio at Columbus.
No. 2:23-cv-02952—Algenon L. Marbley, District Judge.
Decided and Filed: June 9, 2025
Before: SUTTON, Chief Judge; GIBBONS and WHITE, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Damion M. Clifford, Stefanie L. Coe, Damien Kitte, ARNOLD CLIFFORD LLP,
Columbus, Ohio, for Appellant. Daniel J. Canon, Jonathan C. Little, SAEED AND LITTLE,
LLP, Indianapolis, Indiana, for Appellee.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. This case centers on whether Plaintiff-
Appellee Jessica Hines is bound by an arbitration provision included in contracts she signed on
three different occasions between October 2020 and June 2023. In September 2023, Hines sued
Defendant-Appellant National Entertainment Group, LLC (“NEG”), an adult entertainment club
in Columbus, Ohio, for failing to properly compensate its employees under the Fair Labor
>

-- 1 of 14 --

No. 24-3725 Hines v. Nat’l Entm’t Grp. Page 2
Standards Act of 1938, 29 U.S.C. § 201 et seq.; the Ohio Minimum Fair Wage Standards Act,
Ohio Rev. Code § 4111.01 et seq.; the Ohio Semi-Monthly Payment Act, Ohio Rev. Code
§ 4113.15; Ohio Rev. Code § 2307.60; and common law unjust enrichment.
NEG moved to dismiss Hines’s suit or, in the alternative, to stay the proceedings pending
completion of arbitration that the parties contractually agreed to in their Lease Agreement
Waiver (the “Lease Waiver”). Although Hines does not dispute that she signed three separate
agreements to arbitrate, she argues that the agreements are unenforceable because they are both
procedurally and substantively unconscionable. Agreeing with Hines, the district court denied
NEG’s motion to dismiss and declined to enforce the parties’ agreement to arbitrate. We vacate
the district court’s denial of NEG’s motion to stay pending the completion of arbitration and
remand for further proceedings consistent with this opinion.
I.
Hines alleges that she worked as a dancer for National Entertainment Group, LLC
(“NEG”), an adult entertainment club in Columbus, Ohio, from approximately February 2014 to
August 2023. Although NEG denies that Hines worked at NEG after September 2017, both
parties agree that Hines signed three separate and identical Lease Agreement Waivers ( “Lease
Waivers”) on October 28, 2020; January 8, 2022; and June 6, 2023.1 Each Lease Waiver is a
single-page document containing two paragraphs with text written in roughly 11 point font. The
second paragraph is an arbitration provision and begins with the heading in all capital letters:
“MANDATORY ARBITRATION AND CLASS/COLLECTIVE ACTION WAIVER.” DE 4-1,
October 2020 Lease Waiver, Page ID 40; DE 4-2, January 2022 Lease Waiver, Page ID 42; DE
4-3, June 2023 Lease Waiver, Page ID 44. The Lease Waiver’s arbitration provision states in
relevant part:
Any and all disputes or claims that arise out of this Agreement, a breach of this
Agreement, or out of the relationship between me and National Entertainment
1The text of each Lease Waiver is identical, but the title of the most recent June 6, 2023 Lease Waiver is
different. The Lease Waivers that Hines signed on October 28, 2020 and January 8, 2022 are both titled “Lease
Agreement Waiver.” DE 4-1, October 2020 Lease Waiver, Page ID 40; DE 4-2, January 2022 Lease Waiver, Page
ID 42. The June 6, 2023 Lease Waiver is titled, “Vanity Gentlemen’s Club Lease Agreement Waiver.” DE 4-3,
June 2023 Lease Waiver, Page ID 44.

-- 2 of 14 --

No. 24-3725 Hines v. Nat’l Entm’t Grp. Page 3
Group, LLC (including any wage claim, any claim based upon promises or duties
NEG made or owed to me, any claim based upon promises or duties I made or
owed to NEG, as well as any claim for money, compensation, tips and/or fees,
any claim for wrongful termination, or any claim based upon any statute,
regulation, or law, including those dealing with wages and hours, overtime,
discrimination, sexual harassment, civil rights, age, gender, sexual preference, or
disabilities, as well as any tort claims) shall be resolved by arbitration in
accordance with the then effective arbitration rules of the American Arbitration
Association (“AAA”), and judgment upon the award rendered pursuant to such
arbitration shall be final and binding and may be entered in any court having
jurisdiction. . . . I understand that by agreeing to the mandatory arbitration set
forth herein, I waive my right to a jury trial and to proceed with any claim against
NEG in a court of law.
DE 4-1, October 2020 Lease Waiver, Page ID 40; DE 4-2, January 2022 Lease Waiver, Page ID
42; DE 4-3, June 2023 Lease Waiver, Page ID 44. Hines signed each Lease Waiver on a
signature line that appeared immediately after this arbitration provision.
In September 2023, Hines sued NEG on her own behalf and on behalf of all putative
class action members, bringing claims under the Fair Labor Standards Act of 1938, 29 U.S.C.
§ 201 et seq.; the Ohio Minimum Fair Wage Standards Act, Ohio Rev. Code § 4111.01 et seq.;
the Ohio Semi-Monthly Payment Act, Ohio Rev. Code § 4113.15; Ohio Rev. Code § 2307.60;
and a common law unjust enrichment theory, arguing that NEG failed to maintain employment
records and properly compensate its employees. NEG moved to dismiss the action because,
according to NEG, (i) Hines lacked standing to bring her claims given that NEG had no record of
employing Hines after August 2017, and (ii) even if Hines had standing, the case should be
stayed pending the completion of arbitration given that Hines had agreed to arbitrate any and all
disputes with NEG when she signed the Lease Waivers in October 2020, January 2022, and June
2023. The district court denied NEG’s motion to dismiss, concluding that Hines had plausibly
alleged sufficient facts to support standing, and that NEG’s affidavit attesting that Hines had not
worked at NEG at any time since September 2017 was irrelevant on a motion to dismiss.
In determining whether to grant NEG’s motion to stay proceedings pending arbitration,
the court applied the four-factor test set out in Stout v. J.D. Byrider, 228 F.3d 709, 714 (6th Cir.
2000), in which courts ask (i) whether the parties agreed to arbitrate; (ii) whether the claims fall
within the scope of that agreement; (iii) whether Congress intended the federal claims to be

-- 3 of 14 --

No. 24-3725 Hines v. Nat’l Entm’t Grp. Page 4
arbitrable, and (iv) whether to stay the case pending arbitration if the court concludes that some,
but not all, of the claims in the action are subject to arbitration. Applying Stout, the district court
denied NEG’s motion to stay the case pending arbitration, concluding that the Lease Waiver’s
arbitration provision was both procedurally and substantively unconscionable, and thus there was
no agreement to arbitrate under the first Stout factor. The district court did not address the
remaining three Stout factors. NEG appeals the district court’s denial of its motion to stay the
case pending the completion of arbitration.
II.
Under the Federal Arbitration Act (the “FAA”), arbitration agreements are “valid,
irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the
revocation of any contract.” 9 U.S.C. § 2. When a party brings a lawsuit raising a claim subject
to arbitration, the FAA provides for a stay of proceedings, 9 U.S.C. § 3, and for orders
compelling arbitration when a party refuses to comply with an arbitration agreement, 9 U.S.C.
§ 4. But, before a court can compel arbitration, the court must first determine whether a valid
agreement to arbitrate exists. In re StockX Customer Data Sec. Breach Litig., 19 F.4th 873, 879
(6th Cir. 2021). If there is a valid agreement to arbitrate, “an arbitration provision is severable
from the remainder of the contract” and other challenges to the contract’s validity “[are]
considered by the arbitrator in the first instance.” Buckeye Check Cashing, Inc. v. Cardegna, 546
U.S. 440, 445–46 (2006).
Arbitration agreements are “on an equal footing with other contracts” and may be
invalidated by “generally applicable contract defenses, such as fraud, duress, or
unconscionability.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (citation and
quotation marks omitted). In determining whether an agreement to arbitrate is unconscionable,
we apply state contract law. See Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630–31 (2009).
An unconscionable arbitration agreement is unenforceable. See Morrison v. Cir. City Stores,
Inc., 317 F.3d 646, 666 (6th Cir.2003) (applying the unconscionability doctrine in the context of
an arbitration agreement).

-- 4 of 14 --

No. 24-3725 Hines v. Nat’l Entm’t Grp. Page 5
Under Ohio law, “[t]he party asserting unconscionability of a contract bears the burden of
proving that the agreement is both procedurally and substantively unconscionable.” Hayes v.
Oakridge Home, 908 N.E.2d 408, 412 (Ohio 2009). We review the district court’s denial of a
motion to stay pending the completion of arbitration de novo. Southard v. Newcomb Oil Co., 7
F.4th 451, 454 (6th Cir. 2021). While we are mindful of the strong federal policy in favor of
arbitration, see Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625–26
(1985), the “presumption” favoring arbitration applies only to the scope of arbitration and does
not override the principle that “arbitration is a matter of contract between the parties” subject to
state law governing contract formation, Simon v. Pfizer Inc., 398 F.3d 765, 775 (6th Cir. 2005)
(citation and quotation marks omitted); see also Granite Rock Co. v. Int’l Bhd. of Teamsters, 561
U.S. 287, 303 (2010) (stating that courts are prohibited from using “policy considerations as a
substitute for party agreement”).
III.
A.
Procedural unconscionability. Procedural unconscionability “concerns the formation of
the agreement, and occurs when one party has such superior bargaining power that the other
party lacks a ‘meaningful choice’ to enter into the contract.” Thomas v. Hyundai, 154 N.E.3d
701, 709 (Ohio Ct. App. 2020) (citation omitted). The party asserting the agreement’s
unconscionability must demonstrate that the individualized circumstances surrounding the
contract were so unfair that there was “no voluntary meeting of the minds.” Schaefer v. Jim
Brown, Inc., 33 N.E.3d 96, 100 (Ohio Ct. App. 2015) (citation and quotation marks omitted).
Ohio courts look to the following factors to assess the relative bargaining power of the parties:
“age, education, intelligence, business acumen, and experience in similar transactions—whether
the terms were explained to the weaker party, and who drafted the contract.” Robinson v.
Mayfield Auto Grp., LLC, 100 N.E.3d 978, 985 (Ohio Ct. App. 2017). Hines argues that the
arbitration clause is procedurally unconscionable because she received neither an oral
explanation of the Lease Waiver’s terms nor an opportunity to review the Lease Waiver due to
an imbalance in bargaining power arising from her lack of business experience and her being

-- 5 of 14 --

No. 24-3725 Hines v. Nat’l Entm’t Grp. Page 6
“nearly naked” and “about to start work, which she had paid for,” when she was asked to sign the
Lease Waiver. Neither argument is persuasive.
First, under Ohio law, there is no strict requirement that an arbitration clause must be
explained orally to a party when the arbitration clause at issue is not written in fine print and is
not otherwise hidden from the party. ABM Farms, Inc. v. Woods, 692 N.E.2d 574, 578 (Ohio
1998). Here, the Lease Waiver’s arbitration clause was not written in fine print. The arbitration
clause appears conspicuously in the Lease Waiver; the heading of the arbitration clause appears
in all capital letters, “MANDATORY ARBITRATION AND CLASS/COLLECTIVE ACTION
WAIVER.” DE 4-3, Lease Waiver, Page ID 44. The text of the arbitration clause itself appears
in the same size print as the rest of the Lease Waiver. The text of the arbitration clause also
covers at least half of the entire single-page Lease Waiver.
NEG did not hide the meaning of the arbitration clause with abstruse legal terms.
Instead, the clause plainly states, “[a]ny and all disputes or claims that arise out of this
Agreement, a breach of this Agreement, or out of the relationship between me and
[NEG] . . . shall be resolved by arbitration.” DE 4-3, Lease Waiver, Page ID 44. The last
sentence immediately before the signature line of the Lease Waiver states, “I understand that by
agreeing to the mandatory arbitration set forth herein, I waive my right to a jury trial and to
proceed with any claim against NEG in a court of law.” Id. Under Ohio law, a contracting party
is “presumed to know the reasonable import of the contents of a signed agreement, including the
existence and scope of an arbitration clause.” Ball v. Ohio State Home Servs., Inc., 861 N.E.2d
553, 557 (Ohio Ct. App. 2006) (citation and quotation marks omitted). Although this
presumption does not apply if a party lacks contractual capacity, see KeyBank, N.A. v. David,
2024-Ohio-5333, ¶ 26 (Ohio Ct. App. 2024), Hines does not claim she lacked contractual
capacity, nor does she allege facts that could plausibly support such a conclusion. Therefore, any
argument that the clause is unconscionable because Hines could not understand its meaning is
unpersuasive. Wallace v. Ganley Auto Grp., 2011-Ohio-2909, ¶ 32 (Ohio Ct. App. 2011)
(rejecting argument that an arbitration provision was unconscionable due to the signatories’ lack
of comprehension when the terms of the arbitration clause were clearly written).

-- 6 of 14 --

No. 24-3725 Hines v. Nat’l Entm’t Grp. Page 7
Second, Hines asserts that she lacked an opportunity to read the Lease Waiver when she
signed the same Lease Waivers—with identical arbitration provisions—in January 2022 and
June 2023. According to Hines, because she had already “spent significant time applying
makeup,” was “nearly naked,” and had already paid the fee to work before being presented with
the January 2022 and June 2023 Lease Waivers, DE 14-1, Hines Decl., Page ID 83–84, she was
placed in a weaker bargaining position and was rushed to sign the Lease Waivers on both
occasions. Even if we put aside the fact that Hines had signed the first Lease Waiver in October
2020, which could independently bind Hines to arbitration for claims arising out of that
agreement or “the relationship between [her] and [NEG],” DE 4-1, October 2020 Lease Waiver,
Page ID 40, Hines’s argument concerning the procedural unconscionability of the January 2022
and June 2023 Lease Waivers does not persuade.
Ohio courts have rejected bare allegations that one party lacked the opportunity to review
an arbitration clause as grounds for declining to enforce it. For example, in Conte v. Blossom
Homes, L.L.C., an Ohio court found that a homeowner was unable to establish procedural
unconscionability even though the homeowner stated that he felt rushed to sign the arbitration
agreement. 63 N.E.3d 1245, 1251 (Ohio Ct. App. 2016). Crucial to the court’s holding was that
there was no indication that the drafter of the contract refused to address questions regarding its
provisions or that the homeowner was denied the opportunity to seek third-party advice before
signing. Id. Consistent with Conte, Hines’s allegations that she felt rushed to sign an arbitration
agreement, without more, do not render the Lease Waiver’s arbitration clause procedurally
unconscionable. Cf. Dacres v. Setjo, L.L.C., 140 N.E.3d 1041, 1049 (Ohio Ct. App. 2019)
(rejecting employee’s procedural unconscionability claim based economic duress because “Ohio
employers may condition employment on the agreement of an employee to arbitrate disputes”).
Hines’s failure to review the Lease Waiver before signing it does not negate her intent to be
bound by it. W.K. v. Farrell, 853 N.E.2d 728, 733 (Ohio Ct. App. 2006).
Although Hines argues that she was placed in a weaker bargaining position, “[m]ere
inequality of bargaining power is insufficient to invalidate an otherwise enforceable arbitration
agreement.” Vanyo v. Clear Channel Worldwide, 808 N.E.2d 482, 487 (Ohio Ct. App. 2004).
Hines must allege facts that plausibly support a conclusion that, as a consequence of the

-- 7 of 14 --

No. 24-3725 Hines v. Nat’l Entm’t Grp. Page 8
imbalance of bargaining power, she was coerced into agreement to the arbitration clause. See
Ahmmad v. Ahmed, 38 N.E.3d 434, 445 (Ohio Ct. App. 2015). But the district court did not find
that NEG coerced Hines into signing the Lease Waiver due to an imbalance in bargaining power.
Nor could it.
Hines does not allege that NEG refused to offer Hines additional time to review the
contract provisions or seek legal assistance—much less that it misrepresented the terms of the
Lease Waiver or coerced her into signing the Lease Waiver through other means. The lack of
allegations supporting a claim of coercion in Hines’s own pleadings forecloses her argument that
the arbitration clause is procedurally unconscionable. Id. Even if the Lease Waiver was
presented to Hines in a “pre-printed, standardized form, on a take-it-or-leave-it basis,” she
remained free to walk away from the contract, including its mandatory arbitration provision.2
Dimidik v. Hallrich Inc., No. 3:21-CV-306, 2022 WL 4273404, at *5 (S.D. Ohio Sept. 15, 2022)
(citing Cooper v. MRM Inv. Co., 367 F.3d 493, 500 (6th Cir. 2004)).
The fundamental flaw in Hines’s claim of procedural unconscionability lies in that fact
that Hines, by her own admission, did not read the Lease Waiver before signing it. Under Ohio
law, “[a] person of ordinary mind cannot be heard to say that he was misled into signing a paper
which was different from what he intended, when he could have known the truth by merely
looking when he signed.” ABM Farms, Inc., 692 N.E.2d at 579 (citation omitted). Hines is not
exempt from this rule.
Hines relies on Martin v. ManorCare Health Services, LLC, 246 N.E.3d 598 (Ohio Ct.
App. 2024) and Wascovich v. Personacare of Ohio, 943 N.E.2d 1030 (Ohio Ct. App. 2010), in
support of her argument that the arbitration clause is procedurally unconscionable. But she fails
to mention the key fact that both cases involved elderly, cognitively impaired nursing home
residents. In Martin, a nursing home asked an 85 year old woman who had just been transferred
2The risk of Hines losing out on earnings after having paid a fee to work at NEG’s club is not the kind of
serious economic threat contemplated in Blodgett that leaves one with “no reasonable alternative,” Blodgett v.
Blodgett, 551 N.E.2d 1249, 1251 (1990) (citation and quotation marks omitted), because, in similar circumstances,
Ohio courts have held that an employer’s threats to withhold earned wages are “not so extreme” as to deprive an
employee of meaningful choice, see, e.g., Dacres v. Setjo, L.L.C., 140 N.E.3d 1041, 1045–46, 1051 (Ohio Ct. App.
2019). Therefore, based on the alleged facts, Hines cannot avoid the Lease Waiver’s arbitration provision on a
theory of economic duress.

-- 8 of 14 --

No. 24-3725 Hines v. Nat’l Entm’t Grp. Page 9
from a hospital to sign a series of documents, including an arbitration agreement, prior to her
admission. 246 N.E.3d at 601. Medical records indicated that the woman suffered from “some
level of cognitive decline” and had “misspelled her own name on two of the admission
documents.” Id. at 606. The court concluded that the arbitration clause was procedurally
unconscionable after noting, among other indicia of procedural unconscionability, that “there
[was] no testimony or evidence in the record that [the woman] had the mental capacity to enter
into any contract, including the arbitration agreement.” Id. at 606.
In Wascovich, a 72 year old patient with Alzheimer’s disease had signed an arbitration
agreement immediately after being transferred from a hospital and before admission into a
nursing home. 943 N.E.2d at 1036. The court held that the man lacked meaningful choice when
he had signed an arbitration agreement. Id. at 1038. Crucial to the court’s holding was the fact
that “there [was] no information from any source that would indicate that [the man] expressed
both an understanding and willingness to sign the arbitration agreement,” especially in light of
his diagnosis with Alzheimer’s disease. Id. at 1037. Like in Martin, the court’s finding of
procedural unconscionability centered on whether the signer possessed “the mental capacity to
enter into a contract.” Id. Martin and Wascovich both addressed the particular “concerns
associated with predispute arbitration agreements in the nursing-home arena” and the “delicate
nature of the nursing-home admission process.” Id. at 1034.
Because this case does not involve an individual who lacked the capacity to contract,
both Martin and Wascovich are inapposite. There is nothing in Hines’s pleadings to indicate that
she suffered from advanced age or infirmity, or that she otherwise lacked the capacity to
contract. In the absence of some showing that Hines lacked the capacity to contract (which she
does not claim), Hines, who was a 28 year old adult at the time of signing the most recent June
2023 Lease Waiver, cannot escape “[t]he legal and common-sensical axiom that one must read
what one signs.” ABM Farms, Inc., 692 N.E.2d at 579; see also Preferred Cap., Inc. v. Power
Eng’g Grp., Inc., 860 N.E.2d 741, 745 (Ohio 2007) (“[P]arties to contracts are presumed to have
read and understood them and . . . a signatory is bound by a contract that he or she willingly
signed.”).

-- 9 of 14 --

No. 24-3725 Hines v. Nat’l Entm’t Grp. Page 10
Based on the forgoing reasons, we conclude that Hines has not met her burden of
establishing that the arbitration agreement was procedurally unconscionable. Hines had
reasonable opportunity to understand the plain terms of the arbitration clause, which were not
hidden in a “maze of fine print.” Hedeen v. Autos Direct Online, Inc., 19 N.E.3d 957, 967 (Ohio
Ct. App. 2014) (citation omitted). The Lease Waiver’s arbitration clause is not procedurally
unconscionable, and Hines’s argument that the Lease Waiver’s arbitration clause is
unconscionable fails on this basis alone. See Taylor Bldg. Corp. of Am. v. Benfield, 884 N.E.2d
12, 24 (Ohio 2008).
B.
Substantive unconscionability. Although we need not address Hines’s substantive
unconscionability argument because we have concluded that the arbitration agreement was not
procedurally unconscionable, Hedeen, 19 N.E.3d at 965, the parties’ agreement to arbitrate is not
substantively unconscionable, either. Substantive unconscionability concerns whether the terms
of the agreement are fair or commercially reasonable. Hayes, 908 N.E.2d at 414. A contractual
term is substantively unconscionable when it is “so one-sided as to oppress or unfairly surprise”
a party. Thomas, 154 N.E.3d at 709 (citation and quotation marks omitted).
As a preliminary matter, the district court did not consider the arbitration clause itself in
its substantive unconscionability analysis. The district court’s substantive unconscionability
analysis was limited to consideration of (i) a provision in the separate Club Activity Waiver, and
(ii) a provision of the Lease Waiver that falls outside of the relevant arbitration clause. But in
deciding whether an agreement to arbitrate is enforceable, courts may not consider arguments
concerning the validity of the contract as a whole; instead, courts may only consider “issues
relating to the making and performance of the agreement to arbitrate.” Prima Paint Corp. v.
Flood & Conklin Mfg. Co., 388 U.S. 395, 404 (1967); Great Earth Cos. v. Simons, 288 F.3d 878,
889 (6th Cir. 2002) (“[D]istrict courts may consider only claims concerning the validity of the
arbitration clause itself, as opposed to challenges to the validity of the contract as a whole[.]”).
Therefore, the district court erred in holding that the Lease Waiver’s arbitration clause is
substantively unconscionable based only on its conclusions concerning the separate Club
Activity Waiver and an unrelated provision contained in the Lease Waiver. In evaluating the

-- 10 of 14 --

No. 24-3725 Hines v. Nat’l Entm’t Grp. Page 11
alleged substantive unconscionability of the parties’ agreement to arbitrate, we may only analyze
the terms of the arbitration clause itself. See id. Under the severability principle, separate
arguments unrelated to the arbitration clause itself are “considered by the arbitrator in the first
instance.” Buckeye Check Cashing, 546 U.S. at 446.
Hines disagrees. Hines cites the Supreme Court’s decision in Coinbase, Inc. v. Suski, 602
U.S. 143 (2024), which makes clear that courts evaluate challenges to arbitration agreements
alongside challenges to the overall contract when “a challenge applies ‘equally’ to the whole
contract.” CA6 R. 26, Appellee Br., at 10 (citing Coinbase, 602 U.S. at 151). But, Hines
misapplies Coinbase because her argument that the Lease Waiver’s arbitration provision is
substantively unconscionable does not in fact “appl[y] ‘equally’ to the whole contract.”
Coinbase, 602 U.S. at 151.
In Coinbase, users of a cryptocurrency exchange platform, known as Coinbase, brought a
putative class action against the platform, alleging that a promotional sweepstakes that the users
had entered violated California laws. 602 U.S. at 146–47. To trade on the platform, the
Coinbase users had first agreed to a user agreement that included an arbitration provision
requiring the parties to arbitrate disputes arising out of the agreement, including disputes about
arbitrability. Id. at 146. To participate in the promotional sweepstakes that Coinbase later
offered, the users agreed to a second contract that contained a forum selection clause, under
which users agreed to submit to the jurisdiction of California courts in the event of a dispute
arising out of the sweepstakes. Id. at 146–47. The users argued that the second sweepstakes
contract superseded the first contract containing the mandatory arbitration provision; thus, the
users’ class action was properly submitted to California courts. Id. at 149–50. Like this case, the
threshold issue was whether there was an enforceable agreement to arbitrate. Id. at 150. But the
similarities end there.
In Coinbase, the issue of whether there was a valid agreement to arbitrate necessarily
depended on whether the second sweepstakes contract superseded the first contract, including its
arbitration provision. Id. (“[T]he question whether these parties agreed to arbitrate arbitrability
can be answered only by determining which contract applies.”). The Court held that
“where . . . parties have agreed to two contracts—one sending arbitrability disputes to arbitration,

-- 11 of 14 --

No. 24-3725 Hines v. Nat’l Entm’t Grp. Page 12
and the other either explicitly or implicitly sending arbitrability disputes to the courts—a court
must decide which contract governs.” Id. at 152. Here, although Hines may have agreed to two
separate contracts—the Lease Waiver and the Club Activity Waiver—neither NEG nor Hines
have alleged that one contract supersedes the other.
Hines’s reliance on Coinbase is misplaced. Hines points to the following passage:
The severability principle establishes that a party seeking to avoid arbitration
must directly challenge the arbitration or delegation clause, not just the contract as
a whole. But this rule does not require that a party challenge only the arbitration
or delegation provision. Rather, where a challenge applies “equally” to the
whole contract and to an arbitration or delegation provision, a court must
address that challenge.
602 U.S. at 150–51 (emphasis added) (citing Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 71
(2010)). But Hines’s argument that the Lease Waiver’s arbitration provision is substantively
unconscionable does not “appl[y] ‘equally’ to the whole contract,” id. at 151, because her
challenges to other provisions based on substantive unconscionability are severable, see Rent-A-
Ctr., 561 U.S. at 70 (“[A] party’s challenge to another provision of the contract, or to the contract
as a whole, does not prevent a court from enforcing a specific agreement to arbitrate.”). In Rent-
A-Center, the Court held that “[i]f a party challenges the validity . . . of the precise agreement to
arbitrate at issue, the federal court must consider the challenge before ordering compliance with
that [arbitration] agreement” but, in the absence of a challenge to the agreement to arbitrate
specifically, arguments related to “the validity of the Agreement as a whole” are “for the
arbitrator.” 561 U.S. at 71–72 (emphasis added). Consistent with Rent-A-Center and Coinbase,
Hines’s claims regarding the alleged substantive unconscionability of unrelated provisions in the
same Lease Waiver do not prevent the district court from enforcing the Lease Waiver’s
arbitration provision.3 Thus, on remand, if the district court ultimately determines that the
3Hines also relies on Cleveland v. Power Home Solar, LLC, 245 N.E.3d 413 (Ohio Ct. App. 2024) in
support of her argument that courts may consider arguments concerning the alleged substantive unconscionability of
distinct parts of a contract in determining whether a specific agreement to arbitrate is substantively unconscionable.
But, in Cleveland, the court considered the overall circumstances of a contract only in the context of the plaintiff’s
claim of procedural unconscionability—its analysis of substantive unconscionability only addressed the provisions
of the arbitration clause itself. See 245 N.E.3d at 423–25. We have already considered the overall circumstances
surrounding the formation of the Lease Waiver in the context of Hines’s argument that the Lease Waiver is
procedurally unconscionable. See supra Section III(A).

-- 12 of 14 --

No. 24-3725 Hines v. Nat’l Entm’t Grp. Page 13
remainder of the Stout factors are met, Hines’s separate challenges to the validity of the Lease
Waiver and Club Activity Waiver are severable and “must go to the arbitrator.” Buckeye Check
Cashing, 546 U.S. at 449; Great Earth Cos., 288 F.3d at 890 (“Once the district court determines
that a valid agreement to arbitrate exists, challenges to other distinct parts of the contract are to
be resolved by the arbitrator.”).
Next, Hines argues that the arbitration clause—considered alone—is substantively
unconscionable because it is not supported by consideration. But state and federal courts have
consistently held that a “mutuality of promises” is sufficient consideration to bind both parties to
a contract. See, e.g., Sevier Cnty. Schs. Fed. Credit Union v. Branch Banking & Tr. Co., 990
F.3d 470, 476 (6th Cir. 2021) (applying Tennessee law); Robinson, 100 N.E.3d at 984.
Evaluating the validity of the arbitration clause itself, the Lease Waiver’s arbitration provision
states, “[a]ny and all disputes or claims that arise out of [the] Agreement, a breach of [the]
Agreement, or out of the relationship between [Hines] and National Entertainment Group,
LLC . . . shall be resolved by arbitration.” DE 4-3, Lease Waiver, Page ID 44. Because the
Arbitration Agreement binds both Hines and NEG and applies to any claims that either party
may assert against the other, this agreement to arbitrate contained in the Lease Waiver is
supported by adequate consideration. Therefore, the parties’ agreement to arbitrate is not
substantively unconscionable for lack of consideration.
Relying on Fazio v. Lehman Brothers, Inc., 340 F.3d 386 (6th Cir. 2003), Hines
maintains that the underlying contract must be supported by consideration for an arbitration
clause to be enforceable. Hines misstates our holding in Fazio. Nowhere in Fazio did we
suggest that an arbitration clause is unenforceable if the contract as a whole lacks consideration.
See 340 F.3d at 396–97 (noting only that Ohio courts have held that “mutuality is not a
requirement of a valid arbitration clause if the underlying contract is supported by
consideration”). Instead, we held that an arbitration clause remained enforceable despite self-
help provisions that allowed a stock brokerage firm to unilaterally resolve certain disputes
arising from a stockbroker’s alleged breach of an account agreement. Fazio, 340 F.3d at 397.
We reasoned that, although “the self-help provisions give the brokerage house an upper hand,”
there remained a sufficient mutuality of obligations to enforce the arbitration agreement, given

-- 13 of 14 --

No. 24-3725 Hines v. Nat’l Entm’t Grp. Page 14
that the clients continued to “have as much a right to force arbitration as the brokerage [firm].”
Id. Like the brokerage clients in Fazio, Hines has as much a right to force arbitration as NEG
under the Lease Waiver’s arbitration provision, which requires the arbitration of “all disputes or
claims that arise out of this Agreement, a breach of this Agreement, or out of the relationship
between [Hines] and National Entertainment Group, LLC.” In addition, the Lease Waiver does
not confer to NEG any similar self-help provisions that would give it the “upper hand” or
otherwise allow it to avoid submitting disputes to arbitration. Therefore, Fazio only reaffirms
our conclusion that the Lease Waiver’s arbitration clause, considered in isolation, is supported by
adequate consideration based on a “mutuality of promises” to arbitrate.
Finally, Hines also argues that the arbitration agreement itself is unconscionable because
enforcement of the agreement could result in inconsistent decisions regarding liability. Under
Ohio law, “any inconvenience or potential inconsistency caused by separate actions is not a
legitimate basis for overriding an otherwise enforceable [arbitration] agreement.” Harrison v.
Winchester Place Nursing, 996 N.E.2d 1001, 1008 (Ohio Ct. App. 2013). Therefore, any related
concerns Hines might have regarding judicial economy cannot override an otherwise enforceable
arbitration agreement either. Id.
IV.
The Lease Waiver’s arbitration provision is neither procedurally nor substantively
unconscionable. Because the district court erred in determining that the parties’ arbitration
clause is unconscionable, we vacate the district court’s denial of NEG’s motion to stay pending
the completion of arbitration and remand for the district court to consider the remaining three
factors under Stout v. J.D. Byrider.

-- 14 of 14 --