As long as the challenge to the arbitration agreement mentions the delegation provision and makes arguments against it, the threshold requirement of ensuring that the challenge is within statutory limits is met. In evaluating an unconscionability claim under state law, a court must necessarily look to the entirety of the arbitration agreement.
Although the agreement is per se procedurally unconscionable to some degree as a contract of adhesion, the dispute-resolution processes are not unduly surprising. Under state law, a one-sided agreement lacking mutuality of remedy is not inherently substantively unconscionable. In this case, not overly harsh or one-sided.
CONCURRENCE, CONCURRENCE IN JUDGMENT
The precedent cited to the contrary in other circuits, in which a court looks to the substance of the challenge in the threshold analysis, is not meaningfully distinct from considering whether arguments were made against the provision.