FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT

ABRAHAM BIELSKI, on behalf of               No. 22-15566
himself and all others similarly
situated,                               D.C. No. 3:21-cv-
                                          07478-WHA
              Plaintiff-Appellee,

 v.                                          OPINION

COINBASE, INC.,

              Defendant-Appellant.

       Appeal from the United States District Court
         for the Northern District of California
        William Alsup, District Judge, Presiding

                Argued February 14, 2023
                Submitted June 23, 2023
                San Francisco, California

                 Filed December 5, 2023

 Before: Eric D. Miller, Gabriel P. Sanchez, and Salvador
              Mendoza, Jr., Circuit Judges.

               Opinion by Judge Mendoza;
           Partial Concurrence by Judge Miller
2                    BIELSKI V. COINBASE, INC.


                          SUMMARY *


                   Arbitration / Delegation

    The panel reversed the district court’s order denying
Coinbase, Inc.’s motion to compel arbitration of claims
brought by Abraham Bielski, alleging that Coinbase, an
online cryptocurrency exchange, failed to investigate the
unauthorized transfer of funds from Bielski’s Coinbase
account.
    Coinbase’s User Agreement included an arbitration
agreement with a delegation provision, which delegated to
the arbitrator any dispute arising out of the
agreement. Bielski alleged that the delegation provision and
the arbitration agreement were unenforceable.
    As a threshold issue, the panel held that, in order to
challenge a delegation provision to ensure that a court can
review its challenge, the party resisting arbitration must
specifically reference the delegation provision and make
arguments challenging it; a court need not first evaluate the
substance of the challenge, as required by the Sixth and
Eleventh Circuits. Agreeing with the Third and Fourth
Circuits, the panel held that a party may use the same
arguments to challenge both the delegation provision and the
arbitration agreement, so long as the party articulates why
the argument invalidates each specific provision. Because
Bielski specifically challenged the delegation provision, the
district court correctly considered that challenge.


*
 This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   BIELSKI V. COINBASE, INC.                 3


    Next, the panel held that in evaluating an
unconscionability challenge to a delegation provision under
California law, a court must be able to interpret that
provision in the context of the arbitration agreement as a
whole, which may require examining the underlying
agreement as well. The panel determined that the district
court correctly considered the whole context surrounding the
delegation provision in its analysis of the provision’s
validity.
    Finally, the panel held that the delegation provision in
context was not unconscionable. The delegation’s
provision’s low levels of procedural and substantive
unconscionability failed to tip the scales to render the
provision        unconscionable           and        therefore
unenforceable. Accordingly, the panel held that the district
court erred in refusing to enforce the delegation provision,
and reversed the district court’s denial of Coinbase’s motion
to compel arbitration.
    Concurring in part and concurring in the judgment,
Judge Miller joined the majority opinion with the exception
of part III(A). Although he agreed with much of that part,
he did not join it because he did not agree with the majority’s
description of the law of the Sixth and Eleventh Circuits
concerning what is required to challenge a delegation
provision.
4                 BIELSKI V. COINBASE, INC.


                       COUNSEL

Jessica L. Ellswo