In Kepas v. eBay, the Tenth Circuit considered an appeal from the Plaintiff-Appellant arguing the district court erred in its decision to compel arbitration over disputes arising out of the employment arbitration agreement. Before compelling arbitration, the district court modified the arbitration agreement, eliminaring the clause which would allow an arbitrator to impose the costs of arbitration on the employee and also included Salt Lake County as an alternative location in the forum-selection clause. It was only after the Appellant pursued his claim through arbitration and lost, and after the district court confirmed the arbitrator's decision, that the Appellant appealed the original motion to compel arbitration with the appellate court. Applying California law as required by the contract's choice of law provision, the court used the standard disctated in Armendariz v. Fountain Health Psychare Services, Inc., to determine whether the district court had erred in determining the arbitration agreement was enforceable after making two modifications.
Skipper Dean, Tenth Circuit Affirms the District Court's Original Decision to Compel Arbitration in an Appeal Made by the Appellant After Losing in Arbitration, 4 259 (2012).