MB. JUSTICE HOLLOWAY

delivered the opinion of the court.

In their complaint plaintiffs set forth two causes of action. In the first they claim damages for two coats lost through the alleged negligence of the defendant. In the second cause of action they allege that at Devils Lake, North Dakota, for a valuable consideration then paid by them, they deposited with the defendant in its parcel-room for safekeeping two traveling-bags with their contents; that thereafter on the same date they demanded the property, but the defendant failed and neglected to make return, to their damage in the sum of $619.

*234The answer of the defendant to the first cause of action is not material here. In answer to the second cause of action defendant admits the receipt of the property and its inability to return it. It alleges that the traveling-bags were received by it for storage under a special contract which limited its liability to $10 for the loss of each parcel.

Issues were joined by reply and the cause was tried with the result that a general verdict was returned in favor of defendant upon the first cause of action, and in favor of plaintiffs upon the second cause of action for $520, with interest thereon from September 15, 1920. A judgment was rendered which in terms awarded to defendant its costs incurred exclusively in defense of the first cause of action, and awarded to plaintiffs damages in the sum of $520 with interest, together with their costs incurred in prosecuting the second cause of action.

In due time defendant presented and filed its memorandum [1] of costs, and plaintiffs moved to strike the memorandum from the files and tax the costs. They also moved the court to amend the judgment ’by eliminating therefrom, the provision awarding defendant any costs. On June, 1922, the court entered an order denying to defendant any costs, but reciting that, since the amount of costs claimed had not been inserted in the judgment, a modification of the judgment was unnecessary.

In its notice of appeal defendant recites that it appeals from the judgment and from the order of June 10, 1922. Plaintiffs have moved to dismiss the appeals. The order of June’10 was, in effect, an order taxing costs within the meaning of section' 9803, Revised Codes of 1921 (State ex rel. Pierson v. Millis, 19 Mont. 444, 48 Pac. 773), and is not appealable, but the ruling of the trial court is reviewable on appeal from the judgment (Ferris v. McNally, 45 Mont. 20, 121 Pac. 889).

The appeal from the judgment, then, presents two questions for determination: (1) The extent of defendant’s liability for the loss of the two traveling-bags, and (2) the right of de*235fendant to recover costs incurred by it exclusively in defense of the first cause of action.

It is conceded, as it must be, that the transaction involving [2] the traveling-bags constituted a bailment for the benefit of both parties, or storage, within the meaning of sections 7660-7672, Revised Codes of 1921, and that in the transaction the defendant was not acting as a common carrier. (Fraam v. Grand Rapids & I. Ry. Co., 161 Mich. 556, 21 Ann. Cas. 96, 29 [3-4] L. R. A. (n. s.) 834, 126 N. W. 851.) At the time the traveling-bags were deposited in defendant’s parcel-room plain tiffs received a cheek for each bag. Aside from the serial number, each check had printed on it the following:

“Great Northern Railway Company

“Parcel Room Check.

“Devils Lake, N. Station.

“Conditions.

“1. Ten cents for each 24 hours or fraction thereof.

“2. Issues for one parcel only.

“3. Charges collected on delivery.

“4. This company is not responsible for damages to perishable goods or fragile articles.

“5. Liability in ease of loss or damage not to exceed ten dollars.

“6. If a parcel is not claimed within 30 days, it will be sold for charges.

“7. A deposit of 50 cents will be required if this duplicate check is lost. If it is returned within 60 days refund will be made.

“8. One check will be issued for one parcel only. Parcels with articles attached will not be accepted.”

Plaintiff Vernon R. Jones deposited the bags and received the checks, and in doing so acted for his wife as well as for himself. He testified, in effect, that at the time he received the checks he observed that each of them had a number and other printed matter on it extending from the top to the bottom of the cheek; that he had the opportunity to read the *236printed matter, but did not read it, and if he had read the provisions for limited liability he would not have deposited the parcels with the defendant company; that he accepted the cheeks assuming that they were merely the means of identifying the property. Defendant requested the court to charge the jury that by accepting the checks plaintiffs agreed to the terms printed upon them, including the provision for limited liability, and could not recover more than $10 for the loss of each hand-bag with its contents. The request was denied, and error is predicated upon the ruling.

The relationship of bailor and bailee results from contract, express or implied. In the absence of some special agreement, the measure of the bailee’s liability for the loss of the property through its negligence is the reasonable value of the property (Cohen v. Henry Siegel Co., 220 Mass. 215, 107 N. E. 912), but it is permissible for the parties to agree- specially for limited liability so long as the contract itself does not violate the law or contravene public policy (6 C. J. 1112). The correctness of these principles is not called in question, so that we are confronted primarily with the inquiry: Did these parties enter into a special contract which limited defendant’s liability to $10 for the loss of each parcel?

It is elementary that in order to create a contract there must have been a meeting of minds, or, stated differently, there must have been an offer by one party and its unqualified acceptance by the other. Since it was competent for the defendant as warehouseman to prescribe the terms upon which it would render the services contemplated, it may be conceded that by tendering the checks it made an offer to receive and care for the parcels upon the terms expressed by the matter printed upon them, so that the real question, reduced to its simplest forms, resolves itself into this: Did plaintiffs accept the terms thus proposed? If they had received the checks and had read understandingly the matter printed upon them and then retained them without objection, they would be held to have consented to the terms imposed and bound by the pro*237visions for limited liability. As to the correctness of this ride there cannot be any controversy. If they had received the checks and retained them without knowing that they contained any terms or conditions and without notice from the bailee and upon the assumption that the checks were merely the means of identifying their property, they would not be held bound by the provision for limited liability, upon the theory that the minds of the parties never met; hence the special contract was never entered into.

Though authorities may be found which, in principle, question the correctness of this rule,-we think it is sound and supported by the better reasoned cases. The instant case, however, does not fall strictly within the group governed by either of the foregoing rules. Counsel for defendant cite Terry v. Southern Ry., 81 S. C. 279, 18 L. R. A. (n. s.) 295, 62 S. E. 249, and Misssouri Pac. R. Co. v. Fuqua, 150 Ark. 145, 233 S. W. 926, in support of their contention that plaintiffs are bound by the provisions for limited liability as a matter of law; but in each instance the court assumed that the special contract limiting liability had been actually entered into between the parties, and there is not any mention made of the facts which constituted an acceptance by the bailor, so that each of these cases properly falls within the rules first adverted to above. The record before us discloses that plaintiffs received the parcel checks and examined them sufficiently to know that there was printed matter upon them. They had the opportunity to examine them critically and the capacity to understand the meaning of the matter printed upon them. They did not read the printed matter and did not know that it contained a provision for limited liability, and if they had known of that provision they would not have stored the parcels with defendant. Clearly, as a matter of fact, plaintiffs did not consent to the provision for limited liability, since they did not know of its existence, and they can be bound by it only upon the theory that it was their legal duty to know the contents of the printed matter; hence are chargeable with notice *238thereof and bound to the same extent as if they had knowingly expressed their assent to that particular provision.

A review of the British cases discloses a decided conflict of opinion. In Van Toll v. Southeastern Ry. Co., 12 Q. B. (n. s.) 75, 142 Eng. Reprint, 1071, and Lyons v. Caledonia R. Co., 46 Scott. L. R. 848,, it was held that if the provision for limited liability is plain and obvious the bailor is held, as a matter of law, impliedly to consent to it, whether he read it or did not. In Parker v. Southeastern Ry. Co., 46 L. R. C. P. (n. s.) 768, it was held to be a question of fact whether notice of the limitation of liability o had been brought home to the bailor, who knew that the check contained printed matter but had not read it; and in Harris v. Great Western R. Co., L. R. 1 Q. B. Div. 515, 45 L. J. Q. B. (n. s.) 729, the court declined to say whether the question was one of law or fact, but the judges, sitting as triers of fact as well as of law, held, as a matter of fact, that the bailor in that instance was charged with knowledge of the provision for limited liability and bound thereby. There are very few American cases upon the subject. As indicated above, in Terry v. Southern Ry. and Missouri Pac. Ry. Co. v. Fuqua, the court assumed the existence of the contract for limited liability, and the precise question before us is not mentioned in the opinion in either case.

Counsel for defendant cite Taussig v. Bode, 134 Cal. 260, 86 Am. St. Rep. 250, 54 L. R. A. 774, 66 Pac. 259, which involved an ordinary warehouse receipt given for liquors stored, and which receipt had printed upon it a provision that loss by leakage should be at the owner’s risk. The court held the bailor bound by the provision and said: “It was the duty of respondents to take note of its contents, if they had the opportunity, and their opportunity was ample. The presumption, therefore, is that they did read it. Against this presumption there is no evidence, and none, we think, would have been admissible to show that the respondents had failed to do what their duty required them to do. Assuming, then, that they read the receipt, and, whether they did or not, that they are *239chargeable with knowledge of its contents, they had fair warning that any loss by leakage was at their risk, or, in other words, that the appellant declined all responsibility for loss by leakage. Their acceptance of the receipt and storage of the goods with knowledge of this condition made it binding upon them, as one of the terms of the contract.”

That case is not direct authority upon the question before us, for, though it may be said that defendant was acting in the capacity of warehouseman, the checks issued by it are not warehouse receipts as that term is understood generally. Whatever other function they may perform, they are primarily tokens or means of identification which are to be surrendered when the property is redelivered.

In Healy v. New York Cent. & H. R. R. Co., 153 App. Div. 516, 138 N. Y. Supp. 287, affirmed 210 N. Y. 646, 105 N. E. 1086, it was held that where the bailor did not know of the stipulation for limited liability and his attention was not called to it by the bailee, he was not bound. In a concurring opinion Justice Houghton said: “It seems to me that anyone in the ordinary course of business, checking his baggage at such a place, would regard the check received as a mere token to enable him to identify his baggage when called for, and that in no sense would he have any reason to believe that it embodied a contract exempting the bailee from liability or limiting the amount thereof. If the plaintiff knew that the defendant had limited its liability to $10, either by his attention being called to it or otherwise, then, of course, the law would deem him to have assented to it, so that a binding contract would be effected. If he did not know it, I think the law imposed no duty upon him to read his check to find whether or not there was a contract printed thereon, or that he was guilty of neglect in not so reading it, because he had no reason to apprehend that a contract was printed thereon.”

The facts in Dodge v. Nashville, C. & St. L. Ry. Co., 142 Tenn. 20, 7 A. L. R. 1229, 215 S. W. 274, cannot be distinguished from the facts of the instant ease. Dodge and his *240wife deposited in the railway company’s check-room in Chattanooga their hand-bag for safekeeping and received a numbered cheek which had printed upon it the following: “Not responsible for an amount to exceed ten dollars on any article covered by this cheek.” The hand-bag and contents were lost, and plaintiff sued and recovered the value of the property, $224.50. In the supreme court the bailee insisted that the provision for limited liability constituted a part of the contract and that the bailor was bound thereby. In disposing of the ease the court said: “The complainant testified that nothing was said to him by the young lady in charge of the defendant’s check-room concerning the limited liability clause printed on the check given him, and that his attention was not called to said stipulation. While he does not expressly say so, we think it is inferable from the complainant’s testimony that he did not read or know of the statement printed on the check until after the loss was discovered. * * * ‘The parties to a bailment may diminish the liability of the bailee by special contract, the principle being that the bailee may impose whatever terms he chooses, if he gives the bailor notice that there are special terms, and the means of knowing what they are; and if the bailor chooses to make the bailment, he is bound by them, provided the contract is not in violation of law or of public policy, and that it stops short of protection in cases of fraud or negligence of the bailee; and provided further that the terms of the contract are clear, such stipulations being strictly construed,’ ” citing 6 C. J. 1112. Reference is then made to the decision in Healy v. Railroad Co., and the language of Justice Houghton above is quoted. The Tennessee court then continues: “We think this ¡statement of the law is sound and should control the case at bar. In the absence of notice to the complainant of the stipulation printed upon the check restricting the liability of the defendant, we do not think that he should be bound thereby. # * * We do not think that the complainant, by receiving the numbered cheek, was chargeable with notice of the printed stipulation thereon. We do not *241think that he was bound to regard it as a receipt containing a printed stipulation restricting the liability of the company, in the absence of his attention being called to such stipulation, but was warranted in regarding it as a mere check or token that would enable him and the agent of the defendant to identify his suitcase upon his return and making demand therefor. We do not think that an ordinarily prudent man would have regarded it as more, and the complainant was not guilty of a breach of duty in failing to apprise himself of such limitation. * * * It was simply a numbered check showing that the holder had deposited a parcel of some character with the defendant, which enabled the defendant to identify the •parcel by comparing the number on the check with the number of the duplicate attached to the parcel. * * * It was for safekeeping that the complainant deposited his suitcase with the defendant, for which he was given the check of identification by the young lady in charge. He had no reason to suspect that said check contained any statement restricting the liability of the company, in the absence of his attention being called thereto.”

Speaking in general terms, we agree with this conclusion. If the bailee does not call attention to the provision for limited liability and the bailor does not have actual knowledge of its existence, he is not bound by it, unless his course of conduct is such as to lead the bailee, as a reasonable person, to believe that he assents to the provision; and the mere fact that he retains the check without objection does not, as a matter of law, constitute such conduct, and in the absence of notice from the bailee that the check contains provisions which are intended to become a part of the contract, the bailor is not under legal •duty to read whatever inscription may be upon it.

2. Costs eo nomine were not recoverable by either party at [5, 6] common law. They are the creatures of statutes, and in this state the defendant’s right to recover costs must be made to depend upon our Code provisions. (Spencer v. Mungus, 28 Mont. 357, 72 Pac. 663.)

*242•Section 9787, Revised Codes of 1921, provides that costs are allowed, of course, to plaintiff upon a judgment in his favor in any of the cases therein enumerated. Section 9788 provides: “Costs must be allowed, of course, to the defendant, upon a judgment in his favor in the actions mentioned in the preceding section.” Section 9789 provides for the apportionment or division of costs in actions other than those mentioned in section 9787, and section 9790 likewise provides for the division of costs in an action wherein there are several defendants, defending separately, and plaintiff fails to recover against all of them. Aside from the provisions contained in these last two sections, there is not any statutory authority for dividing or apportioning costs incurred in the district court, and clearly neither of these sections has any application to the cause now before us, since it is one of the actions mentioned in section 9787, and there is but one party defendant.

By enumerating the particular instances in which costs may be apportioned, the statute impliedly excludes the right of apportioning them in any other instances, under the familiar maxim, Expressio unius est exclu-sio alterius, and since plaintiffs recovered a judgment exceeding $50, they were entitled to costs under section 9787, and the court properly struck defendant’s memorandum from the files.

The hardship of this rule of which defendant complains is made manifest, and the argument in favor of a different rule might, with propriety, be addressed to the legislative assembly, but, in the absence of statutory authority, the courts have no discretion in adjudging costs. (Montana Ore Pur. Co. v. Boston & Mont. etc. Co., 27 Mont. 288, 70 Pac. 1114.)

In several states statutes have been enacted to cover cases of this character; for instance, section 14402, Howell’s Michigan Statutes, provides: “Where there are two or more distinct causes of action in separate counts, the plaintiff shall recover costs on those issues which are found for him, and the defendant on those which are found in his favor.” The general rule, however, is stated as follows: “Unless there is statutory author*243ization therefor, costs cannot be apportioned, although both parties be successful in part. Hence, in the absence of such statute, if the plaintiff recovers judgment, although for only part of the relief demanded, he is entitled to costs, as in such cases he is i*egarded as the prevailing party.” (15 C. J. 27.) And again: “In the absence of some special statutory provision for the apportionment of costs, where each party succeeds on one or more of the causes of action, claims, or issues, it would seem that the plaintiff, having obtained judgment for a part of the relief prayed, would, as the prevailing party, be entitled to such costs.” (11 Cyc. 28.)

Section 8167, Revised Statutes of Nebraska of 1913, declares: “Where it is not otherwise provided by this and other statutes, costs shall be allowed of course to the plaintiff, upon a judgment in his favor, in actions for the recovery of money only, or for the recovery of specific real or personal property.” Section 8168 provides that plaintiff shall not recover costs iu certain enumerated cases. Section 8169 provides “Costs shall be allowed of course to any defendant upon a judgment in his favor in the actions mentioned in the last two preceding sections.” Section 8170 declares that the costs may be apportioned in other cases. In International Harvester Co. v. Schultz, 102 Neb. 753, 169 N. W. 428, the construction of these statutes was before the court in an action in which plaintiff’s complaint stated forty-four separate causes of action, but in which it recovered upon only sixteen. In disposing of the question presented the court said: “Each of the forty-four notes was separately stated as a cause of action. While the suit was pending twenty-eight of the notes were paid to plaintiff by the respective makers, and as to such notes the causes of action were dismissed and judgment was rendered for plaintiff on the remaining notes. Defendant argues that, because the suit was dismissed as to the notes paid,, a part of the costs should therefore be taxed to plaintiff. His contention cannot prevail. The power of courts to award and tax costs in legal proceedings was unknown at the common law, (Bran *244 son v. Branson, 84 Neb. 288 [121 N. W. 109].) We have no statute in this state authorizing the court to apportion any part of the costs against plaintiff in an action involving such facts as are presented by the record before us. It follows that, in the absence of such statute the prevailing party is entitled to recover costs. (15 C. J., p. 28,.sec. 14.)

The several provisions of our statutes governing costs must be construed together and, thus construed, section 9788 must be held to apply only in an action wherein the defendant recovers a judgment and the plaintiff is altogether unsuccessful.

The authorities cited by defendant upon this branch of the case are not in point, as the most casual reading will demonstrate. In Louisville & N. R. Co. v. Cofer, 110 Ala. 491, 18 South. 110, there is not any statute cited, and the only authority for apportioning the costs in that'case is 1 Chitty’s Pleading, section 426, erroneously cited as 412. In United States v. Minneapolis, St. P. & S. S. M. Ry. Co. (D. C.), 235 Fed. 951, the court followed the Minnesota statute and awarded the costs to plaintiff as the prevailing party. In St. Louis S. W. Ry. Co. v. Oliver (Tex. Civ. App.), 37 S. W. 642, plaintiff’s complaint stated two separate causes of action for damages. The trial court found for defendants as to the first cause of action, and in favor of plaintiff upon the second cause of action. The court of civil appeals of Texas disposed of the question of costs by saying: “We are clearly of the opinion that all costs that accrued by reason of plaintiff’s claim for damages alleged to have been suffered in November, 1894 [first cause of action] should have been taxed against the plaintiff.” No statute or other authority is cited in support of the conclusion. In Allison v. Thompson, 2 Swan (32 Tenn.), 202, reference is made to the statute, which provided: “In all actions * * * the party in whose favor judgment shall be given, or in case of a nonsuit, * * * the defendant shall be entitled to full costs.” (Acts 1794, Chap. 1, sec. 74.) The court said: “The statute intends that if the plaintiff succeed in his demand, he shall have costs as an incident; but if he fail, he *245shall pay costs to the defendant. The same principle will apply where a number of causes are joined in the same action, and the plaintiff succeeds as to some of them, and fails in the others. It is in effect a nonsuit, as to the alleged causes of action in which he does not succeed.” In Marianna Mfg. Co. v. Boone, 55 Fla. 289, 45 South. 754, the action was for damages and the declaration contained two counts or causes of action. A general verdict was returned in favor of the plaintiff upon the first count only, and judgment was entered for the amount so found, together with plaintiff’s costs. The supreme court held that the verdict was, in effect, a finding in favor of the defendant upon the second count. The court said: “"Where the verdict is in effect for the defendant on any one or more of the counts of a declaration the costs should be taxed as the statute 'and rules direct.” There is not any reference made to a statute or rale of court, but the judgment awarding plaintiff his costs was affirmed.

Plaintiffs’ motion to dismiss the appeal is overruled and the judgment is affirmed.

Affirmed.

Mr. Chief Justice Callaway and Associate Justices Cooper, Galen and Stark concur.

SAMUEL P. KING, Senior District Judge.

Plaintiff Jacqueline Davis (Davis) appeals the district court’s order dismissing her action and compelling arbitration under 9 U.S.C. § 4 based upon an arbitration agreement with her former employer, Defendant O’Melveny & Myers (O’Melveny). *1070On appeal, Davis challenges the enforceability of the arbitration agreement, contending that it is unconscionable under California law. The merits of the underlying claims in her complaint are not at issue here. Because the arbitration agreement is unconscionable under California law, we reverse and remand.

BACKGROUND

On August 1, 2002, O’Melveny adopted and distributed to its employees a new Dispute Resolution Program (DRP) that culminated in final and binding arbitration of most employment-related claims by and against its employees.1 O’Melveny distributed the DRP via interoffice mail and posted it on an office intranet site. A cover memorandum stated: “Please read the attached and direct any questions you may have to a member of the Human Resources Department, the Legal Personnel Department, the Associate Advisory Committee or the Office of the Chair.” Davis, who had worked as a paralegal at a Los Angeles, California, office of O’Melveny since June 1, 1999, received the DRP but apparently did nothing official to question the policy.

By its terms, the DRP became effective three months later, on November 1, 2002. It provides in bold, uppercase print: “THIS DISPUTE RESOLUTION PROGRAM (THE “PROGRAM”) APPLIES TO AND IS BINDING ON ALL EMPLOYEES (INCLUDING ASSOCIATES) HIRED BY — OR WHO CONTINUE TO WORK FOR — THE FIRM ON OR AFTER NOVEMBER 1, 2002.” Davis worked at O’Melveny until July 14, 2003.

On February 27, 2004, Davis filed this lawsuit under the Federal Fair Labor Standards Act (FLSA) and various other state and federal labor statutes, alleging failure to pay overtime for work during lunch time and rest periods and for other work exceeding eight hours a day and 40 hours a week, as well as denial of rest and meal periods. In addition to claims under the FLSA, her nine-count complaint included claims for violations of California Labor Code §§ 558, 2698 and 2699, and for declaratory relief seeking a declaration that the DRP is unconscionable and that O’Melveny’s enforcement of its provisions and other allegedly illegal behavior constituted unfair business practices under California’s Unfair Business Practices Act. The complaint sought damages and injunctive relief on an individual basis and for “all others similarly harmed.”

The DRP covers most employment-related claims, as follows:

Except as otherwise provided in this Program, effective November 1, 2002, you and the Firm hereby consent to the resolution by private arbitration of all claims or controversies, past, present or future ... in any way arising out of, relating to, or associated with your employment with the Firm or the termination of your employment ... that the Firm may have against you or that you may have against the Firm.... The Claims covered by this Program include, but are not limited to, claims for wages or other compensation due; .... and claims for violation of any federal, state or other governmental constitution, law, statute, ordinance, regulation or public policy....

*1071Except as otherwise provided in the Program, neither you nor the Firm will initiate or pursue any lawsuit or administrative action (other than filing an administrative charge of discrimination with the Equal Employment Opportunity Commission, the California Department of Fair Employment and Housing, the New York Human Rights Commission or any similar fair employment practices agency) in any way related to or arising from any Claim covered by this Program.

In addition to administrative charges of discrimination as set forth above, the DRP also excluded certain other types of claims from mandatory arbitration as follows:

This Program does not apply to or cover claims for workers’ compensation benefits; claims for unemployment compensation benefits; claims by the Firm for injunctive relief and/or other equitable relief for violations of the attorney-client privilege or work product doctrine or the disclosure of other confidential information; or claims based upon an employee pension or benefit plan, the terms of which contain an arbitration or other nonjudicial dispute resolution procedure, in which case the provisions of that plan shall apply.

It is undisputed that Davis’s FLSA and related claims regarding overtime “arise out of,” or “relate to,” her employment for purposes of the scope of the DRP. The question here is whether the DRP is enforceable, in whole or in part.

Two other specific provisions of the DRP are also at issue in this appeal: (1) a “notice provision” requiring notice and a demand for mediation within one year from when the basis of the claim is known or should have been known; and (2) a confidentiality clause.

The notice provision provides as follows:

An employee must give written notice of any Claim to the Firm along with a demand for mediation. This notice must be given within one (1) calendar year from the time the condition or situation providing the basis for the Claim is known to the employee or with reasonable effort on the employee’s part should have been known to him or her. The same rule applies to any Claim the Firm has against an employee.... Failure to give timely notice of a Claim along with a demand for mediation will waive the Claim and it will be lost forever. (Bold and underscore in original.)

The confidentiality clause provides as follows:

Except as may be necessary to enter judgment upon the award or to the extent required by applicable law, all claims, defenses and proceedings (including, without limiting the generality of the foregoing, the existence of a controversy and the fact that there is a mediation or an arbitration proceeding) shall be treated in a confidential manner by the mediator, the Arbitrator, the parties and their counsel, each of their agents, and employees and all others acting on behalf of or in concert with them. Without limiting the generality of the foregoing, no one shall divulge to any third party or person not directly involved in the mediation or arbitration the content of the pleadings, papers, orders, hearings, trials, or awards in the arbitration, except as may be necessary to enter judgment upon the Arbitrator’s award as required by applicable law.

After Davis filed suit, O’Melveny moved to dismiss the action and to compel arbitration. The district court upheld the DRP and granted O’Melveny’s motion. Davis filed a timely appeal.

*1072JURISDICTION AND STANDARD OF REVIEW

The Court has jurisdiction over this appeal under 9 U.S.C. § 16(a)(3). A district court’s order compelling arbitration is reviewed de novo. Circuit City Stores, Inc. v. Mantor, 417 F.3d 1060, 1063 (9th Cir.2005) (Mantor II) (citation omitted).

Neither party questioned whether a court&emdash;as opposed to an arbitrator&emdash; should decide whether the DRP is unconscionable. The Ninth Circuit, sitting en banc and applying Buckeye Check Cashing, Inc., v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), recently addressed whether challenges to an arbitration clause or agreement should be decided by a court or an arbitrator. See Nagrampa v. MailCoups, Inc., 469 F.3d 1257 (9th Cir.2006) (en banc). “When the crux of the complaint is not the invalidity of the contract as a whole, but rather the arbitration provision itself, then the federal courts [as opposed to the arbitrator] must decide whether the arbitration provision is invalid and unenforceable under 9 U.S.C. § 2[.]” Id. at 1264. The arbitration agreement challenged in this case is only part of the many conditions and terms of Davis’s employment relationship with O’Melveny. Striking or upholding the arbitration agreement or severing any of its terms would not otherwise affect the legality of other conditions of her employment. Under Nagrampa, then, the question whether O’Melveny’s arbitration agreement is unconscionable is for a court to decide. See id.; cf. Alexander v. Anthony Int’l, L.P., 341 F.3d 256, 264-65 (3d Cir.2003) (exemplifying that a court addresses the unconscionability of an arbitration provision in a suit regarding employment disputes), cited with approval in Nagrampa, 469 F.3d at 1271-72.

DISCUSSION

Under the Federal Arbitration Act (FAA), arbitration agreements “shall be 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. Federal policy favors arbitration. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (reasoning that the FAA “manifest[s] a ‘liberal federal policy favoring arbitration agreements.’ ”) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). Generally, “arbitration affects only the choice of forum, not substantive rights.” EEOC v. Luce, Forward, Hamilton & Scripps, 345 F.3d 742, 750 (9th Cir.2003) (en banc). Of course, arbitration agreements are not always valid. Rather, in assessing whether an arbitration agreement or clause is enforceable, the Court “should apply ordinary state-law principles that govern the formation of contracts.” Circuit City Stores, Inc. v. Adams, 279 F.3d 889, 892 (9th Cir.2002) (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995)).

Under California law, a contractual clause is unenforceable if it is both procedurally and substantively unconscionable. See Armendariz v. Found. Health Psychcare Servs., Inc., 24 Cal.4th 83, 99 Cal.Rptr.2d 745, 6 P.3d 669, 690 (2000); Nagrampa, 469 F.3d at 1280. Courts apply a sliding scale: “the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” Armendariz, 99 Cal.Rptr.2d 745, 6 P.3d at 690. Still, “both [must] be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability.” Id. *1073(quoting Stirlen v. Supercuts, Inc., 51 Cal.App.4th 1519, 60 Cal.Rptr.2d 138, 145 (1997)). We address each prong in turn.

1. Procedural Unconscionability

In assessing procedural uncon-scionability, the court “focuses on whether the contract was one of adhesion. Was it ‘imposed on employees as a condition of employment’? Was there ‘an opportunity to negotiate’? ... ‘[The test] focuses on factors of oppression and surprise.’ ” Soltani v. W. & S. Life Ins. Co., 258 F.3d 1038, 1042 (9th Cir.2001) (citations omitted).

The DRP was written by a sophisticated employer—a national and international law firm, no less—but there are no factors of adhesion such as surprise or concealment. The DRP was not hidden.2 The terms were not concealed in an employee handbook. The binding nature of it was in bold and uppercase text. Terms were not buried in fíne print. O’Melveny not only gave ample notice of the program and its terms, but also made efforts to have employment lawyers and human-resource personnel available to answer questions. There is no evidence (although the case did not progress very far) of undue pressure put on employees.

Nevertheless, in a very real sense the DRP was “take it or leave it.” The DRP’s terms took effect three months after they were announced regardless of whether an employee liked them or not. An employee’s option was to leave and work somewhere else. True, for current employees like Davis, three months might have been sufficient time to consider whether the DRP was reason to leave O’Melveny. In that sense, there could have been a meaningful opportunity to “opt out”—although to opt out of the entire employment relationship, not to retain the relationship but preserve a judicial forum.

In Adams, the Ninth Circuit, applying Armendariz (the controlling California Supreme Court case), found an arbitration agreement procedurally unconscionable because it was a “take it or leave it” proposition. 279 F.3d at 893. Adams reasoned that “[t]he agreement is a prerequisite to employment, and job applicants are not permitted to modify the agreement’s terms—they must take the contract or leave it.” Id. The Ninth Circuit found an agreement in Ferguson v. Countrywide Credit Industries, Inc., 298 F.3d 778, 783 (9th Cir.2002), procedurally unconscionable for the same reason. California courts continue to apply the rationale from Ar-mendariz to find such arbitration contracts procedurally unconscionable. See, e.g., Martinez v. Master Prot. Corp., 118 Cal.App.4th 107, 12 Cal.Rptr.3d 663, 669 (2004) (“An arbitration agreement that is an essential part of a ‘take it or leave it’ employment condition, without more, is procedurally unconscionable.”) (citations omitted).

Conversely, if an employee has a meaningful opportunity to opt out of the arbitration provision when signing the agreement and still preserve his or her job, then it is not procedurally unconscionable. See, e.g., Circuit City Stores, Inc. v. Najd, 294 F.3d 1104, 1108 (9th Cir.2002) (upholding agreement); Circuit City Stores, Inc. v. Ahmed, 283 F.3d 1198, 1200 (9th Cir.2002) (same). Compare Mantor I, 335 F.3d at 1106-07 (finding procedural unconscionability even if employee had been given an “opt out” form, because of undue pressure not to sign the “opt out” *1074form, rendering the opportunity not meaningful).

O’Melveny concedes that its employees were not given an option to “opt out” and preserve a judicial forum. (It does note that employees were invited to ask questions about the DRP, but there is nothing to indicate that the terms were negotiable for employees such as Davis.) But, O’Mel-veny argues — and the district court agreed — that the three months of notice nevertheless satisfies the concern of oppression behind this factor. It relies on a “marketplace alternatives” theory used in cases outside the employment context. See Dean Witter Reynolds, Inc. v. Superior Court, 211 Cal.App.3d 758, 259 Cal.Rptr. 789 (1989). In this regard, Dean Witter stated:

any claim of ‘oppression’ may be defeated if the complaining party had reasonably available alternative sources of supply from which to obtain the desired goods or services free of the terms claimed to be unconscionable. If ‘oppression’ refers to the ‘absence of meaningful choice,’ then the existence of a ‘meaningful choice’ to do business elsewhere must tend to defeat any claim of oppression.

Id. at 795.

Dean Witter addressed mandatory arbitration in a financial services contract. The court reasoned that if the consumer did not like the mandatory arbitration provision in an investment account contract, the consumer could get an account at another company. Id. at 798. The district court here accepted O’Melveny’s argument extending Dean Witter by analogy to the employment context. The rationale is that if Davis did not want to work at O’Melveny (which was free to change most of the terms of her employment with reasonable notice) she had a “meaningful choice” — as in Dean Witter — to “do business elsewhere” by working somewhere else.

It is impossible, however, to square such reasoning with explicit language from Ingle v. Circuit City Stores, Inc., 328 F.3d 1165, 1172 (9th Cir.2003) (Ingle I) and Ferguson, 298 F.3d at 784, specifically rejecting the argument that a “take it or leave it” arbitration provision was procedurally saved by providing employees time to consider the change. In Ingle I, the Ninth Circuit struck a Circuit City arbitration agreement as both procedurally and substantively unconscionable. 328 F.3d at 1172-73. As with O’Melveny’s DRP, the employee Ingle did not have an opportunity to opt out by preserving a judicial forum. Id. at 1172. Circuit City argued that the agreement was enforceable because Ingle had time to consider the arbitration terms, but chose to accept the employment anyway. The Ingle I court rejected Circuit City’s argument.

O’Melveny attempts to distinguish Ingle I in this regard because Davis had three months — -not three days — to consider the arbitration agreement. The distinction, however, is not helpful because even if the opportunity to walk away was “meaningful,” the DRP was still a “take it or leave it” proposition. More importantly, Ingle I reasoned that “[t]he amount of time [the employee] had to consider the contract is irrelevant.” Id. (emphasis added). Ingle I addressed the availability of alternative employment by “follow[ing] the reasoning in Szetela v. Discover Bank, 97 Cal.App.4th 1094, 118 Cal.Rptr.2d 862 (2002), in which the California Court of Appeal held that the availability of other options does not bear on whether a contract is procedurally unconscionable.” Ingle I, 328 F.3d at 1172 (citing Szetela, 118 Cal.Rptr.2d at 867) (emphasis added); see also Ferguson, 298 F.3d at 784 (“[WJhether the plaintiff had an opportunity to decline the *1075defendant’s contract and instead enter into a contract with another party that does not include the offending terms is not the relevant test for procedural unconscionability.”) (emphasis added) (citing Szetela, 118 Cal.Rptr.2d at 867); Fitz v. NCR Corp., 118 Cal.App.4th 702, 13 Cal.Rptr.3d 88, 102 (2004) (finding arbitration contract procedurally unconscionable because employee did not have a meaningful choice to reject a new arbitration agreement imposed with one month’s notice: “Few employees are in a position to forfeit a job and the benefits they have accrued for more than a decade solely to avoid the arbitration terms that are forced upon them by their employer.”).

In Nagrampa, the Ninth Circuit reiterated these principles of California law and specifically rejected the argument that the availability of other employment can defeat a claim of procedural uncon-scionability when an employee is faced with a “take it or leave it” condition of employment. Nagrampa, 469 F.3d at 1283(“The California Court of Appeal has rejected the notion that the availability in the marketplace of substitute employment, goods, or services alone can defeat a claim of procedural unconscionability.”) (emphasis in original) (citations omitted). Na-grampa also distinguished Dean Witter by reasoning that the investor in that case was a sophisticated investor-attorney with specialized knowledge of financial institutions and financial service contracts. Id. In contrast, where&emdash;as is the case with Davis as a paralegal in an international law firm&emdash;the employee is facing an employer with “overwhelming bargaining power” that “drafted the contract, and presented it to[Davis] on a take-it-or-leave-it basis,” the clause is procedurally unconscionable. Id. at 1284; see also Morris v. Redwood Empire Bancorp, 128 Cal.App.4th 1305, 27 Cal.Rptr.3d 797, 807 (2005) (distinguishing Dean Witter and reasoning that “not every opportunity to seek an alternative source of supply is ‘realistic.’ Courts have recognized a variety of situations where adhesion contracts are oppressive, despite the availability of alternatives. For example, ... few employees are in a position to refuse a job because of an arbitration agreement in an employment contract.”) (citations and internal quotation marks omitted); Jones v. Humanscale Corp., 130 Cal.App.4th 401, 29 Cal.Rptr.3d 881, 892 (2005) (“Defendant prepared and submitted the agreement containing the arbitration clause to plaintiff and required him to sign it as a condition of his continued employment, thus rendering the agreement a contract of adhesion.”) (citations omitted).

In short, the DRP is procedurally unconscionable.

2. Substantive Unconscionability

Even if the DRP is procedurally unconscionable, we must also address whether the agreement is (or specific provisions of it are) substantively unconscionable before rendering it (or any of its terms) unenforceable. Armendariz, 99 Cal.Rptr.2d 745, 6 P.3d at 690; Nagrampa, 469 F.3d at 1280-81(reiterating that procedural uncon-scionability is to be analyzed in proportion to evidence of substantive unconscionability).

“Substantive unconscionability relates to the effect of the contract or provision. A ‘lack of mutuality’ is relevant in analyzing this prong. The term focuses on the terms of the agreement and whether those terms are so one-sided as to shock the conscience.” Soltani, 258 F.3d at 1043(in-ternal quotation marks and citations omitted) (emphasis in original). “A determination of substantive unconscionability ... involves whether the terms of the contract are unduly harsh or oppressive.” Adams, *1076279 F.3d at 893 (citation omitted). We proceed to examine individually the four provisions of the DRP that Davis challenges as substantively unconscionable or otherwise void. We then consider whether the provisions we conclude are void may be severed from the rest of the DRP or whether, instead, the DRP is unenforceable in its entirety.

a. The “Notice Provision.”

Davis challenges the DRP’s notice provision. It allows one year within which to give notice from when any claim is “known to the employee or with reasonable effort ... should have been known to him or her.” Davis contends that this notice provision is a substantively-uneon-scionable shortened statute of limitations and that it deprives her of potential application of a “continuing violation” theory.

The challenged provision covers more than merely “notice”; it also requires a demand for mediation within a year (“Failure to give timely notice of a Claim along with a demand for mediation will waive the Claim and it will be lost forever ”) (bold and underscore in original). Under the DRP, then, mediation is a mandatory prerequisite to arbitration.3 The one-year notice provision thus functions as a statute of limitations. Because mediation precedes the arbitration, the “notice provision” requires the whole claim to be filed within a year. One cannot, for example, give written “notice” within a year, but otherwise file a claim later under a longer statute of limitations.4 In short, if the claim is not filed within a year of when it should have been discovered, it is lost.

We have previously held that forcing employees to comply with a strict one-year limitation period for employment-related statutory claims is oppressive in a mandatory arbitration context. O’Melveny’s “notice” provision is similar to the limitations provision in Ingle I, which read:

[a claim] shall be submitted not later than one year after the date on which the [Employee] knew, or through reasonable diligence should have known, of the facts giving rise to the [Employee’s] claim(s). The failure of an [Employee] to initiate an arbitration within the one-year time limit shall constitute a waiver with respect to that dispute relative to that [Employee].

328 F.3d at 1175. We struck down that provision as substantively unconscionable. Id.; see also Mantor I, 335 F.3d at 1107 (adopting Ingle I's statute-of-limitations holding). Likewise, in Adams we invalidated “a strict one year statute of limitation” against bringing employment-related statutory claims as substantively unconscionable. 279 F.3d at 894. California courts have also struck arbitration provisions because of a shortened limitations period. See Martinez, 12 Cal.Rptr.3d at 671-72(finding an arbitration agreement with a six-month limitation period substantively unconscionable because the shortened period is “insufficient to protect its employees’ right to vindicate their statutory rights”). The fact that O’Melveny is also bound to litigate employment-related statutory claims within the one-year period is of no consequence, as these are types of *1077claims likely only to be brought by employees. See Ingle I, 328 F.3d at 1173-74(“The only claims realistically affected by an arbitration agreement between an employer and an employee are those claims employees bring against their employer.”); Martinez, 12 Cal.Rptr.3d at 670.

In holding substantively unconscionable provisions shortening the time to bring employment-related statutory claims, we have been particularly concerned about barring a “continuing violations” theory by employees. Such a theory can be used, for example, when an employer has a “systematic policy of discrimination” consisting of related acts that began prior to period within the statute of limitations. See, e.g., Richards v. CH2M Hill, Inc., 26 Cal.4th 798, 111 Cal.Rptr.2d 87, 29 P.3d 175, 183 (2001) (discussing various continuing violation theories). On this point, Ingle I reasoned:

[A] ‘strict one year statute of limitations on arbitrating claims ... would deprive [employees] of the benefit of the continuing violation doctrine available in FEHA suits.’.... While [the employer] insulates itself from potential damages, an employee foregoes the possibility of relief under the continuing violations doctrine. Therefore, because the benefit of this provision flows only to [the employer], we conclude that the statute of limitations provision is substantively unconscionable.

328 F.3d at 1175 (quoting Adams, 279 F.3d at 894-95) (citation omitted). Likewise, the provision imposed by O’Melveny functions to bar a “continuing violations” theory because it specifically bars any claims not brought within a year of when they were first known (or should have been known). Absent equitable tolling (and it is uncertain whether an arbitrator would allow tolling), such “continuing violations” would be barred by the DRP, because neither notice nor a demand for mediation would have been filed within a year of “the time the condition or situation providing the basis for the Claim is known to the employee or with reasonable effort on the employee’s part should have been known to him or her.”

O’Melveny relies on Soltani, in which the Ninth Circuit expressly found a shortened six-month limitation provision not substantively unconscionable under California law. 258 F.3d at 1044^5. Soltani cited a host of California cases and authority from other jurisdictions finding that, as a general matter, a shortened six-month limitation period is not unreasonable. O’Melveny argues that if six-months is reasonable, then the year given in the DRP must also be reasonable (and thus not substantively unconscionable). Soltani, however, is distinguishable.

Soltani addressed a different type of limitations provision. There, the employment contract required any suit relating to employment to be filed within six-months after the employee left the employer. Id. at 1041. The time to file did not depend upon when the employee knew of the claim, or otherwise when it arose. A three-year-old claim could still be filed, as long as it was also filed within six-months from when the employee stopped working (and as long as it was not otherwise barred by the relevant statute of limitations). This type of provision does not raise the concerns about nullifying the “continuing violations” theory, as the employee would during that six-month period still be able to take full advantage of the ability to reach back to the start of the violation.

Under Ingle I, Adams, and Mantor I (and the subsequent California appeals court decision in Martinez), the DRP’s one-year universal limitation period is substantively unconscionable when it forces an *1078employee to arbitrate employment-related statutory claims.

b. Confidentiality Provision.

Next, Davis challenges the confidentiality provision. She argues that it is overly broad and therefore substantively unconscionable under Ting v. AT&T, 319 F.3d 1126(9th Cir.2003).

In Ting, the Ninth Circuit found a confidentiality clause in an arbitration agreement substantively unconscionable, reasoning as follows.

[Confidentiality provisions usually favor companies over individuals. In Cole [v. Burns Int'l Sec. Servs.], 105 F.3d 1465 [(D.C.Cir.1997)], the D.C. Circuit recognized that because companies continually arbitrate the same claims, the arbitration process tends to favor the company. Id. at 1476. Yet because of plaintiffs’ lawyers and arbitration appointing agencies like the [American Arbitration Association], who can scrutinize arbitration awards and accumulate a body of knowledge on a particular company, the court discounted the likelihood of any harm occurring from the “repeat player” effect. We conclude, however, that if the company succeeds in imposing a gag order, plaintiffs are unable to mitigate the advantages inherent in being a repeat player. This is particularly harmful here, because the contract at issue affects seven million Californians.

Ting, 319 F.3d at 1151-52.

True, Davis’s suit does not allege the kind of repeatable claim that could be made by millions of potential claimants as in Ting, but O’Melveny does have hundreds if not thousands of employees who conceivably could bring claims. In any event, Ting’s concern was not limited strictly to potential claims by millions of “repeat players.” Rather, the logic of Ting in this regard is that even facially mutual confidentiality provisions can effectively lack mutuality and therefore be unconscionable. The opinion goes on to reason

Thus, [the employer] has placed itself in a far superior legal posture by ensuring that none of its potential opponents have access to precedent while, at the same time, [the employer] accumulates a wealth of knowledge on how to negotiate the terms of its own unilaterally crafted contract. Further, the unavailability of arbitral decisions may prevent potential plaintiffs from obtaining the information needed to build a case of intentional misconduct or unlawful discrimination against [the employer].

Id. at 1152.

Here, the DRP’s confidentiality clause as written unconscionably favors O’Melve-ny. The clause precludes even mention to anyone “not directly involved in the mediation or arbitration” of “the content of the pleadings, papers, orders, hearings, trials, or awards in the arbitration” or even “the existence of a controversy and the fact that there is a mediation or an arbitration proceeding.” Such restrictions would prevent an employee from contacting other employees to assist in litigating (or arbitrating) an employee’s case. An inability to mention even the existence of a claim to current or former O’Melveny employees would handicap if not stifle an employee’s ability to investigate and engage in discovery. The restrictions would also place O’Melveny “in a far superior legal posture” by preventing plaintiffs from accessing precedent while allowing O’Melveny to learn how to negotiate and litigate its contracts in the future. Id. Strict confidentiality of all “pleadings, papers, orders, hearings, trials, or awards in the arbitration” could also prevent others from building cases. See id. (“the unavailability of arbitral decisions may prevent potential plaintiffs from obtaining the information *1079needed to build a case of intentional misconduct or unlawful discrimination”). It might even chill enforcement of Cal. Labor Code § 232.5, which forbids employers from keeping employees from disclosing certain “working conditions” and from retaliating against employees who do so.5

O’Melveny responds by arguing that the DRP allows parties to divulge information to those “directly involved” and would therefore allow fact investigation. O’Mel-veny also indicates that, despite the language, the confidentiality clause would not otherwise bar depositions and discovery in a confidential setting. It also relies upon a “savings clause” at the beginning of the provision (“Except as may be necessary to enter judgment upon the award or to the extent required by applicable law”) as indicating that if there’s something wrong with any of the confidentiality clause’s terms, then the improper provision would be subordinated “to the extent required by applicable law”&emdash;i.e., ignored.

But such concessions depend upon overly generous readings of the confidentiality clause. We must deal with the terms as written. See Armendariz, 99 Cal.Rptr.2d 745, 6 P.3d at 697(“[an employer’s concession] does not change the fact that the arbitration agreement as written is unconscionable and contrary to public policy.... No existing rule of contract law permits a party to resuscitate a legally defective contract merely by offering to change it.”) (citation and internal quotation marks omitted). As written, the terms are too broad and implicate Ting’s concerns.

This does not mean that confidentiality provisions in an arbitration agreement are per se unconscionable under California law. See Mercuro v. Superior Court, 96 Cal.App.4th 167, 116 Cal.Rptr.2d 671, 679 (2002) (“While [the California] Supreme Court has taken notice of the ‘repeat player effect,’ the court has never declared this factor renders the arbitration agreement unconscionable per se.”) (citations omitted). The concern is not with confidentiality itself but, rather, with the scope of the language of the DRP. Cf. Zuver v. Airtouch Commc’ns, Inc., 153 Wash.2d 293, 103 P.3d 753, 765 (2004) (En Banc) (“[Although courts have accepted confidentiality provisions in many agreements, it does not necessarily follow that this confidentiality provision is conscionable.”) (emphasis in original).6 The parties to any particular arbitration, especially in an employment dispute, can always agree to limit availability of sensitive employee information (e.g., social security numbers or other personal identifier information) or other issue-specific matters, if necessary. Confidentiality by itself is not substantively unconscionable; the DRP’s confidentiality clause, however, is written too broadly.

c. O’Melveny’s Exemption for Attorney-client Privilege Disputes.

Davis also challenges the DRP’s non-mutual provision exempting O’Melve-*1080ny from arbitration for “claims by the Firm for injunctive and/or other equitable relief for violations of the attorney-client privilege or work product doctrine or the disclosure of other confidential information.”

California law allows an employer to preserve a judicial remedy for itself if justified based upon a “legitimate commercial need” or “business reality.” Armendariz, 99 Cal.Rptr.2d 745, 6 P.3d at 691 (“[A] contract can provide a ‘margin of safety’ that provides the party with superi- or bargaining strength a type of extra protection for which it has a legitimate commercial need without being unconscionable”) (quoting Stirlen, 60 Cal. Rptr.2d at 148); see also Fitz, 13 Cal. Rptr.3d at 103 (“a contracting party with superior bargaining strength may provide ‘extra protection’ for itself within the terms of the arbitration agreement if ‘business realities’ create a special need for the advantage. The ‘business realities’ creating the special need, must be explained in the terms of the contract or factually established.”) (citing Armendariz, 99 Cal.Rptr.2d at 769, 6 P.3d at 691).

O’Melveny justifies this clause by pointing out that it has not only contractual but ethical obligations to clients to protect against violations of the attorney-client privilege and work-product doctrine and otherwise to protect confidential client information. See, e.g., Cal. Bus. & Prof. Code § 6068(e) (“It is the duty of an attorney to ... maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, or his or her client.”); In re Jordan, 7 Cal.3d 930, 103 Cal.Rptr. 849, 500 P.2d 873, 878-79 (1972). Situations are foreseeable where O’Melveny might need a quick court order or injunction to prohibit a current or former employee from releasing privileged information. Where many employees of a law firm might have access to privileged information, a narrow exception to arbitration for judicially-mandated injunctive relief to protect against violations of the attorney-client privilege or work product doctrine or the disclosure of other such confidential information could constitute a legitimate “business reality.”

Initially, California law provides that certain “public injunctions” are incompatible with arbitration (and that such a holding is consistent with the FAA). Actions seeking such injunctions cannot be subject to arbitration even under a valid arbitration clause. See Broughton v. Cigna Healthplans of Cal., 21 Cal.4th 1066, 90 Cal.Rptr.2d 334, 988 P.2d 67, 76-80 (1999) (holding that a claim for public injunctive relief under the CLRA is not arbitrable, although damage claims under the CLRA are arbitrable); Cruz v. PacifiCare Health Sys., Inc., 30 Cal.4th 303, 133 Cal.Rptr.2d 58, 66 P.3d 1157, 1164-65 (2003) (extending Broughton to claims for public injunctive relief under California’s unfair competition law, Business and Professions Code § 17200 et seq.); Zavala v. Scott Brothers Dairy, Inc., 143 Cal.App.4th 585, 49 Cal.Rptr.3d 503, 510 (2006) (“Certainly, plaintiffs’ injunctive relief claim under the unfair business practices act (Bus. & Prof. Code, § 17200) is not arbitrable.”).

Protections against violations of the attorney client privilege and work-product doctrine are primarily for the benefit of clients, and in that sense are “in the public interest.” See Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (observing that the purpose of the attorney-client privilege “is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice”); see also In re Jordan, 103 Cal.Rptr. 849, 500 P.2d at 879(“[P]rotec-*1081tion of [client] confidences and secrets is not a rule of mere professional conduct, but instead involves public policies of paramount importance which are reflected in numerous statutes”).

But, as recently explained in Na-grampa, California law also indicates that protecting against breaches of confidentiality alone does not constitute a sufficient justification. In Nagrampa, the en banc court rejected a clause that allowed a franchisor to file a lawsuit seeking injunctive relief to protect proprietary information. 469 F.Sd at 1286. Nagrampa relied upon O’Hare v. Municipal Resource Consultants, 107 Cal.App.4th 267, 132 Cal.Rptr.2d 116 (2003), which “rejected the employer’s contention that it had a legitimate business justification in the ‘highly confidential and proprietary nature’ of its auditing and consulting work for allowing it, but not the employee, to seek injunctive relief in court.” 469 F.3d at 1286 (citing O’Hare, 132 Cal.Rptr.2d at 124). Rather, “to constitute a reasonable business justification, the justification must be something other that the employer’s desire to maximize its advantage based upon the perceived superiority of the judicial forum.” Id. (citations and internal quotation marks omitted). Nagrampa explained that “California courts routinely have rejected [protecting proprietary information] as a legitimate basis for allowing only one party to an agreement access to the courts for provisional relief.” Id. at 1287(citations omitted).

It may be that a provision allowing a law firm immediate access to a court for a limited purpose of seeking injunctive relief to protect confidential attorney-client information could constitute a legitimate business justification because such relief would fit into an unarbitrable category of “public injunction”&emdash;a proposition of California state law which, as far as this panel can determine, has not been addressed in a published California opinion and which we need not decide here.7 Even assuming such an injunction were not arbitrable, however, the DRP’s provisions are not so limited. Here, the DRP also allows O’Mel-veny to seek “other equitable relief’ for not only violations of the attorney-client privilege or work product doctrine, but also for “the disclosure of other confidential information.” That is, even accepting O’Melveny’s proffered justification, the DRP’s clause is still too broad. Its plain language would allow O’Melveny to go to court to obtain any “equitable relief’ for the disclosure of any “confidential information.” As written, then, the DRP’s non-mutual exception allowing it a judicial remedy to protect confidential information, as written, is “one-sided and thus substantively unconscionable.” Nagrampa, 469 F.3d at 1287.

3. Availability of Statutory Rights

Davis challenges as void against public policy the DRP’s prohibition against most administrative actions. The challenged clause states:

neither you nor the Firm will initiate or pursue any lawsuit or administrative action (other than filing an administrative charge of discrimination with the Equal Employment Opportunity Com*1082mission, the California Department of Fair Employment and Housing, the New York Human Rights Commission or any similar fair employment practices agency) in any way related to or arising from any Claim covered by this Program. (Emphasis added.)

Arbitration is favored as a matter of policy regardless of whether it is in lieu of a judicial or administrative forum. See Gilmer, 500 U.S. at 28-29, 111 S.Ct. 1647(noting securities law claims can be arbitrated even though the SEC is involved in the enforcement of those laws); Southland Corp. v. Keating, 465 U.S. 1, 13, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984) (“[T]he purpose of the [FAA] was to assure those who desired arbitration and whose contracts related to interstate commerce that their expectations would not be undermined by federal judges, or ... by state courts or legislatures.”) (quoting Metro Indus. Painting Corp. v. Terminal Constr. Corp., 287 F.2d 382, 387 (2d Cir.1961) (Lumbard, C.J., concurring) (omission in original)). “Assuming an adequate arbi-tral forum ... ‘by agreeing to arbitrate a statutory claim, a party does not forego the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.’ ” Armendariz, 99 Cal.Rptr.2d 745, 6 P.3d at 679 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)) (square brackets omitted).

Nevertheless, an arbitration agreement may not function so as to require employees to waive potential recovery for substantive statutory rights in an arbitral forum, especially for statutory rights established “for a public reason”-— such as those under The Age Discrimination in Employment Act (ADEA) and the California Fair Employment and Housing Act (FEHA). Gilmer, 500 U.S. at 28, 111 S.Ct. 1647; Armendariz, 99 Cal.Rptr.2d 745, 6 P.3d at 680-81. That is, although such rights are arbitrable, an arbitration forum must allow for the pursuit of the legal rights and remedies provided by such statutes. Armendariz, 99 Cal.Rptr.2d 745, 6 P.3d at 681 (citing Cole, 105 F.3d at 1481-82). In this context, employment rights under the FLSA and California’s Labor Code are “public rights” analogous to rights under the ADEA and FEHA. See, e.g., Albertson’s, Inc. v. United Food & Commercial Workers Union, 157 F.3d 758, 761 (9th Cir.1998).

As explained earlier, California law provides that certain “public injunctions” are incompatible with arbitration. See Broughton, 90 Cal.Rptr.2d 334, 988 P.2d at 76-80(holding that a claim for public in-junctive relief under California’s Consumer Legal Remedies Act (CLRA) is not arbi-trable, although damages claims under the CLRA are arbitrable); Cruz, 133 Cal. Rptr.2d 58, 66 P.3d at 1164-65 (extending Broughton to claims for public injunctive relief under California’s unfair competition law, Business and Professions Code § 17200 et seq.); Zavala, 49 Cal.Rptr.3d at 510. It follows that the DRP may not prohibit — i.e., require arbitration of — judicial actions seeking such public injunctive relief. Here, at least two counts of Davis’s complaint seek, among other things, such public injunctive relief under California’s Labor Code and Unfair Business Practices Act. To that extent, at minimum, the DRP is unenforceable.

More importantly, however, the DRP’s all-inclusive bar to administrative actions (even given the listed exceptions for EEOC and California Department of Fair Housing (“DFEH”) complaints) is contrary to U.S. Supreme Court and California Supreme Court precedent. O’Melveny recognizes that an exemption for EEOC and similar state-level administrative claims is *1083necessary. See Gilmer, 500 U.S. at 28, 111 S.Ct. 1647(“An individual ADEA claimant subject to an arbitration agreement will still be free to file a charge with the EEOC, even though the claimant is not able to institute a private judicial action.”); Armendariz, 99 Cal.Rptr.2d 745, 6 P.3d at 679 n. 6 (“Nothing in this opinion, however, should be interpreted as implying that an arbitration agreement can restrict an employee’s resort to the Department of Fair Employment and Housing, the administrative agency charged with prosecuting complaints made under the FEHA. ... ”) (citing Gilmer, 500 U.S. at 28, 111 S.Ct. 1647). Presumably, the DRP specifically excludes such administrative complaints because of these cases. O’Melveny also acknowledges that the clause does not bar the EEOC or a similar state agency from seeking relief (in court) that is not individual-specific, such as a class action. The clause also could not bar an EEOC-instituted judicial action that might also seek victim-specific relief. See EEOC v. Waffle House, Inc., 534 U.S. 279, 295-96, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002). Therefore, under Gil-mer and Armendariz, a clause that barred or required arbitration of administrative claims to the EEOC would be void as against public policy.

The exception (i.e., preclusion from arbitration) for administrative complaints to the EEOC and California DFEH was premised on the agencies’ public purpose for the relief and their independent authority to vindicate public rights. Gilmer, 500 U.S. at 27, 111 S.Ct. 1647; Waffle House, 534 U.S. at 291-92, 294-96, 122 S.Ct. 754. Indeed, the EEOC’s enforcement scheme relies upon individual complaints. “Consequently, courts have observed that an individual may not contract away her right to file a charge with the EEOC[.]” EEOC v. Frank’s Nursery & Crafts, Inc., 177 F.3d 448, 456 (6th Cir.1999) (citations omitted); cf. Waffle House, 534 U.S. at 296 n. 11, 122 S.Ct. 754 (“We have generally been reluctant to approve rules that may jeopardize the EEOC’s ability to investigate and select cases from a broad sample of claims.”).

So it is with the Department of Labor and FLSA complaints — such complaints may not be waived with an arbitration clause because the statutory scheme is premised on an employee’s willingness to come forward, in support of the public good. See Mitchell v. Robert De Mario Jewelry, Inc., 361 U.S. 288, 292, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960) (“Congress did not seek to secure compliance with prescribed standards [under the FLSA] through continuing detailed federal supervision or inspection of payrolls. Rather it chose to rely on information and complaints received from employees seeking to vindicate rights claimed to have been denied. Plainly, effective enforcement could thus only be expected if employees felt free to approach officials with their grievances.”); Lambert v. Ackerley, 180 F.3d 997, 1003-04 (9th Cir.1999) (en banc) (explaining the importance of the FLSA’s scheme of individual complaints by employees); Painting & Drywall Work Pres. Fund, Inc. v. Dep’t of Hous. & Urban Dev., 936 F.2d 1300, 1301(D.C.Cir.1991) (“Both the Department of Labor and the Department of Housing and Urban Development ... enforce compliance with these [wage] laws. In doing so, they often rely on complaints from workers and unions.”).

Even if the DRP does not preclude the Department of Labor or California Labor Commissioner from instituting independent actions, the DRP precludes any individual complaint or notification by an employee to such agencies. By not allowing employees to file or to initiate such administrative charges, the DRP is contrary to the same public policies relied upon in Gilmer and Armendariz. It follows that *1084the same exception should apply. Therefore, the DRP’s prohibition of administrative claims is void.

4. Severability

That the arbitration agreement contains these flawed provisions does not necessarily mean that the entire DRP is substantively unconscionable. Rather, it might be possible to sever the one-year limitations provision (even though the DRP itself does not have a severability clause). See Cal. Civ.Code § 1670.5(a) (“If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.”). The question is whether the offending clause or clauses are merely “collateral” to the main purpose of the arbitration agreement, or whether the DRP is “permeated” by unconscionability. Armendariz, 99 Cal.Rptr.2d 745, 6 P.3d at 696.

Most of the terms in the DRP are expressly mutual. Unlike the agreements struck down in Ingle I and Adams, O’Mel-veny’s DRP applies almost equally to claims both by and against O’Melveny. The DRP requires arbitration of claims “that the Firm may have against you or that you may have against the Firm.” Under the DRP’s terms, arbitration is required not only for claims by an employee (claims such as failure to pay overtime), but also for claims an employer might bring against an employee (such as theft, embezzlement, gross negligence, or destruction of property).

Nevertheless, the DRP is procedurally unconscionable and contains four substantively unconscionable or void terms: (1) the “notice” provision, (2) the overly-broad confidentiality provision, (3) an overly-broad “business justification” provision, and (4) the limitation on initiation of administrative actions. These provisions cannot be stricken or excised without gutting the agreement. Despite a “liberal federal policy favoring arbitration agreements,” Moses H. Cone Memorial Hospital, 460 U.S. at 24, 103 S.Ct. 927, a court cannot rewrite the arbitration agreement for the parties. Given the scope of procedural and substantive unconscionability, the DRP is unenforceable. Armendariz, 99 Cal.Rptr.2d 745, 6 P.3d at 697(“multiple defects indicate a systematic effort to impose arbitration on an employee not simply as an alternative to litigation, but as an inferior forum that works to the employer’s advantage.... Because a court is unable to cure this unconscionability through severance or restriction, and is not permitted to cure it through reformation and augmentation, it must void the entire agreement.”).

CONCLUSION

The arbitration agreement is unconscionable under California law. We reverse and remand for proceedings not inconsistent with this opinion.

CHIN, Circuit Judge:

In 2014, plaintiff-counter-defehdant-ap-pellee Spencer Meyer downloaded onto his smartphone a software application offered by defendant-counter-claimant-appellant Uber Technologies, Inc. (“Uber”), a technology company that operates, among other things, a ride-hailing service, Meyer then registered for an Uber account with his smartphone. After using the application approximately ten times, Meyer brought this action on behalf of himself and other similarly situated Uber accountholders against Uber’s co-founder and former Chief Executive Officer, defendant-appellant Travis Kalanick, alleging that the Uber application allows third-party drivers to illegally fix prices. The district court joined Uber as a defendant and denied motions by Kalanick and Uber to compel arbitration. In doing so, the district court concluded that Meyer did not have reasonably conspicuous notice of and did not unambiguously manifest assent to Uber’s Terms of Service when he registered. The district court held that Meyer therefore was not bound by the mandatory arbitration provision contained in the Terms of Service.

For the reasons set forth below, we vacate and remand for further proceedings consistent with this opinion.

BACKGROUND

A. The Facts

The facts are undisputed and are summarized as follows;

Uber offers a software application for smartphones (the “Uber App”) that allows riders to request rides from third-party drivers. On October 18, 2014, Meyer registered for an Uber account with the Uber App on a Samsung Galaxy S5 .phone running an Android operating system. After registering, Meyer took ten rides with Uber drivers in New York, Connecticut, Washington, D.C., and Paris.

In support of its motion to compel arbitration, Uber submitted a declaration from Senior Software Engineer Vincent Mi, in which Mi represented that Uber maintained records of when and how its users registered for the service and that, from his review of those records, Mi was able to identify the dates and methods by which Meyer registered for a user account. Attached to the declaration were screenshots of the two screens that a user registering in October 2014 with an Android-operated smartphone would have seen during the registration process.1

The first screen, at which the user arrives after downloading the application and clicking a button marked “Register,” is labeled “Register” and includes fields for the user to enter his or her name, email address, phone number, and a password (the “Registration Screen”). The Registration Screen also offers the user the option to register via a Google + or Facebook account. According to Uber’s records, Meyer did not sign up using either Goo*71gle + or Facebook and would have had to enter manually his personal information.2

After completing the information on the Registration Screen and clicking “Next,” the user advances to a second screen labeled “Payment” (the “Payment Screen”), on which the user can enter credit card details or elect to make payments using PayPal'or Google Wallet, third-party payment services. According to Uber’s records, Meyer entered his credit card information to pay for rides. To complete the process, the prospective user must click the button marked “REGISTER” in the middle of the Payment Screen.

Below the input fields and buttons on the Payment Screen is black text advising users that “[b]y creating an Uber account, you agree to the TERMS OF SERVICE & PRIVACY POLICY.” See Addendum B. The capitalized phrase, which is bright blue and underlined, was a hyperlink that, when clicked, took the user to a third screen containing a button that, in turn, when clicked, would then display the current version of both Uber’s Terms of Service and Privacy Policy.3 Meyer recalls entering his contact information and credit card details before registering, but does not recall seeing or following the hyperlink to the Terms and Conditions. He declares that he did not read the Terms and Conditions, including the arbitration provision.

When Meyer registered for an account, the Terms of Service contained the following mandatory arbitration clause:

Dispute Resolution

You and Company agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Service or Application (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Company are each waiving the right to a trial by jury or to participate as a plaintiff or class User in any purported class action or representative proceeding. Further, unless both you and Company otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dis*72pute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of this Agreement.

Appellants’ App. at 111-12.4 The Terms of Service further provided that the American Arbitration Association (“AAA”) would hear any dispute, and that the AAA Commercial Arbitration Rules would govern any arbitration proceeding.

B. The District Court Proceedings

On December 16, 2015, Meyer, on behalf of a putative class of Uber riders, filed this action against Kalanick, alleging that the Uber App allows drivers to fix prices amongst themselves, in violation of the Sherman Act, 15 U.S.C. § 1, and the Don-nelly Act, N.Y. Gen. Bus. Law § 340. Meyer amended his complaint on January 29, 2016; the Amended Complaint also named only Kalanick, and not Uber, as the defendant.

The district court denied Kalanick’s motion to dismiss the Amended Complaint for failure to state a claim.5 Kalanick filed a motion to join Uber as a necessary party, and Uber separately moved to intervene. On June 19, 2016, the district court granted Kalanick’s motion and ordered that Uber be joined as a defendant. It subsequently denied Uber’s motion as moot.

After the parties began to exchange, discovery materials, Kalanick and Uber filed motions to compel Meyer to arbitrate. The district court denied the motions, concluding that Meyer did not have reasonably conspicuous notice of the Terms of Service and did not unambiguously manifest assent to the terms. See Meyer v. Kalanick, 200 F.Supp.3d 408, 420 (S.D.N.Y. 2016). Holding that no agreement had been formed, the district court did not reach Meyer’s other defenses to arbitration, including whether defendants waived their right to arbitrate by actively participating in the litigation and whether Kalanick was also entitled to enforce an arbitration agreement to which he was not a signatory. Id. at 412.

Defendants timely appealed the district court’s July 29, 2016 order denying the motions to compel arbitration pursuant to 9 U.S.C. § 16, which permits interlocutory appeals from the denial of a motion to compel arbitration. The district court stayed the underlying action pending appeal' on the joint motion of defendants, taking into account, inter alia, “the need for further appellate clarification of what constitutes adequate consent to so-called ‘clickwrap,’ ‘browsewrap,’ and other such website agreements.” Meyer v. Kalanick, 203 F.Supp.3d 393, 396 (S.D.N.Y. 2016).

DISCUSSION

We consider first whether there is a valid agreement to arbitrate between Meyer and Uber and then whether defendants • have waived their right to enforce any such agreement to compel arbitration.

I. The Arbitration Agreement

We'review de novo the denial of a motion to compel arbitration. Specht v. Netscape Commc'ns Corp., 306 F.3d 17, 26 (2d Cir. 2002). The determination of whether parties have contractually bound *73themselves to arbitrate is a legal conclusion also subject to de novo review. Id. The factual findings upon which that conclusion is based, however, are reviewed for clear error. Id.

The parties .dispute whether the district court’s determinations regarding the lack of reasonably conspicuous notice or an unambiguous manifestation of assent are findings of fact, subject to clear error review, or conclusions of law, subject to de novo review. Although determinations regarding mutual assent and reasonable notice usually involve questions of fact, Chi. Title Ins. Co. v. AMZ Ins. Servs., Inc., 188 Cal.App.4th 401, 115 Cal.Rptr.3d 707, 725 (2010) (mutual assent); Union Oil Co. v. O’Riley, 226 Cal.App.3d 199, 276 Cal.Rptr. 483, 492 (1990) (reasonable notice), the facts in this case are undisputed, and the district court determined as a matter of law that no reasonablé factfinder could have found that the notice was reasonably conspicuous and the assent unambiguous. Cf. HM DG, Inc. v. Amini, 219 Cal.App.4th 1100,162 Cal.Rptr.3d 412, 418 (2013) (“[I]f the material facts are certain or undisputed, the existence of a contract is a question for the court to decide.” (citation and internal quotation omitted)).6

We therefore review the district court’s conclusions de novo. See Specht, 306 F.3d at 27-28; Long v. Provide Commerce, Inc., 245 Cal.App.4th 855, 200 Cal.Rptr.3d 117, 123 (2016) (“Because the material evidence consists exclusively of screenshots from the Web site and order confirmation email, and the authenticity of these screen-shots is not subject to factual dispute, we review the issue de novo as a pure question of law.”).

A. Applicable Law

1. Procedural Framework

Under the Federal Arbitration Act (the “FAA”), “[a] written provision in ... a contract ... to settle by arbitration a controversy thereafter arising out of such contract ,.. shall be valid, irrevocable, and enforceable.” 9 U.S.C. § 2. The FAA reflects “a liberal federal policy favoring arbitration agreements,” AT & T Mobility LLC v. Concepcion, 563 U.S. 333, 346, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)), and places arbitration agreements on “the same footing as other contracts,” Schnabel v. Trilegiant Corp., 697 F.3d 110, 118 (2d Cir. 2012) (quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 511, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974)). It thereby follows that parties are not required to arbitrate unless they have agreed to do so. Id.

Thus, before an agreement to arbitrate . can be. enforced, .the district court must first determine whether such agreement exists between the parties. Id. This question is determined by state contract *74law. Nicosia v. Amazon.com, Inc., 834 F.3d 220, 229 (2d Cir. 2016).

Here, the question of arbitrability arose in the context of a motion to compel arbitration. Courts deciding motions to compel apply a “standard similar to that applicable for a motion for summary judgment.” Id. (quoting Bensadoun v. Jobe-Riat, 316 F.3d 171, 175 (2d Cir. 2003)). On a motion for summary judgment, the court “considers] all relevant, admissible evidence submitted by the parties and contained in ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with ... affidavits,’ ” Chambers v. Time Warner, Inc., 282 F.3d 147, 155 (2d Cir. 2002) (quoting Fed. R. Civ. P. 56(c)) (second alteration in original), and draws all reasonable inferences in favor of the non-moving party. Nicosia, 834 F.3d at 229.

“[Wjhere the undisputed facts in the record require the matter of arbitrability to be decided against one side or the other as a matter of law, we may rule on the basis of that legal issue and ‘avoid the need for further court proceedings.’ ” Wachovia Bank, Nat. Ass’n v. VCG Special Opportunities Master Fund, 661 F.3d 164, 172 (2d Cir. 2011) (quoting Bensadoun, 316 F.3d at 175). If a factual issue exists regarding the formation of the arbitration agreement, however, remand to the district court for a trial is necessary. Bensadoun, 316 F.3d at 175; 9 U.S.C. § 4.

If the district court concludes that an agreement to arbitrate exists, “it should then consider whether the dispute falls within the scope of the arbitration agreement.” Specht, 306 F.3d at 26 (quoting Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 844 (2d Cir. 1987)). In this case, the parties do not dispute that Meyer’s claims would be covered by the arbitration provision of the Terms of Service.

2. State Contract Law

“State law principles of contract formation govern the arbitrability question.” Nicosia, 834 F.3d at 231. The district court applied California law in its opinion, but acknowledged that it “[did] not view the choice between California law and New York law as dispositive with respect to the issue of whether an arbitration agreement was formed.” Meyer, 200 F.Supp.3d at 412-13. Defendants have not challenged the district court’s choice of law but state that “if this Court concludes that New York law differs from California law with respect to any determinative issues, it should apply New York law.” Appellants’ Br. at 17 n.2. We agree with the district court’s determination that California state law applies, and note that New York and California apply “substantially similar rules for determining whether the parties have mutually assented to a contract term.” Schnabel, 697 F.3d at 119.

To form a contract, there must be “Mutual manifestation of assent, whether by written or spoken word or by conduct.” Specht, 306 F.3d at 29. California law is clear, however, that “an offeree, regardless of apparent manifestation of his consent, is not bound by inconspicuous contractual provisions of which he is unaware, contained in a document whose contractual nature is not obvious.” Id. at 30 (quoting Windsor Mills, Inc. v. Collins & Aikman Corp., 25 Cal.App.3d 987, 101 Cal.Rptr. 347, 351 (1972)). “Thus, California contract law measures assent by an objective standard that takes into account both what the offeree said, wrote, or did and the transactional context in which the of-feree verbalized or acted.” Id. at 30.

Where there is no evidence that the offeree had actual notice of the terms of the agreement, the offeree will still be bound by the agreement if a rea*75sonably prudent user would be on inquiry-notice of the terms. Schnabel, 697 F.3d at 120; Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1177 (9th Cir. 2014). Whether a reasonably prudent user would be on inquiry notice turns on the “(cjlarity and conspicuousness of arbitration terms,” Specht, 306 F.3d at 30; in the context of web-based contracts, as discussed further below, clarity and conspicuousness are a function of the design and content of the relevant interface. See Nicosia, 834 F.3d at 233.

Thus, only if the undisputed facts establish that there is “[r]easonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms” will we find that a contract has been formed. See Specht, 306 F.3d at 35.

3. Web-based Contracts

“While new commerce on the Internet has exposed courts to many new situations, it has not fundamentally changed the principles of contract.” Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 (2d Cir. 2004). “Courts around the country have recognized that (an] electronic ‘click’ can suffice to signify the acceptance of a contract,” and that “(t]here is nothing automatically offensive about such agreements, as long as the layout and language of the site give the user reasonable notice that a click will manifest assent to an agreement.” Sgouros v. TransUnion Corp., 817 F.3d 1029, 1033-34 (7th Cir. 2016).

With these principles in mind, one way in which we have previously distinguished web-based contracts is the manner in which the user manifests assent — namely, “clickwrap” (or “click-through”) agreements, which require users to click an “I agree” box after being presented with a list of terms and conditions of use, or “browsewrap” agreements, which generally post terms and conditions on a website via a hyperlink at the bottom of the screen. See Nicosia, 834 F.3d at 233; see also Nguyen, 763 F.3d at 1175-76.7 Courts routinely uphold clickwrap agreements for the principal reason that the user has affirmatively as'sented to the terms of agreement by clicking “I agree.” See Fteja v. Facebook, Inc., 841 F.Supp.2d 829, 837 (S.D.N.Y. 2012) (collecting cases). Browse-wrap agreements, on the other hand, do not require the user to expressly assent. See Juliet M. Moringiello, Signals, Assent and Internet Contracting, 57 Rutgers L. Rev. 1307,1318 (2005) (“[B]rowse-wrap encompasses all terms presented by a web site that do not solicit an explicit manifestation of assent.”). “Because no affirmative action is required by the website user to agree to the terms of a contract other than his or her use of the website, the determination of the validity of the browsewrap contract depends on whether the user has actual or constructive knowledge of a website’s terms and conditions.” Nguyen, 763 F.3d at 1176 (citation omitted); see also Schnabel, 697 F.3d at 129 n.18; Specht, 306 F.3d at 32.

Of course, there are infinite ways to design a website or smartphone application, and not all interfaces fit neatly into the clickwrap or browsewrap categories. Some online agreements require the user to scroll through the terms before the user can indicate his or her assent by clicking “I agree.” See Berkson v. Gogo LLC, 97 F.Supp.3d 359, 386, 398 (E.D.N.Y. 2015) (terming such agreements “scrollwraps”). Other agreements notify the user of the existence of the website’s terms of use and, *76instead of providing an “I agree” button, advise the user that he1 or she is agreeing to the terms of service when registering or signing up. Id. at 399 (describing such agreements as “sign-in-wraps”).

In the interface at issue in this case, a putative user is not required to assent explicitly to the contract terms; instead, the user must click a button marked “Register,” underneath which the screen states “By creating an Uber account, you agree to the TERMS OF SERVICE Schnabel, but the plaintiffs had not preserved the issue of whether they were on inquiry notice of the arbitration provision by a “terms and conditions” hyperlink on an enrollment form available before enrollment. Schnabel, 697 F.3d at 121 n.9, 129-30. Most recently in Nicosia, we held that reasonable minds could disagree regarding the sufficiency of notice provided to Amazon.com customers when placing an order through the website. Nicosia, 834 F.3d at 237.8

Following our precedent, district courts considering similar agreements have found them valid where the existence of the terms was reasonably communicated to the user. Compare Cullinane v. Uber Techs., Inc., No. 14-14750-DPW; 2016 WL 3751652, at *7 (D. Mass. July 11, 2016) (applying Massachusetts law and granting motion to Compel arbitration); Starke v. Gilt Groupe, Inc., No. 13 Civ. 5497(LLS), 2014 WL 1652225, at *3 (S.D.N.Y. Apr. 24, 2014) (applying New York law and granting motion to dismiss); and Fteja, 841 F.Supp.2d at 839-40 (granting defendant’s motion to transfer based, on, inter alia, forum selection clause in terms of service); with Applebaum v. Lyft, Inc., No. 16-cv-07062 (JGK), 2017 WL 2774153, at *8-9 (S.D.N.Y. June 26, 2017) (applying New York law and denying motion to compel arbitration where notice of contract terms was insufficient to bind plaintiff). See also Woodrow Hartzog, Website Design As Contract, 60 Am. U. L. Rev. 1635, 1644 (2011) (“Courts oscillate on ‘notice sentence browsewraps,’ which proyide users with a link to terms of use but do not require users to acknowledge that they have seen them.”).

Classification of web-based contracts alone, however, does not resolve the- notice inquiry. See Juliet M. Moringiel-lo and William L. Reynolds, From Lord Coke to Internet Privacy: The Past, Present, and Future of the Law of Electronic Contracting, 72 Md. L. Rev. 452, 466 (2013) (“Whether terms are classified as clickwrap says little about whether the offeree had notice of them.”). Insofar as it turns on the reasonableness of notice, the enforceability of a web-based agreement is clearly a fact-intensive inquiry. See Schnabel, 697 F.3d at 124. Nonetheless, on a motion to compel arbitration, we may determine'' that an agreement to- arbitrate exists where the notice of the arbitration provision was reasonably conspicuous and manifestation of assent unambiguous as a matter of law. See Specht, 306 F.3d at 28.

B. Application

Meyer attests that he- was not on actual notice of the hyperlink to the Terms of Service or the arbitration provision itself, and defendants do not point to evidence *77from which a jury could infer otherwise. Accordingly, we must consider whether Meyer was on inquiry notice of the arbitration provision by virtue of the hyperlink to the Terms of Service on the Payment Screen and, thus, manifested his assent to the agreement by clicking “Register.”

As an initial matter, defendants argue that Meyer is precluded from arguing that no contract was formed by an allegation in his complaint that “[t]o become an Uber account holder, an individual first must agree to Uber’s terms and conditions.” Appellants’ Br. at 18-19, 32 (quoting Compl. ¶ 29; Am. Compl. ¶ 29). We disagree. First, as the district court observed, the pleading is not obviously a concession in that it makes no reference to Meyer’s knowledge. See Meyer, 200 F.Supp.3d at 413. Second, Meyer volunteered to amend his complaint on the record to delete the allegation at issue, an offer that was accepted by the district court. Third, regardless of the allegation or even the validity .of Meyer’s amendment, Meyer has attested that, at the time he signed up for an Uber account, he was not aware of the existence of the Terms of Service or the arbitration clause contained therein. Construing the facts in Meyer’s favor, we decline to hold that he agreed to arbitration based on the purported concession in his complaint. See Windsor Mills, Inc., 101 Cal.Rptr. at 351 (“[A]n offeree, regardless of apparent manifestation of his consent, is not bound by inconspicuous contractual provisions of which he is unaware, contained in a document whose contractual nature is not obvious.”).

1. Reasonably conspicuous notice

In considering the question of reasonable conspicuousness, precedent and basic principles of contract law instruct that we consider the perspective of a reasonably prudent smartphone user. See Schnabel, 697 F.3d at 124 (“[T]he touchstone of the analysis is whether reasonable people in the position of the parties would have known about the terms and the conduct that would be required to assent to them.”).' “[M]odern cell phones ..'. are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude'they were an important feature of human anatomy.” Riley v. California, — U.S. -, 134 S.Ct. 2473, 2484, 189 L.Ed.2d 430 (2014). As of 2015, nearly two-thirds of American adults owned a smartphone, a figure that has almost doubled since 2011. See U.S. Smart-phone Use in 2015, Pew Research Center, at 2 (Apr. 2015), http://assets.pewresearch. org/wp-eontent/uploads/sites/14/2015/ 03/PI_Smartphones_0401151.pdf (last visited Aug. 17, 2017). Consumers use their smartphones for; among other things, fol.lowing the news, shopping, social networking,- online banking, researching health conditions, and taking classes. Id. at 5. In a 2015 study, approximately 89 percent of smartphone users surveyed reported using the internet on their smartphones over the course of the week-long study period. Id. at 33. A purchaser of a new smartphone has his or her choice of features, including operating systems, storage capacity, and screen size.

Smartphone users engage in these activities through mobile applications, or “apps,” like the Uber App. To begin using an app, the consumers need to locate and download the app, often from an application store. Many apps then require potential users to sign up for an account to access the app’s services. Accordingly, when considering the perspective of a reasonable smartphone user, we need not presume that the user has never before encountered an app or entered into a contract using a smartphone. Moreover, a reasonably prudent smartphone, user *78knows that text that is highlighted in blue and'underlined is hyperlinked to another webpage where additional information will be found.

Turning to the interface at issue in this case, we conclude that the design of the screen and language used render the notice provided reasonable as a matter of California law.9 The Payment Screen is uncluttered, with only fields for the user to enter his or her credit card details, buttons to register for a user account or to connect the user’s pre-existing PayPal account or Google Wallet to the Uber account, and the warning that “By creating an Uber account, you agree to the TERMS OF SERVICE. & PRIVACY POLICY.” The text, including the hyperlinks to the Terms and Conditions and Privacy Policy, appears directly below the buttons for registration. The entire screen is visible at once, and the user does not need to scroll beyond what is immediately visible to find notice of the Terms of Service. Although the sentence is in a small font, the dark print contrasts with the bright white background, and the hyperlinks are in blue and underlined.10 This presentation differs sharply from the screen we considered in Nicosia, .which contained, among other things, summaries of the user’s purchase and delivery information, “between fifteen and twenty-five links,” “text ... in at least four font sizes and six colors,” and several buttons and advertisements. Nicosia, 834 F.3d at 236-37. Furthermore, the notice of the terms and conditions in Nicosia was “riot directly adjacent” to the button intended to manifest assent to the terms, unlike the text and button at issue here. Id. at 236.

In addition to being spatially coupled with the meehanism for manifesting assent — i.e., the register button — the notice is temporally coupled. As we observed in Schnabel,

inasmuch as consumers are regularly and frequently confronted with non-negotiable contract terms, particularly when entering into transactions using the Internet, the presentation of these terms at a place and time that the consumer will associate with the initial purchase or enrollment, or the use of, the goods or services from which the recipient benefits at least indicates to the consumer that he or she is taking such goods or employing such services subject to additional terms and conditions that may one day affect him or her.

Schnabel, 697 F.3d at 127. Here, notice of the Terms of Service is provided simultaneously to enrollment, thereby connecting the contractual terms to the services to which they apply. We think that a reasonably prudent smartphone user would understand that the terms were connected to the creation of a user account.

That the Terms of Service were available only by hyperlink does not preclude a determination of reasonable notice. See Fteja, 841 F.Supp.2d at 839 (“[Clicking [a] hyperlinked phrase is the twenty-first century equivalent of turning over the cruise ticket. In both cases, the consumer is prompted to examine terms of sale that are located somewhere else.”). Moreover, *79the language “[b]y creating an Uber account, you agree” is a clear prompt directing users to read the Terms and Conditions and signaling that their acceptance of the benefit of registration would be subject to contractual terms. As long as the hyper-linked text was itself reasonably conspicuous — and we conclude that it was — a reasonably prudent smartphone user would have constructive notice of the terms. While it may be the case that many users will not bother reading the additional terms, that is the choice the user makes; the user is still on inquiry notice.

Finally, we disagree with the district court’s determination that the location of the arbitration clause within the Terms and Conditions was itself a “barrier to reasonable notice.” Meyer, 200 F.Supp.3d at 421 (citing, inter alia, Sgouros, 817 F.3d at 1033). In Sgouros, the Seventh Circuit determined that the defendant’s website actively misled users by “explicitly stating that a click on the button constituted assent for TransUnion to obtain access to the purchaser’s personal information,” without saying anything about “contractual terms,” and without any indication that “the same click constituted acceptance of the Service Agreement.” 817 F.3d at 1035-36. The website did not contain a hyperlink to the relevant agreement; instead, it had a scroll box that contained the entirety of the agreement, only the first three lines of which were visible without scrolling, and it had no prompt for the reader to scroll for additional terms. See id. at 1035-36 (“Where the terms are not displayed but must be brought up by using a hyperlink, courts outside of Illinois have looked for a clear prompt directing the user to read them.... No court has suggested that the presence of a scrollable window containing buried terms and conditions of purchase or use is, in itself, sufficient for the creation of a binding contract .,..”). Here, there is nothing misleading. Although the contract terms are lengthy and must be reached by a hyperlink, the instructions are clear and reasonably conspicuous. Once a user clicks through to the Terms of Service, the section heading (“Dispute Resolution”) and the sentence waiving the user’s right to a jury trial on relevant claims are both bold-ed.

Accordingly, we conclude that the Uber App provided reasonably conspicuous notice of the Terms of Service as a matter of California law and turn to the question of whether Meyer unambiguously manifested his assent to those terms.

2. Manifestation of assent

Although Meyer’s assent to arbitration was not express, we are convinced that it was unambiguous in light of the objectively reasonable notice of the terms, as discussed in detail above. See Register.com, 356 F.3d at 403 (“[Rjegardless whether [a user] did or did not say, T agree’ ... [the user’s] choice was either to accept the offer of contract, taking the information subject to the terms of the offer, or, if the terms were not acceptable, to decline to take the benefits.”); see also Schnabel, 697 F.3d at 128 (“[Acceptance need not be express, but where it is not, there must be evidence that the offeree knew or should have known of the terms and understood that acceptance of the benefit would be construed by the offeror as an agreement to be bound.”). As we described above, there is ample evidence that a reasonable user would be on inquiry notice of the terms, and the spatial and temporal coupling of the terms with the registration button “indicate[d] to the consumer that he or she is ... employing such services subject to additional terms and conditions that may one day affect him or her.” Schnabel, 697 F.3d at 127. A reasonable user would know that by clicking the registration button, he was agreeing to the terms and conditions accessible via the *80hyperlink, whether he clicked on the hyperlink or not.

The fact that clicking the register button had two functions — creation of a user account and assent to the Terms of Service— does not render Meyer’s assent ambiguous. The registration process allowed Meyer to review the Terms of Service prior to registration,' unlike web platforms that provide notice of contract terms only after the user manifested his or her assent. Furthermore, the text on the Payment Screen not only included a hyperlink to the Terms of Service, but expressly warned the user that by creating an Uber account, the user was agreeing to be bound by the linked terms. Although the warning text used the term “creatfe]” instead of “register,” as the button was marked, the physical prox-. imity of the notice to the register button and the placement of the language in the registration flow make clear to the user that the linked terms pertain to the action the user is about to take.

The transactional context of the parties’ dealings reinforces our conclusion. Meyer located and downloaded the Uber , App, signéd up for an account, and entered his credit card information with the intention of entering into a forward-looking relationship with Uber. The registration process clearly contemplated some sort of continuing relationship between the putative user and Uber, one that would require some terms and conditions, and the Payment Screen provided clear notice that there were terms that governed that relationship. ■

Accordingly, we conclude on the undisputed facts- of this case that Meyer unambiguously manifested his assent to Uber’s Terms of Service as a matter of California law.

3. Remand for trial

Finally, we see no need to remand this case for trial. Meyer offers no basis for his argument that we should remand for further-factfinding if; we vacate the district court’s ruling, other than his assertion that no circuit has previously compelled arbitration in similar circumstances. Although Meyer purports to challenge the evidentia-ry foundation for the registration screens, defendants have submitted a declaration from -an Uber engineer regarding Meyer’s registration for and use of -the Uber App, as well. as the registration process and terms of use in effect at the time of his registration. .Accordingly, we conclude on this record, as a matter of law, that Meyer agreed to arbitrate his claims with Uber.11

II. Waiver

Meyer argues in the alternative that defendants have waived their right to arbitrate by actively litigating the underlying lawsuit. “[0]rdinarily a defense of waiver brought in opposition to a motion to compel arbitration ... is a matter to be decided by the arbitrator.” S & R Co. of Kingston v. Latona Trucking, Inc., 159 F.3d 80, 82-83 (2d Cir. 1998) (citing Doctor’s Assocs., Inc. v. Distajo, 66 F.3d 438 (2d Cir. 1995)). When the party seeking arbitration has participated in litigation re*81garding the dispute, the district court can properly decide the question of waiver. Bell v. Cendant Corp., 293 F.3d 563, 569 (2d Cir. 2002). Because Meyer’s waiver argument is based on defendants’ defense of this litigation in the district court, we conclude that is a question for the district court rather than an arbitrator. Accordingly, we remand the case to the district court to consider in the first instance whether defendants have waived their right to arbitrate.

CONCLUSION

For the reasons set forth above,- the order of the district court denying defendants’ motions to compel arbitration is VACATED, and the ease is REMANDED to the district court to consider whether defendants have waived their rights to arbitration and for any further proceedings consistent with this opinion.

Attachment

Addendum A (Appellants’ App. at 560)

*82Addendum B (Appellee’s Br. at 38)

Chief Justice ROBERTS delivered the opinion of the Court.

*1412The Federal Arbitration Act requires courts to enforce covered arbitration agreements according to their terms. See 9 U.S.C. § 2. In Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp. , 559 U.S. 662, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010), we held that a court may not compel arbitration on a classwide basis when an agreement is "silent" on the availability of such arbitration. Because class arbitration fundamentally changes the nature of the "traditional individualized arbitration" envisioned by the FAA, Epic Systems Corp. v. Lewis , 584 U.S. ----, ----, 138 S.Ct. 1612, 1623, 200 L.Ed.2d 889 (2018), "a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so," Stolt-Nielsen , 559 U.S. at 684, 130 S.Ct. 1758 (emphasis in original). We now consider whether the FAA similarly bars an order requiring class arbitration when an agreement is not silent, but rather "ambiguous" about the availability of such arbitration.

I

Petitioner Lamps Plus is a company that sells light fixtures and related products. In 2016, a hacker impersonating a company official tricked a Lamps Plus employee into disclosing the tax information of approximately 1,300 other employees. Soon after, a fraudulent federal income tax return was filed in the name of Frank Varela, a Lamps Plus employee and respondent here.

*1413Like most Lamps Plus employees, Varela had signed an arbitration agreement when he started work at the company. But after the data breach, he sued Lamps Plus in Federal District Court in California, bringing state and federal claims on behalf of a putative class of employees whose tax information had been compromised. Lamps Plus moved to compel arbitration on an individual rather than classwide basis, and to dismiss the lawsuit. In a single order, the District Court granted the motion to compel arbitration and dismissed Varela's claims without prejudice. But the court rejected Lamps Plus's request for individual arbitration, instead authorizing arbitration on a classwide basis. Lamps Plus appealed the order, arguing that the court erred by compelling class arbitration.

The Ninth Circuit affirmed. 701 Fed. Appx. 670 (2017). The court acknowledged that Stolt-Nielsen prohibits forcing a party "to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so" and that Varela's agreement "include[d] no express mention of class proceedings." 701 Fed. Appx., at 672. But that did not end the inquiry, the court reasoned, because the fact that the agreement "does not expressly refer to class arbitration is not the 'silence' contemplated in Stolt-Nielsen ." Ibid. In Stolt-Nielsen , the parties had stipulated that their agreement was silent about class arbitration. Because there was no such stipulation here, the court concluded that Stolt-Nielsen was not controlling.

The Ninth Circuit then determined that the agreement was ambiguous on the issue of class arbitration. On the one hand, as Lamps Plus argued, certain phrases in the agreement seemed to contemplate "purely binary claims." Ibid. At the same time, as Varela asserted, other phrases were capacious enough to include class arbitration, such as one stating that "arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings relating to my employment." Ibid. The Ninth Circuit followed California law to construe the ambiguity against the drafter, a rule that "applies with peculiar force in the case of a contract of adhesion" such as this. Ibid. (quoting Sandquist v. Lebo Auto., Inc. , 1 Cal. 5th 233, 248, 205 Cal.Rptr.3d 359, 376 P.3d 506, 514 (2016) ). Because Lamps Plus had drafted the agreement, the court adopted Varela's interpretation authorizing class arbitration. Judge Fernandez dissented. In his view, the agreement was not ambiguous, and the majority's holding was a "palpable evasion of Stolt-Nielsen ." 701 Fed. Appx., at 673.

Lamps Plus petitioned for a writ of certiorari, arguing that the Ninth Circuit's decision contravened Stolt-Nielsen and created a conflict among the Courts of Appeals. In opposition, Varela not only disputed those contentions but also argued for the first time that the Ninth Circuit lacked jurisdiction over the appeal, and that this Court therefore lacked jurisdiction in turn. We granted certiorari. 584 U.S. ----, 138 S.Ct. 1697, 200 L.Ed.2d 948 (2018).

II

We begin with jurisdiction. Section 16 of the FAA governs appellate review of arbitration orders. 9 U.S.C. § 16. Varela contends that the Ninth Circuit lacked statutory jurisdiction because section 16 permits appeal from orders denying motions to compel arbitration, § 16(a)(1)(B), but not orders granting such motions, § 16(b)(2). Brief for Respondent 9-12; see also post , at ---- (BREYER, J., dissenting). This argument is beside the point, however, because Lamps Plus relies *1414for jurisdiction on a different provision of section 16, section 16(a)(3).

Section 16(a)(3) provides that an appeal may be taken from "a final decision with respect to an arbitration that is subject to this title." We construed that provision in Green Tree Financial Corp.-Ala. v. Randolph , 531 U.S. 79, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000), a case where, as here, the District Court had issued an order both compelling arbitration and dismissing the underlying claims. We held that such an order directing "the parties to proceed to arbitration, and dismiss[ing] all the claims before [the court], ... is 'final' within the meaning of § 16(a)(3), and therefore appealable." Id. , at 89, 121 S.Ct. 513.1

Varela attempts to distinguish Randolph on the ground that the appeal here was taken by the party who sought an order to dismiss the claim and compel arbitration, Lamps Plus. He claims the company "lacked standing to appeal the dismissal," because the District Court's order "provided precisely the relief Lamps Plus sought." Brief for Respondent 13, 15.

But Lamps Plus did not secure the relief it requested. It sought an order compelling individual arbitration. What it got was an order rejecting that relief and instead compelling arbitration on a classwide basis. We have explained-and will elaborate further below-that shifting from individual to class arbitration is a "fundamental" change, Stolt-Nielsen , 559 U.S. at 686, 130 S.Ct. 1758, that "sacrifices the principal advantage of arbitration" and "greatly increases risks to defendants," AT&T Mobility LLC v. Concepcion , 563 U.S. 333, 348, 350, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011). Lamps Plus's interest in avoiding those consequences gives it the "necessary personal stake in the appeal" required by our precedent. Camreta v. Greene , 563 U.S. 692, 702, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011).2

III

The Ninth Circuit applied California contract law to conclude that the parties' agreement was ambiguous on the availability of class arbitration. In California, an agreement is ambiguous "when it is capable of two or more constructions, both *1415of which are reasonable." 701 Fed. Appx., at 672 (quoting Powerine Oil Co. v. Superior Ct. , 37 Cal. 4th 377, 390, 33 Cal.Rptr.3d 562, 118 P.3d 589, 598 (2005) ). Following our normal practice, we defer to the Ninth Circuit's interpretation and application of state law and thus accept that the agreement should be regarded as ambiguous. See, e.g. , Expressions Hair Design v. Schneiderman , 581 U.S. ----, ----, 137 S.Ct. 1144, 1149-50, 197 L.Ed.2d 442 (2017).3

We therefore face the question whether, consistent with the FAA, an ambiguous agreement can provide the necessary "contractual basis" for compelling class arbitration. Stolt-Nielsen , 559 U.S. at 684, 130 S.Ct. 1758. We hold that it cannot-a conclusion that follows directly from our decision in Stolt-Nielsen . Class arbitration is not only markedly different from the "traditional individualized arbitration" contemplated by the FAA, it also undermines the most important benefits of that familiar form of arbitration. Epic Systems , 584 U.S., at ----, 138 S.Ct., at 1623 ; see Stolt-Nielsen , 559 U.S. at 686-687, 130 S.Ct. 1758. The statute therefore requires more than ambiguity to ensure that the parties actually agreed to arbitrate on a classwide basis.

A

The FAA requires courts to "enforce arbitration agreements according to their terms." Epic Systems , 584 U.S., at ----, 138 S.Ct., at 1621 (quoting American Express Co. v. Italian Colors Restaurant , 570 U.S. 228, 233, 133 S.Ct. 2304, 186 L.Ed.2d 417 (2013) ). Although courts may ordinarily accomplish that end by relying on state contract principles, First Options of Chicago, Inc. v. Kaplan , 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995), state law is preempted to the extent it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives" of the FAA, Concepcion , 563 U.S. at 352, 131 S.Ct. 1740 (internal quotation marks omitted). At issue in this case is the interaction between a state contract principle for addressing ambiguity and a "rule[ ] of fundamental importance" under the FAA, namely, that arbitration "is a matter of consent, not coercion." Stolt-Nielsen , 559 U.S. at 681, 130 S.Ct. 1758 (internal quotation marks omitted).

"[T]he first principle that underscores all of our arbitration decisions" is that "[a]rbitration is strictly a matter of consent." Granite Rock Co. v. Teamsters , 561 U.S. 287, 299, 130 S.Ct. 2847, 177 L.Ed.2d 567 (2010) (internal quotation marks omitted). We have emphasized that "foundational FAA principle" many times. Stolt-Nielsen , 559 U.S. at 684, 130 S.Ct. 1758 ; see also, e.g. , Howsam v. Dean Witter Reynolds, Inc. , 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) ; First Options , 514 U.S. at 943, 115 S.Ct. 1920 ; Mastrobuono v. Shearson Lehman Hutton, Inc. , 514 U.S. 52, 57, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995) ;

*1416Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989) ; Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. , 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985).

Consent is essential under the FAA because arbitrators wield only the authority they are given. That is, they derive their "powers from the parties' agreement to forgo the legal process and submit their disputes to private dispute resolution." Stolt-Nielsen , 559 U.S. at 682, 130 S.Ct. 1758. Parties may generally shape such agreements to their liking by specifying with whom they will arbitrate, the issues subject to arbitration, the rules by which they will arbitrate, and the arbitrators who will resolve their disputes. Id. , at 683-684, 130 S.Ct. 1758. Whatever they settle on, the task for courts and arbitrators at bottom remains the same: "to give effect to the intent of the parties." Id. , at 684, 130 S.Ct. 1758.

In carrying out that responsibility, it is important to recognize the "fundamental" difference between class arbitration and the individualized form of arbitration envisioned by the FAA. Epic Systems , 584 U.S., at ----, 138 S.Ct., at 1622-1623 ; see also Concepcion , 563 U.S. at 349, 351, 131 S.Ct. 1740 ; Stolt-Nielsen , 559 U.S. at 686-687, 130 S.Ct. 1758. In individual arbitration, "parties forgo the procedural rigor and appellate review of the courts in order to realize the benefits of private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes." Id. , at 685, 130 S.Ct. 1758. Class arbitration lacks those benefits. It "sacrifices the principal advantage of arbitration-its informality-and makes the process slower, more costly, and more likely to generate procedural morass than final judgment." Concepcion , 563 U.S. at 348, 131 S.Ct. 1740. Indeed, we recognized just last Term that with class arbitration "the virtues Congress originally saw in arbitration, its speed and simplicity and inexpensiveness, would be shorn away and arbitration would wind up looking like the litigation it was meant to displace." Epic Systems , 584 U.S., at ----, 138 S.Ct., at 1623. Class arbitration not only "introduce[s] new risks and costs for both sides," ibid. , it also raises serious due process concerns by adjudicating the rights of absent members of the plaintiff class-again, with only limited judicial review. See Concepcion , 563 U.S., at 349, 131 S.Ct. 1740 ; see also Stolt-Nielsen , 559 U.S. at 686, 130 S.Ct. 1758 (citing Ortiz v. Fibreboard Corp. , 527 U.S. 815, 846, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999) ).

Because of these "crucial differences" between individual and class arbitration, Stolt-Nielsen explained that there is "reason to doubt the parties' mutual consent to resolve disputes through classwide arbitration." 559 U.S. at 687, 685-686, 130 S.Ct. 1758. And for that reason, we held that courts may not infer consent to participate in class arbitration absent an affirmative "contractual basis for concluding that the party agreed to do so." Id. , at 684, 130 S.Ct. 1758. Silence is not enough; the "FAA requires more." Id. , at 687, 130 S.Ct. 1758.

Our reasoning in Stolt-Nielsen controls the question we face today. Like silence, ambiguity does not provide a sufficient basis to conclude that parties to an arbitration agreement agreed to "sacrifice[ ] the principal advantage of arbitration." Concepcion , 563 U.S. at 348, 131 S.Ct. 1740.

This conclusion aligns with our refusal to infer consent when it comes to other fundamental arbitration questions. For example, we presume that parties have not authorized arbitrators to resolve certain "gateway" questions, such as "whether the parties have a valid arbitration agreement at all or whether a concededly *1417binding arbitration clause applies to a certain type of controversy." Green Tree Financial Corp. v. Bazzle , 539 U.S. 444, 452, 123 S.Ct. 2402, 156 L.Ed.2d 414 (2003) (plurality opinion). Although parties are free to authorize arbitrators to resolve such questions, we will not conclude that they have done so based on "silence or ambiguity" in their agreement, because "doing so might too often force unwilling parties to arbitrate a matter they reasonably would have thought a judge, not an arbitrator, would decide." First Options , 514 U.S. at 945, 115 S.Ct. 1920 (emphasis added); see also Howsam , 537 U.S. at 83-84, 123 S.Ct. 588. We relied on that same reasoning in Stolt-Nielsen , 559 U.S. at 686-687, 130 S.Ct. 1758, and it applies with equal force here. Neither silence nor ambiguity provides a sufficient basis for concluding that parties to an arbitration agreement agreed to undermine the central benefits of arbitration itself.4

B

The Ninth Circuit reached a contrary conclusion based on California's rule that ambiguity in a contract should be construed against the drafter, a doctrine known as contra proferentem . The rule applies "only as a last resort" when the meaning of a provision remains ambiguous after exhausting the ordinary methods of interpretation. 3 A. Corbin, Contracts § 559, pp. 268-270 (1960). At that point, contra proferentem resolves the ambiguity against the drafter based on public policy factors, primarily equitable considerations about the parties' relative bargaining strength. See 2 E. Farnsworth, Contracts § 7.11, pp. 300-304 (3d ed. 2004); see also 11 R. Lord, Williston on Contracts § 32:12, pp. 788-792 (4th ed. 2012) (stating that application of the rule may vary based on "the degree of sophistication of the contracting parties or the degree to which the contract was negotiated"); Restatement (Second) of Contracts § 206, pp. 80-81, 105 - 107 (1979) (classifying contra proferentem under "Considerations of Fairness and the Public Interest" rather than with rules for interpreting "The Meaning of Agreements"); 3 Corbin, Contracts § 559, at 270 (noting that contra proferentem is "chiefly a rule of public policy"). Although the rule enjoys a place in every hornbook and treatise on contracts, we noted in a recent FAA case that "the reach of the canon construing contract language against the drafter must have limits, no matter who the drafter was." DIRECTV, Inc. v. Imburgia , 577 U.S. ----, ----, 136 S.Ct. 463, 470, 193 L.Ed.2d 365 (2015). This case brings those limits into focus.

Unlike contract rules that help to interpret the meaning of a term, and thereby uncover the intent of the parties, contra proferentem is by definition triggered only after a court determines that it cannot discern the intent of the parties. When a contract is ambiguous, contra proferentem provides a default rule based on public policy considerations; "it can scarcely be said to be designed to ascertain the meanings attached by the parties." 2 Farnsworth, Contracts § 7.11, at 303. Like the contract rule preferring interpretations that favor the public interest, see id., at 304, contra proferentem seeks ends other than the intent of the parties.

"[C]lass arbitration, to the extent it is manufactured by [state law] rather *1418than consen[t], is inconsistent with the FAA." Concepcion , 563 U.S. at 348, 131 S.Ct. 1740. We recently reiterated that courts may not rely on state contract principles to "reshape traditional individualized arbitration by mandating classwide arbitration procedures without the parties' consent." Epic Systems , 584 U.S., at ----, 138 S.Ct., at 1623. But that is precisely what the court below did, requiring class arbitration on the basis of a doctrine that "does not help to determine the meaning that the two parties gave to the words, or even the meaning that a reasonable person would have given to the language used." 3 Corbin, Contracts § 559, at 269-270. Such an approach is flatly inconsistent with "the foundational FAA principle that arbitration is a matter of consent." Stolt-Nielsen , 559 U.S. at 684, 130 S.Ct. 1758.

Varela and Justice KAGAN defend application of the rule on the basis that it is nondiscriminatory. It does not conflict with the FAA, they argue, because it is a neutral rule that gives equal treatment to arbitration agreements and other contracts alike. See Brief for Respondent 18, 25-26; post , at ---- - ---- (KAGAN, J., dissenting). We have explained, however, that such an equal treatment principle cannot save from preemption general rules "that target arbitration either by name or by more subtle methods, such as by 'interfer[ing] with fundamental attributes of arbitration.' " Epic Systems , 584 U.S., at ----, 138 S.Ct., at 1622 (quoting Concepcion , 563 U.S. at 344, 131 S.Ct. 1740 ).

That was the case in Concepcion . There, the Court considered the general contract defense of unconscionability, which had been interpreted by the state court to bar class action waivers in consumer contracts, whether in the litigation or arbitration context. See id ., at 341-344, 131 S.Ct. 1740. The general applicability of the rule did not save it from preemption under the FAA with respect to arbitration agreements, because it had the consequence of allowing any party to a consumer arbitration agreement to demand class proceedings "without the parties' consent." Epic Systems , 584 U.S., at ----, 138 S.Ct., at 1623 (describing the "essential insight" of Concepcion ). That, for the reasons we have explained, "interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA." Concepcion , 563 U.S. at 344, 131 S.Ct. 1740 ; see Epic Systems , 584 U.S., at ---- - ----, 138 S.Ct., at 1622-1623. The same reasoning applies here: The general contra proferentem rule cannot be applied to impose class arbitration in the absence of the parties' consent.5

Our opinion today is far from the watershed Justice KAGAN claims it to be. Rather, it is consistent with a long line of cases holding that the FAA provides the default rule for resolving certain ambiguities in arbitration agreements. For example, we have repeatedly held that ambiguities about the scope of an arbitration agreement must be resolved in favor of arbitration.

*1419See, e.g., Mitsubishi Motors Corp. , 473 U.S. at 626, 105 S.Ct. 3346 ; Moses H. Cone Memorial Hospital v. Mercury Constr. Corp. , 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). In those cases, we did not seek to resolve the ambiguity by asking who drafted the agreement. Instead, we held that the FAA itself provided the rule. As in those cases, the FAA provides the default rule for resolving ambiguity here.

* * *

Courts may not infer from an ambiguous agreement that parties have consented to arbitrate on a classwide basis. The doctrine of contra proferentem cannot substitute for the requisite affirmative "contractual basis for concluding that the part[ies] agreed to [class arbitration]." Stolt-Nielsen , 559 U.S. at 684, 130 S.Ct. 1758.

We reverse the judgment of the Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Justice THOMAS, concurring.

As our precedents make clear and the Court acknowledges, the Federal Arbitration Act (FAA) requires federal courts to enforce arbitration agreements "just as they would ordinary contracts: in accordance with their terms." Howsam v. Dean Witter Reynolds, Inc. , 537 U.S. 79, 87, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (THOMAS, J., concurring in judgment). Federal courts must therefore apply "background principles of state contract law" when evaluating arbitration agreements. Arthur Andersen LLP v. Carlisle , 556 U.S. 624, 630, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009) ; Perry v. Thomas , 482 U.S. 483, 492, n. 9, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987). "In this endeavor, 'as with any other contract, the parties' intentions control.' " Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp. , 559 U.S. 662, 682, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. , 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) ). Thus, where an agreement is silent as to class arbitration, a court may not infer from that silence that the parties agreed to arbitrate on a class basis. 559 U.S. at 687, 130 S.Ct. 1758.

Here, the arbitration agreement between Varela and Lamps Plus is silent as to class arbitration. If anything, the agreement suggests that the parties contemplated only bilateral arbitration.* App. to Pet. for Cert. 24a (waiving "any right I may have to file a lawsuit or other civil action or proceeding relating to my employment with the Company" (emphasis added)); ibid. ("The Company and I mutually consent to the resolution by arbitration of all claims ... that I may have against the Company" (emphasis added)); id. , at 24a-25a ("Specifically, the Company and I mutually consent to the resolution by arbitration of all claims that may hereafter arise in connection with my employment" (emphasis added)). This agreement provides no "contractual basis" for concluding that the parties agreed to class arbitration, *1420Stolt-Nielsen , supra , at 684, 130 S.Ct. 1758, and I would therefore reverse on that basis.

The Court instead evaluates whether California's contra proferentem rule, as applied here, " 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives' of the FAA." Ante, at ---- (quoting AT&T Mobility LLC v. Concepcion , 563 U.S. 333, 352, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011) ). I remain skeptical of this Court's implied pre-emption precedents, see Wyeth v. Levine , 555 U.S. 555, 582-604, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009) (opinion concurring in judgment), but I join the opinion of the Court because it correctly applies our FAA precedents, see Epic Systems Corp. v. Lewis , 584 U.S. ----, 138 S.Ct. 1612, 200 L.Ed.2d 889 (2018) ; Concepcion , supra .

Justice GINSBURG, with whom Justice BREYER and Justice SOTOMAYOR join, dissenting.

Joining Justice KAGAN's dissenting opinion in full, I write separately to emphasize once again how treacherously the Court has strayed from the principle that "arbitration is a matter of consent, not coercion." Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp. , 559 U.S. 662, 681, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010) (internal quotation marks omitted).

Congress enacted the Federal Arbitration Act (FAA) in 1925 "to enable merchants of roughly equal bargaining power to enter into binding agreements to arbitrate commercial disputes." Epic Systems Corp. v. Lewis , 584 U.S. ----, ----, 138 S.Ct. 1612, 1643, 200 L.Ed.2d 889 (2018) (GINSBURG, J., dissenting) (emphasis in original). The Act was not designed to govern contracts "in which one of the parties characteristically has little bargaining power." Prima Paint Corp. v. Flood & Conklin Mfg. Co. , 388 U.S. 395, 403, n. 9, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967) ; see Gilmer v. Interstate/Johnson Lane Corp. , 500 U.S. 20, 42, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (Stevens, J., dissenting) ("I doubt that any legislator who voted for [the FAA] expected it to apply ... to form contracts between parties of unequal bargaining power, or to the arbitration of disputes arising out of the employment relationship."); Miller, Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure, 88 N. Y. U. L. Rev. 286, 323 (2013) (The FAA was "enacted in 1925 with the seemingly limited purpose of overcoming the then-existing 'judicial hostility' to the arbitration of contract disputes between businesses.").

The Court has relied on the FAA, not simply to overcome once-prevalent judicial resistance to enforcement of arbitration disputes between businesses. In relatively recent years, it has routinely deployed the law to deny to employees and consumers "effective relief against powerful economic entities." DIRECTV , Inc. v. Imburgia , 577 U.S. ----, ----, 136 S.Ct. 463, 476, 193 L.Ed.2d 365 (2015) (GINSBURG, J., dissenting). Arbitration clauses, the Court has decreed, may preclude judicial remedies even when submission to arbitration is made a take-it-or-leave-it condition of employment or is imposed on a consumer given no genuine choice in the matter. See Epic , 584 U.S., at ---- - ----, 138 S.Ct., at 1644 (GINSBURG, J., dissenting) (surveying "court decisions expansively interpreting" the FAA); Circuit City Stores, Inc. v. Adams , 532 U.S. 105, 132, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001) (Stevens, J., dissenting) ("There is little doubt that the Court's interpretation of the [FAA] has given it a scope far beyond the expectations of the Congress that enacted it."); Miller, supra , at 324 (describing as "extraordinary" "judicial extension of the [FAA] to a vast array of consumer contracts *1421... characterized by their adhesive nature and by the individual's complete lack of bargaining power"). Propelled by the Court's decisions, mandatory arbitration clauses in employment and consumer contracts have proliferated. See, e.g. , Economic Policy Institute, A. Colvin, The Growing Use of Mandatory Arbitration 2, 4-6 (Apr. 6, 2018) (mandatory arbitration imposed by private-sector employers on nonunionized employees notably increased between 1995 and 2017), online at https://www.epi.org/files/pdf/144131.pdf (all Internet materials as last visited Apr. 22, 2019); Consumer Financial Protection Bureau, Arbitration Study § 1.4.1 (Mar. 2015) ("Tens of millions of consumers use consumer financial products or services that are subject to ... arbitration clauses."), online at https://files.consumerfinance.gov/f/201503_cfpb_arbitration-study-report-to-congress-2015.pdf.

Piling Pelion on Ossa, the Court has hobbled the capacity of employees and consumers to band together in a judicial or arbitral forum. See Epic , 584 U.S., at ----, n. 12, 138 S.Ct., at 1644, n. 12 (GINSBURG, J., dissenting) (noting Court decisions enforcing class-action waivers imposed by the party in command, who wants no collective proceedings). The Court has pursued this course even though "neither the history nor present practice suggests that class arbitration is fundamentally incompatible with arbitration itself." AT&T Mobility LLC v. Concepcion , 563 U.S. 333, 362, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011) (BREYER, J., dissenting).

Employees and consumers forced to arbitrate solo face severe impediments to the "vindication of their rights." Stolt-Nielsen , 559 U.S. at 699, 130 S.Ct. 1758 (GINSBURG, J., dissenting). "Expenses entailed in mounting individual claims will often far outweigh potential recoveries." Epic , 584 U.S., at ----, 138 S.Ct., at 1647 (GINSBURG, J., dissenting); see American Express Co. v. Italian Colors Restaurant , 570 U.S. 228, 246, 133 S.Ct. 2304, 186 L.Ed.2d 417 (2013) (KAGAN, J., dissenting) ("[The defendant] has put [the plaintiff] to this choice: Spend way, way, way more money than your claim is worth, or relinquish your ... rights."); Concepcion , 563 U.S. at 365, 131 S.Ct. 1740 (BREYER, J., dissenting) ("What rational lawyer would have signed on to represent the [plaintiffs] for the possibility of fees stemming from a $ 30.22 [individual] claim?"); Resnik, Revising Our "Common Intellectual Heritage": Federal and State Courts in Our Federal System, 91 Notre Dame L. Rev. 1831, 1888 (2016) ("Few individuals can afford to pursue small value claims; mandating single-file arbitration serves as a means of erasing rights, rather than enabling their 'effective vindication.' ").

Today's decision underscores the irony of invoking "the first principle" that "arbitration is strictly a matter of consent," ante , at ---- (internal quotation marks and alterations omitted), to justify imposing individual arbitration on employees who surely would not choose to proceed solo. Respondent Frank Varela sought redress for negligence by his employer leading to a data breach affecting 1,300 employees. See Complaint in No. 5:16-cv-00577 (CD Cal.), Doc. 1, ¶¶1, 59. The widely experienced neglect he identified cries out for collective treatment. Blocking Varela's path to concerted action, the Court aims to ensure the authenticity of consent to class procedures in arbitration. Ante , at ---- - ----. Shut from the Court's sight is the "Hobson's choice" employees face: "accept arbitration on their employer's terms or give up their jobs." Epic , 584 U.S., at ----, n. 2, 138 S.Ct., at 1636, n. 2 (GINSBURG, J., dissenting); see Circuit City , 532 U.S. at 139, 121 S.Ct. 1302 (Souter, J., dissenting) (employees often *1422"lack the bargaining power to resist an arbitration clause if their prospective employers insist on one").

Recent developments outside the judicial arena ameliorate some of the harm this Court's decisions have occasioned. Some companies have ceased requiring employees to arbitrate sexual harassment claims, see McGregor, Firms May Follow Tech Giants on Forced Arbitration, Washington Post, Nov. 13, 2018, p. A15, col. 1, or have extended their no-forced-arbitration policy to a broader range of claims, see Wakabayashi, Google Scraps Forced Arbitration Policy, N. Y. Times, Feb. 22, 2019, p. B5, col. 4. And some States have endeavored to safeguard employees' opportunities to bring sexual harassment suits in court. See, e.g. , N. Y. Civ. Prac. Law Ann. § 7515 (West 2019) (rendering unenforceable certain mandatory arbitration clauses covering sexual harassment claims). These developments are sanguine, for "[p]lainly, it would not comport with the congressional objectives behind a statute seeking to enforce civil rights ... to allow the very forces that had practiced discrimination to contract away the right to enforce civil rights in the courts." Barrentine v. Arkansas-Best Freight System, Inc. , 450 U.S. 728, 750, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981) (Burger, C.J., dissenting).

Notwithstanding recent steps to counter the Court's current jurisprudence, mandatory individual arbitration continues to thwart "effective access to justice" for those encountering diverse violations of their legal rights. DIRECTV , 577 U.S., at ----, 136 S.Ct., at 471 (GINSBURG, J., dissenting). The Court, paradoxically reciting the mantra that "[c]onsent is essential," ante , at ----, has facilitated companies' efforts to deny employees and consumers the "important right" to sue in court, and to do so collectively, by inserting solo-arbitration-only clauses that parties lacking bargaining clout cannot remove. CompuCredit Corp. v. Greenwood , 565 U.S. 95, 115, 132 S.Ct. 665, 181 L.Ed.2d 586 (2012) (GINSBURG, J., dissenting). When companies can "muffl[e] grievance[s] in the cloakroom of arbitration," Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware , 414 U.S. 117, 136, 94 S.Ct. 383, 38 L.Ed.2d 348 (1973), the result is inevitable: curtailed enforcement of laws "designed to advance the well-being of [the] vulnerable." Epic , 584 U.S., at ----, 138 S.Ct., at 1646 (GINSBURG, J., dissenting). "Congressional correction of the Court's elevation of the FAA over" the rights of employees and consumers "to act in concert" remains "urgently in order." Id. , at ----, 138 S.Ct., at 1633.

Justice BREYER, dissenting.

Although I join Justice GINSBURG's and Justice KAGAN's dissents in full, I also dissent for another reason. In my view, the Court of Appeals lacked jurisdiction to hear this case. Consequently, we lack jurisdiction as well. See 28 U.S.C. § 1254. My reason for reaching this conclusion is the following. The Federal Arbitration Act, at § 4, says that a "court," upon being satisfied that the parties have agreed to arbitrate a claim, "shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement." 9 U.S.C. § 4. Section 16 of the Act then says that "an appeal may not be taken from an interlocutory order ... directing arbitration to proceed under section 4 of this title." § 16(b)(2) (emphasis added). And directing arbitration to proceed is just what the District Court did here. App. to Pet. for Cert. 23a.

I

These statutory provisions reflect a congressional effort (in respect to a specific subject matter) to help resolve a more *1423general problem. Too few interlocutory appeals will too often impose upon parties delay and expense that an interlocutory appeal, by quickly correcting a lower court error, might have spared them. But too many interlocutory appeals will too often unnecessarily delay proceedings while a party appeals and loses. And delays can clog the appellate system, thereby slowing down the workings, and adding to the costs, of the judicial system seen as a whole. Congress' jurisdictional statutes consequently compromise, providing, for example, for interlocutory appeals in some instances, such as cases involving injunctive orders, see, e.g., 28 U.S.C. § 1292(a)(1), or where important separable legal questions are at issue, see, e.g., Ashcroft v. Iqbal , 556 U.S. 662, 671, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), or where a district court certifies an open legal question to a court of appeals for determination, see, e.g., 28 U.S.C. § 1292(b). But often statutes and rules require the parties to proceed to the end of a trial before obtaining appellate review. See, e.g., § 1291.

The statutory provisions before us are a local species of this jurisdictional genus. In them, Congress limited interlocutory review of orders concerning arbitration in a way that favors arbitration. Consequently, § 16(a) of the FAA will normally allow an immediate appeal where arbitration is denied, but § 16(b) will normally require parties to wait until the end of the arbitration in order to bring legal questions about that proceeding to a court of appeals.

A couple of examples illustrate the point. Take first § 4 of the FAA. Section 4 provides that a "court," upon being satisfied that the parties have agreed to arbitrate a claim, "shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement." 9 U.S.C. § 4. Section 16(a) of the FAA provides that a party may immediately appeal a district court order refusing to compel arbitration under § 4, while § 16(b) provides that a party generally may not immediately appeal a district court order compelling arbitration under § 4. Compare § 16(a)(1)(B) ("An appeal may be taken from" an order "denying a petition under section 4 of this title") with § 16(b)(2) ("[A]n appeal may not be taken from an interlocutory order ... directing arbitration to proceed under section 4 of this title").

Section 3 of the FAA provides another good example. Where a suit contains several claims, and the district court has determined that the parties agreed to arbitrate only a subset of those claims, § 3 of the FAA provides that the district court must stay the litigation at the request of either party. See § 3 (providing that a court, when referring claims for arbitration, "shall on application of one of the parties stay" the case "until such arbitration has been had"). The stay relieves the parties of the burden and distraction of continuing to litigate any remaining claims while the arbitration is ongoing. And true to the FAA's proarbitration appellate scheme, § 16(a)permits immediate appeals of district court orders refusing to enter a stay , while § 16(b) generally prohibits immediate appeals of district court orders granting a stay . Compare § 16(a)(1)(A) ("An appeal may be taken from" an order "refusing a stay of any action under section 3 of this title") with § 16(b)(1) ("[A]n appeal may not be taken from an interlocutory order ... granting a stay of any action under section 3 of this title").

I could go on. Section 16(a) of the FAA permits immediate appeal of an interlocutory order granting an injunction against arbitration, while § 16(b) generally prohibits immediate appeal of an order refusing *1424to enjoin an arbitration. Compare § 16(a)(2) with § 16(b)(4). Section 16(a) of the FAA permits immediate appeal of an order denying an application to compel arbitration pursuant to § 206, while § 16(b) generally prohibits immediate appeal of an order compelling arbitration pursuant to § 206. Compare § 16(a)(1)(C) with § 16(b)(3). Et cetera.

The point, however, is that the appellate scheme of the FAA reflects Congress' policy decision that, if a district court determines that arbitration of a claim is called for, there should be no appellate interference with the arbitral process unless and until that process has run its course.

With § 16's structure, and Congress' policy in mind, we can turn to the facts of this case.

II

Respondent Frank Varela is an employee of petitioner Lamps Plus, Inc. At the outset of their employment relationship, Varela and Lamps Plus agreed to arbitrate employment-related claims. Varela later filed suit against Lamps Plus on behalf of himself and a class of Lamps Plus' employees. Lamps Plus asked the District Court to compel arbitration. And the District Court granted Lamps Plus' request. Despite having won the relief that it requested, Lamps Plus appealed the District Court's order because Lamps Plus objected to the District Court's conclusion that the parties' agreement permitted arbitration on a classwide basis. The Court of Appeals affirmed the District Court's judgment. And we granted Lamps Plus' petition for certiorari to consider whether the Court of Appeals erred in so ruling.

But on those facts, I think that the Court lacks jurisdiction over Lamps Plus' petition. When Lamps Plus responded to Varela's lawsuit by seeking a motion to compel arbitration, and the District Court granted that motion, this case fell neatly into § 16(b)'s description of unappealable district court orders under the FAA. The parties were obligated by the FAA to arbitrate their dispute without the expense and delay of further litigation. If, after arbitration, the parties were dissatisfied with the award or with the District Court's arbitration related decisions, § 16(a) of the FAA provides for an appeal at that later date. See §§ 16(a)(1)(D)-(E) (permitting appeals of orders confirming, modifying, or vacating an award); see also § 16(a)(3) (permitting appeal of "a final decision with respect to an arbitration"). But, in the interim, § 16(b) deprived the Court of Appeals of jurisdiction to hear any such complaint. See §§ 16(b)(1)-(4). I recognize that Lamps Plus is dissatisfied with the arbitration that the District Court ordered here. But the District Court's order nonetheless granted the motion compelling arbitration, leaving Lamps Plus to bring its claim to an appellate court only after the arbitration is completed. See § 16(b)(2). I believe we should enforce the statutory provisions that lead to this conclusion.

Lamps Plus offers three arguments in response. First , Lamps Plus suggests the Court of Appeals had jurisdiction over Lamps Plus' appeal because the District Court order at issue here not only granted Lamps Plus's motion to compel arbitration, but also granted Lamps Plus' motion to dismiss the case. See Brief for Petitioners 29. Lamps Plus points out that § 16(a) permits the appeal of "a final decision with respect to an arbitration." 9 U.S.C. § 16(a)(3). Lamps Plus reasons that, so long as a decision is final, it is appealable under the FAA.

I disagree because I do not believe that the District Court had the discretion to dismiss the case immediately after granting Lamps Plus' motion to compel arbitration. Section 4 of the FAA permits a *1425district court to compel the parties to arbitrate their claim, and § 16(b)(2) explains that "an appeal may not be taken from an interlocutory order ... directing arbitration to proceed under section 4 of this title." Thus, the District Court order compelling arbitration was interlocutory and generally unappealable. As I have just explained, to read the statute any other way would contravene § 16's proarbitration appeal scheme by turning an interlocutory order that would have been unappealable under § 16(b) of the Act into a dismissal order that is appealable under § 16(a).

And because the order granting Lamps Plus' motion to compel was interlocutory, the District Court's dismissal of the case-in the very same order, see App. to Pet. for Cert. 23a-did not give the Court of Appeals jurisdiction over Lamps Plus' appeal. An improper dismissal cannot create appellate jurisdiction to review an interlocutory order.

Our decision in Microsoft Corp. v. Baker , 582 U.S. ----, 137 S.Ct. 1702, 198 L.Ed.2d 132 (2017), holds as much. The plaintiffs in Microsoft sought to appeal a district court order denying certification of a class. Under Federal Rule of Appellate Procedure 23(f), plaintiffs can ordinarily bring such an appeal only with the court of appeals' permission. But the plaintiffs in Baker , who had been denied permission to appeal, tried to circumvent that denial by stipulating to a voluntary dismissal of their claims. The voluntary dismissal, they claimed, was an appealable "final decisio[n]" under 28 U.S.C. § 1291. And in their appeal of the dismissal, they would be free to also seek review of the order denying class certification. We disagreed. As we explained there, to permit plaintiffs to "transform a tentative interlocutory order into a final judgment ... simply by dismissing their claims with prejudice" would be to "undermine § 1291's firm finality principle, designed to guard against piecemeal appeals, and subvert the balanced solution Rule 23(f) put in place for immediate review of class-action orders." Microsoft , supra , at ----, ----, 137 S.Ct. at 1716 (citation omitted).

The same reasoning applies here. Section 16(a)(3) of the FAA, like 28 U.S.C. § 1291, creates appellate jurisdiction only over "final decisions." Despite that jurisdictional limit, Lamps Plus, like the plaintiffs in Microsoft , seeks review of an interlocutory order. Like the plaintiffs in Microsoft , Lamps Plus attempts to obtain appellate review by "transform[ing]" an interlocutory order into a final decision. 582 U.S., at ----, 137 S.Ct., at 1715. Like the plaintiffs in Microsoft , Lamps Plus has done so based on an order "purporting to end the litigation"-an order that Lamps Plus itself "persuade[d] a district court to issue." Ibid. And like the plaintiffs in Microsoft , Lamps Plus does not "complain of the 'final' order that dismissed [the] case," but instead seeks "review of only the inherently interlocutory order" compelling arbitration. Ibid. (alterations omitted). Therefore, like the Court in Microsoft , I would hold that Lamps Plus cannot, by securing an unlawful dismissal, find a way around the appellate jurisdiction scheme that Congress wrote into the FAA.

Second , Lamps Plus suggests that this Court has already decided that a district court order compelling arbitration and dismissing a plaintiff's complaint creates no jurisdictional problem. Brief for Petitioners 29-30. Lamps Plus cites Green Tree Financial Corp.-Ala. v. Randolph , 531 U.S. 79, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000), in support of that argument. And according to Lamps Plus, "this Court held in Randolph " that "when a district court orders arbitration and dismisses the plaintiff's claims," the order is "final" and *1426therefore appealable under § 16 of the FAA. Brief for Petitioners 29-30.

But Randolph does not control the jurisdictional aspect of this case. The Randolph Court explicitly reserved the question that we face now, stating: "Had the District Court entered a stay instead of a dismissal in this case, that order would not be appealable. 9 U.S.C. § 16(b)(1). The question whether the District Court should have taken that course is not before us, and we do not address it ." Randolph , supra , at 87, n. 2, 121 S.Ct. 513 (emphasis added). Thus, although the Randolph Court stated that § 16(a)(3) of the FAA permits appeals of final orders entered under the FAA, the Court did not decide whether a district court could convert an interlocutory, unappealable order under § 16(b) into an appealable order under § 16(a) by entering a dismissal instead of a stay. For that reason, Randolph does not answer the jurisdictional question here.

Third , and finally, Lamps Plus suggests that the Court of Appeals had jurisdiction because the District Court "effectively denied Lamps Plus's motion to compel arbitration" when the District Court interpreted the arbitration agreement to permit class arbitration. Brief for Petitioners 31 (emphasis deleted). Leaning heavily on dicta from Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp. , 559 U.S. 662, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010), Lamps Plus argues that class arbitration is so "fundamental[ly]" different from individual arbitration that the fact that "the district court purported to grant Lamps Plus's motion is not controlling." Brief for Petitioners 31.

But Stolt-Nielsen cannot bear the weight Lamps Plus would place on it. We held in Stolt-Nielsen that a party may not be compelled to "submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so." 559 U.S. at 684, 130 S.Ct. 1758. We did not hold that class arbitration is not arbitration at all. And because class arbitration is arbitration, the District Court's interpretation of Lamps Plus and Varela's arbitration agreement to permit class arbitration could not create appellate jurisdiction over the District Court order compelling the parties to arbitrate their dispute. See 9 U.S.C. § 16(b)(2) (prohibiting interlocutory appeals of district court orders "directing arbitration to proceed").

Nor did we hold in Stolt-Nielsen (or anywhere else) that § 16 of the FAA permits appeals of interlocutory orders directing arbitration to proceed, so long as the order incorporates some ruling that one party dislikes. If that were the rule, then § 16's limitations on appellate jurisdiction would be near meaningless. Consequently, the courts of appeals have-rightly, I believe-long recognized that they lack jurisdiction over appeals from orders that compel arbitration, "albeit not in the 'first-choice' " manner of the party that moved to compel. Al Rushaid v. National Oilwell Varco, Inc. , 814 F.3d 300, 304 (CA5 2016). See also, e.g., Blue Cross Blue Shield of Mass., Inc. v. BCS Ins. Co. , 671 F.3d 635, 638 (CA7 2011) (concluding that the court of appeals lacked jurisdiction over an order compelling arbitration but denying a motion to direct arbitrators to "hold separate rather than consolidated proceedings"); Bushley v. Credit Suisse First Boston , 360 F.3d 1149, 1154 (CA9 2004) (similar holding with respect to a request that arbitration take place before a different forum); Augustea Impb Et Salvataggi v. Mitsubishi Corp. , 126 F.3d 95, 98 (CA2 1997) (similar holding with respect to a request that the parties arbitrate in a different location). As one of those courts explained, "[p]ursuant to the plain meaning of th[e] statute ... a party cannot appeal a district court's order unless, at the end of the day, the parties are *1427forced to settle their dispute other than by arbitration." Id. , at 99. And Lamps Plus' characterization of the District Court's order compelling arbitration as an "effectiv[e] den[ial]" of Lamps Plus' motion "does not make it so." Blue Cross Blue Shield,supra , at 637.

Consequently, I would hold that we lack jurisdiction over this case. But because the Court accepts jurisdiction and decides the substantive legal question before us, I shall do the same. And in respect to that question I agree with Justice GINSBURG and Justice KAGAN, and I join their dissents.

Justice SOTOMAYOR, dissenting.

I join Justice GINSBURG's dissent in full and Part II of Justice KAGAN's dissent.1 This Court went wrong years ago in concluding that a "shift from bilateral arbitration to class-action arbitration" imposes such "fundamental changes," Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp. , 559 U.S. 662, 686, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010), that class-action arbitration "is not arbitration as envisioned by the" Federal Arbitration Act (FAA), AT&T Mobility LLC v. Concepcion , 563 U.S. 333, 351, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011). See, e.g., id. , at 362-365, 131 S.Ct. 1740 (BREYER, J., dissenting). A class action is simply "a procedural device" that allows multiple plaintiffs to aggregate their claims, 1 W. Rubenstein, Newberg on Class Actions § 1:1 (5th ed. 2011), "[f]or convenience ... and to prevent a failure of justice," Supreme Tribe of Ben-Hur v. Cauble , 255 U.S. 356, 363, 41 S.Ct. 338, 65 L.Ed. 673 (1921). Where, as here, an employment agreement provides for arbitration as a forum for all disputes relating to a person's employment and the rules of that forum allow for class actions, an employee who signs an arbitration agreement should not be expected to realize that she is giving up access to that procedural device.

In any event, as Justice KAGAN explains, the employment contract that Frank Varela signed went further. It states that " 'any and all disputes, claims or controversies arising out of or relating to[ ] the employment relationship between the parties[ ] shall be resolved by final and binding arbitration.' " Post , at ---- (quoting App. to Pet. for Cert. 24a). It adds that Varela and Lamps Plus "consent to the resolution by arbitration of all claims that may hereafter arise in connection with [Varela's] employment." Id ., at 24a-25a. And it provides for arbitration " 'in accordance with' " the rules of the arbitral forum, which in turn allow for class arbitration. Post , at ---- (opinion of KAGAN, J.) (citing App. to Pet. for Cert. 25a-26a). That is enough to persuade me that the contract was at least ambiguous as to whether Varela in fact agreed that no class-action procedures would be available in arbitration if he and his co-workers all suffered the same harm "relating to" and "in connection with" their "employment." See id ., at 24a-25a. And the court below was correct to turn to state law to resolve the ambiguity.

The Court today reads the FAA to pre-empt the neutral principle of state contract law on which the court below relied. I cannot agree. I also note that the majority reaches its holding without actually agreeing that the contract is ambiguous. See ante, at ---- ("[W]e defer to the Ninth Circuit's interpretation and application of state law"). The concurrence, meanwhile, *1428offers reasons to conclude that the contract unambiguously precludes class arbitration, see ante , at ---- - ----, and n. (opinion of THOMAS, J.), which would avoid the need to displace state law at all.2 This Court normally acts with great solicitude when it comes to the possible pre-emption of state law, see, e.g., Medtronic, Inc. v. Lohr , 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996), but the majority today invades California contract law without pausing to address whether its incursion is necessary. Such haste is as ill advised as the new federal common law of arbitration contracts it has begotten.

Justice KAGAN, with whom Justice GINSBURG and Justice BREYER join, and with whom Justice SOTOMAYOR joins as to Part II, dissenting.

The Federal Arbitration Act (FAA or Act) requires courts to enforce arbitration agreements according to their terms. See ante, at ----. But the Act does not federalize basic contract law. Under the FAA, state law governs the interpretation of arbitration agreements, so long as that law treats other types of contracts in the same way. See DIRECTV, Inc. v. Imburgia , 577 U.S. ----, ----, 136 S.Ct. 463, 468-469, 193 L.Ed.2d 365 (2015). That well-established principle ought to resolve this case against Lamps Plus's request for individual arbitration. In my view, the arbitration agreement Lamps Plus wrote is best understood to authorize arbitration on a classwide basis. But even if the Court is right to view the agreement as ambiguous, a plain-vanilla rule of contract interpretation, applied in California as in every other State, requires reading it against the drafter-and so likewise permits a class proceeding here. See Sandquist v. Lebo Auto., Inc. , 1 Cal. 5th 233, 247, 205 Cal.Rptr.3d 359, 376 P.3d 506, 514 (2016). The majority can reach the opposite conclusion only by insisting that the FAA trumps that neutral state rule whenever its application would result in class arbitration. That holding has no basis in the Act-or in any of our decisions relating to it (including the heavily relied-on Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp. , 559 U.S. 662, 686, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010) ). Today's opinion is rooted instead in the majority's belief that class arbitration "undermine[s] the central benefits of arbitration itself."Ante, at ----. But that policy view-of a piece with the majority's ideas about class litigation-cannot justify displacing generally applicable state law about how to interpret ambiguous contracts. I respectfully dissent.

I

From its very beginning, the arbitration agreement between Lamps Plus and Frank Varela announces its comprehensive scope. The first sentence states: "[T]he parties agree that any and all disputes, claims or controversies arising out of or relating to[ ] the employment relationship between the parties[ ] shall be resolved by final and binding arbitration." App. to Pet. for Cert. 24a. The phrase "any and all disputes, claims, or controversies" encompasses both their individual and their class variants-just as any other general category (e.g., any and all chairs) includes all particular types (e.g., desk and reclining). So Varela's class action (which arose out of or related to his employment) was a "dispute, *1429claim or controversy" that belonged in arbitration.

The next paragraph continues in the same vein, by describing what Varela gave up by signing the agreement. "[A]rbitration," the agreement says, "shall be in lieu of any and all lawsuits or other civil legal proceedings relating to my employment." Ibid. ; see ibid. (similarly waiving the right "to file a lawsuit or other civil action or proceeding"). That is the language of forum selection: Any and all actions (both individual and class) that I could once have brought in court, I am agreeing now to bring in arbitration. The provision carries no hint of consent to surrender altogether-in arbitration as well as court-the ability to bring a class proceeding.

Further on, the remedial and procedural terms of the agreement support reading it to authorize class arbitration. The arbitrator, according to the contract, may "award any remedy allowed by applicable law." Id., at 26a. That sweeping provision easily encompasses classwide relief when the "any and all disputes" that the contract's first sentence places in arbitration call for such remedies.1 And under the agreement, the arbitration shall be conducted "in accordance with" the rules of either of two designated arbitration providers-both of which furnish rules for arbitrators to conduct class proceedings. Id., at 25a-26a; see, e.g. , American Arbitration Assn., Supplementary Rules for Class Arbitrations (2011).

Even the section Lamps Plus cites in arguing that the agreement bars class arbitration instead points to the opposite conclusion. In describing what the agreement covers, one provision states: "The Company and I mutually consent to the resolution by arbitration of all claims or controversies ('claims'), past, present or future that I may have against the Company." App. to Pet. for Cert. 24a; see id., at 24a-25a ("Specifically, the Company and I mutually consent to the resolution by arbitration of all claims that may hereafter arise in connection with my employment"). Lamps Plus (along with the concurrence, see ante, at ---- - ---- (opinion of THOMAS, J.)) highlights "th[e] repeated use of singular personal pronouns" there, contending that it is incompatible with a form of arbitration that also involves other parties' claims. Brief for Petitioners 17. But the use of the first person singular merely reflects that the agreement is bilateral in nature-between Varela and Lamps Plus. Those pronouns do not resolve whether one of those parties ("I") can bring to arbitration class disputes, as well as individual disputes, relating to his employment. The part of the quoted section addressing that question is instead the phrase "all claims or controversies." And that phrase supplies the same answer as the agreement's other provisions. For it too is broad enough to cover both individual and class actions-the ones Varela brings alone and the ones he shares with co-workers.2

*1430II

Suppose, though, you think that my view of the agreement goes too far. Maybe you aren't sure whether the phrase "any and all disputes, claims or controversies" must be read to include class "disputes, claims or controversies." Or maybe you wonder whether the surrounding "I" and "my" references limit that phrase's scope, rather than merely referring to one of the contract's signatories. In short, you can see reasonable arguments on both sides of the interpretive dispute-for allowing, but also for barring, class arbitration. You are then in the majority's position, "accept[ing]" the arbitration agreement as "ambiguous." Ante, at ----. What should follow?

Under California law (which applies unless preempted) the answer is clear: The agreement must be read to authorize class arbitration. That is because California-like every other State in the country-applies a default rule construing "ambiguities" in contracts "against their drafters." Sandquist , 1 Cal. 5th, at 247, 205 Cal.Rptr.3d 359, 376 P.3d at 514 ; see Cal. Civ. Code Ann. § 1654 (West 2011) ; see also Brief for Contract Law Scholars as Amici Curiae 10-12, and n. 4 (listing decisions from all 50 States applying that rule). This anti-drafter canon-which "applies with peculiar force" to form contracts like Lamps Plus's-promotes clarity in contracting by resolving ambiguities against the party who held the pen. Sandquist , 1 Cal. 5th, at 248, 205 Cal.Rptr.3d 359, 376 P.3d at 514 (quoting Graham v. Scissor-Tail, Inc. , 28 Cal. 3d 807, 819, n. 16, 171 Cal.Rptr. 604, 623 P.2d 165, 172, n. 16 (1981) ); see Ayres & Gertner, Filling Gaps in Incomplete Contracts, 99 Yale L. J. 87, 91, 105, n. 80 (1989). And the rule makes quick work of interpreting the arbitration agreement here. Lamps Plus drafted the agreement. It therefore had the opportunity to insert language expressly barring class arbitration if that was what it wanted. It did not do so. It instead (at best) left an ambiguity about the availability of class arbitration. So California law holds that Lamps Plus cannot now claim the benefit of the doubt as to the agreement's meaning. Even the majority does not dispute that point. See ante, at ----, ----.

And contrary to the rest of the majority's opinion,3 the FAA contemplates that such a state contract rule will control the interpretation of arbitration agreements. Under the FAA, courts must "enforce arbitration agreements according to their terms." Epic Systems Corp. v. Lewis , 584 U.S. ----, ----, 138 S.Ct. 1612, 1621, 200 L.Ed.2d 889 (2018) (internal quotation marks omitted); see 9 U.S.C. § 4 (requiring that "arbitration proceed in the manner provided for in such agreement"). But the construction of those contractual terms (save for in limited circumstances, addressed below) is "a question of state law, which this Court does not sit to review."

*1431Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U.S. 468, 474, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). The Court has made that crucial point many times. Nothing in the FAA (as contrasted to today's majority opinion) "purports to alter background principles of state contract law regarding" the scope or content of agreements. Arthur Andersen LLP v. Carlisle , 556 U.S. 624, 630, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009). Or again: When ruling on an arbitration agreement's meaning, courts "should apply ordinary state-law principles." First Options of Chicago, Inc. v. Kaplan , 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Or yet again: The interpretation of such an agreement is "a matter of state law to which we defer." DIRECTV, Inc. , 577 U.S., at ----, 136 S.Ct., at 468. In short, the FAA does not federalize contract law.

Except when state contract law discriminates against arbitration agreements. As this Court has explained, the FAA came about because courts had shown themselves "unduly hostile to arbitration." Epic Systems , 584 U.S., at ----, 138 S.Ct., at 1621. To remedy that problem, Congress built an "equal-treatment principle" into the Act, requiring courts to "place arbitration agreements on an equal footing with other contracts." Kindred Nursing Centers L. P. v. Clark , 581 U.S. ----, ----, 137 S.Ct. 1421, 1424, 197 L.Ed.2d 806 (2017) ; AT&T Mobility LLC v. Concepcion , 563 U.S. 333, 339, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011) (internal quotation marks omitted); see 9 U.S.C. § 2 (making arbitration agreements "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract"). So any state rule treating arbitration agreements worse than other contracts "stand[s] as an obstacle" to achieving the Act's purposes-and is preempted. Concepcion , 563 U.S. at 343, 131 S.Ct. 1740. That means the FAA displaces any state rule discriminating on its face against arbitration. See id., at 341, 131 S.Ct. 1740. And the Act likewise preempts any more subtle law "disfavoring contracts that (oh so coincidentally) have the defining features of arbitration agreements." Kindred Nursing , 581 U.S., at ----, 137 S.Ct., at 1426. What matters, as this Court reiterated last Term, is whether the state law in question "target[s]" arbitration agreements, blatantly or covertly, for substandard treatment. Epic Systems , 584 U.S., at ----, 138 S.Ct., at 1622.4 When the law does so, it cannot operate; when, conversely, it treats arbitration agreements the same as all other contracts, the FAA leaves it alone.

Here, California's anti-drafter rule is as even-handed as contract rules come. It does not apply only to arbitration contracts. Nor does it apply (as the rule we rejected in Concepcion did) only a tad more broadly to "dispute-resolution contracts," pertaining to both arbitration and litigation. 563 U.S. at 341, 131 S.Ct. 1740 (holding that a ban on collective-action waivers in those contracts worked to "disfavor[ ] arbitration"). Instead, the anti-drafter *1432rule, as even the majority admits, applies to every conceivable type of contract-and treats each identically to all others. See Sandquist , 1 Cal. 5th, at 248, 205 Cal.Rptr.3d 359, 376 P.3d at 514 ("This general principle of contract interpretation applies equally to the construction of arbitration provisions"); ante, at ---- - ----. And contrary to what the majority is left to insist, the rule does not "target arbitration" by "interfer[ing] with [one of its] fundamental attributes"-i.e., its supposed individualized nature. Ante, at ---- (internal quotation marks omitted); see ante, at ---- - ----. The anti-drafter rule (again, quite unlike Concepcion 's ban on class-action waivers) takes no side-favors no outcome-as between class and individualized dispute resolution. All the anti-drafter rule asks about is who wrote the contract. So if, for example, Varela had drafted the agreement here, the rule would have prevented, rather than permitted, class arbitration.5 Small wonder, then, that this Court has itself used the anti-drafter canon to interpret an arbitration agreement. See Mastrobuono v. Shearson Lehman Hutton, Inc. , 514 U.S. 52, 62, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995) (construing an ambiguous arbitration agreement against the drafter's interest). In that case (as properly in any other), the rule's through-and-through neutrality made preemption unthinkable.6

So this case should come out Varela's way even if the agreement is ambiguous. To repeat the simple logic applicable here: Under the FAA, state law controls the interpretation of arbitration agreements unless that law discriminates against arbitration; the anti-drafter default rule is subject to no such objection; the rule therefore compels this Court to hold that the agreement here authorizes class arbitration. That the majority thinks the contract, as so read, seriously disadvantages Lamps Plus, see ante, at ---- - ----, is of no moment (any more than if state law had instead construed the contract to produce adverse consequences for Varela). The FAA was enacted to protect against judicial hostility toward arbitration agreements. See supra, at ----. But the Act provides no warrant for courts to disregard neutral state law in service of ensuring that those agreements give defendants the best terms possible. Or said otherwise: Nothing in the FAA shields a contracting party, operating against the backdrop of impartial state law, from the consequences of its own drafting decisions. How, then, could the majority go so wrong?

Stolt-Nielsen offers the majority no excuse: Far from "control[ling]" this case, ante, at ----, that decision addressed a different situation-and explicitly reserved decision of the question here. In Stolt-Nielsen , the contracting parties entered into a formal stipulation that "they had not reached any agreement on the issue of class arbitration." 559 U.S. at 673, 130 S.Ct. 1758. The case thus involved not the mere absence of express language about class arbitration, but a joint avowal that the parties had never resolved the issue.

*1433Facing that oddity, an arbitral panel compelled class arbitration based solely on its "own conception of sound policy." Id., at 675, 130 S.Ct. 1758 ; see id., at 676, 130 S.Ct. 1758 ("[T]he panel did [nothing] other than impose its own policy preference"). This Court rejected the panel's decision for that reason, holding that a party need not "submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so." Id. , at 684, 130 S.Ct. 1758. But the Court went no further. In particular, it did not resolve cases like this one, where a neutral interpretive rule (even if not an express term) enables an adjudicator to determine a contract's meaning. To the contrary, the Court disclaimed any view on that question. Yes, the Court held, "a contractual basis" was needed for class arbitration. Ibid. (emphasis added). But given the panel's reliance on policy alone, the Court explained that it had "no occasion to decide what contractual basis" was required. Id., at 687, n. 10, 130 S.Ct. 1758 (emphasis added); see Oxford Health Plans LLC v. Sutter , 569 U.S. 564, 571, 133 S.Ct. 2064, 186 L.Ed.2d 113 (2013) ("We overturned the arbitral decision [in Stolt-Nielsen ] because it lacked any contractual basis for ordering class procedures," not because it relied on an inadequate one).

Indeed, parts of Stolt-Nielsen -as well as later decisions-indicate that applying the anti-drafter rule to ambiguous language provides a sufficient contractual basis for class arbitration. In Stolt-Nielsen , we faulted the arbitrators for failing to inquire whether the relevant law "contain[ed] a default rule" that would construe an arbitration clause "as allowing class arbitration in the absence of express consent." 559 U.S. at 673, 130 S.Ct. 1758 (internal quotation marks omitted). We thus implied that such a default rule-like the anti-drafter canon here-can operate to authorize class arbitration when an agreement's language is ambiguous. And that is just how Concepcion (the other decision the majority relies on, see ante, at ---- ----, ---- - ----) understood Stolt-Nielsen 's reasoning. Said Concepcion : We held in Stolt-Nielsen "that an arbitration panel exceeded its power [by] imposing class procedures based on policy judgments rather than the arbitration agreement itself or some background principle of contract law that would affect its interpretation." 563 U.S. at 347, 131 S.Ct. 1740 (emphasis added); see Oxford Health, 569 U.S. at 571, 133 S.Ct. 2064 (similarly noting that Stolt-Nielsen criticized the arbitrators for failing to consider whether a "default rule" resolved the class arbitration question (internal quotation marks omitted)). The Court has thus (rightly) viewed the use of default rules as a run-of-the-mill aspect of contract interpretation, which (so long as neutrally applied) can support class arbitration.

And nothing particular to the anti-drafter rule justifies a different conclusion, as the majority elsewhere suggests, see ante, at ---- - ----.7 That rule, proclaims the *1434majority, reflects "public policy considerations," rather than "help[ing] to interpret the meaning of a term" as understood by the parties. Ante, at ----. The majority here notes that some commentators have viewed some equitable factors as supporting the rule, see ante, at ---- - -----which is no doubt right. But see 11 R. Lord, Williston on Contracts § 30:1, p. 11 (4th ed. 2012) (Williston) (stating that the rule is not justified by public interest considerations). But if the majority means to claim-as it must to prove its point-that the anti-drafter rule has no concern with what "the part[ies] agreed to," Stolt-Nielsen , 559 U.S. at 684, 130 S.Ct. 1758, then the majority is flat-out wrong. From an ex ante perspective, the rule encourages the drafter to set out its intent in clear contractual language, for the other party then to see and agree to. See Ayres & Gertner, 99 Yale L. J., at 91, 105, n. 80 (stating the modern view); 2 W. Blackstone, Commentaries on the Laws of England 380 (1766) (anticipating that view by 200-plus years). And from an ex post perspective, the rule enables an interpreter to resolve any remaining uncertainty in line with the parties' likely expectations. See 11 Williston § 30:1, at 11. Consider this very contract. Lamps Plus, knowing about the anti-drafter rule, still chose not to include a term prohibiting class arbitration. And Varela, seeing only the language sending "any and all disputes, claims, or controversies" to arbitration, had no reason to think class disputes barred. Cf. ibid. ("[T]he party addressed will understand ambiguous language in the sense most favorable to itself"). The upshot is that the rule (as this Court recognized in another arbitration case) protects against "unintended" consequences. Mastrobuono , 514 U.S. at 63, 115 S.Ct. 1212.

And even if that were not so evident, the FAA does not empower a court to halt the operation of such a garden-variety principle of state law. Nothing in the Act's text requires the displacement of state contract rules, as the majority implicitly concedes. See ante, at ----. Nor do the Act's purposes, so long as the state rule (as is true here) extends to all contracts alike, without disfavoring arbitration. See supra, at ---- - ----. The idea that the FAA blocks a state rule satisfying that standard because (a court finds) the rule has too much "public policy" in it comes only from the majority's collective mind. That approach disrespects the preeminent role of the States in designing and enforcing contract rules. It discards a universally accepted principle of contract interpretation in favor of unsupported assertions about what the parties must have (or could not possibly have) consented to. It subordinates authoritative state law to (at most) the impalpable emanations of federal policy, impossible to see except in just the right light.8

*1435For that reason, it would never have graced the pages of the U.S. Reports save that this case involves ... class proceedings.

The heart of the majority's opinion lies in its cataloging of class arbitration's many sins. See ante, at 1416. In that respect, the opinion comes from the same place as (though goes a step beyond) this Court's prior arbitration decisions. See, e.g., Concepcion , 563 U.S. at 350, 131 S.Ct. 1740 (lamenting that class arbitration "greatly increases risks to defendants" by "aggregat[ing] and decid[ing] at once" the "damages allegedly owed to tens of thousands of potential claimants"); Epic Systems , 584 U.S., at ----, 138 S.Ct., at 1646 (similarly bemoaning the greater costs and complexity of class proceedings). The opinion likewise has more than a little in common with this Court's efforts to pare back class litigation. See, e.g., Comcast Corp. v. Behrend , 569 U.S. 27, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013) ; Wal-Mart Stores, Inc. v. Dukes , 564 U.S. 338, 348-360, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). In this case, the result is to disregard the actual contract the parties signed. And to dismiss the neutral and commonplace default rule that would construe that contract against the drafting party. No matter what either requires, the majority will prohibit class arbitration. Does that approach remind you of anything? It should. Here (again) is Stolt-Nielsen as Concepcion described it: The panel exceeded its authority by "imposing class procedures based on policy judgments rather than the arbitration agreement itself or some background principle of contract law that would affect its interpretation." 563 U.S. at 347, 131 S.Ct. 1740 ; see supra, at 1433. Substitute "foreclosing" for "imposing" and that is what the Court today has done. It should instead-as the FAA contemplates-have left the parties' agreement, as construed by state law, alone.

OPINION OF THE COURT

Chief Judge Kaye.

The primary question before us is whether defendant, Educational Testing Service (ETS), a standardized testing firm, complied with procedures specified in its contract with high school senior Brian Dalton in refusing to release Dalton’s Scholastic Aptitude Test (SAT) score. Because the factual findings underlying the trial court’s determination that ETS failed to act in good faith in following those procedures were affirmed by the Appellate Division, have support in the record and are consequently beyond the scope of our review, we conclude — as did the trial court and Appellate Division — that ETS breached its contract with Dalton. Though we agree, moreover, with the *387courts below that specific performance is the appropriate remedy, we nevertheless conclude that the promised performance was good-faith compliance with the stated procedures, not release of the questioned scores as ordered by those courts.

I

In May 1991, Brian Dalton took the SAT, which was administered by ETS, at Holy Cross High School in Queens where Dalton was a junior. Six months later, in November, he took the examination a second time, as a senior, this time at John Bowne High School in Queens, and his combined score increased 410 points.

Because Dalton’s score increased by more than 350 points, his test results fell within the ETS category of "Large Score Differences” or "discrepant scores.” In accordance with ETS policy, members of the ETS Test Security Office therefore reviewed his May and November answer sheets. Upon a finding of disparate handwriting, the answer sheets were submitted to a document examiner, who opined that they were completed by separate individuals. Dalton’s case was then forwarded to the Board of Review, which preliminarily decided that substantial evidence supported cancelling Dalton’s November score.

Upon registering for the November SAT, Dalton had signed a statement agreeing to the conditions in the New York State edition of the Registration Bulletin, which reserved to ETS "the right to cancel any test score * * * if ETS believes that there is reason to question the score’s validity.” The Registration Bulletin further provided that, if "the validity of a test score is questioned because it may have been obtained unfairly, ETS [will] notifly] the test taker of the reasons for questioning the score” and offer the test-taker the following five options: (1) the opportunity to provide additional information, (2) confirmation of the score by taking a free retest, (3) authorization for ETS to cancel the score and refund all fees, (4) third-party review by any institution receiving the test score or (5) arbitration.

As specified in the Registration Bulletin, ETS apprised Dalton of its preliminary decision to cancel his November SAT score in a letter from Test Security Specialist Celeste M. Eppinger. Noting the handwriting disparity and the substantial difference between his May and November test results, Eppinger informed Dalton that "[t]he evidence suggests that *388someone else may have completed your answer sheet and that the questioned scores may be invalid.” She advised him that he could supply "any additional information that will help explain” this or, alternatively, elect one of the other options.

Eppinger enclosed the Procedures for Questioned Scores pamphlet with her letter, which reiterated the test-taker’s right to "submit additional relevant information” to the Board of Review supporting the validity of questioned scores. In cautioning test-takers to provide only information "relevant to the questions being raised,” the Procedures for Questioned Scores explained, "[f]or example, character references or testimonial letters do not explain handwriting differences.” As to the four additional options, the guide further explained, "ETS also offers other options * * * if additional information doesn’t resolve the questions about the validity of the scores. The option to provide additional information to resolve these questions may be used in combination with one or more of the[se] options.”

Dalton opted to present additional information to the Board of Review, including the following: verification that he was suffering from mononucleosis during the May examination; diagnostic test results from a preparatory course he took prior to the November examination (he had taken no similar course prior to the May SAT) that were consistent with his performance on that test; a statement from an ETS proctor who remembered Dalton’s presence during the November examination; and statements from two students — one previously unacquainted with Dalton — that he had been in the classroom during that test. Dalton further provided ETS with a report from a document examiner obtained by his family who concluded that Dalton was the author of both sets of answer sheets.

ETS, after several Board of Review meetings, submitted the various handwriting exemplars to a second document examiner who, like its first, opined that the May and November tests were not completed by the same individual. As a result, ETS continued to question the validity of Dalton’s November score.

At this point plaintiff Peter Dalton, father and natural guardian of Brian Dalton, filed a CPLR article 78 proceeding, later converted to an action at law, to prohibit ETS from cancelling Dalton’s November SAT score and to compel immediate release of the score. Following a 12-day nonjury trial, the trial court found that ETS failed "to make even rudimentary efforts to evaluate or investigate the information” furnished by *389Dalton and thus concluded that ETS failed to act in good faith in determining the legitimacy of Dalton’s score, thereby breaching its contract (155 Mise 2d 214, 225). The trial court premised this conclusion on its determination that the ETS Board of Review members failed to evaluate the information submitted because they believed Dalton’s presence at the November SAT to be wholly irrelevant to the handwriting issue and that he could controvert the Board’s preliminary finding that the score was invalid solely by taking a retest. As a remedy for the contractual breach, the trial court ordered ETS to release the November SAT score.

The Appellate Division affirmed. It too found that ETS ignored the documentation provided by Dalton and considered only the reports of its own document examiners. Like the trial court, the Appellate Division concluded that this failure to evaluate as well as to investigate Dalton’s information constituted a breach of contract. In light of these factual determinations, we agree that ETS breached its contract with Dalton but differ as to the scope of the relief.

II

By accepting ETS’ standardized form agreement when he registered for the November SAT, Dalton entered into a contract with ETS (see, AEB & Assocs. Design Group v Tonka Corp., 853 F Supp 724, 732). Implicit in all contracts is a covenant of good faith and fair dealing in the course of contract performance (see, Van Valkenburgh, Nooger & Neville v Hayden Publ. Co., 30 NY2d 34, 45, cert denied 409 US 875).

Encompassed within the implied obligation of each promisor to exercise good faith are " 'any promises which a reasonable person in the position of the promisee would be justified in understanding were included’ ” (Rowe v Great Atl. & Pac. Tea Co., 46 NY2d 62, 69, quoting 5 Williston, Contracts § 1293, at 3682 [rev ed 1937]). This embraces a pledge that "neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract” (Kirke La Shelle Co. v Armstrong Co., 263 NY 79, 87). Where the contract contemplates the exercise of discretion, this pledge includes a promise not to act arbitrarily or irrationally in exercising that discretion (see, Tedeschi v Wagner Coll., 49 NY2d 652, 659). The duty of good faith and fair dealing, however, is not without limits, and no obligation can be implied that "would be inconsistent with other terms of the contractual relationship” (Murphy v American Home Prods. Corp., 58 NY2d 293, 304).

*390The parties here agreed to the provisions in the Registration Bulletin, which expressly permit cancellation of a test score so long as ETS found "reason to question” its validity after offering the test-taker the five specified options. Nothing in the contract compelled ETS to prove that the test-taker cheated. Nor did the invitation to the test-taker to furnish ETS with relevant information reasonably and realistically translate into any requirement that ETS conduct a field investigation or gather evidence to verify or counter the test-taker’s documentation. Indeed, such an obligation would be inconsistent with the contractual language placing the burden squarely on the test-taker to overcome the ETS finding of score invalidity. ETS, therefore, was under no duty, express or implied, to initiate an external investigation into a questioned score.

The contract, however, did require that ETS consider any relevant material that Dalton supplied to the Board of Review. The Registration Bulletin explicitly afforded Dalton the option to provide ETS with relevant information upon notification that ETS questioned the legitimacy of his test score. Having elected to offer this option, it was certainly reasonable to expect that ETS would, at the very least, consider any relevant material submitted in reaching its final decision.

Dalton triggered this implied-in-law obligation on the part of ETS by exercising his contractual option to provide ETS with information (compare, Matter of Yaeger v Educational Testing Serv., 158 AD2d 602 [where test-taker declined to invoke any of the proffered options, ETS cancelled score in good faith and in accordance with terms of the contract]). Significantly, Dalton heeded the advice in the Procedures for Questioned Scores and tendered numerous documents that did more than simply deny allegations of wrongdoing or attest to his good character, such as medical evidence regarding his physical condition, statements by fellow test-takers, the statement of a classroom proctor and consistent diagnostic test results (compare, Swencki v Educational Testing Serv., No. C 81-0689 [WD KY] [test-taker sent letter to ETS explaining that he could not have cheated]; Matter of K. D. v Educational Testing Serv., 87 Misc 2d 657 [test-taker submitted sworn statement that he did not cheat]).

Nevertheless, with the exception of the document examiner’s report, ETS disputes the relevancy of this information. Specifically, ETS maintains that the sole issue before the Board of Review was the disparate handwriting and that evidence regarding Dalton’s health (apart from a damaged arm) or presence during both examinations is irrelevant to resolving that issue.

*391To be sure, the Procedures for Questioned Scores warned Dalton "to provide only additional information that is relevant to the questions being raised.” The Eppinger letter to Dalton, however, informed him that his November score was possibly invalid precisely because ETS believed "that someone else may have completed [his] answer sheet.” Thus, ETS expressly framed the dispositive question as one of suspected impersonation. Because the statements from the classroom proctor and November test-takers corroborated Dalton’s contention that he was present at and in fact took the November examination, they were relevant to this issue.

Likewise, inasmuch as the medical documentation concerning Dalton’s health at the time of the May SAT provided an explanation for his poor performance on that examination, and the consistent diagnostic test results demonstrated his ability to achieve such a dramatic score increase, these items were also germane to the question whether it was Dalton or an imposter who completed the November examination. Indeed, in its manual, Policies and Procedures Concerning Scores of Questionable Validity — which details internal ETS procedure regarding questioned scores — ETS offers several examples of "relevant information” that a test-taker might provide, including "a doctor’s report that the candidate was under the influence of medication at the time the low score was earned.” Regarding "a case of possible impersonation” in particular, the manual suggests that "other test results might demonstrate that the questioned score is not inconsistent with other measures of the candidate’s abilities.” Thus, Dalton’s material fell within ETS’ own definition of relevancy, as expressed in its manual and letter to Dalton.

The critical question then is whether the Board of Review made any effort to consider this relevant information submitted by Dalton. That is a factual inquiry. Both the trial court and the Appellate Division concluded that the Board utterly failed to evaluate the material. Given these affirmed findings, "our scope of review is narrow. This Court is without power to review findings of fact if such findings are supported by evidence in the record” (Humphrey v State of New York, 60 NY2d 742, 743).

Several Board of Review members — each member alone had the power to order release of Dalton’s November score — testified that they believed information establishing Dalton’s presence during the November examination to be irrelevant to *392their determination* and, moreover, that only a successful retest would validate Dalton’s score. Thus, there is support in the record for the factual determinations of the trial court and Appellate Division and they are binding on us. This is so notwithstanding inconsistent testimony by Board members that the Board did review Dalton’s information but found it unpersuasive. In light of the affirmed findings, the Court of Appeals simply does not have authority to weigh conflicting evidence and make its own factual determinations, as the dissent would do.

Consequently, this case is factually distinct from those relied upon by ETS, where the testing service considered but then rejected information provided by the test-taker (see, e.g., Langston v ACT, 890 F2d 380; Denburg v Educational Testing Serv., No. C-1715-83 [NJ Super Ct]; cf., Johnson v Educational Testing Serv., 754 F2d 20, 26, cert denied 472 US 1029 [noting that ETS provided test-taker with opportunity to be heard and to be represented by counsel]). When ETS fulfills its contractual obligation to consider relevant material provided by the test-taker and otherwise acts in good faith, the testing service — not the courts — must be the final arbiter of both the appropriate weight to accord that material and the validity of the test score. This Court will not interfere with that discretionary determination unless it is performed arbitrarily or irrationally.

Where, however, ETS refuses to exercise its discretion in the first instance by declining even to consider relevant material submitted by the test-taker, the legal question is whether this refusal breached an express or implied term of the contract, not whether it was arbitrary or irrational. Here, the courts below agreed that ETS did not consider the relevant informa*393tian furnished by Dalton. By doing so, ETS failed to comply in good faith with its own test security procedures, thereby breaching its contract with Dalton.

The dissent urges that because the trial court and Appellate Division relied in part on ETS’ failure to investigate Dalton’s information, they arguably employed an erroneous legal standard. Overlooked, however, is that both courts also concluded that ETS’ refusal to evaluate the material breached the contract with Dalton and, thus, employed a correct legal standard. Moreover, the crucial factual inquiry under the correct standard — whether ETS considered Dalton’s relevant material — has already been resolved by those courts. Because this factual finding dictates the legal conclusion that ETS breached the contract, remittal is unnecessary.

Ill

We agree with the trial court and Appellate Division that Dalton is entitled to specific performance of the contract. Dalton is not, however, entitled to release of his score as though fully validated. The goal of specific performance is to produce "as nearly as is practicable, the same effect as if the contract had been performed” (Farnsworth, Contracts § 12.5, at 823 [1982]). Had the contract here been performed, ETS would have considered the information provided by Dalton in reaching a final decision. ETS never promised to release a score believed to be invalid, and the validity of Dalton’s November SAT score has yet to be determined. Indeed, the trial court specifically noted that it was not resolving the question whether Dalton in fact took the November test.

In an analogous context, we have refused to compel a university to issue a degree to a student who had not fulfilled the academic requirements (see, Matter of Olsson v Board of Higher Educ., 49 NY2d 408). This reluctance to interfere with the exercise of academic discretion is motivated by sound considerations of public policy. "When an educational institution issues a diploma to one of its students, it is, in effect, certifying to society that the student possesses all of the knowledge and skills that are required by his [or her] chosen discipline” (id., at 413). Likewise, we have held that a college did not act arbitrarily in declining to "round off” a student’s failing grade so that she could graduate (see, Matter of McIntosh v Borough of Manhattan Community Coll., 78 AD2d 839, affd 55 NY2d 913).

The comparison between ETS and academic institutions is surely not exact, inasmuch as judicial restraint in matters of *394academic achievement is based, in part, on the inherently subjective nature of the evaluation to be made by professional educators (see, Tedeschi v Wagner Coll., 49 NY2d 652, 658, supra). Still, similar policy concerns militate against directing ETS to release a questioned score. When a standardized" testing service reports a score, it certifies to the world that the test-taker possesses the requisite knowledge and skills to achieve the particular score. Like academic credentials, if courts were to require testing services to release questioned scores, "the value of these credentials from the point of view of society would be seriously undermined” (Olsson, supra, at 413). Given the reliance that students, educational institutions, prospective employers and others place on the legitimacy of scores released by ETS, requiring challenged scores to be reported would be contrary to the public interest and exceed the scope of ETS’ promised performance.

While courts as a matter of policy are reluctant to intrude upon academic discretion in educational matters, they stand ready as a matter of law and equity to enforce contract rights. Where a contract is breached, moreover, and the injured party is entitled to specific performance, the remedy must be a real one, not an exercise in futility.

Dalton is entitled to relief that comports with ETS’ contractual promise — good-faith consideration of the material he submitted to ETS. We cannot agree with Dalton’s assumption that ETS will merely rubber-stamp its prior determination without good-faith attention to his documentation and that reconsideration by ETS will be an empty exercise. Our conclusion that the contract affords Dalton a meaningful remedy rests also on the provision in the Procedures for Questioned Scores allowing Dalton to utilize one or more of the remaining four options in combination with renewed consideration by the Board of Review. Those options — including third-party review by any institution receiving the test score as well as arbitration — remain available should ETS determine that the information submitted fails to resolve its concerns about the validity of the November score.

Accordingly, the Appellate Division order should be modified in accordance with this opinion and, as so modified, affirmed, without costs.

Levine, J.

(dissenting). I agree with the majority that the Educational Testing Service (ETS) had no duty, express or implied, to investigate the information submitted by Brian *395Dalton. However, I do not agree that we are bound by the factual determinations of the lower courts, which are based on an erroneous legal standard, or that the record contains any evidence that ETS arbitrarily failed to consider the materials submitted by Dalton. I, therefore, respectfully dissent.

A primary obligation of ETS as administrator of the SAT and other scholastic aptitude tests heavily relied upon by institutions of higher education is to certify that released scores accurately reflect the performance on the test of the identified test taker. The college admission process is highly dependent on the authenticity of the SAT scores released by ETS, as are other test takers whose scores are valued in relation to those of all others who take the exam and are competing for admission. In order to ensure the reliability of its certification process, ETS has established elaborate procedures that balance the harms to institutions and other candidates of the release of possibly invalid scores against the detriment to students whose scores are challenged as potentially invalid. The procedures established by ETS are unquestionably fair; they give test takers whose scores are questioned opportunity after opportunity to validate their scores. In the end, however, ETS as a practical necessity must be the final arbiter of whether it can honestly certify the validity of a student’s score. Thus, the standard contract between ETS and test takers reserves to ETS the right "to cancel any test score * * * if ETS believes that there is reason to question the score’s validity [emphasis supplied].”

Peter Dalton, Brian Dalton’s father, brought this suit based on the claim that ETS treated Brian Dalton unfairly because it did not conduct a thorough investigation of the material Brian submitted to ETS when his scores were questioned. The trial court accepted Dalton’s argument.* Thus, to support its conclusion that ETS failed "to make even rudimentary efforts to evaluate or investigate the information furnished by” Dalton and thus failed to act in good faith in carrying out its obligations to Dalton, the court pointed to ETS’s failure to make contact with or question the proctor, the test administrator, or other students who gave evidence that tended to show that Dalton was present, and to ETS’s refusal to conduct fingerprint *396or lie detector tests on Dalton (155 Misc 2d 214, 225). Likewise, the Appellate Division clearly considered ETS’s failure to investigate as a factor in its ultimate conclusion that ETS acted without good faith: "The practice of ignoring Dalton’s evidence without even initiating a preliminary investigation clearly demonstrate a lack of good faith by ETS” (206 AD2d 402, 403 [emphasis supplied]).

My colleagues in the majority here, however, correctly conclude that ETS had no express or implied duty to investigate. Thus, it seems indisputable that the ultimate determinations of the courts below — that ETS breached its implied covenant of good faith and fair dealing — were reached at least in significant part by reliance on an erroneous legal standard, that ETS had a duty to investigate. Thus, at a minimum, reversal and remittal for new findings based on the proper legal standard is required here.

However, applying the correct legal standard to the record evidence, it is my conclusion that ETS fulfilled its contractual obligations as a matter of law and, therefore, we should reverse and dismiss the Daltons’ complaint.

As the Chief Judge concludes, ETS was contractually obligated to consider any relevant material that Dalton supplied the Board of Review (majority opn, at 390). After considering that evidence, ETS had the stated right to cancel Dalton’s test score if it possessed "a reason to question” the score’s validity. Thus, it seems self-evident that ETS expressly reserved to itself substantial discretion on whether to refuse to certify a test score.

To be sure, there is a covenant of good faith and fair dealing implicit in the contract between Dalton and ETS (see, Rowe v Great Atl. & Pac. Tea Co., 46 NY2d 62, 68; Van Valkenburgh, Nooger & Neville v Hayden Publ. Co., 30 NY2d 34, 45, cert denied 409 US 875). It requires that "neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract” (Kirke La Shelle Co. v Armstrong Co., 263 NY 79, 87). In this way, the implied covenant "is in aid and furtherance of other terms of the agreement of the parties. No obligation can be implied, however, which would be inconsistent with other terms of the contractual relationship” (Murphy v American Home Prods. Corp., 58 NY2d 293, 304 [rejecting application of implied covenant to at-will employment contracts]). Where good faith is an express condition of a contract that contemplates a wide scope of discretion on the part of one party, there *397is no breach if the discretionary act performed is "not arbitrary and capricious” (Smith v Robson, 148 NY 252, 255; see also, 3A Corbin, Contracts § 647, at 104-106). The implied covenant does no more; it works only to ensure that a party with whom discretion is vested does not act arbitrarily or irrationally (see, e.g., Tedeschi v Wagner Coll., 49 NY2d 652, 659).

Thus, the issue here is whether there is evidence that ETS performed its discretionary functions arbitrarily or irrationally, or with bad faith in fact (cf., Langston v ACT, 890 F2d 380, 386; Johnson v Educational Testing Serv., 754 F2d 20, cert denied 472 US 1029 [American College Testing Program only contractually required to act in good faith]).

Here, there was no evidence of bad faith in fact. Moreover, ETS had two definitive reports of highly qualified handwriting experts, of proven reliability, that the November 1991 answer sheet was filled out by someone other than the person who filled out the May 1991 exam answer sheet and the documents known to have been signed or produced by Brian Dalton. Surely it was not irrational or arbitrary for ETS to find that the unexplained disparate handwriting on the November 1991 answer sheet gave it reason to question the validity of the second test score. The courts below did not find otherwise. Nor can it be said that, as a matter of law, the evidence submitted by Dalton totally obviated the reasons ETS had to question the test score. It was, therefore, not a breach of the implied covenant of good faith to refuse to certify Dalton’s scores after consideration of the evidence submitted, and the majority does not so hold.

Rather the majority holds that there is evidence that ETS breached its implied covenant of good faith in its deliberative process in failing "to consider” Dalton’s submissions (majority opn, at 391). However, the uncontroverted evidence accepted by the courts below and the majority here is that when ETS received the information submitted by Dalton it did not totally disregard it. Rather, it considered it and judged it weighty enough to merit further evaluation. Thus, it is undeniable that ETS responded to the submissions by retaining another handwriting expert to get a third evaluation of the documents. In addition, ETS submitted Dalton’s additional handwriting samples to its first handwriting expert for a second evaluation.

To overcome this concrete evidence of consideration, the majority points to selectively, narrow portions of the record in which ETS Board of Review members testified that they deemed irrelevant Dalton’s evidence that tended to show he *398was in the room on the day the test was given as evidence that ETS "failed to consider” Dalton’s submissions, which in turn supported the determination of its breach of the implied covenant of good faith and fair dealing. I disagree.

Again, it is uncontroverted that each member of the ETS Board of Review gave a reason why he or she found Dalton’s submissions irrelevant. Therefore, a breach of the implied covenant of good faith and fair dealing could only be established if the reason the Board members gave to deem irrelevant Dalton’s submissions was arbitrary, capricious or irrational. Each Board member testified that the evidence did not explain their one lingering crucial doubt, the disparate handwriting, which was the exact doubt communicated to Dalton by ETS — "someone else may have completed [the] answer sheet” (Dec. 11, 1991 letter to Brian Dalton). Because the reason to deem irrelevant Dalton’s evidence of presence was not irrational, arbitrary or capricious it cannot, as a matter of law, form the basis of a breach of the implied covenant of good faith. It is only by substituting its judgment for that of ETS as to what should have been deemed relevant evidence that the majority finds evidence of bad faith. However, "[w]hen an [institutional decision maker] * * * acts within its jurisdiction, not arbitrarily but in the exercise of an honest discretion based on facts within its knowledge that justify the exercise of discretion, a court may not review the exercise of its discretion” (Matter of Carr v St. John’s Univ., 17 AD2d 632, 634, affd 12 NY2d 802; see also, Matter of Harris v Trustees of Columbia Univ., 98 AD2d 58, 70 [Kassal, J., dissenting], revd on dissenting opn below 62 NY2d 956).

In sum, ETS acted within its discretion in continuing the security process rather than releasing the score after considering and rejecting Dalton’s evidence. There is no evidence that ETS acted arbitrarily in its discretionary decision-making process. Hence there is no evidence that ETS breached any express or implied covenant in its contract with Dalton. Accordingly, I would reverse the order of the Appellate Division and dismiss the complaint.

Judges Titone, Bellacosa, Smith and Ciparick concur with Chief Judge Kaye; Judge Levine dissents and votes to reverse in a separate opinion in which Judge Simons concurs.

Order modified in accordance with the opinion herein and, as so modified, affirmed, without costs.

TAYLOR, Justice.

These consolidated appeals test the enforceability of a covenant not to compete which was included in an employment contract. The district court found that the covenant imposed reasonable geographic and durational limits necessary to protect the employers’ businesses and enjoined a veterinarian from practicing small animal medicine for three years within a five mile radius of the city limits of Laramie, Wyoming. The district court denied a damage claim for breach of the employment agreement brought by the veterinarian’s two corporate employers because it was speculative. The veterinarian appeals from the decision to enforce the terms of the covenant. In the companion case, the corporate employers appeal the decision to deny damages.

We hold that the covenant’s three year duration imposed an unreasonable restraint of trade permitting only partial enforcement of a portion of that term of the covenant. We affirm the district court’s conclusions of law that the remaining terms of the covenant were reasonable. We also affirm the district court’s judgment refusing damages because the finding that damages were unproven is not clearly erroneous.

I. ISSUES

In Case No. 92-254, appellant, the veterinarian, frames the following issues:

A. The trial court abused its discretion in failing to consider the undue hardship to the appellant in granting the injunction.

B. The trial court abused its discretion in granting the injunction as appellees failed to prove the existence of irreparable harm.

C. The trial court abused its discretion in granting the injunction as the restrictive covenant was overbroad.

Appellees, the corporate employers, rephrase the issues:

A. Whether the evidence is sufficient to sustain the district court’s finding that enforcement of the covenant not to compete would not cause appellant to suffer undue hardship[.]

B. Whether the evidence is sufficient to sustain the district court’s finding that *536appellees suffered irreparable injury as a result of appellant’s breach of the covenant not to compete^]

C. Whether the covenant not to compete in question here is reasonable[.]

In Case No. 92-255, appellants, the corporate employers, question:

I. Whether the court’s finding that the amount of damages suffered by appellants is speculative and was not proven by appellants by a preponderance of the evidence is contrary to the evidence^]

The veterinarian responds:

Did the trial court err in finding that the amount of damages claimed by Appellants was speculative and not proven by a preponderance of the evidence?

II. FACTS

Following her graduation from Colorado State University, Dr. Glenna Hopper (Dr. Hopper) began working part-time as a veterinarian at the All Pet Animal Clinic, Inc. (All Pet) in July of 1988. All Pet specialized in the care of small animals; mostly domesticated dogs and cats, and those exotic animals maintained as household pets. Dr. Hopper practiced under the guidance and direction of the President of All Pet, Dr. Robert Bruce Johnson (Dr. Johnson).

Dr. Johnson, on behalf of All Pet, offered Dr. Hopper full-time employment in February of 1989. The oral offer included a specified salary and potential for bonus earnings as well as other terms of employment. According to Dr. Johnson, he conditioned the offer on Dr. Hopper’s acceptance of a covenant not to compete, the specific details of which were not discussed at the time. Dr. Hopper commenced full-time employment with All Pet under the oral agreement in March of 1989 and relocated to Laramie, discontinuing her commute from her former residence in Colorado.

A written Employment Agreement incorporating the terms of the oral agreement was finally executed by the parties on December 11, 1989. Ancillary to the provisions for employment, the agreement detailed the terms of a covenant not to compete:

12. This agreement may be terminated by either party upon 30 days’ notice to the other party. Upon termination, Dr. Hopper agrees that she will not practice small animal medicine for a period of three years from the date of termination within 5 miles of the corporate limits of the City of Laramie, Wyoming. Dr. Hopper agrees that the duration and geographic scope of that limitation is reasonable.

The agreement was antedated to be effective to March 3, 1989.

The parties executed an Addendum To Agreement on June 1, 1990. The addendum provided that All Pet and a newly acquired corporate entity, Alpine Animal Hospital, Inc. (Alpine), also located in Laramie, would share in Dr. Hopper’s professional services. As the President of All Pet and Alpine, Dr. Johnson agreed, in the addendum, to raise Dr. Hopper’s salary. The bonus provision of the original agreement was eliminated. Except as modified, the other terms of the March 3, 1989 employment agreement, including the covenant not to compete, were reaffirmed and Dr. Hopper continued her employment.

One year later, reacting to a rumor that Dr. Hopper was investigating the purchase of a veterinary practice in Laramie, Dr. Johnson asked his attorney to prepare a letter which was presented to Dr. Hopper. The letter, dated June 17, 1991, stated:

I have learned that you are considering leaving us to take over the small animal part of Dr. Meeboer’s practice in Laramie.

When we negotiated the terms of your employment, we agreed that you could leave upon 30 days’ notice, but that you would not practice small animal medicine within five miles of Laramie for a three-year period. We do not have any. non-competition agreement for large-animal medicine, which therefore does not enter into the picture.

I am willing to release you from the non-competition agreement in return for a cash buy-out. I have worked back from the proportion of the income of All-*537Pet and Alpine which you contribute and have decided that a reasonable figure would be $40,000.00, to compensate the practice for the loss of business which will happen if you practice small-animal medicine elsewhere in Laramie.

If you are willing to approach the problem in the way I suggest, please let me know and I will have the appropriate paperwork taken care of.

Sincerely,

[Signed]

R. Bruce Johnson, D.V.M.

Dr. Hopper responded to the letter by denying that she was going to purchase Dr. Meeboer’s practice. Dr. Hopper told Dr. Johnson that the Employment Agreement was not worth the paper it was written on and that she could do anything she wanted to do. Dr. Johnson terminated Dr. Hopper’s employment and informed her to consider the 30-day notice as having been given. An unsigned, handwritten note from Dr. Johnson to Dr. Hopper, dated June 18,1991, affirmed the termination and notice providing, in part:

Per your request to abide by your employment agreement with All Pet and Alpine as regards termination:

Be advised that your last day of employment is July 18, 1991 for reasons that we are both aware of and have discussed previously.

Subsequently, Dr. Hopper purchased Gem City Veterinary Clinic (Gem City), the practice of Dr. Melanie Manning. Beginning on July 15, 1991, Dr. Hopper operated Gem City, in violation of the covenant not to compete, within the City of Laramie and with a practice including large and small animals. Under Dr. Hopper’s guidance, Gem City’s client list grew from 368 at the time she purchased the practice to approximately 950 at the time of trial. A comparison of client lists disclosed that 187 clients served by Dr. Hopper at Gem City were also clients of All Pet or Alpine. Some of these shared clients received permissible large animal services from Dr. Hopper. Overall, the small animal work contributed from fifty-one to fifty-two percent of Dr. Hopper’s gross income at Gem City.

All Pet and Alpine filed a complaint against Dr. Hopper on November 15, 1991 seeking injunctive relief and damages for breach of the covenant not to compete contained in the Employment Agreement. Notably, All Pet and Alpine did not seek a temporary injunction to restrict Dr. Hopper’s practice and possibly mitigate damages during the pendency of the proceeding. Trial was conducted on September 28, 1992.

The district court, in its Findings of Fact, Conclusions of Law and Judgment, determined that the covenant not to compete was enforceable as a matter of law and contained reasonable durational and geographic limits necessary to protect All Pet’s and Alpine’s special interests. The special interests found by the district court included: special influence over and direct contact with All Pet’s and Alpine’s clients; access to client files; access to pricing policies; and instruction in practice development. Dr. Hopper was enjoined from practicing small animal medicine within five miles of the corporate limits of the City of Laramie for a period of three years from July 18, 1991. The district court found that the amount of damages suffered by All Pet and Alpine was speculative and not proven by a preponderance of the evidence.

III. STANDARD OF REVIEW

A trial of this case was before the court. By request of one of the parties, specific findings of fact and conclusions of law were stated under W.R.C.P. 52(a) (hereinafter Rule 52(a)). Rule 52(a) states:

General and special findings by court.— Upon the trial of questions of fact by the court, or with an advisory jury, it shall not be necessary for the court to state its findings, except generally for the plaintiff or defendant, unless one of the parties requests it before the introduction of any evidence, with the view of excepting to the decision of the court upon the questions of law involved in the trial, in which case the court shall state in writing its special findings of fact separately *538from its conclusions of law; provided, that without such request the court may make such special findings of fact and conclusions of law as it deems proper and if the same are preserved in the record either by stenographic report or by the court’s written memorandum, the same may be considered on appeal. Requests for findings are not necessary for purposes of review. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in subdivision (c) of this rule.

While the specific language of Rule 52(a) differs from its federal counterpart, F.R.C.P. 52(a), in part because current federal rules require findings of fact and conclusions of law in all cases of trial to the court without a request of parties, this court has adopted the view that the similarity in language and purpose of the state and federal rules permits resort to federal precedent for aid in effectuating the intent of Rule 52(a). Whitefoot v. Hanover Ins. Co., 561 P.2d 717, 720 (Wyo.1977).

Unfortunately, on appeal, the parties have misconstrued the appropriate standard of review relevant to such findings and conclusions. We believe this confusion results from a misapplication of principles of review utilized for jury verdicts and administrative law with those related to facts found by the court. The factual findings of a judge are not entitled to the more limited review afforded a jury verdict. 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil, § 2585 at 730 (1971).

The purpose of specific findings under Rule 52(a) is to inform the appellate court of the underlying facts supporting the trial court’s conclusions of law and disposition of the issues. Lebsack v. Town of Torrington, 698 P.2d 1141, 1146 (Wyo.1985); Cline v. Sawyer, 600 P.2d 725, 730 (Wyo.1979); Whitefoot, 561 P.2d at 720. While the findings are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Shores v. Lindsey, 591 P.2d 895, 899 (Wyo.1979); 9 Wright & Miller, supra, § 2585 at 729, 731. Deference is given to the opportunity of the trial court to assess the credibility of the witnesses. Shores, 591 P.2d at 899. Because this court does not weigh the evidence de novo, findings may not be set aside because we would have reached a different result. Shores, 591 P.2d at 899; 9 Wright & Miller, supra, § 2585 at 732-33. The appellant bears the burden of persuading the appellate court that the finding is erroneous. 9 Wright & Miller, supra, § 2585 at 729.

On appeal, findings of fact are not set aside unless clearly erroneous. Shores, 591 P.2d at 899; Whitefoot, 561 P.2d at 720; 9 Wright & Miller, supra, § 2585 at 729. The definitive test of when a finding is clearly erroneous was adopted by the United States Supreme Court in United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. at 395, 68 S.Ct. at 542. See Citibank, N.A. v. Wells Fargo Asia Ltd., 495 U.S. 660, 670, 110 S.Ct. 2034, 2041, 109 L.Ed.2d 677 (1990), cert. denied, — U.S. —, 112 S.Ct. 2990, 120 L.Ed.2d 868 (1992) (reaffirming the United States Gypsum Co. test). Wyoming accepted this standard for Rule 52(a) in Shores, 591 P.2d at 899. Alternatively, a determination that a finding is against the great weight of the evidence means a finding will be set aside even if supported by substantial evidence. Rocky Mountain Turbines, Inc. v. 660 Syndicate, Inc., 623 P.2d 758, 762 (Wyo.1981); Shores, 591 P.2d at 899; 9 Wright & Miller, supra, § 2585 at 735 n. 10.

Conclusions of law made by the district court under Rule 52(a) are not binding upon this court and are reviewed de novo. Shores, 591 P.2d at 900; 9 Wright & Miller, supra, § 2588 at 752. “Findings of fact of *539the trial judge can also lose the insulation of the clearly erroneous standard if they are induced by an erroneous view of the law, United States v. United States Gypsum Co., * * * 333 U.S. at 394, 68 S.Ct. at 541; and United States v. Richberg, * * * 398 F.2d 523 ([5th Cir.] 1968), or contain factual and legal conclusions that reflect the application of an improper legal standard.” Shores, 591 P.2d at 899-900.

IV. DISCUSSION

A. The Enforceability of a Covenant Not to Compete

The common law policy against contracts in restraint of trade is one of the oldest and most firmly established. Restatement (Second) of Contracts §§ 185-188 (1981) (Introductory Note at 35). See Dutch Maid Bakeries v. Schleicher, 58 Wyo. 374, 131 P.2d 630, 634 (1942). The traditional disfavor of such restraints means covenants not to compete are construed against the party seeking to enforce them. Commercial Bankers Life Ins. Co. of America v. Smith, 516 N.E.2d 110, 112 (Ind.App.1987). The initial burden is on the employer to prove the covenant is reasonable and has a fair relation to, and is necessary for, the business interests for which protection is sought. Tench v. Weaver, 374 P.2d 27, 29 (Wyo.1962).

Two principles, the freedom to contract and the freedom to work, conflict when courts test the enforceability of covenants not to compete. Ridley v. Krout, 63 Wyo. 252, 180 P.2d 124, 128 (1947). There is general recognition that while an employer may seek protection from improper and unfair competition of a former employee, the employer is not entitled to protection against ordinary competition. See, e.g., Duffner v. Alberty, 19 Ark.App. 137, 718 S.W.2d 111, 112 (1986) and American Sec. Services, Inc. v. Vodra, 222 Neb. 480, 385 N.W.2d 73, 78 (1986). The enforceability of a covenant not to compete depends upon a finding that the proper balance exists between the competing interests of the employer and the employee. See Restatement (Second) of Agency § 393 cmt. e (1958) (noting that without a covenant not to compete, an agent, employee, can compete with a principal despite past employment and can begin preparations for future competition, such as purchasing a competitive business, before leaving present employment).

Wyoming adopted a rule of reason inquiry from the Restatement of Contracts testing the validity of a covenant not to compete. Dutch Maid Bakeries, 131 P.2d at 634 (citing Restatement of Contracts §§ 513-515 (1932)); Ridley, 180 P.2d at 127. The present formulation of the rule of reason is contained in Restatement (Second) of Contracts, supra, § 188:

(1) A promise to refrain from competition that imposes a restraint that is ancillary to an otherwise valid transaction or relationship is unreasonably in restraint of trade if

(a) the restraint is greater than is needed to protect the promisee’s legitimate interest, or

(b) the promisee’s need is outweighed by the hardship to the promi-sor and the likely injury to the public.

(2) Promises imposing restraints that are ancillary to a valid transaction or relationship include the following:

(a) a promise by the seller of a business not to compete with the buyer in such a way as to injure the value of the business sold;

(b) a promise by an employee or other agent not to compete with his employer or other principal;

(c) a promise by a partner not to compete with the partnership.

See also Restatement (Second) of Contracts, supra, §§ 186-187. An often quoted reformulation of the rule of reason inquiry states that “[a] restraint is reasonable only if it (1) is no greater than is required for the protection of the employer, (2) does not impose undue hardship on the employee, and (3) is not injurious to the public.” Harlan M. Blake, Employee Agreements Not to Compete, 73 Harv. L.Rev. 625, 648-49 (1960).

*540A valid and enforceable covenant not to compete requires a showing that the covenant is: (1) in writing; (2) part of a contract of employment; (3) based on reasonable consideration; (4) reasonable in durational and geographical limitations; and (5) not against public policy. A.E.P. Industries, Inc. v. McClure, 308 N.C. 393, 302 S.E.2d 754, 760 (1983). See Tench, 374 P.2d at 29; Ridley, 180 P.2d at 128; Dutch Maid Bakeries, 131 P.2d at 634; and Wyo. Stat. § 1-23-105 (1988). The reasonableness of a covenant not to compete is assessed based upon the facts of the particular case and a review of all of the circumstances. American Sec. Services, Inc., 385 N.W.2d at 79.

While many factors may be considered by the court in evaluating reasonableness as a matter of law, a useful enumeration is contained in Philip G. Johnson & Co. v. Salmen, 211 Neb. 123, 317 N.W.2d 900, 904 (1982):

The considerations to be balanced are the degree of inequality in bargaining power; the risk of the covenantee losing customers; the extent of respective participation by the parties in securing and retaining customers; the good faith of the covenantee; the existence of sources or general knowledge pertaining to the identity of customers; the nature and extent of the business position held by the covenantor; the covenantor’s training, health, education, and needs of his family; the current conditions of employment; the necessity of the covenantor changing his calling or residence; and the correspondence of the restraint with the need for protecting the legitimate interests of the covenantee.

Wyoming has previously recognized that the legitimate interests of the employer, covenantee, which may be protected from competition include: (a) the employer’s trade secrets which have been communicated to the employee during the course of employment; (b) confidential information communicated by the employer to the employee, but not involving trade secrets, such as information on a unique business method; and (c) special influence by the employee obtained during the course of employment over the employer’s customers. Ridley, 180 P.2d at 129.

The enforceability of a covenant not to compete using the rule of reason analysis depends upon a determination, as a matter of law, that the promise not to compete is ancillary to the existence of an otherwise valid transaction or relationship. Restatement (Second) of Contracts, supra, § 187. If, for example, the contract of employment containing the covenant not to compete fails for lack of consideration, adhesion or other contractual excuse, the covenant is without effect. Reddy v. Community Health Foundation of Man, 171 W.Va. 368, 298 S.E.2d 906, 915 (1982). The covenant is also without effect because it is not ancillary when it is made in a promise subsequent to the transaction or relationship. Restatement (Second) Contracts, supra, § 187 cmt. b.

When Dr. Johnson made the oral promise of employment to Dr. Hopper, the specific terms of the covenant were not discussed. Dr. Johnson testified that no terms for a geographic radius or time restriction on competition were stated during formation of the oral contract of employment. Without terms and without a writing, Wyo.Stat. § 1-23-105, a promise not to compete at this time failed as ancillary to the creation of the relationship.

The written Employment Agreement Dr. Hopper signed does contain a covenant not to compete which is ancillary to the previously agreed provisions for employment memorialized from the oral contract. Restatement (Second) of Contracts, supra, § 187 cmt. b recognizes that in an ongoing transaction or relationship, a promise not to compete may be made before the termination of the relationship and still be ancillary as long as it is supported by consideration and meets other requirements for enforceability. It is necessary to analyze whether Dr. Hopper’s promise not to compete, made after the creation of the relationship while executing the written Employment Agreement, was supported by consideration.

*541Wyoming has never determined whether a promise not to compete made during the employment relationship is supported merely by the consideration of continued employment or must be supported by separate contemporaneous consideration. This court’s decision in Ridley offers useful insight. An employment relationship with a mechanic was formed prior to the execution of the written contract containing the employee’s ancillary promise not to compete. Ridley, 180 P.2d at 125. While we did not specifically address the sufficiency of the consideration, the written contract with the mechanic contained separate consideration. In addition to the promise to continue employment for a term of ten years, the employer agreed, as consideration for the promise not to compete, to teach the mechanic new skills as a locksmith and in business operation. Id. at 125-26.

Authorities from other jurisdictions are not in agreement on whether continued employment provides sufficient consideration or whether separate consideration is required to create an ancillary covenant not to compete made during the existence of the relationship. See Howard A. Specter & Matthew W. Finkin, Individual Employment Law and Litigation § 8.02 (1989) (collecting cases). We believe strong public policy favors separate consideration.

The better view, even in the at-will relationship, is to require additional consideration to support a restrictive covenant entered into during the term of the employment. This view recognizes the increasing criticism of the at-will relationship, the usually unequal bargaining power of the parties, and the reality that the employee rarely “bargains for” continued employment in exchange for a potentially onerous restraint on the ability to earn a living.

Id., § 8.02 at 450. The separate consideration necessary to support an ancillary promise not to compete made after creation of the employment relationship would include promotion, pay raise, special training, employment benefits or other advantages for the employee. Ridley, 180 P.2d at 125-26; Stevenson v. Parsons, 96 N.C.App. 93, 384 S.E.2d 291, 293 (1989); Records Center, Inc. v. Comprehensive Management, Inc., 363 Pa.Super. 79, 525 A.2d 433, 435 (1987); Cukjati v. Burkett, 772 S.W.2d 215, 218 (Tex.App.1989). See Or.Rev.Stat. § 653.295 (1991) (requiring bona fide advancement of the employee to enforce a covenant not to compete entered into after creation of the employment relationship).

The written Employment Agreement Dr. Hopper signed contains no evidence of separate consideration, such as a pay raise or other benefit, in exchange for the covenant not to compete. Standing alone, the covenant not to compete contained in the Employment Agreement failed due to lack of separate consideration. Restatement (Second) of Contracts, supra, § 187. However, on June 1, 1990, the parties executed the Addendum to Agreement. In that agreement, Dr. Hopper accepted a pay raise of $550.00 per month. This agreement restates, by incorporation, the terms of the covenant not to compete. We hold that the Addendum to Agreement, with its pay raise, represented sufficient separate consideration supporting the reaffirmation of the covenant not to compete. Therefore, the district court’s findings that the covenant was ancillary to an employment contract and that consideration was received in exchange for the covenant are not clearly erroneous.

The contract permitted either Dr. Hopper or her corporate employers to terminate her employment with notice. The agreement did not state a length of employment and it permitted termination at will. Without more, the terms present the potential for an unreasonable restraint of trade. For example, if an employer hired an employee at will, obtained a covenant not to compete, and then terminated the employee, without cause, to arbitrarily restrict competition, we believe such conduct would constitute bad faith. Simple justice requires that a termination by the employer of an at will employee be in good faith if a covenant not to compete is to be enforced. Dutch Maid Bakeries, 131 P.2d at 635-36; American Nat. Ins. Co: v. Coe, *542657 F.Supp. 718, 723 (E.D.Mo.1986). See Adrian N. Baker & Co. v. Demartino, 733 S.W.2d 14, 18 (Mo.App.1987) (enforcing covenant not to compete when discharge of employee occurred with good cause).

Under the present facts, we cannot say that the termination of Dr. Hopper occurred in bad faith. Trial testimony presented evidence of increasing tension prior to termination in the professional relationship between Dr. Johnson and Dr. Hopper. This tension, however, did not appear to result in the termination. The notice of termination was given after Dr. Hopper was confronted about her negotiations to purchase a competitive practice and after Dr. Hopper had termed the employment contract worthless. We cannot find in these facts a bad faith termination which would provide a reason to depart from the district court’s finding that the contract of employment was valid. With the determination that as a matter of law the covenant is ancillary to a valid employment relationship, we turn to the rule of reason inquiry.

Employers are entitled to protect their business from the detrimental impact of competition by employees who, but for their employment, would not have had the ability to gain a special influence over clients or customers. Ridley, 180 P.2d at 131. Beckman v. Cox Broadcasting Corp., 250 Ga. 127, 296 S.E.2d 566 (1982) illustrates the principle in the broadcast industry where the clients are the viewers of a particular station. Beckman was a television weather forecaster whose contributions to the “Action News Team” had been extensively promoted by Cox during his employment. Id. at 567. The promotion and Beckman’s personality succeeded in attracting viewers to watch the television station. When his contract with Cox expired, Beckman accepted employment with a competitive television station in the same city and sought a declaratory judgment to determine the validity of a restrictive covenant which prevented him from appearing on television for six months within a radius of thirty-five miles of Cox’s station offices. Id.

The Supreme Court of Georgia agreed that Beckman was entitled to take to a new employer his assets as an employee which he had contributed to his former employer. Id. at 569. “It is true that an employee’s aptitude, skill, dexterity, manual and mental ability and other subjective knowledge obtained in the course of employment are not property of the employer which the employer can, in absence of a contractual right, prohibit the employee from taking with him at the termination of employment.” Id. The covenant permitted Cox to recover from the loss of Beckman’s services by implementing a transition plan while still permitting Beckman to work as a meteorologist, but not to the extent of appearing on air with a competitive television station. Id. The Beckman court determined that the business interests of Cox required protection which enforcement of the reasonable terms of the covenant provided. Id.

The special interests of All Pet and Alpine identified by the district court as findings of fact are not clearly erroneous. Dr. Hopper moved to Laramie upon completion of her degree prior to any significant professional contact with the community. Her introduction to All Pet’s and Alpine’s clients, client files, pricing policies, and practice development techniques provided information which exceeded the skills she brought to her employment. While she was a licensed and trained veterinarian when she accepted employment, the additional exposure to clients and knowledge of clinic operations her employers shared with her had a monetary value for which the employers are entitled to reasonable protection from irreparable harm. See Reddy, 298 S.E.2d at 912-14 (discussing the economic analysis applied to restrictive covenants). The proven loss of 187 of All Pet’s and Alpine’s clients to Dr. Hopper’s new practice sufficiently demonstrated actual harm from unfair competition.

The reasonableness, in a given fact situation, of the limitations placed on a former employee by a covenant not to compete are determinations made by the court as a matter of law. See, e.g., Jarrett v. *543 Hamilton, 179 Ga.App. 422, 346 S.E.2d 875, 876 (1986). Therefore, the district court’s conclusions of law about the reasonableness of the type of activity, geographic, and durational limits contained in the covenant are subject to de novo review.

All parties to this litigation devoted extensive research to evaluations of the reasonableness of various covenants not to compete from different authorities. However, we find precedent from our own or from other jurisdictions to be of limited value in considering the reasonableness of limits contained in a specific covenant not to compete. See Specter & Finkin, supra, § 8.03 at 454-55. For example, in Cukjati, 772 S.W.2d at 216, 218, the Court of Appeals of Texas held a covenant not to compete was unreasonable because it limited a veterinarian from practicing within twelve miles of his former employer’s clinic in North Irving, a community within the Dallas-Fort Worth metropolitan area. Because evidence from that proceeding disclosed that Dallas area residents are unlikely to travel more than a few miles for pet care, the court found the restriction unreasonable. Id. at 218. The number of veterinarians and the demands upon their services obviously varies between Laramie, Wyoming and metropolitan Dallas, Texas, creating a different usage pattern. We believe the reasonableness of individual limitations contained in a specific covenant not to compete must be assessed based upon the facts of that proceeding. Ridley, 180 P.2d at 131.

Useful legal principles do emerge from a survey of relevant authorities and may certainly be applied to decisions about the reasonableness of the type of activity, geographic, and durational limitations. Testing the reasonableness of the type of activity limitation provides an opportunity for the court to consider the broader public policy implications of a covenant not to compete. Tench, 374 P.2d at 29. The decision of the Court of Appeals of Ohio in Williams v. Hobbs, 9 Ohio App.3d 331, 9 OBR 599, 460 N.E.2d 287 (1983) explains. The Williams court determined that enforcing a covenant not to compete restricting a radiologist’s uncommon specialty practice would violate public policy because the community would be deprived of a unique skill. Id. at 290. In addition, the court held the type of activity limitation was unreasonable because it created an undue hardship on the physician where there were only a limited number of osteopathic hospitals available to practice his specialty. Id.

The Court of Appeals of Arkansas, in an en banc opinion, used a similar analysis in reviewing a covenant not to compete which restricted an orthopedic surgeon from practicing medicine within a radius of thirty miles from the offices of his former partners. Duffner, 718 S.W.2d at 113-14. The court held that the covenant interfered with the public’s right to choose an orthopedic surgeon and that enforcement of the covenant created an unreasonable restraint of trade. Id. at 114. In determining that no business interests of the partnership were lost, the court noted that while the surgeon provided normal post-operative care for those patients he had operated on while associated with the partnership, he had not “appropriated” any of the partnership’s “stock of patients” when he moved to another office. Id.

Enforcement of the practice restrictions Dr. Hopper accepted as part of her covenant not to compete does not create an unreasonable restraint of trade. While the specific terms of the covenant failed to define the practice of small animal medicine, the parties’ trade usage provided a conforming standard of domesticated dogs and cats along with exotic animals maintained as household pets. As a veterinarian licensed to practice in Wyoming, Dr. Hopper was therefore permitted to earn a living in her chosen profession without relocating by practicing large animal medicine, a significant area of practice in this state. The restriction on the type of activity contained in the covenant was sufficiently limited to avoid undue hardship to Dr. Hopper while protecting the special interests of All Pet and Alpine.

*544In addition, as a professional, Dr. Hopper certainly realized the implications of agreeing to the terms of the covenant. While she may have doubted either her employers’ desires to enforce the terms or the legality of the covenant, her actions in establishing a small animal practice violated the promise she made. In equity, she comes before the court with unclean hands. Dutch Maid Bakeries, 131 P.2d at 634. If Dr. Hopper sought to challenge the enforceability of the covenant, her proper remedy was to seek a declaratory judgment. Wyo.Stat. § 1-37-103 (1988). See Stevenson, 384 S.E.2d at 293 (declaratory judgment action brought by veterinarian against former employer to challenge covenant not to compete); Beckman, 296 S.E.2d at 567 (declaratory judgment action brought by television weather forecaster after former employer refused release from covenant not to compete).

The public will not suffer injury from enforcement of the covenant. Dr. Hopper’s services at All Pet and Alpine were primarily to provide relief for the full-time veterinarians at those clinics. In addition to dividing her time between the clinics, she covered when others had days off or, on a rotating basis, on weekends. While Dr. Hopper provided competent care to All Pet’s and Alpine’s clients, her services there were neither unique nor uncommon. Furthermore, the services which Dr. Hopper provided in her new practice to small animal clients were available at several other veterinary clinics within Laramie. Evidence did not challenge the public’s ability to receive complete and satisfactory service from these other sources. Dr. Hopper’s short term unavailability resulting from enforcement of a reasonable restraint against unfair competition is unlikely, as a matter of law, to produce injury to the public.

Reasonable geographic restraints are generally limited to the area in which the former employee actually worked or from which clients were drawn. Commercial Bankers Life Ins. Co. of America, 516 N.E.2d at 114-15; Brewer v. Tracy, 198 Neb. 503, 253 N.W.2d 319, 322 (1977). When the business serves a limited geographic area, as opposed to statewide or nationwide, courts have upheld geographic limits which are coextensive with the area in which the employer conducts business. Torrence v. Hewitt Associates, 143 Ill.App.3d 520, 97 Ill.Dec. 592, 596, 493 N.E.2d 74, 78 (1986). A broad geographic restriction may be reasonable when it is coupled with a specific activity restriction within an industry or business which has an inherently limited client base. System Concepts, Inc. v. Dixon, 669 P.2d 421, 427 (Utah 1983).

The geographical limit contained in the covenant not to compete restricts Dr. Hopper from practicing within a five mile radius of the corporate limits of Laramie. As a matter of law, this limit is reasonable in this circumstance. The evidence presented at trial indicated that the clients of All Pet and Alpine were located throughout the county. Despite Wyoming’s rural character, the five mile restriction effectively limited unfair competition without presenting an undue hardship. Dr. Hopper could, for example, have opened a practice at other locations within the county.

A durational limitation should be reasonably related to the legitimate interest which the employer is seeking to protect. Restatement (Second) of Contracts, supra, § 188 cmt. b.

In determining whether a restraint extends for a longer period of time than necessary to protect the employer, the court must determine how much time is needed for the risk of injury to be reasonably moderated. When the restraint is for the purpose of protecting customer relationships, its duration is reasonable only if it is no longer than necessary for the employer to put a new [individual] on the job and for the new employee to have a reasonable opportunity to demonstrate his [or her] effectiveness to the customers. If a restraint on this ground is justifiable at all, it seems that a period of several months would usually be reasonable. If the selling or servicing relationship is relatively complex, a longer period may be called for. Courts seldom criticize restraints of six months or a year on *545the grounds of duration as such, and even longer restraints are often enforced.

Blake, 73 Harv.L.Rev. at 677 (footnote omitted). See Amex Distributing Co., Inc. v. Mascari, 150 Ariz. 510, 724 P.2d 596, 604-05 (1986) (quoting Blake and applying rule in determining that a three year duration of a covenant not to compete was unreasonable).

The evidence at trial focused on the durational requirement in attempting to establish the three year term as being necessary to diffuse the potential loss of clients from All Pet and Alpine to Dr. Hopper. Dr. Charles Sink, a licensed veterinarian, testified as an expert on behalf of All Pet and Alpine and indicated that in Wyoming, his experience correlated with national studies that disclosed about 70% of clients visit a clinic more than once per year. The remaining 30% of the clients use the clinic at least one time per year. Dr. Johnson estimated that at All Pet and Alpine, the average client seeks veterinarian services one and one-half times a year. Apart from this data about average client visits, other support for the three year durational requirement was derived from opinion testimony. Dr. Johnson admitted that influence over a client disappears in an unspecified “short period of time,” but expressed a view that three years was “safe.” He also agreed that the number of clients possibly transferring from All Pet or Alpine to Dr. Hopper would be greatest in the first year and diminish in the second year.

We are unable to find a reasonable relationship between the three year durational requirement and the protection of All Pet’s and Alpine’s special interests. Therefore, enforcement of the entire durational term contained in the covenant not to compete violates public policy as an unreasonable restraint of trade. Restatement (Second) of Contracts, supra, § 188. Based on figures of client visits, a replacement veterinarian at All Pet and Alpine would be able to effectively demonstrate his or her own professionalism to virtually all of the clinics’ clients within a one year durational limit. Since no credible evidence was presented supporting the need for multiple visits to establish special influence over clients, a one year limit is sufficient to moderate the risk of injury to All Pet and Alpine from unfair competition by Dr. Hopper.

A one year durational limit sufficiently secures All Pet’s and Alpine’s interests in pricing policies and practice development information. Pricing policies at All Pet and Alpine were changed yearly, according to Dr. Johnson, to reflect changes in material and service costs provided by the clinics as well as new procedures. Practice development information, especially in a learned profession, loses its value quickly as technological change occurs and new reference material become available. We hold, as a matter of law, that enforcement of a one year durational limit is reasonable and sufficiently protects the interests of All Pet and Alpine without violating public policy.

Under the formulation of the rule of reason inquiry adopted by Wyoming from the first Restatement of Contracts, the unreasonableness of any non-divisible term of a covenant not to compete made the entire covenant unenforceable. Restatement of Contracts, supra, § 518. It is perhaps due to the arbitrary nature of this rule that no previous decision of this court has permitted enforcement of a covenant not to compete. Tench, 374 P.2d at 29; Ridley, 180 P.2d at 133; Dutch Maid Bakeries, 131 P.2d at 636. The conceptual difficulty of the position taken in the former Restatement of Contracts, supra, § 518 leads to strong criticism by noted authors and the rejection of this so-called “blue pencil rule” by many courts.

In very many cases the courts have held the whole contract to be illegal and void where the restraint imposed was in excess of what was reasonable and the terms of the agreement indicated no line of division that could be marked with a “blue pencil.” In the best considered modern cases, however, the court has decreed enforcement as against a defendant whose breach has occurred within an area in which restriction would clear *546 ly be reasonable, even though the terms of the agreement imposed a larger and unreasonable restraint. Thus, the seller of a purely local business who promised not to open a competing store anywhere in America has been prevented by injunction from running such a store within the same block as the one that he sold. In some cases it may be difficult to determine what is the exact limiting boundary of reasonable restriction; but often such a determination is not necessary. The question usually is whether a restriction against what the defendant has in fact done or is threatening would be a reasonable and valid restriction. The plaintiff should always be permitted to show the actual extent of the good will that is involved and that the defendant has committed a breach within that extent. If a restriction otherwise reasonable has no time limit, it is quite possible for the court to grant injunctive relief for a specific and reasonable time.

Arthur L. Corbin, Corbin on Contracts § 1390 at 69-73 (1962) (footnotes omitted and emphasis added).

Restatement (Second) of Contracts, supra, § 184, which we now adopt, accepts the Corbin view permitting enforcement of a narrower term which is reasonable in a covenant not to compete:

(1) If less than all of an agreement is unenforceable under the rule stated in § 178 [dealing with restraints in violation of public policy in general], a court may nevertheless enforce the rest of the agreement in favor of a party who did not engage in serious misconduct if the performance as to which the agreement is unenforceable is not an essential part of the agreed exchange.

(2) A court may treat only part of a term as unenforceable under the rule stated in Subsection (1) if the party who seeks to enforce the term obtained it in good faith and in accordance with reasonable standards of fair dealing.

The position adopted in Restatement (Second) of Contracts, supra, § 184 does not permit the court to add to the terms of the covenant.

Sometimes a term is unenforceable on grounds of public policy because it is too broad, even though a narrower term would be enforceable. In such a situation, under Subsection (2), the court may refuse to enforce only part of the term, while enforcing the other part of the term as well as the rest of the agreement. The court’s power in such a case is not a power of reformation, however, and it will not, in the course of determining what part of the term to enforce, add to the scope of the term in any way.

Id. at § 184 cmt. b.

We believe the ability to narrow the term of a covenant not to compete and enforce a reasonable restraint permits public policy to be served in the most effective manner. Businesses function through the efforts of dedicated employees who provide the services and build the products desired by customers. Both the employer and the employee invest in success by expressing a commitment to one another in the form of a reasonable covenant not to compete. For the employer, this commitment may mean providing the employee with access to trade secrets, customer contacts or special training. These assets of the business are entitled to protection. For the employee, who covenants as part of a bargained for exchange, the covenant provides notice of the limits both parties have accepted in their relationship. The employee benefits during his tenure with the employer by his or her greater importance to the organization as a result of the exposure to the trade secrets, customer contacts or special training. When the employer-employee relationship terminates, a reasonable covenant not to compete then avoids unfair competition by the employee against the former employer and the specter, which no court would enforce, of specific performance of the employment agreement. When the parties agree to terms of a covenant, one of which is too broad, the court is permitted to enforce a narrower term which effectuates these public policy goals without arbitrarily invalidating the entire agreement between the parties and creating an uncertain business environment. In those instances *547where a truly unreasonable covenant operates as a restraint of trade, it will not be enforced.

Other jurisdictions have recognized that “[t]he arbitrary rule of ‘all or nothing at all’ in the enforcement of noncompetitive agreements has, in some cases, led to results of questionable equity.” Ehlers v. Iowa Warehouse Co., 188 N.W.2d 368, 371, modified on other grounds, 190 N.W.2d 413 (Iowa 1971) (adopting rule permitting total or partial enforcement of non-competitive agreements to the extent reasonable under the circumstances). See Insurance Center, Inc. v. Taylor, 94 Idaho 896, 499 P.2d 1252, 1255-56 (1972); Solari Industries, Inc. v. Malady, 55 N.J. 571, 264 A.2d 53, 61 (1970); and Wood v. May, 73 Wash.2d 307, 438 P.2d 587, 591 (1968). In applying what it termed a “rule of best result” approach to partial enforcement, the Supreme Court of Appeals of West Virginia summarized a sound three-step procedure for reviewing a covenant not to compete:

(1) The court must determine that the covenant is reasonable, and is being used reasonably by the employer. If not, the covenant is set aside. If the covenant is inherently reasonable the inquiry continues. (2) The employer must show, under the circumstances, what legitimate interests of his are implicated. When these are established, the reasonable covenant is presumptively enforceable in its entirety. (3) The employee is then given the chance to rebut the presumptive enforceability of the covenant by showing either that he has no company trade assets to abuse, or that the assets made available to him properly belong to him, or that the interests asserted by the employer may be protected by a partial enforcement of the covenant. If the employee prevails in this latter regard then the covenant may be tailored by the court to comport with the equities of the case.

Reddy, 298 S.E.2d at 917.

Enforcement of a one year dura-tional term, along with the other terms of the covenant not to compete, is reasonable in light of the circumstances of this case.

Public policy is fairly served by this restraint on unfair competition by Dr. Hopper. All Pet and Alpine established irreparable harm from the loss of clients to unfair competition which entitled them to in-junctive relief. While the terms of the covenant, as enforced, restrict Dr. Hopper’s practice for a limited time, she will suffer no undue hardship from compliance with her bargained for promise. We, therefore, affirm the district court’s conclusions of law that the type of activity and geographic limitations contained in the covenant not to compete were reasonable and enforceable as a matter of law. Because we hold that the covenant’s three year du-rational term imposed a partially unreasonable restraint of trade, we remand for a modification of the judgment to enjoin Dr. Hopper from unfair competition for a duration of one year from the date of termination.

B. Damages for Violation of a Covenant Not to Compete

Wyoming’s general rules of damage recovery are well established. “Damages must be proven with a reasonable degree of certainty; however, proof of exact damages is not required.” Coulthard v. Cossairt, 803 P.2d 86, 92 (Wyo.1990). In awarding damages, a court may not speculate or conjecture about the proper amount. Reiman Const. Co. v. Jerry Hiller Co., 709 P.2d 1271, 1277 (Wyo.1985). A fundamental principle of damage assessment declares that a person injured receives only compensation for his loss and no more. UNC Teton Exploration Drilling, Inc. v. Peyton, 774 P.2d 584, 592 (Wyo.1989).

No previous decision of this court has considered the proper measure of damages for a breach of a covenant not to compete which is ancillary to a valid employment contract. However, consistent with our general principles of damage recovery, we accept the view that “[l]ost profits are generally recognized as a proper element of recovery for breach of a covenant not to compete.” Matter of Is-bell, 27 B.R. 926, 930 (Bankr.W.D.Wis. *5481983). Accord Robert S. Weiss and Associates, Inc. v. Wiederlight, 208 Conn. 525, 546 A.2d 216, 226 (1988) and Weinrauch v. Kashkin, 64 A.D.2d 897, 407 N.Y.S.2d 885, 886 (1978). See Dunn v. Ward, 105 Idaho 354, 670 P.2d 59, 61 (1983) (holding that in a sale of a business with a covenant not to compete, the measure of damages is lost profits and amount for impairment of goodwill). The lost profits are calculated based on a “net” figure requiring proof that: “(1) net profits were lost; (2) the amount of those profits can be determined with a reasonable degree of certainty; and (3) the defendant’s breach was the proximate cause of the lost profits.” Jeffrey L. Lid-dle & William F. Gray, Jr., Proof of Damages for Breach of a Restrictive Covenant or Noncompetition Agreement, 9 Employee Relations L.J. 455, 460 (1983). See Wyoming Bancorporation v. Bonham, 563 P.2d 1382, 1385 (Wyo.1977) (stating the rule that calculation of lost future profits must be made with “best proof available as to amount of loss”).

All Pet and Alpine presented three approaches to computing a damage figure. The first system considered an average fee charged for veterinarian services at All Pet and Alpine which was multiplied by the number of clients believed lost to Dr. Hopper. The second method considered the amount of profit realized by Dr. Hopper on the services she provided to former clients of All Pet and Alpine. The third approach calculated a loss of profits at All Pet and Alpine from a reduction in the total number of client visits in the year following Dr. Hopper’s departure.

All three of All Pet’s and Alpine’s methods of damage calculation were based on figures for gross profits. In his testimony, Dr. Johnson speculated that his net profits from the lost clients would be ninety percent of the gross. He based this figure on the incredible assumption that his only costs for servicing these clients would be drugs. Dr. Johnson testified that his other fixed costs, including mortgage and receptionist, were paid for by the first clients who come in to the clinics. He assumed that the profit margin from all clients lost to Dr. Hopper would be at a higher rate because the lost clients would be served at the clinics after all fixed costs were paid.

The finding of the district court that the amount of damages suffered was speculative and unproven by a preponderance of the evidence is not clearly erroneous. The ninety percent net profit assumption defies logic and does not represent any attempt to apply common accounting principles, such as prorating of expenses. The necessary costs of doing business, such as costs of drugs dispensed, accounting charges, staff wages and depreciation on the value of equipment, were never established. Calculating the cost and expense of operation is an essential item in the proof of damages in a suit seeking net lost profits for violation of a covenant not to compete. Mills v. Murray, 472 S.W.2d 6, 16 (Mo.App.1971). Without these calculations, All Pet’s and Alpine’s damage claims fail.

Y. CONCLUSION

A well-drafted covenant not to compete preserves a careful and necessary economic balance in our society. While there are many layers to the employer-employee relationship, preventing unfair competition from employees who misuse trade secrets or special influence over customers serves public policy. Tempering the balance is the need to protect employees from unfair restraints on competition which defeat broad policy goals in favor of small business and individual advancement. Courts, in reviewing covenants not to compete, must consider these policy implications in assessing the reasonableness of the restraint as it applies to both employer and employee.

Affirmed as modified and remanded for issuance of a judgment in conformity herewith.

CARDINE, J., filed dissenting opinion.

CARDINE, Justice,

dissenting.

Glenna Hopper has beaten the system. Just prior to being terminated, Dr. Hopper informed Dr. Johnson that “the [covenant] isn’t worth the paper it’s written on.” And *549she was right. Upon termination, she went into the veterinary business in violation of her covenant not to compete. From July 15, 1991, until October 6, 1992, Dr. Hopper practiced small animal medicine in violation of her solemn promise in her employment agreement not to compete. Whether she continued to practice small animal veterinary medicine after October 6, 1992, in violation of the covenant is not disclosed by the record on appeal.

The court has now decided as a matter of law that a one-year non-competition restriction is reasonable, and a longer period is unreasonable. This pronouncement establishes for the future the period during which competition can be restricted. In this case, appellant may have continued violating the covenant during her appeal— or she may have complied. We do not know. The trial court, on remand, should determine this question, and appellant ought to at least satisfy the one-year non-compete now imposed by this court.

I would hold, therefore, that the covenant was supported by consideration from the beginning and was lawful and enforceable, and I would require that appellant be enjoined from that part of the practice of veterinary medicine specified in the covenant not to compete from the date the trial court, on remand, enters its modified judgment for at least the one-year period which this court now finds reasonable.

Allen, C.J.

¶ 1. (Ret.), Specially Assigned. Defendant Staci Lasker* appeals the superior court’s order enjoining her from working for a competitor of her former employer, plaintiff Summits 7, Inc., based on the terms of a noncompetition agreement entered into by the parties during Lasker’s at-will employment with Summits 7. The principal issue in dispute is whether there was sufficient consideration to support the agreement. The superior court ruled that either Lasker’s continued employment or the promotions and increased pay she received during her employment with Summits 7 was sufficient consideration to support the agreement. We agree with the superior court that Lasker’s continued employment constituted sufficient consideration. Further, we discern no basis for granting Lasker’s request that we reverse the superior court’s judgment and remand the matter for the court to consider whether the geographic scope of the agreement’s restrictions was unreasonably broad.

¶ 2. Summits 7, which is located in Williston, Vermont, provides printing, copying, and other related services to its customers. In January 2000, the company hired Lasker, who had an associate’s degree in graphic arts technology, to work in its customer services department for ten dollars an hour. In April 2000, Lasker became a sales assistant and received a fifteen percent raise. Within the next *398three months, she received another promotion and raise and, in November 2000, she was assigned to the sales department and given a $80,000 salary plus commissions. Lasker continued to assume greater and greater responsibilities with Summits 7, eventually becoming a supervisor. Her pay increased along with the additional responsibilities, reaching $39,000 in 2001, $49,000 in 2002, and $19,000 for the first three months of 2003 before she left her employment.

¶ 3. In January 2001, one year after Summits 7 hired her, Lasker signed a noncompetition agreement prohibiting her from working in Vermont, New Hampshire, or a designated part of New York for any direct or indirect competitor of Summits 7 for a period of twelve months “following termination of your employment for cause or a voluntary termination of employment.” Lasker signed a second agreement containing similar language in October 2002 after Summits 7 purchased another company and expanded the kinds of services it provided. In April 2003, Lasker voluntarily terminated her employment with Summits 7. Two months later, in June 2003, she began working for Offset House, Inc., a competitor of Summits 7 located' in nearby Essex Junction, Vermont.

¶ 4. In October 2003, Summits 7 filed a complaint seeking to enjoin Lasker from working for Offset House. Following a trial in April 2004, the superior court entered judgment in favor of Summits 7. The court enjoined Lasker from working for Offset House, extended the effective terms of the noncompetition agreement until March 30, 2005, and awarded Summits 7 $11,552 in attorney’s fees. With respect to the principal point in dispute, the court opined that Lasker’s continued employment with Summits 7 was sufficient consideration to support the noncompetition agreement, but concluded that it was unnecessary to reach that question because the substantial promotions and raises that Lasker received during her employment with Summits 7 were more than reasonable consideration to support enforcement of the covenant. The court also concluded that it did not need to determine whether the geographic scope of the agreement was unduly broad because even a narrow construction of the agreement would preclude Lasker from accepting work for a direct competitor of Summits 7 located within a short geographic distance from, and in a market served by, Summits 7.

¶ 5. On appeal, Lasker argues that the trial court erred by enforcing the noncompetition agreement because (1) the agreement was not supported, by consideration, and (2) the court failed to consider the unreasonably broad geographic scope of the agreement. According to *399Lasker, in an at-will employment context, continued employment means nothing because the employer has the right to terminate the employment at any time for any reason. Lasker further contends that the promotions and raises she received were not ancillary to the noncompetition agreements that she signed.

I.

¶ 6. We start by examining the legal backdrop of the case. The common-law policy against contracts in restraint of trade is longstanding and firmly established, dating back to the time when the apprenticeship system ruled. See Lake Land Employment Group of Akron, LLC v. Columber, 804 N.E.2d 27, 30 (Ohio 2004); Hopper v. All Pet Animal Clinic, Inc., 861 P.2d 531, 539 (Wyo. 1993); 15 G. Giesel, Corbin on Contracts §80.4, at 56 (rev. ed. 2003). In a relatively immobile society where workers entered skilled trades by serving in apprenticeships, covenants that prevented those workers from competing with their former employers had the potential to destroy a worker’s livelihood or to bind that worker to his master for life. Columber, 804 N.E.2d at 30. With the onset of the industrial revolution and at-will employment relationships, modern realities have led courts to allow noncompetition agreements as long as they are narrowly written to protect the employers’ legitimate interests. Id. Courts continue to carefully scrutinize noncompetition agreements, however, particularly with respect to employment contracts, which often result from unequal bargaining power between the parties. Id:, 1 H. Specter & M. Finkin, Individual Employment Law and Litigation § 8.01, at 443 (1989); Corbin on Contracts, supra, § 80.6, at 67, and § 80.15, at 128.

¶ 7. The modem approach to reviewing restrictive covenants is one of reasonableness. Courts seek to balance the employer’s interest in protecting its business and investments, the employee’s interest in pursuing a desired occupation, and the public’s interest in the free flow of commerce. See Corbin on Contracts, supra, § 80.4, at 57-58 and § 80.6, at 63-65; T. Staidl, The Enforceability of Noncompetition Agreements When Employment is At-Will: Reformulating the Analysis, 2 Employee Rts. & Emp. Pol’y J. 95, 97 (1998); see also Restatement (Third) of Employment Law, Preliminary Draft No. 2 (May 17, 2004) §6.05 cmt. a (rule allowing reasonably restricted noncompetition agreements balances desire to prevent anti-conipetitive effects of restrictive covenants with desire to encourage employer investments). Courts recognize that while an employer may seek to protect its legitimate interests through noncompetition agreements, *400“the employer is not entitled to protection against ordinary competition.” Hopper, 861 P.2d at 539. Hence, most courts have adopted tests resembling the one set forth in the Restatement of Contracts, which provides that a promise to refrain from competition that is ancillary to an otherwise valid transaction or relationship (such as an employment relationship) is unreasonable (1) if the restraint is greater than needed to protect the promisee’s legitimate interest, or (2) the promisee’s need is outweighed- by hardship to the promisor and likely injury to the public. Restatement (Second) of Contracts § 188 (1981); see H. Specter & M. Finkin, supra, § 8.01, at 444-45; Corbin on Contracts, supra, §80.6, at 69-70; see also Restatement (Third) of Employment Law, Preliminary Draft No. 2, supra, § 6.05 (“A court will enforce a restrictive covenant in an employment agreement to the extent that enforcement is reasonably tailored to protect a legitimate interest of the employer.”).

¶ 8. But before examining the reasonableness of a noncompetition agreement to determine whether it is narrowly tailored in terms of geographical, temporal, and subject matter restrictions to protect the employer's legitimate interests, courts first consider whether the agreement is ancillary (connected and subordinate) to another valid contract and, if not, whether there is adequate independent consideration to support the agreement. See Abel v. Fox, 654 N.E.2d 591, 593 (Ill. App. Ct. 1995). These requirements are intended to ensure that the noncompetition agreement is not a naked restraint on trade but rather the result of a bargained-for exchange that furthers legitimate commercial interests in the context of another transaction or relationship. Id. at 595; T. Staidl, supra, at 97-98. As one commentator has stated:

Even if a covenant is otherwise reasonable, a court will not enforce it unless it is ancillary to an agreement that has a purpose other than the restraint of competition. The rationale for this ancillarity requirement is that only if the restraint accompanies a valid transaction will there be the possibility of the unrestrained party having an interest deserving of protection that would perhaps outweigh the interest of the restrained party and the public.

Corbin on Contracts, supra, § 80.7, at 72.

¶ 9. For the most part, courts have generally assumed that the requirements of ancillarity or consideration are satisfied when the noncompetition agreement is made at the onset of an employment *401relationship, even an at-will relationship. Corbin on Contracts, supra, § 80.7, at 73, and § 80.23, at 169. But see Travel Masters, Inc. v. Star Tours, Inc., 827 S.W.2d 830, 832-33 (Tex. 1991) (because at-will employment relationship is not otherwise enforceable agreement, covenant not to compete executed either at inception of or during at-will employment relationship cannot be ancillary to otherwise enforceable agreement and thus is unenforceable as matter of law). The courts are split, however, on the principal question raised in this appeal — whether continued employment is sufficient, without additional independent consideration, to support a covenant not to compete entered into after an at-will relationship has begun. See Corbin on Contracts, supra, § 80.23, at 170-73; H. Specter & M. Finkin § 8.02, at 447-49; T. Staidl, supra, at 104-07; Columber, 804 N.E.2d at 30; Hopper, 861 P.2d at 541.

¶ 10. Many courts hold that continued employment alone is sufficient consideration to support a covenant not to compete entered into after the commencement of an at-will employment relationship. E.g., Columber, 804 N.E.2d at 32; Camco, Inc. v. Baker, 936 P.2d 829, 832 (Nev. 1997); see also Corbin on Contracts, supra, § 80.23, at 170 n.4 (citing cases); Restatement (Third) of Employment Law, Preliminary Draft No. 2, supra, § 6.05 cmt. d (“Continuing employment of an at-will employee is enough consideration to support an otherwise valid restrictive covenant. This means that parties may agree to enforceable restrictive covenants after the beginning of an employment relationship.”). Some of these courts reason that the presentation of a non-competition agreement is, in effect, a proposal to renegotiate the at-will relationship, and that the employee’s acceptance of the agreement is given in exchange for the employer’s forbearance from firing the employee. E.g., Columber, 804 N.E.2d at 32. Others reason that because employers can fire employees at any time with or without cause, every day of an at-will employment relationship is a new day, and thus there should be no distinction in disallowing noncompetition agreements for lack of consideration based on whether they are entered into at the beginning or during the relationship. E.g., Copeco, Inc. v. Caley, 632 N.E.2d 1299, 1301 (Ohio Ct. App. 1992).

¶ 11. Commentators have questioned this reasoning, noting that when a noncompetition agreement is entered into after commencement of the employment relationship, the employer can still fire the employee without cause, but the “new day” for the employee has dramatically changed in that the employee’s ability to leave and pursue the same line of work with a new employer is significantly-restricted. *402E.g., T. Staidl, supra, at 104-05. In response to criticism citing the illusory nature of the promise of continued employment in an at-will relationship, some courts have required that the employment actually continue for a substantial period of time to suffice as adequate consideration for a noncompetition agreement. See, e.g., Zellner v. Conrad, 589 N.Y.S.2d 903, 907 (App. Div. 1992); Mid-Town Petroleum, Inc. v. Gowen, 611 N.E.2d 1221, 1226 (Ill. App. Ct. 1993); cf. Mattison v. Johnston, 730 P.2d 286, 290 (Ariz. Ct. App. 1986) (where employment continued after signing of noncompetition agreement until employee left her job, implied promise of employment plus continued employment provided sufficient consideration for agreement).

¶12. Other courts hold that continued employment alone is not adequate consideration to support a noncompetition agreement, but rather require some additional independent consideration such as increased compensation, a promotion, or other benefits. E.g., Sanborn Mfg. Co. v. Currie, 500 N.W.2d 161, 164 (Minn. Ct. App. 1993); Poole v. Incentives Unlimited, Inc., 525 S.E.2d 898, 900 (S.C. Ct. App. 1999), aff’d by 548 S.E.2d 207 (S.C. 2001); Hopper, 861 P.2d at 541; see Corbin on Contracts, supra, § 80.23, at 173; T. Staidl, supra, at 106. “This view recognizes the increasing criticism of the at-will relationship, the usually unequal bargaining power of the parties, and the reality that the employee rarely ‘bargains for’ continued employment in exchange for a potentially onerous restraint on the ability to earn a living.” H. Specter & M. Finkin, supra, § 8.02, at 450. Courts adhering to this view also require that the independent consideration be connected directly with the covenant not to compete. E.g., Currie, 500 N.W.2d at 164 (no evidence that increased compensation and promotions were attributable to anything other than employee’s performance during employment relationship).

¶ 13. In Vermont, we have not addressed the issue of whether independent consideration beyond continued employment is necessary to support a noncompetition agreement entered into after the onset of an at-will employment relationship. Indeed, although our law on restrictive covenants is consistent with the reasonableness standard of other modern courts, it is limited. We have emphasized that we will proceed with caution when asked to enforce restrictive covenants against competitive employment because such restraints “run counter to that public policy favoring the right of individuals to freely engage in desirable commercial activity.” Vt. Elec. Supply Co. v. Andrus, 132 Vt. 195, 198, 315 A.2d 456, 458 (1974) (“Restrictions on doing business or on the exercise of an individual’s trade or talent are subject to scrutiny *403for reasonableness and justification.”); accord Roy’s Orthopedic, Inc. v. Lavigne, 142 Vt. 347, 350, 454 A.2d 1242, 1244 (1982).

¶ 14. Our general rule is that a restrictive covenant in an employment context will be enforced

unless the agreement is found to be contrary to public policy, unnecessary for protection of the employer, or unnecessarily restrictive of the rights of the employee, with due regard being given to the subject matter of the contract and the circumstances and conditions under which it is to be performed.

Andrus, 132 Vt. at 198, 315 A.2d at 458. In Andrus, we stated that the burden of establishing such facts is on the employee, id.; however, we note that while other courts have recognized that the employee has the burden of proving a failure of consideration, “[t]he employer has the burden of proving the reasonable necessity of the restrictive covenant.” NBZ, Inc. v. Pilarski, 520 N.W.2d 93, 97 (Wis. Ct. App. 1994); see Restatement (Third) of Employment Law, Preliminary Draft No. 2, supra, § 6.05 (“The employer bears the burden of proving that a restrictive covenant complies with the requirements of this section.”). This makes some sense because the employer generally would have access to facts that could demonstrate the necessity of a restrictive covenant.

¶ 15. The primary issue that Lasker raises in this case is whether the most recent noncompetition agreement she signed was supported by adequate consideration. We emphasize that Lasker has not challenged the agreement on the basis that it is unreasonable with respect to the type of restrictions imposed on her or whether those restrictions are narrowly tailored to address Summits 7’s legitimate interests. Nor has Lasker contended that the agreement is unreasonable with respect to the length of time that it imposes restrictions on competition. Lasker does argue that the superior court erred by not addressing whether the geographic scope of the agreement was unreasonably broad, but, as we explain later, we need not consider this issue because Lasker plainly sought and obtained employment within a reasonably restricted geographic area, and the court may enforce the agreement to the extent that it is reasonable. Hence, if we conclude that the agreement was supported by adequate consideration, we will affirm the superior court’s judgment in favor of Summits 7.

¶ 16. As noted, the trial court ruled that continued employment would be sufficient consideration to support the covenant not to compete, but that it was unnecessary to even reach that conclusion *404because the increased compensation and promotions that Lasker received during her employment with Summits 7 were adequate consideration to support the covenant. We disagree with the latter determination. There is no evidence that Lasker’s promotions and raises were connected in any way with the noncompetition agreements she signed. See Currie, 500 N.W.2d at 164 (no evidence that employee’s promotions and salary increases were tied to noncompetition agreement or were attributable to anything other than performance that was expected of him under initial employment agreement). We can only assume that she received these promotions and raises because she performed her job well and was rewarded for that performance.

¶ 17. We also decline to give controlling weight to the fact that, by its terms, the noncompetition agreement could be enforced only if Lasker were fired for cause or left her employment voluntarily. One might argue that the agreement provided some incentive for Summits 7 not to fire Lasker without cause, but any such incentive did not constitute a tangible benefit beyond continued employment in exchange for signing the agreement. Indeed, the agreement explicitly states that it neither creates a contract of employment nor alters in any way Lasker’s status as an at-will employee.

¶ 18. Nevertheless, we agree with the superior court, the majority of other courts, and the recent Restatement draft that continued employment alone is sufficient consideration to support a covenant not to compete entered into during an at-will employment relationship. See Mattison, 730 P.2d at 288 (although there is authority to contrary, most jurisdictions have found that continued employment is sufficient consideration to support restrictive covenant executed after at-will employment has begun); Restatement (Third) of Employment Law, Preliminary Draft No. 2, supra, § 6.05 cmt. d (“Continuing employment of an at-will employee is enough consideration to support an otherwise valid restrictive covenant. This means that parties may agree to enforceable restrictive covenants after the beginning of an employment relationship.”). A noncompetition agreement presented to an employee at any time during the employment relationship is ancillary to that relationship and thus requires no additional consideration other than continued employment. See H. Specter & M. Finkin, supra, § 8.02, at 447 (majority of jurisdictions hold that restrictive covenant executed at any time during bilateral employment agreement is considered ancillary to agreement and therefore enforceable without additional consideration).

*405¶ 19. Moreover, because an at-will employee can be fired without cause at any time after the initial hire, the consideration is the same regardless of what point during the employment relationship the employee signs the covenant not to compete. See Caley, 632 N.E.2d at 1301 (there is no substantive difference between promise of employment upon initial hire and promise of continued employment during employment relationship); Baker, 936 P.2d at 832 (accord). As one commentator has noted,

it is not logical for a court to treat differently a covenant presented on the first day of work and one presented one week after the first day in the at-will employment setting. While the contemporaneous nature of the exchange differs, both employees will be faced with the threat of not having a job if they choose not to sign.

T. Staidl, supra, at 103. Indeed, “the only effect of drawing a distinction between pre-hire and post-hire covenants would be to induce employers ... to fire those employees and rehire them the following day with a fresh covenant not to compete.” See Curtis 1000, Inc. v. Suess, 24 F.3d 941, 947 (7th Cir. 1994).

¶ 20. In either case, the employee is, in effect, agreeing not to compete for a given period following employment in exchange for either initial or continued employment. Looked at another way, in either case the consideration is the employer’s forbearance from terminating the at-will employment relationship. See Columber, 804 N.E.2d at 32 (employer’s presentation of covenant not to compete to employee during at-will employment relationship, in effect, proposes to renegotiate terms of relationship; employee’s assent to covenant is given in exchange for employer’s forbearance from ending relationship). Regardless of what point during the employment relationship the parties agree to a covenant not to compete, legitimate consideration for the covenant exists as long as the employer does not act in bad faith by terminating the employee shortly after the employee signs the covenant. See Zellner, 589 N.Y.S.2d at 907 (forbearance of right to terminate at-will employee is legal detriment that can stand as consideration for restrictive covenant; where employment relationship continues for substantial period after covenant is signed, that forbearance is real, and not illusory).

¶ 21. Of course, the fact that a covenant not to compete is supported by consideration in no way deters the employee from later challenging the covenant as unnecessary to protect the employer’s legitimate *406interests or as unreasonable with respect to its temporal or geographic scope. For the most part, Lasker has failed to mount any such challenge to the instant noncompetition agreement, which is enforceable under its terms because Lasker voluntarily left her position with Summits 7 and shortly thereafter accepted a job with a nearby direct competitor. See T. Staidl, supra, at 120 (“[I]f an employee resigns voluntarily, no improper discharge is involved. Accordingly, enforcement of the covenant is fair because the employee knew that the covenant would restrict his employment opportunities elsewhere and he chose to depart nonetheless.”); cf. Andrus, 132 Vt. at 199, 315 A.2d at 458 (noting that employee was not placed in double bind of being fired and of being subject to restrictive covenant because he voluntarily left his employer for very purpose of going into business competitively in same special field).

II.

¶ 22. Lasker argues, however, that even if we determine that the noncompetition agreement is supported by adequate consideration, the case nonetheless must be reversed and remanded either (1) for a new trial so that the court can examine and limit the geographic scope of the agreement, or (2) with instructions for the trial court to limit the scope of the order to cover only her employment with Offset House. In support of this argument, Lasker cites Lavigne, 142 Vt. at 350-51, 454 A.2d at 1244, a case in which this Court reversed the superior court’s conclusion that a noncompetition agreement was reasonably limited with regard to time and place and remanded the matter for a new trial because the court failed to make findings on the extent of the geographic area covered by the agreement. We discern no basis for remanding this case to the superior court to reconsider the reasonableness of the geographic scope of the restrictions imposed by the noncompetition agreement at issue.

¶ 23. Most modem courts agree that a trial court can enforce restrictive covenants to the extent that they are reasonable. Corbin on Contracts, supra, § 80.26, at 189 (“The rule for partial enforcement is the better rule, and courts should apply it in any case in which nothing is wrong with the agreement except that the parties have agreed upon a restraint that is somewhat in excess of what protection of the good will or other protectable interest requires.”); see A.N. Deringer, Inc. v. Strough, 103 F.3d 243, 247-48 (2d Cir. 1996) (noting “modern trend” away from all-or-nothing rule and predicting that Vermont would permit enforcement of defective restrictive covenant to limit of its *407validity); Hopper, 861 P.2d at 545-46 .(noting that “[i]n the best considered modem cases,” courts have enforced covenants not to compete against defendants whose breach occurred within plainly reasonable restricted area, even though terms of agreement imposed larger and unreasonable restraint). Thus, it may not be necessary for a court to determine the exact limiting boundary of a restriction so long as the employer can show that the employee breached a reasonable restriction. See Corbin on Contracts, supra, § 80.26, at 182-88.

¶ 24. In this ease, the superior court found that Lasker “pursued employment with a direct competitor, within a short geographic distance and in precisely the market served by plaintiff.” Based on this and other findings, the court enjoined Lasker from working for “Offset House or any other direct competitor of Summits 7.” Lasker has not challenged the superior court’s findings or argued, either here or before the trial court, that restricting her from working for Offset House or any other nearby direct competitor of Summits 7 was unreasonable or unnecessary. Further, to the extent that Lasker wants the superior court to establish a reasonable geographic limit so that she can know where she might work in the trade, that point is moot because the effective term of the noncompetition agreement has expired.

Affirmed.

Johnson, J.,

¶ 25. dissenting. The majority emphasizes the close scrutiny that we must give to noncompetition agreements, but nonetheless enforces the present agreement based on illusory consideration and absent any assurance that the agreement is reasonable or is protecting any legitimate interest of the employer. Long after Staci Lasker began working for Summits 7, the company required her to sign an extremely broad noncompetition agreement forbidding her from directly or indirectly participating in any enterprise providing services related to those offered by Summits 7. The restriction on her employment was for one year following her termination for cause or voluntary resignation and covered all of Vermont and New Hampshire and part of New York. For signing this highly restrictive agreement, Lasker received nothing other than the right to continue the job that she already had. The majority holds that Summits 7’s forbearance from firing her was sufficient consideration for requiring Lasker to sign the covenant not to compete. By finding consideration under these circumstances, the majority has eviscerated the public policy concerns requiring *408consideration for — and close scrutiny of — covenants not to compete in employment relationships. Accordingly, I respectfully dissent.

¶ 26. A brief examination of the facts demonstrates that Lasker’s continued employment is illusory consideration for her signing the noncompetition agreement. The day before Summits 7 presented the agreement to Lasker, she was an at-will employee who could be fired at any time with or without cause, but who was free to leave her employ at any time and seek any other job. The day after she signed the agreement, she was still an at-will employee who could be fired at any time for any or no reason, but she had lost her right to seek any other job after leaving her employ. Indeed, extremely broad restrictions were imposed on her ability to obtain work for which she was qualified anywhere near her home. The agreement created both a benefit to Summits 7 and a detriment to Lasker, but neither a benefit to Lasker, the promisor, nor a detriment to Summits 7, the promisee — less than a peppercorn! See Bergeron v. Boyle, 2003 VT 89, ¶ 19, 176 Vt. 78, 838 A.2d 918 (either benefit to promisor or detriment to promisee is sufficient consideration).

¶ 27. Because Summits 7 relinquished nothing, and Lasker gained nothing, any consideration was illusory. See Gagliardi Bros., Inc. v. Caputo, 538 F. Supp. 525, 528 (E.D. Penn. 1982) (continued employment was not adequate consideration to support noncompetition agreement because restricted employee received no corresponding benefit or change in status); Sanborn Mfg. Co. v. Currie, 500 N.W.2d 161, 164 (Minn. Ct. App. 1993) (no independent consideration exists unless employer provides real benefits beyond those already obtained by employee); Lake Land Employment Group of Akron, LLC v. Columber, 804 N.E.2d 27, 34 (Ohio 2004) (Resnick, J., dissenting) (continued employment is illusory consideration for signing noncom-petition agreement in at-will employment relationship because employee has gained nothing while employer retains same right it always had to discharge employee at any time for any reason); Poole v. Incentives Unlimited, Inc., 525 S.E.2d 898, 900 (S.C. Ct. App. 1999) (promise of continued employment to at-will employee is illusory because employer retains right to fire employee at any time).

¶ 28. The majority obscures the illusory nature of the consideration it finds here by suggesting that continued employment is sufficient consideration as long as the employer does not terminate the employment relationship in bad faith shortly after the agreement is reached. I find this reasoning illogical and unpersuasive. Whether there is *409adequate consideration should be judged based on the expectations of the parties at the time they enter into the agreement. Applying a retrospective analysis to determine whether there was consideration gets us away from traditional notions of consideration and instead transforms an illusory promise into enforceable consideration through performance. T. Staidl, The Enforceability of Noncompetition Agreements When Employment is At-Will: Reformulating the Analysis, 2 Employee Rts. & Emp. Pol’y J. 95, 106 (1998); see 15 G. Giesel, Corbin on Contracts § 80.23, at 173 (rev. ed. 2003) (backward-looking analysis applies form of doctrine of promissory estoppel rather than traditional notion of consideration). In any event, the analysis does not work because, in the end, the employee still gained nothing but continued employment, a legally unenforceable promise, while the employer gained the benefit of the legally enforceable agreement without suffering any detriment. T. Staidl, supra, at 106.

¶29. As the majority recognizes, historically courts have closely scrutinized post-employment covenants not to compete. 1H. Specter & M. Finkin, Individual Employment Law and Litigation § 8.01, at 443 (1989). Judicial scrutiny is necessary because such covenants are often the result of unequal bargaining power between the parties. Id. Employers may take advantage of that unequal bargaining power by imposing restrictions intended to ensure that their employees will not compete with them after they leave their employ. On the other side, employees interested in obtaining or keeping their jobs are likely to give scant attention to thé hardship that they may suffer later through the loss of their livelihood as the result of the restriction on their future employment. Id. § 8.08, at 485. In the interests of free commerce and freedom to choose one’s employment, courts have felt obligated to assure that restrictive covenants are aimed at protecting legitimate employer interests rather than restricting trade or competition.

¶ 30. Although these public policy concerns are ultimately addressed by determining whether the covenant in dispute is reasonably related to a legitimate employer interest and has reasonable geographic and temporal restrictions, the issue of whether adequate consideration exists for such covenants has become a flashpoint for those same concerns. In light of the increasing criticism of and restrictions upon at-will employment relationships, and the lack of any real bargaining between employer and employee when continued at-will employment is exchanged for restrictions on future employment, the “better view” is to require additional consideration beyond continued employment to support a restrictive covenant entered into during the employment *410relationship. Id. § 8.02, at 450; Hopper v. All Pet Animal Clinic, Inc., 861 P.2d 531, 541 (Wyo. 1993); see Currie, 500 N.W.2d at 164 (when employer requires employee to sign covenant not to compete after employee has commenced employment, without giving employee any consideration beyond continued employment for signing the agreement, employer takes undue advantage of unequal bargaining power between parties). In short, the critical public policy concerns underlying close scrutiny of noncompetition agreements require us to “examine the extent and character of the consideration received by the [employee] to a degree perhaps not true in ordinary contract cases.” Corbin on Contracts, supra, § 80.23, at 168 (“The common interest in an open market, with everyone free to buy and sell and exchange, causes the courts to scrutinize the consideration.”).

¶ 31. In this case, Staci Lasker began working for Summits 7 in 2000 as a ten-dollar-an-hour employee and gradually progressed in the company. More than a year after she commenced her employment with Summits 7, the company required her to sign a noncompetition agreement severely restricting her post-employment rights. The trial court suggested in its decision that Lasker’s general development as an employee — her learning how to handle increased responsibilities concerning the business — was adequate consideration for signing the noncompetition agreement. I concur with the majority’s rejection of this position. An employee’s development of skills during the employment period is neither adequate consideration nor a legitimate protectable interest of the employer sufficient to justify a restraint on trade. See id. §80.16, at 146 (“[I]f the harm caused by service to another [employer] consists merely in the fact that the new employer becomes a more efficient competitor just as the first employer did through having a competent and efficient employee, courts should not enforce the restraint.”).

¶ 32. The trial court also rejected Lasker’s argument that requiring her to sign the noncompetition agreement upon threat of dismissal amounted to coercion. The court reasoned that because employers have a legal right to offer continued employment in consideration for signing a noncompetition agreement, requiring Lasker to enter into such an agreement in exchange for continued employment and/or other benefits was not coercive in nature. By engaging in this circular reasoning, the court avoided examining both the specific facts of this case and the public policy concerns that are at the heart of a strict-construction approach to noncompetition agreements. Lasker had argued that she did not really have a choice as to whether to sign the *411agreement because her marriage was breaking up at the time and she had to stay financially solvent to support her two children. Her situation illustrates the unequal bargaining power that typically exists between employer and employee, particularly when the employer requires the employee to sign a noncompetition agreement upon threat of dismissal after the employee has become established in the job. Like Lasker, employees often have obligations and responsibilities that require them to stay with their job, even if it means signing onto an agreement that restricts their right to seek other jobs in the future. In such situations, employers should not be able to take advantage of their unequal bargaining power by requiring the employee to sign an agreement in exchange for mere continued employment. See T. Staidl, supra, at 118 (requiring employee to sign noncompetition agreement upon threat of discharge should be treated as irrefutably coercive in nature).

¶ 33. The existence of unequal bargaining power between employers and employees and the resulting restraint on trade require courts to carefully scrutinize covenants not to compete. See Vt. Elec. Supply Co. v. Andrus, 132 Vt. 195, 198, 315 A.2d 456, 458 (1974) (“Restrictions on doing business or on the exercise of an individual’s trade or talent are subject to scrutiny for reasonableness and justification.”). Yet, here, the trial court ceased its scrutiny of the noncompetition agreement upon ruling that it was supported by adequate consideration. After finding consideration for the agreement, the court never questioned whether the agreement was reasonable or based on any legitimate employer interest. But even assuming that adequate consideration existed, that fact should not have been dispositive of the case. As our case law demonstrates, the focus of cases involving noncompetition agreements should be on whether the employer had a legitimate protectable interest sufficient to justify the restraint on trade resulting from limiting the employee’s future employment. See id. (restrictive covenants will not be enforced if they are “contrary to public policy, unnecessary for protection of the employer, or unnecessarily restrictive of the rights of the employee”). Unfortunately, that is not what occurred here.

¶ 34. It may be true that at trial Lasker emphasized the absence of consideration for the noncompetition agreement rather than the lack of a legitimate protectable employer interest. Nevertheless, Lasker did generally argue in her motion for partial summary judgment that the agreement was unreasonable and unduly restrictive of her rights. I agree with the majority that the employer, not the employee, should *412bear the burden of demonstrating the existence of a legitimate protectable interest. NBZ, Inc. v. Pilarski, 520 N.W.2d 93, 97 (Wis. Ct. App. 1994) (“The employer has the burden of proving the reasonable necessity of the restrictive covenant.”); Restatement (Third) of Employment Law, Preliminary Draft No. 2, supra, § 6.05 (employer bears burden of proving that restrictive covenant is reasonably tailored to protect its legitimate interests). Under the circumstances of this case, the trial court should have examined the reasonableness of the parties’ agreement, including whether Summits 7 had a legitimate protectable interest.

¶ 35. In sum, I believe that requiring an employee to sign a post-employment covenant not to compete upon threat of dismissal, without conferring any benefit upon the employee other than continued at-will employment, which can be terminated at any time after the agreement is reached, is coercive in nature and unsupported by any real consideration. I would strike the agreement in this case for lack of consideration.