John MacDonald v. Cashcall Inc , 883 F.3d 220 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 17-2161
______________
JOHN S. MACDONALD
v.
CASHCALL, INC; WS FUNDING, LLC; DELBERT
SERVICES CORP; AND J. PAUL REDDAM,
Appellants
______________
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF NEW JERSEY
(D.C. No. 2-16-cv-02781)
District Judge: Hon. Madeline Cox Arleo
______________
Argued January 24, 2018
______________
Before: HARDIMAN, VANASKIE, and SHWARTZ,
Circuit Judges.
(Opinion Filed: February 27, 2018)
Joseph L. Barloon [ARGUED]
Austin K. Brown
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Ave., NW
Washington, DC 20005
Andrew Muscato
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, NY 10036
Counsel for Appellant
Matthew W.H. Wessler [ARGUED]
Gupta Wessler PLLC
1900 L Street, NW, Suite 312
Washington, DC 20036
Brock J. Specht
Nichols Kaster, PLLP
4600 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
Counsel for Appellee
______________
OPINION OF THE COURT
______________
2
SHWARTZ, Circuit Judge.
John MacDonald, on behalf of himself and a putative
class, sued CashCall, Inc., WS Funding, LLC, Delbert Services
Corp., and J. Paul Reddam (collectively “Defendants”) over a
loan agreement that he contends is usurious and
unconscionable. The agreement includes (1) a provision
requiring that all disputes be resolved through arbitration
conducted by a representative of the Cheyenne River Sioux
Tribe (“CRST”) and (2) a clause that delegates questions about
the arbitration provision’s enforceability to the arbitrator.
Defendants moved to compel arbitration, which the District
Court denied. Because the parties’ agreement directs
arbitration to an illusory forum, and the forum selection clause
is not severable, the entire agreement to arbitrate, including the
delegation clause, is unenforceable, and we will therefore
affirm.
I
In 2012, New Jersey resident John MacDonald saw an
advertisement for loans from Western Sky. He electronically
executed a Western Sky Consumer Loan Agreement (the
“Loan Agreement”) and obtained a $5,000 loan. He was
charged a $75 origination fee and a 116.73% annual interest
rate over the seven-year term of the loan, resulting in a
$35,994.28 finance charge.
The Loan Agreement stated that it
is subject solely to the exclusive laws and
jurisdiction of the Cheyenne River Sioux Tribe,
3
Cheyenne River Indian Reservation. By
executing this Loan Agreement, you, the
borrower, hereby acknowledge and consent to be
bound to the terms of this Loan Agreement,
consent to the sole subject matter and personal
jurisdiction of the Cheyenne River Sioux Tribal
Court, and that no other state or federal law or
regulation shall apply to this Loan Agreement,
its enforcement or interpretation.
J.A. 80. In addition, the Agreement included the following
choice of law clause:
Governing Law. This Agreement is governed
by the Indian Commerce Clause of the
Constitution of the United States of America and
the laws of the Cheyenne River Sioux Tribe. We
do not have a presence in South Dakota or any
other states of the United States. Neither this
Agreement nor Lender is subject to the laws of
any state of the United States of America. By
executing this Agreement, you hereby expressly
agree that this Agreement is executed and
performed solely within the exterior boundaries
of the Cheyenne River Indian Reservation, a
sovereign Native American Tribal Nation. You
also expressly agree that this Agreement shall be
subject to and construed in accordance only with
the provisions of the laws of the Cheyenne River
Sioux Tribe, and that no United States state or
federal law applies to this Agreement.
4
J.A. 85. The Loan Agreement also included several arbitration
provisions:
Agreement to Arbitrate. You agree that any
Dispute, except as provided below, will be
resolved by Arbitration, which shall be
conducted by the Cheyenne River Sioux Tribal
Nation by an authorized representative in
accordance with its consumer dispute rules and
the terms of this Agreement.
Arbitration Defined. Arbitration is a means of
having an independent third party resolve a
Dispute. A “Dispute” is any controversy or
claim between you and Western Sky or the
holder or servicer of the Note. The term Dispute
is to be given its broadest possible meaning and
includes, without limitation, all claims or
demands (whether past, present, or future,
including events that occurred prior to the
opening of this Account) based on any legal or
equitable theory (tort, contract, or otherwise),
and regardless of the type of relief sought (i.e.
money, injunctive relief, or declaratory relief).
A Dispute includes . . . any issue concerning the
validity, enforceability, or scope of this loan or
the Arbitration agreement . . . .
Choice of Arbitrator. Any party to a dispute
. . . may send the other party written notice . . .
of their intent to arbitrate and setting forth the
subject of the dispute along with the relief
requested, even if a lawsuit has been filed.
5
Regardless of who demands arbitration, you
shall have the right to select any of the following
arbitration organizations to administer the
arbitration: the American Arbitration
Association . . . JAMS [Judicial Arbitration and
Mediation Services] . . . or an arbitration
organization agreed upon by you and the other
parties to the Dispute. The arbitration will be
governed by the chosen arbitration
organization’s rules and procedures applicable
to consumer disputes, to the extent that those
rules and procedures do not contradict either the
law of the Cheyenne River Sioux Tribe or the
express terms of this Agreement to
Arbitrate. . . .
***
Applicable Law and Judicial Review. THIS
ARBITRATION PROVISION IS MADE
PURSUANT TO A TRANSACTION
INVOLVING THE INDIAN COMMERCE
CLAUSE OF THE CONSTITUTION OF THE
UNITED STATES OF AMERICA, AND
SHALL BE GOVERNED BY THE LAW OF
THE CHEYENNE RIVER SIOUX TRIBE.
The arbitrator will apply the laws of the
Cheyenne River Sioux Tribal Nation and the
terms of this Agreement. The arbitrator must
apply the terms of this Arbitration agreement,
including without limitation the waiver of class-
wide Arbitration. The arbitrator will make
written findings and the arbitrator’s award may
6
be filed in the Cheyenne River Sioux Tribal
Court, which has jurisdiction in this matter.
***
If any of this Arbitration Provision is held
invalid, the remainder shall remain in effect.
J.A. 86-89 (emphasis in original).
MacDonald subsequently received notice that Western
Sky Financial sold the loan to WS Funding and that CashCall
and Delbert would service the loan. MacDonald submitted
monthly payments to WS Funding, CashCall, or Delbert, and
as of April 2016, he had paid Defendants a total of $15,493.00
on his $5,000 loan.1
MacDonald sued Defendants on behalf of himself and a
putative class of those similarly situated,2 alleging violations
of the federal Racketeering Influenced and Corrupt
Organization Act and New Jersey usury, consumer finance,
and consumer fraud laws. The Complaint asserted that
Western Sky and Defendants’ have a long history of unlawful
and deceptive lending practices and that federal circuit courts
1
This amount included $38.50 in principal, $15,256.65
in interest, and $197.85 in fees.
2
The class is defined in the Complaint to include “[a]ll
individuals who, on or after May 17, 2010, made payments to
one or more Defendants on loans originated by the Western
Sky Enterprise where the borrower was located in the State of
New Jersey at the time the loan was originated.” J.A. 59
(Compl. ¶ 45).
7
have characterized the arbitration provisions in the loan
agreements as “a sham and an illusion.” J.A. 56 (Compl. ¶¶
31, 34). MacDonald requested a declaration voiding the
arbitration, choice of law, and class waiver clauses, and sought
restitution.
Defendants moved to compel arbitration and,
alternatively, to dismiss the Complaint. The District Court
declined to compel arbitration because the Loan Agreement’s
express disavowal of federal and state law rendered the
arbitration agreement invalid as an unenforceable prospective
waiver of statutory rights.3 Defendants appeal the District
Court’s denial of Defendants’ motion to compel arbitration.
II4
“Our review of the District Court’s order denying the
motion to compel arbitration is plenary.” Kirleis v. Dickie,
McCarney & Chilcote, P.C., 560 F.3d 156, 159 (3d Cir. 2009);
see also Puleo v. Chase Bank USA, N.A., 605 F.3d 172, 177
(3d Cir. 2010) (stating that our Court “exercise[s] plenary
review over questions regarding the validity and enforceability
of an agreement to arbitrate.”). “[B]ecause our review is
plenary, ‘we may affirm on any grounds supported by the
record.’” Hassen v. Gov’t of V.I., 861 F.3d 108, 114 (3d Cir.
2017) (quoting Maher Terminals, LLC v. Port Auth. of N.Y. &
N.J., 805 F.3d 98, 105 n.4 (3d Cir. 2015)).
3
The District Court also dismissed some of
MacDonald’s claims and allowed some claims to proceed, but
that ruling is not before us.
4
The District Court had jurisdiction under 28 U.S.C. §
1332(d). Our Court has jurisdiction pursuant to 9 U.S.C. § 16.
8
The Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et
seq., reflects the “national policy favoring [arbitration] and
place[s] arbitration agreements on equal footing with all other
contracts.” Hall St. Assocs., LLC v. Mattel, Inc., 552 U.S. 576,
581 (2008); see also 9 U.S.C. § 2 (stating that “[a] written
provision in . . . a contract evidencing a transaction involving
commerce to settle by arbitration a controversy . . . arising out
of such contract . . . shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity
for the revocation of any contract.”). Thus, generally, courts
“must rigorously enforce arbitration agreements according to
their terms, including terms that ‘specify with whom the parties
choose to arbitrate their disputes,’ and ‘the rules under which
that arbitration will be conducted.’” Am. Exp. Co. v. Italian
Colors Restaurant, 133 S. Ct. 2304, 2309 (2013) (internal
citations omitted). Parties can seek judicial enforcement of an
arbitration agreement under FAA § 4, and courts can appoint
an arbitrator if one is not specified in the contract, pursuant to
FAA § 5. The common-law rules of contract interpretation
apply to arbitration agreements. Mastrobuono v. Shearson
Lehman Hutton, Inc., 514 U.S. 52, 62 (1995).
III
Defendants assert that the District Court erred in
refusing to compel arbitration because, among other things, (1)
MacDonald did not specifically challenge the enforceability of
the Loan Agreement’s delegation clause, which directs the
arbitrator to decide the enforceability of the arbitration
agreement, (2) the District Court erroneously construed the
arbitration provisions as an impermissible prospective waiver
of federal statutory rights, (3) the AAA and JAMS arbitral
forums are available to arbitrate pursuant to the arbitration
9
provisions of the Loan Agreement, and (4) the Loan
Agreement contains an enforceable severability clause that
should have been applied to sever any unenforceable
provisions while allowing arbitration to proceed.
A
The Loan Agreement provides that an arbitrator should
resolve threshold questions “concerning the validity,
enforceability, or scope of this loan or the Arbitration
agreement.” J.A. 86-87. This is known as a “delegation
clause.” A court cannot reach the question of the arbitration
agreement’s enforceability unless a party challenged the
delegation clause and the court concludes that the delegation
clause is not enforceable.
A party contesting the enforceability of a delegation
clause must “challenge[] the delegation provision
specifically.” Rent-A-Center, West, Inc. v. Jackson, 561 U.S.
63, 70, 72 (2010). To do so, the party must at least reference
the provision in its opposition to a motion to compel
arbitration. See Rent-A-Center, 561 U.S. at 72 (finding no
specific challenge to a delegation clause where, among other
things, the party’s opposition brief “nowhere . . . even
mention[ed] the delegation provision.”); Parm v. Nat’l Bank of
Cal., N.A., 835 F.3d 1331, 1335 n.1 (11th Cir. 2016)
(concluding that a party properly raised its challenge to a
delegation provision by directly challenging it in its opposition
to the motion to compel arbitration).
In specifically challenging a delegation clause, a party
may rely on the same arguments that it employs to contest the
enforceability of other arbitration agreement provisions. See
10
Rent-A-Center, 561 U.S. at 74 (suggesting that had a party
challenged a delegation provision based on the same
arguments raised with respect to other provisions of the
arbitration agreement, that would have been sufficient for a
court to consider the delegation provision challenge).5
However, contesting the validity of an arbitration agreement as
a whole, without specifically disputing the delegation clause
contained therein, is not sufficient to challenge the delegation
provision. Id. at 70-75; see also Parnell v. CashCall, Inc., 804
F.3d 1142, 1146-47 (11th Cir. 2015) (reading Rent-A-Center
to require a specific challenge to a delegation provision;
challenging the contract as a whole is insufficient). Without a
specific challenge to a delegation provision, the court must
treat that provision as valid and enforce it according to FAA §
4, 9 U.S.C. § 4. Parnell, 804 F.3d at 1146-47 (citing Rent-A-
Center, 561 U.S. at 72).
Here, unlike in Rent-A-Center, MacDonald specifically
challenged the delegation clause. His Complaint alleges that
“[b]ecause the arbitration procedure described in the
agreement is fabricated and illusory, any provision requiring
5
Defendants’ citation to our decision in South Jersey
Sanitation Co., Inc. v. Applied Underwriters Captive Risk
Assurance Co., Inc., 840 F.3d 138 (3d Cir. 2016) is unavailing.
According to Defendants, that case held that the content of the
challenge to the delegation clause must be “exclusive” to that
clause. Appellant Br. at 39 (quoting S. Jersey Sanitation Co.,
840 F.3d at 143). In fact, no delegation provision was at issue
in that case. Instead, we had occasion to decide only whether
the plaintiff had challenged the arbitration provision with
sufficient specificity, as opposed to challenging the contract as
a whole.
11
that the enforceability of the arbitration procedure must be
decided through arbitration is also illusory and unenforceable.”
J.A. 56 (Compl. ¶ 32). Similarly, his brief opposing
Defendants’ motion to compel arbitration states that “the
delegation clause suffers from the same defect as the
arbitration provision,” and includes a section discussing this
challenge. ECF No. 16 at 15. These explicit references to the
delegation clause are sufficient to contest it. Therefore, the
District Court did not err in assessing the delegation clause’s
enforceability.
B
MacDonald asserts that the Loan Agreement’s
delegation clause and arbitration provisions are unenforceable
for the same reasons—the arbitration mechanism articulated in
the Loan Agreement is illusory, and the arbitration provisions
provide for an impermissible prospective waiver of federal and
state rights. We need not address the prospective waiver
argument because we conclude that the arbitral forum provided
for in the Loan Agreement is nonexistent. As a result, and as
explained herein, there is no arbitration forum in which an
arbitrator could evaluate whether the arbitration provision is
enforceable.
1
The Loan Agreement’s arbitration provision states that
disputes “will be resolved by Arbitration, which shall be
conducted by the Cheyenne River Sioux Tribal Nation by an
authorized representative in accordance with its consumer
dispute rules and the terms of this Agreement.” J.A. 86. This
language requires the Tribe’s involvement in the arbitration,
12
but as our sister circuit courts have noted, such a tribal arbitral
forum does not exist. See Inetianbor v. CashCall, Inc., 768
F.3d 1346, 1353-54 (11th Cir. 2014) (stating that the plaintiff
debtor presented the court with a letter from the Tribe stating
that “the Cheyenne River Sioux Tribe, the governing authority,
does not authorize Arbitration” and that “the Tribe has nothing
to do with any of this business”); Jackson v. Payday Fin., LLC,
764 F.3d 765, 776 (7th Cir. 2014) (noting that “The Cheyenne
River Sioux Tribe ‘does not authorize Arbitration,’ it does not
involve itself in the hiring of arbitrators, and it does not have
consumer dispute rules,” and thus concluding that it was an
“illusory” and “unreasonable” forum). Indeed, Defendants
have not contested that CRST arbitration is unavailable. Thus,
we conclude, like our sister circuits, that the CRST arbitral
forum is nonexistent.
2
Defendants nonetheless argue that an arbitral forum is
available because the Choice of Arbitrator provision permits
arbitration before AAA or JAMS without relying on a CRST
representative or CRST consumer dispute rules. To evaluate
this argument, we must interpret the Choice of Arbitrator
clause.
As a threshold matter, we must determine what
substantive law governs our interpretation. The District Court
concluded that, notwithstanding the parties’ choice of CRST
law, New Jersey law applies to this dispute. We agree. Here,
the Loan Agreement repeatedly references CRST law, but the
parties have not provided the Court with any such law. Cf.
Fed. R. Civ. P. 44.1. Therefore, we will apply the forum’s
contract interpretation principles. See Parm, 835 F.3d at 1335
13
(“[B]ecause the parties have not provided us with a clear
statement of CRST contract interpretation, we apply [the forum
state’s] plain-meaning rule to interpret the loan agreement.”);
Parnell, 804 F.3d at 1147 (applying the forum state’s law to
interpret the loan agreement because “the parties provided this
court with no rule of tribal law regarding contract interpretation
and our research uncovered none”); Jackson, 764 F.3d at 777
(stating that if an arbitration agreement’s choice of law
provision is invalid, then the forum’s state law “would govern
the question of the validity of the choice of forum provision”);
see also Mastrobuono, 514 U.S. at 62-64 (applying “common-
law” and “cardinal” principles of contract interpretation from
the forum state, the state selected in the agreement’s choice-of-
law provision, and the Restatement (Second) of Contracts to
construe the terms of an arbitration agreement); Gay v.
CreditInform, 511 F.3d 369, 387-89 (3d Cir. 2007) (applying
Pennsylvania law to interpret an arbitration agreement because
“[i]n applying ordinary state law principles to evaluate
arbitration agreements, . . . courts may look . . . to the laws of
the involved state or territory” and “if the District Court’s
jurisdiction in this federal question case had been based on
diversity of citizenship of the parties we would apply
Pennsylvania’s choice-of-law principles as the court was in the
Eastern District of Pennsylvania”).6
6
In addition, New Jersey courts will enforce a choice-
of-law provision unless it violates public policy. Instructional
Sys., Inc. v. Computer Curriculum Corp., 614 A.2d 124, 133
(N.J. 1992). For the reasons stated by the District Court, the
agreement’s choice of CRST law violated public policy as
defined by New Jersey law, and thus, the Court was correct to
determine that New Jersey substantive law applies.
14
Under New Jersey law, “courts should enforce contracts
as the parties intended,” Pacifico v. Pacifico, 920 A.2d 73, 77
(N.J. 2007), which is assessed by examining the “plain
language of the contract,” “the surrounding circumstances, and
the purpose of the contract,” Highland Lakes Country Club &
Cmty. Ass’n v. Franzino, 892 A.2d 646, 656 (N.J. 2006). In
addition, “[c]ontract provisions are to be interpreted so as to
give each provision meaning, rather than rendering some
provisions superfluous.” Carter v. Exxon Co. USA, 177 F.3d
197, 206 (3d Cir. 1999) (citing, inter alia, Ehrnes v. Hronix, 23
A.2d 592, 593 (N.J. 1942)); see also Matter of Cmty. Med. Ctr.,
623 F.2d 864, 866 (3d Cir. 1980) (stating that under New
Jersey law, “all parts of the writing will be given effect if
possible”). Arbitration agreements should be read “liberally in
favor of arbitration,” but courts “may not rewrite a contract to
broaden the scope of arbitration.” Garfinkel v. Morristown
Obstetrics & Gynecology Assocs., P.A., 773 A.2d 665, 670
(N.J. 2001) (quoting multiple sources). This is because a
“court will not make a different or better contract than the
parties themselves have seen fit to enter into.” Matter of Cmty.
Med. Ctr., 623 F.2d at 866.
The Choice of Arbitrator provision allows the parties to
select the AAA, JAMS, or some other agreed upon
organization “to administer the arbitration . . . [under] the
chosen arbitration organization’s rules and procedures . . . to
the extent that those rules and procedures do not contradict
either the law of the [CRST] or the express terms of [the Loan]
Agreement. . . .” J.A. 87. The role of an arbitration
administrator is to “manage the administrative aspects of the
arbitration, such as the appointment of the arbitrator,” but the
administrator “does not decide the merits of a case.” AAA
Consumer Arbitration Rules at 6, 39 (available at
15
https://www.adr.org/sites/default/files/Consumer%20Rules.pd
f); see also JAMS: Comprehensive Arbitration Rules &
Procedures, R. 2(a) & (b), 15 (allowing parties to direct
appointment of an arbitrator or utilize JAMS procedures for
selecting an arbitrator); Parm, 835 F.3d at 1336 n.3. Thus, the
plain language of the Choice of Arbitrator provision belies
Defendants’ argument that it provides an available arbitral
forum.
Moreover, construing the Choice of Arbitrator
provision to mean that it does not provide an alternative arbitral
forum to resolve the dispute is consistent with the Loan
Agreement’s forum selection clause, which states that the
arbitration “shall be conducted by the [CRST] by an authorized
representative,” J.A. 86. Construing the Choice of Arbitrator
provision to give parties the right to have AAA or JAMS only
to administer the arbitration, subject to the Loan Agreement’s
requirement that a CRST representative conduct the
arbitration, gives both clauses effect. To construe the Choice
of Arbitrator provision to allow arbitration by someone other
than a CRST representative would be irreconcilable with the
forum selection clause’s requirement that a CRST
representative conduct the arbitration. For this additional
reason, the Choice of Arbitrator provision does not provide a
basis for concluding that an alternative arbitral forum is
available. Parm, 835 F.3d at 1335; J.A. 87 (concluding that the
Choice of Arbitrator Clause permits AAA or JAMS to
administer the arbitration according to those organizations’
rules only “to the extent that those rules and procedures do not
contradict either the law of [CRST] or the express terms of this
[Loan] Agreement”).
16
Defendants’ argument that the Loan Agreement’s
arbitration provisions do not require a CRST representative’s
involvement also fails. Defendants assert that the provision
states that “any Dispute, except as provided below, will be
resolved by Arbitration, which shall be conducted by the
[CRST] by an authorized representative,” and that the phrase
“except as provided below” refers to the next paragraph, which
discusses arbitration using AAA and JAMS. Reply Br. 15-16.
This argument is meritless. The phrase “except as provided
below” modifies the word it is closest to—“Dispute”—
“mean[ing] the exceptions referred to . . . are exceptions to the
types of disputes that require arbitration . . . [and] not
exceptions to the requirement that arbitrations be ‘conducted
by the [CRST] by an authorized representative.’”7 Parm, 835
F.3d at 1336 (citing Antonin Scalia & Bryan Garner, Reading
Law: The Interpretation of Legal Texts 152 (2012) for
interpretive canons of English usage). Indeed, later parts of the
Loan Agreement8 demonstrate that this interpretation is the
correct reading because those subsequent portions explicitly
exempt certain types of disputes from the arbitration
7
This interpretive canon is known as the last antecedent
rule. See Disabled in Action of Pa. v. SEPTA, 539 F.3d 199,
210 & n.13 (3d Cir. 2008).
8
See, e.g., J.A. 88 (subjecting the enforceability of the
class action waiver “solely [to] a court of competent
jurisdiction located within the Cheyenne River[] Sioux Tribal
Nation, and not [to] the arbitrator”); J.A. 89 (identifying a
“Small Claims Exception” that allows parties to seek
adjudication “in a small claims tribunal in the Cheyenne River
Sioux Tribal Small Claims Court”).
17
provisions.9 Therefore, the Loan Agreement’s arbitration
provisions direct arbitration to an illusory CRST forum, and
the Loan Agreement does not provide an alternate forum.10
C
The CRST arbitral forum’s nonexistence does not
automatically invalidate the arbitration agreement because,
according to Defendants, the agreement’s severability clause
allows invalid provisions, such as the selection of an illusory
9
Because we are examining arbitration procedures and
not the scope of the arbitration agreement, the preference for
construing ambiguity in favor of arbitration does not apply.
See, e.g., Granite Rock v. Int’l Bhd. of Teamsters, 561 U.S.
287, 301 (2010) (explaining that the rebuttable presumption of
arbitrability applies “only where a validly formed and
enforceable arbitration agreement is ambiguous about whether
it covers the dispute at hand”); First Options of Chi., 514 U.S.
938, 945 (1995) (stating that “doubts concerning the scope of
arbitrable issues should be resolved in favor of arbitration”)
(quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24-25 (1983)); Mastrobuono, 514 U.S. at 62
(stating that “due regard must be given to the federal policy
favoring arbitration, and ambiguities as to the scope of the
arbitration clause itself resolved in favor of arbitration”);
CardioNet, Inc. v. Cigna Health Corp., 751 F.3d 165, 172 (3d
Cir. 2014) (“We must resolve ‘any doubts concerning the
scope of arbitable issues . . . in favor of arbitration.’” (quoting
Moses H., 460 U.S at 24-25)).
10
Defendants’ evidence that AAA and JAMS have
conducted arbitrations does not mean that the arbitrations
complied with the Loan Agreement.
18
forum, to be severed. Under New Jersey law, courts may not
sever language from an agreement where doing so would
“defeat the central purpose of the contract.” Jacob v. Norris,
McLaughlin & Marcus, 607 A.2d 142, 154 (N.J. 1992). To
determine the agreement’s primary purpose, courts look to “the
parties’ intent at the time the agreement was executed, as
determined from the language of the contract and the
surrounding circumstances.” Parilla v. IAP Worldwide Servs.,
VI, Inc., 368 F.3d 269, 288 (3d Cir. 2004).
Here, the Loan Agreement reflects that the CRST
arbitration provision was an integral, not ancillary, part of the
parties’ agreement to arbitrate, despite the inclusion of a
severability clause in the contract. J.A. 89 (“If any of this
Arbitration Provision is held invalid, the remainder shall
remain in effect.”) The Loan Agreement references CRST or
its rules in most paragraphs concerning arbitration. See
Inetianbor, 768 F.3d at 1350-51. For example, the arbitration
provision states that arbitration “shall be conducted” by the
CRST, J.A. 86, without referencing any other arbitral forums,
and more importantly, the Loan Agreement as a whole
repeatedly reiterates that it is subject to and governed “solely”
and “exclusive[ly]” by CRST’s jurisdiction and law.11 J.A. 80
11
As discussed previously, the Choice of Arbitrator
provision permitting administration by AAA or JAMS does not
offer an alternative forum because (1) that clause allows those
organizations to only administer the arbitration and does not
authorize them to decide disputes; (2) those entities are
permitted to provide administrative support only “to the extent
that [their] rules and procedures do not contradict” CRST law
and the Loan Agreement’s terms; and (3) the arbitration
provision requires that a CRST representative conduct the
19
(“This Loan Agreement is subject solely to the exclusive laws
and jurisdiction of the [CRST].”).12 These references reflect
that the primary purpose of the Loan Agreement was to
arbitrate disputes subject to CRST oversight and its laws. See
Parm, 835 F.3d at 1338 (refusing to compel arbitration because
the CRST forum is unavailable and “pervasive references to
the tribal forum and its rules provide evidence that the forum
selection clause was not simply an ancillary concern but an
integral aspect of the parties’ agreement to arbitrate”);
Inetianbor, 768 F.3d at 1350-53 (similarly refusing to compel
arbitration despite the presence of a severability clause and
concluding that the forum selection clause was integral, in part
because the loan agreement “references the Tribe in five of its
nine paragraphs regarding arbitration”); cf. Dillon v. BMO
Harris Bank, N.A., 856 F.3d 330, 336-37 (4th Cir. 2017)
(finding that the CRST choice of law provisions are not
severable because they “were essential to the purpose of the
arbitration agreement”); Hayes v. Delbert Servs. Corp., 811
F.3d 666, 675-76 (4th Cir. 2016) (stating that the
arbitration. Thus, the Choice of Arbitrator provision “does not
affect the importance of the CRST forum in the agreement.”
Parm, 835 F.3d at 1338.
12
E.g., J.A. 85 (“You also expressly agree that this
Agreement shall be subject to and construed in accordance
only with the provisions of the laws of the [CRST], and that no
United States state or federal law applies to this Agreement.”);
J.A. 88-89 (“This arbitration provision . . . shall be governed
by the law of the [CRST]. . . . [t]he arbitrator’s award may be
filed in the [CRST] Court, which has jurisdiction in this matter
. . . . All parties . . . shall retain the right to seek adjudication in
a small claims tribunal in the [CRST] Small Claims Court
. . . .”) (emphasis omitted).
20
unenforceable CRST choice of law provisions cannot be
severed and refusing to enforce arbitration because “the
offending provisions go to the core of the arbitration
agreement”); Jackson, 764 F.3d at 780-81 (holding that FAA §
5 does not apply to a similar version of the loan agreement at
issue here because the arbitral process cannot be saved simply
by substituting an arbitrator). Given the centrality of CRST’s
involvement in the arbitration as reflected by terms of the Loan
Agreement, compelling arbitration before a different arbitrator
and without CRST oversight would amount to an
impermissible rewriting of the contract. See Parm, 835 F.3d at
1335 (acknowledging the “presumption in favor of
arbitration,” but cautioning that “courts are not to twist the
language of the contract to achieve a result which is favored by
federal policy but contrary to the intent of the parties.”);
Garfinkel, 773 A.2d at 670 (recognizing that while arbitration
agreements should be construed “liberally in favor of
arbitration . . . [a] court may not rewrite a contract to broaden
the scope of arbitration”); Matter of Cmty. Med. Ctr., 623 F.2d
at 866 (“[T]he court will not make a different or better contract
than the parties themselves have seen fit to enter into.”); Cargill
Rice, Inc. v. Empresa Nicarguense Dealimentos Basicos, 25
F.3d 223, 226 (4th Cir. 1994) (“Arbitration awards made by
arbitrators not appointed under the method provided in the
parties’ contract must be vacated.”). We therefore join our
sister circuits in concluding that the CRST arbitral forum
clause is integral to the entire arbitration agreement and cannot
be severed.13 See Parm, 835 F.3d at 1338; Inetianbor, 768 F.3d
at 1350-53.
13
The cases Defendants rely on to support their
severance argument are distinguishable. For example, the
arbitration provision in Khan v. Dell, Inc., stated that all
21
disputes “shall be resolved exclusively and finally by binding
arbitration administered by the National Arbitration Forum
[NAF],” but NAF was unavailable. 669 F.3d 350, 354-55 (3d
Cir. 2012). Our Court observed that it was ambiguous whether
“exclusively” was intended to modify “binding arbitration” or
NAF, and ultimately resolved the ambiguity in favor of
arbitration due to the “liberal federal policy in favor of
arbitration.” Id. at 355-56. Here, however, unlike the contract
in Khan, the Loan Agreement contains pervasive references to
CRST’s laws and exclusive jurisdiction, which reflect that the
Loan Agreement’s purpose was to arbitrate under CRST
oversight. Moreover, the Loan Agreement’s forum selection
clause, viewed in the overall context of the agreement as a
whole, differs markedly from the ancillary and discrete fee and
cost, damages, and class action waiver provisions found to be
severable in Kaneff v. Del. Title Loans, Inc., 587 F.3d 616, 625
(3d Cir. 2009); Booker v. Robert Half Int’l, Inc., 413 F.3d 77,
83-86 (D.C. Cir. 2005); Spinetti v. Serv. Corp. Int’l, 324 F.3d
212, 219-20 (3d Cir. 2003); Gannon v. Circuit City Stores, Inc.,
262 F.3d 677, 680-81 (8th Cir. 2001); Muhammad v. Cty Bank
of Rehoboth Beach, Del., 912 A.2d 88, 103 (N.J. 2006),
preempted in part by statute, Litman v. Cellco P’ship, 655 F.3d
225, 230 (3d Cir. 2011); Garrett-Scheier v. Muller Auto. Grp.,
Inc., No. HNT-L-135-10, 2010 WL 1599419, at *4 (N.J. Super.
Ct. Law Div. Apr. 16, 2010).
Furthermore, it would be nonsensical for a court to
appoint an arbitrator where a drafter created an agreement to
arbitrate in a forum that does not exist. Defendants should not
be permitted to tender agreements containing such a façade and
then expect courts to step in and order the parties to proceed to
22
IV
Because the Loan Agreement’s forum selection clause
is an integral, non-severable part of the arbitration agreement
and because the CRST arbitral forum designated in that clause
is illusory, the entire arbitration agreement, including the
delegation clause, is unenforceable.14 See Parm, 835 F.3d at
1338 (declining to enforce a delegation clause and an
arbitration agreement because the arbitral forum provided for
in the arbitration agreement does not exist); Inetianbor, 768
F.3d at 1353-54 (same). Thus, the District Court had the
authority to decide whether the arbitration agreement was
valid, correctly decided that it was not, and did not err in
arbitration. See Inetianbor, 768 F.3d at 1356-57 (Restani, J.,
concurring).
14
Federal law presumes forum selection clauses to be
valid, but that presumption is overcome where the resisting
party shows that enforcement would be “unreasonable under
the circumstances.” Foster v. Chesapeake Ins. Co., Ltd., 933
F.2d 1207, 1219 (3d Cir. 1991) (internal quotation marks
omitted) (quoting M/S Bremen v. Zapata Off-Shore Co., 407
U.S. 1, 10 (1972)). Enforcement is unreasonable where either
the forum selected is “so gravely difficult and inconvenient that
[the resisting party] will for all practical purposes be deprived
of his day in court,” or the clause was procured through “fraud
or overreaching.” Foster, 933 F.2d at 1219 (quoting M/S
Bremen, 407 U.S. at 15-18). Applying this standard to the
arbitration agreement at issue here, we conclude without
hesitation that enforcement would be unreasonable.
23
denying Defendants’ motion to compel arbitration. Therefore,
we will affirm.15
15
Judge Vanaskie would also affirm on the alternative
ground that the Loan Agreement impermissibly waives a
borrower’s federal and state statutory rights, thereby rendering
the arbitration clause unenforceable. In this regard, Judge
Vanaskie endorses the reasoning of the District Court at J.A.
14-16 and the Fourth Circuit’s analysis in Hayes, 811 F.3d at
673-74, in which Judge Wilkinson observed that “a party may
not underhandedly convert a choice of law clause into a choice
of no law clause,” id. at 675. Judge Vanaskie agrees with the
District Court’s conclusion that the Loan Agreement
establishes “sham dispute resolution procedures,” J.A. 16, and
would affirm the denial of the motion to compel arbitration on
this ground as well.
24