in the united states court of appeals for the … · parnell now argues that he may belatedly...

Case No. 14-12082-EE

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

JOSHUA PARNELL,

Plaintiff/Appellee,

v.

CASHCALL, INC., Defendant/Appellant, and WESTERN SKY FINANCIAL, LLC, and MARTIN A. (“BUTCH”) WEBB, Defendants.

On appeal from the United States District Court

for the Northern District of Georgia Case No. 4:14-cv-0024-HLM

REPLY BRIEF OF APPELLANT CASHCALL, INC.

William J. Holley, II Nancy H. Baughan

Erin M. Moore Parker, Hudson, Rainer & Dobbs LLP

1500 Marquis Two Tower 285 Peachtree Center Avenue, N.E.

Atlanta, GA 30303 Telephone: (404) 523-5300 Facsimile: (404) 522-8409

Attorneys for Defendant-Appellant CashCall, Inc.

Katya Jestin

Neil M. Barofsky Brian J. Fischer

Jenner & Block LLP 919 Third Avenue

New York, NY 10022-3908 Telephone: (212) 891-1600 Facsimile: (212) 909-0608

Barry Levenstam Daniel T. Fenske

Jenner & Block LLP 353 N. Clark Street

Chicago, IL 60654-3456 Telephone: (312) 222-9350 Facsimile: (312) 527-0484

Case: 14-12082 Date Filed: 11/24/2014 Page: 1 of 37

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

REPLY ARGUMENT ............................................................................................... 1

I. Mr. Parnell Fails To Distinguish Controlling Precedent Requiring The Court To Sustain The Arbitration Clause Against An Attack On Unconscionability Grounds. ............................................................................ 2

A. Mr. Parnell Agreed To Delegate Arbitrability To The Arbitrator And The Case Law He Cites Does Not Permit Him To Evade His Agreement. ............................................................................................... 2

B. Delegation Provision Aside, Mr. Parnell Fails To Justify The District Court’s Decision To Void The Arbitration Clause On Unconscionability Grounds. .................................................................... 8

1. The FAA Preempts Georgia’s Unconscionability Defense. ....................................................................................... 8

2. The Arbitration Clause Is Not Unconscionable. ....................... 10

C. Inetianbor and Jackson Are Irrelevant To This Case. ........................... 15

II. Like The District Court, Mr. Parnell Fails To Show That A Designated Arbitral Forum Is Unavailable. ................................................... 16

III. Mr. Parnell Fails To Explain Why The Unavailability Of One Designated Forum—Where The Arbitration Clause Expressly Provides For Other Fora—Invalidates The Entire Clause. ............................ 22

IV. For Preservation Purposes, CashCall Respectfully Submits That The Inetianbor Case Was Incorrectly Decided. ................................................... 26

CONCLUSION ........................................................................................................ 28


ii

TABLE OF AUTHORITIES

Page(s) CASES

American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013) .......................................................................................... 4

AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) .......................................................................... 8, 9, 10, 12

Bank of Hoven v. Long Family Land & Cattle Co., 32 Indian L. Rep. 601 (CRST Ct. App. 2004) .................................................... 25

Brown v. ITT Consumer Financial Corp., 211 F.3d 1217 (11th Cir. 2000) .................................................................... 20, 27

Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S. Ct. 1204 (2006)............................................................. 6, 13

Chitoff v. CashCall, Inc., No. 0:14-cv-60292 (S.D. Fla. Nov. 17, 2014), ECF No. 95 ........................... 3, 17

Cruz v. Cingular Wireless, LLC, 648 F.3d 1205 (11th Cir. 2011) .......................................................................... 10

Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204 (11th Cir. 2011) ...................................................................... 2, 26

First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S. Ct. 1920 (1995)................................................................... 4

FusionStorm, Inc. v. Presidio Networked Solutions, Inc., 871 F. Supp. 2d 1345 (M.D. Fla. 2012) .............................................................. 20

Gulf Guaranty Life Insurance Co. v. Connecticut General Life Insurance Co., 304 F.3d 476 (5th Cir. 2002) .............................................................................. 14

Hull v. Norcom, Inc., 750 F.2d 1547 (11th Cir. 1985) .......................................................................... 12


iii

In re Checking Account Overdraft Litigation MDL No. 2036, 674 F.3d 1252 (11th Cir. 2012) .................................................................... 3, 5, 7

Inetianbor v. CashCall, Inc., 768 F.3d 1346 (11th Cir. 2014) ....................................................................passim

Inetianbor v. CashCall, Inc., 962 F. Supp. 2d 1303 (S.D. Fla. 2013) ............................................................... 16

Jackson v. Payday Financial, LLC, 764 F.3d 765 (7th Cir. 2014) ......................................................................... 15, 16

Jenkins v. First American Cash Advance of Georgia, LLC, 400 F.3d 868 (11th Cir. 2005) ............................................................................ 10

Lindo v. NCL (Bahamas), Ltd., 652 F.3d 1257 (11th Cir. 2011) .......................................................................... 24

Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285 (11th Cir. 1998) .......................................................................... 24

Luckie v. Smith Barney, Harris Upham & Co., 999 F.2d 509 (11th Cir. 1993) ............................................................................ 27

Michaels v. Mariforum Shipping, S.A., 624 F.2d 411 (2d Cir. 1980) ............................................................................... 14

Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024 (2014) ........................................................................................ 25

Muriithi v. Shuttle Express, Inc., 712 F.3d 173 (4th Cir. 2013) ................................................................................ 9

Oglala Sioux Tribe v. C&W Enterprises, Inc., 542 F.3d 224 (8th Cir. 2008) .............................................................................. 18

Pendergast v. Sprint Nextel Corp., 691 F.3d 1224 (11th Cir. 2012) ............................................................................ 8

Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S. Ct. 1801 (1967) ............................................................... 6, 13


iv

Puleo v. Chase Bank USA, N.A., 605 F.3d 172 (3d Cir. 2010) ............................................................................... 28

Reddam v. KPMG LLP, 457 F.3d 1054 (9th Cir. 2006) ............................................................................ 27

Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 130 S. Ct. 2772 (2010) ..................................................... 1, 4, 5, 6, 7

Sam Reisfeld & Son Import Co. v. S. A. Eteco, 530 F.2d 679 (5th Cir. 1976) .......................................................................... 6, 16

Savers Property & Casualty Insurance Co. v. National Union Fire Insurance Co. of Pittsburg, 748 F.3d 708 (6th Cir. 2014) .............................................................................. 14

Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S. Ct. 2449 (1974) ................................................................... 24

Solymar Investments, Ltd. v. Banco Santander S.A., 672 F.3d 981 (11th Cir. 2012) ............................................................................ 21

Supply Basket, Inc. v. Global Equipment Co., No. 1:13-CV-3220-RWS, 2014 WL 2515345 (N.D. Ga. June 4, 2014) ............ 20

Travelers Insurance Co. v. Davis, 490 F.2d 536 (3d Cir. 1974) ............................................................................... 14

U.S. Nutraceuticals, LLC v. Cyanotech Corp., No. 13-12863, --- F.3d ---, 2014 WL 5471913 (11th Cir. Oct. 30, 2014) .......... 21

United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S. Ct. 1347 (1960) ................................................................... 21

Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 115 S. Ct. 2322 (1995)................................................................. 24

Wallace v. Rick Case Auto, Inc., 979 F. Supp. 2d 1343 (N.D. Ga. 2013) ............................................................... 20

White Wolf v. Myers, 34 Indian L. Rep. 6102 (CRST Ct. App. 2007) .................................................. 25


v

STATUTES

9 U.S.C. § 2 ................................................................................................................ 6

9 U.S.C. § 5 .............................................................................................. 7, 11, 12, 28

OTHER AUTHORITIES

Frank Pommersheim, South Dakota Tribal Court Handbook (rev. ed. 2006), available at http://ujs.sd.gov/media/docs/IndianLaw%20Handbook.pdf .......... 25


1

REPLY ARGUMENT

Mr. Parnell’s brief fails to provide any bases for affirming the district court’s

refusal to compel arbitration. First, having never challenged the validity of his

agreement to delegate to the arbitrator all challenges to the Arbitration Clause, Mr.

Parnell now argues that he may belatedly attack the Delegation Provision simply

because it is not grammatically separate from other portions of the arbitration

clause.1 But the Supreme Court has held that, as a matter of federal arbitration

law, a party seeking to challenge a delegation provision must do so separate and

apart from any challenge to the rest of the arbitration clause. See Rent-A-Ctr., W.,

Inc. v. Jackson, 561 U.S. 63, 70-71, 130 S. Ct. 2772, 2777-78 (2010). Its physical

location within a particular sentence or part of the contract is irrelevant. Because

Mr. Parnell never properly challenged the Delegation Provision here, the district

court erred by addressing Mr. Parnell’s challenges to the Arbitration Clause.

Second, Mr. Parnell ignores the fact that his Arbitration Clause expressly

allows him to choose unilaterally to arbitrate before the AAA or JAMS, or before

any other arbitrator to which he and CashCall agree, within thirty miles of his

home and at CashCall’s expense. Those organizations and their rules—which the

Arbitration Clause plainly allows the parties to use—are undoubtedly available to

1 Capitalized terms have the same meaning as in CashCall’s opening brief.

This brief will cite Mr. Parnell’s brief as “Resp. Br. __” and CashCall’s opening brief as “Op. Br. __.”


2

hear this dispute. Mr. Parnell’s interpretation of the Arbitration Clause would

effectively nullify the AAA/JAMS provision. “[T]hat is an interpretative no-no.”

Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204, 1218 (11th Cir. 2011).

Third, Mr. Parnell repeatedly relies on the distinguishable decision in

Inetianbor v. CashCall, Inc., 768 F.3d 1346 (11th Cir. 2014), which addressed an

arbitration clause that did not include the AAA/JAMS provision. The district court

thus erred by refusing to enforce the Arbitration Clause.

I. Mr. Parnell Fails To Distinguish Controlling Precedent Requiring The Court To Sustain The Arbitration Clause Against An Attack On Unconscionability Grounds.

A. Mr. Parnell Agreed To Delegate Arbitrability To The Arbitrator And The Case Law He Cites Does Not Permit Him To Evade His Agreement.

As CashCall has explained, the district court erred by even considering the

question of whether the Arbitration Clause is unconscionable. (Op. Br. 20-25.)

Mr. Parnell does not—and cannot—dispute that he agreed to submit all disputes

about the enforceability of the Arbitration Clause to arbitration, not litigation.

(Doc. 3-2 at 4.) Nor does he dispute that he never challenged the Delegation

Provision below. Further, he concedes that “the District Court did not address

CashCall’s argument that the arbitration clause’s delegation provision required the

District Court to defer to the decision of an arbitrator on the issue of

‘arbitrability.’” (Resp. Br. 8, 10-11.) This concedes that the district court


3

committed reversible error, as it shows that the district court never concluded that

Mr. Parnell carried his required burden of challenging the Delegation Provision.

See In re Checking Account Overdraft Litig. MDL No. 2036, 674 F.3d 1252, 1256-

57 (11th Cir. 2012).2

Mr. Parnell’s argument that the Delegation Provision is not physically or

grammatically separate from the Arbitration Clause, and thus he did not need to

challenge it separately (Resp. Br. 10-16), fails as a matter of law. The fact that he

and Western Sky needed only four words in a paragraph listing other arbitral

details to submit arbitrability disputes to the arbitrator does not change the legal

nature or effect of that submission. Mr. Parnell argues that “severability should

require a certain amount of ‘severability’ to be valid,” (id. at 15), but fails to offer

any case law to support his argument that the validity of a delegation provision

depends on whether it is physically or grammatically separate from the remainder

of the arbitration terms. Nor does he provide any reason why the validity of the

parties’ delegation should or would depend on whether it is in the same sentence

2 In a recent case involving this same Arbitration Clause, the Southern District

of Florida recently granted CashCall’s motion to dismiss and compel arbitration and noted that any arguments, except those addressing the availability of the arbitral forum, “must be decided by the arbitrator in accordance with the delegation provision on page five of the loan agreement in this case.” Chitoff v. CashCall, Inc., No. 0:14-cv-60292, slip op. at 2 n.1 (S.D. Fla. Nov. 17, 2014), ECF No. 95.


4

as, or a different sentence from, a list of other disputes the arbitrator must decide.3

Indeed, Supreme Court precedent requires this Court to reject such attacks on

arbitration clauses because they require ad hoc “case by case”—or word-by-

word—balancing that is “unwieldy and unsupported by the terms or policy of the

[FAA].” Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2311-12 (2013).

Rent-A-Center, West, Inc. v. Jackson foreclosed Mr. Parnell’s argument two

years before Mr. Parnell signed his Loan Agreement in 2012. 561 U.S. 63, 130 S.

Ct. 2772 (2010). There, the Supreme Court held “as a matter of substantive federal

arbitration law” that a delegation provision “is simply an additional, antecedent

agreement” that “is severable from the remainder of the” arbitration agreement. Id.

at 70-71, 130 S. Ct. at 2777-78 (quotation marks omitted). Absent a specific

agreement to delegate arbitrability to the arbitrator, courts must address that

question. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S. Ct.

1920, 1923-24 (1995). With such a specific delegation agreement, however, the

arbitrator decides. Id. The physical location of the specific delegation agreement

within the arbitration clause is irrelevant. Just as the agreement to delegate

arbitrability to an arbitrator always must be spelled out specifically, id. at 945, 115

S. Ct. at 1925, as a matter of law, a delegation provision always must be

3 It is therefore Mr. Parnell, not CashCall, whose argument would result in

parties having to challenge “an agreement as a whole, followed by a challenge to a certain clause, followed by challenges to single sentences, followed by challenges to words tacked on to conjunctions at the end of a sentence.” (Resp. Br. 15.)


5

challenged “specifically.” Rent-A-Ctr., 561 U.S. at 72, 130 S. Ct. at 2779. In other

words, “a party’s challenge to another provision of the contract, or to the contract

as a whole” is insufficient. Id. at 71, 130 S. Ct. at 2778.

Rather than even attempting to address this holding, Mr. Parnell instead cites

a dissenting opinion from Rent-A-Center. (Resp. Br. 13-14.) But the Court’s

majority rejected the dissent’s arguments. Indeed, the very excerpt Mr. Parnell

quotes from Justice Stevens’s dissent reflects the Justice’s recognition that the

Court’s majority was adopting precisely the holding that defeats Mr. Parnell’s

position: “Today the Court adds a new layer of severability—something akin to

Russian nesting dolls—into the mix: Courts may now pluck from a potentially

invalid arbitration agreement even narrower provisions that refer particular

arbitrability disputes to an arbitrator.” Rent-A-Ctr., 561 U.S. at 85, 130 S. Ct. at

2786 (Stevens, J., dissenting) (emphasis in original). This Court also has

recognized, and held, that the majority opinion in Rent-A-Center means what it

says: “A delegation provision is severable from the rest of the arbitration

agreement and must be challenged ‘specifically.’” In re Checking Account

Overdraft Litig., 674 F.3d at 1256.

A simple analogy illustrates the error of Mr. Parnell’s argument. If a party

challenged an entire contract as unconscionable but never specifically attacked the

arbitration clause, then that party could not claim on appeal that he implicitly


6

meant for that unconscionability argument to apply also to the arbitration clause.

Two Supreme Court cases establish this point beyond contradiction: Buckeye

Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445-46, 449, 126 S. Ct. 1204,

1209-10 (2006), and Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S.

395, 403-04, 87 S. Ct. 1801, 1806 (1967). Mr. Parnell never even mentions these

cases, much less responds to CashCall’s discussion of them. (Op. Br. 21-23.) A

delegation provision is “simply an additional, antecedent agreement the party

seeking arbitration asks the federal court to enforce, and the FAA operates on this

additional arbitration agreement just as it does on any other.” Rent-A-Ctr., 561

U.S. at 70, 130 S. Ct. at 2777-78. For that reason, a party must specifically attack

that delegation provision separately from any attack on the larger arbitration

clause, just like a party must challenge the arbitration clause separately from the

contract as a whole.

Mr. Parnell could have argued specifically that the Delegation Provision

“itself was a product of fraud, coercion, or ‘such grounds as exist at law or in

equity for the revocation of any contract.’” Sam Reisfeld & Son Import Co. v. S. A.

Eteco, 530 F.2d 679, 681 (5th Cir. 1976) (quoting 9 U.S.C. § 2). He did not. In

fact, he never even used the word “delegation” in any of his briefing below, though

CashCall repeatedly invoked the “Delegation” Provision. (Doc. 3-1 at 12-13; Doc.

19-1 at 11-12; Doc. 24 at 1-3; Doc. 30-1 at 4-5.) Mr. Parnell, like the plaintiff in


7

Rent-A-Center, failed to challenge the Delegation Provision specifically: “Nowhere

in his opposition to [defendant’s] motion to compel arbitration did [plaintiff] even

mention the delegation provision.” 561 U.S. at 72-73, 130 S. Ct. at 2779.

By failing to challenge the Delegation Provision separately, Mr. Parnell

failed to meet his burden under Rent-A-Center, 561 U.S. at 66, 130 S. Ct. at 2775.

He also waived the opportunity to make this argument now. In re Checking

Account Overdraft Litig., 674 F.3d at 1256.

Finally, Mr. Parnell argues that “there can be no delegation” when “no

arbitral forum exists.” (Resp. Br. 11.) This argument fails for two reasons. First,

an arbitral forum is available here, and that arbitrator would be able to use the

Delegation Provision to address Mr. Parnell’s claims that the Arbitration Clause is

unenforceable. See Section II below. Second, even if no arbitral forum were

available, FAA § 5 requires the district court to appoint a substitute arbitrator, who

would then use the Delegation Provision to determine whether the Arbitration

Clause is valid. See Section III below. The district court thus erred by not

compelling the parties to arbitrate this entire dispute—including any allegations of

unconscionability.


8

B. Delegation Provision Aside, Mr. Parnell Fails To Justify The District Court’s Decision To Void The Arbitration Clause On Unconscionability Grounds.

Even if the district court could have considered Mr. Parnell’s claim that the

Arbitration Clause is unconscionable, the court still erred by voiding the

Arbitration Clause on that ground. (Op. Br. 26-28.) Mr. Parnell’s response

ignores binding precedent holding that the FAA preempts such an

unconscionability ground and does not explain how the Clause is so seriously

flawed as to be unconscionable.

1. The FAA Preempts Georgia’s Unconscionability Defense.

Mr. Parnell fails in his attempts to distinguish AT&T Mobility LLC v.

Concepcion, 131 S. Ct. 1740 (2011), and this Court’s decision in Pendergast v.

Sprint Nextel Corp., 691 F.3d 1224 (11th Cir. 2012)—both of which held that the

FAA preempts a state law unconscionability defense to an arbitration clause. Mr.

Parnell asserts that Concepcion preempts state law only in the narrow context

where the law “applies only to arbitration or derives its meaning from the fact an

arbitration agreement is at issue.” (Resp. Br. 17.) But he overlooks Concepcion’s

holding that even a generally applicable law is preempted if it “would have a

disproportionate impact on arbitration agreements.” Concepcion, 131 S. Ct. at

1747. The question under Concepcion is thus whether the state law defense at


9

issue either derives its meaning from the fact that arbitration is at issue or would

have a disproportionate effect on arbitration agreements. Id.

Under Concepcion, therefore, it is not possible to apply substantive

unconscionability doctrine even-handedly to arbitration clauses. The reason is that

to apply substantive unconscionability doctrine, a court necessarily has to base its

decision on the content of the contractual provision at issue, which when applied to

arbitration clauses will necessarily focus on matters that are either unique to

arbitration or that appear disproportionately in arbitration agreements.

Consequently, the Fourth Circuit has recognized that Concepcion “was not merely

an assertion of federal preemption, but also plainly prohibited application of the

general contract defense of unconscionability to invalidate an otherwise valid

arbitration agreement.” Muriithi v. Shuttle Express, Inc., 712 F.3d 173, 180-81

(4th Cir. 2013). CashCall cited Muriithi (Op. Br. 26); Mr. Parnell ignores it.

Looking at the specific grounds on which Mr. Parnell relies to argue that the

Arbitration Clause is unconscionable reveals that his arguments are grounded in

the fact that an arbitration clause is at issue. Mr. Parnell seeks to void the Clause

on the ground that the arbitral forum it designates supposedly does not exist; that

the arbitral procedural rules supposedly do not exist; that requiring arbitration

would allow CashCall to avoid regulation. (Resp. Br. 22.) All of those arguments

“derive their meaning from the fact that an agreement to arbitrate is at issue,” and


10

would “disproportionate[ly] impact” arbitration agreements, Concepcion, 131 S.

Ct. at 1746-47, despite the fact that they are “cast as an application of

unconscionability doctrine.” Cruz v. Cingular Wireless, LLC, 648 F.3d 1205, 1211

(11th Cir. 2011). Concepcion forecloses those arguments.

2. The Arbitration Clause Is Not Unconscionable.

Preemption aside, the district court still erred by concluding that the alleged

unavailability of the arbitral forum and rules meant that the entire Arbitration

Clause was necessarily unconscionable. (Doc. 25 at 65-67.) To invalidate a

contract as unconscionable under Georgia law, the court must assess whether it is

both procedurally and substantively unconscionable. See Jenkins v. First Am.

Cash Advance of Ga., LLC, 400 F.3d 868, 875-76 (11th Cir. 2005).

Here, the Arbitration Clause is not procedurally unconscionable. Mr. Parnell

relies heavily on the Inetianbor concurrence (which Mr. Parnell fails to

acknowledge is only a concurrence that the other two panel members did not join),

which expressed the view that Mr. Inetianbor’s arbitration clause was procedurally

unconscionable. (Resp. Br. 19.) The Inetianbor concurrence focused on the fact

that “it was impossible for Mr. Inetianbor to understand the provision of the

agreement to arbitrate specifying the Tribe, together with its set of rules, as the

arbitral forum,” because those rules, it turned out, do not exist. (Id.) But here, the

Arbitration Clause expressly allows the use of the AAA or JAMS, and states that


11

the rules of the organization that Mr. Parnell chooses will govern. Those rules are

available online for anyone to see. (See Op. Br. 33-36 & nn.10-12.) Because Mr.

Parnell’s Loan Agreement differs from Mr. Inetianbor’s, the concern animating the

concurrence does not apply here.

Nor is the Arbitration Clause substantively unconscionable. The Arbitration

Clause places all the burdens of arbitration on CashCall, not Mr. Parnell, by

requiring CashCall to pay all applicable fees and allowing Mr. Parnell the choice

of conducting the arbitration within thirty miles of his residence. (Op. Br. 6.) It

also gives Mr. Parnell the right to select the particular arbitral forum the parties

would use, including two of the most reputable arbitration organizations in the

country, the AAA or JAMS. (Id.) To rule as Mr. Parnell urges would be

tantamount to declaring that an arbitration before the AAA or JAMS, conducted

within thirty miles of a consumer’s residence, is unconscionable. Such an

unsupported holding would find Georgia alone in rejecting these esteemed

organizations.

In holding the Clause unconscionable, the district court relied largely on the

fact that one of the three arbitral fora designated in the Agreement is not available.

That conclusion proves too much. (Doc. 25 at 73-75) FAA § 5 establishes that

mere unavailability cannot equal unconscionability. That section expressly applies

when the parties’ choice of arbitrator is unavailable: “[I]f for any ... reason there


12

shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling

a vacancy, then upon the application of either party to the controversy the court

shall designate and appoint an arbitrator[.]” 9 U.S.C. § 5. When the arbitral forum

and rules are unavailable, Congress directed in § 5 that the solution is not to void

the entire Arbitration Clause, but to appoint substitutes. (See Op. Br. 44-46, 51-54;

Section III below.) To the extent Mr. Parnell argues, and the district court decided,

that Georgia unconscionability law could trump the explicit provisions of § 5, that

decision was erroneous. Concepcion held that the FAA preempts “state-law rules

that stand as an obstacle to the accomplishment of the FAA’s objectives.” 131 S.

Ct. at 1748; accord Hull v. Norcom, Inc., 750 F.2d 1547, 1551 (11th Cir. 1985)

(recognizing that any state law that “directly conflict[s] with ... the Federal

Arbitration Act” will “violate[] the supremacy clause”).

Mr. Parnell claims that the district court’s holding on unconscionability

rested not just on the unavailability of the arbitral forum and rules, but also on the

grounds that the Arbitration Clause was “merely an attempt to escape otherwise

applicable limits on interest rates” and that the “promise of a meaningful and fairly

conducted arbitration is a sham and an illusion.” (Resp. Br. 22.) To the extent that

conclusion rested on the argument that the Arbitration Clause is part of a scheme to

evade state limits on interest rates in the Loan Agreement as a whole, Buckeye

Check Cashing and Prima Paint foreclose it. Those cases squarely hold that an


13

arbitration clause cannot be voided on the ground that the clause is housed within a

contract that is illegal or skirts applicable substantive laws, including usury laws.

In Buckeye Check Cashing, the Supreme Court rejected such an argument based

squarely on interest rates that exceeded Florida’s usury laws, concluding that it is

“irrelevant” that the contract was “illegal and void under Florida law.” 546 U.S. at

446, 126 S. Ct. at 1209 (quotations omitted); see Prima Paint, 388 U.S. at 404, 87

S. Ct. at 1806. Although CashCall invoked both cases (Op. Br. 21-23), Mr. Parnell

ignores those cases in arguing that this Court can even consider whether the Loan

Agreement is part of an “attempt to escape otherwise applicable limits on interest

rates.” (Resp. Br. 22.) That is a question about whether the Loan Agreement is

legal, which was not properly before the district (or any) court.

The premise of both the district court’s and Mr. Parnell’s conclusion that the

Arbitration Clause is a “sham” or an “illusion” (Resp. Br. 22; Doc. 25 at 78) is that

the designated forum is not available. But a contractual forum is available—the

AAA or JAMS—so there is no basis for concluding that the Arbitration Clause is

illusory. The sole basis for the district court’s “sham and an illusion” finding is a

decision in a different case (Jackson) which like Inetianbor addressed an

arbitration clause that did not allow the parties to use the AAA or JAMS. (Doc. 25

at 78.) There is no basis for importing the Jackson court’s finding to this distinct


14

Clause. (See Part I.C below.) Even if there were some basis to claim bias as to a

tribal arbitrator, none exists as to the AAA or JAMS.

Furthermore, as a matter of law, Mr. Parnell cannot avoid arbitration by

alleging bias before arbitration has even begun. For this reason, courts consistently

hold that they “cannot entertain an attack upon the qualifications or partiality of

arbitrators until after the conclusion of the arbitration and the rendition of an

award.” Michaels v. Mariforum Shipping, S.A., 624 F.2d 411, 414 n.4 (2d Cir.

1980) (emphasis added); accord Savers Prop. & Cas. Ins. Co. v. Nat’l Union Fire

Ins. Co. of Pittsburg, 748 F.3d 708, 714 (6th Cir. 2014) (same); Gulf Guar. Life

Ins. Co. v. Conn. Gen. Life Ins. Co., 304 F.3d 476, 490 (5th Cir. 2002) (same);

Travelers Ins. Co. v. Davis, 490 F.2d 536, 541-42 (3d Cir. 1974) (same). The

district court erred by considering any bias ground.

Thus, regardless of the precise grounds for the district court’s finding of

unconscionability, the courts must still enforce the Delegation Provision and the

Arbitration Clause. Ultimately, Mr. Parnell claims that this Court must affirm that

the Arbitration Clause is unconscionable, even though it requires CashCall to pay

all arbitrator and filing fees, allows Mr. Parnell to choose arbitration within thirty

miles of his residence, and before the AAA or JAMS using those entities’

respective rules. (Doc. 3-2 at 5-6.) This Court should reject this extraordinary

request and reverse with directions to compel arbitration.


15

C. Inetianbor and Jackson Are Irrelevant To This Case.

Mr. Parnell claims that this Court’s decision in Inetianbor v. CashCall, Inc.,

768 F.3d 1346 (11th Cir. 2014), conclusively holds that the Arbitration Clause here

is unconscionable. (Resp. Br. 18-20.) There are two fatal errors in this assertion:

(1) Mr. Parnell cites only the non-binding concurrence in Inetianbor—not the

majority opinion; and (2) both Inetianbor and the Seventh Circuit’s decision in

Jackson v. Payday Financial, LLC, 764 F.3d 765 (7th Cir. 2014), involved

arbitration clauses significantly different from the one that Mr. Parnell signed. For

these reasons, Inetianbor and Jackson are not applicable here, and they do not

change the conclusion that the Arbitration Clause is enforceable.

Mr. Parnell asserts that in Inetianbor, “this Court went out of its way to

address the unconscionability of the exact same Arbitration Agreement” and

concluded that it was “a sham and unconscionable.” (Resp. Br. 18.) Mr. Parnell

then spends two pages quoting verbatim from Inetianbor before again arguing that

“this very Court found any fact finder would reach the same result” as Jackson.

(Resp. Br. 19-21.) Mr. Parnell misreads Inetianbor: all of his citations and

quotations come from the concurrence, which the other judges did not join and

which was not part of the majority opinion or rationale. Compare Inetianbor, 768

F.3d at 1346 (Martin and Hinkle, JJ.), with id. at 1354 (Restani, J., concurring).

The Inetianbor majority never mentions unconscionability. Id.


16

In any event, Inetianbor and the Seventh Circuit’s Jackson opinion are

irrelevant here. Those cases both dealt with an arbitration clause that differed

significantly from Mr. Parnell’s—a fact that Mr. Parnell also ignores. In both

Jackson and Inetianbor, the borrower had agreed that arbitration would be

conducted only by either “(i) a Tribal Elder, or (ii) a panel of three (3) members of

the Tribal Council.” Jackson, 764 F.3d at 769; Inetianbor v. CashCall, Inc., 962 F.

Supp. 2d 1303, 1305 (S.D. Fla. 2013). But Mr. Parnell’s Arbitration Clause

explicitly permits Mr. Parnell to choose arbitration before the AAA or JAMS (or

any other entity agreed upon by the parties), and does not mention use of a Tribal

Elder or Tribal Council members as the arbitrator. (Doc. 3-2 at 5.) It certainly

would not be unconscionable for those well-respected and frequently-used

arbitration organizations to hear this dispute. (See Op. Br. 31-33 & n.9; Section II

below.)4

II. Like The District Court, Mr. Parnell Fails To Show That A Designated Arbitral Forum Is Unavailable.

CashCall’s opening brief demonstrated that the district court erred in finding

the designated arbitral forum to be unavailable because the Arbitration Clause

4 Jackson also is unpersuasive because it applied an outdated common-law

“reasonableness” test to gauge the validity of the arbitration clause there. See 764 F.3d at 777. This Circuit explicitly rejects that test. See Sam Reisfeld & Son, 530 F.2d at 680-81 (holding that the “reasonableness” test is not “applicable to arbitration clauses” because “the enforceability of [an] arbitration clause ... is governed exclusively by the explicit provisions of the [FAA]”).


17

specifies that the parties may arbitrate before the AAA, JAMS, “or an arbitration

organization agreed upon by [Mr. Parnell] and [CashCall].” (Doc. 3-2 at 5.) See

Chitoff, No. 0:14-cv-60292, slip op. at 2. There is no question that the AAA and

JAMS are available—or that some other reputable arbitration organization is

available. That is all the Arbitration Clause requires.5

Mr. Parnell’s responses do not alter this simple logic. Indeed, he does not

defend most of the grounds upon which the district court relied. Specifically, Mr.

Parnell does not defend the district court’s holding that its conclusion that the tribal

court lacks jurisdiction somehow renders the distinct arbitration fora unavailable.

(Doc. 25 at 73; Op. Br. 34 (refuting this ground).) Similarly, Mr. Parnell does not

defend the district court’s conclusion that the failure of the Arbitration Clause to

designate the arbitrator in advance renders it unenforceable. (Doc. 25 at 76; Op.

Br. 35-38 (refuting this ground).) Finally, Mr. Parnell does not defend the district

court’s conclusion that CRST law is unavailable or that somehow that

5 Chitoff also held that the plaintiff there had “provided no evidence that the

Cheyenne River Sioux is unavailable as an arbitration forum,” but merely “attempted to rely upon citations to other cases where the forum has been found to be unavailable in lieu of providing his own evidence.” Chitoff, No. 0:14-cv-60292, slip op. at 2-3. This same rationale applies to Mr. Parnell: having never attempted to arbitrate with the AAA or JAMS, he cannot show that they are unavailable. Even assuming arguendo that tribal arbitration were required (it is not), Mr. Parnell never attempted to arbitrate before that forum, either. In other words, Mr. Parnell has completely failed to satisfy his burden of proving unavailability. Id.


18

unavailability vitiates the Arbitration Clause. (Doc. 25 at 76-77; Op. Br. 39-44

(refuting this ground).)

Mr. Parnell’s defenses of the remainder of the district court’s conclusions

are infirm. First, Mr. Parnell repeats the district court’s conclusion that the

provision allowing use of the AAA or JAMS does not matter because that

provision states that the rules of those organizations will apply if they do not

contradict CRST law or the terms of the Arbitration Clause. (Resp. Br. 23.)

CashCall has already explained why that argument fails. (Op. Br. 39-43.) Neither

the district court nor Mr. Parnell point to any conflict between the procedural rules

of the AAA or JAMS and CRST law, because none exists. Further, if no tribal

consumer dispute rules exist, there would be no conflict between those rules and

the selected arbitration organization’s rules or the Arbitration Clause, so that those

rules and the terms of the Clause would control under the Clause’s plain terms.

(Doc. 3-2 at 5.) Mr. Parnell’s argument is thus meritless. In any event, Mr. Parnell

directs these challenges to the wrong forum: under binding Supreme Court and

Circuit precedent, any potential conflict between CRST law and the designated

organization’s procedural rules—and Mr. Parnell identifies none—is an issue for

the arbitrator to decide.6 (Op. Br. 40.)

6 Organizations like the AAA are not unaccustomed to addressing alleged

conflicts between their rules and tribal law. See, e.g., Oglala Sioux Tribe v. C&W Enterprises, Inc., 542 F.3d 224, 231-32 (8th Cir. 2008) (arbitrator resolved conflict


19

Second, Mr. Parnell argues that “even if JAMS or AAA were able to conduct

an arbitration within 30 miles of Mr. Parnell’s home, this arbitration proceeding

would be required to still be conducted in accordance with the consumer dispute

rules of the Cheyenne River Sioux Tribe.” (Resp. Br. 23.) The district court did

not rely on this argument (see Doc. 25), and for good reason. The Arbitration

Clause expressly states that if the parties select the AAA, JAMS, or another

arbitration organization “[t]he arbitration will be governed by the chosen

arbitration organization’s rules and procedures applicable to consumer disputes,

to the extent that those [organizations’] rules and procedures do not contradict

either the law of the Cheyenne River Sioux Tribe or the express terms of this

Agreement to Arbitrate.” (Doc. 3-2 at 5 (emphasis added).) The Arbitration

Clause thus does not require the parties to use the CRST’s consumer dispute rules

if the parties use the AAA, JAMS, or another organization to oversee the dispute.

Third, Mr. Parnell is wrong to argue that “[i]f no consumer dispute rules

exist in the [CRST], and no regulations regarding arbitration exist in the [CRST],

then an arbitration forum is still unavailable under the terms of the Arbitration

Agreement because holding an arbitration which complies with the terms of the

Arbitration Agreement is fundamentally impossible.” (Resp. Br. 24.) Private

arbitration before the AAA or JAMS is fully consistent with CRST law: As this

between the AAA’s jurisdictional rules and the tribe’s assertion of sovereign immunity).


20

Court acknowledged in Inetianbor, the CRST has stated that “‘[a]rbitration, as in a

contractual agreement, is permissible’ [under CRST law], even though the tribal

court does not involve itself in the arbitration process.” 768 F.3d at 1348-49.

Fourth, Mr. Parnell ignores that “regulations regarding arbitration” to

govern this dispute exist, because the Arbitration Clause is covered by the FAA (as

the district court correctly found). (Doc. 25 at 64.) Contrary to Mr. Parnell’s

implication that arbitration in this case must take place using some unknown or

complicated procedures in a foreign land, it will not. The Arbitration Clause

authorizes arbitration in Georgia (within 30 miles of Mr. Parnell’s residence)

before a neutral arbitrator appointed by the AAA or JAMS, or another reputable

organization. This Court and others in this Circuit enforce similar clauses

routinely. See, e.g., Brown v. ITT Consumer Fin. Corp., 211 F.3d 1217, 1222

(11th Cir. 2000) (requiring district court to appoint substitute arbitrator using

JAMS); Supply Basket, Inc. v. Global Equip. Co., No. 1:13-CV-3220-RWS, 2014

WL 2515345, at *3 (N.D. Ga. June 4, 2014) (compelling arbitration before AAA);

Wallace v. Rick Case Auto, Inc., 979 F. Supp. 2d 1343, 1352-53 (N.D. Ga. 2013)

(same); FusionStorm, Inc. v. Presidio Networked Solutions, Inc., 871 F. Supp. 2d

1345, 1356-57 (M.D. Fla. 2012) (compelling arbitration before JAMS). There is

no reason not to do so here.


21

Thus, each of the grounds upon which Mr. Parnell relies to justify the district

court’s decision fails under scrutiny. Furthermore, considering Mr. Parnell’s

arguments as a whole confirms that they are inconsistent with federal arbitration

law. Federal law requires that “any doubts concerning the scope of arbitral issues

should be resolved in favor of arbitration.” Solymar Invs., Ltd. v. Banco Santander

S.A., 672 F.3d 981, 988-89 (11th Cir. 2012). In other words, courts should not

deny arbitration “unless it may be said with positive assurance that the arbitration

clause is not susceptible of an interpretation that covers the asserted dispute.”

United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-

83, 80 S. Ct. 1347, 1353 (1960); accord U.S. Nutraceuticals, LLC v. Cyanotech

Corp., No. 13-12863, --- F.3d ---, 2014 WL 5471913, at *3 (11th Cir. Oct. 30,

2014) (same). Mr. Parnell’s arguments depend upon ignoring key provisions of

the Arbitration Clause and asking this Court to interpret purported contractual

ambiguities in a manner designed to defeat arbitration. That is the opposite of how

the FAA requires courts to interpret arbitration agreements. Id.


22

III. Mr. Parnell Fails To Explain Why The Unavailability Of One Designated Forum—Where The Arbitration Clause Expressly Provides For Other Fora—Invalidates The Entire Clause.

For the reasons explained in CashCall’s opening brief, the use of a tribal

forum is not an integral part of the Arbitration Clause.7 (Op. Br. 44-51.) But this

Court need not even reach that question. The “integral part” test only applies when

the fora designated by an arbitration agreement are unavailable, and the court asks

whether those fora are “integral” to the agreement such that the court is not

permitted to compel arbitration before a forum not expressly provided for in the

parties’ contract. That is not this case: the Arbitration Clause here allows the

parties to arbitrate before the AAA or JAMS (or any other organization the parties

agree upon), so there is no failure of the chosen forum to trigger the “integral part”

issue in the first place.

For that reason, Parnell’s reliance upon this Court’s decision in Inetianbor to

hold the tribal forum integral to the arbitration clause there is misplaced. As

discussed above, the arbitration clause there specified only a tribal arbitration

forum. 768 F.3d at 1353-54. It did not specify that Mr. Inetianbor could select the

7 For the reasons explained in CashCall’s opening brief (at 51-54), the FAA

contains no “integral part” proviso to the obligation of courts to appoint a substitute arbitrator if the designated forum is unavailable. CashCall acknowledges, however, that in Inetianbor this Court held that the law of this Circuit is to apply the integral part test. 768 F.3d at 1350. CashCall has petitioned the full Court to rehear Inetianbor en banc to reconsider the Circuit’s law on this point. See Appellant CashCall, Inc.’s Petition for Rehearing En Banc, Inetianbor v. CashCall, Inc., No. 13-13822 (11th Cir. Oct. 23, 2014).


23

AAA or JAMS as the arbitral forum. Here, by contrast, the Arbitration Clause

merely allows the parties to arbitrate before a tribal representative but does not

require it, and it allows Mr. Parnell to choose the AAA or JAMS, or the parties to

select any other arbitral organization of their choosing. (Doc. 3-2 at 5.) Given the

fundamental differences between the two clauses, Mr. Parnell’s reliance on

Inetianbor is misplaced.

Inetianbor’s holding that the required tribal forum there was integral to the

arbitration clause thus does not apply here. The fact that the Arbitration Clause

selects the CRST’s substantive law as governing does not change that fact. In

Inetianbor, this Court relied largely on the fact that the arbitration clause there

designated a tribal “forum” as the exclusive forum to hold that the “forum” was

integral. 768 F.3d at 1350-51 (references the importance of the designated

“forum” or “forum selection” to the clause). Here, the Arbitration Clause does not

reference the tribe as the exclusive forum, as it allows the use of the AAA or

JAMS. As CashCall stated in its opening brief, “[g]iven this list of potential

arbitrators and rules” in Mr. Parnell’s Arbitration Clause, “one contractual option

... cannot possibly be exclusive and therefore integral.” (Op. Br. 50-51.) Mr.

Parnell never responds to that simple logic.

Mr. Parnell implies that the fact that the Arbitration Clause states that the

arbitration will be governed by CRST law renders it unenforceable because that


24

“refer[ence]” to the “Tribe” somehow shows that a tribal forum was essential to the

Clause. (Resp. Br. 23-24, 28-29.) That is simply incorrect. A tribal forum is not

any more “integral” to an arbitration agreement stating that tribal law governs than

a Georgia forum would be “integral” to an agreement selecting Georgia law but

allowing the parties to sue in a non-Georgia forum. Courts routinely enforce such

provisions because the law permits parties to designate a forum that is not within

the jurisdiction whose laws will govern the dispute. The Supreme Court, for

example, enforced a choice-of-law provision requiring an arbitrator in France to

apply the law of the State of Illinois. Scherk v. Alberto-Culver Co., 417 U.S. 506,

516, 94 S. Ct. 2449, 2455-56 (1974); see also Lipcon v. Underwriters at Lloyd's,

London, 148 F.3d 1285, 1292 (11th Cir. 1998). There is no principled distinction

between that and an agreement that the AAA or JAMS arbitrator sitting in Georgia

must apply CRST law.

For that reason, the Supreme Court has held that “the choice-of-law question

... must be decided in the first instance by the arbitrator.” Vimar Seguros y

Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 541, 115 S. Ct. 2322, 2330

(1995). Indeed, courts enforce choice-of-law clauses that select the laws of other

nations and do so “even if the substantive law applied in arbitration potentially

provides reduced remedies (or fewer defenses) than those available under U.S.

law.” Lindo v. NCL (Bahamas), Ltd., 652 F.3d 1257, 1269 (11th Cir. 2011). As


25

this Court pays such respect to selections of foreign law, so it should respect

selection of the law of Indian tribes, “‘domestic dependent nations’ that exercise

‘inherent sovereign authority.’” Michigan v. Bay Mills Indian Cmty., 134 S. Ct.

2024, 2030 (2014). To be clear, tribal law does not extinguish any remedies Mr.

Parnell may have against CashCall, as it provides a robust set of laws that Mr.

Parnell could invoke if CashCall committed a legal wrong against him. See

Appendix of Legal Authority Referenced in Brief of Appellant CashCall, Inc.,

Filed Pursuant to FRAP 32.1(b); Frank Pommersheim, South Dakota Tribal Court

Handbook (rev. ed. 2006), available at http://ujs.sd.gov/media/docs/IndianLaw

%20Handbook.pdf.8

As CashCall noted (Op. Br. 48 n.15), the CRST courts often employ

“traditional contractual principles,” including Restatement principles, to interpret

contracts. White Wolf v. Myers, 34 Indian L. Rep. 6102, 6106 (CRST Ct. App.

2007); Bank of Hoven v. Long Family Land & Cattle Co., 32 Indian L. Rep. 6001,

6004 (CRST Ct. App. 2004). (Docs. 18-3, 18-4.) That the Arbitration Clause

8 Acknowledging that CRST law is available by citing to it, Mr. Parnell points

to a single section of the tribal law and order code that, he claims, imposes an 18% interest rate cap under CRST law. (Resp. Br. 24 n.3 (citing § 3-4-52 of the CRST Law & Order Code).) The CRST’s subsequent adoption of § 16-3-112 of the Tribal Commercial Code superseded that provision. See Appendix of Legal Authority Referenced in Brief of Appellant CashCall, Inc., Filed Pursuant to FRAP 32.1(b), Ex. D. In any case, under the Loan Agreement and the FAA, the question whether Mr. Parnell’s loan violates tribal law is a question for the arbitrator. (Doc. 3-2 at 5.)


26

designates CRST law to apply thus has no effect on this Court’s obligation to

enforce the Clause and order that the district court compel arbitration.

At the end of his brief, Mr. Parnell discusses the general rule that courts are

to look to the arbitration agreement when determining whether to compel

arbitration, “not to general policy goals,” and 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.” (Resp. Br. 28-29 (quoting Doe, 657 F.3d at 1214).)

CashCall urges this Court to apply that rule: the language of the Arbitration Clause

expressly authorizes Mr. Parnell to choose arbitration before the AAA or JAMS,

using the rules of those organizations. (Doc. 3-2 at 5.) The reading below

“twist[ed] the language of the contract” by giving it the unnatural construction that

it authorized the AAA or JAMS only to administer an arbitration that the Tribe

would actually conduct. Even Mr. Parnell does not really defend that construction.

Rather, he repeatedly ignores the AAA and JAMS language. In this case, federal

policy and the parties’ Agreement point in the same direction: the district court

should have compelled arbitration before the AAA or JAMS, or any other arbitral

organization upon which the parties could agree.

IV. For Preservation Purposes, CashCall Respectfully Submits That The Inetianbor Case Was Incorrectly Decided.

Because of the key factual differences between this case and Inetianbor

detailed above, this Court need not disagree with Inetianbor to reverse.


27

Nonetheless, Inetianbor is incorrect as to a number of points. Inetianbor

distinguished other authority holding that an unavailable contractual forum was not

integral to the arbitration clause on the ground that those cases only designated

procedural rules, not a forum, unlike here. 768 F.3d at 1351. But that is not what

those cases said. Brown, for example, held that the “there is no evidence that the

choice of the NAF as the arbitration forum was an integral part of the agreement to

arbitrate.” Brown, 211 F.3d at 1222 (emphasis added). Indeed, as one of the cases

upon which CashCall relies noted, “[a] number of other courts of appeals have

decided that a clause which adopts the rules of an organization ... implicitly

chooses that organization as the, or a, forum.” Reddam v. KPMG LLP, 457 F.3d

1054, 1060 (9th Cir. 2006) (citing, among others, Brown, 211 F.3d at 1222, and

Luckie v. Smith Barney, Harris Upham & Co., Inc., 999 F.2d 509, 510-11, 513-14

(11th Cir. 1993) (per curiam)). There is thus no principled distinction between the

selection of the forum itself and the selection of its rules.

Inetianbor also failed to give effect to the severance provision in Mr.

Inetianbor’s agreement. 768 F.3d at 1352. As CashCall has explained here, the

Severance Provision “answers the question before this Court: if any provision of

the Arbitration Clause cannot be implemented (including the use of a particular

arbitral forum), ‘the remainder shall remain in effect.’ That ‘remainder’ includes

the overarching agreement stated in the first sentence of the Arbitration Clause:


28

‘[A]ny dispute you have with Western Sky or anyone else under this loan

agreement will be resolved by binding arbitration.’” (Op. Br. 47 (citations

omitted).) Inetianbor responded that a severance provision does not apply to “an

essential part” of the contract. 768 F.3d at 1353. But that overlooks that whether

a provision is “essential” is a matter of contractual intent, and a severance

provision makes clear that the parties did not view any part of the contract as

essential to it. “[I]f the [tribal forum] was so integral as to not be severable, why

did [the parties] include an explicit severability clause in the arbitration provision

that failed to except out” the tribal forum provision? Puleo v. Chase Bank USA,

N.A., 605 F.3d 172, 190 n.3 (3d Cir. 2010). For these reasons, too, Inetianbor

should not control this case.

CONCLUSION

CashCall respectfully requests that this Court reverse the district court’s

order refusing to compel arbitration and remand to the district court with

instructions that the case be sent to arbitration either (a) before the AAA, JAMS, or

any other arbitral forum agreed upon by the parties; or (b) before an alternative

arbitral forum appointed under FAA § 5.

Respectfully submitted this 24th day of November, 2014.


29

PARKER HUDSON RAINER & DOBBS LLP

By:/s/ William J. Holley, II William J. Holley, II Georgia Bar No. 362310 Nancy H. Baughan Georgia Bar No. 042575 Erin M. Moore Georgia Bar No. 590819

1500 Marquis Two Tower 285 Peachtree Center Avenue, N.E. Atlanta, GA 30303 Telephone: (404) 523-5300 Facsimile: (404) 522-8409

JENNER & BLOCK LLP Katya Jestin Neil M. Barofsky Brian J. Fischer

919 Third Avenue New York, NY 10022-3908 Telephone: 212-891-1600 Facsimile: 212-909-0608

JENNER & BLOCK LLP Barry Levenstam Daniel T. Fenske

353 N. Clark Street Chicago, IL 60654-3456 Telephone: (312) 222-9350 Facsimile: (312) 527-0484

Attorneys for Defendant-Appellant CashCall, Inc.


30

CERTIFICATE OF COMPLIANCE

I certify that this reply brief complies with the type-volume limitation set

forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 6,940 words, excluding

the parts of the brief exempted by Fed. R. App. P 32(a)(7)(B)(iii). This brief

complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-

style requirements of Fed. R. App. P. 32(a)(6). It has been prepared in a

proportionally spaced typeface using Microsoft Word in 14 point Times New

Roman font.

/s/ William J. Holley, II William J. Holley, II


31

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on November 24, 2014, I electronically filed the

foregoing Reply Brief with the Clerk of the Court by using the CM/ECF system. I

also further certify that the foregoing document was sent by United States Mail to:

James W. Hurt, Jr. HURT STOLZ, P.C. 345 W. Hancock Ave.

Athens, GA 30601

Christopher N. Armor ARMOR LAW, LLC

303 Perimeter Center North, Suite 300 Atlanta, GA 30346

ATTORNEYS FOR APPELLEE

/s/ William J. Holley, II

William J. Holley, II


in the united states court of appeals for the … · parnell now argues that he may belatedly...

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