Second Circuit Briefs in Seneca Nation of Indians v. State of New York [gaming dispute arbitration award]


Seneca Brief

New York Brief


Lower court materials here.

Federal Court Rejects Seneca Challenge to Arbitrators’ Decision

Here are the materials in Seneca Nation of Indians v. State of New York (W.D. N.Y.):





Prior post, including petition and arbitrators’ opinions, here.

Seneca Nation Petition to Vacate Arbitration Award Favoring State of New York on Revenue Sharing

Here are the materials in Seneca Nation of Indians v. State of New York (W.D. N.Y.):

1-1 Motion to Vacate

2-3 Final Award

2-4 Partial Final Award

2-5 Washburn Dissent

Tribal Appellate Court Affirms Immunity Defense in Comanche Gaming Dispute

Here is the opinion in CDST-Gaming v. Comanche Nation (Ct. Indian Appeals):

CDST Gaming v. Comanche Nation

Lower court decision here.

Related posts here, here, and here.

Fourth Circuit Briefs in Arbitration Case Arising from the Wreckage of Western Sky

Here are the briefs in Hayes v. Delbert Services Corp.:

Hayes Brief

Delbert Services Brief

Amicus Brief

Lower court materials here.

Federal Court Orders Arbitration in Western Sky/CashCall Payday Lending Dispute

Here are the materials in Kemph v. Reddam (N.D. Ill.):

51 CashCall Motion to Dismiss-Compel Arbitration

58-1 Plaintiffs’ Response

91 DCT Order

An excerpt:

Plaintiffs’ argument that the loan agreements are unconscionable because JAMS and AAA would never agree to preside over the arbitration is speculative and unconvincing. (See Resp. at 2—3, 13—14; Sur-Reply at 1—3.) Although the arbitration agreements provide that “the arbitrator will apply the laws of the Cheyenne River Sioux Tribal Nation,” (Agreement at 5), the arbitrator, once chosen, would have the authority to determine whether that choice-of-law provision is valid. See Nitro-Lift Technologies, L.L.C. v. Howard, 133 S. Ct. 500, 503 (2012) (holding that once the court determines the validity of the arbitration provision, the remainder of the contract is left for the arbitrator to decide); Vimar Seguros Y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 541, 115 S. Ct. 2322, 2330 (1995)(ruling that the arbitrator should decide choice-of-law in the first instance); CNA Reinsurance Co. v. Trustmark Ins. Co., No. 01 C 1652, 2001 WL 648948, at *6 (N.D. Ill. June 5, 2001); see also Prostyakov v. Masco Corp., 513 F.3d 716, 725 (7th Cir. 2008)(upholding the arbitrator’s interpretation of the choice-of-law clause because it was not the court’s “place to determine whether [the arbitrator’s] interpretation was correct as a matter of law”). This is particularly true because, as discussed, the loan agreements explicitly provide that the arbitrator can decide “any issue concerning the validity, enforceability, or scope of . . . the Arbitration agreement,” which includes [18]  the enforceability of the choice-of-law clause. (Agreement at 4.) Therefore, potential arbitrators need not refuse the dispute in order to comply with internal due process standards. Nor would they be required to violate Illinois public policy by applying tribal law if they chose to accept it. They could instead accept the dispute, find the choice-of-law provision is unenforceable, and determine what default law should apply.

Western Sky-Related Debt Collector Successfully Compels Arbitration in Virginia Case

Here are the materials in Hayes v. Delbert Services Corp. (E.D. Va.):

26 Delbert Motion

30 Opposition

31 Reply

38 DCT Order

An excerpt:

This matter cornes before the Court on the defendant’s motion [2]  to dismiss the amended complaint or, alternatively, to compel arbitration. (Dk. No. 30.) The plaintiffs, borrowers from internet payday lender Western Sky Financial, LLC, brought this action on behalf of themselves and others similarly situated against Delbert Services Corporation, a third-party debt collecter. The plaintiffs allege Delbert violated the Fair Debt Collection Practices Act (“FDCPA”) and the Telephone Consumer Protection Act (“TCPA”) in the course of its collection efforts. Delbert moves to dismiss based on the Loan Agreements’ forum-selection clause or on the basis of the tribal exhaustion doctrine. Alternatively, Delbert moves to compel arbitration. 

The forum-selection clause does not reach third-party debt collectors such as Delbert, and the doctrine of tribal exhaustion does not apply under the facts of this case. The language of the arbitration agreement, however, covers disputes with third-party debt collectors.

Accordingly, the Court GRANTS the motion to compel arbitration under the terms of the Loan Agreement and DISMISSES the claim without prejudice.

New Scholarship on Indian Country Payday Lenders and Arbitration Clauses

Here is “The Current State of Arbitration Clauses Within Article 8 Native American Tribal Contracts: An Examination of Binding Arbitration Contracts in Native American Payday Lending,” published in Arbitration Brief.

Federal Court Sends Coeur d’Alene Tribe Poker Dispute to Arbitration

Here are the updated materials in State of Idaho v. Coeur d’Alene Tribe (D. Idaho):

33 Coeur d’Alene Tribe Reply

35 DCT Order

Prior briefs here.