We posted the cert stage briefs here.
Lower court materials here.
District court materials here.
Indian country payday lenders
Fourth Circuit’s Decision in Moses v. CashCall
Here are the materials:
Amicus Brief — Bankruptcy Attys
Amicus Brief — Chapter 13 Trustees
An excerpt:
This bankruptcy appeal presents the issue of whether two claims, one for declaratory relief and one for money damages, asserted by debtor Oteria Moses in an adversary proceeding, are subject to arbitration. The bankruptcy court retained jurisdiction over the first claim and denied the motion of CashCall, Inc. to compel arbitration. With respect to the second claim, it made recommended findings of fact and conclusions of law, likewise to retain jurisdiction over the claim and deny the motion to compel arbitration. On appeal from the bankruptcy court, the district court affirmed the bankruptcy court’s denial of the motion to compel arbitration as to the first claim and, itself, denied the motion to compel arbitration with respect to the second claim.On appeal, we hold, for the reasons given by Judge Niemeyer in Parts I, II.A, and III of his opinion, in which Judge Gregory joined, that the district court did not err in affirming the bankruptcy court’s exercise of discretion to retain in bankruptcy Moses’ first claim for declaratory relief. We also hold, however, that the district court erred in retaining in bankruptcy Moses’ claim for damages under the North Carolina Debt Collection Act and denying CashCall’s motion to compel arbitration of that claim. Judge Gregory and Judge Davis wrote separate opinions concurring in that judgment. Judge Niemeyer wrote a separate opinion on that issue, dissenting.
Accordingly, the judgment of the district court is affirmed in part and reversed in part, and this matter is remanded to the district court with instructions to grant CashCall’s motion to compel arbitration on Moses’ second claim for damages.
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
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.
Murphy v. Western Sky Financial & CashCall Complaint
Here:
Federal Court Interprets New Western Sky/CashCall Arbitration Language to Allow for Outside Arbitrator
Here are the materials in Williams v. CashCall (E.D. Wis.):
4 CashCall Motion to Dismiss or Compel Arbitration
An excerpt:
So why didn’t the court appoint an arbitrator in Jackson? The court there held that the arbitration provision (like the one signed by Ms. Walker) was void “because it provides that a decision is to be made under a process that is a sham from stem to stern.” 764 F.3d at 779. Not only was there no authorized representative of the Tribe to preside over the proceeding, “the Tribe has no rules for the conduct of the procedure.” Id. (emphasis in original). By providing the option of using the consumer dispute rules of the AAA or JAMS, Mr. Williams’s contract solves that problem. And by allowing the parties to use an arbitrator from either the AAA or JAMS systems, the bias concerns that the Jackson court had about using a Tribal member as the arbitrator, id. at 779-80, are eliminated.
Mr. Williams’s only argument as to why the arbitration provision is unenforceable is that it calls for the arbitrator to apply Tribal law, which he contends is law that does not exist. (ECF No. 16 at 9.) But that is not true, as evidenced by substantive Tribal law on contract disputes, including contract cases in the Tribe’s courts, and the Tribe’s Commercial Code, Rules of Civil Procedure, Constitution and By-Laws, and Law & Code. (ECF Nos. 12-4, 12-5, 12-6, 12-7, 12-8, 21.) Mr. Williams does not raise any of the procedural or substantive unconscionability concerns expressed by the court in Jackson.
The most reasonable reading of Mr. Williams’s loan agreement is that he has the option of choosing to arbitrate any claims that he has relating to his agreement before the AAA, JAMS, or another mutually acceptable organization, applying the consumer dispute rules of the selected administering organization and conducted by an arbitrator from the selected organization’s system. Therefore, unlike Ms. Walker, Mr. Williams is required to pursue his claims against CashCall in arbitration. His complaint shall be dismissed.
CashCall v Inetianbor is SCOTUSBlog Petition of the Day
Western Sky Financial v. Jackson Cert Stage Materials
Here:
Western Sky v Jackson Cert Petition
Questions presented:
I. Whether the validity of an arbitration clause is determined exclusively by the statutory requirements of the Federal Arbitration Act (“FAA”), as held by the First, Fourth, Fifth, and Eleventh Circuits – or by a common-law “reasonableness” test, as held by the Seventh Circuit below?
II. Whether a court may apply a state law defense in a manner that disfavors arbitration by voiding an entire arbitration clause merely because the contractually-designated arbitrator is unavailable, notwithstanding the FAA’s express directive to appoint a substitute arbitrator?
III. Whether the Seventh Circuit erroneously – and in conflict with the Second and Eighth Circuits – required a non-tribal-member’s physical entry onto the relevant Indian reservation in connection with a transaction with a tribal member before ordering tribal court exhaustion of judicial claims arising from the transaction?
Lower court materials here.
Federal Court Denies Western Sky-Related Debt Collector’s Arbitration Claims; Class Action under Fair Debt Collection Practices Act May Proceed
Here are the materials in Bopp v. Zenith Financial Network Inc. (D. Ariz.):
CashCall v. Inetianbor Cert Stage Briefs
Here:
Questions presented:
I. Whether there is a non-textual “integrality exception” to the mandatory requirement in the Federal Arbitration Act (“FAA”) that a substitute arbitrator “shall” be appointed by the court whenever the parties’ chosen arbitrator is unavailable for “any … reason”? 9 U.S.C. § 5.
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