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

16 Opposition

20 Reply

36 DCT Order

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.

En Banc Petition in Jackson v. Payday Financial LLC

Here:

En banc Petition

Clarkson Amicus Brief

Panel materials here.

Seventh Circuit Rules against Western Sky in Jackson v. Payday Financial LLC — A Warning to Indian Country

Here is the opinion:

CA7 Opinion

Based on these findings, we now conclude that the Plaintiffs’ action should not have been dismissed because the arbitral mechanism specified in the agreement is illusory. We also cannot accept the Loan Entities’ alternative argument for upholding the district court’s dismissal: that the loan documents require that any litigation be conducted by a tribal court on the Cheyenne River Sioux Tribe Reservation. As the Supreme Court has explained, most recently in Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008), tribal courts have a unique, limited jurisdiction that does not extend generally to the regulation of nontribal members whose actions do not implicate the sovereignty of the tribe or the regulation of tribal lands. The Loan Entities have not established a colorable claim of tribal jurisdiction, and, therefore, exhaustion in tribal courts is not required. Accordingly, we cannot uphold the district court’s dismissal on this alternative basis.

Primary briefs here. Supplemental briefs here.

As should be expected by this time, payday lending in Indian country is creating bad law for tribal interests. This case involved a privately owned payday lending operation. Tribally-owned operations will be scrambling to distinguish themselves from this case. Particularly troublesome is the holding and (hopefully) dicta from the opinion that suggests tribal courts have no jurisdiction involving off-reservation lending operations, even though the operation is based in Indian country and even though the lending instrument includes a forum selection clause naming a tribal forum.

My initial recommendations to tribal leaders and counsel — shut down on-reservation-based payday lending operations operated privately immediately. My second recommendation is to ensure that tribal regulations of tribally owned payday lending operations are independent and robust. In other words, tribes must be able to withstand the kind of searching inquiry into their regulatory scheme that the federal court did in this case. Can tribal sovereign lenders say that?

Seventh Circuit Supplemental and Amicus Briefs in Jackson v. Payday Financial (Western Sky Affiliates)

Here:

Jackson Supplemental Brief

Payday Financial Supplemental Brief

Federal Trade Commission Amicus Brief

Gavin Clarkson Amicus Brief [CA7 Order Denying Clarkson Motion: out of time]

Illinois Amicus Brief

Payday Financial Brief in Response to Amici TK

Prior briefs here, with supplemental briefing order.

Seventh Circuit Issues Limited Remand(?) in Jackson v. Payday Financial Appeal

Here is the order, which appears to be in response to letters from counsel for both parties on this case (materials here and here):

Jackson v. Payday Finanical (7th Cir Order)

Jackson Letter Payday Financial Response

The appeal remains pending until the district court answers the questions posed by the panel. Briefs and lower court materials remain here.

Seventh Circuit Briefs in Challenge to Martin Webb Payday Lending Company’s Forum Selection Clause

Here are the briefs in Jackson v. Payday Financial LLC:

Jackson Opening Brief

PayDay Financial Answer Brief

Jackson Reply Brief

Lower court materials here.

 

Opening Seventh Circuit Brief in Challenge to Martin Webb Payday Lending Company’s Forum Selection Clause

Here is the opening brief in Jackson v. Payday Financial LLC:

Jackson Opening Brief

Lower court materials here.

Illinois Federal Court Upholds Payday Financial (Martin Webb) Forum Selection Clause

Here are the materials in Jackson v. Payday Financial (N.D. Ill.):

DCT Order Dismissing Jackson Complaint

Payday Financial Motion to Dismiss

Jackson Response

Payday Financial Reply

The forum, of course, is the Cheyenne River Sioux Tribal Court.

This case started in Illinois Circuit Court, and those materials are here.

Illinois Suit against On-Reservation Payday Lenders (Martin A. “Butch” Webb)

Here is the complaint in Jackson v. Payday Financial LLC (Ill. Cir.):

Jackson v Payday Financial Complaint

Here is a description of the defendant:

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