Here are the materials so far in Hengle v. Asner (E.D. Va.):
Where an arbitration agreement contains a separate “delegation provision” that reserves for an arbitrator the authority to decide any disputes concerning arbitrability, does Section 2 of the Federal Arbitration Act require a court to decide any challenge to that provision’s validity before the court may proceed to address whether the parties’ underlying dispute is arbitrable?
Lower court materials here.
Here is the opinion:
From the court syllabus:
Plaintiffs Jessica Gingras and Angela C. Given borrowed money from Plain Green, LLC, an online lending operation owned by the Chippewa Cree Tribe of the Rocky Boy’s Indian Reservation in Montana. The terms of their loan agreements provide for interest rates well in excess of caps imposed by Vermont law. Gingras and Given sued, alleging violations of Vermont and federal law. They seek an injunction against tribal officers in charge of Plain Green and an award of money damages against other Defendants.
Some Defendants moved to dismiss, arguing that tribal sovereign immunity barred the suit. All Defendants moved to compel arbitration under the terms of the agreements. The district court (Geoffrey W. Crawford, Judge) denied both motions. We hold that tribal sovereign immunity does not bar this suit because Plaintiffs may sue tribal officers under a theory analogous to Ex parte Young for prospective, injunctive relief based on violations of state and substantive federal law occurring off of tribal lands. We further hold that the arbitration clauses of the loan agreements are unenforceable and unconscionable.
Briefs and link to lower court materials here.
We posted briefs here.