[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-14097

________________________

D.C. Docket Nos. 1:09-md-02036-JLK; 1:08-cv-22463-JLK

In re: Checking Account Overdraft Litigation

1:09-md-02036-JLK

THOMAS LARSEN, et al., 

 Plaintiffs,

MELANIE L. GARCIA, 

CELIA SPEARS-HAYMOND, 

DELORES GUTIERREZ,

MARC MARTINEZ,

ALEX ZANKICH,

 Plaintiffs - Appellants,

 versus

CITIBANK FSB, et al.,

 Defendants,

WELLS FARGO BANK N.A., 

WACHOVIA BANK, N.A.,

WACHOVIA CORPORATION,

USCA11 Case: 19-14097 Date Filed: 04/07/2021 Page: 1 of 20
 Defendant - Appellee.

__________________________________________________________________

1:08-CV-22463-JLK

MELANIE L. GARCIA,

 Plaintiff - Appellant,

Versus

WACHOVIA BANK, N.A..,

 Defendant - Appellee.

__________________________________________________________________

1:09-cv-21680-JLK

CELIA SPEARS-HAMMOND, 

as an individual, and on behalf of all others similarly situated,

 Plaintiff - Appellant,

 versus

WACHOVIA CORPORATION,

WACHOVIA BANK N.A.,

 Defendants - Appellees.

________________________

Appeals from the United States District Court

for the Southern District of Florida

________________________

(April 7, 2021)

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Before WILSON, GRANT, and TJOFLAT, Circuit Judges.

WILSON, Circuit Judge: 

This case presents the question whether, in light of arbitration agreements 

contained in two contracts, the district court properly dismissed the claims of 

unnamed members of five class actions in favor of individual arbitration. The 

parties—on one side, a bank, and, on the other side, five classes made up of former 

and current customers of the bank—dispute the enforceability of arbitration clauses 

contained in their account agreements. After careful review, we find that 

arbitration is appropriate, and affirm the district court.

I. Background

Plaintiffs are members of five class actions filed against Wells Fargo Bank, 

N.A., for itself and its predecessor, Wachovia Bank, N.A.1

 Each complaint 

challenges alleged practices of Wells Fargo relating to overdraft fees. Plaintiffs 

allege that such practices breached the covenant of good faith and fair dealing 

under their respective account agreements—either the Wells Fargo Consumer 

Account Agreement (Wells Fargo Agreement) or the Wachovia Deposit 

Agreement (Wachovia Agreement).2

 This issue has yet to be addressed, and we 

1 Wells Fargo acquired Wachovia in January 2009. Wachovia has since ceased to exist as a 

separate bank. For that reason, we refer to both banks jointly as Wells Fargo. 2 Wells Fargo is not alone in having been accused of unlawful overdraft-fee practices. The 

Judicial Panel on Multidistrict Litigation consolidated these five class actions with dozens of 

similar cases filed against approximately thirty banks. In re Checking Acct. Overdraft Litig., 626 

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will not address it here because this case is about arbitration—specifically, about 

the enforceability of the arbitration clauses contained in the Wells Fargo and 

Wachovia Agreements.

In relevant part, the Wells Fargo Agreement reads:

Dispute Resolution Program: Arbitration Agreement

This section constitutes the Arbitration Agreement 

between you and the Bank.

Non-Judicial Resolution of Disputes

If you have a dispute with the Bank, and you are not able 

to resolve the dispute informally, you and the Bank agree 

that any dispute between or among you and the Bank, 

regardless of when it arose, shall be resolved by the 

following arbitration process. You understand and 

agree that you and the Bank are each waiving the right 

to a jury trial or a trial before a judge in a public court.

Disputes

. . . A dispute . . . includes any disagreement about the 

meaning of this Arbitration Agreement, and whether a 

disagreement is a “dispute” subject to binding arbitration 

as provided for in this Arbitration Agreement. . . .

Binding Arbitration

. . . .

Each arbitration, including the selection of the arbitrator 

shall be administered by the American Arbitration 

Association (AAA), according to the Commercial 

Arbitration Rules and the Supplemental Procedures for 

Consumer Related Disputes . . . . To the extent that there 

is any variance between the AAA Rules and this 

F. Supp. 2d 1333 (U.S. Jud. Pan. Mult. Lit. 2009). The case before us is just the latest 

installment in a series of appeals concerning this multidistrict litigation (MDL).

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Arbitration Agreement, this Arbitration Agreement shall 

control. . . .

In relevant part, the Wachovia Agreement reads:

25. Arbitration of Disputes/Waiver of Jury Trial and 

Participation in Class Actions. If either you or we 

request, any dispute or claim concerning your account or 

your relationship to us will be decided by binding 

arbitration under the expedited procedures of the 

Commercial Financial Disputes Arbitration Rules of the 

American Arbitration Association (AAA), and Title 9 of 

the US Code. . . . Each party will pay its own costs and 

attorney’s fees. . . .

. . . The arbitration or trial will be brought individually and 

not as part of a class action. If it is brought as a class 

action, it must proceed on an individual (non-class, nonrepresentative) basis. YOU UNDERSTAND AND 

KNOWINGLY AND VOLUNTARILY AGREE THAT 

YOU AND WE ARE WAIVING THE RIGHT TO A 

TRIAL BY JURY AND THE RIGHT TO PARTICIPATE 

OR BE REPRESENTED IN ANY CLASS ACTION 

LAWSUIT.

. . . .

31. Changing this Agreement. We have the right to 

change the terms of this Agreement . . . . We will notify 

you in writing at least thirty calendar days before the 

change will take effect if the change is not in your favor.

Notably, the arbitration clauses require individual, nonclass arbitration of 

any disputes concerning the customer’s account. In the agreements, the clauses are 

set off by a heading in bolded type and listed in the tables of contents. The Wells 

Fargo Agreement contains a delegation clause, delegating to the arbitrator “any 

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disagreement about the meaning of this Arbitration Agreement, and whether a 

disagreement is a ‘dispute’ subject to binding arbitration as provided for in this 

Arbitration Agreement.” Both agreements incorporate the American Arbitration 

Association’s (AAA) Commercial Financial Disputes Arbitration Rules, and in the 

case of the Wells Fargo Agreement, the Supplemental Procedures for Consumer 

Related Disputes (AAA Rules). 

Wells Fargo invoked the arbitration clause from each agreement and filed a 

motion to dismiss the claims of the unnamed class members—i.e., all members of 

the certified class other than the named Plaintiffs—and compel arbitration.3

 

Plaintiffs opposed the motion and argued that the arbitration clauses in the Wells 

Fargo and Wachovia Agreements are illusory and unconscionable, and therefore 

unenforceable. The district court rejected Plaintiffs’ arguments and dismissed the 

claims of the unnamed class members without prejudice to the right of any 

unnamed class member to bring his or her claim in an individual arbitration 

according to the terms of the applicable contract.

With respect to the Wells Fargo Agreement, the district court did not reach 

the question of whether the arbitration clause was illusory and/or unconscionable. 

3 This is the third time Wells Fargo renewed its motion to dismiss and compel arbitration, 

making this appeal the fourth of the parties’ arbitration-related appeals we have heard. Garcia v. 

Wachovia Corp., 699 F.3d 1273 (11th Cir. 2012); In re Checking Acct. Overdraft Litig., 780 F.3d 

1031 (11th Cir. 2015); Gutierrez v. Wells Fargo Bank, NA, 889 F.3d 1230 (11th Cir. 2018).

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The court found that the delegation clause delegates to the arbitrator all questions 

of arbitrability, including Plaintiffs’ challenge to the enforceability of the 

arbitration clause. In other words, the district court determined that it was up to the 

arbitrator—not the court—to determine whether the parties must arbitrate. 

Because the Wachovia Agreement does not contain a delegation clause, the district 

court did decide whether the arbitration clause in the Wachovia Agreement is 

illusory and/or unconscionable. Applying Eleventh Circuit precedent, the court 

found that it is neither. 

On appeal, Plaintiffs contest both determinations.4

 First, they argue that the 

district court erred because the delegation clause in the Wells Fargo Agreement 

only assigns two arbitrability issues to the arbitrator—and Plaintiffs’ challenge to 

the enforceability of the agreement is not one of them. Second, they argue that the 

district court improperly took a “one-size-fits-all” approach when it analyzed the 

enforceability of the Wachovia Agreement pursuant to Eleventh Circuit caselaw. 

Plaintiffs contend that the district court should have conducted a state-by-state 

analysis when considering if the arbitration clause is illusory or unconscionable. 

To this end, Plaintiffs claim that the district court should have focused on the laws 

4 Plaintiffs advance a third argument that Wells Fargo waived its arbitration rights. We already 

held in Gutierrez, that Wells Fargo appropriately preserved its arbitration rights as to the 

unnamed class members. See generally 889 F.3d 1230. While we decided that case on different 

grounds, Plaintiffs concede that they presented the exact same argument in Gutierrez that they 

make here. We see no reason to revisit the issue and maintain that Wells Fargo has not waived 

its right to invoke arbitration.

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of the District Columbia and other relevant states where Wells Fargo conducted 

business in considering these issues. We address each argument in turn.

II. Standard of Review

We review de novo a district court’s order granting a motion to compel 

arbitration. In re Checking Acct. Overdraft Litig., 754 F.3d 1290, 1293 (11th Cir. 

2014). We also review de novo a district court’s interpretation of an arbitration 

provision. Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204, 1213 (11th Cir. 

2011).

III. The Wells Fargo Agreement

We start with the Wells Fargo Agreement. Plaintiffs argued before the 

district court that the contract’s arbitration clause is unconscionable, and thus the 

court could not enforce it. The district court did not reach this issue because the 

delegation clause delegates all questions of arbitrability—or gateway issues—to 

the arbitrator. Plaintiffs disagree, arguing that their claim—that the arbitration 

clause is unenforceable—is not governed by the delegation clause. Therefore, 

Plaintiffs contend, the delegation clause does not require them to arbitrate this 

specific gateway issue. 

“Arbitration is a matter of contract and of consent.” JPay, Inc. v. Kobel, 904 

F.3d 923, 928 (11th Cir. 2018). Arbitrators can resolve disputes in arbitration only 

because the parties have agreed to do so in advance. Id. Where parties have 

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agreed to arbitrate certain questions, it is the duty of the court to enforce that 

agreement. Id. at 929. But the court may not require arbitration beyond the 

parties’ agreement. Id. So it must use caution when requiring parties to arbitrate 

gateway issues. “A party often might not focus . . . upon the significance of having 

arbitrators decide the scope of their own powers.” First Options of Chi., Inc. v. 

Kaplan, 514 U.S. 938, 945 (1995). Therefore, we presume that it is up to the court 

to decide arbitrability, unless the parties “clearly and unmistakably” provide that 

the arbitrator should decide arbitrability. AT&T Techs., Inc. v. Commc’ns Workers 

of Am., 475 U.S. 643, 649 (1986).

We have repeatedly ruled that the reference or incorporation of AAA Rules 

with language providing that “the arbitrator shall have the power to rule on his or 

her own jurisdiction, including any objections with respect to the existence, scope 

or validity of the arbitration agreement” demonstrates a clear and unmistakable 

intent that the arbitrator should decide all questions of arbitrability. See JPay, 904 

F.3d at 938–39 (alteration adopted) (“[W]e read an arbitration agreement 

incorporating AAA rules containing this language as clear and unmistakable 

evidence that the parties contracted around the default rule and intended to 

delegate questions of arbitrability to the arbitrator.”); Spirit Airlines, Inc. v. Maizes, 

899 F.3d 1230, 1233 (11th Cir. 2018) (“The parties’ agreement plainly chose AAA 

rules [containing this language]. . . . [T]his is clear and unmistakable evidence that 

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the parties chose to have an arbitrator decide whether their agreement provided for 

class arbitration.”); U.S. Nutraceuticals, LLC v. Cyanotech Corp., 769 F.3d 1308, 

1311 (11th Cir. 2014) (“When the parties incorporated into the 2007 contract the 

[AAA Rules containing this language], they clearly and unmistakably contracted to 

submit questions of arbitrability to an arbitrator.”); Terminix Int’l Co. v. Palmer 

Ranch Ltd., 432 F.3d 1327 (11th Cir. 2005) (“[T]he parties have agreed that the 

arbitrator will answer this [gateway] question by providing . . . that ‘arbitration 

shall be conducted in accordance with the [AAA Rules].”). 

Our caselaw is dispositive here. Plaintiffs and Wells Fargo clearly and 

unmistakably agreed to arbitrate all gateway issues. The Wells Fargo Agreement 

explicitly incorporates commercial AAA Rules: “Each arbitration, including the 

selection of the arbitrator shall be administered by the [AAA], according to the 

Commercial Arbitration Rules and the Supplemental Procedures for Consumer 

Related Disputes.” Further, those commercial AAA Rules specifically provide that 

the arbitrator will decide questions of arbitrability: “The arbitrator shall have the 

power to rule on his or her own jurisdiction, including any objections with respect 

to the existence, scope, or validity of the arbitration agreement or to the 

arbitrability of any claim or counterclaim.”5

 This alone is sufficient for us to find 

the requisite clear and unmistakable intent to arbitrate arbitrability. 

5 Am. Arb. Ass’n, Commercial Arbitration Rules and Mediation Procedures R-7(a).

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Plaintiffs raise four arguments in support of their theory that the delegation 

clause does not apply to all gateway issues, and importantly, does not apply to the 

gateway issue at hand. However, we do not find them persuasive. First, Plaintiffs 

argue that the incorporation is ineffective because the agreement incorporates 

commercial AAA Rules rather than consumer AAA Rules. But we have been

willing to accept the incorporation of any AAA Rules so long as they contain the 

proper language as clear and unmistakable evidence of an agreement to arbitrate 

gateway issues. See, e.g., JPay, 904 F.3d at 937 (noting that we do not

“interrogate which specific AAA rules were incorporated through the contract’s 

general incorporation language”). As such, our precedent compels that we 

construe the delegation clause in the Wells Fargo Agreement as a clear and 

unmistakable intent to delegate to the arbitrator questions of arbitrability.

Second, relying on an out-of-circuit, unpublished district court decision, 

Plaintiffs contend that incorporation of AAA Rules is “insufficient to establish 

delegation in consumer contracts involving at least one unsophisticated party.” 

Ingalls v. Spotify USA, Inc., 2016 WL 6679561 (N.D. Cal. Nov. 14, 2016). 

However, we have never distinguished between agreements involving 

sophisticated and unsophisticated parties, and those involving only sophisticated 

parties; in fact, our precedent includes cases about agreements involving 

unsophisticated parties. See generally, e.g., JPay, 904 F.3d 923 (incorporation of 

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the AAA Rules signaled clear and unmistakable intent to arbitrate arbitrability 

issues arising between a money-transfer vendor and its customers); Spirit Airlines, 

899 F.3d 1230 (incorporation of AAA Rules signaled clear and unmistakable intent 

to arbitrate arbitrability issues arising between a major airline company and its 

customers). 

Third, Plaintiffs argue that the incorporation of the AAA Rules cannot 

overcome the plain language of the delegation clause, which limits the arbitrability 

of gateway issues to only two specific instances: “[A]ny disagreement about [1] 

the meaning of this Arbitration Agreement, and [2] whether a disagreement is a 

‘dispute’ subject to binding arbitration as provided for in this Arbitration 

Agreement.” This, Plaintiffs contend, expressly contradicts and creates tension 

with AAA Rules. However, we see no direct conflict between the two. Nothing in 

the Wells Fargo Agreement explicitly excludes or contradicts anything included in 

the AAA Rules. Read together, we view the incorporation and delegation clause as 

“mutually reinforcing methods of delegation.” JPay, 904 F.3d at 941. We have 

already said that the incorporation of the AAA Rules was enough to indicate the 

parties’ clear and unmistakable intent to arbitrate gateway issues. Now, that 

incorporation, coupled with the delegation clause, proves to be more than enough. 

Finally, Plaintiffs argue that the delegation clause is unconscionable and 

therefore unenforceable. Because the Wells Fargo Agreement delegates issues of 

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interpretation, scope, and enforceability to the arbitrator, we only retain jurisdiction 

over challenges directed specifically at that delegation. Rent-A-Center W., Inc. v. 

Jackson, 561 U.S. 63, 70–71 (2010). Where a plaintiff’s only challenge applies to 

the arbitration agreement more broadly, we leave those challenges to the arbitrator. 

See Parnell v. CashCall, Inc., 804 F.3d 1142, 1146 (11th Cir. 2015). As the 

district court properly noted, “Plaintiffs do not identify any specific defect in the 

delegation clause and instead argue only that it is unconscionable ‘for the same 

reasons’ as the contract more generally.” Without Plaintiffs pointing to any 

specific deficiencies in the delegation clause, we find no reason to deem it 

unconscionable. Plaintiffs may take up their challenges to the contract as a whole 

with the arbitrator. 

IV. The Wachovia Agreement

We now turn to the Wachovia Agreement. Because the Wachovia 

Agreement contains no delegation provision like the one in the Wells Fargo 

Agreement, the district court considered whether the arbitration clause was illusory 

and/or unconscionable, ultimately determining it was neither. 

A. Illusoriness 

Plaintiffs argue that the Wachovia Agreement is illusory because it 

unilaterally empowers Wells Fargo to modify or delete the arbitration clause. 

However, the Wachovia Agreement only authorizes Wells Fargo to change the 

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terms of the agreement so long as it “notif[ies] [Plaintiffs] in writing at least thirty 

calendar days before the change will take effect if the change is not in [their] 

favor.” In other words, Wells Fargo can make no changes to the agreement that 

would disadvantage Plaintiffs without first providing 30-days’ notice of such 

change. During that time, Plaintiffs could opt out of the contract by closing their 

bank account. 

In another decision from this MDL, we held that similar notice protections 

defeated arguments that an arbitration clause was illusory. See Larsen v. CitiBank, 

FSB, 871 F.3d 1295 (11th Cir. 2017). In Larsen, we considered an account 

agreement where the bank “reserve[d] the right to change or add to the terms and 

conditions of [the] Agreement or change the terms of [plaintiffs’] Account[s] at 

any time.” Id. at 1317. Per the agreement, the bank would provide “notice of the 

change as [it] determine[s] appropriate.” Id. The Larsen court interpreted the 

modification language as “specifically obligat[ing] [the bank] to provide 

consumers with notice prior to making any amendment.” Id. at 1321. Even though 

the bank had discretion to determine what notice period was “appropriate,” its 

“commitment to provide notice [was] accompanied by an implied duty of good 

faith and fair dealing.” Id. And so we found that the bank’s “power to amend the 

Provision [was] therefore not unfettered, unlimited, or absolute.” Id.

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Here, the modification provision’s notice requirement demands more from 

the bank than the notice requirement in Larsen. Rather than “appropriate” notice, 

Wells Fargo must provide 30-days’ notice of any changes to the terms of the 

agreement. Having already found that “appropriate” notice was enough, we can 

confidently say that the 30-days’ notice protection is more than enough to 

overcome the argument that the Wachovia Agreement is illusory. This is true even 

though the Wachovia Agreement affords the bank discretion as to when it must 

provide notice. Like the agreement in Larsen, and any contract for that matter, the 

Wachovia Agreement is subject to an implied duty of good faith and fair dealing. 

And so Wells Fargo’s power to change the terms is not “unfettered, unlimited, or 

absolute.” Id.

However, Plaintiffs argue that Larsen is inapplicable. They allege the 

Wachovia Agreement is illusory under the laws of California, Colorado, the 

District of Columbia, Maryland, Nevada, Tennessee, and Texas—and the district 

court failed to conduct a thorough state-by-state analysis before determining the 

Wachovia Agreement was not illusory. We have held that “choice of law 

questions can be avoided if the laws of the different jurisdictions lead to identical 

results.” Shapiro v. Associated Int’l Ins. Co., 899 F.2d 1116, 1118 n.2 (11th Cir. 

1990). So applying Larsen is only problematic if the relevant jurisdictions’ laws 

would turn up different results. But Plaintiffs do not demonstrate how stateUSCA11 Case: 19-14097 Date Filed: 04/07/2021 Page: 15 of 20
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specific analyses would result in different outcomes. Accordingly, we do not find 

that it was improper for the district court to rely on Larsen to conclude that the 

modification provisions in the Wachovia Agreement do not render the contract 

illusory. To the contrary, we agree with the court’s well-reasoned, albeit brief, 

analysis of precedent from the relevant states, which actually confirms this 

conclusion. 

B. Unconscionability

Plaintiffs argue that the Wachovia Agreement is also unenforceable because 

it is unconscionable. As a preliminary matter, while these issues of 

unconscionability are state-law matters, Plaintiffs have not shown that the state 

laws that would apply here differ in any material respect from those addressed in 

prior Eleventh Circuit decisions. See id. As such, we measure conscionability 

against those cases.

1. Procedural Unconscionability

To start, Plaintiffs allege several theories of procedural unconscionability.

But binding caselaw and decisions from this MDL have already rejected Plaintiffs’ 

arguments. First, Plaintiffs argue that the arbitration clause is procedurally 

unconscionable because it is the product of a gross disparity in bargaining power. 

However, “[a]s the Supreme Court has recognized, ‘[m]ere inequality in 

bargaining power . . . is not a sufficient reason to hold that arbitration agreements 

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are never enforceable.’” In re Checking Acct. Overdraft Litig. MDL No. 2036 

(Hough), 672 F.3d 1224, 1229 (11th Cir. 2012) (per curiam) (alteration in original) 

(quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 33 (1991)). And 

we further noted in Hough that the disparity in bargaining power must result in a 

contract that is “so one-sided that no sane man not acting under a delusion would 

make and that no honest man would participate in the transaction.” Id. (internal 

quotation marks omitted). The arbitration clause in the Wachovia Agreement—

nearly identical to the one in Hough—“falls well short of this standard.” Id. 

Additionally, Plaintiffs argue that the arbitration clause is procedurally 

unconscionable because it was “buried” in a lengthy agreement “consisting of 

small print legalese.” But also in Hough, we rejected the notion that the arbitration 

clause was “not conspicuous because it was buried on the twenty-first page of a 

forty-three page, single-spaced document and in a maze of fine print.” Id. That 

was because there were “other aspects of the document that made apparent the 

agreement to arbitrate.” Id. The same is true here: the Wachovia Agreement 

specifically identifies the arbitration by including it in the table of contents and 

using a prominent heading. 

Last, Plaintiffs argue that the clause is procedurally unconscionable because 

it is a take-it-or-leave-it proposition offering no opportunity to opt out of 

arbitration. We have previously stated that a contract is not procedurally 

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unconscionable simply because it is a contract of adhesion. See, e.g., id. (“take-itor-leave-it” contract was not per se procedurally unconscionable); Larsen, 871 

F.3d at 1310 (same). Additionally, we have already rejected the argument that “a 

consumer may not be bound by a term contained within a standardized adhesion 

contract merely because he has not been offered an opportunity to opt out of that 

provision.” Larsen, 871 F.3d at 1311–12. For these reasons, we find that the 

Wachovia Agreement is not procedurally unconscionable under our precedent.

2. Substantive Unconscionability

Next, Plaintiffs argue substantive unconscionability. Plaintiffs first argue 

that the Wachovia Agreement is substantively unconscionable because it requires 

customers to pay Wells Fargo’s attorney’s fees and allows Wells Fargo to deduct 

those fees from customers’ accounts without notice. But the only place where the 

Wachovia Agreement calls for customers to pay attorney’s fees is a clause 

governing conflicts and disputes involving the account—not the arbitration clause. 

The arbitration clause explicitly states that “[e]ach party will pay its own costs and 

attorney’s fees.” There is no fee shifting when it comes to arbitration—so there is 

no fee-shifting argument to be made.6

6 Even if the fee-shifting provision in the conflicts-and-dispute clause was unconscionable, it is 

severable. Thus the arbitration provision would be enforceable regardless. See In re Checking 

Acct. Overdraft Litig. MDL No. 2036 (Barras), 685 F.3d 1269, 1274 (11th Cir. 2012) (finding 

that an unconscionable cost-and-fee-shifting provision did not apply to the arbitration provision 

and was therefore severable).

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Finally, Plaintiffs argue that the Wachovia Agreement is substantively 

unconscionable because it leaves consumers facing “insurmountable filing fees” as 

a condition of initiating arbitration. The AAA, however, charges no filing fee for 

consumers to arbitrate monetary claims against a company, and it caps the 

arbitrator fee at $125.7

 Furthermore, Plaintiffs have not shown that the unnamed 

class members would be unable to pay other arbitration-related fees. See Musnick 

v. King Motor Co. of Fort Lauderdale, 325 F.3d 1255 (11th Cir. 2003) (citing 

Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 90 (2000)) (“Under Green 

Tree, [the plaintiff] has an obligation to offer evidence of the amount of fees he is 

likely to incur, as well as of his inability to pay those fees.”). Without directing us 

to evidence of that inability to pay, Plaintiffs have not shown that the alleged 

“insurmountable filing fees” would render the Wachovia Agreement substantively 

unconscionable.

V. Conclusion

To conclude, we find no error on the part of the district court for two 

reasons. First, the delegation clause in the Wells Fargo Agreement delegates all 

gateway issues, including the one here, to the arbitrator. As such, it was not for the

district court to determine whether the agreement is illusory and unconscionable. 

7 The $125 fee is hardly insurmountable, as we previously held in Larsen that a $150 filing fee is 

not unconscionable. 871 F.3d at 1315–16.

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Second, the Wachovia Agreement is neither illusory nor unconscionable. There is 

no need to remand for state-specific analyses because Plaintiffs have not shown 

how state-by-state analyses would deliver a different result. Accordingly, we 

affirm.

AFFIRMED.

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