[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 14

- 12082

________________________ D.C. Docket No. 4:14

- cv - 0024

- HLM

JOSHUA PARNELL, Plaintiff

- Appellee,

versus CASHCALL, INC., Defendant

- Appellant, WESTERN SKY FINANCIAL, LLC, MARTIN A. (“BUTCH”) WEBB, Defendan ts.

________________________ Appeal from the United States District Court for the Northern District of Georgia

________________________ (October 28, 2015) Case: 14-12082 Date Filed: 10/28/2015 Page: 1 of 132 B efore WILSON and MARTIN , Circuit Judges, and HODGES , ∗ District Judge. WILSON, Circuit Judge: This case requires us to determine whether a plaintiff properly challenge s an arbi tration agreement’s validity when he does not specifically challenge the delegation provision contained therein. The Supreme Court has explained that where an arbitration agreement c ontains a delegation provision

— committing to the arbitrator the threshold determination of whether the agreement to arbitrate is enforceable

— the courts only retain jurisdiction to review a challenge to that specific provision. Rent

- A

- Center, West, Inc. v. Jackson , 5 61 U.S. 63, 72, 130 S. Ct. 2772, 27 79 (2010). Absent such a challenge, the Federal Arbitration Act (FAA) requires that we treat a delegation provision as valid and permit the parties to proceed to arbitration. Id. at 71

– 72, 130 S. Ct. at 2779 ; see 9 U.S .C. § 2

. We hold that when a plaintiff seeks to challenge an arbitration agreement containing a delegation provision, he or she must challenge the delegation provision directly.
T he district court erred in neglecting to recognize the delegation provisio n in the agreement in this case. Accordingly, w e reverse and remand

. I Upon completing his service in t he United States A rmy and e xperiencing less

- than

- idea l financial circumstances , Plaintiff

- Appellee Joshua Parnell

∗ Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of Florida, sitting by designation.

Case: 14-12082 Date Filed: 10/28/2015 Page: 2 of 133 responded to a television advertisement for short

- term loan s . Parnell, situated in Georgia, logged onto his computer and applied for a loan from Western Sky
Financial , LLC (Western Sky) , a S outh Dakota limited liability company with its principal place of business in Timber Lake, South Dakota. J ust ten minutes after Parnell submitt ed his online loan application , a Western Sky employee called
Parnell to inform him that he had been approved for a $1000 loan and relevant paperwork would be emailed to him shortly. The email Parnell r eceived contained a document titled “Western Sky Consumer Lo a n Agreement” (Loan Agreement) , which stated the terms of the contract between the parties

. The Loan Agreement’s Truth in Lending Ac t Disclosure Statement made plain the 232.99% annual percentage rate and finance charge of $3,905.56. In total, after making twenty

- five scheduled repayments on the $1,000 loan, Parnell would pay $4,905.56. Most importantly, t he Loan Agreement contained an agreement to arbitrate
any p otential disputes between the parties. This provision stated in relevant part:
WAIVER OF JURY TRIAL AND ARBITRATION. PLEASE READ THIS PROVISION OF THE AGREEMENT CAREFULLY. Unless you exercise your right to opt

- out of arbitration i n the manner described below, any dispute you have with Western Sky or anyone else under this loan agreement will be resolved by binding arbitration. Arbitration replaces the right to go to court, including the right to have a jury, to engage in discover y (except as may be prov ided in the arbitration rules), and to participate in a class action or similar proceeding. In Arbitration, a dispute is resolved by an arbitrator instead of a judge or jury. Arbitration procedures are simpler and more Case: 14-12082 Date Filed: 10/28/2015 Page: 3 of 134 limited than court procedures. Any Arbitration will be limited to the dispute between yourself and the holder of the Note and will not be part of a class

- wide or consolidated arbitration proceeding. Agreement to Arbitrate . You agree that any Dispute , except as provided below, will be r esolved by Arbitration, which shall be conducted by the Cheyenne River Sioux Tribal Nation by an authorized representative in accordance with its consumer dispute rules and the terms of this Agreement. Arbitration Defined

. Arbitration is a means of havin g an independent third party resol ve a Dispute. A “Dispute” is any controversy or claim between you and W estern Sky or the holder or servicer of the Note. The term Dispute is to be given its broadest possible meaning and includes, without limitation, all claims or demands (whether past, present, or future, including events that occurred prior to the opening of this Account), based on any legal or equitable theory (tort, contract, or otherwise), and regardless of the type of relief sought (i.e. money, inju nctive relief, or declaratory relief). A Dispute includes, by way of example and without limitation, any claim based upon marketing or solicitations to obtain the loan and the handling or servicing of my account whether such Dispute is based on a tribal, federal or state constitution, statute, ordinance, regulation, or common law, and including any issue concerning the validity, enforceability, or scope of this loan or the Arbitration agreement.

. . . Parnell digitally signed the Loan Agreement and , seven ty

- two hours later , Western Sky directly dep osited $1,000 in Parnell’s bank account. P rior to the due date of his first repayment, Parnell received notification that Defendant

- Appellant CashCall, Inc. ( CashCall ) had taken over his loan and he should make all his payment s to CashCall, not Western Sky.

Case: 14-12082 Date Filed: 10/28/2015 Page: 4 of 135 After sending his final payment to CashCall, Parnell f iled suit in state court, alleging that CashCall and Western Sky’s business practices exploit tribal sovereign immunity and illicitly avoid federal and state regulations , including the Georgia Payday Lending Act, O.C.G.A. § 16

- 17

- 2. CashCall removed the case to federal court and moved to compel arbitration. The district court denied th e motion after determining that (i) Parnell articulated a challenge to the arbitration provision in the parties’ contract and (ii) t he arbitration provision was unconscionable. CashCall now appeals.
II We have jurisdiction under 9 U.S.C. § 1 6

. “ We review de novo the district court’s denial of a motion to compel arbitration

. ” Jenkins v. First Am. Cash Advance of Ga., LLC , 400 F.3 d 868, 873 (11th Cir. 2005).
III The district court erred in holding that Parnell properly challenge d the Loan Agreement. We hold that the Loan Agreement contains a delegation provision
and , though P arnell challenged the validity of the arbitration provision, he did not articulate a challenge to the delegation provision specifically

. Therefore, the FAA requires that we treat the delegation provision as valid , enforce th e terms of the Loan Agreement , and leave to the arbitrator the determination of w hether the Loan
A greement’s arbitration provision is enforceable

.

Case: 14-12082 Date Filed: 10/28/2015 Page: 5 of 136 A The FAA places arbitration agreements on equal footing with all other
contracts and sets forth a clear presumption

— “a national policy”

— in favor of arbitration

. Buckeye Check Cashing, Inc. v. Cardegna , 546 U.S. 440, 443, 126 S. Ct. 1204, 1207 (2006); accord AT&T Mobility LLC v. Concepcion , 563 U.S. 333,

___, 131 S. Ct. 1740, 1745 (2011); Rent

- A

- Center , 561 U.S. at 67, 130 S. Ct. at 2776; Inetianbor v. CashCall, Inc. , 768 F.3d 1346, 1349 (11th Cir. 2014). The FAA governs the Loan Agreement because the parties conducted their business across state lines. See 9 U.S.C . § 2. From the S tate of Georgia, Parnell used the
I nternet to contact and then contract with Western Sky and CashCall, which are South Dakota and California corporations, respectively. Neither party disputes that Western Sky and CashCall are engaged in interstate commerce. Section 2 of the FAA requires th e court s to enforce an arbitration provision within a contract unless “such grounds exist at law or in equity for th e revocation of any contract.” A rbitration provisions will be upheld as valid unless defeated by fraud, duress, unconscionability, or another “generally applicable contract defense.” Rent

- A

- Center , 561 U.S. at 6 7

– 6 8, 130 S. Ct. at 2776. Further, § 4 of the FAA permits one party to seek the assistance of the d istrict c ourt when the other party refuses to proceed with arbitration, and requires the court to “make an

Case: 14-12082 Date Filed: 10/28/2015 Page: 6 of 137 order directing the parties to proceed to arbitration in accordance with the terms of the agreement.” 9 U.S.C. § 4. Importantly, parties may agree to commit even threshold determinations to an arbitrator , such as whether an arbitration agreement is enforceable . The Supreme Court has upheld these so - called “delegation provisions ” as valid , Rent

A

- Center , 561 U.S. at 68

– 70 , 130 S. Ct. at 277 7

– 78 , and explained that they are severable from the underlying agreement to arbitrate , Buckeye , 546 U.S. at 445 , 126 S. Ct. at 1209

. When an arbitration agreement contains a delegation provision and the plaintiff raises a challenge to the contract as a whole , the federal courts may not review his claim because it has been committed to the power of the arbitrator. Instead, the plaintiff must “challenge[] the delegation provision specifically .” Rent

- A

- Center , 561 U.S. at 7 2 , 130 S. Ct. at 2779 (emphasis added). In sum, a bsent a challenge to the delegation provision itself, the federal court s must treat the delegation provision “as valid under § 2, and must enforce it under §§ 3 and 4, leaving an y challenge to the validity of the Agreement as a whole for the arbitrator.” Id.
B
W hen federal courts interpret arbitration agreements , s tate contract law governs and directs the court s ’ analyse s of whether the parties committed an issue to arbitration

. See First Option s of Chi. , Inc. v. Kaplan , 514 U.S. 938, 944 , 115 S.

Case: 14-12082 Date Filed: 10/28/2015 Page: 7 of 138 Ct. 1920, 1924 (1995); Paladino v. Avnet Computer Techs., Inc. , 134 F.3d 1054,
1061 (11th Cir. 1998) ; see also In re Checking Account Overdraft Lit. , 685 F.3d 1269, 1275 (11th Cir. 2012) (applying South Carolina law to interpret an arbitration agreement subject to the FAA) . However, as the Supreme Court explained in First Options , “[c]ourts should not assume that the parties agreed to arbitrate arbitrability unless there is clear an d unmistakable evidence that they did so.” 514 U.S. at 944, 115 S. Ct. at 1924 (internal quotation marks omitted)

. Although the Loan Agreement expressly provides that the laws of the Cheyenne River Sioux Tribe (the Tribe) govern the agreement, 1 the partie s provided this court with no rule of tribal law regarding contract interpretation and our research uncovered none

. We faced similar circumstances i n Paladino , where

we made an assumption regarding the proper choice of law based on one party’s place of employment because neither party addressed which state’s law applied and the relevant “principles of contract construction [were], in any event, matters

1 The Loan Agreement provides in relevant part: GOVERNING LAW. This Agreem ent is governed by the Indian Commerce Clause of the Constitution of the United State s of America and the laws o f the Cheyenne River Sioux Tribe. We do not have a presence in South Dakota or any other state s of the United States. Neither this Agreement nor Lender is subject to the laws of any state of the United States of America. By executing this Agreement, you hereby expressly agree that this Agreement is executed and performed solely within the ex terior boundaries of the Cheyenne River Indian Reservation, a sovereign Native American Tribal Nation. You also expressly agree that this Agreement shall be subject to and construed in accordance only with the provisions of the laws of the Cheyenne River Sioux Tribe, and that no United States state or federal law applies to this Agreement. Case: 14-12082 Date Filed: 10/28/2015 Page: 8 of 139 of hornbook law.” See 134 F.3d at 1061 n.1. Here, the plain

- meaning rule is a
f

oundational principle of common law contract interpretation widely adopted in the United States, including in Georgia , the forum that Western Sky specifically targeted wi th its television advertisement and in which Parnell viewed and signed the Loan Agreem ent . Accordingly, we look to Georgia law for a statement of the plain

- meaning rule and apply it in this case. Under Georgia law , “[i]f the language of the contract is plain, unambiguous, and capable of only one reasonable interpretation, that interpretat ion must control, and no construction of the contract is required or even permissible.” See City o f Decatur v. DeKalb Cty. , 713 S.E.2d 846, 849 (Ga. 2011). Applying this rule and remaining cognizant of the requirement that a contractual commitment to arbitrate arbitrability must be “clear and unmistakable,” we hold that the Loan Agreement’s plain language contains an express delegation provision. This provision convey s the parties’ intent to submit to an arbitrator the threshold issue o f arbitrability

. T h e delegation provision appears in the third sub

- paragraph of the Loan Agreement’s arbitration provision. The portion of the Loan Agreement titled “Arbitration Defined ” commits all “ D isputes” to arbitrati on and expressly states that a D ispute includes “ any issue concerning the validity, enforceability, or scope of this lo an or the Arbitration agreement .” Though contained with in a sub

Case: 14-12082 Date Filed: 10/28/2015 Page: 9 of 1310 provision, this language un ambiguousl y commits to the arbitrator the power to determine the enforceabil ity o f the agreement to arbitrate

. Parnell urges us to hold that no delegation provision exists because this language appears withi n a string citation of examples. However, there is no requirement t hat a delegation provision be offset from other contractual language

or solely discuss arbitration of arbitrability in order to be valid

. Moreover, t he Loan Agreement (i) requires that all D isputes be resolved in arbitration , with
D isputes construed broadly , and (ii) specifically defines D ispute s to include at least “issue[s] concerning the validity, enforceability, or scope of this lo an or the Arbitration agreement, ” regardless of what other matters may also constitute a D ispute

. Thus, the Loan Agreement cont ains a delegation provision, providin g clear and unmistakable evidence that the parties intended to commit the issue of arbitrability to the arbitrator.
C Because the Loan Agreement contains a delegation provision, we only retain jurisdiction to review a challenge to that particular provision

. Absent a direct challenge, we must treat the delegation provision as valid and allow the arbitrator to determine the issue of arbitrability. Rent

- A

- Center , 561 U.S. at 72, 1 30 S. Ct. at 2779. Parnell’s complaint only challenges the arbitratio n provision generally, and therefore falls short of the Rent

- A

- Center pleading requirement.

Case: 14-12082 Date Filed: 10/28/2015 Page: 10 of 1311 In Rent

- A

- Center , Plaintiff Jackson brought a discrimination suit against his former employer, wh o responded with a motion to compel arbitration based on the signed employment agreement between the parties . In opposing the motion to compel arbitration, Jackson stated that “the entire agreement seems drawn to provide Rent

- A

- Center with undue advantages should an employment

- relat ed dispute arise” and that “the arbitration agreement as a whole is substantively unconscionable.” Id. at 73, 130 S. Ct. at 2779. T he Supreme Court determined that the arbitration agreement contained a delegation provision because it gave the arbitrator “exclusive authority to reso lve any dispute relating to the .

. .

en forceability .

. . of this Agreement , ” id. at 71, 130 S. Ct. at 2779, and Jackson’s opposition to the motion only challenged the arbitration agreement as a whole

. Accordingly, the Court ignored Jackson’s arguments that the agreement was procedurally and substantively unconscio nable because at no point did Jackson make out a challenge to th e delegation provision itself , id

. at 7 2 , 130 S. Ct. at 27 79 , and enforced the arbitration agreement as § 2 of the FAA required

. Parnell’ s c omplaint largely parallels the shortcomings of Jackson’s opposition to the motion in Rent

- A

- Center . Parnell includes in the final paragraph s of his c omplaint that the Loan Agreement contains an arbitration provision that violates substantive Georgia law . The cited Georgia law states that “[a]n arbitration clause in a payday loan contra ct shall not be enforceable if the contract

Case: 14-12082 Date Filed: 10/28/2015 Page: 11 of 1312 is unconscionable ” and lists a variety of factors the courts should consider when evaluating unconscionability under state law. O

. C

. G

. A

. § 16

- 17

- 2(c)(2) (emphasis added). Echoing the generalized allegations in Rent

- A

- Center , Parnell’s c omplaint further alleges that “[t] he Loan Agreement is unconscionable ” because the in terest rate is usurious; the designation of tribal law and jurisdiction is contrar y to Georgia law and public policy ; the forum selection clause “is unconscionable as such a forum deprive[s] Plaintiff and the putative class of their day in court”; arbitrat ion is prohibitively expensive; and the Loan Agreement prohibits class actions. These allegations all address the validity of the unde rlying agreement and reflect the
ext ent of Parnell’s challenge. A t no point in his c omplaint does Parnell specifically chal lenge the parties’ agreement to commit to arbitration the question of the enforceability of the arbitration agre ement. R ather, he asks us to review the validity of the arbitration agreement as a w hole , a task which th e delegation provision expressly commits t o an arbitrator.
O ur holdi ng in this case does not , as Parnell suggests , require future plaintiffs to “file one challenge to an agreement as a whole, followed by a challenge to a certain clause, followed by challenges to single sentences, follow ed by challenges to words tacked onto conjunctions at the end of a sentence.” To the contrary, the result in this case merely follows the directive set forth in Rent

- A

Center and emphasizes that when a would

- be plaintiff seek s to challenge an

Case: 14-12082 Date Filed: 10/28/2015 Page: 12 of 1313 arbitration agreement contai ning a delegation provision, he or she must chal lenge the delegation provision directly

. IV We hold that the Loan Agreement between the parties contained a delegation provision and because Parnell did not directly challenge th at provision, § 2 of the
FAA requires us to treat it as valid and enforce the Loan Agreement according to its terms

. Thus , we reverse the district court’s denial of CashCall’s motion to compel arbitration and r emand for proceedings consistent with this opin ion. As this case remains in its pre

- trial stages, Parnell may still seek leave from the district court to amend his complaint to reflect a proper challenge to the delegation provision. 2
REVERSED and REMANDED for proceedings consistent with this opini on.

2 The record reflects that Parnell already once amended his c omplaint. However, before trial, the Federal Rules of Civil Procedure permit a party to amend his or her complaint with the court’s leave, which should be “freely give[n].” Fed. R. Civ. Pro. 15(a)(2).

Case: 14-12082 Date Filed: 10/28/2015 Page: 13 of 13