FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIMETRA BRICE; EARL BROWNE; JILL 

NOVOROT,

Plaintiffs-Appellees,

v.

PLAIN GREEN, LLC,

Defendant,

and

HAYNES INVESTMENTS, LLC; L.

STEPHEN HAYNES,

Defendants-Appellants.

No. 19-15707

D.C. No.

3:18-cv-01200-

WHO

OPINION

Appeal from the United States District Court

for the Northern District of California

William Horsley Orrick, District Judge, Presiding

Argued and Submitted September 16, 2020

San Francisco, California

Filed September 16, 2021
2 BRICE V. HAYNES INVESTMENTS

Before: William A. Fletcher, Danielle J. Forrest∗, and 

Lawrence VanDyke, Circuit Judges.

Opinion by Judge Forrest;

Dissent by Judge W. Fletcher

SUMMARY**

Arbitration

The panel reversed the district court’s order denying 

defendants’ motion to compel arbitration in a RICO action 

and remanded with instructions to stay the case and compel 

the parties to proceed with arbitration.

Plaintiffs obtained short-term, high-interest loans from 

either Plain Green, LLC, or Great Plains Lending, LLC, 

which were owned by the Chippewa Cree Tribe of the Rocky 

Boy’s Indian Reservation and the Otoe-Missouri Tribe of 

Indians. These “Tribal Lenders’” standard loan contracts 

contained an agreement to arbitrate any dispute arising under 

the contract. The contracts also included a delegation 

provision requiring an arbitrator—not a court—to decide 

“any issue concerning the validity, enforceability, or scope 

of [the loan] agreement or [arbitration agreement].” The 

contracts stated that they were governed by tribal law and 

that an arbitrator must apply tribal law. Plaintiffs filed class-

* Formerly known as Danielle J. Hunsaker.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
BRICE V. HAYNES INVESTMENTS 3

action complaints against the Tribal Lenders and other 

defendants that they alleged were the owners and investors 

of Think Finance, LLC, which operated a payday loan 

enterprise via the Tribal Lenders. 

The district court denied defendants’ motion to compel 

arbitration on the ground that the arbitration agreement as a 

whole in each contract was unenforceable because it 

prospectively waived plaintiffs’ right to pursue federal 

statutory claims by requiring arbitrators to apply tribal law. 

The district court concluded that each delegation provision 

was unenforceable for the same reason.

Following Rent-A-Center, West, Inc. v. Jackson, 56 U.S. 

63 (2010), and Brennan v. Opus Bank, 796 F.3d 1125 (9th 

Cir. 2015), and disagreeing with other circuits, the panel 

concluded that, rather than asking first whether the 

arbitration agreement was enforceable as a whole, it must 

consider first the enforceability of the delegation provision 

specifically. The panel concluded that the parties’ 

delegation provision was enforceable because it did not 

preclude plaintiffs from arguing to an arbitrator that the 

arbitration agreement was unenforceable under the 

prospective-waiver doctrine and, therefore, this general 

enforceability issue must be decided by an arbitrator. The 

panel concluded that the contracts’ choice-of-law provisions 

were not to the contrary because they did not prevent 

plaintiffs’ from pursuing their prospective-waiver 

enforcement challenge in arbitration, which was the key to 

determining whether the delegation provision itself was a 

prospective waiver.

Dissenting, Judge W. Fletcher wrote that the majority 

misunderstood the effect of the choice-of-law provisions in 

the agreements. He wrote that, under the choice-of-law 
4 BRICE V. HAYNES INVESTMENTS

provisions, the arbitrator could apply only tribal law and a 

small and irrelevant subset of federal law. The prospective 

waivers of most federal law and all state law prevented the 

arbitrator from applying the law necessary to determine 

whether the delegation provisions and the arbitration 

agreements were valid. Judge W. Fletcher wrote that both 

the delegation provisions and the arbitration agreements 

therefore were invalid.

COUNSEL

Richard L. Scheff (argued) and David F. Herman,

Armstrong Teasdale LLP, Philadelphia, Pennsylvania; Anna 

S. McLean and Jacqueline Simonovich, Sheppard Mullin 

Richter & Hampton LLP, San Francisco, California; for 

Defedants-Appellants.

Matthew W.H. Wessler (argued), Gupta Wessler PLLC,

Washington, D.C.; Kristi C. Kelly and Andrew J. Guzzo, 

Kelly Guzzo PLC, Fairfax, Virginia; Leonard A. Bennett, 

Craig C. Marchiando, and Elizabeth W. Hanes, Consumer 

Litigation Associates P.C., Newport News, Virginia; Anna 

C. Haac, Tycko & Zavareei LLP, Washington, D.C.; for 

Plaintiffs-Appellees.

Patrick O. Daughtery, Van Ness Feldman LLP, Washington, 

D.C., for Amicus Curiae Native American Financial 

Services Association.
BRICE V. HAYNES INVESTMENTS 5

OPINION

FORREST, Circuit Judge:

We must decide whether a provision allowing an 

arbitrator, instead of a court, to decide whether an arbitration 

agreement that is governed by something other than federal 

law is unenforceable because it requires the parties to 

prospectively waive their federal rights. Already confused? 

You’re not alone. Grappling with the Supreme Court’s 

decision in Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 

63 (2010), we work our way through this brain twister and 

conclude that an agreement delegating to an arbitrator the 

gateway question of whether the underlying arbitration 

agreement is enforceable must be upheld unless that specific 

delegation provision is itself unenforceable. Because we 

conclude that the delegation provision in the contract at issue 

is not itself an invalid prospective waiver (while not 

resolving whether the arbitration agreement as a whole is a 

prospective waiver), we reverse the district court and remand 

with instructions to compel the parties to proceed with 

arbitration. In reaching our decision, we diverge from the 

decisions reached by several of our sister circuits.

I. BACKGROUND

Plaintiffs-appellees Kimetra Brice, Earl Browne, and Jill 

Novorot (Borrowers) obtained short-term, high-interest 

loans from either Plain Green, LLC (Plain Green) or Great 

Plains Lending, LLC (Great Plains Lending). The Chippewa 

Cree Tribe of the Rocky Boy’s Indian Reservation in 

Montana owns Plain Green; the Otoe-Missouria Tribe of 

Indians owns Great Plains Lending. Both lenders 

represented themselves as “tribal lending entities,” and we 

refer to them collectively herein as “Tribal Lenders.”
6 BRICE V. HAYNES INVESTMENTS

The Tribal Lenders’ standard loan contracts contain an 

agreement to arbitrate any dispute arising under the 

contract.1 And each arbitration agreement includes a 

delegation provision requiring an arbitrator—not a court—

to decide “any issue concerning the validity, enforceability, 

or scope of [the loan] agreement or [arbitration agreement].” 

The loan contracts also make several references to “Tribal 

Law.” For example, they state that the contracts “shall be 

governed by the laws of the tribe,” or “Tribal Law,” and that 

an arbitrator must “apply Tribal Law and the terms of this 

Agreement.”

Borrowers took out payday loans from the Tribal 

Lenders that they now contend were illegal, and they filed 

class-action complaints against numerous entities, including 

the Tribal Lenders and Haynes Investments, LLC; Sequoia 

Capital Operations, LLC; and 7HBF No. 2, LTD 

(collectively, Investors).2 Borrowers assert claims under the 

Racketeer Influenced and Corrupt Organizations Act 

(RICO), 18 U.S.C. § 1962(a)–(d), and California law. They 

allege that Investors are the owners and investors of Think 

Finance, LLC, which operated a payday loan enterprise via 

1 The arbitration provisions in the various contracts are not identical, 

but the parties agree that the relevant provisions are materially similar—

as did the district court.

2 This opinion references not only the defendants named in this case, 

Brice v. Plain Green, LLC, No. 19-15707, but also the defendants named 

in the companion case, Brice v. 7HBF No. 2, Ltd., No. 19-17477, which 

we resolve today via memorandum disposition for the reasons stated in 

this opinion. The parties argued Plain Green and 7HBF together at oral 

argument, and the cases involve the same borrowers and materially 

similar loan agreements. (The companion case 7HBF was itself 

consolidated with another similar appeal, Brice v. Sequoia Capital 

Operations LLC, No. 19-17414, but the Sequoia Defendants settled after 

oral argument and that appeal was dismissed).
BRICE V. HAYNES INVESTMENTS 7

the Tribal Lenders that was “designed to evade state usury 

laws and make illegal high interest loans.” According to 

Borrowers, Investors financed and actively participated in 

the enterprise, rendering them liable for any underlying 

illegal conduct.

Investors moved to compel arbitration, citing the 

arbitration agreements and delegation provisions in 

Borrowers’ various loan contracts.3 The district court denied 

the motions, concluding the arbitration agreement as a whole 

in each contract is unenforceable because it prospectively 

waives Borrowers’ right to pursue federal statutory claims 

by requiring arbitrators to apply tribal law. The district court 

held that each delegation provision was unenforceable for 

the same reason. That is, the district court concluded that 

because tribal law governs the loan contracts and Borrowers 

cannot present in arbitration merits claims based on federal 

law, both the arbitration agreements as a whole and the 

“accompanying delegation clauses” are unenforceable 

prospective waivers. The district court did not analyze 

enforceability of the delegation provisions separate from the 

larger agreements to arbitrate. Several Investors appealed.

II. DISCUSSION

We review de novo the denial of a motion to compel 

arbitration and the validity of an arbitration clause. 

O’Connor v. Uber Techs., Inc., 904 F.3d 1087, 1093 (9th 

Cir. 2018); Cape Flattery Ltd. v. Titan Mar., LLC, 647 F.3d 

914, 917 (9th Cir. 2011).

3 Investors made several motions; only the motion to compel 

arbitration is at issue here.
8 BRICE V. HAYNES INVESTMENTS

A. Order of Analysis

1. The Parties’ Arguments4

The parties disagree on the proper order of analysis. 

Investors argue the court first must decide delegation—

whether there is a clear and enforceable delegation provision 

that requires an arbitrator to decide whether the parties’ 

arbitration agreement is enforceable. If the delegation 

provision is enforceable, Investors argue the court must stop 

there and not proceed to consider whether the arbitration 

agreement is also enforceable. That task, Investors assert, is 

for the arbitrator. Alternatively, Investors argue that the 

district court erroneously held the arbitration agreements 

were unenforceable by misapplying the prospective-waiver 

doctrine.

Borrowers disagree. Like the district court, Borrowers 

believe the first question is enforceability of the arbitration 

agreement as a whole. If the entire arbitration agreement—

delegation provision included—is unenforceable, Borrowers 

argue that the court need not apply the delegation provision. 

Accordingly, Borrowers assert that the district court properly 

considered and held that the parties’ arbitration agreement is 

unenforceable because it required them to prospectively 

waive their statutory rights.

We agree with Investors that our focus first must be on 

the enforceability of the delegation provision specifically. 

And we conclude that, under recent decisions both from the 

4 The Native American Financial Services Association (NAFSA) 

filed an amicus brief in support of Investors in both appeals. Because 

NAFSA declined to address the dispositive delegation provision issue—

besides a single statement supporting Investors’ delegation arguments—

we decline to address NAFSA’s additional points.
BRICE V. HAYNES INVESTMENTS 9

Supreme Court and our court, the parties’ antecedent 

delegation provision is enforceable because it does not 

preclude Borrowers from arguing to an arbitrator that the 

arbitration agreement is unenforceable under the 

prospective-waiver doctrine and, therefore, this general 

enforceability issue must be decided by an arbitrator.

2. Governing Law

Under the Federal Arbitration Act (FAA), arbitration 

agreements are “valid, irrevocable, and enforceable, save 

upon such grounds as exist at law or in equity for the 

revocation of any contract.” 9 U.S.C. § 2. The FAA 

“establishes an equal-treatment principle.” Kindred Nursing

Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1426 (2017). “A 

court may invalidate an arbitration agreement based on 

generally applicable contract defenses like fraud or 

unconscionability, but not on legal rules that apply only to 

arbitration or that derive their meaning from the fact that an 

agreement to arbitrate is at issue.” Id. (internal quotations 

and citation omitted).

In considering a motion to compel arbitration, we 

generally decide two gateway issues: (1) whether the parties 

agreed to arbitrate and (2) “whether the agreement covers the 

dispute” at issue. Brennan v. Opus Bank, 796 F.3d 1125, 

1130 (9th Cir. 2015). But the Supreme Court’s decision in 

Rent-A-Center established that parties can agree to arbitrate 

even these preliminary gateway questions—provided any 

such agreement is “clear and unmistakable.” 561 U.S. at 69 

n.1. This is known as a delegation provision, which “is 

simply an additional, antecedent agreement the party seeking 

arbitration asks the federal court to enforce, and the FAA 

operates on this additional arbitration agreement just as it 

does on any other.” Henry Schein, Inc. v. Archer & White 

Sales, Inc., 139 S. Ct. 524, 529 (2019) (quoting Rent-A-
10 BRICE V. HAYNES INVESTMENTS

Center, 561 U.S. at 70) (abrogating a judge-made exception 

to enforcing delegation clauses under the FAA).

Where a delegation provision exists, courts first must 

focus on the enforceability of that specific provision, not the 

enforceability of the arbitration agreement as a whole. RentA-Center, 561 U.S. at 71; Brennan, 796 F.3d at 1132. To do 

otherwise would render the delegation provision a nullity. 

Consider our decision in Brennan. There, as here, “three 

agreements—each nested inside the other—[wer]e relevant 

to our analysis”: (1) the Loan Agreement, (2) the Arbitration 

Agreement, and (3) the Delegation Provision. Brennan,

796 F.3d at 1133. Thus, there were “multiple severable 

arbitration agreements.” Id.; Rent-A-Center, 561 U.S. at 71–

72 (noting “[a]s a matter of substantive federal arbitration 

law, an arbitration provision is severable from the remainder 

of the contract” (internal quotations and citation omitted)).

And one of those severable agreements delegated deciding 

“gateway” issues—like enforceability—to an arbitrator. 

Thus, in Brennan, “[t]he arbitration clause at issue, as in 

Rent-A-Center, [wa]s the Delegation Provision because that 

[wa]s the arbitration agreement [Defendants] s[ought] to 

enforce.” 796 F.3d at 1133.

Following Rent-A-Center and Brennan, Borrowers must 

show that the delegation provision is itself unenforceable. 

Rent-A-Center, 561 U.S. at 72–74. Rent-A-Center 

contemplates that a delegation provision may be 

unenforceable for the same reason as the broader arbitration 

agreement. See id. at 72–74. (“[H]ad [plaintiff] challenged 

the delegation provision by arguing that these common 

procedures as applied to the delegation provision rendered 

that provision unconscionable . . . . [plaintiff] would have 

had to argue that the limitation upon the number of 

depositions causes the arbitration of his claim that the 
BRICE V. HAYNES INVESTMENTS 11

Agreement is unenforceable to be unconscionable.”). But 

still we must consider the enforceability argument as applied 

to the specific agreement at issue—here, the delegation 

provision. See id. We cannot merely mention that Borrowers 

challenge the delegation provision and proceed to analyze 

the enforceability of the entire arbitration agreement.5

B. Prospective-Waiver Doctrine

With the order of analysis established, we consider the 

law governing Borrowers’ enforceability argument. 

Borrowers offer one reason why both the arbitration 

agreement and the delegation provision are unenforceable: 

prospective waiver. Under the prospective-waiver 

doctrine—a.k.a. “effective vindication”—an arbitration 

agreement that waives a party’s “right to pursue [federal] 

statutory remedies” is unenforceable. Am. Express Co. v. 

Italian Colors Rest., 570 U.S. 228, 235 (2013) (emphasis 

omitted); see also id. at 252 (Kagan, J., dissenting) (stating 

that “effective[ ]vindication . . . comes into play only when 

the FAA is alleged to conflict with another federal law”).6

5 Although Investors assert Borrowers failed to adequately challenge 

the delegation clause before the district court, as required by Rent-ACenter, that argument fails under Smith v. Jem Grp, Inc., 737 F.3d 636, 

640 (9th Cir. 2013), which explains that challenging the delegation 

provision in response to a motion to compel arbitration is enough. And 

that is exactly what Borrowers did.

6 The dissent contends that the federal prospective-waiver doctrine 

is not limited to federal remedies, but also applies to state-law remedies. 

Dissent at 44. The dissent also suggests that the prospective-waiver 

doctrine extends to constitutional and common-law rights, not just 

statutory rights. Id. at 45. Both propositions extend the prospectivewaiver doctrine beyond the Supreme Court’s application. See, e.g.,

Italian Colors, 570 U.S. at 236; id. at 252 (Kagan, J., dissenting) (“When 

a state rule allegedly conflicts with the FAA, we apply standard 
12 BRICE V. HAYNES INVESTMENTS

In Italian Colors, the Supreme Court disparaged this 

doctrine as “originat[ing] as dictum” and noted that the 

Court has never used it to invalidate an arbitration 

agreement. Id. at 235 (majority opinion); see also id. at 246–

47 (Kagan, J., dissenting). The Court also drew a distinction 

between agreements that make it more difficult to prove a 

statutory remedy and those that eliminate the right to pursue 

that remedy. Id. at 236 (majority opinion). Although the 

Court left open the possibility that agreements that make 

proving a statutory claim more difficult may be invalid based 

on prospective waiver, it implied that the doctrine’s primary 

focus is on those agreements that completely eliminate the 

right to pursue a statutory remedy. See id. Indeed, in a strong 

dissent, Justice Kagan challenged the majority’s narrow 

view of prospective waiver, asserting that this doctrine 

applies anytime “an arbitration agreement prevents the 

effective vindication of federal rights,” id. at 248 (Kagan, J., 

dissenting), even if the agreement does not “explicitly bar[] 

a claim” but merely “operate[s] to do so,” id. at 242.

1. Enforceability of the Delegation Provision

In analyzing the enforceability of the delegation 

provision, we begin with the text of the parties’ agreements. 

The loan contracts, including the arbitration agreements, 

have evolved over several years (and lawsuits). Although the 

precise terms of each agreement vary, the parties and the 

district court agreed that they are materially the same.

preemption principles . . . . Our effective-vindication rule comes into 

play only when the FAA is alleged to conflict with another federal

law. . . . In that all-federal context, one law does not automatically bow 

to the other, and the effective-vindication rule serves as a way to 

reconcile any tension between them.”).
BRICE V. HAYNES INVESTMENTS 13

Each arbitration agreement—a separate section within 

the loan contracts—begins with an invitation to opt out. It 

then provides that “any Dispute” between lender and 

borrower “will be resolved by Arbitration.” The arbitration 

agreement instructs: “Dispute is to be given its broadest 

possible meaning, and includes ... all federal, state, or 

Tribal Law claims or demands . . . based on any legal or 

equitable theory....” The delegation provision at the heart of 

this case is part of the broad definition of “Dispute,” and 

states: “A Dispute includes any issue concerning the 

validity, enforceability, or scope of this Agreement or this 

Agreement to Arbitrate.”7 The key provisions we ultimately 

find determinative state in full:

The loan contracts also contain multiple choice-of-law 

provisions directing that the parties’ relationship “shall be 

governed by the laws of the tribe,” or “Tribal Law.” The 

contracts specify that “neither this agreement nor [the 

lender] is subject to the laws of any state of the United 

States.” However, certain federal laws are expressly

referenced as governing the contract and “[the lender] may 

choose to voluntarily use certain federal laws as guidelines 

for the provision of services” even though “such voluntary 

7 Borrowers do not dispute that the delegation provision indicates a 

“clear and unmistakable” intent to arbitrate gateway issues. See Rent-ACenter, 561 U.S. at 68–69 (noting that similar terms demonstrated a clear 

and unmistakable intent to delegate arbitrability issues).
14 BRICE V. HAYNES INVESTMENTS

use does not represent acquiescence of [the tribe] to any 

federal law unless found expressly applicable.” On the plain 

language of these terms, federal law is not foreclosed in the 

same way state law is foreclosed. The arbitration agreement 

also specifies that tribal law is not the only source of 

authority by directing the arbitrator to “apply Tribal Law and 

the terms of this Agreement, including this Agreement to 

Arbitrate.”

The arbitrator is limited to “award[ing] all remedies 

available under Tribal Law, whether at law or in equity,” and 

an “arbitration award . . . must be consistent with this 

Agreement and Tribal Law.” The loan contract clarifies that 

the selection of tribal law applies even if the arbitration is 

held on non-tribal land:

[A]rbitration . . . under this Agreement may 

be conducted either on Tribal land or within 

thirty . . . miles of [borrower’s] current 

residence, at [borrower’s] choice, provided 

that this accommodation . . . shall not be 

construed in any way . . . to allow for the 

application of any law other than Tribal Law.

In determining whether the delegation provision is 

unenforceable, we must decide whether this particular 

provision precludes Borrowers from presenting and having 

the arbitrator decide whether the arbitration agreement is 

unenforceable as a prospective waiver under the federal law. 

That is, does the delegation provision prohibit the arbitrator 

from considering disputes “concerning the . . .

enforceability” of the arbitration agreement that are based on 

federal law? Under governing precedent, we conclude that 

the delegation provision is enforceable because it does not 

eliminate Borrowers’ right to pursue in arbitration their 
BRICE V. HAYNES INVESTMENTS 15

prospective-waiver challenge to the arbitration agreement as 

a whole, even though that challenge arises under federal law. 

See Italian Colors, 570 U.S. at 235. The plain language of 

the delegation provision does not foreclose the arbitrator 

from considering enforceability disputes based on federal 

law. The description of what an arbitrator can decide 

expressly includes enforceability disputes arising under 

“federal, state, or Tribal Law . . . based on any legal or 

equitable theory.” This necessarily means that Borrowers’ 

rights to pursue their federal prospective-waiver argument 

remains intact at this stage of the proceedings and the 

delegation provision is not facially a prospective waiver.

The choice-of-law provisions do not undermine this 

conclusion. As Borrowers themselves point out, the 

arbitration agreement—not the delegation provision—limits 

the arbitrator to “awarding remedies available under Tribal 

Law.” Unlike the definition of “Dispute,” the additional, 

antecedent delegation provision does not expressly 

incorporate this remedial limitation. Additionally, the plain 

meaning of the remedial limitation does not necessarily 

conflict with the delegation provision. Deciding whether an 

arbitration agreement is enforceable does not result in an 

“award”—unlike, for example, resolving a claim brought 

under RICO for which plaintiffs are seeking damages or 

some other remedy. That the scope of remedies awardable 

on a merits claim is limited to those remedies available under 

tribal law does not undermine the conclusion that Borrowers 

can present a contract enforceability argument based on 

federal law to the arbitrator where such is expressly provided 

for in the delegation provision.

Nor do the choice-of-law provisions limit the arbitrator 

to considering only tribal law in resolving enforceability 

disputes. To begin, the instruction in the arbitration 
16 BRICE V. HAYNES INVESTMENTS

agreement that “[t]he arbitrator shall apply Tribal Law and 

the terms of this Agreement” does not limit the arbitrator to 

considering only tribal law. If that sentence ended before 

“and,” perhaps it would foreclose the arbitrator from 

considering prospective waiver or other non-tribal-law 

grounds for unenforceability (assuming tribal law does not 

recognize prospective waiver and the Investors do not agree 

to application of this doctrine). But because the arbitrator 

also is instructed to apply “the terms of this Agreement” in 

deciding enforceability issues, and the parties’ arbitration 

agreement contemplates disputes arising under “federal, 

state, or Tribal Law . . . based on any legal or equitable 

theory,” the arbitrator is not clearly foreclosed from 

considering Borrowers’ prospective-waiver argument. Cf. 

Dillon v. BMO Harris, N.A., 856 F.3d 330, 333 (4th Cir. 

2017) (contract expressly provided “no other state or federal 

law or regulation shall apply to this Agreement, its 

enforcement or interpretation”). That is, again, the term of 

the arbitration agreement relevant here—the delegation 

provision—does not itself prevent Borrowers from raising 

an enforceability challenge based on federal law.

While the choice-of-law provisions dictating that tribal 

law governs the parties’ relationship could be viewed as 

conflicting with the delegation provision’s plain meaning, 

they do not defeat its plainly stated mandate that the 

arbitrator decide enforceability issues from whatever source 

they arise. We do not dispute that the loan contract’s 

selection of tribal law as the governing authority may mean 

the arbitrator will ultimately decide she cannot consider an 

enforceability challenge to the arbitration agreement as a 

whole based on prospective waiver if tribal law does not 

recognize this doctrine. But that possibility does not prevent 

Borrowers from pursuing their prospective-waiver 

enforcement challenge in arbitration, which is the key in 
BRICE V. HAYNES INVESTMENTS 17

determining whether the delegation provision is itself a 

prospective waiver. Especially where the definition of 

“Dispute,” the operative term in the delegation provision—

which, again, is an additional, antecedent agreement—

includes “federal . . . claims based on any legal or equitable 

theory” and “includes any issue concerning the validity, 

enforceability, or scope of [the arbitration agreement].” At 

this preliminary stage in the proceedings, the risk that the 

arbitrator will decide the prospective-waiver doctrine has no 

application to the parties’ contract because it arises under 

federal law only “diminishes,” but does not “foreclose[],” 

Borrowers’ “opportunity to gain relief for a statutory 

violation.” Italian Colors, 570 U.S. at 244 (Kagan, J., 

dissenting). This is not enough.8

8 Indeed, where there “is uncertainty whether the foreign choice of 

law would preclude otherwise applicable federal substantive statutory 

remedies, the arbitrator should determine in the first instance whether the 

choice of law provision would deprive a party of those remedies.” Dillon, 

856 F.3d at 334 (citing Vimar Seguros y Reaseguros, S.A. v. M/V Sky 

Reefer, 515 U.S. 528, 540–41 (1995)); see also 14 Penn Plaza LLC v. 

Pyett, 556 U.S. 247, 274 (2009) (noting the Court hesitates “to invalidate 

arbitration agreements on the basis of speculation”); cf. Comedy Club, 

Inc. v. Improv W. Assocs., 553 F.3d 1277, 1284 (9th Cir. 2009) (“[A]ny 

doubts concerning the scope of arbitrable issues should be resolved in 

favor of arbitration.” (internal quotations and citation omitted)). In other 

words, “the prospective waiver issue would not become ripe for final 

determination until the federal court was asked to enforce the arbitrator’s 

decision.” Gibbs v. Haynes Invs., LLC, 967 F.3d 332, 340 (4th Cir. 

2020). Thus, even those circuits that the dissent contends we should line 

up behind might hesitate at this stage of the proceedings to decide that a 

delegation clause—properly considered as a separate and independent 

agreement—was invalid under the prospective-waiver doctrine where 

there is uncertainty as to whether the plaintiffs could pursue their federal 

remedies in arbitration. See also Aggarao v. MOL Ship Mgmt. Co., 

675 F.3d 355, 371–73 (4th Cir. 2012).
18 BRICE V. HAYNES INVESTMENTS

The dissent disagrees, asserting that the choice-of-law 

provisions “categorically foreclose[]” Borrowers from 

obtaining relief on their federal claims.” Dissent at 47. But 

the dissent cites to no language in the arbitration agreement 

or delegation provision disavowing application of federal 

law generally, much less any language that would prevent 

the arbitrator from considering a “legal or equitable theory” 

regarding contract enforceability that arises under “federal 

law.” To be clear, the choice-of-law provisions do not state 

that only tribal law applies, or that the arbitrator cannot apply 

any law other than tribal law. While the contracts do clearly 

foreclose reliance on state law, the same is not true of federal 

law. We do not dispute (nor could we) that the contracts give 

tribal law preeminence, but contrary to the dissent’s 

assertion, there is nothing in the delegation provision or 

otherwise that forecloses the arbitrator from considering and 

applying the prospective-waiver doctrine in resolving the 

gateway question of whether the parties’ arbitration 

agreement is enforceable. The dissent apparently infers that 

because the contract states tribal law shall govern, all other 

law shall not. Indeed, that it shall not apply in any way 

whatsoever, whether as the source of a substantive right or a 

procedural, enforceability doctrine. Not even as the source 

of the enforceability doctrine designed to provide Borrowers 

relief from the very contractual discrepancy that the dissent 

discerns. This goes beyond an inferential leap; it interprets 

the contract to say something that it does not say.

The closest the contracts come to the interpretation 

reached by the dissent is language in the loan agreement 

stating: “This Agreement and the Agreement to Arbitrate are 

governed by Tribal Law and such federal law as is applicable 

under the Indian Commerce Clause of the Constitution of the 

United States of America.” This provision less clearly 

delineates the arbitrator’s power than other, less limited 
BRICE V. HAYNES INVESTMENTS 19

provisions in the arbitration agreement. Yet, from this 

language the dissent reasons that the arbitrator is prohibited 

from considering a prospective-waiver challenge to 

enforceability of the arbitration agreement. How? The 

dissent cites the principle of “expressio unius est exclusio 

alterius,” reasoning that because one choice-of-law 

provision mentions the applicability of a limited segment of 

federal law, the arbitrator cannot consider any other federal 

law or federal-law-derived enforceability arguments, such as 

the prospective-waiver doctrine. But what is puzzling is the 

dissent reaches this conclusion even though the arbitration 

agreement authorizes an arbitrator to decide disputes “based 

on any legal or equitable theory . . . . includ[ing] any issue 

concerning the validity, enforceability, or scope of . . . [the 

arbitration agreement].” That stretches the Latin beyond 

reason. Indeed, if we were to apply the principle of “the 

expression of one thing implies the exclusion of others” to 

that same choice-of-law section, we would wonder what the 

specific, unequivocal prohibition against applying state law 

implies about the application of federal law.

To be sure, to assume that the Tribal Lenders and 

Investors sought to avoid the application of federal law is not 

absurd given the nature of these loans and the history of these 

entities. But propriety and past behavior are not our focus 

when analyzing the delegation clause under the prospectivewaiver doctrine. Our focus is on whether the contractual 

language forecloses, i.e., renders impossible, Borrowers’ 

pursuit of their federal remedies—here by making it 

impossible for them to convince an arbitrator that the 

arbitration agreement as a whole is invalid because it 

required them to prospectively waive their federal rights. 

The delegation clause and arbitration agreement here, unlike 

some of the other agreements at issue in the cases discussed 

below, contain no such language. Thus, contrary to the 
20 BRICE V. HAYNES INVESTMENTS

district court’s analysis, we first consider the validity of the 

delegation provision in its proper context as an additional, 

antecedent agreement, and conclude that it is not itself an 

unlawful prospective waiver because it does not prevent 

Borrowers from arguing that the arbitration agreement is 

unenforceable under the federal prospective-waiver 

doctrine. We cannot say what the arbitrator will make of that 

argument, but that uncertainty is not grounds for invalidating 

the parties’ agreement to arbitrate. See Mitsubishi Motors 

Corp., 473 U.S. at 637, n.19 (declining to invalidate 

arbitration agreement based on speculation of how arbitrator 

might apply a choice-of-law provision).

2. Contrary Out-Of-Circuit Authority

As noted above, we reach a different conclusion than 

some of our sister circuits. We now address the contrary outof-circuit decisions and why we disagree with them. See 

Padilla-Ramirez v. Bible, 882 F.3d 826, 836 (9th Cir. 2017) 

(“As a general rule, we decline to create a circuit split unless 

there is a compelling reason to do so.” (citation and 

quotations omitted)).

a. The Decisions

i. Fourth Circuit

In Hayes v. Delbert Services Corp., the Fourth Circuit 

refused to compel arbitration in a dispute between a tribal 

lender and borrowers. 811 F.3d 666, 676 (4th Cir. 2016). 

There, like here, the borrowers alleged the tribal lenders’ 

high-interest rates violated various federal laws, and, in 

response, the servicing agent sought to enforce the 

arbitration agreement and compel arbitration. The agreement 

stated, in pertinent part, that the arbitrator will not apply “any 

law other than the law of the Cheyenne River Sioux Tribe of 
BRICE V. HAYNES INVESTMENTS 21

Indians to this Agreement.” Id. at 675. Although the 

agreement also included a provision delegating arbitrability 

questions to an arbitrator, id. at 671 n.1, the court declined 

to focus on that provision, concluding that “Hayes . . .

challenged the validity of that delegation with sufficient 

force and specificity to occasion our review.” Id. And in the 

court’s review, it focused on the arbitration agreement as a 

whole, invalidating the entire agreement under the 

prospective-waiver doctrine—including, implicitly, the 

delegation provision. Id. at 675. Specifically, the court held 

the arbitration agreement invalid and unenforceable because 

it “flatly and categorically . . . . waive[d] all of a potential 

claimant’s federal rights.” Id. Indeed, the court condemned 

the contract in no uncertain terms: calling it a “brazen” 

attempt to “game the entire system.” Id. at 676.

A year later, in Dillon, the Fourth Circuit again 

invalidated a tribal loan agreement under the prospectivewaiver doctrine, concluding that the arbitration agreement 

was “an unambiguous attempt to apply tribal law to the 

exclusion of federal and state law.” 856 F.3d at 336. 

Comparing the Dillon agreement to the Hayes agreement, 

the court concluded the Dillon agreement was 

indistinguishable despite its different terms: “[t]he 

arbitration agreement in this case implicitly accomplishes 

what the [Hayes] Agreement explicitly stated, namely, that 

the arbitrator shall not allow for the application of any law 

other than tribal law.” Id. at 335. Although the Dillon 

agreement included a delegation clause, the Dillon court did 

not discuss it.9

9 At oral argument before this court, counsel for Investors stated that 

one of the many Dillion loan agreements was the same as the agreements 

presently before us.
22 BRICE V. HAYNES INVESTMENTS

Rounding out the Fourth Circuit’s trifecta is Gibbs v. 

Haynes Investments, LLC, 967 F.3d 332, 339 (4th Cir. 2020), 

another tribal lending case. At first glance, Gibbs would 

appear to be more of the same—but it is worth discussing for 

two reasons: (1) the underlying loan agreements are identical 

to those in the present case and (2) the Fourth Circuit 

addressed the delegation clause more directly than it did in 

Hayes or Dillon. See id. The Gibbs court noted first that it 

“must decide whether the delegation provision is 

unenforceable ‘upon such grounds as exist at law or in 

equity.’” Id. at 338 (quoting Minnieland Priv. Day Sch., Inc. 

v. Applied Underwriters Captive Risk Assurance Co., Inc., 

867 F.3d 449, 455 (4th Cir. 2017)). After noting that “[i]n 

specifically challenging a delegation clause, a party may rely 

on the same arguments that it employs to contest the 

enforceability of other arbitration provisions,” the court 

concluded that “because the choice-of-law provisions 

contained in both the Plain Green and Great Plains 

arbitration agreements operate as prospective waivers, the 

delegation clauses (and therefore the arbitration agreements) 

are unenforceable.” Id. at 338–41 (alteration in original).

Although the Fourth Circuit framed the issue as one 

focused on the delegation clause specifically, its analytical 

spotlight shone on the arbitration agreement generally. See 

id. Like in Hayes and Dillon, the Gibbs court focused on 

terms in the arbitration agreement that the delegation clause 

did not reference or incorporate. And even though “[u]nlike 

in Hayes and Dillon, the Plain Green and Great Plains 

arbitration agreements do not explicitly preclude the 

application of federal law . . . . [the court concluded] the 

practical effect is the same because they do provide that 

tribal law preempts the application of any contrary law—

including contrary federal law.” Id. at 341–42 (emphasis 

omitted). In so concluding, the court discussed various terms 
BRICE V. HAYNES INVESTMENTS 23

in the arbitration agreement at length but did not mention the 

delegation clause again until its conclusion. Even then, the 

court did not discuss it in any detail but merely concluded, 

like the Hayes court, that prospective waiver rendered the 

entire arbitration agreement—including the specific 

delegation clause—unenforceable. Id. at 343–45.

ii. Third Circuit

Just a week before Gibbs, the Third Circuit addressed its 

own tribal loan dispute in Williams v. Medley Opportunity 

Fund II, LP, 965 F.3d 229, 238 (3d Cir. 2020). Focusing first 

on the delegation clause, the Williams court concluded that 

the borrowers explicitly referenced the delegation clause in 

their opposition to the motion to compel, which raised a 

specific challenge enabling the court to “proceed to examine 

[p]laintiffs’ enforceability arguments.” Id. at 238. “Plaintiffs 

contend[ed] that the arbitration agreement, including the 

delegation clause, [was] unenforceable under the 

prospective waiver doctrine.” Id. Considering the terms of 

agreement—many of which are similar to those here—the 

Third Circuit concluded that “the plain language of the 

arbitration agreement and the loan agreement shows that 

only tribal-law claims may be brought in arbitration.” Id.

at 239. Although the contract did not expressly forbid 

application of federal law or the assertion of federal claims, 

the court determined that “[b]ecause the arbitration 

agreement mandates that only tribal law applies in 

arbitration, federal law does not.” Id. at 240. “By limiting the 

claims available to borrowers to tribal-law claims,” the court 

continued, “the arbitration agreement . . . requires a 

borrower to prospectively waive claims based on any other 

law.” Id. at 241. In other words, “because the arbitration 

agreement [was] clear that only tribal-law claims are 
24 BRICE V. HAYNES INVESTMENTS

available . . . that pronouncement is enough to show that 

federal-law claims are unavailable.” Id.

Nearing its conclusion, the Williams court paused to 

provide—in a footnote—a bit more depth on why it 

concentrated on the entire arbitration agreement rather than 

the delegation clause:

Even if we analyzed the delegation clause 

entirely separately, we would conclude it is 

unenforceable. As one district court in this 

Circuit explained, while the arbitration 

agreement delegates arbitrability 

determinations to the arbitrator, it also 

provides that the arbitrator can only apply 

tribal law, so “the arbitrator would be 

expressly forbidden from relying on any 

federal or state law, which means that the 

arbitrator could not ask whether the 

arbitration clause—and its complete 

exclusion of federal law—would violate the 

federal public policy against arbitration 

clauses that operate as a prospective waiver 

. . . . Quite possibly, the arbitrator would 

uphold the arbitration clause, because there 

would be no principle of federal law standing 

in the way. Enforcing the delegation clause 

would effectively allow [the lender] to 

subvert federal public policy and deny [the 

borrower] the effective vindication of her 

federal statutory rights before the arbitration 

of her claims even began.”

Id. at 243 n.14 (alterations in original) (quoting Ryan v. 

Delbert Servs. Corp., No. 5:15-cv-05044, 2016 WL 
BRICE V. HAYNES INVESTMENTS 25

4702352, at *5 (E.D. Pa. Sept. 8, 2016)). Thus, the Williams 

court held the entire arbitration agreement was 

unenforceable under the doctrine of prospective waiver.10 Id.

iii. Second Circuit

In Gingras v. Think Finance, Inc., 922 F.3d 112, 117 (2d 

Cir. 2019), the Second Circuit also considered an arbitration 

agreement in loan contracts involving tribal lenders. Indeed, 

that case involved the same tribal lending entity—Plain 

Green, LLC—as the present case and at least one of the 

former parties in this case—Sequoia. Id. at 119. Like the 

Third Circuit in Williams, the Second Circuit first discussed 

the delegation clause. Id. at 125–26. Although the court 

noted that the delegation clause appears to give an arbitrator 

“blanket authority” over disputes involving the validity, 

enforceability, and scope of the arbitration agreement, it 

nevertheless continued past that provision and analyzed the 

enforceability of the entire arbitration agreement:

“[I]f a party challenges the validity under 

[9 U.S.C.] § 2 of the precise agreement to 

arbitrate at issue, the federal court must 

consider the challenge before ordering 

compliance with that agreement under § 4 [of 

the FAA].” Plaintiffs mount a convincing 

challenge to the arbitration clause itself. 

Their complaint alleges that “[t]he delegation 

provision of the Purported Arbitration 

Agreement is also fraudulent.” That specific 

attack on the delegation provision is 

sufficient to make the issue of arbitrability 

10 Investors stated at oral argument that one of the agreements at 

issue in Williams was also the same as those presently before us.
26 BRICE V. HAYNES INVESTMENTS

one for a federal court. . . . [W]e properly 

consider it on appellate review.

Id. at 126 (internal citations omitted).

Considering the arbitration agreements in their entirety, 

the court concluded they were “unenforceable because they 

are designed to avoid federal and state consumer protection 

laws.” Id. at 127. The court further reasoned: “By applying 

tribal law only, arbitration for the Plain Green borrowers 

appears wholly to foreclose them from vindicating rights 

granted by federal and state law.” Id. In other words, the 

Gingras court applied the prospective-waiver doctrine to 

invalidate the entire arbitration agreement because “tribal 

law provides no guarantee that federal and state statutory 

rights could be pursued, much less vindicated.”11 Id.

b. Reason for Disagreement

In our view, our sister circuits have conflated the analysis 

under Rent-A-Center. The out-of-circuit decisions 

considered prospective waiver in the context of the 

arbitration agreement as a whole—not as applied to the 

delegation provision. Put simply, those decisions go like 

this: the arbitration agreement includes a delegation 

provision, but the entire arbitration agreement is 

unenforceable, thus, the delegation provision is too. See, 

e.g., Williams, 965 F.3d at 243 (holding “[t]he prospective 

waiver of statutory rights renders the entire arbitration 

agreement (delegation clause included) unenforceable”).

This approach conflicts with Rent-A-Center and our decision 

in Brennan. See Rent-A-Center, 561 U.S. at 70, 74; Brennan, 

11 Again, Investors stated at oral argument that the Gingras 

agreements are identical to those here.
BRICE V. HAYNES INVESTMENTS 27

796 F.3d at 1132. Our sister circuits considered the wrong 

thing by “confus[ing] the question of who decides 

arbitrability with the separate question of who prevails on 

arbitrability.” Henry Schein, Inc., 139 S. Ct. at 531. The 

proper question is not whether the entire arbitration 

agreement constitutes prospective waiver, but whether the 

antecedent agreement delegating resolution of that question 

to the arbitrator constitutes prospective waiver.

Although some of the out-of-circuit decisions properly 

tee up the question, none of them follow through. Take 

Gibbs: The Fourth Circuit began by noting that it must 

decide whether the delegation clause itself was 

unenforceable. 967 F.3d at 339. But in its analysis, it never 

mentions the text of the delegation clause, which is the same 

as that at issue in the present case. See id. at 340–45. The 

Gibbs court does not explain how the delegation clause—

“the precise agreement to arbitrate at issue”—prospectively 

waived plaintiffs’ statutory rights. Rent-A-Center, 561 U.S. 

at 71. Instead, it concluded the choice-of-law and forumselection provisions prospectively waived plaintiffs’ 

statutory rights and that those terms rendered the entire 

arbitration agreement—severable delegation clause 

included—unenforceable. Id. Left unexplained is why an 

arbitrator—charged with “applying tribal law and the terms 

of the Agreement”—would rely on choice-of-law and 

forum-selection terms to ignore a prospective-waiver 

challenge to the enforceability of the entire arbitration 

agreement where there is a delegation clause that expressly 

allows a plaintiff to assert all “federal claims . . . based on 

any legal or equitable theory,” including “any issue 

concerning [] validity [or] enforceability.”

Trying to reconcile our sister circuits’ decisions with 

Rent-A-Center, we posit that they view a party’s “specific 
28 BRICE V. HAYNES INVESTMENTS

challenge” to a delegation clause as a purely formal, 

procedural requirement. Perhaps in their view a party 

complies with Rent-A-Center if the party claims the 

delegation clause is unenforceable even if the arguments 

made go only to enforceability of the arbitration agreement 

as a whole. That is, so long as a party states the delegation 

clause is invalid, that is enough. We disagree. We read RentA-Center as requiring a substantive argument that the 

delegation provision in and of itself is unenforceable. A party 

challenging a delegation clause via contract-wide arguments 

must show how the claimed deficiencies as applied to the 

delegation clause render that specific agreement invalid. Id.

at 74. Such arguments are “of course . . . much more difficult 

. . . to sustain” than arguments applying the asserted 

contractual deficiency in the context of the claim potentially 

being arbitrated. Id. But our focus is not on what would 

happen in arbitration but on who should decide what 

happens in arbitration and whether having an arbitrator 

decide enforceability prevents a plaintiff from arguing that it 

should not be compelled to arbitrate. While it may be 

confusing, this is a necessary distinction.

Perhaps our sister circuits believe, as Borrowers 

certainly do, that whether these agreements prospectively 

waive Borrowers’ federal statutory rights is a foregone 

conclusion. We do not dispute that Borrowers have a 

reasonable argument that the arbitration agreement as 

written precludes them from asserting their RICO claims or

other federal claims in arbitration. See Italian Colors, 

570 U.S. at 235 (explaining that a prospective-waiver 

argument is strongest when a contract eliminates the right to 

pursue a statutory remedy). And if that is true, the arbitration 

agreement is likely unenforceable as a prospective waiver. 

See id. But, when there is a clear delegation provision, that 

question is not for us—or anyone else wearing a black 
BRICE V. HAYNES INVESTMENTS 29

robe—to decide. Instead, it is for the arbitrator to decide so 

long as the delegation provision itself does not eliminate 

parties’ rights to purse their federal remedies. Refusing to 

allow an arbitrator to decide the question, even if we think 

the answer is obvious, runs counter to the Supreme Court’s 

clear instructions that “a court may not decide an 

arbitrability question that the parties have delegated to an 

arbitrator.” Henry Schein, Inc., 139 S. Ct. at 529–30 (“A 

court has no business weighing the merits of the grievance 

because the agreement is to submit all grievances to 

arbitration, not merely those which the court will deem 

meritorious.” (internal quotations and citation omitted)). No 

matter the court’s view of the merits, no matter the 

inefficiency, no matter the time and money potentially 

saved. See id. Instead, we “must respect the parties’ decision 

as embodied in the contract.” Id. at 531.

3. Practical Effects

Finally, we note the practical effects of compelling 

arbitration. If Borrowers succeed in convincing an arbitrator 

that the arbitration agreement is unenforceable as a 

prospective waiver, Borrowers may return to federal court 

and assert their claims. If Borrowers’ prospective-waiver 

argument fails to convince the arbitrator because she 

concludes the agreement allows Borrowers to assert their 

federal claims, the obvious result is that Borrowers can bring 

their federal claims in arbitration and they did not 

prospectively waive anything. And if the arbitrator 

concludes she cannot consider a prospective-waiver 

challenge to enforceability of the arbitration agreement, 

Borrowers can return to court and argue the arbitrator 

exceeded her powers. See PowerAgent Inc. v. Elec. Data Sys. 

Corp., 358 F.3d 1187, 1193 (9th Cir. 2004) (describing the 

process for back-end review under the FAA). No matter 
30 BRICE V. HAYNES INVESTMENTS

what, Borrowers will have the opportunity to assert their 

federal claims or show that the arbitration agreements 

“foreclosed” their ability to do so. Flowing logically from 

these alternatives—one of which must occur if this dispute 

continues—is our conclusion in this case: Borrowers cannot 

show the delegation clause itself prospectively waives their 

opportunity to pursue their federal rights. How could it 

where the worst-case scenario is that an arbitrator may

prevent Borrowers from presenting their federal claims and, 

if so, Borrowers will have the opportunity to object to a court 

that the arbitrator exceeded her authority and ask that any 

award be vacated.12 In such circumstances, compelling 

arbitration is consistent with congressional policy—strictly 

enforced by the Supreme Court—of placing arbitration 

agreements on equal footing with other contracts and 

“reversing centuries of judicial hostility to arbitration 

agreements.” Scherk v. Alberto-Culver Co., 417 U.S. 506, 

510 (1974) (quoting H.R. Rep. No. 96, 68th Cong., 1st Sess. 

1, 2 (1924)).

III. CONCLUSION

Though courts may deem arbitration agreements 

distasteful or unjust in certain contexts, particularly where 

12 We acknowledge that a federal court’s back-end review of 

arbitration awards is “both limited and highly deferential and an 

arbitration award may be vacated only if it is completely irrational or 

constitutes manifest disregard of the law.” PowerAgent Inc., 358 F.3d 

at 1193 (internal quotations and citation omitted). At least one circuit, 

however, seems to recognize that whether an arbitrator erred in rejecting 

a prospective-waiver challenge is reviewable. See Gibbs, 967 F.3d at 340 

(“The prospective waiver issue would not become ripe for final 

determination until the federal court was asked to enforce the arbitrator’s 

decision.”); see also PacifiCare Health Sys., Inc. v. Book, 538 U.S. 401, 

407 (2003).
BRICE V. HAYNES INVESTMENTS 31

they limit consumer rights and remedies, both Congress and 

the Supreme Court have instructed us to respect agreements 

to arbitrate just as any other contractual agreement. Here, 

there can be no dispute that the parties agreed to arbitrate 

both their substantive disputes as well as any gateway 

questions regarding enforceability of their arbitration 

agreement. The latter agreement—the delegation 

provision—does not prevent Borrowers from challenging 

enforceability based on prospective waiver because that 

doctrine arises from federal law. Therefore, we conclude that 

the delegation provision is not itself invalid as a prospective 

waiver and that it is for an arbitrator, not the court, to decide 

whether the parties’ arbitration agreement is enforceable.

REVERSED and REMANDED with instructions to 

stay the case and compel arbitration.

W. FLETCHER, Circuit Judge, dissenting:

Plaintiffs sued a number of defendants, alleging that they 

conspired to charge interest rates of over 400% per annum 

on internet “payday” loans, using a “rent-a-tribe” scheme in 

violation of the federal Racketeer Influenced and Corrupt 

Organizations Act (“RICO”) and of California usury and 

unjust enrichment laws. The payday loan agreements 

include agreements to arbitrate disputes related to the loan 

agreements. The arbitration agreements contain provisions 

that delegate to the arbitrator the task of determining the 

validity of the arbitration agreement. Two of the defendants 

moved to compel arbitration. The district court denied the 

motion to compel, and the two defendants appealed.

There are two questions in this appeal. The first is 

whether the delegation provisions in the arbitration 
32 BRICE V. HAYNES INVESTMENTS

agreements are valid. The second is whether the arbitration 

agreements as a whole are valid. Until now, every federal 

court but one has refused to compel arbitration in cases 

involving tribal internet payday loans. In that one case, the 

borrowers had failed to challenge the delegation provision. 

Splitting with all of our sister circuits that have addressed the 

question, my colleagues hold the delegation provisions 

valid. My colleagues do not reach the second question.

My colleagues misunderstand the effect of the choice-oflaw provisions in the agreements. Under the choice-of-law 

provisions, the arbitrator may apply only tribal law and a 

small and irrelevant subset of federal law. The prospective 

waivers of most federal law and all state law prevent the 

arbitrator from applying the law necessary to determine 

whether the delegation provisions and the arbitration 

agreements are valid. This renders both the delegation 

provisions and the arbitration agreements invalid.

I strongly but respectfully dissent.

I. Background

A. “Payday” Loans

“Payday” loans are “high-cost, small-dollar loans” made 

to low-income, low-credit borrowers with a “repayment 

system that involves the lender withdrawing funds directly 

from the borrower’s bank account.” Consumer Financial 

Regulation—CFPB’s Final Payday Lending Rule Deems It 

an “Unfair” and “Abusive” Practice to Make Payday Loans 

Without Determining Borrower Ability to Repay, 131 Harv. 

L. Rev. 1852, 1852 (2018). The loans are marketed to 

financially vulnerable consumers who typically cannot make 

timely payments on their loans. See CFPB Finalizes Rules 

to Stop Payday Debt Traps, CFPB (Oct. 5, 2017), 
BRICE V. HAYNES INVESTMENTS 33

https://www.consumerfinance.gov/about-us/newsroom/cfpb

-finalizes-rule-stop-payday-debt-traps/. Borrowers often 

must choose among defaulting, re-borrowing, or skipping 

other financial obligations such as payments for housing, 

food, or medical care. Id. Borrowers can be caught in a 

“long-term debt trap,” either “rolling over” their loan 

payments or refinancing their loans, incurring substantial 

new charges that often exceed the amount they receive in 

credit. Id. (noting that 80% of loans are reborrowed within 

a month, typically around the time the loan is due or shortly 

thereafter).

Most states regulate payday loans. These states protect 

their citizens from usurious payday lending either by 

prohibiting payday loans entirely or by capping annual 

interest rates and requiring installment repayment schedules. 

See Payday, Vehicle Title, and Certain High-Cost 

Installment Loans, 82 Fed. Reg. 54,472, 54,476 (Nov. 17, 

2017). In California, a lender generally may not charge more 

than 10% interest per annum on a loan. Cal. Const. Art. XV 

§ 1. An interest rate above 10% is usurious and renders a 

loan agreement void. Cal. Civ. Code § 1916-2; Heald v. 

Friis-Hansen, 52 Cal. 2d 834, 838–39 (1959).

Internet payday lenders have a history of noncompliance 

with state usury laws. They have used a variety of tactics to 

evade state laws, including “renting bank charters.” 

Consumer Fed’n of Am. and the U.S. Pub. Int. Rsch. Grp., 

Rent-A-Bank Payday Lending: How Banks Help Payday 

Lenders Evade State Consumer Protections (Nov. 2001), 

https://consumerfed.org/pdfs/paydayreport.pdf. Beginning 

in 2005, federal regulators began cracking down on payday 

lenders’ “rent-a-bank” arrangements. Creola Johnson, 

America’s First Consumer Financial Watchdog Is on a 

Leash: Can the CFPB Use Its Authority to Declare Payday-
34 BRICE V. HAYNES INVESTMENTS

Loan Practices Unfair, Abusive, and Deceptive?, 61 Cath. 

U. L. Rev. 381, 399 n.116 (2012).

In response, several internet payday lenders replaced 

banks with Indian tribes in so-called “rent-a-tribe” 

arrangements where tribal shell corporations, acting as fronts 

for non-Indian payday lenders, charge borrowers exorbitant 

interest rates. Id. at 399. The loan agreements for tribal 

internet payday lenders require that any dispute arising out 

of the agreement be decided by arbitration, and that the 

arbitrator decide the validity of the arbitration agreement.

Until this appeal, every federal court but one dealing 

with tribal internet payday loans has refused to compel 

arbitration. See Gingras v. Think Finance, Inc., 922 F.3d 

112 (2d Cir. 2019) (Hall, Leval, Chin, JJ. (unanimous)); 

Williams v. Medley Opportunity Fund II, LP, 965 F.3d 229 

(3d Cir. 2020) (Schwartz, Scirica, Cowen, JJ. (unanimous)); 

Gibbs v. Haynes Invs., LLC, 967 F.3d 332 (4th Cir. 2020) 

(Agee, Gregory, Motz, JJ. (unanimous)); Gibbs v. Sequoia 

Cap. Operations, LLC, 966 F.3d 286 (4th Cir. 2020) 

(unanimous); Dillon v. BMO Harris Bank, N.A., 856 F.3d 

330 (4th Cir. 2017) (Keenan, Duncan, Thacker, JJ. 

(unanimous)); Hayes v. Delbert Servs. Corp., 811 F.3d 666 

(4th Cir. 2016) (Wilkinson, Keenan, Harris, JJ., 

(unanimous)); Smith v. W. Sky Fin., 168 F. Supp. 3d 778 

(E.D. Pa. 2016); Hengle v. Asner, 433 F. Supp. 3d 825 (E.D. 

Va. 2020); Titus v. ZestFinance, Inc., 2018 WL 5084844, 

at *5 (W.D. Wash. Oct. 18, 2018), vacated on other grounds 

by Titus v. BlueChip Fin., 786 F. App’x 694 (9th Cir. 2019); 

Ryan v. Delbert Servs. Corp., 2016 WL 4702352, at *4 (E.D. 

Pa. Sept. 8, 2016); Rideout v. CashCall, Inc., 2018 WL 

1220565, at *6 (D. Nev. Mar. 8, 2018); cf. Swiger v. Rosette, 

989 F.3d 501 (6th Cir. 2021) (enforcing delegation provision 

because plaintiff failed to challenge it).
BRICE V. HAYNES INVESTMENTS 35

B. This Litigation

Named plaintiffs-appellees are Kimetra Brice, Earl 

Browne, and Jill Novorot (“Plaintiffs”). They are all 

residents of California. Using the internet in California, all 

three Plaintiffs obtained short-term, high-interest internet 

payday loans from Great Plains Lending (“Great Plains”), a 

corporation owned by the Otoe-Missouria Tribe, whose 

reservation is in Oklahoma. Plaintiff Browne also obtained 

such loans from Plain Green, a corporation owned by the 

Chippewa Cree Tribe, whose reservation is in Montana. The 

allegations in Plaintiffs’ complaint are assumed to be true.

In brief, Plaintiffs allege as follows. Defendant Kenneth 

Rees owns a company called Think Finance. Think Finance 

entered into agreements with the Otoe-Missouria Tribe and 

the Chippewa Cree Tribe. Pursuant to the agreements, the 

tribes created corporations under tribal law, Great Plains and 

Plain Green, respectively. Think Finance provided each 

corporation with funds to originate the high-interest internet 

payday loans. Think Finance controlled the terms, 

origination, and servicing of the loans.

Defendant GPL Servicing, largely owned by defendant 

Victory Park Capital Advisors, raised capital for Think 

Finance from third-party investors. Think Finance 

guaranteed investors a fixed-rate return of 18–20%. 

Defendant-appellant Haynes Investments is a private equity

firm owned and controlled by individual defendantappellant L. Stephen Haynes (collectively, the “Haynes 

defendants”). Haynes Investments provided capital to Think 

Finance for use by Plain Green. L. Stephen Haynes played 

a key role in finding a bank willing to process loan payments 

to Great Plains and Plain Green through an electronic system 

that allowed for direct access to the borrowers’ bank 

accounts.
36 BRICE V. HAYNES INVESTMENTS

With exceptions not relevant here, California’s usury law 

provides that interest rates may not exceed 10% per annum. 

Cal. Const. Art. 15, § 1; Cal. Civ. Code §§ 1916-2, 1916-3. 

The interest rate on loans made to Plaintiffs by Great Plains 

and Plain Green far exceeded 10%. Interest rates on two of 

plaintiff Novorot’s loans from Great Plains were 441.38%

and 448.67% per annum.

Plaintiffs filed a putative class action in federal district 

court against a number of defendants, including those named 

in the brief narrative above. Their complaint alleged four 

counts of violating RICO, 18 U.S.C. § 1962, one count of 

violating California’s usury statute, Cal. Civ. Code § 1916–

2, and one count of unjust enrichment under California law.

The two Haynes defendants moved to compel 

arbitration. No other defendant moved to compel arbitration. 

The district court denied the motion. The Haynes defendants 

appeal.

II. Discussion

A. Rent-A-Center

Parties to an arbitration agreement may delegate to the 

arbitrator threshold determinations of the validity and scope 

of the arbitration agreement. Rent-A-Center, W., Inc. v. 

Jackson, 561 U.S. 63, 68–70 (2010) (validity); Henry 

Schein, Inc. v. Archer and White Sales, Inc., 139 S. Ct. 524, 

528 (2019) (scope). If there is a delegation provision and the 

plaintiff seeks to avoid arbitration on the ground that the 

arbitration agreement is invalid, a plaintiff must specifically 

challenge the validity of the delegation provision, separate 

from and prior to any challenge to the arbitration agreement 

as a whole. Rent-A-Center, 561 U.S. at 72. A delegation 

provision may be held invalid for the same reason or reasons 
BRICE V. HAYNES INVESTMENTS 37

as the arbitration agreement. Id. at 74 (stating that if the 

plaintiff had challenged the delegation provision on the same 

ground as he challenged the arbitration agreement as a 

whole, the court would have considered the challenge);

MacDonald v. CashCall, Inc., 883 F.3d 220, 226–27 (3d Cir. 

2018) (“In specifically challenging a delegation clause, a 

party may rely on the same arguments that it employs to 

contest the enforceability of other arbitration agreement 

provisions.”). Only if the delegation provision is invalid 

may a court determine for itself whether the entire arbitration 

agreement is also invalid. See Rent-A-Center, 561 U.S. at 

71.

It is possible to read the Supreme Court’s later decision 

in Schein as overruling Rent-A-Center. In Schein, the Court

held that if an arbitration agreement contains a valid 

delegation provision, a court must permit the arbitrator to 

determine the scope of the arbitration agreement, even if the 

arguments in favor of arbitration are “wholly groundless.” 

139 S. Ct. at 528. Citing Rent-A-Center, 561 U.S. at 69 n.1, 

the Court wrote:

This Court has consistently held that parties 

may delegate threshold arbitrability 

questions to the arbitrator, so long as the 

parties’ agreement does so by “clear and 

unmistakable” evidence. To be sure, before 

referring a dispute to an arbitrator, the court 

determines whether a valid arbitration 

agreement exists. See 9 U.S.C. § 2. But if a 

valid agreement exists, and if the agreement 

delegates the arbitrability issue to an 

arbitrator, a court may not decide the 

arbitrability issue.
38 BRICE V. HAYNES INVESTMENTS

Schein, 139 S. Ct. at 530 (emphasis added) (some citations 

omitted).

Read on its own, the italicized language says that a court 

must first decide whether the arbitration agreement as a 

whole is valid. Only after determining that the arbitration 

agreement is valid may the court assess the validity of the 

delegation provision. So read, Schein reverses the sequence 

required by Rent-A-Center. Despite the clarity of the 

italicized language, I decline to so read Schein. If the Court 

had intended to overrule Rent-A-Center, it surely would have 

done so explicitly rather than citing the case and then 

overruling its core holding.

B. Terms of the Agreements

The loan and arbitration agreements at issue have 

materially similar language. The agreements at issue are so 

similar that the analysis below applies to all of them. I use 

the Great Plains agreement, signed by plaintiff Novorot, as 

an example. There are two agreements in the Great Plains 

agreement—a loan agreement and an arbitration agreement. 

The arbitration agreement contains a delegation provision.

1. Definition of “Dispute” and Delegation Provision

The arbitration agreement in the Great Plains agreement 

requires arbitration of any “dispute.” “Dispute” is defined 

broadly to include a controversies with claims based on 

federal or state law, in addition to controversies with claims 

based on tribal law:

AGREEMENT TO ARBITRATE: You 

and we . . . agree that any Dispute (defined 

below) will be resolved by arbitration.
BRICE V. HAYNES INVESTMENTS 39

WHAT ARBITRATION IS: “Arbitration” 

is having an independent third-party resolve 

a Dispute. A “Dispute” is any claim or 

controversy of any kind between you and us 

or otherwise involving this Agreement or the 

Loan. The term Dispute is to be given its 

broadest possible meaning and includes, 

without limitation, all federal, state or Tribal 

Law claims or demands (whether past, 

present, or future), based on any legal or 

equitable theory and regardless of the type of 

relief sought (i.e., money, injunctive relief, or 

declaratory relief). A Dispute includes any 

issue concerning the validity, enforceability, 

or scope of this Agreement or this Agreement 

to Arbitrate.

(Bolded emphasis in original; italicized emphasis added.) 

The italicized last sentence of the second paragraph—the 

“delegation provision”—assigns to the arbitrator the task of 

resolving disputes about the validity of the arbitration 

agreement.

2. Choice-of-Law Provisions

Even though a “dispute” is defined as including claims 

based on federal and state law, five choice-of-law provisions 

in the loan and arbitration agreements preclude the 

arbitrator, when deciding a dispute, from applying most 

federal law and any state law. That is, a dissatisfied 

borrower may file (indeed, is quite likely to file) a complaint 

alleging that the lender has violated federal and/or state law. 

Such a complaint constitutes a “dispute,” and the arbitrator 

is assigned the task of deciding it. However, the choice-oflaw provisions limit the law the arbitrator may apply. These 
40 BRICE V. HAYNES INVESTMENTS

provisions authorize the arbitrator to apply tribal law and 

small subset of federal law, and preclude the arbitrator from 

applying most federal law and any state law.

There are two choice-of-law provisions in the arbitration 

agreement. The most prominent provides:

APPLICABLE LAW . . . THIS 

AGREEMENT TO ARBITRATE SHALL 

BE GOVERNED BY TRIBAL LAW. The 

arbitrator shall apply Tribal Law and the 

terms of this Agreement, including this 

Agreement to Arbitrate and the waivers 

included herein.

(Bolded emphasis in original.) Another, in the previous 

paragraph, provides: “The arbitrator has the ability to award 

all remedies available under Tribal Law, whether at law or 

in equity, to the prevailing party[.]”

There are three choice-of-law provisions in the loan 

agreement. The first is on the first page of the loan 

agreement. Under the heading “IMPORTANT 

DISCLOSURE,” it provides:

YOU AGREE THAT THIS LOAN IS 

MADE WITHIN THE TRIBE’S 

JURISDICTION AND IS SUBJECT TO 

AND GOVERNED BY TRIBAL LAW 

AND NOT THE LAW OF YOUR 

RESIDENT STATE. . . . YOUR 

RESIDENT STATE LAW MAY HAVE 

INTEREST RATE LIMITS AND OTHER 

CONSUMER PROTECTION 

PROVISIONS THAT ARE MORE 

FAVORABLE. IF YOU WISH TO HAVE 
BRICE V. HAYNES INVESTMENTS 41

YOUR RESIDENT STATE LAW APPLY 

TO ANY LOAN THAT YOU TAKE OUT, 

YOU SHOULD CONSIDER TAKING A 

LOAN FROM A LICENSED LENDER IN 

YOUR STATE.

(Bolded emphasis in original.)

The second immediately precedes the agreement to 

arbitrate. It provides:

GOVERNING LAW; NONAPPLICABILITY OF STATE LAW; 

INTERSTATE COMMERCE: This 

Agreement and the Agreement to Arbitrate 

are governed by Tribal Law and such federal 

law as is applicable under the Indian 

Commerce Clause of the Constitution of the 

United States of America. . . . Neither this 

Agreement nor the Lender is subject to the 

laws of any state of the United States. The 

Lender may choose to voluntarily use certain 

federal laws as guidelines for the provision of 

services. Such voluntary use does not 

represent acquiescence of the OtoeMissouria Tribe to any federal law unless 

found expressly applicable to the operations 

of the Otoe-Missouria tribe.

(Bolded emphasis in original.)

The third is at the very end of the loan agreement. The 

borrower is asked to check a box:

By checking here and signing below, you 

understand, acknowledge and agree that
42 BRICE V. HAYNES INVESTMENTS

. . . . this Loan is governed by the laws of 

the Otoe-Missouria Tribe and is not 

subject to the provisions or protections of 

the laws of your home state or any other 

state.

(Bolded emphasis in original.)

Each of the five choice-of-law provisions just quoted 

provides that tribal law is to be applied in resolving 

“disputes.” Three of them expressly preclude the application 

of state law. For example, as specified in the loan 

agreement, the lender is not “subject to the laws of any state 

of the United States.” But see Martyn v. Leslie, 137 Cal. 

App. 2d 41, 57 (Ct. App. 1955) (“[N]o borrower is estopped 

from asserting usury merely because he has knowingly met 

the usurious exactions of the lender.”).

One of the choice-of-law provisions allows the 

application of two categories of federal law. The first is 

federal law that is “applicable under the Indian Commerce 

Clause.” Examples of such law include the Indian Gaming 

Regulatory Act, Pub. L. No. 100-497, 102 Stat. 2467 (1988) 

(codified as amended at 25 U.S.C. §§ 2701–2721), at issue 

in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), 

and the Indian Child Welfare Act, Pub. L. No. 95-608, 92 

Stat. 3069 (1978) (codified as amended at 25 U.S.C. 

§§ 1901–1963), at issue in Santa Clara Pueblo v. Martinez, 

436 U.S. 49 (1978). The second is federal law to which the 

tribe voluntarily acquiesced, provided the law is “found 

expressly applicable to the operations of the Otoe-Missouria 

tribe.” A statute naming the Otoe-Missouria tribe in 

particular and controlling its operation would certainly be 

included. It is unclear how far beyond such a law this second 
BRICE V. HAYNES INVESTMENTS 43

category extends. However, for our purposes it does not 

matter.

Two things about these references to federal law are 

important. First, under the principle of expressio unius est 

exclusio alterius (express mention of one item in a class 

excludes all others in the same class), the arbitrator is 

allowed to apply only federal law that comes within the two 

categories mentioned in the choice-of-law provision. The 

arbitrator is precluded from applying any other federal law. 

Second, whatever the scope of these two categories of 

federal law, the two federal statutes at issue in this appeal—

the FAA and RICO—are not included.

Consistent with the expressio unius principle, the 

Haynes defendants do not argue that the arbitrator may apply 

federal law outside these two categories. Rather, they argue 

that tribal law will provide effective remedies to borrowers. 

Without citing specific tribal laws, the Haynes defendants 

argue that it is a “clear and indisputable fact that both 

Chippewa Cree and Otoe-Missouria law do, in fact, provide 

Plaintiffs with remedies for their claims.” They argue, 

further, that “the only evidence of the Native American laws 

presented to the district court definitively showed that the 

Plaintiffs possess significant remedies under the Native 

American laws at issue here.” Notably, the Haynes 

defendants nowhere argue or even suggest that tribal law has 

incorporated the FAA or RICO, or that it contains their 

functional equivalents. See Gibbs, 967 F.3d at 344 (“[E]ven 

if the borrowers could assert a RICO claim against the 

Haynes Defendants under tribal law, the rest of the [Tribal] 

Ordinance fails to clarify how any consumer could 

meaningfully pursue any claims under it.”).
44 BRICE V. HAYNES INVESTMENTS

C. The FAA’s Prospective Waiver Rule

It is established law under the FAA that an arbitration 

agreement prospectively waiving the right to seek federal or 

non-federal (including state) statutory remedies is invalid. 

The prospective waiver rule—or, as it is sometimes called, 

the effective vindication exception—was first articulated in 

Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614 

(1985). Plaintiffs brought suit under the antitrust statutes of 

the United States and of Puerto Rico. Id. at 619–20. The 

Court held that an arbitration agreement is enforceable “so 

long as the prospective litigant effectively may vindicate its 

statutory cause of action in the arbitral forum.” Id. at 637. 

The Court elaborated in a footnote, writing in dictum that 

provisions in an arbitration agreement operating “as a 

prospective waiver of a party’s right to pursue statutory 

remedies for antitrust violations” would be struck down with 

“little hesitation . . . as against public policy.” Id. at 637 n.19 

(emphasis added).

In American Express v. Italian Colors Restaurant, 

570 U.S. 228 (2013), the Court affirmed its earlier dictum. 

At issue was a class action waiver, which the Court upheld 

as not inconsistent with “effective vindication” under 

Mitsubishi. The Court characterized the prospective waiver 

rule as a “judge-made exception to the FAA.” Id. at 235. 

The Court wrote:

[T]he exception finds its origin in the desire 

to prevent “prospective waiver of a party’s 

right to pursue statutory remedies,” 

Mitsubishi Motors, [473 U.S.] at 737, n.19 

(emphasis added). That would certainly 

cover a provision in an arbitration 
BRICE V. HAYNES INVESTMENTS 45

agreement forbidding the assertion of certain 

statutory rights.

Id. at 236 (emphasis added).

The plaintiff in American Express had contended that the 

cost of pursuing its case as an individual plaintiff was greater 

than the likely recovery, and that as a practical matter the 

class action waiver rendered the statutory remedy 

ineffective. The Court responded, “[T]he fact that it is not 

worth the expense involved in proving a statutory remedy 

does not constitute the elimination of the right to pursue that 

remedy.” Id. Thus, under American Express, if an 

arbitration agreement renders the vindication of a statutory 

right impracticable, the prospective waiver rule is not 

applicable. But if the arbitration agreement prevents a party 

from vindicating a statutory right by categorically 

eliminating the right to pursue it, the agreement is an invalid 

prospective waiver. Though the Court in Mitsubishi Motors

and American Express was dealing with waivers of federal 

and non-federal statutory rights, the prospective waiver rule, 

by its logic, should apply to federal and non-federal 

constitutional and common law rights as well.

D. Validity of the Delegation Provision and the Arbitration 

Agreement

As required by Rent-A-Center, I first address the validity 

of the delegation provision. See 561 U.S. at 71, 74. I then 

address the validity of the arbitration agreement as a whole. 

For the reasons that follow, I conclude that both the 

delegation provision and the arbitration agreement are 

invalid.
46 BRICE V. HAYNES INVESTMENTS

1. Delegation Provision

The delegation provision is a severable agreement that 

must be specifically challenged. Rent-A-Center, 561 U.S. at 

72–73 (declining to address the plaintiff’s argument that the 

arbitration agreement as a whole was unconscionable 

because the plaintiff failed to specifically challenge the 

validity of the delegation provision); Swiger, 989 F.3d at 507 

(the plaintiff’s failure to challenge the delegation provision 

specifically prevented court from “reaching the issues 

addressed in [other rent-a-tribe] cases, where the plaintiffs 

challenged their delegation clauses.”). As required by RentA-Center, Plaintiffs have specifically challenged the 

delegation provision, both in the district court and in our 

court.

Under the choice-of-law provisions in the arbitration and 

loan agreements, Plaintiffs prospectively waived the 

application of most federal law and all state law. Absent the 

choice-of-law provisions, the arbitrator could apply the 

federal and state law necessary to determine the validity of 

the arbitration agreement. See 9 U.S.C. § 2 (arbitration 

contracts are “valid, irrevocable, and enforceable, save upon 

such grounds as exist at law or in equity for the revocation 

of any contract”). Federal-law grounds include the FAA’s 

prospective waiver rule. State-law grounds include 

generally applicable doctrines of fraud, duress, or 

unconscionability. AT&T Mobility LLC v. Concepcion, 

563 U.S. 333, 339 (2011). Without access to most federal 

law and any state law, the arbitrator is unable to apply any 

of these grounds. I need not reach any of the potentially 

applicable state-law grounds because I conclude the 

delegation provision is invalid under the federal prospective 

waiver rule of the FAA.
BRICE V. HAYNES INVESTMENTS 47

By severely limiting the federal law the arbitrator may 

apply, the choice-of-law provisions prospectively waive the 

application of the FAA’s prospective waiver rule, in 

violation of Mitsubishi Motors and American Express. See 

Am. Express, 570 U.S. at 236 (“[The prospective waiver 

rule] would certainly cover a provision in an arbitration 

agreement forbidding the assertion of certain statutory 

rights.” (emphasis added). If the arbitrator were allowed to 

apply the FAA’s prospective waiver rule in determining the 

validity of the arbitration agreement, the arbitrator would ask 

whether the agreement impermissibly waives federal and 

state statutory rights. Those statutory rights include RICO, 

18 U.S.C. § 1962 (prohibited activities), and § 1964 (civil 

remedies), and California’s anti-usury statute, Cal. Civ. 

Code § 1916-2 (maximum interest rate and remedies), 

§ 1916-3 (civil liability). If non-statutory rights are also 

covered by the prospective waiver rule, state-law rights 

would include unjust enrichment under California law. See 

Ghirardo v. Antonioli, 924 P.2d 996, 1003 (Cal. 1996) 

(describing the unjust enrichment doctrine). Because the 

choice-of-law provisions prospectively waive the 

prospective waiver rule, the arbitrator cannot find the 

arbitration agreement invalid under either federal or state 

law. The arbitrator’s validity inquiry under the delegation 

provision is thus illusory, with the foreordained result that 

Plaintiffs will be required to arbitrate under an agreement 

that categorically forecloses relief on their federal and state 

claims.

I therefore conclude under Mitsubishi Motors and 

American Express that because the arbitrator cannot apply 

the FAA’s prospective waiver rule in determining the 

validity of the arbitration agreement, the delegation 

provision is invalid.
48 BRICE V. HAYNES INVESTMENTS

2. Arbitration Agreement as a Whole

Because the delegation provision is invalid, a court 

rather than the arbitrator determines the validity of the 

arbitration agreement as a whole. My colleagues do not 

reach this issue because they hold the delegation provision 

valid. Because I conclude that the delegation provision is 

invalid, I reach the issue. I conclude that the arbitration 

agreement as a whole is invalid.

The FAA allows parties considerable freedom to 

structure arbitration agreements. However, as discussed 

above, an arbitration agreement may not operate as a 

prospective waiver, preventing plaintiffs from effectively 

vindicating their federal or state statutory rights. The choiceof-law provisions, as applied to the arbitration agreement, 

prospectively waive Plaintiffs’ rights under the federal 

RICO and the California usury statutes, as well as under 

California’s common law unjust enrichment doctrine.

The choice-of-law provisions thus foreclose the 

application of relevant federal law and of any state law. The 

loan and arbitration agreements’ choice-of-law provisions 

prevent plaintiff Novorot from arguing that defendants 

committed federal RICO violations, see 18 U.S.C. § 1962(c) 

(forbidding a pattern of unlawful debt collection), 1964 

(remedies for violations); from challenging the loan’s 

usurious interest rate of 441.38% in violation of California 

Civil Code §§ 1916-2 (maximum interest rate and remedies), 

1916-3 (civil liability); and from claiming that unjust 

enrichment resulted from the usurious rate. This violates the 

prospective waiver rule, rendering the arbitration 

agreements invalid. See Am. Express, 570 U.S. at 236.
BRICE V. HAYNES INVESTMENTS 49

E. The Majority Opinion

My colleagues hold that the delegation provision is valid. 

The key to their holding is the paragraph that defines 

“dispute” and contains the delegation provision. My 

colleagues conclude that this paragraph authorizes the 

arbitrator to apply federal law. They write:

The plain language of the delegation 

provision does not foreclose the arbitrator 

from considering enforceability disputes 

based on federal law. The description of 

what an arbitrator can decide expressly 

includes enforceability disputes arising under 

“federal, state, or Tribal law . . . based on any 

legal or equitable theory.” This necessarily 

means that Borrowers’ rights to pursue their 

federal prospective-waiver argument remains 

intact at this stage of the proceedings and the 

delegation provision is not facially a 

prospective waiver.

Maj. Op. at 15 (emphasis in original).

My colleagues misunderstand the paragraph. For the 

convenience of the reader, here it is again:

“Arbitration” is having an independent thirdparty resolve a Dispute. A “Dispute” is any 

claim or controversy of any kind between you 

and us or otherwise involving this Agreement 

or the Loan. The term Dispute is to be given 

its broadest possible meaning and includes, 

without limitation, all federal, state or Tribal 

Law claims or demands (whether past, 

present, or future), based on any legal or 
50 BRICE V. HAYNES INVESTMENTS

equitable theory and regardless of the type of 

relief sought (i.e., money, injunctive relief, or 

declaratory relief). A Dispute includes any 

issue concerning the validity, enforceability, 

or scope of this Agreement or this Agreement 

to Arbitrate.

This paragraph is simultaneously a definitional provision 

(defining “arbitration” and “dispute”) and a forum selection 

clause (delegating to an arbitrator the task of deciding 

“disputes”). It is not a choice-of-law provision.

My colleagues make a fundamental mistake, treating the 

paragraph as if it were a choice-of-law provision. It is true 

that the paragraph defines “dispute” broadly to include

controversies based on federal and state claims. It does so 

because these are precisely the claims dissatisfied borrowers 

are most likely to bring when challenging the loan 

agreements. The defendants very much wanted such claims 

to be brought before an arbitrator rather than a court. But 

they did not want the claims to be decided under the federal 

or state law that would provide effective remedies. They 

therefore included choice-of-law provisions—five of them—

in the arbitration and loan agreements, foreclosing the 

application of all but a small and irrelevant subset of federal 

law and entirely foreclosing the application of state law.

In their central argument, my colleagues contend that the 

paragraph defining “dispute” and containing the delegation 

provision overrides the choice-of-law provisions. They 

conclude that because the paragraph defines “dispute” as 

including claims brought under federal law, the paragraph 

authorizes the arbitrator to apply federal law. They write:

[W]e conclude that the delegation provision 

is enforceable because it does not eliminate 
BRICE V. HAYNES INVESTMENTS 51

Borrowers’ right to pursue in arbitration their 

prospective-waiver challenge to the 

arbitration agreement as a whole, even 

though that challenge arises under federal 

law.

Maj. Op. at 14–15 (second emphasis added). I strongly 

disagree. The paragraph defines “dispute” as including 

claims based on federal law, but it does not authorize the 

application of federal law. My colleagues write, further, that 

the choice-of-law provisions do not override the “mandate” 

of the paragraph that the arbitrator apply federal law:

While the choice-of-law provisions dictating 

that tribal law governs the parties’ 

relationship could be viewed as conflicting 

with the delegation provision’s plain 

meaning, they do not defeat its plainly stated 

mandate that the arbitrator decide 

arbitrability issues from whatever source they 

arise.

Id. at 16. Again, I strongly disagree. The delegation 

provision is a “plainly stated mandate” that the arbitrator 

decide a “dispute,” defined as including claims under federal 

law. But the delegation provision is not a “mandate”—let 

alone a “plainly stated mandate”—that the arbitrator apply 

federal law.

A simple example will illustrate my colleagues’ 

fundamental mistake. Imagine an arbitration agreement 

between two parties. One party is French. The other is 

English. The agreement defines a “dispute” as a 

disagreement between the parties arising out of a contract 

between them. One paragraph of the agreement defines 
52 BRICE V. HAYNES INVESTMENTS

“dispute” as including claims based on any law, including 

French and English law, and specifies that any dispute is to 

be decided by an arbitrator. Another paragraph—the choiceof-law paragraph—specifies that the arbitrator is to use 

German law to decide any “dispute.” It is hornbook law that 

the arbitrator must apply German law, as directed by the 

choice-of-law paragraph, even if a party seeks to rely on 

French or English law.

So it is here. The arbitration agreement defines “dispute” 

as including claims brought under federal or state law. But 

the choice-of-law provisions of the arbitration and loan 

agreements specify that the arbitrator is to apply tribal law, 

and a small and irrelevant subset of federal law, in deciding 

a “dispute.”

In a fall-back argument, my colleagues misread the 

choice-of-law provision referring to federal law. They 

contend that the choice-of-law provisions, including this 

one, allow the arbitrator to apply the full range of federal 

law. As described above, the second choice-of-law 

provision in the loan agreement authorizes the arbitrator to 

apply two categories of federal law specific to Indians. 

Neither category includes the FAA or RICO. Under the 

venerable expressio unius interpretive principle, the 

arbitrator may apply only those two categories of federal 

law.

In an attempt to avoid the force of the expressio unius

principle, my colleagues quote language from the arbitration 

agreement. They write that “the arbitration agreement 

authorizes an arbitrator to decide disputes ‘based on any 

legal or equitable theory . . . includ[ing] any issue 

concerning the validity, enforceability, or scope of . . . [the 

arbitration agreement].’” Maj. Op. at 19 (emphasis and 

alterations in original). Therefore, according to my 
BRICE V. HAYNES INVESTMENTS 53

colleagues, an argument based on the expressio unius

principle “stretches the Latin beyond reason.” The quoted 

language comes from the paragraph defining “dispute.” It

does not come from a choice-of-law provision. It in no way 

suggests that the expressio unius principle does not apply to 

the choice-of-law provision that authorizes the arbitrator to 

apply two, and only two, categories of federal law.

As noted above, the Hayes defendants do not agree with 

my colleagues, and have made no arguments that would 

support their conclusion. The Hayes defendants do not 

contend that the arbitrator may apply federal law outside the 

two specified categories of federal law. They contend, 

instead, that tribal law provides effective remedies to 

Plaintiffs.

Conclusion

Our sister circuits have consistently condemned the 

arbitration agreements embedded in tribal internet payday 

loan agreements, including those used by the very same 

lenders as in this case. See Think Finance, 922 F.3d 112 (2d 

Cir. 2019). In the words of the Fourth Circuit, payday 

lenders use these agreements “to avoid state and federal law 

and to game the entire system.” Hayes, 811 F.3d at 676. 

Based on a reading of the arbitration agreement that even the 

payday lenders have not been willing to advance, my 

colleagues improperly force vulnerable borrowers into 

arbitration.

I strongly but respectfully dissent.