PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-1434

DARLENE GIBBS; STEPHANIE EDWARDS; LULA WILLIAMS; PATRICK 

INSCHO; LAWRENCE MWETHUKU, on behalf of themselves and all individuals 

similarly situated,

 Plaintiffs – Appellees,

v.

HAYNES INVESTMENTS, LLC; L. STEPHEN HAYNES; SOVEREIGN 

BUSINESS SOLUTIONS, LLC,

 Defendants – Appellants,

and

VICTORY PARK CAPITAL ADVISORS, LLC; VICTORY PARK 

MANAGEMENT, LLC; SCOTT ZEMNICK; JEFFREY SCHNEIDER; THOMAS 

WELCH,

 Defendants.

--------------------------------

NATIVE AMERICAN FINANCIAL SERVICES ASSOCIATION,

 Amicus Supporting Appellants,

AMERICAN ASSOCIATION FOR JUSTICE,

Amicus Supporting Appellees.
2

Appeal from the United States District Court for the Eastern District of Virginia, at

Richmond. M. Hannah Lauck, District Judge. (3:18-cv-00048-MHL)

Submitted: May 29, 2020 Decided: July 21, 2020

Before GREGORY, Chief Judge, MOTZ, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the opinion, in which Chief Judge 

Gregory and Judge Motz joined.

David N. Anthony, Timothy St. George, TROUTMAN SANDERS LLP, Richmond, 

Virginia; Richard L. Scheff, David F. Herman, ARMSTRONG TEASDALE, LLP, 

Philadelphia, Pennsylvania, for Appellants. Kristi C. Kelly, Andrew J. Guzzo, KELLY 

GUZZO, PLC, Fairfax, Virginia; Matthew W.H. Wessler, GUPTA WESSLER PLLC, 

Washington, D.C.; Leonard A. Bennett, Craig C. Marchiando, Elizabeth W. Hanes, 

CONSUMER LITIGATION ASSOCIATES, P.C., Newport News, Virginia; Anna C. 

Haac, TYCKO & ZAVAREEI LLP, Washington, D.C., for Appellees. Patrick O. 

Daugherty, Frances B. Morris, VAN NESS FELDMAN LLP, Washington, D.C., for 

Amicus Curiae. Bruce Stern, Jeffrey R. White, AMERICAN ASSOCIATION FOR 

JUSTICE, Washington, D.C., for Amicus Curiae.
3

AGEE, Circuit Judge:

This appeal considers the enforceability of arbitration agreements included within

the terms of payday loans issued by two online lenders. After a group of borrowers filed 

suit against the entities and others (collectively, the “Haynes Defendants”) that invested in 

these lenders, challenging the legality of the loans issued, the Haynes Defendants filed a 

motion to compel arbitration. The district court denied the motion on the basis that the 

arbitration agreements operated as prospective waivers. The Haynes Defendants now 

appeal. For the reasons set forth below, we affirm the judgment of the district court. 

I.

The plaintiffs are Virginia consumers who borrowed money between 2013 and 2016

from one of two online lenders owned by a sovereign Native American tribe.1 The first 

lender, Plain Green, LLC, is owned and operated by the Chippewa Cree Tribe of the Rocky 

Boy’s Reservation in Montana. The second, Great Plains Lending, LLC, is owned and

operated by the Otoe-Missouria Tribe of Oklahoma.2 Although Virginia usury law 

1 Plaintiffs Lawrence Mwethuku and Darlene Gibbs took out loans from Plain 

Green, LLC in 2013 and 2016, respectively. Meanwhile, plaintiffs Stephanie Edwards, 

Lula Williams, and Patrick Inscho received loans from Great Plains Lending, LLC in 2015, 

2016, and 2016, respectively. 2 The district court did not consider—nor does it appear that the borrowers alleged—

any specific claims against the lending operations themselves. Rather, because both Plain 

Green and Great Plains sought immunity as arms of their respective tribes, the district court 

concluded that only the Haynes Defendants “remain in this action[.]” J.A. 435. The 

borrowers do not contest this point on appeal.
4

generally prohibits interest rates in excess of twelve percent, Va. Code Ann. § 6.2-303, the

laws of both Tribes permit higher rates. As a result, the interest rates on the loans—which 

varied in principal amounts from $500 to $1,700—ranged from 219.38% to 373.97%. J.A. 

439.

In order to obtain the loans, each borrower electronically signed a contract that 

contained (1) the terms governing the loan (the “loan agreement”) as well as (2) an 

agreement to arbitrate any disputes (the “arbitration agreement”). Both agreements

contained choice-of-law provisions requiring the application of tribal law. For example, a

choice-of-law provision in Gibbs’s 2016 Plain Green loan agreement stipulated that “[t]his 

Agreement and the Agreement to Arbitrate are governed by Tribal Law.” J.A. 341. Further,

the arbitration agreement included provisions stating the agreement “shall be governed by 

Tribal Law” and the “arbitrator shall apply Tribal Law.” J.A. 343. Similarly, Mwethuku’s

older 2013 Plain Green loan provided that both the loan and arbitration agreements “are 

governed by . . . the laws of the Chippewa Cree Tribe,” and that the arbitrator “will apply 

the laws of the Chippewa Cree Tribe[.]” J.A. 384.

Likewise, all three 2015 and 2016 Great Plains loan agreements indicated the lender 

could choose to voluntarily use federal laws as guidance, but that the agreements ultimately

In turn, according to the borrowers, the Haynes Defendants—Haynes Investments, 

LLC; Sovereign Business Solutions, LLC; and L. Stephen Haynes, the managing member 

of both businesses—“funded and partially operated” both tribal lending operations. J.A. 

14. Further, “[w]hen regulators targeted [the operations],” Haynes allegedly played a 

“critical role” in finding a bank to partner with Plain Green and Great Plains to continue 

their operations. J.A. 438.
5

would be governed by tribal law: “This Agreement and the Agreement to Arbitrate are 

governed by Tribal law and such federal law as is applicable under the Indian Commerce 

Clause,” but “[s]uch voluntary use [of federal laws as guidelines for the provision of 

services] does not represent acquiescence of the Otoe-Missouria Tribe to any federal law 

unless found expressly applicable to the operations of the Otoe-Missouria Tribe[.]” J.A. 

352; see also J.A. 362–63, 373. Similarly, the Great Plains arbitration agreement specified

that “[t]his agreement to arbitrate shall be governed by Tribal Law”; “[t]he arbitrator shall 

apply Tribal Law”; and the arbitration award “must be consistent with this Agreement and 

Tribal Law[.]” J.A. 354; see also J.A. 364, 375. Finally, a number of other provisions in

both lenders’ loan agreements—such as those requiring borrowers who chose to opt out of 

arbitration to resolve any disputes through tribal court systems in accordance with tribal 

law—also stipulated the application of tribal law.

After receiving the loans from the two online lenders, the borrowers brought a 

putative class action complaint alleging, among other claims, that the lenders’ loans were 

unlawful under Virginia’s usury laws and that the Haynes Defendants’ receipt of “income 

derived . . . through collection of unlawful debt” and reinvestment of such income to further 

the lending scheme violated the Racketeer Influenced and Corrupt Organizations Act

(“RICO”), 18 U.S.C. § 1962. J.A. 38. In response, the Haynes Defendants moved to compel 

arbitration under 9 U.S.C. § 4 or, alternatively, to dismiss the complaint under Federal Rule 

of Civil Procedure 12(b)(6). The district court denied both motions. 
6

As relevant to the motion to compel arbitration, the district court relied upon two

Fourth Circuit cases—Hayes v. Delbert Services Corporation, 811 F.3d 666, 671 (4th Cir. 

2016), and Dillon v. BMO Harris Bank, N.A., 856 F.3d 330, 332 (4th Cir. 2017)—both of 

which considered similar tribal loan and arbitration agreements with choice-of-law clauses 

providing for the nearly exclusive application of tribal law, to the exclusion of state and 

federal law. As in those cases, the district court here found that because the choice-of-law 

provisions in the arbitration agreements “sought to prospectively exclude the application 

of federal law”—including the assertion of any federal statutory claims by the borrowers—

the agreements “[ran] afoul of the prospective waiver doctrine[.]” J.A. 461. And because, 

the court concluded, “arbitration agreements that operate as a prospective waiver of a 

party’s right to pursue statutory remedies are not enforceable because they are in violation 

of public policy,” J.A. 454 (internal quotation marks omitted), the arbitration agreements 

at issue were likewise unenforceable. 

The Haynes Defendants timely appealed, arguing that: (1) the district court ignored 

the arbitration agreements’ delegation provisions requiring an arbitrator to resolve all 

threshold issues of arbitrability, including whether the choice-of-law clauses amounted to 

a prospective waiver; and (2) even if the court was correct to consider the effect of the 

provisions, they did not operate as a prospective waiver. We address each issue in turn, 

mindful of the “strong federal policy in favor of enforcing arbitration agreements[.]” Dean 

Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 217 (1985).
7

II.

We turn first to the delegation clauses. Each of the arbitration agreements contained 

a delegation clause stipulating that the parties would arbitrate “any issue concerning the 

validity, enforceability, or scope of this Agreement or this Agreement to Arbitrate.” J.A. 

342; see also J.A. 353, 363, 374, 383. As a result, the Haynes Defendants argue, any 

threshold questions as to the enforceability of the arbitration agreements should have first 

been sent to an arbitrator. We disagree. Because the borrowers sufficiently challenged the 

validity of the delegation clauses, the district court was correct to consider the 

enforceability of the arbitration agreements.

A.

The question of who decides arbitrability—the court or the arbitrator—is one we 

review de novo. Of course, parties to an arbitration agreement can “agree to arbitrate 

gateway questions of arbitrability, such as whether the parties have agreed to arbitrate or 

whether their agreement covers a particular controversy.” Rent-A-Center, W., Inc. v. 

Jackson, 561 U.S. 63, 68–69 (2010) (internal quotation marks omitted). Thus, when an 

agreement “clearly and unmistakably” delegates the threshold issue of arbitrability to the 

arbitrator, a court must enforce that delegation clause and send that question to arbitration. 

Id. at 67 (internal citation omitted). However, if the claimant specifically attacks the 

validity of the delegation clause itself, a court may consider that clause’s enforceability.

Minnieland Private Day Sch., Inc. v. Applied Underwriters Captive Risk Assurance Co., 

Inc., 867 F.3d 449, 455 (4th Cir. 2017).
8

In Rent-A-Center, the Supreme Court held that when a litigant specifically 

challenges the enforceability of an arbitration agreement with a delegation clause, the 

challenge must be submitted to the arbitrator unless the plaintiff has lodged a specific 

objection to the delegation clause (which a court may consider). There, the plaintiff had 

signed as a condition of his employment an arbitration agreement that contained a broad

delegation clause requiring arbitration of any issue “relating to the interpretation, 

applicability, enforceability or formation of this Agreement including, but not limited to 

any claim that all or any part of this Agreement is void or voidable.” Rent-A-Center, 561 

U.S. at 66 (internal quotation marks omitted). After the plaintiff filed an employment 

lawsuit, his employer sought to compel arbitration. The plaintiff opposed the motion on 

the grounds that the arbitration agreement was “clearly unenforceable” because certain 

aspects of the agreement, such as arbitration fee splitting, were “unconscionable” under 

state law. Id. (internal quotation marks omitted).

But the Supreme Court—observing that a delegation clause “is simply an additional, 

antecedent agreement the party seeking arbitration asks the federal court to enforce,” id. at 

70—concluded that the plaintiff could not lodge such a challenge to the enforceability of 

the arbitration agreement as a whole because of the presence of the delegation clause.

Rather, only if he had “challenge[d] the validity under [9 U.S.C] § 2 of the precise 

agreement to arbitrate at issue [could the] federal court . . . consider the challenge before 

ordering compliance with that agreement under § 4.” Id. at 71. Put another way, unless the 

plaintiff has “challenged the delegation provision specifically, we must treat it as valid 
9

under § 2 and must enforce it under §§ 3 and 4, leaving any challenge to the validity of the 

Agreement as a whole for the arbitrator.” Id. at 72.

Importantly, however, the Court observed that challenges to the overall arbitration 

agreement could also be specifically directed at the delegation provision. As the Supreme 

Court explained, had the plaintiff “challenged the delegation provision by arguing that [the 

purportedly unconscionable arbitration procedures] as applied to that delegation provision 

rendered that provision unconscionable, the challenge should have been considered by the 

court.” Id. at 74. But given that the plaintiff had not mentioned the delegation provision at 

all in his opposition to the motion to compel arbitration, he had failed to present a viable 

challenge. Id. Applying this view from Rent-A-Center, we concluded in Minnieland that 

the plaintiff’s argument that the applicability of a certain Virginia statute “rendered void 

‘any’ arbitration provision” “necessarily include[d] the delegation provision, which is 

simply ‘an additional, antecedent agreement’ to arbitrate,” 867 F.3d at 455, and that the

plaintiff had sufficiently challenged the delegation provision to warrant judicial review.

Other courts have adopted a similar reading of Rent-A-Center: for example, the Third 

Circuit has noted 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 

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

2018). “To do so, the party must at least reference the provision in its opposition to a motion 

to compel arbitration.” Id. at 226.
10

In sum, in assessing the enforceability of an arbitration agreement containing a 

delegation provision, “we first must decide whether [the plaintiff] lodged a challenge 

against the delegation provision . . . . Second, if we conclude that [he or she] specifically 

challenged the enforceability of the delegation provision, we then must decide whether the 

delegation provision is unenforceable ‘upon such grounds as exist at law or in equity.’”

Minnieland, 867 F.3d at 455 (quoting 9 U.S.C. § 2). 

B.

With this legal framework in mind, we now consider whether the borrowers have 

lodged a sufficient challenge to the delegation provisions and, if so, whether the district 

court properly considered the challenge. The Haynes Defendants argue that the delegation 

provisions are valid and enforceable, which, in turn, should have compelled the district 

court to let the arbitrator resolve all threshold issues of arbitrability. We disagree with this 

argument for the simple reason that the borrowers challenged those clauses with “sufficient 

force and specificity,” Hayes, 811 F.3d at 671 n.1, to warrant the district court’s threshold 

review as to whether they were enforceable. Specifically, in their opposition to the motion 

to compel arbitration, the borrowers argued that the “delegation clause[s] [are]

unenforceable for the same reason as the underlying arbitration agreement—the . . . 

wholesale waiver of the application of federal and state law[.]” J.A. 404. And as Rent-ACenter observed, such a challenge is all that is required to dispute the viability of the 

delegation provisions. 561 U.S. at 72–73; see also MacDonald, 883 F.3d at 227.
11

In turn, because this challenge to the delegation provisions necessarily encompassed 

and included arguments that related to the validity of the arbitration agreements as a 

whole—specifically, whether the choice-of-law provisions amounted to a prospective 

waiver—the district court did not err by considering the challenge to the delegation clauses

in the context of the challenge to the entirety of the agreements.

3 This is because “[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.” MacDonald, 883 

F.3d at 226–27; see also Gingras v. Think Finance, Inc., 922 F.3d 112, 126 (2d Cir. 2019) 

(recognizing the presence of a delegation clause but concluding that the plaintiff’s “specific 

attack on the delegation provision is sufficient to make the [broader] issue of arbitrability 

one for a federal court”); Dillon, 856 F.3d at 335 (declining to “defer consideration of the 

prospective waiver doctrine until after the arbitrator construe[d] the choice of law 

3 Although the district court considered the effect of the choice-of-law provisions 

on the entirety of the arbitration agreements (rather the delegation provisions specifically), 

its overall conclusions as to the agreements’ enforceability provides—in combination with 

the borrowers’ specific challenge to the delegation clauses—sufficient grounds for 

affirmance. See Thigpen v. Roberts, 468 U.S. 27, 30 (1984) (“[W]e may affirm on any 

ground that the law and the record permit and that will not expand the relief granted 

below.”). Ultimately, the district court’s decision to address the choice-of-law provisions 

in the context of the entirety of the agreements makes no difference to our analysis here 

because the borrowers’ challenge to the validity of the delegation provisions specifically 

and the arbitration agreements as a whole stems from the same issue. Cf. Lloyd’s Syndicate 

457 v. FloaTEC, L.L.C., 921 F.3d 508, 515 (5th Cir. 2019) (observing that “attacks on [a 

valid] arbitration agreement’s existence [were] step one matters for the courts, not 

arbitrators”); see also Brice v. Plain Green, LLC, 372 F. Supp. 3d 955, 969 (N.D. Cal. 

2019) (“The issue of whether there are clear and unmistakable delegation provisions . . . is 

secondary to the determination of whether the agreements are unenforceable prospective 

waivers.”).
12

provision” because “that provision effects an unambiguous and categorical waiver of 

federal statutory rights”); Hayes, 811 F.3d at 671 n.1 (concluding the borrowers in that case 

had “challenged the validity of that delegation with sufficient force and specificity to 

occasion [the Court’s] review”); Smith v. W. Sky Fin., LLC, 168 F. Supp. 3d 778, 786 (E.D. 

Pa. 2016) (noting that “enforcing the delegation provision would place an arbitrator in the 

impossible position of deciding the enforceability of the agreement without authority to 

apply any applicable federal or state law”).

4 In sum, given that the borrowers specifically 

challenged the delegation provisions, the question of their enforceability was one for the 

courts—rather than the arbitrator—to decide. 

4 The Haynes Defendants rely on Henry Schein, Inc. v. Archer & White Sales, Inc.

as reinforcement for the proposition that if the contract “delegates the arbitrability issue to 

an arbitrator, a court may not decide the arbitrability issue.” 139 S. Ct. 524, 530 (2019). 

However, Schein is inapposite because that case “dealt with an exception to the threshold 

arbitrability question—the so-called ‘wholly groundless’ exception [which concerns the 

arbitrability or non-arbitrability of certain issues]—not a challenge to the validity of an 

arbitration clause itself.” Gingras, 922 F.3d at 126 n.3. Further, as Schein itself noted, 

“before referring a dispute to an arbitrator, the court [must] determine[] [under 9 U.S.C. 

§ 2] whether a valid arbitration agreement exists.” 139 S. Ct. at 530. 

Next, the Haynes Defendants argue that the borrowers cannot challenge the 

delegation provision because the borrowers have not met their burden of demonstrating the 

delegation clause will prevent them from vindicating their rights. But the cases that the 

Haynes Defendants cite in support are distinguishable from this case because they 

concerned situations in which the plaintiffs asserted that they would be unable to vindicate 

their rights because of certain costs associated with the arbitration. See, e.g., Green Tree 

Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 91 (2000); In re Cotton Yarn Antitrust 

Litig., 505 F.3d 274, 283 (4th Cir. 2007). And where the record failed to provide any 

evidence as to those costs, those courts concluded the prospective waiver argument was 

too speculative. But here, because the borrowers assert that the choice-of-law provisions 

amount to a prospective waiver, no further evidentiary development beyond the text of the 

arbitration agreements is required.
13

III.

A.

We turn to the question of whether the choice-of-law provisions amount to a 

prospective waiver, rendering the delegation clause unenforceable. Under the Federal 

Arbitration Act (the “FAA”), arbitration contracts 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. Courts must therefore enforce arbitration agreements “on an equal footing with 

other contracts.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011); see also 

Am. Express Co. v. Italian Colors Rest., 570 U.S. 228, 233 (2013) (observing “arbitration 

is a matter of contract” such that courts must “rigorously enforce” arbitration agreements 

according to their terms). Thus, a court may invalidate an arbitration agreement based on 

“generally applicable contract defenses.” Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 

S. Ct. 1421, 1426 (2017) (internal quotation marks omitted). 

Consistent with contract principles, the Supreme Court has recognized that 

arbitration agreements that operate “as a prospective waiver of a party’s right to pursue 

statutory remedies” are not enforceable because they are in violation of public policy. 

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 n.19 (1985). 

Arbitration must permit a party to effectively vindicate statutory claims so that “the statute 

will continue to serve both its remedial and deterrent function.” Gilmer v. 

Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991). Therefore, “so long as the 

prospective litigant effectively may vindicate its statutory cause of action in the arbitral 
14

forum,” courts should enforce the parties’ contract under the FAA. Mitsubishi, 473 U.S. at 

637. But where an arbitration agreement prevents a litigant from vindicating federal 

substantive statutory rights, courts will not enforce the agreement. Id.; see also Am. 

Express, 570 U.S. at 236 (observing courts will invalidate any contract—arbitration or 

otherwise—that attempts to foreclose “the assertion of certain statutory rights” because 

such a contract would jeopardize a party’s “right to pursue statutory remedies”).

Of course, a “foreign choice of law provision, of itself, will not trigger application 

of the prospective waiver doctrine.” Dillon, 856 F.3d at 334. “Instead, a court first must 

examine whether, as a matter of law, the choice-of-forum and choice-of-law clauses 

operate in tandem as a prospective waiver of a party’s right to pursue statutory remedies.” 

Id. (internal quotation marks omitted). “When 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.” Id. (citing Vimar Seguros y Reaseguros, S.A. v. 

M/V Sky Reefer, 515 U.S. 528, 540–41 (1995); Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 

355, 371–73 (4th Cir. 2012)). In those instances, the prospective waiver issue would not 

become ripe for final determination until the federal court was asked to enforce the 

arbitrator’s decision. 

However, where there is no uncertainty about the effect of these choice-of-law 

provisions, the court may properly conclude the delegation provision—and thus the 

arbitration agreement—is unenforceable. And that is exactly the result we reached in both 
15

Hayes and Dillon, where we concluded that the choice-of-law provisions providing for the 

application of tribal law to the exclusion of federal statutory law amounted to an 

“unambiguous and categorical waiver of federal statutory rights,” thereby rendering the 

arbitration agreements unenforceable. Dillon, 856 F.3d at 335; see also Hayes, 811 F.3d at 

675 (concluding that because the arbitration agreement “underhandedly convert[ed] a 

choice of law clause into a choice of no law clause . . . renounc[ing] the authority of the 

federal statutes to which it is and must remain subject,” it was “unenforceable”).

B.

We see no material distinction between the case at hand and the precedent set forth 

in Hayes and Dillon: 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. 

In Hayes, the arbitration agreement required the arbitrator to “apply the laws of the 

[Tribe] and the terms of this Agreement” to any claims. 811 F.3d at 675 (internal quotation 

marks omitted). Another section of that arbitration agreement “confirm[ed] that, no matter 

where the arbitration occurs, the arbitrator will not apply ‘any law other than the law of the 

[Tribe] to this Agreement.’” Id. Further, the arbitration agreement was paired with loan 

terms stating that the loans were “subject solely to the exclusive laws and jurisdiction of 

the [Tribe]” and that “no other state or federal law or regulation [would] apply to this Loan 

Agreement.” Id. at 669 (emphasis omitted). Upon reviewing these provisions, the Hayes

Court concluded that “[i]nstead of selecting the law of a certain jurisdiction to govern the 
16

agreement, as is normally done with a choice of law clause, [the] arbitration agreement 

use[d] its ‘choice of law’ provision to waive all of a potential claimant’s federal rights.” Id. 

at 675. Of course, Hayes noted, although parties to an arbitration agreement are permitted 

to waive certain rights, any such waiver “may not flatly and categorically renounce the 

authority of the federal statutes to which it is and must remain subject.” Id. But because the 

arbitration agreement at issue took “this plainly forbidden step, [the Court held] it invalid 

and unenforceable” as a violation of public policy. Id.

Similarly, the agreements at issue in Dillon—which were also made pursuant to a 

Great Plains loan—contained choice-of-law provisions “requir[ing] the application of 

Otoe-Missouria tribal law and disclaim[ing] the application of state or federal law.” 856 

F.3d at 332. For example, the loan agreement there provided it was “subject solely to the 

exclusive laws and jurisdiction of the Otoe-Missouria Tribe of Indians” and that “no other 

state or federal law or regulation shall apply[.]” Id. (internal quotation marks omitted).

Likewise, the Dillon arbitration agreement provided that it was to be governed by tribal 

law, that “any dispute will be resolved by arbitration in accordance with the law of the 

Otoe-Missouria Tribe of Indians,” and that any arbitrator was to “apply the laws of the 

Otoe-Missouria Tribe of Indians.” Id. at 332 (internal quotation marks omitted). Dillon

thus concluded that the agreements were “not distinguishable in substance from the related 

provisions . . . that [were] held unenforceable in Hayes” and that “[j]ust as we did in Hayes,
17

we interpret these terms in the arbitration agreement as an unambiguous attempt to apply 

tribal law to the exclusion of federal and state law.” Id. at 335–36.5

Unlike in Hayes and Dillon, the Plain Green and Great Plains arbitration agreements 

do not explicitly preclude the application of federal law.6 Nonetheless, the terms of both 

sets of arbitration agreements—as reinforced by the overall loan agreements—violate the 

prospective waiver doctrine by providing that tribal law preempts the application of 

contrary law, including any contrary federal statutory law, such that a plaintiff would be 

unable to effectively vindicate certain federal statutory claims. Specifically, all of the Plain 

5 The weight of circuit authority supports this conclusion. In Gingras, the Second 

Circuit concluded that similarly-worded tribal arbitration agreements—for example, 

providing that any dispute “will be resolved by arbitration in accordance with Chippewa 

Cree tribal law,” 922 F.3d at 118 (internal quotation marks omitted)—were unenforceable 

“because they [were] designed to avoid federal and state consumer protection laws” and 

thereby “foreclose[d the borrowers] from vindicating rights granted by federal and state 

law.” Id. at 127. Put another way, although the arbitration agreements “purport[ed] to offer 

neutral dispute resolution,” they actually “disallow[ed] claims brought under federal and 

state law[.]” Id.

In an analogous context, other circuits have concluded that loan agreements 

requiring arbitration within a tribal forum are unenforceable because such forums are 

illusory. MacDonald, 883 F.3d at 227 (concluding arbitration clause was unenforceable 

because stipulated tribal arbitral forum did “not exist” and choice-of-arbitrator provision 

did not offer valid alternative forum); Parm v. Nat’l Bank of Cal., 835 F.3d 1331, 1334–35

(11th Cir. 2016) (same); Jackson v. Payday Fin., LLC, 764 F.3d 765, 779–81 (7th Cir. 

2014) (same); Inetianbor v. CashCall, Inc., 768 F.3d 1346, 1354 (11th Cir. 2014) (same). 

6 Indeed, the arbitration agreements are careful to state that they do not explicitly

disclaim federal law, and in some instances provide that federal law may serve as guidance. 

For example, Gibbs’s arbitration agreement with Plain Green states that it “shall be 

governed by Tribal law” but that the “parties additionally agree to look to the [FAA] and 

judicial interpretation thereof for guidance.” J.A. 460 (internal quotation marks omitted). 

Cf. Dillon, 856 F.3d at 332 (stating agreement was “subject solely to the exclusive laws 

and jurisdiction of the” relevant tribe); Hayes, 811 F.3d at 670 (stating that “no . . . federal 

law applie[d] to” the agreement (internal quotation marks omitted)).
18

Green and Great Plains arbitration agreements contain choice-of-law provisions (1) 

providing that they “shall be governed by tribal law”; (2) requiring that any arbitrator 

“apply Tribal law and the terms of this Agreement” (or similar language); and (3) 

mandating that the arbitrator’s decision “be consistent with . . . Tribal Law” (“and if it is 

not, [that] it may be set aside by a Tribal court upon judicial review”). J.A. 343 (Gibbs’s 

Plain Green arbitration agreement); see also J.A. 354 (Williams’s Great Plains arbitration 

agreement), 364 (Edwards’s Great Plains arbitration agreement), 375 (Inscho’s Great 

Plains arbitration agreement), 384 (Mwethuku’s Plain Green arbitration agreement).

7 In 

turn, the terms in all of the arbitration agreements before us limit the arbitrator’s authority

to provide awards to those “remedies available under Tribal Law.” J.A. 343; see also J.A. 

354, 364, 375, 384.

8 Although these provisions do not explicitly disclaim the application 

of federal law, the practical effect is the same because they do provide that tribal law 

preempts the application of any contrary law—including contrary federal law. Cf. Dillon, 

856 F.3d at 336; see also Hayes, 811 F.3d at 675.

Other clauses within both the Plain Green and Great Plains arbitration agreements

reinforce this point. For example, both sets of arbitration agreements provide that 

7 In this vein, all the arbitration agreements also provide that the “[t]he policies and 

procedures of the selected arbitration firm [such as the American Arbitration Association] 

. . . will apply” only to the extent they “do not contradict [the arbitration agreement] or 

Tribal Law.” J.A. 342; see also J.A. 353, 364, 375, 384. 8 As the district court recognized, “the absence of any reference to awarding 

remedies under state or federal law supports the inference that the Arbitration Agreements 

sought to exclude any state or federal remedy, unless separately authorized by Tribal law.” 

J.A. 460.
19

arbitration may be held within thirty miles of the claimant’s residence, but only to the extent 

that such accommodation will not be construed “to allow for the application of any law 

other than Tribal Law.” J.A. 342; see also J.A. 354, 364, 375, 384. Cf. Hayes, 811 F.3d at 

675 (concluding that a provision stipulating that “no matter where the arbitration occurs, 

the arbitrator will not apply ‘any law other than the law of the [Tribe] to this Agreement’”

provided further evidence of a general disavowal of federal law). Likewise, both arbitration 

agreements provide that any appeal: (1) is limited to a review of, among one of two 

grounds, “whether the conclusions of law are erroneous under Tribal Law” and (2) may 

only occur through the tribal courts (as is also the case for any confirmation of the arbitral 

award). J.A. 343; see also J.A. 354, 364, 375–76, 384. Such review “effectively insulates 

the tribe from any adverse award and leaves prospective litigants without a fair chance of 

prevailing in arbitration.” Gingras, 922 F.3d at 128. Finally, even if a party wished to opt 

out of arbitration, both the Great Plains and Plain Green loan agreements stipulate that the 

only path for pursuing a claim would be through their respective tribal systems. J.A. 342 

(“In the event you opt out of the agreement to arbitrate, any disputes shall be governed 

under tribal law and must be brought in the Chippewa Cree Tribal Court.”); see also J.A. 

352–53, 363, 374, 383. At bottom, the terms of both the loan and arbitration agreements 

establish the primacy and effective control of tribal law in governing any disputes arising 

out of the agreements.

However, given that the language of the agreements does not explicitly forbid the 

application of federal law, the Haynes Defendants argue that the borrowers have failed to 
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show that they cannot vindicate their federal statutory rights through arbitration applying 

tribal law because tribal law will “often expressly incorporate or require compliance with 

federal law.” Opening Br. at 29. But we find this argument unavailing. As the borrowers 

correctly point out, the relevant tribal codes would not permit them to effectively vindicate 

the federal protections and remedies they seek—that is, the borrowers could not assert a 

RICO claim seeking treble damages against the entities and individuals who comprise the 

Haynes Defendants.

First, although § 5.1 of the Otoe-Missouria Tribal Consumer Financial Services 

Ordinance provides that lenders “shall . . . comply with . . . all other Tribal and federal laws 

as applicable,” the federal law that governs the claims at issue in this case—namely, RICO, 

18 U.S.C. § 1962 (including a request for treble damages based on alleged RICO 

violations)—is noticeably absent from the list of federal consumer protection statutes with 

which a lender must comply. Otoe-Missouria Tribal Consumer Fin. Servs. Ord. §§ 5.1, 

5.2(a) (2018). And even for the laws listed, the Ordinance makes clear that a lender’s 

compliance does not constitute “consent . . . related to the applicability of federal laws,” 

id. § 5.2(b), or a waiver of the lender’s “sovereign immunity from unconsented judicial or 

administrative process.” Id. § 7.5(a). 

Second, a borrower’s ability to assert a federal statutory claim under tribal law 

against an individual or entity (such as the Haynes Defendants) related to a lender remains 

even more elusive: although the Ordinance governs “licensed lenders” and mandates their 

compliance with tribal and applicable federal law, it says nothing about other non-tribal 
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entities or individuals associated with the lenders who may have violated RICO. In fact, it 

explicitly exempts a range of entities and persons from its licensing requirements—and 

therefore its purview—including “[a] Person who is a bank . . . organized under the laws 

of the United States, or any other lender to the Tribe or to a Financial Services Licensee or 

Debt Collection Licensee,” as well as “[a] Person who provides financial services to a 

Licensee.” Id. § 4.1(a). 

Third, even if the borrowers could assert a RICO claim against the Haynes 

Defendants under tribal law, the rest of the Ordinance fails to clarify how any consumer

could meaningfully pursue any claims under it. Although the Ordinance contains a 

consumer complaint procedure, it does not provide for or establish any private right of 

action for violations of any provisions, let alone any federal laws. Id. §§ 8.1–8.4. And to 

the extent a borrower could pursue a claim, a tribal commission overseeing such a claim is 

permitted to “grant or deny any relief as the Commission deems appropriate.” Id. § 9.2(c). 

Thus, it is clear that a claimant would be unable to assert a RICO claim against entities 

associated with a tribal lender and that, even if he or she were able to assert such a claim, 

the relief he or she would seek—namely, treble damages as permitted by RICO—would 

remain unavailable.

Similarly, the Chippewa Code contains a single “civil remedies” provision limiting 

a defendant’s liability to “actual damages” for “intentional[]” violations. Chippewa Cree 

Tribal Lending and Regulatory Code § 10-6-201 (2017). This does not permit a borrower 
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to effectively vindicate a federal statutory claim for treble damages, as would be permitted 

under RICO. 

In sum, because the language of both sets of arbitration agreements provides that 

tribal law shall preempt the application of any contrary law, and the effect of such

provisions is to thereby make unavailable to the borrowers the effective vindication of 

federal statutory protections and remedies, the arbitration agreements at issue amount to a 

prospective waiver.9 Consequently, the “entire arbitration agreement is unenforceable.” 

Dillon, 856 F.3d at 335–37; see also Hayes, 811 F.3d at 669–71, 675 (concluding that a 

tribal arbitration contract is unenforceable under the FAA where it “names a tribal forum 

and then purports to disavow the authority of all state or federal law”).10

9 Provisions within both the Plain Green and Great Plains loan agreements provide 

further support for this point. For example, both loan agreements contain choice-of-law 

clauses stipulating that all of the loans are made pursuant to the laws of the lenders’ 

respective tribes and that such laws will govern the agreement. And although some of the 

loan terms make general reference to federal law, most of these provisions also either 

disclaim the applicability of federal law or simultaneously provide that tribal law will be 

controlling. For instance, the “Governing Law” provision in Williams’s Great Plains loan 

agreement provides that any voluntary use of federal law for guidance “does not represent 

acquiescence of the . . . Tribe to any federal law unless found expressly applicable to the 

operations of the . . . Tribe.” J.A. 352. In short, the loan agreements also evince an attempt 

to disclaim the applicability of federal law.

10 The Haynes Defendants’ central argument to the contrary is that the prospective 

waiver doctrine does not apply merely because an arbitration agreement selects the laws of 

a foreign jurisdiction to the exclusion of state and federal law. Rather, they contend, a 

claimant must demonstrate that the choice-of-law clause will “unambiguously prevent 

them from effectively vindicating their rights.” Opening Br. at 34, 37. And because, the 

Haynes Defendants posit, the district court’s analysis “focused on nothing else” but the fact 

that the choice-of-law clause selected tribal law—and did not assess whether the borrowers 

could vindicate their rights under tribal law—its assessment was in error. Opening Br. at 

44. We observe that the Haynes Defendants are correct in that a foreign choice-of-law 
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For these reasons, we agree that the choice-of-law clauses amount to a prospective 

waiver such that the arbitration agreements, including the delegation clauses, are 

unenforceable. Therefore, the district court had the authority to decide whether the 

arbitration agreements were valid, correctly decided they were not, and did not err in 

denying the motion to compel arbitration.

IV.

For the reasons set out above, we affirm the judgment of the district court. We 

dispense with oral argument because the facts and legal contentions are adequately 

clause does not by itself give rise to a prospective waiver. However, this argument is 

unavailing because, for the reasons discussed above, the choice-of-law clauses at issue do 

operate to prevent claimants from effectively vindicating their statutory remedies. 

Further, the arbitration agreements cited by the Haynes Defendants in support are

distinguishable because of the distinctly international nature of those agreements. For 

example, in Aggarao, the plaintiff argued that the arbitration clause in his contract was 

invalid under the prospective waiver doctrine because, by requiring “arbitration of his 

Jones Act and Seaman’s Wage Act claims in the Philippines,” such arbitration would 

“contravene the public policy of the United States.” 675 F.3d at 371. But we rejected that 

argument on the basis that evaluation of the prospective waiver doctrine should occur—

with respect to international arbitration agreements—at the award-enforcement stage

(rather than the arbitration-enforcement stage), given that “the problem with applying the 

public policy defense at . . . the arbitration-enforcement stage [in those cases] is that [the]

defense cannot be applied neutrally on an international scale, as each nation operates under 

different statutory laws and pursues different public policy concerns.” Id. at 373 (internal 

quotation marks omitted); see also Mitsubishi, 473 U.S. at 629 (concluding that “concerns 

of international comity, respect for the capacities of foreign and transnational tribunals, 

and sensitivity to the need of the international commercial system for predictability in the 

resolution of disputes [required enforcement of] the parties’ agreement, even assuming that 

a contrary result would be forthcoming in the domestic context”). But such considerations 

are not at play here.
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presented in the materials before this Court and argument would not aid the decisional 

process.

AFFIRMED∗

∗ This opinion is published without oral argument pursuant to this Court’s Standing 

Order 20-01.