[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-12509

________________________

D.C. Docket No. 4:14-cv-00320-HLM

JESSICA PARM,

 

 Plaintiff-Appellee,

 versus

NATIONAL BANK OF CALIFORNIA, N.A.,

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(August 29, 2016)

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Before ED CARNES, Chief Judge, DUBINA, Circuit Judge, and HUCK,

* District 

Judge.

DUBINA, Circuit Judge: 

This appeal arises out of a lawsuit filed by Appellee Jessica Parm (“Parm”) 

against Appellant Northern Bank of California (“NBCal”) regarding a payday loan 

Parm acquired in 2013. The district court denied NBCal’s motion to compel 

arbitration under Parm’s loan agreement, finding the arbitration clause 

unenforceable because it was unconscionable and required the parties to arbitrate 

in an unavailable forum. NBCal argues that the agreement does provide an arbitral 

forum, and the district court erred when it failed to submit the question of

arbitrability to an arbitrator under the agreement’s delegation clause. After 

reviewing the record, reading the parties’ briefs, and having the benefit of oral 

argument, we affirm. 

I. BACKGROUND

A. Facts

In 2013, Parm entered into a loan agreement with Western Sky Financial, 

LLC (“Western Sky”) over the internet from her computer in Georgia. Western 

Sky is a South Dakota limited liability company owned by a member of the 

Cheyenne River Sioux Tribe (“CRST”). The agreement provided that Parm would 

 * Honorable Paul C. Huck, United States District Judge for the Southern District of Florida, 

sitting by designation.

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receive a $1,000 loan subject to certain fees and an annual interest rate of 233.71%, 

totaling $4,831.06 in payments. The loan also provided that Western Sky could

initiate automated or other electronic fund transfers from the bank account she 

included on her loan application. NBCal is the financial institution that authorized

these electronic transfers.

Resolution of this appeal requires interpretation of the loan agreement’s 

arbitration provision. The provision states in relevant part:

WAIVER OF JURY TRIAL AND ARBITRATION. PLEASE 

READ THIS PROVISION OF THE AGREEMENT CAREFULLY. 

Unless you exercise your right to opt-out of arbitration in the manner 

described below, any dispute you have with Western Sky or anyone 

else under this loan agreement will be resolved by binding arbitration. 

Arbitration replaces the right to go to court, including the right to have 

a jury, to engage in discovery (except as may be provided in the 

arbitration rules), and to participate in a class action or similar 

proceeding. In Arbitration, a dispute is resolved by an arbitrator 

instead of a judge or jury. Arbitration procedures are simpler and 

more limited than court procedures. Any Arbitration will be limited to 

the dispute between yourself and the holder of the Note and will not 

be part of a class-wide or consolidated arbitration proceeding. 

Agreement to Arbitrate. You agree that any Dispute, except as 

provided below, will be resolved by Arbitration, which shall be 

conducted by the Cheyenne River Sioux Tribal Nation by an 

authorized representative in accordance with its consumer dispute 

rules and the terms of this Agreement.

Arbitration Defined. Arbitration is a means of having an independent 

third party resolve a Dispute. A “Dispute” is any controversy or claim 

between you and Western Sky or the holder or servicer of the Note. 

The term Dispute is to be given its broadest possible meaning and 

includes, without limitation, all claims or demands (whether past, 

present, or future, including events that occurred prior to the opening 

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of this Account), based on any legal or equitable theory (tort, contract, 

or otherwise), and regardless of the type of relief sought (i.e. money, 

injunctive relief, or declaratory relief). A Dispute includes, by way of 

example and without limitation, any claim based upon marketing or 

solicitations to obtain the loan and the handling or servicing of my 

account whether such Dispute is based on a tribal, federal or state 

constitution, statute, ordinance, regulation, or common law, and 

including any issue concerning the validity, enforceability, or scope of 

this loan or the Arbitration agreement.

The following section, entitled “Choice of Arbitrator,” notified Parm that she 

shall have the right to select any of the following arbitration 

organizations to administer the arbitration: the American Arbitration 

Association . . . ; JAMS . . . ; or an arbitration organization agreed 

upon by you and the other parties to the Dispute. The arbitration will 

be governed by the chosen arbitration organization’s rules and 

procedures applicable to consumer disputes, to the extent that those 

rules and procedures do not contradict either the law of the Cheyenne 

River Sioux Tribe or the express terms of this Agreement to Arbitrate. 

. . . 

B. Procedural History

Parm filed a putative class action lawsuit against NBCal in December 2014.

Her complaint alleged that NBCal, acting as an originating depository financial 

institution, illegally permitted Western Sky to initiate electronic fund transfers 

from borrower checking accounts under unlawful payday loan agreements. The 

complaint also challenged the enforceability of the arbitration provision in the 

agreement by claiming that “the purported tribal arbitral forum and governing rules 

do not exist now and did not exist at the time the agreements were electronically 

signed.” NBCal filed motions to compel arbitration under Parm’s loan agreement 

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and to dismiss the complaint. Relying on our opinion in Inetianbor v. CashCall, 

Inc., 768 F.3d 1346 (11th Cir. 2014), cert. denied, 135 S. Ct. 1735 (2015) and its 

discussion in Parnell v. CashCall, Inc., 2016 WL 3356937 (N.D. Ga. Mar. 14, 

2016), the district court found the arbitration agreement unenforceable for lack of 

available forum and unconscionability and denied NBCal’s motion to compel 

arbitration. NBCal subsequently perfected this appeal. 

II. STANDARD OF REVIEW

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

arbitration.” Jenkins v. First Am. Cash Advance of Ga., LLC, 400 F.3d 868, 873 

(11th Cir. 2005).

III. DISCUSSION

The arbitration agreement in this case is governed by the Federal 

Arbitration Act (“FAA”) because the loan agreement was executed via interstate 

commerce. See 9 U.S.C. § 2; Parnell v. CashCall, Inc., 804 F.3d 1142, 1146 (11th 

Cir. 2015). “The FAA places arbitration agreements on equal footing with all 

other contracts and sets forth a clear presumption—‘a national policy’—in favor of 

arbitration.” Parnell, 804 F.3d at 1146 (citing Buckeye Check Cashing, Inc. v. 

Cardegna, 546 U.S. 440, 443, 126 S. Ct. 1204, 1207 (2006)). Section 4 of the 

FAA permits a party, such as NBCal, to seek assistance from a district court where 

the other party refuses to proceed under a written agreement to arbitrate. See 9 

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U.S.C. § 4. That court must treat the agreement to arbitrate as “valid, irrevocable, 

and enforceable, save upon such grounds as exist at law or in equity for the 

revocation of any contract.” Id. at § 2; see Parnell, 804 F.3d at 1146 (“Arbitration 

provisions will be upheld as valid unless defeated by fraud, duress,

unconscionability, or another ‘generally applicable contract defense.’” (quoting 

Rent-A-Center v. Jackson, 561 U.S. 63, 67–68, 130 S. Ct. 2772, 2776 (2010))).

The loan agreement in this case contains a delegation clause, requiring the 

parties to submit threshold issues of “validity, enforceability, or scope of the loan 

or the Arbitration agreement” to arbitration. Delegation clauses are severable from 

the underlying agreement to arbitrate. See Rent-A-Center, 561 U.S. at 70–73, 130 

S. Ct. at 2778–79. Because the loan agreement contains a delegation clause, our 

review is limited, at least initially, to Parm’s direct challenges to that clause.

1 See

Rent-A-Center, 561 U.S. at 72–73, 130 S. Ct. at 2779; Parnell, 804 F.3d at 1148–

49. Only if we determine that the delegation clause is itself invalid or 

 1 NBCal argues that Parm’s challenge to the delegation provision is waived under Parnell by her 

failure to include the challenge in her complaint. Parnell, however, is distinguishable. 

Addressing the identical loan agreement in Parnell, we held that “a plaintiff seek[ing] to 

challenge an arbitration agreement containing a delegation provision . . . must challenge the 

delegation provision directly.” Parnell, 804 F.3d at 1144. Unlike Parm, the plaintiff in Parnell

never raised a direct challenge to the delegation clause, instead challenging the arbitration 

provision generally as unenforceable. Id. at 1149. Had the Parnell plaintiff raised a direct 

challenge to the delegation clause in his opposition to a motion to compel, we would have 

considered it. See Rent-A-Center, 561 U.S. at 72, 130 S. Ct. at 1279 (analyzing whether the 

plaintiff’s opposition to a motion to compel arbitration contained a direct challenge to the 

agreement’s delegation clause). Because Parm directly challenged the delegation clause in her 

opposition to the motion to compel, there is no waiver and we have jurisdiction to consider 

Parm’s challenge. 

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unenforceable may we review the enforceability of the arbitration agreement as a 

whole. 

A.

We first assess Parm’s contention and the district court’s finding that the 

delegation clause is unenforceable because the arbitration agreement provides no 

available forum for an arbitrator to decide threshold issues of arbitrability. Both

rely on our opinion in Inetianbor, which found a similar Western Sky arbitration

agreement unenforceable due to the unavailability of the CRST as the exclusive

and integral arbitral forum. Inetianbor, 768 F.3d at 1352–54. And it is true that if 

we find Parm’s arbitration agreement materially indistinguishable, we are bound 

by prior panel precedent to follow Inetianbor’s conclusion that the agreement is 

unenforceable for lack of available forum and affirm the district court. See Anders 

v. Hometown Mortgage Servs., Inc., 346 F.3d 1024, 1031 (11th Cir. 2003). NBCal 

contends that Inetianbor does not bind this court as the distinct “Choice of 

Arbitrator” clause gives Parm the option to select the American Arbitration 

Association (“AAA”) or JAMS—both well-respected arbitration organizations—as 

neutral arbitral fora.2

 To assess these arguments, we turn to the text of Parm’s 

arbitration agreement.

 2 We note that this reading has been adopted by several district courts. See, e.g., Yaroma v. 

Cashcall, Inc., 130 F. Supp. 3d 1055, 1063–64 (E.D. Ky. 2015); Kemph v. Reddam, 2015 WL 

1510797, at 5–6 (N.D. Ill. Mar. 27, 2015); Williams v. CashCall, Inc., 92 F. Supp. 3d 847, 851–

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First, because the parties have not provided us with a clear statement of 

CRST contract interpretation, we apply Georgia’s plain-meaning rule to interpret 

the loan agreement. See Parnell, 804 F.3d at 1147 (citing Paladino v. Avnet 

Computer Techs., Inc., 134 F.3d 1054, 1061 (11th Cir. 1998)). Applying Georgia 

law, the construction of an agreement that will be favored is the one “which gives 

meaning and effect to all of the terms of the contract over that which nullifies and 

renders meaningless a part of the language therein contained.” Paul v. Paul, 219 

S.E. 2d 736, 739 (Ga. 1975) (internal quotation marks omitted). Furthermore, 

although “there is [a] presumption in favor of arbitration, ‘[t]he courts are not to 

twist the language of the contract to achieve a result which is favored by federal

policy but contrary to the intent of the parties.’” Doe v. Princess Cruise Lines, 

Ltd., 657 F.3d 1204, 1214 (11th Cir. 2011) (second alteration in original) (quoting 

Goldberg v. Bear, Stearns & Co., 912 F.2d 1418, 1419–20 (11th Cir. 1990)). 

NBCal argues that we should interpret the Choice of Arbitrator clause to 

conclude that AAA or JAMS could appoint any arbitrator, regardless of his or her 

affiliation with the tribe. Because the effect of NBCal’s reading is to effectively 

eliminate the agreement’s express requirement that the arbitrator be a 

representative of the CRST, it is disfavored under Georgia law. See McCann v. 

Glynn Lumber Co., 34 S.E. 2d 839, 843 (Ga. 1945) (“[I]f possible, all of [a 

 

54 (E.D. Wis. 2015). 

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contract’s] provisions should be so interpreted as to harmonize with each other.”);

Rabun & Assocs. Constr., Inc. v. Berry, 623 S.E. 2d 691, 694 (Ga. App. 2005) 

(“Neither the trial court nor this Court is at liberty to rewrite or revise a contract 

under the guise of construing it.” (internal quotation marks omitted)). By contrast, 

we may give effect to both clauses by construing the Choice of Arbitrator clause to 

give Parm the right to have AAA or JAMS administer the arbitration so long as the 

arbitrator selected by those organizations is a CRST representative.3

 Because that 

reading harmonizes the clauses in the agreement, it is to be preferred to the one 

suggested by NBCal. See McCann, 34 S.E. 2d at 843.

NBCal argues that our interpretation ignores language in the arbitration 

agreement that, NBCal suggests, excepts AAA or JAMS arbitrations from the 

requirement that arbitration be conducted by the CRST and its authorized 

representatives. That argument rests on a misreading of the forum selection clause, 

which provides that:

 3 As the district court noted in its order denying NBCal’s motion to compel arbitration, this 

interpretation is consistent with the services provided by and the consumer dispute rules of the 

AAA and JAMS. For example, the consumer dispute rules of the AAA state that when acting as 

an administrator, the AAA’s “role is to manage the administrative aspects . . . , such as the 

appointment of the arbitrator . . . [but] not decide the merits of a case or make rules on issues.” 

Order at 56, Parm v. Nat’l Bank of Calif., No. 14-00320 (N.D. Ga. May 20, 2015), ECF. No. 46 

(citing AAA Consumer Arbitration Rules, Introduction: About the AAA). Further, the AAA rules 

allow parties to direct the appointment of a specific arbitrator or make changes to applicable 

consumer dispute rules. See id. at 57 (citing AAA R.1(c)). The JAMS consumer dispute rules 

similarly allow the parties to direct the appointment of an arbitrator or make changes to the 

dispute rules applicable to the arbitration. See JAMS: Comprehensive Arbitration Rules & 

Procedures, R. 2(a)&(b).

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[The borrower] agree[s] that any Dispute, except as provided below, 

will be resolved by Arbitration which shall be conducted by the 

[CRST] by an authorized representative in accordance with its 

consumer dispute rules and the terms of this Agreement.

NBCal’s interpretation treats the words “except as provided below” as though they 

modify the part of the forum selection clause requiring that arbitration be 

“conducted by the [CRST] by an authorized representative.” That interpretation 

ignores the principle of English usage, formally called the nearest-reasonablereferent canon, which provides that, “When the syntax involves something other 

than a parallel series of nouns or verbs, a prepositive or postpositive modifier 

normally applies only to the nearest reasonable referent.” Antonin Scalia & Bryan 

Garner, Reading Law: The Interpretation of Legal Texts 152 (2012).

In the forum selection clause, the nearest reasonable referent of the 

modifying phrase “except as provided below” is the word “Dispute,” which is right 

next to that phrase. That means the exceptions referred to in the forum selection 

clause are exceptions to the types of disputes that require arbitration. They are not 

exceptions to the requirement that arbitrations be “conducted by the [CRST] by an 

authorized representative,” because that requirement is not the nearest reasonable 

referent of the phrase “except as provided below.”

NBCal posits that such an interpretation neglects to give meaning to the 

clause “except as provided below.” But it does give that clause meaning, as a 

modifier of and limitation on “Dispute.” That is because later parts of the 

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agreement expressly except from arbitration certain kinds of disputes. For 

example, a later provision of the agreement states that disputes are not subject to 

arbitration if they concern the validity, effect, and enforceability of a waiver of the 

borrower’s rights to bring class action lawsuits and compel class-wide arbitration. 

And another later provision in the agreement, titled “Small Claims Exception,”

creates an exception for small claims. As a result, the words “except as provided 

below” can readily—and under the nearest reasonable referent rule, should—be 

understood to modify the word “Dispute.”

We must, of course, construe the agreement in a way that is consistent with 

the parties’ intent. See Calhoun, GA NG, LLC v. Century Bank of Ga., 740 S.E. 2d 

210, 212 (Ga. App. 2013). It cannot be contended, however, that the parties added 

the “Choice of Arbitrator” provision with the intent of responding to the defects in 

the agreement that we identified in our Inetianbor decision. The agreement at 

issue in this case was executed in April 2013, which is almost a year and a half 

before we issued our decision in Inetianbor. See Inetianbor, 768 F.3d 1346 (11th 

Cir. Oct. 2, 2014). In fact, the agreement in this case was executed more than four 

months before even the district court held that the agreement in the Inetianbor case 

was void. See Inetianbor v. CashCall, Inc., 962 F. Supp. 2d 1303 (S.D. Fla. Aug 

19, 2013). There is simply no good reason to reject the construction of the 

agreement suggested by accepted interpretive canons.

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Even if there were some reason to construe the agreement differently, the 

most that would show is ambiguity, and when an arbitration clause or other part of 

a contract is ambiguous, Georgia courts construe it in favor of the party that did not 

draft it. See Ga. State Fin. & Inv. Comm’n v. XL Specialty Ins. Co., 694 S.E. 2d 

193, 196 (Ga. App. 2010). In this case, that party is Parm, which means we must 

construe ambiguities in the arbitration clause in her favor. No matter how we 

approach the matter, therefore, we reach the same conclusion: the arbitration 

agreement’s forum selection clause mandates the use of an illusory and unavailable 

arbitral forum. See, e.g., Inetianbor, 768 F.3d at 1354; Jackson v. Payday Fin., 

LLC, 764 F.3d 765, 776 (7th Cir. 2014).

B.

Selection of the unavailable CRST forum is not necessarily fatal to 

enforcement of the parties’ agreement to arbitrate; section 5 of the FAA permits us 

to appoint a substitute in the event there is a lapse or failure of the named forum. 

See 9 U.S.C. § 5. However, under our precedent, “the failure of the chosen forum 

preclude[s] arbitration whenever the choice of forum is an integral part of the 

agreement to arbitrate, rather than an ancillary logistical concern.” Inetianbor, 768 

F.3d at 1350 (alteration in original) (internal quotation marks omitted) (quoting 

Brown v. ITT Consumer Fin. Corp., 211 F.3d 1217, 1222 (11th Cir. 2000)). 

Accordingly, we must determine whether the forum selection clause in the 

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arbitration agreement was integral “to one or both of the parties at the time they 

entered into the agreement.” Id. 

The terms of Parm’s arbitration agreement closely mirror the terms of the 

arbitration agreement in Inetianbor. Importantly, the forum selection clause in 

Parm’s agreement utilizes the identical mandatory language that any arbitration 

“shall be conducted” by the CRST and does not reference any additional fora in 

that clause. See id. at 1350–51. Use of the word “shall” and the specific 

incorporation of the CRST consumer dispute rules in the agreement indicate intent 

to arbitrate before a specific arbitrator, rather than intent to arbitrate generally. See 

Miller v. GGNSC Atlanta, LLC, 746 S.E.2d 680, 686 (Ga. App. 2013) (citations 

omitted). Also identical to Inetianbor, several provisions in Parm’s loan 

agreement expressly and repeatedly reference the CRST and the exclusive 

application of its laws and jurisdiction. These pervasive references to the tribal

forum and its rules provide evidence that the forum selection clause was not simply

an ancillary concern but an integral aspect of the parties’ agreement to arbitrate. 

See Inetianbor, 768 F.3d at 1350–51. 

The most significant difference between Parm’s agreement and the 

agreement in Inetianbor is the language of the Choice of Arbitrator clause. NBCal 

argues that this clause provides alternative arbitral fora and proves that the CRST 

forum was not integral to the parties’ agreement to arbitrate. As previously 

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discussed, the terms of the arbitration agreement state that the AAA or JAMS may 

administer arbitration under that organization’s rules “to the extent that those rules 

and procedures do not contradict” the law of the CRST and the express terms of 

the arbitration agreement. The terms of the arbitration agreement, incidentally, 

require that the arbitration be conducted by a representative of the CRST. 

Therefore, the Choice of Arbitrator clause only provides an administrative vehicle 

to appoint the CRST arbitrator and does not affect the importance of the CRST 

forum in the agreement. Based on the foregoing, we cannot distinguish Parm’s 

agreement from our analysis in Inetianbor. We are bound by our prior panel

precedent to conclude that the tribal forum is integral to the parties’ agreement to 

arbitrate, and we may not provide a substitute under § 5 of the FAA.

Neither party disputes that the CRST forum is unavailable, and as such, we

agree with the district court that we cannot enforce the delegation clause or the 

underlying arbitration agreement. We therefore affirm the district court’s order 

denying NBCal’s motion to compel arbitration in this case. 

IV. CONCLUSION

We must enforce arbitration agreements, as all contracts, in accordance with 

their express terms. The terms of Parm’s arbitration agreement contain a forum 

selection clause requiring arbitration in a tribal forum that is both unavailable and 

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integral to the parties’ agreement to arbitrate. Therefore, we cannot substitute an 

arbitrator in this case, and the parties cannot be compelled to arbitrate. 

AFFIRMED.

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