[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________ ________________ No. 15

- 13871

________________________ D.C. Docket No s . 1:10

- cv - 22190

- JLK ; 1:09

- md

- 02036

- JLK MICHAEL DASHER, Plaintiff

- Appellee,

versus RBC BANK (USA), d.b.a. RBC Bank, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Southern District of Florida

________________________ (February 13, 2018 ) Before TJOFLAT , JULIE CARNES, and MELLOY , ∗ Circuit Judges. MELLOY, Circuit Judge :

∗ Honorable Michael J. Melloy, United States Circuit Judge for the Eighth Circuit, sitting by designation. Case: 15-13871 Date Filed: 02/13/2018 Page: 1 of 19Defendant RBC Bank (USA) (“RBC”) appeals the district court’s deni al of a motion to compel arbitration. We affirm, albeit for reasons different than tho se cited by the district court.

I.
Michael Dasher held a checking account with RBC and used a debit card for that account. Dasher asserts RBC failed to properly warn hi m of possible overdrafts at point s of sale when he used his debit card. He also asserts RBC impermissibly rearranged the o rder of debit

- card transactions so as to process larger transactions before smaller transactions. Through this practice, RBC more qu ickly drove account balances to zero, thus maximizing the number of separate overdrafts . RBC charged a fee for each overdraft regardless of the size of the overdraft

. By rearranging transactions in a manner that maximize d the number of separate overdraft s, RBC maximized total fees charged to Dasher

. 1

1 As an example, assume a customer account contain s a bala nce of $100. Also assume the customer used a debit card to buy coffee for $10 at 7:00 am, parking for $20 at 9:00 am, lunch for $15 at noon, gas for $25 at 4:00 pm , and groceries for $125 at 7:00 pm. If the transactions were posted in chronological order , the account would still have a $30 balance after the 4:00 pm gas purchase. The $125 grocery charge would create an overdraft resulting in a single overdraft fee. By rearranging the transactions so the largest transaction on any given day is first, the $125 grocery charge is posted first. This creates an overdraft for that charge and each of the other charges that actually occurred earlier in the day. The customer is then charge d an overdraft fee for each of the five transactions. 2

Case: 15-13871 Date Filed: 02/13/2018 Page: 2 of 193 Dasher and other account holders sued RBC , and the present case became part of the Checking Account Overdraft Litigation, MDL No. 2036 . R BC moved to compel arbitration, seeking to invo ke an arbitration pro vision in a 2008
customer account agreement. The district court denied the motion. See In re Checking Account Overdraft Litig. , No. 09

- MD

- 02036

- JLK, 2010 WL 3361127 (S.D. Fla. Aug 23, 2010). RBC appealed . While the appeal was pending, the Supreme Court decided AT&T Mobility LLC v. Concepcion , 563 U.S. 333 (2011)

. Perceiving the possible applicability of Concepcion , the parties moved to vacate and remand for reconsideration. The Eleventh Circuit granted the motion. See In re C hecking A ccount O verdraft L itig

. , 425 F. App ’ x 826 (11th Cir. 2011) (per curiam)

.
Back at the district court, the parties conducted l imited discovery related to the issue of arbitra tion

. D iscovery revealed PNC Bank , N.A. (“PNC”) had acquired RBC and had issued a new version of it s customer

- account agreement s in 2012

. 2 In doing so , PNC relied upon provisions in the 2008 agreement authorizing RBC ’s successors to step into RBC’s shoes and also authorizing RBC to make

2 Dasher’s amended co mplaint identifies the defendant as “RBC Bank (USA), predecessor in interest to PNC Bank, N.A.” Dasher alleges that due to “the merger, PNC Bank is liable for the acts of RBC.” The defendant represents that RBC was merged into PNC and ceased to exist as an entity. For purposes of this opinion , we refer to the defendant from this point forward as PNC, referring to RBC only where necessary to describe past events.

Case: 15-13871 Date Filed: 02/13/2018 Page: 3 of 194 change s to the terms of the agreement. PNC’s 2012 a greement lacke d an arbitration provision. The 2012 agreement purported to become binding and effective upon account holders who continued to use their accounts without opting
out. Dasher did not opt out of the 2012 agreement.

PN C renewed the RBC motion to compel arbit ration, arguing the 2008 agreement and its arbitration provision should apply. Dasher resisted, arguing PNC’s mo re recent 2012 agreement wholl y supers eded the 2008 agreement, thus leaving the parties without a contractual duty to arbitrat e . On January 11 , 2013, the district court issued a written order agreeing with Dasher and denying the motion to compel

. In re Checking Account Overdraft Litig. , 915 F. Supp. 2d 1334 (S.D. Fla

. 2013). PNC filed a notice of appeal that same day. Shortly after the dist rict court entered its order, PNC sent account holders an amended agreement inserting an arbitration provision into the otherwise operative 2012 agreement. The amendment purported to become effective February 1, 2013

. The arbitration provision of the Feb ruary 2013 amendment i s not a model of clarity, but it contain s language suggesting it might have retroactive effect upon existing claims. T he February 2013 amendment indicate s PNC deems account holders to accept the amendment if the account holders fail to opt out and continue to use their accounts. Dasher neither opted out nor ceased using his account.

Case: 15-13871 Date Filed: 02/13/2018 Page: 4 of 195 The parties then briefed and argu ed their appeal from the district court’s January 2013 order . W e affirmed the judgment of the district court on Febru ary 10, 2014 , concluding the 2012 agreement wholly superseded the 2008 agreement , thus leaving the parties without a current duty to arbitrate

. See Dasher v. RBC Bank (USA) , 745 F.3d 1111, 1127 (11th Cir. 2014). PNC filed a motion for reconsideration on February 28, 2014. In that mo tion , PN C argued “the logic of the Panel Opinion” showed that “if PNC amended its account agreement to include an arbitration provision (which it did beginning in February 2013), Plaintiffs must arbitrate their claims, because the most

- current version of the agreement ‘supersedes’ any prior agreement.” We denied the motion for reconsideration on March 27, 2014.
On April 1, 2014, PN C filed a motion to stay the mandate pending pursuit of a writ of certiorari in the Supreme Cou rt. We granted the stay, PN C unsuccessfully sought review in the Supreme Court, and o ur C ourt issued the mandate on October 20, 2014 . On November 10, 2014, p ursuant to a n October 29, 2014 scheduling order, Dasher filed an amended consolidated complaint i n the district court

. Then, o n December 5, 2014, PN C moved to compel arbitration based upon the February 2013 amendment to the 2012 agreement. Prior to this motion , and

Case: 15-13871 Date Filed: 02/13/2018 Page: 5 of 196 throughout the lengthy appeal from the January 2013 order , PNC had not sought to enf orce the arbitration provision from the February 2013 amendment. Further, PN C did not suggest it had directed the February 2013 amendment to Dasher’s counsel in February 2013 during the window of time PNC designated for its

a ccount holders to accept or op t out of the proposed amendment. Simila rly, PNC d id not suggest it directed the proposed amendment to the attention of the court at that time. I n fact, PN C does not suggest it attempted to supplement any record or notify the court or opposing counsel oth er than through the above

- quoted and oblique parenthetical reference contained in the February 2014 mo tion for

re consideration

.
D asher resisted the new motion to compel arbitration , arguing PNC had waive d the right to rely upon the arbitration provision in the February 2013 amendment by failing to raise it at an earlier time

. Dasher characterized the timing of the 2013 amendment and PNC’s earlier failure to alert counsel and the court of the a mendment as strategic ploy s . PNC, on the other hand, argued t he amendment

was unrelated to Dasher’s litigation and was merely a change to a standard form agreement sent to account holders as a matter of routine business . PNC argued further that w aiver should not apply because the district court record had closed pr ior to the February 2013 amendment such that the amendment could not have

Case: 15-13871 Date Filed: 02/13/2018 Page: 6 of 197 become part of the appellate record

. 3 According to PNC , there was no opportunity to raise the February 2013 amendment with the court prior to completion of the last appeal. The par ties also presented arguments as to whether applicable state law permitted the insertion of an arbitration provision into an agreement in the absence of express acceptance by both parties.
The district court denied the motion in August 2015 , finding PN C wa ived the right to pursue arbitration under the 2013 amendment because PNC (1) did not create the amendment until almost three years after litigation commenced; (2) failed to assert the amendment for almost two years after it purportedly went into effect ; a nd (3) vigorously pursu ed arbi tration under a different provision throughout this time without seeking to rely on the 2013 amendment and without timely notifying counsel or the court of the amendment

. In the alternative, citing

case s arising under the Uni form Commercial Code, the district court held the addition of an arbitration provision to an existing agreement was a material alteration that could not become effective unless both parties expressly agree d to the addition. PNC Appeals

.

3 In fact, PNC sent the amendment prior to the deadline for a notice of appeal from the dist rict court’s January 2013 order and listed an effective date that also preceded that deadline.

Case: 15-13871 Date Filed: 02/13/2018 Page: 7 of 198 II
We review de novo the district court’s denial of PNC’s motion to compel arbitration. Dasher , 745 F.3d at 1115. In conducting our review, we find it unnecessary to address the questions of waiver or the district court’s alternative holding. Instead, we conclude PNC ’s motion fails for a more fundamental reason : PNC failed to demonstrate the requisite meeting of the minds to support a finding that the parties agreed through the February 2013 amendment to arbitrate the ir then

- pending litigation.
We reach this conclusio n for two related reasons. First, PNC distributed the proposed, purportedly retroactive and litigation

- ending amendment directly to Dasher , even though PNC knew Dasher was an adverse litiga n t actively represented by counsel as to the very issues raised in the amendment

. Second, at the time Dasher failed to opt out of the proposed amendment, he was forcefully and consistently resist ing arbitration of the pending litigation . At most, then, PNC demonstrated inconsistent communications from Dasher (his impli cit acceptance by failing to opt out and his express resistance to arbitration) coupled with a failure on PNC’s part to communicate through counsel. In this narrow context, we cannot overlook PNC’s failure to direct its purportedly court

- evicting proposed amendment through known litigation counsel

. See, e.g. , Russell v. Citigroup , Inc. , 748 F.3d 677, 680

– 81 (6th Cir. 2014) (holding an arbitration provision in a new

Case: 15-13871 Date Filed: 02/13/2018 Page: 8 of 199 employment agreement entered into mid

- litigation did not evict a pending lawsuit from court in part because the employer

- defendant failed to direct the agreement to plaintiff’s litigation counsel); see also In re Cox Enters

. , Inc. Set

- top Cable Tel ev . Box Antitrust Litig. , 835 F.3d 1195 , 1203 (10th Cir. 2016) (recognizing the “common sense” rule of Russe l l but distinguishing Russell on its facts).

In Russell , a call

- center employee had signed an employment agreement with Citicorp r equir ing arbitration of individual claims but not class actions. 748 F.3d at 679. After leaving employment, t he emp loyee instituted a class action against Citicorp

. Id. While that class action was pending, he applied to work at the same call center and signed a new employment agreement. Id. This time, the employment agreement contained an arbitration provision cove ring class actions. Id. He received the new agreement at the call center and signed and submitted the new agreement at the call center. Id. Citicorp subsequently sought retroactive application of the broad arbitration provision in the new employment agr eement to evict the pending class action from
court. Id. The Sixth Circuit examined the new agreement and found little textual support for retroactive application. Russell , 748 F.3d at 679

– 80. The court also relied on the fact that Citicorp did not com municate the new contract to Russell through his attorney. Id. at 680 (“One party’s lawyer may not communicate about

Case: 15-13871 Date Filed: 02/13/2018 Page: 9 of 1910 a pending case with an opposing litigant he knows has legal representation.” (citing Ky. Sup. Ct. R. 3.130 and Model Rules of Prof ’l Cond uct r . 4.2 (1983)) ). The court emphasized that this rule extended to attorneys assisting their clients’ direct communications with represented parties. Id. (“The canons preclude a lawyer not only from communicating with a represented adversary but also ( for the most part) from helping his client [ to ] do so.” (citing Restatement (Third) of the Law Governing Lawyers § 99 cmt. k (2000))) . The court ultimately concluded the parties could not have intended the agreement to be retroactive in a manner that woul d evict the pending action from court. Id. at 681 (“All in all, ‘arbitration is a matter of consent , not coercion.’” (quoting Stolt

- Nielsen S.A. v. AnimalFeeds Int’l Corp. , 55 9 U.S. 662, 681 (2010))).
We find Russell persuasive to the extent it considered the failure to communicate through litigation counsel material to the existence of a retroactive and court

- evicting agreement to arbitrate. A rbitration , after all, “ is simply a matter of contract ” such that parties cannot be required to arbitrate a matte r unless they have agreed to arbitration. Dasher , 745 F.3d at 1116 ( quoting First Options of Chicago, Inc. v. Kaplan , 514 U.S. 938, 943 (1995) ). Further , in addressing the underlying question of whether parties have a valid arbitration agreement, no pres umption in favor of arbitration applies. See id. ( “[W]hile doubts concerning the scope of an arbitration clause should be resolved in favor of arbitration, the

Case: 15-13871 Date Filed: 02/13/2018 Page: 10 of 1911 presumption does not apply to disputes concerning whether an agreement to arbitrate has been ma de.” ( quoting Applied Energetics, Inc. v. NewOak Capital Mkts., LLC , 645 F.3d 522, 526 (2d Cir. 2011) ) )

. Rather , the well

- recognized national policy favoring arbitration comes into play later, when addressing whether a particular claim is covered by an ot herwise valid and enforceable arbitration agreement. See id. at 1115

– 16 (“ Granite Rock [ Co. v. Int’l Bhd. o f Teamsters , 561 U.S. 287, 301 (2010)] thus precludes application of the FAA’s presumption of arbitrability before it is determined whether there is a ‘validly formed and enforceable arbitration agreement.’”). State contract law determines the existence and contours of parties’ agreements, and in this case, North Carolina law controls. See Dasher , 745 F.3d at 1116 ( “[I]n determining whether a binding agreement arose between the parties, courts apply the contract law of the particular state that governs the formation of
contracts
. ” (alteration in original) (quoting Caley v. G ulfstream Aerospace Corp. , 428 F.3d 1359, 1368 (11th Cir. 2005)) ). Looking to North Carolina , we find nothing unorthodox in that state’s analysis of contract law. In the absence of a wholly integrated and signed document spelling out the parties’ agreement, we determine the parties’ intent by examin ing what the parties communicate d to one another through words and actions

. See id. ( “Thus , to resolve this case we apply North Carolina contract law and look for objective evidence that the parties agreed

Case: 15-13871 Date Filed: 02/13/2018 Page: 11 of 1912 to arbitrate.”) ; Chappell v. Roth , 548 S.E.2d 499, 500 (N.C. 2001 ) ( “For an agree ment to constitute a valid contract, the parties’ minds must meet as to all the terms.” ( citation omitted) ); Creech v. Melnik , 495 S.E.2d 907, 911

– 12 (N.C. 1998 ) ( stating that it is necessary to look at “ the actions of the parties” when assessing an implie d offer or acceptance and noting that , “ [e] xcept for the method of proving the fact of mutual assent, ” express and implied contracts are proven through similar means )

.
H ere , PNC unilaterally proposed the February 2013 amend ment to add an arbitration provis ion and inv ited its account holders to opt out if they did not wish to be bound by the amendment. PNC communicated its proposed amendment and preferred communication mechanisms to account holders in writing. Dasher’s uncounseled response purportedly was silence. His counseled actions, however, clearly and simultaneously evinced an ongoing resistance to arbitration.

Even a ssuming for the sake of argument that Dasher received and co nsidered the proposed amendment when PNC asserts he did, Dasher’s subsequen t

“ communications ” to PNC were not merely equivocal, they were irreconcilably in conflict with one another

. PNC therefore cannot show that Dasher accepted the addition of the arbitration provision, in general, or that he agreed specifically that
t he arbit ration provision could apply retroactively to evict his pending action from

Case: 15-13871 Date Filed: 02/13/2018 Page: 12 of 1913 court
. See Bazemore v. Jefferson Capital Sys., LLC , 827 F.3d 1325 , 13 30 ( 11th Cir. 2016 ) ( “The party asserting the existence of a contract has the burden of proving its existence and its terms.” (citation omitted) ) ; Gen

. Tire & Rubber Co. v. Distribs

. , Inc. , 117 S.E.2d 479, 486 (N.C. 1960) (“ The burden of proof constitutes a substantial right. The burden of proof on an issue ordinarily rests on the party who asserts the affirmativ e thereof [.]” (citation omitted))

. Importantly, PNC knew in no uncertain terms that Dasher was contesting arbitration and that he was represented by counsel specifically employed for the purpose of handling the matter of the overdraft litigation. A ny com munication must be understood in context, not viewed in the abstract. In this context, the risks of communicatin g directly with the opposing party as to a purportedly court

evicting amendment outside the presence of opposing counsel are manifest. See,

e. g. , Model Rules of Prof’l Conduct r. 4.2 (Am Bar Ass’n 2014) ( “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by ano ther lawyer in the matter

. . . .”) ; R ule s Regulating Fla. Bar r. 4

- 4.2 ; N. C

. R ules of Prof ’l Conduct r. 4.2

. As in the Sixth Circuit’s Russell case, if a party’s “in

- house counsel prepared a contract, expecting it to be given to a represented litigant but also expecting it to govern existing ca ses, they might find themselves near the edge of this rule.” 748 F.3d at 680. Case: 15-13871 Date Filed: 02/13/2018 Page: 13 of 1914 W e do not mean to suggest PNC’s litigation counsel co mmunicated directly with Dashe r. Nor do we find it necessary to adopt Dasher’s characterization of PNC’s actions as purpos eful avoidance of disclosure or nefarious sandbagging. 4 Quite simply, we do not intend to write an ethics opinion. We merely find the failure to communicate through counsel material to the important question of whether Dasher agreed to accept the Februar y 2013 amendment. Given the wholly equivocal “communications” from Dasher after PNC sent the February 2013 amendments, given the fact that the amendments (if accepted and interpreted as argued by PNC) would conclusively establish the need to arbitrate the existing litigation, and given the wholesale failure of PNC to communicate the proposed amendments to known lit igation counsel for Dasher, we conclude PNC failed to show Dasher agree d to the addition of the arbitration provision in the February 2013 amend ment.

4 Dasher attributes PNC’s failure to communicate through counsel to ongoing litigation strategy. Dasher infers from the timing that PNC created the proposed Feb ruary 2013 amendments in response to the January 2013 district court order denying PNC’s motion to compel arbitration. Dasher also characterizes PNC’s December 2014 request to invoke the February 2013 amendments as litigation

- protracting sandbagging. P NC takes great umbrage at these characterizations and describes the timing of the February 2013 proposed amendment as unrelated to the January 2013 order. PNC characterizes the February 2013 proposed amendment as the mere updating of a form agreement unre lated to Dasher’s case. According to PNC , this characterization explains the failure to direct the proposed amendment to litigation counsel.

Case: 15-13871 Date Filed: 02/13/2018 Page: 14 of 1915 PNC , nevertheless, argues it is unfair and asymmetric for our court to have held PNC is bound by the superseding 2012 agreement it created and communicated to Dasher by identical means but now to hold Dasher is not bound by the 2013 amendment. We f ind little merit in this “what’s good for the goose is good for the gander” argument. PNC unilaterally draft ed and sought to impose upon account holders the 2012 agreement and the February 2013 amendment. PNC, presumably assisted by counsel, drafted both and communicated both to its account holders. PNC did not communicate equivocally or unclearly its desires and intentions. Therefore, when Dasher asked the courts to enforce the 2012 agreement, Dasher asked merely for enforcement of PNC’s own agreement as drafted and proposed by PNC

. Dasher did not suggest that he rejected or intended to reject PNC’s 2012 agreement. Rather, acceptance of the terms of the 2012 agreement by Dasher was an act wholly consistent with his actions in the pending litigation. And, because Dasher was not the drafter of the 2012 agreement, he did not at any time communicate a proposed litigation

- altering agreement to PNC outside of channels that included PNC’s litigation counsel. Further, PNC’s omission of an arbitration provis ion from the 2012 agreement was PNC’s own act and solely PNC’s responsibility

. Enforcement of the 2012 agreement, therefore, involve d neither

Case: 15-13871 Date Filed: 02/13/2018 Page: 15 of 1916 factual uncertainty nor dancing along ethical boundaries. The factual uncertainty and related ethic al restrictio ns surrounding communication of the February 2013 amendment simply d id not exist as to the 2012 agreement. Finally, a s a separate issue , PNC argues that Dasher’s filing of his consolidated amended complaint in November 2014 “revived” PNC’s arbitration righ ts . PNC seemingly makes this argument to counter Dasher’s waiver argument

— the argument adopted by the district court which we do not reach on appeal

. As a general matter, PNC correctly notes that, in some situations involving waiver s of arbitration righ ts, we have held a party’s subsequent filing of an amended complaint may serve to revive the defendant’s arbitration rights if the amended complaint materially alters the theory or scope of the case. See , e.g. , Collad o v. J

. & G

. Transp., Inc. , 820 F.3d 1 256, 1259 (11th Cir. 2016) (per curiam) (“ In limited circumstances, however, where a party has waived the right to compel arbitration, an amended c omplaint can revive that right if it is shown that the amended complaint unexpectedly changes the s cope or th eory of the plaintiff’ s claims.” (citation omitted)) ; Krinsk v. SunT rust Banks, Inc. , 654 F.3d 1194, 1202 ( 11th Cir. 2011 ) ( “[T]he defendant will be allowed to plead anew in response to an amended complaint, as if it were the initial complaint, when the am ended

Case: 15-13871 Date Filed: 02/13/2018 Page: 16 of 1917 complaint . . . changes the theory or scope of the case.” (alteration in original) (citation omitted) )

. Given our resolution of this appeal on grounds other than waiver , however, PNC’s argument is a poor fit. B ecause we conclude Dasher d id not agre e to the purportedly court

- evicting February 2013 amendment, there was no arbitration right for PNC to waive and no arbitration right for the November 2014 consolidated amended complaint to revive.

E ven if PNC’s revival theory could apply in this substan tially different context, the changes in the November 2014 consolidated amended complaint simply w ould not be sufficient to r evive a waived right. Rather, Dasher’s November 2014 consolidated amended complaint shrank rather than ex panded the scope of the a ction. Dasher’s original complaint and his consolidated amended complaint asserted his theories for relief through the same five causes of action. The class definitions, however, changed. The class definition s in the original complaint w ere broad :
All R BC customers in the United States who, within the applicable statute of limitations preceding the filing of this action to the date of class certification, incurred an overdraft fee as a result of RBC’s practice of re

- sequencing debit card transactions fro m highest to lowest (the “National Class”).

a nd All RBC customers having accounts at branches in the state of North Carolina for the purpose of asserting claims under North Car olina’s Case: 15-13871 Date Filed: 02/13/2018 Page: 17 of 1918 consumer protection statute (the “North Carolina State Subclass”) ( see F ifth Claim for Relief, infra ).

The class definition s in the consolidated amended complaint w ere more limited:
All RBC customers in the United States who, within the applicable statute of limitations preceding the filing of this action, incurred an overdr aft fee as a result of RBC’s practice of re

- sequencing debit card transactions from highest to lowest and whose account was closed prior to February 1, 2013 (the “Avery National Class”). All RBC customers in the United States who, within the applicable sta tute of limitations preceding the filing of this action, incurred an overdraft fee as a result of RBC’s practice of re

- sequencing debit card transactions from highest to lowest and whose account remained open on or after February 1, 2013 (the “Dasher Natio nal Class”). and All RBC customers having accounts at branches in the state of North Carolina for the purpose of asserting claims under North Carolina’s consumer protection statute and whose account was closed prior to February 1, 2013 (the “ Avery State Su bclass ”) ( see Fifth Claim for Relief, infra ). All RBC customers having accounts at branches in the state of North Carolina for the purpose of asserting claims under North Carolina’s consumer protection statute whose account remained open on or after Februa ry 1, 2013 (the “Dasher State Subclass”) ( see Fifth Claim for Relief, infra ).
PNC also argues the scope of the action changed because Dasher attached a 2009 account agreement to his consolidated amended complaint but a 2010

Case: 15-13871 Date Filed: 02/13/2018 Page: 18 of 1919 account agreement to his origi nal complaint. Dasher, however, referred in his original complaint to the 2010 account agreement merely as a representative copy. More importantly, given the applicable statute of limitations, multiple years’ agreements were material to the claims in bot h complaint s . The fact that different years’ agreements were attached did not expand or shrink the scope of the action. PNC’s reviv al argument, therefore, would fail even if it could otherwise find application in this case, where we do not adopt the theo ry of waiver. We affirm the district court’s denial of the motion to compel arbitration. Case: 15-13871 Date Filed: 02/13/2018 Page: 19 of 19