This decision was not selected for publication inthe New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citati on of unpublished decisions. Please also note that this electronic decision may contain computer-g enerated errors or other deviations from the official paper version filed by the Supreme Court and does not include the filing date. IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1
Filing Date: August 23, 2012 2 NO. 33,011 3 ANDREA J. FELTS, on behalf of 4 herself and all others similarly situated, 5 Plaintiff-Respondent, 6

v. 7 CLK MANAGEMENT, INC., 8 f/k/a BAT SERVICES, INC., 9 Defendant-Petitioner. 10 and 11 NO. 33,013 12 ANDREA J. FELTS, on behalf of 13 herself and all others similarly situated, 14 Plaintiff-Respondent, 15

v. 16 CLK MANAGEMENT, INC., 17 f/k/a BAT SERVICES, INC., 18 and CASH ADVANCE NETWORK, INC., 19Defendants-Petitioners. 1 ORIGINAL PROCEEDINGS ON CERTIORARI 2 Nan G. Nash, District Judge 3
Fredericks Peebles & Morgan, L.L.P. 4 Frances C. Bassett 5 Louisville, CO 6 Joseph V. Messineo 7 Conly J. Schulte 8 Omaha, NE 9 Modrall, Sperling, Roehl, Harris & Sisk, P.A. 10 Jennifer G. Anderson 11 Emil John Kiehne 12 Zachary Cormier 13 Albuquerque, NM 14 Weir & Partners, L.L.P. 15 Susan Verbonitz 16 Philadelphia, PA 17 for petitioners 18

Treinen Law Office 19 Rob Treinen 20 Albuquerque, NM 21 Public Justice, P.C. 22 F. Paul Bland, Jr. 23 Amy Radon 24 Washington, DC 25 Schaefer Law Firm, L.L.C. 26 Douglas L. Micko 27Richard J. Fuller 1 Minneapolis, MN 2 for respondent 3 Gary K. King, Attorney General 4 Elaine Patricia Lujan, Assistant Attorney General 5 Karen J. Meyers, Assistant Attorney General 6 Santa Fe, NM 7 for Amicus Curiae Attorney General of New Mexico 8
Doerr & Knudson, P.A. 9 Randy J. Knudson 10 Portales, NM 11 Julie Nepveu 12 Washington, DC 13 for Amicus Curiae AARP Foundation Litigation 14 Richard John Rubin 15 Santa Fe, NM 16 for Amicus Curiae National Association of Consumer Advocates 17DECISION 1 BOSSON, Justice. 2
{1} We decide this case by unpublished D ecision pursuant to Rule 12-405(B)(1) 3 NMRA because the arbitration clause in que stion is practically identical to one that 4 this Court recently held to be unenforceable in Rivera v. American General 5 Financial Services, Inc. , 2011-NMSC-033, 150 N.M. 398, 259 P.3d 803. 6 Accordingly, relying upon the reasoning in Rivera , we affirm the result reached by 7 the Court of Appeals below but for a different reason, and remand to the district 8 court for further proceedings. 9 BACKGROUND 10
{2} According to Respondent Andrea Felts, between December 2007 and 11 February 2008 she obtained three short-term consumer loans, commonly known as 12 payday loans, over the internet from subsidiaries of Petitioners. Two of the loans 13 were for $400 and a third was for $500. Th e interest rates on these loans ranged 14 from 521.43% annual percentagerate (APR) to 730% APR. Each of the nearly 15 identical loan agreements, which Felts “signed” electronically, contained an 16 arbitration clause. The arbitration clause is as follows: 17 AGREEMENT TO ARBITRATE ALL DISPUTES: By signing 18 below and to induce us, MTE Financial Services, Inc. d/b/a Cash 19 Advance Network, to process your application for a loan, you and we 20 agree that any and all claims, disputes or controversies that we or our 212 servicers or agents have against you or that you have against us, our 1 servicers, agents, directors, offi cers and employees, that arise out of 2 your application for one or more loans, the Loan Agreements that 3 govern your repayment obligations , the loan for which you are 4 applying or any other loan we prev iously made or later make to you, 5 this Agreement To Arb itrate All Disputes, collection of the loan or 6 loans, or alleging fraud or misrepresentation, whether under the 7 common law or pursuant to federal or state statute or regulation, or 8 otherwise, including disputes as to the maters subject to arbitration, 9 shall be resolved by binding indivi dual (and not class) arbitration by 10 and under the Code of Procedure of the National Arbitration Forum 11 (“NAF”) in effect at the time the claim is filed. THEREFORE, THE 12 ARBITRATOR SHALL NOT CONDUCT CLASS ARBITRATION; 13 THAT IS, THE ARBITRATOR SHALL NOT ALLOW YOU TO 14 SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY 15 GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY 16 FOR OTHERS IN THE ARBITRATION. This Agreement To 17 Arbitrate All Disputes shall apply no matter by whom or against 18 whom the claim is filed. Rules and forms of the NAF may be obtained 19 and all claims shall be filed at any NAF office, on the World Wide 20 Web at www.arb-forum.com, or at “N ational Arbitration Forum, P.O. 21 Box 50191, Minneapolis MN 55405.” If you are unable to pay the 22 costs of arbitration, your arbitration fees may be waived by the NAF. 23 The cost of a participatory heari ng, if one is held at your or our 24 request, will be paid for solely by us if the amount of the claim is 25 $15,000 or less. Unless otherwise ordered by the arbitrator, you and 26 we agree to equally share the costs of a participatory hearing if the 27 claim is for more than $15,000 or less than $75,000. Any 28 participatory hearing will take place at a location near your residence. 29 This arbitration agreement is madepursuant to a transaction involving 30 interstate commerce. It shall begoverned by the Federal Arbitration 31 Act, 9 U.S.C. Sections 1-16. Judgment upon the award may be 32 entered by any party in any court having jurisdiction. This Agreement 33 To Arbitrate All Disputes is anindependent agreement and shall 34 survive the closing, funding, repayment and/or default of the loan for 35 which you are applying. 363 {3} Despite the above agreement, after a di spute arose Felts filed a class action 1 complaint in district court against Petiti oner CLK Management Inc. (CLK), one of 2 the loan providers, and various other defendants on December 15, 2008. The 3 complaint alleged violations of both the New Mexico Unfair Practices Act (UPA), 4 NMSA 1978, §§ 57-12-1 to 57-12-26 (1967, as amended through 2007), and the 5 New Mexico Small Loans Act, NMSA1978, §§ 58-15-1 to 58-12-39 (1955, as 6 amended through 2007). The complaint was amended on June 24, 2009 to add 7 Cash Advance Network, Inc. (CANI), the other loan provider, as a defendant. 8
{4} CLK was the first to file a motion to compel arbitration relying on the 9 AGREEMENT TO ARBITRATE set forth above . The district court denied the 10 motion, finding that the prohibition against class arbitration was contrary to public 11 policy and unenforceable under this Court’s opinion in Fiser v. Dell Computer 12 Corporation , 2008-NMSC-046, 144 N.M. 464, 188 P. 3d 1215. CANI later filed 13 a similar motion which was denied on similar grounds. 14
{5} After the district court denied CLK’s motion to compel arbitration but before 15 CANI filed its motion, the National Arb itration Forum (NAF), the entity selected 16 as the exclusive arbitrator in the AGREEMENT TO ARBITRATE, became 17 unavailable. As we previously explained in Rivera , in response to a lawsuit filed 184 by the Minnesota Attorney General claimi ng anti-consumer bias and questionable 1 “ties to the consumer loan and debt coll ection industries,” the NAF agreed to cease 2 conducting consumer arbitration. 2011-NMSC-033, ¶ 9

. Accordingly, after July 3 24, 2009, the NAF was indisputably unavailable to conduct the arbitration of Felts’ 4 claims. See id. 5
{6} The denial of each motion to compel arbitration wa s timely appealed and the 6 cases were consolidated by the Court of Appeals. In an opinion filed on April 8, 7 2011, the Court of Appeals largely agreed with the reasoning of the district court. 8 Felts v. CLK Management, Inc. , 2011-NMCA-062, ¶ 40, 149 N.M. 681, 254 P.3d 9 124. First, however, the Court of App eals discussed a recent U.S. Supreme Court 10
case, Rent-A-Center, West, Inc. V. Jackson , 130 S.Ct. 2772 (2010), which issued 11 after the district court decision in this case. Felts , 2011-NMCA-062, ¶¶ 18-20. As 12 the Court of Appeals noted, Rent-A-Center establishes “that in cases where a 13 delegation provision granting an arbitrator the authority to determine the validity 14 of an arbitration agreement exists, a di strict court is precluded from deciding a 15 party’s claim of unconscionability unle ss the claim is based on the alleged 16 unconscionability of the delegation provision itself.” Felts , 2011-NMCA-062, ¶ 20. 17 In short, when an arbitration agreement includes a delegation clause, Rent-A-Center 185 precludes courts from deciding threshold issu es of arbitrability unless the delegation 1 clause itself is challenged. Id. 2
{7} The Court of Appeals then concluded th at Felts had in fact challenged the 3 delegation clause, and that the district c ourt was correct in finding the arbitration 4 agreement unenforceable dueto unconscionability. Felts , 2011-NMCA-062, ¶¶ 30, 5 40. The thrust of Felts’ argument ag ainst the AGREEMENT TO ARBITRATE was 6 that the prohibition against class arbitrati on meant, as a practical matter, that she 7 would be unable to vindicate her relatively small claims. Id. ¶¶ 30, 39. Because the 8 delegation clause contained a parenthetical prohibiting cl ass arbitration, the Court 9 held this was a sufficient challenge of the delegation clause itself. Id. ¶ 30. The 10 Court then proceeded to analyze the unc onscionability claim under this Court’s 11 precedent in Fiser and concluded that the AGREEMENT TO ARBITRATE was 12 unenforceable. Id. ¶ 40. Although the Court of Appeals briefly re ferred to the 13 unavailability of the NAF and the impossib ility of that entity conducting arbitration, 14 the opinion did not discuss the legal effect of that unavailability on the 15 enforceability of the AGREEMENT. This Court had not yet issued our opinion in 16 Rivera. 17
{8} This Court granted certiorari, 2011-NMCERT-006, 150 N.M. 763, 266 P.3d 186 632, in which the lenders raise the follo wing issues: (1) the Court of Appeals’ 1 holding that the class action waiver is unc onscionable conflicts with the more recent 2 U.S. Supreme Court precedent in AT&T Mobility LLC v. Concepcion , 131 S.Ct. 3 1740, (2011); (2) Respondent failed to attack the delegation clause with sufficient 4 specificity as required under Rent-A-Center, 130 S.Ct. 2772; and (3) this Court’s 5 recent opinion in Rivera , 2011-NMSC-033, is inconsistent with Concepcionand 6 Section 5 of the Federal Arbitration Act (FAA) or is otherwise distinguishable. 7 Finding the third issue dispositive, we addre ss it first and decline to reach the other 8 issues. 9 DISCUSSION 10
{9} Section 5 of the Federal Arbitration Act (FAA) allows a court to appoint a 11 substitute arbitrator in the event that a named arbitrator becomes unavailable. 9 12 U.S.C. § 5 (1947). The federal act states in part: 13 [i]f in the agreement provision be made for a method of naming or 14 appointing an arbitrator or arbitrators or an umpire, such method shall 15 be followed; but if no method be provided therein, or if a method be 16 provided and any party thereto shall fail to avail himself of such 17 method, or if for any other reason there shall be a lapse in the naming 18 of an arbitrator or arbitrators or umpire, or in filling a vacancy, then 19 upon the application of either party to the controversy the court shall 20 designate and appoint an arbitrator or arbitrators or umpire . . . . 21 Id. 227 {10} We recently addressed the applicability of Section 5 of the FAA in a very 1 similar context. See Rivera , 2011-NMSC-033

. That opinion was published after 2 the Court of Appeals opinion in this case, and consequently, the Court of Appeals 3 did not have the benefit of our interpretation of the i ssue when it wrote the opinion 4 in this case. In Rivera , we held that when an arbitration agreement names a specific 5 arbitrator in such a manner that the choi ce of arbitrator becomes integral to the 6 agreement as opposed to a mere “ancillary logistical concern,” then a court cannot 7 name a substitute arbitrator under § 5 of the FAA without running afoul of the 8 intent of the parties. Id. ¶¶ 26, 27, 38. We concluded in Riverathat “[i]f the plain 9 language of the contract evidences the parties’ intention to resolve disputes solely 10 through a specific arbitration provider, the parties’ intent would be frustrated if a 11 court appointed a different arbitration provider.” Id. ¶ 27. 12
{11} Rivera also discusses various ways in which a court can determine whether 13 a specific arbitrator is integr al to the agreement. Exclus ive references to a specific 14 arbitrator “weighs in favor of a finding thatthe designated provider is integral to the 15 agreement to arbitrate.” Id. ¶ 29. Additionally, “[t]he parties designation of the 16 rules of a specific arbitration provider may indicate that arbitration pursuant to 17 those rules is an integral part of the agreement to arbitrate.” Id. ¶ 30. We stated 188 that “[m]andatory, as opposed to permissive, contractual language further 1 demonstrates that a specifically named arbitration provider is integral to the 2 agreement to arbitrate.” Id. ¶ 31. 3
{12} Reviewing an arbitration agreement in Riveravery similar to the one at issue 4 here, we observed that repeated and exclusive references to the NAF, the adoption 5 of the NAF’s rules and procedures, and the use of mandatory as opposed to 6 permissive language indicated to us that the NAF, as the arbitr ator chosen by the 7 parties to the contract, was integral to the agreement. Id. ¶¶ 32-34, 38. The 8 arbitration agreement in Rivera stated that “[a]rbitration will be conducted under 9 the rules and procedures of the [NAF ] or successor organization . . . .” Id . ¶ 32. 10 Further, “in order to initiate arbitrati on, the borrower must obtain a ‘Demand for 11 Arbitration’ form from the NAF, complete the NAF form, send three copies of the 12 completed form to the NAF, and pay the NAF an initial filing fee.” Id. The 13 agreement also “mandated that ‘[a]rbitration will be conducte d under the rules and 14 procedures of the [NAF].’” Id. ¶ 33. Finally, the agreement used mandatory as 15 opposed to permissive language with repeateduses of mandatory terms such as will, 16 shall, and must. Id. ¶ 34. Accordingly, we concluded in Rivera that a court could 17 not substitute another arbitrator for the NAF under Section 5 of the FAA without 189 violating the intent of the parties to the contract. Id. ¶ 38. 1
{13} The facts of the instant cas e are almost identical to Rivera . Again, the 2 AGREEMENT TO ARBITRATE has repeated and exclusive references to the 3 NAF. Not only does the AGREEMENT state that arbitration will be conducted 4 solely by the NAF, it explicitly states th at the only way an aggrieved party may 5 even file a claim is at an NAF office using forms provided by NAF. Without the 6 NAF, an individual cannot even initiate a claim against the lenders that would be 7 arbitrated. As in Rivera , if this Court were to order a substitute arbitrator, we would 8 not only be rewriting the portion of the AGREEMENT TO ARBITRATE that 9 specifies who will conduct the arbitration, we would also be rewriting the portion 10 of the AGREEMENT that specifies how the arbitration is to begin. Such an action 11 by this Court would certainly frustrate the express intent of the parties. Id. ¶ 27

. 12
{14} The AGREEMENT TO ARBITRATE also states that arbitration will be 13 conducted under the NAF Code of Procedure. Rule 1 of the NAF Code of 14 Procedure states that it “shall be admini stered only by the National Arbitration 15 Forum or by any entity or individual providing administrative services by 16 agreement with the National Arbitration Forum.” NAF, Code of Procedure 17 (August 1, 2008) 1810 http://www.adrforum.com/users/naf/res ources/CodeofProcedure2008-print2.pdf. 1 Neither party has alerted this Court to any entities or individuals operating under 2 such an “agreement with the National Arbitration Forum” that would allow them 3 to administer the NAF code. Any substitu te arbitrator, therefore, would have to 4 proceed under a code of pro cedure different from what th e parties agreed to. Such 5 an obstacle indicates, as in Rivera , that the NAF, as the chosen arbitrator, was 6 integral to the AGREEMENT TO ARBITRATE. 7
{15} Finally, the use of mandatory language regarding the use of the NAF here is 8 similar to that in Rivera . Here, the AGREEMENT TO ARBITRATE states that any 9 claims “ shallbe resolved by binding individual . . . arbitration by and under the 10 Code of Procedure of the National Arbitration Forum,” and “all claims shall be 11 filed at any NAF office.” (Emphasis added) . Such language “evi nce[s] the parties’ 12 intent to arbitrate exclusively before a particular arbitrator, not simply an intent to 13 arbitrate.” Rivera , 2011-NMSC-033, ¶ 31 (internal quotation marks and citation 14 omitted). 15
{16} As we said in Rivera , 16 [t]he pervasive references to th e NAF in the contract compel our 17 conclusion that the parties intended for the NAF to be the exclusive 18 arbitrator in any out-of-court dispute resolution. The parties explicitly 19 specified that arbitration would proceed under NAF rules and 2011 procedures. Arbitration is a matter of consent, not coercion, and the 1 parties may specify by contract the rules under which that arbitration 2 will be conducted. Weconclude that the unavailability of NAF as 3 arbitrator threatens to eviscerate th e core of the parties’ agreement. 4 We hold that arbitration before the NAF was integral to the agreement 5 to arbitrate and that § 5 of the FAA does not allow a court to select 6 and impose on the contracting parties a substitute arbitrator 7 inconsistent with the plain terms of their contract. 8 Id. ¶ 38 (internal quotation marks and citati ons omitted). Accordingly, consistent 9 with the express intent of the parties, our courts cannot “select and impose on the 10 contracting parties a substitute arbitrator in consistent with the plain terms of their 11 contract.” 12 AT&T Mobility LLC v. Concepcion 13
{17} The parties have extensiv ely briefed and argued the applicability of a recent 14 U.S. Supreme Court case, AT&T Mobility LLC v. Concepcion . 131 S.Ct. 1740 15 (2011). That opinion, which was also rel eased after the Court of Appeals opinion 16 in this case, held that California’s Discover Bank rule, which declared class action 17 waivers in arbitration agreements unc onscionable and unenforceable under certain 18 conditions, was preempted by the FAA. Id. at 1746, 1753. While Concepciondoes 19 raise legitimate questions as to the further viability of this Court’s Fiser opinion, 20 we decline to reach the issue today because it would be purely advisory. See Porter 21 v. Robert Porter & Sons, Inc. , 68 N.M. 97, 102, 359 P.2d 134, 137 (1961) (The 2212 Supreme Court “will not make useless orders nor grant relief that will avail 1 appellant nothing, and neither will it decidequestions that are abstract, hypothetical, 2 or moot, where no actual relief will be afforded.”). 3 CONCLUSION 4
{18} For the reasons set forth above, we affirm the district court’s dismissal of 5 CANI’s and CLK’s motions to compel arbitration. We remand to the district court 6 for further proceedings. 7
{19} IT IS SO ORDERED. 8

9 RICHARD C. BOSSON, Justice 10

WE CONCUR: 11

12 PETRA JIMENEZ MAES, Chief Justice 13

14 PATRICIO M. SERNA, Justice 15

16 EDWARD L. CHÁVEZ, Justice 1713 1 CHARLES W. DANIELS, Justice 2