5-Motion-To-Compel-Arbitration Mboh Opo Iki

Case 2:19-cv-12014-BAF-RSW ECF No. 5 filed 09/30/19 PageID.
76 Page 1 of 36
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
NICOLE MARIE SWIGER, on behalf of : CIVIL ACTION

herself and all individuals similarly situated, :
:
Plaintiff, : NO. 2:19-cv-12014-BAF-RSW
:
v. :
:
JOEL ROSETTE, TED WHITFORD, :
TIM MCINERNEY, and KENNETH :
E. REES, :
:
Defendants.
DEFENDANT KENNETH E. REES’S MOTION TO COMPEL

ARBITRATION
Pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq.
Defendant Kenneth E. Rees (“Rees”) respectfully moves this Court for an order
staying this matter and compelling arbitration pursuant to a written agreement to
arbitrate signed by Plaintiff and contained within her loan agreement requiring her to
arbitrate all disputes arising out of her loan agreement, including any dispute
“concerning the validity, enforceability, or scope of” her agreement to arbitrate.
The reasons for this motion are set forth in the accompanying brief in support
of the Motion to Compel Arbitration.

Case 2:19-cv-12014-BAF-RSW ECF No. 5 filed 09/30/19 PageID.77 Page 2 of 36
Pursuant to Local Rule 7.1(a)(1), Defendants sought concurrence after a
conference between the parties’ attorneys, during which the nature of the motion and
its legal basis were explained. Plaintiff declined to concur in the relief requested.
Respectfully Submitted,
s/ Michelle L. Alamo
Michelle L. Alamo (MI ID # P60684)
ARMSTRONG TEASDALE, LLP
4643 S. Ulster St., Suite 800
Denver, CO 80237
Phone: 720.200.06762
Email: [email protected]
Richard L. Scheff
Jonathan P. Boughrum
David F. Herman (application for admission
forthcoming)
Michael C. Witsch (application for admission
forthcoming)
2005 Market Street
One Commerce Square, 29th Floor
Philadelphia, PA 19103
Phone: 267.780.2000
[email protected]
[email protected]
[email protected]
Counsel for Kenneth E. Rees
2


:
Plaintiff, : NO. 2:19-cv-12014-BAF-RSW
:
v. :
:
TIM MCINERNEY, and KENNETH :
E. REES, :
:
Defendants.
BRIEF IN SUPPORT OF DEFENDANT KENNETH E. REES’S MOTION

TO COMPEL ARBITRATION
TABLE OF CONTENTS
I. INTRODUCTION .................................................................................................... 1
II. FACTS AND BACKGROUND INFORMATION .......................................................... 2
A. The Arbitration Agreement ...................................................................... 3
B. The arbitration provision includes a clearly-disclosed and

prominent choice-of-law clause. .............................................................. 6
III. ARGUMENT .......................................................................................................... 9
A. Plaintiff’s loan agreement contains an enforceable agreement to

arbitrate. .................................................................................................... 9
B. The clear and conspicuous delegation provision requires

arbitration of any challenge to the Arbitration Agreement..................... 12
C. Plaintiff offers no evidence to avoid her arbitration agreement. ............ 16
1. The choice-of-law clause is enforceable....................................... 17

2. Plaintiff’s remaining attempts to avoid the arbitration
agreement lack evidence and are without merit. .........................23
IV. CONCLUSION ......................................................................................................24
i
TABLE OF AUTHORITIES
Page(s)
Cases
Aggarao v. MOL Ship Management Company, Ltd.,

675 F.3d 355 (4th Cir. 2012) ........................................................................................... 18, 19, 20
Am. Exp. Co. v. Italian Colors Rest.,

570 U.S. 228 (2013) ..........................................................................................................10, 20, 23
Big City Small World Bakery Cafe, LLC v. Francis David Corp.,
265 F. Supp. 3d 750 (E.D. Mich. 2017) ..................................................................................... 24
Bishop v. Gosiger, Inc.,

692 F.Supp.2d 762 (E.D. Mich. 2010)........................................................................................ 15
Brennan v. Opus Bank,

796 F.3d 1125 (9th Cir. 2015) ...................................................................................................... 15
D & R Co., LLC v. BASF Corp.,

No. 09-CV-10641, 2010 WL 11545257 (E.D. Mich. Mar. 26, 2010) .................................... 12
De Angelis v. Icon Entm't Grp. Inc.,

364 F. Supp. 3d 787 (S.D. Ohio 2019) ....................................................................................... 14
Dean Witter Reynolds, Inc. v. Byrd,

470 U.S. 213 .................................................................................................................................... 10
DIRECTV, Inc. v. Imburgia,

136 S. Ct. 463 (2015) ..................................................................................................................... 18
Epic Sys. Corp. v. Lewis,

138 S.Ct. 1612 (2018) ............................................................................................................. 17, 23
First Options of Chi., Inc. v. Kaplan,

514 U.S. 938 (1995) ....................................................................................................................... 13
GGNSC Louisville Hillcreek, LLC v. Estate of Bramer by & through Bramer,

932 F.3d 480 (6th Cir. 2019) ........................................................................................................ 10
Gibbs, et al. v. Rees, et al.,

No. 3:17-cv-00386-MHL, ECF No. 17 (E.D. Va. Aug. 17, 2017) .......................................... 3
Green Earth Companies, Inc. v. Simons,

288 F.3d 878 (6th Cir. 2002) ........................................................................................................ 16
ii
Green Tree Fin. Corp.-Alabama v. Randolph,

531 U.S. 79 (2000).......................................................................................................................... 16
Henry Schein v. Archer & Whites Sales, Inc.,

586 U.S. ----, 139 S. Ct. 524 (2019) .......................................................................................passim
Hooters of Am., Inc. v. Phillips,

173 F.3d 933 (4th Cir.1999) ......................................................................................................... 22
Lindo v. NCL (Bahamas), Ltd.,

652 F.3d 1257 (11th Cir. 2011) ............................................................................................. 18, 21
M/S Bremen v. Zapata Off-Shore Co.,

407 U.S. 1 (1972) ..................................................................................................................... 18, 19
Masco Corp. v. Zurich American Ins. Co.,

382 F.3d 624 (6th Cir. 2004) ........................................................................................................ 11
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,

473 U.S. 614 (1985) ................................................................................................................ 18, 19
New Prime Inc. v. Oliveira,

139 S. Ct. 532 (2019) ..................................................................................................................... 10
Ngoc Hoang v. Auto. Lease Guide, Inc.,

No. 08-CV-11321, 2008 WL 11355525 (E.D. Mich. Oct. 6, 2008) ...................................... 10
PaineWebber Inc. v. Bybyk,

81 F.3d 1193 (2d Cir. 1996) ......................................................................................................... 15
Rent-A-Center West, Inc. v. Jackson,

561 U.S. 63 (2010)................................................................................................................... 13, 14
Richards v. Lloyd’s of London,

135 F.3d 1289 (9th Cir. 1998) ............................................................................................... 18, 19
Riley v. Kingsley Underwriting Agencies, Ltd.,

969 F.2d 953 (10th Cir. 1992) ...................................................................................................... 19
Roasting Plant of Michigan JV, LLC v. Roasting Plant, Inc.,

No. 18-CV-10295, 2018 WL 5885508 (E.D. Mich. Nov. 9, 2018) ....................................... 11
Rota-McLarty v. Santander Consumer USA, Inc.,

700 F.3d 690 (4th Cir. 2012) ........................................................................................................ 21
Smith v. ComputerTraining.com Inc.,

772 F.Supp.2d 850 (E.D. Mich. 2011)........................................................................................ 16
iii
Stout v. J.D. Byrider,

228 F.3d 709 (6th Cir. 2000) ........................................................................................................ 23
U-Save Auto Rental of Am. Inc. v. Furlo,

368 F. App'x 601 (5th Cir. 2010)................................................................................................. 22
Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer,

515 U.S. 528 (1995) ................................................................................................... 18, 19, 21, 22
Volt Info. Scis., Inc. v. Bd. of Trustees of Leland Stanford Junior Univ.,
489 U.S. 468 (1989) ....................................................................................................................... 18
Yaroma v. Cashcall, Inc.,

130 F.Supp.3d 1055 (E.D. Ky. 2015) .................................................................................. 16, 21
Statutes
9 U.S.C. § 2 ................................................................................................................................. 2, 10, 13
9 U.S.C. § 3 ..................................................................................................................................... 10, 12
9 U.S.C. § 4 ............................................................................................................................................ 10
9 U.S.C. § 10.......................................................................................................................................... 22
Other Authorities
American Arbitration Association, Consumer Arbitration Rules (Sept. 1, 2018) ....................... 5
Chippewa Cree Tribal Lending and Regulatory Code, available at

https://www.plaingreenloans.com/content/assets/Uploads/title10.pdf ........................... 22
JAMS, JAMS Comprehensive Arbitration Rules & Procedures (July 1, 2014) ............................ 5
iv
STATEMENT OF THE ISSUES PRESENTED
1. Given the clear and conspicuous agreement to arbitrate present in Plaintiff’s loan
agreement with Plain Green, LLC, is this Court required by the Federal Arbitration
Act, 9 U.S.C. §§ 1, et seq., to stay this matter and require Plaintiff to arbitrate all
claims arising from or relating to her loan agreement in conformity with the plain
terms of the arbitration agreement to which Plaintiff freely agreed?
SUGGESTED ANSWER: Yes.
2. Given the clear and conspicuous delegation provision present in Plaintiff’s
Agreement to Arbitrate, is this Court required by the is this Court required by the
Federal Arbitration Act, 9 U.S.C. §§ 1, et seq., to stay this matter and send any
disputes over issues of arbitrability, including the enforceability of the arbitration
agreement, to arbitration?
SUGGESTED ANSWER: Yes.
v
CONTROLLING AUTHORITIES
The Federal Arbitration Act, 9 U.S.C. §§ 1, et seq., and case law interpreting the
Federal Arbitration Act—particularly the Supreme Court’s recent decision in Henry
Schein v. Archer & Whites Sales, Inc., 586 U.S. ----, 139 S. Ct. 524, 529 (2019)—are
controlling.
vi
I. INTRODUCTION
Plaintiff has filed this putative class action alleging that a $1,200 loan she
applied for and accepted from a sovereign Native American lender, Plain Green,
LLC constitutes an “unlawful debt” under the Racketeer Influenced and Corrupt
Organizations Act (“RICO”) and violates several other state and federal laws.
Plaintiff’s substantive claims against Defendants have no legal merit—chief among
a host of issues requiring dismissal are that Plaintiff both lacks standing given that
she has actually received more in loan principal from her lender than she has paid
back, and that Plaintiff cannot demonstrate that she has been proximately harmed
by Defendant Rees’ actions.1 But before any decisionmaker reaches the merits of
1
Even at first blush, it clear that Plaintiff has failed to complete an adequate pre-filing
investigation into the facts and law applicable to her claims. Plaintiff’s Complaint has
plagiarized whole swaths (including incorrect citations) from complaints filed in other
jurisdictions. Worse still, Plaintiff has ignored the portions of the cases she has
plagiarized from, including numerous declarations signed under penalty of perjury,
which conclusively prove that her claims against Mr. Rees are without merit. For
example, Plaintiff claims that Rees continues his “controlling interest and operational
role in Think Finance” through to the present. Compl. ¶ 21. That is entirely false.
Mr. Rees has never held a controlling interest of shares in Think Finance, and he
stepped down as CEO of Think Finance in May 2014, as from the board of Think
Finance in 2015—long before Plaintiff’s loan in December 2018. Ex. ‘B,’ Decl. of
Kenneth E. Rees, Gingras v. Rosette, 5:15-cv-101, ECF No. 67-1 at ¶¶ 2-4 (Sept. 22,
2015) (publicly filed declaration from Kenneth Rees affirmatively confirming his
complete non-affiliation from Think Finance, including that he “do[es] not maintain
an operational role in Think Finance”). Since stepping down, Rees has had no
involvement in Think Finance. Id. Similarly, public filings confirm that since June 1,
2016, Plain Green has operated entirely separate from Think Finance. Ex. ‘C,’ Decl.
of Steve Parker, Brice v. Rees, 3:18-cv-1200, ECF No. 89 at ¶¶ 10-11 (N.D. Cal. Oct.
10, 2018); Ex. ‘D,’ Decl. of Stephen Smith, In re Think Finance, LLC, 17-33964-hdh11,
1
her claims, Plaintiff must first take those claims to arbitration on an individual
basis—as she agreed to do in her consumer loan agreement with her lender. In
individual arbitration, Plaintiff has the ability to pursue any and all relevant claims
arising out of her loan, and the arbitrator can resolve those claims. This includes
any dispute over the scope and enforceability of Plaintiff’s agreement to arbitrate.
But Plaintiff has ignored her agreement to arbitrate. And, Plaintiff has provided
no evidence that could possibly support her refusal to arbitrate her claims in
accordance with her arbitration agreement. As such, the Federal Arbitration Act, 9
U.S.C. § 2, requires that this Court send Plaintiff’s claims to arbitration, as is set
forth in the terms of the arbitration agreement in Plaintiff’s Loan Agreement.
II. FACTS AND BACKGROUND INFORMATION
On or about December 13, 2018, Plaintiff voluntarily used the internet to
obtain at least one short term loan from Plain Green, LLC—a lender operating as an
arm and instrumentality of the Chippewa Cree Tribe of the Rocky Boys’ Reservation,
ECF 714-2 at ¶ 25 (N.D. Tex. Bankr. July 27, 2018). As the CEO of Plain Green
unequivocally stated under penalty of perjury:
Plain Green’s operations are located on the Reservation, save a handful

of workers on the Salt River Pima Maricopa Indian Community
reservation and it controls and operates its own platforms and its loan
products; it markets, underwrites, approves, funds, processes, and
collects on Plain Green loans to its customers. In short, Plain Green
alone controls its business from the Tribe’s Reservation.
Ex. ‘C,’ Parker Decl. at ¶ 14. These sworn statements—all contained in the public
record prior to Plaintiff’s Complaint—contradict the unfounded allegations contained
within the Complaint.
2
Montana. Compl. at Ex. B. Plaintiff went to Plain Green’s website and completed an
online application. See Exhibit “A,” Decl. of Stephen Smith at ¶¶ 9-10 (which
Declaration was filed by Think Finance in support of its motion to compel arbitration
in Gibbs, et al. v. Rees, et al., No. 3:17-cv-00386-MHL, ECF No. 17 (E.D. Va. Aug. 17,
2017)).2 Plaintiff completed the loan application form, chose a date of payment and a
loan amount, and reviewed and agreed to the terms and conditions of the loans,
including an arbitration agreement. See id. at ¶¶ 11-12. At the end of the application
process, Plaintiff was provided with a copy of her loan agreement, which she could
print or save. See id. at ¶ 13. Plaintiff attached a copy of her loan agreement to her
Complaint. See Compl. at Ex. B. Plaintiff’s application was then sent to Plain Green
for final processing, decisioning, and, if approved, funding.
A. The Arbitration Agreement
Plaintiff’s loan agreement contains a clear and conspicuous agreement to
arbitrate the claims that she has brought against Rees in this Court. Specifically, as
part of her loan agreement, Plaintiff agreed to arbitrate “any Dispute […] involving
this Agreement or the Loan.” Compl. at Ex. B at 8. The scope of the arbitration
agreement requires Plaintiff to arbitrate disputes arising out of her loan agreement,
and includes disputes with Plain Green, Plain Green’s “affiliated companies,” the
Chippewa Cree tribe, as well as the Plain Green’s “servicing and collection
2
Mr. Smith has provided similar affidavits for Think Finance, all of which have been
filed publicly.
3
representatives and agents, and each of their respective agents, representatives,
employees, officers, directors, members, managers, attorneys, successors,
predecessors, and assigns.”
The Arbitration Agreement informed Plaintiff as to the breadth of what she
was agreeing to arbitrate—namely “any Dispute” which “is to be given its broadest
possible meaning.” Id. The Arbitration Agreement also includes a ‘delegation clause,’
which provides that the term “Dispute” “includes any issue concerning the validity,
enforceability, or scope of this Agreement or this Agreement to Arbitrate.” Id. That
is, in general, threshold issues relating to arbitrability are delegated to the arbitrator in
the first instance.
Plaintiff was given several notices as to the fact that she was agreeing to
arbitrate her claims, many of which were set off in bold print and all-caps. For
example, Plaintiff was told to “PLEASE CAREFULLY READ THIS
AGREEMENT TO ARBITRATE. UNLESS YOU OPT-OUT OF
ARBITRATION AS DESCRIBED ABOVE, YOU AGREE THAT ANY
DISPUTE YOU HAVE RELATED TO THIS AGREEMENT WILL BE
RESOLVED THROUGH BINDING ARBITRATION.” Id. Similarly, Plaintiff
was alerted to the fact that “BY ENTERING INTO THIS AGREEMENT,
YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING YOUR
RIGHT TO (A) HAVE A JURY TRIAL TO RESOLVE DISPUTES, (B)
HAVE A COURT RESOLVE DISPUTES, (C) PARTICIPATE IN A CLASS

4
ACTION LAWSUIT, AND (D) HAVE ACCESS TO DISCOVERY AND
OTHER PROCEDURES THAT ARE AVAILABLE IN A LAWSUIT.” Id. If
Plaintiff had a question about the loan agreement or the agreement to arbitrate, the
loan agreement (again in bold and all-caps) covered such a situation, stating, “IF
YOU HAVE QUESTIONS, PLEASE CONTACT CUSTOMER SERVICE AT
(866) 420-7157.” Id. at 9. These disclosures ensured that Plaintiff was fully aware of
her agreement to arbitrate, as well as the rights she was potentially giving up as a result
of that agreement to arbitrate.
The Arbitration Agreement includes many provisions for Plaintiff’s benefit.
Plaintiff was given the choice of conducting arbitration before one of two nationally
recognized and well-respected arbitration service providers: the American Arbitration
Association (“AAA”) or JAMS. Id. at 8. The Arbitration Agreement further calls for
the arbitration to proceed pursuant to the policies, procedures, and consumer rules3 of
the selected arbitral organization, and provide Plaintiff with contact information,
including websites, for the arbitration providers. Id. Regardless of which organization
is selected by Plaintiff, the Arbitration Agreement provides for a choice to have the
arbitration conducted “either on Tribal land or within thirty (30) miles of [Plaintiff’s]
3
See JAMS, JAMS Comprehensive Arbitration Rules & Procedures (July 1, 2014),
available at https://www.jamsadr.com/files/Uploads/Documents/JAMS-
Rules/JAMS_comprehensive_arbitration_rules-2014.pdf (“JAMS Rules”); American
Arbitration Association, Consumer Arbitration Rules (Sept. 1, 2018), available at
https://www.adr.org/sites/default/files/Consumer _Rules _Web_0.pdf (“AAA
Rules”).
5
residence.” Id. The Agreement also requires the Lender to pay for all filing fees and
any costs or fees charged by the arbitrator regardless of who initiates the arbitration or
ultimately prevails. Id.
If Plaintiff did not wish to have all disputes relating to her loan agreement
resolved via arbitration, she was able to opt-out of the arbitration agreement within
sixty days of signing the loan agreement by sending written notice to Plain Green via
mail or email. In fact, the ability to opt-out is highlighted at the front of the
Arbitration Agreement. The first two sentences of the Arbitration Agreement read:
“This Agreement includes the following binding Waiver of Jury Trial and
Arbitration Agreement (the “Agreement to Arbitrate”). You may opt out of the
Agreement to Arbitrate by following these instructions…” Id. at 8.
B. The arbitration provision includes a clearly-disclosed and

prominent choice-of-law clause.
Both the loan agreement and the Arbitration Agreement contain choice-of-law
clauses selecting the laws of the Chippewa Cree Tribe. Id. at 7 (“This Agreement and
the Agreement to Arbitrate are governed by Tribal Law. The Agreement to Arbitrate
also comprehends the application of the Federal Arbitration Act”); see also id. at 9
(“The arbitrator shall apply Tribal Law and the terms of this Agreement, including
this Agreement to Arbitrate and the waivers included herein”). Importantly, the
choice-of-law provision in the Arbitration Agreement sets forth that in addition to
Tribal Law, the parties “AGREE TO LOOK TO THE FEDERAL
6
ARBITRATION ACT AND JUDICIAL INTERPRETATIONS THEREOF
FOR GUIDANCE IN ANY ARBITRATION THAT MAY BE
CONDUCTED.” Id. at 9.
The choice-of law provisions were not hidden. At the top of the first page of
Plaintiff’s consumer loan agreement, under a header containing the words
“IMPORTANT DISCLOSURES,” it is clearly and conspicuously disclosed that the
“Lender” selected by Plaintiff is a Native American tribe. Id. at 1 (“THE LENDER
[…] IS THE TRIBAL GOVERNMENTAL LENDING ARM OF THE
CHIPPEWA CREE TRIBE OF THE ROCKY BOY’S RESERVATION,
MONTANA….”). Plaintiff was also informed on the first page, again in bold, all-
caps:
THE BORROWER EXPRESSLY CONSENTS AND AGREE

THAT THIS LOAN IS MADE WITHIN THE TRIBE’S
JURISDICTION AND IS SUBJECT TO AND GOVERNED BY
TRIBAL LAW AND NOT THE LAW OF THE BORROWER’S
RESIDENT STATE. THE BORROWER IS STRONGLY
CAUTIONED THAT IF THE BORROWER DOES NOT
UNDERSTAND THIS CONSENT, OR DOES NOT WISH TO
EXPRESSLY CONSENT TO TRIBAL JURISDICTION OR
DOES NOT WISH TO HAVE THE LOAN GOVERNED BY
THE LAWS OF THE TRIBE, THEN THE BORROWER
SHOULD REFRAIN FROM ACCEPTING THE LOAN OR
RESCIND THE LOAN WITHIN THE TERMS OF THE
AGREEMENT. […] THE BORROWER’S RESIDENT
STATE’S LAW MAY HAVE INTEREST RATE LIMITS AND
OTHER CONSUMER PROTECTION PROVISIONS THAT
ARE MORE FAVORABLE TO THE BORROWER. IF THE
BORROWER WISHES TO HAVE THE BORROWER’S
RESIDENT STATE LAW APPLY TO ANY LOAN THAT THE
BORROWER OBTAINS, THE BORROWER SHOULD
7
CONSIDER OBTAINING A LOAN FROM A LICENSED

LENDER IN THE BORROWER’S STATE.
Id. at 1. Similarly, before signing her loan agreement, Plaintiff was also required to
check a box indicated that:
by checking here and signing below, you understand, acknowledge and

agree that Plain Green, LLC is an tribal lending entity wholly owned by
Chippewa Cree Tribe of the Rocky Boy’s Indian Reservation, Montana,
a federally recognized tribe. You further understand, acknowledge and
agree that this loan is governed by the laws of the Chippewa Cree Tribe
and is not subject to the provisions or protections of the laws of your
home state or any other state. If you wish to have your resident state’s
law apply to any loan that you obtain, you should consider obtaining a
loan from a licensed lender in your state.
Id. at 9. Plaintiff checked the box indicating that she had read and agreed to the
acknowledgement. Id.
In sum, on multiple occasions before finalizing and agreeing to the terms of her
loans, Plaintiff consented to the Arbitration Agreement and affirmed that:
• any dispute, including past disputes, between Plaintiff and her Lender,
servicer, vendor or other third-party, along with any officer, employee,
or manager of those entities, would be arbitrated unless Plaintiff
exercised the right to opt-out from the arbitration procedure within sixty
days;
• any arbitration would take place, at Plaintiff’s choice, on tribal land or

within 30 miles of her residence in Michigan;
• Plain Green would pay the costs of arbitration;
• any arbitration would be administered, at Plaintiff’s election, at one of

two highly qualified, professional arbitration associations;
8
• the arbitration would be governed by the laws of the Chippewa Cree

Tribe;
• the arbitrator, not a court, would make gateway determinations about the
arbitrability of any disputes; and
• Plaintiff had the opportunity to opt out of the arbitration provision.
The provisions of the Arbitration Agreement were conspicuously and
repeatedly disclosed to Plaintiff in her loan agreement. Plaintiff had no barriers to
access arbitration to resolve any dispute. Yet, despite these clear protections and
contractual obligations, Plaintiff did not pursue her claims in the arbitral forum
required by the loan agreement. Instead, Plaintiff instituted this lawsuit.
III. ARGUMENT
A. Plaintiff’s loan agreement contains an enforceable agreement to

arbitrate.
As an initial matter, there can be no doubt that Plaintiff has agreed to arbitrate,
rather than litigate, the claims in her Complaint. Plaintiff’s Complaint acknowledges
the presence of the arbitration agreement in her loan agreement, while simultaneously
attempting to avoid enforcement of that arbitration agreement. Compl. at ¶¶ 159-172.
Even if this were not the case, the terms of the arbitration agreement make clear that
Plaintiff’s claims are within the scope of the arbitration agreement and must,
accordingly, be sent to arbitration.
Arbitration agreements are subject to clear and well-understood rules. The
Federal Arbitration Act (“FAA”) provides that a written arbitration provision
9
contained in a “contract evidencing a transaction involving commerce . . . shall be
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 are required to “rigorously
enforce arbitration agreements according to their terms.” Am. Exp. Co. v. Italian Colors
Rest., 570 U.S. 228, 233 (2013) (internal quotation marks and citation omitted),
without regard to policy judgments about the nature of the underlying business. See
Ngoc Hoang v. Auto. Lease Guide, Inc., No. 08-CV-11321, 2008 WL 11355525, at *2
(E.D. Mich. Oct. 6, 2008) (Friedman, J.) (noting that “both the Supreme Court and
the Sixth Circuit have held that arbitration agreements should be ‘rigorously’
enforced”). The FAA, therefore, reflects a strong national policy in favor of
arbitration. See, e.g., New Prime Inc. v. Oliveira, 139 S. Ct. 532, 543 (2019).
Where a court is satisfied that the parties agreed to arbitrate a dispute, a district
court must grant a motion to compel arbitration and stay the proceedings pending the
outcome of that arbitration. 9 U.S.C. §§ 3, 4; Dean Witter Reynolds, Inc. v. Byrd, 470 U.S.
213, 218 (1985) (noting that the FAA “mandates that district courts shall direct the
parties to proceed to arbitration on issues as to which an arbitration agreement has
been signed”). As a matter of federal law, to the extent there are “any doubts
concerning the scope of arbitrable issues,” such doubts must “be resolved in favor of
arbitration, whether the problem at hand is the construction of the contract language
itself or an allegation of waiver, delay, or a like defense to arbitrability.” GGNSC
Louisville Hillcreek, LLC v. Estate of Bramer by & through Bramer, 932 F.3d 480, 484 (6th
10
Cir. 2019) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–
25 (1983)). Given this command, where the language of an arbitration agreement is
broad, such as here, “only an express provision excluding a specific dispute,” will take
a dispute outside of the scope of this issues that must be referred to arbitration. Masco
Corp. v. Zurich American Ins. Co., 382 F.3d 624, 627 (6th Cir. 2004). And, as this Court
recently determined, “an arbitration provision within a contract admittedly signed by
the contractual parties is sufficient to require the district court to send any
controversies to arbitration,” because under those circumstances, the parties have
“presumptively” agreed to arbitrate disputes arising from or about the
contract. Roasting Plant of Michigan JV, LLC v. Roasting Plant, Inc., No. 18-CV-10295,
2018 WL 5885508, at *4 (E.D. Mich. Nov. 9, 2018) (Friedman, J.) (quoting Johnson v.
Stellar Recovery, Inc., No. 13-13829, 2014 WL 5705027, at *4 (E.D. Mich. Nov. 5,
2014)).
Here, Plaintiff has unquestionably agreed to arbitrate any dispute that arises
from her loan agreement, including claims against Rees. First, Plaintiff’s claims are
plainly covered by the arbitration agreement’s expansive definition of “Disputes.” By
its very terms, the arbitration agreement applies to any “Dispute,” which expressly
includes “any claim or controversy of any kind […] otherwise involving this
Agreement or the Loan.” Compl. Ex. Ex. B. Similarly, the definition of a “Dispute”
that Plaintiff agreed to arbitrate includes claims and controversies between Plaintiff
and “Plain Green, LLC as the Lender, Plain Green’s affiliated companies, the Tribe,
11
Plain Green’s servicing and collection representatives and agents, and each of their
respective agents, representatives, employees, officers, directors, members, managers,
attorneys, successors, predecessors, and assigns.” Id. There can be no doubt that
Plaintiff’s claims arise from, and otherwise involve her loan. And, Plaintiff’s claims
against Rees are all based upon her (false) assertion that Think Finance and Rees (as
CEO of Think Finance) provided services to Plain Green that caused Plaintiff’s harm.
Those allegations place Plaintiff’s claims squarely within the scope of a “Dispute”
against an officer of a “servicing and collection representative” of Plain Green.4
Accordingly, the plain language of the arbitration agreement reveals Plaintiff’s
claims are within the definition of a “Dispute” that she agreed to arbitrate. The FAA
requires this Court to compel such an arbitration. 9 U.S.C. § 3.
B. The clear and conspicuous delegation provision requires

arbitration of any challenge to the Arbitration Agreement.
Notwithstanding the presence of a clear agreement to arbitrate her claims
arising out of her loan agreement, it is anticipated that Plaintiff will argue that the
Court should nonetheless refuse to enforce the arbitration agreement. Specifically, it
4
Even if this were not the case, “[t]he Sixth Circuit has recognized that nonsignatories
may be bound to arbitration agreement under ordinary contract and agency
principles.” D & R Co., LLC v. BASF Corp., No. 09-CV-10641, 2010 WL 11545257,
at *3 (E.D. Mich. Mar. 26, 2010) (collecting cases). While there is no need to resort to
such theories given that Plaintiff’s allegations places Rees squarely within the scope of
the agreement to arbitrate. Yet, Plaintiff clearly received a direct benefit from her
loan agreement, and she is estopped, and cannot avoid having to arbitrate claims
arising from that loan agreement.
12
is anticipated that Plaintiff will mirror her requests a declaratory judgment that
declares the arbitration agreement to be void and unenforceable. Compl. at ¶¶ 159-
173. But the arbitration agreement contains a clear and conspicuous delegation
provision. Compl. at Ex. B at 8 (noting that a “Dispute” that must be arbitrated
“includes any issue concerning the validity, enforceability, or scope of this Agreement
or this Agreement to Arbitrate”). Given the presence of a delegation provision, the
Court must refer all questions of enforceability and arbitrability to arbitration.
Because “arbitration is a matter of contract,” the Supreme Court has repeatedly
reaffirmed that parties “may agree to have an arbitrator decide not only the merits of a
particular dispute but also gateway questions of arbitrability.” Henry Schein v. Archer &
Whites Sales, Inc., 586 U.S. ----, 139 S. Ct. 524, 529 (2019). Such a provision is referred
to as a “delegation provision,” and is evaluated as “an additional, antecedent
agreement,” which is “valid under § 2 [of the FAA] ‘save upon such grounds as exist
at least or in equity….” Rent-A-Center West, Inc. v. Jackson, 561 U.S. 63, 70-71 (2010); see
also First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995) (noting that parties can
agree for arbitrators to decide arbitrability).
Where, as here, the parties have expressly delegated initial gateway questions of
arbitrability to an arbitrator, a district court’s task under the FAA is exceedingly clear:
it is required to “respect the parties’ decision as embodied in the contract,” and send
the matter to arbitration for an arbitrator to determine whether the agreement is
enforceable. Henry Schein, 139 S. Ct. at 528, 531. As the Supreme Court made clear in
13
Henry Schein, “if a valid agreement exists, and if the agreement delegates the
arbitrability issue to an arbitrator, a court may not decide the arbitrability issue.”
Id. at 530 (emphasis added). This is so, even where a district court believes that the
resolution of arbitrability issues will not be meritorious. Id. In other words, where, as
here, the parties express a clear and unmistakable intent to arbitrate issues of
arbitrability, it is the obligation of a court to enforce the delegation provision even
where the court believes the answers to arbitrability questions are free from doubt. Id.
Indeed, a district court in this circuit recently recognized that a prospective
waiver/effective vindication challenge, like the one likely to be asserted by Plaintiff,
must be “heard by the arbitrator where, as here, the parties’ agreement includes a
delegation clause.” De Angelis v. Icon Entm't Grp. Inc., 364 F. Supp. 3d 787, 795 (S.D.
Ohio 2019) (ultimately holding plaintiff’s “effective vindication challenge must,
therefore, be raised before the arbitrator in the first instance”). The Court in De
Angelis, along with numerous others, has also applied Henry Schein to require
“challenges based on mutual assent, lack of consideration, and unconscionability,” to
be submitted to an arbitrator in the presence of a delegation clause. Id.
Plaintiff’s loan agreement unquestionably contains a clear, conspicuous, and
enforceable delegation provision requiring arbitration of “any issue concerning the
validity, enforceability, or scope of this Agreement or this Agreement to Arbitrate.”
Compl. at Ex. B at 8; see also See Rent-A-Center, 561 U.S. at 68-69 (holding that similar
language constitutes a clear and unmistakable intent to delegation provision requiring

14
arbitration of threshold issues of arbitrability); PaineWebber Inc. v. Bybyk, 81 F.3d 1193,
1199–2000 (2d Cir. 1996) (ruling that where an arbitration provision indicates an
intent to arbitrate “any and all” claims, it reflects a “broad grant of power to the
arbitrators” that evidences the parties’ clear “inten[t] to arbitrate issues of
arbitrability”). Given the presence of such an express delegation clause in the
arbitration agreement, Henry Schein compels only a single result—to send any dispute
over arbitrability to an arbitrator.
Similarly, courts have held that where an arbitration agreement incorporates or
references the arbitration rules from AAA or JAMS, such incorporation is evidence of
a clear and unmistakable intent to delegate arbitrability questions to an arbitrator. See
Bishop v. Gosiger, Inc., 692 F.Supp.2d 762, 769 (E.D. Mich. 2010) (collecting cases from
six federal circuit courts and courts of the Sixth Circuit predicting the Circuit would
adopt this line of authority, but refusing to expressly include the reasoning in its
holding); see also Brennan v. Opus Bank, 796 F.3d 1125, 1130–31 (9th Cir. 2015)
(collecting cases and noting that “the vast majority” of circuits have determined that
reference to AAA or JAMS rules evinces an intent to arbitrate arbitrability, and have
reached that conclusion “without explicitly limited that holding to sophisticated
parties or to commercial contracts.”). The consumer rules of both the AAA and
JAMS are both referenced in the arbitration agreement, and arbitrations are required
to take place according to those rules. Compl. at Ex. B. at 8. In fact, the consumer
rules of those arbitral forums provide for additional protections for Plaintiff in any
15
arbitration—in some cases more than than she would receive in court. Accordingly,
the reference to such rules, again, demonstrates a clear and unmistakable intent to
delegate issues of arbitrability to an arbitrator, and this Court should not hesitate to
send all questions of arbitrability to arbitration under Henry Schein.
C. Plaintiff offers no evidence to avoid her arbitration agreement.
Given the presence of a clear delegation provision, the Supreme Court’s
decision in Henry Schein leaves this Court with little to do other than send this case to
arbitration. But to the extent the Court considers Plaintiff’s challenges to the
arbitration agreement, they are without merit.
A party resisting an otherwise facially valid arbitration agreement “bears the
burden of proving that the claims at issue are unsuitable for arbitration.” Green Tree
Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 91 (2000); accord Smith v.
ComputerTraining.com Inc., 772 F.Supp.2d 850, 855 (E.D. Mich. 2011) (“The party
opposing arbitration has the burden to show that the agreement is not enforceable”).
Similarly, the Sixth Circuit has noted that “the party opposing arbitration must show a
genuine issue of material fact as to the validity of the agreement to arbitrate,” by
making an evidentiary showing akin to “that required to withstand summary judgment
in a civil suit.” Green Earth Companies, Inc. v. Simons, 288 F.3d 878, 899 (6th Cir. 2002).
In making this evidentiary showing, reliance on citations to other cases alleged to be
similar “is not an appropriate substitute for presenting […] evidence.” Yaroma v.
Cashcall, Inc., 130 F.Supp.3d 1055, 1065 (E.D. Ky. 2015) (compelling arbitration of
16
claims against servicing and collection companies for Native American lender over
plaintiff’s allegations of unconscionability, prospective waiver, and that the loan
agreement was void ab initio given the interest rates charged).
Plaintiff has, to date, made no such evidentiary showing. Instead, the
Complaint contains only a patchwork of improper and irrelevant declaratory
statements—offered solely on counsel’s ipse dixit and stripped of any meaningful
context—as well as citations to cases in other jurisdictions concerning other Native
American lenders. That is clearly not enough.
1. The choice-of-law clause is enforceable.
Plaintiff’s first, and chief, objection to arbitration, is that the arbitration
agreements contain a choice-of-law clause selecting the laws of the Chippewa Cree
Tribe. Plaintiff, through citations to other cases, argues that it is a certainty that any
arbitration conducted pursuant to such a choice-of-law clause, prevents her from
effectively vindicating her claims. But that conclusion is entirely unsupported by
evidence and contrary to Supreme Court authority. Those shortcomings require the
Court to compel arbitration in conformity with the FAA.
As the Supreme Court has repeatedly reaffirmed, “[n]ot only did Congress
require courts to respect and enforce agreements to arbitrate; it also specifically
directed them to respect and enforce the parties’ chosen arbitration procedures.” Epic
Sys. Corp. v. Lewis, 138 S.Ct. 1612, 1621 (2018). As such, it is beyond question that
parties to arbitration agreements can “specify by contract the rules under which the
17
arbitration will be conducted.” Volt Info. Scis., Inc. v. Bd. of Trustees of Leland Stanford
Junior Univ., 489 U.S. 468, 479 (1989). This includes “considerable latitude to choose
what law governs” an arbitration. DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463, 468
(2015). Such latitude means that parties are free to have their arbitration agreement
“governed by the laws of Tibet, [or] the law of pre-revolutionary Russia,” if they so
choose. Id.
To this end, the Supreme Court, and numerous other courts of appeal have
routinely enforced choice-of-law clauses selecting the laws of any number of foreign
countries—to the exclusion of state and federal law. Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) (Swiss law); Vimar Seguros y Reaseguros, S.A.
v. M/V Sky Reefer, 515 U.S. 528 (1995) (Japanese law); M/S Bremen v. Zapata Off-Shore
Co., 407 U.S. 1 (1972) (“The Bremen”) (English law); Aggarao v. MOL Ship Management
Company, Ltd., 675 F.3d 355 (4th Cir. 2012) (Philippines law); Lindo v. NCL (Bahamas),
Ltd., 652 F.3d 1257 (11th Cir. 2011) (Bahamian law); Richards v. Lloyd’s of London, 135
F.3d 1289 (9th Cir. 1998) (en banc) (law of the United Kingdom).
In Mitsubishi Motors, for example, the Supreme Court permitted an arbitration to
be conducted under a choice of Swiss law provision, even where it was alleged that “a
contrary result would be forthcoming in a domestic context” in litigation conducted
pursuant to federal law. 473 U.S. at 629-30. In Vimar Seguros, the Supreme Court
likewise permitted a foreign arbitration to go forward under Japanese law,
notwithstanding that Japanese law provided for complete defenses to liability that
18
were unavailable under federal law and which might be outcome determinative. Id.,
515 U.S. at 540-41. In The Bremen, the Supreme Court required enforcement of a
choice of English forum and English law clause, notwithstanding that English law was
likely to limit a plaintiff’s maximum recovery to approximately $80,000, rather than
the $3,500,000 recoverable under United States law. 407 U.S. at 3-4, 7-8, 8 n.8, 13
n.15.
Results from the Courts of Appeal are similar. In Richards v. Lloyd’s of London,
the en banc Ninth Circuit required enforcement of choice of English forum and
English law provisions, notwithstanding that enforcement of the choice clauses
resulted in plaintiffs’ inability to bring claims available under United States securities
laws, as well as RICO claims (such as those plead here). 135 F.3d at 1295-96. The
Second Circuit, in Roby v. Corp. of Lloyd's, also noted that “[i]t defies reason to suggest
that a plaintiff may circumvent forum selection and arbitration clauses merely by
stating claims under laws not recognized by the forum selected in the agreement.” 996
F.2d 1353, 1360 (2d Cir. 1993). Similarly, the Tenth Circuit has recognized that “the
fact that an international transaction may be subject to laws and remedies different or
less favorable than those of the United States is not a valid basis to deny
enforcement,” of a forum selection clause. Riley v. Kingsley Underwriting Agencies, Ltd.,
969 F.2d 953, 958 (10th Cir. 1992). The Fourth Circuit in Aggarao v. MOL Ship
Management Company, Ltd., compelled arbitration of claims containing a choice of
Philippines law, even where the defendants argued “that United States law should not
19
apply” under the choice clause, and where it was uncertain whether the plaintiff could
“obtain an adequate remedy” under Philippines law. 675 F.3d at 372 n.16. These are
just a selection of the numerous decisions from other courts of appeal that have
properly applied the Supreme Court’s prospective waiver case law.
The common theme throughout all of these cases is that the Supreme Court
and the Circuits will routinely enforce choice-of-law and choice of forum clauses that
apply to the exclusion of state and federal law. In each of these cases, the court
required litigation or arbitration to proceed pursuant to the foreign choice-of-law and
choice-of-forum provisions without finding a prospective waiver. That is because, as
the Supreme Court recently reaffirmed, the prospective waiver doctrine will apply
only when a litigant demonstrates that the arbitration and choice-of-law clauses work
eliminates the right to pursue a remedy. Italian Colors, 570 U.S. at 236. Yet such cases are
the extreme exception, and the Supreme Court has never invalidated an arbitration
agreement on the basis that a consumer has been unable to effectively vindicate her
rights. Id. at 235 (confirming the Supreme Court’s repeated recognition of the
effective vindication exemption but noting that the Court has always “declined to
apply [the effective vindication doctrine] to invalidate the arbitration agreement at
issue”)
Given this case law, the proper question for the Court when considering an
effective vindication/prospective waiver challenge is “whether the application of
foreign law presents a danger that the [plaintiff] ‘will be deprived of any remedy or
20
treated unfairly.’” Roby, 996 F.2d at 1363 (quoting Piper Aircraft Co. v. Reyno, 454 U.S.
235, 254-55 (1981)); accord Lindo, 652 F.3d at 1269 (summarizing Supreme Court
precedent to hold that “choice-of-law clauses may be enforced even if the substantive
law applied in arbitration potentially provides reduced remedies (or fewer defenses)
than those available under U.S. law”). Plaintiff has, thus far, offered no evidence that
she will be deprived of any remedy or that she will be treated unfairly in an
arbitration conducted by one of the most respected arbitration associations.5
Rather than attempt to meet her evidentiary burden, Plaintiff has thus far
merely cited to other cases and argues that her federal and state statutory rights will
invariably be waived “under the guise of a choice of laws clause.” Compl. ¶ 161.
That conclusion is, however, merely asserted in the Complaint as conclusory fiat.
There is no evidence of the certainty of such an outcome. In fact, the the laws of the
Chippewa Cree Tribe (which are freely available online to consumers prior to
5
Indeed, it is not a forgone conclusion that Plaintiff will be required to arbitrate under
the laws of the Chippewa Cree Tribe. As Yaroma recognized “[t]he final decision
about which law to apply would be left to the arbitrator given the broad scope of the
arbitration agreement and the typical practice in such situations.” 130 F.Supp.3d at
1064; see also Vimar Seguros, 515 U.S. at 541 (compelling arbitration pursuant to
Japanese law but noting that a “choice-of-law question […] must be decided in the
first instance by the arbitrator”). And, of course, “a contract’s general choice-of-law
provision does not displace federal arbitration law if the contract involves interstate
commerce,” as this one does. Rota-McLarty v. Santander Consumer USA, Inc., 700 F.3d
690, 697 n.7 (4th Cir. 2012). These cases, combined with the clear statement in the
arbitration agreement that the parties will “look to the federal arbitration act and any
judicial interpretations thereof for guidance in any arbitration that may be conducted,”
remove all doubt that an arbitrator may conduct a choice-of-law analysis that could
provide for Michigan law to apply.
21
connumating their loan agreement) make clear that there are significant remedies
available under that law. See, e.g., Section 10-6-201, Chippewa Cree Tribal Lending
and Regulatory Code, available at
https://www.plaingreenloans.com/content/assets/Uploads/title10.pdf (last visited
September 6, 2019) (permitting actions by consumers for actual damages, injunctive
relief, and equitable relief). The availability of these remedies to consumers under
Chippewa Cree law is fatal to Plaintiff’s prospective waiver claim.
Plaintiff has clearly not done nearly enough to support her evidentiary burden
akin to opposing summary judgment. Cf. Vimar Seguros, 515 U.S. at 541 (compelling
arbitration pursuant to foreign choice-of-law clause because “mere speculation” about
how an arbitrator may rule under foreign law is an insufficient justification to avoid
arbitration). As such, the Court should not hesitate to reject any challenge to the
arbitration clause based upon the presence of a choice of Chippewa Cree law
provision.6
6
To the extent the Court has any concerns about the arbitrator’s ability to apply the
choice-of-law provision, it is beyond debate that Section 10 of the FAA permits a
court to retain jurisdiction to resolve any issues with the enforcement of the arbitral
award. See Henry Schein, 139 S. Ct. at 530 (acknowledging that Section 10 of the FAA
“provides for back-end judicial review of an arbitrator’s decision. . . .”); Hooters of Am.,
Inc. v. Phillips, 173 F.3d 933, 937 (4th Cir.1999) (a court retains jurisdiction over a case
sent to arbitration because “[w]hen a valid agreement to arbitrate exists between the
parties and covers the matter in dispute, the FAA commands the federal courts to stay
any ongoing judicial proceedings and to compel arbitration.”); U-Save Auto Rental of
Am. Inc. v. Furlo, 368 F. App'x 601, 602 (5th Cir. 2010) (noting that “[o]nce the district
court determined its jurisdiction for the purpose of ordering arbitration, it properly
could retain jurisdiction to resolve any issues stemming from its order, including the
22
2. Plaintiff’s remaining attempts to avoid the arbitration

agreement lack evidence and are without merit.
Plaintiff’s remaining likely arguments to avoid having to arbitrate her claims are
similarly without merit. For example, Plaintiff states that “[b]ecause the monetary
damages suffered by each Plaintiff [sic] and other members of the Class is small, the
individual incentive to bring an action is extremely limited, particularly since Plain
Green targets people who have few resources to bring a claim.” Compl. ¶ 163(a). But
such a concern for the ability to vindicate small-dollar claims has already been
presented to, and firmly rejected by, the Supreme Court on multiple occasions as a
basis to avoid arbitration. See AT&T Mobility v. Concepcion, 563, U.S. 333, 351 (2011);
Italian Colors, 570 U.S. at 238; Epic Sys., 138 S.Ct. at 1622-23.
Similarly, Plaintiff attacks her understanding or ability to understand of the
contractual terms she agreed to. Compl. ¶ 163 (b)-(c). But, Plaintiff not only was
repeatedly warned to read her loan agreement “CAREULLY,” she was also given
five full business days to review her loan agreement and rescind or cancel her loan by
simply calling customer service. Compl. Ex. B at 4. As the Sixth Circuit has
recognized, “[o]ne who signs a contract is presumed to know its contents, and ... if he
has had an opportunity to read the contract which he signs he is bound by its
provisions.” Stout v. J.D. Byrider, 228 F.3d 709, 715 (6th Cir. 2000) (quoting Sears,
enforcement of the award”). This back end review alleviates any concerns, and
undercuts any argument, that the Court must consider the prospective
waiver/effective vindication issues now.
23
Roebuck & Co. v. Lea, 198 F.2d 1012, 1015 (6th Cir.1952)). And, Plaintiff asserts a
generalized concern regarding the ability to negotiate her loan agreement along with
concerns regarding other terms of the arbitration agreement. Compl. ¶ 163 (d)-(f).
But as courts have recognized, “[u]nconscionability cannot be based simply on the
fact that arbitration clauses have become an immutable fixture of financial services
contracts.” Big City Small World Bakery Cafe, LLC v. Francis David Corp., 265 F. Supp.
3d 750, 764 (E.D. Mich. 2017). This is because notwithstanding that “with many
financial service providers such as banks, brokers, credit card companies, and other
lenders,” consumers are forced to either “relinquish access to a court to resolve
disputes (take it) or forgo the service (leave it),” it is for “Congress or appellate
courts” to change the law of arbitration as to consumer agreements. Id. (reaching this
conclusion despite the court’s concern over the “adhesive nature of the relationship”).
In short, Plaintiff’s additional bases for avoiding having to arbitrate her claims,
at least as they have been expressed in her Complaint, are without merit.
IV. CONCLUSION
This case belongs in arbitration—the forum selected by the parties ex ante to
decide all disputes, including arbitrability. No one seriously disputes the presence of
the arbitration agreement signed by Plaintiff, requiring her to arbitrate all claims
arising out of her loan agreement. And, at an irreducible minimum, the arbitration
agreement’s clear and conspicuous delegation provision requires the Court to
24
compel arbitration at least as to matters of arbitrability. As such, this Court must,
pursuant to the FAA, order this case stayed and sent to arbitration.
Respectfully Submitted,
Michelle L. Alamo (MI ID # P60684)
4643 S. Ulster St., Suite 800
Denver, CO 80237
Phone: 720.200.06762
Richard L. Scheff
Jonathan P. Boughrum
David F. Herman (application for admission
forthcoming)
Michael C. Witsch (application for admission
forthcoming)
2005 Market Street
One Commerce Square, 29th Floor
Philadelphia, PA 19103
Phone: 267.780.2000
[email protected]
[email protected]
[email protected]
Counsel for Kenneth E. Rees
25


:
Plaintiffs, : NO. 2:19-cv-12014-BAF-RSW
:
v. :
:
TIM MCINERNEY, and KENNETH E. :
REES, :
:
Defendants.
[PROPOSED] ORDER
AND NOW, this day of , 2019, upon consideration of
Defendant Kenneth E. Rees’s Motion to Compel Arbitration, and any responses and
replies thereto, it is hereby ORDERED that the Motion is GRANTED. This case
shall be stayed pending the parties’ completion of arbitration.
, J.
CERTIFICATE OF SERVICE
I, MICHELLE L. ALAMO, hereby certify that on this 30h day of September
2019, I filed electronically a copy of the foregoing Defendant Kenneth E. Rees’s Motion to
Compel Arbitration. This document is available for viewing and downloading from the
ECF system and electronic notification has been sent to all counsel of record via the
court’s CM/ECF system.
Michelle L. Alamo

5-Motion-To-Compel-Arbitration Mboh Opo Iki

Uploaded by

Copyright:

Available Formats

5-Motion-To-Compel-Arbitration Mboh Opo Iki

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

5-Motion-To-Compel-Arbitration Mboh Opo Iki

Uploaded by

Copyright:

Available Formats

Case 2:19-cv-12014-BAF-RSW ECF No. 5 filed 09/30/19 PageID.

UNITED STATES DISTRICT COURT

NICOLE MARIE SWIGER, on behalf of : CIVIL ACTION

DEFENDANT KENNETH E. REES’S MOTION TO COMPEL

staying this matter and compelling arbitration pursuant to a written agreement to

“concerning the validity, enforceability, or scope of” her agreement to arbitrate.

of the Motion to Compel Arbitration.

Pursuant to Local Rule 7.1(a)(1), Defendants sought concurrence after a

Counsel for Kenneth E. Rees

UNITED STATES DISTRICT COURT

NICOLE MARIE SWIGER, on behalf of : CIVIL ACTION

BRIEF IN SUPPORT OF DEFENDANT KENNETH E. REES’S MOTION

II. FACTS AND BACKGROUND INFORMATION .......................................................... 2

A. The Arbitration Agreement ...................................................................... 3

B. The arbitration provision includes a clearly-disclosed and

III. ARGUMENT .......................................................................................................... 9

A. Plaintiff’s loan agreement contains an enforceable agreement to

B. The clear and conspicuous delegation provision requires

C. Plaintiff offers no evidence to avoid her arbitration agreement. ............ 16

1. The choice-of-law clause is enforceable....................................... 17

Aggarao v. MOL Ship Management Company, Ltd.,

Am. Exp. Co. v. Italian Colors Rest.,

Bishop v. Gosiger, Inc.,

Brennan v. Opus Bank,

D & R Co., LLC v. BASF Corp.,

De Angelis v. Icon Entm't Grp. Inc.,

Dean Witter Reynolds, Inc. v. Byrd,

DIRECTV, Inc. v. Imburgia,

Epic Sys. Corp. v. Lewis,

First Options of Chi., Inc. v. Kaplan,

GGNSC Louisville Hillcreek, LLC v. Estate of Bramer by & through Bramer,

Gibbs, et al. v. Rees, et al.,

Green Earth Companies, Inc. v. Simons,

Green Tree Fin. Corp.-Alabama v. Randolph,

Henry Schein v. Archer & Whites Sales, Inc.,

Hooters of Am., Inc. v. Phillips,

Lindo v. NCL (Bahamas), Ltd.,

M/S Bremen v. Zapata Off-Shore Co.,

Masco Corp. v. Zurich American Ins. Co.,

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,

New Prime Inc. v. Oliveira,

Ngoc Hoang v. Auto. Lease Guide, Inc.,

PaineWebber Inc. v. Bybyk,

Rent-A-Center West, Inc. v. Jackson,

Richards v. Lloyd’s of London,

Riley v. Kingsley Underwriting Agencies, Ltd.,

Roasting Plant of Michigan JV, LLC v. Roasting Plant, Inc.,

Rota-McLarty v. Santander Consumer USA, Inc.,

Smith v. ComputerTraining.com Inc.,

Stout v. J.D. Byrider,

U-Save Auto Rental of Am. Inc. v. Furlo,

Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer,

Yaroma v. Cashcall, Inc.,

9 U.S.C. § 2 ................................................................................................................................. 2, 10, 13

9 U.S.C. § 3 ..................................................................................................................................... 10, 12

American Arbitration Association, Consumer Arbitration Rules (Sept. 1, 2018) ....................... 5

Chippewa Cree Tribal Lending and Regulatory Code, available at

STATEMENT OF THE ISSUES PRESENTED

terms of the arbitration agreement to which Plaintiff freely agreed?