USCA11 Case: 20-13575 Date Filed: 05/26/2022 Page: 1 of 52
`
`
`
`
`
`
`
` [PUBLISH]
`
`
`
`
`
`
`
`
`In the
`United States Court of Appeals
`For the Eleventh Circuit
`
`
`
`
`
`
`
`
`
`____________________
`
`No. 20-13575
`
`____________________
`
`
`WILLIAM ATTIX,
`on behalf of himself and all others similarly situated,
`
`versus
`CARRINGTON MORTGAGE SERVICES, LLC,
`
` Plaintiff-Appellee,
`
` Defendant-Appellant.
`
`
`____________________
`
`Appeal from the United States District Court
`for the Southern District of Florida
`D.C. Docket No. 1:20-cv-22183-UU
`____________________
`
`
`
`
`
`
`
`
`
`
` [PUBLISH]
`
`
`
`
`
`
`
`
`In the
`United States Court of Appeals
`For the Eleventh Circuit
`
`
`
`
`
`
`
`
`
`____________________
`
`No. 20-13575
`
`____________________
`
`
`WILLIAM ATTIX,
`on behalf of himself and all others similarly situated,
`
`versus
`CARRINGTON MORTGAGE SERVICES, LLC,
`
` Plaintiff-Appellee,
`
` Defendant-Appellant.
`
`
`____________________
`
`Appeal from the United States District Court
`for the Southern District of Florida
`D.C. Docket No. 1:20-cv-22183-UU
`____________________
`
`
`
`
`USCA11 Case: 20-13575 Date Filed: 05/26/2022 Page: 2 of 52
`
`2
`
`Opinion of the Court
`
`20-13575
`
`Before BRANCH, GRANT, and BRASHER, Circuit Judges.
`BRANCH, Circuit Judge:
`Parties often agree to arbitrate disputes arising from their
`contracts. They may arbitrate all kinds of disputes, including
`whether their claims are arbitrable. In other words, parties are free
`to arbitrate not only the “merits” of their claims, but also the
`“arbitrability” of their claims. But—wait for it—parties sometimes
`dispute whether an arbitrator should arbitrate arbitrability. When
`that happens, a court must decide who decides whether the parties
`will arbitrate. This is one such case.
`
`In May 2020, William Attix sued his mortgage servicer,
`Carrington Mortgage Services, asserting claims under the Fair
`Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq.,
`and Florida law. Attix’s claims arose from a mortgage payment he
`made to Carrington using an automated pay-by-phone service
`provided by Speedpay, a third-party payment service provider.
`Before making his mortgage payment, Attix agreed to be bound by
`Speedpay’s terms and conditions. Those terms and conditions—to
`which Attix, Speedpay, and Carrington were parties—provided
`that “any dispute arising from” Attix’s use of Speedpay’s service
`“shall be” arbitrated. They also provided that an “arbitrator shall
`also decide what is subject to arbitration unless prohibited by law,”
`and incorporated by reference an arbitration provision of the
`American Arbitration Association (“AAA”) stating that “[t]he
`arbitrator shall have the power to rule on his or her own
`jurisdiction.”
`
`
`
`USCA11 Case: 20-13575 Date Filed: 05/26/2022 Page: 3 of 52
`
`20-13575
`
`Opinion of the Court
`
`3
`
`After Attix filed suit, Carrington moved to compel
`arbitration. Carrington argued that Attix’s claims arose from his
`use of Speedpay’s service and therefore must be arbitrated under
`the terms and conditions to which Attix had agreed. Carrington
`also argued that, by agreeing that an arbitrator would decide “what
`is subject to arbitration” and would “rule on his or her own
`jurisdiction,” the parties had contracted to arbitrate any disputes
`about whether Attix’s claims were arbitrable. Attix conceded that
`he had agreed to arbitrate claims arising from his use of Speedpay’s
`service, including the claims he had asserted against Carrington,
`but argued that a provision of the Dodd-Frank Wall Street Reform
`and Consumer Protection Act (Dodd-Frank Act), Pub. L. No. 111-
`203, 124 Stat. 1376, prohibited enforcement of the parties’
`arbitration agreement.
`
`The district court denied Carrington’s motion to compel
`arbitration. The district court found that the parties had entered
`into a valid agreement to arbitrate claims arising from Attix’s use
`of Speedpay’s service and that Attix’s claims against Carrington
`were covered by that agreement. But the district court ruled that
`the Dodd-Frank Act prohibited enforcement of the parties’
`arbitration agreement. The district court noted the provision of
`the Speedpay terms and conditions directing that an arbitrator
`decide “what is subject to arbitration,” but said that provision had
`no application in this case.
`On appeal, Carrington challenges the district court’s denial
`of its motion to compel arbitration on two grounds. First,
`
`
`
`USCA11 Case: 20-13575 Date Filed: 05/26/2022 Page: 4 of 52
`
`4
`
`Opinion of the Court
`
`20-13575
`
`Carrington argues that the district court erred in even deciding
`whether the Dodd-Frank Act prohibits enforcement of the parties’
`arbitration agreement. Carrington asserts that, by agreeing that an
`arbitrator would decide “what is subject to arbitration” and would
`“rule on his or her own jurisdiction,” the parties agreed that an
`arbitrator would decide such threshold arbitrability issues. Second,
`Carrington argues that, in any case, the district court erred in
`finding that the Dodd-Frank Act prohibits enforcement of the
`parties’ arbitration agreement.
`
`Carrington is right on the first point, which means the
`second is not for us to decide. In the terms and conditions
`governing Attix’s use of Speedpay’s service, Attix and Carrington
`clearly and unmistakably agreed that an arbitrator would decide all
`threshold questions about the arbitrability of Attix’s claims,
`including whether their arbitration agreement is enforceable. Attix
`argues that the parties agreed to arbitrate only some, but not all,
`threshold arbitrability issues, but his interpretation of the parties’
`agreement is unavailing. Moreover, although he claims that he
`has, Attix has not specifically challenged the enforceability of the
`parties’ agreement to arbitrate threshold questions about the
`arbitrability of his claims. Attix’s Dodd-Frank Act challenge relates
`only to the enforceability of the parties’ separate agreement to
`arbitrate the merits of his claims, and the parties have agreed to
`submit questions about the enforceability of that agreement to an
`arbitrator. Thus, the arbitrability dispute in this case—i.e., whether
`
`
`
`USCA11 Case: 20-13575 Date Filed: 05/26/2022 Page: 5 of 52
`
`20-13575
`
`Opinion of the Court
`
`5
`
`the Dodd-Frank Act prohibits enforcement of the parties’
`arbitration agreement—is for an arbitrator to decide.
`After review and with the benefit of oral argument, we
`reverse and remand with instructions to compel arbitration and
`stay proceedings in the district court.
`
`I. Background
`In 2008, William Attix took out a home mortgage loan.
`Later, after Attix defaulted, Carrington became his mortgage
`servicer. In May 2020, Attix made a mortgage payment to
`Carrington using Speedpay’s automated phone payment service.
`When Attix dialed Speedpay’s line, Speedpay’s automated system
`informed him that he would be charged a $10 convenience fee for
`using Speedpay’s service. Through a telephonic prompt, Attix
`agreed to pay the $10 fee.
`Before Attix completed his mortgage payment, Speedpay’s
`automated system informed him that “the terms and conditions
`applicable to this payment are located at Speedpay.com/terms,”
`and directed Attix to press 1 “to complete your transaction and
`accept these terms.” The applicable terms and conditions located
`on Speedpay’s website stated:
`THIS PAYMENT SERVICE IS SUBJECT TO THE
`FOLLOWING TERMS AND CONDITIONS.
`Do not use or access this Website or Service if You do
`not agree to be bound by these Terms and
`Conditions.
`
`
`
`USCA11 Case: 20-13575 Date Filed: 05/26/2022 Page: 6 of 52
`
`6
`
`Opinion of the Court
`
`20-13575
`
`(“Terms and
`These Terms and Conditions
`Conditions”) are
`in effect
`for all transactions
`processed
`through
`this
`payments website
`(“Website”) on or after May 9, 2019, and apply to and
`govern Your access to and use of this Website, the
`Service and all Alternative Channels. This payment
`processing service is offered to You on behalf of your
`Biller (“Service”).
`. . . These Terms and Conditions also apply to Service
`transactions, or Payments, made by or through any
`“Alternative Payment Channels” including those
`Payments initiated, or completed through, Integrated
`Voice Response (IVR) systems, customer service
`representatives, telephone, internet, or any other
`means or mechanisms of Payment acceptance.
`The Speedpay terms and conditions defined “User,” “You,”
`and “Your” as “a user of this Website or any Alternative Payment
`Channel, located in the U.S., who is making a payment to the
`Biller.”
` They defined “Speedpay” as “Speedpay, an ACI
`Worldwide company, and, as applicable, its affiliates and parent
`company who support the Service.” And they defined “Biller” as
`“the receiver of Your Payment, which is generally a business that
`is a client of Speedpay that has authorized Speedpay to process
`Payments from its customers.”1
`
`
`1 The parties agree that, when Attix made his mortgage payment using
`Speedpay’s service, Carrington was the “Biller.”
`
`
`
`USCA11 Case: 20-13575 Date Filed: 05/26/2022 Page: 7 of 52
`
`20-13575
`
`Opinion of the Court
`
`7
`
`The Speedpay terms and conditions contained the following
`arbitration provision:
`Unless You opt out as set forth below, any dispute
`arising from or relating to Service or your Payment(s)
`shall be resolved by mandatory and binding
`arbitration. The arbitrator shall also decide what is
`subject to arbitration unless prohibited by law. The
`arbitration will be administered by American
`Arbitration Association (“AAA”) under its Consumer
`Arbitration Rules, which
`are
`available
`at
`https://www.adr.org/active-rules.
` You will be
`responsible for up to $200 of the administration fees.
`We, or the Arbitrator, may reduce this amount if you
`demonstrate hardship. This agreement is governed
`by the Federal Arbitration Act[,] 9 U.S.C. § 1 et seq.
`(“FAA”), and any award shall be final and binding,
`and may be entered as judgment in any court of
`competent jurisdiction. Any arbitration shall take
`place on an
`individual basis; class actions or
`consolidation of arbitrations are not permitted. The
`Arbitrator shall be required to follow applicable
`substantive law and shall have no authority to deviate
`therefrom. If any part of this paragraph is deemed
`invalid, it shall not invalidate the other parts. If AAA
`is unwilling or unavailable to administer the
`arbitration, the parties or a court will select another
`arbitrator in accordance with the FAA. You may opt
`out of arbitration within 30 days after initiating a
`Payment by calling (866) 316-3360. IF YOU DO NOT
`OPT OUT, YOU WILL WAIVE ANY RIGHT TO A
`
`
`
`USCA11 Case: 20-13575 Date Filed: 05/26/2022 Page: 8 of 52
`
`8
`
`Opinion of the Court
`
`20-13575
`
`TRIAL BY JURY OR JUDGE IN COURT AND ANY
`RIGHT TO PARTICIPATE IN A CLASS ACTION.[2]
`(emphasis omitted).
`The “Consumer Arbitration Rules” that the arbitration
`provision referenced are a publicly available set of AAA rules for
`arbitrating disputes arising
`from consumer contracts with
`standardized arbitration clauses.
` See American Arbitration
`Association, Consumer Arbitration Rules 6 (amended and effective
`Sept. 1, 2014),
`adr.org/sites/default/files/Consumer-Rules-
`Web.pdf.
` Arbitrations that proceed under the Consumer
`Arbitration Rules are administered by the AAA and conducted by
`a neutral arbitrator selected by either the parties or the AAA. See
`id. R-1, R-15, R-16. Rule 14 of the Consumer Arbitration Rules—
`the “Jurisdiction” section—provides that:
`The arbitrator shall have the power to rule on his or
`her own jurisdiction, including any objections with
`respect to the existence, scope, or validity of the
`arbitration agreement or to the arbitrability of any
`claim or counterclaim.
`Id. R-14(a).
`
`On May 26, 2020—just a few days after he used Speedpay’s
`service to make his mortgage payment—Attix filed a putative class
`action suit against Carrington, asserting claims under the FDCPA
`and Florida law. Attix alleged that Carrington violated those laws
`
`2 Attix did not opt out of arbitration.
`
`
`
`USCA11 Case: 20-13575 Date Filed: 05/26/2022 Page: 9 of 52
`
`20-13575
`
`Opinion of the Court
`
`9
`
`by using its payment service provider to collect convenience fees
`for mortgage payments made online or over the phone and then
`retaining some or all of those convenience fees for itself.3
`After Attix filed suit, Carrington moved to compel
`arbitration and stay proceedings in the district court. In its motion,
`Carrington argued that Attix and Carrington were parties to the
`terms and conditions governing Attix’s use of Speedpay’s service to
`make his mortgage payment in May 2020; that Attix’s claims arose
`from his use of Speedpay’s service; and that Attix’s claims were
`therefore governed by the parties’ agreement to arbitrate “any
`dispute arising from or relating to Service or your Payment(s).”
`Carrington also argued that, by agreeing that “[t]he arbitrator shall
`also decide what is subject to arbitration unless prohibited by law,”
`and by incorporating the AAA’s rules for consumer arbitrations
`into their agreement, the parties had agreed to “delegate” any
`disputes about the arbitrability of Attix’s claims to an arbitrator. In
`
`
`3 Although the substantive details of Attix’s claims are not relevant to this
`appeal, by way of background, Attix alleged in his class action complaint that,
`by collecting and retaining convenience fees for mortgage payments made
`online or over the phone, Carrington violated the FDCPA’s prohibition
`against “debt collector[s]” collecting fees incidental to principal debt
`obligations that are not “expressly authorized by the agreement creating the
`debt or permitted by law.” See 15 U.S.C. § 1692f(1). In his state-law counts,
`Attix alleged that, when it collected and retained convenience fees, Carrington
`also: (1) violated two Florida consumer protection statutes; and (2) breached
`the terms of Attix’s mortgage loan agreement or, in the alternative, was
`unjustly enriched.
`
`
`
`USCA11 Case: 20-13575 Date Filed: 05/26/2022 Page: 10 of 52
`
`10
`
`Opinion of the Court
`
`20-13575
`
`response, Attix argued that the parties’ agreement to arbitrate his
`claims arising from his use of Speedpay’s service “violate[d] the
`Dodd-Frank Act,” which “prohibits the use of arbitration
`provisions or pre-dispute waivers of federal statutory causes of
`action in connection with residential mortgages.”
`The district court denied Carrington’s motion to compel
`arbitration. The district court made several findings that, on
`appeal, are undisputed: (1) Carrington was a party to the terms and
`conditions governing Attix’s use of Speedpay’s service to make his
`mortgage payment in May 2020; (2) in those terms and conditions,
`the parties entered into a valid agreement to arbitrate claims
`“arising from or relating to” Attix’s use of Speedpay’s service; and
`(3) Attix’s claims against Carrington arose from his use of
`Speedpay’s service and fell within the scope of the parties’
`arbitration agreement.
` Even so, the district court denied
`Carrington’s motion, finding that 15 U.S.C. § 1639c—a provision
`of the Dodd-Frank Act setting out “minimum standards for
`residential mortgage loans”—“prohibit[ed] arbitration” of Attix’s
`claims. Subsection (e)(3) of that statute provides:
`
`No provision of any residential mortgage loan or of
`any extension of credit under an open end consumer
`credit plan secured by the principal dwelling of the
`consumer, and no other agreement between the
`consumer and the creditor relating to the residential
`mortgage loan or extension of credit referred to in
`
`
`
`USCA11 Case: 20-13575 Date Filed: 05/26/2022 Page: 11 of 52
`
`20-13575
`
`Opinion of the Court
`
`11
`
`paragraph (1),[4] shall be applied or interpreted so as
`to bar a consumer from bringing an action in an
`appropriate district court of the United States, or any
`other court of competent jurisdiction, pursuant to
`section 1640 of this title or any other provision of law,
`for damages or other relief in connection with any
`alleged violation of this section, any other provision
`of this subchapter, or any other Federal law.
`15 U.S.C. § 1639c(e)(3). The district court found that § 1639c(e)(3)
`prohibited arbitration of Attix’s claims arising from his use of
`Speedpay’s service to make his mortgage payment to Carrington.
`In reaching that conclusion, the district court found that, under the
`statute: (1) Attix was a “consumer”; (2) Carrington was a
`“creditor”; and (3) the terms and conditions governing Attix’s use
`of Speedpay’s service were an “agreement” between Attix and
`Carrington “relating to” Attix’s residential mortgage
`loan.
`Accordingly, the district court found that the Speedpay terms and
`conditions were an “agreement between [a] consumer and [a]
`creditor relating to
`[a] residential mortgage
`loan” under
`
`
`4 “Paragraph (1)” is 15 U.S.C. § 1639c(e)(1), a related provision that states:
`No residential mortgage loan and no extension of credit under
`an open end consumer credit plan secured by the principal
`dwelling of the consumer may include terms which require
`arbitration or any other nonjudicial procedure as the method
`for resolving any controversy or settling any claims arising out
`of the transaction.
`15 U.S.C. § 1639c(e)(1). Section 1639c(e)(1) is not at issue in this case.
`
`
`
`USCA11 Case: 20-13575 Date Filed: 05/26/2022 Page: 12 of 52
`
`12
`
`Opinion of the Court
`
`20-13575
`
` And, the district court ruled that, because
`§ 1639c(e)(3).
`§ 1639c(e)(3) states that such agreements “shall [not] be applied or
`interpreted so as to bar a consumer from bringing an action in an
`appropriate district court of the United States,” the statute
`prohibited arbitration of Attix’s claims.
`Finally, the district court noted that the parties had agreed,
`in the “delegation” clause of the Speedpay terms and conditions,
`that an “arbitrator shall also decide what is subject to arbitration
`unless prohibited by law.” But the district court declined to
`consider whether questions about the arbitrability of Attix’s claims
`were committed to an arbitrator’s review under that provision,
`finding that “there [was] no bona fide dispute as to the scope of the
`[parties’] arbitration agreement.”
`Carrington timely appealed from the district court’s denial
`of its motion to compel arbitration.5
`
`
`5 After Carrington filed its notice of appeal, it filed a motion in the district court
`to stay proceedings in that court pending appeal. See Blinco v. Green Tree
`Servicing, LLC, 366 F.3d 1249, 1253 (11th Cir. 2004) (“When a litigant files a
`motion to stay litigation in the district court pending an appeal from the denial
`of a motion to compel arbitration, the district court should stay the litigation
`so long as the appeal is non-frivolous.”). In that motion, Carrington argued,
`among other things, that the district court’s decision to disregard the
`“delegation” clause in the Speedpay terms and conditions “conflict[ed] with
`controlling Supreme Court precedent requiring courts to rigorously enforce
`delegation clauses,” and that the district court had erred in deciding whether
`the Dodd-Frank Act prohibited arbitration of his claims, rather than
`compelling arbitration so that an arbitrator could decide that issue.
`
`
`
`USCA11 Case: 20-13575 Date Filed: 05/26/2022 Page: 13 of 52
`
`20-13575
`
`Opinion of the Court
`
`13
`
`II. Standard of Review
`We review the denial of a motion to compel arbitration de
`novo. Jenkins v. First Am. Cash Advance of Ga., 400 F.3d 868, 873
`(11th Cir. 2005).
`
`III. Discussion
`In this appeal, we determine whether an arbitrator must
`decide if the parties’ agreement to arbitrate claims arising from
`Attix’s use of Speedpay’s service is enforceable under the Dodd-
`
`
`The district court denied Carrington’s motion to stay proceedings pending
`appeal. As to Carrington’s argument that it had erred in deciding whether the
`Dodd-Frank Act prohibited arbitration of his claims, the district court said:
`Defendant argues that the appeal is non-frivolous because the
`[parties’] Arbitration Agreement [in the Speedpay terms and
`conditions] contained a delegation clause and under Supreme
`Court precedent, a court may not decide an arbitrability
`question that the parties have delegated to an arbitrator. But
`this argument ignores Dodd-Frank. The delegation clause [in
`the Speedpay terms and conditions] provides that “[t]he
`arbitrator shall also decide what is subject to arbitration unless
`prohibited by law.” The delegation clause therefore evinces a
`clear intent for the Court, not the arbitrator, to determine
`whether arbitration of any claims is “prohibited by law,”
`which is precisely what the Court did in this case.
`(quotation and citations omitted; emphasis in original).
`After the district court denied Carrington’s motion to stay proceedings
`pending appeal, Carrington moved in this Court for the same relief. We found
`that Carrington’s appeal is not frivolous and granted Carrington’s motion to
`stay proceedings in the district court in a summary order.
`
`
`
`USCA11 Case: 20-13575 Date Filed: 05/26/2022 Page: 14 of 52
`
`14
`
`Opinion of the Court
`
`20-13575
`
`Frank Act. Carrington argues that, in the Speedpay terms and
`conditions, the parties clearly and unmistakably agreed to delegate
`questions about the arbitrability of Attix’s claims to an arbitrator,
`including questions about whether the parties’ agreement to
`arbitrate those claims is enforceable. In response, Attix challenges
`the scope of the parties’ delegation agreement, arguing that the
`parties agreed to delegate some, but not all, questions of
`arbitrability to an arbitrator. Attix also argues that his statutory
`challenge based on the Dodd-Frank Act represents a “specific
`challenge” to the enforceability of the parties’ agreement to
`delegate threshold arbitrability issues.6
`We find that, in the Speedpay terms and conditions, Attix
`and Carrington clearly and unmistakably agreed to delegate all
`questions of arbitrability to an arbitrator, including the arbitrability
`dispute in this case—i.e., whether the parties’ agreement to
`arbitrate Attix’s claims is enforceable under the Dodd-Frank Act.
`Moreover, Attix’s Dodd-Frank Act challenge relates only to the
`enforceability of the parties’ agreement to arbitrate the merits of
`his claims, not the enforceability of the parties’ separate agreement
`to arbitrate the arbitrability of his claims, and is therefore an issue
`for the arbitrator to decide. Thus, we enforce the parties’
`
`
`6 The second issue in this appeal is whether the Dodd-Frank Act prohibits
`enforcement of the parties’ agreement to arbitrate Attix’s claims. Because we
`resolve the first issue in this appeal in Attix’s favor, we do not reach the second
`issue, which is for an arbitrator to decide.
`
`
`
`USCA11 Case: 20-13575 Date Filed: 05/26/2022 Page: 15 of 52
`
`20-13575
`
`Opinion of the Court
`
`15
`
`agreement as written and direct the district court to compel
`arbitration.
`We begin with settled principles of law. The Federal
`Arbitration Act (FAA), 9 U.S.C. § 1 et seq., provides that:
`A written provision in . . . a contract evidencing a
`transaction
`involving commerce
`to
`settle by
`arbitration a controversy thereafter arising out of
`such contract or transaction . . . 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. The FAA “reflect[s] both a liberal policy favoring
`arbitration, and the fundamental principle that arbitration is a
`matter of contract.” AT&T Mobility LLC v. Concepcion, 563 U.S.
`333, 339 (2011) (citation and quotations omitted). “In line with
`these principles, courts must place arbitration agreements on an
`equal footing with other contracts, and enforce them according to
`their terms.” Id. (citation omitted). Under the FAA, “any doubts
`concerning the scope of arbitrable issues should be resolved in
`favor of arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury
`Constr. Corp., 460 U.S. 1, 24–25 (1983).
`The FAA “also establishes procedures by which federal
`courts implement [its] substantive rule.” Rent-A-Center, W., Inc.
`v. Jackson, 561 U.S. 63, 68 (2010). A party to an arbitration
`agreement may move “for an order directing that such arbitration
`proceed in the manner provided for in such agreement” under § 4
`
`
`
`USCA11 Case: 20-13575 Date Filed: 05/26/2022 Page: 16 of 52
`
`16
`
`Opinion of the Court
`
`20-13575
`
`of the FAA, and for a stay of proceedings in federal court pending
`the outcome of arbitration under § 3.7 See 9 U.S.C. §§ 3–4. Before
`enforcing an arbitration agreement, the court should ensure that
`the agreement was formed and that it applies to the dispute at
`hand. See id. § 4 (the court must compel arbitration “upon being
`satisfied that the making of the agreement for arbitration or the
`failure to comply therewith is not in issue”); id. § 3 (the court must
`stay proceedings in federal court “upon being satisfied that the
`issue involved in such suit or proceeding is referable to arbitration
`under such an agreement”). The court should also determine
`whether, under § 2, there are any “‘grounds as exist at law or in
`equity for the revocation of any contract’” that “invalidat[e]” the
`arbitration agreement or “permit[] [it] . . . to be declared
`unenforceable.” Concepcion, 563 U.S. at 339 (quoting 9 U.S.C.
`§ 2). If the parties’ arbitration agreement applies to their dispute
`and no grounds render it invalid or unenforceable, the court “shall”
`compel arbitration and stay proceedings in federal court. 9 U.S.C.
`§§ 3–4.
`
`
`7 The FAA’s provisions “do not themselves support federal jurisdiction.”
`Badgerow v. Walters, 142 S. Ct. 1310, 1316 (2022); cf. id. at 1315–18 (describing
`how, when a defendant presents a standalone petition to compel arbitration
`in federal court under § 4 of the FAA, the district court may “look through” to
`the “underlying substantive dispute” to assess its jurisdiction). In this case,
`there is no dispute that the federal courts have subject-matter jurisdiction.
`Carrington moved to compel arbitration after Attix asserted an FDCPA claim
`raising a federal question. See 28 U.S.C. § 1331.
`
`
`
`USCA11 Case: 20-13575 Date Filed: 05/26/2022 Page: 17 of 52
`
`20-13575
`
`Opinion of the Court
`
`17
`
`The classic arbitration agreement is an agreement to
`arbitrate any claims arising from a contract between two parties.
`See, e.g., Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204, 1214–
`15 (11th Cir. 2011) (addressing an agreement to arbitrate “any and
`all disputes, claims, or controversies whatsoever . . . relating to or
`in any way arising out of or connected with” an employment
`contract). In other words, the classic arbitration agreement is an
`agreement to arbitrate the “merits” of the parties’ claims if a
`dispute later arises between them. See Henry Schein, Inc. v. Archer
`& White Sales, Inc., 139 S. Ct. 524, 527, 529 (2019). These
`agreements to arbitrate are typically nested within the parties’
`larger contract, which may involve employment, goods or
`services, insurance, or another type of transaction. See, e.g.,
`Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 442–43
`(2006) (construing an arbitration agreement contained within a
`contract for check cashing services).
`
`Sometimes, parties agree not only to arbitrate the merits of
`any claims that arise from their contract, but also to arbitrate any
`“threshold” or “gateway” questions about the “arbitrability” of
`those claims, such as questions about the “enforceability, scope,
`[or] applicability” of the parties’ agreement to arbitrate their
`claims. Jones v. Waffle House, Inc., 866 F.3d 1257, 1264 (11th Cir.
`2017). By default, a court would normally decide threshold
`disputes about whether a party’s claims are arbitrable. See U.S.
`Nutraceuticals, LLC v. Cyanotech Corp., 769 F.3d 1308, 1311 (11th
`Cir. 2014) (“[O]rdinarily, the question of arbitrability is undeniably
`
`
`
`USCA11 Case: 20-13575 Date Filed: 05/26/2022 Page: 18 of 52
`
`18
`
`Opinion of the Court
`
`20-13575
`
`an issue for judicial determination.” (quotation omitted and
`alteration adopted)). But parties are free to have an arbitrator
`decide their threshold disputes instead. See Henry Schein, 139 S.
`Ct. at 527 (“[P]arties [may] agree by contract that an arbitrator,
`rather than a court, will resolve threshold arbitrability questions.”).
`An agreement to arbitrate threshold arbitrability issues is
`often called a “delegation” agreement, because it delegates the
`resolution of disputes about the arbitrability of the parties’ claims
`to an arbitrator. See Rent-A-Center, 561 U.S. at 68. A delegation
`agreement “is simply an additional, antecedent agreement the
`party seeking arbitration asks the federal court to enforce, and the
`FAA operates on this additional arbitration agreement just as it
`does on any other.” Id. at 70; see also New Prime Inc. v. Oliveira,
`139 S. Ct. 532, 538 (2019) (“A delegation clause is merely a
`specialized type of arbitration agreement.”).
` As with any
`arbitration agreement, before enforcing a delegation agreement,
`the court should ensure that the agreement was formed, that it
`applies to the dispute at hand, and that no grounds render it invalid
`or unenforceable.8 See Rent-A-Center, 561 U.S. at 69 (citing 9
`U.S.C. §§ 2–4).
`
`
`8 Although it is the court’s obligation to determine, before enforcing a
`delegation agreement, that no grounds render the delegation agreement
`invalid or unenforceable, see 9 U.S.C. § 2, it is the parties’ obligation to tell the
`court what those grounds might be. In other words, it is up to the parties to
`specifically challenge the delegation agreement’s validity or enforceability.
`See Rent-A-Center, 561 U.S. at 70–72. More on that later.
`
`
`
`USCA11 Case: 20-13575 Date Filed: 05/26/2022 Page: 19 of 52
`
`20-13575
`
`Opinion of the Court
`
`19
`
`Further, when analyzing whether the parties to a contract
`have agreed to arbitrate threshold questions of arbitrability, we
`“reverse[]” the FAA’s standard “presumption” favoring arbitration.
`JPay, Inc. v. Kobel, 904 F.3d 923, 929 (11th Cir. 2018). “Courts
`should not assume that the parties agreed to arbitrate arbitrability
`unless there is clear and unmistakable evidence that they did so.”
`First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)
`(quotation omitted). Thus, unlike with agreements to arbitrate the
`merits of the parties’ claims arising from their contract, we resolve
`ambiguities in an agreement to arbitrate questions about the
`arbitrability of those claims in favor of the party opposing
`arbitration. See id. at 944–45. However, if the court finds that the
`parties have clearly and unmistakably agreed to delegate questions
`of arbitrability to an arbitrator, it “must respect the parties’ decision
`as embodied in the contract.” Henry Schein, 139 S. Ct. at 531. “Just
`as a court may not decide a merits question that the parties have
`delegated to an arbitrator, a court may not decide an arbitrability
`question that the parties have delegated to an arbitrator.” Id. at
`530.
`
`Until recently, certain courts routinely decided questions of
`arbitrability themselves, even when the parties had agreed to
`delegate those questions to an arbitrator, if the courts found that
`the arguments in favor of requiring arbitration of the parties’ claims
`were “wholly groundless.” See id. at 527–28. In Henry Schein, the
`Supreme Court struck down this “wholly groundless” exception to
`the FAA, noting that it “short-circuit[s] the process” to which the
`
`
`
`USCA11 Case: 20-13575 Date Filed: 05/26/2022 Page: 20 of 52
`
`20
`
`Opinion of the Court
`
`20-13575
`
`parties have agreed. Id. The Court made clear that the FAA leaves
`no room for such judicial maneuvers:
`We must interpret the [Federal Arbitration] Act as
`written, and the Act in turn requires that we interpret
`the contract as written. When the parties’ contract
`delegates the arbitrability question to an arbitrator, a
`court may not override the contract. In those
`circumstances, a court possesses no power to decide
`the arbitrability issue.
`Id. at 529.
`
`With these principles of law in mind, we proceed to our
`analysis of whether an arbitrator should decide if the parties’
`agreement to arbitrate claims arising from Attix’s use of Speedpay’s
`service is enforceable under the Dodd-Frank Act. We analyze this
`issue in two parts. First, we consider whether the parties clearly
`and unmistakably agreed to delegate questions of arbitrability to an
`arbitrator. We find that they did. Second, we consider whether
`Attix has specifically challenged the enforceability of the parties’
`delegation agreement. We find that he has not. Thus, we enforce
`the parties’ delegation agreement as written and compel
`arbitration.
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
