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"[T]HE ARBITRATOR SHALL HAVE THE POWER TO DETERMINE THE EXISTENCE OR VALIDITY OF A CONTRACT OF WHICH AN ARBITRATION CLAUSE FORMS A PART."?Ajamian v. CantorCO2e, L.P.203 Cal.App.4th 771 (Cal. Ct. App. 2012)?? Suggesting "express language" that "the?arbitrator shall?decide questions of the enforceability of the?arbitration?provision" would constitute clear and unmistakable evidenceMoreover, the reference to AAA rules does not give an employee, confronted with an agreement she is asked to sign in order to obtain or keep employment, much of a clue that she is giving up her usual right to have the court decide whether the?arbitration?provision is enforceable. Assuming that an employee reads the?arbitration?provision in the proposed agreement, notes that disputes will be resolved by?arbitration?according to AAA rules, and even has the wherewithal and diligence to track down those rules, examine them, and focus on the particular rule to which appellants now point, the rule merely states that the?arbitrator shall?have “the power” to?determine?issues of its own jurisdiction, including the existence, scope and?validity?of the?arbitration?agreement. This tells the reader almost nothing, since a court also has power to decide such issues, and nothing in the AAA rules states that the AAA?arbitrator, as opposed to the court,?shall determine?those threshold issues, or has exclusive authority to do so, particularly if litigation has already been commenced.Appellants nonetheless insist that the Employment Agreement clearly and unmistakably sets forth an intent to delegate such issues to the?arbitration?panel, pointing primarily to the breadth of the?arbitration?provision and its proviso that?arbitration?may be conducted according to the rules of the AAA (under which an?arbitrator?has the power to?determine the validity of an arbitration?agreement). Ajamian disagrees with appellants' arguments and points to other language in the Employment Agreement that suggests the?arbitrator?was not given exclusive authority to?determine?the enforceability of the?arbitration?provision. Ajamian—and the trial court—have it right. 1. Breadth of the?Arbitration?ProvisionEven California cases have reached a similar conclusion, albeit not with respect to a claim that an?arbitration?clause was unconscionable, and not as to an?arbitration?clause in an employment agreement. (See Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1123, 39 Cal.Rptr.3d 437 [although the scope of an?arbitration?clause generally is a question for the court, parties clearly and unmistakably agreed to have the?arbitrator determine?the scope of the clause, where the?contract?mandated?arbitration?in accordance with AAA construction?arbitration?rules that specified the?arbitrator's?authority to rule on the scope of the?arbitration?agreement]; Dream Theater, Inc. v. Dream Theater (2004) 124 Cal.App.4th 547, 550, 21 Cal.Rptr.3d 322 [parties'?contract?stated?arbitration?would be conducted in accordance with AAA commercial?arbitration?rules, which provided that the?arbitrator?would have the power to rule on his or her own jurisdiction, including objections with respect to the scope of the?arbitration?agreement].)They Thought that “since a court also has power to decide such issues, and nothing in the AAA rules states that the AAA?arbitrator, as opposed to the court,?shall determine?those threshold issues, or has exclusive authority to do so”, was squarely rebutted by the Supreme Court of the United States, note: “Under the Federal Arbitration Act, parties to a contract may agree that an arbitrator rather than a court will resolve disputes arising out of the contract.?When a dispute arises, the parties sometimes may disagree not only about the merits of the dispute but also about the threshold arbitrability?question?—that is, whether their arbitration agreement applies to the particular dispute. Who decides that threshold arbitrability?question?? Under the Act and this Court's cases, the?question?of who decides arbitrability is itself a?question?of contract. The Act allows parties to agree by contract that an arbitrator, rather than a court, will resolve threshold arbitrability?questions?as well as underlying merits disputes.?Rent–A–Center, West, Inc. v. Jackson,?561 U.S. 63, 68–70,?130 S.Ct. 2772,?177 L.Ed.2d 403?(2010) ;?First Options of Chicago, Inc. v. Kaplan,?514 U.S. 938, 943–944,?115 S.Ct. 1920,?131 L.Ed.2d 985?(1995).Even when a contract delegates the arbitrability?question?to an arbitrator, some federal courts nonetheless will short-circuit the process and decide the arbitrability?question?themselves if the argument that the arbitration agreement applies to the particular dispute is "wholly groundless." The?question?presented in this case is whether the "wholly groundless" exception is consistent with the Federal Arbitration Act. We conclude that it is not.”?? Zabokritsky v. JetSmarter, Inc.CIVIL ACTION NO. 19-273 (E.D. Pa. Jun. 20, 2019)?? Cited 4 timeson 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." AAA COMMERCIAL R. 7(a).?"When the parties' contract delegates the arbitrability question to an arbitrator," the arbitrator must determine whether the dispute falls within the scope of the agreement.?Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, -- U.S. -- (2019). Here, the parties' agreement and the incorporated AAA Rules commit the threshold question of arbitrability to the arbitrator,? Loyola v. Am. Credit Acceptance LLCNo. 2:19-cv-00002-SMJ (E.D. Wash. Apr. 15, 2019)have agreed to arbitrate or whether their agreement covers a particular controversy.'" Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 529 (2019) (quoting Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 68-69 (2010)).?"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. That is true even if the court thinks that the argument that the arbitration agreement applies to a particular dispute is wholly groundless." Id. "Just? Loewen v. McDonnell403 F. Supp. 3d 832 (N.D. Cal. 2019)?? Cited 1 timesv. Mastro , 652 F.3d 982, 987 (9th Cir. 2011). However, parties may delegate the adjudication of gateway issues to the arbitrator if they "clearly and unmistakably" agree to do so. Howsam , 537 U.S. at 83, 123 S.Ct. 588 (citation omitted).?"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." Henry Schein, Inc. v. Archer & White Sales, Inc. , ––– U.S. ––––, 139 S. Ct. 524, 529, 202 L.Ed.2d 480 (2019). Defendant argues that the incorporation? Goulart v. Edgewell Pers. Care Co.Case No. 4:19-CV-02559 SEP (E.D. Mo. Jun. 4, 2020)of 'arbitrability' such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy." Id. at 529 (quoting Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68-69 (2010)). "An agreement to arbitrate a gateway issue is simply an additional, antecedent agreement the party seeking arbitration asks the federal court to enforce . . ." Id.?"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? Heidbreder v. Epic Games, Inc.438 F. Supp. 3d 591 (E.D.N.C. 2020)Provision Plaintiff's second argument is that the privacy-related claims against defendant are outside the scope of the arbitration provision. Whether the claims fall within the scope of the provision is not a question for this Court.?"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." Henry Schein, Inc. v. Archer & White Sales, Inc., ––– U.S. ––––, 139 S. Ct. 524, 529, 202 L.Ed.2d 480 (2019). The EULA in this case specifically? Tox Design Grp., LLC v. Ra Pain Servs., P.A.DOCKET NO. A-4092-18T1 (N.J. Super. Dec. 26, 2019)"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." Henry Schein, Inc. v. Archer & White Sales, Inc., ___ U.S. ___, ___, 139 S. Ct. 524, 529 (2019). The AtMedical Defendants contend that because the? Predmore v. Nick's Mgmt.Civil Action No. 3:20-CV-00513-X (N.D. Tex. Feb. 4, 2021)That is to say that "to the extent [Fifth Circuit] precedent diverges from Texas law," the Court follows the Fifth Circuit's "interpretation of the 'clear-and-unmistakable' threshold." And the Fifth Circuit has explained that "stipulating that the [American Arbitration Association] Rules will govern the arbitration dispute constitutes . . . 'clear and unmistakable' evidence.'"?"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."? Goulart v. Edgewell Pers. Care Co.No. 4:19-CV-2568 RLW (E.D. Mo. Aug. 24, 2020)?? Cited 1 timesof 'arbitrability' such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy." Id. at 529 (quoting Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68-69 (2010)). "An agreement to arbitrate a gateway issue is simply an additional, antecedent agreement the party seeking arbitration asks the federal court to enforce . . ." Id.?"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? Fallang Family Ltd. v. Privcap Cos.No. 4D20-548 (Fla. Dist. Ct. App. Mar. 24, 2021)has consistently held that parties may delegate threshold arbitrability questions to the arbitrator, so long as the parties' agreement does so by 'clear and unmistakable' evidence." Id . at 530 (quoting First Options , 514 U.S. at 944 ). Applying the Federal Arbitration Act to the context of an arbitration agreement, the Court in Henry Schein said: "We must interpret the 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." Id . at 529? Interceptor Ignition Interlocks, Inc. v. At&T Mobility Servs., LLC18-cv-4289 (PKC) (S.D.N.Y. Mar. 7, 2019)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. That is true even if the court thinks that the argument that the arbitration agreement applies to a particular dispute is wholly groundless.? Gulf LNG Energy, LLC v. Eni USA Gas Mktg.C.A. No. 2019-0460-AGB (Del. Ch. Dec. 30, 2019)?? Cited 1 timesWe must interpret the [FAA] as written, and the [FAA] 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. That is true even if the court thinks that the argument that the arbitration agreement applies to a particular dispute is wholly groundless.? Kabba v. Rent-A-CenterCase No.: PWG-17-211 (D. Md. Jun. 21, 2019)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. That is true even if the court thinks that the argument that the arbitration agreement applies to a particular dispute is wholly groundless.? Henry Schein, Inc. v. Archer & White Sales, Inc.139 S. Ct. 524 (2019)?? Cited 482 timesWe conclude that the "wholly groundless" exception is inconsistent with the text of the Act and with our precedent. We must interpret the 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. That is true even if the court thinks that the argument that the arbitration agreement applies to a particular dispute is wholly groundless. That? Fla. Gas Transmission Co. v. Tex. Brine Co.285 So. 3d 1093 (La. Ct. App. 2019)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. That is true even if the court thinks that the argument that the arbitration agreement applies to a particular dispute is wholly groundless.? Lamarr Womack & Assocs. L.P. v. Lexington Ins. Co.CIVIL ACTION NO. 2:18-CV-348 (S.D. Tex. Feb. 1, 2019)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. That is true even if the court thinks that the argument that the arbitration agreement applies to a particular dispute is wholly groundless.? Marselian v. Wells Fargo & Co.Case No. 20-cv-03166-HSG (N.D. Cal. Jan. 20, 2021)?? Cited 3 timesWhen 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. That is true even if the court thinks that the argument that the arbitration agreement applies to a particular dispute is wholly groundless.? Barclay v. ICON Health & Fitness, Inc.File No. 19-cv-2970 (ECT/DTS) (D. Minn. Oct. 15, 2020)?? Cited 5 timesWe 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. That is true even if the court thinks that the argument that the arbitration agreement applies to a particular dispute is wholly groundless.? Overpeck v. Fedex Corp.Case No. 18-cv-07553-PJH (N.D. Cal. Aug. 28, 2020)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. That is true even if the court thinks that the argument that the arbitration agreement applies to a particular dispute is wholly groundless.? Commc'n Workers of Am. v. AT&T Inc.20-7043 (D.C. Cir. Aug. 3, 2021)When, as in this case, "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." Henry Schein, 139 S.Ct. at 529. Significantly, that rule holds "even if the court thinks that the argument that the arbitration agreement? Schwendeman v. Health Carousel, LLCCase No. 18-cv-07641-BLF (N.D. Cal. Nov. 20, 2019)?? Cited 1 timescan agree to arbitrate 'gateway' questions of 'arbitrability,' such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy." Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 68-69 (2010).?"When the parties' contract delegates the arbitrability question to an arbitrator, a court may not override the contract."?Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 529 (2019). "In those circumstances, a court possesses no power to decide the arbitrability issue." Id. "That is true even if the court thinks that the argument that the? Cooper v. Adobe Sys. Inc.Case No. 18-cv-06742-BLF (N.D. Cal. Oct. 11, 2019)?? Cited 6 timesgateway issues can be expressly delegated to the arbitrator where the parties clearly and unmistakably provide otherwise." Id. (citing AT & T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)).?"When the parties' contract delegates the arbitrability question to an arbitrator, a court may not override the contract."?Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 526, 202 L. Ed. 2d 480 (2019). Incorporation of arbitration rules constitutes clear and unmistakable evidence that contracting parties agreed to arbitrate arbitrability? Wilson v. Starbucks Corp.385 F. Supp. 3d 557 (E.D. Ky. 2019)?? Cited 1 times" Henry Schein, Inc. v. Archer & White Sales, Inc. , ––– U.S. ––––, 139 S.Ct. 524, 529, 202 L.Ed.2d 480 (2019) (quoting Rent-A-Center, West, Inc. v. Jackson , 561 U.S. 63, 68-69, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010) ).?Thus, when the parties' arbitration agreement delegates arbitrability question to an arbitrator, courts must respect the parties' contractual delegation.?Henry Schein , 139 S.Ct. at 531 ; see also AT & T Technologies, Inc. v. Communications Workers , 475 U.S. 643, 649–650, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). Initially, the delegation provision in the Starbucks employment? Frederick v. Law Office of Fox1:19-15887 (NLH)(KMW) (D.N.J. Jun. 30, 2020)the parties dispute whether the DAAA contains a valid delegation clause. A valid delegation clause gives the arbitrator the primary power to decide the arbitrability of a specific claim. See Rent-A-Ctr., 561 U.S. at 75.?Global asserts that when the parties' arbitration agreement delegates questions of arbitrability to an arbitrator, courts must respect the parties' contractual delegation.?See ECF. No. 6 at 12 (citing Henry Schein, Inc. v. Archer & White Sales Inc., 139 S.Ct. 524, 529 (2019)). However, Henry Schein also states that "courts 'should not assume the parties agreed to arbitrate? International Med. Group v. American Arbitration Assoc., (S.D.Ind. 2001)149 F. Supp. 2d 615 (S.D. Ind. 2001)?? Cited 21 timesof this matter. Please refer to our letter dated April 7, 2000 that indicates the Association will proceed forward in this matter in the absence of an agreement by the parties or a court order staying this matter. The Association cannot determine issues of arbitrarily [sic].?In accordance with R-8(b) of the Rules, the arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part.?The Association is proceeding with this matter in accordance with R-2 of our Rules, and my supervisor, John Germani, assisted in this decision? Bugs "R" Us, LLC v. McCants223 So. 3d 913 (Ala. 2016)?? Cited 4 timesfiled ...." Rule 7(a) of the AAA Commercial Rules provides: "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 the arbitrability of any claim or counterclaim."?Rule 7(b) provides, in pertinent part: "The arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part."?Therefore, the arbitration provision in this case shows an intent by the parties to submit issues of arbitrability to the arbitrator? Mobile Real Estate, LLC v. Newpoint Media Grp.460 F. Supp. 3d 457 (S.D.N.Y. 2020)?? Cited 4 timesof any claim or counterclaim." American Arbitration Association, Commercial Arbitration Rules and Mediation Procedures ("AAA Rules") R-7(a) (July 1, 2016), 20Rules.pdf.?The AAA Rules further provide that "[t]he arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part.?Such an arbitration clause shall be treated as an agreement independent of the other terms of the contract." Id. at R-7(b). Thus, "when the parties explicitly incorporate into an arbitration agreement the [AAA? Griffin v. Vill. of Hazel Crest2017 Ill. App. 170637 (Ill. App. Ct. 2017)"The arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part.?Such an arbitration clause shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitrator that the contract is null and void shall not for that reason alone render invalid the arbitration clause." AAA, Employment Rules, Rule 6(b) (eff. Nov. 1, 2009).? Caldwell v. Unifirst Corp.570 S.W.3d 590 (Mo. Ct. App. 2018)?? Cited 2 timesincluding any objections with respect to the existence, scope or validity of the arbitration agreement." American Arbitration Association, Employment Arbitration Rules and Mediation Procedures, Rule 6a.?The AAA rules further provide that the arbitrator "shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part...."?Id., Rule 6b. The trial court denied defendants' motion, with two key holdings. The court first found that Mr. Caldwell was an at-will employee, and as such his employment was not valid consideration to create a? Caldwell v. UniFirst Corp.583 S.W.3d 84 (Mo. Ct. App. 2019)?? Cited 3 timesResolution Rules of the AAA, referenced here, and generally referred to by the parties as the "delegation provision," state that an 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." American Arbitration Association, Employment Arbitration Rules and Mediation Procedures , Rule 6a.?The AAA rules further provide that the arbitrator "shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part...."?Id., Rule 6b? Bruni v. Didion160 Cal.App.4th 1272 (Cal. Ct. App. 2008)?? Cited 143 timesthroughout the United States. Under CAS rules, "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.?[?] . . . The arbitrator shall have the power to determine the existence or validity of a contract of which the arbitration clause forms a part.?Such an arbitration clause shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitrator that the contract is null and void shall not, for that reason alone, render the? Meredith v. Sara Lee Fresh, Inc.Case No: C 13-2649 SBA (N.D. Cal. Mar. 31, 2014)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.?. . . The arbitrator shall have the power to determine the existence or validity of a contract which an arbitration clause forms a part." Rule 11 of the JAMS Rules provides that "jurisdictional and arbitrability disputes, including disputes over the formation, existence, validity, interpretation or scope of the agreement under which Arbitration is sought, and who? Bernal v. Sw. & Pac. Specialty Fin., Inc.Case No: C 12-05797 SBA (N.D. Cal. May. 6, 2014)?? Cited 14 timesarbitrator 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.?. . . The arbitrator shall have the power to determine the existence or validity of a contract which an arbitration clause forms a part." AAA Commercial Arbitration Rules, R-7(a). While the Consumer Rules of the AAA do not have a rule comparable to Commercial Rule R-7(a), Consumer Rule C-1(a) provides that "[t]he Commercial Dispute Resolution Procedures and these? Bergelectric Corp. v. MCB Joint Ventures, LLCD070658 (Cal. Ct. App. May. 11, 2017)Rules stated as follows: "R-9. Jurisdiction (a) 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.?[?] (b) The arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part.?Such an arbitration clause shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitrator that the contract is null and void shall not for that reason alone render invalid the? Burch-Lucich v. LucichCase No. 1:13-cv-00218-BLW (D. Idaho Oct. 31, 2013)?? Cited 7 timesof the American Arbitration Association . . . ." Partnership Agmt. § 15.1, at p. 18. As already noted, however, the partnership agreement further states that if the AAA rules conflict with Idaho law, then Idaho law will govern. Id.?The AAA rules empower the arbitrator "to determine the existence or validity of a contract of which an arbitration clause forms a part."?AAA Rule 7 (emphasis added). But that rule conflicts with Idaho law. It is well settled in Idaho that a court decides arbitrability - not an arbitrator. See Mason, 177 P.3d at 948; Idaho Code § 7-902; accord Kramer v. Toyota Motor? Williams v. Aetna Finance Co.602 N.E.2d 246 (Ohio 1992)?? Cited 9 timesThe court of appeals below erred in resting its judgment on an incorrect statement of the law.?Contrary to the court's opinion, when there is an enforceable arbitration provision, questions regarding the validity of the contract are to be decided by an arbitrator.?Prima Paint, 388 U.S. at 404, 87 S.Ct. at 1806, 18 L.Ed.2d at 1277. In response to ITT's application to compel arbitration, however, Williams explicitly challenged the validity of the arbitration clause. Williams? Preston v. Ferrer552 U.S. 346 (2008)?? Cited 477 timesPreston and Ferrer's contract, as noted, provides for arbitration in accordance with the AAA rules. App. 18.?One of those rules states that “[t]he arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part.”?AAA, Commercial Arbitration Rules ? R–7(b) (2007), online at http:// adr. org/ sp. asp? id= 22440 (as visited Feb. 15, 2008, and in Clerk of Court's case file). The incorporation of the AAA rules, and in? LRN Holding, Inc. v. Windlake Capital Advisors, LLC409 Ill. App. 3d 1025 (Ill. App. Ct. 2011)?? Cited 9 timesPreston and Ferrer's contract, as noted, provides for arbitration in accordance with the AAA rules. [Citation.]?One of those rules states that ‘ [t]he arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part.’?[Citation.] The incorporation of the AAA rules * * * weighs against inferring from the choice-of-law clause an understanding shared by Ferrer and Preston that their disputes would be heard, in the first instance,? Rodriguez v. Castforce, Inc.190 F. Supp. 3d 1148 (N.D. Ga. 2016)determination that a contract permitting either party to "terminate at any time, without cause" was illusory under Florida law). Rodriguez also attempts to save his federal court case by arguing that the agreement was terminated—either by him or by Castforce—and therefore cannot be enforced. However, an arbitrator rather than the Court should address whether the arbitration clause is in fact still enforceable after the Agreement's termination.?Again, AAA Rule 7 gives the arbitrator "the power to determine the existence or validity of a contract of which an arbitration clause forms a part."? PNC Bank, N.A. v. Presbyterian Ret. Corp.CIVIL ACTION 14-0461-WS-B (S.D. Ala. Apr. 28, 2015)?? Cited 1 timesThat, however, is a question for the arbitrator to decide, per the parties' agreement. As noted, Section 22(a) of the Intercreditor Agreement adopted the AAA's Commercial Arbitration Rules.?In Rule 7, those Commercial Arbitration Rules specify that "[t]he arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part."?Pursuant to the rules expressly adopted by the parties, then, questions going to the validity of the Intercreditor Agreement (which is precisely what Infirmary Health is challenging via its contention? Cequent Performance Prods., Inc. v. Let's Go Aero, Inc.14 C 8457 (N.D. Ill. Jul. 28, 2016)?? Cited 3 times(2008). Preston also involved an arbitration clause that provided for "arbitration in accordance with the AAA rules," which the Court took to be an "incorporation" of those rules into the arbitration clause. Id. at 362.?"One of those rules states that 'the arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part.'"?Id. (quoting AAA, Commercial Arbitration Rules ? R-7(b)). The Preston Court held that the arbitration clause's incorporation of this AAA Rule (by requiring arbitration "in accordance with the AAA rules") in turn? CLYDE BERGEMANN v. SULLIVAN, HIGGINS BRION, PPECivil Case No. 08-162-KI (D. Or. May. 14, 2008)rules provide 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." Rubin Decl. Ex. 1 at 7, ? 6.?Moreover, "[t]he arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part.?Such an arbitration clause shall be treated as an agreement independent of the other terms of the contract." Id. Qualcomm analyzed the identical AAA rule and concluded that it clearly and unmistakably showed the parties'? PNC Bank, N.A. v. Presbyterian Ret. Corp.CIVIL ACTION 14-0461-WS-B (S.D. Ala. Apr. 28, 2015)?? Cited 1 timesPNC Bank does not identify which of those Commercial Arbitration Rules it deems relevant; however, Rule 7 specifies that "[t]he 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."?That same rule provides that "[t]he arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part."? United States ex rel. Beauchamp v. Academi Training Ctr., Inc.Case No. 1:11cv371 (E.D. Va. Mar. 29, 2013)?? Cited 10 timesAAA Commercial Rules, 18.?Similarly, Rule 7(b) states that the "arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part."?Id.? Spirit Sanzone Distrs. Co. v. Coors Brewing Co.08 civ. 0251 (LLS) (S.D.N.Y. Feb. 29, 2008)Preston and Ferrer's contract, as noted, provides for arbitration in accordance with the AAA rules.?One of those rules states that "[t]he arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part."?The incorporation of the AAA rules, and in particular Rule 7(b), weighs against inferring from the choice-of-law clause an understanding shared by Ferrer and Preston that their disputes would be heard, in the first? Carrone v. UnitedHealth Grp.20-2742 (3d Cir. Aug. 11, 2021)American Arbitration Association. Rule 6(a) says that "[t]he 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." See Am. Arb. Ass'n, Employment Arbitration Rules and Mediation Procedures 17 (2016), 6(b) further provides that "[t]he arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part."?Id. The parties do not dispute that the agreement validly incorporates Rule 6? Awuah v. Coverall North America554 F.3d 7 (1st Cir. 2009)?? Cited 79 timesThese provisions clearly and unmistakably allow the arbitrator to determine her own jurisdiction when, as here, there exists a prima facie agreement to arbitrate whose continued existence and validity is being questioned.?The arbitrator should decide whether a valid arbitration agreement exists.?. . .? De Pombo v. IRINOX N. Am., Inc.Case No. 20-cv-20533-BLOOM/Louis (S.D. Fla. May. 18, 2020)respect to the existence, scope or validity of the arbitration agreement . . . ." Am. Arbitration Ass'n, Commercial Arbitration Rules (last amended Oct. 1, 2013), AAA Rules also grant the arbitrator authority to determine "the existence or validity of a contract of which an arbitration clause forms a part."?Id. The incorporation of the AAA Rules and the Agreement's application of those Rules to disputes under the Agreement "clearly and unmistakably" indicate that the parties "contracted to submit questions of arbitrability to? Symetra Life Insurance Co. v. Rapid Settlements LTDCIVIL ACTION NO. H-05-3167 (S.D. Tex. Jan. 10, 2007)?? Cited 8 timesitself and those that challenge the validity of the contract as a whole on a ground that affects the entire agreement or because one of the contract's provisions makes the entire contract invalid. Buckeye, 126 S. Ct. at 1208. A court is to decide challenges to the arbitration clause itself.?An arbitrator is to determine challenges to the validity of the contract.?Id. at 1209; Brown v. Pac. Life Ins. Co., 462 F.3d 384, 396 — 97 (5th Cir. 2006). The Court recognized a third category of issues as well, that of the existence — as opposed to the validity — of the contract. The Court stated:Henry Schein, Inc. v. Archer & White Sales, Inc.139 S. Ct. 524 (2019)?? Cited 482 times?? 33 Legal AnalysesHolding that under the Federal Arbitration Act "[w]hen the parties'?contract delegates the arbitrability question to an arbitrator, the courts must respect the parties' decision as embodied in the?contract"(1995). Even when a?contract delegates the arbitrability question to an arbitrator, some federal courts nonetheless will short-circuit the process and decide the?arbitrability question?themselves if theparties'?contract delegates the?threshold?arbitrability question to an arbitrator, the Fifth Circuit and some other Courts of Appeals have determined that the court rather than an?arbitrator?should decideCommc'n Workers of Am. v. AT&T Inc.20-7043 (D.C. Cir. Aug. 3, 2021)unmistakably?delegate?to an?arbitrator?the power to decide gateway?questions?of?arbitrability?. . . ."). B. When, as in this case, "the parties'?contract delegates the arbitrability question to an arbitrator, aexplained that "a court possesses no power to decide the?arbitrability?issue" if "the parties'?contract delegates the arbitrability question to an arbitrator." Id. In other words, the court must first determineVillanueva v. RabobankD075455 (Cal. Ct. App. Aug. 18, 2020)confuses the?question?of who decides?arbitrability?with the separate?question?of who prevails on?arbitrability. When the parties'?contract delegates the arbitrability question to an arbitrator, the courtsembodied in the?contract." (Henry Schein, supra, ___ U.S. at p. ___ .) Thus, "[w]hen the parties'?contract delegates the arbitrability question to an arbitrator, a court may not override the?contract. In thosePath Wireless, LLC v. Nokia of Am. Corp.Case No. 3:20-cv-392-J-34JRK (M.D. Fla. Sep. 1, 2020)68-69)). And, "[w]hen the parties'?contract delegates the arbitrability question to an arbitrator, the courts must respect the parties' decision as embodied in the?contract." Henry Schein, 139 S.Ct. at 528determined that "[w]hen the parties'?contract delegates the arbitrability question to an arbitrator, the courts must respect the parties' decision as embodied in the?contract." Id. at 531. The Court clarifiedMcClain v. Rochdale Village18-CV-03781 (DLI)(CLP) (E.D.N.Y. Jul. 16, 2021)527 (2019). “When the parties'?contract delegates the arbitrability question to an arbitrator, the courts must respect the parties' decision as embodied in the?contract.” Id. at 528. “[V]irtually everywith our precedent.” Id. at 529. “When the parties'?contract delegates the arbitrability question to an arbitrator, a court may not override the?contract.” Id. In other words, under these circumstances, evenVerano Homeowners Ass'n v. Beazer Homes Corp.Case No. 3:18-cv-1119-J-34JRK (M.D. Fla. Mar. 25, 2020)parties. Indeed, "[w]hen the parties'?contract delegates the arbitrability question to an arbitrator, the courts must respect the parties' decision as embodied in the?contract." Henry Schein, 139 S. Ct. at 528528. And "[w]hen the parties'?contract delegates the arbitrability question to an arbitrator, a court may not override the?contract." Id. at 529. Moreover, to the extent that "all claims in the presentScaba v. JetSmarter, Inc.Civil Action No. 18-17262 (MAS) (DEA) (D.N.J. Aug. 21, 2019)?? Cited 3 timesby?contract?that an?arbitrator, rather than a court, will resolve threshold?arbitrability questions?. . . ." and "[w]hen the parties'?contract delegates the arbitrability question to an arbitrator, theomitted). "[W]hen the parties'?contract delegates the arbitrability question to an arbitrator, the courts must respect the parties' decision as embodied in the?contract." Henry Schein, Inc. v. Archer &Mendez v. Sony Comput. Entm't Am.Case No. 1:20-cv-00588-DCN (D. Idaho Jun. 16, 2021), 139 S. Ct. 524, 529 (2019) ("When the parties'?contract delegates the arbitrability question to an arbitrator, a court may not override the?contract."); Mohamed v. Uber Techs., Inc., 848 F.3d 1201, 1208Inc., 139 S. Ct. at 529 (2019) ("When the parties'?contract delegates the arbitrability question to an arbitrator, a court may not override the?contract"). Mendez's contentions regarding Sony's email noticeBarclay v. ICON Health & Fitness, Inc.File No. 19-cv-2970 (ECT/DTS) (D. Minn. Oct. 15, 2020)?? Cited 5 timesConcluding that the issue of whether plaintiffs may "assert any claims concerning treadmill models that they did not purchase" is not an issue of standing but instead "is better resolved at class certification"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 courtlack of assent to?contract—is incompatible with Henry Schein. There, the Supreme Court rejected a "wholly groundless" exception to an?arbitrator's?authority to decide?arbitrability questions. 139 S. Ct. at? Silverman v. Move Inc.Case No. 18-cv-05919-BLF (N.D. Cal. Jun. 24, 2019)?? Cited 1 timesparties'?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.").is "a?question?of?contract?law." Id. "When the parties'?contract delegates the arbitrability question to an arbitrator, the courts must respect the parties' decision as embodied in the?contract." Id. at? Porcelli v. JetSmarter, Inc.19 Civ. 2537 (PAE) (S.D.N.Y. Jun. 5, 2019)?? Cited 11 timesGranting JetSmarter's motion to compel arbitration based on declaration of Mikhail Kirsanov almost identical to the one submitted in this casethrough arbitration. "When the parties'?contract delegates the arbitrability question to an arbitrator?. . . a court possesses no power to decide the?arbitrability?issue." Henry Schein, Inc. v. Archer &Second, the?question?of whether the 2018 Membership Agreement, or any prior membership agreement, covers the claims raised in Porcelli's underlying Complaint is a?question?for the?arbitrator. As the Supreme? Moritz v. Universal City Studios LLC54 Cal.App.5th 238 (Cal. Ct. App. 2020)?? Cited 3 times?? 1 Legal Analysesobserved that the FF8-10?contract?was "hardly a model of clarity," and further noted that even if the arbitration agreement did clearly?delegate the arbitrability?issue to the?arbitrator, that agreement wouldinvoking the delegation clause. The argument is without merit. "[P]arties may?delegate?threshold?arbitrability questions?to the?arbitrator, so long as the parties’ agreement does so by ‘clear and unmistakable’? Anderson v. SkolnickCivil Action No. 19-18138 (MAS) (DEA) (D.N.J. Apr. 29, 2020)?? Cited 1 timesagree by?contract?that an?arbitrator, rather than a court, will resolve threshold?arbitrability questions," and "[w]hen the parties'?contract delegates the arbitrability question to an arbitrator, the courtsembodied in the?contract." Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 528 (2019). Defendants do not argue that the Arbitration Provision?delegates questions?of?arbitrability?to the arbitrator? Symonds v. Credico (U.S.) LLCNo. 1:20-cv-10192-ADB (D. Mass. Dec. 3, 2020)the parties'?contract delegates the arbitrability question to an arbitrator, the courts must respect the parties' decision as embodied in the?contract." Id. at 528. Assuming "an enforceable arbitrationProcedures, Rule 6(a) (2009). When an arbitration agreement "delegates the arbitrability question to an arbitrator, a court may not override the?contract," Henry Schein, Inc., 139 S. Ct. at 529, however, "[c]ourts? Estate of Anches v. Grashin (In re Estate of Anches)No. 78732-2-I (Wash. Ct. App. Jul. 29, 2019)?? Cited 2 timesArbitration Act "[w]hen the parties'?contract delegates the arbitrability question to an arbitrator, the courts must respect the parties' decision as embodied in the?contract"). The superior court erred by denying04A.060(2). Notwithstanding this statutory language, parties may, by?contract, delegate?the?question?of?arbitrability?to the?arbitrator. RCW 7.04A.040(1); see also Raven Offshore, 199 Wn. App. at 538. Our? Been v. Edgewell Pers. Care Co.Case No. 4:19CV2601 HEA (E.D. Mo. May. 27, 2020)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." Idretailer; the?arbitrator?must do so. In Henry Schein, Inc. v. Archer & White Sales, Inc., the Supreme Court recently addressed the issue of delegating the?arbitrability question to an arbitrator. 139 S. Ct? Hichez v. United Jewish Council of E. Side Home Attendant Serv. Corp.2019 N.Y. Slip Op. 31884 (N.Y. Sup. Ct. 2019)stated that "[w]hen the parties'?contract delegates the arbitrability question to an arbitrator, the courts must respect the parties' decision as embodied in [their]?contract." Schein, 139 S Ct at 528. Thedecision that it "express[ed] no view about whether the?contract?at issue in [that] case in fact delegated the?arbitrability question to an arbitrator." Schein, 139 S Ct at 531. The decision of the Appellate? Been v. Edgewell Pers. Care Co.Case No. 4:19-cv-02602 SRC (E.D. Mo. Mar. 31, 2020)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." Idretailer; the?arbitrator?must do so. In Henry Schein, Inc. v. Archer & White Sales, Inc., the Supreme Court recently addressed the issue of delegating the?arbitrability question to an arbitrator. 139 S. Ct? Ownley v. Brunel Energy, Inc.CIVIL ACTION NO. 4:20-CV-03115 (S.D. Tex. Dec. 14, 2020)Ct. 524, 530 (2019) ("When the parties'?contract delegates the arbitrability question to an arbitrator?. . . a court possesses no power to decide the?arbitrability?issue."). Townley's argument that the arbitrationtherefore illusory. Townley argues that the same logic invalidates any delegation of threshold?questions to an arbitrator. IV. ANALYSIS AND DISCUSSION The Federal Arbitration Act permits an aggrieved party to“A PARTY TO AN ARBITRATION AGREEMENT CANNOT CHALLENGE CONTRACT AS A WHOLE WHEN THE CONTRACT CONTAINS AN ARBITRATION AGREEMENT”? Advanced Air Mgmt., Inc. v. Gulfstream Aerospace Corp.B265723 (Cal. Ct. App. Sep. 6, 2017)Court in Rent-A-Center explained, "'[a]s a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract.' [Citations.]" (Rent-A-Center, supra, 561 U.S. at pp. 70-71.)?A challenge to another provision of the contract or to the contract as a whole therefore cannot prevent a court from enforcing an arbitration agreement.?(Id. at p. 70; Buckeye Check Cashing, Inc. v. Cardegna (2006) 546 U.S. 440, 445-446 [126 S.Ct. 1204, 163 L.Ed.2d 1038].) Similarly, a delegation provision in an arbitration agreement is severable from the remainder of the? Melaas v. Diamond Resorts U.S. Collection Dev., LLC2021 N.D. 1 (N.D. 2021)as a whole, but only a challenge to an agreement to arbitrate is relevant to a court's determination whether the arbitration agreement is enforceable under the FAA. Real Builders, at ? 17.?An arbitration agreement is severable from the remainder of the contract, and therefore a party's challenge to the contract as a whole does not prevent a court from enforcing a specific agreement to arbitrate.?Id. The basis of the challenge must be directed specifically at the agreement to arbitrate for the court to decide the issue, even when the alleged fraud that induced the whole contract equally? Worthington v. JetSmarter, Inc.18 Civ. 12113 (KPF) (S.D.N.Y. Oct. 7, 2019)?? Cited 9 timesHowever, "as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract." Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445 (2006).?A party's challenge to a contract as a whole, or to a provision of the contract other than the arbitration provision, does not prevent a court from enforcing a specific agreement to arbitrate.?Rent-A-Center, 561 U.S. at 70. It is only when the party resisting arbitration challenges the validity of the arbitration clause itself that the Court must resolve such challenge before compelling? Trustees of UA Local 159 Health and Welfare Trust Fund v. Ruiz Brothers Preferred Plumbing, Inc.No. C 09-2397 PJH (N.D. Cal. Jul. 22, 2010)?? Cited 2 timesof an arbitration clause itself" are not subject to arbitration, arbitration is required for claims of fraud in the inducement of a contract as a whole. Prima Paint Corp. v. Flood Conklin Mfg. Co., 388 U.S. 395, 403-04 (1967).?Thus, even a claim that a contract as a whole is unenforceable is still subject to arbitration if the contract contains an arbitration clause.?See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 446 (2006); see also, Granite Rock Co. v. Int'l. Bhd. of Teamsters, 546 F.3d 1169, 1178 (9th Cir. 2008) (compelling arbitration for a dispute concerning whether a CBA? Jaylene v. Steuer ex Rel. Paradise22 So. 3d 711 (Fla. Dist. Ct. App. 2009)?? Cited 11 timesof the contract that they have agreed to accept."). Further, the Rollins approach avoids differing results in cases based only on where the drafter placed limitations on damages.?The U.S. Supreme Court has explained that an arbitration agreement is severable from the contract as a whole; when deciding whether there is a valid agreement to arbitrate, a court reviews only the terms of the arbitration provision itself.?Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006) (rejecting distinction between void and voidable contracts and holding that while? Moss v. Brock Servs., LLC2:19-cv-00084-JAW (D. Me. Aug. 13, 2019)?? Cited 4 timesCir. 2017) (citation omitted). A challenge to the entire contract or to another provision within the contract "does not prevent a court from enforcing a specific agreement to arbitrate." Rent-A-Center, 561 U.S. at 70.?An arbitration provision is severable from the remainder of the challenged contract even where "the underlying contract is itself is an arbitration agreement."?Id. at 72. That is because, "[a]pplication of the severability rule does not depend on the substance of the remainder of the contract. Section 2 operates on the specific 'written provision' to 'settle by arbitration a? Onken's Am. Recyclers, Inc. v. Cal. Ins. Co.2018 Ill. App. 4th 180240 (Ill. App. Ct. 2018)challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate." Rent-A-Center, 561 U.S. at 70-71. ? 35 The provision at issue in Rent-A-Center was a delegation "provision that gave the arbitrator 'exclusive authority to resolve any dispute relating to the ... enforceability ... of? Caldwell v. UniFirst Corp.583 S.W.3d 84 (Mo. Ct. App. 2019)?? Cited 3 timesspecifically. Id. Absent such a direct, meritorious challenge to the delegation provision, the provision is valid and enforceable, and any challenge to the validity of the agreement as a whole is for the arbitrator. Id.?A challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate.?Dotson , 472 S.W.3d at 605 ; Latenser, 549 S.W.3d at 464. Mr. Caldwell contended that the delegation provision lacked consideration because his at-will employment is not valid consideration, and because the arbitration? Tiri v. Lucky Chances, Inc.226 Cal.App.4th 231 (Cal. Ct. App. 2014)?? Cited 69 timesCourt extended a rule established in Prima Paint Corp. v. Flood & Conklin Mfg. Co. (1967) 388 U.S. 395, 403–404, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (Prima Paint ).?Under Prima Paint, a party's challenge to an employment contract that contains a severable arbitration clause does not invalidate the arbitration agreement, and therefore the arbitrator, and not a court, must consider any challenge to the employment contract as a whole.?(Rent–A–Center, at p. 71, 130 S.Ct. 2772.) Rent–A–Center extended this rule to situations, like the one here, where the contract at issue is itself an arbitration? MZM Constr. Co. v. N.J. Bldg. Laborers Statewide Benefit Funds974 F.3d 386 (3d Cir. 2020)?? Cited 22 times3 and 4, the Court held that an arbitration clause is "severable" and independently enforceable from the rest of the contract in which it is contained. Id . ; see Prima Paint , 388 U.S. at 400, 403-04, 87 S.Ct. 1801.?Under this severability rule, a party cannot avoid arbitration by attacking the contract containing the arbitration clause as a whole (the "container contract").?Rather, the party opposing arbitration must challenge "the arbitration clause itself." Prima Paint , 388 U.S. at 403, 87 S.Ct. 1801. For instance, a claim of fraud in the inducement of the arbitration clause is for the? Cole v. Pearson Education, Inc.10 Civ. 7523 (JFK) (RLE) (S.D.N.Y. Sep. 28, 2011)?? Cited 9 times"two types of validity challenges under [the FAA]," and in doing so held that challenges to "the contract as a whole," are distinguishable from "challenges of the agreement to arbitrate." Rent-A-Center, West, Inc. v. Jackson, 130 S. Ct. 2772, 2278 (2010).?An arbitration clause is not rendered invalid by a challenge to the contract as a whole.?Id. Without addressing the merits of Plaintiff's claim that Defendant's alleged "late permissioning" conduct constituted fraudulent inducement, such allegations clearly go to the validity of the contract as a whole and are not specific to the arbitration? Mohamed v. Uber Techs., Inc.109 F. Supp. 3d 1185 (N.D. Cal. 2015)?? Cited 44 timesThe U.S. Supreme Court has also held that “[a]s a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract.” Rent–A–Center, 561 U.S. at 70–71, 130 S.Ct. 2772 (internal quotation marks and citation omitted). Thus, at most a court can invalidate the entirety of an arbitration provision if that specific provision is permeated with unconscionability.?A Court may not, however, invalidate the entire contract based on unconscionable terms contained solely in an arbitration clause.?Id.? Women's Regional Healthcare, P.A. v. FemPartners of North Texas, Inc.175 S.W.3d 365 (Tex. App. 2005)?? Cited 26 timesto arbitrate, the issue was not adversely determined in a proceeding under Subchapter B, and the party did not participate in the arbitration hearing without raising the objection." TEX. CIV. PRAC. REM. CODE ANN. § 171.088(a) (emphasis added).?An objection to the validity of a contract containing an agreement to arbitrate as a whole does not satisfy the statute.?Rather, if the parties' dispute arises from a contract containing an arbitration clause, a challenge to the contract as a whole — as opposed to a challenge specific to the arbitration clause itself — must be resolved by the arbitrators? Taylor v. Benfield168 Ohio App. 3d 517 (Ohio Ct. App. 2006)?? Cited 9 timesincreases costs, extends the time consumed in ultimately resolving a dispute, and eviscerates any advantage of unburdening crowded court dockets." Schaefer v. Allstate Ins. Co. (1992), 63 Ohio St.3d 708, 716, 590 N.E.2d 1242.?Accordingly, when an arbitration clause is not a provision providing for true arbitration, the entire arbitration clause is unenforceable.?Id. {? 48} As referred to in paragraph 16, the agreement provides for judicial review in the event that the mediation and/or arbitration clauses are declared unenforceable. Accordingly, the mediation/arbitration clauses at issue? Held v. NortonB268595 (Cal. Ct. App. Aug. 9, 2017)v. David (2007) 147 Cal.App.4th 1055, 1061-1062 . . . .)" (Rice v. Downs (2016) 248 Cal.App.4th 175, 184-185.) Under California law, an arbitration clause is severable from the larger contract in which it is embedded.?Thus, in determining the validity and applicability of an arbitration clause, a court ordinarily cannot consider any claim that the contract as a whole is invalid.?(Bruni v. Didion (2008) 160 Cal.App.4th 1272, 1283-1285.) "As a result, an arbitration clause may be enforceable regardless of whether the contract surrounding it is enforceable." (Id. at p. 1283.) As for determining? Sui v. FedEx Ground Package Sys.Civil Action No. 19-3318 (D. Md. Jul. 6, 2020)Sui also argues the ISP agreement as a whole is unconscionable, but a challenge to the contract as a whole is not relevant in determining whether the arbitration agreement is enforceable.?Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 70 (2010) ("[A] party's challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate.")? Murphy v. Check'N Go of California, Inc.156 Cal.App.4th 138 (Cal. Ct. App. 2007)?? Cited 77 timesthat an arbitrator must determine the unconscionability issues because those arguments are directed against the agreement as a whole, not just the arbitration provisions.?"Under the [Federal Arbitration Act], a court may not consider a claim that an arbitration provision is unenforceable if it is a subterfuge for a challenge that the entire agreement (in which the arbitration clause is only a part) is unconscionable.?That contention must be presented to the arbitrator." ( Higgins, supra, 140 Cal.App.4th at p. 1249.) Even if this argument were not waived by the failure to raise it below,? Murphy v. Check'N Go of California, Inc.156 Cal.App.4th 138 (Cal. Ct. App. 2007)?? Cited 77 timesthat an arbitrator must determine the unconscionability issues because those arguments are directed against the agreement as a whole, not just the arbitration provisions.?"Under the [Federal Arbitration Act], a court may not consider a claim that an arbitration provision is unenforceable if it is a subterfuge for a challenge that the entire agreement (in which the arbitration clause is only a part) is unconscionable.?That contention must be presented to the arbitrator." ( Higgins, supra, 140 Cal.App.4th at p. 1249.) Even if this argument were not waived by the failure to raise it below,? Higgins v. Superior Court140 Cal.App.4th 1238 (Cal. Ct. App. 2006)?? Cited 104 timessubstantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa." ( Ibid.)?Under the FAA, a court may not consider a claim that an arbitration provision is unenforceable if it is a subterfuge for a challenge that the entire agreement (in which the arbitration clause is only a part) is unconscionable.?That contention must be presented to the arbitrator. ( Buckeye, supra, 546 U.S. at pp. 446-449 [ 163 L.Ed.2d at pp. 1044-1046, 126 S.Ct. at pp. 1209-1210] ["regardless of whether the? Winter v. Window Fashions Professionals, Inc.166 Cal.App.4th 943 (Cal. Ct. App. 2008)?? Cited 14 timesto compel arbitration pursuant to the FAA. In opposing the petition, the plaintiffs claimed, among other things, that the arbitration provision was unconscionable and therefore unenforceable.?The Higgins court noted that, under the FAA, a court cannot consider a claim that an arbitration provision is unenforceable if that claim is a subterfuge for a challenge to the entire agreement as being unconscionable.?The court then explained its two-fold task. First, the court must determine whether the plaintiffs are challenging the enforceability of the contract in toto, or whether they are contesting? Winter v. Window Fashions Professionals, Inc.F053691 (Cal. Ct. App. Sep. 10, 2008)to compel arbitration pursuant to the FAA. In opposing the petition, the plaintiffs claimed, among other things, that the arbitration provision was unconscionable and therefore unenforceable.?The Higgins court noted that, under the FAA, a court cannot consider a claim that an arbitration provision is unenforceable if that claim is a subterfuge for a challenge to the entire agreement as being unconscionable.?The court then explained its two-fold task. First, the court must determine whether the plaintiffs are challenging the enforceability of the contract in toto, or whether they are contesting? Mohamed v. Uber Techs., Inc.109 F. Supp. 3d 1185 (N.D. Cal. 2015)?? Cited 44 timesThe U.S. Supreme Court has also held that “[a]s a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract.” Rent–A–Center, 561 U.S. at 70–71, 130 S.Ct. 2772 (internal quotation marks and citation omitted). Thus, at most a court can invalidate the entirety of an arbitration provision if that specific provision is permeated with unconscionability.?A Court may not, however, invalidate the entire contract based on unconscionable terms contained solely in an arbitration clause.?Id.? Held v. NortonB268595 (Cal. Ct. App. Aug. 9, 2017)v. David (2007) 147 Cal.App.4th 1055, 1061-1062 . . . .)" (Rice v. Downs (2016) 248 Cal.App.4th 175, 184-185.) Under California law, an arbitration clause is severable from the larger contract in which it is embedded.?Thus, in determining the validity and applicability of an arbitration clause, a court ordinarily cannot consider any claim that the contract as a whole is invalid.?(Bruni v. Didion (2008) 160 Cal.App.4th 1272, 1283-1285.) "As a result, an arbitration clause may be enforceable regardless of whether the contract surrounding it is enforceable." (Id. at p. 1283.) As for determining? Davis v. USA Nutra Labs, Co.303 F. Supp. 3d 1183 (D.N.M. 2018)?? Cited 1 timesDoc. 24–3 at 14. This modification provision is separate and distinct from the challenged arbitration provision.?Where, as here, the enforceability of an arbitration provision is at issue, "a party's challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate."?Rent–A–Center, West, Inc. v. Jackson , 561 U.S. 63, 70, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010). Accordingly, "a provision permitting the unilateral amendment of any term of? Cypress v. Cintas Corp.16-cv-2478 (ADS)(ARL) (E.D.N.Y. Feb. 11, 2017)126 S. Ct. 1204, 163 L. Ed. 2d 1038 (2006). However, "the statutory language does not permit the federal court to consider claims of fraud in the inducement of the contract generally." Id.?In other words, as is the case here, "a party's challenge to another provision of the contract [besides the arbitration clause], or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate."?Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 70, 130 S. Ct. 2772, 177 L. Ed. 2d 403 (2010); see Buckeye Check Cashing, Inc., 546 U.S. at 444 (describing this category of? Worthington v. JetSmarter, Inc.18 Civ. 12113 (KPF) (S.D.N.Y. Oct. 7, 2019)?? Cited 9 timesHowever, "as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract." Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445 (2006).?A party's challenge to a contract as a whole, or to a provision of the contract other than the arbitration provision, does not prevent a court from enforcing a specific agreement to arbitrate.?Rent-A-Center, 561 U.S. at 70. It is only when the party resisting arbitration challenges the validity of the arbitration clause itself that the Court must resolve such challenge before compelling? Advanced Air Mgmt., Inc. v. Gulfstream Aerospace Corp.B265723 (Cal. Ct. App. Sep. 6, 2017)Court in Rent-A-Center explained, "'[a]s a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract.' [Citations.]" (Rent-A-Center, supra, 561 U.S. at pp. 70-71.)?A challenge to another provision of the contract or to the contract as a whole therefore cannot prevent a court from enforcing an arbitration agreement.?(Id. at p. 70; Buckeye Check Cashing, Inc. v. Cardegna (2006) 546 U.S. 440, 445-446 [126 S.Ct. 1204, 163 L.Ed.2d 1038].) Similarly, a delegation provision in an arbitration agreement is severable from the remainder of the? Alvarez v. Gryphon Holdco, LLCSA-18-CV-01298-FB-ESC (W.D. Tex. Sep. 18, 2019)?? Cited 1 timesof challenge is relevant to a court's determination of whether the arbitration agreement at issue is enforceable. Id. The latter is not.?Because a written agreement to arbitrate is valid and enforceable under the FAA notwithstanding the validity or invalidity of the contract in which it is contained, a party's challenge to another provision of the contract or to the contract as a whole does not prevent a court from enforcing a specific agreement to arbitrate.?Id. Accordingly, the Supreme Court "require[s] the basis of challenge to be directed specifically to the agreement to arbitrate before? McKenzie v. Brannan496 F. Supp. 3d 518 (D. Me. 2020)"clearly and unmistakably" intended that an arbitrator would decide issues of arbitrability where the parties agreed the arbitrator should decide disputes "arising out of or relating to: all issues of arbitrability").?A challenge to the entire contract or to another provision within the contract "does not prevent a court from enforcing a specific agreement to arbitrate."?Rent-A-Center , 561 U.S. at 70, 130 S.Ct. 2772. An arbitration provision is severable from the remainder of the challenged contract even where "the underlying contract is itself an arbitration agreement." Id. at 72, 130? Moss v. Brock Servs., LLC2:19-cv-00084-JAW (D. Me. Aug. 13, 2019)?? Cited 4 timesby a delegation clause, which is an "agreement[ ] to arbitrate threshold issues concerning the arbitration agreement." Danley v. Encore Capital Grp., Inc., 680 Fed. App'x. 394, 395-96 (6th Cir. 2017) (citation omitted).?A challenge to the entire contract or to another provision within the contract "does not prevent a court from enforcing a specific agreement to arbitrate."?Rent-A-Center, 561 U.S. at 70. An arbitration provision is severable from the remainder of the challenged contract even where "the underlying contract is itself is an arbitration agreement." Id. at 72. That is because,? Clough v. Brock Servs., LLC2:19-cv-00050-JAW (D. Me. Aug. 13, 2019)?? Cited 2 timesdelegation provision which serves as an agreement between the parties delegating certain threshold issues to arbitration. Danley v. Encore Capital Grp., Inc., 680 Fed. App'x. 394, 395-96 (6th Cir. 2017) (citation omitted).?A challenge to the entire contract or to another provision within the contract "does not prevent a court from enforcing a specific agreement to arbitrate."?Rent-A-Center, 561 U.S. at 70. The severability rule—originally announced in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04 (1967)—is applicable to delegation clauses. Rent-A-Center, 561 U.S. at 70? Caldwell v. UniFirst Corp.583 S.W.3d 84 (Mo. Ct. App. 2019)?? Cited 3 timesspecifically. Id. Absent such a direct, meritorious challenge to the delegation provision, the provision is valid and enforceable, and any challenge to the validity of the agreement as a whole is for the arbitrator. Id.?A challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate.?Dotson , 472 S.W.3d at 605 ; Latenser, 549 S.W.3d at 464. Mr. Caldwell contended that the delegation provision lacked consideration because his at-will employment is not valid consideration, and because the arbitration? Cotton Exch. Inv. v. Xcel Air ConditioningCIVIL ACTION NO. 16-17543 SECTION "L" (5) (E.D. La. May. 1, 2019)illegality of one of the contract's provisions renders the whole contract invalid." . . . [Section] 2 states that a "written provision" "to settle by arbitration a controversy" is "valid, irrevocable and enforceable" without mention of the validity of the contract in which it is contained.?Thus, a party's challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate." "[A]s a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract,"? Southerland v. Corporate Transit of Am.Case No. 13-14462 (E.D. Mich. Sep. 30, 2014)?? Cited 3 timesone of the contract's provisions renders the whole contract invalid. [We have] held that only the first type of challenge is relevant to a court's determination whether the arbitration agreement at issue is enforceable. That is because § 2 states that a "written provision" "to settle by arbitration a controversy" is "valid, irrevocable, and enforceable" without mention of the validity of the contract in which it is contained.?Thus, a party's challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate.? Lee v. Uber Techs., Inc.208 F. Supp. 3d 886 (N.D. Ill. 2016)?? Cited 12 times‘written provision’ ‘to settle by arbitration a controversy’ "—which includes a delegation clause—"is ‘valid, irrevocable, and enforceable’ without mention of the validity of the contract in which it is contained.?Thus, a party's challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate." (emphasis in original)), with Mohamed , 109 F.Supp.3d at 1227 ("[T]he question of whether delegation language is clear and unmistakable should be determined in context of the contractual language as a whole—not by? Monarch Consulting, Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh123 A.D.3d 51 (N.Y. App. Div. 2014)?? Cited 11 timesat issue is enforceable. That is because § 2 states that a written provision to settle by arbitration a controversy is valid, irrevocable, and enforceable without mention of the validity of the contract in which it is contained.?Thus, a party's challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate.?[A]s a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract” ( Rent–A–Center, 561 U.S. [at] 70 ) [internal citations omitted] )? Velasco v. Volt Mgmt. Corp.B293190 (Cal. Ct. App. May. 6, 2020)"That is because § 2 states that a 'written provision' 'to settle by arbitration a controversy' is 'valid, irrevocable, and enforceable' without mention of the validity of the contract in which it is contained.?Thus, a party's challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate.?'[A]s a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract.' " (Rent-A-Center, supra, 561 U.S. at pp. 70-71.) The objective intent of contracting? Sunshine Shopping Ctr., Inc. v. LG Elec. Panama, S.A.Civil Action No. 2015-0041 (D.V.I. Sep. 21, 2018)?? Cited 4 timesthe arbitration agreement at issue is enforceable. See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-404 [] (1967); Buckeye, supra, at 444-446 []; Preston v. Ferrer, 552 U.S. 346, 353-354 [] (2008). That is because § 2 states that a "written provision" "to settle by arbitration a controversy" is "valid, irrevocable, and enforceable" without mention of the validity of the contract in which it is contained.?Thus, a party's challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate.? Amway Global v. Woodward744 F. Supp. 2d 657 (E.D. Mich. 2010)?? Cited 8 timesrelevant to a court's determination whether the arbitration agreement at issue is enforceable. That is because § 2 states that a "written provision" "to settle by arbitration a controversy" is "valid, irrevocable, and enforceable" without mention of the validity of the contract in which it is contained.?Thus, a party's challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate.?As a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract? Swanson v. H&R Block, Inc.475 F. Supp. 3d 967 (W.D. Mo. 2020)87 S.Ct. 1801 ; see also Creson v. Quickprint of Am., Inc. , 558 F. Supp. 984, 987 (W.D. Mo. 1983) ; Bush v. AT & T Corp. , No. 12-6106-CV-SJ-DGK, 2012 WL 6016719, at *2 (W.D. Mo. Dec. 3, 2012).?Put another way, a federal court must enforce an arbitration clause even if the entire contract is invalid unless the challenge to validity is expressly directed at the formation of the arbitration agreement.?Id. This doctrine, known as the Prima Paint severability rule, allows an arbitration agreement to be severed and enforced separately from an underlying contract. Buckeye , 546 U.S. at 445, 126Fla. Gas Transmission Co. v. Tex. Brine Co.267 So. 3d 633 (La. Ct. App. 2018)?? Cited 9 timesAccording to the express terms of the contract, the FAA ( 9 U.S.C. §§ 1 - 16 ) and AAA rules govern resolution of this dispute.?The FAA requires "that courts treat an arbitration clause as severable from the contract in which it appears and enforce it according to its terms unless the party resisting arbitration specifically challenges the enforceability of the arbitration clause itself."?Granite Rock Co. v. International Broth. of Teamsters, 561 U.S. 287, 301, 130 S.Ct. 2847, 2858, 177 L.Ed.2d 567 (2010). The Supreme Court has interpreted the FAA toHydrick v. Management Recruiters Intern.738 F. Supp. 1434 (N.D. Ga. 1990)?? Cited 6 timesand enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract;" the Court cannot consider claims involving validity of the contract as a whole. Id. at 403-04, 87 S.Ct. at 1806.?In other words, if the arbitration clause is valid, the Court must enforce it, even if the underlying contract might be declared invalid.?Plaintiff cites Local Division 732, Amalgamated Transit Union v. Metropolitan Atlanta Rapid Transit Authority, 253 Ga. 219, 320 S.E.2d 742 (1984), for the proposition that an arbitration clause cannot be enforced if the underlyingLewis v. ANSYS, Inc.19-cv-10427 (AJN) (S.D.N.Y. Mar. 30, 2021)his discrimination, retaliation, and defamation claims did not "originate under" the Agreements. Id. This argument faulters against a core tenant of federal arbitration law.?As the Supreme court has held, the FAA requires that "courts must treat the arbitration clause as severable from the contract in which it appears, and thus apply the clause to all disputes within its scope" if the clause is valid and enforceable.?Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, 301 (2010) (cleaned up). The scope of an arbitration clause in a contract is therefore defined solely by the termsHefter v. Charlie, Inc.Case No.: 2:16-cv-01805-RDP (N.D. Ala. Sep. 19, 2017)?? Cited 2 timesof the arbitration clause in particular or to the very existence of the contract must be resolved by the court before deciding a motion to compel arbitration.").?Section 2 of the FAA requires "that courts treat an arbitration clause as severable from the contract in which it appears and enforce it according to its terms unless the party resisting arbitration specifically challenges the enforceability of the arbitration clause itself."?Granite Rock, 561 U.S. at 301; see Buckeye, 546 U.S. at 445-46 ("First, as a matter of substantive federal arbitration law, an arbitration provision is severableFerrie v. DirecTV, LLCCIVIL ACTION NO. 3:15-CV-409 (JCH) (D. Conn. Jan. 12, 2016)?? Cited 7 timesagreement to arbitrate." Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 70 (2010) (emphasis in the original).?In short, because "an arbitration provision is severable from the remainder of the contract," Buckeye Check Cashing, 546 U.S. at 445, unless the arbitration provision is specifically attacked as unenforceable, courts will enforce the arbitration provision and require an arbitrator, rather than the court, to decide whether the contract as a whole is unenforceable.?"Claims of unconscionability and adhesion contracts are similarly included within" this rule. JLM Indus., Inc., 387Innotec LLC v. Visiontech Sales, Inc.Civil Action No. 3:17CV00007 (W.D. Va. Jul. 20, 2018)the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate." Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 70 (2010).?The court must "treat an arbitration clause as severable from the contract in which it appears and enforce it according to its terms unless the party resisting arbitration specifically challenges the enforceability of the arbitration clause itself."?Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, 301 (2010). Here, rather than contesting the validity of the arbitration clause itself, Innotec cites to theNewark Bay Cogeneration P'ship, LP v. ETS Power Grp.Civil Action 11-2441 (ES) (CLW) (D.N.J. Sep. 28, 2012)?? Cited 1 timesas opposed to the arbitration clause in particular, does not present a question of arbitrability." Quilloin v. Tenet HealthSystem Phila., Inc., 673 F.3d 221, 229 (3d Cir. 2012) (internal quotations & citations omitted).?In fact, the arbitration clause is severable from the rest of the contract, and the Court may separately enforce and determine an arbitration clause's validity.?Id. In Buckeye, the plaintiffs alleged that the contract as a whole was illegal, but did not specifically challenge the arbitration provision. 546 U.S. at 446. The Court found that the arbitrator should determine theAdir Int'l, LLC v. Travelers Indem. Co.B293415 (Cal. Ct. App. Dec. 30, 2020)see Preston, supra, 552 U.S. at p. 353 ["attacks on the validity of an entire contract, as distinct from attacks aimed at the arbitration clause, are within the arbitrator's ken"].)?"[C]ourts treat an arbitration clause as severable from the contract in which it appears and enforce it according to its terms unless the party resisting arbitration specifically challenges the enforceability of the arbitration clause itself."?(Granite Rock Co. v. Int'l. Bhd. Of Teamsters (2010) 561 U.S. 287, 301; see New Prime Inc. v. Oliveira (2019) ___ U.S. ___, ___, 139 S.Ct. 532, 538; Nitro-Lift Technologies,Digiacomo v. Ex'pression Center for New Media Inc.No. C 08-01768 MHP (N.D. Cal. Sep. 15, 2008)arbitration on issues as to which an arbitration agreement has been signed.") Defendant points to the FAA's mandate to argue that the court must order the arbitration be conducted, once it is satisfied that the formation of the arbitration provision or the failure to comply therewith are not at issue.?The court agrees that an arbitration provision must be enforced, according to its terms, absent a ground to invalidate the arbitration provision.?The court proceeds with an analysis of unconscionability as a defense to enforcement of the arbitration provision included in the Enrollment AgreementRUHL v. HONDANo. WD70189 (Mo. Ct. App. Nov. 3, 2009)agreement contains class waiver and fee-sharing provisions. Based on these provisions, the class-action waiver insulates Honda from any alleged wrongdoing. The class-action waiver clause is therefore unconscionable and will not be enforced.?Under federal law, the entire arbitration agreement, however, should not be voided where the unconscionable clause is severable.?Because the class-waiver clause is severable, we must compel enforcement of the arbitration agreement absent the class-action waiver. Therefore, we reverse and remand to the trial court to compel arbitration of the class claimsGarrett v. Monterey Fin. Servs., LLCCIVIL ACTION NO. JKB-18-325 (D. Md. Jul. 25, 2018)?? Cited 9 timesAn arbitration clause, as with any clause in a contract, may be invalidated if it is deemed unconscionable.?See, e.g., Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996); Del. Code Ann. tit. 6, § 2-302. Under Delaware law, a contract is rendered unconscionable if the party with superior bargaining power used it to take unfair advantage ofAsbell v. Educ. Affiliates, Inc.No. 3:12-cv-00579 (M.D. Tenn. Apr. 24, 2013)?? Cited 1 timesvalid under § 2, and must enforce it under §§ 3 and 4, leaving any challenge to the validity of the Agreement as a whole for the arbitrator." Id. at 2779. The Supreme Court's decision in Rent-A-Center controls in this case.?Because Plaintiffs assail the validity of the contract as a whole, but not the arbitration clause specifically, this Court must enforce the arbitration provision.?See Marshall v. ITT Technical Institute, No. 3:11-CV-552, 2012 WL 1565453 at *5 (E.D. Tenn. May 1, 2012) (relying on Rent-A-Center and compelling arbitration in part due to the plaintiff's failure to specificallyAPI v. SAC FOX TRIBE OF MISSISSIPPI IN IOWANo. 05-CV-168-LRR (N.D. Iowa Jun. 18, 2009)Before the arbitration clause in the Agreement can be enforced, a court must determine whether the Agreement is valid.?If [the Walker Council] had authority to enter into the Agreement and it was validly formed, then, the court agrees that the arbitration clause should be enforced. If, however, on the other hand, [the Walker Council] was without authority to enter into the Agreement on behalf of the Tribe and the Agreement is found to be an invalid and unenforceable contract, the provisions of the contract, including the arbitration clause, cannot be enforced.Attorney's Process & Investigation Services, Inc. v. Sac & Fox Tribe401 F. Supp. 2d 952 (N.D. Iowa 2005)?? Cited 5 timesclause in the Agreement and the requirement in the Agreement "that any dispute about the arbitrability of the dispute under the agreement be submitted in the first instance to the federal court." API misses the crucial issue in this case.?Before the arbitration clause in the Agreement can be enforced, a court must determine whether the Agreement is valid.?If Walker had authority to enter into the Agreement and it was validly formed, then, the court agrees that the arbitration clause should be enforced. If, however, on the other hand, Walker was without authority to enter into the AgreementPruiett v. West End Rests. LLCCivil No. 3:11-00747 (M.D. Tenn. Nov. 14, 2011)?? Cited 4 timesresolution in an arbitral, rather than a judicial, forum." Gilmer, 500 U.S. at 26 (emphasis added). Accordingly, an agreement to arbitrate is valid "so long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum." Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 90, 121 S. Ct. 513, 148 L. Ed. 2d 373 (2000), citing Gilmer, 500 U.S. at 28.?However, even if an arbitration provision is unenforceable, the provision should be severed in favor of arbitration, unless the provision taints the entire agreement.?Morrison, 317 F.3d at 675Hayward v. Trinity Christian Ctr.Case No. 3:14-cv-2282 (M.D. Tenn. Apr. 28, 2015)B. Severability?It is well settled that, even if an arbitration provision is unenforceable, the unenforceable provision should be severed in favor of arbitration, unless the provision taints the entire agreement.?Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 652-53, 675 (6th Cir. 2003) (en banc). The Supreme Court has instructed that, when analyzing arbitration agreements, courts should "resolve anyHayward v. Trinity Christian Ctr.Case No. 3:14-cv-2282 (M.D. Tenn. Mar. 24, 2015)litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum." Green Tree Fin. Corp.-Ala v. Randolph, 531 U.S. 79, 90 (2000) (citing Gilmer, 500 U.S. at 28).?However, even if an arbitration provision is unenforceable, it is well settled that the unenforceable provision should be severed in favor of arbitration, unless the provision taints the entire agreement.?Morrison, 317 F. 3d at 675. As the Sixth Circuit has noted, the Supreme Court has endorsed arbitration in the employment law context, including claims asserted under statutes like the FLSA. Cooper,K.F.C. v. Snap, Inc.Case No. 3:21-cv-9-DWD (S.D. Ill. Jun. 10, 2021)8-19) In other words, Plaintiff suggests that the arbitration provision that is part of the Terms of Service is void as disaffirmed and, therefore, its requirements that the matter be submitted to arbitration cannot be enforced.?Nevertheless, the law requires that the court "enforce a valid delegation clause even if the underlying arbitration agreement is potentially void."?Kuznik v. Hooters of Am., LLC, 2020 WL 5983879, at *4 (C.D. Ill. Oct. 8, 2020) (citing Rent-a-Center, 561 U.S. at 71-72). Because the delegation clause contained in the AAA arbitration rules appears to be valid, the courtGibbs v. Haynes Invs.967 F.3d 332 (4th Cir. 2020)?? Cited 7 timespreempt the application of any contrary law, and the effect of such provisions is to thereby make unavailable to the borrowers the effective vindication of federal statutory protections and remedies, the arbitration agreements at issue amount to a prospective waiver.?Consequently, the "entire arbitration agreement is unenforceable."?Dillon , 856 F.3d at 335–37 ; See also Hayes , 811 F.3d at 669–71, 675 (concluding that a tribal arbitration contract is unenforceable under the FAA where it "names a tribal forum and then purports to disavow the authority of all state or federal law"). For theseGibbs v. Sequoia Capital Operations, LLC966 F.3d 286 (4th Cir. 2020)?? Cited 4 timesIn summary, because the effect of the choice-of-law provisions is to stymie the vindication of the federal statutory claims that the borrowers seek to enforce, they amount to a prospective waiver and render the delegation provisions unenforceable.?Consequently, the "entire arbitration agreement is unenforceable."?Dillon , 856 F.3d at 335–37 ; see also Hayes , 811 F.3d at 669–71, 675. For these reasons, we conclude that the district court had the authority to decide whether the arbitration agreements were valid, correctly decided they were not, and did not err in denying theJohnson v. Ace Cash Express, Inc.C.A. No. 13-1186-LPS (D. Del. Jul. 24, 2014)at Count II) Because "the dispute is one that, on its face, falls within the arbitration clause of the contract," SBC Interactive, Inc., 714 A.2d at 761, the Court finds that the dispute, as alleged, falls within the scope of the March Arbitration Agreement.?Even so, the Court will not enforce the arbitration agreement if it is unconscionable.?Johnson contends it is unconscionable as, in her view, the entirety of loan agreements is unconscionable. (D.I. 14 at ?? 30-33; D.I. 17 at 12-14) ACE responds that the Court may only examine whether the arbitration agreement, not the entirety of the loanFirst Ins. Co. of Haw., Ltd. v. P&S Constr., Inc.CIVIL CASE NO. 17-00091 (D. Guam Dec. 19, 2018)(9th Cir. 2006). Response to Mot. Dismiss at 17, ECF No. 18. P&S counters on two grounds. Reply at 10, ECF No. 25. In addition to refuting FICOH's unconscionability arguments, P&S argues that the question of unconscionability is one for the arbitrator to decide. Id.?Generally, a court determines whether an arbitration clause is valid.?Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015). However, this issue "can be expressly delegated to the arbitrator where the parties clearly and unmistakably provide otherwise." Id. (internal quotation marks omitted). The Ninth Circuit has held thatKopp v. Kopp239 P.3d 878 (Kan. Ct. App. 2010)?? Cited 2 times? The arbitration agreement which the court enforced is contained only in the contract which was the product of the parties' settlement agreement.?If the arbitration provision is valid and enforceable, the contract which contains it is too.Bynum v. Maplebear Inc.160 F. Supp. 3d 527 (E.D.N.Y. 2016)?? Cited 16 timesunderstand the arbitration clause included in the employment contract that she reviewed and signed. The arbitration agreement's provisions on venue, fee shifting, and fee splitting are not enforceable and are severed pursuant to the parties' stipulation.?Without the objectionable clauses, the arbitration agreement is valid and enforceable.?There is no merit to plaintiff's claim that FLSA claims are per se non-arbitrable, and the present dispute falls within the broad language of the arbitration agreement. Defendant's motion to compel arbitration is granted. ................
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