Parnell v. CashCall
This is an appeal involving the enforceability of a payday lender’s arbitration agreement that purports to require arbitration in a forum that doesn’t exist, and pursuant to rules that don’t exist. Army veteran Joshua Parnell brought a class action against a predatory lender relating to its 233% interest rates and illegal origination fees. The lender, Western Sky, moved to arbitrate the case based on the loan agreement. The agreement, however, purports to waive all federal and state law and requires that the arbitration be conducted by a representative of the Cheyenne River Sioux Tribe. As it turns out, no such arbitrator exists. Undeterred, Western Sky’s affiliate, CashCall, argued that the agreement actually allowed AAA or JAMS, reputable arbitration outfits, to conduct the arbitration instead. The district court still refused to enforce the arbitration agreement, but the Eleventh Circuit reversed and remanded, inviting Mr. Parnell to amend his complaint to specifically challenge the enforceability of the “delegation clause”—which puts the question whether the arbitration agreement is enforceable before the arbitrator. After Mr. Parnell amended his complaint, the district court again denied CashCall’s motion to compel arbitration. CashCall again appealed, and the Eleventh Circuit affirmed the district court’s denial of arbitration. When CashCall’s petition for a rehearing en banc was denied, the parties settled.