Citations
- 372 F. Supp. 3d 955
Full opinion text
DISCUSSION
I. MOTION TO COMPEL ARBITRATION
The Haynes defendants move to compel arbitration, arguing that I should enforce arbitration agreements that each of the named plaintiffs signed as part of their loan agreements. In addition, to the extent plaintiffs challenge the enforceability of their arbitration agreements, the Haynes defendants argue those challenges should be decided by the arbitrator because the arbitration agreements clearly delegate all disputes concerning the loan agreements to the arbitrator and plaintiffs fail to challenge the delegation provision. Plaintiffs oppose, arguing that the arbitration agreements are not enforceable because they are impermissible prospective waivers of statutory rights and remedies and are unconscionable under California law.
A. Legal Standard
The Federal Arbitration Act ("FAA") governs the motion to compel arbitration. 9 U.S.C. §§ 1 et seq. Under the FAA, a district court determines: (i) whether a valid agreement to arbitrate exists and, if it does, (ii) whether the agreement encompasses the dispute at issue. Lifescan, Inc. v. Premier Diabetic Servs., Inc. , 363 F.3d 1010, 1012 (9th Cir. 2004). "To evaluate the validity of an arbitration agreement, federal courts should apply ordinary state-law principles that govern the formation of contracts," Ingle v. Circuit City Stores, Inc. , 328 F.3d 1165, 1170 (9th Cir. 2003) (internal quotation marks and citation omitted). If the court is satisfied "that the making of the arbitration agreement or the failure to comply with the agreement is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement." 9 U.S.C. § 4. "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, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).
The question of whether the arbitration agreement is valid is itself arbitrable. Rent-A-Center, West Inc. v. Jackson , 561 U.S. 63, 68-69, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010). Where a party seeks to challenge arbitrability in court, the party must specifically challenge the validity of the delegation provision, rather than "the validity of the contract as a whole." Id. at 72, 130 S.Ct. 2772. Although arbitration agreements are generally enforceable under the FAA, they must not contravene public policy.
M/S Bremen v. Zapata Off-Shore Co. , 407 U.S. 1, 15, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). Two grounds for unenforceability are when (i) the arbitration agreement acts as a prospective waiver of statutory rights and remedies and (ii) the arbitration agreement is unconscionable under state contract law principles. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. , 473 U.S. 614, 666 n.19, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) ; Armendariz v. Found. Health Psychcare Services, Inc. , 24 Cal. 4th 83, 113, 99 Cal.Rptr.2d 745, 6 P.3d 669 (2000).
1. Prospective Waiver
An arbitration agreement that is a "prospective waiver of a party's right to pursue statutory remedies" is unenforceable as it is against public policy. Mitsubishi , 473 U.S. at 666 n.19, 105 S.Ct. 3346. Put another way, an arbitration agreement must not prevent a party from effectively vindicating their statutory rights and remedies. Am. Express Co. v. Italian Colors Rest. , 570 U.S. 228, 235, 133 S.Ct. 2304, 186 L.Ed.2d 417 (2013). Provisions that limit but do not foreclose a plaintiff's right to pursue statutory remedies do not constitute a substantive waiver of their statutory rights. Am. Express Co. v. Italian Colors Rest. , 570 U.S. 228, 236, 133 S.Ct. 2304, 186 L.Ed.2d 417 (2013) (class-action waiver did not eliminate plaintiffs' right to pursue statutory remedy in arbitration).
2. Unconscionability
Whether a contract is unconscionable is a question of law. Patterson v. ITT Consumer Fin. Corp. , 14 Cal. App. 4th 1659, 1663, 18 Cal.Rptr.2d 563 (Cal. Ct. App. 1993). In California, unconscionability includes an "absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party." Lhotka v. Geographic Expeditions, Inc. , 181 Cal. App, 4th 816, 821, 104 Cal.Rptr.3d 844 (Cal. Ct. App. 2010) (citation omitted). Accordingly, unconscionability has both a "procedural" and a "substantive" element. Id. (citation omitted).
Procedural unconscionability occurs where a contract or clause involves oppression, consisting of a lack of negotiation and meaningful choice, or surprise, such as where the term at issue is hidden within a wordy document. Id. "California law treats contracts of adhesion, or at least terms over which a party of lesser bargaining power had no opportunity to negotiate, as procedurally unconscionable to at least some degree." Bridge Fund Capital Corp. v. Fastbucks Franchise Corp. , 622 F.3d 996, 1004 (9th Cir. 2010) (superseded by statute on other grounds).
Substantive unconscionability occurs where the provision at issue "reallocates risks in an objectively unreasonable or unexpected manner." Lhotka , 181 Cal. App. 4th at 821, 104 Cal.Rptr.3d 844 (citation omitted). "Substantive unconscionability focuses on the one-sidedness or overly harsh effect of the contract term or clause." Id. at 824-825, 104 Cal.Rptr.3d 844.
Both the procedural and substantive elements must be met before a provision will be deemed unconscionable, but both need not be present to the same degree. Rather, "the more substantively 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." Armendariz v. Found. Health Psychcare Services, Inc. , 24 Cal. 4th 83, 114, 99 Cal.Rptr.2d 745, 6 P.3d 669 (Cal. 2000).
B. Loan Agreements at Issue
The loan agreements between Brice and Novorot and GPL required borrowers to resolve all disputes by arbitration, which itself would be governed by tribal law. Compl., Ex. 12 [Dkt. No. 1-12] ("Brice Agreement" or "GPL Agreement"); Compl., Ex. 13 [Dkt. No. 1-13] ("Novorot Agreement" or "GPL Agreement"). Neither plaintiffs nor the Haynes defendants produced the loan agreement between Browne and Plain Green. However, the defendants produced an agreement between Darlene Gibbs, a plaintiff in a different suit, and Plain Green; both sides assume that agreement would be similar to the one Browne signed. MTC, Ex. A at ECF pg. 17 [Dkt. No. 85-1] ("Gibbs Agreement" or "Plain Green Agreement").
1. "Governing Law" Sections
In its "Governing Law" section, which appears before the Arbitration Agreements in the document, the GPL Agreement states:
GOVERNING LAW; NON-APPLICABILITY OF STATE LAW; INTERSTATE COMMERCE: This Agreement and the Agreement to Arbitrate are governed by Tribal Law and such federal law as is applicable under the Indian Commerce Clause of the Constitution of the United States of America. We do not have a presence in Oklahoma or any other state of the United States of America. Neither this Agreement nor the Lender is subject to the laws of any state of the United States. The Lender may choose to voluntarily use certain federal laws as guidelines for the provision of services. Such voluntary use does not represent acquiescence of the Otoe-Missouria Tribe to any federal law unless found expressly applicable to the operations of the Otoe-Missouria Tribe. You and we agree that the transaction represented by this Agreement involves interstate commerce for all purposes.
GPL Agreement 6 (emphasis in original).
The Agreement with Plain Green contains similar terms, but omits reference to the Indian Commerce Clause. The Plain Green Agreement also provides that: "This Agreement and the Agreement to Arbitrate are governed by Tribal Law. The Agreement to Arbitrate also comprehends the application of the Federal Arbitration Act as provided below." Plain Green Agreement 15. The Plain Green Agreement also discloses: "Plain Green does not have a presence in Montana or any other state of the United States of America." Id.
2. Arbitration Agreements
The GPL Arbitration Agreement states that "IF YOU DO NOT AGREE TO ARBITRATE ALL DISPUTES (DEFINED BELOW) IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE AGREEMENT TO ARBITRATE YOU MUST ADVISE US IN WRITING" either by mail or by email. GPL Agreement 6. The GPL Arbitration Agreement also states: "IN THE EVENT YOU OPT OUT OF THE AGREEMENT TO ARBITRATE, ANY DISPUTES SHALL NONETHELESS BE GOVERNED UNDER TRIBAL LAW AND MUST BE BROUGHT WITHIN THE COURT SYSTEM OF THE OTOE-MISSOURIA TRIBE." Id.
The Plain Green Agreement contains nearly identical terms, with nominal differences in language: "IF YOU DO NOT AGREE TO ARBITRATE ALL DISPUTES (DEFINED BELOW) IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE AGREEMENT TO ARBITRATE YOU MUST ADVISE PLAIN GREEN IN WRITING," and "ANY DISPUTES SHALL BE GOVERNED UNDER TRIBAL LAW AND MUST BE BROUGHT WITHIN THE CHIPPEWA CREE TRIBAL COURT," Plain Green Agreement 16.
The GPL Arbitration Agreement defines "Arbitration" and addresses the breadth of disputes to be resolved in arbitration:
WHAT ARBITRATION IS: Arbitration is having an independent third-party resolve a Dispute. A "Dispute" is any claim or controversy of any kind between you and [the lender] or otherwise involving this Agreement or the Loan. The term Dispute is to be given its broadest possible meaning and includes, without limitation, all federal, state or Tribal Law claims or demands (whether past, present, or future), based on any legal or equitable theory and regardless of the type of relief sought (i.e., money, injunctive relief, or declaratory relief). A Dispute includes any issue concerning the validity, enforceability, or scope of this Agreement or this Agreement to Arbitrate.
GPL Agreement 6 (emphasis in original). The Plain Green Arbitration Agreement is essentially identical aside from defining "Arbitration" as "a form of alternative dispute resolution where Disputes are presented to an independent third party for resolution." Plain Green Agreement 16, Although the GPL agreement allow parties to use independent arbitration firms CPR or JAMS and the Plain Green agreement allows for parties to use JAMS or AAA, both loan agreements provide:
The policies and procedures of the selected arbitration firm will apply provided such policies and procedures do not contradict this Agreement to Arbitrate or Tribal Law. To the extent the arbitration firm's rules or procedures are different than the terms of this Agreement to Arbitrate, the terms of this Agreement to Arbitrate will apply.
GPL Agreement 6; Plain Green Agreement 16.
The Arbitration Agreements also make clear that arbitrators are to apply tribal law. Both Arbitration Agreements state that "[t]he arbitrator has the ability to award all remedies available under Tribal Law, whether at law or in equity, to the prevailing party, except that you and we agree that the arbitrator has no authority to conduct class-wide proceedings and will be restricted to resolving individual disputes." GPL Agreement 7; Plain Green Agreement 17. The GPL Agreement states: "APPLICABLE LAW AND JUDICIAL REVIEW OF ARBITRATOR'S AWARD. THIS AGREEMENT TO ARBITRATE SHALL BE GOVERNED BY TRIBAL LAW. The arbitrator shall apply Tribal Law and the terms of this Agreement, including this Agreement to Arbitrate and the waivers included herein." GPL Agreement 7 (emphasis in original). The Plain Green Agreement similarly provides:
APPLICABLE LAW AND JUDICIAL REVIEW OF ARBITRATOR'S AWARD: THIS AGREEMENT TO ARBITRATE IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY TRIBAL LAW, THE PARTIES ADDITIONALLY AGREE TO LOOK TO THE FEDERAL ARBITRATION ACT AND THE JUDICIAL INTERPRETATIONS THEREOF FOR GUIDANCE IN ANY ARBITRATION THAT MAY BE CONDUCTED HEREUNDER. The arbitrator shall apply Tribal Law and the terms of this Agreement, including the Agreement to Arbitrate and the waivers included herein.
Plain Green Agreement 17 (emphasis in original). Finally, both Agreements provide that parties have the right to judicial review of arbitration award in Tribal court and in accordance with Tribal law. GPL Agreement 7; Plain Green Agreement 17.
C. The Arbitration Agreements are Unenforceable
In two recent decisions, the Fourth Circuit concluded that arbitration agreements similar to those challenged by plaintiffs were prospective waivers of federal statutory rights and, as a result, unenforceable. In Hayes v. Delbert Servs., Corp. , 811 F.3d 666 (4th Cir. 2016) ("Hayes "), borrowers brought a putative class action against Western Sky, a payday lender located on the Cheyenne River Indian Reservation. The arbitration agreement stated that (i) Western Sky was subject solely to tribal law, (ii) "no other state or federal law or regulation shall apply to this Loan Agreement," and (iii) "[n]either this Agreement nor Lender is subject to the laws of any state of the United States of America." Id. at 669-70. The court concluded that the agreement "fail[ed] for the fundamental reason that it purport[ed] to renounce wholesale the application of any federal law to the plaintiffs' federal claims," Id. at 673. The court also found that the choice-of-law provisions could not be severed from the rest of the arbitration agreement because they went "to the core of the arbitration agreement." Id. at 675-76.
In Dillon v. BMO Harris, N.A. , 856 F.3d 330 (4th Cir. 2017) ("Dillon "), borrowers brought claims arising from loans issued by GPL, one of the lenders at issue in this action. Id. at 332. As an initial matter, the defendants argued that the court should not consider the prospective waiver issue until after the arbitrator had decided whether any federal remedies remained available to the borrower. Id. at 335. The court disagreed, concluding that because the "agreement [was] an unambiguous attempt to apply tribal law to the exclusion of federal and state law," it was unenforceable as a matter of law. Id. at 336. The court based its decision on the fact that the terms of the arbitration agreements at issue were "identical to the terms" the Fourth Circuit reviewed in Hayes . Id. at 335. Numerous district courts have also found that arbitration provisions in similar loan agreements were unenforceable as prospective waivers.
Defendants argue that the analysis and result here should be different from that in the Dillon and Hayes cases. First, the Haynes defendants assert there is a clear and unmistakable delegation provision that plaintiffs fail to challenge, so the question of enforceability must be decided by the arbitrator in the first instance. Defendants also assert that the arbitration agreements here are not prospective waivers for three reasons: (i) unlike the agreements in Dillon and Hayes , the arbitration agreements signed by plaintiffs expressly "invoke" federal law; (ii) plaintiffs have not carried their burden of showing more than a mere risk that the agreements will prospectively waive plaintiffs' statutory rights and remedies; and (iii) tribal law of both the Chippewa Cree and the Otoe-Missouria tribes provide remedies.
1. The Delegation Provisions
The issue of whether there are clear and unmistakable delegation provisions in the Agreements is secondary to the determination of whether the agreements are unenforceable prospective waivers. Regardless of whether a delegation provision is clear and unmistakable on its own terms, it will not be enforced if it results in enforcing an arbitration agreement that prospectively waives plaintiffs' statutory rights and remedies. The district court in Smith v. Western Sky Financial, LLC considered a similar loan agreement that required the arbitrator to exclusively apply tribal law. 168 F.Supp.3d 778, 784 (E.D. Pa. 2016). There, the court concluded that "enforcing the delegation provision would place an arbitrator in the impossible position of deciding the enforceability of the agreement without authority to apply any applicable federal or state law." Other courts have concluded similarly. Ryan v. Delbert , No. 5:15-cv-05044, 2016 WL 4702352, at *5 (E.D. Pa. Sept. 8, 2016) (delegation clause was "doomed" under the prospective waiver doctrine because it would prevent the borrower from effectively vindicating her federal statutory rights under the Fair Debt Collections Act); see also MacDonald v. CashCall , Civil Action No. 16-2781, 2017 WL 1536427, at *4 (D.N.J. Apr. 28, 2017) (same).
Further, although the Court in Rent-A-Center held that challenges to an arbitration agreement generally do not suffice to supersede a valid delegation provision, it recognized that the plaintiff may challenge the general arbitration procedures "as applied to the delegation clause" to show that they rendered the delegation clause unenforceable. 561 U.S. 63, 74, 130 S.Ct. 2772 (emphasis in original). Therefore, before 1 analyze whether there is a clear and unmistakable delegation provision, I analyze whether the agreements prospectively waive plaintiffs' statutory rights and remedies.
2. The Agreements Do Not Expressly Invoke Federal Law and, Instead, Disclaim It
The Haynes defendants argue that the arbitration agreements do not constitute prospective waivers because, unlike the agreements considered in Dillon and Hayes , the agreements "expressly invoke the application of federal law." MTC 20. In Hayes v. Delbert Servs. Corp , the terms of the loan agreements stated that the agreements were "subject solely to the exclusive laws and jurisdiction of the [tribe]" and that "no other state or federal law or regulation shall apply to this loan or Agreement." 811 F.3d 666, 669 (4th Cir. 2016). The agreement in Dillon v. BMO Harris, N.A. contained similar language, asserting sole and exclusive tribal jurisdiction and that "no other state or federal law or regulation shall apply to this Agreement, its enforcement or interpretation." 856 F.3d 330, 333 (4th Cir. 2017).
The choice-of-law provisions of the loan agreements at issue here contain some different language from that in Hayes and Dillon. Defendants point to the following difference. First, neither choice-of-law provision contains language that the tribe or the agreements are subject to the sole jurisdiction of tribal law or that no federal law applies. Instead, the GPL loan agreement "is governed by Tribal Law and such federal law as is applicable under the Indian Commerce Clause" and the Plain Green loan agreement states that the "Agreement to Arbitrate also comprehends the application of the Federal Arbitration Act...." GPL Agreement 6; Plain Green Agreement 15.
Second, both loan agreements state that "[the lender] may choose to voluntarily use certain federal laws as guidelines for the provisions of services," GPL Agreement 6; Plain Green Agreement 15. Regarding the GPL loan agreement, the defendants point to an Otoe-Missouria ordinance that ostensibly requires licensed consumer financial services entities to abide by "all applicable federal and Tribal consumer protection law...." As to the Plain Green loan agreement, defendants reply on an excerpt of the Chippewa Cree code posted on the Plain Green website providing that licensed financial services may not violate "any applicable Federal Consumer Protection Laws ...." Chippewa Code § 10-4-108(c). Because these provisions provide a possibility that federal law will be applied to the Agreements, defendants argue that they do not prospectively waive plaintiffs' statutory rights and remedies.
Those differences in language do not alter the ultimate effect of the choice-of-law provisions. Under the choice-of-law provision for both the GPL and Plain Green loan agreements, the lender "may choose to voluntarily use certain federal laws as guidelines," but "such voluntary does not represent acquiescence of the [tribe] to any federal law unless found expressly applicable to the operations of the [tribe]." GPL Agreement 6; Plain Green Agreement 15. The defendants do not identify what federal law would be applicable. Nor do they explain how the arbitrator would apply that law, given that the other more express terms of the agreements that prohibit them from doing so.
Defendants also argue that the reference to the Indian Commerce Clause in the GPL loan agreement clearly invokes federal law. MTC 20. The actual language states that the Loan Agreement is governed by "such federal law as is applicable under the Indian Commerce Clause." GPL Agreement 6. Inclusion of the Indian Commerce Clause amounts to "invocation of an irrelevant constitutional provision." Jackson v. Payday Fin., LLC , 764 F.3d 765, 778 (7th Cir. 2014). A district court considering a similar loan that invoked the Indian Commerce Clause also concluded that it "does not provide a basis for tribal jurisdiction over non-Indians.
F.T.C. v. Payday Fin., LLC , 935 F.Supp.2d 926, 932 n.4 (D.S.D. 2013). Defendants do not address these adverse cases, nor do they specify what federal law would be applicable under the Indian Commerce Clause.
Finally, defendants argue that the arbitration agreements do not call for the exclusion of federal law because they are separate from the choice-of-law provisions. Defendants cite Mastrobuono v. Shearson Lehman Hutton, Inc. , 514 U.S. 52, 53, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995) for the proposition that "the choice-of-law provision covers the rights and duties of the parties, while the arbitration clause covers arbitration; neither provision intrudes upon the other." MTC 19. Therefore, the defendants assert, the choice-of-law provisions cannot be applied to the arbitration clause to show that the arbitration agreement is a prospective waiver. However, the holding in Mastrobuono was specific to the case at hand, in which there was an issue of harmonizing the choice-of-law provision with the arbitration agreement. Id. at 1214-15. There, the parties chose New York law, which prevented arbitrators from awarding punitive damages, but the arbitration agreement contained implied expectations that the arbitrator would be able to award punitive damages. Id. at 1214-15, 1218. Here, there is no tension to harmonize between the choice-of-law provision and the arbitration agreement because they seek the same thing-exclusive application of tribal law.
3. The Choice-of-Law Provisions Unambiguously Waive Statutory Rights and Remedies
Next, the Haynes defendants characterize the choice-of-law provisions as presumptively valid under federal precedent because plaintiffs have not shown that there is more than a "mere risk" that these provisions will prospectively waive plaintiffs' statutory rights and remedies. MTC 5-6; Reply MTC 8; relying on Green Tree Fin. Corporation-Alabama v. Randolph , 531 U.S. 79, 91, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000). In Green Tree , the plaintiff argued only that an arbitration agreement that was silent as to attorney fees introduced a risk that a party would be unable to recover those fees and that this could prospectively waive their ability effectively vindicate their claims. Id. The Court determined that this was too speculative. Id. Defendants also cite the Fourth Circuit's decision in In re Cotton Yarn Antitrust Litig. , 505 F.3d 274 (4th Cir. 2007). There, plaintiffs argued that a clause preventing joinder of defendants prospectively waived their statutory rights but failed to produce any evidence showing the cost of proceeding individually against defendants or demonstrating how that cost would prevent them from pursuing their claims. Id. 285.
The loan agreements at issue are readily distinguishable because they present more than mere risk that the plaintiffs may be unable to effectively vindicate their statutory rights. As repeatedly noted by courts in analogous cases, the arbitration agreements at hand "purport[ ] to renounce wholesale the application of any federal law to the plaintiffs' federal claims." Hayes , 811 F.3d at 673 ; see also Dillon , 856 F.3d at 336 ("Great Plains purposefully drafted the choice of law provisions in the arbitration agreement to avoid the application of state and federal consumer protection, laws."); Rideout v. CashCall, Inc. , Case No. 2:16-cv-02817-RFB-VCF, 2018 WL 1220565, at *7 (D. Nev. Mar. 8, 2018) ("[T]he arbitration clause [is] unenforceable because it seeks to effect a prospective waiver of federal statutory rights."). The harm to plaintiffs, who seek to bring state and federal statutory claims against the Haynes defendants, is more than speculative. It is practically guaranteed by the terms of the agreements.
According to the Haynes defendants, risk of waiver should not make the agreements unenforceable because if this issue is submitted to an arbitrator, the arbitrator may decide not to enforce the tribal choice-of-law provision. Reply MTC 8. According to defendants, the arbitrator will be free to "conduct a choice-of-law analysis identical to the one this Court would be called upon to perform." But this strains credulity. The very terms of the arbitration agreements state that the arbitrator "shall apply Tribal Law and the terms of this Agreement, including this Agreement to Arbitrate and the waivers included herein." GPL Agreement 7; Plain Green Agreement 17. The defendants do not explain how an arbitrator might conduct a choice-of-law analysis that would result in a decision not to apply tribal law or what source of law would then be applied.
Relatedly, defendants argue that while the Court recognized the prospective waiver doctrine, it has "always declined" to apply it to invalidate the arbitration agreement at issue. MTC 5. As noted, numerous circuit courts and district court have persuasively applied the doctrine with respect to materially similar tribal loan agreements. Defendants note that choice-of-law provisions have been upheld, even where provisions mandated the application of foreign law to the exclusion of domestic law. MTC 7; see Roby v. Corp. of Lloyd's , 996 F.2d 1353, 1360 (2nd Cir. 1993) ("It defies reason to suggest that a plaintiff may circumvent forum selection and arbitration clauses merely by stating claims under laws not recognized by the forum selected in the agreement."). That said, "[w]ere there no subsequent opportunity for review and were we persuaded that 'the choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party's right to pursue statutory remedies ... we would have little hesitation in condemning the agreement as against public policy.' " Vimar Seguros y Reaseguros v. M/V Sky Reefer , 515 U.S. 528, 540, 115 S.Ct. 2322, 132 L.Ed.2d 462 (1995) (quoting Mitsubishi Motors , 473 U.S. 614 at 637 n.19, 105 S.Ct. 3346, 87 L.Ed.2d 444 ).
Finally, defendants allege that the arbitration agreements cannot be a prospective waiver because "this court will retain jurisdiction over this case and will be the ultimate arbiter of whether the arbitration complies with the [FAA]." Reply MTC 9. But 9 U.S.C. §§ 9 and 10, which defendants explicitly cite, state that the court specified by the parties in an arbitration agreement to confirm an award shall maintain jurisdiction over the matter. Here, under the terms of the agreements, the Tribal courts are to confirm arbitration awards. GPL Agreement 7; Plain Green Agreement 17. There is no basis for the defendants to say that under the FAA, this court retains jurisdiction based on the terms of the agreements. Further, the agreements specify that "[a]s an integral component of accepting this Agreement, you irrevocably consent to the exclusive jurisdiction of the Tribal courts for purposes of this Agreement" and "[t]he parties will have the right to judicial review in a Tribal court." GPL Agreement 7; Plain Green Agreement 17. Defendants' argument regarding the ongoing jurisdiction of this court undermines the terms they are ultimately trying to enforce.
In short, defendants have not distinguished the materially similar language in the GPL and Plain Green choice-of-law and arbitration agreements from the language addressed by the numerous courts identified above that have struck down the arbitration agreements as unenforceable prospective waivers. I will follow them and refuse to enforce the accompanying delegation clauses.
4. Tribal Laws Do Not Provide Remedies for Plaintiffs' Statutory Claims
Finally, defendants maintain that the Chippewa Cree and the Otoe-Missouria tribes provide a remedy to plaintiffs. Reply MTC 7. The defendants contend that "[p]laintiffs do not identify any claims for which they would not be able to obtain at least some relief in arbitration." Id. (emphasis in original). But in the choice-of-law cases the defendants cite, the disputes were to be arbitrated under the laws of countries with demonstrably robust legal and court systems. See M/S Bremen v. Zapata Off-Shore Co. , 407 U.S. 1, 8, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) (British choice-of-law provision enforced despite British law as applied being less favorable to domestic plaintiff); Roby v. Corp. of Lloyd's , 996 F.2d 1353, 1360 (2nd Cir. 1993) (British choice-of-law provision enforced).
In Rideout v. CashCall, Inc. , the defendant acknowledged that the federal statutory rights that plaintiff sought to enforce did not exist under Cheyenne Sioux tribal law and "it could not identify analogous rights that would exist." 2018 WL 1220565, Case No. 2:16-cv-02817-RFB-VCF, at *6 (D. Nev. Mar. 8, 2018). Here, similarly, the Haynes defendants have not identified any provision of the allegedly applicable tribal laws that would enforce the state and federal statutory rights of plaintiffs or analogous rights arising under tribal law.
In conclusion, the choice-of-law provisions regarding the lenders and the loan agreements, in conjunction with arbitration agreement provisions restricting the law the arbitrator may apply, create an unambiguous waiver of rights and the agreements and are therefore unenforceable. I do not reach whether there is a clear and unmistakable delegation clause because that would not change the fact that the arbitration agreement is unenforceable as an unambiguous prospective waiver.
Accordingly, the motion to compel arbitration is DENIED. The arbitration agreements are unenforceable prospective waivers.
II. MOTION TO STAY
The Haynes defendants move to stay in light of a first-filed case, Gingras v. Victory Pork Capital Advisors, LLC, et al. , No. 5:17-cv-233 (D. Vt.) ("Gingras "), arguing that the parties and claims at issue in the two actions are substantially the same and that equitable considerations support a stay, at least until the issue of class certification is decided in Gingras. MTS 1; Reply MTS 6. Plaintiffs respond that the cases are not sufficiently similar and that even if they were, equitable considerations militate against granting a stay because Gingras has been repeatedly and is presently stayed and there is no current schedule to determine class certification. Oppo. MTS 1.
A. Legal Standard
The first-to-file rule promotes judicial efficiency by allowing a district court to transfer, stay, or dismiss a case when a complaint involving the same parties and the same issues has already been filed in another district. Alltrade, Inc. v. Uniweld Products, Inc. , 946 F.2d 622, 628 (9th Cir. 1991), The elements of the rule are: (i) chronology of the lawsuits; (ii) similarity of the parties; and (3) similarity of the issues. Kohn Law Grp., Inc. v. Auto Parts Mfg. Mississippi, Inc. , 787 F.3d 1237, 1240 (9th Cir. 2015). "The most basic aspect of the first-to-first rule is that it is discretionary," and a court may decide not to apply it based on "reasons of equity." Alltrade , 946 F.2d at 628. Those equitable exceptions include "bad faith, anticipatory suit, and forum shopping." Id. (citations omitted).
B. Chronology
Gingras, et al. v. Victory Park Capital Advisors, et al. , No. 5-17-cv-233 (D. Vt.), is a putative class action on behalf of consumers who took out loans through Plain Green. Oppo. MTS, Exh. A ("Gingras Compl.") at ¶ 2 [Docket 101-1]. The Gingras Complaint names Haynes Investments, but not Haynes personally, as a defendant. Id. at ¶ 13. The loan agreements at issue contain arbitration agreements with the same terms as those at issue here. Id. at ¶¶ 173-190. Plaintiffs in Gingras allege violations of (1) Electronic Funds Transfer Act, 15 U.S.C. § 1693k ; (2) Vermont Consumer Fraud Act, 8 V.S.A. § 2201 ; (3) RICO; and (4) unjust enrichment. ¶¶ 214-267.
The parties do not dispute that Gingras v. Victory Park Capital Advisors, LLC, et al. , No. 5:17-cv-233 (D. Vt.) ("Gingras ") was filed on November 21, 2017, approximately three months before this action was filed. The chronology requirement of the first-to-file rule is met.
C. Similarity of Parties
Only "substantial similarity"-not "exact identity of the parties"-is needed to apply the first-to-file rule. Kohn Law Grp., Inc. v. Auto Parts Mfg. Mississippi, Inc. , 787 F.3d 1237, 1240 (9th Cir. 2015). In analyzing class actions, most courts approach this factor by comparing the classes, not their representatives, even when certification has not yet taken place. See Adoma v. Univ. of Phoenix, Inc. , 711 F.Supp.2d 1142, 1147 (E.D. Cal. 2010) ; Hill v. Robert's Am. Gourmet Food, LLC , No. 13-CV-00696-YGR, 2013 WL 3476801, at *3 (N.D. Cal. July 10, 2013) (citing this approach as "the more widely accepted rule").
There is some overlap in the putative classes because prospective plaintiffs in Gingras include California consumers who obtained loans from Plain Green, like Browne here. But the class of California consumers who obtained loans from GPL, like Brice and Novorot, are not included in and would not be represented in the putative class of national consumers in Gingras because Gingras concerns only loans made by Plain Green., Oppo. MTS, Ex. A ("Gingras Compl.") at ¶ 191.
The majority of cases on which defendants rely are inapposite because they concern situations where "the proposed class and claims [were] essentially identical to those in the [first-filed complaint]." Ortiz v. Panera Bread Co. , Civil Action No. 1:10CV1424, 2011 WL 3353432, at *2 (E.D. Va. Aug. 2, 2011). In Panera , two cases were filed against Panera alleging that a class of managers was misclassified and denied proper compensation and the two classes were practically identical. See also Peak v. Green Tree Fin. Serv. Corp. , No. 00-0953 SC, 2000 WL 973685, at *1 (N.D. Cal. Jul. 7, 2000) (SC) ("Plaintiffs allegations defining the proposed class are identical to [the first-filed suit]."); Baatz v. Columbia Gas Transmission, LLC , 814 F.3d 785, 791 (6th Cir. 2016) ("The [plaintiffs] undoubtedly would be members of the [first-filed suit] class if it were certified."); Intersearch Worldwide Ltd. v. Intersearch Group, Inc. , 544 F.Supp.2d 949, 952 (N.D. Cal. 2008) (SBA) (parties in first and second suits were identical). While there is partial overlap here, there is not substantial overlap between the putative classes.
As to the defendants, while Haynes Investments is a defendant in this suit as well as in Gingras , Haynes as an individual is not. Gingras Compl. ¶¶ 20-33. This is significant because here plaintiffs advance two theories of Haynes' involvement with the rent-a-tribe scheme: (i) that "Haynes played a critical role in finding a new bank to partner with Plain Green and Great Plains," and (ii) that Haynes "also acted as the liaison between Think Finance and the Tribes." Compl. ¶¶ 96-97. These allegations, implicating Haynes personally, are missing from Gingras .
Relatedly, Gingras concerns only loans received through Plain Green, whereas this suit concerns loans received through Plain Green and GPL. The Haynes defendants highlight that plaintiffs voluntarily dismissed GPL from this suit to show that this suit, like Gingras , chiefly concerns loans made by Plain Green. Reply MTS 4. According to them, "[t]he idea that Plaintiffs can still prosecute claims pertaining to Great Plains is without merit and thus is not a valid basis to distinguish this case from Gingras." Id. But the Haynes defendants do not move to dismiss the claims of Brice or Novorot on these grounds or otherwise challenge the inclusion of plaintiffs with GPL loans in this action. Indeed, they expressly rely on the GPL Agreement language in support of their motion to compel arbitration.
Finally, defendants imply that plaintiffs are attempting to game the system by "selectively add[ing] or subtrac[ting] defendants from second-filed actions so as to avoid the first-to-file doctrine." Reply MTS 4. They rely on Kohn Law Group, Inc. v. Auto Parts Mfg. Mississippi. Inc. , 787 F.3d 1237 (9th Cir. 2015). However, in Kohn , a law firm brought an action against a property owner on behalf of a client whom the owner was suing in a first-filed interpleader action, but left out the other party sued in the interpleader action. Id. at 1238. This is distinguishable at least insofar as there, the second-filed suit omitted a party that was present in the first suit, whereas here the plaintiffs add Haynes individually in order to pursue a theory that he was personally involved and personally liable for his conduct with respect to services provided to both Plain Green and GPL. The Kohn court's conclusion that a plaintiff could not "skirt the first-to-file rule merely by omitting one party from a second lawsuit" is not applicable here.
There is undoubtedly some overlap between the parties in the two cases, but that overlap is not so significant as to mandate a stay here.
D. Similarity of Issues
Under this prong, "[t]he issues in both cases also need not be identical." Kohn Law Grp., Inc. v. Auto Parts Mfg. Mississippi, Inc. , 787 F.3d 1237, 1240 (9th Cir. 2015). Rather, this factor requires a "similarity in allegations [that] would require the court to make similar determinations" for the first-to-file rule to apply. Adoma , 711 F.Supp.2d at 1148. The plaintiffs in Gingras allege claims under (1) the Electronic Funds Transfer Act, 15 U.S.C. § 1693k ; (2) Vermont Consumer Fraud Act; 8 V.S.A. § 2201 ; (3) RICO; and (4) unjust enrichment. Plaintiffs in this case allege claims under: (1) RICO; (2) California state usury laws; and (3) unjust enrichment.
The most significant potential for overlap between the claims is the RICO claim alleged in both cases. The RICO claims require determining whether the defendants collected unlawful debt, which RICO defines as debt "which is unenforceable under state or federal law ... because of the laws relating to usury ... [and] which is incurred in connection with" usurious lending. 18 U.S.C. § 1961(6). Whether or not the Vermont case will, as part of the RICO claim, have to analyze California's usury law is not certain and depends on whether a class covering California consumers will be certified in Gingras.
In sum, as to similarity of parties and issues, there is some overlap between the putative classes and defendants, and there may be some overlap (class certification dependent) on at least the RICO claim based on California law. However, this similarity is not so significant that a stay in this action is warranted, especially considering the equitable considerations discussed below.
E. Equitable Exceptions
"The most basic aspect of the first-to-file rule is that it is discretionary," and a court may decide not to apply it based on "reasons of equity." Alltrade, Inc. v. Uniweld Products, Inc. , 946 F.2d 622, 628 (9th Cir. 1991). While bad faith, anticipatory suit, and forum shopping are common equitable considerations, "[t]here are a variety of equitable circumstances under which courts have declined to apply the first-to-file rule." Guthy-Renker Fitness, L.L.C. v. Icon Health & Fitness, Inc. , 179 F.R.D. 264, 270 (C.D. Cal. 1998) ; see, e.g., Church of Scientology of Cal. v. U.S. Dept. of Army , 611 F.2d 738, 750 (9th Cir. 1979) (overruled on other grounds by Animal Legal Def. Fund v. U.S. Food & Drug Admin. , 836 F.3d 987 (9th Cir. 2016) ) (declining to apply rule where second-filed action had progressed to judgment, appeal, and remand); Ward v. Follett Corp. , 158 F.R.D. 645, 648 (N.D. Cal. 1994) (court may relax rule if balance of convenience weighs in favor of second-filed action); Sorenson v. Big Lots Stores, Inc. , 638 F.Supp.2d 1219, 1221 (S.D. Cal. 2009) (declining to apply rule because of untimely service in first-filed action).
The most significant consideration weighing against a stay in this case is that the Gingras case has itself been stayed, without a concrete timeframe for that case resuming and with no class certification schedule. Given the differences between these cases and that there is no concrete timeframe (much less a reliable estimate) for how long defendants' requested stay will last, equitable considerations merit proceeding with this case.
The Haynes defendants' Motion to Stay is DENIED.
III. MOTION TO DISMISS
The Haynes defendants also move to dismiss. They argue that the allegations in the Complaint do not establish this court's personal jurisdiction over them. They also contend that plaintiffs have not or cannot state their claims and those claims must be dismissed.
A. Legal Standard
1. Personal Jurisdiction
Under Rule 12(b)(2) of the Federal Rules of Civil Procedure, a defendant may move to dismiss for lack of personal jurisdiction. The plaintiff then bears the burden of demonstrating that jurisdiction exists. Schwarzenegger v. Fred Martin Motor Co. , 374 F.3d 797, 800 (9th Cir. 2004). The plaintiff "need only demonstrate facts that if true would support jurisdiction over the defendant." Ballard v. Savage , 65 F.3d 1495, 1498 (9th Cir. 1995) ; Fields v. Sedgwick Assoc. Risks, Ltd. , 796 F.2d 299, 301 (9th Cir. 1986). "Although the plaintiff cannot simply rest on the bare allegations of its complaint, uncontroverted allegations in the complaint must be taken as true." Schwarzenegger , 374 F.3d at 800 (citations omitted). Conflicts in the evidence must be resolved in the plaintiff's favor. Id. "Where, as here, the motion is based on written materials rather than an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional facts. In such cases, we only inquire into whether [the plaintiff's] pleadings and affidavits make a prima facie showing of personal jurisdiction." Caruth v. International Psychoanalytical Ass'n , 59 F.3d 126, 128 (9th Cir. 1995) (internal punctuation and citation omitted).
There are two types of personal jurisdiction, general and specific. Fields , 796 F.2d at 301. General jurisdiction exists where a nonresident defendant's activities within a state are "substantial" or "continuous and systematic." Data Disc, Inc. v. Systems Technology Associates, Inc. , 557 F.2d 1280, 1287 (9th Cir. 1977). In the absence of general jurisdiction, a nonresident defendant may be sued in the forum if specific jurisdiction exists. Id. Specific jurisdiction arises when a defendant's specific contacts with the forum give rise to the claim in question. Helicopteros Nacionales de Columbia S.A. v. Hall , 466 U.S. 408, 414-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). "A court exercises specific jurisdiction where the cause of action arises out of or has a substantial connection to the defendant's contacts with the forum." Glencore Grain Rotterdam BV v. Shivnath Rai Harnarain Co. , 284 F.3d 1114, 1123 (9th Cir. 2002). The Ninth Circuit employs a three part test to determine whether there is specific jurisdiction over a defendant:
(1) the non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;
(2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.
Schwarzenegger , 374 F.3d at 802.
The first prong may be satisfied by "purposeful availment of the privilege of doing business in the forum; by purposeful direction of activities at the forum; or by some combination thereof." Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme , 433 F.3d 1199, 1206 (9th Cir. 2006). In tort cases, courts typically inquire whether a defendant "purposefully directs his activities at the forum state, applying an 'effects' test that focuses on the forum in which the defendant's actions were felt, whether or not the actions themselves occurred within the forum." Id. In contrast, in contract cases, courts typically inquire whether a defendant "purposefully avails itself of the privilege of conducting activities or consummates a transaction in the forum, focusing on activities such as delivering goods or executing a contract." Id. (citation and internal punctuation omitted). However, either test can be applied to either tort or contract cases. See, e.g., Language Line Servs., Inc. v. Language Servs. Ass'n, Inc. , No. 10-cv-02605 JW, 2010 WL 5115671, at *3 (N.D. Cal. Dec. 9, 2010) (applying "effects" test to contract claims because the focus of the plaintiff's complaint was on the defendant's tortious conduct); Sher v. Johnson , 911 F.2d 1357, 1362 (9th Cir. 1990) (applying purposeful availment test to tort claims that arose out of parties' contractual relationship).
The plaintiff bears the burden of satisfying the first two prongs of the test. Schwarzenegger , 374 F.3d at 802. If the plaintiff succeeds in satisfying both of the first two prongs, the burden then shifts to the defendant to "present a compelling case" that the exercise of jurisdiction would not be reasonable, Id.
2. Failure to State a Claim
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when the plaintiff pleads facts that "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). There must be "more than a sheer possibility that a defendant has acted unlawfully." Id. While courts do not require "heightened fact pleading of specifics," a plaintiff must allege facts sufficient to "raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 570, 127 S.Ct. 1955.
In deciding whether the plaintiff has stated a claim upon which relief can be granted, the court accepts the plaintiff's allegations as true and draws all reasonable inferences in favor of the plaintiff. Usher v. City of Los Angeles , 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig. , 536 F.3d 1049, 1055 (9th Cir. 2008).
B. Personal Jurisdiction
The Haynes defendants argue that the allegations in the Complaint do not support a "prima facie showing" of personal jurisdiction over Haynes (a resident of Texas) individually and over Haynes Investments (a Texas limited liability company). While contending that their allegations alone were sufficient, plaintiffs also sought and I granted their request for access to discovery from other related proceedings regarding the Haynes defendants' activities. Dkt. No. 104. Plaintiffs argue that their allegations supplemented by this new evidence demonstrate that specific jurisdiction exists over both Haynes and Haynes Investments. Dkt. No. 107.
The essence of the Haynes defendants' jurisdiction challenge - made solely in the motion to dismiss and not supported by any declaration - is that plaintiffs have not alleged facts sufficient to convey specific jurisdiction in California over both Haynes individually as well as Haynes' investments. MTD (Dkt. No. 86) at 4-8. The Haynes defendants argue generally that the only acts complained of are acts by others; namely the acts taken by the Native American lenders (Plain Green and GPL) who made and collected on the loans and service providers, such as Think Finance, who were controlling the lenders.
To the contrary, the Complaint makes numerous allegations - which are uncontested - about the Haynes defendants being responsible for the inception, direction, initial funding, operations (at least with respect to arranging for critical components of the loan process), and ongoing consulting necessary to the continued operation of the loan process. Those allegations include, with respect to the company: (1) Haynes Investments provided the initial capital to fund the operations of Plain Green-it has claimed its "Native American investments have successfully monetized the tribal advantages of sovereignty to enhance yield while substantially reducing risk," Compl. ¶ 18; (2) Haynes Investments "provided substantial capital used to make high interest loans to consumers and participated in the affairs of the enterprise," id. ¶ 5; (3) Haynes Investments agreed to "provide funding to the Tribe to enable it to make each of the Loans" and to fund Plain Green's bank account with "sufficient monies to fund one business day of Loans based upon the average Loan volumes for the preceding month," id. ¶ 50; (4) Haynes Investments provided funds to Think Finance which could only be used to fund loans originated in the name of Plain Green, id. ¶ 51; (5) Haynes Investments then received back 99% of the funds they provided but also 5% interest on the money loaned to the Tribe, and 1% of the revenue collected on the loans as a "referral" fee, id. ¶ 53; and, (6) due to the lucrative returns, Haynes Investments "increased its investment in Plain Green on multiple occasions from April 2011 through February 2015, resulting in substantial returns to Haynes Investments and Mr. Haynes." Id. ¶ 86.
As to Haynes personally, plaintiffs plead that: (1) he participated in the loan enterprise and signed each of the agreements used to fund the illegal loans, id. ¶ 19; (2) he personally made "the decision to invest and reinvest in the enterprise" and "actively participated in the affairs of the enterprise and helped design the financial and operational structure of the rent-a-tribe scheme," id. ¶ 5; (3) "Haynes used his connections to assist the enterprise's efforts to collect unlawful debt," by helping the enterprise obtain a bank willing to process payments through the Automated Clearing House Network (the "ACH Network"), an electronic payment processing system regulated by the National Automated Clearing House Association ("NACHA"), id. ¶ 88; (4) after Plain Green and GPL were targeted by state and federal regulators (and banks ceased processing the debits and credits on their loans), "Haynes played a critical role in finding a new bank to partner with Plain Green and Great Plains," id. ¶¶ 96-97; and, (5) "based on his rapport with the Tribes through prior transactions, Mr. Haynes also acted as the liaison between Think Finance and the Tribes." Id. ¶ 98.
The discovery plaintiffs have confirms that: (1) Haynes took credit for connecting Think Finance to the Chippewa Cree; (2) that the Haynes defendants agreed to provide "ongoing consulting services" defined as services "in connection with implementing and operating the" loan processes; (3) Haynes reviewed a recommended tribal code forwarded by Think Finance; (4) the Haynes defendants assisted the Chippewa Cree tribe with the purchase of the Plain Green website; (5) Haynes Investments funded 100% of all Plain Green loans; (6) Haynes actively helped secure ACH processors for the lending process in 2013 and 2014, as well as debit/credit card processors; (7) and Haynes was intimately involved with creating the "complete business ready package" to enable tribes to carry out the scheme. See MTD Oppo. (Dkt. No. 111-4) at 4-6.
As to loans allegedly "funded" (or more perhaps more aptly, "enabled") by the Haynes defendants in California, plaintiffs do not rely on any hard figures showing how many California loans were funded by Plain Green and GPL during the relevant time period. That is presumably because that information has been marked confidential by non-party Think Finance. Instead, using figures from a similar lawsuit, plaintiffs assert that the Haynes defendants can be assumed to have funded or enabled the funding of loans in California far in excess of the $ 22 million dollars of loans they funded in the much-less populous state of Virginia, MTD Oppo. 4, n.2.
These allegations, as supplemented by the evidence, are adequate to make a prima facie case for exercising personal jurisdiction over the Haynes defendants, who are alleged to be responsible for the creation and implementation of the allegedly fraudulent and illegal scheme as well as funders of millions of dollars in loans in California. These allegations suffice to make a prima facie showing of "intentional acts" "expressly aimed" at California sufficient to establish both the "purposeful direction" and "purposeful availment" tests for specific jurisdiction.
Given the size and commercial value of the California market, plaintiffs assert that defendants cannot claim ignorance that their loans would be secured by California consumers. The exercise of jurisdiction over the Haynes defendants is reasonable in light of the Haynes' defendants' alleged immense profit from loans secured by California consumers, California's significant interest in having its usury rates applied to California consumers, the miniscule burden to defendants of litigating here, and that the only other law defendants contend applies to this dispute (tribal law) is a sham attempt to avoid state usury laws.
Absent evidence to the contrary produced by Haynes defendants, I find plaintiffs' allegations sufficient to establish personal jurisdiction in California over the Haynes defendants. The personal role of Haynes and the corporate role of Haynes Investments in the scheme are alleged in detail. While the specific connection of those intentional acts to California is weaker, given that defendants have come forward with no evidence regarding the actual number of loans generated by Plain Green or GPL in. California, and the apparently reliable source (discovery in another case regarding loans in Virginia) for plaintiffs' unrebutted estimate (far in excess of $ 22 million in loans), there is a basis to find that the Haynes defendants both directed their activities to California and purposefully availed themselves of the large market for loans in California. The purpose of the loan schemes allegedly orchestrated by the Haynes defendants and others was to avoid usury laws, like California's, in order to make more money off of consumer loans, like the ones secured by Brice, Browne, and Novorot.
As to the third prong of the specific jurisdiction test, the Haynes defendants argue it would be unreasonable to exercise jurisdiction over them in California because the making and direct funding of the loans in California were not undertaken by the Haynes defendants and Texas, where the Haynes defendants are located, is more convenient for them and not inconvenient to plaintiffs, as plaintiff Browne instituted an adversary proceeding against Think Finance in Texas mere months before filing this suit. However, the interests of California in protecting low income consumers (as plaintiffs assert they are) and in applying its usury laws far outweigh the interests of Texas as the residence of the defendants. It is not unreasonable to require defendants to litigate this case here.
For the forgoing reasons, I DENY the Haynes defendants' motion to dismiss for lack of personal jurisdiction.
C. Failure to State a Claim
The Haynes defendants also move to dismiss for failure to state a claim. They assert that tribal law applies (undermining both the asserted state law claims as well as the RICO claim) and that plaintiffs have failed to state their RICO, usury, and unjust enrichment claims.
1. Choice of Law
The Haynes defendants argue that the choice-of-law provisions in the Plain Green and GPL loan contacts govern, meaning that tribal law must be applied to plaintiffs' claims. Under that theory, the Haynes defendants contend that the California usury and unjust enrichment claims cannot be stated and the RICO claim fails because the interest rate charged by the tribes was not "at least twice the enforceable rate" permitted under the laws of the tribes. See 18 U.S.C. § 1961(6) (defining an "unlawful debt" under RICO).
Plaintiffs raise several good reasons why the tribal choice-of-law provisions should not be enforced. First, similar to the arguments made in opposing the motion to compel arbitration, plaintiffs assert that the choice-of-law provisions mandating tribal law effectively deprive plaintiffs of their statutory rights and remedies and are therefore unenforceable. In support, plaintiffs rely on numerous decisions from other circuits and district courts interpreting internet loan agreements with materially similar language requiring application of tribal law and concluding - mostly in the context of holding the arbitration agreements unenforceable because the choice-of-law provisions were unacceptable prospective waivers - that the tribal choice-of-law provisions are an impermissible prospective waiver, See, e.g., Dillon v. BMO Harris Bank, N.A. , 856 F.3d 330, 336 (4th Cir. 2017) (rejecting defendant's attempt "to rewrite the unenforceable foreign choice of law provision in order to save the remainder of the arbitration agreement"); Hayes v. Delbert Services Corp. , 811 F.3d 666, 675 (4th Cir. 2016) (in the context of finding arbitration agreement unenforceable, noting that "[i]nstead of selecting the law of a certain jurisdiction to govern the agreement, as is normally done with a choice of law clause, this arbitration agreement uses its 'choice of law' provision to waive all of a potential claimant's federal rights,"); Rideout v. CashCall, Inc. , 16-02817, 2018 WL 1220565, at *6 (D. Nev. Mar. 8, 2018) (in finding arbitration agreement unenforceable, holding that, "Plaintiff cannot, based upon the facts of this case, waive substantive federal rights through a choice of law or forum selection clause."); see also Titus v. ZestFinance, Inc. , 18-5373 RJB, 2018 WL 5084844, at *5 (W.D. Wash. Oct. 18, 2018) ("the arbitration agreement here uses a choice of law provision, which, when construed with the other provisions in the Loan Agreement, prospectively waives most federal statutory remedies. Although the language in this case is not as specific as it was in Hayes , it implicitly achieves the same results.").
Defendants do not address or distinguish those opinions or otherwise argue why the tribal choice-of-law provisions are enforceable despite their attempt to effect a waiver of statutory rights and remedies in their motion to dismiss. instead, they argue only that plaintiffs have failed to identify any "specific" federal right or remedy that they are precluded from pursuing. That alleged failure does not save an otherwise wholly unenforceable choice-of-law provision. I see no reason to depart from the cases discussed above.
The choice-of-law provisions in the agreements at issue are unenforceable prospective waivers. Therefore, the Haynes defendants' motion to dismiss based on choice-of-law is DENIED.
2. RICO
The Haynes defendants next move to dismiss plaintiffs' RICO claim. They argue that plaintiffs fail to plead proximate causation between the Haynes defendan