Swiger v. Rosette, No. 19-2470 (6th Cir. 2021) [click for opinion]

Plaintiff Nicole Marie Swiger took out a $1,200 loan with an interest rate exceeding 350% from online lender Plain Green LLC, an entity organized under the laws of the Chippewa Cree Tribe of the Rocky Boy’s Reservation, Montana. Swiger claimed that Defendant Kenneth Rees and his company, Think Finance LLC, had used Plain Green and its benefits of tribal sovereign immunity as a front to shield them from state and federal law. As part of the loan agreement, Swiger had agreed to binding arbitration under tribal law subject to review only in tribal court. She also agreed to a “delegation clause” to arbitrate “any issue concerning the validity, enforceability, or scope” of the agreement.

Swiger filed suit in Michigan court, claiming that the loan was illegal under Michigan and federal law, and violated the Racketeer Influenced and Corrupt Organizations Act as well as consumer protection laws. Swiger demanded actual and treble damages, an injunction preventing Defendants from further such violations, and a judgment declaring the arbitration agreement void and unenforceable.

Defendant Rees filed a motion to stay the case in favor of arbitration, arguing that, because Swiger had also agreed to the delegation clause, questions concerning the enforceability of the arbitration agreement were subject to arbitration. The district court denied the motion, maintaining that the enforceability of the arbitration clause had already been litigated in the Second Circuit, where Defendant Rees was a party to the dispute, and thus collaterally estopped from relitigating the issue. Defendant Rees appealed the district court’s decision, arguing that it had erred by disregarding the delegation clause.

On appeal, the Sixth Circuit reversed and remanded with instructions to stay the case pending arbitration. It held that the district court had erred in its decision to disregard the delegation clause because Swiger had failed to specifically challenge the clause. According to the court, “merely challenging the entire agreement will not suffice.” Rather, Swiger needed to challenge the delegation clause in order for the court to consider its enforceability.

Notably, Swiger also argued that Defendant Rees did not have standing to invoke the delegation clause because he was not a signatory to the arbitration agreement with Plain Green. However, the Court held that Swiger’s arbitration agreement delegated questions of arbitrability to an arbitrator, which included the issue of whether Defendant Rees had standing to enforce Swiger’s arbitration agreement with the lender.