Abstract
First, this Comment will provide pertinent background on the Federal Arbitration Act (“FAA”) to better understand the intent of the legislation and how it has historically been applied. Second, this Comment will seek to not only explain the underlying cause of the circuit split but also offer a framework for the proper order of analysis in situations with both a delegation claim and an unenforceability claim. Specifically, this Comment will argue that although a delegation clause’s enforceability must be analyzed separately from the entire agreement’s enforceability, the delegation clause must be examined within the context of the arbitration agreement to ensure a plaintiff can truly pursue their rights, rather than be forced into a rigged arbitration game.
This Comment will then recommend that future courts follow the example set by the Second, Third, and Fourth Circuits. Each found that agreements that waive a borrower’s federal statutory rights are unenforceable. Additionally, this Comment will argue that should the Supreme Court take on a future appeal by the Brice plaintiffs, it should reject the Ninth Circuit’s reasoning and bolster the prospective waiver doctrine. Finally, this Comment will set forth a framework to alter current FAA rules regarding arbitration between a company and a consumer.