Nicole Swiger v. Joel Rosette, 989 F.3d 501

Swiger took a $1,200 online loan from Plain Green (a lender owned/organized under the Chippewa Cree Tribe) at an effective interest rate >350% and signed a loan contract that (1) invoked tribal law, (2) preserved tribal sovereign immunity, and (3) contained a broad arbitration clause including a delegation provision (arbitrator decides validity/enforceability/scope).
Swiger sued Rees (alleged mastermind at Think Finance) for usury, RICO, and consumer-protection violations, and sought a declaration that Plain Green’s arbitration clauses were void and unenforceable. She dismissed the Plain Green defendants, leaving Rees as the sole defendant.
Rees moved to stay and compel arbitration, invoking the delegation clause; the district court denied the motion, relying on a Second Circuit decision (Gingras) and collateral estoppel.
On appeal, Rees argued the district court should have enforced the delegation clause and sent threshold arbitrability questions to an arbitrator.
The Sixth Circuit held that the FAA applies (so appellate jurisdiction exists), the loan agreement contained a clear-and-unmistakable delegation clause, and Swiger forfeited any specific challenge to that delegation clause by failing to raise it.
The Sixth Circuit reversed and remanded with instructions to stay the case pending arbitration.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Appellate jurisdiction under the FAA §16 given contract’s tribal-law choice	FAA doesn’t apply because the parties chose tribal law and displaced the FAA	FAA still applies for §16 jurisdiction; choice-of-law doesn't eliminate FAA reviewability	FAA §16 applies; court has interlocutory jurisdiction (Arthur Andersen principle)
Whether the delegation clause requires an arbitrator to decide arbitrability	The whole arbitration agreement (including arbitrability) is unconscionable and unenforceable	The delegation clause clearly and unmistakably delegates arbitrability to an arbitrator	Delegation clause is clear; arbitrator must decide arbitrability
Whether plaintiff’s general attacks on the arbitration agreement are sufficient	General challenge to enforceability of the agreement suffices to prevent enforcement	Plaintiff failed to specifically challenge the delegation clause and thus forfeited that argument	Because Swiger never specifically challenged the delegation clause, she forfeited that issue
Whether a nonsignatory (Rees) can invoke the arbitration agreement	Rees lacks standing/enforceability because he didn’t sign the agreement	Nonsignatory enforcement is an enforceability/arbitrability question delegated to arbitrator	Whether a nonsignatory can enforce is a question of arbitrability for the arbitrator

Arthur Andersen LLP v. Carlisle, 556 U.S. 624 (2009) (§16 jurisdiction turns on category of order appealed, not merits)
Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010) (parties may delegate gateway arbitrability questions; delegation requires clear and unmistakable evidence)
Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524 (2019) (arbitrator must decide arbitrability even if dispute appears “wholly groundless”)
First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) (standard for who decides arbitrability and delegation clarity)
Blanton v. Domino’s Pizza Franchising LLC, 962 F.3d 842 (6th Cir. 2020) (nonsignatory enforcement can be a question of arbitrability delegated to arbitrator)
Behrens v. Pelletier, 516 U.S. 299 (1996) (focus on category of order for interlocutory appeals)
Nestle Waters N. Am., Inc. v. Bollman, 505 F.3d 498 (6th Cir. 2007) (de novo review of denial to compel arbitration)
Stout v. J.D. Byrider, 228 F.3d 709 (6th Cir. 2000) (court ordinarily decides whether parties agreed to arbitrate)