Case Information
*2 Before CARNES, PRYOR, and KRAVITCH, Circuit Judges.
PER CURIAM:
Maxine Given filed a putative class action against Manufacturers and Traders Trust Company (M&T Bank), alleging that M&T Bank improperly charged its checking account customers overdraft fees. The district court denied M&T Bank’s renewed motion to compel arbitration, finding that Given’s claims are not within the scope of the parties’ arbitration agreement. The bank appeals that denial, contending that the arbitration agreement explicitly assigns to an arbitrator the decision about whether Given’s claims are within the scope of the arbitration agreement.
I.
M&T Bank provides debit cards or ATM cards to its checking account customers. When one of those customers makes a debit card purchase or an ATM withdrawal for an amount that exceeds the amount in the customer’s checking account, the bank charges that customer an overdraft fee of $37.
Given, a Maryland resident, is one of M&T Bank’s checking account customers. After she was charged overdraft fees of $370, she filed a putative class action against M&T Bank in Maryland federal district court, alleging that the bank had improperly “manipulate[d] and reorder[ed] debits and credits from highest to lowest” to increase the bank’s revenue from overdraft fees. She seeks money damages and injunctive relief for violation of the Maryland Consumer Protection Act, conversion, and breach of the implied covenant of good faith and fair dealing. She also seeks relief under the theory of unjust enrichment, claiming she is entitled to restitution, and she claims that the court should order M&T Bank to return the overdraft fees under a theory of money had and received.
Given attached to her complaint her contract with M&T Bank that governs her checking account. That contract includes an arbitration agreement that obligates her to submit “[e]ach dispute or controversy that arises out of or is related to [her checking] account . . . [to] binding arbitration.” The arbitration agreement also provides: “Any issue regarding whether a particular dispute or controversy is . . . subject to arbitration will be decided by the arbitrator. If any part of the relief request is not expressly stated as a dollar amount, the dispute or controversy will not be . . . subject to arbitration.”
M&T Bank filed a motion to compel arbitration. The case was transferred
*4
to the Southern District of Florida and consolidated with related cases for pretrial
purposes. The district court denied M&T Bank’s motion to compel arbitration,
finding that the arbitration agreement is unconscionable under Maryland law, and
M&T Bank appealed. After we heard oral argument, the Supreme Court decided
AT&T Mobility LLC v. Concepcion, __ U.S. __,
Back in the district court, M&T Bank renewed its motion to compel arbitration. The court again denied the motion but did not reach the issue of whether the arbitration agreement is unconscionable. Instead, because Given sought, in part, injunctive relief, the court found that her claims are not within the scope of the arbitration agreement and therefore are not arbitrable. M&T Bank then filed this appeal.
II.
M&T Bank contends that the district court erred by deciding whether
Given’s claims are within the scope of the arbitration agreement, arguing that an
arbitrator should have decided that question. We review de novo the district
*5
court’s denial of a motion to compel arbitration. Ehlen Floor Covering, Inc. v.
Lamb,
“[A]rbitration is a matter of contract,” Rent-A-Center, W., Inc. v. Jackson,
__ U.S. __,
A.
The arbitration agreement provides that “[a]ny issue regarding whether a
particular dispute or controversy is . . . subject to arbitration will be decided by the
arbitrator.” That provision is an agreement to arbitrate the “gateway” question of
“whether [the arbitration agreement] covers a particular controversy.” Rent-A-
Center,
*6
Under the FAA, a delegation provision is valid, “save upon such grounds as
exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2; see
Rent-A-Center,
The terms of the delegation provision in this case provide clear and
unmistakable evidence that M&T Bank and Given manifested their intent to
arbitrate whether Given’s claims are within the scope of the arbitration agreement.
As we have mentioned, the delegation provision provides: “Any issue regarding
whether a particular dispute or controversy is . . . subject to arbitration will be
decided by the arbitrator.” Given’s claims for relief are “a particular dispute or
controversy,” and whether her claims are within the scope of the arbitration
agreement is an “issue regarding whether a particular dispute or controversy is
subject to arbitration.” Because the delegation provision encompasses any issue, it
encompasses Given’s claims for relief. See Anders v. Hometown Mortg. Servs.,
Inc.,
Given makes two arguments against compelling arbitration of the gateway
question. Neither is persuasive. First, she argues that the delegation provision is
ambiguous because it is followed by this sentence: “If any part of the relief
request is not expressly stated as a dollar amount, the dispute or controversy will
not be . . . subject to arbitration.” According to Given, that sentence not only
excludes certain claims from the scope of the arbitration agreement but also
removes from an arbitrator the decision about whether certain claims are within
the scope of the arbitration agreement. In effect, Given asks us to rewrite the
beginning of the delegation provision from “Any issue” to “Any issue, except an
issue involving whether the relief request is not expressly stated as a dollar
amount” or to “Almost any issue.” That is something we cannot do. See, e.g.,
Clancy v. King,
Second, Given argues that, because the arbitration agreement is
procedurally unconscionable, there is not clear and unmistakable evidence that she
and M&T Bank agreed to arbitrate the gateway question. A delegation provision
is severable from the rest of the arbitration agreement and must be challenged
“specifically.” See Rent-A-Center,
Under the delegation provision, therefore, the decision of whether Given’s claims are within the scope of the arbitration agreement is a decision for an arbitrator, and the district court erred in making that decision itself. [1]
B.
Given argues that we can affirm the district court’s denial of the renewed
motion to compel arbitration on the alternative ground that the arbitration
agreement as a whole is unconscionable under Maryland law. When the district
court denied M&T Bank’s first motion to compel arbitration, it was without the
benefit of the Supreme Court’s decision in Concepcion. Believing it was prudent
for the district court to reconsider its decision in light of Concepcion, we vacated
the court’s order and remanded for reconsideration. In re Checking Account
Overdraft Litig.,
III.
For the reasons we have discussed, we vacate the district court’s denial of M&T Bank’s renewed motion to compel arbitration and remand for proceedings consistent with this opinion.
VACATED AND REMANDED.
Notes
[1] In its order denying the renewed motion to compel arbitration, the district court suggested that M&T Bank waived its argument that an arbitrator must decide whether Given’s claims are within the scope of the arbitration agreement. But, as Given concedes, M&T Bank did not waive that argument because the bank has raised it throughout the litigation.