Chriss Johnson v. Jora Credit of Wisconsin, LLC

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 20, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP48 Cir. Ct. No. 2021CV548

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

CHRISS JOHNSON,

PLAINTIFF-APPELLANT,

PLAZA SERVICES, LLC,

PLAINTIFF-RESPONDENT,

V.

JORA CREDIT OF WISCONSIN, LLC,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County:
RHONDA L. LANFORD, Judge. Affirmed.

Before Blanchard, P.J., Fitzpatrick, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 22AP48

¶1 PER CURIAM. Chriss Johnson appeals an order of the Dane
County Circuit Court compelling arbitration of his claims against Plaza Services,
LLC (“Plaza”) and Jora Credit of Wisconsin, LLC (“Jora”). Johnson argues that
the circuit court erred in compelling arbitration for two reasons: (1) Plaza and Jora
waived their right to arbitrate Johnson’s claims; and (2) the parties’ arbitration
agreement does not cover part of Johnson’s claim against Plaza. For the following
reasons, we affirm.

BACKGROUND

¶2 There is no dispute as to the following material facts.

¶3 Johnson entered into a Consumer Installment Loan Agreement (“the
Agreement”) to repay $2,600 he borrowed from Jora. As we will discuss later in
this opinion, the Agreement contains a provision that requires nearly all disputes
between Johnson and Jora to be resolved through arbitration (the “arbitration
provision”). However, the arbitration provision permits the parties to resolve their
disputes in small claims court if the small claims court has the authority to
determine those disputes.

¶4 Jora assigned to Plaza its rights under the Agreement. When
Johnson failed to make the payments required pursuant to the Agreement, Plaza
filed a small claims action against Johnson. Nearly six months after Plaza initiated
the small claims action, Johnson asserted a counterclaim alleging that Plaza
violated the Wisconsin Consumer Act pursuant to WIS. STAT. §§ 425.107 and

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427.104 (2021-22).1 Because Johnson’s counterclaim exceeded the monetary
jurisdiction of the small claims court, Plaza’s complaint and Johnson’s
counterclaim were transferred to circuit court and converted to a civil action. See
WIS. STAT. § 799.02(1) (if a party files a counterclaim in a small claims action that
exceeds the jurisdiction of the small claims court, the entire matter shall be tried as
a civil action under WIS. STAT. chs. 801 to 847).

¶5 On the same day that he filed his counterclaim against Plaza,
Johnson filed a civil action against Jora in circuit court alleging the same causes of
action as his counterclaim against Plaza. Jora was served with the complaint in
this civil action more than two months after it was filed, and Jora timely filed an
answer to the complaint. In Jora’s answer, Jora asserted an affirmative defense
that “[Johnson’s] claim may be subject to arbitration.”

¶6 On the same day that Jora filed its answer, Plaza and Jora filed a
joint motion to consolidate Johnson’s lawsuit against Jora with the lawsuit
between Plaza and Johnson. The motion to consolidate indicated that Plaza and
Johnson had conducted some “preliminary discovery,” but that Plaza and Jora
sought to reserve their right to arbitrate Johnson’s claims if the cases were
consolidated. Two months after the motion to consolidate was filed, the circuit
court granted the motion and consolidated the cases.

¶7 One day after the court granted the consolidation motion, Plaza and
Jora filed a joint motion to compel arbitration. The circuit court granted the

1
As will be discussed, Johnson also filed a lawsuit against Plaza in federal court alleging
a violation of the Fair Debt Collection Practices Act. All references to the Wisconsin Statutes are
to the 2021-22 version unless otherwise noted.

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motion, over Johnson’s objection, and ordered that the matter be submitted to an
arbitrator.2 Johnson appeals the court’s order.

¶8 Additional material facts are mentioned in the following discussion.

DISCUSSION

¶9 Johnson argues that the circuit court erred in granting the motion to
compel arbitration filed by Plaza and Jora (collectively, “the respondents”). First,
Johnson argues that Plaza and Jora each waived the right to arbitrate Johnson’s
claims. Second, Johnson argues that the Agreement’s arbitration provision does
not apply to his requests for injunctive or equitable relief against Plaza. We begin
by setting forth the governing principles and our standard of review regarding
arbitration agreements.

I. Governing Principles and Standard of Review Regarding
Arbitration Agreements.

¶10 This appeal requires us to interpret the arbitration provision in the
Agreement. The interpretation of the arbitration provision involves contract
interpretation, which is a question of law that we review de novo. First Weber
Grp., Inc. v. Synergy Real Est. Grp., LLC, 2015 WI 34, ¶20, 361 Wis. 2d 496,
860 N.W.2d 498.

2
Plaza and Jora also moved to dismiss the consolidated action. However, the circuit
court held that it would not dismiss the action because Johnson had applied to stay the action until
arbitration was conducted. See WIS. STAT. § 788.02; 9 U.S.C. § 3. As a result, the court stayed
Johnson’s claims and denied the motion to dismiss. The parties do not dispute on appeal this
portion of the circuit court’s order.

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¶11 The arbitration provision in the Agreement states that arbitration is
governed by the Federal Arbitration Act (“FAA”), and the parties do not dispute
that the FAA and germane federal case law apply to this dispute. The FAA
provides that arbitration agreements “shall be valid, irrevocable, and enforceable.”
9 U.S.C. § 2. This language reflects the “fundamental principle that arbitration is
a matter of contract.” Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 67 (2010).
The FAA “places arbitration agreements on an equal footing with other contracts
and requires courts to enforce them according to their terms.” Id. (citations
omitted). If an issue in a lawsuit is covered by an arbitration provision, a court
“shall on application of one of the parties stay the trial of the action until such
arbitration has been had in accordance with the terms of the agreement.”
9 U.S.C. § 3.

II. Plaza and Jora Did Not Waive Their Right to Arbitrate.

¶12 Johnson argues that Plaza and Jora waived their right to arbitrate
Johnson’s claims. We begin by setting forth the governing principles and our
standard of review regarding waiver of the right to arbitrate.

A. Governing Principles and Standard of Review Regarding
Waiver of the Right to Arbitrate.

¶13 “Like any other contractual right, the right to arbitrate can be
waived.”3 Smith v. GC Servs. Ltd. P’ship, 907 F.3d 495, 499 (7th Cir. 2018).
3
Applicable federal case law recognizes that “waiver” is the “intentional relinquishment
or abandonment of a known right,” whereas “forfeiture” is the “failure to make the timely
assertion of a right.” Smith v. GC Servs. Ltd. P’ship, 907 F.3d 495, 499 (7th Cir. 2018). In the
context of the loss of a right to arbitrate, the term “waiver” refers to both intentional
relinquishment and implicit abandonment of the right. Id. Thus, while we discuss whether Plaza
and Jora “waived” their right to compel arbitration, that discussion necessarily includes the
concept of forfeiture. See id.

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Waiver can be either explicit or inferred from a party’s actions. Brickstructures,
Inc. v. Coaster Dynamix, Inc., 952 F.3d 887, 891 (7th Cir. 2020). Here, the
parties agree that Plaza and Jora did not explicitly waive their right to arbitrate, so
we must determine whether waiver can be inferred from their actions.

¶14 “For waiver of the right to arbitrate to be inferred, we must
determine that, considering the totality of the circumstances, a party acted
inconsistently with the right to arbitrate.” Kawasaki Heavy Indus., Ltd. v.
Bombardier Recreational Prods., Inc., 660 F.3d 988, 994 (7th Cir. 2011). Courts
may consider several factors in determining whether waiver may be inferred, but
“diligence or the lack thereof should weigh heavily in the decision.” Id. In
determining whether a party was diligent, a court considers whether the party did
“all it could reasonably have been expected to do to make the earliest feasible
determination of whether to proceed judicially or by arbitration.” Smith, 907 F.3d
at 499. Other non-dispositive factors that we consider include whether the
allegedly waiving party “participated in litigation, substantially delayed its request
for arbitration, or participated in discovery.” Kawasaki, 660 F.3d at 994. Other
parties need not show that they were prejudiced by the purported waiver. Morgan
v. Sundance, Inc., 142 S. Ct. 1708, 1711 (2022).

¶15 When the allegedly waiving party has participated in litigation, the
“key determination” is whether the party “manifested an intent to proceed with
litigation.” Kawasaki, 660 F.3d at 995. “This policy prevents parties from
waiting to see how they fare in a judicial forum before choosing arbitration [and]
prevents the duplicative adjudication of disputes.” Id. at 994-95. “[W]hen a party
chooses to proceed in a judicial forum, there is a rebuttable presumption that the
party has waived its right to arbitrate.” Id. at 995.

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¶16 Whether a party has waived its right to compel arbitration has “both
a factual and a legal dimension.” Brickstructures, 952 F.3d at 891. “We review
de novo the [circuit] court’s determinations regarding the legal principles, like the
applicable common law rules and presumptions, but defer to the [circuit] court’s
findings with respect to the facts and the legal consequences of those facts.” Id.
Here, the parties do not dispute any material facts, so our review of the circuit
court’s decision is de novo.

¶17 We first consider whether Plaza waived its right to arbitrate.

B. Plaza Did Not Waive Its Right to Arbitrate.

¶18 Johnson argues that Plaza waived its right to arbitrate by litigating in
small claims court and continuing to litigate after Johnson filed his counterclaim.
Plaza argues that its conduct in the small claims action did not waive its right to
arbitrate. Instead, Plaza contends that the proper focus of the analysis in this case
is Plaza’s conduct after Johnson filed his counterclaim, and that this conduct was
consistent with Plaza’s right to arbitrate. For the following reasons, we conclude
that Plaza did not waive its right to arbitrate Johnson’s counterclaim.

1. Plaza Did Not Waive Its Right to Arbitrate by Litigating in Small
Claims Court Against Johnson.

¶19 The arbitration provision states in pertinent part: “In this
[provision], the word ‘Disputes’ has the broadest possible meaning. This
[provision] governs all ‘Disputes’ involving the parties to this Agreement and/or
our servicers and agents.” The arbitration provision requires all disputes to be
resolved in arbitration except for disputes that may be resolved in small claims
court:

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Each party has the right to arbitrate, or to go to small-
claims court if the small-claims court has the power to hear
the Dispute. Arbitration will resolve all Disputes that the
small-claims court does not have the power to hear. If … a
Dispute changes so that the small-claims court loses the
power to hear it, then the Dispute will be heard only by an
Arbiter.

This language establishes that a party may choose to resolve a dispute in small
claims court if the small claims court has authority to hear that dispute, but the
dispute must be arbitrated if the small claims court loses authority over that
dispute. With that provision in mind, we discuss Johnson’s arguments.

¶20 First, Johnson argues that Plaza waived its right to arbitrate his
counterclaim because Plaza initially chose to resolve the dispute over non-
payment by Johnson in small claims court instead of through arbitration. This
argument fails because Plaza’s decisions to litigate in small claims court and to
request arbitration after Johnson’s counterclaim was filed were consistent with
Plaza’s rights under the arbitration provision. In filing the small claims action
against Johnson, Plaza exercised its contractual right to resolve its dispute in small
claims court instead of arbitration. Johnson’s counterclaim asserted new causes of
action against Plaza that exceeded the authority of the small claims court to
resolve the counterclaim, and the arbitration provision requires arbitration of a
dispute that the small claims court “loses the power to hear.” As a result, Plaza’s
motion to compel arbitration of Johnson’s counterclaim was consistent with its
contractual rights under the arbitration provision. Therefore, Plaza’s initial choice
to resolve its dispute against Johnson in small claims court does not establish that
Plaza waived its contractual right to arbitrate Johnson’s separate counterclaim.

¶21 Second, Johnson argues that Plaza waived its right to arbitrate
because, according to Johnson, Plaza “provided no reason for its initial

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determination to file in court as opposed to arbitrating.” However, as just
explained, the arbitration provision allowed Plaza to litigate its dispute regarding
Johnson’s non-payment in small claims court. Johnson does not point to any
language in the arbitration provision that required Plaza to explain to Johnson why
it was not commencing arbitration initially and, instead, filing a small claims
action. Thus, the fact that Plaza did not explain to Johnson its choice to proceed in
small claims court instead of arbitration does not lead to the conclusion that Plaza
waived its right to arbitrate the issues raised in Johnson’s counterclaim.

¶22 Third, Johnson argues that Plaza waived its right to arbitrate because
it participated in discovery in the small claims proceedings without asserting its
right to arbitrate. As just explained, Plaza’s choice to resolve its dispute against
Johnson in small claims court did not waive its right to arbitrate Johnson’s
counterclaim. Accordingly, Plaza’s participation in discovery as part of its small
claims action does not demonstrate that Plaza waived its right to arbitrate
Johnson’s counterclaim.

¶23 Fourth, Johnson argues that Plaza waived its right to arbitrate
because Johnson informed Plaza of his intent to file an action outside of small
claims court, and Plaza did not mention arbitration in its responses to Johnson’s
communications. Specifically, Johnson relies on the following: a settlement offer
he sent in writing to Plaza demanding more than $10,000 from Plaza; and emails
to Plaza in which Johnson stated that he intended to file a separate action against
Jora. Even if we assume for the moment that these communications plausibly
suggested that Johnson intended to file a counterclaim against Plaza, Plaza could
not reasonably be expected to assert its right to arbitrate in informal
communications with Johnson for several reasons, including that Plaza could not
definitively know the scope of Johnson’s claims until Johnson formally

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No. 22AP48

commenced the counterclaim. See Smith, 907 F.3d at 499 (in determining
whether a party was diligent, we ask whether the party did “all it could reasonably
have been expected to do to make the earliest feasible determination of whether to
proceed judicially or by arbitration” (emphasis added)). Further, Johnson does not
plausibly explain why its stated intention to sue Jora required Plaza to assert its
right to arbitrate, and we can discern no such reason.

¶24 Therefore, we conclude that Plaza’s conduct with respect to its small
claims action—including pursuing discovery and communicating with Johnson—
does not establish that Plaza waived its right to arbitrate the issues raised in
Johnson’s counterclaim.

2. Plaza Did Not Waive Its Right to Arbitrate After Johnson
Filed His Counterclaim.

¶25 For the reasons we now discuss, Plaza’s conduct after Johnson filed
his counterclaim does not establish that Plaza waived its right to arbitrate. As
already noted, in a joint motion with Jora, Plaza moved to consolidate Johnson’s
state court cases with Plaza and Jora. In that motion, Plaza explained that
consolidation would be beneficial because it would save time and resources if
Plaza demanded arbitration. One day after the circuit court granted the motion to
consolidate, Plaza moved to compel arbitration. This conduct by Plaza reasonably
demonstrates that Plaza delayed its demand for arbitration not because it intended
to resolve the dispute through litigation but, instead, because it wanted to
consolidate claims against and by Johnson before proceeding with arbitration.
This conduct is consistent with Plaza’s right to arbitrate and strongly indicates that
Plaza did not waive that right. Johnson makes several arguments to the contrary,
and we reject each.

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¶26 First, Johnson argues that Plaza waived its right to arbitrate because
Plaza did not immediately move to compel arbitration but, instead, conducted
discovery by deposing Johnson and requesting Johnson’s phone records. We are
not persuaded that this limited discovery contributed to a waiver.
“[P]articipat[ion] in discovery” is one factor we consider in the waiver analysis.
Kawasaki, 660 F.3d at 994. However, Plaza’s limited discovery was not
inconsistent with its right to arbitrate Johnson’s separate counterclaim such that a
waiver occurred. As an example, at the start of Johnson’s deposition, Plaza’s
counsel stated: “Obviously Plaza hasn’t filed an answer or responsive pleading
yet [to Johnson’s counterclaim], but I just want to make sure that it’s clear for the
record that we don’t intend to waive [the right to arbitrate] just by doing this
deposition today.” Additionally, Plaza asserts—and Johnson does not dispute—
that Plaza’s limited discovery would be available and be useful to the parties in
arbitration. Thus, Plaza’s limited discovery after Johnson’s counterclaim was filed
did not waive Plaza’s right to arbitrate.

¶27 Second, Johnson argues that Plaza was not diligent in its demand for
arbitration because in an email Plaza stated that it wanted Johnson to voluntarily
dismiss his counterclaim before Plaza proceeded with its options, including
serving a motion for sanctions and compelling arbitration. In a separate email to
Johnson, Plaza stated that it would move to compel arbitration if Johnson did not
voluntarily dismiss his counterclaim. Contrary to Johnson’s argument, these
emails do not demonstrate Plaza’s intent to litigate Johnson’s counterclaim.
Rather, these emails indicate that Plaza wanted to avoid dispute resolution
forums—including both litigation and arbitration—but would demand arbitration
if Johnson did not voluntarily dismiss his counterclaim. These attempts by Plaza
to informally resolve the counterclaim do not establish that Plaza waived its right

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to arbitrate. See Dickinson v. Heinold Sec., Inc., 661 F.2d 638, 641 (7th Cir.
1981) (holding that defendant’s eighteen-month settlement negotiations were
consistent with its right to arbitrate); Bahoor v. Varonis Sys., Inc., 152 F. Supp.
3d 1091, 1102 (N.D. Ill. 2015) (“Settlement negotiations generally do not indicate
waiver, whether they take place before or after a complaint is filed.”).

¶28 Third, Johnson argues that Plaza waived its right to arbitrate because
of its conduct in Johnson’s federal court lawsuit.4 Johnson points to an email from
Plaza stating that Plaza and Jora would move to compel arbitration if Johnson did
not voluntarily dismiss the federal court lawsuit. As just explained, however, a
party’s attempt to settle a lawsuit ordinarily does not demonstrate that the party
waived its right to arbitrate. See Dickinson, 661 F.2d at 641; Bahoor, 152 F.
Supp. 3d at 1102. Johnson also points to a statement in a joint pretrial report filed
in the federal court lawsuit in which both Johnson and Plaza requested a jury trial.
Even if we would assume that Plaza’s conduct in Johnson’s federal court lawsuit
may make a difference to our analysis regarding the state court lawsuit—and we
do not make that assumption—this statement only requests a jury trial in the
federal court litigation. Nothing in the federal joint pretrial report indicates that
Plaza intended to waive its right to arbitrate the distinct causes of action that were
pending in the state court. Thus, we conclude that Plaza’s conduct in Johnson’s
federal court lawsuit is not sufficient to infer that Plaza waived its right to arbitrate
the state court lawsuit. See Dickinson, 661 F.2d at 641 (“[W]aiver of arbitration is
not lightly to be inferred.”).

4
Johnson’s federal court lawsuit alleged that Plaza violated the federal Fair Debt
Collection Practices Act, whereas Johnson’s state court lawsuit alleged that Plaza violated the
Wisconsin Consumer Act under WIS. STAT. §§ 425.107 and 427.104.

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¶29 In sum, Plaza did not waive its right to arbitration in these
circumstances.

C. Jora Did Not Waive Its Right to Arbitrate.

¶30 As explained earlier, Johnson filed a complaint in the circuit court
against Jora on the same day that he filed his counterclaim against Plaza. This
complaint was not served on Jora until over two months after it was filed. Once
Jora was served, Jora timely filed an answer that asserted as an affirmative defense
that Johnson’s claim “may be subject to arbitration.” On the same day that it filed
its answer, Jora moved to consolidate Johnson’s action against it with the separate
state court action between Plaza and Johnson. Jora explained in this motion that
consolidation would save time and resources if Johnson’s claims were arbitrated.
The circuit court granted the motion to consolidate, and Jora moved to compel
arbitration one day later. Jora’s conduct reasonably demonstrates that Jora
delayed its demand for arbitration not because it intended to resolve the dispute
with Johnson in litigation but, instead, because it wanted to consolidate Johnson’s
state court claims before proceeding with arbitration. This conduct is consistent
with Jora’s right to arbitrate and indicates that Jora did not waive its right to
arbitrate. Johnson makes several arguments to the contrary, and we reject each.

¶31 First, Johnson argues that Jora waived its right to arbitrate because
Jora did not mention arbitration in its communications with Johnson while Plaza’s
small claims action against Johnson was pending. More specifically, Johnson
points to a series of emails in which Johnson’s counsel indicated that he might add
Jora as a party to the small claims action, and Jora’s counsel responded without
mentioning arbitration as a defense. Johnson asserts that these communications
lead to the inference that Jora waived its right to arbitrate. Johnson’s argument

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fails because these emails are not inconsistent with Jora’s right to arbitrate
Johnson’s claims against Jora. Johnson cites no authority which requires a party
to assert its right to arbitrate in pre-litigation communications. Also of
significance is that those emails were exchanged before Johnson filed his
complaint against Jora, so Jora could not know with certainty that Johnson would
in fact sue it, or the scope of Johnson’s potential claims, until Johnson actually
filed his complaint. As a result, Jora could not be reasonably expected to assert its
right to arbitrate until Johnson filed his complaint. See Smith, 907 F.3d at 499 (in
determining whether a party was diligent, we ask whether the party did “all it
could reasonably have been expected to do to make the earliest feasible
determination of whether to proceed judicially or by arbitration” (emphasis
added)).

¶32 Second, Johnson argues that Jora waived its right to arbitrate
because it effectively participated in litigation of Johnson’s counterclaim.
According to Johnson, Plaza’s discovery requests and attempts to have Johnson
dismiss his counterclaim should be imputed to Jora because Jora had the same
counsel as Plaza and benefitted from discovery that Plaza conducted. This
argument also fails. Johnson does not cite to any legal authority in his initial brief
filed in this court to support his assertion that actions by one party may be imputed

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to another for the purposes of determining whether arbitration has been waived.5
We will not consider arguments that are not supported by references to legal
authority. State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).
In addition, even if we would consider Plaza’s actions, Johnson has not
demonstrated that those actions demonstrate a waiver. As explained above,
Plaza’s discovery requests and attempts to have Johnson voluntarily dismiss his
counterclaim are consistent with Plaza’s right to arbitrate. Therefore, we conclude
that Jora’s association with Plaza does not establish that Jora waived its right to
arbitrate.

¶33 In sum, we conclude that Jora did not waive its right to arbitrate
Johnson’s claims.

III. Johnson’s Claims Are Covered by the Arbitration Provision.

¶34 Johnson next argues that his WIS. STAT. § 425.107 claim against
Plaza is not arbitrable because the arbitration provision does not cover claims

5
In his reply brief filed in this court, Johnson argues that Plaza’s actions should be
imputed to Jora according to the “principles of agency or corporate law” and cites Al Rushaid v.
National Oilwell Varco, Inc., 757 F.3d 416, 422 (5th Cir. 2014) (“[T]he actions of an arbitration
proponent’s affiliates may be imputed to the proponent for the purposes of determining waiver
when principles of agency or corporate law, such as the alter ego doctrine, would counsel such
imputation.”). We decline to consider this basis for imputation of waiver because Johnson did
not raise any arguments regarding the principles of agency or corporate law in his initial brief on
appeal. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct.
App. 1998) (“It is inherently unfair for an appellant to withhold an argument from its main brief
and argue it in its reply brief because such conduct would prevent any response from the
opposing party.”).

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seeking “injunctive or equitable relief.”6 For the following reasons, we conclude
that the arbitration provision covers Johnson’s § 425.107 claim against Plaza.7

¶35 The arbitration provision is structured in a question and answer
format. In response to the question “Which Disputes are covered?” the arbitration
provision explains that the parties agree to arbitrate all disputes, with uses of
“you” or “your” referring to the borrower, here Johnson:

In this [provision], the word “Disputes” has the broadest
possible meaning. This [provision] governs all “Disputes”
involving the parties to this Agreement and/or our servicers
and agents …. This includes all claims even indirectly
related to your application and agreements with us. This
includes claims related to information you previously gave
us. It includes all past agreements. It includes extensions,
renewals, refinancings, or payment plans. It includes
claims related to collections, privacy, and customer
information. [I]t includes claims related to setting aside
this [provision]. [I]t includes claims about the [provision’s]
validity and scope. [I]t includes claims about whether to
arbitrate.

6
We assume without deciding that Johnson seeks “injunctive or equitable relief” through
his WIS. STAT. § 425.107 claim against Plaza. Johnson apparently concedes that his § 425.107
claim against Jora was rendered invalid as a result of the holdings in Duncan v. Asset Recovery
Specialists, Inc., 2022 WI 1, 400 Wis. 2d 1, 968 N.W.2d 661. Additionally, Johnson does not
develop any argument that his other claims against Plaza and Jora pursuant to WIS. STAT.
§ 427.104 are exempt from the arbitration provision.
7
We note that the arbitration provision requires arbitration of “claims about whether to
arbitrate.” The respondents argue—and Johnson does not dispute—that Johnson’s argument
regarding the arbitrability of his WIS. STAT. § 425.107 claim against Plaza is a claim “about
whether to arbitrate.” The FAA permits parties to agree by contract that an arbitrator will resolve
a threshold issue of arbitrability. Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 68-69 (2010)
(“We have recognized that parties can agree to arbitrate ‘gateway’ questions of ‘arbitrability,’
such as whether the parties have agreed to arbitrate or whether their agreement covers a particular
controversy.”). Nonetheless, the circuit court decided this argument regarding the arbitrability of
Johnson’s § 425.107 claim, and the parties do not object to this court deciding this threshold issue
of arbitrability.

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¶36 In a separate section, the arbitration provision poses the question
“Do other options exist?” and provides the following answer: “Yes. Both parties
may seek remedies which don’t claim money damages. This includes pre-
judgment seizure, injunctions, or equitable relief.” For ease of reference, we refer
to this particular question and answer as the “remedies” section.

¶37 Johnson argues that the remedies section means that claims seeking
injunctions and equitable relief are exempt from arbitration. According to
Johnson, the “other options” to which this section refers are dispute resolution
methods other than arbitration. In response, the respondents argue that this section
does not exempt claims from arbitration but, instead, sets forth the remedies
available to the parties. According to the respondents, the “other options”
available are remedies that a party may seek other than “money damages.”

¶38 When read in isolation, it is not clear whether the remedies section
addresses permissible methods of dispute resolution or permissible remedies that a
party may seek in arbitration. However, when read in the context of the entire
arbitration provision, the only reasonable interpretation of the remedies section is
that the parties are permitted to seek remedies other than money damages for their
claims—including injunctions and equitable relief—not that the parties may seek
dispute resolution methods other than arbitration for their claims. We now
describe other portions of the arbitration provision that support this interpretation.

¶39 For example, in a section titled “Other Options,” the arbitration
provision explicitly provides three methods by which the parties can resolve
disputes without arbitration:

You can contract for our services and decide not to
arbitrate. Consider these choices: 1. Informal Dispute
Resolution. Contact us and attempt to settle any Disputes.

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2. Small-claims Court. Seek to resolve Disputes in small-
claims court, within state law limits. 3. Opt-Out of
Arbitration. Sign the Agreement and then timely opt-out of
Arbitration.[8]

(Emphasis omitted.) The language of this section establishes three exceptions to
the arbitration requirement that a party may pursue in resolving disputes.
However, nothing in this section indicates that claims seeking injunctions or
equitable relief are exempt from the broad coverage of the arbitration provision.

¶40 Further, other portions of the arbitration provision confirm that only
small claims disputes are exempt from the arbitration requirement. For instance,
as discussed earlier, the arbitration provision states: “Each party has the right to
arbitrate, or to go to small-claims court if the small-claims court has the power to
hear the Dispute. Arbitration will resolve all Disputes that the small-claims court
does not have the power to hear.” Additionally, the arbitration provision states
that the parties waive their rights to resolve disputes by jury trial, class action
lawsuit, and any other non-small claims court: “You waive your rights to 1. Have
juries resolve Disputes. 2. Have courts, other than small-claims courts, resolve
Disputes.… You waive your rights to participate in a class action as a
representative and a member. Only individual arbitration or small-claims courts
will resolve Disputes.” (Emphasis omitted.) These portions of the arbitration
provision establish that all disputes not subject to the jurisdiction of a small claims
court must be arbitrated, and nothing in these sections indicate that claims seeking
injunctions or equitable relief are exempt from arbitration. Thus, to ensure that the
remedies section is consistent with the arbitration provision as a whole, we

8
Johnson does not assert that he opted out of arbitration after signing the Agreement.

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conclude that the remedies section does not create an arbitration exemption for
claims seeking injunctions or equitable relief.

¶41 Johnson argues that the remedies section must be interpreted as
creating exceptions to the arbitration requirement because that section is located in
the same portion of the arbitration provision as the exceptions for small claims
disputes and informal dispute resolution. According to Johnson, if the definition
of “Disputes” includes claims for “pre-judgment seizure, injunctions, or equitable
relief,” then the remedies section would be rendered meaningless. We disagree.
First, the placement of the remedies section near exceptions to the arbitration
requirement does not establish that claims seeking injunctions or equitable relief
are also exempt from arbitration. As explained, the context of the arbitration
provision as a whole establishes that claims seeking injunctions or equitable relief
are subject to arbitration, and we interpret the remedies section in a consistent
manner. Second, our interpretation of the arbitration provision does not render the
remedies section meaningless. As explained, the arbitration provision defines the
types of claims that qualify as a “Dispute.” However, the definition of “Dispute”
does not address the remedies that a party may seek from arbitration. The
remedies section fills in that gap by explaining that the parties can seek through
arbitration not only money damages, but also pre-judgment seizure, injunctions, or
equitable relief. Thus, our interpretation gives separate meaning to the “remedies”
section.

¶42 Johnson also argues that claims seeking injunctions or equitable
relief are exempt because arbitrators have no authority to award injunctions or
equitable relief under the arbitration provision. Johnson points to a section of the
arbitration provision that poses the question, “Are damages and attorney fees
possible?” and that answers, “Yes, if allowed by law. The Arbiter may award the

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same damages as a court. Arbiters may award reasonable attorney fees and
expenses, if allowed by law.” According to Johnson, this language means that
“Arbiters” may decide only claims seeking damages, attorney fees, and expenses,
not claims seeking injunctions or equitable relief. We are not persuaded.

¶43 Under federal law, arbitrators ordinarily have broad authority to
formulate remedies—including injunctions and equitable remedies—unless that
authority is specifically limited by the arbitration agreement. Continental Cas.
Co. v. Certain Underwriters at Lloyds of London, 10 F.4th 814, 821 (7th Cir.
2021) (“When an arbitration clause is silent about the scope of the arbitrators’
power, we have cautioned that ‘[n]o negative inference can be drawn[.] ... Silence
implies—given the tradition of allowing arbitrators flexible remedial discretion—
the absence of categorical limitations.’” (citation omitted)); Prate Installations,
Inc. v. Chicago Reg’l Council of Carpenters, 607 F.3d 467 (7th Cir. 2010)
(“Arbitrators must have flexibility to determine remedies, and the ‘authority to
interpret and find a breach of the agreement implies the authority to prescribe a
remedy to cure the breach.’”). For instance, the Ninth Circuit has held that an
arbitration agreement authorized an arbitrator to issue equitable remedies even
though the agreement was ambiguous as to such authority. Comedy Club, Inc. v.
Improv W. Assocs., 553 F.3d 1277, 1286 (9th Cir. 2009) (“Under the federal
presumption in favor of arbitration, because the arbitration agreement is
ambiguous, it should be interpreted as granting arbitration coverage over ‘all
disputes’ arising from the Trademark Agreement. We hold that the arbitration
agreement gave the arbitrator authority over all disputes, equitable and legal, and

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that he did not exceed his authority by arbitrating equitable claims.” (citation
omitted)).9

¶44 In the present case, nothing in the arbitration provision purports to
limit the arbitrators’ authority to issue injunctions or equitable relief. That the
arbitrators are permitted to award damages, attorney fees, and expenses does not
establish that they are prohibited from awarding other types of remedies.
Accordingly, we conclude that the arbitration agreement does not preclude
arbitrators from issuing injunctions or equitable relief.

¶45 In sum, because the arbitration provision demonstrates that claims
seeking injunctions or equitable relief are not exempt from arbitration, we
conclude that Johnson is required to arbitrate his WIS. STAT. § 425.107 claim
against Plaza.

CONCLUSION

¶46 For the foregoing reasons, the order of the circuit court is affirmed.

By the Court.—Order affirmed.

9
The respondents also point out—and Johnson does not dispute—that applicable model
rules of arbitration permit arbitrators to award injunctive or equitable remedies. For example, the
respondents point to Rules R-37(a) and R-44(a) of the American Arbitration Association
Consumer Arbitration Rules as well as Rules 24(c) and 24(e) of the JAMS Comprehensive
Arbitration Rules & Procedures.

Johnson also points to a number of statutes in the Wisconsin Consumer Act that he
claims vest the sole authority to award certain types of relief with a court. However, as the
respondents correctly observe, those statutes involve subject matters that do not apply here,
including replevin, attachment, and garnishment. Thus, those statutes do not affect our
conclusion that the arbitration provision does not prohibit arbitrators from awarding Johnson’s
requested relief.

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This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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