March 02, 2011 – Andrea J. Felts, on behalf of herself and all others similarly situated v. CLK Management, Inc., f/k/a BAT Services, Inc. and Cash Advance Network, Inc., Nos. 30,142 and 29,702

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _APRIL 8 2011

NO. 30,142 consolidated with NO. 29,702

ANDREA J. FELTS, on behalf of
herself and all others similarly

situated,
Plaintiff-A ppellee,
V.

CLK MANAGEMENT, INC. f/k/a
BAT SERVICES, INC. and CASH
ADVANCE NETWORK, INC.,

Defendants-A ppellants.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Nan G. Nash, District Judge

Feferman Warren & Treinen, P.A.
Rob Treinen

Albuquerque, NM

Schaefer Law Firm, L.L.C.
Richard J. Fuller

Douglas L. Micko
Minneapolis, MN

Public Justice, P.C.
F. Paul Bland, Jr.
Amy Radon
Washington, D.C.
for Appellee
Fredericks Peebles & Morgan LLP
Conly J. Schulte
Joseph V. Messineo
Omaha, NE
Fredericks Peebles & Morgan LLP
Frances C. Bassett
Louisville, CO
for Appellant CLK Management, Inc.
f/k/a Bat Services, Inc.
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Jennifer G. Anderson
Emil J. Kiehne
Albuquerque, NM
Weir & Partners, LLP
Susan Verbonitz
Philadelphia, PA
for Appellant Cash Advance Network, Inc.
Gary K. King, Attorney General
Karen J. Myers, Assistant Attorney General
Santa Fe, NM
for Amicus Curiae

OPINION
FRY, Judge.
{1} 	The opinion filed in this case on March 2, 2011, is hereby withdrawn, and the
following opinion is filed in its place. The motions for rehearing filed by Defendants
are denied.
{2} 	In this consolidated case, Defendants CLK Management, Inc. (CLK) and Cash
Advance Network, Inc. (CANI) (collectively, Defendants) appeal the district court’s
denial of their respective motions to compel arbitration and to stay proceedings
pursuant to a binding arbitration provision located within three payday-type loan
agreements that Plaintiff Andrea J. Felts entered into with Defendants over the
Internet. 	Defendants moved to compel arbitration in response to a putative class
action lawsuit filed by Felts in district court, in which she alleged that Defendants’
payday lending enterprises are engaged in online lending practices in direct violation
of a number of New Mexico laws. The district court declined to order the parties to
arbitrate their dispute after agreeing with Felts that the arbitration provision in the loan
agreements was unconscionable under New Mexico law.
{3} 	We conclude that the district court correctly determined that: (1) the threshold
question of arbitrability was for the court, and not an arbitrator, to decide; (2) the class
action ban in the arbitration provision was unconscionable and in the same vein as the

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class action waiver invalidated by our Supreme Court in Fiser v. Dell Computer
Corp., 2008-NMSC-046, 144 N.M. 464, 188 P.3d 1215; and (3) the class action ban
could not be severed from the remainder of the arbitration provision and, therefore,
the entire arbitration provision was unenforceable. Accordingly, we affirm the district
court’s orders denying each Defendant’s motion to compel arbitration.
BACKGROUND
1. 	Terms of Loan Agreements and Binding Arbitration Provision
{4} 	This case stems from three different online loan transactions that Felts entered
into with various Internet-based payday lending companies, including Defendants, in
which she received immediate electronic deposits of cash into her bank account in
exchange for a series of post-dated automatic withdrawals from the account to be
applied toward repayment of the loan principal amounts plus interest and/or finance
charges. For each separate transaction, she electronically signed a “Loan Note and
Disclosure” (Loan Agreement), which was virtually identical across all three
transactions and which included two provisions regarding arbitration—an “Agreement
to Arbitrate All Disputes” (arbitration provision) and an “Agreement Not to Bring,
Join or Participate in Class Actions” (class action waiver provision). 	Given the
similarity of these two provisions across all three Loan Agreements, we rely on the
language from Felts’ Loan Agreement with “MTE Financial Services, Inc. d/b/a Cash

1We note that two of the Loan Agreements contained identical arbitration
provisions. The third Agreement, a loan issued by Ameriloan, differed slightly in its
language and organization. The most notable difference is that in addition to the all-
caps sentence prohibiting class-based arbitration seen in the other two Loan
Agreements, the Ameriloan agreement included the following: “No class arbitration.
All disputes including any Representative Claims against us and/or related third
parties shall be resolved by binding arbitration only on an individual basis with you.”
However, these differences are not material to our discussion as the substantive nature
of the Ameriloan Agreement is virtually identical to that of the other two Loan
Agreements.
3
Advance Network” for purposes of this appeal. 1
{5} 	Under that particular Loan Agreement, the arbitration provision provided that
“any and all claims, disputes or controversies [between the borrower and lender] shall
be resolved by binding individual (and not class) arbitration by and under the Code
of Procedure of the National Arbitration Forum (‘NAF’).” Featured prominently in
all capital letters within the arbitration provision was a clause directing that the claims
subject 	to 	arbitration 	could 	not 	be 	arbitrated 	on 	a 	class-wide 	basis: 	“THE
ARBITRATOR SHALL NOT CONDUCT CLASS ARBITRATION; THAT IS, THE
ARBITRATOR 	SHALL 	NOT 	ALLOW 	YOU 	TO 	SERVE 	AS 	A
REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY
OTHER REPRESENTATIVE CAPACITY FOR OTHERS IN THE ARBITRATION”
(hereinafter “class action ban”). The arbitration provision also provided, in relevant
part, that: (1) the arbitration was to be governed by “the Federal Arbitration Act

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(FAA), 9 U.S.C. §§ 1 to -16 (2006)”; and (2) both the borrower and lender waived
their “right or opportunity to litigate disputes through a court and have a judge or jury
decide the disputes [and] agreed instead to resolve disputes through binding
arbitration.” The second provision of the Loan Agreement, the class action waiver,
directed that “[t]o the extent permitted by law, [the borrower] will not bring, join or
participate in any class action as to any claim, dispute or controversy [the borrower]
may have against [the lender].” 	Toward that end, it permitted the lender to seek
injunctive relief to end the lawsuit or to remove the borrower as a participant in the
class action lawsuit, with the borrower being held responsible for the lender’s court
costs and attorney fees.
{6} 	Thus, under the terms of the three Loan Agreements, Felts was precluded from
seeking or participating in any type of class-wide action, whether it was in arbitration
or in a judicial setting—which, for that matter, was not allowed in any event. 	We
assume without deciding, for the purpose of our analysis, that Felts assented to the
terms of the Loan Agreements when she electronically signed and submitted the forms
online.

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2. 	Procedural History
{7} 	On December 15, 2008, Felts filed a putative class action complaint against
CLK and other payday lenders purportedly responsible for originating and/or
servicing her loans, in which she claimed violations of the New Mexico Unfair
Practices Act (UPA), NMSA 1978, §§ 57-12-1 to -26 (1967, as amended through
2009), the New Mexico Small Loans Act (SLA), NMSA 1978, §§ 58-15-1 to -39
(1955, as amended through 2007), and sought equitable relief for unjust enrichment
and disgorgement of profits, as well as injunctive relief on behalf of herself and other
New Mexico residents who had obtained loans under $2,500 from Defendants. She
later amended the complaint to include CANI as a Defendant. We note that Felts’
complaints did not make any arguments regarding the validity of the arbitration
provision—in fact, the amended complaint included only a one-line statement that the
Loan Agreements contained an arbitration provision. Rather, her amended complaint
focused on challenging the validity of the Loan Agreements as a whole.
{8} 	CLK filed its motion to compel arbitration and to stay trial proceedings
pursuant to the FAA, 9 U.S.C. Section 3, and NMSA 1978, Section 44-7A-8 (2001).
CLK argued that, under the arbitration provision of the Loan Agreements, Felts was
required to individually arbitrate her claims and was precluded from seeking class-
wide relief. CLK also alleged that because Felts had not challenged the validity of the

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arbitration provision in her complaint, the district court could not consider any such
challenges and was instead required to refer the entire matter to arbitration. 	Felts
opposed CLK’s motion, arguing that the arbitration provision was unconscionable and
therefore unenforceable pursuant to section 2 of the FAA, which permits a court to
refuse to enforce an arbitration agreement based on “generally applicable contract
defenses, such as fraud, duress, or unconscionability.” 	Doctor’s Assocs., Inc. v.
Casarotto, 517 U.S. 681, 687 (1996). Specifically relying on our Supreme Court’s
rationale in Fiser, Felts argued that the class action ban in the arbitration provision
amounted to an exculpatory clause for CLK and therefore rendered the entire
arbitration provision substantively unconscionable and unenforceable under New
Mexico law.
{9} 	After a hearing on CLK’s motion, the district court declined to order the parties
to arbitrate their disputes. 	After concluding that it had jurisdiction to decide the
validity of the arbitration agreement, the district court found that Felts’ claims
constituted “small consumer claims within the meaning of Fiser” and “[a]s such, [the]
prohibitions against class relief [in the arbitration provisions were] contrary to New
Mexico’s fundamental public policy of encouraging the resolution of small consumer
claims.” 	On this basis, the district court declared the entire arbitration provision
unenforceable and denied CLK’s motion to compel in its entirety.

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{10} 	After it had been added as a Defendant, CANI also filed a motion to compel
arbitration and to stay trial proceedings. CANI alleged that the district court lacked
jurisdiction to decide the validity of the arbitration provision under existing United
States Supreme Court precedent, that Felts was required to arbitrate all of her disputes
under the terms of the arbitration provision, and that the district court could sever the
unconscionable class action ban and enforce the remainder of the arbitration
provision. Felts opposed this motion as well, arguing that: (1) CANI had failed to
rebut the evidence she had raised regarding the exculpatory nature of the class action
ban in the arbitration provision, (2) the arbitration provision was unenforceable on
grounds of impossibility because the NAF—the arbitral forum selected by Defendants
under the arbitration provision—was prohibited from arbitrating the parties’ disputes
under the terms of a national consent decree it had signed in another lawsuit, and (3)
the class action ban was not severable from the rest of the arbitration provision under
Fiser.
{11} 	Without hearing oral argument on CANI’s motion, the district court again
declined to order arbitration. 	The district court’s order on CANI’s motion was
virtually identical to its earlier order denying CLK’s similar motion to compel, with
the exception of an additional finding that “the class action ban is not severable from
the CANI arbitration provision.”

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{12} 	CLK and CANI separately appealed the district court’s orders denying their
respective motions to compel arbitration. The appeals were later consolidated for our
review, and we also allowed the New Mexico Attorney General to submit an amicus
brief in support of Felts.
DISCUSSION
{13} 	On appeal, Defendants raise the following three primary arguments: (1) the
district court erroneously determined that it had jurisdiction to decide the parties’
disputes regarding the validity of the arbitration provision, rather than referring the
matter to an arbitrator; (2) Fiser does not apply to the facts of this case, and even if
it did, the arbitration provision is not unconscionable because Felts has a meaningful
remedy available to her through arbitration; and (3) the district court incorrectly
determined that the class action ban could not be severed from the remainder of the
arbitration provision. Defendants also refer us to recent precedent from the United
States Supreme Court, Rent-A-Center, W., Inc. v. Jackson, ____ U.S. ____, 130 S. Ct.
2772 (2010), which was decided after the district court declined to compel arbitration
in this case, and which Defendants argue mandates reversal of the district court’s
orders. We address each of these arguments in turn.
{14} 	We apply a de novo standard of review to the issues raised in this appeal. We
review de novo a district court’s order denying a motion to compel arbitration.

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Cordova v. World Fin. Corp., 2009-NMSC-021, ¶ 11, 146 N.M. 256, 208 P.3d 901.
Similarly, “whether the parties have agreed to arbitrate presents a question of law, and
we review the applicability and construction of a contractual provision requiring
arbitration de novo.” 	Id. (internal quotation marks and citation omitted). 	Finally,
whether a contract is unconscionable is a matter of law, and we therefore also apply
de novo review to the district court’s determination in this case that the class action
ban rendered the arbitration provision unconscionable and unenforceable. 	Fiser,
2008-NMSC-046, ¶ 19.
1. 	Arbitrability
{15} 	We first address whether the district court correctly determined that it, and not
an arbitrator, had jurisdiction to decide the issue of arbitrability—that is, to decide the
parties’ disputes regarding the validity of the arbitration provision rather than referring
this gateway issue to an arbitrator. Defendants essentially argue that under the terms
of the arbitration provision, an arbitrator should have determined whether the
arbitration provision was unconscionable and therefore unenforceable due to its
inclusion of a class action ban.
a. 	Federal Framework
{16} 	We begin by reviewing the applicable federal law on arbitrability because our
analysis turns on recent precedent from the United States Supreme Court on this

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particular issue. 	Under the FAA, which the parties agree governs the arbitration
provision at issue here, it is well established that “arbitration is a matter of contract.”
AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648 (1986) (internal
quotation marks and citation omitted). “By its terms, the [FAA] leaves no place for
the exercise of discretion by a district court, but instead mandates that district courts
shall direct the parties to proceed to arbitration on issues as to which an arbitration
agreement has been signed.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218
(1985). 	Section 2 of the FAA specifically provides that arbitration provisions in
written agreements “shall be valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2.
In other words, because arbitration provisions are treated like other contracts, they can
be invalidated and held unenforceable under “generally applicable contract defenses,
such as fraud, duress, or unconscionability.” Doctor’s Assocs., 517 U.S. at 687; see
Fiser, 2008-NMSC-046, ¶ 23. 	This principle is entrenched in New Mexico
jurisprudence as well. Id. ¶¶ 22, 23.
{17} 	In this case, we are concerned with the question of who decides—a district court
or an arbitrator—whether an arbitration provision in a written agreement is invalid on
grounds of unconscionability. The general rule is that the arbitrability of a particular
dispute is a threshold issue to be decided by the district court unless there is clear and

11
unmistakable evidence that the parties decided otherwise under the terms of their
arbitration agreement. 	Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83
(2002). To explain more fully, although the FAA has limited the role of courts in the
arbitration context, certain gateway issues involving arbitration provisions have
remained within the purview of judicial review. Green Tree Fin. Corp. v. Bazzle, 539
U.S. 444, 452 (2003) (“In certain limited circumstances, courts assume that the parties
intended courts, not arbitrators, to decide a particular arbitration-related matter[] in the
absence of clear and unmistakable evidence to the contrary[.]” (alterations omitted)
(internal quotation marks and citation omitted)). 	These gateway questions of
arbitrability “typically involve matters of a kind that contracting parties would likely
have expected a court to decide[,]” such as the validity of an arbitration provision, the
scope of an arbitration provision, or whether an arbitration agreement covers a
particular controversy. 	Id. (internal quotation marks and citation omitted); see
Howsam, 537 U.S. at 84.
{18} 	However, courts have recognized an important exception to the general rule that
questions of arbitrability are typically for the courts to decide. Reflecting the principle
that arbitration is a contractual undertaking, courts have recognized that parties can
agree to have an arbitrator, rather than a court, decide gateway questions of
arbitrability in addition to deciding the parties’ underlying claims. See Rent-A-Center,

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130 S. Ct. at 2777 (“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.”); First Options of Chicago,
Inc. v. Kaplan, 514 U.S. 938, 943 (1995) (“Just as the arbitrability of the merits of a
dispute depends upon whether the parties agreed to arbitrate that dispute, so the
question [of] ‘who has the primary power to decide arbitrability’ turns upon what the
parties agreed about that matter.” (citation omitted)). In Rent-A-Center, decided in
June 2010, the Supreme Court referred to this type of agreement between parties as
a delegation provision, i.e., “an agreement [between the parties] to arbitrate threshold
issues concerning the arbitration agreement [rather than having a court decide].” 130
S. Ct. at 2777. 	As the Supreme Court explained in Rent-A-Center, a delegation
provision “is simply an additional, antecedent agreement the party seeking arbitration
asks the federal court to enforce, and the FAA operates on this additional arbitration
agreement just as it does on any other.” 	Id. at 2777-78. 	In referring questions of
arbitrability to an arbitrator through the enforcement of a delegation provision, courts
must, however, ensure that there is “clear and unmistakable evidence” that the parties
agreed to arbitrate questions of arbitrability. First Options, 514 U.S. at 944 (“Courts
should not assume that the parties agreed to arbitrate arbitrability unless there is clear
and unmistakable evidence that they did so.” (alterations omitted) (internal quotation

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marks and citation omitted)); AT&T Techs., 475 U.S. at 649 (“Unless the parties
clearly and unmistakably provide otherwise, the question of whether the parties agreed
to arbitrate is to be decided by the court, not the arbitrator.”). 	We also note that
“[w]hen deciding whether the parties agreed to arbitrate a certain matter (including
arbitrability), courts generally . . . should apply ordinary 	state-law principles that
govern the formation of contracts.” First Options, 514 U.S. at 944.
{19} 	Within this framework, we turn to the mechanism for determining whether a
party has challenged an arbitration agreement, and specifically a delegation provision,
in a manner such that a court can decide the challenge in the first instance. In Buckeye
Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444 (2006), the Supreme Court
established that challenges to the validity of arbitration provisions fall within two
categories: (1) those “challeng[ing] specifically the validity of the agreement to
arbitrate”; and (2) those “challeng[ing] the contract as a whole, either on a ground that
directly affects the entire agreement . . . or on the ground that the illegality of one of
the contract’s provisions renders the whole contract invalid.” The Court held that only
the first type of challenge is for a court to decide. 	Id. at 445-46 (“[U]nless the
challenge is to the arbitration clause itself, the issue of the contract’s validity is
considered by the arbitrator in the first instance.”). The Court noted that the class in
Buckeye had not specifically challenged the validity of the arbitration provision in

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certain loan agreements that the individual class members had entered into with the
lender. Id. at 446. Rather, “[t]he crux of the[ir] complaint [was] that the contract as
a whole (including its arbitration provision) [was] rendered invalid by [a] usurious
finance charge.” Id. at 444. Accordingly, the Court held that the arbitration provision
was itself enforceable and the challenge to the validity of the entire contract was
therefore a matter to be decided by an arbitrator and not a court. 	Id. at 446 (“[W]e
conclude that because [the] respondents challenge the [a]greement, but not specifically
its arbitration provisions, those provisions are enforceable apart from the remainder
of the contract. The challenge should therefore be considered by an arbitrator, not a
court.”). 	The Court’s decision to enforce the arbitration provision essentially
established a rule of severability because the Court determined that “as a matter of
substantive federal arbitration law, an arbitration provision is severable from the
remainder of the contract.” Id. at 445.
{20} 	In circumstances where parties have decided to arbitrate arbitrability—that is,
where there is a delegation provision assigning questions of arbitrability to an
arbitrator—the Supreme Court’s recent holding in Rent-A-Center appears to stand for
the proposition that a party must specifically challenge the delegation provision in
order for a court to consider the challenge rather than referring the matter to an
arbitrator. 130 S. Ct. at 2779. Rent-A-Center involved an employment discrimination

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lawsuit in which the employer moved to compel arbitration under the terms of an
arbitration agreement signed by the employee. 	Id. at 2775, 2777. 	The arbitration
agreement contained a delegation provision that “gave the arbitrator exclusive
authority to resolve any dispute relating to the . . . enforceability . . . of th[e]
[a]greement.” 	Id. at 2779 (omissions in original) (internal quotation marks and
citation omitted). At issue before the Supreme Court was whether the district court
could consider the employee’s contention that the arbitration agreement was
unconscionable in light of this delegation provision which “explicitly assign[ed] that
decision to the arbitrator.” 	Id. at 2775. 	The Court held that the employee was
required to have specifically challenged the delegation provision in order for the
district court to be able to consider the unconscionability claim rather than submit the
matter to an arbitrator. 	Id. at 2779 (“[U]nless [the employee] challenged the
delegation provision specifically, we must treat it as valid under [section] 2 [of the
FAA], and must enforce it under [sections] 3 and 4, leaving any challenge to the
validity of the [a]greement as a whole for the arbitrator.”). The Court concluded that
because the employee had not specifically challenged the delegation provision during
the course of the litigation, his claim that the entire arbitration agreement was
unconscionable could only be decided by an arbitrator. Id. at 2779-81. Thus, Rent-A-
Center appears to establish that in cases where a delegation provision granting an

16
arbitrator the authority to determine the validity of an arbitration agreement exists, a
district court is precluded from deciding a party’s claim of unconscionability unless
that claim is based on the alleged unconscionability of the delegation provision itself.
Id.; see id. at 2781 (Stevens, J., dissenting) (stating that the majority had adopted a
rule that “[e]ven when a litigant has specifically challenged the validity of an
agreement to arbitrate[,] he must submit that challenge to the arbitrator unless he has
lodged an objection to the particular line in the agreement that purports to assign such
challenges to the arbitrator—the so-called ‘delegation clause’”). With this framework
in mind, we turn to the parties’ specific arguments regarding arbitrability in this case.
b. 	There Is Clear and Unmistakable Evidence That the Parties Intended to
Delegate Questions of Arbitrability to an Arbitrator under the Terms of
the Arbitration Provision
{21} 	Initially, the parties dispute whether the arbitration provision in the Loan
Agreements included clear and unmistakable evidence of a delegation clause requiring
that questions of arbitrability regarding the validity of the arbitration provision be
submitted to an arbitrator. Defendants argue that a clear and unmistakable delegation
clause was included in the first sentence of the arbitration provision.
AGREEMENT TO ARBITRATE ALL DISPUTES: 	By signing
below . . . , you and we agree that any and all claims, disputes or
controversies that we or our servicers or agents have against you or that
you have against us . . . that arise out of your application for one or more
loans, the Loan Agreements that govern your repayment obligations, the
loan for which you are applying or any other loan we previously made

2Rule 20 of the NAF Code of Procedure provides: “An Arbitrator shall have the
power to rule on all issues, [c]laims, [r]esponses, questions of arbitrability, and
objections regarding the existence, scope, and validity of the [a]rbitration [a]greement
including all objections relating to jurisdiction, unconscionability, contract law, and
enforceability of the Arbitration Agreement.”
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or later make to you, this Agreement to Arbitrate All Disputes, collection
of the loan or loans, or alleging fraud or misrepresentation, whether
under the common law or pursuant to federal or state statute or
regulation, or otherwise, including disputes as to the matters subject to
arbitration, shall be resolved by binding individual (and not class)
arbitration by and under the Code of Procedure of the National
Arbitration Forum (“NAF”) in effect at the time the claim is filed.
(Emphasis added.) Specifically, Defendants contend that the delegation clause in this
sentence is the language requiring arbitration of “any and all claims, disputes or
controversies . . . aris[ing] out of . . . this Agreement to Arbitrate All Disputes . . .
including disputes as to the matters subject to arbitration.” Additionally, CANI argues
that the parties clearly and unmistakably intended to arbitrate questions of arbitrability
by incorporating the rules of the NAF into the arbitration provision. The NAF Code
of Procedure expressly provides that an arbitrator has the authority to decide
jurisdictional issues, including arbitrability questions regarding the existence, validity,
and scope of an arbitration provision. NAF Code of Procedure, pt. IV, r. 20(F), at 28
(Aug. 1, 2008) (http://www.adrforum.com/main.aspx). 2
{22} 	As we stated previously, applicable federal law provides that courts should
apply state law principles in deciding whether the parties to an arbitration agreement

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clearly and unmistakably agreed to submit questions of arbitrability to an arbitrator.
See First Options, 514 U.S. at 944. Under New Mexico law, arbitration agreements
are governed by well-established contract law principles. See Christmas v. Cimarron
Realty Co., 98 N.M. 330, 332, 648 P.2d 788, 790 (1982); Santa Fe Techs, Inc. v.
Argus Networks, Inc., 2002-NMCA-030, ¶ 52, 131 N.M. 772, 42 P.3d 1221. 	Our
Supreme Court has stated that “[c]ourts must interpret the provisions of an arbitration
agreement according to the rules of contract law and apply the plain meaning of the
contract language in order to give effect to the parties’ agreement.” 	McMillan v.
Allstate Indem. Co., 2004-NMSC-002, ¶ 10, 135 N.M. 17, 84 P.3d 65. Additionally,
in examining the plain language of an arbitration agreement, this Court has previously
stated that arbitration clauses drafted with broad strokes require broad interpretation.
Santa Fe Techs., 2002-NMCA-030, ¶ 55. Likewise, our Supreme Court has stated
that “[w]hen the parties agree to arbitrate any potential claims or disputes arising out
of their relationships by contract or otherwise, the arbitration agreement will be given
broad interpretation unless the parties themselves limit arbitration to specific areas or
matters.” 	McMillan, 2004-NMSC-002, ¶ 10 (internal quotation marks and citation
omitted).
{23} 	In this case, we hold that the plain language of the arbitration provision clearly
and unmistakably evidences the parties’ intent to have an arbitrator decide threshold

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issues of arbitrability. The terms of the arbitration provision and, specifically, the first
sentence of the provision, unambiguously provide that all disputes were to be
submitted to an arbitrator. 	In particular, we refer to the title of the arbitration
provision, “Agreement to Arbitrate All Disputes,” as well as the language in the
provision itself stating that the parties submit to arbitration “any and all claims,
disputes or controversies . . . aris[ing] out of . . . this Agreement to Arbitrate All
Disputes . . . including disputes as to the matters subject to arbitration.” (Emphasis
added.) We view this italicized language to be clear and unmistakable evidence to the
effect that the parties agreed to arbitrate all issues, including issues of arbitrability.
Additionally, given the lack of any sort of limiting language, we interpret this
sweeping language broadly and conclude that the parties expressly intended to
arbitrate “all disputes”—including arbitrability issues such as the validity of the
arbitration provision.
{24} 	Moreover, we agree with Defendants that the incorporation of the NAF Code
of Procedure constitutes clear and unmistakable evidence of the parties’ intent to
delegate arbitrability issues. Rule 20 of the NAF Code of Procedure expressly gives
the arbitrator the authority to decide issues of arbitrability. Although New Mexico
courts have not yet directly addressed whether incorporation of an arbitral forum’s
rules constitutes clear and unmistakable evidence of the parties’ intent to delegate

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arbitrability, a number of federal courts of appeal that have reached this issue have
held that it is. 	See, e.g., Fallo v. High-Tech Inst., 559 F.3d 874, 877-78 (8th Cir.
2009) (holding that the act of incorporating the American Arbitration Association
(AAA) rules provides “clearer evidence of the parties’ intent to leave the question of
arbitrability to the arbitrator . . . because Rule 7(a) expressly gives the arbitrator the
power to rule on his or her own jurisdiction” and concluding that “the arbitration
provision’s incorporation of the AAA Rules . . . constitutes a clear and unmistakable
expression of the parties’ intent to leave the question of arbitrability to an arbitrator”
(internal quotation marks omitted); Contec Corp. v. Remote Solution, Co., 398 F.3d
205, 208 (2d Cir. 2005) (stating that “when . . . parties explicitly incorporate rules that
empower an arbitrator to decide issues of arbitrability, the incorporation serves as
clear and unmistakable evidence of the parties’ intent to delegate such issues to an
arbitrator”); Terminix Int’l Co. v. Palmer Ranch Ltd. P’ship, 432 F.3d 1327, 1331-32
(11th Cir. 2005) (determining that an arbitration agreement’s incorporation of arbitral
forum rules, which specifically included a rule that the arbitrator shall have the power
to decide issues of arbitrability, was clear and unmistakable evidence that the parties
delegated arbitrability issues to an arbitrator); Apollo Computer, Inc. v. Berg, 886 F.2d
469, 473 (1st Cir. 1989) (“By contracting to have all disputes resolved according to
the Rules of the [International Chamber of Commerce] . . ., [the plaintiff] agreed to

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be bound by [specific articles]. These provisions clearly and unmistakably allow[ed]
the arbitrator to determine her own jurisdiction when . . . there exists a prima facie
agreement to arbitrate whose continued existence and validity is being questioned.”);
cf. P & P Indus., Inc. v. Sutter Corp., 179 F.3d 861, 867-68 (10th Cir. 1999) (“A party
who consents by contract to arbitration before the AAA also consents to be bound by
the procedural rules of the AAA, unless that party indicates otherwise in the contract.
By agreeing to arbitrate before the AAA, [the parties] impliedly agreed that they
would be bound . . . by the procedural rules of the AAA, including Rule 47(c) [which
states that the parties consent to judicial confirmation of the disputed arbitration
award].”).
{25} 	We also note that previous New Mexico cases have incorporated and given
effect to the plain meaning of referenced rules in contractual agreements. 	See
Christmas, 98 N.M. at 332, 648 P.2d at 790 (incorporating and giving effect to a
specific article of a realtors’ code of ethics, where the parties were both members of
the same realtors association and had agreed to submit disputes to arbitration “in
accordance with the regulations of their board” (internal quotation marks and citation
omitted)); see also Monette v. Tinsley, 1999-NMCA-040, ¶¶ 15-17, 126 N.M. 748,
975 P.2d 361 (determining that an arbitration agreement’s language that the parties
were bound to arbitrate in accordance with the Commercial Arbitration Rules of the

22
American Arbitration Forum indicated that these rules were considered the “guiding
substantive and procedural rules for the arbitration”). In light of this overwhelming
authority giving effect to rules referenced in contracts and specifically arbitration
agreements, we conclude that the reference to the NAF Code of Procedure in the
arbitration provision is further evidence that the parties clearly and unmistakably
delegated arbitrability questions to an arbitrator.
{26} 	Given the plain language of the arbitration provision and its incorporation of
the NAF Code of Procedure, we hold that the parties in this case clearly and
unmistakably delegated arbitrability questions to an arbitrator. 	For purposes of
resolving the remaining issues in this appeal, we consider the delegation clause to be
the following language in the first sentence of the arbitration provision in the parties’
Loan Agreement:
you and we agree that any and all claims, disputes or controversies that
we or our servicers or agents have against you or that you have against
us . . . that arise out of . . . this Agreement to Arbitrate All Disputes, . . .
including disputes as to the matters subject to arbitration, shall be
resolved by binding individual (and not class) arbitration by and under
the Code of Procedure of the [NAF] in effect at the time the claim is
filed.

23
c. 	Felts Properly Challenged the Delegation Clause and, Therefore, the
District Court Had Jurisdiction to Decide the Issue of Unconscionability
{27} 	We next address Defendants’ contention that because Felts did not specifically
challenge the validity of the delegation clause in her amended complaint, the district
court was precluded from deciding her claim that the arbitration provision was
unconscionable due to the class action ban. Defendants argue that under the Supreme
Court’s decisions in Rent-A-Center and Buckeye, the district court had no option but
to submit the unconscionability issue to an arbitrator along with Felts’ underlying
claims.
{28} 	As we noted earlier, Felts’ amended complaint focused primarily on challenging
the legality of the Loan Agreements under New Mexico law. 	As the district court
acknowledged at the hearing on CLK’s motion to compel arbitration, Felts’ complaint
did not contain a specific challenge to the arbitration provision. It was only after CLK
and CANI filed their respective motions to compel arbitration that Felts raised any
specific challenges to the validity of the provision, arguing that the class action ban
rendered the arbitration provision unconscionable and also that it was impossible to
compel arbitration because the agreed-upon arbitral forum, the NAF, was precluded
from handling consumer disputes. Defendants maintain that Felts’ failure to challenge
the arbitration provision in her complaint is similar to Buckeye, where the Supreme
Court determined that because the “crux of the complaint” challenged the contract as

24
a whole and not the arbitration provision specifically, the validity of the provision was
for an arbitrator to decide. See Buckeye, 546 U.S. at 444, 446 (“[B]ecause respondents
challenge the [a]greement, but not specifically its arbitration provisions, those
provisions are enforceable apart from the remainder of the contract. The challenge
should therefore be considered by an arbitrator, not a court.”). They further contend
that under Rent-A-Center, Felts was required to have pleaded a specific challenge to
the delegation clause in her complaint and her failure to do so meant that an arbitrator
should have decided issues of arbitrability, rather than the court. In effect, Defendants
urge us to look only at the substance of Felts’ complaint and not her motion papers in
deciding whether she challenged the delegation clause specifically such that the
district court would be able to decide the challenge.
{29} 	We disagree with Defendants and decline to adopt a narrow pleading rule
requiring plaintiffs to plead a specific and distinct challenge to the validity of an
arbitration provision in their complaints before a court may decide arbitrability issues.
Although the Supreme Court may have considered only the “crux of the complaint”
in Buckeye, 546 U.S. at 444, the Court looked beyond the complaint in Rent-A-Center
when it examined whether the respondent there had raised a specific and distinct
challenge to the delegation provision of the arbitration agreement at issue. In deciding
the issue, the Court’s opinion in Rent-A-Center referenced the respondent’s “response

25
to Rent-A-Center’s motion to compel arbitration” as well as his briefs to the Ninth
Circuit and the Supreme Court on the issue and his oral argument before the Supreme
Court. 130 S. Ct at 2779-81. From the Court’s analysis in Rent-A-Center, it appears
that the Court was more concerned with the substantive nature of the respondent’s
claims and arguments and not with where he had argued those challenges. 	Id. 	We
believe that the Ninth Circuit Court of Appeals, in Bridge Fund Capital Corp. v.
Fastbucks Franchise Corp., describes what the proper approach is in light of Rent-A-
Center: “Because the material question is whether the challenge to the arbitration
provision is severable from the challenge to the contract as a whole, the inclusion of,
or failure to include, a specific challenge in the complaint is not determinative. What
matters is the substantive basis of the challenge.” 	Bridge Fund Capital Corp., 622
F.3d 996, 1001 (9th Cir. 2010) (citations omitted). Accordingly, we consider not only
Felts’ complaint but also her motion papers and oral argument below to determine
whether she raised a distinct challenge to the delegation clause that was severable
from her challenges to the validity of the entire Loan Agreement.
{30} 	We conclude that Felts made two distinct arguments regarding the validity of
the delegation clause 	in her responses to CANI and CLK’s respective motions to
compel arbitration. 	First, because the delegation clause included a parenthetical
prohibiting class arbitration (“you and we agree that any and all claims, disputes or

Correction Page: Felts v. CLK Mgmt. Inc., (FySK) Nos. 30,142/29,702, filed 4-8-11: Page 27, lines 10-11: removed RP cites.
26
controversies . . . shall be resolved by binding individual (and not class) arbitration”),
Felts’ argument that the ban on class actions rendered the arbitration provision
unconscionable was directed to the delegation clause as well. Second, we conclude
that her argument that performance of the delegation clause was rendered impossible
under New Mexico law because the NAF had ceased its consumer arbitration business
was also a specific challenge to the delegation clause, which assigned the NAF as the
arbitral forum for resolving “any and all disputes” between the parties. 	These
arguments were both clearly directed against the validity of the delegation clause
alone, and were distinct from Felts’ claims against the Loan Agreements under the
UPA, SLA, etc.
{31} 	The next step in our analysis, based on Rent-A-Center, is to determine whether
Felts’ specific challenges to the delegation clause, as described above, render that
clause unenforceable under Section 2 of the FAA. See Rent-A-Center, 130 S. Ct. at
2778-79 (stating that delegation clauses are enforced under § 2 of the FAA and are
therefore valid “save upon such grounds as exist at law or in equity for the revocation
of any contract;” further stating that unless a delegation clause is specifically
challenged and found to be unenforceable, courts must treat it “as valid under § 2, and
must enforce it under §§ 3 and 4, leaving any challenge to the validity of the

Correction Page: Felts v. CLK Mgmt. Inc., (FySK) Nos. 30,142/29,702, filed 4-8-11: Page 27, lines 10-11: removed RP cites.
27
[a]greement as a whole for the arbitrator”).
{32} 	In this case, we have concluded that Felts’ argument under Fiser that the class
action ban in the arbitration provision was substantively unconscionable was directed
to the delegation clause as well. When Felts challenged the class action ban in the
proceedings below, she indicated that the class action ban was mentioned three times
in the arbitration provision—including the parenthetical in the delegation clause—and
she argued that all three of these prohibitions against class relief were unconscionable
and unenforceable under our Supreme Court’s rationale in Fiser. Therefore, when the
district court held that these “prohibitions against class relief” were unconscionable
and unenforceable under Fiser, its holding included an implicit finding that the class
action ban in the delegation clause was also unconscionable, thereby rendering it
invalid under Section 2 of the FAA.
{33} 	With this framework in mind, we turn to address whether the district court’s
application of Fiser to this case was proper, and we clarify that our discussion below
extends to the validity of the delegation clause as well. 	For reasons that become
apparent, we do not reach Felts’ second argument targeting the validity of the
delegation clause based on the unavailability of the NAF as the arbitral forum.

28
2. 	Unconscionability Analysis
{34} 	We next address Defendants’ contention that the district court erroneously
determined that the class action ban in the arbitration provision was unconscionable
under our Supreme Court’s holding in Fiser. Specifically, the district court found that
Felts’ claims constituted “small consumer claims within the meaning of Fiser” and
“[a]s such, [the] prohibitions against class relief [in the arbitration provisions were]
contrary to New Mexico’s fundamental public policy of encouraging the resolution
of small consumer claims.”
{35} 	“Unconscionability is an equitable doctrine, rooted in public policy, which
allows courts to render unenforceable an agreement that is unreasonably favorable to
one party while precluding a meaningful choice of the other party.” Cordova, 2009-
NMSC-021, ¶ 21. Contractual unconscionability consists of two types: substantive
and procedural. 	Id. 	“Substantive unconscionability relates to the content of the
contract terms and whether they are illegal, contrary to public policy, or grossly
unfair.” Fiser, 2008-NMSC-046, ¶ 20. “Procedural unconscionability is determined
by analyzing the circumstances surrounding the contract’s formation, such as whether
it was an adhesive contract and the relative bargaining power of the parties.” Id. In
this case, the district court did not address procedural unconscionability, nor did the
parties argue it below; therefore, our review is limited to the district court’s

29
determination that the arbitration provision was substantively unconscionable on
public policy grounds.
{36} 	Because Defendants’ primary argument on appeal is that Fiser is factually
distinguishable from this case in a number of ways, we begin our analysis by
summarizing the Supreme Court’s decision in Fiser. 	In Fiser, our Supreme Court
addressed whether an arbitration provision in a computer purchase agreement was
unconscionable and unenforceable under New Mexico law because it banned any form
of class action relief. Id. ¶¶ 12-22. The case involved a putative class action lawsuit
filed against a computer manufacturer for misrepresentation in the sale of computers,
where each similarly situated customer suffered damages of less than twenty dollars.
Id. ¶¶ 2-4. The district court granted the computer manufacturer’s motion to compel
arbitration, agreeing that under the terms of a binding arbitration clause in the
plaintiff’s computer purchase agreement, the plaintiff was not permitted to seek class
action relief and was instead required to arbitrate all disputes. 	Id. ¶¶ 4-5. 	The
Supreme Court reversed after concluding that the class action ban in the agreement
was contrary to New Mexico’s public policy because “[t]he opportunity for class relief
and its importance to consumer rights is enshrined in the fundamental policy of New
Mexico and evidenced by our statutory scheme.” Id. ¶¶ 5, 13. Recognizing that it is
fundamental New Mexico policy that consumers have a viable mechanism for dispute

30
resolution, no matter the size of the claim, the Court reasoned that the class action
mechanism is an important device for providing consumers with a meaningful remedy
in small consumer cases where the “cost of bringing a single claim is greater than the
damages alleged.” Id. ¶¶ 9, 15. Applying this rationale to the arbitration provision
at issue, the Court held:
By preventing customers with small claims from attempting class relief
and thereby circumscribing their only economically efficient means for
redress, [the d]efendant’s class action ban exculpates the company from
wrongdoing. 	Denial of a class action in cases where it is appropriate
may have the effect of allowing an unscrupulous wrongdoer to retain the
benefits of its wrongful conduct. 	On these facts, enforcing the class
action 	ban 	would 	be 	tantamount 	to 	allowing 	[the 	d]efendant 	to
unilaterally exempt itself from New Mexico consumer protection
laws. . . . Because it violates public policy by depriving small claims
consumers of a meaningful remedy and exculpating [the d]efendant from
potential wrongdoing, the class action ban meets the test for substantive
unconscionability.
Id. ¶ 21 (internal quotation marks and citation omitted).
{37} 	Defendants argue that Fiser is factually distinguishable from this case because
Felts’ claims do not constitute “small consumer claims” within the meaning of Fiser.
In support of this argument, Defendants refer us to the $3,900 in damages Felts is
seeking, an amount they contend is over two hundred times greater than the ten to
twenty dollars at issue in Fiser. We are unpersuaded because we do not view Fiser
as setting a numerical bar for what constitutes a small consumer claim; rather, the
Court there was concerned with circumstances where “the cost of bringing a single

31
claim is greater than the damages alleged.” 	Id. ¶ 15. 	It is under these specific
circumstances that the Court viewed class actions to “function[] as a gatekeeper to
relief” and to provide small claims plaintiffs with “the right of access to the courts”
to seek “a meaningful remedy for one’s claims.” Id. Applying this reasoning to the
facts of that case, the Court concluded that it did not need to engage in extensive fact-
finding to ascertain whether the plaintiff had met his “evidentiary burden of proving
that his damages [we]re outweighed by the cost of bringing an individual claim.” Id.
¶ 17. 	Instead, given the “scant” amount of damages being sought, the Court
determined that “[i]n light of attorney[] fees, the costs of gathering evidence and
preparing the case, and the time spent educating himself on the issues and organizing
and presenting the claim, the likelihood that [the p]laintiff’s actual costs [would]
exceed [the amount of damages alleged] is certain.” Id. ¶¶ 3, 17. Thus, although it
was presented in Fiser with a scenario where it was virtually certain that costs would
outweigh the amount of damages alleged, the Supreme Court nevertheless indicated
that evidentiary fact-finding should occur on this issue. Id. We take this opportunity
to clarify that, within the meaning of Fiser, district courts are required to determine
whether a plaintiff’s costs in bringing an individual claim outweigh the amount of
damages alleged, such that a meaningful remedy for the plaintiff’s claims is only
available through class action relief. The plaintiff bears the evidentiary burden on this

32
issue.
{38} 	In this case, therefore, the issue before the district court was not whether the
actual amount of damages alleged by Felts exceeded the ten to twenty dollar amount
in Fiser, but whether the costs of bringing an individual claim would exceed the
amount of damages she had alleged within the meaning of Fiser. Though the district
court determined that it did not need to undertake an evidentiary hearing on the issue,
it nevertheless entered a factual finding that “the amounts at issue here fall within the
small consumer claims as envisioned by Fiser.” 	It is apparent from the hearing
transcript that the court considered the evidence introduced by Felts on the issue, and
we review whether substantial evidence exists to support the court’s factual
determination.
{39} 	Our review of the record indicates that substantial evidence supports the district
court’s finding that Felts brought a small consumer claim within the meaning of Fiser.
Felts submitted twelve different affidavits from attorneys, including two former New
Mexico attorneys general, all of which highlighted the numerous costs and perceived
difficulties of pursuing an individual claim against Defendants. The affidavits also
contained evidence that the class action ban in the arbitration provision acted as an
exculpatory clause for Defendants because it was economically unfeasible to bring an
individual claim against Defendants otherwise. The attorneys stated that they would

33
not agree to represent a plaintiff in an individual action involving the amount of
damages alleged by Felts given the costs and the complexity of the claims at issue, and
that they were not aware of any New Mexico attorney who would agree to bring such
a lawsuit on an individual basis. We think it is significant that Defendants had the
opportunity to, but did not, submit any counter evidence indicating that the class
action ban was not exculpatory or that it was economically feasible for Felts to bring
her claim individually. We conclude that substantial evidence exists showing that the
likelihood that Felts’ costs will exceed her damages is reasonably certain and,
therefore, she has brought a “small consumer claim” within the meaning of Fiser.
{40} 	Defendants also argue that Fiser is distinguishable because Felts has raised
statutory claims under the UPA which allow her to recover attorney fees and costs in
the event she is successful in arbitrating her claims. We are not persuaded by this
argument because 	Fiser 	also involved a UPA claim and the Supreme Court
nevertheless determined that the class action ban in the arbitration agreement was
unconscionable for public policy reasons. 	Fiser, 2008-NMSC-046, ¶¶ 2, 5.
Accordingly, we affirm the district court’s determination that the class action ban in
the arbitration provision was substantively unconscionable within the meaning of
Fiser and was, therefore, unenforceable.
3. 	Severability

34
{41} 	Lastly, we address Defendants’ contention that the district court erroneously
determined that the entire arbitration provision was unenforceable rather than severing
the unconscionable class action ban from the arbitration provision and enforcing the
remainder. 	In 	cases 	where 	a 	provision 	of 	a 	contract 	is 	determined 	to 	be
unconscionable, “a court may refuse to enforce the contract, or may enforce the
remainder of the contract without the unconscionable term, or may so limit the
application of any unconscionable term as to avoid any unconscionable result.”
Padilla v. State Farm Mut. Auto. Ins. Co., 2003-NMSC-011, ¶ 15, 133 N.M. 661, 68
P.3d 901.
{42} 	We hold that the district court properly determined that the class action ban was
not severable from the rest of the arbitration provision because we conclude that the
class action ban was central to the means by which the parties could resolve their
disputes under this particular arbitration provision. See Fiser, 2008-NMSC-046, ¶ 24
(determining that an unconscionable class action ban could not be severed from an
arbitration agreement because “the class action ban is part of the arbitration provision
and is central to the mechanism for resolving the dispute between the parties”); see
also Cordova, 2009-NMSC-021, ¶ 40 (refusing to sever unconscionable portions of
an arbitration agreement because these provisions were “central to the original
mechanisms for resolving disputes between the parties”). The class action ban was

35
mentioned several times throughout the arbitration provision and then reinforced again
within the separate class action waiver provision; it is clear that it was a key limitation
to the mechanisms by which the parties could resolve their disputes. 	Cf. Padilla,
2003-NMSC-011, ¶ 18 (relying on guidance from other jurisdictions and severing an
unconscionable de novo appeals clause from an insurance contract because the appeals
clause was “separate and distinct” from the arbitration provision and did not affect the
“general conduct of the arbitration itself” (internal quotation marks and citations
omitted)). Moreover, we see no indication that Defendants have ever disputed that the
class action ban is not a key limitation under the terms of the arbitration provision;
rather, they have consistently maintained that class-based relief is not available to any
party under the provision. 	Under Fiser and Cordova, therefore, the district court
correctly found that severance was not an available remedy.
{43} 	We note that CANI argues that the class action waiver provision, which is
separate and distinct from the class action ban in the arbitration provision, evidences
the parties’ intent that class action waivers are not “central to the parties’ bargain.”
The class action waiver provision states that “[t]o the extent permitted by law [the
borrower] will not bring, join or participate in any class action as to any claim, dispute
or controversy [the borrower] may have against [the lender].” (Emphasis added.)
CANI contends that this language is “clear evidence of the parties’ intent that the class

36
action waiver would . . . only be enforced by the arbitrator ‘to the extent permitted by
law’ [and t]hus, the parties’ . . . desired arbitration to proceed even if the class action
waiver were not permitted by law.” In support, CANI cites to out-of-state authority
where a class action ban was severed from an arbitration agreement because the class
action ban clause contained a savings clause banning class actions “unless your state’s
laws provide otherwise.” See Kristian v. Comcast Corp., 446 F.3d 25, 61-62 (1st Cir.
2006) (emphasis omitted) (internal quotation marks omitted).
{44} 	However, even if we were to agree with CANI that the phrase “to the extent
permitted by law” indicates that the parties contemplated severability of the class
action ban, we determine that severing the class action ban in this case would excise
major portions of the arbitration provision in a manner that would lead to the very
type of “judicial surgery” that our Supreme Court warned against in Cordova. See
Cordova, 2009-NMSC-021, ¶ 40 (“We are reluctant to try to draft an arbitration
agreement [that] the parties did not agree on. . . . 	[W]e must strike down the
arbitration clause in its entirety to avoid a type of judicial surgery that inevitably
would remove provisions that were central to the original mechanisms for resolving
disputes between the parties.” (citation omitted)). This is a legitimate policy concern
that was also acknowledged by the out-of-state authority cited by CANI. 	Kristian,
446 F.3d at 62 (noting that courts typically prefer “declaring an arbitration agreement

37
unenforceable rather than using severance as a remedy when fundamental elements
of the arbitration regime are at issue” and that severing the class arbitration bar would
be “difficult to justify” absent a savings clause). We follow this policy rationale and
uphold the district court’s determination that the class action ban could not be severed
from the arbitration provision and thus, the entire arbitration provision was
unenforceable.
CONCLUSION
{45} 	For the foregoing reasons, we affirm the district court’s orders denying
Defendants’ motions to compel arbitration.
{46} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Judge

WE CONCUR:

JONATHANB. SUTIN, Judge

RODERICK T. KENNEDY, J udge

38