Anders v. Hometown Mortgage Services, Inc.

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR TH E ELEV ENTH C IRCUIT FILED

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U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 02-14448 September 25, 2003 ________________________ THOMAS K. KAHN D. C. Docket No. 02-00070-CV -C-W CLERK

JON AH P . AND ERS , and all oth ers similar ly situated,

Plaintiff- Appe llant,

versus

HOM ETO WN MO RTG AGE SER VICE S, INC ., MO RTG AGE BRO KER S GR OUP OF T USC ALO OSA ,

Defen dants-A ppellees.

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Appeal from the United States District Court for the Northern District of Alabama

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(September 25, 2003)

Before EDMOND SON, Chief Judge, CARNES, Circuit Judge, and CARNES*, District Judge.

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*Honorable Julie E. Carnes, United States District Judge for the Northern District of Georgia, sitting by designation.

CARNE S, Circuit Judge:

This is another arbitration dispute in which the parties are litigating whether or not th ey shou ld be litigatin g. The f amiliar sce nario is th at the partie s agree in writing to arbitrate any disp utes betw een them , but then one par ty files a law suit taking the position that the agreement to arbitrate is inapplicable, invalid, or unenforceable for one reason or another. Here the plaintiff contends the agreement to arbitrate does not cover his federal statutory claims, is unenforceable because he cannot afford to arbitrate, and is invalid because it does not afford him the remedial relief to w hich he is entitled un der the sta tutes.

Based on the agreement, the district court compelled arbitration and dismissed the lawsuit. We conclude that the agreement is broad enough to cover the dispute, any problem involving whether the plaintiff can afford the cost of arbitration is no p roblem in ligh t of the defend ant’s stipulation to p ay the plaintiff’s costs of arbitration, and because any impermissible restrictions on the remedies are severable from the other parts the agreement itself is not invalid. As a result, we affirm the district court’s decision to send the case to arbitration where, if the plaintiff establishes his right to relief, the arbitrator will decide the remedies issues.

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I.

To finance the purchase of his home, Anders borrowed funds from Hometown M ortgage Services in a transaction brokered by Mortgage Brokers Grou p of Tu scaloosa . At the clo sing, A nders sig ned a nu mber o f docum ents includin g an arb itration ag reemen t.1 The agreement specifically refers all disputes between Hometown Mortgage and Anders to arbitration. And it limits the remedies available to Anders, stating that “the arbitrator(s) may not award punitive damages, treble damages, penalties, or attorney’s fees.” Just in case that or some other pa rt of the ag reemen t does no t hold up , the agree ment inc ludes a se verability or savings clause specifying that if a court declares part of the agreement invalid or unenforceable, the remainder of the agreement will not be affected.

Anders sued both Mortgage Brokers and Ho metown Mortgage alleging that they viola ted the R eal Estate S ettlement P rocedu res Act ( RES PA) a nd the T ruth in Lending Act (TILA). Mortgage Brokers failed to respond to the complaint, and the district court issued a default against it. Hometown Mortgage, on the other hand, filed a motion to compel arbitration based on the arbitration agreement. In response, Anders asserted that he could not afford arbitration, to which Hometown

1 Anders actually signed two documents pertinent to this appeal: The arbitration agreement and a mortgage rider. The documents include materially identical remedial restrictions and severability clauses. For the sake of simplicity, we will generally refer to both of those documents as the arbitration agreement.

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Mortg age replie d with a stipulation that if the tria l court fo und A nders u nable to afford the costs associated with arbitration and found that his inability to pay voided the agreement, Hometown Mortgage would bear the costs of arbitration that Ande rs otherw ise wou ld have h ad to pay . Based on that stipulation, the district court issued an order compelling arbitration and dismissing the case without prejudic e. Ande rs then b rough t this appe al.

II.

Ande rs presen ts three rea sons w hy he sh ould no t be force d to arbitr ate his claims ag ainst Ho metow n Mo rtgage: th e agreem ent to arb itrate does not reach his claims; the agreement is unenforceable because he cannot afford arbitration; and the agreement is invalid because of its remedial restrictions. Each of these contentio ns, throu gh wh ich An ders attem pts to avo id arbitratio n entirely, f alls within the category of “gateway matters” which the Supreme Court has instructed us that co urts and not arbitr ators sho uld decid e, Green Tree Financial Corp. v. Bazzle, 539 U.S. __, __ 1 23 S. Ct. 2402, 240 7 (2003) (holding that cou rts must decide “ce rtain gatew ay matters , such as w hether th e parties h ave a valid arbitration agreement at all or whether a conceded ly binding arbitration clause applies to a certain typ e of con troversy ”); see also Howsam v. Dean W itter Reynolds, Inc., 537 U .S. 79, 1 23 S. C t. 588, 59 2 (200 2) (“[A ] gatewa y dispute

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about whether the parties are bound by a given arbitration clause raises a ‘question of arbitra bility’ for a c ourt to d ecide.”).

Anders first contention is that because the agreement to arbitrate contains remedial limitations, and because he is entitled to the full remedies afforded by the federal statutes under which his claims arise, the agreement must not reach the disputes involvin g his claim s. TILA and RESPA do provide for relief and remedies that may be excluded by the agreement, which does not permit the arbitrator to awar d punitiv e damag es, treble d amages , penalties, o r attorney ’s fees. For example, Anders alleges that Hometown Mortgage paid referral fees or kickbacks to Mortgage Brokers, in violation of Section 8 of RESPA, 12 U.S.C. § 2607 (a), for w hich the s tatute pro vides treb le damag es, id. § 2607(d). Anders also alleges that Hometown Mortgage failed to disclose certain finance charges and understated the annual percentage rate it charged, all in violation of TILA, 15 U.S.C . § 1638 , and Re gulation Z, 12 C .F.R. §§ 226.4, 2 26.18, a nd 226 .22. TILA entitles suc cessful p laintiffs to s tatutory d amages as well as any actua l damag es. 15 U.S.C. § 1640(a). Anders seeks attorney’s fees, which both TILA and RESPA allow prevailing plaintiffs to recover, TILA, 15 U.S.C. § 1640(a)(3); RESPA, 12 U.S.C. § 2607(d)(5).

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Anders contends that because the arbitrator cannot award the full relief that is permitted by the statutes, the parties must not have intended for the arbitration agreem ent to cov er these sta tutory claim s. The cle ar wor ds of the agreem ent, however, foreclose that position. It says:

[A]ny action, dispute, claim, counterclaim or controversy (“Dispute” or “Disputes”), between us, including any claim based on or arising from an alleged tort, shall be resolved in Birmingham, Alabama by ARBITRATION as set forth below. The term “D isputes” shall include all actions, disputes, claims, counterclaims or controversies arising in connection with the Loan, Note o r the Sec urity Instr ument, a ny collectio n of any indebted ness ow ed to Lender, any security or Collateral given to Lender, any action taken (or any omissio n to take any action ) in conn ection w ith any of the abov e, any pas t, present a nd futu re agreem ent betw een or am ong us (includin g the Se curity Instrument), and any past, present or future transactions between or among us.2

The agreement could n ot have been broader. A ny disputes means all disputes, because “‘any’ means all.” Merrit v. Dillard Paper Co., 120 F .3d 118 1, 1186 (11th Cir. 1997) (citing United States v. Gonzales, 520 U.S. 1, 5, 117 S. Ct. 1032, 1035 (1997 )). And so, of co urse, do es the w ord “all” itse lf. The ag reemen t reaches th is dispute b ecause th e agreem ent reach es any an d all dispu tes.

Having decided that gateway issue against Anders, we turn to his next contention, which is that the agreement should not be enforced because he cannot afford th e costs of arbitration . It may be that an ag reemen t to arbitrate is

2 The quotation is from the arbitration agreement. The mortgage rider contains materially, although not literally, identical language. See note 1, above.

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unenforceable if the cost of arbitration precludes the effective vindication of statutory r ights in ar bitration. Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 90, 121 S. Ct. 513, 522 (2000). But “where, as here, a party seeks to invalidate an arbitration agreem ent on th e groun d that arb itration w ould be prohib itively expensive, that party bears the burden of showing the likelihood of incurring such costs.” Id. at 92, 121 S. Ct. at 522. Anders submitted an affidavit in which he said: “I simply cannot afford to pay the $3,500.00 to $6,000.00 that I have determined will be re quired to arbitrate m y claims,” a nd in tha t affidavit h e substan tiated his inability to do so by detailing his assets, debts, income, and expenses; he even attached a copy of his credit r eport. That is not enough, in view of the circums tances.

The agreement provides that arbitration will be in accordance with the Amer ican Ar bitration A ssociation Rules fo r Com mercial F inancial D isputes. Those rules specify that “the AAA may, in the event of extreme hardship on the part of any party, defer or reduce the administrative fees.” AAA Rules for Comm ercial Fin ancial D isputes, R ule 46. They also provide that all other expenses of the arbitration, including travel, costs of witnesses, and fees of the arbitrator, while ordinarily “borne equally by the parties” may be assessed by the arbitrator against an y specified party. Id. Rule 47. We need not decide if those provisions of

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the AAA rules alone are enough to preclude a finding that arbitration would be prohibitively expensive for Anders, because there is more.

The m ore is that H ometow n Mo rtgage stip ulated in th e district co urt that if Anders was unable to pay for arbitration and his inability would preclude arbitration, Hometown Mortgage “would agree to bear the administrative fees which Anders would otherwise be required to pay in the institution of an arbitration action.” At oral argument before us, Hometown Mortgage’s counsel said the stip ulation m eans her client will p ay “wha t we nee d to pay to make it fa ir for Mr. Anders,” and the arbitrator will decide how much Hometown Mortgage should pay of And ers’ costs. Cou nsel agreed tha t Hometo wn M ortgage’s stipulation should be cons trued ex pansive ly, and w e interpre t her repr esentation s to us to me an that no declaratio n of inv alidity beca use of p rohibitiv e costs is necessary before her client will help with A nders’ costs.3 Given Hometown Mortg age’s w illingness to bear th e costs of arbitration that An ders is un able to afford (as the arbitrator determines), it follows that Anders has not demonstrated that arbitration would be prohibitively expensive for him.4

3 Counsel for Hometown Mortgage did say at oral argument that her client’s stipulation does not cover Anders’ attorney’s fees, but that is not what the Green Tree issue which we are discussing is about.

4 Our decision of this issue is consistent with our recent decision in Musnick v. King Motor Co. of Ft. Lauderdale, 325 F.3d 1255 (11th Cir. 2003), where we rejected the plaintiff’s contention that a “loser-pays” attorney’s fees provision invalidated an agreement to arbitrate. Id.

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Anders’ final contention is that the arbitration agreement cannot be enforced since it contains provisions that are invalid because they cut down remedies otherwise available to him under the federal statutes upon which his claims are based. This contention implicates general principles of arbitration law, such as the Federa l Arbitra tion Ac t’s prono uncem ent that w ritten arbitr ation agr eements “shall be valid, ir revocab le, and en forceab le, save up on such groun ds as exis t at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. The Supreme Court has interpreted that statutory pronouncement as “a congressional declaration of a liberal federal policy favoring arbitration agreements.” Moses H . Cone M em’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S. Ct. 927, 941 (1983). That is entirely understandable since the FAA was enacted “‘to reverse the longstanding judicial ho stility to arbitr ation agr eements . . . and to p lace arbitra tion agre ements upon the same footing as other contracts.’” EEOC v. W affle House, Inc., 534 U.S. 279, 289, 122 S. Ct. 754, 761 (2002) (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U .S. 20, 2 4, 111 S . Ct. 164 7, 1651 (1991 )).

at 1261-62. Applying Green Tree, we concluded that because the plaintiff might prevail in arbitration and incur no attorney’s fees, he had not met his burden of showing prohibitive costs of arbitration. In Musnick, as in this case, the Green Tree issue determined the enforceability of the agreement to arbitrate and was therefore a gateway issue to be decided by the court and not the arbitrator.

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Agree ments to arbitrate ar e akin to f orum- selection c lauses. Cunningham v.

Fleetwood Homes of Ga., Inc., 253 F.3d 611, 617 (11th Cir. 2001) (citing Scherk v. Alberto-Culver Co., 417 U .S. 506 , 519, 94 S. Ct. 24 49, 245 7 (197 4)). A p arty agreeing to arbitrate statutory c laims “do es not fo rgo the s ubstantiv e rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc., 473 U.S. 6 14, 628 , 105 S . Ct. 334 6, 3354 (1985 ). Feder al statutory claims are as a rule arbitrable , see Gilmer, 500 U.S. at 28, 111 S. Ct. at 1653, and claims under TILA and RE SPA are no ex ception, see Bowen v. First Family Fin. Servs. Inc., 233 F.3d 1331, 1338 (11th Cir. 2000) (concluding that nothing in the text or legislative history of TILA establishes that plaintiffs have a non-waivable right to pursue an individu al lawsu it as disting uished f rom pu rsuing a rbitration ); Blount v. N at’l Lending Corp., 108 F. Supp. 2d 666, 669 (S.D. Miss. 2000) (holding that RESPA claims are arbitrable). The parties in this case do not disagree about TILA and RESPA claims being arbitrable but about whether the arbitration agreement they signed is invalid on the ground that it contains provisions which would defeat the remedia l purpo ses of R ESP A and TILA .

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Anders relies upon Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054 (11th Cir. 1998).5 That decision involved an employer’s ap peal of a district cou rt’s denial of its motion to comp el arbitratio n in an em ployme nt discrim ination ac tion. The agreement in that case referred to arbitration all employment disputes, but specified that “[t]he arbitrator is authorized to award damages for breach of contract only, and shall have no authority whatsoever to make an award of other damages.” Id. at 1060. Because Title VII damages are not contract damages, we concluded that the arbitration clause denied the employee “the possibility of meaningful relief in an arbitration proceeding.” Id. at 1062. The arbitration clause was invalid, we said, because “the arbitrability of [statutory] claims rests on the assumption that the arbitration clause permits relief equivalent to court remedies.” Id. (citing Gilmer, 500 U .S. at 28, 1 11 S. C t. at 1653 ). The ar bitration c lause in Paladino did not d o that, so w e prono unced it in valid. W ith no va lid agreem ent to arbitrate, th e parties w ere left to fig ht it out in c ourt.

Other c ircuits hav e handle d issues in volving remedy restriction provisio ns in arbitration agreements differently than we did in Paladino. They let the arbitrator decide in the first ins tance w hether re medial lim itations are permiss ible. See, e.g.,

5 Anders’ additional reliance upon Perez v. Globe Airport Sec. Servs., 253 F.3d 1280 (11th Cir. 2001), is misplaced, because we have vacated our decision in that case, 294 F.3d 1275 (11th Cir. 2002), and a vacated decision has no effect whatsoever, United States v. Sigma Int’l, 300 F.3d 1278, 1280 (11th Cir. 2002).

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Hawkins v. Aid Association For Lutherans, 338 F.3d 801, 807 (7th Cir. 2003) (“Becau se the ade quacy o f arbitratio n remed ies has no thing to d o with whether the parties agreed to arbitrate or if the claims are within the scope of that agreem ent, these c hallenge s must fir st be con sidered b y the arbitr ator.”); Bob Schultz Motors, Inc. v. Kawasaki Motors Corp., 334 F.3d 721, 726 (8th Cir. 2003) (“[T]he party seeking to void the provisions [in an arbitration agreement] waiving punitive damages and other relief ha[s] to address those arguments to the arbitrator .”); Larry’s United Super, Inc. v. Werries, 253 F.3d 1083, 1086 (8th Cir. 2001) (declining to follow Paladino, and stating “[w]hether federal public policy prohibits an individual from waiving certain statutory remedies is an issue that may be raised when challeng ing an ar bitrator’s a ward” ); MCI Telecomms. Corp. v. Matrix Comms. Corp., 135 F.3d 27, 33 n.12 (1st Cir. 1998) (holding that an argum ent that an arbitration agreem ent is inva lid becau se it foreclo ses certain remedies otherwise available “must be brought to the arbitrator because it does not go to the arbitrability of the claims but only to the nature of available relief”); Great Western Mortgage Corp. v. Peacock, 110 F.3d 222, 232 (3d Cir. 1997) (“The availability of punitive damages is not relevant to the nature of the forum in which the complaint will be heard. Thus, availability of punitive damages cannot enter into a dec ision to co mpel arb itration.”). But see Ingle v. Circuit City Stores, Inc., 328 F.3d 1165, 1179 (9th Cir. 2003) (affirming the denial of a motion to compel

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arbitration and stating that: “[b]ecause the remedies limitation [in the arbitration agreem ent] impr operly p roscribe s available statutory r emedies , . . . it is substantively unconscionable”).

The dif ference b etween those de cisions o f the Firs t, Third, S eventh, and Eighth Circuits and our Paladino decision is that in those circuits an agreement containing a provision that impermissibly precludes or limits statutorily authorized remedie s is still a valid agreem ent purs uant to w hich the c ase is to be sent to arbitration, where the arbitrator decides the remedies issues along with all the others. Under Paladino, it is not an issue for the arbitrator, at least not under the facts and circumstances of that decision.

Of cou rse we h ave no n eed to de cide wh ether, in th e circum stances it involve d, Paladino is the better approa ch; that de cision is th e law of this Circu it regardle ss of ou r view o f it. See Smith v. GTE Corp., 236 F.3d 1292, 1301-02 (11th C ir. 2001 ); United States v. S teele, 147 F.3d 1316, 1317-18 (11th Cir. 1998) (en banc). However, while we must apply the Paladino decision to facts and circumstances sufficiently similar to those under which it arose, we are not obligated to extend the decisio n to diffe rent situatio ns. See Watts v . BellSo uth Telecomms., Inc., 316 F.3d 1203, 1207 (11th Cir. 2003) (“[J]udicial decisions cannot make law beyond the facts of the cases in which those decisions are announced.”). The prior panel precedent rule obligates us to follow the holdings of

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an earlier d ecision, United States v. S mith, 122 F.3d 1355, 1359 (11th Cir. 1997) (per curiam), but “[t]he holdings of a prior decision can reach only as far as the facts and circumstances presented to the court in the case which produced that decision,” United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000) (per curiam) (citation an d interna l marks o mitted).

This case is different from Paladino in a way that leads us to conclude that even if the remedial restrictions within the arbitration agreement in this case are invalid, as Anders argues, the parties must still arbitrate. Necessarily implicit in the Paladino decision is the proposition that the invalid remedial restrictions were not severable from the remainder of the arbitration agreement in that case. Otherwise, this Court would not have struck down the entire agreement as it did in affirming the district’s court’s re fusal to o rder arb itration. Nothing in the Paladino decision indicates that there was a severability provision in that agreement to arbitrate; severab ility is not ev en men tioned in the opin ion of th e Cour t.6 By con trast, the arb itration ag reemen t in this case contains a severab ility provision that evidences the parties’ intention to enforce the remainder of the

6 The opinions in Paladino are presented in a confusing way. Chief Judge Hatchett’s opinion is presented first, but no other member of the panel joined it, 134 F.3d at 1055. The opinion of the Court is that of Judge Cox, joined as it was by Judge Tjoflat, id. at 1060; cf. McMahan v. Toto, 311 F.3d 1077, 1080 (11th Cir. 2002) (“Two is a majority of three, and a majority of participating judges controls a court’s decision.”).

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agreement in the event any portion of it is deemed invalid.7 If the sev erability provision is given effect, it means that in this case, unlike in Paladino, the remainder of the arbitration agreement survives any invalidity of its remedial restrictions. Whether the severability provision is to be given effect is a question of state law, b ecause in placing a rbitration agreements on a n even f ooting w ith all other co ntracts, the FAA makes g eneral state contract la w con trolling. See Paladino, 134 F.3d at 1061. That means in this case that the effect given the severability clause – if the provisions restricting remedies are invalid – is to be decided under th e law of Alabam a, which is the state law applicab le to this agreem ent.

Alabam a law fav ors seve rability, and it gives fu ll force an d effect to severability clauses. Two recent decisions of the Supreme Court of Alabama – which happen to be in arbitration cases – illustrate. In Ex Pa rte Thick lin, 824 So. 2d 723 (Ala. 200 2), the Court concluded that a prov ision in an arbitration clause

7 The arbitration agreement in this case states:

If for any reason a court of competent jurisdiction should declare all or any part of this Agreement invalid or unenforceable, then the remainder of this Agreement, or the application of such provision or provisions to persons, entities or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected thereby, and every provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law . . . .

The mortgage rider contains a materially, though not literally, identical provision.

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prohib iting pun itive dam ages w as invalid , but seve red it out, s ending the case to arbitration . Id. at 735. Then in Ex parte Celtic Life Ins. Co., 834 So. 2d 766 (Ala. 2002), the Court explained that there is a “general ‘duty of the co urt to preserve so much of a contract as may properly sur vive its invalid and ineffective prov isions’” and enforced the arbitration agreement minus the invalid provision excluding punitive damag es. Id. at 769 (q uoting 1 7A C .J.S. Contra cts § 297 (1999)). Like the agreement in this case, the agreements in Thicklin and Celtic Life included severab ility clauses. Celtic Life, 834 S o. 2d at 7 68, Thicklin , 824 So. 2d at 734. In view of the clear and settled Alabama law favoring severability, as well as the FAA’s requirement that arbitration agreements be treated no less favorably than other contracts under state law, the severability clause in this case should be applied to preve nt any inv alid prov isions fro m destro ying the e ntire agre ement to arbitrate.

The decision in Paladino, in which the invalid portion of the arbitration agreement was not severed, is distinguishable. 134 F.3d at 1062. As we have mentioned, the opinion in Paladino says nothing about a severability clause and there may not have been one. Also, the agreement in Paladino, a Florida case, was not to be constru ed and a pplied in light of A labama la w, id. at 1061 n.1, which favors s everability . Wheth er we co rrectly app lied the ap plicable sta te law in Paladino, we hav e an oblig ation to ap ply Alab ama law correctly in this case.

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The severability determination decides the arbitration question. Because any invalid provisions are severable, the underlying claims are to be arbitrated regardless of the validity of the remedial restrictions. With or without those provisions, the case goes to arbitration. Whether the agreement is valid as written or suffers invalid provisions that must be removed under the forgiving eye of the severan ce clause, th ere is a valid agreem ent to arb itrate in plac e.

Since th e case is go ing to arb itration, an arbitrator and no t a court sh ould decide the validity of the remedial restriction provisions, because “[a] court compelling arbitration should decide only such issues as are essential to defining the nature of the forum in which a dispute will be decided.” Musnick v. King Moto r Co. of Ft. Lau derdale, 325 F.3d 1255, 1261 (11th Cir. 2003) (quotation marks a nd citation omitted) . Our d ecision in this respe ct aligns u s with th e majority of circuits that have answered this question. See, e.g., Bob Schultz Motors, Inc. v. Kawasaki Motors Corp., 334 F.3d 721, 726 (8th Cir. 2003); MCI Telecomms. Corp. v. Matrix Comms. Corp., 135 F .3d 27, 3 3 n.12 ( 1st Cir. 1 998); Great Western Mortgage Corp. v. Peacock, 110 F.3d 222, 232 (3d Cir. 1997).

We realize that the Supreme Court of Alabama in Thicklin and Celtic Life did decide the validity of the challenged remedial restrictions in those cases before sending the disputes to arbitration. If it were a matter of general contract law, we would follow the Thicklin and Celtic Life approach here, because Alabama law

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applies to the general contract questions in this case. How ever, unlike severability, whether a court or arbitrator is to decide particular issues is not a question of contract law, but is instead governed by the FAA; it is a federal law issue to be decided under the “body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the [FAA],” Moses H. Cone, 460 U.S. at 24, 10 3 S. Ct. a t 941. State and federal courts are free to decide federal law issues for themselves (unless and until the United States Supreme Court settles the matter). We have done so, concluding that the arbitrator should decide whether the remedial provisions of the arbitration agreement are invalid, if the arbitrator decides that An ders’ claim s have m erit. 8 III.

We have decided all the gateway issues: whether the arbitration agreement covers this dispute; whether it is unenforceable because prohibitively expensive; and whether any invalid provisions are severable. Our decision of those issues compe ls the con clusion th at arbitratio n is the pr oper fo rum fo r settling th e dispute between these parties. Having decided the issues “essential to defining the nature of the forum in which a dispute will be decided,” Musnick, 325 F.3d at 1261 (quotatio n mark s and citatio n omitted ), we sh ould no t and w ill not decid e any mo re. The dis trict court p roperly c ompelle d arbitratio n.

8 We have no occasion at this time to decide the extent to which that decision of the arbitrator about the validity of the remedial provisions will be reviewable in court.

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AFFIRMED.