Paula Wallrich v. SAMSUNG ELECTRONICS AMERICA, INCORPORATED and SAM- SUNG ELECTRONICS COMPANY , LIMITED

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2842
PAULA WALLRICH , et al.,
Plaintiffs-Appellees,
v.
S AMSUNG ELECTRONICS A MERICA, INCORPORATED and S AM-
SUNG ELECTRONICS C OMPANY , LIMITED,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:22-cv-05506 — Harry D. Leinenweber, Judge.
____________________
A RGUED F EBRUARY 15, 2024 — DECIDED J ULY 1, 2024
____________________
Before S YKES , Chief Judge, and E ASTERBROOK and K IRSCH ,
Circuit Judges.
K IRSCH , Circuit Judge. Paula Wallrich and several thousand
other consumers filed arbitration claims before the American
Arbitration Association alleging that Samsung Electronics
Co., Ltd. and Samsung Electronics America, Inc., through
their electronic devices, unlawfully collect and store sensitive
biometric data in violation of Illinois law. Samsung denied the

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2 No. 23-2842
allegations. Further, it refused to pay the administrative filing
fees required by the AAA. The AAA, in its discretion and in
line with its rules, terminated the arbitration proceedings,
opening the door for the parties to pursue their claims in
federal court. Rather than take that approach, the consumers
filed a petition to compel arbitration in district court under 9
U.S.C. § 4 of the Federal Arbitration Act. The court ordered
Samsung to arbitrate and to pay the associated AAA filing
fees. Samsung appealed, disputing the existence of an
arbitration agreement with the consumers and challenging
the district court’s authority to require it to pay the AAA’s
fees. Because the consumers failed to meet their evidentiary
burden in proving the existence of an arbitration agreement
with Samsung, and because the parties’ alleged agreement
incorporated the AAA’s rules and procedures, which granted
the AAA substantial discretion over resolving fee disputes,
we reverse.
I
Appellants, Samsung Electronics Co., Ltd. and its subsidi-
ary, Samsung Electronics America, Inc., design, manufacture,
and sell electronic devices, including smartphones and tab-
lets. When consumers purchase or use Samsung devices, they
automatically agree to Samsung’s terms and conditions, ei-
ther by opening the original product packaging or by creating
a Samsung user account to be used with the device. Under
those terms, the consumer agrees that “all disputes” between
the consumer and Samsung arising in any way from the sale,
condition, or performance of the device “shall be resolved ex-
clusively through final and binding arbitration, and not by a
court or jury.” Further, the terms specify that the arbitration
“shall be conducted according to the American Arbitration

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No. 23-2842 3
Association (AAA) Commercial Arbitration Rules” and that
administrative, facility, and arbitrator fees shall likewise “be
determined according to AAA rules” when, as here, the dam-
age claims exceed $5,000.
Under the AAA rules, the AAA “has the discretion to ap-
ply or not to apply” any of its rules, including rules that cover
administrative fees. These rules outline the initial filing fee re-
quirements imposed on parties when 25 or more similar
claims for arbitration are filed. In such cases, both the individ-
ual consumers and the business entity have initial filing fees
due to the AAA before the arbitration can continue.
Despite this initial fee requirement, the AAA Supplemen-
tary Rules for Multiple Case Filings contemplate the scenario
where one party refuses to pay its share of the filing fees. Rule
MC-10(d) states, “If administrative fees, arbitrator compensa-
tion, and/or expenses have not been paid in full, the AAA may
notify the parties in order that one party may advance the re-
quired payment within the time specified by the AAA.” In
other words, if a business entity like Samsung refuses to pay
the fees, the AAA will notify the consumers of the business’s
nonpayment, and if the consumers still wish to proceed, they
can advance the business’s fees. On the other hand, according
to rule MC-10(e), if the consumers choose not to advance the
fees, “the AAA may suspend or terminate [the] proceedings”
and “may also decline to administer future arbitrations with
the parties involved.” At that point, the rules specify that ei-
ther party may choose to submit its dispute to the appropriate
court for resolution.
Enter Appellees, a group of 35,651 Illinois consumers, who
filed arbitration demands before the AAA alleging that they
purchased Samsung devices and that those devices

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4 No. 23-2842
unlawfully collected and stored sensitive biometric data in vi-
olation of the Illinois Biometric Information Privacy Act, 740
ILCS 14/1 et seq. Skeptical of the consumers’ litigation tactics
and the veracity of their claims, Samsung flagged several
problems with the consumers’ filings to the AAA, such as
missing or inaccurate contact information and misspelled ad-
dresses. The AAA agreed that the filings were deficient and
requested that the consumers submit revised versions. When
the consumers complied, the AAA notified the parties that the
consumers had met the AAA’s filing requirements. Then, the
AAA requested $4,125,000 from Samsung, representing Sam-
sung’s share of the initial administrative filing fees (the con-
sumers had already paid their share).
Samsung, still doubting the merits of the claims, refused
to pay its share of the filing fees. In response, and in accord-
ance with the rules discussed above, the AAA offered the con-
sumers the opportunity to advance Samsung’s fees so that the
arbitration could proceed, but they declined. The AAA then
notified the parties that, unless it heard otherwise, it would
close the arbitration proceedings and refund the consumers’
filing fees, allowing either party to submit the dispute to the
appropriate court for resolution. The consumers responded,
reiterating that they would not advance the fees and asking
the AAA to stay the proceedings until they could get an order
compelling arbitration from a federal court. The AAA denied
the request for a stay and closed the arbitration proceedings.
Rather than submit their cases to federal court on the mer-
its, the consumers filed a Petition to Compel Arbitration un-
der § 4 of the Federal Arbitration Act. 9 U.S.C. § 4. Aside from
attorneys’ fees and costs, the only relief sought in the petition
was an order compelling Samsung to pay its AAA filing fees

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No. 23-2842 5
and to arbitrate the claims. The district court, relying on cop-
ies of the consumers’ arbitration demands before the AAA,
copies of Samsung’s terms and conditions, a spreadsheet con-
taining the consumers’ names and addresses, and the AAA’s
determination that the consumers had met the AAA filing re-
quirements, found that the consumers sufficiently established
the existence of a valid arbitration agreement. Then, the court
ordered Samsung to pay its administrative filing fees and pro-
ceed to arbitration. It issued a separate minute entry indicat-
ing that it granted the consumers’ petition and staying the
case pending the arbitration. This appeal followed.
II
Before turning to the merits of the appeal, we must ad-
dress two jurisdictional hurdles. First, we agree with the par-
ties that the district court had subject matter jurisdiction over
the case. Chapter 2 of the Federal Arbitration Act, which im-
plements the Convention on the Recognition and Enforce-
ment of Foreign Arbitral Awards, confers subject matter juris-
diction upon district courts for actions or proceedings falling
under the Convention, regardless of the amount in contro-
versy. 9 U.S.C. § 203. And an action to enforce an arbitration
agreement falls under the Convention if the agreement
(1) arises out of a commercial relationship (2) that is not en-
tirely between citizens of the United States. Id. § 202; see also
Vaden v. Discover Bank, 556 U.S. 49, 59 n.9 (2009) (citing Chap-
ter 2 of the FAA as an example of Congress expanding federal
subject matter jurisdiction). Here, the alleged arbitration
agreements at issue indisputably arose out of a commercial
relationship—the consumers purchased electronic goods
from Samsung. And at least one of the parties, Samsung Elec-
tronics Co., Ltd., is not a citizen of the United States.

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6 No. 23-2842
Therefore, under § 203 of the FAA, the district court had sub-
ject matter jurisdiction over the consumers’ action seeking to
enforce the agreements.
We next turn to appellate jurisdiction. The consumers
argue that we do not have appellate jurisdiction over
Samsung’s appeal. We disagree. The consumers proceeded in
the district court under § 4 of the FAA by petitioning “for an
order directing that … arbitration proceed in the manner
provided for” in “a written agreement for arbitration.” 9
U.S.C. § 4. The district court granted the petition and ordered
Samsung to arbitrate, then inexplicably stayed the case.
Section 16 of the FAA, 9 U.S.C. § 16, governs appellate review
of arbitration orders. Pertinent to this appeal are two
subsections: § 16(a)(3) and § 16(b)(1). Section 16(a)(3) states,
“An appeal may be taken from … a final decision with respect
to an arbitration that is subject to this title.” But § 16(b)(1)
limits appellate review in certain circumstances, stating,
“[A]n appeal may not be taken from an interlocutory order …
granting a stay of any action under section 3 of this title.” The
consumers believe § 16(b)(1) precludes our appellate review
because the district court stayed the case after compelling
Samsung to arbitrate. In further support, they chiefly rely on
a footnote from the Supreme Court’s decision in Green Tree
Financial Corp.-Alabama v. Randolph, 531 U.S. 79 (2000). The
consumers’ argument is flawed. Section 16(b)(1) and Green
Tree do not apply here.
Section 16(b)(1) only limits appellate review of an “inter-
locutory order” granting a stay “under section 3.” And a § 3
stay only occurs in proceedings brought “upon any issue ref-
erable to arbitration” after one of the parties asks the court for
the stay. Such proceedings are distinguishable from those

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No. 23-2842 7
brought under § 4 (like the proceedings here) in that they in-
volve underlying substantive claims for relief that are them-
selves, in whole or in part, referable to arbitration and distinct
from mere requests to compel arbitration. See Gilmer v. Inter-
state/Johnson Lane Corp., 500 U.S. 20, 25 (1991) (“The FAA also
provides for stays of proceedings in federal district courts
when an issue in the proceeding is referable to arbitration, § 3,
and for orders compelling arbitration when one party has
failed, neglected, or refused to comply with an arbitration
agreement, § 4.”); see, e.g., GEA Grp. AG v. Flex-N-Gate Corp.,
740 F.3d 411, 413–15 (7th Cir. 2014) (seeking a stay under § 3
where underlying fraud claims were referable to arbitration).
Thus, in a § 3 setting, a district court will have substantive
claims before it that are distinct from a request to arbitrate. If
the court finds that a valid arbitration agreement exists, it
must compel arbitration, stay the case, and retain jurisdiction
over those substantive claims until arbitration concludes. The
district court’s interlocutory order compelling arbitration in
that circumstance would not be appealable, squarely fitting
within the limitation set forth in § 16(b)(1). On the other hand,
in a § 4 setting, the only issue before the district court is a pe-
tition to compel arbitration; no underlying substantive claims
for relief are raised. Therefore, once the court issues its arbi-
tration order (leaving nothing else for it to do), it renders a
final decision that is appealable under § 16(a)(3); § 16(b)(1)
would not apply.
The Supreme Court’s reasoning in Green Tree tracks with
our interpretation of § 16(a)(3) and § 16(b)(1). In that case, Lar-
ketta Randolph had sued Green Tree Financial Corp. for vio-
lations of the Truth in Lending Act (TLA) and the Equal Credit
Opportunity Act (ECOA) based on a finance agreement

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8 No. 23-2842
between the parties. 531 U.S. at 82–83. Green Tree filed a mo-
tion to compel arbitration based on provisions of the agree-
ment and sought a stay of the case, or, alternatively, a dismis-
sal. Id. at 83. The district court granted the motion to compel,
denied the request for a stay, and dismissed her TLA and
ECOA claims with prejudice. Id. Randolph appealed. Id. at 84.
The Supreme Court concluded that it had appellate jurisdic-
tion under § 16(a)(3) to review the order compelling arbitra-
tion, holding that “where … the District Court has ordered
the parties to proceed to arbitration, and dismissed all the
claims before it, that decision is ‘final’ within the meaning of
§ 16(a)(3), and therefore appealable.” Id. at 89; see also id. at
86 (defining a “final decision” in § 16(a)(3) as “a decision that
‘ends the litigation on the merits and leaves nothing more for
the court to do but execute the judgment’”) (quotation omit-
ted).
In a footnote, however, the Court observed, “Had the Dis-
trict Court entered a stay instead of a dismissal in this case,
that order would not be appealable.” Id. at 87 n.2 (citing 9
U.S.C. § 16(b)(1)). The consumers latch onto this footnote,
reading it expansively to mean that any entry of a stay by a
district court renders an arbitration order unappealable. But
that view wholly ignores the context of the Court’s observa-
tion. A stay in Green Tree would have necessarily been under
§ 3 because Randolph brought substantive TLA and ECOA
claims—the issues referable to arbitration—before the district
court, not merely a petition to compel arbitration under § 4. If
it stayed the case, then, the court would have needed to retain
jurisdiction over those substantive claims, thereby precluding
appellate review. Thus, read correctly and in context, the
Court’s footnote in Green Tree merely confirms our discussion
above—that a stay entered under § 3 is an interlocutory order

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No. 23-2842 9
precluded from immediate appellate review under § 16(b)(1).
Green Tree did not involve a § 4 proceeding, and nothing in
the Court’s reasoning or in the language of § 16(b)(1) supports
the consumers’ broad rule that any entry of a stay, even an
unnecessary one in a § 4 proceeding, precludes appellate re-
view.
Our sister circuits have reached this same conclusion. For
example, in United Steel, Paper and Forestry, Rubber, Manufac-
turing, Energy, Allied Industrial & Service Workers International
Union v. Wise Alloys, LLC, 807 F.3d 1258 (11th Cir. 2015), a dis-
trict court compelled arbitration and stayed the proceedings
even though the plaintiff had only sought an arbitration order
without bringing any substantive claims. Id. at 1264–65. The
court rejected the argument that the stay precluded appellate
review, noting (1) that the language in Green Tree read in con-
text only referred to stays entered as interlocutory orders in
§ 3 proceedings, (2) that the district court was not authorized
to enter a stay (especially under § 3), and (3) that the district
court’s order compelling arbitration resolved “the only claim
for relief advanced by any party to the action,” rendering the
order a final decision appealable under § 16(a)(3). Id. at 1268–
70; see also Int’l All. of Theatrical Stage Emp. & Moving Picture
Technicians, Artists, and Allied Crafts v. InSync Show Prods., Inc.,
801 F.3d 1033, 1040 (9th Cir. 2015) (“When the only matter be-
fore a district court is a petition to compel arbitration and the
district court grants the petition, appellate jurisdiction may
attach regardless of whether the district court issues a stay.”);
Brown v. Pac. Life Ins. Co., 462 F.3d 384, 391–93 (5th Cir. 2006)
(rejecting the appellees’ argument that a stay in the case ren-
dered the order non-appealable because the stay was not is-
sued “pursuant to section 3” as required under § 16(b)(1)).

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10 No. 23-2842
Our precedent likewise only reaffirms our appellate juris-
diction. For instance, the consumers argue that in INTL
FCStone Financial Inc. v. Jacobson, 950 F.3d 491 (7th Cir. 2020),
we barred a similar appeal in an action that only sought to
compel arbitration. That is not accurate. Unlike here, the
plaintiff in FCStone did not solely petition to compel arbitra-
tion under § 4. See id. at 495 (noting that the plaintiff’s
amended complaint “added” a § 4 count). Rather, it filed suit
seeking a declaratory judgment that “FINRA is not a valid ar-
bitration forum for the parties’ dispute” and that “NFA is the
valid forum for this dispute.” Id. We contemplated whether
§ 16(a)(3) conferred appellate jurisdiction but determined that
it did not because “[t]he district court kept the lawsuit open
to address arbitration-related issues, including arbitration
venue and whether grounds existed to grant a permanent in-
junction.” Id. at 501. Thus, we could not conclude that “the
district court left ‘nothing more for the court to do but execute
the judgment,’ as needed to qualify the arbitration order as a
final decision.” Id. (quotation omitted); cf. Moglia v. Pac. Emps.
Ins. Co. of N.A., 547 F.3d 835, 836–37 (7th Cir. 2008) (finding
district court’s order compelling arbitration and staying pro-
ceedings involving unresolved bankruptcy claims to not be
appealable).
Finally, the consumers believe that the Supreme Court’s
recent decision in Smith v. Spizzirri, 144 S. Ct. 1173 (2024), sup-
ports their argument. Not so. Spizzirri merely held that a dis-
trict court must issue a stay (rather than dismiss a case) when
a party requests a stay under § 3. Id. at 1175. The Court there-
fore answered a question that had been explicitly left open in
Green Tree. See 531 U.S. at 87 n.2 (“The question whether the
District Court should have [stayed rather than dismissed the
case] is not before us, and we do not address it.”). Spizzirri’s

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No. 23-2842 11
holding adheres to our § 3 analysis above and did not address
§ 4. It does not apply.
Because the consumers proceeded in the district court un-
der § 4 and merely sought an order compelling arbitration,
the limitation on appellate review found in § 16(b)(1) is inap-
posite. The district court did not have the authority to enter a
stay, and whatever stay it did enter was certainly not one au-
thorized under § 3—no party sought a stay, and the case did
not involve an issue referable to arbitration. Rather, after the
district court compelled arbitration, it resolved the action’s
only claim for relief. As in Green Tree, we conclude that the
district court’s decision ended the litigation on the merits and
left “nothing more for [it] to do but execute the judgment.”
531 U.S. at 86. It therefore issued an appealable final decision
under § 16(a)(3).
III
We next turn to the merits. A party seeking to compel ar-
bitration under the FAA must show three elements: (1) an en-
forceable written agreement to arbitrate; (2) a dispute within
the scope of the arbitration agreement; and (3) a refusal to ar-
bitrate. A.D. v. Credit One Bank, N.A., 885 F.3d 1054, 1060 (7th
Cir. 2018). Samsung disputes the first and third elements.
First, it argues that the consumers failed to present evidence
of an arbitration agreement and that the district court’s find-
ing of an enforceable agreement wrongly shifted the eviden-
tiary burden to Samsung. Second, Samsung asserts that it did
not refuse to arbitrate by not paying the initial AAA filing
fees. Instead, in its view, the arbitration proceeded according
to the alleged agreement’s terms, and the district court ex-
ceeded its authority when it ordered Samsung to pay the fees.
We address each argument in turn.

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12 No. 23-2842
A
While the FAA does not provide the evidentiary standard
applicable for determining whether to compel arbitration, we
(as well as our sister circuits) have analogized the standard
needed to that required at summary judgment. A district
court may conclude as a matter of law that parties did or did
not enter into an arbitration agreement only if no genuine dis-
pute of material fact exists as to the formation of the agree-
ment. See Tinder v. Pinkerton Sec., 305 F.3d 728, 735 (7th Cir.
2002); Bazemore v. Jefferson Cap. Sys., LLC, 827 F.3d 1325, 1333
(11th Cir. 2016); Bensadoun v. Jobe-Riat, 316 F.3d 171, 175 (2d
Cir. 2003). The party seeking to compel arbitration bears the
initial burden to show that an arbitration agreement exists.
See A.D., 889 F.3d at 1063 (“However, as the party seeking to
compel arbitration, Credit One had the burden of showing
that A.D. was bound by the cardholder agreement as an au-
thorized user.”); see also In re StockX Customer Data Sec. Breach
Litig., 19 F.4th 873, 881 (6th Cir. 2021) (“To determine whether
the existence of an [arbitration] agreement is ‘in issue,’ this
court applies the standard for summary judgment. … [T]he
movant asserting the existence of a contract[] must initially
carry its burden to produce evidence that would allow a rea-
sonable jury to find that a contract exists.”).
In this case, as the parties seeking to compel arbitration,
the consumers bore the burden of producing a valid arbitra-
tion agreement with Samsung. But because Samsung con-
ceded that an individual agrees to arbitrate all disputes when
he or she purchases or uses a Samsung device, the consumers
effectively only needed to present evidence that they were in
fact Samsung customers. (Individuals who, for instance, pur-
chase or use the Samsung device of another without resetting

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No. 23-2842 13
that device or without creating a unique user account might
not have notice of or be subject to Samsung’s terms. But the
parties proceed as if the consumers do not fall into this nar-
row category, so we do the same.) To support their petition to
compel arbitration, the consumers relied on the following:
(1) copies of their arbitration demands made before the AAA;
(2) a spreadsheet containing their names and addresses;
(3) copies of Samsung’s terms and conditions; and (4) the
AAA’s determination that the consumers had met the AAA
filing requirements. That was not enough.
First, the arbitration demands are nothing more than alle-
gations, much like a complaint filed in a district court. For ex-
ample, one representative demand stated, “Paula Wallrich …
is a natural person who owns a Samsung Galaxy device.” But
like a complaint, the demand is only signed by counsel. No
claimant submitted any declaration or otherwise attested un-
der the penalty of perjury to the facts alleged in the arbitration
demands. “[A] plaintiff must do more than simply point to
the allegations in his complaint,” or in this case, the allega-
tions in an arbitration demand, to defeat summary judgment.
Est. of Perry v. Wenzel, 872 F.3d 439, 461 (7th Cir. 2017).
The copies of Samsung’s terms and conditions and the
spreadsheet containing the consumers’ names and addresses
are also insufficient. Again, Samsung does not dispute that its
terms and conditions bind its customers to arbitration agree-
ments. The terms and conditions the consumers identify are
simply copies found in any Samsung device or on Samsung’s
website, not terms and conditions reviewed and received by
specific consumers. Without more, those copies do nothing to
show that any of the consumers purchased a Samsung device.
And a spreadsheet of only names and addresses likewise fails

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14 No. 23-2842
to show that any of those named were Samsung customers.
Identifying a generic arbitration agreement and then inde-
pendently listing the names and addresses of alleged consum-
ers without doing anything to link those consumers to the
agreement does not satisfy the “existence of an arbitration
agreement” element—like any agreement, the element re-
quires a showing of assent between the relevant parties. See
A.D., 885 F.3d at 1062–63 (acknowledging undisputed arbitra-
tion agreement between Credit One Bank and a mother but
noting that Credit One had the burden of independently
showing “that A.D. was bound by the cardholder agree-
ment”).
Finally, the AAA’s determination that the consumers had
met the filing requirements under the AAA rules also does
not serve as evidence of an arbitration agreement between the
consumers and Samsung. The AAA’s filing requirements in-
volve no substantive determinations. Rather, a claimant only
needs to explain the dispute, list the names and addresses of
the consumers, specify the amount in dispute, identify a loca-
tion for the hearing, state the relief sought, and attach a copy
of the alleged arbitration agreement. Once those boxes are
checked, the AAA concludes that filing requirements have
been met. At no point in this initial process does the AAA de-
termine whether the claimants entered into an arbitration
agreement with the business or even whether the claimants
were customers of the business. Cf. Bigger v. Facebook, Inc., 947
F.3d 1043, 1048, 1050–51 (7th Cir. 2020) (reversing a district
court’s finding of valid arbitration agreements based only on
templates of agreements rather than specific agreements with
employees). Thus, the AAA’s filing determination adds noth-
ing to support the consumers’ bare allegations that they

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No. 23-2842 15
purchased Samsung devices or otherwise entered into arbi-
tration agreements with Samsung.
The consumers could have submitted almost anything to
meet their burden of proving the existence of an arbitration
agreement. For example, they could have submitted receipts,
order numbers, or confirmation numbers from their pur-
chases of Samsung devices. Or even more directly, they could
have submitted declarations attesting to the allegations in
their arbitration demands. They did not. Without adducing
any evidence aside from their allegations, the consumers
failed to meet their initial burden of proving the existence of
a valid arbitration agreement with Samsung.
The consumers alternatively argue that we should remand
the case to allow them to present additional evidence. But the
summary judgment stage, which our posture is akin to, does
not allow second chances. See Weaver v. Champion Petfoods
USA Inc., 3 F.4th 927, 938 (7th Cir. 2021) (“Summary judgment
is the proverbial put up or shut up moment in a lawsuit … .”)
(quotation omitted); see also Bazemore, 827 F.3d at 1333 (“[De-
fendant] would have us hold, essentially, that a party cannot
lose a motion to compel arbitration for failure to prove that an
arbitration agreement exists without being afforded a second
bite at the apple—an opportunity to prove the agreement’s
existence at trial. This we decline to do.”). The consumers had
the opportunity to present their evidence, and they failed to
do so.
B
Even if the consumers had met their evidentiary burden,
the district court exceeded its authority and the scope of the
arbitration agreement by ordering Samsung to pay the AAA

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16 No. 23-2842
filing fees. As discussed above, “[a] party aggrieved by the al-
leged failure, neglect, or refusal of another to arbitrate under
a written agreement for arbitration may petition any United
States district court … for an order directing that such arbitra-
tion proceed in the manner provided for in such agreement.”
9 U.S.C. § 4. Here, Samsung and the consumers proceeded
through arbitration in the manner provided for in their agree-
ment. That is all that was required.
The Supreme Court “has consistently held that parties
may delegate threshold arbitrability questions to the arbitra-
tor, so long as the parties’ agreement does so by ‘clear and
unmistakable’ evidence.” Henry Schein, Inc. v. Archer & White
Sales, Inc., 586 U.S. 63, 69 (2019). Thus, “if a valid agreement
exists, and if the agreement delegates the arbitrability issue to
an arbitrator, a court may not decide the arbitrability issue.”
Id.; see also Lamps Plus, Inc. v. Varela, 587 U.S. 176, 184 (2019)
(“Parties may generally shape such agreements to their liking
by specifying with whom they will arbitrate, the issues sub-
ject to arbitration, the rules by which they will arbitrate, and
the arbitrators who will resolve their disputes.”). Addition-
ally, procedural issues, like fee disputes, are “presumptively
not for the judge, but for an arbitrator, to decide.” See Howsam
v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002) (emphasis
in original).
The arbitration agreement allegedly entered into between
Samsung and the consumers delegated threshold arbitration
fee disputes to the AAA. The parties thus bargained for the
AAA’s discretion over the payment of administrative filing
fees, including the consequences that would stem from a
party’s refusal to pay those fees. After Samsung refused to
pay its fees, the AAA, in line with its rules (which it applies in

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No. 23-2842 17
its discretion), allowed the consumers to advance Samsung’s
fees. If the consumers had advanced the fees, Samsung would
have arbitrated the merits of the consumers’ claims. However,
the consumers declined. The AAA then could have stayed the
arbitration, as requested by the consumers, but it chose not to.
Instead, it terminated the proceedings, opening the door for
the consumers to pursue their claims in district court. Rather
than take this route, the consumers sought an order compel-
ling Samsung to arbitrate and to pay the required fees. But
this request was outside the district court’s authority. Sam-
sung and the consumers’ arbitration proceeded in line with
their agreement. The AAA considered the dispute and termi-
nated the arbitration within its discretion. At that point, arbi-
tration was complete, and the district court did not have the
authority to flout the parties’ agreement and disturb the
AAA’s judgment.
Other circuits agree with our position. In Dealer Computer
Services, Inc. v. Old Colony Motors, Inc., 588 F.3d 884 (5th Cir.
2009), for example, Dealer Services and Old Colony agreed to
arbitrate under AAA rules. Id. at 886. Dealer Services paid its
share of arbitration fees, but Old Colony did not, citing a lack
of assets. Id. Dealer Services therefore brought a § 4 petition
to compel Old Colony to arbitrate and pay the required fees,
which the district court granted. Id. The Fifth Circuit reversed,
concluding that the district court could not compel Old Col-
ony to arbitrate and pay the AAA fees because administrative
filing fees (which the parties had agreed would be resolved
per AAA rules) are “conditions precedent to arbitration” and
“are procedural issues left to the discretion of the arbitrators.”
Id. at 888.

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18 No. 23-2842
Similarly, in Lifescan, Inc. v. Premier Diabetic Services, Inc.,
363 F.3d 1010 (9th Cir. 2004), the parties agreed to resolve their
disputes, including disputes related to the payment of fees,
based on AAA rules. Id. at 1011–12. After Premier did not pay
its share of filing fees, the AAA suspended the arbitration pro-
ceedings, and Lifescan filed a petition to compel Premier to
arbitrate and pay the fees—the district court granted the peti-
tion. Id. at 1011. Like the Fifth Circuit, the Ninth Circuit re-
versed. The court rejected Lifescan’s argument that arbitra-
tion does not “begin” until the parties deposit their fees. Id. at
1012. Rather, the court noted the substantial discretion given
to arbitrators under AAA rules in how to handle the proce-
dure and payment of fees. Id. 1012–13 (“The arbitrators exer-
cised their discretion in this case by allowing the arbitration
to proceed on the condition that Lifescan advance the remain-
ing fees. This may not be an ideal solution to the problem of a
party’s failure to pay its share of the fees, but it is well within
the discretion of the arbitrators.”). It therefore concluded that
the arbitration “proceeded pursuant to the parties’ agreement
and the rules they incorporated.” Id. at 1013.
The consumers note that Dealer Computer Services and
Lifescan involved parties who did not have the means to pay
their fees. They urge us to draw a line between those types of
parties and parties like Samsung, who simply choose not to
pay their fees despite having the funds. In the consumers’
view, such action is an outright neglect and refusal to arbi-
trate, and allowing a company like Samsung to avoid arbitra-
tion in this way would render the arbitration process and the
FAA without force. No doubt, some courts have pondered
drawing this line between indigent and non-indigent parties.
See, e.g., Tillman v. Tillman, 825 F.3d 1069, 1075 (9th Cir. 2016)
(“Our decision that Tillman’s case may proceed does not

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No. 23-2842 19
mean that parties may refuse to arbitrate by choosing not to
pay for arbitration. If Tillman had refused to pay for arbitra-
tion despite having the capacity to do so, the district court
probably could still have sought to compel arbitration … .”)
(emphasis in original). But we see no reason to make that dis-
tinction.
The Federal Arbitration Act does not grant the consumers
an unfettered right to arbitrate, and nothing in the statute
treats parties differently based on financial status. Rather, all
the law requires is that the parties arbitrate according to the
terms of their agreement. The agreement here delegated fee
issues to the procedures and rules of the AAA. And the AAA,
using those rules, denied a stay, terminated the arbitration,
and sent the claims to federal court after Samsung refused to
pay its fees. The parties therefore fully “arbitrated” under
their agreement. See Noble Cap. Fund Mgmt., LLC v. US Cap.
Glob. Inv. Mgmt., LLC, 31 F.4th 333, 336 (5th Cir. 2022) (“Here
the parties’ arbitration agreements called for arbitration pur-
suant to JAMS [Rules], which included the right of JAMS to
terminate the arbitration proceedings for nonpayment of fees
by any party. Exercising this right, JAMS terminated the arbi-
tration proceeding following the Fund’s nonpayment. Fol-
lowing the lead of our sister circuits, we conclude that arbi-
tration ‘has been had.’”). Thus, even in a case like this one,
where an arbitration proceeding ends before reaching the
merits, “the parties still exercised their contractual right to ar-
bitrate prior to judicial resolution in accordance with the
terms of their agreements.” Id.; see also Pre-Paid Legal Servs.,
Inc. v. Cahill, 786 F.3d 1287, 1294 (10th Cir. 2015) (concluding
that the arbitration “had been had” in accordance with the ar-
bitration agreement when the AAA terminated the proceed-
ings following Cahill’s refusal to pay fees).

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20 No. 23-2842
In sum, even assuming an arbitration agreement between
the consumers and Samsung, the consumers cannot compel
Samsung to pay the AAA’s administrative fees. The parties
agreed to abide by the rules and procedures of the AAA, and
they proceeded through arbitration in accordance with those
rules and their consequences. If the AAA believed Samsung
was abusing the arbitration process, it could have stayed the
case or threatened to decline administering future consumer
arbitrations with Samsung, but it did not. Instead, the AAA
terminated the proceedings and invited the parties to resolve
their claims in district court. At that point, Samsung and the
consumers’ arbitration was complete. The consumers may
view this result as unjust, but we are here because they in-
voked their alleged agreement with Samsung; they cannot
now complain of that agreement’s terms. Further, the con-
sumers were not left without recourse. They could have ad-
vanced Samsung’s fees and continued with arbitration, or
they can now pursue their claims on the merits in district
court.
R EVERSED

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