Kimetra Brice; v. Sequoia Capital Operations, LLC;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIMETRA BRICE; et al.,
Plaintiffs-Appellees,
v.
SEQUOIA CAPITAL OPERATIONS, LLC;
et al.,
Defendants,
and
7HBF NO. 2, LTD.; et al.,
Defendants-Appellants.
No. 19-17477
D.C. No. 3:19-cv-01481-WHO
MEMORANDUM∗
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Argued and Submitted September 16, 2020
San Francisco, California
Before: W. FLETCHER, FORREST**, and VANDYKE, Circuit Judges.
Dissent by Judge W. FLETCHER
∗This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** Formerly known as Danielle J. Hunsaker.
FILED
SEP 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Defendants-appellants 7HBF NO. 2, LTD et al. appeal from the district
court’s denial of their motion to compel arbitration.1 We have jurisdiction under 9
U.S.C. § 16(a)(1)(A), (C), and we reverse and remand with instructions to stay the
case and compel arbitration. We resolve this case for the reasons set forth in Brice
v. Haynes Investments, No. 19-15707, __ F.3d __ (9th Cir. Sept. 16, 2021), a
companion case involving different defendants but the same Borrowers, materially
similar loan agreements, and the same underlying dispute over the enforceability of
the arbitration agreements contained in Borrowers’ loan agreements.
Here, as in Haynes Investments, we conclude that the parties agreed to
arbitrate both their substantive disputes and any gateway questions regarding the
arbitration agreement’s “validity, enforceability, or scope.” See __ F.3d at __; slip
op. at 31; see also Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010). The
latter agreement—the delegation provision—does not prevent Borrowers from
challenging enforceability based on prospective waiver or otherwise waive their
rights to pursue federal statutory remedies. See Am. Express Co. v. Italian Colors
Rest., 570 U.S. 228, 235 (2013). Therefore, we conclude that the delegation
provision is not itself invalid as a prospective waiver and that it is for an arbitrator,
1 This case was originally consolidated with another similar appeal, Brice v.
Sequoia Capital Operations LLC, No. 19-17414, but the parties to that appeal
settled after oral argument. The appeals were then severed, and No. 19-17414 was
dismissed.

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not the court, to decide whether the parties’ arbitration agreement is enforceable.
REVERSED and REMANDED with instructions to stay the case and
compel arbitration.

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Brice v. 7HBF No.2, No. 19-17477
W. FLETCHER, Circuit Judge, dissenting:
For the reasons given in my dissent in Brice v. Haynes Investments, No. 19-
15707, ___ F.3d ___ (9th Cir. 2021), I strongly but respectfully dissent.
FILED
SEP 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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