NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 16 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIMETRA BRICE; et al., No. 19-17477

Plaintiffs-Appellees, D.C. No. 3:19-cv-01481-WHO

v.

MEMORANDUM∗

SEQUOIA CAPITAL OPERATIONS, LLC;

et al.,

Defendants,

and

7HBF NO. 2, LTD.; et al.,

Defendants-Appellants.

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. 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. Plain Green, 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 Plain Green, 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.

2 not the court, to decide whether the parties’ arbitration agreement is enforceable.

REVERSED and REMANDED with instructions to stay the case and

compel arbitration.

3

FILED

Brice v. 7HBF No.2, No. 19-17477

SEP 16 2021

W. FLETCHER, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

For the reasons given in my dissent in Brice v. Plain Green, No. 19-15707, ___ F.3d ___ (9th Cir. 2021), I strongly but respectfully dissent.