BLUE LINE INVESTIGATIVE SOLUTIONS LLC v. BANK OF AMERICA (2025)

ORDER COMPELLING ARBITRATION AND STAYING LITIGATION

THIS CAUSE is before the Court on Defendant Bank of America, N.A.’s (“Defendant”) Amended Motion to Compel Arbitration and Stay Proceedings [ECF No. 17] (the “Motion”), filed on August 19, 2025. Plaintiff Blue Line Investigative Solutions LLC (“Plaintiff”) responded in opposition [ECF No. 28], and Defendant replied in support [ECF No. 31]. The Motion is, therefore, ripe for resolution. Upon due consideration of the Motion, the parties’ papers, the relevant portions of the record, and the governing law, the Motion is GRANTED for the reasons discussed below.

I. BACKGROUND AND THE INSTANT MOTION

After the extraordinary impact of the COVID-19 Pandemic, Congress enacted the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), which the President signed on March 27, 2020. See Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, 134 Stat. 281 (2020). This law established the Paycheck Protection Program (“PPP”), a loan program backed by the Small Business Administration to assist eligible small businesses adversely affected by the COVID-19 Pandemic with loan forgiveness options. Id. §§ 1102, 1107. Loans eligible for forgiveness under the statute cover payroll costs, interest on mortgage obligations, rent under lease agreements, and utility expenses. See id. Eligible private lenders (like Defendant) and other financial institutions administered these PPP loans. [ECF No. 1 ¶ 4]. These lenders were compensated for facilitating these PPP loans in the form of a commission. [Id. ¶ 5].

Plaintiff and the putative class members were borrowers who submitted PPP loan applications to Defendant. [Id. ¶¶ 26, 28]. Plaintiff alleges that Defendant made material misrepresentations to Plaintiff and the putative class, inducing them to secure loans and sign promissory notes with Defendant. [Id. ¶ 35]. As a result of these false representations and inducement, Plaintiff and the putative class allegedly received no loan forgiveness. [Id. ¶¶ 56, 59].

On March 30, 2020, Plaintiff—an investigatory firm for a wide range of clientele—received a solicitation from Defendant to apply for a PPP loan. [Id. ¶¶ 14, 45]. Plaintiff applied for a loan on April 2, 2020, by filling out the standard loan application and accompanying certifications. [Id. ¶ 46]. One of the certifications required Plaintiff to certify that at least as of February 15, 2020, it paid employee salaries and payroll taxes or paid independent contractors. [Id.]. In connection with this application, Plaintiff submitted Form 1099s as required. [Id. ¶¶ 47–48]. On May 3, 2020, Defendant informed Plaintiff that its loan for $91,442 was approved. [Id. ¶¶ 50–51].

Prior to receiving the funds, Plaintiff was required to complete and sign a promissory note with Defendant. [See id. ¶ 49]. The promissory note at issue includes several key provisions. First, it indicates that a deposit account with Defendant was a precondition for receiving a PPP loan. [See ECF No. 17-1 at 79 ¶ 1 (“Borrower is required to maintain a deposit account with Bank of America, N.A. ․ until the Loan is either forgiven in full or the Loan is fully paid by Borrower.”); Declaration of Chris Yuasa (“Yuasa Decl.”), ECF No. 17-1 at 6 ¶ 21].¹ Second, a jurisdictional clause found in the note states that “Borrower and Bank agree and consent to be subject to the personal jurisdiction of any state or federal court located in the Governing Law State so that trial shall only be conducted by a court in that state.” [ECF No. 17-1 at 81 ¶ 9]. Third, an integration clause exists, providing that “Bank, by its acceptance hereof, and the making of the Loan and Borrower understand and agree that this Note constitutes the complete understanding between them.” [Id. ¶ 10].

More than two years later, on August 17, 2022, Defendant notified Plaintiff that the loan was ineligible for forgiveness. [ECF No. 1 ¶ 54]. The SBA confirmed the same on January 20, 2023, stating that Plaintiff did not have any eligible payroll costs at the time of loan application. [Id. ¶ 55]. Plaintiff avers that it only applied for the loan because Defendant represented that: (1) payroll expenses attributed to 1099 workers were qualifying “payroll costs”; and (2) if sixty (60) percent of the loan proceeds were used to pay 1099 workers, then the loan would be forgivable. [Id. ¶ 57]. Relying on these purported misrepresentations, Plaintiff applied for the loan and signed the promissory note but has not received any loan forgiveness to date. [Id. ¶¶ 56–62].

Plaintiff lodges seven claims against Defendant: (1) breach of contract (Count I); (2) breach of the implied covenant of good faith and fair dealing (Count II); (3) common law fraud (Count III); (4) fraud in the inducement (Count IV); (5) fraud in the concealment (Count V); (6) negligent misrepresentation (Count VI); (7) declaratory relief (Count VII). [Id. ¶¶ 77–167].

Defendant moves to compel arbitration based on several provisions Plaintiff agreed to in the deposit agreement. [ECF No. 17 at 14–22]. The deposit agreement that Plaintiff opened in April 2014, contains an arbitration clause that reads:

You have the right to compel us at your option, and we have the right to compel you at our option, to resolve a Claim relating to a business account by binding arbitration. If neither you nor we decide to compel arbitration, then the Claim will be resolved in court by a judge without a jury, as permitted by law. The arbitration or trial by a judge will take place on an individual basis without resort to any form of class or representative action.

[ECF No. 17-1 at 76; Yuasa Decl., ECF No. 17-1 at 4 ¶ 10]. “Claim” under this section is defined as “any claim, dispute or controversy ․ by either you or us against the other, or against the employees or agents of the other, arising from or relating in any way to this deposit agreement (including any renewals, extensions or modifications) or the deposit relationship between us.” [ECF No. 17-1 at 76]. On the same page of this deposit agreement is a delegation provision, which provides: “The arbitrator, sitting alone without a jury, will decide questions of law and fact and will resolve the Claim. This includes the applicability of this Resolving Claims section and the validity of the deposit agreement ․” [Id. (emphasis in original)]. Plaintiff's representative signed a business signature card with Defendant that states in pertinent part: “I/we acknowledge and agree that this account is and will be governed by the terms and conditions set forth in the account opening documents for my/our account, as they are amended from time to time․ The Deposit Agreement includes a provision for alternative dispute resolution.” [ECF No. 17-1 at 37].

Defendant contends that the arbitration clause found in the deposit agreement covers this dispute. [ECF No. 17 at 14–15, 18–21]. Moreover, Defendant argues that the delegation provision in the same agreement requires the arbitrator to decide threshold questions of arbitrability. [Id. at 15–17].² As such, Defendant requests a stay of this case pending arbitration. [Id. at 21–22].

Plaintiff opposes the Motion, arguing that the promissory note is the only agreement relevant here, and such agreement's jurisdictional clause contemplates all disputes concerning it be brought in a court of law. [ECF No. 28 at 11]. At the core of the opposition, Plaintiff contends that the Court should determine the question of arbitrability because the only relevant agreement (the promissory note) does not contain an arbitration clause and supersedes all prior agreements that may have included one (i.e. the deposit agreement). [Id. at 18–19]. Even if the arbitration clause applied to the promissory note, Plaintiff argues that the delegation clause should not apply because it neither clearly and unmistakably provides that the arbitrator decides all issues of arbitrability nor is it enforceable. [Id. at 24–26].

After careful review, the Court agrees with Defendant.

II. LEGAL STANDARD

In reviewing a motion to compel arbitration, a district court considers three factors: (1) whether a valid agreement to arbitrate exists, (2) whether an arbitrable issue exists, and (3) whether the right to arbitrate was waived. Nat'l Auto Lenders, Inc. v. SysLOCATE, Inc., 686 F. Supp. 2d 1318, 1322 (S.D. Fla. 2010) (citing Integrated Sec. Services v. Skidata, Inc., 609 F. Supp. 2d 1323, 1324 (S.D. Fla. 2009). The court must grant a motion to compel arbitration if it is satisfied that the parties agreed to arbitrate the claims at issue. Id.; see also 9 U.S.C. § 3 (stay of proceedings where issue therein referable to arbitration). However, “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). Courts should only compel arbitration if (a) the agreement is enforceable under “ordinary state-law contract principles” and (b) the claims before the court fall within the scope of that agreement. Lambert v. Signature Healthcare, LLC, No. 19-11900, 2022 WL 2571959, at *4 (11th Cir. July 8, 2022) (citing Lambert v. Austin Ind., 544 F.3d 1192, 1195 (11th Cir. 2008)).

Under the Federal Arbitration Act (“FAA”), courts in the first instance should decide the issue of arbitrability. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). However, a private agreement to arbitrate the threshold issue of arbitrability will be upheld if there is “clear and unmistakable” evidence that the parties so agreed. See Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 69 n.1, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010); see also AT&T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (“[T]he question of arbitrability ․ is undeniably an issue for judicial determination. 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.” (collecting cases)). “Parties to an arbitration agreement may send threshold questions of arbitrability to an arbitrator when they have agreed to do so.” Santiago v. Neno Rsch., Inc., No. 24-cv-01330, 2024 WL 4625783, at *2 (M.D. Fla. Oct. 30, 2024), aff'd, 2025 WL 1793306 (11th Cir. June 30, 2025).

III. DISCUSSION

As a threshold matter, the Court must determine whether there was a valid agreement to arbitrate. Answering that question in the affirmative, the Court agrees with Defendant and concludes that there are arbitrable issues. Accordingly, the Court must compel arbitration and stay these proceedings.

A. The Parties Entered into a Valid Arbitration Agreement.

An arbitration clause in a contract involving interstate commerce is subject to the Federal Arbitration Act (the “Act”). See Perry v. Thomas, 482 U.S. 483, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987); Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984). According to section 2 of the Act, arbitration agreements are “valid, irrevocable, and enforceable, save on such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. Section 2 prohibits the states from placing greater restrictions on arbitration clauses than those that apply to other contract provisions. In Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996), the United States Supreme Court determined that section 2 preempts contrary provisions in state law. The state statute at issue in Casarotto provided that a contract subject to arbitration must contain a notice typed on the first page in capital letters and underlined, informing the parties of the arbitration clause. Id. at 684, 116 S.Ct. 1652. The Court reasoned that the notice requirement was invalid because it applied only to contracts that are subject to arbitration and not to “any contract” as provided in Section 2 of the Federal Arbitration Act. Id. at 686–88, 116 S.Ct. 1652. “Although the states may not impose special limitations on the use of arbitration clauses, the validity of an arbitration clause is nevertheless an issue of state contract law.” Powertel, Inc. v. Bexley, 743 So. 2d 570, 573–74 (Fla. 1st DCA 1999). Section 2 states that an arbitration clause can be invalidated on such grounds as exist “at law or in equity for the revocation of a contract.” 9 U.S.C. § 2. Thus, an arbitration clause can be defeated by any defense existing under the state law of contracts. As the Court explained in Casarotto, “generally applicable contract defenses, such as fraud, duress or unconscionability, may be applied to invalidate arbitration agreements without contravening [the Act].” 517 U.S. at 687, 116 S.Ct. 1652.

Here, Plaintiff does not dispute that an arbitration clause exists in the deposit agreement. [See ECF No. 28 at 16]. Instead, Plaintiff states that the promissory note, the purported governing document, does not incorporate the arbitration clause in the deposit agreement and that the promissory note's integration provision superseded the arbitration clause in the deposit agreement. [ECF No. 28 at 14–15]. Thus, Plaintiff believes that a court must decide this dispute. Separately, Plaintiff challenges the arbitration clause in the deposit agreement on unconscionability grounds. [See id. at 24–26].

The Court disagrees with Plaintiff that these questions are for the Court to resolve. [See id. at 16 (citing Coinbase, Inc. v. Suski, 602 U.S. 143, 144 S.Ct. 1186, 218 L.Ed.2d 615 (2024))]. These are precisely the type of inquiries that several courts interpreting the same provisions as here have held is reserved for the arbitrator. See, e.g., Happy Puppy LA, Inc. v. Bank of Am., No. 23-cv-01354, 2023 WL 6192702, at *5 (C.D. Cal. June 30, 2023); T.M.B. Assoc., LLC v. Bank of Am., N.A., No. H-23-3937, 2024 WL 466802, at *2 (S.D. Tex. Jan. 2, 2024); Modern Perfection, LLC v. Bank of Am., N.A., No. 22-cv-02103, 2023 WL 5433006, at *9 (D. Md. Aug. 22, 2023), aff'd, 126 F.4th 235 (4th Cir. 2025).

The Fourth Circuit's decision in Modern Perfection is particularly instructive. There, the court was presented with the same questions as the instant case, involving the same provisions of Defendant's deposit agreement and promissory note. Modern Perfection, 126 F.4th at 238–39. Indeed, plaintiffs in that case made the same exact arguments Plaintiff raises here that the Fourth Circuit rejected. Id. at 240. The Fourth Circuit, unpersuaded by the plaintiffs’ arguments, held that these arbitrability questions were not suited for the court's resolution. See id. at 242–43.

Plaintiff attempts to distinguish Modern Perfection and many other cases cited by Defendant, contending that the question of arbitrability cannot be reserved for an arbitrator unless the parties “clearly and unmistakably” provide otherwise. [ECF No. 28 at 15–16, 23–24]. The thrust of Plaintiff's argument here is that Plaintiff did not “clearly and unmistakably” agree to arbitrate the issue of arbitrability because the delegation clause simply did not refer to arbitrability. The relevant delegation provision, however, states plainly that “[t]he arbitrator, sitting alone without a jury, will decide questions of law and fact and will resolve the Claim. This includes the applicability of this Resolving Claims section and the validity of the deposit agreement ․” [ECF No. 17-1 at 76 (emphasis in original)]. Plaintiff's gripe with this provision is that because “Claim” is defined to mean disputes arising out of the deposit agreement (i.e. the parties’ deposit relationship), it does not relate to claims arising out of the promissory note and does not speak to arbitrability. But as Modern Perfection stated, “[e]very court to have interpreted this exact provision has disagreed with” Plaintiff. 126 F.4th at 242.³

Nor is the Plaintiff right on this score because Plaintiff was required to have a deposit account with Defendant as a prerequisite for obtaining a PPP loan. [See Decl. of Yuasa, ECF No. 17-1 at 6 ¶ 21 (“Plaintiff was only able to apply for a PPP loan through BofA because it had a pre-existing depository relationship.”)]. Defendant cites Phillips v. NCL Corp., 824 F. App'x 675, 679 (11th Cir. 2020), for the proposition that a but-for relationship between the claim Plaintiff and the proposed class members raise and the existence of the deposit agreement with the arbitration clause mandates arbitration. In Phillips, the Eleventh Circuit affirmed the district court compelling arbitration, holding that the alleged fraudulent conduct was “wrapped up in the same transaction that culminated” in the separate agreement containing the arbitration clause because the defendant “could not have engaged in the alleged fraudulent conduct ‘in the absence of any contractual relationship with’ ” the plaintiffs. Id. The same is true here; Defendant could not have engaged in the purported fraud arising from the promissory note absent the existence of the deposit agreement between both parties—a requirement to obtain PPP funding. The Court finds this reasoning persuasive and notes that Plaintiff, tellingly, did not attempt to cite or distinguish this case in its response. [See generally ECF No. 28].

This is not an argument on the validity of the delegation clause; it is one of scope and the arbitrator must decide it.⁴ While Plaintiff argues that the delegation clause in the arbitration agreement is unconscionable [ECF No. 28 at 24], that attack is too broad. Plaintiff fails to specifically state why the delegation provision itself is unconscionable. Attix v. Carrington Mort. Servs., LLC, 35 F.4th 1284, 1304 (11th Cir. 2022) (“A party specifically challenges the validity or enforceability of a delegation agreement if, and only if, the substantive nature of the party's challenge meaningfully goes to the parties’ precise agreement to delegate threshold arbitrability issues.”). Not only did the district court in Modern Perfection reserve this question for the arbitrator, see 2023 WL 5433006, at *9, but the Court independently concludes that this argument is meritless.

“To support a finding of unconscionability sufficient to invalidate an arbitration clause, the party opposing arbitration must establish both procedural and substantive unconscionability.” AMS Staff Leasing, Inc. v. Taylor, 158 So. 3d 682, 687–88 (Fla. 4th DCA 2015) (citing Premier Real Estate Holdings, LLC v. Butch, 24 So. 3d 708, 711 (Fla. 4th DCA 2009)). “Procedural unconscionability relates to the manner in which the contract was made and involves issues such as the parties’ relative bargaining power and their ability to know and understand disputed contract terms.” Id. (citing FL–Carrollwood Care, LLC v. Gordon, 72 So. 3d 162, 165 (Fla. 2d DCA 2011)). Substantive unconscionability, by contrast, “considers whether the contract terms themselves are so outrageously unfair as to shock the judicial conscience.” Id. Procedural and substantive unconscionability are assessed independently. Id.

The Court first addresses procedural unconscionability in light of the “relative bargaining power of the parties, the manner in which the contract was entered, and the ability of [the plaintiff] to know and understand the challenged contractual terms.” Fonte v. AT&T Wireless Servs., Inc., 903 So. 2d 1019, 1025–26 (Fla. 4th DCA 2005). Plaintiff states only in conclusory fashion, without any authority, that because Defendant drafted the deposit agreement and because “Plaintiff and Class members did not have the same bargaining power, were not given any opportunity to negotiate regarding the arbitration provision, and the contract was offered on a take-it-or-leave-it basis[,]” procedural unconscionability is present. [ECF No. 28 at 26]. Plaintiff, however, is a business entity that entered into this agreement with its eyes wide open or at the very least had the opportunity for counsel to review the agreement before it was signed. So even if Defendant possessed unilateral bargaining power with respect to the insertion of the arbitration clause, there is no procedural unconscionability here. Plaintiff had the capacity to know and understand the import of the arbitration clause and was free to attempt to negotiate this term, open a business account elsewhere, and walk away if it did not wish to submit to arbitration. Accordingly, the Court finds no procedural unconscionability.

The Court likewise finds a lack of substantive unconscionability. When assessing whether an arbitration clause is substantively unconscionable, a court evaluates whether the contract's terms are “so outrageously unfair as to shock the conscience.” AMS Staff Leasing, Inc., 158 So. 3d at 688. Plaintiff argues that substantive unconscionability exists because the clause is “substantially one-sided” and because the promissory note contained a clause that allowed Defendant, in the event of default, to “exercise any other right or remedy available to it at law or equity.” [ECF No. 28 at 26]. Again, Plaintiff makes this argument without citation to any legal authority. [See id.]. The Court nevertheless rejects it because the “right or remedy” clause simply preserves Defendant's ability to pursue certain claims and obtain relief.

Plaintiff has failed to meet its burden to show that the arbitration clause in the deposit agreement is unconscionable. Accordingly, the Court concludes the relevant arbitration clause is a valid agreement to arbitrate, and no issues of enforceability exist.

B. Defendant Did Not Waive its Right to Arbitrate.

Waiver of a contractual right may be explicit if a party makes a specific statement of his intent to waive a right, or it may be implied through conduct when such conduct “make[s] out a clear case.” Air Prod. & Chem., Inc. v. La. Land & Expl. Co., 867 F.2d 1376, 1379 (11th Cir. 1989). Under Florida law, a party may waive its contract right “by actively participating in a lawsuit or taking action inconsistent with that right.” Klosters Rederi A/S v. Arison Shipping Co., 280 So. 2d 678, 681 (Fla. 1973). This determination is made by evaluating the totality of the circumstances, and “the question of whether there has been waiver in the arbitration agreement context should be analyzed in much the same way as in any other contractual context.” Green Tree Servicing, LLC v. McLeod, 15 So. 3d 682, 687 (Fla. 2d DCA 2009) (citations and quotations omitted); see also Raymond James Fin. Servs., Inc. v. Saldukas, 896 So. 2d 707, 711 (Fla. 2005).

Plaintiff has not shown waiver, nor does it argue waiver. Therefore, the Court will enforce the arbitration clause in the deposit agreement.

C. A Stay Is Warranted in this Case.

Defendant moves for a stay in the event the Court grants the motion to compel arbitration. [ECF No. 17 at 21–22]. “When a district court finds that a lawsuit involves an arbitrable dispute, and a party requests a stay pending arbitration, § 3 of the FAA compels the court to stay the proceedings.” Smith v. Spizzirri, 601 U.S. 472, 478, 144 S.Ct. 1173, 218 L.Ed.2d 494 (2024). Given this authority, and Plaintiff's representation that a stay is appropriate “should this Court find that any portion of the dispute should be sen[t] to an arbitrator” [ECF No. 28 at 26 n.14], the Court will grant this request. The case must be stayed during the pendency of arbitration proceedings.

IV. CONCLUSION

Based on the foregoing, and upon due consideration, it is hereby ORDERED AND ADJUDGED as follows:

1. Defendant's Amended Motion to Compel Arbitration and Stay Proceedings [ECF No. 17] is GRANTED.

2. This case is hereby STAYED pending arbitration.

3. The Clerk is DIRECTED to ADMINISTRATIVELY CLOSE this case pending the arbitration outcome.

4. Any pending motions are DENIED as moot.

5. The parties shall submit status reports to the Court every ninety (90) days from the date of this Order, apprising the Court of the progress of the arbitration.

DONE AND ORDERED in the Southern District of Florida on November 17, 2025.

FOOTNOTES

1.   Although Plaintiff did not attach the promissory note and other relevant documents to the Complaint, the Court may consider them. See Distribuidora de Vehiculos S.A. v. John Deere Constr. & Forestry Co., 12-20983-CV, 2012 WL 13014702, at *1 n.1 (S.D. Fla. June 13, 2012) (“The Court can consider evidence outside of the pleadings for purposes of a motion to compel arbitration.”). The same is true for the declaration attached to the Motion.

2.   Indeed, Defendant argues that there are two delegation provisions, the arbitrability provision and the provision that incorporates the JAMS Resolution Center and American Arbitration Association (“AAA”) rules. [Id. at 16 (citing ECF No. 17-1 at 76)]. These rules purportedly grant arbitrators the authority to determine the scope of their own jurisdiction. [See id. at 16–17].

3.   True, the plaintiffs in Modern Perfection did not argue that the promissory note's venue-selection provision “superseded or narrowed the Deposit Agreement's arbitration provision.” 126 F.4th at 240. While Plaintiff does so argue here [ECF No. 28 at 9, 24], that is immaterial. In Happy Puppy—a case Plaintiff failed to distinguish—the Central District of California rejected this very argument because the venue-selection provision in the promissory note “is neither broad, exclusive, nor mandatory.” 2023 WL 6192702, at *4. The provision from Happy Puppy is the same provision found in Plaintiff's promissory note. Compare 2023 WL 6192702, at *4, with [ECF No. 17-1 at 81 ¶ 9]. There, the court held that the venue-selection provision did not supersede the arbitration clause in the deposit agreement because the provision “specifies the venue of any trial in which the parties may litigate their disputes and secures their consent to personal jurisdiction in that venue, but it does not require them to litigate in court and go to trial.” Happy Puppy, 2023 WL 6192702, at *4. Given that the venue-selection provision in the instant case is the exact same, the Court similarly concludes that there is no conflict between the arbitration provision in the deposit agreement and the venue-selection provision in Plaintiff's promissory note. Therefore, the Supreme Court's decision in Coinbase that Plaintiff heavily relies upon is inapposite. See Coinbase, 602 U.S. at 150, 144 S.Ct. 1186 (requiring a conflict between both agreements).

4.   The Court notes that the incorporation of the JAMS and AAA rules in the deposit agreement [ECF No. 17-1 at 76] provides an additional reason why the arbitrator should decide these threshold issues. See Terminix Int'l Co., LP v. Palmer Ranch Ltd. P'ship, 432 F.3d 1327, 1332–33 (11th Cir. 2005); U.S. Nutraceuticals, LLC v. Cyanotech Corp., 769 F.3d 1308, 1311 (11th Cir. 2014).

DAVID S. LEIBOWITZ, UNITED STATES DISTRICT JUDGE