An arbitration agreement’s strict enforceability arises from federal law, the Federal Arbitration Act (FAA), which was passed in the 1920s in reaction to judicial hostility to arbitration agreements. The original purpose of the act was to allow sophisticated businesses – of equal or near-equal bargaining power – to choose to arbitrate rather than litigate cases.1 At the time (and even now), it was attractive for businesses to duke it out in private streamlined proceedings.
But the use of arbitration clauses has expanded well beyond the FAA’s original intent. Arbitration clauses now are often part of boilerplate take-it-or-leave-it (adhesion) contracts signed by consumers and employees. These clauses might also contain class-action waivers, which preclude consumers or employees from aggregating meritorious small-dollar claims via the class-action mechanism. Indeed, arbitration agreements now are used by corporations as a liability shield, by forcing consumers or employees to waive class actions, which essentially makes it impossible to prosecute low-dollar, individual claims on a private basis.
In short, these agreements create Hobson’s choice – an apparently free choice when there is no real alternative – for many individuals and entities with meritorious claims: 1) allow valid claims to go unprosecuted; or 2) take on the fees and expenses that will most likely exceed any recovery. Indeed, the FAA’s purpose – increasing freedom to contract – has turned into a weapon against parties with little to no bargaining power.
This article discusses recent U.S. Supreme Court decisions solidifying the FAA’s application to consumers and Wisconsin courts’ responses to these landmark cases.
Brief Background of the FAA
Behind the growing arbitration controversy is a relatively simple paragraph:
Jeffrey M. Salas, DePaul 2006, is a founding partner of Salas Wang LLC, headquartered in Chicago. He concentrates his practice in securities arbitration and litigation and has represented clients in a variety of securities, financial fraud, corporate governance, breach of fiduciary duty, and breach of contract actions in state and federal courts around the country.
“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”2
This FAA provision was born from the judicial hostility to arbitration clauses, which take cases out of the courts and into private proceedings.3Indeed,this section is the “primary substantive provision of the Act.”4 But currently, the last clause is causing controversy and consternation among consumers and consumer groups. The “savings clause,” which states “save upon such grounds as exist at law or in equity for the revocation of any contract,”5 is being heavily litigated in courts and questioned in public opinion.
Part of the controversy is that the intent of the statute was to allow sophisticated parties to agree how to resolve disputes. Viewed from the angle of two parties of equal bargaining power, the FAA simply codifies parties’ freedom to contract. But increasingly, the U.S. Supreme Court has interpreted the statute to apply to parties of unequal bargaining power, making it increasingly difficult – if not impossible – for individuals and businesses subject to adhesion contracts to exercise their legal rights.6
The current Supreme Court cases must be viewed in this light: adhesion contracts were not meant to be corralled into the FAA, despite its plain language.
Concepcion’s and American Express’s Holdings Abrogate State Case Law Holding Class-Action Waivers and Arbitration Agreements Unconscionable
The landscape for enforcing arbitration agreements under the FAA was solidified (or expanded, in some observers’ view) in two important Supreme Court decisions in recent years: AT&T Mobility v. Concepcion7 and American Express Co. v. Italian Colors Restaurant.8 Before these related U.S. Supreme Court cases were decided, courts that scrutinized arbitration agreements could strike the provisions if the arbitration agreements included class-action waivers and pursuit of individual claims would be too difficult or too expensive.
So long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function.
Before Concepcion, California’s Discover Bank v. Superior Court was at the center of what the Wisconsin Court of Appeals, in Coady v. Cross Country Bank,called a “growing minority” of courts that would invalidate arbitration provisions with class-action waivers.9 In Coady, the court of appeals stated that “class actions and arbitrations are, particularly in the consumer context, often inextricably linked to the vindication of substantive rights. … This is particularly so when the damages involved are comparatively small for each individual consumer.”10 The court also noted that “it is significant that our supreme court [in Wisconsin Auto Title Loans v. Jones (Jones II)]has concluded that even a limitation on one type of class action relief contributed to an arbitration clause’s substantive unconscionability.”11
Concepcion’s Abrogation of Discover Bank and Similar Case Law. Based on a seemingly customer-friendly arbitration clause, Concepcion represents a sweeping rebuke of case law that invalidates arbitration clauses based on unfair – but not necessarily unconscionable – terms. In Concepcion, AT&T’s theoretically consumer-friendly arbitration clause formed the basis of the decision. “[T]he customer may invoke arbitration by filing a separate Demand for Arbitration,” a form that was “available on AT&T’s Web site.”12
The terms also mandated that “[i]n the event the parties proceed to arbitration, the agreement specifies that AT&T must pay all costs for nonfrivolous claims; that arbitration must take place in the county in which the customer is billed; that, for claims of $10,000 or less, the customer may choose whether the arbitration proceeds in person, by telephone, or based only on submissions; that either party may bring a claim in small claims court in lieu of arbitration; and that the arbitrator may award any form of individual relief, including injunctions and presumably punitive damages.”13 As an additional carrot, “the agreement … denies AT&T any ability to seek reimbursement of its attorney’s fees, and, in the event that a customer receives an arbitration award greater than AT&T’s last written settlement offer, requires AT&T to pay a $7,500 minimum recovery and twice the amount of the claimant’s attorney’s fees.”14
On its face, the agreement seems to be consumer friendly in that it argues that claims can be quickly moved through arbitration. But these “friendly” terms are illusory because the claims brought against AT&T are probably of a dollar value much less than the minimum recovery and AT&T can resolve claims only after a demand is filed. Also, it would be difficult to find a lawyer to take a consumer’s case, because the fee-shifting provisions do not kick in until there is an award that is more than AT&T’s last settlement offer.
Justice Scalia, writing for the majority, made it clear that state laws holding class-action waivers per se unconscionable are inconsistent with the FAA, and are preempted: “When state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA.”15 And in situations in which “unconscionability is … applied in a fashion that disfavors arbitration,” a court cannot “rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable, for this would enable the court to effect what … the state legislature cannot.”16
Because of the FAA’s purpose that these agreements be enforced on agreed terms, the Court noted that “we have held that parties may agree to limit the issues subject to arbitration, … to arbitrate according to specific rules, … and to limit with whom a party will arbitrate its disputes.”17 Ostensibly, the Court’s view is that an enforceable class-action waiver is simply an extension of that principle, that is, limiting what is arbitrated.
Reasoning that unconscionability findings based on the fact that the arbitration clause exists “would have a disproportionate impact on arbitration agreements,”18 the Court also noted that – even without definitive statistics – “California’s courts have been more likely to hold contracts to arbitrate unconscionable than other contracts.”19
Wisconsin case law would similarly seem to be preempted. Concepcion started with a simple rule: “When state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA.”20 The Supreme Court, however, expanded that rule beyond previous precedent21 by explaining that “the inquiry becomes more complex when a doctrine normally thought to be generally applicable, such as duress or, as relevant here, unconscionability, is alleged to have been applied in a fashion that disfavors arbitration.”22
But as discussed below, there may be some argument that Jones II holds up in the face of Concepcion because the Jones II rule is not necessarily a per se ban on class-action waivers. Indeed, while Concepcion focused more on state law preemption, Amex put to rest any doubts about class-action waivers and arbitration clauses’ enforceability.
Amex: Effective Vindication Exception is Narrowed
After Concepcion, the real dispute is about the method in which parties can bring small-dollar claims. American Express v. Italian Colors Restaurant tries to resolve that dispute, but simply raises more questions. Before American Express, parties could use the “effective vindication” argument to strike arbitration clauses so that small-dollar claims would have a chance as class cases.
But American Express weakened that argument also, holding that as long as there is an avenue to pursue the claims, an arbitration clause is enforceable: “The ‘effective vindication’ exception to which respondents allude originated as dictum in Mitsubishi Motors, where we expressed a willingness to invalidate, on ‘public policy’ grounds, arbitration agreements that ‘operat[e] … as a prospective waiver of a party’s right to pursue statutory remedies.’”23 The Court reiterated that “so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function.”24 This does not take into account that the ultimate result of these cases would be futile.
The American Express majority seemed to narrow application of the effective-vindication exception to situations in which “a provision in an arbitration agreement forbid[s] the assertion of certain statutory rights” or in which “filing and administrative fees attached to arbitration … are so high as to make access to the forum impracticable.”25 Even though the Court noted high arbitration fees as an effective deterrent and possible avenue, it also said “[bu]t the fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy.”26
Dissent Provides a Possible Path for Legislation, Future Claims. In what seems to be a call for a change in legislation, Justice Elena Kagan’s dissent in American Express outlined the reasons for amending the FAA. Specifically, “[s]tart with an uncontroversial proposition: We would refuse to enforce an exculpatory clause insulating a company from antitrust liability – say, ‘Merchants may bring no Sherman Act claims’ – even if that clause were contained in an arbitration agreement.”27 The dissent also recognized the implications of the majority’s opinion for future conduct: “If the rule were limited to baldly exculpatory provisions, however, a monopolist could devise numerous ways around it. Consider several alternatives that a party drafting an arbitration agreement could adopt to avoid antitrust liability, each of which would have the identical effect.”28
State laws holding class-action waivers per se unconscionable are inconsistent with the FAA, and are preempted.
Justice Kagan’s dissent also provides some hope for the effective-vindication rule in absence of legislation: “the effective-vindication rule furthers the purposes … of the FAA itself. That statute reflects a federal policy favoring actual arbitration – that is, arbitration as a streamlined ‘method of resolving disputes,’ not as a foolproof way of killing off valid claims.”29 Indeed, Justice Kagan put forward a straightforward reason for a change in the current law:
“Put otherwise: What the FAA prefers to litigation is arbitration, notde factoimmunity. The effective-vindication rule furthers the statute’s goals by ensuring that arbitration remains a real, not faux, method of dispute resolution. With the [effective vindication] rule, companies have good reason to adopt arbitral procedures that facilitate efficient and accurate handling of complaints. Without it, companies have every incentive to draft their agreements to extract backdoor waivers of statutory rights, making arbitration unavailable or pointless. So down one road: More arbitration, better enforcement of federal statutes. And down the other: Less arbitration, poorer enforcement of federal statutes. Which would you prefer? Or still more aptly: Which do you think Congress would?”30
Enforcing or Invalidating Arbitration Agreements
As mentioned above, Concepcion and American Express cast doubt on Wisconsin’s current body of case law for enforcing or invalidating arbitration agreements. Before Concepcion, Wisconsin courts followed the Discover Bank rule, striking clauses that contain class-action-waiver provisions. After Concepcion, the Wisconsin Court of Appeals issued Cottonwood Financial Ltd. v. Estes.31 In Cottonwood, the plaintiff challenged arbitration provisions as unconscionable on several grounds, but the court of appeals followed Concepcion, holding that “the FAA preempts any state law that classifies an arbitration agreement as unconscionable, and therefore unenforceable, simply because the agreement prohibits an individual from proceeding as a member of a class.”32 So, the court held, under Concepcion, “the waiver of classwide proceedings in [the] arbitration agreement … does not render the agreement substantively unconscionable.”33
Does Concepion Even Apply to State Law? But questions still lurk within the Wisconsin courts concerning the impact of Concepcion and American Express. In a later decision in the Jones case,34 the Wisconsin Court of Appeals considered arguments involving Concepcion and Amex and certified questions to the Wisconsin Supreme Court. The circuit court had considered Concepcion but held that it “did not automatically overrule all of the consumers’ unconscionability assertions.”35
The court of appeals acknowledged the argument that “Concepciondoes not apply to actions originating in state court and therefore should not be part of the unconscionability analysis.” The plaintiffs, relying on a dissent by Justice Clarence Thomas, “explain[ed] that the Supreme Court refused to extend its holding inConcepcionto state court cases, and that Justice Thomas, who provided the necessary fifth vote inConcepcion, has consistently maintained that the FAA does not apply to cases in state court. ”36
The court of appeals took serious consideration of these arguments when it requested certification from the Wisconsin Supreme Court. “The parties’ arguments essentially boil down to one question – did Concepcion overrule Jones II? While Wisconsin Auto asserts that ‘guidance is needed ... to reconcile Wisconsin’s law of unconscionability with Concepcion,’ the only way we can make any rulings contrary to Jones II is if we conclude that some aspect of Jones II directly conflicts with Concepcion. We therefore request the guidance of the supreme court.”37
The case was stayed before the Wisconsin Supreme Court in connection with the case being settled. So the question remains, does Concepcion apply to state law, and if so, can an arbitration provision be a factor in determining unconscionability?
Traditional Unconscionability. So what is left? The FAA’s savings clause still does not put arbitration clauses on a pedestal. A finding of unconscionability is still possible in circumstances consistent with unconscionability principles applicable to all contracts. And in Wisconsin, “[t]o determine whether a contract is unconscionable, a court weighs procedural and substantive factors on a case-by-case basis.”38
The U.S. District Court for the Western District of Wisconsin has noted that “[p]rocedural factors include the [parties’] ‘age, education, intelligence, business acumen and experience, relative bargaining power, who drafted the contract, whether the terms were explained to the weaker party, whether alterations in the printed terms were possible, [and] whether there were alternative sources of supply for the goods in question.’”39
“Substantive unconscionability refers to the reasonableness of the contract terms to which the contracting parties agreed, considered in the light of the commercial background and commercial needs.”40 While there is not a bright-line rule, “The balance tips in favor of unconscionability when there is a certain quantum of procedural plus a certain quantum of substantive unconscionability.”41 It is also a sliding scale of sorts, because “[t]he more substantive unconscionability present, the less procedural unconscionability is required, and vice versa.”42
The question remains, does Concepcion apply to state law, and if so, can an arbitration provision be a factor in determining unconscionability?
Recently, in a case that might be instructive, the Illinois Appellate Court struck an arbitration clause for unconscionability: “In sum, the trial court determined that the deduction clause was unconscionable for three key reasons: (1) the ten-day limitation period, which required drivers to constantly file new claims every time they completed a job which generated contested deductions; (2) because the AAA would charge at least $975 for an arbitration, the remedy was financially illusory; and (3) the requirement that the arbitration be conducted in Illinois was unfair to the drivers, none of whom were based in Illinois nor necessarily drove through this state.”43 While Potiyevskiy seems a little extreme, because striking contracts for unconscionability remains difficult, unconscionable clauses exist and should be challenged when circumstances show both procedural and substantive aspects of unconscionability.
Waiver. Another way courts have struck down arbitration agreements is via a party’s waiver of the arbitration. Although there has to be a substantial commitment to the litigation to show waiver, the possibility exists: “the Court must determine whether it has implicitly [waived its rights to arbitrate]. … The diligence, or lack thereof, of the party seeking arbitration is an important consideration in deciding whether there has been a waiver.”44 A court will consider if “the party seeking arbitration substantially delayed its request for arbitration or acted inconsistently with its intent to arbitrate.”45 Courts will look at prejudice to either of the parties to determine if waiver is appropriate.46
Unfortunately, a lawsuit must be filed first unless there is some sort of pre-litigation waiver.
Lack of Consideration. Lack of consideration is always a way to strike down contracts, and Maryland courts have stricken arbitration provisions in situations in which there was no consideration for a party agreeing to give up its rights to a lawsuit. This rule has survived Concepcion. In Noohi v. Toll Bros., the Fourth Circuit ultimately held that “[a]fter a thorough analysis discussing cases that reached conflicting conclusions, Maryland’s highest court specifically rejected the notion that consideration for an underlying contract can serve as consideration for an arbitration provision within that contract.”47
In Noohi, the arbitration provision was not mutual, that is, it did not waive both parties’ rights to go to court, just the consumer’s right. While the Fourth Circuit made an effort to parse semantics, it concluded that because the contract did not bind both parties to arbitration, the contract was invalid for lack of consideration.48
Although Maryland may be an outlier here, as arbitration contracts become more ubiquitous, courts may develop ways to ensure that abusively worded clauses are stricken based on equitable principles.
Regulators have noticed the effects of Concepcion and American Express on consumers. The attorneys general of Ohio and 21 other states submitted an amicus brief in American Express supporting preservation of the effective-vindication rule.49 There is some speculation that because of these cases, attorneys general will be much more active in bringing cases on behalf of consumers.
Further, the North American Securities Administrators Association (NASAA), which has members from each state and U.S. territory, has taken a consumer-friendly view on the issues. The NASAA gave to a Senate committee a written statement in which the association concluded that “[t]he Federal Arbitration Act was never intended to enforce contracts of adhesion, where one party offers terms on a non-negotiated, take-it-or-leave-it basis. Unfortunately, these contracts of adhesion containing mandatory pre-dispute arbitration clauses in their fine print are commonplace in the brokerage and investment adviser industry. Schwab’s actions to expand these clauses and prohibit class action participation are an example of the pernicious effect of forced arbitration and brokerage ‘form’ contracts. It is also an alarming example of the continued erosion of investor protections. Indeed, without a class action vehicle, many small dollar claims and potentially harmful activity will go undiscovered by the harmed investor, thus resulting in windfalls to violators.”
Absent some legislative action, the proliferation of arbitration clauses will continue. In 2009, 2011, and 2013, however, legislation has been introduced to modernize the FAA. Senate Bill 878, introduced May 7, 2013 as the Arbitration Fairness Action, declares that no predispute arbitration agreement will be valid or enforceable if it requires arbitration of an employment, consumer, antitrust, or civil rights dispute.
The Arbitration Fairness Act brings the FAA into modern times and makes it consistent with the FAA’s legislative history supporting the exclusion of consumer and employment contracts from the FAA’s strict arbitration policy. But at this point, the Arbitration Fairness Act has never made it out of committee.
1 House Report 111-712, Report on the Activities of the Committee on the Judiciary of the House of Representatives during the 111th Congress, Jan. 3, 2011 (citing Arbitration of Interstate Commercial Disputes: Hearing of S. 1005 and H.R. 646 Before the J. Comm. of Subcomms. on the Judiciary, 68th Cong. 10 (1924)).
2 Federal Arbitration Act, 9 U.S.C. § 2.
3 See AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) (citing Hall St. Assocs. LLC v. Mattel Inc., 552 U.S. 576, 581 (2008)).
4 Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983).
6 See Concepcion, 131 S. Ct. at 1747; American Express Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2306 (2013).
7 Concepcion,131 S. Ct. at 1744.
8 American Express,133 S. Ct. 2304 (2013).
9 Coady v. Cross Country Bank Inc., 2007 WI App 26, ¶¶ 47-50, 299 Wis. 2d 420, 729 N.W.2d 732 (citing Discover Bank v. Superior Court, 113 P.3d 1100, 1109 (Cal. 2005)).
10 Id. ¶ 48.
11 Id. (citing Wisconsin Auto Title Loans v. Jones, 2006 WI 53, ¶ 73, 290 Wis. 2d 514, 714 N.W.2d 155).
12 Concepcion, 131 S. Ct. at 1744.
15 Id. at 1747 (citing Preston v. Ferrer, 552 U.S. 346, 353 (2008)).
16 Id. (citing Perryv. Thomas, 482 U.S. 483, 493 n.9 (1987)).
17 Id. at 1748-49 (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc., 473 U.S. 614, 628 (1985)); Volt Information Sci. Inc. v. Board of Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 479 (1989)); and Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010)).
19 Id. (citing Stephen A. Broome, An Unconscionable Application of the Unconscionability Doctrine: How the California Judiciary Is Circumventing the Federal Arbitration Act, 3 Hastings Bus. L.J. 39, 54, 66 (2006); Susan Randall, Judicial Attitudes Toward Arbitration and the Resurgence of Unconscionability, 52 Buffalo L. Rev. 185, 186-87 (2004)).
20 Id. (citing Preston, 552 U.S. at 353).
21 Id. (citing Perry v. Thomas, 482 U.S. 483).
23 American Express, 133 S. Ct. at 2310 (citingMitsubishi Motors, 473 U.S. at 637 n.19).
24 Id. (citing Mitsubishi Motors, 473 U.S. at 637).
25 Id. (citing Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 90 (2000) (“It may well be that the existence of large arbitration costs could preclude a litigant … from effectively vindicating her federal statutory rights”)).
26 Id. (citing In re Am. Express Merchants’ Litig., 681 F. 3d 139, 147 (2012) (Jacobs, C.J., dissenting from denial of rehearing en banc)).
27 Id. at 2313.
28 Id. at 2314.
29 Id. at 2315 (citing Rodriguez de Quijas v. Shearson/American Express Inc., 490 U. S. 477, 481 (1989)).
31 2012 WI App 12, 339 Wis. 2d 472, 810 N.W.2d 852.
32 Id. ¶ 12.
34 Wisconsin Auto Title Loans Inc. v. Jones, No. 2011AP2482, 2013 WL 425449 (Wis. Ct. App. Feb. 5, 2013).
36 Id. (citing Preston, 552 U.S. at 363 (Thomas, J., dissenting) (“As I have stated on many previous occasions, I believe that the Federal Arbitration Act ... does not apply to proceedings in state courts.... Thus, in state-court proceedings, the FAA cannot displace a state law that delays arbitration until administrative proceedings are completed”) (internal citations omitted)).
37 Id. (citing State v. Jennings, 2002 WI 44, ¶¶ 3, 19, 252 Wis. 2d 228, 647 N.W.2d 142; Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997) (the “supreme court is the only state court with the power to overrule, modify or withdraw language from a previous supreme court case”)).
38 Villalobos v. EZCorp Inc., No. 12-cv-852-slc, 2013 WL 3732875, *2 (W.D. Wis. July 12, 2013) (citing Jones, 2006 WI 53, ¶¶ 29, 33, 290 Wis. 2d 514;, Discount Fabric House of Racine, Inc. v. Wisconsin Tel. Co. 117 Wis. 2d 587, 602, 345 N.W.2d 417 (1984)).
39 Id. (citing Discount Fabric House of Racine, 117 Wis. 2d at 602 (internal quotation marks omitted); accord Jones, 2006 WI 53, ¶ 34, 290 Wis. 2d 514.
41 Id. (citing Leasefirst v. Hartford Rexall Drugs Inc., 168 Wis. 2d 83, 88-90, 483 N.W. 2d 585 (Ct. App. 1992)).
42 Id. (citing Jones, 2006 WI 53, 290 Wis.2d 514).
43 Potiyevskiy v. TM Transp. Inc., 2013 IL App (1st) 131864-U, ¶ 16, 2013 WL 6199949 (Ill. App. Ct. Nov. 25,2013).
44 Hoenig v. Karl Knauz Motors Inc., No. 13 C 0866, 2013 WL 5701400, *8 (N.D. Ill. Oct. 16, 2013) (citing Cabinetree of Wisc. Inc. v. Kraftmaid Cabinetry Inc., 50 F.3d 388, 391 (7th Cir. 1995)).
45 Id. (citing St. Mary’s Med. Ctr. Inc. v. Disco Aluminum Prods. Co., 969 F.2d 585, 589 (7th Cir. 1992)).
46 Id. (citing Kawasaki Heavy Indus. Ltd. v. Bombardier Recreational Prods. Inc., 660 F.3d 988, 994 (7th Cir. 2011) (“Because of the strong federal policy favoring enforcement of arbitration agreements, parties asserting waiver bear a heavy burden and courts should not lightly infer waiver.”)).
47 Noohi v. Toll Bros., 708 F.3d 599, 607 (4th Cir. 2013).