Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010)
OCTOBER TERM, 2009
RENT-A-CENTER, WEST, INC. V. JACKSON
SUPREME COURT OF THE UNITED STATES
RENT-A-CENTER, WEST, INC. v. JACKSON
certiorari to the united states court of appeals for the ninth circuit
No. 09–497. Argued April 26, 2010—Decided June 21, 2010
Respondent Jackson filed an employment-discrimination suit against petitioner Rent-A-Center, his former employer, in a Nevada Federal District Court. Rent-A-Center filed a motion, under the Federal Arbitration Act (FAA), to dismiss or stay the proceedings, 9 U. S. C. §3, and to compel arbitration, §4, based on the arbitration agreement (Agreement) Jackson signed as a condition of his employment. Jackson opposed the motion on the ground that the Agreement was unenforceable in that it was unconscionable under Nevada law. The District Court granted Rent-A-Center’s motion. The Ninth Circuit reversed in relevant part.
Held: Under the FAA, where an agreement to arbitrate includes an agreement that the arbitrator will determine the enforceability of the agreement, if a party challenges specifically the enforceability of that particular agreement, the district court considers the challenge, but if a party challenges the enforceability of the agreement as a whole, the challenge is for the arbitrator. Pp. 3–12.
(a) Section 2 of the FAA places arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 443, and requires courts to enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 478, “save upon such grounds as exist under law or in equity for the revocation of any contract,” §2. Here, the Agreement included two relevant arbitration provisions: it provided for arbitration of all disputes arising out of Jackson’s employment, including discrimination claims, and it gave the “Arbitrator … exclusive authority to resolve any dispute relating to the [Agreement’s] enforceability … including … any claim that all or any part of this Agreement is void or voidable.” Rent-A-Center seeks enforcement of the second provision, which delegates to the arbitrator the “gateway” question of enforceability. See, e.g., Howsam v. Dean Witter Reynolds, Inc., 537 U. S. 79, 83–85. The court must enforce the delegation provision under §§3 and 4 unless it is unenforceable under §2. Pp. 3–6.
(b) There are two types of validity challenges under §2: one “challenges specifically the validity of the agreement to arbitrate,” and “[t]he other challenges the contract as a whole,” Buckeye, supra, at 444. Only the first is relevant to a court’s determination of an arbitration agreement’s enforceability, see, e.g., Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395, 403–404, because under §2 “an arbitration provision is severable from the remainder of the contract,” Buckeye, supra, at 445. That does not mean that agreements to arbitrate are unassailable. If a party challenges the validity under §2 of the precise agreement to arbitrate at issue, the federal court must consider the challenge before ordering compliance with the agreement under §4. That is no less true when the precise agreement to arbitrate is itself part of a larger arbitration agreement. Because here the agreement to arbitrate enforceability (the delegation provision) is severable from the remainder of the Agreement, unless Jackson challenged the delegation provision specifically, it must be treated as valid under §2 and enforced under §§3 and 4. Pp. 6–9.
(c) The District Court correctly concluded that Jackson challenged only the validity of the contract as a whole. In his brief to this Court he raised a challenge to the delegation provision for the first time, but that is too late and will not be considered. See 14 Penn Plaza LLC v. Pyett, 556 U. S. ___, ___. Pp. 9–12.
581 F. 3d 912, reversed.
Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Ginsburg, Breyer, and Sotomayor, JJ., joined.
OPINION OF THE COURT
RENT-A-CENTER, WEST, INC. V. JACKSON
561 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
RENT-A-CENTER, WEST, INC., PETITIONER v. ANTONIO JACKSON on writ of certiorari to the united states court of appeals for the ninth circuit [June 21, 2010] Justice Scalia delivered the opinion of the Court. We consider whether, under the Federal Arbitration Act (FAA or Act), 9 U. S. C. §§1–16, a district court may decide a claim that an arbitration agreement is unconscionable, where the agreement explicitly assigns that decision to the arbitrator. I On February 1, 2007, the respondent here, Antonio Jackson, filed an employment-discrimination suit under Rev. Stat. §1977, 42 U. S. C. §1981, against his former employer in the United States District Court for the District of Nevada. The defendant and petitioner here, Rent-A-Center, West, Inc., filed a motion under the FAA to dismiss or stay the proceedings, 9 U. S. C. §3, and to compel arbitration, §4. Rent-A-Center argued that the Mutual Agreement to Arbitrate Claims (Agreement), which Jackson signed on February 24, 2003 as a condition of his employment there, precluded Jackson from pursuing his claims in court. The Agreement provided for arbitration of all “past, present or future” disputes arising out of Jackson’s employment with Rent-A-Center, including “claims for discrimination” and “claims for violation of any federal . . . law.” App. 29–30. It also provided that “[t]he Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all or any part of this Agreement is void or voidable.” Id., at 34. Jackson opposed the motion on the ground that “the arbitration agreement in question is clearly unenforceable in that it is unconscionable” under Nevada law. Id., at 40. Rent-A-Center responded that Jackson’s unconscionability claim was not properly before the court because Jackson had expressly agreed that the arbitrator would have exclusive authority to resolve any dispute about the enforceability of the Agreement. It also disputed the merits of Jackson’s unconscionability claims. The District Court granted Rent-A-Center’s motion to dismiss the proceedings and to compel arbitration. The court found that the Agreement “ ‘ “clearly and unmistakenly [sic]” ’ ” gives the arbitrator exclusive authority to decide whether the Agreement is enforceable, App. to Pet. for Cert. 4a. (quoting Howsam v. Dean Witter Reynolds, Inc., 537 U. S. 79, 83 (2002)), and, because Jackson challenged the validity of the Agreement as a whole, the issue was for the arbitrator, App. to Pet. for Cert. 4a (citing Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 444–445 (2006)). The court noted that even if it were to examine the merits of Jackson’s unconscionability claims, it would have rejected the claim that the agreement to split arbitration fees was substantively unconscionable under Nevada law. It did not address Jackson’s procedural or other substantive unconscionability arguments. Without oral argument, a divided panel of the Court of Appeals for the Ninth Circuit reversed in part, affirmed in part, and remanded. 581 F. 3d 912 (2009). The court reversed on the question of who (the court or arbitrator) had the authority to decide whether the Agreement is enforceable. It noted that “Jackson does not dispute that the language of the Agreement clearly assigns the arbitrability determination to the arbitrator,” but held that where “a party challenges an arbitration agreement as unconscionable, and thus asserts that he could not meaningfully assent to the agreement, the threshold question of unconscionability is for the court.” Id., at 917. The Ninth Circuit affirmed the District Court’s alternative conclusion that the fee-sharing provision was not substantively unconscionable and remanded for consideration of Jackson’s other unconscionability arguments. Id., at 919–920, and n. 3. Judge Hall dissented on the ground that “the question of the arbitration agreement’s validity should have gone to the arbitrator, as the parties ‘clearly and unmistakably provide[d]’ in their agreement.” Id., at 921. We granted certiorari, 558 U. S. ___ (2010). II A The FAA reflects the fundamental principle that arbitration is a matter of contract. Section 2, the “primary substantive provision of the Act,” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24 (1983), provides: “A written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2. The FAA thereby places arbitration agreements on an equal footing with other contracts, Buckeye, supra, at 443, and requires courts to enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 478 (1989). Like other contracts, however, they may be invalidated by “generally applicable contract defenses, such as fraud, duress, or unconscionability.” Doctor’s Associates, Inc. v. Casarotto, 517 U. S. 681, 687 (1996). The Act also establishes procedures by which federal courts implement §2’s substantive rule. Under §3, a party may apply to a federal court for a stay of the trial of an action “upon any issue referable to arbitration under an agreement in writing for such arbitration.” Under §4, a party “aggrieved” by the failure of another party “to arbitrate under a written agreement for arbitration” may petition a federal court “for an order directing that such arbitration proceed in the manner provided for in such agreement.” The court “shall” order arbitration “upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue.” Ibid. The Agreement here contains multiple “written provision[s]” to “settle by arbitration a controversy,” §2. Two are relevant to our discussion. First, the section titled “Claims Covered By The Agreement” provides for arbitration of all “past, present or future” disputes arising out of Jackson’s employment with Rent-A-Center. App. 29. Second, the section titled “Arbitration Procedures” provides that “[t]he Arbitrator . . . shall have exclusive authority to resolve any dispute relating to the . . . enforceability . . . of this Agreement including, but not limited to any claim that all or any part of this Agreement is void or voidable.” Id., at 32, 34. The current “controversy” between the parties is whether the Agreement is unconscionable. It is the second provision, which delegates resolution of that controversy to the arbitrator, that Rent-A-Center seeks to enforce. Adopting the terminology used by the parties, we will refer to it as the delegation provision. The delegation provision is an agreement to arbitrate threshold issues concerning the arbitration agreement. We have recognized that parties can agree to arbitrate “gateway” questions of “arbitrability,” such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy. See, e.g., Howsam, 537 U. S., at 83–85; Green Tree Financial Corp. v. Bazzle, 539 U. S. 444, 452 (2003) (plurality opinion). This line of cases merely reflects the principle that arbitration is a matter of contract.[Footnote 1] See First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 943 (1995). An agreement to arbitrate a gateway issue is simply an additional, antecedent agreement the party seeking arbitration asks the federal court to enforce, and the FAA operates on this additional arbitration agreement just as it does on any other. The additional agreement is valid under §2 “save upon such grounds as exist at law or in equity for the revocation of any contract,” and federal courts can enforce the agreement by staying federal litigation under §3 and compelling arbitration under §4. The question before us, then, is whether the delegation provision is valid under §2. B There are two types of validity challenges under §2: “One type challenges specifically the validity of the agreement to arbitrate,” and “[t]he other challenges the contract as a whole, either on a ground that directly affects the entire agreement (e.g., the agreement was fraudulently induced), or on the ground that the illegality of one of the contract’s provisions renders the whole contract invalid.” Buckeye, 546 U. S., at 444. In a line of cases neither party has asked us to overrule, we held that only the first type of challenge is relevant to a court’s determination whether the arbitration agreement at issue is enforceable.[Footnote 2] See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395, 403–404 (1967); Buckeye, supra, at 444–446; Preston v. Ferrer, 552 U. S. 346, 353–354 (2008). That is because §2 states that a “written provision” “to settle by arbitration a controversy” is “valid, irrevocable, and enforceable” without mention of the validity of the contract in which it is contained. Thus, a party’s challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate. “[A]s a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract.” Buckeye, 546 U. S., at 445; see also id., at 447 (the severability rule is based on §2). But that agreements to arbitrate are severable does not mean that they are unassailable. If a party challenges the validity under §2 of the precise agreement to arbitrate at issue, the federal court must consider the challenge before ordering compliance with that agreement under §4. In Prima Paint, for example, if the claim had been “fraud in the inducement of the arbitration clause itself,” then the court would have considered it. 388 U. S., at 403–404. “To immunize an arbitration agreement from judicial challenge on the ground of fraud in the inducement would be to elevate it over other forms of contract,” id., at 404, n. 12. In some cases the claimed basis of invalidity for the contract as a whole will be much easier to establish than the same basis as applied only to the severable agreement to arbitrate. Thus, in an employment contract many elements of alleged unconscionability applicable to the entire contract (outrageously low wages, for example) would not affect the agreement to arbitrate alone. But even where that is not the case—as in Prima Paint itself, where the alleged fraud that induced the whole contract equally induced the agreement to arbitrate which was part of that contract—we nonetheless require the basis of challenge to be directed specifically to the agreement to arbitrate before the court will intervene. Here, the “written provision . . . to settle by arbitration a controversy,” 9 U. S. C. §2, that Rent-A-Center asks us to enforce is the delegation provision—the provision that gave the arbitrator “exclusive authority to resolve any dispute relating to the . . . enforceability . . . of this Agreement,” App. 34. The “remainder of the contract,” Buckeye, supra, at 445, is the rest of the agreement to arbitrate claims arising out of Jackson’s employment with Rent-A-Center. To be sure this case differs from Prima Paint, Buckeye, and Preston, in that the arbitration provisions sought to be enforced in those cases were contained in contracts unrelated to arbitration—contracts for consulting services, see Prima Paint, supra, at 397, check-cashing services, see Buckeye, supra, at 442, and “personal management” or “talent agent” services, see Preston, supra, at 352. In this case, the underlying contract is itself an arbitration agreement. But that makes no difference.[Footnote 3] Application of the severability rule does not depend on the substance of the remainder of the contract. Section 2 operates on the specific “written provision” to “settle by arbitration a controversy” that the party seeks to enforce. Accordingly, unless Jackson challenged the delegation provision specifically, we must treat it as valid under §2, and must enforce it under §§3 and 4, leaving any challenge to the validity of the Agreement as a whole for the arbitrator. C The District Court correctly concluded that Jackson challenged only the validity of the contract as a whole. Nowhere in his opposition to Rent-A-Center’s motion to compel arbitration did he even mention the delegation provision. See App. 39–47. Rent-A-Center noted this fact in its reply: “[Jackson’s response] fails to rebut or otherwise address in any way [Rent-A-Center’s] argument that the Arbitrator must decide [Jackson’s] challenge to the enforceability of the Agreement. Thus, [Rent-A-Center’s] argument is uncontested.” Id., at 50 (emphasis in original). The arguments Jackson made in his response to Rent-A-Center’s motion to compel arbitration support this conclusion. Jackson stated that “the entire agreement seems drawn to provide [Rent-A-Center] with undue advantages should an employment-related dispute arise.” Id., at 44 (emphasis added). At one point, he argued that the limitations on discovery “further suppor[t] [his] contention that the arbitration agreement as a whole is substantively unconscionable.” Ibid. (emphasis added). And before this Court, Jackson describes his challenge in the District Court as follows: He “opposed the motion to compel on the ground that the entire arbitration agreement, including the delegation clause, was unconscionable.” Brief for Respondent 55 (emphasis added). That is an accurate description of his filings. As required to make out a claim of unconscionability under Nevada law, see 581 F. 3d, at 919, he contended that the Agreement was both procedurally and substantively unconscionable. It was procedurally unconscionable, he argued, because it “was imposed as a condition of employment and was non-negotiable.” App. 41. But we need not consider that claim because none of Jackson’s substantive unconscionability challenges was specific to the delegation provision. First, he argued that the Agreement’s coverage was one sided in that it required arbitration of claims an employee was likely to bring—contract, tort, discrimination, and statutory claims—but did not require arbitration of claims Rent-A-Center was likely to bring—intellectual property, unfair competition, and trade secrets claims. Id., at 42–43. This one-sided-coverage argument clearly did not go to the validity of the delegation provision. Jackson’s other two substantive unconscionability arguments assailed arbitration procedures called for by the contract—the fee-splitting arrangement and the limitations on discovery—procedures that were to be used during arbitration under both the agreement to arbitrate employment-related disputes and the delegation provision. It may be that had Jackson challenged the delegation provision by arguing that these common procedures as applied to the delegation provision rendered that provision unconscionable, the challenge should have been considered by the court. To make such a claim based on the discovery procedures, Jackson would have had to argue that the limitation upon the number of depositions causes the arbitration of his claim that the Agreement is unenforceable to be unconscionable. That would be, of course, a much more difficult argument to sustain than the argument that the same limitation renders arbitration of his factbound employment-discrimination claim unconscionable. Likewise, the unfairness of the fee-splitting arrangement may be more difficult to establish for the arbitration of enforceability than for arbitration of more complex and fact-related aspects of the alleged employment discrimination. Jackson, however, did not make any arguments specific to the delegation provision; he argued that the fee-sharing and discovery procedures rendered the entire Agreement invalid. Jackson’s appeal to the Ninth Circuit confirms that he did not contest the validity of the delegation provision in particular. His brief noted the existence of the delegation provision, Brief for Appellant in No. 07–16164, p. 3, but his unconscionability arguments made no mention of it, id., at 3–7. He also repeated the arguments he had made before the District Court, see supra, at 9, that the “entire agreement” favors Rent-A-Center and that the limitations on discovery further his “contention that the arbitration agreement as a whole is substantively unconscionable,” Brief for Appellant 7–8. Finally, he repeated the argument made in his District Court filings, that under state law the unconscionable clauses could not be severed from the arbitration agreement, see id., at 8–9.[Footnote 4] The point of this argument, of course, is that the Agreement as a whole is unconscionable under state law. Jackson repeated that argument before this Court. At oral argument, counsel stated: “There are certain elements of the arbitration agreement that are unconscionable and, under Nevada law, which would render the entire arbitration agreement unconscionable.” Tr. of Oral Arg. 43 (emphasis added). And again, he stated, “we’ve got both certain provisions that are unconscionable, that under Nevada law render the entire agreement unconscionable … , and that’s what the Court is to rely on.” Id., at 43–44 (emphasis added). In his brief to this Court, Jackson made the contention, not mentioned below, that the delegation provision itself is substantively unconscionable because the quid pro quo he was supposed to receive for it—that “in exchange for initially allowing an arbitrator to decide certain gateway questions,” he would receive “plenary post-arbitration judicial review”—was eliminated by the Court’s subsequent holding in Hall Street Associates, L. L. C. v. Mattel, Inc., 552 U. S. 576 (2008), that the nonplenary grounds for judicial review in §10 of the FAA are exclusive. Brief for Respondent 59–60. He brought this challenge to the delegation provision too late, and we will not consider it.[Footnote 5] See 14 Penn Plaza LLC v. Pyett, 556 U. S. ___, ___ (2009) (slip op., at 24). * * * We reverse the judgment of the Court of Appeals for the Ninth Circuit. It is so ordered.
STEVENS, J., DISSENTING
RENT-A-CENTER, WEST, INC. V. JACKSON
561 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
RENT-A-CENTER, WEST, INC., PETITIONER v. ANTONIO JACKSON on writ of certiorari to the united states court of appeals for the ninth circuit [June 21, 2010] Justice Stevens, with whom Justice Ginsburg, Justice Breyer, and Justice Sotomayor join, dissenting. Neither petitioner nor respondent has urged us to adopt the rule the Court does today: Even when a litigant has specifically challenged the validity of an agreement to arbitrate he must submit that challenge to the arbitrator unless he has lodged an objection to the particular line in the agreement that purports to assign such challenges to the arbitrator—the so-called “delegation clause.” The Court asserts that its holding flows logically from Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395 (1967), in which the Court held that consideration of a contract revocation defense is generally a matter for the arbitrator, unless the defense is specifically directed at the arbitration clause, id., at 404. We have treated this holding as a severability rule: When a party challenges a contract, “but not specifically its arbitration provisions, those provisions are enforceable apart from the remainder of the contract.” Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 446 (2006). The Court’s decision today goes beyond Prima Paint. Its breezy assertion that the subject matter of the contract at issue—in this case, an arbitration agreement and nothing more—“makes no difference,” ante, at 7, is simply wrong. This written arbitration agreement is but one part of a broader employment agreement between the parties, just as the arbitration clause in Prima Paint was but one part of a broader contract for services between those parties. Thus, that the subject matter of the agreement is exclusively arbitration makes all the difference in the Prima Paint analysis. I Under the Federal Arbitration Act (FAA), 9 U. S. C. §§1–16, parties generally have substantial leeway to define the terms and scope of their agreement to settle disputes in an arbitral forum. “[A]rbitration is,” after all, “simply a matter of contract between the parties; it is a way to resolve those disputes—but only those disputes—that the parties have agreed to submit to arbitration.” First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 943 (1995). The FAA, therefore, envisions a limited role for courts asked to stay litigation and refer disputes to arbitration. Certain issues—the kind that “contracting parties would likely have expected a court to have decided”—remain within the province of judicial review. Howsam v. Dean Witter Reynolds, Inc., 537 U. S. 79, 83 (2002); see also Green Tree Financial Corp. v. Bazzle, 539 U. S. 444, 452 (2003) (plurality opinion); AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 649 (1986). These issues are “gateway matter[s]” because they are necessary antecedents to enforcement of an arbitration agreement; they raise questions the parties “are not likely to have thought that they had agreed that an arbitrator would” decide. Howsam, 537 U. S., at 83. Quintessential gateway matters include “whether the parties have a valid arbitration agreement at all,” Bazzle, 539 U. S., at 452 (plurality opinion); “whether the parties are bound by a given arbitration clause,” Howsam, 537 U. S., at 84; and “whether an arbitration clause in a concededly binding contract applies to a particular type of controversy,” ibid. It would be bizarre to send these types of gateway matters to the arbitrator as a matter of course, because they raise a “ ‘question of arbitrability.’ ”[Footnote 1] See, e.g., ibid.; First Options, 514 U. S., at 947. “[Q]uestion[s] of arbitrability” thus include questions regarding the existence of a legally binding and valid arbitration agreement, as well as questions regarding the scope of a concededly binding arbitration agreement. In this case we are concerned with the first of these categories: whether the parties have a valid arbitration agreement. This is an issue the FAA assigns to the courts.[Footnote 2] Section 2 of the FAA dictates that covered arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2. “[S]uch grounds,” which relate to contract validity and formation, include the claim at issue in this case, unconscionability. See Doctor’s Associates, Inc. v. Casarotto, 517 U. S. 681, 687 (1996). Two different lines of cases bear on the issue of who decides a question of arbitrability respecting validity, such as whether an arbitration agreement is unconscionable. Although this issue, as a gateway matter, is typically for the court, we have explained that such an issue can be delegated to the arbitrator in some circumstances. When the parties have purportedly done so, courts must examine two distinct rules to decide whether the delegation is valid. The first line of cases looks to the parties’ intent. In AT&T Technologies, we stated that “question[s] of arbitrability” may be delegated to the arbitrator, so long as the delegation is clear and unmistakable. 475 U. S., at 649. We reaffirmed this rule, and added some nuance, in First Options. Against the background presumption that questions of arbitrability go to the court, we stated that federal courts should “generally” apply “ordinary state-law principles that govern the formation of contracts” to assess “whether the parties agreed to arbitrate a certain matter (including arbitrability).” 514 U. S., at 944. But, we added, a more rigorous standard applies when the inquiry is whether the parties have “agreed to arbitrate arbitrability”: “Courts should not assume that the parties agreed to arbitrate arbitrability unless there is clear and unmistakable evidence that they did so.”[Footnote 3] Ibid. (internal quotation marks and brackets omitted). Justice Breyer’s unanimous opinion for the Court described this standard as a type of “revers[e]” “presumption”[Footnote 4]—one in favor of a judicial, rather than an arbitral, forum. Id., at 945. Clear and unmistakable “evidence” of agreement to arbitrate arbitrability might include, as was urged in First Options, a course of conduct demonstrating assent,[Footnote 5] id., at 946, or, as is urged in this case, an express agreement to do so. In any event, whether such evidence exists is a matter for the court to determine. The second line of cases bearing on who decides the validity of an arbitration agreement, as the Court explains, involves the Prima Paint rule. See ante, at 6. That rule recognizes two types of validity challenges. One type challenges the validity of the arbitration agreement itself, on a ground arising from an infirmity in that agreement. The other challenges the validity of the arbitration agreement tangentially—via a claim that the entire contract (of which the arbitration agreement is but a part) is invalid for some reason. See Buckeye, 546 U. S., at 444. Under Prima Paint, a challenge of the first type goes to the court; a challenge of the second type goes to the arbitrator. See 388 U. S., at 403–404; see also Buckeye, 546 U. S., at 444–445. The Prima Paint rule is akin to a pleading standard, whereby a party seeking to challenge the validity of an arbitration agreement must expressly say so in order to get his dispute into court. In sum, questions related to the validity of an arbitration agreement are usually matters for a court to resolve before it refers a dispute to arbitration. But questions of arbitrability may go to the arbitrator in two instances: (1) when the parties have demonstrated, clearly and unmistakably, that it is their intent to do so; or (2) when the validity of an arbitration agreement depends exclusively on the validity of the substantive contract of which it is a part.