PUBLISHED


UNITED STATES COURT OF APPEALS
             FOR THE FOURTH CIRCUIT


SAMUEL D. MURIITHI,                    
                Plaintiff-Appellee,
              and
KEVIN A. GADSON; OKIERIETA O.
ENAJEKPO,
                         Plaintiffs,
               v.
SHUTTLE EXPRESS, INC.,                     No. 11-1445
             Defendant-Appellant,
               and
SUPERSHUTTLE INTERNATIONAL, INC.;
SHUTTLE EXPRESS CORPORATION;
VEOLIA TRANSPORTATION,
INCORPORATED; VEOLIA
ENVIRONMENT SA,
                      Defendants.
                                       
        Appeal from the United States District Court
         for the District of Maryland, at Greenbelt.
          Alexander Williams, Jr., District Judge.
                    (8:10-cv-01057-AW)

                 Argued: January 29, 2013

                   Decided: April 1, 2013

    Before DAVIS and KEENAN, Circuit Judges, and
 John A. GIBNEY, Jr., United States District Judge for the
    Eastern District of Virginia, sitting by designation.
2              MURIITHI v. SHUTTLE EXPRESS, INC.
Vacated and remanded by published opinion. Judge Keenan
wrote the opinion, in which Judge Davis and Judge Gibney
joined.


                         COUNSEL

ARGUED: Christopher A. Parlo, MORGAN LEWIS &
BOCKIUS, LLP, New York, New York, for Appellant. John
Michael Singleton, Sr., Lutherville, Maryland, for Appellee.
ON BRIEF: Russell R. Bruch, MORGAN LEWIS & BOCK-
IUS, LLP, Washington, D.C.; Melissa C. Rodriguez, MOR-
GAN LEWIS & BOCKIUS, LLP, New York, New York, for
Appellant.


                          OPINION

BARBARA MILANO KEENAN, Circuit Judge:

   In this appeal, we consider the enforceability of an arbitra-
tion clause included in a franchise agreement between the
plaintiff, Samuel Muriithi, and the defendant, Shuttle Express,
Inc. The district court refused to compel arbitration based on
three provisions in the franchise agreement that the court
found were unconscionable: (1) a class action waiver; (2) a
requirement that the parties "split" arbitration fees; and (3) a
one-year limitations period for asserting claims arising under
the franchise agreement. Upon our review, we conclude that
the Supreme Court’s recent decision in AT&T Mobility LLC
v. Concepcion, 

(2011), requires reversal of
the district court’s holding that the class action waiver was an
unconscionable contract provision. We further conclude that
the district court erred in holding that the other two chal-
lenged provisions also rendered the arbitration clause uncon-
scionable. Accordingly, we vacate the district court’s
                  MURIITHI v. SHUTTLE EXPRESS, INC.                      3
judgment and remand the case for entry of an order compel-
ling arbitration of Muriithi’s claims.

                                    I.

   Samuel Muriithi was a driver for Shuttle Express, a passen-
ger shuttle service, who provided transportation for passen-
gers to and from the Baltimore–Washington International
Thurgood Marshall Airport. Muriithi alleges that Shuttle
Express misled him concerning the compensation he would
receive, inducing him to sign a Unit Franchise Agreement
with Shuttle Express in April 2007 (the Franchise Agree-
ment). Muriithi also alleges that Shuttle Express improperly
classified him in the Franchise Agreement as an "independent
contractor" or "franchisee," rather than as an "employee," and
that, as a result, he is entitled to overtime pay and to compen-
sation of at least the prevailing minimum wage required under
federal law.

   Asserting these grounds for relief, Muriithi initiated a col-
lective action against Shuttle Express under the Fair Labor
Standards Act (FLSA), 29 U.S.C. §§ 201 through 219.1 In his
complaint, Muriithi also raised various Maryland state law
claims on behalf of all members of a purported class. Shuttle
Express moved to dismiss the complaint under Rule 12(b)(6)
of the Federal Rules of Civil Procedure, or to compel arbitra-
tion under the Federal Arbitration Act (FAA), 9 U.S.C. § 4.

  The Franchise Agreement contains an arbitration clause,
which states in material part:
  1
    Initially, Muriithi’s complaint included two other named plaintiffs,
who later withdrew from the case. Muriithi named several other corporate
entities as defendants, which were dismissed in a ruling not challenged on
appeal. Thus, the only remaining parties in the case are Muriithi and Shut-
tle Express.
4              MURIITHI v. SHUTTLE EXPRESS, INC.
    ARBITRATION; ATTORNEY’S FEES

    Except as provided below, any controversy arising
    out of this Agreement shall be submitted to the
    American Arbitration Association at its offices in or
    nearest to Baltimore, Maryland, for final and binding
    arbitration in accordance with its commercial rules
    and procedures which are in effect at the time the
    arbitration is filed. The parties shall bear their own
    costs including without limitation attorney’s fees,
    and shall each bear one-half (1/2) of the fees and
    costs of the arbitrator.

    ...

    The parties acknowledge that their relationship is
    unique and that there are and will be differences
    from the relationships [Shuttle Express] may have
    with other franchisees or licensees. Therefore, any
    arbitration, suit, action or other legal proceeding
    shall be conducted and resolved on an individual
    basis only and not on a class-wide, multiple plaintiff,
    consolidated or similar basis.

(individually, the fee-splitting clause and the class action
waiver; in its entirety, the Arbitration Clause).

   Also relevant to this appeal is the one-year limitations pro-
vision included in the Franchise Agreement, which states as
follows:

    STATUTE OF LIMITATIONS

    The parties hereby acknowledge and agree that any
    arbitration, suit, action or other proceeding relating
    to this Agreement must be brought within one (1)
    year after the occurrence of the act or omission that
                  MURIITHI v. SHUTTLE EXPRESS, INC.                      5
      is the subject of the arbitration, suit, action or other
      legal proceeding.

(the one-year limitations provision).2

   In considering Shuttle Express’ motion to compel arbitra-
tion, the district court first addressed the issue whether Muri-
ithi’s claims fall within the scope of the Arbitration Clause.
The court held that Muriithi’s FLSA and Maryland law claims
"arise out of" the Franchise Agreement and, thus, fall within
the scope of disputes covered by the parties’ agreement to
arbitrate. The court further concluded, however, that the Arbi-
tration Clause is unenforceable based on three provisions in
the Franchise Agreement that the court found were unconscio-
nable.

   First, under the fee-splitting provision, the district court
found that the costs of arbitration would be "so prohibitively
expensive as to deter arbitration" at Muriithi’s request. Sec-
ond, the district court held that the class action waiver and the
fee-splitting provision operate together to "prevent [Muriithi]
from fully vindicating [his] statutory rights." The court also
found that if "class actions are prohibited by the [Franchise
Agreement], the realistic alternative would be that no individ-
ual suits are brought given that the costs of each individual
arbitration has the potential to exceed any recovery."

   Third, the district court concluded that the one-year limita-
tions provision governing all claims arising out of the Fran-
chise Agreement also "operates to prevent [Muriithi] from
vindicating [his] statutory rights," because the FLSA affords
him at least a two-year period in which to assert his claims.
29 U.S.C. § 255(a). The district court thus determined that
  2
    Pursuant to a choice of law clause, the parties agreed that Delaware
law governs all matters relating to the Agreement. There do not appear to
be any contested issues of state law in this appeal. Moreover, our analysis
in this case is based on controlling principles of federal law.
6                 MURIITHI v. SHUTTLE EXPRESS, INC.
because the Arbitration Clause was "so permeated by substan-
tively unconscionable provisions," it could not be remedied
by severing the unconscionable parts. Accordingly, the court
denied Shuttle Express’ motion to compel arbitration.3 Shuttle
Express timely filed a notice of appeal.

                                     II.

   We have jurisdiction over this appeal pursuant to 9 U.S.C.
§ 16(a)(1)(B), which authorizes an appeal from a district
court’s denial of a petition to compel arbitration brought
under Section 4 of the FAA. Shuttle Express challenges the
district court’s order refusing to compel arbitration, contend-
ing that: (1) under the Supreme Court’s holding in AT&T
Mobility LLC v. Concepcion, the class action waiver is not
unconscionable; (2) Muriithi failed to establish that he will
incur "prohibitive" arbitration costs under the fee-splitting
provision; and (3) the district court erred in holding as part of
the motion to compel arbitration that the one-year limitations
provision is unconscionable.4

                                     A.

   Upon petition of a party to an arbitration agreement, a dis-
trict court may compel arbitration to enforce the parties’
agreement to arbitrate their disputes. 9 U.S.C. § 4; Rota-
McLarty v. Santander Consumer USA, Inc., 

,
696 n.5 (4th Cir. 2012). We review de novo a district court’s
denial of a motion to compel arbitration. Sydnor v. Conesco
Fin. Servicing Corp., 

, 304-05 (4th Cir. 2001).
We also review de novo questions of state contract law con-
cerning the validity of the parties’ arbitration agreement.

.
    3
     The district court made several other rulings regarding Shuttle Express’
Rule 12(b)(6) motion that are not relevant to this appeal.
   4
     We note that the district court resolved the question regarding the
enforceability of the class action waiver without the benefit of Concep-
cion, which was issued after the district court entered its order.
                  MURIITHI v. SHUTTLE EXPRESS, INC.                      7
   Section 2 of the FAA provides that 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."5 9 U.S.C. § 2. We apply ordinary state law princi-
ples governing the formation of contracts, including principles
concerning the "validity, revocability, or enforceability of
contracts generally." Hill v. Peoplesoft USA, Inc., 

, 543 (4th Cir. 2005) (quoting Perry v. Thomas, 

, 493 n.9 (1987)). We also apply the federal substantive
law of arbitrability, which governs all arbitration agreements
encompassed by the FAA. 

Cone Mem’l
Hosp. v. Mercury Constr. Corp., 

, 24 (1983)).

                                    B.

  A court may compel arbitration of a particular dispute only
when the parties have agreed to arbitrate their disputes and the
scope of the parties’ agreement permits resolution of the dis-
pute at issue. United Steelworkers of Am. v. Warrior & Gulf
Navigation Co., 

, 582 (1960); see also UBS Fin.
Servs., Inc. v. Carilion Clinic, 

, 324 n.2 (4th Cir.
2013). The issue whether a dispute is arbitrable presents pri-
marily a question of contract interpretation, requiring that we
give effect to the parties’ intentions as expressed in their
agreement. Wachovia Bank, N.A. v. Schmidt, 

,
767 (4th Cir. 2006). Any uncertainty regarding the scope of
arbitrable issues agreed to by the parties must be resolved in
   5
     Congress enacted the FAA to "reverse the longstanding judicial hostil-
ity to arbitration agreements." Gilmer v. Interstate/Johnson Lane Corp.,

, 24 (1991); see also Am. Gen. Life & Acc. Ins. Co. v. Wood,

, 87 (4th Cir. 2005) (the FAA was "a response to hostility of
American courts to the enforcement of arbitration agreements") (citation
omitted). To effectuate that legislative purpose, Section 2 is the "primary
substantive provision" of the FAA, Moses H. Cone Mem’l Hosp. v. Mer-
cury Constr. Corp., 

, 24 (1983), and "Section 2 embodies the
national policy favoring arbitration and places arbitration agreements on
equal footing with all other contracts," Buckeye Check Cashing, Inc. v.
Cardegna, 

, 443 (2006).
8                 MURIITHI v. SHUTTLE EXPRESS, INC.
favor of arbitration. Moses H. 

; see
also 

.

   In the Franchise Agreement, the parties agreed that "any
controversy arising out of this [a]greement shall be submitted
to" arbitration. Muriithi’s claims under the FLSA and the
Maryland Wage and Hour Law, Md. Lab. & Empl. Code
§§ 3-401 to 3-431, are based on his allegation that he improp-
erly was classified as an "independent contractor" or "franchi-
see," rather than as an "employee." This dispute regarding his
classification derives from the language of the Franchise
Agreement, which in its section defining the "Relationship of
Parties" identifies Muriithi as "independent contractor,"
"franchisee," and "independent owner of [his] business."
Additionally, in his claim under the Maryland Franchise Reg-
istration and Disclosure Law, Md. Code Bus. Reg. §§ 14-201
to 14-233, Muriithi alleges that Shuttle Express failed to
inform him about the numerous costs and fees, which were set
forth in the Franchise Agreement. Therefore, although Muri-
ithi’s claims are asserted under various provisions of federal
and state law, the claims plainly arise out of the Franchise
Agreement and fall within the scope of the Arbitration Clause.6

                                     C.

  We turn to address the enforceability of the class action
waiver. In its decision denying Shuttle Express’ motion to
compel arbitration, the district court identified the class action
waiver as one factor preventing Muriithi from fully vindicat-
ing his statutory rights. In the district court’s view, upon a
    6
    The fact that Muriithi’s claims allege violations of federal and state
statutes, rather than breach of contract, does not affect the arbitrability of
those claims. See Green Tree Fin. Corp.-Ala. v. Randolph, 

,
89 (2000) (stating that "we have recognized that federal statutory claims
can be appropriately resolved through arbitration, and we have enforced
agreements to arbitrate that involve such claims"); Adkins v. Labor Ready,
Inc., 

, 506 (4th Cir. 2002) (FLSA claims "may properly be
resolved in mandatory arbitration proceedings").
               MURIITHI v. SHUTTLE EXPRESS, INC.              9
prohibition of class actions, the only "realistic alternative
would be that no individual suits are brought given that the
costs of each arbitration has [sic] the potential to exceed any
recovery."

   Shuttle Express contends, among other things, that the dis-
trict court’s refusal to enforce the class action waiver is "di-
rectly at odds" with the Supreme Court’s recent decision in
Concepcion, which held that "[r]equiring the availability of
classwide arbitration interferes with the fundamental attri-
butes of arbitration and thus creates a scheme inconsistent
with the 

. Thus, Shuttle Express
argues that the district court erred in holding that the class
action waiver rendered the Arbitration Clause unconsciona-
ble.

   In response, Muriithi argues that the holding in Concepcion
is inapposite because the law at issue in that case was based
on California state law, articulated in Discover Bank v. Supe-
rior Court, 

(Cal. 2005), which held that class
action waivers in arbitration agreements are unconscionable.
Muriithi therefore contends that the decision in Concepcion is
limited in scope to the FAA’s preemption of state law on this
issue. We disagree with Muriithi’s arguments.

   The Supreme Court’s holding in Concepcion sweeps more
broadly than Muriithi suggests. In Concepcion, the Supreme
Court cautioned that the generally applicable contract defense
of unconscionability may not be applied in a manner that tar-
gets the existence of an agreement to arbitrate as the basis for
invalidating that 

. Applying
that principle to the Discover Bank "rule" at issue, the Court
explained that state law cannot "stand as an obstacle to the
accomplishment of the FAA’s objectives," by interfering with
"the fundamental attributes of 

.

  We recently discussed the holding in Concepcion in our
decision in Noohi v. Toll Bros., Inc., ___ F.3d ___, 

               MURIITHI v. SHUTTLE EXPRESS, INC.
680690, at *6 (4th Cir. Feb. 26, 2013).7 We explained that the
holding "prohibited courts from altering otherwise valid arbi-
tration agreements by applying the doctrine of unconsciona-
bility to eliminate a term barring classwide procedures." 

S. Ct. at 1750-53). Thus, contrary to
Muriithi’s contention, the Supreme Court’s holding was not
merely an assertion of federal preemption, but also plainly
prohibited application of the general contract defense of
unconscionability to invalidate an otherwise valid arbitration
agreement under these circumstances. The district court in the
present case, deciding the same issue of unconscionability
prior to Concepcion, reached the opposite conclusion.8
Accordingly, we conclude that the district court erred in hold-
ing that the class action waiver was unconscionable.

  7
    In Noohi, we addressed the issue whether a Maryland rule, requiring
that an arbitration agreement be supported by mutual consideration irre-
spective whether the underlying contract was supported by mutual consid-
eration, was preempted by the FAA. 

, at *9, 11-12 (citing
Cheek v. United Healthcare of Mid-Atl., Inc., 

(Md. 2003)).
We held that the Maryland rule did not increase procedural formality or
risks to defendants, which were "primary concerns underlying Concep-
cion," nor did it involve, as in Concepcion, a state-law rule requiring class
arbitration. 

concluded that the Maryland rule was not pre-
empted by the FAA. 

    In a case decided several years before Concepcion, we addressed a
related question whether Congress, in enacting the FLSA, provided a right
to class action relief that could not be waived. There, in Adkins v. Labor
Ready, Inc., 

(4th Cir. 2002), a plaintiff tried to avoid arbitra-
tion arguing that the arbitration clause, which included a class action
waiver, "foreclose[d] redress" of his federal statutory rights under the
FLSA. 

held that there was no indication "in the text, legis-
lative history, or purpose of the FLSA that Congress intended to confer a
nonwaivable right to a class action under that statute." 

we concluded that the inability to pursue an FLSA claim as a member of
a class proceeding is by itself insufficient to override "the strong congres-
sional preference for an arbitral forum." 

EXPRESS, INC.                11
                                D.

   We next consider the issue whether the district court erred
in holding that the fee-splitting provision imposed prohibitive
arbitration costs on Muriithi. Shuttle Express argues that
Muriithi did not meet his burden of showing prohibitive costs
under Green Tree Fin. Corp.-Ala. v. Randolph, 

(2000), because he did not present sufficient evidence of: (1)
the cost of arbitration; (2) his ability to pay; and (3) the differ-
ence in cost between arbitration of his dispute and litigation.
See 

response, Muriithi contends that the projected costs of
arbitrating his dispute render the Franchise Agreement unen-
forceable, because "it would always cost more to enforce the
agreement than to ignore clear violations" when a party’s
damages do not substantially exceed the expected cost of the
proceedings. We disagree with Muriithi’s arguments.

   In holding that the costs of arbitration in this case would be
prohibitive, the district court noted Muriithi’s argument that
the fees to the arbitrator, administration fees of the AAA, and
"various other fees," could reach a total cost of $5,600. Under
the fee-splitting provision, Muriithi would be required to bear
one-half of these expenses.

   The district court observed that Muriithi "project[s] that the
total amount of individual recovery will be far below potential
fees incurred in arbitration." Relying on information con-
tained in Muriithi’s 2009 federal income tax return, the dis-
trict court found that Muriithi had established that he was
unable to pay even the "conservative cost speculations" he
had presented regarding projected arbitration costs. Therefore,
the district court held that the fee-splitting provision rendered
the Arbitration Clause unconscionable.

  A fee-splitting provision can render an arbitration agree-
ment unenforceable if, under the terms of the provision, an
12              MURIITHI v. SHUTTLE EXPRESS, INC.
aggrieved party must pay arbitration fees and costs "that are
so prohibitive as to effectively deny the employee access to
the arbitral forum." Bradford v. Rockwell Semiconductor Sys.,
Inc., 

, 554 (4th Cir. 2001) (citing Green 

). We analyze issues regarding prohibitive arbi-
tration costs on a case-by-case basis, focusing on a number of
factors that include the fees and costs of arbitration, the claim-
ant’s ability to pay, the value of the claim, and the difference
in cost between arbitration and litigation. 

the party seeking to invalidate an arbitration agreement on
this basis bears the "substantial" burden of showing a likeli-
hood of incurring prohibitive arbitration costs. In re Cotton
Yarn Antitrust Litig., 

, 286-87 (4th Cir. 2007)
(citing Green 

).

   Under the holding in Green Tree, a party meeting this sub-
stantial evidentiary burden has established a basis for invali-
dation of an arbitration agreement. See Green 

-92; 

. Arbitration cannot be
compelled when arbitral costs are so high that they effectively
preclude a litigant from vindicating his federal statutory rights
in an arbitral forum. See Green 

(quoting
Gilmer v. Interstate/Johnson Lane Corp., 

, 28
(1991)) (claims arising under a federal statute "may be arbi-
trated because ‘so long as the prospective litigant effectively
may vindicate [his or her] statutory cause of action in the arbi-
tral forum, the statute serves its functions’"). Under Green
Tree, a party seeking to invalidate an arbitration agreement on
these grounds will not be permitted merely to allege the likeli-
hood of incurring prohibitive arbitration costs, but must estab-
lish the likely existence of such costs with firm proof. In re
Cotton Yarn Antitrust 

; 

; 

.

   The Supreme Court’s decision in Concepcion does not alter
this longstanding principle. The Court’s holding there did not
mention, much less directly overrule, its prior opinion in
Green Tree. Moreover, the Court in Concepcion was not
               MURIITHI v. SHUTTLE EXPRESS, INC.              13
required to address directly the issue of prohibitive arbitration
costs, because the arbitration agreement at issue contained
certain financial concessions on the part of AT&T, essentially
guaranteeing that aggrieved customers would be "made

.

   We will not readily infer that the Supreme Court impliedly
has overruled its own precedent. See Agostini v. Felton, 

, 237 (1997) (when Supreme Court precedent has
"direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, [courts] should fol-
low the case which directly controls, leaving to [the Supreme]
Court the prerogative of overturning its own decisions" (cita-
tion omitted)). Thus, we apply the principles from Green Tree
to the evidence before us.

   We conclude that Muriithi has not met his substantial bur-
den under Green Tree of showing prohibitive arbitration
costs. Significantly, Muriithi has not established even "the
most basic element of this challenge," namely, the costs of
arbitration. 

. Muriithi posited to the
district court that AAA arbitrator fees could range between
$800 and $2,200 per day. However, that estimate bears no
relation to the facts of the present case, because Muriithi’s
proffer regarding those fees apparently was based on rates
charged by three arbitrators who had provided fee estimates
in a wrongful discharge suit in the Virgin Islands. See Alexan-
der v. Anthony Int’l, L.P., 

, 261-62 (3d Cir.
2003).

   Muriithi cannot meet his burden of showing that he likely
will incur prohibitive arbitrator fees simply by showing the
fees that some arbitrators are charging somewhere. See Green

n.6 (list of arbitrators’ fees "as reflected
in the opinions" of other courts provided an insufficient "basis
for concluding that [a claimant] would in fact have incurred
substantial costs in the event her claim went to arbitration").
Muriithi plainly did not offer evidence regarding the arbitra-
14                MURIITHI v. SHUTTLE EXPRESS, INC.
tor’s fees likely to be incurred in the resolution of the present
dispute, even though "[i]t was within his power to obtain this
information by simply investigating the option of arbitration
in the first place." 

.

   Muriithi also has not provided evidence or argument about
the value of his claim, which is a critical factor in a "prohibi-
tive costs" analysis. 

chal-
lenge in part because the plaintiff failed to provide a basis
permitting "a serious estimation of how much money is at
stake for each individual plaintiff"). Evidence regarding the
value of Muriithi’s claim is necessary to determine the admin-
istrative fees of the AAA under the AAA’s rules. Therefore,
we conclude that Muriithi has not carried his burden of show-
ing that he likely would incur prohibitive costs by participat-
ing in bilateral arbitration with Shuttle Express.9 See Green

. Although we would have reached this
conclusion under the guidance of Green Tree solely on the
basis of the lack of evidence before us, our conclusion further
is supported by Shuttle Express’ agreement, at oral argument
before this Court, to pay all arbitration costs if this case is
referred to arbitration.10
  9
    Thus, we do not face the situation in which it has been shown that
enforcing a class action waiver effectively prevents a plaintiff from vindi-
cating his statutory rights. Contrast In re Am. Express Merchants’ Litig.,

, 218 (2d Cir.), cert. granted, 

(2012).
   10
      Shuttle Express’ "eleventh hour" agreement to pay all arbitration costs
does not render entirely moot the issue of prohibitive costs. A party’s
agreement to pay all arbitration costs, when made in a timely manner such
as before a district court has ruled on the enforceability of the arbitration
clause, "moots" the issue and "foreclos[es] the possibility that [the oppos-
ing party] could endure any prohibitive costs in the arbitration process."
Livingston v. Assocs. Fin., Inc., 

, 557 (7th Cir. 2003); see
also Carter v. Countrywide Credit Indus., Inc., 

, 300 (5th Cir.
2004); Large v. Conesco Fin. Servicing Corp., 

, 56-57 (1st
Cir. 2002).
 Here, however, before oral argument in this Court, Shuttle Express at
most held out the possibility that it would be willing to pay all arbitration
                  MURIITHI v. SHUTTLE EXPRESS, INC.                        15
                                     E.

   Finally, we address the district court’s holding that the one-
year limitations provision in the Franchise Agreement also
rendered the Arbitration Clause unconscionable. The court
concluded that the one-year limitations provision was uncon-
scionable because it unreasonably restricted Muriithi’s ability
to arbitrate "employment-related statutory claims," including
FLSA claims.

   Shuttle Express contends that the district court erred in
addressing this issue, because the one-year limitations provi-
sion is not included in the Arbitration Clause and, thus, any
challenge to this limitations provision must wait until the
entire contract is considered by the arbitrator. Muriithi does
not offer a response to this argument.

   We turn to consider the question whether this issue regard-
ing the one-year limitations provision was properly decided
by the district court as part of its resolution of the motion to
compel. A party challenging the enforceability of an arbitra-
tion clause under Section 2 of the FAA must rely on grounds
that "relate specifically to the arbitration clause and not just
to the contract as a whole." Snowden v. CheckPoint Check

costs. Under these circumstances, it would be an extreme waste of
already-expended judicial and litigation resources to foreclose consider-
ation of the prohibitive costs issue as moot now, simply because Shuttle
Express, after suffering an adverse ruling in the district court, made a last-
minute concession to bolster its position in this Court. Cf. Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 

, 191-92
(2000) (cautioning that finding a case moot in later stages of litigation
could be "more wasteful than frugal"). While such considerations do not
warrant retaining jurisdiction over a case "in which one or both of the par-
ties plainly lack a continuing interest," such is not the case here. See 

Shuttle Express’ concession, the merits of the case
(whether Muriithi could effectively vindicate his rights under the Arbitra-
tion Clause) and the relief sought (whether this case proceeds in arbitra-
tion or litigation) are still very much in dispute.
16              MURIITHI v. SHUTTLE EXPRESS, INC.
Cashing, 

, 636 (4th Cir. 2002) (citation omitted).
Thus, a challenge specific to an arbitration clause is consid-
ered by the court in a motion to compel, while a challenge
relating to the entire contract is heard only after the merits of
a case have been referred to an arbitrator or have been
retained for decision by the court. See Hooters of Am., Inc. v.
Phillips, 

, 938 (4th Cir. 1999) (in ruling on
motion to compel, courts consider challenges that "relate spe-
cifically to the arbitration clause and not just to the contract
as a whole"); Jeske v. Brooks, 

, 75 (4th Cir. 1989)
("Because the alleged defects pertain to the entire contract,
rather than specifically to the arbitration clause, they are prop-
erly left to the arbitrator for resolution.").

   The one-year limitations provision is not referenced in the
Arbitration Clause, but is applicable generally to the Fran-
chise Agreement. By its terms, the one-year limitations provi-
sion applies to "any arbitration, suit, action or other
proceeding relating to this Agreement. . . ." Moreover, the
language of this provision does not overlap in any substantive
manner with the language of the Arbitration Clause, such as
by directing the parties to a different forum depending on
when their claim was raised. Thus, the one-year limitations
provision discretely answers the question when any claim
under the Franchise Agreement must be brought, whereas the
Arbitration Clause is silent on that issue and instead addresses
the proper forum where such claims under the Franchise
Agreement must be brought.

   In view of its gatekeeping function, the scope of a motion
to compel arbitration is restricted to consideration of chal-
lenges specific to the arbitration clause. See 

; 

. Thus, absent a contrary agree-
ment by the parties, general contract defenses that are applica-
ble to the entire contract, such as the present one-year
limitations provision, are reserved for the forum in which the
dispute ultimately will be resolved. See 

; 

; see also Kristian v. Comcast
               MURIITHI v. SHUTTLE EXPRESS, INC.              17
Corp., 

, 44 (1st Cir. 2006) (a "statute of limita-
tions defense is an affirmative defense" that lies "squarely in
the purview of the arbitrator"). Accordingly, we hold that
because Muriithi’s challenge to the one-year limitations pro-
vision does not rely on any aspect of the Arbitration Clause,
but relates only to the general contract defense itself, the dis-
trict court erred in holding the one-year limitations period
unconscionable as part of the court’s resolution of the motion
to compel.

                              III.

   In sum, we hold that the district court erred in concluding
that the class action waiver was unconscionable and rendered
the Arbitration Clause unenforceable on that ground. We fur-
ther hold that the district court erred in holding that the fee-
splitting provision was unconscionable on the ground that its
application in Muriithi’s case will cause him to incur prohibi-
tive arbitration costs. Finally, we hold that the district court
erred in ruling on the enforceability of the one-year limita-
tions provision, because that issue is a question to be decided
by the arbitrator as part of the resolution of Muriithi’s claim.

   For these reasons, we vacate the district court’s judgment,
and remand the case with instructions that the district court
enter an order compelling arbitration of Muriithi’s claims with
full costs of those arbitration proceedings to be paid by Shut-
tle Express pursuant to Shuttle Express’ agreement, in open
court, to pay such costs.

                               VACATED AND REMANDED