author: DIANA GRIBBON MOTZ, Circuit Judge:

text:
    GRAYSON O COMPANY, Plaintiff-Appellant, v. AGADIR INTERNATIONAL LLC, Defendant-Appellee.
    No. 15-2552
    United States Court of Appeals, Fourth Circuit.
    Argued: March 21, 2017
    Decided: May 5, 2017

      ARGUED: Samuel Alexander Long, Jr., SHUMAKER, LOOP & KENDRICK, LLP, Charlotte, North Carolina, for Appellant. Jesus E. Cuza, HOLLAND & KNIGHT LLP, Miami, Florida, for Appel-lee. ON BRIEF: W. Thad Adams, III, Christina Davidson Trimmer, SHUMAKER, LOOP & KENDRICK, LLP, Charlotte, North Carolina, for Appellant. Monica Vila Castro, HOLLAND & KNIGHT LLP, Miami, Florida, for Appellee.
    Before MOTZ, TRAXLER, and AGEE, Circuit Judges.
   Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Traxler and Judge Agee joined.

DIANA GRIBBON MOTZ, Circuit Judge:

Grayson O Company (“Grayson 0”), a haircare product manufacturer and holder of a registered trademark, brought this trademark and unfair competition action against Agadir International LLC (“Aga-dir”), a competitor haircare product manufacturer. The district court granted summary judgment to Agadir, finding that Grayson 0 had failed to show the marks were likely to be confused. For the reasons that follow, we affirm.

I.

Grayson 0 -sells products designed to protect hair from heat during styling. The company owns a federal trademark registration for the mark “F 450.” F 450, Registration No. 4,088,857. The registered mark is not stylized and does not claim to protect “any particular font, style, size, or color.” Id. Although the registered mark contains no degree symbol, the product labels on which the mark appears do contain a degree symbol; the labels also contain a lowercase “f,” a stylized “450,” and almost no space between the “f” and “450.” On its website, Grayson O refers to its products as “f450°” or the “fahrenheit 450° Line.” fk50, Thermafuse, http://www. thermafuse.com/f450/ (last visited April 3, 2017).

In the hair care industry, “450” often refers to the temperature to which one can heat ham before it melts or scorches. A number of products that reference 450° Fahrenheit have entered the market. Most relevant to this ease, Agadir sells a product called “Hair Shield 450° Plus” or “Aga-dir Argan Oil Hair Shield 450° Plus,” depending on how one reads the label. The “450” on Agadir’s label is not stylized. Both Grayson O and Agadir sell their products exclusively at salons, which means their direct customers are salon professionals who then sell the products to their clients.

In July 2012, Grayson O participated in a tradeshow in Las Vegas. At the show, Grayson O employees and customers approached Van Darren Stamey, the president of Grayson 0, and told him that “someone is infringing on [your] mark.” The alleged infringer was Agadir, which was marketing its products at the show and displaying a prominent “450” sign. On July 25, 2012, Grayson 0 sent Agadir a cease and desist letter regarding the “F 450” mark and another mark unrelated to this litigation. Agadir responded that it used “450°” on its label not as a mark, but as a “fair and good faith description of the good attached” to the label. Agadir explained that its products protect hair up to 450° Fahrenheit and that no likelihood of confusion existed between its use of the term and Grayson O’s mark given the difference between the appearances of the product labels. At some point after receiving the letter, Agadir changed the name of its products from “Heat Shield 450°” to “Hair Shield 450°” and resized the phrase “Hair Shield 450°” on the label.

On December 13, 2013, Grayson O initiated this lawsuit, alleging that Agadir infringed on its trademark and engaged in unfair competition in violation of the Lan-ham Act and North Carolina law. Upon completion of discovery, Grayson O moved for partial summary judgment on the issue of liability for trademark infringement and unfair competition and sought to enjoin Agadir from using the mark. Agadir also moved for summary judgment.

After examining the relevant factors, the district court found that Grayson O had failed to show a likelihood of confusion between the marks. Grayson O Co. v. Agadir Int’l LLC, No. 3:13-CV-00687-MOC-DCK, 2015 WL 7149935, at *11 (W.D.N.C. Nov. 13, 2015). In particular, the court held that Grayson O’s mark was conceptually and commercially weak, that the marks were not similar, that there was no evidence of Agadir’s intent to infringe on Grayson O’s mark, and that there was only de minimis evidence of confusion. Id. The court denied Grayson O’s motion for partial summary judgment and granted summary judgment to Agadir. Id. Grayson O timely noted this appeal.

We review de novo the district court’s grant of summary judgment to Agadir and its denial of summary judgment to Grayson O. See Synergistic Int’l, LLC v. Roman, 470 F.3d 162, 170 (4th Cir. 2006).

II.

“To demonstrate trademark infringement under the Lanham Act, a plaintiff must prove, first, that it owns a valid and protectable mark, and, second, that the defendant’s use of a ‘reproduction, counterfeit, copy, or colorable imitation’ of that mark creates a likelihood of confusion.” CareFirst of Md., Inc. v. First Care, P.C., 434 F.3d 263, 267 (4th Cir. 2006) (quoting 15 U.S.C. § 1114(1)(a) (2012)). Grayson O has registered its mark, and so we assume the registered mark is valid and protecta-ble. We must focus, therefore, on whether any likelihood of confusion exists between Grayson O’s mark and Agadir’s mark.

To determine if a likelihood of confusion exists, we consider-nine factors:

(1) the strength or distinctiveness of the plaintiffs mark as actually used in the marketplace;
(2) the similarity of the two marks to consumers;
(3) the similarity of the goods or services that the marks identify;
(4) the similarity of the facilities used by the markholders;
(5) the similarity of advertising used by the markholders;
(6) the defendant’s intent;
(7) actual confusion;
(8) the quality of the defendant’s product; and
(9) the sophistication of the consuming public.

George & Co. LLC v. Imagination Entm’t Ltd., 575 F.3d 383, 393 (4th Cir. 2009). “Not all of these factors will be relevant in every trademark dispute, and there is no need for each factor to support [the plaintiffs] position on the likelihood of confusion issue.” Synergistic, 470 F.3d at 171. The parties agree that factors (3), (4), (5), and (8) weigh in favor of finding a likelihood of confusion because the products are nearly identical and are sold in similar facilities with similar advertising. The district court, therefore, rested its conclusion that Grayson O had not established a likelihood of confusion on factors (1), (2), (6), and (7): the strength of Grayson O’s mark, the similarities between the marks, Aga-dir’s intent, and evidence of confusion. Accordingly, we turn to those factors.

A.

The first factor—the strength of Grayson O’s mark—is “paramount” in determining the likelihood of confusion. Pizz eria Uno Corp. v. Temple, 747 F.2d 1522, 1527 (4th Cir. 1984). If a mark lacks strength, a consumer is unlikely to associate the mark with a unique source and consequently will not confuse the allegedly infringing mark with the senior mark. A mark’s strength comprises both conceptual strength and commercial strength. CareFirst, 434 F.3d at 269.

i.

“Measuring a mark’s conceptual or inherent strength focuses on the linguistic or graphical ‘peculiarity’ of the mark, considered in relation to the product, service, or collective organization to which the mark attaches.” Id. (citation omitted) (quoting Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir. 1990)). Part of this determination involves placing the mark “into one of four categories of distinctiveness: (1) generic; (2) descriptive; (3) suggestive; or (4) arbitrary or fanciful.” George, 575 F.3d at 393-94.

Generic marks, like “bleach,” are “never entitled to trademark protection” because they are not distinctive. Id. at 394. Descriptive marks “merely describe a function, use, characteristic, size, or intended purpose of the product,” such as “5 Minute glue” or “After Tan post-tanning lotion.” Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 464 (4th Cir. 1996). Because descriptive marks are not inherently distinctive, they “are accorded protection only if they have acquired a ‘secondary meaning,’ that is, if ‘in the minds of the public, the primary significance of a product feature or term is to identify the source of the product rather than the product itself.’ ” Id. (quoting Dayton Progress Corp. v. Lane Punch Corp., 917 F.2d 836, 839 (4th Cir. 1990)).

By contrast, arbitrary, fanciful, and suggestive marks “are inherently distinctive, and thus receive the greatest protection against infringement.” Id. Arbitrary or fanciful marks typically involve made-up words or words that are unrelated to the product, like, “Exxon®” gasoline or “Apple®” computers. Id. “Suggestive marks ... do not describe a product’s features but merely suggest[] them,” requiring some imagination on the part of the viewer. George, 575 F.3d at 394. Examples of suggestive marks include “Coppertone®, Orange Crush®, and Playboy®.” Id. (quoting Sara Lee, 81 F.3d at 464). Grayson O asserts that its mark is suggestive, and Agadir does not argue to the contrary. Thus, we accept Grayson O’s contention that its mark is suggestive.

But we cannot accept Grayson O’s conclusion that the fact that its mark is suggestive means that it is conceptually strong. As we explained in CareFirst, the suggestive “designation does not resolve the mark’s conceptual strength.” 434 F.3d at 270. Rather, “‘the frequency of prior use of [a mark’s text] in other marks, particularly in the same field of merchandise or service,’ illustrates the mark’s lack of conceptual strength.” Id. (alteration in original) (quoting Pizzeria Uno, 747 F.2d at 1530-31). This is so because consumers are unlikely to associate a mark with a unique source if other parties use the mark extensively. Id.

In this case, Agadir has presented numerous instances of other uses of “450” in the haircare industry, including some that were in use or registered prior to Grayson O’s registration of its mark. If Grayson O’s mark was “truly a distinctive term, it is unlikely that ... many other businesses in the [haircare] industry would independently think of using the same mark or similar variants of it.” See id. That so many have done so indicates that “450” and the variation “F 450” are not conceptually strong.

ii.

As for commercial strength, Agadir contends that Grayson 0 has waived any argument that its mark is commercially strong. A party waives an argument by failing to present it in its opening brief or by failing to “ ‘develop [its] argument’—even if [its] brief takes a passing shot at the issue.” Brown v. Nucor Corp., 785 F.3d 895, 923 (4th Cir. 2015) (quoting Belk, Inc. v. Meyer Corp., 679 F.3d 146, 152 n.4 (4th Cir. 2012)). Near the conclusion of its opening brief, Grayson O only asserts, without argument or explanation, that “there are genuine issues of material fact as to the commercial strength” of its mark. Although Grayson O briefly addresses and criticizes the district court’s commercial strength analysis in its reply brief, these arguments do not appear anywhere in its opening brief. Accordingly, Grayson O has waived its challenge to the district court’s conclusion that its mark lacked commercial strength.

But even if Grayson O had .preserved its commercial strength argument, we could not reverse the district court’s contrary holding. In determining the commercial strength of a mark, a court considers whether “a substantial number of present or prospective customers understand the designation when used in connection with a business to refer to a particular person or business enterprise.” CareFirst, 434 F.3d at 269 (quoting Perini, 915 F.2d at 125). The commercial strength inquiry is analogous to the inquiry for secondary meaning. Id. at 269 n.3. Thus, the factors to be considered include: “(1) advertising expenditures; (2) consumer studies linking the mark to a source; (3) sales success; (4) unsolicited media coverage of the product; (5) attempts to plagiarize the mark; and (6) the length and exclusivity of the mark’s use.” Perini, 915 F.2d at 125 (discussing secondary meaning).

As the district court explained, Grayson O’s sales and advertising expenditures were “minimal” when compared to the “multi-billion dollar hair care industry.” Grayson O Co., 2015 WL 7149935, at *6. Furthermore, Grayson O offered no evidence of “unsolicited media coverage,” “attempts to plagiarize the mark,” or “consumer studies linking the F 450 mark or the ‘450’ term to Grayson O,” despite the fact that Grayson O has been using the mark for four years. Id.

In its reply brief, Grayson O argues that the district court erred in failing to limit its advertising and sales analysis to products sold exclusively in salons. In particular, Grayson O asserts that the district court should have compared its advertising and sales to those of Agadir’s product. We do not understand (and Grayson O provides no assistance) how this comparison would shed light on whether “a substantial number of present or prospective customers” would connect the mark solely to Grayson O. To the extent that Grayson 0 would have preferred that the court compare its sales and expenditures to the smaller market of products sold exclusively in salons, Grayson 0 does not indicate, and the record does not disclose, what that market was or what evidence Grayson 0 presented on this point.

For these reasons, like the district court, we find that Grayson O’s mark was both conceptually and commercially weak.

B.

We next address the second factor—the similarity of the two marks. In testing for similarity, “we must examine the allegedly infringing use in the context in which it is seen by the ordinary consumer.” Anheuser-Busch, Inc. v. L & L Wings, Inc., 962 F.2d 316, 319 (4th Cir. 1992). It is undisputed that Grayson 0 and Agadir do not sell them products in the same salons. Thus, relying solely on a side-by-side comparison of the marks to determine the likelihood of confusion would be inappropriate. See What-A-Burger of Va., Inc. v. Whataburger, Inc. of Corpus Christi, 357 F.3d 441, 450 (4th Cir. 2004). But the appearance of the marks is still relevant in assessing whether the marks are sufficiently similar that a customer would confuse them.

The Grayson O mark that “is seen by the ordinary consumer” differs notably from the mark that Grayson O registered, and both Grayson O marks differ from Agadir’s mark. Grayson O’s registered mark is “F 450,” which has a clear word-space between the uppercase “F” and the “450.” However, Grayson O’s product label is “f450°,” which has only a miniscule letter-space between the lowercase “f” and the “450” and includes a degree symbol. By comparison, Agadir’s label reads “Hair Shield 450° Plus” with no “F” and three additional words. The text of Agadir’s mark thus differs both from Grayson O’s registered mark and from the mark Gray-son O uses on its label. The only textual similarity between Agadir’s label and Grayson O’s label is “450°,” and the only textual similarity between Agadir’s label and Grayson O’s registered mark is “450.”

Nevertheless, Grayson O contends that the number “450” constitutes the “dominant portion” of its mark and that the marks are similar because this dominant portion also appears on Agadir’s label. “The dominant feature of a trademark is whatever is most noticeable in actual conditions.” 5 Callman on Unfair Competition, Trademarks and Monopolies § 21:18 (4th ed.), Westlaw (database updated Dec. 2016) (emphasis omitted). Courts give the dominant part of a mark more weight when assessing similarity because consumers are more likely to confuse marks with dominant similar features than marks with less noticeable similar features. See Lone Star Steakhouse & Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d 922, 936 (4th Cir. 1995). While in some cases a court can easily identify a mark’s dominant portion, a court need not engage in a technical dissection of a mark in order to deem one part dominant. See, e.g., George, 575 F.3d at 396. Such a requirement would defeat the purpose of determining whether the allegedly infringing use would confuse consumers, who typically do not engage in nuanced, piecemeal comparisons of marks.

In support of its argument that “450” constitutes the dominant portion of its mark, Grayson O heavily relies on Pizzeria Uno and Synergistic. In those cases, we compared marks consisting of two independent words: “Pizzeria Uno and Taco Uno” and “Glass Doctor and Windshield Doctor.” Unlike the marks in Pizzeria Uno or Synergistic, Grayson O’s mark appears in the marketplace as a single word, “f450.” Cf. Swatch AG v. Beehive Wholesale, LLC, 739 F.3d 150, 159 (4th Cir. 2014) (rejecting the argument that “SWA” in “Swatch” and “Swap” is the “dominant portion of both marks” because “[w]e compare whole words, not parts, and generally use the phrase ‘dominant portion’ to refer to the non-generic words in multiword marks” (citation omitted)).

Moreover, in Pizzeria Uno and Synergistic, the mark owners had disclaimed one of the two words in their marks as part of the registration process, thereby conceding that the disclaimed words were descriptive and indistinctive. In Pizzeria Uno, we found “Uno” the dominant word because, in addition to the disclaimer of “Pizzeria,” “Uno” was the more conspicuous word in the mark and not “a term in common use in English which describes or identifies any product or characteristics of a product.” 747 F.2d at 1533. Similarly, in Synergistic, we found “Doctor” the dominant word because the owners had explicitly disclaimed “Glass” and “Windshield,” both of which merely described the services offered. 470 F.3d at 171-72.

Here, Grayson 0 has not disclaimed any part of its registered mark, as neither part is descriptive, and no other distinction exists between the two parts. Both “F” and “450” are short, and because the registered mark has no associated style, they are, by default, the same size and font. In the marketplace the “f” and the “450” are not only the same size and adjacent to each other, but they also have only an almost indiscernible space between them. To apply the analysis in Pizzeria Uno and Synergistic would require us to disregard critical attributes of the mark Grayson O registered and the mark consumers see.

Indeed, were we to ignore all this and compare only the use of “450” in Grayson O’s and Agadir’s marks, we still could not find the marks similar because the marks look dramatically different to consumers in the marketplace. See CareFirst, 434 F.3d at 271 (“[BJecause the likelihood-of-confusion analysis looks to the actual use of competing marks, a comparison of the texts of the two marks alone is insufficient if the marks have different appearances in the marketplace.”). Nothing about the style, color, or presentation of the marks is remotely alike. See supra notes 1-3. Gray-son O’s label includes an “f ’ followed by a ligature of “450.” Both are rendered in a dark font over a light ovoid shape on a solid red background. Agadir’s label does not begin with “f.” Its label begins with “Agadir Argan Oil” in a black, stylized font above “Hair Shield 450°” in a white, sans serif font with “plus” written in black in the “0” of “450.” The background is a yellow-to-red gradient that appears to depict a sunrise or sunset over a landscape. Rather than being similar, the two marks are highly distinguishable.

Thus, even if “450” was a separable, dominant part of Grayson O’s mark (which it is not), given the many other differences between Grayson O’s and Agadir’s marks, the district court correctly concluded that the marks are not similar.

C.

We now turn to the question of Agadir’s intent. Grayson 0 insists that it has presented proof of Agadir’s intent to infringe. Grayson 0 maintains that its evidence shows that, in response to Grayson O’s letter warning Agadir about its infringing use of “450,” Agadir demonstrated intent to further the infringement by telling its design team to increase the “font size and the boldness of the Infringing 450 Mark on the label.” If this was a full account of the evidence, it might well suggest an intent to infringe.

But, in fact, the record evidence shows that Agadir increased the size of the entire phrase .“Hair Shield 450,” not simply “450.” Indeed, from the time Grayson O alleges it first became aware of Agadir’s use of “450” to the time Agadir’s product entered the market, the comparative size of the “450” on Agadir’s label decreased as Agadir increased the size of the words “Hair Shield” to equal prominence. See supra note 3. If this change evidences any type of intent on the part of Agadir, it is an intent to distinguish its label from Grayson O’s label. Even without such an inference, however, nothing about the label change evinces an intent to infringe.

D.

Finally, we address Grayson O’s argument as to actual confusion. Grayson O maintains that it has presented substantial evidence of actual confusion. The district court, however, found that Grayson O had offered only 'de minimis evidence of actual confusion. Grayson O Co., 2015 WL 7149935, at *11. We agree.

The sole evidence Grayson O offered as to actual confusion was the deposition testimony of its president, Van Darren Stanley, that his employees and a few customers at the trade show notified him that a company was “infringing” on his mark by using “450” in its mark. According to Stanley, all of these people believed Agadir had used Grayson O’s mark on Agadir’s unrelated product. Thus, although questioned at some length on the issue, Stanley repeatedly indicated that those who approached him were certain that Agadir’s products copied those of Grayson 0, not that they mistook Agadir’s products for Grayson O’s. The reasonable inference from this evidence is not that consumers would confuse the products but instead that they could differentiate between them. In fact, Grayson 0 offered less evidence of actual confusion than we have held to be de minimis in other cases. Compare George, 575 F.3d at 399 (four instances of actual confusion over two years where the company had 500,000 sales per year “is at best de minimis”), with Sara Lee, 81 F.3d at 466-67 (finding the evidence of actual confusion “nearly overwhelming” when consumers and service merchandisers testified about many occasions of confusion between two products and a survey found “thirty to forty percent of the consuming public was confused by the similarity”).

Grayson O protests that the similar quality and sales channels of the products render it unlikely that consumers would notice a difference and complain. This may be true, which is why such factors are also considered as part of the likelihood of confusion analysis, and do, without debate on appeal, weigh in favor of Grayson O in this case. But we cannot infer actual confusion when Grayson O has presented no evidence to support such an inference.

III.

In sum, Grayson O has failed to show a likelihood of confusion between its mark and Agadir’s mark because—despite the similar facilities, advertising, and quality of the products—Grayson O’s mark is weak and differs in appearance from Agadir’s mark. It is thus unsurprising that Grayson O presented no meaningful evidence of intent to infringe or actual confusion. Given such a record, the district court did not err in granting summary judgment to Aga-dir. As we explained in George, “we are aware of no case where a court has allowed a trademark infringement action to proceed beyond summary judgment where two weak marks were dissimilar, there was no showing of a predatory intent, and the evidence of actual confusion was de min-imis.” 575 F.3d at 400. The same holds true today. Accordingly, the judgment of the district court is

AFFIRMED.

      .

        1. fuse, Thermafuse, http://www.thermafuse. com/f450/ (last visited April 3, 2017).

      . •

        Hair Shield, Agadir, https://www.agadirint. com/products/?category=Hair Shield (last visited April 18, 2017).

      .

      An undated label prior to change and the current label. A prototype label similar to the current label displayed "Hair Shield 450°” in a smaller font than its final size. After receiving the letter from Grayson O, Agadir instructed its designers to increase the size of "Hair Shield 450°" by 10 percent.

      . Neither party offers much argument on factor (9), the sophistication of the consuming public. The district court concluded that consumer sophistication did not "figure[] heavily into its likelihood of confusion determination,” but found that it weighed "slightly against a risk of confusion.” Grayson O Co., 2015 WL 7149935, at *11. Grayson O asserts there is a factual dispute as to sophistication but does not present any argument as to why or how consumer sophistication would materially affect the analysis. In the absence of argument, we assume that the consuming public is of average sophistication, and no more likely or unlikely to be confused than any other consumer group.

        . Additionally, the United States Patent Office (USPTO) registered Grayson O’s mark without a showing of secondary meaning. Because the USPTO will not register descriptive marks without a showing that the mark has acquired "secondary meaning,” the USPTO's determination that it does not need proof of secondary meaning "constitutes prima facie evidence” that the mark is suggestive. George, 575 F.3d at 395.

      . Grayson O also contends in its reply brief that the district court erred by comparing its advertising expenditures to those of the greeting card industry. In fact, the court simply recognized that in Renaissance Greeting Cards, Inc. v. Dollar Tree Stores, Inc., 227 Fed.Appx. 239, 243-44 (4th Cir. 2007) (unpublished), we had found that similar advertising expenditures in a multibillion dollar industry did not demonstrate commercial strength. The district court did not err in analogizing these circumstances to those in the case at hand.

      . When a party applies to register á mark that contains two parts, one of which is descriptive and therefore not entitled to protection, the USPTO requires the party to disclaim exclusive use of that portion, aside from its use in conjunction with the mark. Pizzeria Uno, 747 F.2d at 1529 n.5.

      . It appears one of Grayson O's products may have a label that is the negative of its typical label, meaning it has a white background, red shape, and white lettering. See supra note 1. This does not create any similarity to Agadir’s label.

      .Agadir’s initial July 2012 prototype label had a red background, see supra note 3, but by August 2012 the design included a yellow-to-red gradient.

      . Grayson O maintains that because it? registered "F 450 Mark is suggestive and, therefore, has conceptual strength, the consumer who first encountered the Grayson O product is likely to associate the suggestive F 450 mark with the product.” According to Gray-son O, a consumer who later encounters Aga-dir's product would associate it with Grayson O. The prp.blem with this argument is that in Grayson O’s scenario the customer would be looking for a product called "f450°,” or "fahr-enheit 450°,” not "450.” And of course, as we explained in CareFirst and again above, the suggestiveness of a mark does not guarantee it has conceptual strength. See 434 F.3d at 270.

      . Relying on CareFirst, Grayson O argues in the alternative that if it failed to offer evidence of Agadir’s intent to infringe, this factor cannot weigh against finding a likelihood of confusion. Grayson O misreads CareFirst. There we held that we could not infer from a junior user's filing for a state registration of its mark—without evidence of intent—a bad faith intent to infringe on the senior mark. 434 F.3d at 273. We explained that the intent of the junior user was relevant only if it "intended to capitalize on the good will associated with the senior user's mark,” and so this factor did not weigh heavily in the analysis. Id. But we never held the lack of intent immaterial to the overall determination of whether there was a likelihood of confusion. While it does not resolve the ultimate issue, certainly the lack of evidence of intent in this case can "militatef] against a finding of a likelihood of confusion.” George, 575 F.3d at 398.

      . In the alternative, Grayson O argues that even if it failed to produce evidence of actual confusion, the lack of actual confusion is at best ''neutral" in determining whether there is a likelihood of confusion. This argument ignores established circuit precedent. "Although proof of actual confusion is not necessary to show a likelihood of confusion, the absence of any evidence of actual confusion over a substantial period of time ... creates a strong inference that there is no likelihood of confusion.” CareFirst, 434 F.3d at 269. Thus, the lack of confusion in this case is relevant to our analysis.


source: Caselaw Access Project

author: THACKER, Circuit Judge:

license: Public Domain

text:
    Martha CARLSON, Plaintiff-Appellant, and Romona Winebarger; Rex Winebarger, Plaintiffs, v. BOSTON SCIENTIFIC CORPORATION, Defendant-Appellee.
    No. 15-2440
    United States Court of Appeals, Fourth Circuit.
    Argued: March 24, 2017
    Decided: May 9, 2017

      ARGUED: William Louis Hurlock, MUELLER LAW, PLLC, Montclair, New Jersey, for Appellant. Daniel Brandon Rogers, SHOOK, HARDY & BACON L.L.P., Miami, Florida, for Appellee. ON BRIEF: Andres C. Pereira, Rachael K. Jones, David Martin, MUELLER LAW, PLLC, Austin, Texas, for Appellant. Leslie C. Packer, ELLIS & WINTERS LLP, Raleigh, North Carolina, for Appellee.
    Before DUNCAN, KEENAN, and THACKER, Circuit Judges.
   Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge Duncan and Judge Keenan joined.

THACKER, Circuit Judge:

After her doctor prescribed and implanted a transvaginal mesh product that Boston Scientific Corporation (“Appellee”) manufactured, Martha Carlson (“Appellant”) sued the company, alleging that the mesh injured her and that Appellee failed to warn of risks associated with the mesh. After joining a Multidistrict Litigation (“MDL”) with respect to alleged risks involving transvaginal mesh products, Appellant lost her failure to warn claim at summary judgment because, per the MDL court, Appellant did not present evidence that any allegedly inadequate warnings caused her injuries. After the case was transferred to a district court for trial on the remaining claims, Appellant moved the district court to reconsider the summary judgment award based on evidence Appellant failed to cite during summary judgment briefing in the MDL court. The district court denied the motion. And, after losing at trial, Appellant timely appealed. Because we conclude that neither the summary judgment award nor the denial of Appellant’s motion for reconsideration was erroneous, we affirm.

I.

This case is one of .the tens of thousands of cases that have proceeded through an MDL concerning transvaginal surgical mesh as treatment for pelvic organ prolapse and stress urinary incontinence. Appellant alleges that on July 16, 2010, Doctor Michael Kennelly prescribed and implanted in Appellant one of these mesh devices: the Uphold Vaginal Support System that Appellee manufactured. As a result, Appellant alleges the mesh caused injuries including pain, recurrent pelvic organ prolapse, bladder prolapse, incontinence, and urinary and bowel problems. Appellant brought a host of claims against Appellee, including failure to warn of the dangers associated with the mesh, which is the only claim at issue in this appeal.

Appellee moved for summary judgment in the MDL court. In opposition, Appellant submitted excerpts from Dr. Kennelly’s deposition testimony purporting to show that any warnings Appellee provided were inadequate. Appellant also submitted her own affidavit stating that if she had known that the mesh “could result in life changing conditions, [she] would not have agreed to the procedure.” J.A. 263. The MDL court dismissed the failure to warn claim, reasoning that because Appellant did not present evidence that Dr. Kennelly read or relied on the Directions for Use (“DFU”) accompanying the mesh, which contained the allegedly inadequate warnings, Appellant could not prove that any alterations to those warnings could have impacted Dr. Kennelly’s course of treatment. The MDL court thus concluded that Appellant failed to create a triable issue of fact as to whether Appellee’s allegedly inadequate warning proximately caused her injuries. The MDL court therefore awarded summary judgment to Appellee on the failure to warn claim but allowed other claims to proceed.

After completing pretrial proceedings on the remaining claims, the MDL court transferred the case to the district court for the Western District of North Carolina for trial. Pursuant to Federal Rule of Civil Procedure 54(b), Appellant moved for reconsideration of the MDL court’s partial summary judgment ruling on the failure to warn claim. In an attempt to bolster her motion, Appellant again invoked Dr. Ken-nelly’s deposition but proffered additional excerpts that she failed to cite during summary judgment briefing in the MDL court. Per these additional excerpts, Appellant attempted to bridge the gap the MDL court considered fatal to her ability to prove proximate cause. The newly cited excerpts provided that Dr. Kennelly was familiar with and reviewed the DFU before implanting Appellant’s mesh. The district court nevertheless denied the motion to reconsider, ruling that despite the additional evidence, Appellant could not prove that any inadequate warnings proximately caused her injuries. In doing so, the district court emphasized Dr. Kennelly’s deposition testimony affirming his “professional opinion ... that the [mesh] is a safe and effective option for the treatment of pelvic organ prolapse in certain cases.” J.A. 623 (internal quotation marks omitted).

After Appellee defeated the remainder of Appellant’s claims at trial, Appellant timely appealed. Appellant now challenges the MDL court’s partial summary judgment award and the district court’s denial of her motion to reconsider the same.

II.

We first consider the MDL court’s partial summary judgment award, which we review de novo. See Pegg v. Herrnberger, 845 F.3d 112, 117 (4th Cir. 2017). We must uphold such award if, construing the facts in Appellant’s favor as the nonmoving party, no material facts are in dispute and Appellee is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Pegg, 845 F.3d at 117. The parties agree that North Carolina law controls our analysis.

In North Carolina, a failure to warn claim requires the plaintiff to prove that the defendant unreasonably failed to provide an adequate warning, such failure was the proximate cause of the plaintiffs damages, and the product “posed a substantial risk of harm” without an adequate warning either at the time of or after leaving the manufacturer’s control. N.C. Gen. Stat. Ann. § 99B-5(a). Thus, even assuming the warnings in connection with the DFU were inadequate, Appellee is only liable if such inadequate warnings proximately caused Appellant’s injuries. See Evans v. Evans, 153 N.C.App. 54, 569 S.E.2d 303, 306-07 (2002). Proof of proximate cause requires evidence that Appellant or her treating physician relied on the DFU. See Holley v. Burroughs Wellcome Co., 74 N.C.App. 736, 330 S.E.2d 228, 233 (1985).

In opposition to summary judgment, Appellant submitted an affidavit stating she would not have used the mesh had she known of its risks. Appellant also provided excerpts of Dr. Kennelly’s deposition testimony in an attempt to demonstrate that additional information regarding risks could have impacted his decision as an implanting surgeon. Yet Appellant cited zero evidence establishing that either she or Dr. Kennelly so much as read the allegedly inadequate warning in the DFU. The portions of Dr. Kennelly’s testimony to which Appellant cited attempted to establish the inadequacy of the warnings in the DFU, but importantly, those portions did not indicate that if the DFU included an adequate warning, Dr. Kennelly would have read it. Therefore, Appellant woefully failed to meet her burden of production in opposition to summary judgment to establish a triable issue of fact as to proximate cause. See Evans, 569 S.E.2d at 306-07; Holley, 330 S.E.2d at 233.

In further attempt to resuscitate her case in her motion for reconsideration, Appellant cited to additional excerpts from Dr. Kennelly’s deposition establishing that he had indeed read the DFU, among other sources, before concluding that Appellant was an appropriate candidate for a mesh implant. Appellant argues that we should consider this newly submitted evidence in reviewing not just the district court’s ruling on the motion for reconsideration but also the MDL court’s summary judgment ruling. In doing so, Appellant asks us to completely disregard the Federal Rules of Civil Procedure governing summary judgment motion practice.

The Federal Rules of Civil Procedure require parties to cite all evidence in support of their positions at summary judgment, thus permitting a district court to limit its review to such cited materials. See Fed. R. Civ. P. 56(c)(1), (3). Clearly, then, we cannot say that the MDL court erred in its summary judgment ruling based on the evidence Appellant cited in opposition to summary judgment. The responsibility to comb through the record in search of facts relevant to summary judgment falls on the parties—not the court. We therefore affirm the MDL court’s partial summary judgment award.

III.

We next consider Appellant’s motion to reconsider pursuant to Federal Rule of Civil Procedure 54(b), which we review for an abuse of discretion. See Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 515-16 (4th Cir. 2003). Where a district court issues an interlocutory order such as one for partial summary judgment “that adjudicates fewer than all of the claims,” the court retains discretion to revise such order “at any time before the entry of a judgment adjudicating all the claims.” Fed. R. Civ. P. 54(b). Compared to motions to reconsider final judgments pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, Rule 54(b)’s approach involves broader flexibility to revise interlocutory orders before final judgment as the litigation develops and new facts or arguments come to light. See Am. Canoe Ass’n, 326 F.3d at 514-15; Cobell v. Jewell, 802 F.3d 12, 25-26 (D.C. Cir. 2015). Despite this flexible approach, we also note that where, as here, “the order was entered by one judge and then reviewed by another,” courts have held that the latter judge should be hesitant to overrule the earlier determination. Harrell v. DCS Equip. Leasing Corp., 951 F.2d 1453, 1460 n.24 (5th Cir. 1992).

Moreover, the discretion Rule 54(b) provides is not limitless. For instance, courts have cabined revision pursuant to Rule 54(b) by treating interlocutory rulings as law of the case. See Canoe Ass’n, 326 F.3d at 515; Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003); Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364, 369 n.5 (9th Cir. 1989). The law-of-the-case doctrine provides that in the interest of finality, “when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” TFWS, Inc. v. Franchot, 572 F.3d 186, 191 (4th Cir. 2009) (quoting United States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999)); see Sejman v. Warner-Lambert Co., 845 F.2d 66, 68-69 (4th Cir. 1988). Thus, a court may revise an interlocutory order under the same circumstances in which it may depart from the law of the case: (1) “a subsequent trial producing] substantially different evidence”; (2) a change in applicable law; or (3) clear error causing “manifest injustice.” Canoe Ass’n, 326 F.3d at 515 (quoting Sejman, 845 F.2d at 69). This standard closely resembles the standard applicable to motions to reconsider final orders pursuant to Rule 59(e), but it departs from such standard by accounting for potentially different evidence discovered during litigation as opposed to the discovery of “new evidence not available at trial.” Pac. Ins. Co. v. Am. Nat. Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) (providing “three grounds for amending an earlier [final] judgment: (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice”).

.Under these principles, we conclude that here, the district court did not abuse its discretion by denying.the motion to reconsider despite Appellant’s citation to additional excerpts of Dr. Kennelly’s deposition establishing that he reviewed and was familiar with the DFU. At oral argument, Appellant’s counsel asserted that in light of this late revelation, the MDL court’s summary judgment award constituted clear error causing manifest injustice. See Oral Argument at 11:50-12:15, Carlson v. Boston Sci Corp., No. 15-2440 (4th Cir. Mar. 24, 2017), http://coop.ca 4.uscourts.gov/OAarchive/mp3/15-2440-20170324.mp3. Not so: We have consistently affirmed denials of motions to reconsider summary judgment rulings where the motion is merely a vessel for the very evidence that was initially lacking in opposition to summary judgment. See, e.g., Cray Commc’ns, Inc. v. Novatel Comput. Sys., Inc., 33 F.3d 390, 395 (4th Cir. 1994); RGI, Inc. v. Unified Indus., Inc., 963 F.2d 658, 661-62 (4th Cir. 1992); Carteret Sav. Bank, P.A. v. Compton, Luther & Sons, Inc., 899 F.2d 340, 341-42 (4th Cir. 1990). Significantly, the entirety of Dr. Kennelly’s deposition testimony was available well before summary judgment briefing, and the additional portions of testimony Appellant provided to the district court for “reconsideration” thus did not amount to the type of evidence constituting grounds for a valid motion for reconsideration. See Canoe Ass’n, 326 F.3d at 515. We therefore affirm the district court’s denial of Appellant’s motion for reconsideration.

rv.

In light of the foregoing, the decisions of the MDL court and the district court below are

AFFIRMED.

      . "Pelvic organ prolapse (POP) occurs when the organs inside the pelvis, such as the uterus, urethra, or bladder, protrude toward or through the opening of the vagina. POP can be thought of as a 'female hernia.’ ” Pelvic Organ Prolapse, Weill 'Cornell Med. Urology, https://urology.weillcornell.org/pelvic-organ-prolapse (last visited April 18, 2017) (saved as ECF Opinion Attachment). "Urinary incontinence is any involuntary (Continued) leakage of urine,” and stress urinary incontinence involves "leakage with physical activity.” Urinary Incontinence, Weill Cornell Med. Urology, https ://urology. weillcornell. org/urinaiy-incontinence (last visited April 18, 2017) (saved as ECF Opinion Attachment).

      . Citations to the "J.A.” refer to the Joint Appendix filed by the parties in this appeal.

      . The MDL court also dismissed claims for strict liability for manufacturing defect, strict liability for design defect, strict liability for failure to warn, negligent failure to warn, negligent manufacturing, breach of express warranty, breach of implied warranty for a particular purpose, and fraudulent concealment, but the court allowed Appellant's claims for negligent design and breach of implied warranty of merchantability to proceed.

      . The parties deposed Dr. Kennelly on July 2, 2014, yet Appellee moved for summary judgment in the MDL court over six months later, on January 15, 2015. See J.A. 94, 124. Appellant provided only twelve pages of that testimony to the MDL court. See id. at 260-62.


author: WILKINSON, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Damien RILEY, Defendant-Appellant.
    No. 15-4317
    United States Court of Appeals, Fourth Circuit.
    Argued: March 21, 2017
    Decided: May 9, 2017

      ARGUED: Julie Marie Reamy, JULIE M. REAMY, ATTORNEY AT LAW, LLC, Baltimore, Maryland, for Appellant. David Daniel Metcalf, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
    Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.
   Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Diaz and Judge Floyd joined.

WILKINSON, Circuit Judge:

Damien Riley challenges his designation as a career offender under the U.S. Sentencing Guidelines, arguing that his prior conviction for Maryland robbery with a dangerous weapon does not qualify as a predicate “crime of violence.” We conclude that this offense was a crime of violence under the residual clause of the career offender guideline in effect when Riley was sentenced.

I.

Riley was convicted of four counts of possession with intent to distribute a controlled substance. The presentence report (PSR) designated Riley as a career offender under U.S.S.G. § 4B1.1 based on his previous felony convictions under Maryland law for robbery with a dangerous weapon and distribution of a controlled dangerous substance. The designation elevated his guidelines range from 21-27 months of imprisonment to 210-262 months. Riley did not object to his classification as a career offender in the PSR.

At the sentencing hearing, Riley’s counsel stated that “there is no dispute whatsoever that he is a career offender” and instead argued that the designation was “over-representative of his criminal history.” J.A. 22. Accordingly, Riley sought a downward departure for his criminal history and a downward variance on his overall sentence. The district court adopted the PSR and sentenced Riley to 210 months imprisonment. Riley now appeals his designation as a career offender, claiming that Maryland robbery with a dangerous weapon is not a crime of violence.

II.

In general, we review de novo whether a defendant’s prior offense qualifies as a crime of violence under the career offender guideline. United States v. Carthome, 726 F.3d 503, 509 (4th Cir. 2013). But where, as here, “a defendant has not objected to that classification before the district court, we review such a question for plain error.” Id. In addition, we “may affirm on any grounds apparent from the record.” United States v. Smith, 395 F.3d 516, 519 (4th Cir. 2005).

We conclude that the district court did not err—let alone plainly err—in classifying Riley as a career offender. Maryland robbery with a dangerous weapon fits comfortably within the residual clause of the career offender guideline’s definition of a “crime of violence.”

A.

The Sentencing Guidelines provide for enhanced sentences for career offenders. Section 4Bl.l(a) sets forth three criteria for the designation, the last of which is at issue here:

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4Bl.l(a). Riley concedes that his previous felony drug offense serves as a predicate “controlled substance offense.” See Br. of Appellant at 4.

The definition of the term “crime of violence” in effect when Riley was sentenced contained a force clause, 'an enumerated clause, and a residual clause (which was later rescinded). Under that definition, a federal or state offense punishable by more than one year of imprisonment qualifies as a crime of violence if the offense “has as an element the use, attempted use, or threatened use of physical force against the person of another” (force clause); “is burglary of a dwelling, arson, or extortion, [or] involves use of explosives” (enumerated clause); “or otherwise involves conduct that presents a serious potential risk of physical injury to another” (residual clause). § 4B1.2(a).

Shortly after Riley noted his appeal, the Supreme Court decided Johnson v. United States, - U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Johnson invalidated the residual clause of the Armed Career Criminal Act (ACCA) as unconstitutionally vague under the Due Process Clause of the Fifth Amendment. Id. at 2563. Because the residual clause in Johnson was identical to that of the career offender guideline, the Sentencing Commission removed the residual clause from the guideline’s definition of “crime of violence.” See U.S.S.G. supp. app. C, amend. 798 (effective Aug. 1, 2016). But in Beckles v. United States, the Supreme Court held that the guidelines “are not subject to a vagueness challenge under the Due Process Clause” and that “[t]he residual clause in § 4B1.2(a)(2) therefore is not void for vagueness.” — U.S. -, 137 S.Ct. 886, 892, 197 L.Ed.2d 145 (2017). Despite Johnson, then, the residual clause of the career offender guideline remains valid.

B.

The only question on appeal is whether Maryland robbery with a dangerous weapon qualifies as a “crime of violence.” We conclude that it does.

Section 3-403 of the Maryland Criminal Code provides, “A person may not commit or attempt to commit robbery ... with a dangerous weapon [or] by displaying a written instrument claiming that the person has possession of a dangerous weapon.” Md. Code Ann., Crim. Law § 3-403. The statute adopts the common law definition of robbery: “the felonious taking and carrying away of the personal property of another, from his person or in his presence, by violence or putting in fear.” Conyers v. State, 345 Md. 525, 693 A.2d 781, 796 (1997) (quoting West v. State, 312 Md. 197, 539 A.2d 231, 233 (1988)). The Maryland Court of Appeals has explained that “[r]obbery with a deadly weapon is not a separate substantive offense, but if the State can prove that a defendant used a deadly weapon during the commission of a robbery, the defendant is subject to harsher penalties.” Id. at 796-97.

Because we conclude that Maryland simple robbery is a crime of violence under the residual clause, we need not reach the question of whether Maryland simple robbery and Maryland robbery with a dangerous weapon are separate offenses under federal law. If they are, robbery with a dangerous weapon is a fortiori a crime of violence; if not, our analysis of simple robbery suffices. Either way, Riley’s prior robbery offense serves as a predicate for purposes of applying the career offender guideline.

Under Maryland law, robbery entails the carrying away of another’s property “from his person or in his presence ... by violence or putting in fear.” Conyers, 693 A.2d at 796. This classic articulation of robbery involves conduct that undoubtedly “presents a serious potential risk of physical injury to another.” § 4B1.2(a); see also United States v. Jarmon, 596 F.3d 228, 232 (4th Cir. 2010) (holding that North Carolina larceny from the person is a crime of violence under the career offender guideline’s residual clause even though the offense “entails less violence than robbery”); United States v. Carmichael, 408 Fed.Appx. 769, 770 (4th Cir. 2011) (holding that North Carolina simple robbery is a violent felony under ACCA’s residual clause).

In addition, the commentary on § 4B1.2 expressly includes robbery in a list of offenses that qualify as crimes of violence. § 4B1.2, cmt. n.l. These offenses “serve as additional enumerated offenses, or ‘example crimes,’ to be considered when determining whether a prior conviction” falls within the residual clause. United States v. Mobley, 687 F.3d 625, 629 (4th Cir. 2012); see also United States v. Peterson, 629 F.3d 432, 438 (4th Cir. 2011) (“[T]he commentary to § 4B1.2(a)(2) adds to the list of example crimes listed in § 4B1.2(a)(2) an additional six crimes of violence under the Guidelines.... ”). Robbery, then, is a paradigmatic example of a crime presenting “a serious potential risk of physical injury to another.” It plainly constitutes a crime of violence under the residual clause.

Because we rest our judgment on the residual clause, we need not address Riley’s arguments concerning the force clause. The district court did not err by designating Riley a career offender.

AFFIRMED

      This opinion cites the 2014 Federal Sentencing Guidelines Manual, which was in effect when Riley was sentenced, unless otherwise noted.


author: BARBARA MILANO KEENAN, Circuit Judge:

text:
    James DILLON, Plaintiff-Appellee, v. BMO HARRIS BANK, N.A., Defendant-Appellant, and Four Oaks Bank & Trust Company; Generations Federal Credit Union; Bay Cities Bank, Defendants.
    No. 16-1362
    United States Court of Appeals, Fourth Circuit.
    Argued: March 24, 2017
    Decided: May 10, 2017

      ARGUED: Kevin Scott Ranlett, MAYER BROWN LLP, Washington, D.C., for Appellant. Hassan A. Zavareei, TYCKO & ZAVAREEI LLP, Washington, D.C., for Appellee. ON BRIEF: Lucia Nale, Debra Bogo-Ernst, MAYER BROWN LLP, Chicago, Illinois; Mary K. Mandeville, ALEXANDER RICKS PLLC, Charlotte, North Carolina, for Appellant. Norman E. Siegel, Steve Six, J. Austin Moore, STUEVE SIEGEL HANSON LLP, Kansas City, Missouri; Jeffrey M. Ostrow, KOPELOW-ITZ OSTROW P.A., Fort Lauderdale, Florida; Darren T. Kaplan, DARREN KAPLAN LAW FIRM, P.C., New York, New York; F. Hill Allen, THARRINGTON SMITH, L.L.P., Raleigh, North Carolina; Jeffrey D. Kaliel, TYCKO & ZAVAREEI LLP, Washington, D.C., for Appellee.
    Before DUNCAN, KEENAN, and THACKER, Circuit Judges.
   Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judge Duncan and Judge Thacker joined.

BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, we consider the enforceability of an arbitration agreement included in the terms of a “payday loan” obtained over the internet. Plaintiff James Dillon brought this civil action against defendant BMO Harris Bank, N.A. (BMO Harris), alleging that BMO Harris violated the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., when BMO Harris used its role within a network of financial institutions “to conduct and participate in the collection of unlawful payday loans.”

Relying on the Federal Arbitration Act (FAA), BMO Harris sought to enforce an arbitration agreement for the loan at issue, which was entered into by Dillon and the lender, Great Plains Lending, LLC (Great Plains). The district court held that the arbitration agreement was unenforceable under this Court’s opinion in Hayes v. Delbert Services Corp., 811 F.3d 666 (4th Cir. 2016), and denied BMO Harris’ motion to compel arbitration. BMO Harris appeals from the district court’s order. Upon our review, we hold that the arbitration agreement between Dillon and Great Plains is unenforceable, and we affirm the district court’s order denying BMO Harris’ motion.

I.

James Dillon is a resident of North Carolina. In December 2012, Dillon applied for and received a “payday loan” through the website of Great Plains, a lender wholly owned, by the Otoe-Missouria Tribe of Indians. Although North Carolina usury law generally prohibits interest rates in excess of 16%, N.C. Gen. Stat. § 24-1.1, Great Plains has no physical presence in North Carolina and charged an interest rate of 440.18% for Dillon’s loan. Dillon authorized Great Plains to deposit and withdraw funds in Dillon’s bank account through the Automated Clearing House Network (ACH Network), a transaction processing system that facilitates electronic transfer of funds between financial institutions, usually on behalf of account holders.

In order to complete the loan transaction, Dillon electronically signed a contract (the Great Plains Agreement) that contained: (1) terms governing the loan (the underlying loan agreement); and (2) an agreement to submit disputes to arbitration (the arbitration agreement). The Great Plains Agreement included choice of law provisions both in the underlying loan agreement and in the arbitration agreement. These choice of law provisions required the application of Otoe-Missouria tribal law and disclaimed the application of state or federal law. For example, the Great Plains Agreement by its terms was “subject solely to the exclusive laws and jurisdiction of the Otoe-Missouria Tribe of Indians, a federally recognized Indian Tribe,” and provided that “no other state or federal law or regulation shall apply to this Agreement, its enforcement or interpretation.”

Similarly, the arbitration agreement within the Great Plains Agreement provided that “any dispute ... will be resolved by arbitration in accordance with the law of the Otoe-Missouria Tribe of Indians,” and instructed the arbitrator to “apply the laws of the Otoe-Missouria Tribe of Indians.” For borrowers who opt out of arbitration within 60 days of receiving the loan, “any disputes ... shall nonetheless be governed under the laws of the Otoe-Missouria Tribe of Indians and must be brought within the court system thereof.”

Immediately below the arbitration agreement, another choice of law provision in the Great Plains Agreement provided that “[t]his Agreement and the Agreement to Arbitrate are governed by ... the laws of the Otoe-Missouria Tribe,” and “[n]either this Agreement nor the Lender is subject to the laws of any state of the United States.” The Great Plains Agreement signature page also required that Dillon agree to the following term: “I further understand, acknowledge and agree that this loan is governed by the laws of the Otoe-Missouria Tribe of Indians and is not subject to the provisions or protections of the laws of my home state or any other state.”

Dillon later filed a putative class action complaint in the district court, claiming that Great Plains and other tribal payday .lenders had issued numerous unlawful loans. Instead of directly suing the tribal payday lenders, including Great Plains, for violating state usury laws, Dillon sued the financial institutions that facilitated these payday lending transactions over the ACH Network. Dillon alleged that the ACH Network was an “enterprise,” and that several- of its members, including BMO Harris, conducted and participated in the “collection of unlawful debts” in violation of the federal RICO Act.

In the district court, BMO Harris sought to compel arbitration pursuant to' the Great Plains Agreement. See Dillon v. BMO Harris Bank, N.A., 787 F.3d 707, 711 (4th Cir. 2015). While the merits of BMO Harris’ motion to compel arbitration were pending in the district court, this Court decided Hayes v. Delbert Services Corp., 811 F.3d 666 (4th Cir. 2016). In Hayes, we reviewed a loan agreement between a consumer and Western Sky Financial, LLC (Western Sky), a payday lender organized under the laws of the Cheyenne River Sioux Tribe. Id. at 668. The loan agreement at issue in that case (the Western Sky Agreement) contained an arbitration clause that we held was unenforceable as being in violation of public policy. Id. at 675-76.

After we issued our opinion in Hayes, the district court evaluated the language of the Great Plains Agreement in light of the Hayes decision. The district court concluded that the Great Plains Agreement is “like the contract in Hayes” and “denies the applicability of all federal and state law.” Accordingly, the district court held that the arbitration agreement was unenforceable, and denied BMO Harris’ renewed motion to compel arbitration. BMO Harris appeals from the district court’s order denying the requested relief.

II.

A.

The FAA grants this Court jurisdiction to review a district court order denying a motion to compel arbitration. 9 U.S.C. § 16; see also Dillon, 787 F.3d at 714. We review de novo the enforceability of an arbitration provision, and apply a “strong federal policy in favor of enforcing arbitration agreements.” Hayes, 811 F.3d at 671 (quoting Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 217, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985)).

Under the FAA, arbitration agreements are “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. Courts therefore must enforce arbitration agreements “on an equal footing with other contracts.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011) (internal citations omitted). The FAA preserves state law contract defenses unless such defenses “rely on the uniqueness of an agreement to arbitrate” and are applied “in a fashion that disfavors arbitration.” Id. at 341-42, 131 S.Ct. 1740.

Consistent with these contract principles, the Supreme Court has recognized that arbitration agreements that operate “as a prospective waiver of a party’s right to pursue statutory remedies” are not enforceable because they are in violation of public policy. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 n.19, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985); see also Am. Express Co. v. Italian Colors Rest, — U.S. -, 133 S.Ct. 2304, 2310, 186 L.Ed.2d 417 (2013); 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 273-74, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). Under this “prospective waiver” doctrine, courts will not enforce an arbitration agreement if doing so would prevent a litigant from vindicating federal substantive statutory rights. See Am. Express Co., 133 S.Ct. at 2310; 14 Penn Plaza, 556 U.S. at 273-74, 129 S.Ct. 1456; Gilmer, 500 U.S. at 28, 111 S.Ct. 1647.

A foreign choice of law provision, of itself, will not trigger application of the prospective waiver doctrine. See Mitsubishi, 473 U.S. at 637 n.19, 105 S.Ct. 3346. Instead, a court first must examine whether, as a matter of law, the “ehoice-of-forum and choice-of-law clauses operate! 1 in tandem as a prospective waiver of a party’s right.to pursue statutory remedies.” Id. When there is uncertainty whether the foreign choice of law would preclude otherwise applicable federal substantive statutory remedies, the arbitrator should determine in the first instance whether the choice of law provision would deprive a party of those remedies. See Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 540-41, 115 S.Ct. 2322, 132 L.Ed.2d 462 (1995); Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355, 371-73 (4th Cir. 2012). In such a case, the prospective waiver issue would not become ripe for final determination until the federal court is asked to enforce the arbitrator’s decision. Vimar, 515 U.S. at 540-41, 115 S.Ct. 2322; Aggarao, 675 F.3d at 371-73.

In Hayes, we applied the prospective waiver doctrine to the Western Sky Agreement governing another internet payday loan. There, we examined a choice of law provision that disclaimed the application of “any law other than the law of the Cheyenne River Sioux Tribe of Indians to this Agreement.” Id. at 675. We observed that this language “almost surreptitiously waives a potential claimant’s federal rights through the guise of a choice of law clause” and “flatly and categorically renounce[s] the authority of the federal statutes.” Id. We held that such language took the “plainly forbidden” step of prospectively waiving federal substantive rights. Id. We therefore concluded that the challenged choice of law provision was unenforceable as a matter of law. Id.

We also held that the offending choice of law provision was not severable from the rest of the arbitration agreement, because the choice of law provision went to the “essence” of the contract. Id. at 676. We concluded that “one of the animating purposes of the arbitration agreement was to ensure that [the lender] could engage in lending and collection practices free from the strictures of any federal law.” Id. We further observed that in addition to the above deficiencies in the arbitration agreement, the underlying loan agreement contained a “brazen” disclaimer that “no United States state or federal law applies to this Agreement.” Id. This additional disclaimer lent further support to our conclusion that the arbitration agreement was part of an “integrated scheme to contravene public policy.” Id. (quoting Graham Oil Co. v. ARCO Prods. Co., 43 F.3d 1244, 1249 (9th Cir. 1994)). We therefore applied the prospective waiver doctrine and held that the entire arbitration provision of the Western Sky Agreement was unenforceable. Id.

B.

We turn now to consider the Great Plains Agreement at issue in this appeal. BMO Harris argues that the Great Plains Agreement does not implicate the prospective waiver doctrine, because Dillon failed to show that the choice of law provision would actually deprive him of any federal remedies. According to BMO Harris, any ambiguities that may arise in application of the choice of law provision should be resolved by the arbitrator in the first instance. Thus, BMO Harris urges us to defer consideration of the prospective waiver doctrine until after the arbitrator construes the choice of law provision and decides whether any federal remedies remain available to Dillon.

In response, Dillon asserts that the prospective waiver issue is ripe for our review at this stage of the litigation. He contends that there is no uncertainty regarding the effect of the choice of law provision, because that provision effects an unambiguous and categorical waiver of federal statutory rights. Therefore, Dillon argues, the choice of law provision is unenforceable under our decision in Hayes. We agree with Dillon’s arguments.

The Great Plains Agreement at issue in this appeal contains many of the same choice of law provisions as the Western Sky Agreement that we held unenforceable in Hayes. The Great Plains arbitration agreement provides:

THIS AGREEMENT TO ARBITRATE IS MADE PURSUANT TO A TRANSACTION INVOLVING THE INDIAN COMMERCE CLAUSE OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA, AND SHALL BE GOVERNED BY THE LAW OF THE OTOE-MISSOURIA TRIBE OF INDIANS. The arbitrator will apply the laws of the Otoe-Missouria Tribe of Indians and the terms of this Agreement. ...

Apart from the designated tribe, this language is identical to the related terms of the arbitration agreement that we reviewed in Hayes. See 811 F.3d at 675. Another provision that appears in both agreements is a section titled “GOVERNING LAW,” which provides that “[t]his Agreement and the Agreement to Arbitrate are governed by [tribal law]” and “[n]either this Agreement nor the Lender is subject to the laws of any state of the United States.” See id. at 669-71.

We hold that the above provisions in the Great Plains Agreement are not distinguishable in substance from the related provisions in the Western Sky Agreement that we held unenforceable in Hayes. The arbitration agreement in this case implicitly accomplishes what the Western Sky Agreement explicitly stated, namely, that the arbitrator shall not allow for the application of any law other than tribal law. See id. at 670. Just as we did in Hayes, we interpret these terms in the arbitration agreement as an unambiguous attempt to apply tribal law to the exclusion of federal and state law. See id. at 675.

Additionally, other terms in the Great Plains Agreement evince an explicit attempt to disavow the application of federal or state law to any part of the contract or its parties. Those terms include the following statements:

By executing this Agreement, you hereby ... further agree that no other state or federal law or regulation shall apply to this Agreement, its enforcement or interpretation.
Our inclusion of these disclosures does not mean that we ... consent to application of state or federal law to us, to the loan, or this Agreement.
Neither this Agreement nor the Lender is subject to the laws of any state of the United States.
I further understand, acknowledge and agree that this loan is governed by the laws of the Otoe-Missouria Tribe of Indians and is not subject to the provisions or protections of the laws of my home state or any other state.

These terms throughout the underlying loan agreement further illustrate that the choice of law provision in the arbitration agreement “disavow[s] the application of all state and federal law” and “unambiguously forbids an arbitrator from even applying the applicable law.” Id. at 668, 670; see also 17A Am. Jur. 2d Contracts § 326 (2016) (“When deciding whether an agreement is ambiguous, particular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole....”). Because the effect of the arbitration agreement is unambiguous in the context of the whole contract, we conclude that the arbitration agreement functions as a prospective waiver of federal statutory rights and, therefore, is unenforceable as a matter of law. See Hayes, 811 F.3d at 676.

Our conclusion is not altered by BMO Harris’ alternative request that we effectively sever the choice of law provisions from the arbitration agreement, and accept BMO Harris’ concession to the application of federal substantive law in arbitration notwithstanding the unambiguous choice of tribal law in the arbitration agreement. BMO Harris argues that this concession would ensure that Dillon have access in arbitration to any federal substantive rights, thereby removing the chief policy rationale for application of the prospective waiver doctrine.

We find no merit in this argument. In essence, BMO Harris seeks to rewrite the unenforceable foreign choice of law provision in order to save the remainder of the arbitration agreement. As we discussed in Hayes, such a result is untenable. Unlawful portions of a contract may be severed only if: (1) the unlawful provision is not central or essential to the parties’ agreement’; and (2) the party seeking to enforce the remainder negotiated the agreement in good faith. 8 Williston on Contracts § 19:70 (4th ed. 1993 & Supp. 2010); Restatement (Second) of Contracts § 184 (1981). As we observed regarding the nearly identical provisions at issue in Hayes, “the offending provisions go to the core of the arbitration agreement.” 811 F.3d at 676. Great Plains purposefully drafted the choice of law provisions in the arbitration agreement to avoid the application of state and federal consumer protection laws. See id. at 675-76. Because these choice of law provisions were essential to the purpose of the arbitration agreement, BMO Harris’ consent to application of federal law would defeat the purpose of the arbitration agreement in its entirety. See 8 Williston on Contracts § 19:70; Restatement (Second) of Contracts § 184.

Additionally, when a party uses its superior bargaining power to extract a promise that offends public policy, courts generally opt not to redraft an agreement to enforce another promise in that contract. Restatement (Second) of Contracts § 184 cmt. b. In the present case, Great Plains obtained the terms in the arbitration agreement through its “dominant bargaining power” in a calculated attempt to avoid the application of state and federal law. See id. Because Great Plains did not negotiate these terms in good faith, we decline to give effect to this “integrated scheme to contravene public policy.” Hayes, 811 F.3d at 676 (quoting Graham Oil Co., 43 F.3d at 1249); see also Restatement (Second) of Contracts § 184 cmt. b. Accordingly, we hold that the entire arbitration agreement is unenforceable.

III.

In summary, we conclude that the Great Plains Agreement contains unenforceable choice of law provisions, which are not severable from the broader arbitration agreement and render the entire arbitration agreement unenforceable. Accordingly, we affirm the district court’s order denying BMO Harris’ renewed motion to compel arbitration.

AFFIRMED

      . "Payday loans" are short-term, unsecured consumer loans for small amounts. See Consumer Fin. Prot. Bureau, What is a Payday Loan?, (Continued) https://www.consumer finance.gov/askcfpb/l 5 67/what-payday-loan. html (last visited Apr. 3, 2017). These loans generally carry high interest rates, sometimes in excess of 400%. Id.

      . Dillon also asserted claims against other financial institutions, but the claims against BMO Harris are the only claims at issue in this appeal.

      . The district court initially denied the motion to compel arbitration, holding that BMO Harris had failed to authenticate the purported loan agreement, and later denied BMO Harris' motion for reconsideration. Dillon, 787 F.3d at 711-12. We vacated the district court's order, and remanded the case with instructions to consider the merits of the motion to compel arbitration. Id. at 716.

      . In this interlocutory appeal, we need not ' consider BMO Harris’ arguments that Dillon’s federal claims should fail on their merits. The district court will have an opportunity to decide those issues in the first instance.