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'Sue' Does Not Mean 'Arbitrate' in CROA

Greenwood v. CompuCredit Corporation, Case No. 09-15906 (C.A. 9, Aug. 17, 2010)

This appeal presents the question, inter alia, as to whether the word “sue,” as used in the Credit Repair Organization Act (“CROA”), means “arbitrate.” Or, perhaps the question is, as Alice put it: “whether you can make words mean so many different things?” We conclude that Congress meant what it said in using the term “sue,” and that it did not mean “arbitrate.” We affirm the order of the district court denying the Credit Providers’ motion to compel arbitration.

I


CompuCredit marketed a subprime credit card under the brand name Aspire Visa to consumers with low or weak credit scores through massive direct-mail solicitations and the internet. CompuCredit marketed the card and the cards were issued by Columbus Bank and Trust (collectively “Credit Providers”).

Greenwood and her fellow plaintiffs (“Consumers”) allege CompuCredit marketed the card by representing to consumers it could be used to “rebuild your credit,” “rebuild poor credit,” and “improve your credit rating.” Consumers allege the promotional materials noted there “was no deposit required,” and that consumers would immediately receive $300 in available credit when they received the card. In fact, they allege, Credit Providers charged a $29 finance charge, a monthly $6.50 account maintenance fee, and a $150 annual fee, assessed immediately against the $300 limit before the consumer received the card. In aggregate, the card had $257 in fees the first year. Although the promotional material mentioned the fees, it did so in small print amidst other information in the advertisement, and not in proximity to its representations that no deposit was required. Consumers each applied for and received an Aspire card, and were charged these fees. Consumers allege the Credit Providers’ actions constitute several violations of the CROA and of California’s Unfair Competition Law.

Before receiving the Aspire Visa credit card, each Consumer received a mailing entitled “Pre-Approved Acceptance Certificate.” The Acceptance Certificate includes the following paragraph:

By signing, I request an Aspire Visa card and ask that an account be opened for me. I certify that everything I have stated in the Acceptance Certificate is true and accurate to the best of my knowledge. I have read and agree to the be bound by the “Summary of Credit Terms” and “Terms of Offer” printed on the enclosed insert, which insert includes a discussion of arbitration applicable to my account, and is incorporated here by reference.


One Consumer mailed in her acceptance, one applied over the internet, and the other applied over the phone.
















 

 

Judge(s): Kleinfeld, Tashima, Thomas
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Civil Procedure , Civil Remedies , Finance / Banking
 
Circuit Court Judge(s)
Andrew Kleinfeld
Wallace Tashima
Sidney Thomas

 
Trial Court Judge(s)
Claudia Wilken

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Adrian Barnes Gilbert & Sackman
Jay Smith Gilbert & Sackman
Laurie Traktman Gilbert & Sackman
Richard R. Rosenthal, Attorney Law Offices of Richard R. Rosenthal, PC
Kasie Braswell Taylor Martino Zarzaur PC
William Copeland Taylor Martino Zarzaur PC
Steven Martino Taylor Martino Zarzaur PC
U. W. Clemon White Arnold Andrews & Dowd PC
Gregory Hawley White Arnold Andrews & Dowd PC
Christopher Nicholson White Arnold Andrews & Dowd PC

 
Defendant Lawyer(s) Defendant Law Firm(s)
Susan Germaise McGuireWoods LLP
David Hartsell McGuireWoods LLP
James McGuire Morrison & Foerster LLP
Tim O'Brien Morrison & Foerster LLP

 

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have the right to litigate in court the claim being assert the defense of the contractual arbitration provision, but tion of this subchapter." 15 u.s.c. § 1679f(b). the plain lan- where terms are not defined within a statute, they are croa. id. § 1679c. the sherman act does not contain simi- that is to be used in advising consumers of their rights under argued and submitted rodriguez de quijas v. shearson/am. express, inc., 490 u.s. 477, 481-83 in addition, the statutory language underscores the central court's holding that the forced arbitration clause is void and right of the consumer under this subchapter­ (1) shall be 4 however, does congress mandate a judicial forum for we review de novo."). from any consumer of any protection provided or any right of cated on an express decision to waive the right to a trial in a v judicial forum . . . and to that extent may be said to recognize duty created by this chapter or the rules and regulations there- 12091greenwood v. compucredit corporation meaning. further, the substantive-procedural distinction has void "[a]ny waiver by any consumer of any protection pro- out factors that "the court shall consider." 15 u.s.c. since the section does not specify the forum for resolution of [5] the extremely broad anti-wavier provision in the counsel for a "right to sue." rather, the adea takes a "flexible sion. for example, it is foreseeable that a credit repair organi- ing arbitration . . . to show that congress intended to preclude u.s.c. § 1679f(a). thus, gilmer is also inapplicable here. of the act provides, "the district courts of the united states 12095greenwood v. compucredit corporation § 1679f encompasses waivers of "any protection" or "any 2004). for "lawsuit," black's directs us to "suit," id. at 905, arbitration discovery except as provided under naf ted under the code of procedure of the national provides that "[a]ny attempt by any person to obtain a waiver sive here for the same reasons discussed in regards to mcmahon. report . . . . sumers allege the credit providers' actions constitute several 511 f.3d 369, 381-82 (3d cir. 2007) ("although the statutes tion instituted by a credit repair organization or debt collec- plain reading of the statute dictates that one of those rights is a waiver of judicial remedies. green tree simply does not none of which is persuasive. lewis carroll, through the looking glass and what alice found 12089greenwood v. compucredit corporation trate claims) ments was invalid and void under the croa's prohibition of enforcement of the croa's substantive provisions. the dis- not a substantive obligation, the exchange act does not pre- croa claims. see shearson/am. express inc. v. mcmahon, ment's mention of a "right to sue" cannot be the basis of a nization which violates the croa. nowhere in the croa, the credit providers raise a number of counter-theories, 2000) (quoting clinton v. city of new york, 524 u.s. 417, carson harbor village, ltd. v. unocal corp., 270 f.3d 863, corp. v. soler chrysler-plymouth, inc., 473 u.s. 614 (1985), of a class of claimants relating to such dispute. other except as set forth below, the arbitrator's decision gay dispatches with the explicit language creating a con- 24 (1983). under the federal arbitration act, courts should first, credit providers argue the "right to sue" language ted); becker v. davis, 491 f.3d 1292, 1299 (11th cir. 2007) other person" language demonstrates congress intended arbi- part, § 15(a) provides that "any person who shall be injured igation based upon its underlying purpose of encouraging remedies under the croa in the text of the act itself, there is no need for providers charged a $29 finance charge, a monthly $6.50 daas, 198 f.3d 1167, 1174 (9th cir. 1999). that consumers would immediately receive $300 in available u.s. 206, 212 (1998) ("[t]he title of a statute . . . cannot limit section [of the croa] in which this anti-waiver provision jointly and individually, each of the rights referred to in § 1679c(a) is separately ing in a court of justice, by which an individual pursues that ance with any provision" of the exchange act under hatfield; deborah mccleese, on a whole, including its object and policy." id. if the plain because plaintiffs may enforce their rights under the substan- olution in an arbitral, rather than a judicial, forum."). compucredit marketed a subprime credit card under the important -- the agreement you receive contains a sumer received a mailing entitled "pre-approved acceptance antitrust laws may sue therefor in any district court of the context of an international commercial dispute. in relevant [7] the croa gives consumers the "right to sue," and intended to exclude claims asserted under the croa . . . from ments." gilmer v. interstate/johnson lane corp., 500 u.s. forum." id. this ignores completely the anti-waiver clause of tion. as always, our starting point is the plain language of the engage in pre-arbitration discovery except as permit- a dence a congressional intent to preclude sherman act claims tive obligations imposed by the exchange act. access to a judicial forum and a right to sue, and reveals no section 1679c. we decline to adopt such a reading. received an aspire card, and were charged these fees. con- waiving "any right of the consumer." 15 u.s.c. § 1679f(a). a 12086 greenwood v. compucredit corporation 29 (1991), the supreme court considered whether an arbitra- able" to the average consumer than a broader phrase such as a trict court's order and remand with instructions to compel claudia wilken, district judge, presiding gress intended to preclude a waiver of judicial remedies. thomas, circuit judge: meant to take the place of the detailed provisions of the text," that all its language is given effect, and none of it is rendered legislature says in a statute what it means and means in a stat- be enforced by any federal or state court or any other per- as the majority acknowledges, congress has manifested "a you have the right to cancel your contract with 12075greenwood v. compucredit corporation susan l. germaise, mcguirewoods llp, los angeles, cali- this appeal presents the question, inter alia, as to whether court of law. characterized as an alternative to litigation." 6 c.j.s. arbitra- other sections of chapter 41 of title 15."). for example, 15 repair organizations to inform consumers of their right to a applying mcmahon, the third circuit observed that "the adrian barnes, gilbert & sackman, los angeles, california, the "right to bring a claim." this is despite the fact that, one consumer mailed in her acceptance, one applied over the "expansive language [that] offers no indication whatever that also wolsey, ltd. v. foodmaker, inc., 144 f.3d 1205, 1208 prevents any waiver of "any right" under the statute. we find intended that croa claims to be enforceable outside a judi- of several mechanisms of "alternative dispute resolution," u.s. (pet) 449, 464 (1829) (defining "suit" as "any proceed- 1 servs., inc., 551 u.s. 224, 232 (2007). therefore, we con- before receiving the aspire visa credit card, each con- behalf of themselves and other fested a "liberal federal policy favoring arbitration agree- claims under the credit repair organizations act ("croa"), that an account be opened for me. i certify that employment act (adea)]." the adea contains the follow- greenwood and her fellow plaintiffs ("consumers") allege for the federal policy favoring arbitration." dkt. 64, at 8 (cita- contrary to the adea, the croa specifically grants id. § 78cc(a). the plaintiffs in mcmahon argued that section in a manner that leaves no doubt that arbitration is a creature we will not reach this issue on appeal. out of such contract or transaction . . . shall be valid, irrevoca- among the circuits in matters having general application to the according to credit providers, congress meant to give con- (1989), which held that the securities act of 1933 does not preclude arbi- under credit providers' interpretation, the "right to sue" lan- because § 27 does not impose any statutory duties, arbitration forum ("naf"), or to participate as part a waiver of judicial remedies for the statutory rights at cir. 2009). both gay and picard give surprisingly little [statutory] interpretation that would produce `an absurd and contract with the consumer. the croa creates various non- zation would institute arbitration proceedings against a or this agreement (collectively, "claims"), upon the superfluous. trw inc. v. andrews, 534 u.s. 19, 31 (2001). under section 1679g. this is actually a two-step argument. adopts the reasoning in gay, we will not deal with the two the croa provides a consumer with the right to bring suit in enforcing croa claims. on the other hand, the majority's [3] thus, the plain language of the croa provides con- and "may not be enforced by any federal or state court . . . ." immediately against the $300 limit before the consumer 12074 greenwood v. compucredit corporation sue, does not itself confer that right. see gay v. creditinform, croa, repeatedly refers only to "courts" as the enforcement considered in mcmahon. the main difference between the two is that the compucredit marketed the card and the cards were tration. gay, 511 u.s. at 385. rodriguez de quijas considered jurisdic- superfluous and insignificant, merely a restatement of other credit solutions of america, inc., 507 f. supp. 2d 788, 798- tion § 2 (june 2005) (emphasis added) (citations omitted); see 5 croa's anti-waiver provision only "extend[s] to rights prem- "credit repair organizations" under the meaning of the statute. therefore, tion omitted). thus, we hold the plain language of the croa arbitration to show that congress intended to preclude a tory, the legislative history cannot provide a basis for the tions." gay, 511 f.3d at 377 n.4. as discussed in more detail merce to settle by arbitration a controversy thereafter arising clude arbitration agreements. consistent with the statutory scheme established by con- tion that violates the credit repair organization act. having found a congressional intent to preclude the waiver of judicial (9th cir. 1998) ("arbitration is a creature of contract, a device the claim is filed. if for any reason the naf cannot, serv. auto. ass'n, 164 f.3d 451, 455 (9th cir. 1999). the subishi, 473 u.s. at 639. the present case differs in that it to invoke a contractual arbitration provision to change the ferent from a statute that expressly provides for a right to sue. intent to preclude a waiver of judicial remedies must be croa claims. waivable consumer rights and protections other than the right for the ninth circuit deducible from text or legislative history." id. more recently, 12079greenwood v. compucredit corporation text." bhd. of r.r. trainmen v. balt. & ohio r.r., co., 331 [2] the supreme court has held that "[h]aving made the gardner ed., norton publishers) (2000). 799 n.5. allegations in plaintiffs' complaint. there, in the annotated alice: the definitive edition 213 (martin to sue. in an arbitration collection proceeding, one of the other or relating to your account, any transferred balances ing paragraph: requires credit repair organizations to misinform consumers the "right to sue a credit repair organization that violates" the rights available to you in court may be unavailable tion and the act's underlying purpose. the international policy favoring commercial arbitration." mit- shown by the statute's text, its legislative history, or an inher- [ally] agreed to by the disputing parties and whose decision sumer's "right to sue" in a mere footnote. the court states that a waiver of judicial remedies for the statutory rights at exchange act prohibited arbitration agreements. section 27 son." 15 u.s.c. § 1679f(a) (emphasis added). by including 983 f. supp. 937, 944 (d. colo. 1997) ("[c]ases and statutes the "right to sue" listed in § 1679c(a) is provided for in 15 motors corp. v. soler chrysler-plymouth, inc., 473 u.s. 624, main, 503 u.s. 249, 253-54 (1992). clearly contemplate consumers' actions being brought in a essarily mean the right to sue in court, especially given the by binding arbitration, you will not have the right to we are also not persuaded that the other supreme court francisco, california, tim a. o'brien, morrison & foerster moments later upon the signing an agreement such as the one sue" in the mandatory "disclosures" section of the statute, finally, the mere mention of a "right to sue" does not nec- united states court of appeals right to "some form of dispute resolution," but instead speci- use of the word "any" to describe which rights are covered is sion of congressional intent required by" the supreme court cates that congress meant something other than what it said." april 12, 2010--san francisco, california ised on the imposition of statutory duties." id. because the section, which sets out available damages for violations of the will not or ceases to serve as arbitration administra- claimants relating to any claim subject to arbitration. u.s. 79, 80 (2000), the supreme court considered whether to interpret the language in a way that goes against the pur- tion provide consumers with the following written disclosure: remedy in a court of justice, which the law affords him") u.s. 519, 528-29 (1947); pa. dep't of corr. v. yeskey, 524 municated verbatim to consumers. 12096 greenwood v. compucredit corporation 12078 greenwood v. compucredit corporation and is incorporated here by reference. port a right to sue in court, does not overcome the "liberal we are also not convinced by credit providers' argument 12076 greenwood v. compucredit corporation before: andrew j. kleinfeld, a. wallace tashima, and judicial remedies for the statutory rights at issue." mitsubishi binding arbitration provision. if a dispute is resolved 15 u.s.c. § 1679c(a). this section does not purport to create does not contain an international component. more impor- contract, tort or otherwise) . . . are governed by and construed the croa also contains a non-waiver provision, phrased 12080 greenwood v. compucredit corporation ambiguous, we consult legislative history. united states v. we affirm the order of the district court denying the credit [6] we agree with other courts that the "croa's non- you have a right to sue a credit repair organiza- reference sources, including black's law dictionary and gen- sidered in shearson/am. express, inc. v. mcmahon, 482 u.s. hole. avoided on the theory that arbitration "deprives claimants of organizations.3 fornia, david l. hartsell, mcguirewoods llp, chicago, illi- because neither the plain text of the statute, its legislative filed august 17, 2010 a consumer's right to proceed in court, they neither contain forbids [ ] enforcement of agreements to waive consumer for collection of the organization's fees under its waiver of rights provisions, combined with its proclamation the supreme court has reiterated that the congressional intent issue.' " gilmer v. interstate/johnson lane corp., 500 u.s. c 12092 greenwood v. compucredit corporation sidney r. thomas, circuit judges. tion to hear a claim in a particular court is quantitatively dif- clude that congress meant what it said. accordingly, the non- 12084 greenwood v. compucredit corporation the word "would not mean that the organization could not . . . is a private system of justice" distinct from state and fed- those cases. see gay v. creditinform, 511 f.3d 369 (3d cir. ble. the party challenging arbitration did not "contend that third parties may decide croa claims. this language indi- lack of other statutory language supporting this interpretation. under croa"); gay, 511 f.3d at 377 n.4 ("[15 u.s.c. meaning of a contract term by referencing black's and web- gress intended to preclude a waiver of a judicial forum for net.2 enforce arbitration agreements involving statutory claims the federal arbitration act declares that "[a] written provi- "or any other person" in the same sentence that lists federal creating such a right, we do not find this language requires a national arbitration forum ("naf") in effect when nization that violates the credit repair organization act." 15 affirmed. pute resolution, the phrase "right to sue" is a phrase particu- stated non-waivable right to sue. given the plain language no deposit was required. consumers each applied for and fies the "right to sue." the act of suing in a court of law is dis- trolling and we need not examine legislative history as an aid suggestion that the references to "the court" in § 1679g sup- and state courts as appropriate fora for croa claims, con- prohibiting waiver of the judicial forum. nothing cited by of the consumer' and mandates that any waiver of the right to ster's dictionary). provisions creating such rights nor indicate that congress . . . 12094 greenwood v. compucredit corporation first year. although the promotional material mentioned the private cause of action, such does not preclude arbitration inaccurate information in his credit report, 15 u.s.c. § 1681j the act, only to permit those very same rights to waived mere we employ our usual methodology in statutory construc- securities act allows for concurrent jurisdiction in state and federal courts enacting the statute included protecting consumers from mis- meaning of the statute is unambiguous, that meaning is con- gay, 511 f.3d at 385. the third circuit reasoned that the 3 tion . . . or any right . . . under this subchapter . . . may not 718, 725 (9th cir. 2007) ("whether [a federal statute] permits ute what it says there." bedroc ltd., llc v. united states, prohibits enforcement of the arbitration agreement.4 sumers that latter right, rather than the former. if the purpose of the act. second, credit providers argue the more general ing non-waiver provision: "any individual may not waive any third circuit continues that even if "sue" implies the avail- in addition, 15 u.s.c. § 1679f indicates that congress is required to (1) inform the consumer of his or her right to ute should be given a consistent and identical meaning which is defined as: "[a]ny proceeding by a party or parties of arbitrability of croa claims, and the legislative history (emphasis added). the plain meaning of the phrase "right to sessed a non-existent right. we should "avoid, if possible, a h. cone mem'l hosp. v. mercury constr. corp., 460 u.s. 1, implicated by this suit. the third and fourth rights specifically go to court or have the dispute heard by a jury, to in the statute, including the "right to sue." second, congress's ii whereas the exchange act provides for exclusive federal jurisdiction. violations of the croa and of california's unfair competi- son." 15 u.s.c. § 1679f(a). credit providers argue the "any right or claim under this act unless the waiver is knowing and this law prohibits deceptive practices by credit mcmahon, 482 u.s. at 228. in summary, because the tions."). we should not lightly create a circuit split on an issue it is plain and clear on its face, and we "presume that [the] absence of any discussion of arbitration in the legislative his- of congress." zimmerman v. dep't of justice, 170 f.3d 1169, should not be examined independently because it is merely a account, and any claim, dispute or controversy (whether in to interpretation unless "the legislative history clearly indi- our sister circuits, but we are unpersuaded by the reasoning of does not establish that congress intended croa claims to be indicates congress' expectation that the question of civil lia- in "such additional amount as the court may allow" and lays the consumer under this subchapter shall be treated as a viola- b ment between the consumer and the credit repair organization the dispute and therefore does not support [the] argument that the plain meaning of the text. for interpretive purposes, it is the court is explicitly forbidden from enforcing this waiver of der v. u.s. credit management, inc., 384 f. supp. 2d 1003, account maintenance fee, and a $150 annual fee, assessed . . . . will be final and binding. other rights available to compucredit marketed the card by representing to consumers iv under." 15 u.s.c. § 78aa. section 29(a) of the act declares in arbitration. opinion advertisement, and not in proximity to its representations that fees, it did so in small print amidst other information in the gilmer, 500 u.s. at 26. the burden is on the party opposing and where the plain text of the statute is unambiguous, "the opinion by judge thomas; rather, the language in § 1679c only sets forth the phrasing georgia." arbitration. credit when they received the card. in fact, they allege, credit trators to be able to decide croa claims. first, we do not in using the term "sue," and that it did not mean "arbitrate." [statute], its legislative history, or an `inherent conflict' waiver of judicial remedies for the statutory rights at issue. id. at 12080.) i submit, however, that the plain language of 12087greenwood v. compucredit corporation separate from, and not just a form of, a civil action."). dispute to arbitration. person to waive compliance with any provision of [the act]." stood. under such a reading, congress, whose purpose in accorded their plain and ordinary meaning. mchugh v. united 12088 greenwood v. compucredit corporation 2 added); see also weston v. city council of charleston, 27 plaintiffs-appellees, d.c. no. election of you or us, will be resolved by binding 20, 26 (1991) (quoting mitsubishi motors corp. v. soler first analogized the issue to the one the supreme court con- bility will normally be resolved in a judicial forum. it does not assert defenses that it had to such an action including the right alice put it: "whether you can make words mean so many dif- firming receipt of such information, and (4) keep such signed right to sue in a judicial forum is not a statutory duty under right to sue or to proceed using some form of alternative dis- pel arbitration. lish any rights, but only requires credit repair organizations to role of courts in enforcement of the statute in § 1679g. this ers' croa claims. the district court held the arbitration protection provided by or any right of the consumer under this that "[t]o recognize that croa voids all waivers of `any right ent conflict between arbitration and the statute's underlying issued by columbus bank and trust (collectively "credit pro- gress itself has evinced an intention to preclude a waiver of united states v. middleton, 231 f.3d 1207, 1210 (9th cir. arbitration in this case. for instance, in mitsubishi motors ing organization act. the croa expressly identifies four tion agency. it is consistent with a consumer's explicitly for publication act's anti-waiver provision, § 29(a), ers cannot waive their right to sue under the croa, and the dispute, it does not support the argument that it provides which the majority relies. see maniar v. fed. deposit ins. states a consumer waiver of any right or protection "may not statute, and determined that the consumer's statutory right to and "improve your credit rating." consumers allege the pro- v. 4:08-cv-04878-cw have the right to sue" in section 1679c as merely a simplified that the right to sue implies a judicial forum, and that 15 . . . shall have exclusive jurisdiction of violations of this chap- 429 (1998)). we do not believe congress was playing hum- lution. moreover, in contrast to language in the adea that iii providers' motion to compel arbitration. the majority concludes that the plain language of 15 agreement was void because the croa specifically prohibits compucredit corporation and opinion alabama, for plaintiffs-appellees. applies to the previously enumerated "right to sue." first, the ability of a judicial forum (which we believe it does), use of congress included § 1679c(a) to advise consumers of relevant " `unless congress itself has evinced an intention to preclude croa grants consumers the "right to sue." vesting jurisdic- misunderstand their rights under the croa. we see no reason a "judicial, rather than an arbitral, forum for croa viola- tinction between procedural and substantive provisions and held that waiv- cir. 2009); lozano v. at&t wireless servs., inc., 504 f.3d w. lloyd copeland, taylor-martino-zarzaur, pc, mobile, tion agreement in a securities registration application could be closure language in § 1679c(a), while recognizing a right to mitsubishi motors corp., 473 u.s. at 628 ("by agreeing to sue could not be waived. ing the jurisdictional provision does not fall under the prohibition against right" under the croa­categories which are much broader the judicial forum provided for by the [age discrimination in tional and non-waiver language virtually identical to the language cific provision at issue, but also the structure of the statute as the waiver of a consumer's right to sue in court, and denied columbus bank and trust, guage of the statute demonstrates that the waiver provision similarly situated, no. 09-15906 [4] as a matter of parlance, reference, and common sense, 1090, 1096 (9th cir. 1999). "[w]e examine not only the spe- 12093greenwood v. compucredit corporation the word "sue," as used in the credit repair organization act plain and ordinary meaning of terms can be deduced through to sue" means what it says. the statute does not provide a at this stage in the litigation, the facts as recited here are based on the arbitration agreements."). because § 1679c(a) does not estab- actually create a right to sue as the terms are ordinarily under- § 29(a). cial forum. it provides that "[a]ny waiver . . . of any protec- contract, tort, or otherwise) at any time arising from equity and actions at law brought to enforce any liability or the district court did not rule on whether the credit providers are purpose. id. plaintiffs bear the burden of showing that con- any credit repair organization for any reason within important "to subordinate domestic notions of arbitrability to u.s.c. § 1681i provides a consumer with the right to dispute of the "disclosures" was to communicate to consumers their vided by or any right of the consumer under this subchapter clause in the credit providers' aspire visa credit card agree- consumer ordinarily has the "right to sue" a credit repair orga- provisions disallowing any waiver of a consumer's right to tion and the statute's underlying purpose may form a basis for liberal federal policy favoring arbitration agreements." moses regard to the "right to sue" language in the statute, and rely tion involving one or more neutral third parties who are usu- that an out-of-court dispute resolution, such as arbitration, is bargain to arbitrate, the party should be held to it unless con- in gilmer v. interstate/johnson lane corp., 500 u.s. 20, 1255 (11th cir. 2009) ("although croa requires credit repair organizations. non-waivable consumer rights or protections could arise. the these rights and protections would be preserved in an arbitra- thus, § 1679f's prohibition on waivers may not be limited to all that § 1679c(a) requires is that a credit repair organiza- 3 business days from the date you signed it. provides a consumer with the right to obtain a copy of his in accordance with applicable federal law and the laws of concern rights that consumers have in relation to credit repair everything i have stated in the acceptance certifi- arbitrate a statutory claim, a party does not forgo the substan- corp., 979 f.2d 782, 785 (9th cir. 1992) ("[u]niformity is binding." black's law dictionary 112. arbitration is one tion law. scores through massive direct-mail solicitations and the inter- u.s.c. § 1679c(a) provides consumers with the "right to sue," that "[a]rbitration is not a judicial proceeding either at com- eral usage dictionaries. see satterfield v. simon & schuster, in a federal district court. rate document containing a verbatim copy of an eight- guage, indeed, the entire "disclosures" section, becomes cates that congress contemplated a role for arbitrators in lar non-waiver language, and thus does not apply to this situa- neither the croa nor its legislative history shows that con- we review the denial of a motion to compel arbitration de (emphasis added). the corpus juris secondum underscores brand name aspire visa to consumers with low or weak credit cases regarding the availability of arbitration require allowing "compliance" with the croa, and mcmahon does not apply.5 1679g, which sets out the punishments available for violations cases separately. sections of the statute that expand upon the rights set out in federal policy favoring arbitration agreements." moses h. its waiver does not constitute a waiver of "compli- 2007); picard v. credit solutions, inc., 564 f.3d 1249 (11th black's law dictionary 1473 (bryan a. garner ed., 8th ed., in unusually comprehensive and precise language: "any tantly, the croa contains express language which precludes tor, we will substitute another nationally recognized issue."). we disagree. we must, if possible, interpret a statute such arbitration cases that we find unavailing. the third circuit on the ground that the croa evinces an intention to preclude us to examine legislative history or any inherent tension between arbitra- the credit providers characterize the language stating "you shorthand for the more "complicated" right to bring a claim consistent use of the word "right" indicates the waiver prohi- it could be used to "rebuild your credit," "rebuild poor credit," able from the situation here. as picard essentially follows and waivers of rights under the act, and require consumers to sign tion. pty dumpty with the statute, and we decline to accept the 220 (1987), when it determined whether section 29(a) of the gay also relies upon analogies to several supreme court phrase."). here, because the text of § 1679f(a) is not ambigu- . . . ." 15 u.s.c. § 1679f(a) (emphasis added). the act further made, rejected the argument. here, arbitration is challenged sole purpose is to set forth a disclosure statement to be com- mechanism. for example, punitive damages may be assessed waiving "compliance" with the act. id. we find this reasoning unpersua- 12082 greenwood v. compucredit corporation sons trading in securities must "comply." by its upon reasoning in supreme court cases that are distinguish- the tila evinces an intention to preclude a waiver of judicial judicial forum."); morrison v. colo. permanente med. group, ous, we need not turn to the title of the section to clarify its and only if required by the "unambiguously expressed intent make a written disclosure to consumers, the disclosure state- the motion to compel arbitration. the district court also or in equity for the revocation of any contract." 9 u.s.c. § 2. the statute. the anti-waiver clause explicitly states that any you have a right to obtain a copy of your credit statute. children's hosp. & health ctr. v. belshe, 188 f.3d the majority does not even address whether the legislative printed on the enclosed insert, which insert includes dispute resolution without result to the courts, and may be chrysler-plymouth, 473 u.s. 614, 628 (1985)). congress' did not apply to it. id. however, the plain text of 15 u.s.c. i remedies." id. instead, plaintiffs challenged arbitration the croa, the court concluded that the anti-waiver provision sacrificed."). we should be "hesitant to create such a split, larly likely to cause confusion, and lead consumers to procedure. because the costs and fees would be prohibitive. id. the u.s.c. § 1679g, which establishes civil liability for violations of use only when it sheds light on some ambiguous word or about a fictional right. under defendant's interpretation, con- plaintiffs suggests that congress actually considered the issue as pointed out by the court in mcmahon, the exchange the third right directly addresses the consum- 99 (w.d. mich. 2007) ("the inclusion of separate sections paragraph text specified by congress, which enumerates the § 1679c(a)] does not specify the forum for the resolution of [1] in this context, we also note that congress has mani- clude a waiver of judicial remedies, i would reverse the dis- different conclusion. in his business or property by reason of anything forbidden in information, see 15 u.s.c. § 1679(b), drafted a statute which 12081greenwood v. compucredit corporation dissent by judge tashima upon such an election, neither you nor we will 12083greenwood v. compucredit corporation be enforced by any federal or state court or any other per- exchange act only prohibits waivers of compliance with its for reconsideration. the credit providers filed a timely inter- dev. corp., 14 f.3d 1250, 1254 (7th cir. 1994) ("arbitration credit providers' invitation to go down that particular rabbit wanda greenwood; ladelle the third circuit also relies upon the supreme court's reasoning in congress intended" to limit a statute's reach. harrison v. the remainder of the statute supports the plain reading of the approach to resolution of claims. the eeoc for example, is motional materials noted there "was no deposit required," and 20, 25 (1991) (internal quotation marks omitted). specifically, the term "any right of the consumer" to apply to all the rights waiver provision invalidates any waiver of the right to sue. ferent things?"1 arbitration provision (agreement to arbi- in your credit report . . . . history of the croa or any inherent conflict between arbitra- gress was requiring that consumers be told a lie: that they pos- we realize this decision is in conflict with that of two of consumers brought this action in federal district court, and internet, and the other applied over the phone. and we should do so only after the most painstaking inquiry" regarding the language in 15 u.s.c. § 1679f(a). the section rules. in addition, you will not have the right to par- from being arbitrable, emphasizing that the federal arbitra- instead submit to arbitration. therefore, we affirm the district court to conclude that congress intended claims under the 12077greenwood v. compucredit corporation sue, (2) provide such information to the consumer in a sepa- "right to sue," (3) obtain from the consumer a signature con- eral courts). the right to sue protected by the croa cannot between arbitration and the [statute's] underlying purposes." novo. balen v. holland am. line inc., 583 f.3d 647, 652 (9th discuss consistently the terms "arbitration" and "civil action" rodriguez de quijas, 490 u.s. at 481-83. the court relied on the same dis- to preclude waiver "will be discoverable in the text of the the croa proscribes any "waiver by any consumer of any gress clearly indicated that arbitrators, mediators, and other u.s.c. § 1679f prohibits any waiver of this right. (maj. op. provided to every consumer "before any contract or agree- we cannot conclude that when congress used the word "sue," denied the credit providers' motion for leave to file motion of the parties rather than the judicial process.") (citation omit- "compliance" with the provisions of the statute. but cone mem'l hosp., 460 u.s. at 24. such language merely to find that a waiver of judicial remedies is precluded. alexan- cate is true and accurate to the best of my knowl- the district court correctly concluded that the arbitration is executed." id. § 1679c(a). 15 u.s.c. § 1679c(a)-(c). the disclosure document must be throughout the statute. see powerex corp v. reliant energy 12090 greenwood v. compucredit corporation thus requiring it be explicitly stated to all consumers, does not b rights, which appear in the disclosures section of the statute, of a consumer's right to sue, represent precisely the expres- history, nor any inherent conflict between the purpose of various states is preferable as long as individual justice is not ment of foreign arbitral awards favor arbitration for disputes 12071 certificate." the acceptance certificate includes the follow- finally, in green tree fin. corp.-ala. v. randolph, 531 sue" thus clearly involves the right to bring an action in a claims under the truth in lending act (tila) were arbitra- language of section 1679g does not preclude arbitration. inc., 569 f.3d 946, 955 (9th cir. 2009) (determining the plain zation within three business days. see rex, 507 f. supp. at think this language leads to such a clear and unilateral conclu- ("croa"), means "arbitrate." or, perhaps the question is, as the code of procedure ("naf rules") of the title" irrespective of a consumer's knowledge or intent. 15 above, this ignores the plain meaning of the word "sue." the text creating the right to sue, rather than requiring a different of national application on the basis of the flimsy evidence on a congressionally mandated enumeration of their rights under or state court or any other person." 15 u.s.c. § 1679f(a). 15 u.s.c. § 1679c. the first two rights concern rights that heading of a section cannot limit the plain meaning of the sue is void strikes the court as embracing an unhealthy regard than litigation, such as arbitration or mediation." id. at 86 directed to pursue `informal methods of conciliation, confer- 628 (1985). "[i]f congress intended the substantive protection 1011 (n. d. tex. 2005). "congress did not intend to void all in international commerce. the court concluded that it was treated as void; and (2) may not be enforced by any federal no application to the croa. unlike the exchange act, the the supreme court considered whether the language in 15 gress intended to preclude a waiver of a judicial forum for mon law or under statutes. it is a proceeding separate from lit- because i disagree with the majority's conclusion that con- 12085greenwood v. compucredit corporation you in court might not be available in arbitration. non-arbitrable. see rex, 507 f. supp. 2d at 800 ("in the for the northern district of california defendants-appellants. the court's denial of the motion to compel arbitration of the confirmations on file for two years from the date of signing. substantive obligations and the mandate of a judicial forum is the right to sue. of the croa. because § 1679g provides for civil liability, a tive rights afforded by the statute; it only submits to their res- tive provisions of croa even if compelled to arbitrate. see ment. see picard v. credit solutions, inc., 564 f.3d 1249, waiver of the right to a judicial forum, that intention would be rights embodied in the rest of the statute, particularly section such "flexibility" toward alternative methods of dispute reso- 29(a) prohibited waiver of the section 27 right to bring suit tashima, circuit judge, dissenting: i respectfully dissent. to sue is "[t]o institute a lawsuit against (another party)." u.s.c. § 15(a) rendered antitrust claims non-arbitrable in the we conclude that congress meant what it said § 1679c(a) does not confer this right upon consumers, and gress." gilmer, 500 u.s. at 29. appeal from the united states district court it really meant "arbitrate." the district court correctly read the by contrast, "arbitration" is "[a] method of dispute resolu- conflict between arbitration and croa's underlying purpose ers' argument: "you have the right to sue a credit repair orga- adjudication by binding arbitration is a question of law that 541 u.s. 176, 183 (2004) (citing conn. nat'l bank v. ger- in question here." id. at 1012. we agree with the district court arbitrated, including a jury trial, or to engage in pre- croa protects the enumerated "right to sue," by treating as terms, § 29(a) only prohibits waiver of the substan- with these principles in mind, we turn to the credit report- sue in court for croa violations. actually providing the substantive rights indicates that the lan- the credit providers moved to compel arbitration of consum- "any other person" language of section 1679f(a) assures that sumers with the "right to sue." 15 u.s.c. § 1679c. the "right afforded by a given statute to include protection against 15 u.s.c. § 1679f(a)(1)-(2). thus, the organization might croa to be nonarbitrable."). in addition, there is no inherent § 1679g(a)(2)(a), (b) (emphasis added). thus, the language in outcome. 1183-84 (9th cir. 1999). be satisfied by replacing it with an opportunity to submit a confer a non-waivable right to a judicial forum. apply. unjust result which congress could not have intended.' " a judicial, rather than an arbitral, forum for croa viola- nois, james r. mcguire, morrison & foerster llp, san bition applies to the "right to sue," as identical words in a stat- in addition, credit providers argue the language "right to the "summary of credit terms" contains the following: "summary of credit terms" and "terms of offer" arbitration organization utilizing a similar code of which is "[a] procedure for settling a dispute by means other appears is entitled `noncompliance with this subchapter.' " llp, washington, d.c., for the defendants-appellants. the only other circuits to have ruled on this issue are in agree- any substantive rights, including the right to sue. rather, its you have a right to dispute inaccurate information u.s.c. § 1679c(a). in addition, each credit repair organization tion act and the convention on the recognition of enforce- received the card. in aggregate, the card had $257 in fees the § 27 itself does not impose any duty with which per- waiver of any right by the consumer "shall be treated as void" credit report, and 15 u.s.c. § 1679e(a) provides a consumer conferred within chapter 41 of title 15, thus indicating that any claim, dispute or controversy (whether in than mere noncompliance. "[h]eadings and titles are not viders"). 877 (9th cir. 2001) (en banc). if the statutory language is sion in . . . a contract evincing a transaction involving com- sue" was used in the section because it is more "understand- by signing, i request an aspire visa card and ask guage in the disclosures in § 1679c does not create any rights. locutory appeal challenging the denial of the motion to com- court, finding no showing regarding prohibitive costs was with the right to cancel a contract with a credit repair organi- pose even credit providers have ascribed to it. the language rights provided for elsewhere in the croa. see rex v. csa- credit providers first argue that, by placing the "right to waiver by any consumer of any protection provided by or any ence, and persuasion,' 29 u.s.c. § 626(b), which suggests "simplified" restatement for consumers of the "substantive" the "terms of offer" states: ("[a]rbitration is a contractual right that is generally predi- permits "knowing and voluntary" waiver of statutory rights, arbitration pursuant to this arbitration provision and united states." the court held that this section did not evi- the agreement also provides, "this agreement, and your this sufficient to demonstrate congress intended that consum- ter or the rules and regulations thereunder, and of all suits in edge. i have read and agree to the be bound by the ticipate as representative or member of any class of voluntary." however, the adea does not explicitly provide ppg indus., inc., 446 u.s. 578, 588-89 (1980). thus, we read ble, and enforceable, save upon such grounds as exist at law 482 u.s. 220, 227 (1987) ("the burden is on the party oppos- non-waivable right under 15 u.s.c. § 1679f. actually chosen by congress should be given effect because void "[a]ny condition, stipulation, or provision binding any a discussion of arbitration applicable to my account, against another in a court of law." id. at 1475 (emphasis consumers have in relation to credit bureaus, which are not tinctly different from arbitration. see eljer mfg., inc. v. kowin croa and arbitration shows that congress intended to pre-


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