Laverne Jones v. Bernaldo Dancel

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2160

LAVERNE JONES; STACEY JONES, f/k/a Stacey Ness; KERRY NESS,
Individually and on behalf of the Certified Class,

Plaintiffs - Appellants,

v.

BERNALDO DANCEL; AMERIX CORPORATION; 3C INCORPORATED;
CAREONE SERVICES, INCORPORATED; ASCEND ONE CORPORATION,

Defendants – Appellees.

-------------------------

CIVIL JUSTICE, INC.; PUBLIC JUSTICE CENTER, INC.; MARYLAND
CONSUMER RIGHTS COALITION, INC.,

Amici Supporting Appellants.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:14-cv-02375-JFM)

Argued: May 12, 2015 Decided: July 6, 2015

Before TRAXLER, Chief Judge, and GREGORY and KEENAN, Circuit
Judges.

Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Chief Judge Traxler and Judge Gregory joined.
ARGUED: G. Oliver Koppell, LAW OFFICES OF G. OLIVER KOPPELL &
ASSOCIATES, New York, New York, for Appellants. Lawrence S.
Greenwald, GORDON FEINBLATT LLC, Baltimore, Maryland, for
Appellees. ON BRIEF: Peter A. Holland, THE HOLLAND LAW FIRM,
P.C., Annapolis, Maryland; Gregory S. Duncan, LAW OFFICE OF
GREGORY S. DUNCAN, Charlottesville, Virginia; Joseph S. Tusa,
TUSA P.C., Southold, New York, for Appellants. Catherine A.
Bledsoe, Brian L. Moffet, GORDON FEINBLATT LLC, Baltimore,
Maryland, for Appellees. Joseph S. Mack, CIVIL JUSTICE, INC.,
Baltimore, Maryland, for Amici Curiae.

2
BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, we consider whether the district court

erred in denying a motion to vacate certain aspects of an

arbitration award. The subject of the parties’ dispute involved

various “credit repair” services provided to plaintiff

consumers, for which some of the disclosure requirements of the

Credit Repair Organizations Act (CROA, or the Act), 15 U.S.C.

§ 1679 et seq., were not met. The arbitrator awarded the

plaintiffs only punitive damages for those violations, finding

that the plaintiffs had failed to prove actual damages under the

Act. The arbitrator also determined that the amounts of

attorneys’ fees and costs requested by the plaintiffs under CROA

were unreasonable. The plaintiffs argue that in reaching these

conclusions, the arbitrator manifestly disregarded the law and

exceeded the scope of his authority under the Federal

Arbitration Act (FAA), 9 U.S.C. § 1 et seq.

We hold that the district court did not err in declining to

vacate the challenged portions of the arbitration award.

Accordingly, we affirm the district court’s judgment.

I.

Between 1998 and 2003, plaintiffs Laverne Jones, Stacey

Jones, and Kerry Ness entered contracts to participate in debt

management programs with a credit counseling agency, Genus

3
Credit Management Corporation (Genus). Under those contracts,

among other things, the plaintiffs authorized Genus to seek

reductions in the plaintiffs’ debt owed to their creditors, and

to withdraw various amounts from the plaintiffs’ bank accounts

for monthly payments to those creditors. The contracts each

contained the following arbitration provision:

Any dispute between us that cannot be
amicably resolved, and all claims or
controversies arising out of this Agreement,
shall be settled solely and exclusively by
binding arbitration in the City of Columbia,
Maryland, administered by, and under the
Commercial Arbitration Rules then prevailing
of, the American Arbitration Association (it
being expressly acknowledged that you will
not participate in any class action lawsuit
in connection with any such dispute, claim,
or controversy, either as a representative
plaintiff or as a member of a putative
class), and judgment upon the award rendered
by the arbitrator(s) may be entered and
enforced in any court of competent
jurisdiction.

Although Genus represented itself as a non-profit

organization providing debt management services free of charge,

Genus accepted “voluntary” contributions from the plaintiffs

(voluntary contributions) as well as “voluntary contributions

from [participating] creditors” (fair share payments). Genus

contracted with other corporations, including Amerix Corporation

(Amerix) and its affiliates, to perform critical functions such

as marketing, enrollment, and payment processing services, and

4
paid those corporations significant portions of the voluntary

contributions and fair share payments that Genus received.

In 2004, the plaintiffs jointly filed a class action

complaint against Genus, Amerix, and several other defendants

(collectively, the original defendants) in the United States

District Court for the District of Maryland, alleging a

conspiracy to commit violations of federal and state law. The

district court dismissed the action, holding that the

arbitration provisions in the plaintiffs’ contracts required

that the plaintiffs arbitrate their claims. See Jones v. Genus

Credit Mgmt. Corp., 353 F. Supp. 2d 598, 602-03 (D. Md. 2005).

The court later supplemented its decision, directing that an

arbitrator first should decide whether any arbitration would

involve class-wide claims or only individual claims asserted by

the plaintiffs. See Genus Credit Mgmt. Corp. v. Jones, 2006 WL

905936, at *1 (D. Md. Apr. 6, 2006) (unpublished).

The plaintiffs accordingly initiated an arbitration action

alleging individual and class claims against the original

defendants, seeking damages in excess of $270 million on behalf

of themselves and a nation-wide class of consumers. 1 By the time

1 In the district court, the original defendants filed a
civil action in which they unsuccessfully challenged the
arbitrator’s determination “that, in the abstract, the
arbitration between the Underlying Plaintiffs and the Underlying
Defendants could proceed as a class arbitration.” Amerix Corp.
(Continued)
5
the arbitration had proceeded to a hearing on the merits of the

plaintiffs’ claims, the claims included alleged violations of:

(1) CROA; (2) the Racketeer Influenced and Corrupt Organizations

Act (RICO), 18 U.S.C. § 1961 et seq.; (3) the Maryland Consumer

Protection Act (MCPA), Md. Code, Com. Law § 13-101 et seq.; (4)

the Maryland Debt Management Services Act (MDMSA), Md. Code,

Fin. Inst. § 12-901 et seq.; and (5) Maryland common law on

matters of fraud and breach of fiduciary duty.

After discovery was completed, the arbitrator certified a

nation-wide class of consumers only with regard to the

plaintiffs’ CROA and MCPA claims. 2 The district court confirmed

the arbitrator’s class certification, and we affirmed the

district court’s judgment on appeal. See Genus Credit Mgmt.

Corp. v. Jones, No. 1:09-cv-01498-JFM (D. Md. Sept. 8, 2009),

aff’d, Amerix Corp. v. Jones, 457 F. App’x 287 (4th Cir. Dec. 9,

2011) (unpublished per curiam). However, by the time of our

v. Jones, 457 F. App’x 287, 290 (4th Cir. Dec. 9, 2011); see
Genus Credit Mgmt. Corp. v. Jones, No. 1:05-cv-03028-JFM (D. Md.
Apr. 6, 2006). The defendants did not appeal the district
court’s dismissal of this civil action. See Amerix, 457 F.
App’x at 290.

2Initially, the arbitrator also certified a class with
respect to the plaintiffs’ RICO and unjust enrichment claims.
However, the arbitrator later decertified the class with respect
to the RICO claims, and noted in his final award that the
plaintiffs’ unjust enrichment claims had been removed from the
arbitration by the time of the final merits hearing.

6
decision in that appeal, some of the original defendants had

entered into class-wide settlements with the plaintiffs. The

arbitrator approved the plaintiffs’ settlements with these

original defendants and awarded more than $2.6 million in

attorneys’ fees, noting that the proceedings had been pending

for over five years and that the work of plaintiffs’ counsel had

been “exemplary.” Following the settlements, the defendants

remaining in the case included Amerix, Amerix’s founder Bernaldo

Dancel (Dancel), and several of Amerix’s affiliates.

After extensive hearings, the arbitrator issued an 80-page

final arbitration award granting the plaintiffs only partial

relief on their claims. The arbitrator rejected the plaintiffs’

RICO and MCPA claims as well as the plaintiffs’ other state law

claims, including the alleged MDMSA violations, breaches of

fiduciary duty, and common law fraud claims.

With respect to a subset of the plaintiffs’ class and

individual claims brought under CROA, the arbitrator found that

the defendants were liable for certain statutory violations. In

particular, the arbitrator concluded that the defendants were

“credit repair organizations” within the meaning of CROA, 3 and

3
The arbitrator found that defendants Amerix, Dancel, 3C
Incorporated, and CareOne Services, Incorporated, constituted
credit repair organizations because their “business of improving
creditworthiness is an activity sufficiently close to the
literal reading of CROA as to bring that business within its
(Continued)
7
that although the plaintiffs had not proved that the defendants

violated the Act by making untrue or misleading statements 4 or by

unlawfully billing consumers for debt management services, 5 the

evidence nonetheless showed that the defendants had failed to

make certain disclosures to consumers mandated under the Act.

Those disclosure provisions required that the defendants

take particular action to inform consumers of their rights under

federal and state law. See 15 U.S.C. § 1679c (requiring credit

repair organizations to provide consumers with a document

summarizing their right to accurate information in certain

credit reports); § 1679d (requiring that any contract between a

regulatory ambit.” The arbitrator did not make any such finding
regarding defendant Ascend One Corporation (Ascend One), given
the arbitrator’s earlier conclusion that Ascend One was not a
successor to Amerix for liability purposes. Although we observe
that this finding was not challenged on appeal, we continue to
refer to the defendants in the collective sense for the purposes
of this opinion.

4 See 15 U.S.C. § 1679b(a)(3) (prohibiting the making or
usage of “any untrue or misleading representation of the
services of the credit repair organization”).

5 See 15 U.S.C. § 1679b(b) (“No credit repair organization
may charge or receive any money or other valuable consideration
for the performance of any service which the credit repair
organization has agreed to perform for any consumer before such
service is fully performed.”). The plaintiffs urge that the
arbitrator held that the defendants violated this subsection of
the statute, but there is no support in the record for this
assertion. Indeed, the arbitrator concluded that voluntary
contributions were not amounts required for the exchange of
credit repair services.

8
credit repair organization and a consumer contain specific terms

and conditions of payment, a detailed description of the

services to be performed, information identifying the credit

repair organization, and a conspicuous statement regarding the

consumer’s right to cancel the contract); § 1679e(b) (requiring

credit repair organizations to supply consumers with

cancellation forms, as well as copies of completed contracts and

any other signed documents). Although the arbitrator recognized

that the defendants “did make a number of disclosures that

either met some of the [statutory] requirements or came

reasonably close to doing so,” the arbitrator nevertheless

concluded that “[a]lmost is not good enough,” and that the

defendants’ violations “denied hundreds of thousands of

consumers the information and options that should have been

given to them under the disclosure requirements of CROA.”

In determining the amount of compensatory damages to award

the plaintiffs for the defendants’ statutory violations, the

arbitrator observed that the plaintiffs sought compensation only

for the voluntary contributions of certain class members as

damages under CROA’s actual damages provision, 15 U.S.C.

§ 1679g(a)(1)(B). Under that statute, actual damages include

“any amount paid by the person to the credit repair

organization.” 15 U.S.C. § 1679g(a)(1)(B).

9
 The arbitrator interpreted this actual damages provision as

contemplating payment from a consumer on a quid pro quo basis in

return for a defined credit repair service. The arbitrator

reasoned that this interpretation was consistent with use of the

term “payment” elsewhere in the statute, as well as with general

legal definitions of that term. Applying this interpretation,

the arbitrator concluded that the plaintiffs’ voluntary

contributions were not “amount[s] paid” under Section

1679g(a)(1)(B), primarily because a significant percentage of

class members did not make any voluntary contributions in

exchange for credit repair services. Accordingly, the

arbitrator declined to award any actual damages under CROA.

The arbitrator concluded, however, that the plaintiffs

could recover for certain violations under CROA’s punitive

damages provision, 15 U.S.C. § 1679g(a)(2). Noting that

defendants Amerix and Dancel did not observe CROA’s disclosure

requirements when they “should have perceived that CROA applied

to their business,” the arbitrator analyzed those defendants’

financial data, their ability to pay a judgment, and the nature

of their misconduct. Based on those factors, the arbitrator

awarded the plaintiffs $1,948,264 in punitive damages, jointly

10
and severally against Amerix and Dancel. 6 The arbitrator

explained that in his view, this amount would “serve as a

powerful deterrent,” was “well within” the financial

capabilities of Amerix and Dancel, and would not “put [them] out

of business []or into bankruptcy.”

Finally, the arbitrator considered the plaintiffs’ request

for several million dollars in attorneys’ fees and costs. This

request was in addition to the fees of about $2.6 million

already awarded in the case. Although the arbitrator recognized

that under CROA, defendants “shall be liable” to successful

plaintiffs for “the costs of the action, together with

reasonable attorneys’ fees,” 15 U.S.C. § 1679g(a)(3), the

arbitrator found that the additional fee and cost requests were

unreasonable. The arbitrator explained that plaintiffs’ counsel

had failed to account separately for time spent on successful

claims and time spent on unsuccessful claims. The arbitrator

also found that plaintiffs’ counsel had failed to substantiate

proposed lodestar billing rates, and had submitted time and

expense entries that otherwise were “defective.”

6
After finding that it would be “neither practical nor
required to distribute de minimis amounts” of the award of
punitive damages to the 487,066 class members, the arbitrator
ruled that those damages should be distributed in equal portions
to two cy pres recipients, namely, the National Consumer Law
Center and the National Association of Consumer Advocates. In
addition, the arbitrator granted incentive awards to the three
class representatives.

11
 Treating the attorneys’ fees already received by

plaintiffs’ counsel from the prior settlements as “set-offs”

against the amounts sought, the arbitrator concluded that any

amounts payable for the items that were substantiated were

exceeded by the greater amounts the attorneys already had

received. Accordingly, the arbitrator declined to award

additional attorneys’ fees or costs.

The plaintiffs filed the present civil action in the

district court, challenging the arbitrator’s refusal to award

actual damages and additional attorneys’ fees and costs, and

seeking to confirm the arbitrator’s award of punitive damages.

The district court held that based on the “limited” standard of

review applicable to arbitration awards, as well as the

“thoughtful and well-considered” nature of the arbitrator’s

conclusions, “there is absolutely no basis for overturning the

arbitrator’s decision.” Accordingly, the court granted the

plaintiffs’ motion to confirm in part the arbitrator’s final

award, and denied the plaintiffs’ motion to vacate in part the

final award. The plaintiffs timely appealed the district

court’s denial of their motion to vacate.

II.

The plaintiffs argue that the district court committed

reversible error by refusing to vacate the arbitrator’s finding

12
that the plaintiffs failed to establish under CROA: (1) actual

damages; or (2) a basis for additional attorneys’ fees and

costs. The plaintiffs assert that the arbitrator ignored or

fundamentally misinterpreted the relevant provisions of the Act,

thereby manifestly disregarding the law and exceeding his powers

under Section 10(a)(4) of the FAA. We review de novo the

district court’s denial of a motion to vacate an arbitration

award. Wachovia Sec., LLC v. Brand, 671 F.3d 472, 478 (4th Cir.

2012).

A.

We first examine the standard of review that applies to a

district court’s review of an arbitration award. In

articulating this standard, we focus on the plaintiffs’ argument

that although judicial review of an arbitration award in federal

court ordinarily is very limited, such a narrow focus is

inappropriate here because the arbitrator’s decision involved

the resolution of statutory claims. We disagree with the

plaintiffs’ contention.

The FAA provides four grounds on which an arbitration award

may be vacated. Those grounds are: (1) when the award was

procured by corruption, fraud, or undue means; (2) when there

was evident partiality or corruption on the part of an

arbitrator; (3) when an arbitrator was guilty of misconduct in

refusing to postpone the hearing, upon sufficient cause shown,

13
or in refusing to hear evidence pertinent and material to the

controversy; or of any other misbehavior causing prejudice to

the rights of any party; or (4) when an arbitrator exceeded his

or her powers, or so imperfectly executed them that a mutual,

final, and definite award upon the subject matter submitted was

not made. 9 U.S.C. § 10.

The Supreme Court explained in Hall Street Associates, LLC

v. Mattel, Inc., 552 U.S. 576 (2008), that under the FAA, a

court “must” confirm an arbitration award “unless” a party to

the arbitration demonstrates that the award should be vacated

under one of the above four enumerated grounds. Id. at 582.

After the decision in Hall Street, we further have clarified

that an arbitration award may be vacated when the arbitrator

“manifestly disregards” the law. Wachovia Sec., 671 F.3d at

483.

As a general matter, however, judicial review of an

arbitration award in federal court is “severely circumscribed”

and “among the narrowest known at law.” Id. at 478 (quotation

omitted); Apex Plumbing Supply, Inc. v. U.S. Supply Co., 142

F.3d 188, 193 (4th Cir. 1998). Such limited review is

appropriate given the fact that the arbitral forum is designed

to assist parties in avoiding much of the expense and delay that

often is associated with litigation. See Apex Plumbing Supply,

142 F.3d at 193. Thus, we have emphasized that a district court

14
may not overturn an arbitration award “just because it believes,

however strongly, that the arbitrators misinterpreted the

applicable law.” Wachovia Sec., 671 F.3d at 478 n.5 (citation

omitted).

The plaintiffs argue, nevertheless, that these principles

do not govern the present case because the arbitrator considered

remedies created by statute, rather than rights established by

contract. In support of their position, the plaintiffs rely on

two Supreme Court decisions addressing the arbitration of

federal statutory claims.

In the first of these decisions, Gilmer v.

Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), the

plaintiffs focus solely on the Court’s statement that “by

agreeing to arbitrate a statutory claim, a party does not forgo

the substantive rights afforded by the statute; it only submits

to their resolution in an arbitral, rather than a judicial,

forum.” Id. at 26 (brackets, citation, and internal quotation

marks omitted). Contrary to the plaintiffs’ contention,

however, this statement does not alter the standard for judicial

review of an arbitration award involving statutory remedies, but

simply emphasizes that such remedies are available in

arbitration proceedings as well as in our courts. Thus, in

Gilmer, the Court held that a claim under the Age Discrimination

in Employment Act (ADEA) was subject to the parties’ prior

15
agreement to arbitrate disputes arising out of a worker’s

employment, because arbitration was not precluded by the text,

legislative history, or underlying purposes of the ADEA, and did

not deprive the plaintiff of a fair opportunity to present his

claim. Id. at 26-33.

The second decision cited by the plaintiffs, CompuCredit

Corp. v. Greenwood, 132 S. Ct. 665 (2012), likewise fails to

support the plaintiffs’ argument for heightened judicial review

of arbitration decisions involving statutory claims. In

CompuCredit, the Court upheld an agreement compelling the

arbitration of CROA claims, holding that although CROA prohibits

the waiver of any right granted under the Act, CROA does not

prevent parties from agreeing to arbitrate claims arising under

its provisions. 7 Id. at 669-73.

In contrast to the claimants in Gilmer and CompuCredit, the

plaintiffs here do not dispute the enforceability of the

7 We have reached similar conclusions with respect to the
enforceability of arbitration agreements requiring the
arbitration of federal statutory claims. See, e.g., In re
Cotton Yarn Antitrust Litig., 505 F.3d 274 (4th Cir. 2007)
(concluding that plaintiffs failed to meet their burden of
showing that the no-joinder terms and one-year limitations
periods of their arbitration agreements prevented them from
vindicating their rights under antitrust laws); Bradford v.
Rockwell Semiconductor Sys., Inc., 238 F.3d 549 (4th Cir. 2001)
(rejecting challenge to a fee-splitting provision in an
agreement compelling arbitration of discrimination claims,
reasoning that such a provision does not necessarily deprive
claimants of an adequate forum in which to resolve their
statutory rights).

16
arbitration provisions in their contracts, but seek heightened

scrutiny of the arbitrator’s decision. Thus, the plaintiffs’

argument fails because it is nothing more than an attempt to

revive an argument squarely rejected in Gilmer, in which the

Court explained that although a narrow standard of review

applies to arbitrators’ decisions regarding statutory claims,

“such review is sufficient to ensure that arbitrators comply

with the requirements of the statute at issue.” Id. at 32 n.4

(citation and internal quotation marks omitted). Accordingly,

in view of the Court’s clear language rejecting the plaintiffs’

position, we proceed to consider the merits of their appeal

under the “extremely limited” standard of review that governs

our analysis. See Wachovia Sec., 671 F.3d at 478 n.5.

B.

The plaintiffs argue that the district court erred by

refusing to vacate the arbitration award on the ground that the

arbitrator manifestly disregarded the law. A court may vacate

an arbitration award under the manifest disregard standard only

when a plaintiff has shown that: (1) the disputed legal

principle is clearly defined and is not subject to reasonable

debate; and (2) the arbitrator refused to apply that legal

principle. Id. at 483. Moreover, as we have observed, the

manifest disregard standard is not an “invitation to review the

merits of the underlying arbitration,” id., or to establish that

17
the arbitrator “misconstrued” or “misinterpreted the applicable

law.” 8 Id. at 478 n.5 & 481.

We conclude that the plaintiffs have failed to satisfy

their burden of showing that the arbitrator manifestly

disregarded the law. The plaintiffs fall far short of meeting

this burden because their argument, reduced to its essence, does

nothing more than challenge the arbitrator’s interpretation of

applicable law.

In particular, the plaintiffs argue that the arbitrator

manifestly disregarded the plain text of CROA’s actual damages

provision. Under that provision, a person who has established

that a credit repair organization is liable under the Act may

recover “any amount paid by the person to the credit repair

organization.” 15 U.S.C. § 1679g(a)(1)(B). The plaintiffs

contend that Section 1679g(a)(1)(B) clearly includes certain

forms of damages that the arbitrator concluded were beyond the

8We are not persuaded by amici curiae that we should
revisit our standard for manifest disregard. Amici cite Cole v.
Burns International Security Services, 105 F.3d 1465 (D.C. Cir.
1997), in which the D.C. Circuit held that an arbitration
agreement was enforceable, and stated that in cases involving
“novel or difficult legal issues,” courts may “review an
arbitrator’s award to ensure that its resolution of public law
issues is correct.” Id. at 1487. We have not adopted Cole, and
discern no reason to do so here. See Wachovia Sec., 671 F.3d at
483 (observing that our two-part test “has for decades
guaranteed that review for manifest disregard not grow into the
kind of probing merits review that would undermine the
efficiency of arbitration”).

18
scope of the statute, including the fair share payments remitted

by participating creditors and the voluntary contributions made

by certain plaintiffs. We disagree.

At the outset, we observe that at the final arbitration

hearing, the plaintiffs abandoned the argument that they were

entitled to receive fair share payments as actual damages. 9

Therefore, we consider only the arbitrator’s determination that

voluntary contributions did not constitute “amount[s] paid”

under Section 1679g(a)(1)(B).

With respect to that determination, we cannot say that the

arbitrator’s interpretation fell beyond the scope of reasonable

debate. The arbitrator construed the actual damages provision

in the context of the statute as a whole, observing that another

section of the Act defined a “credit repair organization” by

referencing the sale, provision, or performance of credit repair

9 We note, however, that even if the plaintiffs had
preserved the argument, the arbitrator considered the competing
arguments regarding whether the fair share payments qualified as
actual damages under the Act. On the one hand, the arbitrator
observed, those amounts were remitted by third-party creditors,
and therefore may not qualify as amounts paid
“by the person” under Section 1679g(a)(1)(B). On the other
hand, the arbitrator noted that the amounts could be considered
“indirect payments” by the consumer. The existence of
reasonable debate on the subject undermines the plaintiffs’
position that the applicability of CROA’s actual damages
provision was clearly defined.

19
services “in return for the payment of money or other valuable

consideration.” 10 15 U.S.C. § 1679a(3).

Given the absence of binding precedent requiring a contrary

result, we conclude that the arbitrator’s determination, that

“amount[s] paid” under the Act were limited to sums paid by the

plaintiffs in return for the defendants’ services, did not

constitute a refusal to heed a clearly defined legal principle.

Wachovia Sec., 671 F.3d at 483. Although another arbitrator

might have reached a different conclusion and found that the

Act’s actual damages provision covered all amounts paid,

irrespective whether the payments were “required” for the

exchange of credit repair services, it is not for us to pass

judgment on the strength of the arbitrator’s chosen rationale.

See id. at 481. Thus, we hold that the arbitrator did not

10 The plaintiffs assert that the arbitrator’s conclusion
that the voluntary contributions did not constitute “amount[s]
paid by the person” under 15 U.S.C. § 1679g(a)(1)(B) is
“irrevocably inconsistent” with his earlier conclusion that the
some of the defendants constituted credit repair organizations
under 15 U.S.C. § 1679a(3), because those defendants rendered
credit repair services “in return for the payment of money or
other valuable consideration.” As the defendants point out,
however, the plaintiffs’ argument fails to appreciate that
Section 1679g(a)(1)(B) operates only with respect to amounts
paid “by the person,” whereas Section 1679a(3) broadly defines a
“credit repair organization” in terms of amounts paid by any
person in exchange for credit repair services.

20
manifestly disregard the law by determining that the plaintiffs

failed to prove actual damages under the Act. 11

We next consider the plaintiffs’ argument regarding their

request for additional attorneys’ fees and costs. According to

the plaintiffs, the arbitrator’s refusal to award the additional

amounts requested violated CROA, which directs that a plaintiff

recover “[i]n the case of any successful action to enforce any

liability under [the actual damages or punitive damages

provisions], the costs of the action, together with reasonable

11We also find no merit in the plaintiffs’ other challenges
to the arbitrator’s refusal to award actual damages. First, the
plaintiffs argue that the arbitrator ignored CROA and imposed
his own “personal notions of right and wrong” by expressing
concern for whether a damages award would “put [the defendants]
out of business []or into bankruptcy.” This argument
misrepresents the arbitrator’s statements regarding the
financial status of two defendants, which statements were made
exclusively in the context of measuring the extent of punitive
damages. In considering the deterrent or punitive effect of
punitive damages, it is well accepted that a court may consider
a defendant’s “ability to pay.” See, e.g., Saunders v. B.B. &
T. Co. of Va., 526 F.3d 142, 154-55 (4th Cir. 2008) (citing TXO
Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 462 n.28
(1993) (plurality opinion)).

Second, the plaintiffs argue that in refusing to award
actual damages under CROA, the arbitrator disregarded a Maryland
statute providing that no person may require a voluntary
contribution from consumers for debt management services. We
observe, however, that the arbitrator found that the defendants
did not require voluntary contributions from the plaintiffs.
Moreover, we fail to see how an alleged violation of a state
statute bears on the question whether the arbitrator manifestly
disregarded the law when he refused to award actual damages
under CROA, a federal statute.

21
attorneys’ fees.” 15 U.S.C. § 1679g(a)(3). We disagree with

the plaintiffs’ argument.

As the arbitrator correctly observed, a plaintiff seeking

to recover attorneys’ fees under a fee-shifting statute bears

the burden of demonstrating that the requested fees are

reasonable. See Fair Hous. Council of Greater Washington v.

Landow, 999 F.2d 92, 97-98 (4th Cir. 1993). We similarly have

observed that a plaintiff seeking to recover costs is entitled

to compensation only for “reasonable litigation expenses.” See

Daly v. Hill, 790 F.2d 1071, 1084 (4th Cir. 1986).

In the present case, the arbitrator found that the

additional amounts of attorneys’ fees and costs requested were

unreasonable. The arbitrator identified several serious

deficiencies with the plaintiffs’ fee request, including

counsel’s use of “block billing” practices, quotation of

unjustified billing rates, and submission of time entries that

failed to segregate successful claims from unsuccessful claims.

The arbitrator also noted that plaintiffs’ counsel submitted

improper requests for questionable litigation expenses,

including “bills from costly restaurants” and excessive travel

and lodging costs.

In view of these circumstances, we conclude that the

arbitrator did not refuse to heed any clearly defined legal

principles. Instead, the arbitrator correctly observed that

22
given the existence of such serious deficiencies, he had the

authority to disallow the fee request in its entirety. See Fair

Hous. Council, 999 F.2d at 97 (forbidding plaintiffs from

submitting “a fee request which is merely an opening bid in the

quest for an award”). Although he elected not to dismiss all

the requested fees and costs in summary fashion, the arbitrator

nevertheless effectively disallowed what he concluded were

unreasonable attorneys’ fees and costs, by significantly

reducing the requested amounts and by “setting off” the

attorneys’ fees and costs that plaintiffs’ counsel already had

received from prior settlements. 12 While it may be debatable

whether the arbitrator performed this task “well,” the record in

this case shows that the arbitrator undertook a careful analysis

of the applicable legal principles and reached a decision

supported by his interpretation of our precedent. Wachovia

Sec., 671 F.3d at 478 n.5. Accordingly, we reject the

12 The plaintiffs challenge the method by which the
arbitrator performed the lodestar analysis under the Supreme
Court’s decision in Perdue v. Kenny A. ex rel. Winn, 559 U.S.
542, 552-53 (2010), as well as the extent to which the
arbitrator explicitly considered the twelve factors adopted by
this Court to determine the adequacy of awards of attorneys’
fees in Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 n.28 (4th
Cir. 1978). We find no basis to vacate the arbitration award,
given that the arbitrator explicitly considered Perdue and
appears to have incorporated the factors set forth in Barber in
his analysis of the reasonableness of attorneys’ billing rates
and time expended on successful claims.

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plaintiffs’ various arguments regarding their request for

additional attorneys’ fees and costs.

C.

Finally, the plaintiffs advance an alternative argument

that the arbitrator exceeded his powers under Section 10(a)(4)

in his rulings on actual damages, attorneys’ fees, and costs.

We disagree.

By its terms, Section 10(a)(4) allows courts to vacate

arbitration awards only when arbitrators “exceeded their powers,

or so imperfectly executed them that a mutual, final, and

definite award upon the subject matter submitted was not made.”

9 U.S.C. § 10(a)(4). As the Supreme Court recently observed in

Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064 (2013), a

plaintiff seeking relief under this provision bears the “heavy

burden” of showing that the arbitrator acted outside the scope

of the authority granted by the parties in their contract, by

“issuing an award that simply reflects his own notions of

economic justice.” Id. at 2068 (citations, brackets, and

internal quotation marks omitted).

Here, the plaintiffs do not argue that the arbitrator

failed to observe any limitations on his authority imposed by

the relevant arbitration provisions in the parties’ contracts.

Instead, the plaintiffs merely restate a theory that we already

have rejected, namely, that the arbitrator misinterpreted

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various legal principles. Moreover, as we already have

discussed, the plaintiffs have misrepresented the record by

characterizing the arbitrator’s analysis of appropriate punitive

damages as reflecting the arbitrator’s “notions of economic

justice.” Id. (citation and brackets omitted); see supra note

11. Because the arbitrator interpreted the parties’ arbitration

provision and the applicable legal authorities in rendering the

award in the present case, we hold that the arbitrator did not

exceed the scope of his contractually delegated authority under

Section 10(a)(4) of the FAA. 13

III.

For these reasons, we affirm the district court’s judgment.

AFFIRMED

13We find no merit in the plaintiffs’ separate assertion
that the length and form of the district court’s written order
shows that the court failed to perform sufficient judicial
review of the arbitrator’s final award. Indeed, we conclude
that the district court’s order properly observed that judicial
review of arbitration decisions was “limited,” that the
arbitrator’s decision in this case was “thoughtful and well-
considered,” and that there was “no basis for overturning that
decision.”

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