Walton v. Rose Mobile Homes

REVISED AUGUST 16, 2002

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-60742
_____________________

THOMAS E. WALTON; LE’ELLEN WALTON,

Plaintiffs-Appellees,

v.

ROSE MOBILE HOMES LLC; ET AL.,

Defendants,

SOUTHERN ENERGY HOMES, INC.,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Mississippi

_________________________________________________________________
July 30, 2002
Before KING, Chief Judge, and JOLLY and EMILIO M. GARZA, Circuit
Judges.

E. GRADY JOLLY, Circuit Judge:

Defendant-Appellant Southern Energy Homes, Inc. appeals the

district court’s denial of its motion to compel arbitration of the

Waltons’ claim for breach of express written warranty under the

Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301-12 (1994). For the

following reasons, we REVERSE.
 I

In January 1999, Plaintiffs-Appellees Thomas and Le’Ellen

Walton (“the Waltons”) purchased a mobile home manufactured by

Defendant-Appellant Southern Energy Homes, Inc. (“Southern Energy”)

from a retail seller, Rose Mobile Homes (“Rose”). Southern Energy

issued the Waltons a one-year manufacturer’s warranty against

defects in materials and workmanship. This warranty contained an

arbitration provision requiring the Waltons to submit any claims

under the warranty to binding arbitration.1

The Waltons discovered a variety of defects in their mobile

home. They requested repairs from both Southern Energy and Rose on

numerous occasions, but these repairs never were completed to the

Waltons’ satisfaction. Consequently, in October 1999, the Waltons

revoked their acceptance of the mobile home by letter.

1
The sales contract also contained a binding arbitration
provision that stated: “[A]ny controversy or claim . . . arising
out of or relating to this Contract or any agreements or
instruments relating to or delivered in connection with this
Contract . . . shall . . . be determined by arbitration, reference,
or trial by a judge as provided below. A controversy involving
only a single claimant, or claimants who are related or asserting
claims arising from a single transaction, shall be determined by
arbitration [pursuant to the Federal Arbitration Act].” Separate
and apart from the warranty and the sales contract, Thomas Walton
also signed a “Binding Arbitration Agreement” at the time of sale.
This agreement stated: “All disputes . . . resulting from or
arising out of the design, manufacture, warranty or repair of the
manufactured home . . . will be submitted to BINDING ARBITRATION
[pursuant to the Federal Arbitration Act].”

2
 In December 1999, the Waltons filed suit against Southern

Energy and Rose2 in the Circuit Court of Kemper County,

Mississippi, alleging negligence, breach of contract, breach of

express and implied warranties, and violation of the Magnuson-Moss

Warranty Act (the “MMWA”).3 The defendants removed the case to

federal district court pursuant to 28 U.S.C. § 1331, 28 U.S.C. §

1332, and the MMWA’s jurisdictional provision, 15 U.S.C. § 2310(d).

Both Southern Energy and Rose filed motions to compel

arbitration of the Waltons’ claims. They contended that the

arbitration provisions in the warranty and sales contracts and the

separate “Binding Arbitration Agreement” signed by Thomas Walton at

the time of sale are valid and enforceable under the Federal

Arbitration Act (the “FAA”) with respect to all of the Waltons’

claims. In response, the Waltons argued that the MMWA precludes

the enforcement of binding arbitration provisions contained in

express written warranties. The Waltons maintained that, because

of this statutory prohibition, neither their warranty claims under

the MMWA nor their related state law claims are subject to

2
The Waltons also named Greenpoint Financial Corporation (the
company that financed the purchase) as a defendant in the lawsuit,
arguing that the failure of the mobile home purchase gives the
Waltons a defense to Greenpoint’s secured claim against them. This
issue is not before this court.
3
The MMWA establishes standards governing the content of
consumer product warranties, see 15 U.S.C. §§ 2301-08 (1994), and
creates a legal remedy for consumers who are harmed by a
warrantor’s failure to comply with the obligations established in
a warranty, see id. § 2310. Both parties agree that the MMWA’s
provisions are applicable to the transaction at issue.

3
compulsory arbitration. A federal magistrate judge agreed with the

Waltons and denied Southern Energy and Rose’s motions to compel

arbitration with respect to all of the Waltons’ claims.

Upon review of the magistrate judge’s order, the district

court agreed with the magistrate judge’s conclusion that the MMWA

precludes Southern Energy (the warrantor) from requiring the

Waltons to submit their written warranty claims to binding

arbitration. Contrary to the magistrate judge’s conclusion,

however, the district court compelled arbitration of the Waltons’

claims that did not arise under the MMWA. Thus, the district court

ordered the Waltons to submit their negligence, breach of contract

and breach of implied warranty claims to arbitration.4 Southern

Energy now appeals the district court’s denial of its motion to

compel arbitration of the Waltons’ MMWA claim.

II

We review a district court’s grant or denial of a motion to

compel arbitration de novo. Webb v. Investacorp, Inc., 89 F.3d

252, 257 (5th Cir. 1996). We have determined that a two-step

inquiry governs the adjudication of motions to compel arbitration

under the FAA: “The first step is to determine whether the parties

agreed to arbitrate the dispute in question. . . . The second step

is to determine whether legal constraints external to the parties’

4
Because Rose issued no express written warranty to the
Waltons, all claims against Rose were deemed subject to
arbitration. Accordingly, Southern Energy is the only remaining
defendant in this action.

4
agreement foreclosed the arbitration of those claims.” Id. at 257-

58 (internal citations and quotations omitted). Because neither

party disputes that the warranty contains a valid arbitration

agreement that encompasses the Waltons’ breach of express warranty

claim, we focus our attention on the second step of the Webb

inquiry: whether the MMWA presents a legal constraint that

forecloses arbitration of the express warranty claim.

We first consider the background and dictates of the Federal

Arbitration Act, and then of the Magnuson-Moss Warranty Act.

A

The Federal Arbitration Act was enacted in 1924 to “revers[e]

centuries of judicial hostility to arbitration agreements by

plac[ing] arbitration agreements upon the same footing as other

contracts.” Shearson/Am. Express Inc. v. McMahon, 482 U.S. 220,

225-26 (1987) (quoting Scherk v. Alberto-Culver Co., 417 U.S. 506,

510-11 (1974)) (internal citations and quotations omitted,

alterations in original). The FAA provides that:

A written provision in . . . a contract
evidencing a transaction involving commerce to
settle by arbitration a controversy thereafter
arising out of such contract or transaction,
or the refusal to perform the whole or any
part thereof . . . shall be valid,
irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the
revocation of any contract.

9 U.S.C. § 2 (1994).

5
 There is a “liberal federal policy favoring arbitration,” and

the Supreme Court has read the FAA to establish a presumption in

favor of the enforceability of contractual arbitration agreements.

Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-

25 (1983). The presumption of enforceability of arbitration

agreements applies equally to “claim[s] founded on statutory

rights.” McMahon, 482 U.S. at 226. Only a contrary congressional

command can override the dictates of the FAA. Id.

In order to overcome this presumption in favor of arbitration,

the party opposing arbitration bears the burden of demonstrating

that “Congress intended to preclude a waiver of judicial remedies

for the statutory rights at issue.” Id. (citing Mitsubishi Motors

Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985)).

Courts consider three factors in determining whether Congress

intended to preclude application of the FAA to a particular

statutory right: (1) the statute’s text; (2) its legislative

history; and (3) whether there is “an inherent conflict between

arbitration and the statute’s underlying purposes.” Id.

In every case the Supreme Court has considered involving a

statutory right that does not explicitly preclude arbitration, it

has upheld the application of the FAA. This includes cases falling

under the Age Discrimination in Employment Act,5 Sherman Act,6

5
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 35
(1991).
6
Mitsubishi Motors, 473 U.S. at 628-40.

6
Racketeer Influenced and Corrupt Organization Act,7 Securities Act

of 1933,8 Securities Exchange Act of 1934,9 and the Truth in Lending

Act.10

B

We now turn to the provisions of the Magnuson-Moss Warranty

Act (“MMWA”). The MMWA was enacted in 1974 to “improve the

adequacy of information available to consumers, prevent deception,

and improve competition in the marketing of consumer products.” 15

U.S.C. § 2302(a). In addition to establishing standards governing

the content of warranties, the MMWA creates a statutory cause of

action for consumers “damaged by the failure of a supplier,

warrantor, or service contractor to comply with any obligation

[imposed by the Act] or [established by] a written warranty,

implied warranty, or service contract.” Id. § 2310(d)(1).11 Suits

under the MMWA may be brought in either federal or state court,

id., and consumers are permitted to recover reasonably-incurred

7
McMahon, 482 U.S. at 242 (civil RICO claims).
8
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S.
477, 484-86 (1989), overruling Wilko v. Swan, 346 U.S. 427 (1953).
9
McMahon, 482 U.S. at 238.
10
Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79,
88-92 (2000).
11
The MMWA also empowers the Attorney General and the Federal
Trade Commission to initiate proceedings for deceptive warranty or
noncompliance with the requirements of the Act. See 15 U.S.C. §
2310(c).

7
costs and expenses, including attorneys’ fees, if they prevail in

such suits. Id. § 2310(d)(2).

Before bringing a suit for breach of warranty, the consumer

must give persons obligated under the warranty a reasonable

opportunity to “cure” their failure to comply with the obligations

at issue. Id. § 2310(e). The MMWA also permits warrantors to

establish “informal dispute settlement procedures” for breach of

written warranty claims, and to require consumers to resort to such

procedures before bringing a civil action.12 Id. § 2310(a). While

the term “informal dispute settlement procedure” is not defined

anywhere in the text of the Act, the Federal Trade Commission (the

“FTC”) is instructed to “prescribe rules setting forth minimum

requirements for any informal dispute settlement procedure which is

incorporated into the terms of a written warranty.” Id.

§ 2310(a)(2). If a warrantor establishes an informal dispute

settlement procedure in accordance with the FTC rules, the

warrantor is permitted to include language in the warranty

requiring consumers to resort to this procedure “before pursuing

any legal remedy” under the Act. Id. § 2310(a)(3)(C). The FTC has

adopted a regulation stating that informal dispute settlement

12
The provisions of the MMWA governing informal dispute
settlement procedures appear to be applicable only to claims
brought pursuant to written warranties. See 15 U.S.C. § 2310(a)(2)
(1994) (“The Commission shall prescribe rules setting forth minimum
requirements for any informal dispute settlement procedure which is
incorporated into the terms of a written warranty to which any
provision of this chapter applies.”) (emphasis added).

8
procedures under the MMWA cannot be legally binding on any person.

See 16 C.F.R. § 703.5(j). The FTC therefore has found that

written warranties cannot require binding arbitration. 40 Fed.

Reg. 60168, 60211 (1975) (“[T]here is nothing in the Rule which

precludes the use of any other remedies by the parties following a

Mechanism decision . . . . However, reference within the written

warranty to any binding, non-judicial remedy is prohibited by the

Rule and the Act.”) Thus, according to the FTC’s interpretation,

binding arbitration is simply impermissible under the MMWA.

III

When we review an agency’s construction of a statute that it

administers, we must defer to that agency’s interpretation of the

statute if: (1) Congress has not spoken directly to the issue; and

(2) the agency’s interpretation “is based on a permissible

construction of the statute.” Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). “The

judiciary is the final authority on issues of statutory

construction and must reject administrative constructions which are

contrary to clear congressional intent . . . . If a court,

employing traditional tools of statutory construction, ascertains

that Congress had an intention on the precise question at issue,

that intention is the law and must be given effect.” Id. at 843 n.

9.

9
 There is no doubt that Congress has expressed a clear

intention in favor of arbitration for contractual claims. See 9

U.S.C. § 2 (“A written provision in any maritime transaction or a

contract evidencing a transaction involving commerce to settle by

arbitration a controversy thereafter arising out of such contract

or transaction, or the refusal to perform the whole or any part

thereof, or an agreement in writing to submit to arbitration an

existing controversy arising out of such a contract, transaction,

or refusal, shall be valid, irrevocable, and enforceable, save upon

such grounds as exist at law or in equity for the revocation of any

contract.”) We therefore must determine if Congress expressed any

contrary intent with respect to such claims arising under the MMWA.

A

Under McMahon, in order to determine if Congress intended to

preclude arbitration of a statutory claim, we consider the

statute’s text, its legislative history, and its purpose. McMahon,

482 U.S. at 226. The text of the MMWA does not specifically

address binding arbitration, nor does it specifically allow the FTC

to decide whether to permit or to ban binding arbitration.

Although the MMWA allows warrantors to require that consumers use

“informal dispute settlement procedures” before filing a suit in

court, and allows the FTC to establish rules governing these

procedures, it does not define “informal dispute settlement

procedure.” However, the MMWA does make clear that these are to be

10
used before filing a claim in court. Yet binding arbitration

generally is understood to be a substitute for filing a lawsuit,

not a prerequisite. See Mitsubishi Motors Corp. v. Soler Chrysler-

Plymouth, Inc., 473 U.S. 614, 628 (1985) (“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.”)

In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20

(1991), the Court held that the Age Discrimination in Employment

Act (“ADEA”) does not preclude compulsory arbitration of ADEA

claims, even though the ADEA allows the EEOC to pursue “‘informal

methods of conciliation, conference, and persuasion.’” Id. at 29

(quoting 29 U.S.C. § 626(b)). Therefore the availability of

informal methods of settling a dispute plainly does not itself

preclude the availability of arbitration. Further, the fact that

the MMWA creates a judicial forum for MMWA claims is insufficient

evidence of congressional intent to preclude application of the

FAA. See McMahon, 482 U.S. at 227 (finding that a provision of the

Securities Exchange Act stating that “[t]he district courts of the

United States . . . shall have exclusive jurisdiction of violations

of this title or the rules and regulations thereunder, and of all

suits in equity and actions at law brought to enforce any liability

or duty created by this title” did not preclude application of the

FAA to claims brought under the statute) (quoting 15 U.S.C. §

11
78aa); Gilmer, 500 U.S. at 29 (rejecting the argument that

compulsory arbitration under the ADEA is improper because the

statute provides claimants with a judicial forum); Matsushita Elec.

Indus. Co. v. Epstein, 516 U.S. 367, 385 (1996) (“[A] statute

conferring exclusive federal jurisdiction for a certain class of

claims does not necessarily require resolution of those claims in

a federal court.”). In short, the availability of a judicial forum

is no basis for precluding arbitration of claims under the MMWA.

We also note that binding arbitration is not normally

considered to be an “informal dispute settlement procedure,” and it

therefore seems to fall outside the bounds of the MMWA and of the

FTC’s power to prescribe regulations. We thus conclude that the

text of the MMWA does not evince a congressional intent to prevent

the use of binding arbitration.

B

We next consider the legislative history of the MMWA. The

legislative history does not specifically discuss the availability

of arbitration, nor does it define or shed light on the meaning of

“informal dispute settlement procedure.” The legislative history

does indicate that such procedures were meant to be non-binding.

For example, the House Report on the MMWA states that “[a]n adverse

decision in any informal dispute settlement procedure would not be

a bar to a civil action on the warranty involved in the proceeding

. . . .” H.R. Rep. No. 93-1107 (1974), reprinted in 1974

12
U.S.C.C.A.N. 7702, 7723. The Conference Committee report also

indicates that if a consumer chooses not to pursue an informal

dispute settlement procedure, a consumer can still pursue “all

alternative avenues of redress.” S. Conf. Rep. No. 93-1408 (1974),

reprinted in 1974 U.S.C.C.A.N. 7755, 7758. However, there is still

no evidence that Congress intended binding arbitration to be

considered an informal dispute settlement procedure. Therefore the

fact that any informal dispute settlement procedure must be non-

binding, does not imply that Congress meant to preclude binding

arbitration, which is of a different nature. The legislative

history’s reference to “civil action” neither explicitly includes

nor precludes binding arbitration. However, the reference to

“informal dispute settlement procedure” seemingly precludes binding

arbitration from its scope, as binding arbitration is not normally

considered an informal procedure. Binding arbitration simply is

not part of these reports. These passages therefore do not support

an assertion that Congress intended to preclude binding

arbitration.

Additionally, the Conference Committee Report states that the

legislation requires “provision [by the warrantor] for governmental

or consumer participation in internal or other private dispute

settlement procedures . . . .” Id. Again, this does not indicate

an intent to preclude binding arbitration. It simply requires that

the consumer (or perhaps the government) participate in the

13
informal procedures established by the warrantor. The Committee

cannot have had in mind binding arbitration in its comments, as the

government does not normally participate in private binding

arbitration procedures. Again, these congressional reports do not

demonstrate that Congress intended for binding arbitration to be

included within the scope of these informal dispute settlement

procedures, nor that it intended to preclude binding arbitration

under the MMWA.

In McMahon, the Court found that language in the legislative

history of the Securities Exchange Act of 1934 -- language that

appears more persuasive than that above -- did not evince a

congressional intent to bar all pre-dispute agreements to arbitrate

Securities Exchange Act claims. McMahon, 482 U.S. at 238.

Specifically, the legislative history stated:

The Senate bill amended section 28 of the Securities
Exchange Act of 1934 with respect to arbitration
proceedings between self-regulatory organizations and
their participants, members, or persons dealing with
members or participants. The House amendment contained
no comparable provision. The House receded to the
Senate. It was the clear understanding of the conferees
that this amendment did not change existing law, as
articulated in Wilko v. Swan, 346 U.S. 427 (1953),
concerning the effect of arbitration proceedings
provisions in agreements entered into by persons dealing
with members and participants of self-regulatory
organizations.

Id. at 236-37 (quoting H.R. Rep. No. 94-229, at 111 (1975),

reprinted in 1975 U.S.C.C.A.N. 179, 342). This legislative history

implied a congressional intent to adopt the then-valid holding in

14
Wilko that arbitration is an inadequate forum for the enforcement

of Securities Act of 1933 statutory claims.13 The Court found that

this reference was not clear enough to evidence congressional

intent to preclude pre-dispute arbitration agreements as to

Securities Exchange Act claims. Id. at 237-38.

The legislative history here is not as persuasive as that in

McMahon -- which was found unpersuasive by the Supreme Court -- and

consequently we must conclude that the legislative history here

does not evidence a congressional intent to preclude arbitration of

MMWA claims.

C

Finally, we examine the purposes of the MMWA, and whether

there is an inherent conflict between the MMWA and the FAA. We

know that the MMWA was enacted in order to “improve the adequacy of

information available to consumers, prevent deception, and improve

competition in the marketing of consumer products.” 15 U.S.C. §

2302(a). The House Report on the MMWA states that “[t]he purpose

of this legislation is (1) to make warranties on consumer products

more readily understood and enforceable, (2) to provide the Federal

Trade Commission (FTC) with means of better protecting consumers

and (3) to authorize appropriations for the operations of the FTC

for fiscal years 1975, 1976, and 1977.” We do not see any inherent

13
The Supreme Court later overruled Wilko and upheld agreements
to arbitrate Securities Act claims. See Rodriguez de Quijas v.
Shearson/Am. Express, Inc., 490 U.S. 477, 485 (1989).

15
conflict between arbitration and these purposes. Consumers can

still vindicate their rights under warranties in an arbitral forum.

Warranties can provide adequate and truthful information to

consumers, while also requiring binding arbitration. Arbitration

is not inherently unfair to consumers. See Allied-Bruce Terminix

Cos. v. Dobson, 513 U.S. 265, 280 (1995) (“Congress, when enacting

the [FAA], had the needs of consumers . . . in mind.”) Although

the legislative history of the MMWA expresses a concern with the

unequal bargaining power of consumers, see S. Rep. No. 93-151, at

22-23 (1973), a perception of unequal bargaining power is not

enough to unilaterally hold arbitration agreements unenforceable.

See Gilmer, 500 U.S. 33. Of course, courts can consider individual

claims of fraud or unconscionability in arbitration agreements as

they would in any other contract. See id. We thus can find no

inherent conflict between the MMWA and the FAA.

We therefore hold that the text, legislative history, and

purpose of the MMWA do not evince a congressional intent to bar

arbitration of MMWA written warranty claims.14 The clear

congressional intent in favor of enforcing valid arbitration

agreements controls in this case.15 The Waltons signed a valid

14
We therefore need not consider the second prong of the
Chevron analysis.
15
We note again, as we stated in Part II.B, that the MMWA
requires consumers to submit to informal dispute settlement
procedures for breach of written warranty claims, if the warrantor
has established such procedures, before filing a civil action.
See 15 U.S.C. § 2310(a)(3). Our holding in no way conflicts with

16
binding arbitration agreement, and they must arbitrate their MMWA

claims.

IV

We recognize that some courts have found that the MMWA

precludes binding arbitration, and that a number of courts have

agreed with us.16 We have found no other federal appellate opinions

this provision.
16
Compare Parkerson v. Smith, 2002 WL 358678, *3 (Miss.) (en
banc) (not yet released for permanent publication) (MMWA precludes
arbitration, as it was enacted more recently than the FAA and is
more specific; relying on Waverlee Homes, infra, the MMWA’s
provision of a judicial forum, and the FTC regulations under the
MMWA); Browne v. Kline Tysons Imports, Inc., 190 F.Supp.2d 827
(E.D. Va. 2002) (claims under MMWA based on written warranties not
subject to binding arbitration because Congress intended to allow
consumers to adjudicate such claims in court); Yeomans v. Homes of
Legend, Inc., 2001 WL 237313 (M.D. Ala.) (finding that Congress
intended to preclude binding arbitration of express and written
warranty claims under the MMWA; relying on the reasoning in
Waverlee Homes, infra, which states in part that arbitration is
precluded because the MMWA grants access to a judicial forum);
Pitchford v. Oakwood Mobile Homes, Inc., 124 F.Supp.2d 958, 962-65
(W.D. Va. 2000) (relying largely on FTC’s regulations finding
binding arbitration to be impermissible and on the MMWA’s grant of
access to a judicial forum to find that the MMWA precludes binding
arbitration of disputes over written warranties); Raesly v. Grand
Housing, Inc., 105 F.Supp.2d 562, 573 (S.D. Miss. 2000) (finding
that MMWA precludes binding arbitration of written warranty claims,
relying on Waverlee Homes); Wilson v. Waverlee Homes, Inc., 954
F.Supp. 1530, 1532 (M.D. Ala. 1997) (MMWA precludes binding
arbitration of MMWA claims, in part because it provides access to
a judicial forum and because the FTC regulations have so
interpreted it), with In re American Homestar of Lancaster, Inc.,
50 S.W.3d 480, 490 (Tex. 2001) (MMWA’s text, legislative history,
and purpose do not preclude binding arbitration); Results Oriented,
Inc. v. Crawford, 538 S.E.2d 73, 79-81 (Ga. Ct. App. 2000) (MMWA
does not preclude arbitration of express and implied warranty
claims, unless arbitration clause is unconscionable), aff’d
as Crawford v. Results Oriented, Inc., 584 S.E.2d 432 (Ga. 2000);
Southern Energy Homes, Inc. v. Ard, 772 So.2d 1131, 1135 (Ala.
2001) (holding arbitration provisions of a written warranty to be

17
on point, outside of the Eleventh Circuit. Those cases that have

found arbitration to be precluded have relied, at least in part, on

the fact that the MMWA provides consumer access to a judicial

forum.17 However, as discussed in Part III.A, this is not evidence

of an intent to prohibit arbitration of a statutory claim.

Some of those cases also rely on the FTC regulations to

determine congressional intent, and note that the regulations state

that consumers should have full access to the courts and that

informal dispute mechanisms should be non-binding. For example, in

Wilson v. Waverlee Homes, Inc., 954 F. Supp. 1530, 1537-39 (M.D.

Ala. 1997), aff’d, 127 F.3d 40 (11th Cir. 1997) (table op.), the

court held that the MMWA precludes binding arbitration of MMWA

claims. The court relied on: (1) the MMWA’s provision of access to

a judicial forum; (2) the fact that informal dispute settlement

mechanisms are a prerequisite to suit; (3) the FTC regulations

which reflect the MMWA’s “command” that consumers should have

access to the courts; and (4) the history of the FTC regulations

which prohibit binding arbitration. Id.; see also Yeomans v. Homes

of Legend, Inc., 2001 WL 237313 (M.D. Ala.) (expressly adopting the

reasoning and result in Wilson).18 But see Richardson v. Palm

Harbor Homes, Inc., 254 F.3d 1321 (11th Cir. 2001) (predispute

binding).
17
See note 16.
18
See also cases in note 16.

18
arbitration agreement not rendered unenforceable by MMWA with

respect to breach of oral express warranty claim under the Alabama

Uniform Commercial Code). Again, the provision of access to a

judicial forum is not evidence of intent to prevent the use of

arbitration. Further, it is improper to use the FTC regulations

themselves to determine congressional intent here. As noted

previously, we must consider the statute’s text, legislative

history, and whether its purpose conflicts with another statute, to

determine congressional intent. An agency’s regulations,

promulgated pursuant to a statute, are not part of this test. It

is only after considering these three factors and determining that

Congress’s intent is ambiguous, that we would then proceed to

consider the FTC’s regulations and whether they are a permissible

interpretation of the statute, per Chevron. We would not, in any

case, use the regulations themselves to determine congressional

intent.

V

We hold that the MMWA does not preclude binding arbitration of

claims pursuant to a valid binding arbitration agreement, which the

courts must enforce pursuant to the FAA. The Waltons are bound to

arbitrate their claims. We REVERSE the judgment of the district

court and REMAND for entry of judgment in accordance with this

opinion.

REVERSED and REMANDED.

19
20
KING, Chief Judge, dissenting:

The case before us is, in essence, a classic Chevron case.

The text of the MMWA contains a conspicuous and significant

ambiguity: the Act can be read to prohibit the use of binding

arbitration agreements in written warranties, or it can be read

not to address the enforceability of binding arbitration clauses

in written warranties, in which case the FAA’s presumption of

arbitrability would likely be applicable. The FTC – the agency

to which Congress entrusted the task of implementing and

elaborating the provisions of the MMWA – has interpreted the MMWA

to preclude the enforcement of binding arbitration clauses in

written warranties governed by the Act. We are bound to defer to

the FTC’s interpretation of the Act unless (1) Congress has

“directly spoken to the precise question at issue” or (2) the

FTC’s construction of the statute is unreasonable. Chevron

U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837,

842-43 (1984). While the majority apparently concedes that the

text of the Act is ambiguous and that the legislative history is

unilluminating, the majority nonetheless concludes that we must

reject the FTC’s interpretation under the first prong of Chevron

because Congress has unambiguously stated that binding

arbitration clauses in written warranties governed by the MMWA

are enforceable. Because I find no such clear indicia of

21
congressional intent, and because I conclude that the

Commission’s interpretation of the MMWA is reasonable and

entitled to judicial deference,19 I respectfully dissent.

I. The FTC’s Regulatory Construction of § 2310

The text of the MMWA contains no language explicitly

indicating whether Congress intended to preclude application of

the FAA to breach of written warranty claims brought under the

MMWA.20 While the statute makes clear that the “informal dispute

19
A number of federal district courts and state
intermediate appellate courts have similarly deferred to the FTC’s
interpretation of the MMWA. See, e.g., Pitchford v. Oakwood Mobile
Homes, Inc., 124 F. Supp. 2d 958, 963 (W.D. Va. 2000); Wilson v.
Waverlee Homes, Inc., 954 F. Supp. 1530, 1538-39 (M.D. Ala. 1997);
Boroweic v. Gateway 2000, Inc., –-- N.E.2d ---, 2002 WL 1159707, at
*6 (Ill. App. 1 Dist. May 31, 2002); Philyaw v. Platinum Enters.
Inc., No. CL00-236, 2001 WL 112107, at *2 (Va. Cir. Ct. Jan. 9,
2001). In addition, the Mississippi Supreme Court recently held
that binding pre-dispute arbitration agreements are not enforceable
under the MMWA, based in part upon the court’s determination that
Chevron requires deference to the FTC regulations. See Parkerson v.
Smith, 817 So.2d 529, 533-34 (Miss. 2002) (four justices concurring, one
justice concurring in the result only).
20
The absence of such explicit language is not particularly
surprising. At the time of the MMWA’s passage, the FAA was not
understood to be as broadly applicable as it is today. The Act was
widely thought to be inapplicable to claims based on assertions of
statutory rights (as opposed to purely contractual claims). See,
e.g., Wilko v. Swan, 346 U.S. 427, 438 (1953), overruled by
Rodriguez de Quijas v. Shearson/Am. Express Inc., 490 U.S. 477,
484-85 (1989). In the early 1980s, however, the Supreme Court
clarified (and, arguably, expanded) the scope of the FAA in a
number of ways. See Katherine Van Wezel Stone, Rustic Justice:
Community and Coercion under the Federal Arbitration Act, 77 N.C.
L. Rev. 931, 943-54 (1999) (detailing the history of the Court’s
increasingly expansive interpretation of the FAA’s jurisdictional
and substantive applicability). Under this modern reading of the
FAA, the presumption of enforceability “is not diminished when a
party bound by an agreement raises a claim founded on statutory

22
settlement procedures” governed by § 2310 of the MMWA cannot be

binding in nature, see 15 U.S.C. § 2310(a)(3)(c) (clarifying that

a warrantor can require a consumer to resort to an informal

dispute settlement procedure “before pursuing any legal remedy

under this section”) (emphasis added), the Act does not define

the term “informal dispute settlement procedure” or clarify

whether such proceedings are intended to be the exclusive

alternative to litigation available under the Act.

The MMWA expressly authorizes the FTC to “prescribe rules

setting forth minimum requirements for any informal dispute

settlement procedure which is incorporated into the terms of a

written warranty.” See 15 U.S.C. § 2310(a)(2) (2000). Pursuant

to this congressional delegation of rulemaking authority, the FTC

has established detailed regulations governing the “mechanisms”

that warrantors can require customers to utilize prior to

“exercising rights or seeking remedies created by Title I of the

Act.” 16 C.F.R. § 703.2(b)(3) (2001).21 The regulations define

a “mechanism” as “an informal dispute settlement procedure which

rights.” Shearson/Am. Express Inc. v. McMahon, 482 U.S. 220, 226
(1987).
21
Any mechanism established in a warranty must be funded by
the warrantor, 16 C.F.R. § 703.3(a) (2001), but must be
sufficiently insulated from the warrantor “so that the decisions of
the members and the performance of the staff are not influenced by
either the warrantor or the sponsor,” id. § 703.3(b). The
regulations establish guidelines for investigation and collection
of evidence, rendering of decisions, oral presentation by parties,
and monitoring of settlement obligations. Id. § 703.5.

23
is incorporated into the terms of a written warranty to which any

provision of Title I of the Act applies.” Id. § 703.1(e). The

FTC regulations clearly contemplate that mechanisms are a

precursor, not an alternative, to litigation, stating:

The Mechanism shall inform the consumer . . .

that:

(1) If he or she is dissatisfied with its

decision or warrantor’s intended actions, or

eventual performance, legal remedies,

including use of small claims court, may be

pursued;

(2) The Mechanism’s decision is admissible in

evidence as provided in section 110(a)(3) of

the Act.

Id. § 703.5(g). Indeed, the regulations explicitly announce that

“[d]ecisions of the Mechanism shall not be legally binding on any

person.” Id. § 703.5(j).22

The FTC interprets these regulatory provisions to preclude

the inclusion of binding arbitration agreements in written

warranties. The FTC apparently adopts the position that the term

“mechanism” is appropriately read broadly, to encompass all non-

22
However, a warrantor must “act in good faith in
determining whether, and to what extent, it will abide by a
Mechanism decision.” 16 C.F.R. § 703.2(g) (2000).

24
judicial dispute resolution procedures, including arbitration.

See, e.g., 40 Fed. Reg. 60167, 60210 (Dec. 31, 1975)

(characterizing binding arbitration as a type of “mechanism[]

whose decisions would be legally binding”). Under this reading,

binding arbitration is precluded by the plain language of the

regulations specifying that mechanisms cannot be legally binding

on any party. Indeed, in responding to public comments

suggesting that warrantors should be permitted to include binding

arbitration agreements in written warranties, the FTC explicitly

indicated that the rule precluded such arrangements. The

Commission clarified that:

The Rule does not allow this for two reasons.

First, as the Staff Report indicates,

Congressional intent was that decisions of

Section 110 Mechanisms not be legally

binding. Second, even if binding Mechanisms

were contemplated by Section 110 of the Act,

the Commission is not prepared, at this point

in time, to develop guidelines for a system

in which consumers would commit themselves,

at the time of product purchase, to resolve

any difficulties in a binding, but non-

judicial, proceeding. The Commission is not

now convinced that any guidelines which it

25
 set out could ensure sufficient protection

for consumers.

Id. While the FTC did clarify that a warrantor and a consumer

could agree to submit their dispute to binding arbitration after

the mechanism has rendered a decision (thus approving post-

dispute binding arbitration agreements), the Commission adhered

firmly to its position that inclusion of pre-dispute binding

arbitration clauses in a written warranty is impermissible

because “reference within the written warranty to any binding,

non-judicial remedy is prohibited by the Rule and the Act.” Id.

at 60211.23

As the majority correctly recognizes, we are required to

defer to the FTC’s construction of the MMWA unless: (1) Congress

has directly spoken to the precise question at issue, or (2) the

FTC’s construction is unreasonable. Chevron, 467 U.S. at 842-43.

The majority reaches only the first of these inquiries, finding

that Congress has unambiguously stated that binding arbitration

23
The FTC’s interpretive regulations under the MMWA
(promulgated two years after the legislative regulations) further
clarify the Commission’s position on the use of binding arbitration
clauses in written warranties. These regulations explain that “[a]
warrantor shall not indicate in any written warranty or service
contract either directly or indirectly that the decision of the
warrantor, service contractor, or any designated third party is
final or binding in any dispute concerning the warranty or service
contract. . . . Such statements are deceptive since . . . the Act
gives state and federal courts jurisdiction over suits for breach
of warranty and service contract.” 16 C.F.R. § 700.8 (2001)
(emphasis added).

26
clauses are enforceable in written warranties governed by the

MMWA. Because I cannot agree with this conclusion, I address

both prongs of the Chevron inquiry in turn.

II. Has Congress Directly Spoken to the Precise Question at

Issue?

Despite its acknowledgment that neither the text nor the

legislative history of the MMWA clearly indicates whether the

“informal dispute settlement procedures” provided for in § 2310

are intended to be the exclusive alternative to litigation

available for breach of written warranty claims under the Act,

the majority nonetheless finds that Congress has “directly spoken

to the precise question at issue.” Initially, the majority

points to the fact that, fifty years prior to the passage of the

MMWA, Congress expressed a general policy favoring arbitration of

contractual claims in a different statute. The majority

apparently finds that this general policy expressed in the FAA is

indicative of Congress’s intent in enacting the MMWA.

The Supreme Court has indicated that a reviewing court

considering whether Congress has specifically addressed a

question under the first prong of Chevron “should not confine

itself to examining a particular statutory provision in

isolation” but should instead read the words of the statute “in

27
their context and with a view to their place in the overall

statutory scheme.” F.D.A. v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 132-33 (2000) (quoting Davis v. Michigan Dept. of

Treasury, 489 U.S. 803, 809 (1989)). For example, in Brown v.

Gardner, 513 U.S. 115 (1994), the Court considered a Department

of Veterans’ Affairs regulation that interpreted the term

“injury” in a veterans’ benefits statute to include only

intentionally inflicted injuries. The Court concluded that

Congress had directly spoken to the question at issue, based in

part upon the Court’s finding that the word “injury” was used in

other portions of the same veterans’ benefits statute and in

analogous statutes dealing with service-related injuries in ways

clearly indicating a reference to both intentional and

unintentional injuries. See id. at 118.

Similarly, the Supreme Court has also acknowledged that a

court considering whether Congress has specifically addressed a

particular question under the first prong of Chevron may glean

Congress’s “clear intent” regarding an earlier statute from

subsequent statutes addressing the same subject matter. As the

Brown & Williamson Court recognized:

At the time a statute is enacted, it may have

a range of plausible meanings. Over time,

however, subsequent acts can shape or focus

those meanings. The classic judicial task of

reconciling many laws enacted over time, and

28
 getting them to “make sense” in combination,

necessarily assumes that the implications of

a statute may be altered by the implications

of a later statute. This is particularly so

where the scope of the earlier statute is

broad but subsequent statutes more

specifically address the topic at hand. As

we recognized recently . . . a specific

policy embodied in a later federal statute

should control our construction of the

[earlier] statute, even though it ha[s] not

been expressly amended.

529 U.S. at 143 (internal citations and quotations omitted,

alterations in original). Based in part on this reasoning, the

Brown & Williamson Court concluded that the Food, Drug, and

Cosmetic Act did not permit the Food and Drug Administration to

regulate tobacco products, because Congress had expressed its

intent regarding the appropriate regulation of such products in

the six tobacco-specific pieces of legislation it enacted

subsequent to the Food, Drug, and Cosmetic Act. See id. at 143-

57.

In the instant case, the majority has not gleaned clear

congressional intent from the use of similar words in related

statutes, as did the Court in Gardner. Nor has the majority

found such clear intent by examining Congress’s refinement of a

29
general statute in a subsequent, more specific statute, as did

the Brown & Williamson Court. Instead, the majority bases its

conclusion that Congress has “directly spoken to the precise

question” of how to interpret § 2310 of the MMWA on a general

policy expressed in a prior, less specific statute. The Supreme

Court has never invoked similar reasoning in applying the first

prong of the Chevron inquiry. However, even assuming, arguendo,

that this method of statutory construction would be appropriate

in some circumstances, it is clearly problematic in the context

of the instant case.

As the Supreme Court has consistently recognized, the

presumption of arbitrability established by the FAA is not

absolute and “may be overridden by a contrary congressional

command” in the statute creating the right at issue.

Shearson/Am. Express Inc. v. McMahon, 482 U.S. 220, 226 (1987);

see also Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26

(1991). The question in the instant case is whether the informal

dispute settlement mechanism provisions in § 2310 of the MMWA

express such a contrary congressional command. The majority,

however, concludes that Congress did not intend to express such a

command in the MMWA, based on indicia of congressional intent

expressed in the FAA. Such circular logic is unpersuasive: the

presumption of arbitrability becomes relevant after it is

established that there is no contrary congressional command. It

30
is inappropriate to apply the presumption in ascertaining whether

the statute in question contains such a command.

The majority further argues that Congress could not possibly

have intended for § 2310's provisions regarding “informal dispute

settlement procedures” to govern arbitration proceedings because

“binding arbitration is not normally thought of as an informal

procedure.” Unlike the majority, I am extremely hesitant to

conclude that Congress has directly addressed an apparent

statutory ambiguity based on a judicial assumption about what a

term “normally” means. In addition, even assuming the majority’s

understanding of the generally accepted meaning of “informal

procedures” was persuasive indicia of Congress’s intent in

enacting the MMWA, it is not at all clear that the majority’s

conclusion that arbitration “is not normally thought of as an

informal procedure” accurately reflects how “arbitration” was

perceived at the time of the MMWA’s enactment in 1974. As

numerous commentators have recognized, the formality of

arbitration proceedings has increased notably in the latter half

of the twentieth century, particularly in the period since the

Supreme Court “revitalized” the FAA by clarifying its

applicability to statutory claims in the late 1980s. See, e.g.,

Edward Brunet, Replacing Folklore Arbitration with a Contract

Model of Arbitration, 74 Tul. L. Rev. 39, 42-47 (1990)

(describing the shift from the “folklore arbitrations” that were

common in the early part of the twentieth century, wherein

31
“informal procedures dominated,” there was “little or no

discovery” and “[e]vidence rules were inapplicable” to modern

arbitrations which “resemble litigation” in the sense that there

can be “routine discovery, motion practice, application of

substantive legal rules, [and] written discursive awards with

findings of fact and conclusions of law”); G. Richard Shell,

ERISA and Other Federal Employment Statutes: When is Commercial

Arbitration an “Adequate Substitute” for the Courts?, 68 Tex. L.

Rev. 509, 534 (1990) (“Historically, commercial and labor

arbitration have shared a basically informal approach to the

actual fact-finding and adjudication process. . . . In response

to recent Supreme Court decisions encouraging the use of

commercial arbitration, however, and as part of a general effort

to ensure that arbitration procedures adequately protect

substantive rights, commercial arbitration institutions have

begun to reform their procedures and have added considerable

formality to their proceedings.”); cf. Bernhardt v. Polygraphic

Co., 350 U.S. 198, 203 (1956) (describing commercial arbitration

proceedings in 1956 and concluding that “[a]rbitrators do not

have the benefit of judicial instruction on the law; they need

not give their reasons for their results; the record of their

proceedings is not as complete as it is in a court trial; and

judicial review of an award is more limited than judicial review

of a trial”). Moreover, even today, arbitration undoubtedly

constitutes a more “informal” procedure than litigation. Thus,

32
to categorize arbitration as “formal” or “informal” largely begs

the question of the appropriate basis of comparison. Under these

circumstances, even if the majority is correct that most people

would characterize arbitration as a “formal” procedure at this

point in time, this perception hardly provides conclusive

evidence that the 1974 Congress did not intend to address

arbitration proceedings in enacting MMWA provisions governing

“informal dispute resolution proceedings.”

Neither the text of § 2310 nor the statutory context of this

provision conclusively indicates whether § 2310 applies to

arbitration proceedings (i.e., whether § 2310-governed “informal

dispute settlement procedures” are intended to be the exclusive

alternative to litigation under the Act). While the legislative

history contains some indication that Congress did intend for

§ 2310 procedures to be the exclusive non-judicial forum

available under the Act,24 these indicia are not sufficiently

illuminating that the legislative history can be deemed

conclusive regarding congressional intent. Moreover, there are

no subsequent congressional enactments addressing written

warranties that clarify this issue. Under these circumstances,

there is no basis for this court to conclude that Congress has

“directly spoken to the precise question at issue.”

24
See infra Part III.

33
 Because I conclude that Congress has not directly spoken to

the question we face today, I find it is necessary to reach the

second prong of the Chevron inquiry – namely, whether the

Commission’s interpretation of § 2310 is based on a permissible

construction of the statute.

III. Is the FTC’s Interpretation of the MMWA Unreasonable?

Because Congress has “delegated authority to the agency

generally to make rules carrying the force of law,” United States

v. Mead Corp., 121 S. Ct. 2164, 2171 (2001), we are required to

defer to the Commission’s construction of the statute unless that

interpretation is unreasonable. Chevron, 467 U.S. at 843.25

25
It merits notice that this standard of deference appears
to be applicable to the Commission’s legislative regulations, but
not necessarily to its interpretive regulations. The legislative
regulations, 16 C.F.R. §§ 701-03 (2001), were promulgated pursuant
to Congress’s express grant of rulemaking authority to the FTC in
the MMWA, 15 U.S.C. §§ 2309-10 (1994). As the Supreme Court
recently recognized, “express congressional authorizations to
engage in the process of rulemaking” are “a very good indicator of
delegation meriting Chevron treatment.” Mead Corp., 121 S.Ct. at
2172. Accordingly, to the extent that the statute is “silent or
ambiguous” with respect to an issue, we must defer the Commission’s
interpretation in its legislative regulations if that
interpretation is reasonable. See Whitman v. Am. Trucking Assocs.,
Inc., 531 U.S. 457, 481 (2001).
In contrast, the FTC’s interpretive rules are not necessarily
subject to Chevron deference. See, e.g., Martin v. Occupational
Safety & Health Review Comm’n, 499 U.S. 144, 157 (1991) (noting
that interpretive rules and enforcement guidelines are “not
entitled to the same deference as norms that derive from the
exercise of the Secretary’s delegated lawmaking powers”). While
the FTC’s rules, unlike many interpretive rules, were subject to
notice and comment (i.e., the FTC published a notice of the
proposed rules in the Federal Register and interested parties were
permitted to submit written comments), these interpretations were
not subject to the level of public participation mandated by the
MMWA’s provisions governing the promulgation of regulations. See

34
Southern Energy argues that the FTC’s interpretation is

unreasonable because the regulations indicate that the

Commission’s rationale for concluding that the MMWA prohibits

binding arbitration provisions in written warranties was its

determination that such provisions are “deceptive since . . . the

Act gives state and federal courts jurisdiction over suits for

breach of warranty and service contract.” 16 C.F.R. § 700.8

(2001). Pointing to the Supreme Court’s holding that a mere

statutory grant of jurisdiction to federal or state courts does

not preclude enforcement of a mandatory arbitration provision

under the FAA, see, e.g., Gilmer, 500 U.S. at 29; McMahon, 482

U.S. at 227, Southern Energy argues that deference to the FTC

regulations is inappropriate because the Commission’s

interpretation of the MMWA is not based on a permissible

15 U.S.C. § 2309 (1994) (noting that to properly prescribe a rule
under the MMWA, the Commission must “give interested persons an
opportunity for oral presentations of data, views, and arguments,
in addition to written submissions”). Moreover, in light of the
agency’s disclaimer that its interpretive regulations are not
intended to have the force of law, see 42 Fed. Reg. 36111, 36112
(July 13, 1977) (noting that the interpretive regulations “are not
. . . substantive rules and do not have the force or effect of
statutory provisions” and that “like industry guides, they are
advisory in nature”), it appears that these regulations are not
entitled to Chevron deference. See Christensen v. Harris County,
529 U.S. 576, 587 (2000) (“Interpretations such as those in opinion
letters — like interpretations contained in policy statements,
agency manuals, and enforcement guidelines, all of which lack the
force of law — do not warrant Chevron-style deference.”). Such
interpretive regulations are “entitled to respect,” but only to the
extent that they “have the power to persuade.” Id. at 587 (quoting
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (internal
quotations omitted)).

35
construction of the statute. Two state supreme courts have found

this reasoning persuasive in determining that the FTC’s

regulations do not preclude the enforceability of binding

arbitration agreements in written warranties. See In re Am.

Homestar of Lancaster, Inc., 50 S.W.3d 480, 491 (Tex. 2001)

(noting that while it would normally be appropriate to accord

Chevron deference to the FTC’s interpretation of the statute it

administers, no such deference is owed to the regulation

precluding binding arbitration agreements under the MMWA because

“the Supreme Court . . . has rejected arguments similar to those

upon which the FTC relies to conclude the statute prohibits

binding arbitration”); Southern Energy Homes, Inc. v. Ard, 772

So. 2d 1131, 1135 (Ala. 2000) (explicitly adopting Justice See’s

dissent in Southern Energy Homes, Inc. v. Lee, 732 So. 2d 994,

1010 (Ala. 1999), which reasoned that “[a]lthough reasonable

deference is due an interpretation of a statute by an agency

charged with administering that statute, no such deference is due

when the Supreme Court has expressly rejected the rationale on

which the agency interpretation is based”).

While the FTC’s interpretive regulations do suggest that the

Commission’s construction of the statute was partially based on

its reading of the statute’s jurisdictional provision, the

materials accompanying the FTC’s promulgation of its legislative

36
regulations (the appropriate focus of our Chevron inquiry)26

signal that the Commission had a number of permissible reasons

for reading the statute as it did. According to the Federal

Register commentary accompanying the FTC’s promulgation of its

legislative regulations, the Commission based its determination

that Congress intended to preclude enforcement of binding

arbitration clauses in written warranties on two factors: (1) the

Commission’s reading of a staff report of the House Interstate

and Foreign Commerce Committee’s Subcommittee on Commerce and

Finance; and (2) the Commission’s concern that such arbitration

provisions would inadequately protect the interests of consumers.

See 40 Fed. Reg. 60167, 60210 (Dec. 31, 1975). Initially, the

Commission apparently read portions of the legislative history of

the MMWA (specifically, the subcommittee staff report) to signal

Congress’s intent that dispute resolution mechanisms established

pursuant to the Act would not be legally binding. While it is

not possible to confirm the validity of this reading of the

subcommittee staff report,27 such resources are certainly a

permissible basis for an agency’s conclusions regarding

congressional intent, as the reasonableness of an agency’s

construction of a statute is often assessed in light of the

legislative history. See, e.g., Chevron, 467 U.S. at 862-64;

26
See supra note 7.
27
This report appears to be no longer obtainable.

37
Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S.

687, 704-08 (1995).

The Commission’s second expressed motive for precluding

binding arbitration agreements in written warranties is its

concern that such binding arbitration agreements inadequately

protect consumers. As a general rule, this court is obliged to

defer to the FTC’s expertise regarding the most appropriate way

to effect the MMWA’s consumer protection goals. As the Supreme

Court noted in Chevron, “the principle of deference to

administrative interpretations has been consistently followed by

this Court whenever a decision as to the meaning or reach of a

statute has involved reconciling conflicting policies, and a full

understanding of the force of the statutory policy in the given

situation has depended upon more than ordinary knowledge

respecting the matters subjected to agency regulations.” 467

U.S. at 844. However, such deference might be inappropriate if

the FTC’s concerns about the impact of binding arbitration on

consumers were attributable to the Commission’s reliance on the

Supreme Court’s expressed hostility towards arbitration in now-

abandoned cases such as Wilko.28 See, e.g., McMahon, 482 U.S. at

234 n.3 (declining to defer to the SEC’s interpretation of the

Securities Exchange Act of 1934 based on the SEC’s admission that

“its actions were not based on any independent analysis of [the

28
See supra note 2.

38
statute], but instead were premised on the Commission’s

assumption, based on court of appeals decisions following Wilko,

. . . that agreements to arbitrate Rule 10b-5 claims were not, in

fact, enforceable”) (internal citations and quotations omitted,

alterations in original). Unlike the SEC in McMahon, however,

the FTC in the instant case has published a recent regulatory

review statement29 in the Federal Register confirming that its

original reading of the MMWA to preclude binding arbitration was

based on independent analysis of the statute. See 64 Fed. Reg.

19700, 19708 (Apr. 22, 1999) (“The Commission examined the

legality and the merits of mandatory binding arbitration clauses

in written consumer products warranties when it promulgated Rule

703 in 1975. Although several industry representatives at that

time had recommended that the Rule allow warrantors to require

consumers to submit to binding arbitration, the Commission

rejected that view as being contrary to the congressional intent.

The Commission based this decision on its analysis of the plain

language of the Warranty Act.”) (emphasis added).

29
The FTC requested comments on its rules and guides
interpreting and implementing the MMWA “as part of its regulatory
review program, under which it reviews rules and guides
periodically in order to obtain information about the costs and
benefits of the rules and guides under review, as well as their
regulatory and economic impact.” 64 Fed. Reg. 19700, 19700 (Apr.
22, 1999). “After careful review of the comments received in
response” to its request, the Commission decided to retain the
interpretations and rules without change. Id.

39
 This regulatory review statement by the FTC confirms that,

even in light of the Court’s post-Wilko endorsement of

arbitration, the FTC continues to read the MMWA’s provisions to

preclude binding arbitration agreements in written warranties.

See id. (“[T]he Commission determined that reference within the

written warranty to any binding, non-judicial remedy is

prohibited by the Rule and the Act. The Commission believes that

this interpretation continues to be correct . . . Rule 703 will

continue to prohibit warrantors from including binding

arbitration clauses in their contracts with consumers that would

require consumers to submit warranty disputes to binding

arbitration.”) (internal citations and quotations omitted).

Accordingly, unlike the regulation at issue in McMahon, the

agency’s statutory interpretation in the instant case cannot be

deemed “unreasonable” based on the agency’s presumed reliance on

abandoned legal principles.30 Contrary to Southern Energy’s

30
It merits notice that the FTC’s justification for its
prohibition on binding arbitration in the 1999 regulatory review
proceeding is consistent with the rationale that the FTC advanced
at the time of its original promulgation of the legislative
regulations. Accordingly, we are not precluded from giving
appropriate consideration to the Commission’s post-promulgation
explanation by the Court’s precedents disapproving deference to
“post-hoc” agency justifications for regulatory interpretations.
See, e.g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U.S. 402, 419-21 (1971) (holding that post-hoc rationalizations
cannot justify an agency decision that was based on an otherwise
invalid rationale); see also America’s Cmty. Bankers v. Federal
Deposit Ins. Corp., 200 F.3d 822, 835 (D.C. Cir. 2000) (applying
the holding of Overton Park to the review of statutory
interpretations under the second prong of Chevron).

40
assertion, neither of the FTC’s expressed rationales for its

interpretation of the MMWA indicates that the Commission’s

reading is based on an impermissible construction of the statute.

While the majority purports not to reach the second prong of

Chevron, see majority opinion at note 14, the majority espouses

an additional argument against the Commission’s construction of

§ 2310 that appears to be more directly relevant to the inquiry

under the second Chevron prong (i.e., whether the Commission’s

interpretation of the MMWA is reasonable) than under the first

Chevron prong. Specifically, the majority contends that the

agency’s construction of § 2310 is unreasonable because it is

inconsistent with the Supreme Court’s opinion in Gilmer. In

Gilmer, the Court considered whether an employee’s claim under

the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621

et seq. (1994), should be submitted to compulsory arbitration

pursuant to an arbitration agreement in the employee’s securities

registration application. The employee argued that Congress

intended to preclude application of the FAA to claims under the

ADEA, suggesting that under the third prong of the McMahon test,

there is an “inherent conflict” between arbitration and the

ADEA’s underlying purpose. Gilmer, 500 U.S. at 26-27. The

employee relied in part upon an ADEA provision requiring the EEOC

to “promptly seek to eliminate any alleged unlawful practice by

informal methods of conciliation, conference, and persuasion”

upon receipt of a charge of discrimination. 29 U.S.C. § 626(d)

41
(1994). The employee apparently argued, inter alia, that this

provision signaled Congress’s intent to have the EEOC involved in

any judicial or non-judicial resolution of statutory claims, thus

precluding enforcement of a binding arbitration provision that

would resolve disputes without EEOC involvement because this

alternative would “undermine the role of the EEOC.” Gilmer, 500

U.S. at 28. The Court rejected this argument, concluding that

“nothing in the ADEA indicates that Congress intended that the

EEOC be involved in all employment disputes” and that “the mere

involvement of an administrative agency in the enforcement of a

statute is not sufficient to preclude arbitration.” Id. at 28-

29.

The majority reads Gilmer to hold, as a broad proposition,

that express provision in a statute for out-of-court dispute

resolution does not preclude application of the FAA. See also,

e.g., Cunningham v. Fleetwood Homes of Georgia, Inc., 253 F.3d

611, 619-20 (11th Cir. 2001); Am. Homestar, 50 S.W.3d at 487;

Ard, 772 So.2d at 1135 (explicitly adopting Justice See’s dissent

in Lee, 732 So.2d at 1012). However, I find the Gilmer Court’s

discussion of the EEOC’s participation in “informal methods of

conciliation, conference, and persuasion” to be too far afield

from the facts of the instant case to be dispositive.

Initially, it merits notice that the position advanced by

the Waltons in the instant case is materially different from the

position advanced by the employee in Gilmer. The Waltons ask

42
this court to defer to an administrative agency’s regulatory

interpretation that Congress intended for a statute to preclude

binding arbitration, not to read a prohibition of binding

arbitration into a statute and its regulations based on concerns

about impermissibly diminishing the role of the agency.

Moreover, the language of the statutory provision at issue in

Gilmer is materially different from the language in the MMWA at

issue in this case. The ADEA’s admonishment that the EEOC should

attempt to engage in “conciliation, conference, and persuasion”

with the employer upon receipt of an employment discrimination

charge cannot be read to speak to the availability of binding

arbitration in the same way as a statutory provision that, by its

terms, addresses “any informal dispute settlement procedure”

provided for in a written warranty. Indeed, it is clear that

Congress did not attribute the same meaning to the two phrases.

Unlike the MMWA, the ADEA contains no statutory language

instructing the regulatory agency to promulgate procedures and

regulations governing “conciliation, conference, and persuasion”

under the ADEA. Moreover, the EEOC regulations contain no

detailed alternative dispute resolution procedures akin to those

contained in the FTC’s MMWA regulations, suggesting that the EEOC

did not read the “conciliation, conference and persuasion”

language in the ADEA to constitute a congressional delegation of

authority to regulate alternative dispute resolution mechanisms

under the Act. Under these circumstances, the FTC’s construction

43
of the MMWA cannot be deemed “unreasonable” based on a perceived

inconsistency with the Court’s reasoning in Gilmer. Gilmer is

simply inapposite.

As none of the arguments advanced by Southern Energy or the

majority convincingly demonstrates that the FTC’s construction of

§ 2310 is unreasonable, this court is required to defer to the

FTC’s interpretation of the statute. Moreover, there are a

number of compelling independent reasons why the FTC regulations

at issue in the instant case are entitled to particular deference

from this court.

Initially, it merits notice that the FTC’s legislative

regulations constitute a contemporaneous regulatory

interpretation of the MMWA. An administrative interpretation

“has peculiar weight when it involves a contemporaneous

construction of a statute by the [persons] charged with the

responsibility of setting its machinery in motion, of making the

parts work efficiently and smoothly while they are yet untried

and new.” Zenith Radio Corp. v. United States, 437 U.S. 443, 450

(1978) (alteration in original) (quoting Norwegian Nitrogen

Prods. Co. v. United States, 288 U.S. 294, 315 (1933)); cf.

Stephen Breyer, Judicial Review of Questions of Law and Policy,

38 Admin. L. Rev. 363, 368 (1986) (noting that one rationale for

deference to an agency’s contemporaneous interpretation of a

statute is the notion that “[t]he agency that enforces the

statute may have had a hand in drafting its provisions” and that

44
the agency “may possess an internal history in the form of

documents or ‘handed-down oral tradition’ that casts light on the

meaning of a difficult phrase or provision”). But cf. Smiley v.

Citibank (South Dakota), N.A., 517 U.S. 735, 740-41 (1996)

(reasoning that “contemporaneity” is not a condition of validity

under the second prong of Chevron, as Chevron deference is

grounded in notions of congressional delegation of interpretive

authority to agencies rather than “a presumption that [the

agency] drafted the provisions in question, or were present at

the hearings, or spoke to the principal sponsors”).

Similarly, this court should accord particular deference to

the FTC’s regulatory interpretation of the MMWA because the

regulations represent a longstanding, consistent interpretation

of the statute. While agency interpretations that are revised

over time are certainly entitled to Chevron deference, see Rust

v. Sullivan, 500 U.S. 173, 186 (1991), longstanding and

consistent agency interpretations carry special weight. See NLRB

v. Bell Aerospace Co. Div. Textron Inc., 416 U.S. 267, 274-75

(1974) (“[A] court may accord great weight to the longstanding

interpretation placed on a statute by an agency charged with its

administration.”); see also Smiley, 517 U.S. at 740 (noting that,

while antiquity is not a condition of validity under the second

prong of Chevron, “agency interpretations that are of long

standing come before us with a certain credential of

reasonableness, since it is rare that error would long persist”).

45
Such a “credential of reasonableness” appears to be particularly

warranted in the instant case, where the agency has recently

reconsidered and reaffirmed its longstanding, consistent

interpretation of the statute through a notice-and-comment

regulatory review proceeding.

Finally, while the legislative history of the MMWA does not

contain any specific discussion of the availability of

arbitration,31 there is some indirect indication in the

legislative history that Congress intended for internal dispute

settlement mechanisms governed by § 2310 to be the exclusive

alternative to litigation available under the Act, thus

confirming the validity of the reading espoused by the FTC and

the Waltons. Language in the report of the Senate Committee on

Commerce is particularly enlightening.32 The general description

of the legislation contained in that report describes the bill’s

remedial provisions as follows:

31
In light of the statutory history of the FAA outlined
supra at note 2, the absence of such discussion is unsurprising –
it is unclear whether and to what extent Congress would have
contemplated that the FAA might be applicable to statutory remedies
at the time of the MMWA’s enactment.
32
While the House version of the MMWA legislation was the
basis for the conference committee’s deliberations and the eventual
legislation that was enacted, see S. Conf. Rep. No. 93-1408 (1974),
reprinted in 1974 U.S.C.C.A.N. 7755, 7758, the House and Senate
versions of the legislation contained only minor differences with
respect to the remedial provisions of the MMWA. See generally id.
None of these minor differences undermine the value of the Senate
report in illustrating Congress’s intentions regarding the MMWA.

46
 If a supplier fails to honor his warranty or
service contract promises, the consumer can
avail himself of certain specified remedies.
If that supplier has provided a bona fide
informal dispute settlement mechanism by
which disputes between suppliers and
consumers are to be resolved, then the
consumer would utilize the informal dispute
settlement mechanism before pursuing other
avenues of redress. If a supplier does not
have an informal dispute settlement mechanism
for resolving consumer complaints, or if the
consumer is not satisfied with the results
obtained in any informal dispute settlement
proceeding, the consumer can pursue his legal
remedies in a court of competent
jurisdiction, provided that he has afforded
the supplier a reasonable opportunity to cure
the breach.

S. Rep. No. 93-151, at 2-3 (1973) (emphasis added). This passage

suggests that Congress intended for the MMWA to authorize only

the specific remedial mechanisms mentioned in the Act. This

language also implies that litigation, not arbitration, is the

“other avenue[] of redress” available to the consumer if the

warrantor has not established an informal dispute settlement

mechanism or if the consumer is unsatisfied with the results of

that proceeding.

The same conclusion is suggested in the report’s subsequent,

more detailed analysis of the MMWA’s remedial provisions. This

portion of the report states: “[Section 2310] spells out the

remedies available to the purchaser of consumer products. A

purchaser can utilize informal dispute settlement procedures

established by suppliers or, having afforded a supplier a

47
reasonable opportunity to cure, may resort to formal adversary

proceedings with reasonable attorney’s fees available if

successful in the litigation.” Id. at 22-23. This passage

suggests that litigation (not arbitration) is the “formal

adversary proceeding” contemplated by the Act for a consumer who

is dissatisfied with the warrantor’s attempt to cure or with any

informal dispute settlement procedure that the warrantor has

established.

Language in the Conference Committee report provides further

confirmation that Congress intended § 2310-compliant procedures

to be the exclusive method of non-judicial dispute resolution

available under the Act. The Conference Committee report states:

It should be recognized . . . that provision
for governmental or consumer participation in
internal or other private dispute settlement
procedures under the bill is required by this
legislation. Consequently warranties
providing that consumers must first resort to
informal dispute settlement procedures before
initiating a suit are contrary to the intent
of the legislation where there is no
provision for governmental or specific
consumer participation in the procedure or
where the procedure is otherwise unfair.

S. Conf. Rep. No. 93-1408 (1974), reprinted in 1974 U.S.C.C.A.N.

7755, 7758 (emphasis added). This passage is enlightening for

two reasons. First, it equates the term “informal dispute

settlement procedure” as used in the Act with a more general

definition (i.e., “internal or other private dispute settlement

procedure”), thus suggesting that Congress intended for the term

48
“informal dispute settlement procedure” to be read broadly. In

addition, by specifically indicating that any procedure that does

not comply with the statutory requirement for consumer or

governmental participation is “contrary to the intent of the

legislation,” this passage suggests that § 2310 was intended to

govern all forms of alternative dispute resolution provided for

in a written warranty.

These passages from the Conference Committee report and the

Senate report reinforce the Commission’s interpretation that

Congress intended for § 2310 (and, thus, the FTC’s implementing

regulations) to govern all non-judicial forms of dispute

resolution included in the terms of written warranties. Thus,

while the legislative history of the MMWA may not be sufficient

by itself to establish Congress’s intent to preclude application

of the FAA to claims for breach of written warranty under the

MMWA, these materials provide added support for the

“reasonableness” of the Commission’s interpretation.

Accordingly, because I find that Congress has not “directly

spoken to the precise question” whether binding arbitration

clauses in written warranties governed by the MMWA are

enforceable, and because the FTC’s construction of the statute is

eminently reasonable, I would defer to the Commission’s expertise

and affirm the district court’s judgment refusing to compel

arbitration of the Waltons’ written warranty claims. I dissent.

49