McKenzie Check Advance of Florida, LLC d/b/a National Cash Advance, Steven A. McKenzie, Brenda G. Lawson v. Wendy Betts, Donna Rueter and Tiffany Kelly

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

McKENZIE CHECK ADVANCE OF FLORIDA, LLC d/b/a
NATIONAL CASH ADVANCE,
STEVEN A. McKENZIE, BRENDA G. LAWSON,
and unknown entities and individuals,
Appellants,

v.

WENDY BETTS, DONNA REUTER and TIFFANY KELLY,
individually and on behalf of others similarly situated,
Appellees.

No. 4D15-1893

[May 18, 2016]

Appeal of a non-final order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Meenu Sasser, Judge; L.T. Case No.
2001CA000320XXXXMB.

Lewis S. Wiener of Sutherland Asbill & Brennan LLP, Washington, DC,
for appellant McKenzie Check Advance of Florida, LLC d/b/a National
Cash Advance.

Virginia B. Townes, Lawrence Rochefort, and Carrie Ann Wozniak of
Akerman LLP, Orlando, and Claudia Callaway of Katten Muchin
Rosenman LLP, Washington, DC, for appellant Brenda Lawson.

Christopher Casper of James Hoyer Newcomer & Smiljanich, Tampa,
E. Clayton Yates of E. Clayton Yates, P.A., Fort Pierce, and Theodore J.
Leopold and Diana L. Martin of Cohen, Milstein, Sellers & Toll, Palm Beach
Gardens, for appellees.

GERBER, J.

The defendants appeal from the circuit court’s non-final order referring
to an arbitrator the issue of whether an arbitration provision in the parties’
loan contracts permits the plaintiffs to pursue their class action claims in
arbitration. The defendants primarily argue that prior appellate
proceedings already have determined that the arbitration provision’s class
action waiver is enforceable. We agree with the defendants and reverse.
 We present this opinion in four parts: (1) a summary of the initial court
proceedings; (2) a description of the prior appellate proceedings to which
we refer as McKenzie I and McKenzie II; (3) a summary of the proceedings
after McKenzie II; and (4) our review of the instant appeal.

1. The Initial Circuit Court Proceedings

This case began when plaintiff Betts and plaintiff Reuter filed a class
action lawsuit against McKenzie Check Advance of Florida, LLC (the “check
cashing company”), and its principals Steven McKenzie and Brenda
Lawson. The plaintiffs alleged that the check cashing company lent money
to consumers in a deceptive and usurious manner.

The defendants moved to compel arbitration of plaintiff Reuter’s claims
based on an arbitration provision in her loan contracts. (Plaintiff Betts’
loan contracts did not contain an arbitration provision.) The arbitration
provision stated, in pertinent part, that “all disputes, including the validity
of this arbitration provision shall be resolved by binding arbitration,” and
that the Federal Arbitration Act (“FAA”) applied. (Emphasis in original.)
According to the arbitration provision, the word “dispute” was to be given
“the broadest possible meaning” and was defined to include “all federal or
state law claims, disputes or controversies, arising from or relating directly
or indirectly to . . . this Agreement (including this arbitration provision and
the fees charged) . . . [and] all claims asserted by you individually, [or] . . .
as a representative and/or member of a class of persons.” The arbitration
provision also stated:

3. . . . THE ARBITRATOR SHALL NOT CONDUCT CLASS
ARBITRATION; THAT IS, THE ARBITRATOR SHALL NOT
ALLOW YOU TO SERVE AS A REPRESENTATIVE, AS A
PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER
REPRESENTATIVE CAPACITY FOR OTHERS IN THE
ARBITRATION.

....

5. You acknowledge and agree that by entering into this
Agreement:

....

(c) YOU ARE WAIVING YOUR RIGHT TO SERVE AS A
REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR
IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO

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 PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS,
IN ANY LAWSUIT FILED AGAINST US AND/OR RELATED
THIRD PARTIES.

(Emphasis in original.)

Based on the arbitration provision, the circuit court granted the
defendants’ motion to compel arbitration and stayed plaintiff Reuter’s
claims against the check cashing company. The court did not stay plaintiff
Reuter’s claims against the individual defendants. On appeal, we affirmed.
Reuter v. McKenzie Check Advance of Fla., LLC, 825 So. 2d 1070 (Fla. 4th
DCA 2002), rev. denied, 930 So. 2d 610 (Fla. 2006).

Some years later, plaintiff Kelly was added to the action. She signed an
arbitration provision nearly identical to the one which plaintiff Reuter
signed. Accordingly, the defendants moved to compel arbitration of
plaintiff Kelly’s claims.

Plaintiff Kelly opposed the motion. She argued that the arbitration
provision’s class action waiver was unconscionable and violated public
policy by depriving her of any meaningful remedy under Florida’s remedial
statutes.

After holding an evidentiary hearing, the court denied the defendants’
motion to compel arbitration. The court found that the arbitration
provision’s class action waiver, though not unconscionable, violated public
policy by depriving plaintiff Kelly and other similarly situated customers
of any meaningful remedy.

2. McKenzie I and McKenzie II

On appeal, we affirmed the circuit court’s finding that the arbitration
provision’s class action waiver violated public policy. McKenzie v. Betts,
55 So. 3d 615 (Fla. 4th DCA 2011) (“McKenzie I”). We reasoned:

Because payday loan cases are complex, time-consuming,
involve small amounts, and do not guarantee adequate
awards of attorney’s fees, individual plaintiffs cannot obtain
competent counsel without the procedural vehicle of a class
action. The class action waiver prevents consumers from
vindicating their statutory rights, and thus violates public
policy.

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Id. at 629. We also certified to the Florida Supreme Court the following
question of great public importance:

WHEN ASSERTED IN A CLAIM INVOLVING A VIOLATION OF
FDUTPA OR ANOTHER REMEDIAL STATUTE, DOES A CLASS
ACTION WAIVER IN AN ARBITRATION AGREEMENT
VIOLATE PUBLIC POLICY WHEN THE TRIAL COURT IS
PERSUADED BY EVIDENCE THAT SUCH A WAIVER
PREVENTS CONSUMERS FROM OBTAINING COMPETENT
COUNSEL?

Id.

On review, the Florida Supreme Court, in McKenzie Check Advance of
Fla., LLC v. Betts, 112 So. 3d 1176 (Fla. 2013) (“McKenzie II”), quashed
McKenzie I based on the United States Supreme Court’s intervening
decision in AT&T Mobility, LLC v. Concepcion, 563 U.S. 333, 131 S. Ct.
1740 (2011). The Florida Supreme Court explained Concepcion as follows:

In Concepcion, the question before the United States
Supreme Court was “whether the FAA prohibits States from
conditioning the enforceability of certain arbitration
agreements on the availability of classwide arbitration
procedures.” Specifically, the Supreme Court considered
whether the FAA preempts California’s Discover Bank rule,
which “classif[ied] most collective-arbitration waivers in
consumer contracts as unconscionable.”

....

With respect to class arbitration, the [United States]
Supreme Court held that

[t]he overarching purpose of the FAA, evident in
the text of §§ 2, 3, and 4, is to ensure the
enforcement of arbitration agreements according
to their terms so as to facilitate streamlined
proceedings. Requiring the availability of
classwide arbitration interferes with fundamental
attributes of arbitration and thus creates a scheme
inconsistent with the FAA.

McKenzie II, 112 So. 3d at 1181-82 (emphasis added; internal citations
omitted).

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 Applying Concepcion in McKenzie II, the Florida Supreme Court held
that “the class action waiver in this case is enforceable.” 112 So. 3d at
1180. The Florida Supreme Court then declined to answer the certified
question because it was moot. See id. at 1178 (“[E]ven if the Fourth
District is correct that the class action waiver in this case is void under
state public policy, this Court is without authority to invalidate the class
action waiver on that basis because federal law and the authoritative
decision of the United States Supreme Court in Concepcion preclude us
from doing so.”).

3. The Proceedings After McKenzie II

After McKenzie II, this court remanded the case to the circuit court. In
the circuit court, the defendants filed a renewed motion to compel
arbitration of plaintiff Kelly’s individual claims.

Plaintiffs Reuter and Kelly filed a response to the defendants’ motion,
and filed their own motion requesting referral of their remaining class
action claims to arbitration. In this filing, Reuter and Kelly agreed that
their individual claims should proceed to arbitration, and also argued that
their class claims should proceed to arbitration as well on the ground that
the class action waiver’s enforceability should be an issue for the
arbitrator.

At a hearing on both motions, the defendants argued that McKenzie II
dictated the outcome because the Florida Supreme Court already held the
class action waiver was enforceable. Therefore, the defendants contended,
the law of the case precluded the plaintiffs’ argument.

In response, the plaintiffs argued that McKenzie II merely held the class
action waiver was enforceable under the FAA. Therefore, the plaintiffs
contended, the class action waiver’s application still was a matter of
contract interpretation reserved for the arbitrator.

The circuit court entered an order granting the defendants’ renewed
motion to compel arbitration of plaintiff Kelly’s individual claims. The
circuit court also granted plaintiff Reuter’s and plaintiff Kelly’s motion
requesting referral of their remaining class action claims to arbitration.

In its order, the circuit court rejected the defendants’ argument that
the law of the case doctrine applied. The circuit court reasoned that
McKenzie II upheld only “the enforceability of the class waiver,” but did not
decide “whether class arbitration is available under the arbitration

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provision.” (Emphasis in original.) As the circuit court understood
McKenzie II:

The sole issue before the Florida Supreme Court . . . was
whether the arbitration provision’s class action waiver could
be invalidated based on the public policy contract defense.
...

[T]he Florida Supreme Court was never asked to interpret
the arbitration provision and determine whether class
arbitration was available thereunder. . . .

(Footnote omitted.)

4. Our Review of the Instant Appeal

The instant appeal followed. We have jurisdiction. See Fla. R. App. P.
9.130(a)(3)(C)(iv) (2015) (“Appeals to the district courts of appeal of non-
final orders are limited to those that . . . determine . . . the entitlement of
a party to arbitration . . . .”). Our review is de novo. See Vernetti v. Am.-
Indian Enters., Inc., 152 So. 3d 856, 858 (Fla. 4th DCA 2014) (“We review
an order granting or denying a motion to compel arbitration de novo.”).

The defendants argue that the circuit court’s order circumvents the
Florida Supreme Court’s unambiguous ruling in McKenzie II holding that
that the arbitration provision’s class action waiver is enforceable.
According to the defendants, because the class action waiver is
enforceable, the plaintiffs cannot pursue class arbitration.

In response, the plaintiffs argue that the law of the case doctrine is
inapplicable because McKenzie II did not rule on “the issue presented here
— whether the arbitrator must enforce the class waiver or, as the trial
court phrased the issue, ‘whether class arbitration is available under the
arbitration provision.’”

We hold that McKenzie II already has determined that the arbitration
provision’s class action waiver is enforceable and, therefore, permits the
plaintiffs to pursue in arbitration only their individual claims.

“The doctrine of law of the case is limited to rulings on questions of law
actually presented and considered on a former appeal.” U.S. Concrete Pipe
Co. v. Bould, 437 So. 2d 1061, 1063 (Fla. 1983). “Additionally, the law of
the case doctrine may foreclose subsequent consideration of issues
implicitly addressed or necessarily considered by the appellate court’s

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decision.” Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 106 (Fla. 2001)
(emphasis added).

The Florida Supreme Court could not have decided McKenzie II without
first recognizing that the arbitration provision expressly prohibited class
arbitration. This recognition is implicit within McKenzie II because the
court reviewed the arbitration provision under the authority of Concepcion,
which held that the FAA prohibited states from “‘conditioning the
enforceability of certain arbitration agreements on the availability of
classwide arbitration procedures.’” 112 So. 3d at 1178 (quoting
Concepcion, 131 S. Ct. at 1744). In holding the class action waiver to be
enforceable in light of Concepcion, the Florida Supreme Court necessarily
decided that the class action waiver prohibited class arbitration.

The plaintiffs read McKenzie II too narrowly as holding merely that the
FAA preempts invalidation of the class action waiver on public policy
grounds. The Florida Supreme Court also held that the arbitration
provision expressly prohibited class arbitration, thereby precluding the
plaintiffs from re-litigating that issue before the arbitrator.

In sum, because the Florida Supreme Court “implicitly addressed or
necessarily considered” the unavailability of class arbitration in McKenzie
II, the circuit court was “bound to follow” the Florida Supreme Court’s
rulings. Juliano, 801 So. 2d at 106. Accordingly, we reverse the order on
appeal and remand with directions for the circuit court to refer only the
plaintiffs’ individual claims to arbitration. 1

Reversed and remanded with directions.

STEVENSON and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

1 Based on our decision, it is unnecessary to address the parties’ two remaining
issues: (1) whether the plaintiffs waived any entitlement to arbitration by
substantially invoking the litigation machinery; and (2) whether the availability
of class arbitration is a gateway issue for judicial determination.

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