Randolph v. Green Tree Financial

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 13 2001
No. 98-6055 THOMAS K. KAHN
CLERK
________________________
D.C. Docket No. 96-00011-CV-D-N

LARKETTA RANDOLPH, on behalf of herself and all others similarly situated,

Plaintiff-Appellant,

versus

GREEN TREE FINANCIAL CORP. -- ALABAMA and GREEN TREE
FINANCIAL CORPORATION,

Defendants-Appellees.
_______________________

Appeal from the United States District Court
for the Middle District of Alabama
_______________________
(March 13, 2001)

ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES

Before DUBINA, CARNES and FARRIS*, Circuit Judges.

CARNES, Circuit Judge:
____________________
*Honorable Jerome Farris, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
 Plaintiff Larketta Randolph filed this putative class action against defendants

Green Tree Financial Corp. and Green Tree Financial Corp. -- Alabama

(collectively, “Green Tree”) for alleged violations of the Truth in Lending Act, 15

U.S.C. § 1601 et seq. (“TILA”) and the Equal Credit Opportunity Act, 15 U.S.C. §

1691 et seq. (“ECOA”). The district court ordered the parties to proceed to

arbitration and dismissed the action with prejudice. In our prior opinion, Randolph

v. Green Tree Financial Corp. -- Alabama, 178 F.3d 1149 (11th Cir. 1999), we held

that the arbitration agreement in this case defeated the remedial purposes of TILA

and was unenforceable because of the potentially high costs to Randolph of

pursuing arbitration. The Supreme Court reversed that holding in Green Tree

Financial Corp. – Alabama v. Randolph, ___ U.S. ___, 121 S. Ct. 513 (2000).

In doing so, the Supreme Court explicitly “decline[d] to reach [Randolph’s]

argument that . . . the arbitration agreement is unenforceable on the alternative

ground that the agreement precludes [Randolph] from bringing her claims under

the TILA as a class action,” because we had not passed on that question. Id. at

___, 121 S. Ct. at 523 n.7. In a separate opinion four Justices noted that issue had

been properly raised in the district court and in this Court, and observed that the

Supreme Court’s majority opinion does not preclude us from deciding that issue on

remand. Id. at 525 n.4 (Ginsburg, J., joined by Stevens, Souter, and Breyer, JJ.,

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concurring in part and dissenting in part). We have received supplemental briefing

on that issue, but before addressing it we must deal with a threshold issue

Randolph raises.

CLASSWIDE ARBITRATION

Randolph’s position in this remand is two-fold. First, she maintains she

should be permitted to pursue the classwide relief she seeks in the arbitration

proceeding itself which, of course, would moot the question of whether her

inability to do so renders the arbitration agreement unenforceable. Randolph

maintains that classwide arbitration is not foreclosed by the language of the

arbitration provision in her contract with Green Tree, and argues that reading a

classwide remedy into the agreement would reconcile the Federal Arbitration Act’s

(“FAA”), 9 U.S.C. § 1 et seq., goal of enforcing arbitration agreements with

TILA’s scheme of using private class actions as one way to enforce that statute.

The arbitration agreement itself (which is set out in full as Appendix A to

this opinion) is silent about whether Randolph may pursue classwide relief in the

arbitration proceeding. Randolph argues that silence equates with permission

instead of preclusion, that the FAA itself does not forbid classwide arbitration, and

that construing the arbitration agreement to authorize classwide relief will avoid

unnecessary tension between the FAA and TILA. For authority Randolph points to

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decisions of state courts in California and Pennsylvania permitting classwide

arbitration. See, e.g., Keating v. Superior Court, Alameda County, 167 Cal. Rptr.

481 (Cal. Ct. App. 1980); Dickler v. Shearson Lehman Hutton, Inc., 596 A.2d 860

(Pa. Super. Ct. 1991).

On the other hand, the two federal courts that have addressed this issue have

held that classwide arbitration is available only if that remedy is expressly provided

for in the parties’ arbitration agreement. See, e.g., Champ v. Siegel Trading Co.,

55 F.3d 269, 275 (7th Cir. 1995) (“[S]ection 4 of the FAA forbids federal judges

from ordering class arbitration where the parties’ arbitration agreement is silent on

the matter.”); Gammaro v. Thorp Consumer Disc. Co., 828 F. Supp. 673, 674 (D.

Minn. 1993) (refusing to order classwide arbitration of TILA claims where the

“arbitration agreement makes no provision for class treatment of disputes”

(footnote omitted)). We have not yet spoken to the precise issue, but in Protective

Life Insurance Corp. v. Lincoln National Life Insurance Corp., 873 F.2d 281 (11th

Cir. 1989), we held that arbitrations may be consolidated only when the arbitration

agreement so provides. The reasoning of our Protective Life decision may dictate

that we join the Seventh Circuit and the District Court of Minnesota in holding that

classwide relief may not be insisted upon in an arbitration proceeding if the

agreement is silent on the subject of that type of remedy. Or maybe not. We have

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no occasion to decide that today, because Randolph did not properly preserve the

issue of whether classwide relief is available in the arbitration proceeding itself.

Randolph initially took the position that the availability of classwide

arbitration was an open question in this circuit, but the district court held that our

decision in Protective Life ruled out classwide arbitration and that, as a result,

“compelling arbitration in this instance will eliminate Plaintiff’s ability to arbitrate

her claims on behalf of a class.” Randolph apparently found that holding to her

strategic liking and came to embrace it. Instead of urging us to reject that holding,

Randolph’s first brief on appeal assured us that “[t]here is no provision in the

Green Tree contract for a class or consolidation of actions,” and told us that the

“right” to bring a class action “cannot be duplicated in arbitration.” Having picked

that horse, Randolph must continue riding it.

Recently, in another remand from the Supreme Court, we declined to

consider an issue that was not raised by the appellant when he was before us

initially, citing the “well-established rule that issues and contentions not timely

raised in the briefs are deemed abandoned.” United States v. Ardley, ___ F.3d

___ (11th Cir. Feb. 20, 2001). See also Hartsfield v. LeMacks, 50 F.3d 950, 953

(11th Cir. 1995) (“We note that issues that clearly are not designated in the initial

brief ordinarily are considered abandoned.” (marks and citation omitted)). A

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supplemental brief after remand from the Supreme Court is not a proper place for

switching positions and resurrecting arguments abandoned earlier. We will decide

what remains of this case based upon the district court’s previously unchallenged

holding, and Randolph’s pre-remand position, that the arbitration agreement

precludes any type of classwide relief in the arbitration proceeding.

ENFORCEABILITY OF ARBITRATION PROVISIONS PRECLUDING

CLASS ACTION REMEDIES FOR TILA CLAIMS

That brings us to Randolph’s second position, which is that because the

agreement she signed does not permit classwide arbitration, it is unenforceable.

The issue is whether an arbitration agreement that bars pursuit of classwide relief

for TILA violations is unenforceable for that reason. The two principal decisions

bearing upon this issue are Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20,

111 S. Ct. 1647 (1991), and Bowen v. First Family Financial Services., Inc., 233

F.3d 1331 (11th Cir. 2000).

In Gilmer, the Supreme Court set out the standards for determining whether

a federal statutory claim is subject to arbitration. The Court stated that “[i]t is now

clear that statutory claims may be the subject of an arbitration agreement,

enforceable pursuant to the FAA,” and went on to instruct us that:

Although all statutory claims may not be appropriate for arbitration,
“[h]aving made the bargain to arbitrate, the party should be held to it

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 unless Congress itself has evinced an intention to preclude a waiver of
judicial remedies for the statutory rights at issue.” . . . If such an
intention exists, it will be discoverable in the text [of the statute], its
legislative history, or an “inherent conflict” between arbitration and
the [statute’s] underlying purposes.

Gilmer, 500 U.S. at 26, 111 S. Ct. at 1652 (citations omitted). The Gilmer Court

also held that the burden is on the party opposing arbitration to show that Congress

intended to prevent waiver of a judicial forum in favor of an arbitral forum for the

statutory claims. Id. The Court explained that an “inherent conflict” between the

policies underlying a federal statute and the enforcement of an agreement to

arbitrate claims under that statute does not exist simply because the statute “is

designed not only to address individual grievances, but also to further important

social policies . . . [because] so long as the prospective litigant effectively may

vindicate [his or her] statutory cause of action in the arbitral forum, the statute will

continue to serve both its remedial and deterrent function.” Id. at 27-28, 111 S. Ct.

at 1653 (marks and citations omitted).

In light of those Gilmer standards, we addressed in Bowen the issue of

whether the text of TILA and its legislative history, or an inherent conflict between

TILA and the FAA, would render an arbitration clause unenforceable, and we

concluded that they did not. 233 F.3d at 1334 and 1338. Bowen involved claims

made under ECOA, 15 U.S.C. 1691, et seq., a necessary premise of which was the

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proposition “that the TILA grants consumers a non-waivable right to litigate,

individually and through a class action, any claims arising under the statute.” Id.

at 1335. In deciding whether TILA created such a “right,” we considered the

plaintiffs’ arguments about the role of class actions in the TILA enforcement

scheme. We acknowledged that the text of TILA specifically contemplates class

actions as evidenced by the fact that the statute caps the amount of statutory

damages available in a TILA class action. Id. at 1337. The cap on those damages

was enacted in order to overcome courts’ reluctance to certify TILA class actions

in light of the potentially crippling statutory damage awards which might otherwise

result. Id. We also considered in Bowen TILA’s legislative history “which

stresses the importance of class action procedures in the TILA scheme,” and which

the plaintiffs argued was an indication that “Congress intended to guarantee

consumers access to individual lawsuits and class actions to allow them to serve as

private attorneys general in enforcing the provisions of the TILA, thereby

furthering the policy goals of the statute.” Id.

But after discussing TILA’s text and legislative history relating to class

action remedies in Bowen, we reasoned as follows:

[W]e recognize, of course, that a class action is an available, important
means of remedying violations of the TILA. See 15 U.S.C. § 1640.
However, there exists a difference between the availability of the class
action tool, and possessing a blanket right to that tool under any

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 circumstance. . . . An intent to create such a “blanket right,” a non-
waivable right, to litigate by class action cannot be gleaned from the
text and the legislative history of the TILA.

Id. at 1337-38 (citations and quotations omitted). We said that “[w]hile the

legislative history of § 1640 shows that Congress thought class actions were a

significant means of achieving compliance with the TILA, . . . it does not indicate

that Congress intended to confer upon individuals a non-waivable right to pursue a

class action nor does it even address the issue of arbitration.” Id. at 1338. We also

concluded that the “private attorneys general” aspect of TILA’s enforcement

scheme did not require a different conclusion. Id.

In light of the Bowen decision and for the reasons set out in our opinion in

that case, Randolph cannot carry her burden of showing either that Congress

intended to create a non-waivable right to bring TILA claims in the form of a class

action, or that arbitration is “inherently inconsistent” with the TILA enforcement

scheme. We did say in Bowen that our holding went “no further than the [ECOA]

§ 1691(a)(3) issue” and “[did] not reach the issue of whether an agreement to

arbitrate is unenforceable with respect to TILA claims on the ground that there is

an inherent conflict between arbitration and the . . . underlying purposes of the

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TILA.”1 Id. at 1338-39 (citations and quotations omitted). But there is no good

reason why our analysis in Bowen of the interplay between arbitration, class

actions and TILA in the context of ECOA claims premised on TILA violations

does not apply with equal force to pure TILA claims. Randolph simply repeats the

arguments that we considered in Bowen concerning the same statutory text, the

same legislative history, and the same policy concerns. We have already rejected

those arguments because they do not establish that Congress intended to preclude

the arbitration of TILA claims, even where arbitration would prevent the claims

from being brought in the form of a class action.

Our thinking in this respect is consistent with the Third Circuit’s decision

that “[arbitration] clauses are effective even though they may render class actions

to pursue statutory claims under the TILA . . . unavailable.” Johnson v. West

Suburban Bank, 225 F.3d 366, 369 (3d Cir. 2000), cert. denied sub nom. Johnson

v. Tele-Cash, Inc., ___ S. Ct. ___ (Feb. 20, 2001). On the way to that conclusion,

the court held that nothing in the text of TILA created a non-waivable right to

1
In Bowen, we had no occasion to address whether an arbitration clause precluding class
actions was enforceable in the TILA context because we found that the plaintiffs in that case had
no standing to pursue their TILA claims. Id. at 1341. The basis for this holding was that “there
[was] no allegation that [the defendant] ha[d] invoked, or threatened to invoke, the arbitration
agreement to compel the plaintiffs to submit any claim to arbitration.” Id. at 1339. They did
have standing to pursue the claim that the defendant’s requirement that they sign an arbitration
agreement constituted discrimination with respect to a credit transaction in violation of ECOA,
and it was that claim that we addressed in Bowen. Id. at 1334-38.

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bring a class action, and although the plaintiff argued that the legislative history

“demonstrates the centrality of class actions to the TILA’s effective enforcement,”

the court held that that history “falls short of demonstrating irreconcilable conflict

between arbitration and the TILA.” Id. at 371-73. There is no irreconcilable

conflict, because the public policy goals of TILA can be vindicated through

arbitration, and the statute contains other incentives – statutory damages and

attorneys fees – for bringing TILA claims. Id. 373-74. Not only that, but TILA

also provides for enforcement by administrative agencies. Id. at 375. For these

reasons, the Third Circuit concluded in Johnson, as we have here, that Congress

did not intend to preclude parties from contracting away their ability to seek class

action relief under the TILA. Id. at 378.

What the Supreme Court said in the present case reinforces our decision. In

reversing our earlier decision, the Court emphasized the “liberal federal policy

favoring arbitration agreements,” which is embodied in the FAA, and noted that it

had previously “rejected generalized attacks on arbitration that rest on ‘suspicion

of arbitration as a method of weakening the protections afforded in the substantive

law to would-be complainants.’” Green Tree, ___ U.S. at ___, 121 S. Ct. at 521-22

(citations and quotations omitted). See also Johnson, 225 F.3d at 376 (“Insofar as

Congress’s intent, broadly contemplated, is concerned, we must give equal

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consideration to Congress’s policy goals in enacting the FAA.”). According to the

Supreme Court, the last time this case was before us we made the mistake of giving

too little weight to the FAA’s pro-arbitration policy. We decline to make the same

mistake again. Giving full weight to the congressional policy embodied in the

FAA, we hold that a contractual provision to arbitrate TILA claims is enforceable

even if it precludes a plaintiff from utilizing class action procedures in vindicating

statutory rights under TILA.

CONCLUSION

The judgment of the district court is AFFIRMED.

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 APPENDIX A

ARBITRATION: All disputes, claims, or controversies arising from
or relating to this Contract or the relationships which result from this
Contract, or the validity of this arbitration clause or the entire
Contract, shall be resolved by binding arbitration by one arbitrator
selected by Assignee with consent of Buyer(s). This arbitration
Contract is made pursuant to a transaction in interstate commerce, and
shall be governed by the Federal Arbitration Act at 9 U.S.C. Section
1. Judgment upon the award rendered may be entered in any court
having jurisdiction. The parties agree and understand that they choose
arbitration instead of litigation to resolve disputes. The parties
understand that they have a right or opportunity to litigate disputes
through a court, but that they prefer to resolve their disputes through
arbitration, except as provided herein. THE PARTIES
VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY
HAVE TO A JURY TRIAL EITHER PURSUANT TO
ARBITRATION UNDER THIS CLAUSE OR PURSUANT TO A
COURT ACTION BY ASSIGNEE (AS PROVIDED HEREIN). The
parties agree and understand that all disputes arising under case law,
statutory law, and all other laws including, but not limited to, all
contract, tort, and property disputes will be subject to binding
arbitration in accord with this Contract. The parties agree and
understand that the arbitrator shall have all powers provided by the
law and the Contract . . . [including] money damages, declaratory
relief, and injunctive relief. Notwithstanding anything hereunto the
contrary, Assignee retains an option to use judicial or non-judicial
relief to enforce a security agreement relating to the Manufactured
Home secured in a transaction underlying this arbitration agreement,
to enforce the monetary obligation secured by the Manufactured
Home or to foreclose on the Manufactured Home. . . . The initiation
and maintenance of an action for judicial relief in a court [on the
foregoing terms] shall not constitute a waiver of the right of any party
to compel arbitration regarding any other dispute or remedy subject to
arbitration in this Contract, including the filing of a counterclaim in a
suit brought by Assignee pursuant to this provision.