FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WANDA GREENWOOD; LADELLE
HATFIELD; DEBORAH MCCLEESE, on
behalf of themselves and other
similarly situated, No. 09-15906
Plaintiffs-Appellees,
v. D.C. No.
4:08-cv-04878-CW
COMPUCREDIT CORPORATION and OPINION
COLUMBUS BANK AND TRUST,
jointly and individually,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Argued and Submitted
April 12, 2010—San Francisco, California
Filed August 17, 2010
Before: Andrew J. Kleinfeld, A. Wallace Tashima, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Thomas;
Dissent by Judge Tashima
12071
12074 GREENWOOD v. COMPUCREDIT CORPORATION
COUNSEL
Susan L. Germaise, McGuireWoods LLP, Los Angeles, Cali-
fornia, David L. Hartsell, McGuireWoods LLP, Chicago, Illi-
nois, James R. McGuire, Morrison & Foerster LLP, San
Francisco, California, Tim A. O’Brien, Morrison & Foerster
LLP, Washington, D.C., for the defendants-appellants.
Adrian Barnes, Gilbert & Sackman, Los Angeles, California,
W. Lloyd Copeland, Taylor-Martino-Zarzaur, PC, Mobile,
Alabama, for plaintiffs-appellees.
OPINION
THOMAS, Circuit Judge:
This appeal presents the question, inter alia, as to whether
the word “sue,” as used in the Credit Repair Organization Act
(“CROA”), means “arbitrate.” Or, perhaps the question is, as
Alice put it: “whether you can make words mean so many dif-
ferent things?”1 We conclude that Congress meant what it said
in using the term “sue,” and that it did not mean “arbitrate.”
We affirm the order of the district court denying the Credit
Providers’ motion to compel arbitration.
1
Lewis Carroll, THROUGH THE LOOKING GLASS AND WHAT ALICE FOUND
THERE, IN THE ANNOTATED ALICE: THE DEFINITIVE EDITION 213 (Martin
Gardner ed., Norton Publishers) (2000).
GREENWOOD v. COMPUCREDIT CORPORATION 12075
I
CompuCredit marketed a subprime credit card under the
brand name Aspire Visa to consumers with low or weak credit
scores through massive direct-mail solicitations and the inter-
net.2 CompuCredit marketed the card and the cards were
issued by Columbus Bank and Trust (collectively “Credit Pro-
viders”).
Greenwood and her fellow plaintiffs (“Consumers”) allege
CompuCredit marketed the card by representing to consumers
it could be used to “rebuild your credit,” “rebuild poor credit,”
and “improve your credit rating.” Consumers allege the pro-
motional materials noted there “was no deposit required,” and
that consumers would immediately receive $300 in available
credit when they received the card. In fact, they allege, Credit
Providers charged a $29 finance charge, a monthly $6.50
account maintenance fee, and a $150 annual fee, assessed
immediately against the $300 limit before the consumer
received the card. In aggregate, the card had $257 in fees the
first year. Although the promotional material mentioned the
fees, it did so in small print amidst other information in the
advertisement, and not in proximity to its representations that
no deposit was required. Consumers each applied for and
received an Aspire card, and were charged these fees. Con-
sumers allege the Credit Providers’ actions constitute several
violations of the CROA and of California’s Unfair Competi-
tion Law.
Before receiving the Aspire Visa credit card, each Con-
sumer received a mailing entitled “Pre-Approved Acceptance
Certificate.” The Acceptance Certificate includes the follow-
ing paragraph:
2
At this stage in the litigation, the facts as recited here are based on the
allegations in Plaintiffs’ complaint.
12076 GREENWOOD v. COMPUCREDIT CORPORATION
By signing, I request an Aspire Visa card and ask
that an account be opened for me. I certify that
everything I have stated in the Acceptance Certifi-
cate is true and accurate to the best of my knowl-
edge. I have read and agree to the be bound by the
“Summary of Credit Terms” and “Terms of Offer”
printed on the enclosed insert, which insert includes
a discussion of arbitration applicable to my account,
and is incorporated here by reference.
One Consumer mailed in her acceptance, one applied over the
internet, and the other applied over the phone.
The “Terms of Offer” states:
Important — The agreement you receive contains a
binding arbitration provision. If a dispute is resolved
by binding arbitration, you will not have the right to
go to court or have the dispute heard by a jury, to
engage in pre-arbitration discovery except as permit-
ted under the code of procedure of the National
Arbitration Forum (“NAF”), or to participate as part
of a class of claimants relating to such dispute. Other
rights available to you in court may be unavailable
in arbitration.
The “Summary of Credit Terms” contains the following:
ARBITRATION PROVISION (AGREEMENT TO ARBI-
TRATE CLAIMS)
Any claim, dispute or controversy (whether in
contract, tort, or otherwise) at any time arising from
or relating to your Account, any transferred balances
or this Agreement (collectively, “Claims”), upon the
election of you or us, will be resolved by binding
arbitration pursuant to this Arbitration Provision and
the Code of Procedure (“NAF Rules”) of the
GREENWOOD v. COMPUCREDIT CORPORATION 12077
National Arbitration Forum (“NAF”) in effect when
the Claim is filed. If for any reason the NAF cannot,
will not or ceases to serve as arbitration administra-
tor, we will substitute another nationally recognized
arbitration organization utilizing a similar code of
procedure.
Upon such an election, neither you nor we will
have the right to litigate in court the claim being
arbitrated, including a jury trial, or to engage in pre-
arbitration discovery except as provided under NAF
Rules. In addition, you will not have the right to par-
ticipate as representative or member of any class of
claimants relating to any claim subject to arbitration.
Except as set forth below, the arbitrator’s decision
will be final and binding. Other rights available to
you in court might not be available in arbitration.
The agreement also provides, “This Agreement, and your
Account, and any claim, dispute or controversy (whether in
contract, tort or otherwise) . . . are governed by and construed
in accordance with applicable federal law and the laws of
Georgia.”
Consumers brought this action in federal district court, and
the Credit Providers moved to compel arbitration of Consum-
ers’ CROA claims. The district court held the arbitration
clause in the Credit Providers’ Aspire Visa credit card agree-
ments was invalid and void under the CROA’s prohibition of
the waiver of a consumer’s right to sue in court, and denied
the motion to compel arbitration. The district court also
denied the Credit Providers’ Motion for Leave to File Motion
for Reconsideration. The Credit Providers filed a timely inter-
locutory appeal challenging the denial of the motion to com-
pel arbitration.
We review the denial of a motion to compel arbitration de
novo. Balen v. Holland Am. Line Inc., 583 F.3d 647, 652 (9th
12078 GREENWOOD v. COMPUCREDIT CORPORATION
Cir. 2009); Lozano v. AT&T Wireless Servs., Inc., 504 F.3d
718, 725 (9th Cir. 2007) (“Whether [a federal statute] permits
adjudication by binding arbitration is a question of law that
we review de novo.”).
II
The district court correctly concluded that the arbitration
agreement was void because the CROA specifically prohibits
provisions disallowing any waiver of a consumer’s right to
sue in court for CROA violations.
A
We employ our usual methodology in statutory construc-
tion. As always, our starting point is the plain language of the
statute. Children’s Hosp. & Health Ctr. v. Belshe, 188 F.3d
1090, 1096 (9th Cir. 1999). “[W]e examine not only the spe-
cific provision at issue, but also the structure of the statute as
a whole, including its object and policy.” Id. If the plain
meaning of the statute is unambiguous, that meaning is con-
trolling and we need not examine legislative history as an aid
to interpretation unless “the legislative history clearly indi-
cates that Congress meant something other than what it said.”
Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863,
877 (9th Cir. 2001) (en banc). If the statutory language is
ambiguous, we consult legislative history. United States v.
Daas, 198 F.3d 1167, 1174 (9th Cir. 1999).
[1] In this context, we also note that Congress has mani-
fested a “liberal federal policy favoring arbitration agree-
ments.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.
20, 25 (1991) (internal quotation marks omitted). Specifically,
the Federal Arbitration Act declares that “[a] written provi-
sion in . . . a contract evincing a transaction involving com-
merce to settle by arbitration a controversy thereafter arising
out of such contract or transaction . . . shall be valid, irrevoca-
GREENWOOD v. COMPUCREDIT CORPORATION 12079
ble, and enforceable, save upon such grounds as exist at law
or in equity for the revocation of any contract.” 9 U.S.C. § 2.
[2] The Supreme Court has held that “[h]aving made the
bargain to arbitrate, the party should be held to it unless Con-
gress itself has evinced an intention to preclude a waiver of
judicial remedies for the statutory rights at issue.” Mitsubishi
Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 624,
628 (1985). “[I]f Congress intended the substantive protection
afforded by a given statute to include protection against
waiver of the right to a judicial forum, that intention would be
deducible from text or legislative history.” Id. More recently,
the Supreme Court has reiterated that the Congressional intent
to preclude waiver “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. The burden is on the party opposing
arbitration to show that Congress intended to preclude a
waiver of judicial remedies for the statutory rights at issue. Id.
B
With these principles in mind, we turn to the Credit Report-
ing Organization Act. The CROA expressly identifies four
rights, which appear in the disclosures section of the statute,
15 U.S.C. § 1679c. The first two rights concern rights that
consumers have in relation to credit bureaus, which are not
implicated by this suit. The third and fourth rights specifically
concern rights that consumers have in relation to credit repair
organizations.3 The third right directly addresses the Consum-
ers’ argument: “You have the right to sue a credit repair orga-
nization that violates the Credit Repair Organization Act.” 15
U.S.C. § 1679c(a). In addition, each credit repair organization
is required to (1) inform the consumer of his or her right to
3
The district court did not rule on whether the Credit Providers are
“credit repair organizations” under the meaning of the statute. Therefore,
we will not reach this issue on appeal.
12080 GREENWOOD v. COMPUCREDIT CORPORATION
sue, (2) provide such information to the consumer in a sepa-
rate document containing a verbatim copy of an eight-
paragraph text specified by Congress, which enumerates the
“right to sue,” (3) obtain from the consumer a signature con-
firming receipt of such information, and (4) keep such signed
confirmations on file for two years from the date of signing.
15 U.S.C. § 1679c(a)-(c). The disclosure document must be
provided to every consumer “before any contract or agree-
ment between the consumer and the credit repair organization
is executed.” Id. § 1679c(a).
The CROA also contains a non-waiver provision, phrased
in unusually comprehensive and precise language: “Any
waiver by any consumer of any protection provided by or any
right of the consumer under this subchapter– (1) shall be
treated as void; and (2) may not be enforced by any Federal
or State court or any other person.” 15 U.S.C. § 1679f(a).
[3] Thus, the plain language of the CROA provides con-
sumers with the “right to sue.” 15 U.S.C. § 1679c. The “right
to sue” means what it says. The statute does not provide a
right to “some form of dispute resolution,” but instead speci-
fies the “right to sue.” The act of suing in a court of law is dis-
tinctly different from arbitration. See Eljer Mfg., Inc. v. Kowin
Dev. Corp., 14 F.3d 1250, 1254 (7th Cir. 1994) (“Arbitration
. . . is a private system of justice” distinct from state and fed-
eral courts). The right to sue protected by the CROA cannot
be satisfied by replacing it with an opportunity to submit a
dispute to arbitration.
Where terms are not defined within a statute, they are
accorded their plain and ordinary meaning. McHugh v. United
Serv. Auto. Ass’n, 164 F.3d 451, 455 (9th Cir. 1999). The
plain and ordinary meaning of terms can be deduced through
reference sources, including Black’s Law Dictionary and gen-
eral usage dictionaries. See Satterfield v. Simon & Schuster,
Inc., 569 F.3d 946, 955 (9th Cir. 2009) (determining the plain
GREENWOOD v. COMPUCREDIT CORPORATION 12081
meaning of a contract term by referencing Black’s and Web-
ster’s Dictionary).
To sue is “[t]o institute a lawsuit against (another party).”
BLACK’S LAW DICTIONARY 1473 (Bryan A. Garner ed., 8th ed.,
2004). For “lawsuit,” Black’s directs us to “suit,” id. at 905,
which is defined as: “[a]ny proceeding by a party or parties
against another in a court of law.” Id. at 1475 (emphasis
added); see also Weston v. City Council of Charleston, 27
U.S. (Pet) 449, 464 (1829) (defining “suit” as “any proceed-
ing in a court of justice, by which an individual pursues that
remedy in a court of justice, which the law affords him”)
(emphasis added). The plain meaning of the phrase “right to
sue” thus clearly involves the right to bring an action in a
court of law.
By contrast, “arbitration” is “[a] method of dispute resolu-
tion involving one or more neutral third parties who are usu-
[ally] agreed to by the disputing parties and whose decision
is binding.” BLACK’S LAW DICTIONARY 112. Arbitration is one
of several mechanisms of “alternative dispute resolution,”
which is “[a] procedure for settling a dispute by means other
than litigation, such as arbitration or mediation.” Id. at 86
(emphasis added). The Corpus Juris Secondum underscores
that “[a]rbitration is not a judicial proceeding either at com-
mon law or under statutes. It is a proceeding separate from lit-
igation based upon its underlying purpose of encouraging
dispute resolution without result to the courts, and may be
characterized as an alternative to litigation.” 6 C.J.S. Arbitra-
tion § 2 (June 2005) (emphasis added) (citations omitted); see
also Wolsey, Ltd. v. Foodmaker, Inc., 144 F.3d 1205, 1208
(9th Cir. 1998) (“Arbitration is a creature of contract, a device
of the parties rather than the judicial process.”) (citation omit-
ted); Becker v. Davis, 491 F.3d 1292, 1299 (11th Cir. 2007)
(“[A]rbitration is a contractual right that is generally predi-
cated on an express decision to waive the right to a trial in a
judicial forum.”); Morrison v. Colo. Permanente Med. Group,
983 F. Supp. 937, 944 (D. Colo. 1997) (“[C]ases and statutes
12082 GREENWOOD v. COMPUCREDIT CORPORATION
discuss consistently the terms “arbitration” and “civil action”
in a manner that leaves no doubt that arbitration is a creature
separate from, and not just a form of, a civil action.”).
[4] As a matter of parlance, reference, and common sense,
we cannot conclude that when Congress used the word “sue,”
it really meant “arbitrate.” The district court correctly read the
statute, and determined that the consumer’s statutory right to
sue could not be waived.
III
The Credit Providers raise a number of counter-theories,
none of which is persuasive.
A
Credit Providers first argue that, by placing the “right to
sue” in the mandatory “Disclosures” section of the statute,
thus requiring it be explicitly stated to all consumers, does not
actually create a right to sue as the terms are ordinarily under-
stood. Under such a reading, Congress, whose purpose in
enacting the statute included protecting consumers from mis-
information, see 15 U.S.C. § 1679(b), drafted a statute which
requires credit repair organizations to misinform consumers
about a fictional right. Under Defendant’s interpretation, Con-
gress was requiring that consumers be told a lie: that they pos-
sessed a non-existent right. We should “avoid, if possible, a
[statutory] interpretation that would produce ‘an absurd and
unjust result which Congress could not have intended.’ ”
United States v. Middleton, 231 F.3d 1207, 1210 (9th Cir.
2000) (quoting Clinton v. City of New York, 524 U.S. 417,
429 (1998)). We do not believe Congress was playing Hum-
pty Dumpty with the statute, and we decline to accept the
Credit Providers’ invitation to go down that particular rabbit
hole.
GREENWOOD v. COMPUCREDIT CORPORATION 12083
B
The Credit Providers characterize the language stating “you
have the right to sue” in Section 1679c as merely a simplified
shorthand for the more “complicated” right to bring a claim
under Section 1679g. This is actually a two-step argument.
First, Credit Providers argue the “right to sue” language
should not be examined independently because it is merely a
“simplified” restatement for consumers of the “substantive”
rights embodied in the rest of the statute, particularly Section
1679g, which sets out the punishments available for violations
of the Act. Second, Credit Providers argue the more general
language of Section 1679g does not preclude arbitration.
We disagree. We must, if possible, interpret a statute such
that all its language is given effect, and none of it is rendered
superfluous. TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001).
Under Credit Providers’ interpretation, the “right to sue” lan-
guage, indeed, the entire “Disclosures” section, becomes
superfluous and insignificant, merely a restatement of other
sections of the statute that expand upon the rights set out in
Section 1679c. We decline to adopt such a reading.
In addition, Credit Providers argue the language “right to
sue” was used in the Section because it is more “understand-
able” to the average consumer than a broader phrase such as
the “right to bring a claim.” This is despite the fact that,
according to Credit Providers, Congress meant to give con-
sumers that latter right, rather than the former. If the purpose
of the “Disclosures” was to communicate to consumers their
right to sue or to proceed using some form of alternative dis-
pute resolution, the phrase “right to sue” is a phrase particu-
larly likely to cause confusion, and lead consumers to
misunderstand their rights under the CROA. We see no reason
to interpret the language in a way that goes against the pur-
pose even Credit Providers have ascribed to it. The language
actually chosen by Congress should be given effect because
it is plain and clear on its face, and we “presume that [the]
12084 GREENWOOD v. COMPUCREDIT CORPORATION
legislature says in a statute what it means and means in a stat-
ute what it says there.” BedRoc Ltd., LLC v. United States,
541 U.S. 176, 183 (2004) (citing Conn. Nat’l Bank v. Ger-
main, 503 U.S. 249, 253-54 (1992).
[5] The extremely broad anti-wavier provision in the
CROA protects the enumerated “right to sue,” by treating as
void “[a]ny waiver by any consumer of any protection pro-
vided by or any right of the consumer under this subchapter
. . . .” 15 U.S.C. § 1679f(a) (emphasis added). The Act further
provides that “[a]ny attempt by any person to obtain a waiver
from any consumer of any protection provided or any right of
the consumer under this subchapter shall be treated as a viola-
tion of this subchapter.” 15 U.S.C. § 1679f(b). The plain lan-
guage of the statute demonstrates that the waiver provision
applies to the previously enumerated “right to sue.” First, the
use of the word “any” to describe which rights are covered is
“expansive language [that] offers no indication whatever that
Congress intended” to limit a statute’s reach. Harrison v.
PPG Indus., Inc., 446 U.S. 578, 588-89 (1980). Thus, we read
the term “any right of the consumer” to apply to all the rights
in the statute, including the “right to sue.” Second, Congress’s
consistent use of the word “right” indicates the waiver prohi-
bition applies to the “right to sue,” as identical words in a stat-
ute should be given a consistent and identical meaning
throughout the statute. See Powerex Corp v. Reliant Energy
Servs., Inc., 551 U.S. 224, 232 (2007). Therefore, we con-
clude that Congress meant what it said. Accordingly, the non-
waiver provision invalidates any waiver of the right to sue.
C
We are also not convinced by Credit Providers’ argument
regarding the language in 15 U.S.C. § 1679f(a). The section
states a consumer waiver of any right or protection “may not
be enforced by any Federal or State court or any other per-
son.” 15 U.S.C. § 1679f(a). Credit Providers argue the “any
other person” language demonstrates Congress intended arbi-
GREENWOOD v. COMPUCREDIT CORPORATION 12085
trators to be able to decide CROA claims. First, we do not
think this language leads to such a clear and unilateral conclu-
sion. For example, it is foreseeable that a credit repair organi-
zation would institute arbitration proceedings against a
consumer for collection of the organization’s fees under its
contract with the consumer. The CROA creates various non-
waivable consumer rights and protections other than the right
to sue. In an arbitration collection proceeding, one of the other
non-waivable consumer rights or protections could arise. The
“any other person” language of Section 1679f(a) assures that
these rights and protections would be preserved in an arbitra-
tion instituted by a credit repair organization or debt collec-
tion agency. It is consistent with a consumer’s explicitly
stated non-waivable right to sue. Given the plain language
creating such a right, we do not find this language requires a
different conclusion.
In addition, the statutory language underscores the central
role of courts in enforcement of the statute in § 1679g. This
section, which sets out available damages for violations of the
CROA, repeatedly refers only to “courts” as the enforcement
mechanism. For example, punitive damages may be assessed
in “such additional amount as the court may allow” and lays
out factors that “the court shall consider.” 15 U.S.C.
§ 1679g(a)(2)(A), (b) (emphasis added). Thus, the language in
the remainder of the statute supports the plain reading of the
text creating the right to sue, rather than requiring a different
outcome.
[6] We agree with other courts that the “CROA’s non-
waiver of rights provisions, combined with its proclamation
of a consumer’s right to sue, represent precisely the expres-
sion of congressional intent required by” the Supreme Court
to find that a waiver of judicial remedies is precluded. Alexan-
der v. U.S. Credit Management, Inc., 384 F. Supp. 2d 1003,
1011 (N. D. Tex. 2005). “Congress did not intend to void all
waivers of rights under the Act, and require consumers to sign
a congressionally mandated enumeration of their rights under
12086 GREENWOOD v. COMPUCREDIT CORPORATION
the Act, only to permit those very same rights to waived mere
moments later upon the signing an agreement such as the one
in question here.” Id. at 1012. We agree with the district court
that “[t]o recognize that CROA voids all waivers of ‘any right
of the consumer’ and mandates that any waiver of the right to
sue is void strikes the court as embracing an unhealthy regard
for the federal policy favoring arbitration.” Dkt. 64, at 8 (cita-
tion omitted). Thus, we hold the plain language of the CROA
prohibits enforcement of the arbitration agreement.4
IV
We realize this decision is in conflict with that of two of
our sister circuits, but we are unpersuaded by the reasoning of
those cases. See Gay v. CreditInform, 511 F.3d 369 (3d Cir.
2007); Picard v. Credit Solutions, Inc., 564 F.3d 1249 (11th
Cir. 2009). Both Gay and Picard give surprisingly little
regard to the “right to sue” language in the statute, and rely
upon reasoning in Supreme Court cases that are distinguish-
able from the situation here. As Picard essentially follows and
adopts the reasoning in Gay, we will not deal with the two
cases separately.
Gay dispatches with the explicit language creating a con-
sumer’s “right to sue” in a mere footnote. The court states that
since the section does not specify the forum for resolution of
the dispute, it does not support the argument that it provides
a “judicial, rather than an arbitral, forum for CROA viola-
tions.” Gay, 511 F.3d at 377 n.4. As discussed in more detail
above, this ignores the plain meaning of the word “sue.” The
Third Circuit continues that even if “sue” implies the avail-
ability of a judicial forum (which we believe it does), use of
the word “would not mean that the organization could not
4
Having found a congressional intent to preclude the waiver of judicial
remedies under the CROA in the text of the Act itself, there is no need for
us to examine legislative history or any inherent tension between arbitra-
tion and the Act’s underlying purpose.
GREENWOOD v. COMPUCREDIT CORPORATION 12087
assert defenses that it had to such an action including the right
to invoke a contractual arbitration provision to change the
forum.” Id. This ignores completely the anti-waiver clause of
the statute. The anti-waiver clause explicitly states that any
waiver of any right by the consumer “shall be treated as void”
and “may not be enforced by any Federal or State court . . . .”
15 U.S.C. § 1679f(a)(1)-(2). Thus, the organization might
assert the defense of the contractual arbitration provision, but
the court is explicitly forbidden from enforcing this waiver of
the right to sue.
Gay also relies upon analogies to several Supreme Court
arbitration cases that we find unavailing. The Third Circuit
first analogized the issue to the one the Supreme Court con-
sidered in Shearson/Am. Express, Inc. v. McMahon, 482 U.S.
220 (1987), when it determined whether Section 29(a) of the
Exchange Act prohibited arbitration agreements. Section 27
of the Act provides, “The district courts of the United States
. . . shall have exclusive jurisdiction of violations of this chap-
ter 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 chapter or the rules and regulations there-
under.” 15 U.S.C. § 78aa. Section 29(a) of the Act declares
void “[a]ny condition, stipulation, or provision binding any
person to waive compliance with any provision of [the Act].”
Id. § 78cc(a). The plaintiffs in McMahon argued that Section
29(a) prohibited waiver of the Section 27 right to bring suit
in a federal district court.
As pointed out by the court in McMahon, the Exchange
Act’s anti-waiver provision, § 29(a),
forbids [ ] enforcement of agreements to waive
“compliance” with the provisions of the statute. But
§ 27 itself does not impose any duty with which per-
sons trading in securities must “comply.” By its
terms, § 29(a) only prohibits waiver of the substan-
tive obligations imposed by the Exchange Act.
12088 GREENWOOD v. COMPUCREDIT CORPORATION
Because § 27 does not impose any statutory duties,
its waiver does not constitute a waiver of “compli-
ance with any provision” of the Exchange Act under
§ 29(a).
McMahon, 482 U.S. at 228. In summary, because the
Exchange Act only prohibits waivers of compliance with its
substantive obligations and the mandate of a judicial forum is
not a substantive obligation, the Exchange Act does not pre-
clude arbitration agreements.
Applying McMahon, the Third Circuit observed that “the
section [of the CROA] in which this anti-waiver provision
appears is entitled ‘Noncompliance with this subchapter.’ ”
Gay, 511 F.3d at 385. The Third Circuit reasoned that the
CROA’s anti-waiver provision only “extend[s] to rights prem-
ised on the imposition of statutory duties.” Id. Because the
right to sue in a judicial forum is not a statutory duty under
the CROA, the court concluded that the anti-waiver provision
did not apply to it. Id. However, the plain text of 15 U.S.C.
§ 1679f encompasses waivers of “any protection” or “any
right” under the CROA–categories which are much broader
than mere noncompliance. “[H]eadings and titles are not
meant to take the place of the detailed provisions of the text,”
and where the plain text of the statute is unambiguous, “the
heading of a section cannot limit the plain meaning of the
text.” Bhd. of R.R. Trainmen v. Balt. & Ohio R.R., Co., 331
U.S. 519, 528-29 (1947); Pa. Dep’t of Corr. v. Yeskey, 524
U.S. 206, 212 (1998) (“[T]he title of a statute . . . cannot limit
the plain meaning of the text. For interpretive purposes, it is
of use only when it sheds light on some ambiguous word or
phrase.”). Here, because the text of § 1679f(a) is not ambigu-
ous, we need not turn to the title of the section to clarify its
meaning. Further, the substantive-procedural distinction has
no application to the CROA. Unlike the Exchange Act, the
CROA grants consumers the “right to sue.” Vesting jurisdic-
tion to hear a claim in a particular court is quantitatively dif-
ferent from a statute that expressly provides for a right to sue.
GREENWOOD v. COMPUCREDIT CORPORATION 12089
Thus, § 1679f’s prohibition on waivers may not be limited to
“compliance” with the CROA, and McMahon does not apply.5
We are also not persuaded that the other Supreme Court
cases regarding the availability of arbitration require allowing
arbitration in this case. For instance, in Mitsubishi Motors
Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985),
the Supreme Court considered whether the language in 15
U.S.C. § 15(a) rendered antitrust claims non-arbitrable in the
context of an international commercial dispute. In relevant
part, § 15(a) provides that “any person who shall be injured
in his business or property by reason of anything forbidden in
antitrust laws may sue therefor in any district court of the
United States.” The Court held that this section did not evi-
dence a congressional intent to preclude Sherman Act claims
from being arbitrable, emphasizing that the Federal Arbitra-
tion Act and the Convention on the Recognition of Enforce-
ment of Foreign Arbitral Awards favor arbitration for disputes
in international commerce. The Court concluded that it was
important “to subordinate domestic notions of arbitrability to
the international policy favoring commercial arbitration.” Mit-
subishi, 473 U.S. at 639. The present case differs in that it
does not contain an international component. More impor-
tantly, the CROA contains express language which precludes
waiving “any right of the consumer.” 15 U.S.C. § 1679f(a). A
5
The Third Circuit also relies upon the Supreme Court’s reasoning in
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 481-83
(1989), which held that the Securities Act of 1933 does not preclude arbi-
tration. Gay, 511 U.S. at 385. Rodriguez de Quijas considered jurisdic-
tional and non-waiver language virtually identical to the language
considered in McMahon. The main difference between the two is that the
Securities Act allows for concurrent jurisdiction in state and federal courts
whereas the Exchange Act provides for exclusive federal jurisdiction.
Rodriguez de Quijas, 490 U.S. at 481-83. The court relied on the same dis-
tinction between procedural and substantive provisions and held that waiv-
ing the jurisdictional provision does not fall under the prohibition against
waiving “compliance” with the Act. Id. We find this reasoning unpersua-
sive here for the same reasons discussed in regards to McMahon.
12090 GREENWOOD v. COMPUCREDIT CORPORATION
plain reading of the statute dictates that one of those rights is
the “right to sue a credit repair organization that violates” the
CROA. Id. § 1679c. The Sherman Act does not contain simi-
lar non-waiver language, and thus does not apply to this situa-
tion.
In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20,
29 (1991), the Supreme Court considered whether an arbitra-
tion agreement in a securities registration application could be
avoided on the theory that arbitration “deprives claimants of
the judicial forum provided for by the [Age Discrimination in
Employment Act (ADEA)].” The ADEA contains the follow-
ing non-waiver provision: “any individual may not waive any
right or claim under this Act unless the waiver is knowing and
voluntary.” However, the ADEA does not explicitly provide
for a “right to sue.” Rather, the ADEA takes a “flexible
approach to resolution of claims. The EEOC for example, is
directed to pursue ‘informal methods of conciliation, confer-
ence, and persuasion,’ 29 U.S.C. § 626(b), which suggests
that an out-of-court dispute resolution, such as arbitration, is
consistent with the statutory scheme established by Con-
gress.” Gilmer, 500 U.S. at 29.
Contrary to the ADEA, the CROA specifically grants
access to a judicial forum and a right to sue, and reveals no
such “flexibility” toward alternative methods of dispute reso-
lution. Moreover, in contrast to language in the ADEA that
permits “knowing and voluntary” waiver of statutory rights,
the CROA proscribes any “waiver by any consumer of any
protection provided by or any right of the consumer under this
title” irrespective of a consumer’s knowledge or intent. 15
U.S.C. § 1679f(a). Thus, Gilmer is also inapplicable here.
Finally, in Green Tree Fin. Corp.-Ala. v. Randolph, 531
U.S. 79, 80 (2000), the Supreme Court considered whether
claims under the Truth in Lending Act (TILA) were arbitra-
ble. The party challenging arbitration did not “contend that
the TILA evinces an intention to preclude a waiver of judicial
GREENWOOD v. COMPUCREDIT CORPORATION 12091
remedies.” Id. Instead, plaintiffs challenged arbitration
because the costs and fees would be prohibitive. Id. The
Court, finding no showing regarding prohibitive costs was
made, rejected the argument. Here, arbitration is challenged
on the ground that the CROA evinces an intention to preclude
a waiver of judicial remedies. Green Tree simply does not
apply.
V
[7] The CROA gives consumers the “right to sue,” and
prevents any waiver of “any right” under the statute. We find
this sufficient to demonstrate Congress intended that consum-
ers cannot waive their right to sue under the CROA, and
instead submit to arbitration. Therefore, we affirm the district
court’s holding that the forced arbitration clause is void and
the court’s denial of the motion to compel arbitration of the
CROA claims.
AFFIRMED.
TASHIMA, Circuit Judge, dissenting:
Because I disagree with the majority’s conclusion that Con-
gress intended to preclude a waiver of a judicial forum for
claims under the Credit Repair Organizations Act (“CROA”),
I respectfully dissent.
As the majority acknowledges, Congress has manifested “a
liberal federal policy favoring arbitration agreements.” Moses
H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1,
24 (1983). Under the Federal Arbitration Act, courts should
enforce arbitration agreements involving statutory claims
“ ‘unless Congress itself has evinced an intention to preclude
a waiver of judicial remedies for the statutory rights at
issue.’ ” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.
12092 GREENWOOD v. COMPUCREDIT CORPORATION
20, 26 (1991) (quoting Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, 473 U.S. 614, 628 (1985)). Congress’
intent to preclude a waiver of judicial remedies must be
shown by the statute’s text, its legislative history, or an inher-
ent conflict between arbitration and the statute’s underlying
purpose. Id. Plaintiffs bear the burden of showing that Con-
gress intended to preclude a waiver of a judicial forum for
CROA claims. See Shearson/Am. Express Inc. v. McMahon,
482 U.S. 220, 227 (1987) (“The burden is on the party oppos-
ing arbitration . . . to show that Congress intended to preclude
a waiver of judicial remedies for the statutory rights at
issue.”).
The majority concludes that the plain language of 15
U.S.C. § 1679c(a) provides consumers with the “right to sue,”
that the right to sue implies a judicial forum, and that 15
U.S.C. § 1679f prohibits any waiver of this right. (Maj. Op.
at 12080.) I submit, however, that the plain language of
§ 1679c(a) does not confer this right upon consumers, and
neither the CROA nor its legislative history shows that Con-
gress intended to preclude a waiver of judicial remedies.
All that § 1679c(a) requires is that a credit repair organiza-
tion provide consumers with the following written disclosure:
You have a right to dispute inaccurate information
in your credit report . . . .
You have a right to obtain a copy of your credit
report . . . .
You have a right to sue a credit repair organiza-
tion that violates the Credit Repair Organization Act.
This law prohibits deceptive practices by credit
repair organizations.
You have the right to cancel your contract with
any credit repair organization for any reason within
3 business days from the date you signed it.
GREENWOOD v. COMPUCREDIT CORPORATION 12093
....
15 U.S.C. § 1679c(a). This section does not purport to create
any substantive rights, including the right to sue. Rather, its
sole purpose is to set forth a disclosure statement to be com-
municated verbatim to consumers.
Each of the rights referred to in § 1679c(a) is separately
conferred within Chapter 41 of Title 15, thus indicating that
Congress included § 1679c(a) to advise consumers of relevant
rights provided for elsewhere in the CROA. See Rex v. CSA-
Credit Solutions of America, Inc., 507 F. Supp. 2d 788, 798-
99 (W.D. Mich. 2007) (“The inclusion of separate sections
actually providing the substantive rights indicates that the lan-
guage in the disclosures in § 1679c does not create any rights.
Rather, the language in § 1679c only sets forth the phrasing
that is to be used in advising consumers of their rights under
other sections of Chapter 41 of Title 15.”). For example, 15
U.S.C. § 1681i provides a consumer with the right to dispute
inaccurate information in his credit report, 15 U.S.C. § 1681j
provides a consumer with the right to obtain a copy of his
credit report, and 15 U.S.C. § 1679e(a) provides a consumer
with the right to cancel a contract with a credit repair organi-
zation within three business days. See Rex, 507 F. Supp. at
799 n.5.
The “right to sue” listed in § 1679c(a) is provided for in 15
U.S.C. § 1679g, which establishes civil liability for violations
of the CROA. Because § 1679g provides for civil liability, a
consumer ordinarily has the “right to sue” a credit repair orga-
nization which violates the CROA. Nowhere in the CROA,
however, does Congress mandate a judicial forum for
enforcement of the CROA’s substantive provisions. The dis-
closure language in § 1679c(a), while recognizing a right to
sue, does not itself confer that right. See Gay v. CreditInform,
511 F.3d 369, 381-82 (3d Cir. 2007) (“Although the statutes
clearly contemplate consumers’ actions being brought in a
judicial forum . . . and to that extent may be said to recognize
12094 GREENWOOD v. COMPUCREDIT CORPORATION
a consumer’s right to proceed in court, they neither contain
provisions creating such rights nor indicate that Congress . . .
intended to exclude claims asserted under the CROA . . . from
arbitration agreements.”). Because § 1679c(a) does not estab-
lish any rights, but only requires credit repair organizations to
make a written disclosure to consumers, the disclosure state-
ment’s mention of a “right to sue” cannot be the basis of a
non-waivable right under 15 U.S.C. § 1679f.
In addition, 15 U.S.C. § 1679f indicates that Congress
intended that CROA claims to be enforceable outside a judi-
cial forum. It provides that “[a]ny waiver . . . of any protec-
tion . . . or any right . . . under this subchapter . . . may not
be enforced by any Federal or State court or any other per-
son.” 15 U.S.C. § 1679f(a) (emphasis added). By including
“or any other person” in the same sentence that lists Federal
and State courts as appropriate fora for CROA claims, Con-
gress clearly indicated that arbitrators, mediators, and other
third parties may decide CROA claims. This language indi-
cates that Congress contemplated a role for arbitrators in
enforcing CROA claims. On the other hand, the majority’s
suggestion that the references to “the court” in § 1679g sup-
port a right to sue in court, does not overcome the “liberal
federal policy favoring arbitration agreements.” Moses H.
Cone Mem’l Hosp., 460 U.S. at 24. Such language merely
indicates Congress’ expectation that the question of civil lia-
bility will normally be resolved in a judicial forum. It does not
confer a non-waivable right to a judicial forum.
Finally, the mere mention of a “right to sue” does not nec-
essarily mean the right to sue in court, especially given the
lack of other statutory language supporting this interpretation.
The only other circuits to have ruled on this issue are in agree-
ment. See Picard v. Credit Solutions, Inc., 564 F.3d 1249,
1255 (11th Cir. 2009) (“Although CROA requires credit
repair organizations to inform consumers of their right to a
private cause of action, such does not preclude arbitration
under CROA”); Gay, 511 F.3d at 377 n.4 (“[15 U.S.C.
GREENWOOD v. COMPUCREDIT CORPORATION 12095
§ 1679c(a)] does not specify the forum for the resolution of
the dispute and therefore does not support [the] argument that
the CROA provides a consumer with the right to bring suit in
a judicial, rather than an arbitral, forum for CROA viola-
tions.”). We should not lightly create a circuit split on an issue
of national application on the basis of the flimsy evidence on
which the majority relies. See Maniar v. Fed. Deposit Ins.
Corp., 979 F.2d 782, 785 (9th Cir. 1992) (“[U]niformity
among the circuits in matters having general application to the
various states is preferable as long as individual justice is not
sacrificed.”). We should be “hesitant to create such a split,
and we should do so only after the most painstaking inquiry”
and only if required by the “unambiguously expressed intent
of Congress.” Zimmerman v. Dep’t of Justice, 170 F.3d 1169,
1183-84 (9th Cir. 1999).
The majority does not even address whether the legislative
history of the CROA or any inherent conflict between arbitra-
tion and the statute’s underlying purpose may form a basis for
prohibiting waiver of the judicial forum. Nothing cited by
Plaintiffs suggests that Congress actually considered the issue
of arbitrability of CROA claims, and the legislative history
does not establish that Congress intended CROA claims to be
non-arbitrable. See Rex, 507 F. Supp. 2d at 800 (“In the
absence of any discussion of arbitration in the legislative his-
tory, the legislative history cannot provide a basis for the
Court to conclude that Congress intended claims under the
CROA to be nonarbitrable.”). In addition, there is no inherent
conflict between arbitration and CROA’s underlying purpose
because Plaintiffs may enforce their rights under the substan-
tive provisions of CROA even if compelled to arbitrate. See
Mitsubishi Motors Corp., 473 U.S. at 628 (“By agreeing to
arbitrate a statutory claim, a party does not forgo the substan-
tive rights afforded by the statute; it only submits to their res-
olution in an arbitral, rather than a judicial, forum.”).
Because neither the plain text of the statute, its legislative
history, nor any inherent conflict between the purpose of
12096 GREENWOOD v. COMPUCREDIT CORPORATION
CROA and arbitration shows that Congress intended to pre-
clude a waiver of judicial remedies, I would reverse the dis-
trict court’s order and remand with instructions to compel
arbitration.