Petition for Writ of Certiorari — Credit One Bank, N.A., Petitioner v. Orrin S. Anderson

No. 17IN THE

Supreme Court of the United States

CREDIT ONE BANK, N.A.,

Petitioner,

v.

ORRIN S. ANDERSON,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

NOAH A. LEVINE

ALAN E. SCHOENFELD

STEPHANIE SIMON

WILMER CUTLER PICKERING

HALE AND DORR LLP

7 World Trade Center

250 Greenwich Street

New York, NY 10007

(212) 230-8875

SETH P. WAXMAN

Counsel of Record

DAVID M. LEHN

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

seth.waxman@wilmerhale.com

QUESTION PRESENTED

Whether an agreement that requires a customer to

resolve a dispute through arbitration is enforceable under the Federal Arbitration Act, 9 U.S.C. §1 et seq.,

notwithstanding the provisions of the Bankruptcy Code

providing for a statutorily enforceable discharge of a

debtor’s debts.

(i)

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, petitioner

discloses the following. Petitioner, Credit One Bank,

N.A., is a wholly owned subsidiary of Credit One Financial, a privately held corporation. No publicly held

company owns 10% or more of its stock.

(ii)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............................................ i

CORPORATE DISCLOSURE STATEMENT ............. ii

TABLE OF AUTHORITIES ........................................... v

INTRODUCTION .............................................................. 1

OPINIONS BELOW .......................................................... 3

JURISDICTION ................................................................. 3

STATUTORY PROVISIONS INVOLVED .................. 4

STATEMENT ..................................................................... 4

A. Factual Background ............................................. 4

B. Proceedings Below ................................................ 6

REASONS FOR GRANTING THE PETITION ................................................................................. 11

I.

THE DECISION BELOW DIRECTLY CONTRADICTS THIS COURT’S RECENT DECISION

IN EPIC SYSTEMS AND A LONG LINE OF

EARLIER PRECEDENT ............................................... 11

II. THIS CASE PRESENTS A TIMELY OPPORTUNITY TO CLEAR CONFUSION AMONG THE

LOWER COURTS .......................................................... 23

CONCLUSION ................................................................. 28

APPENDIX A: Opinion of the United States

Court of Appeals for the Second Circuit

(Mar. 7, 2018) ............................................................... 1a

APPENDIX B: Opinion & Order of the United

States District Court for the Southern District of New York (June 14, 2016) .......................... 19a

(iii)

iv

TABLE OF CONTENTS—Continued

Page

APPENDIX C: Order on Defendants’ Motions

to Compel Arbitration, to Strike Class Allegations, and to Dismiss or Stay of the United States Bankruptcy Court for the Southern District of New York (May 14, 2015) ............... 41a

APPENDIX D: Transcript of Status Conference in the United States Bankruptcy Court

for the Southern District of New York (May

5, 2015) ........................................................................ 43a

APPENDIX E: First National Bank of Marin,

Partially Secured Visa/Mastercard Cardholder Agreement, Disclosure Statement,

and Arbitration Agreement (excerpt) .................... 51a

APPENDIX F: Amended Class Action Adversary Complaint of the United States Bankruptcy Court for the Southern District of

New York (Jan. 30, 2015) ......................................... 59a

APPENDIX G: Relevant Statutory Provisions

9 U.S.C. §2 ................................................................. 81a

9 U.S.C. §4 ................................................................. 81a

11 U.S.C. §105 ........................................................... 83a

11 U.S.C. §524(a) ..................................................... 84a

v

TABLE OF AUTHORITIES

CASES

Page(s)

American Express Co. v. Italian Colors

Restaurant, 570 U.S. 228 (2013) ......................... 20, 22

AT&T Mobility LLC v. Concepcion, 563 U.S.

333 (2011) ..................................................................... 23

CompuCredit Corp. v. Greenwood, 565 U.S. 95

(2012) ...................................................................... 18, 22

Dean Witter Reynolds, Inc. v. Byrd, 470 U.S.

213 (1985) ............................................................... 12, 23

Echevarria v. Bank of Am. Corp., Tr. of Hearing re: Mot. to Dismiss Adv. Proc., No. 1408216, Dkt. 36 (Bankr. S.D.N.Y. Aug. 28,

2014) ................................................................................... 9

Epic Systems Corp. v. Lewis, No. 16-285, Slip

op. (U.S. May 21, 2018) .................... 1, 13-14, 20-22, 24

Green Tree Financial Corp.–Alabama v. Randolph, 531 U.S. 79 (2000) ........................................... 15

Gilmer v. Interstate/Johnson Lane Corp., 500

U.S. 20 (1991) .........................................................15-18

Hays & Co. v. Merrill Lynch, Pierce, Fenner &

Smith, Inc., 885 F.2d 1149 (3d Cir. 1989) ................ 25

In re Belton, 2014 WL 5819586 (Bankr.

S.D.N.Y. Nov. 10, 2014) ............................................... 8

In re Eber, 687 F.3d 1123 (9th Cir. 2012) ....................... 27

In re EPD Investment Co. 821 F.3d 1146 (9th

Cir. 2016) ...................................................................... 26

In re Gandy, 299 F.3d 489 (5th Cir. 2002) ...................... 25

vi

TABLE OF AUTHORITIES—Continued

Page(s)

In re Haynes, 2014 WL 3608891 (Bankr.

S.D.N.Y. July 22, 2014) .......................................... 9, 17

In re Mintze, 434 F.3d 222 (3d Cir. 2006) ....................... 24

In re National Gypsum Co., 118 F.3d 1056 (5th

Cir. 1997) .................................................................24-25

In re Thorpe Insulation Co., 671 F.3d 1011 (9th

Cir. 2012) ...................................................................... 26

In re White Mountain Mining Co., 403 F.3d

164 (4th Cir. 2005)....................................................... 26

In re United States Lines, Inc., 197 F.3d 631

(2d Cir. 1999) ............................................................... 26

MBNA America Bank, N.A. v. Hill, 436 F.3d

104 (2d Cir. 2006) .......................................................... 7

Mitsubishi Motors Corp. v. Soler Chrysler–

Plymouth, Inc., 473 U.S. 614 (1985) ...................12-14

Moses H. Cone Memorial Hospital v. Mercury

Construction Corp., 460 U.S. 1 (1983) ............... 12, 20

Moses v. CashCall, Inc., 781 F.3d 63 (4th Cir.

2015) ............................................................................. 26

Rodriguez de Quijas v. Shearson/American

Express, Inc., 490 U.S. 477 (1989)...................... 15, 18

Shearson/American Express Inc. v. McMahon,

482 U.S. 220 (1987) ............................................ passim

Walls v. Wells Fargo Bank, N.A., 276 F.3d 502

(9th Cir. 2002).............................................................. 16

Wellness International Network, Ltd. v.

Sharif, 135 S. Ct. 1932 (2015) .................................... 22

vii

TABLE OF AUTHORITIES—Continued

Page(s)

STATUTES AND REGULATIONS

9 U.S.C.

§2 ................................................................................... 12

§3 ..................................................................................... 7

§4 ..................................................................................... 7

§16 ................................................................................... 8

11 U.S.C.

§105 ......................................................................... 16, 22

§362 ................................................................................. 7

§524 ..................................................................... 6, 16, 22

28 U.S.C.

§157 ............................................................................... 22

§158 ............................................................................... 22

§1254 ............................................................................... 3

§1334 ........................................................................17-18

Federal Financial Institutions Examination

Council, Uniform Retail Credit Classification and Account Management Policy,

65 Fed. Reg. 36,903 (June 12, 2000) ........................... 5

Procedures to Enhance the Accuracy and Integrity of Information Furnished to Consumer Reporting Agencies Under Section

312 of the Fair and Accurate Credit

Transactions Act, 74 Fed. Reg. 31,484

(July 1, 2009).................................................................. 6

OTHER AUTHORITIES

Consumer Data Industry Association, 2015

Credit Reporting Resource Guide (2015)...............5-6

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Kirgis, Paul F., Arbitration, Bankruptcy, and

Public Policy: A Contractarian Analysis,

17 Am. Bankr. Inst. L. Rev. 503 (2009) ................... 23

Leventhal, Alex & Roni A. Elias, Competing

Efficiencies: The Problem of Whether and

When to Refer Disputes to Arbitration in

Bankruptcy Cases, 24 Am. Bankr. Inst. L.

Rev. 133 (2016) ............................................................ 23

Resnick, Alan N., The Enforceability of

Arbitration Clauses in Bankruptcy,

15 Am. Bankr. Inst. L. Rev. 183 (2007) ..............23-24

IN THE

Supreme Court of the United States

No. 17CREDIT ONE BANK, N.A.,

Petitioner,

v.

ORRIN S. ANDERSON,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Credit One Bank, N.A., respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Second Circuit in this

case.

INTRODUCTION

In Epic Systems Corp. v. Lewis, No. 16-285 (U.S.

May 21, 2018), this Court rejected a litigant’s attempt

to carve an exception for federal labor-law claims out of

the Federal Arbitration Act’s mandate to enforce arbitration agreements.

The Court reaffirmed its

longstanding view that another federal statute can render an arbitration agreement unenforceable notwithstanding the Arbitration Act’s mandate to enforce such

agreements only if that was Congress’s clear and manifest intent.

2

The court of appeals held in this case that respondent’s statutory claim under the Bankruptcy Code for

violation of the discharge injunction may not be arbitrated under the parties’ arbitration agreement, even

though the agreement is undisputedly otherwise enforceable and covers respondent’s claim. That decision

cannot be reconciled with Epic Systems. Nothing in

the Bankruptcy Code evidences a clear and manifest

congressional intent to displace the Arbitration Act’s

command as to claims for violation of the statutory discharge injunction. Rather, emphasizing the importance

of the discharge injunction to the Bankruptcy Code, the

court of appeals found an inherent conflict between arbitration and the purpose of the Bankruptcy Code to

provide debtors a fresh start.

That is not the kind of conflict this Court has rightly insisted on to imply repeal of the Arbitration Act, for

it restores the very hostility toward arbitration that

Congress intended the Act to reverse. Across decades

of decisions addressing the interplay between the Arbitration Act and all sorts of federal statutes, this Court

has maintained that an inherent conflict sufficient to

displace the Arbitration Act’s mandate may be found

only where the arbitral forum would not enable the litigant resisting arbitration to effectively vindicate his

substantive federal rights. The court below made no

such finding about the statutory claim here (nor could it

have).

Although this Court has rejected all of the many

attempts to claim that arbitration conflicts irreconcilably with one federal statute or another, the lower

courts have been flummoxed by the Bankruptcy Code,

which this Court has never addressed for these purposes. The Second Circuit has fashioned a bespoke test to

address the question whether claims arising in bank-

3

ruptcy are arbitrable, and that court is not alone in doing so. This Court’s progressive clarification of the

proper conflict analysis in cases involving other federal

statutes has failed to bring uniformity to the lower

courts when it comes to bankruptcy. But there is nothing special about statutory claims for violation of the

discharge injunction under the Bankruptcy Code that

warrants different treatment or diminished respect for

Congress’s command to enforce arbitration agreements.

This Court, therefore, should take this opportunity

to announce that the same test used in Epic Systems

and its predecessors applies in the bankruptcy context

here, and hold that the arbitration agreement here

must be enforced according to its terms. Alternatively,

the Court should grant, vacate, and remand in light of

its intervening decision in Epic Systems.

OPINIONS BELOW

The court of appeals’ opinion (App. 1a-17a) is reported at 884 F.3d 382. The opinion and order of the

district court (App. 19a-40a) is reported at 553 B.R. 221.

The relevant opinion of the bankruptcy court (App. 43a50a) is unreported.

JURISDICTION

The court of appeals entered judgment on March 7,

2018. This Court has jurisdiction under 28 U.S.C.

§1254(1).

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved are 9 U.S.C. §§2

and 4 and 11 U.S.C. §§105 and 524(a). They are reproduced in the Appendix.

4

STATEMENT

A. Factual Background

Orrin Anderson opened a credit-card account in

2002 with First National Bank of Marin, the predecessor to Credit One, N.A. Anderson’s cardholder agreement contained an arbitration clause governed by the

Federal Arbitration Act, 9 U.S.C. §1 et seq. The

agreement provides that “[y]ou and we [i.e., the bank]

agree that either you or we may, without the other’s

consent, require that any controversy or dispute between you and us” be “submitted to mandatory, binding

arbitration.” App.51a. The agreement expressly covers disputes relating to “credit reporting” and “collections matters” (App.52a), as well as claims for “injunctive or declaratory relief” (App.53a). It also expressly

states that arbitration “replaces the [cardholder’s]

right to go to court, including … the right to participate

in a class action or similar proceeding” (App.51a), and

requires that claims “made as part of a class action or

other representative action” be arbitrated “on an individual basis” (App.53a-54a).1

In 2011, Anderson defaulted on his Credit One

credit-card account. As required by federal regulations, after 180 days of nonpayment, Credit One

“charged off” Anderson’s account, i.e., reclassified the

account from a receivable to a loss. See Federal Financial Institutions Examination Council, Uniform Retail Credit Classification and Account Management

1

First National Bank of Marin changed its name to Credit

One Bank, N.A., in February 2006, and the terms of Anderson’s

cardmember agreement were amended from time to time. None

of the amendments materially changed the provisions of the arbitration agreement just discussed.

5

Policy, 65 Fed. Reg. 36,903, 36,904 (June 12, 2000)

(“open-end retail loans that become past due 180 cumulative days from the contractual due date should be

classified Loss and charged off”). Consistent with federal regulatory guidance and industry practice, Credit

One reported to the national credit reporting agencies

that Anderson’s debt was charged off.

In 2012, Credit One sold Anderson’s account to a

third-party debt buyer. Again consistent with industry

practice, Credit One reported to the credit reporting

agencies that Anderson’s debt was charged off and sold

to another lender, and that zero dollars were owed to

Credit One on the account. See also Consumer Data

Indus. Ass’n, 2015 Credit Reporting Resource Guide 514, 6-46 (2015).

Two years later, Anderson filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court

for the Southern District of New York. On May 6,

2014, the court entered a form “Discharge of Debtor/Order of Final Decree,” and closed Anderson’s bankruptcy case. C.A.J.A.73. Anderson subsequently informed Credit One of his bankruptcy discharge and requested that the bank direct the credit reporting agencies to remove from his credit report the indication that

Credit One had charged off his account. C.A.J.A.92-93.

The fact that Credit One charged off Anderson’s debt,

however, remained true—irrespective of the debt’s discharge in bankruptcy—and Credit One declined to

make the change.2

2

As the federal regulators who oversee credit reporting have

explained more generally, they “do not expect that after transferring an account to a third party a furnisher would update the current status of the account beyond providing information to a [cred-

6

B. Proceedings Below

In late 2014, the bankruptcy court granted Anderson’s motion to reopen his bankruptcy case so that he

could initiate the adversary proceeding giving rise to

this appeal on behalf of himself and a putative class,

challenging Credit One’s credit-reporting practices

with respect to charged-off, sold credit-card debt subsequently discharged in a Chapter 7 bankruptcy. The

complaint alleges that Credit One’s failure to report

updates to the credit reporting agencies to reflect postsale bankruptcy discharges on its former credit-card

accounts was intended to coerce payment on discharged

debt, in violation of the discharge injunction in bankruptcy, 11 U.S.C. §524. See App.59a-79a. Anderson’s

class allegations start from the premise that the United

States Bankruptcy Court for the Southern District of

New York—where his putative class action is pending—is empowered to enforce the statutory discharge

injunction of §524 as to discharge orders entered by

bankruptcy courts across the country in the hundreds

of thousands of individual bankruptcy cases filed by putative class members.

Credit One moved the bankruptcy court to stay

Anderson’s adversary proceeding in favor of arbitration under Section 3 of the Arbitration Act, 9 U.S.C. §3,

and to compel him to arbitrate his claim under

it bureau] that the account has been transferred.” Procedures to

Enhance the Accuracy and Integrity of Information Furnished to

Consumer Reporting Agencies Under Section 312 of the Fair and

Accurate Credit Transactions Act, 74 Fed. Reg. 31,484, 31,494

(July 1, 2009). Industry guidance is consistent. See 2015 Credit

Reporting Resource Guide, 5-14 n.2 (transfer of an account is a

“final status” report on the account “which does not require further updating”).

7

§524(a)(2), under Section 4, 9 U.S.C. §4. The bankruptcy court denied the motion. The court explained that

the arbitrability of claims in bankruptcy was governed

in the Second Circuit by the court of appeals’ decision

in MBNA America Bank, N.A. v. Hill, 436 F.3d 104 (2d

Cir. 2006), which held that “the bankruptcy court will

not have discretion to override an arbitration agreement unless it finds that the proceedings are based on

provisions of the Bankruptcy Code that ‘inherently conflict’ with the Arbitration Act or that arbitration of the

claim would ‘necessarily jeopardize’ the objectives of

the Bankruptcy Code.” Id. at 108. Applying that

standard, the court of appeals held in Hill that arbitrating the plaintiff’s claim for violation of the automatic

stay in bankruptcy, 11 U.S.C. §362, would not jeopardize the objectives of the Code, primarily because arbitration of her claim “would not interfere with or affect

the distribution of the estate,” 436 F.3d at 109. That

was so, the court observed, in part because plaintiff’s

debts had been discharged and her bankruptcy case

closed, and so she no longer needed the automatic stay

to preserve her “fresh start” in bankruptcy. Id.

Applying Hill, the bankruptcy court concluded that

arbitration of Anderson’s §524 claim would undermine

the objectives of the Bankruptcy Code primarily because “Hill[] put a premium on the debtor’s fresh

start,” and so where, as here, the debtor’s “fresh start”

is implicated, Congress intended to preclude arbitration. App.49a.3 The court further explained that it was

3

Anderson did not challenge the scope or validity of the parties’ arbitration agreement; he argued only that his §524 claim was

nonarbitrable. See Adv. Proc. No. 15-8214, Dkt. 9 at 5-7 (Bankr.

S.D.N.Y. Apr. 28, 2015).

8

“hard … to believe that Congress, where there was an

allegation that the discharge is being violated, would so

jeopardize the fresh start as to require the debtor to

shell out the cost of an arbitration.” Id. Finally, notwithstanding the parties’ agreement explicitly authorizing arbitration of claims for “injunctive or declaratory

relief” (App.53a), and giving the arbitrator “the power

to award to a party any damages or other relief provided for under applicable law” (App.56a), and notwithstanding the bankruptcy court’s recognition that it is

“generally accepted” that arbitrators have the power to

provide equitable and injunctive relief, see App.49a (citing In re Belton, 2014 WL 5819586, at *10 (Bankr.

S.D.N.Y. Nov. 10, 2014), rev’d, 2015 WL 6163083

(S.D.N.Y. Oct. 14, 2015)), the court articulated its “concern[] that there’s no express acknowledgement of equitable relief or injunctive relief” in the arbitration

agreement because “that power is at best hazy and

time consuming if one goes the arbitration route even

when there is an express acknowledgment of injunctive

and equitable remedies in the agreement” (App.49a).

The bankruptcy court thus concluded that “arbitration

was not intended by Congress when a violation of the

discharge was at issue … whether that’s for an individual debtor … or debtors generally.” App.49a-50a.

On interlocutory appeal under 9 U.S.C. §16, the district court affirmed, holding that claims under §524 are

“core” bankruptcy proceedings, and that arbitrating

such claims would “necessarily jeopardize[] the objectives of the Bankruptcy Code.” App.22a. Specifically,

the district court, like the bankruptcy court, found that

ensuring debtors’ “fresh start” is the “central objective

of the Bankruptcy Code,” and concluded that arbitration

is “inadequate” to preserve that right in view of the

9

“high barriers” a debtor might confront “if arbitrating on

an individual basis.” App.35a-36a & n.9.

The court also reasoned that because “the claims

here arise from a discharge injunction, which is an affirmative order of the bankruptcy court,” arbitration

would necessarily interfere with the bankruptcy court’s

authority to enforce its own orders. App.36a. That was

not a concern the bankruptcy court itself had raised. Indeed, in the course of a parallel adversary proceeding

involving materially identical claims against a different

financial institution, the bankruptcy court had repeatedly remarked on the absence of any consequential relationship between the statutory discharge injunction and

the issuing court, observing the “fundamental difference

between the normal injunction issued by a court after

considering the factors required to be applied in issuing

an injunction order and the injunction created by Congress in Section 524(a) to support the discharge[.]” In re

Haynes, 2014 WL 3608891, at *8 (Bankr. S.D.N.Y. July

22, 2014). As the bankruptcy court explained, “the bankruptcy discharge order is a … national form, which is issued in every case when there is, in fact, a discharge. By

statute, in [Section] 524(a)(2), it operates as an injunction,” but “[i]t is not a handcrafted order.” Id.; see Echevarria v. Bank of Am. Corp., Tr. of Hearing re: Mot. to

Dismiss Adv. Proc. 37-38, No. 14-08216, Dkt. 36 (Bankr.

S.D.N.Y. Aug. 28, 2014) (Court: “It’s the statute itself

that sets forth the [discharge] injunction[.]”).

The Second Circuit affirmed. The court explained

that, in determining the arbitrability of Anderson’s §524

claim, it would follow a multi-step test uniquely fashioned for bankruptcy claims. First, the court must determine “whether the issue involves a ‘core’ or ‘non-core’

proceeding.” App.8a. “If the proceeding is ‘non-core,’

bankruptcy courts generally must stay the proceedings

10

in favor of arbitration.” Id. (quotation marks omitted).

“If the matter involves a core proceeding, the bankruptcy court is tasked with engaging in a particularized inquiry into the nature of the claim and the facts of the

specific bankruptcy. If the bankruptcy court determines

that arbitration would create a severe conflict with the

purposes of the Bankruptcy Code, it has discretion to

conclude that Congress intended to override the Arbitration Act’s general policy favoring the enforcement of

arbitration agreements.” Id. (citation and quotation

marks omitted).

Applying this protocol to Anderson’s concededly

“core” claim, the court of appeals concluded that arbitration of Anderson’s claim under §524(a)(2) would “seriously jeopardize” his bankruptcy proceeding because “1) the

discharge injunction is integral to the bankruptcy court’s

ability to provide debtors with the fresh start that is the

very purpose of the Code; 2) the claim regards an ongoing bankruptcy matter that requires continuing court

supervision; and 3) the equitable powers of the bankruptcy court to enforce its own injunctions are central to

the structure of the Code.” App.13a.4

4

While recognizing that Anderson, as the party resisting arbitration, bore the “burden … to show that Congress intended to

preclude a waiver of judicial remedies for the statutory rights at

issue,” the court of appeals faulted Credit One for allegedly failing

to raise certain textual and legislative history arguments below in

support of its argument that Congress lacked that intent.

App.10a. That is wrong—Credit One had made those arguments

below (e.g., Dkt. 7 at 17-19 & n.11, No. 15-8214 (Bankr. S.D.N.Y.

Mar. 3, 2015))—and in any event immaterial: The question of congressional intent is purely a legal one.

11

REASONS FOR GRANTING THE PETITION

I.

THE DECISION BELOW DIRECTLY CONTRADICTS THIS

COURT’S RECENT DECISION IN EPIC SYSTEMS AND A

LONG LINE OF EARLIER PRECEDENT

The decision below cannot be squared with a long

line of this Court’s precedent holding that federal statutory claims are arbitrable unless Congress clearly

commanded otherwise. As this Court has explained in

a series of decisions dating back more than thirty years,

federal statutory claims are presumptively arbitrable,

and the party resisting arbitration bears a heavy burden in demonstrating that Congress clearly intended

otherwise. This inquiry is so demanding that the Court

has yet to recognize a single federal statutory claim

that is unsuited for arbitration.

In allowing respondent to avoid the plain terms of

his otherwise-enforceable arbitration agreement, however, the Second Circuit unaccountably applied a test it

created specifically to evaluate the arbitrability of statutory claims arising under the Bankruptcy Code:

whether there is a conflict between arbitration and the

Bankruptcy Act’s goals of granting debtors a fresh

start and efficiently and effectively resolving bankrupt

estates.

The Second Circuit’s permissive standard for determining whether there is an “inherent conflict” in the

bankruptcy context, if sustained, would mean that virtually no claim arising under the Bankruptcy Code—or

any other federal statute, since there is no reason the

test should be confined to bankruptcy—would be arbitrable, contrary to the established federal policy favoring the enforcement of arbitration agreements. That

obviously contravenes this Court’s many precedents on

the arbitrability of federal statutory claims. Indeed,

12

just two weeks ago, in Epic Systems, this Court declared that even statutory provision for federal judicial

procedures to resolve federal statutory claims, without

more, does not evince the clear and manifest congressional intent needed to displace the Arbitration Act’s

mandate that federal courts respect arbitration agreements.

A. A plaintiff seeking to persuade a federal court

to disregard an arbitration agreement faces a heavy

burden. Embodying a “‘liberal federal policy favoring

arbitration agreements,’” Mitsubishi Motors Corp. v.

Soler Chrysler–Plymouth, Inc., 473 U.S. 614, 627 (1985)

(quoting Moses H. Cone Memorial Hospital v. Mercury

Construction Corp., 460 U.S. 1, 24 (1983)), the Arbitration Act “mandates enforcement of agreements to arbitrate statutory claims,” Shearson/American Express

Inc. v. McMahon, 482 U.S. 220, 226 (1987); see 9 U.S.C.

§2.

Accordingly, “courts must rigorously enforce

agreements to arbitrate.” Dean Witter Reynolds, Inc.

v. Byrd, 470 U.S. 213, 221 (1985).

This mandate “may be overridden,” but only “by a

contrary congressional command.” McMahon, 482 U.S.

at 226. For “[j]ust as it is the congressional policy manifested in the Federal Arbitration Act that requires

courts liberally to construe the scope of arbitration

agreements covered by that Act, it is the congressional

intention expressed in some other statute on which the

courts must rely to identify any category of claims as to

which agreements to arbitrate will be held unenforceable.” Mitsubishi Motors, 473 U.S. at 627. Accordingly,

a plaintiff seeking to avoid an arbitration agreement

and pursue a federal statutory claim in court must show

that Congress “intend[ed] to limit or prohibit waiver of

a judicial forum for a particular claim.” McMahon, 482

U.S. at 227. Such intent may be found only in the other

13

Act’s “text or legislative history,” or in “an inherent

conflict between arbitration and the [other] statute’s

underlying purposes.” Id. (quoting Mitsubishi Motors,

473 U.S. at 628).5

Reflecting this Court’s respect for Congress’s will,

the “inherent conflict” test has proved exacting. “In

many cases over many years,” this Court declared recently, “this Court has heard and rejected efforts to

conjure conflicts between the Arbitration Act and other federal statutes. In fact, this Court has rejected every such effort to date[.]” Epic Systems, Slip op. 16

(May 21, 2018).

For at least forty years, the Court has maintained

that there is an inherent conflict between arbitration

5

An ancillary defect in the Second Circuit’s approach is what

happens if the court finds a conflict: the Arbitration Act’s mandate

recedes and the bankruptcy court gains discretion to override the

otherwise-binding arbitration agreement based on its balancing of

the parties’ respective interests. The notion that an inherent conflict affords the court such discretion is found in no other context.

It also makes no sense and contradicts this Court’s precedent:

The question is one of congressional intent. If there is no inherent

conflict, then the Arbitration Act requires enforcement of a valid

arbitration agreement. If arbitration is instead irreconcilable with

the Bankruptcy Code, then the Code should be understood to reflect Congress’s intent to bar enforcement of an arbitration

agreement. Accordingly, as the quotations from Mitsubishi Motors and McMahon in text above show, whenever this Court has

considered the interplay between the Arbitration Act and another

federal statute, it has understood the question to be whether the

arbitration agreement was enforceable, not whether enforcement

was optional. See also, e.g., Epic Systems, Slip op. 24 (“the Arbitration Act … speaks directly to the enforceability of arbitration

agreements”); McMahon, 482 U.S. at 222 (“This case presents two

questions regarding the enforceability of predispute arbitration

agreements between brokerage firms and their customers.”).

14

and another federal statute only where the litigant

could not effectively vindicate the claim under that

statute in arbitration. Litigants have been advancing

increasingly aggressive arguments that arbitration

would be at odds with the importance of the asserted

federal claim, the federal judicial scheme erected to resolve such claims, or the underlying interests. But time

and again, this Court has rejected those arguments,

finding them insufficient to show an inherent conflict

that overcomes the strong federal policy favoring enforcement of arbitration agreements.

For example:



In Mitsubishi Motors, the Court rejected

the notion that the “fundamental importance” of

the federal antitrust laws justified departure from

the Federal Arbitration Act’s mandate, explaining

that “so long as the prospective litigant effectively

may vindicate [his or her] statutory cause of action

in the arbitral forum, the [antitrust] statute will

continue to serve both its remedial and deterrent

function.” 473 U.S. at 634, 637.



In McMahon, the Court reached the same

conclusion regarding claims asserted under the

Racketeer Influenced and Corrupt Organizations

Act and section 10(b) of the Securities Exchange

Act of 1934. Dismissing the plaintiffs’ insistence

that arbitration would undermine “the public interest in the enforcement” of those federal laws, the

Court held that there was no inherent conflict

evincing congressional intent to preclude arbitration because “[t]he suitability of arbitration as a

means of enforcing [the plaintiffs’] rights is evident.” 482 U.S. at 231-232, 240. The Court explained that if the litigant “may effectively vindi-

15

cate their … claim in an arbitral forum, … there is

no inherent conflict between arbitration and” the

other Act that would indicate congressional intent

to override the Arbitration Act’s mandate, id. at

242; such a conflict exists “only where arbitration is

inadequate to protect the substantive rights at issue,” id. at 229; see also id. at 239-240, 242; accord

Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 481, 483-484 (1989).



In Gilmer v. Interstate/Johnson Lane

Corp., the Court found no “inherent inconsistency

between” arbitration and the “important social policies” underlying the Age Discrimination in Employment Act (“ADEA”) because arbitration “can

further broader social purposes.” 500 U.S. 20, 27-28

(1991).



In Green Tree Financial Corp.–Alabama

v. Randolph, the Court declined to invalidate an

agreement to arbitrate claims under the Truth in

Lending Act and the Equal Credit Opportunity Act

because the record did not show that arbitration

costs would be so great as to render the plaintiff

“unable to vindicate her statutory rights in arbitration.” 531 U.S. 79, 90-91 (2000). The Court again

stressed that “even claims arising under a statute

designed to further important social policies may

be arbitrated because ‘so long as the prospective

litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum,’ the statute serves its functions.” Id. (quoting Gilmer, 500

U.S. at 28).

B. This was the law as it stood when the court of

appeals issued its decision in this case, and it cannot be

squared with that court’s holding that Congress in-

16

tended that the Arbitration Act not apply to statutory

discharge-injunction claims brought under the Bankruptcy Code.

Nothing in the text or legislative history of the

Bankruptcy Code suggests an intent to preclude arbitration. Anderson’s claim arises under 11 U.S.C. §524,

which provides that a discharge under the Code “operates as an injunction against … an act, to collect, recover or offset any such debt as a personal liability of the

debtor, whether or not discharge of such debt is

waived.” Section 524 does not include an explicit enforcement mechanism, but rather is enforceable

through Section 105 of the Bankruptcy Code, which authorizes the bankruptcy court to “issue any order, process, or judgment that is necessary or appropriate to

carry out the provisions of this title.” Id. §105(a); see,

e.g., Walls v. Wells Fargo Bank, N.A., 276 F.3d 502,

506-507 (9th Cir. 2002) (“bankruptcy court is authorized

to invoke §105 to enforce the discharge injunction”).

There is no indication in either provision—or any other

provisions of the Code—that Congress intended to preclude arbitration of §524 claims.6

6

The court of appeals took the view that Anderson’s statutory claim for violation of the discharge injunction implicated the

bankruptcy court’s “unique expertise in interpreting its own injunctions and determining when they have been violated,” and so

could not be referred to an arbitrator. App.15a. But as the bankruptcy court acknowledged, the discharge order referenced by

§524 is a form order entered in materially identical terms in every

bankruptcy case and is generally not even reviewed by the issuing

court. See supra pp.5, 9; In re Haynes, 2014 WL 3608891, at *8.

The discharge injunction thus requires no special expertise or familiarity with the underlying bankruptcy proceedings to enforce.

Indeed, the entire premise of Anderson’s putative nationwide

class action is that one bankruptcy court can dispose of hundreds

17

To the extent statutory text provides any indication of congressional intent on this question, it demonstrates that Congress did not intend for §524 claims to

be litigated exclusively in the bankruptcy court and

therefore excepted from the Arbitration Act. Congress

has carefully parceled jurisdiction over bankruptcyrelated claims among the federal district and bankruptcy courts, granting federal district courts “original but

not exclusive jurisdiction of all civil proceedings arising

under title 11,” 28 U.S.C. §1334(b), except with respect

to “claims or causes of action that involve construction

of section 327 of title 11,” concerning the retention and

compensation of professionals in connection with bankruptcy proceedings, over which the district court has

“exclusive jurisdiction,” id. §1334(e)(2).

This arrangement strongly supports the view that

§524 claims are arbitrable. In Gilmer, this Court found

that “Congress’ grant of concurrent jurisdiction over

ADEA claims to state and federal courts” supported

the conclusion that Congress did not intend to preclude

arbitration of such claims, “because arbitration agreements, like the provision for concurrent jurisdiction,

serve to advance the objective of allowing claimants a

broader right to select the forum for resolving disputes,

whether it be judicial or otherwise.” 500 U.S. at 29

(quotation marks, citation, and brackets omitted); see

also Rodriguez de Quijas, 490 U. S. at 482-483 (Congress’s grant of concurrent federal-state jurisdiction

over claims under the Securities Act “suggest[s] that

arbitration agreements, which are in effect, a specialized kind of forum-selection clause, … should not be

of thousands of discharge-injunction claims concerning discharge

orders entered by bankruptcy courts throughout the country.

18

prohibited under the Securities Act” (quotation marks

and citation omitted)). Likewise here, far from specifying that §524 claims must have the special protection of

bankruptcy courts—the kind of “contrary congressional

command” that the Court has required for finding an

exception to the Arbitration Act’s mandate to honor

arbitration agreements, McMahon, 482 U.S. at 226—

Congress has made quite clear that bankruptcy court is

not a required forum for these claims.7

With nothing in the text or legislative history supporting it, the court of appeals resorted to a finding of

inherent conflict based on its view that certain features

of the federal bankruptcy system were important to the

ability of the federal courts to grant debtors a fresh

start. According to the court, “discharge is the paramount tool used to effectuate the central goal of bankruptcy: providing debtors a fresh financial start.”

App.13a. And, the court said, judicial “enforcement” of

discharge injunctions (even “after the close of [bankruptcy] proceedings”) “is a crucial pillar of the powers

of the bankruptcy courts and central to the statutory

scheme.” App.14a. “Because there is no matter more

central to the purposes and policies of the Bankruptcy

Code than the fresh start provided by discharge,” the

court concluded, “arbitration of [respondent’s] claim

presents an inherent conflict with the Bankruptcy

7

This inference is bolstered by the fact that Congress provided for exclusive federal-court jurisdiction over some bankruptcyrelated claims (but not §524 claims), see 28 U.S.C. §§1334(a) & (e),

and did so in 2005, after “a string of this Court’s decisions compelling arbitration” that “alerted Congress to the utility of drafting

antiwaiver prescriptions with meticulous care,” CompuCredit

Corp. v. Greenwood, 565 U.S. 95, 116 & n.6 (2012) (Ginsburg, J.,

dissenting).

19

Code.” App.13a (quotation marks omitted); see also id.

(“we find that arbitration of a claim based on an alleged

violation of Section 524(a)(2) would seriously jeopardize

a particular core bankruptcy proceeding” (quotation

marks omitted)).

Under this Court’s precedent, these considerations

of the importance of the discharge to the Bankruptcy

Code are irrelevant. As just explained, the importance

of a public interest protected by a federal judicial

scheme is not a proper basis for finding an inherent

conflict with arbitration. Many federal rights are important, but Congress’s recognition of that importance

does not indicate one way or the other whether Congress intended statutory claims implicating such rights

to be nonarbitrable. At bottom, the Second Circuit’s

reasoning amounted to nothing more than a conclusion

that the federal judicial process is important and arbitration is not the same thing. But if that is all that can

be said about the difference between arbitration and

the relevant judicial proceedings, the congressionally

prescribed strong presumption in favor of enforcing arbitration agreements must prevail.

Moreover, the court below never considered the

one question that mattered: whether Anderson could

use arbitration to effectively vindicate his alleged right

to compel Credit One “to update the credit reporting

agencies regarding the discharged debt.” App.6a. (For

the record, he could. See App.52a-54a (defining scope of

claims and relief available in arbitration); infra, p.4.)

By thus privileging a federal forum over an arbitral forum because of the importance of the federal right, the

court below exhibited the very “judicial hostility to arbitration agreements” that Congress intended to “reverse” and flouted the “federal policy favoring arbitra-

20

tion.” McMahon, 482 U.S. at 225-226 (quotation marks

and brackets omitted).8

C. This Court’s subsequent decision in Epic Systems emphatically closes the door on the Second Circuit’s conclusion that an inherent conflict renders Anderson’s claim nonarbitrable.

In Epic Systems, the Court began by reiterating

that Congress had “establish[ed] ‘a liberal federal policy favoring arbitration,’” Slip op. 5 (quoting Moses H.

Cone Memorial Hospital v. Mercury Construction

Corp., 460 U.S. 1, 24 (1983)), and that “the Arbitration

Act requires courts ‘rigorously’ to ‘enforce arbitration

agreements according to their terms,’” id. at 5-6 (quoting American Express Co. v. Italian Colors Restaurant, 570 U.S. 228, 233 (2013)). Next, the Court reminded litigants that when they claim that another

statute “displaces” the Arbitration Act’s mandate, they

“bear[] the heavy burden of showing a clearly expressed congressional intention that such a result

should follow.” Id. at 10. Indeed, the Court said, out of

“[r]espect for Congress as drafter” and “for the separation of powers,” that “intention must be clear and manifest.” Id. (quotation marks omitted).

Guided by these precepts, the Court held that

there was no “inherent conflict” between arbitration

and section 7 of the National Labor Relations Act,

which “secures to employees rights to organize unions

and bargain collectively.” Epic Systems, Slip op. 2.

8

The court of appeals’ attention to the importance of the process for settling a bankrupt estate was also misplaced because respondent’s claim has nothing to do with that process. His claim to

enforce a discharge injunction did not arise until after the estate

was settled. See supra pp.5-6.

21

Section 7, the Court said, “does not even hint at a wish

to displace the Arbitration Act—let alone accomplish

that much clearly and manifestly, as our precedents

demand.” Id. at 11. For one thing, section 7 “says

nothing about how judges and arbitrators must try legal disputes that leave the workplace and enter the

courtroom or arbitral forum.” Id. at 2; see also id. at 11.

And section 7’s underlying “policy of protecting workers’ concerted activities for the purpose of collective

bargaining or other mutual aid or protection” did “not

conflict with Congress’s statutory directions favoring

arbitration,” even where the arbitration agreement

waived class and collective action to resolve employment disputes. Id. at 15-16 (quotation marks omitted).

There was no suggestion that the employee could not

effectively vindicate his rights by having to proceed in

individualized arbitration.

Similarly, the discharge injunction of §524 of the

Bankruptcy Code displays no clear and manifest congressional intent to displace the Arbitration Act’s mandate. The Code says nothing about the availability of

arbitration or the waivability of any right to judicial

procedures for enforcement of §524. And as noted

above, there is no reason to conclude that respondent

could not effectively vindicate his asserted right to a

fresh start in arbitration. Moreover, the underlying

policy of promoting efficient and effective resolution of

bankrupt estates through consolidated action in federal

court would not be thwarted by arbitration of respondent’s claim because the estate was settled before his

claim arose.

To be sure, the Bankruptcy Code provides for judicial action in bankruptcy, including enforcement of discharge injunctions. See 11 U.S.C. §§105, 524; cf. Wellness Int’l Network, Ltd. v. Sharif, 135 S. Ct. 1932, 1940

22

(2015); 28 U.S.C. §§157-158. But the Court in Epic Systems once and for all disposed of the notion that such

provisions are enough on their own to create an inherent conflict. The Court explained that—as shown by

“so much precedent”—“even a statute’s express provision for [some type of] legal action[] does not necessarily mean that it precludes … arbitration.” Slip op. 16-17.

For example, the Court noted that in Gilmer, it “‘had

no qualms in enforcing a class waiver in an arbitration

agreement even though’ the Age Discrimination in

Employment Act ‘expressly permitted collective legal

actions.’” Id. at 17 (quoting Italian Colors, 570 U.S. at

237). And in CompuCredit, the Court “refused to find a

conflict even though the Credit Repair Organizations

Act expressly provided a ‘right to sue[]’ … and even

declared ‘any waiver’ of the rights it provided to be

‘void.’” Id. (quoting 565 U.S. at 99-100; brackets omitted). Again, it must be so. Otherwise, the strong congressionally mandated presumption in favor of arbitration agreements would be inverted and federal judicial

forums would have priority over arbitral forums, contrary to Congress’s intent in enacting the Arbitration

Act.

In short, Epic Systems confirms that the Bankruptcy Code does “not provide a congressional command sufficient to displace the Arbitration Act.” Slip

op. 17.

II. THIS CASE PRESENTS A TIMELY OPPORTUNITY TO

CLEAR CONFUSION AMONG THE LOWER COURTS

This case is just the latest example of the confusion

that is widespread among the lower courts about the

interaction between the Bankruptcy Code and the Arbitration Act. As one scholar has put it, the “numerous

approaches and analyses adopted by the various federal

23

courts of appeals” have led to substantial “uncertainty

and confusion … with respect to the interplay between

arbitration and bankruptcy and whether an arbitration

clause should be enforced in a particular proceeding in a

bankruptcy case.” Resnick, The Enforceability of Arbitration Clauses in Bankruptcy, 15 Am. Bankr. Inst. L.

Rev. 183, 185 (2007); see also Leventhal & Elias, Competing Efficiencies: The Problem of Whether and When

to Refer Disputes to Arbitration in Bankruptcy Cases,

24 Am. Bankr. Inst. L. Rev. 133, 144 (2016) (in bankruptcy context, “[i]nterpretation [of McMahon] has not

been uniform …, and the circuit courts interpreting the

Supreme Court holding have emphasized the importance of different considerations and have reached

different outcomes”); Kirgis, Arbitration, Bankruptcy,

and Public Policy: A Contractarian Analysis, 17 Am.

Bankr. Inst. L. Rev. 503, 517 (2009) (noting the “morass” of conflicting and inconsistent circuit decisions).

This confusion, which has persisted despite this

Court’s frequent efforts to clarify the inherent-conflict

test, is problematic. Both the Bankruptcy Code and the

Arbitration Act were intended to provide efficient

resolution of disputes. See AT&T Mobility LLC v.

Concepcion, 563 U.S. 333, 344 (2011) (Arbitration Act

“allow[s] for efficient, streamlined procedures tailored

to the type of dispute”); Dean Witter, 470 U.S. at 219

(noting Arbitration Act’s “goal of speedy and efficient

decisionmaking”). The vexatious question of how to

harmonize these two laws, however, generates a significant volume of unpredictable litigation, which undermines that shared goal. See Resnick, 15 Am. Bankr.

Inst. L. Rev. at 212-213. On the heels of Epic Systems’s

decisive embrace of the proposition that only a clear

and manifest congressional intent to displace the Arbitration Act’s mandate will suffice, and its recognition

24

that this requirement has been applied in “many cases”—but never satisfied—across a “rang[e]” of federal

statutes, Epic Systems, Slip op. 16, this is an opportune

case to “clear the confusion” in the bankruptcy context,

id. at 4.

The courts of appeals have taken a range of divergent approaches to determining the arbitrability of

claims arising in bankruptcy—none of which reflects a

straightforward application of this Court’s precedent.

For example, the Third Circuit has held that, regardless of whether the proceeding is “core,” “[w]here an

otherwise applicable arbitration clause exists, a bankruptcy court lacks the authority and discretion to deny

its enforcement, unless the party opposing arbitration

can establish congressional intent, under the McMahon

standard, to preclude waiver of judicial remedies for

the statutory rights at issue.” In re Mintze, 434 F.3d

222, 231 (3d Cir. 2006). And, the court determined,

there is no “inherent conflict” between the Bankruptcy

Code and arbitration of federal claims that were not

“created by the Bankruptcy Code.” Id. at 231-232.

Reaching a similar conclusion in an earlier case, the

Third Circuit had determined that, given this Court’s

precedent, it could not “subscribe to a hierarchy of congressional concerns that places the bankruptcy law in a

position of superiority over [the Arbitration] Act.”

Hays & Co. v. Merrill Lynch, Pierce, Fenner & Smith,

Inc., 885 F.2d 1149, 1155, 1161 (3d Cir. 1989).

Meanwhile, the Fifth Circuit has declared that, “at

least where the cause of action at issue is not derivative

of the pre-petition legal or equitable rights possessed

by a debtor but rather is derived entirely from the federal rights conferred by the Bankruptcy Code, a bankruptcy court retains significant discretion to assess

whether arbitration would be consistent with the pur-

25

pose of the Code, including the goal of centralized resolution of purely bankruptcy issues, the need to protect

creditors and reorganizing debtors from piecemeal litigation, and the undisputed power of a bankruptcy court

to enforce its own orders.” In re National Gypsum Co.,

118 F.3d 1056, 1069 (5th Cir. 1997). Further, that court

has said, “where a core proceeding involves adjudication of federal bankruptcy rights wholly divorced from

inherited contractual claims, … the adjudication of

[such] actions outside the federal bankruptcy forum

could in many instances present the type of conflict

with the purpose and provisions of the Bankruptcy

Code alluded to in McMahon.” Id. at 1068. Applying

these principles, the court concluded that a debtor’s action to enforce a discharge injunction (a “core” bankruptcy proceeding) was not subject to arbitration because it “raised no issues under [a pre-bankruptcy contract] and was restricted entirely to the adjudication of

federal bankruptcy issues.” Id. at 1069-1070; see also

In re Gandy, 299 F.3d 489, 495 (5th Cir. 2002) (bankruptcy court had discretion to deny arbitration of

fraudulent conveyance action arising under the Bankruptcy Code).

The Fourth Circuit—like the Second Circuit—has

found that, with respect to core bankruptcy proceedings, “[a]rbitration is inconsistent with centralized decision-making because permitting an arbitrator to decide a core issue would make debtor-creditor rights

contingent upon an arbitrator’s ruling rather than the

ruling of the bankruptcy judge assigned to hear the

debtor’s case.” In re White Mountain Mining Co., 403

F.3d 164, 169 (4th Cir. 2005) (quotation marks omitted).

Given that sweeping rationale, the Fourth Circuit, echoing the Second Circuit, has declared categorically that

“‘[i]n the bankruptcy setting, congressional intent … to

26

enjoin arbitration is sufficiently clear to override … arbitration agreements.’” Id. at 168 (quoting In re United

States Lines, Inc., 197 F.3d 631, 639 (2d Cir. 1999)); see

also Moses v. CashCall, Inc., 781 F.3d 63, 72-73 (4th

Cir. 2015) (per curiam) (arbitral agreement held unenforceable against debtor’s claim to declare loan void because arbitration would “interfere” with purposes of

Bankruptcy Code to “provide debtors and creditors

with the prompt and effectual administration and settlement of the debtor’s estate” and “to centralize disputes over the debtor’s assets” (quotation marks omitted)).

In the Ninth Circuit, a rule similar to the Second

and Fourth Circuits’ prevails, with courts holding that

arbitration inherently conflicts with “centralization of

disputes concerning a debtor’s legal obligations” and

“protecting creditors and reorganizing debtors from

piecemeal litigation.” In re Thorpe Insulation Co., 671

F.3d 1011, 1022 (9th Cir. 2012) (quotation marks and

brackets omitted).

Although the Ninth Circuit

acknowledged that this Court has rejected such concerns as a basis for refusing to enforce arbitration

agreements, that court nonetheless stated that this

Court’s reasoning “does not hold in the bankruptcy context.” Id. at 1023 n.9; see also In re EPD Inv. Co., 821

F.3d 1146, 1150 (9th Cir. 2016) (arbitration agreement

unenforceable with respect to claims of fraudulent conveyance, subordination, and disallowance because of

conflict with Code’s centralization purpose); In re Eber,

687 F.3d 1123, 1130-1131 (9th Cir. 2012) (applying

Thorpe Insulation to hold arbitration agreement unenforceable with respect to dischargeability of debt).

In short, the courts of appeals have devised an array of bespoke approaches to addressing the arbitrability of bankruptcy claims—none of which comports with

27

this Court’s clear dictate in Epic Systems. This Court

should grant certiorari to harmonize the courts of appeals’ approaches to this issue and bring them into accord with every other statutory regime where questions of arbitrability routinely arise.

28

CONCLUSION

The petition for a writ of certiorari should be

granted. Alternatively, the Court should grant, vacate,

and remand in light of its intervening decision in Epic

Systems.

Respectfully submitted.

NOAH A. LEVINE

ALAN E. SCHOENFELD

STEPHANIE SIMON

WILMER CUTLER PICKERING

HALE AND DORR LLP

7 World Trade Center

250 Greenwich Street

New York, NY 10007

(212) 230-8875

JUNE 2018

SETH P. WAXMAN

Counsel of Record

DAVID M. LEHN

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

seth.waxman@wilmerhale.com