Petition for Writ of Certiorari — GE Capital Retail Bank, Petitioner v. Nyree Belton

Supreme Court briefOct 9, 2020

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No. ____

IN THE

Supreme Court of the United States

_________

IN RE: NYREE BELTON, Debtor.

________

GE CAPITAL RETAIL BANK,

Petitioner,

NYREE BELTON,

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

________

JOSEPH L. NOGA

JENNER & BLOCK LLP

919 Third Avenue

New York, NY 10022

MATTHEW S. HELLMAN

COUNSEL OF RECORD

JENNER & BLOCK LLP

1099 New York Avenue, NW

Suite 900

Washington, DC 20001

(202) 639-6000

mhellman@jenner.com

LEIGH J. JAHNIG

JENNER & BLOCK LLP

353 North Clark Street

Chicago, IL 60654

QUESTION PRESENTED

Whether provisions of the Bankruptcy Code

providing for a statutorily enforceable discharge of a

debtor’s debts impliedly repeal the Federal Arbitration

Act, 9 U.S.C. § 1 et seq.

PARTIES TO THE PROCEEDINGS BELOW

AND RULE 29.6 STATEMENT

Pursuant to Supreme Court Rule 29.6, petitioner

discloses the following: Petitioner GE Capital Retail

Bank (“GECRB”) is now known as Synchrony Bank.

Synchrony Bank is a wholly owned subsidiary of

Synchrony Financial. Synchrony Financial is a publicly

traded corporation and is not aware of any publicly

traded corporation that owns ten (10) percent or more of

its publicly traded shares.

The petitioner is GE Capital Retail Bank.

The respondent is Nyree Belton.

In the proceedings below this matter was

consolidated with Citigroup Inc. et al. v. Bruce (In re

Bruce), No. 19-0655 (2d Cir.). The appellants in the

consolidated proceedings below were GE Capital Retail

Bank; Citigroup Inc.; and Citibank N.A. The appellees

in the consolidated proceedings below were Nyree

Belton and Kimberly Bruce.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................... i

PARTIES TO THE PROCEEDINGS BELOW

AND RULE 29.6 STATEMENT ............................ii

TABLE OF APPENDICES .............................................v

TABLE OF AUTHORITIES ......................................... vi

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS BELOW .......................................................... 1

JURISDICTION ................................................................. 1

STATUTORY PROVISIONS INVOLVED .................. 2

INTRODUCTION .............................................................. 3

STATEMENT OF THE CASE ........................................ 6

Respondent’s Arbitrable Dispute With

GECRB ........................................................................ 6

The Bankruptcy Court Refuses To Compel

Arbitration And The District Court Initially

Reverses ...................................................................... 7

The Second Circuit’s Decision In Anderson

v. Credit One Bank ..................................................... 8

This Court Decides Epic Systems v. Lewis ............ 9

The District Court Vacates Its Order

Compelling Arbitration In Light Of

Anderson, And The Second Circuit Affirms ........ 10

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

The Decision Below Conflicts With This

Court’s Clear Precedent Regarding The

Scope Of The FAA ................................................... 11

A. Epic Requires That Congressional

Intent To Displace Arbitration Must Be

“Clear And Manifest.” ...................................... 11

B. Epic Stands Atop A Mountain Of

Precedent

Affirming

That

The

Importance Of A Policy Goal Does Not

Displace The Federal Arbitration Act........... 14

C. The Decision Below Spurns The Court’s

Precedent Requiring A “Clear And

Manifest Congressional Command.” .............. 16

II.

This Court’s Review Is Needed To Resolve

Persistent Confusion In The Lower Courts

Regarding The Bankruptcy Code’s Ability

To Displace The Federal Arbitration Act ............ 20

III. This Court Should Resolve The Question

Presented Now And In This Case ......................... 26

CONCLUSION ................................................................. 26

TABLE OF APPENDICES

Appendix A:

Belton v. GE Capital Retail Bank (In re

Belton), 961 F.3d 612 (2d Cir. 2020) .......................... 1a

Appendix B:

Belton v. GE Capital Retail Bank (In re

Belton), No. 15 CV 1934, 2019 WL 1017293

(S.D.N.Y. Mar. 4, 2019) ............................................. 13a

Appendix C:

Belton v. GE Capital Retail Bank (In re

Belton), No. 15 CV 1934, 2015 WL 6163083

(S.D.N.Y. Oct. 14, 2015) ............................................ 25a

Appendix D:

Order Denying Defendant’s Motion To Compel

Arbitration, Belton v. GE Capital Retail Bank

(In re Belton), Case No. 12-23037, Adv. No. 1408223 (Bankr. S.D.N.Y. Nov. 10, 2014) ................... 48a

Appendix E:

Judgment, Belton v. GE Capital Retail Bank

(In re Belton), No. 15 CV 1934 (S.D.N.Y.

Mar. 6, 2019) ............................................................... 79a

TABLE OF AUTHORITIES

CASES

Ackerman v. Eber (In re Eber), 687 F.3d 1123

(9th Cir. 2012) .......................................................... 23

AKZO Nobel Coatings Inc. v. Color &

Equipment LLC, No. 2:11-CV-00082, 2012

WL 12960780 (N.D. Ala. July 16, 2012) ............... 19

American Express Co. v. Italian Colors

Restaurant, 570 U.S. 228 (2013) ........................... 14

Anderson v. Credit One Bank, N.A. (In re

Anderson), 884 F.3d 382 (2d Cir. 2018) . 8, 9, 16, 22

Bostock v. Clayton County, 140 S. Ct. 1731

(2020) .......................................................................... 5

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

(2012) ........................................................................ 14

Continental Insurance Co. v. Thorpe

Insulation Co. (In re Thorpe Insulation

Co.), 671 F.3d 1011 (9th Cir. 2012) ................. 22, 24

Credit One Financial v. Anderson (In re

Anderson), 550 B.R. 228 (S.D.N.Y. 2016) ............. 8

Epic Systems Corp. v. Lewis, 138 S. Ct. 1612

(2018) ............................................................... passim

Flanders v. Lawrence (In re Flanders), 657 F.

App’x 808 (10th Cir. 2016) ..................................... 20

vii

Gandy v. Gandy (In re Gandy), 299 F.3d 489

(5th Cir. 2002) .......................................................... 23

Gilmer v. Interstate/Johnson Lane Corp., 500

U.S. 20 (1991) ............................................... 14, 15, 18

Green Tree Financial Corp.–Alabama v.

Randolph, 531 U.S. 79 (2000) ................................ 15

Matter of Henry, 944 F.3d 587 (5th Cir. 2019) .... 22, 24

Law v. Siegel, 571 U.S. 415 (2014) .............................. 19

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

104 (2d Cir. 2006) .................................................... 23

In re Mintze, 434 F.3d 222 (3d Cir. 2006) ............ 23, 25

Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U.S. 614 (1985) ......... 14, 15, 19

Phillips v. Congelton, L.L.C. (In re White

Mountain Mining Co.), 403 F.3d 164 (4th

Cir. 2005) ............................................................ 22, 24

Shearson/American

Express,

Inc.

McMahon, 482 U.S. 220 (1987) ................. 14, 15, 19

Taggart v. Lorenzen, 139 S. Ct. 1795 (2019) .............. 20

Whiting–Turner Contracting Co. v. Electric

Machinery Enterprises, Inc. (In re Electric

Machinery Enterprises, Inc.), 479 F.3d 791

(11th Cir. 2007) .................................................. 22, 24

viii

STATUTES

7 U.S.C. § 26(n)(2) ......................................................... 12

9 U.S.C. § 2 ................................................................ 2, 16

9 U.S.C. § 4 ...................................................................... 2

11 U.S.C. § 105(a) .................................................. 2, 7, 16

11 U.S.C. § 524(a)(2) ........................................... 1, 16, 19

15 U.S.C. § 1226(a)(2) ................................................... 13

28 U.S.C. § 1254(1) .......................................................... 1

28 U. S. C. § 1334(b)...................................................... 20

OTHER A UTHORITIES

Brief In Opposition To Petition For Writ Of

Certiorari, Credit One Bank, N.A., v.

Anderson, 139 S. Ct. 144 (Mem.) (2018) (No.

17-1652) .................................................................... 26

Alexis Leventhal & 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) ........................................................ 21

Alan N. Resnick, The Enforceability of

Arbitration Clauses in Bankruptcy, 15

Am. Bankr. Inst. L. Rev. 183 (2007) .................... 21

PETITION FOR A WRIT OF CERTIORARI

GE Capital Retail Bank (“GECRB”) petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Second Circuit in this

case.

OPINIONS BELOW

The opinion of the court of appeals is reported at

Belton v. GE Capital Retail Bank (In re Belton), 961

F.3d 612 (2d Cir. 2020) and is reproduced in the

Appendix attached hereto at Pet. App. 1a-12a. The

bankruptcy court’s November 10, 2014 bench ruling on

respondent’s motion to compel arbitration is unreported

and is reproduced at Pet. App. 48a-78a. The October 14,

2015 order of the district court reversing the bankruptcy

court’s order is unreported and reproduced at Pet. App.

25a-47a. The district court’s March 4, 2019 order

granting reconsideration, vacating the earlier district

court order, and denying the motion to compel is

unreported and reproduced at Pet. App. 13a-24a.

JURISDICTION

The United States Court of Appeals for the Second

Circuit entered its final judgment on June 16, 2020. By

Order dated March 19, 2020, this Court provided that

“[i]n light of the ongoing public health concerns relating

to COVID-19 . . . the deadline to file any petition for a

writ of certiorari due on or after [March 19, 2020] . . . is

extended to 150 days from the date of the lower court

judgment, order denying discretionary review, or

denying a timely petition for rehearing.” This Court

therefore has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 2 of 9 U.S.C. provides, in relevant part: “A

written provision in . . . a contract evidencing . . . an

agreement in writing to submit to arbitration an existing

controversy arising out of such a contract, transaction,

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

save upon such grounds as exist at law or in equity for

the revocation of any contract.”

Section 4 of 9 U.S.C. provides, in relevant part: “The

court shall hear the parties, and upon being satisfied that

the making of the agreement for arbitration . . . is not in

issue, the court shall make an order directing the parties

to proceed to arbitration in accordance with the terms of

the agreement.”

Section 105(a) of 11 U.S.C. provides, in relevant part:

“The court may issue any order . . . necessary or

appropriate to carry out the provisions of this title.”

Section 524(a)(2) of 11 U.S.C. provides, in relevant

part:

“A discharge in a case under this title—

...

“(2) operates as an injunction against the

commencement or continuation of an action, the

employment of process, or 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[.]”

INTRODUCTION

“In many cases over many years, this Court has

heard . . . efforts to conjure conflicts between the

Arbitration Act [FAA] and other federal statutes.” Epic

Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1627 (2018). Those

efforts have not met with success: “this Court has

rejected every such effort to date.” Id. (emphasis in

original). Instead, in an unbroken line of precedent, this

Court has held that the FAA and other federal statutes

must be read “harmonious[ly]” such that only an

“irreconcilable conflict” between two statutes that is

“clear and manifest” would justify not giving effect to

the FAA’s “command” of arbitration. Id. at 1619, 1624

(quoting Morton v. Mancari, 417 U.S. 535, 551 (1974)).

In this case, the Second Circuit took the path that

Epic and its predecessors rejected. The court of appeals

held that the Bankruptcy Code’s discharge provision

impliedly repeals the FAA’s mandate of arbitrability.

Rather than look for manifest evidence of an

irreconcilable conflict, the Second Circuit engaged in an

atextual and amorphous purpose-focused inquiry in

which it weighed the values it believed the FAA and the

Code respectively served. In finding a conflict, the

Second Circuit added to a growing body of lower court

law that has treated the arbitrability of bankruptcyrelated disputes as an island unto itself amidst this

Court’s arbitration jurisprudence. These cases employ

a far lower threshold for finding an implied repeal of the

FAA than what this Court has required.

At issue below was respondent’s statutory claim,

brought on behalf of a putative class of debtors, that

GECRB sought to collect a discharged debt in violation

of § 524(a)(2) of the Code—a dispute that was otherwise

arbitrable under the parties’ agreement and the FAA.

The Second Circuit acknowledged that there was no hint

in the Code’s text that Congress intended to make such

disputes non-arbitrable, but it held that silence signaled

“ambigu[ity].” Pet. App. 8a. At that point, the court

engaged in an attempt to divine the purpose of the

Bankruptcy Code. Invoking pre-Epic circuit precedent

that it concluded was still binding, the court held that

there was an inherent conflict between the Code and the

FAA because of the importance the Code places upon

providing a fresh start to debtors. Pet. App. 6a-9a. The

court made clear that had it been “writing on a blank

slate” it might have come out the other way, but that it

was obligated to adhere to the purpose-driven approach

taken by its earlier case, which it held survived Epic.

Pet. App. 3a.

The Second Circuit’s decision conflicts with Epic and

other prior decisions of this Court, it is wrong, and it is

worthy of this Court’s review. There is no indication in

the Bankruptcy Code, let alone clear and manifest

evidence, that Congress intended to displace arbitration

for disputes regarding the discharge statute. Those

disputes are important and recurring, but they are just

as amenable to resolution in arbitration as they are in

the federal and state courts where they are routinely

heard.

The Second Circuit justified its atextual approach by

invoking this Court’s statement in Shearson/American

Express, Inc. v. McMahon that “congressional intent”

“may be deduced from ‘the statute’s text or legislative

history, or from an inherent conflict between arbitration

and the statute’s underlying purposes.’” Pet. App. 5a-6a

(quoting 482 U.S. 220, 227 (1987) (emphasis added)). But

this Court has never said that the absence of textual

support is irrelevant or merely a neutral factor. It has

said precisely the opposite. Indeed, looking solely to

perceived purpose gives rise to the dangers the Court

warned of in Epic: “Allowing judges to pick and choose

between statutes risks transforming them from

expounders of what the law is into policymakers

choosing what the law should be.” Epic Sys. Corp., 138

S. Ct. at 1624; Bostock v. Clayton Cnty., 140 S. Ct. 1731,

1738 (2020) (rejecting atextual purposive interpretation

because: “After all, only the words on the page

constitute the law adopted by Congress.”).

The Second Circuit’s error is illustrative of a larger

confusion among the circuits, which employ different

tests to determine whether the Code repeals the FAA.

Like the decision below, many of these tests accord

arbitration second-class status relative to the Code.

Review is thus warranted to reaffirm there is not one

rule to determine the arbitrability of bankruptcy-related

claims, and another for all other federal claims. Absent

a “clear and manifest congressional command to displace

the Arbitration Act,” there is no “irreconcilable

conflict[,]” and arbitration agreements should be

enforced according to the terms of the FAA. Epic Sys.

Corp., 138 S. Ct. at 1624.

The petition should be granted.

STATEMENT OF THE CASE

A. Respondent’s

GECRB.

Arbitrable

Dispute

With

Respondent opened a credit card account with

GECRB in October 2007 and agreed to arbitrate “any”

claim relating to the account. JA45, JA47. After

respondent did not repay her debt to GECRB, GECRB

sold the debt to a third party and informed the credit

reporting agencies of the sale. JA48-49. Respondent

subsequently filed a chapter 7 petition.

JA126.

Respondent listed GECRB as a former creditor for

“[n]otice [o]nly” and stated no amount owed for the

account. See In re Belton, No. 12-23037 (Bankr.

S.D.N.Y.), ECF No. 1 at 17. Respondent’s chapter 7 case

was successfully completed and her case was closed in

September 2012. JA126.

Over a year later, in April 2014, respondent moved to

reopen her bankruptcy case and subsequently filed a

class action adversary proceeding against GECRB. Pet.

App. 28a; JA122. Respondent alleged her credit report

entry for GECRB’s sale of the debt was inaccurate

because it did not note her subsequent bankruptcy. She

further alleged that omission violated § 524(a)(2)’s

prohibition on acts to collect a discharged debt.

Respondent seeks to hold GECRB in contempt for

violating § 524(a)(2), and to obtain a monetary recovery

on behalf of the putative class with respect to every

bankruptcy since the middle of 2007 where the debtor

All “JA_” references refer to the Joint Appendix filed in Belton v.

GE Capital Retail Bank (In re Belton), 961 F.3d 612 (2020) (No. 190648), ECF No. 28-29.

has a credit report and GECRB sold a debt owed by the

debtor prior to the bankruptcy. JA137; see Pet. App.

28a-29a. Respondent styled her claim as seeking relief

under § 105 of the Code, which permits a court to issue

“any order . . . that is necessary or appropriate to carry

out the provisions of [the Bankruptcy Code].” 11 U.S.C.

§ 105(a).

B. The Bankruptcy Court Refuses To Compel

Arbitration And The District Court Initially

Reverses.

GECRB moved to compel arbitration pursuant to the

parties’ arbitration agreement. See Pet. App. 53a. The

bankruptcy court acknowledged that GECRB’s

arbitration provision covered the dispute at issue, but

denied the motion to compel because it found “implicit[]”

“policy conflicts” between the FAA and the Bankruptcy

Code. See Pet. App. 64a-65a, 78a. In the bankruptcy

court’s view, the FAA was displaced because “discharge

and its related fresh start” were the “policy [which]

underlies the Bankruptcy Code.” Pet. App. 69a. The

bankruptcy court stayed the litigation pending appeal.

GECRB appealed to the district court, which

reversed. The district court acknowledged that, though

the relevant statutes do not expressly discuss

arbitration, “text and legislative history weigh against

the conclusion that Congress intended to preclude

arbitration of Section 524 claims,” and noted that federal

district courts do not have exclusive jurisdiction over

bankruptcy-related civil claims. Pet. App. 37a-39a.

The district court also rejected the notion of an

inherent conflict between the FAA and the relevant

provision of the Bankruptcy Code. The court explained

that alleging a violation of a “fundamental” bankruptcy

provision such as the debtor’s “fresh start” “is not

enough to exempt such a claim from arbitration.” Pet.

App. 40a.

C. The Second Circuit’s Decision In Anderson v.

Credit One Bank.

On March 7, 2018, the Second Circuit decided

Anderson v. Credit One Bank, N.A. (In re Anderson),

884 F.3d 382 (2d Cir. 2018). The plaintiff in Anderson

had raised a substantially similar claim to respondent’s

(and was represented by the same counsel) in front of

the same bankruptcy judge who heard respondent’s

case. Also like this case, the plaintiff in Anderson sought

money damages based on § 524(a)(2) claims. See Credit

One Fin. v. Anderson (In re Anderson), 550 B.R. 228,

237 (S.D.N.Y. 2016). The bankruptcy court again denied

a motion to compel arbitration and was affirmed by a

different district court. See Anderson, 884 F.3d at 38586.

On appeal to the Second Circuit, that court found

that neither party had addressed whether the text or

legislative history indicated any congressional intent to

preclude arbitration of § 524(a)(2) disputes at earlier

levels of the proceedings. Id. at 388-89. In that unusual

posture, the Second Circuit declined to address those

arguments, and “only consider[ed] whether there is an

‘inherent conflict between arbitration’ and the

Bankruptcy Code.” Id. at 389 (quoting McMahon, 482

U.S. at 227).

Specifically, the Second Circuit, relying on this

Court’s decision in McMahon, held that “an inherent

conflict between arbitration and the statute’s underlying

purposes” was sufficient to reveal congressional intent

to override arbitration. Id. at 388 (“Congressional intent

may be discerned through the ‘text or legislative history,

or from an inherent conflict between arbitration and the

statute’s underlying purposes.’” (quoting McMahon, 482

U.S. at 227 (emphasis added))). Anderson inferred such

a conflict 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.”

Id. at 390.

Because it determined that an inherent conflict

existed between the Bankruptcy Code and the FAA, the

Anderson court held that the bankruptcy court had

appropriately exercised its “discretion” to refuse to

compel arbitration. Id. at 388, 392.

D. This Court Decides Epic Systems v. Lewis.

Shortly after Anderson, this Court decided Epic

Systems Corp. v. Lewis. There, this Court reiterated

that “[a] party seeking to suggest that two statutes

cannot be harmonized, and that one displaces the other,

bears the heavy burden of showing ‘a clearly expressed

congressional intention’ that such a result should

follow.” 138 S. Ct. 1612, 1624 (2018) (quoting Vimar

Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S.

528, 533 (1995)). This Court reaffirmed that the

congressional intention must be “clear and manifest,” id.

(quoting Morton, 417 U.S. at 551), and that the conflict

with the FAA must be “irreconcilable,” id.

As discussed in more detail below, Epic held that the

National Labor Relations Act (“NLRA”) does not

“offer[] a conflicting command” to override the FAA. Id.

at 1619. The Court emphasized that “the absence of any

specific statutory discussion of arbitration or class

actions is an important and telling clue that Congress

has not displaced the Arbitration Act.” Id. at 1627. The

Court noted that it had “rejected every such effort” to

“conjure conflicts between the Arbitration Act and other

federal statutes.” Id.

E. The District Court Vacates Its Order

Compelling Arbitration In Light Of Anderson,

And The Second Circuit Affirms.

Meanwhile, following Anderson, respondent moved

for reconsideration in the district court. See Pet. App.

19a-23a. Respondent contended that because Anderson

definitively determined that there was an inherent

conflict as to purpose, the text and legislative history of

the Code and the FAA were irrelevant to arbitrability.

See Pet. App. 22a. The district court agreed and

reversed its order compelling arbitration. Pet. App. 23a.

On appeal, the Second Circuit affirmed. Although

the court acknowledged that “[i]f we were writing on a

blank slate, perhaps our conclusion would be different,”

Pet. App. 3a, it held Anderson was still good law after

Epic, and that a statute’s purpose alone could reveal an

inherent conflict with the FAA, even when the text was

“silent on the issue of arbitration” and thus merely

“ambiguous.” Pet. App. 8a. Applying this principle, the

court held that the importance of the Code’s fresh start

provisions impliedly conflicted with the FAA’s command

of arbitrability. Pet. App. 6a-8a. The Second Circuit

acknowledged that Congress had not granted exclusive

jurisdiction to federal courts to hear such disputes, and

that state courts routinely resolved claims about what

constituted an unlawful attempt to collect a debt under

§ 524(a)(2). Pet. App. 9a. But it concluded that the

availability of state court relief did not support

arbitrability because respondent had styled her claim as

one for contempt. Pet. App. 9a-10a.

On remand, the bankruptcy court reaffirmed that it

would leave its stay in place pending review by this

Court. Tr. of Proceedings at 6-7, 27, Belton v. GE

Capital Consumer Lending, Adv. No. 14-08223 (Bankr.

S.D.N.Y. Sept. 17, 2020), ECF No. 125. The bankruptcy

court noted it had always thought it a “close” question as

to whether the parties’ dispute was arbitrable. Id. at 25.

REASONS FOR GRANTING THE PETITION

The Decision Below Conflicts With This

Court’s Clear Precedent Regarding The Scope

Of The FAA.

A. Epic Requires That Congressional Intent To

Displace Arbitration Must Be “Clear And

Manifest.”

The FAA directs courts to “treat arbitration

agreements as “valid, irrevocable, and enforceable.”

Epic Sys. Corp., 138 S. Ct. at 1621 (quoting 9 U.S.C. § 2).

Just over two years ago, Epic reiterated that this Court

will not construe another federal statute to repeal the

FAA’s express command of arbitrability absent “clear

and manifest” evidence Congress intended that result.

Id. at 1624 (quoting Morton, 417 U.S. at 551). The Court

explained that “we come armed with the ‘stron[g]

presum[ption]’ that repeals by implication are

‘disfavored’ and that ‘Congress will specifically address’

preexisting law when it wishes to suspend its normal

operations in a later statute.” Id. (quoting United States

v. Fausto, 484 U.S. 439, 452, 453 (1988)). That

presumption reflects “[r]espect for Congress as drafter”

and guards against courts “pick[ing] and choos[ing]

between statutes.” Id. Summing up the standard, the

Court held that a litigant who contends that another

enactment cannot be harmonized with the FAA faces a

“heavy burden” to establish an “irreconcilable conflict[]”

between the laws. Id.

The Court then applied that standard and held that

the plaintiffs did not carry their “heavy burden” to

identify an “irreconcilable conflict[]” between the FAA

and the NLRA. See id. at 1624, 1632. The plaintiffs’

claim failed in large part because the NLRA said nothing

about arbitration at all. As the Court explained, the

NLRA’s text “does not express approval or disapproval

of arbitration.” Id. at 1624. Given that the statute “does

not even hint at a wish to displace the Arbitration Act”

it does not “accomplish that much clearly and manifestly,

as our precedents demand.” Id.

The Court contrasted the NLRA’s silence on

arbitration with language in statutes where Congress

had overridden the FAA. For example, 7 U.S.C. §

26(n)(2) provides that “[n]o predispute arbitration

agreement shall be valid or enforceable” under certain

circumstances and 15 U.S.C. § 1226(a)(2) provides that

“[n]otwithstanding any other provision of law, . . .

arbitration may be used to settle [motor vehicle contract

disputes] only if” certain conditions are met. See Epic

Sys. Corp., 138 S. Ct. at 1626. These express provisions

show that Congress “knows how to override the

Arbitration Act when it wishes” and that “[t]he fact that

we have nothing like that here is further evidence” that

Congress did not intend to override the FAA via the

NLRA. Id.

Epic also discussed at length the role that statutory

purpose plays (and does not play) in determining

whether there is an irreconcilable conflict between

federal statutes. The majority did not gainsay that the

NLRA serves important policy goals: “safeguard[ing],

first and foremost, workers’ rights to join unions and to

engage in collective bargaining.” Id. at 1630 (quoting id.

at 1636 (Ginsburg, J., dissenting)). And it recognized

that the statute giving rise to the plaintiff’s actual

claims, the Fair Labor Standards Act, allows for judicial

resolution of disputes. Id. at 1626. But the Court

rejected the inference that by making a judicial forum

available to vindicate a federal right, Congress silently

intended to displace the FAA. Instead, the key point in

the analysis was that nothing in the statute showed a

“clear and manifest congressional command” to prohibit

arbitration as a means of serving those polices. Id. at

1624. See id. at 1627 (“[E]ven a statute’s express

provision for collective legal actions does not necessarily

mean that it precludes ‘individual attempts at

conciliation’ through arbitration.” (quoting Gilmer v.

Interstate/Johnson Lane Corp., 500 U.S. 20, 32 (1991))).

B. Epic Stands Atop A Mountain Of Precedent

Affirming That The Importance Of A Policy

Goal Does Not Displace The Federal

Arbitration Act.

Epic was not a bolt from the blue. For decades, the

Court has held that absent a “clear” statement from

Congress, the Court will not find that another federal

statute curtails the scope of the FAA. Id. at 1624; see,

e.g., Am. Exp. Co. v. Italian Colors Rest., 570 U.S. 228

(2013); CompuCredit Corp. v. Greenwood, 565 U.S. 95

(2012); Gilmer v. Interstate/Johnson Lane Corp., 500

U.S. 20 (1991); Shearson/Am. Exp., Inc. v. McMahon,

482 U.S. 220 (1987); Mitsubishi Motors Corp. v. Soler

Chrysler-Plymouth, Inc., 473 U.S. 614 (1985). Indeed,

as Epic explained, this Court has “rejected every . . .

effort” to find a conflict between the FAA and another

federal statute. Epic Sys. Corp., 138 S. Ct. at 1627

(emphasis in original).

The Court’s cases have been particularly clear: a

federal statute does not displace the FAA simply

because that statute serves important values. Time and

again, this Court has rejected those arguments, finding

them insufficient to show an irreconcilable conflict that

overcomes the strong federal policy favoring

enforcement of arbitration agreements.

For example, in Mitsubishi Motors v. Soler ChryslerPlymouth, Inc., the Court rejected the argument that

the “fundamental importance” of the antitrust laws

displaced the FAA, because “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 Gilmer v.

Interstate/Johnson Lane Corp., the Court found no

“inherent inconsistency between” arbitration and the

“important social policies” underpinning the Age

Discrimination in Employment Act. 500 U.S. at 27-28.

And in Green Tree Financial Corp.–Alabama v.

Randolph, the Court again emphasized 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.” 531 U.S. 79, 90

(2000) (quoting Gilmer, 500 U.S. at 28). In that case,

there was no evidence that the plaintiff asserting claims

under the Truth in Lending Act and the Equal Credit

Opportunity Act would be “unable to vindicate her

statutory rights in arbitration.” Id. at 83, 90-91.

Even in McMahon, on which the court below relied,

this Court explained that, when “text and legislative

history fail to reveal any intent to override the

provisions of the [FAA],” any conflict between the

relevant statute and the FAA must be “irreconcilable.”

482 U.S. at 239. There, the Court held that the plaintiffs’

civil RICO claims—as well as securities claims—were

arbitrable, notwithstanding the important “deterrent”

and “remedial” interests of the statutes because there

was no reason to think plaintiffs would be unable to

“vindicate [their] statutory cause of action in the arbitral

forum.” Id. at 240 (quoting Mitsubishi Motors, 473 U.S.

at 637), 242; see id. at 238.

In short, the Court’s arbitration cases have taught a

consistent lesson: the importance of a federal right does

not generate the “irreconcilable conflict” necessary to

displace the FAA’s command of arbitration. On the

contrary, this Court has consistently held that

arbitration is capable of vindicating those important

federal rights.

C. The Decision Below Spurns The Court’s

Precedent Requiring A “Clear And Manifest

Congressional Command.”

The decision below holds that § 524(a)(2) of the

Bankruptcy Code impliedly displaces the FAA’s

command that arbitration agreements “shall be

enforced,” see 9 U.S.C. § 2, and instead gives a court

“discretion” to decline to enforce those agreements, see

Anderson, 884 F.3d at 387-88. Pet. App. 7a-10a. That

decision cannot be squared with this Court’s precedents.

The Second Circuit began in the right place by

looking to the text of § 524(a), but it went badly astray

from there. Section 524(a)(2) 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.” 11 U.S.C. § 524(a)(2). This

prohibition contains no enforcement mechanism, but

respondent sought relief through § 105 of the 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).

The court acknowledged that “the Code is silent on

the issue of arbitration” in the context of a dispute about

whether there has been an attempt to collect a debt

within the meaning of § 524(a)(2), but it took that silence

to establish “ambigu[ity]” as to Congress’s intentions.

Pet. App. 8a-9a. Yet Epic teaches precisely the opposite

lesson: the Code’s silence regarding arbitration is not a

neutral factor that generates statutory ambiguity but

“telling” evidence that Congress did not intend to

displace the FAA. See Epic Sys. Corp., 138 S. Ct. at

1626-27. Where a federal enactment “does not even hint

at a wish to displace the Arbitration Act” it surely does

not “accomplish that much clearly and manifestly, as our

precedents demand.” Id. at 1624.

The panel here suggested that it would work a

radical change in this Court’s precedents to require

textual support to justify a claim of inherent conflict

with the FAA, see Pet. App. 7a-8a, but the opposite is

true. An atextual inherent conflict is a chimera in the

U.S. Reports. The Court has never found one. And Epic

made clear that only “clear and manifest” evidence of

intent would suffice to demonstrate that conflict, and

that any such conflict would have to be “irreconcilable”

to warrant a conclusion that Congress intended to repeal

the FAA in a later statute. Such unmistakable evidence

of an irreconcilable conflict is lacking where it has no

support in the text of the statute.

With no textual support for an irreconcilable conflict,

the Second Circuit should have ended its analysis there.

But, having perceived an open door in the Code’s text, it

proceeded to analyze the purpose of § 524(a)(2) and

found that the provision was in “inherent conflict” with

the FAA’s command of arbitration. See Pet. App. 7a10a.

Here, the court made the same error that this Court

has been calling out for decades in other areas of federal

law: conflating the importance of the federal right with

an irreconcilable conflict with the FAA. The Second

Circuit cited three features of the Code that it

determined created a conflict with the FAA:

(1) the discharge injunction is “integral” to the

bankruptcy process; (2) “the claim [concerns] 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.”

Pet. App. 6a (quoting Anderson, 884 F.3d at 390).

No aspect of this purposive analysis, whether singly

or in combination, remotely demonstrates an

irreconcilable conflict with the FAA. In the first place,

as described above, the fact that a statute is important

or integral is not a basis upon which to avoid arbitration.

No one disputes that the fresh start is integral to the

Code or that 524(a)(2)’s injunction against acts to collect

a debt should be respected. But the Court’s cases

require that courts not ask merely whether a fresh start

is important, but whether the relevant federal statute

and the FAA are “irreconcilable” Epic Sys. Corp., 138 S.

Ct. at 1624. There is no basis to conclude that the fresh

start policy is somehow more in conflict with arbitration

than the federal policies of ensuring workers’ rights to

collective action and to protection under wage and hour

laws, see id. at 1630; preventing age discrimination, see

Gilmer, 500 U.S. at 27-28; or enforcing the antitrust,

securities, or racketeering laws, see Mitsubishi Motors,

473 U.S. at 634, 636-37; McMahon, 482 U.S. at 222, 23132, 240.

Likewise, the court doubly misses the mark to assert

that the bankruptcy court’s “ongoing” power to enforce

its “own injunctions” is in irreconcilable conflict with the

FAA. For one thing, it is routine for parties to arbitrate

the meaning of a court order. See, e.g., AKZO Nobel

Coatings Inc. v. Color & Equip. LLC, No. 2:11-CV00082, 2012 WL 12960780, at *4 (N.D. Ala. July 16, 2012)

(“An arbitrator should have no problem interpreting the

court’s Preliminary Injunction Order.”). For another,

the underlying dispute here is not about the

interpretation of the language of the bankruptcy court’s

order, but about the language of a statutory prohibition

on the collection of debts. A discharge order puts that

language at issue by operation of law. 11 U.S.C. §

524(a)(2) (stating that “[a] discharge in a case under this

title (2) operates as an injunction against [an explicit list

of items]”). The parties’ dispute is thus not about what

the bankruptcy judge meant, but what Congress meant.

Arbitration is a perfectly suitable means of determining

the scope of federal rights between two parties here as

it is with respect to all other federal rights.

Nor is it any answer to advert to the bankruptcy

court’s “equitable powers” because those equitable

powers end where the express text of a statute begins.

See Law v. Siegel, 571 U.S. 415, 421 (2014) (“[I]n

exercising [its] statutory and inherent powers, a

bankruptcy court may not contravene specific statutory

provisions.”).

The FAA’s express command of

arbitrability cannot be overcome by an exercise of

implied equitable power.

Finally, further confirmation that the scope of §

524(a)(2) is not within the special purview of bankruptcy

courts comes from Congress’s decision to give state

courts concurrent jurisdiction over such disputes. 28

U.S.C. §1334(b); see Taggart v. Lorenzen, 139 S. Ct. 1795,

1803 (2019) (state courts “have concurrent jurisdiction”

over questions of dischargeability).

State courts

routinely resolve disputes arising out of discharge

orders. See, e.g., Flanders v. Lawrence (In re Flanders),

657 F. App’x 808, 821 (10th Cir. 2016) (state court’s

interpretation of bankruptcy discharge order was

entitled to preclusive effect). Indeed, this Court has

observed that “in most instances” disputes over the

dischargeability of a debt are resolved in state court not

bankruptcy court. Taggart, 139 S. Ct. at 1803 (quoting

advisory committee’s 2010 note on subd. (c)(1) of Fed. R.

Civ. P. 8). If state courts are competent to resolve these

disputes there is no reason—let alone a clear and

manifest one—to conclude that arbitration is inherently

in conflict with the Code.

II.

This Court’s Review Is Needed To Resolve

Persistent Confusion In The Lower Courts

Regarding The Bankruptcy Code’s Ability To

Displace The Federal Arbitration Act.

This case is the latest illustration of the lower courts’

confusion about how the Bankruptcy Code and the FAA

interact. Different circuits employ different tests to

determine whether the Code repeals the FAA. That

divergence is worthy of the Court’s review by itself. As

one scholarly article summed up the issue,

“[i]nterpretation [of McMahon] has not been uniform [in

the bankruptcy context] . . . , and the circuit courts

interpreting the Supreme Court holding have

emphasized the importance of different considerations

and have reached different outcomes.” Alexis Leventhal

& 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,

144 (2016); see also Alan N. Resnick, The Enforceability

of Arbitration Clauses in Bankruptcy, 15 Am. Bankr.

Inst. L. Rev. 183, 185 (2007) (concluding that the

“numerous approaches and analyses adopted by the

various federal 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”).

Equally problematic is that the mass of different

tests employed by the lower courts bear little

resemblance to the approach this Court has set out in its

arbitration cases. Rather than assess whether Congress

has clearly and manifestly indicated its intent to repeal

such that there is an irreconcilable conflict between the

FAA and the Code, the lower courts are instead relying

on purpose-based assessments of the particular Code

provision at issue. There should not be one test for

assessing whether the Code and the FAA can be

harmonized, and another for the rest of federal law.

To begin, the courts of appeals are openly using

different tests in determining when the Code repeals the

FAA. One group of circuits, including the Second

Circuit, look to whether the claim at issue is core or non-

core. The Second Circuit instructs that a non-core claim

“generally” may be arbitrated under the FAA, while a

core claim may not. See Anderson, 884 F.3d at 387

(quoting Crysen/Montenay Energy Co. v. Shell Oil Co.

(In re Crysen/Montenay Energy Co.), 226 F.3d 160, 166

(2d Cir. 2000)). The Fourth, Ninth, and Eleventh

Circuits similarly distinguish between core and non-core

proceedings. Phillips v. Congelton, L.L.C. (In re White

Mountain Mining Co.), 403 F.3d 164, 169 (4th Cir. 2005)

(examining whether “Congress intended to limit or

preclude the waiver of the bankruptcy forum for core

proceedings”); Continental Ins. Co. v. Thorpe

Insulation Co. (In re Thorpe Insulation Co.), 671 F.3d

1011, 1021 (9th Cir. 2012) (noting that a bankruptcy court

has “discretion” to deny arbitration in core proceedings,

but generally not in non-core proceedings); Whiting–

Turner Contracting Co. v. Elec. Mach. Enters., Inc., (In

re Elec. Mach. Enters., Inc.), 479 F.3d 791, 796-97 (11th

Cir. 2007) (same).

The Fifth Circuit takes a different—albeit related—

tack, asking whether the proceeding “adjudicate[s]

statutory rights conferred by the Bankruptcy Code and

not the debtor’s prepetition legal or equitable rights.”

Matter of Henry, 944 F.3d 587, 590-91 (5th Cir. 2019)

(finding, after Epic, that a claim for violating the

discharge injunction was not arbitrable because of an

inherent conflict with the FAA).

If this first

requirement is met, the court then asks whether

“requiring arbitration would conflict with the purposes

of the Bankruptcy Code.” Id. at 591.

The Third Circuit rejects the core/non-core

distinction. See In re Mintze, 434 F.3d 222, 229 (3d Cir.

2006) (“The core/non-core distinction does not, however,

affect whether a bankruptcy court has the discretion to

deny enforcement of an arbitration agreement.”). That

court’s articulated rule comes the closest to the analysis

mandated by Epic, setting the task to “determine

whether [a party] has established congressional intent

to preclude waiver of judicial remedies for the statutory

rights at issue.” Id. at 231.

The result is an inconsistent patchwork of

bankruptcy proceedings which apparently pose a

conflict with the FAA. Debtors in the Second Circuit

can be required to arbitrate alleged willful violations of

the Bankruptcy Code’s automatic stay, see MBNA Am.

Bank, N.A. v. Hill, 436 F.3d 104, 110-11 (2d Cir. 2006),

but not alleged violations of the statutory discharge

injunction. Pet. App. 3a. Litigants in the Third Circuit

can arbitrate complaints to enforce rescission of loan

agreements, see In re Mintze, 434 F.3d at 226, while

those in the Ninth Circuit lose the benefit of their

bargain for pre-petition claims for breach of contract,

fraud, and breach of fiduciary duty. See Ackerman v.

Eber (In re Eber), 687 F.3d 1123, 1125-26 (9th Cir. 2012).

Some claims that would otherwise be arbitrable may not

be sent to arbitration if the proceeding also concerns

bankruptcy causes of action that “predominate.” Cf.

Gandy v. Gandy (In re Gandy), 299 F.3d 489, 497-99 (5th

Cir. 2002) (Even though some claims involved “prepetition legal or equitable rights,” the goal of avoiding

bifurcated proceedings “could present the type of

conflict with the purposes and provisions of the

Bankruptcy Code that may override the FAA’s

statutory directive of enforcement of arbitration

agreements.” (emphasis added)).

Among these differing approaches, however, one

common thread emerges: contrary to this Court’s

teachings, the lower courts are determining whether the

Code repeals the FAA by attempting to ascertain the

purpose of the Code provision, divorced from any

assessment of whether the text of the Code actually

irreconcilably conflicts with the FAA. That of course is

what the Second Circuit did here. See Pet. App. 6a-9a.

But the Second Circuit is hardly alone. E.g., Matter of

Henry, 944 F.3d at 591 (“[B]ankruptcy courts may

decline enforcement of arbitration agreements only if

requiring arbitration would conflict with the purposes of

the Bankruptcy Code.”); In re White Mountain Mining

Co., 403 F.3d at 169 (“We need not decide today whether

the statutory text itself demonstrates congressional

intent to override arbitration for core claims because

this case may be decided under McMahon’s third line of

analysis[.] . . . We thus turn to whether there is an

inherent conflict between arbitration and the underlying

purposes of the bankruptcy laws.”); In re Thorpe

Insulation Co., 671 F.3d at 1021 (“[A] bankruptcy court

has discretion to decline to enforce an otherwise

applicable arbitration provision only if arbitration would

conflict with the underlying purposes of the Bankruptcy

Code.”); In re Elec. Mach. Enters., Inc., 479 F.3d at 796

(“[W]e find no evidence within the text or in the

legislative history that Congress intended to create an

exception to the FAA in the Bankruptcy Code.

Therefore, we look to the third factor of the McMahon

test and examine whether an inherent conflict exists

between arbitration and the underlying purposes of the

Bankruptcy Code.” (internal citation omitted)).

Even the Third Circuit overemphasizes the purpose

of the Bankruptcy Code. That court has acknowledged

that there was “no evidence of [congressional] intent [to

displace the FAA] in either the statutory text or the

legislative history of the Bankruptcy Code.” In re

Mintze, 434 F.3d at 231. Yet, when evaluating whether

there was an inherent conflict between the FAA and the

Bankruptcy Code for a claim “to enforce a pre-petition

rescission of [a] loan agreement,” id. at 226, that court

placed no weight on that important textual fact. Id. at

231. The court instead determined that there was no

conflict with “the underlying purposes of the

Bankruptcy Code” because there was “no bankruptcy

issue to be decided by the Bankruptcy Court.” Id. at

231-32.

Thus, like the Second Circuit, many other courts of

appeals have constructed ways to inflate the concept of

an “inherent conflict” to encompass a variety of claims

that intersect with the purposes of the Bankruptcy

Code. But Epic teaches that for a conflict to be inherent,

the statutes must be “irreconcilable.” See Epic Sys.

Corp., 138 S. Ct. at 1624.

There should not be varying sets of amorphous rules

governing the arbitrability of bankruptcy claims, and

another unified set of rules governing the arbitrability

of all other federal claims. Only this Court can ensure

that bankruptcy law is no longer an exception to this

Court’s arbitration jurisprudence.

III.

This Court Should Resolve The Question

Presented Now And In This Case.

After the Second Circuit decided Anderson, the

debtor, represented by the same counsel as respondent

here, urged this Court not to grant certiorari on the

ground that the textual arguments in that case had been

waived, and that the Second Circuit had not yet had an

opportunity to address this Court’s decision in Epic. See

Brief In Opposition To Petition For Writ Of Certiorari

at 25-26, 29, Credit One Bank, N.A., v. Anderson, 139 S.

Ct. 144 (Mem.) (2018) (No. 17-1652).

Those issues are now fully litigated and are squarely

presented for review.

The Second Circuit has

conclusively held that its purpose-based approach is

good law both before and after Epic. See Pet. App. 7a9a. Only this Court can resolve that issue and it should

grant certiorari to make clear to the lower courts that

the Bankruptcy Code is not exempt from Congress’s—

and this Court’s—requirement that arbitration

agreements should be enforced unless Congress clearly

and manifestly commands otherwise.

CONCLUSION

The petition for a writ of certiorari should be

granted.

October 9, 2020

Respectfully submitted,

JOSEPH L. NOGA

JENNER & BLOCK LLP

919 Third Avenue

New York, NY 10022

MATTHEW S. HELLMAN

COUNSEL OF RECORD

JENNER & BLOCK LLP

1099 New York Avenue, NW

Suite 900

Washington, DC 20001

(202) 639-6000

mhellman@jenner.com

LEIGH J. JAHNIG

JENNER & BLOCK LLP

353 North Clark Street

Chicago, IL 60654

August Term 2019

Argued: April 21, 2020

Decided: June 16, 2020

Nos. 19-648 (L), 19-655 (Con.)

IN RE: NYREE BELTON, KIMBERLY BRUCE,

Debtors.

NYREE BELTON,

Plaintiff-Appellee,

KIMBERLY BRUCE,

Debtor-Appellee,

GE CAPITAL RETAIL BANK,

Defendant-Appellant,

CITIGROUP INC., CITIBANK, N.A.,

Appellants.

Appeal from the United States District Court

for the Southern District of New York

Nos. 15-cv-1934, 15-cv-3311,

Vincent L. Briccetti, Judge.

Before:

WINTER, WESLEY, AND SULLIVAN, Circuit

Judges.

Appellants GE Capital Retail Bank, Citigroup Inc.,

and Citibank, N.A. appeal from an order of the district

court (Briccetti, J.) denying Appellants’ motions to

compel arbitration. Specifically, Appellants argue that

Appellees – two debtors who previously held credit card

accounts managed by Appellants – were obliged to

arbitrate a dispute concerning whether Appellants

violated the bankruptcy court’s discharge orders when

they failed to correct the status of Appellees’ credit card

debt on their credit reports. Both the bankruptcy court

and the district court determined that the arbitration

clauses in the credit card agreements were

unenforceable. On appeal, we conclude that though the

text and history of the Bankruptcy Code are ambiguous

as to whether Congress intended to displace the Federal

Arbitration Act in this context, our precedent is clear

that the two statutes are in inherent conflict on this

issue. We therefore affirm the district court’s order.

AFFIRMED AND REMANDED.

GEORGE F. CARPINELLO (Adam R. Shaw,

Anne M. Nardacci, on the brief), Boies

Schiller Flexner LLP, Albany, NY;

Charles Juntikka, Charles Juntikka &

Associates LLP, New York, NY, for

Appellees.

JOSEPH L. NOGA, Jenner & Block LLP,

New York, NY; Matthew S. Hellman,

Jenner & Block LLP, Washington, DC, for

Appellant GE Capital Retail Bank.

BENJAMIN R. NAGIN (Eamon P. Joyce,

Jonathan W. Muenz, Qais Ghafary, on the

brief), Sidley Austin LLP, New York, NY,

for Appellants Citigroup Inc. and

Citibank, N.A.

RICHARD J. SULLIVAN, Circuit Judge:

Is the alleged violation of a bankruptcy court

discharge order an arbitrable dispute? Though we

answered this very question only two years ago, we are

called upon to reconsider the issue here. If we were

writing on a blank slate, perhaps our conclusion would

be different. But as our Court’s precedent is clear, and

as that precedent is not incompatible with intervening

caselaw or the text and history of the Bankruptcy Code,

we are bound to answer the question in the negative.

Accordingly, we AFFIRM the order of the district court

(Briccetti, J.) affirming the decision of the bankruptcy

court (Drain, Bankr. J.) denying Appellants’ motions to

compel arbitration.

Appellants GE Capital Retail Bank (“GE”),

Citigroup Inc., and Citibank, N.A. (together, “Citi” and,

collectively with GE, the “Banks”) appeal the district

court’s order and judgment affirming the bankruptcy

court’s denial of the Banks’ motions to compel

arbitration. In 2007, Appellees Nyree Belton and

Kimberly Bruce (together, the “Debtors”) opened credit

card accounts with GE and Citi, respectively.

Unfortunately, the Debtors quickly fell behind on their

credit card debt and began to miss payments. The Banks

eventually “charged off” that delinquent debt – changing

its accounting treatment from a receivable to a loss – and

sold it to third-party consumer debt purchasers. The

Banks also reported the change in the debt’s status to

the three major credit reporting agencies. In turn, those

agencies updated the Debtors’ credit reports to reflect

the debt as “charged off,” indicating that the debt was

severely delinquent but still outstanding.

Within the next few years, both Debtors filed

voluntary petitions for relief under Chapter 7 of the

Bankruptcy Code (the “Code”). At the completion of the

liquidation processes, the bankruptcy court entered

orders discharging the Debtors’ debts. Under 11 U.S.C.

§ 524(a)(2), those orders operate as “injunction[s]”

against any future collection attempts.

Nevertheless, after the Debtors emerged from

bankruptcy, their credit reports continued to reflect

their credit card debt as “charged off” without any

mention of the bankruptcy discharge. The Debtors

assert that this was not a simple mistake, but rather an

attempt by the Banks to coerce the Debtors into

repaying the debt notwithstanding the bankruptcy

court’s orders. As a result, the Debtors, purporting to

represent a nationwide class of similarly situated

debtors, reopened their bankruptcy cases and initiated

adversary proceedings against the Banks, alleging that

the Banks’ refusal to update their credit reports violated

the bankruptcy court’s orders and the associated

injunctions provided by section 524(a)(2). The Debtors

seek a contempt citation and damages.

In response, the Banks moved to enforce mandatory

arbitration clauses in the Debtors’ credit card account

agreements. Ultimately, both the bankruptcy court and

the district court rejected the Banks’ motions, finding

that the dispute was not arbitrable due to an inherent

conflict between the Code and the Federal Arbitration

Act (the “Arbitration Act”). The Banks appealed.

We have jurisdiction to decide this case under 28

U.S.C. § 158(d) and 9 U.S.C. § 16(a)(1). As for the

applicable standard of review, “[t]he rulings of a district

court acting as an appellate court in a bankruptcy case

are subject to plenary review.” Stoltz v. Brattleboro

Hous. Auth. (In re Stoltz), 315 F.3d 80, 87 (2d Cir. 2002).

In other words, “[w]hen reviewing a bankruptcy court

decision that was subsequently appealed to a district

court, we review the bankruptcy court’s decision

independent of the district court’s review.” Statek Corp.

v. Dev. Specialists, Inc. (In re Coudert Bros. LLP), 673

F.3d 180, 186 (2d Cir. 2012). In so doing, we review the

bankruptcy court’s legal conclusions de novo. ANZ Sec.,

Inc. v. Giddens (In re Lehman Bros. Inc.), 808 F.3d 942,

946 (2d Cir. 2015).

We are called upon to decide a narrow issue: whether

a dispute concerning the violation of a bankruptcy

discharge order is arbitrable.1

The Arbitration Act requires courts to strictly

enforce arbitration agreements. But like any statutory

directive, that mandate may be overridden by contrary

congressional intent. Shearson/American Express, Inc.

As discussed below, our decision does not address whether such a

dispute is amenable to class adjudication.

v. McMahon, 482 U.S. 220, 226 (1987). Such an intent

may be deduced from “the statute’s text or legislative

history, or from an inherent conflict between arbitration

and the statute’s underlying purposes.” Id. at 227

(internal quotation marks, citation, and alteration

omitted).

Employing the McMahon test here requires us to

exhaustively parse the Code in search of such

congressional intent. But we are not writing on a blank

slate. In 2018, this Court considered a nearly identical

dispute in Anderson v. Credit One Bank, N.A. (In re

Anderson), 884 F.3d 382 (2d Cir.), cert. denied, 139 S. Ct.

144 (2018). Like this case, Anderson concerned a credit

card account holder seeking to bring an adversary

proceeding against a bank for violating a bankruptcy

discharge order. And like the account agreements here,

the agreement in Anderson contained a mandatory

arbitration provision.

The Anderson Court nevertheless refused to enforce

the parties’ arbitration agreement, finding that

Congress did not intend for disputes over the violation

of a discharge order to be arbitrable. The Court reached

that conclusion by determining that arbitration was in

“inherent conflict” with enforcement of a discharge

order because: (1) the discharge injunction is “integral”

to the bankruptcy process; (2) “the claim [concerns] 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.” Id. at 390.

Importantly, the Court arrived at this holding without

considering the Code’s text or legislative history, which

the parties had not argued before the district court. Id.

at 388–89.

Given the overwhelming similarities between this

case and Anderson, our hands seem to be bound by that

panel’s decision. See Doscher v. Sea Port Grp. Sec., LLC,

832 F.3d 372, 378 (2d Cir. 2016). But the Banks tell us

otherwise.

According to them, the Supreme Court’s recent

decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612

(2018), undermined Anderson’s interpretation of

McMahon and its progeny. Specifically, they argue that

Epic Systems rejected the notion that an inherent

conflict between statutory purpose and arbitration is

independently sufficient to displace the Arbitration Act.

The Banks instead see Epic Systems as requiring a textfirst approach that cannot be satisfied by reference only

to statutory purpose.

We disagree. To be sure, Epic Systems describes an

exacting gauntlet through which a party must run to

demonstrate congressional intent to displace the

Arbitration Act. See id. at 1624 (“A party seeking to

suggest that two statutes cannot be harmonized, and

that one displaces the other, bears the heavy burden of

showing a clearly expressed congressional intention that

such a result should follow.” (internal quotation marks

omitted)). But despite the difference in tone, “the test

[Epic Systems] employs is substantially the same as

McMahon’s.” Henry v. Educ. Fin. Serv. (In re Henry),

944 F.3d 587, 592 (5th Cir. 2019). More to the point, Epic

Systems never stated an intention to overrule McMahon

or render any prong of its tripartite test a dead letter.

See Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016); Shalala v.

Ill. Council on Long Term Care Inc., 529 U.S. 1, 18

(2000) (acknowledging that the Court “does not normally

overturn, or . . . dramatically limit, earlier authority sub

silentio”).

What, then, is the impact of Epic Systems on

McMahon (and thus Anderson)? Like the Fifth Circuit,

we see Epic Systems as clarifying that where two of

McMahon’s factors clash, a court should resolve the

dispute in favor of the statutory text and any contextual

clues derived therefrom. See Henry, 944 F.3d at 592.

But that gloss on McMahon does not undermine

Anderson’s conclusion – that an “inherent conflict” is

sufficient to displace the Arbitration Act where the

statutory text is ambiguous.

Of course, Anderson’s survival does not end our

inquiry. Anderson, by virtue of the posture in which it

arrived before the panel, was narrowly circumscribed.

Specifically, the parties had waived any arguments

concerning the Code’s text or legislative history, and the

Court declined to consider them. Anderson, 884 F.3d at

388–89. That is not the case here. We must therefore

reexamine Anderson’s conclusion in light of the Code’s

text and history, and Epic Systems’s reminder that a

statute’s purpose cannot circumvent its text.

Here, no one disputes that the Code is silent on the

issue of arbitration in this context. The contested

question is what to make of that fact. Epic Systems

clearly viewed statutory silence as probative evidence

that Congress did not intend to displace the Arbitration

Act. See 138 S. Ct. at 1626 (noting that “Congress has . . .

shown that it knows how to override the Arbitration Act

when it wishes”). But it did not treat silence as outcome

determinative – since that would have rendered much of

Epic Systems’s analysis surplusage. Accordingly, we do

not think that the Code’s failure to expressly disclaim

arbitrability undermines Anderson’s conclusion.

The Banks do, however, have one textual argument

with some teeth: state courts have concurrent

jurisdiction to enforce the discharge injunction as an

affirmative defense in collections suits. See Taggart v.

Lorenzen, 139 S. Ct. 1795, 1803 (2019). The Banks

sensibly posit that if state courts are competent to

interpret the scope of a discharge order, then so too are

arbitrators. See Hays & Co. v. Merrill Lynch, Pierce,

Fenner & Smith, Inc., 885 F.2d 1149, 1157 n.11 (3d Cir.

1989) (“Where Congress has specifically indicated

subjugation of arbitration to the dictates of the

bankruptcy laws in one situation, but not in another, we

must presume that Congress neither intended to

subjugate arbitration in the second instance, nor saw the

two laws as conflicting in this respect.”).

But what the Banks overlook is that the Debtors are

not invoking the discharge injunction as a defense to

collection. Rather, they are proceeding affirmatively to

recover damages for an alleged violation of a court order

and injunction. Because our Court has never identified a

private right of action under section 524, the Debtors

have pursued this remedy through a contempt

proceeding. See Garfield v. Ocwen Loan Servicing, LLC,

811 F.3d 86, 91–92, 92 n.7 (2d Cir. 2016); Yaghobi v.

Robinson, 145 F. App’x 697, 699 (2d Cir. 2005). And as

this Court and numerous other circuits have concluded,

the only court that may offer a contempt remedy is the

court that issued the discharge order – the bankruptcy

10a

court. See Anderson, 884 F.3d at 391 (recognizing that

“the bankruptcy court alone has the power to enforce the

discharge injunction in Section 524” through a contempt

citation); accord Crocker v. Navient Sols., L.L.C. (In re

Crocker), 941 F.3d 206, 216–17 (5th Cir. 2019);

Alderwoods Grp., Inc. v. Garcia, 682 F.3d 958, 970 (11th

Cir. 2012); Walls v. Wells Fargo Bank, N.A., 276 F.3d 502,

509-10 (9th Cir. 2002); Cox v. Zale Del., Inc., 239 F.3d 910,

916–17 (7th Cir. 2001) (Posner, J.).

As a result, we conclude that the Code’s text offers

little guidance on Congress’s intentions in the context of

contempt proceedings like those at issue here. We

further find that the legislative history of the relevant

provisions is similarly unenlightening. We are therefore

left with Anderson’s conclusion that the Code is in

“inherent conflict” with arbitration. And under this

Circuit’s precedent, that is enough to displace the

Arbitration Act. See Anderson, 884 F.3d at 389–92; see

also MBNA Am. Bank, N.A. v. Hill, 436 F.3d 104, 108

(2d Cir. 2006) (citing Ins. Co. of N. Am. v. NGC

Settlement Tr. & Asbestos Claims Mgmt. Corp. (In re

Nat’l Gypsum Co.), 118 F.3d 1056, 1069 (5th Cir. 1997));

U.S. Lines, Inc. v. American Steamship Owners Mut.

Prot. & Indem. Assoc., Inc. (In re U.S. Lines, Inc.), 197

F.3d 631, 640–41 (2d Cir. 1999). Accordingly, we are

bound to affirm the district court’s judgment.

Having determined that Anderson controls the issue

before us, we pause only to offer a few words concerning

the scope of that conclusion. Specifically, we have not

endeavored to address whether a nationwide class action

is a permissible vehicle for adjudicating thousands of

11a

contempt proceedings, and neither our decision today nor

Anderson should be read as a tacit endorsement of such.

Indeed, permitting a bankruptcy court to adjudicate

compliance with another court’s order appears to be in

severe tension with Anderson’s reasoning.

particular, Anderson found that the Code displaced the

Arbitration Act, in part, because contempt proceedings

involve considerations that the issuing court is uniquely

positioned to assess. See 884 F.3d at 390–91 (“[T]he

bankruptcy court retains a unique expertise in

interpreting its own injunctions and determining when

they have been violated.”). It seems to us that this

rationale is anathema to a nationwide class action.2

More fundamentally, we question whether a

bankruptcy court would even have jurisdiction to hold a

creditor in contempt of another court’s order. Most

circuits that have considered the issue have rejected the

notion. See Crocker, 941 F.3d at 216–17 (“We adopt the

language of [Anderson] that returning to the issuing

bankruptcy court to enforce an injunction is required at

least in order to uphold ‘respect for judicial process.’”);

Alderwoods Grp., 682 F.3d at 970 (“[T]he court that

issued the injunctive order alone possesses the power to

enforce compliance with and punish contempt of that

order.”); Walls, 276 F.3d at 509–10 (same); Cox, 239 F.3d

at 916–17 (same); but see Bassette v. Avco Fin. Servs.,

To be sure, Anderson noted that “the class action nature” of the

case did not alter the Court’s conclusion. 884 F.3d at 391. But we

read that language to refer to the Court’s holding that the claims

were not arbitrable, not to the unpresented issue of class

certification and bankruptcy court jurisdiction.

12a

Inc., 230 F.3d 439, 446 (1st Cir. 2000) (holding that a

debtor is not required to “bring her claims in the court

that issued the original discharge order”).3 And those

cases are buttressed by the Supreme Court’s recent

decision in Taggart, which made clear that the contempt

powers provided under sections 524(a)(2) and 105(a)

“bring with them the ‘old soil’ that has long governed

how courts enforce injunctions.” 139 S. Ct. at 1802.

So, while we affirm the district court’s judgment, we

leave for another day the issue of class certification.

Accordingly, we

the order of the district

court and

for further proceedings consistent

with this opinion. The Debtors’ motion for summary

affirmance is

as moot.

But even in Bassette, on remand, the District of Rhode Island

found that its jurisdiction was limited to “claims that are related to

bankruptcy estates in the District of Rhode Island,” and refused to

certify a nationwide class. Bassette v. Avco Fin. Servs., Inc., 279

B.R. 442, 449 (D.R.I. 2002).

13a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

--------------------------------------------------x

In re:

NYREE BELTON,

Debtor.

--------------------------------------------------x

NYREE BELTON, Debtor and

Plaintiff on behalf of herself and all :

others similarly situated,

: 15 CV 1934 (VB)

Plaintiff,

GE CAPITAL CONSUMER

LENDING, INC. a/k/a GE MONEY :

BANK,

Defendant.

--------------------------------------------------x

In re:

KIMBERLY BRUCE,

Debtor.

--------------------------------------------------x

KIMBERLY BRUCE, Debtor and :

Plaintiff on behalf of herself and all :

others similarly situated,

Plaintiff,

: 15 CV 3311 (VB)

14a

CITIGROUP INC., CITIBANK,

N.A., and CITIBANK

(SOUTH DAKOTA), N.A.,

Defendants.

--------------------------------------------------x

Briccetti, J.:

Plaintiffs-appellees Nyree Belton and Kimberly

Bruce move under Fed. R. Civ. P. 59(e) and 60(b) and

Southern District of New York Local Civil Rule 6.3 for

reconsideration of this Court’s October 14, 2015,

Memorandum Decision reversing the order of the

United States Bankruptcy Court for the Southern

District of New York (Drain, J.) denying defendantsappellants GE Capital Retail Bank (“GE”), Citigroup

Inc., and Citibank, N.A., successor-in-interest to

Citibank (South Dakota), N.A.’s (together, “Citi”)

motions to compel arbitration under the Federal

Arbitration Act (“FAA”). (In re Belton, 15 Civ. 1934

(Doc. #37) (S.D.N.Y.); In re Bruce, 15 Civ. 3311 (Doc.

#30) (S.D.N.Y.)).

For the following reasons, plaintiffs-appellees’

motions are GRANTED.

The Court has subject matter jurisdiction pursuant

to 28 U.S.C. § 158(a).

The Court assumes familiarity with the underlying

factual background and summarizes only the relevant

procedural history.

On November 10, 2014, the Bankruptcy Court issued

an order denying GE’s motion to compel arbitration in

15a

In re Belton, Adv. Proc. No. 14-8223 (Bankr. S.D.N.Y.),

for reasons set forth in a “Corrected and Modified Bench

Ruling” issued the same day. See In re Belton, 2014 WL

5819586 (Bankr. S.D.N.Y. Nov. 10, 2014). Two days

later, the Bankruptcy Court denied Citi’s motion to

compel arbitration in In re Bruce, Adv. Proc. No. 148224, substantially for the reasons stated in its

Corrected and Modified Bench Ruling in In re Belton.

GE and Citi appealed the Bankruptcy Court’s decisions

to this Court.

On October 14, 2015, this Court issued a

Memorandum Decision (the “October 14 Decision”)

reversing the Bankruptcy Court’s orders in In re Belton

and In re Bruce and remanding the cases to the

Bankruptcy Court with instructions to grant the

respective motions to compel and stay the adversary

proceedings pending arbitration, and for further

proceedings consistent with the Memorandum Decision.

In re Belton, 2015 WL 6163083, at *10 (S.D.N.Y. Oct. 14,

2015) (Briccetti, J.). This Court subsequently denied

plaintiffs-appellees’ motions to certify the October 14

Decision for interlocutory appeal. In re Belton, 2016 WL

164620, at *2 (S.D.N.Y. Jan. 12, 2016).

On March 17, 2016, plaintiffs-appellees filed in the

Court of Appeals for the Second Circuit petitions for

writs of mandamus to vacate the October 14 Decision.

Separately, on May 14, 2015, the Bankruptcy Court

issued an order denying a motion to compel arbitration

in Anderson v. Credit One Bank, N.A., Adv. Proc. No.

15-8214 (Bankr. S.D.N.Y.). On June 14, 2016, the

Honorable Nelson S. Román affirmed the Bankruptcy

Court’s order. In re Anderson, 553 B.R. 221 (S.D.N.Y.

16a

2016), aff’d, 884 F.3d 382 (2d Cir. 2018), cert. denied sub

nom. Credit One Bank, N.A. v. Anderson, 139 S. Ct. 144

(Mem) (Oct. 1, 2018).

In light of Judge Román’s decision in In re Anderson,

on August 16, 2016, plaintiffs-appellees filed “renewed”

motions to certify this Court’s October 14 Decision for

interlocutory appeal. (In re Belton, 15 Civ. 1934 (Doc.

#32); In re Bruce, 15 Civ. 3311 (Doc. #25)). This Court

denied the motions.

Subsequently, on December 15, 2016, the Second

Circuit stayed plaintiffs-appellees’ petitions for writs of

mandamus in In re Bruce and In re Belton “pending a

ruling in In re Anderson.” Motion Order, In re Bruce,

No. 16-830 (Dkt. 69) (2d Cir. Dec. 15, 2016); Motion

Order, In re Belton, No. 16-833 (Dkt. 68) (2d Cir. Dec. 15,

2016).

On March 7, 2018, the Second Circuit affirmed Judge

Román’s decision in In re Anderson. The Circuit then

issued orders in In re Bruce and In re Belton denying

plaintiffs-appellees’ mandamus petitions, because in

each case, “Petitioner can seek the requested relief by

moving in the district court for reconsideration of its

order in light of this Court’s decision in In re Anderson.”

Order, In re Bruce, No. 16-830 (Dkt. 96) (2d Cir. June 26,

2018); Order, In re Belton, No. 16-833 (Dkt. 96) (2d Cir.

June 26, 2018).

Thereafter, plaintiffs-appellees filed the instant

motions for reconsideration.

17a

I. Legal Standard

Plaintiffs-appellees bring the present motions for

reconsideration under Fed. R. Civ. P. 59(e) and 60(b) and

SDNY Local Civil Rule 6.3. GE argues those rules do

not apply because the Court already remanded the

instant cases to the Bankruptcy Court, and because Fed.

R. Civ. P. 59(e) and 60(b) apply only to appealable orders.

Moreover, GE argues Fed. R. Bankr. P. 8022, which

governs motions for rehearing filed in bankruptcy

appeals before the district court, does not apply because

the Court already remanded the cases, and because Fed.

R. Bankr. P. 8022(b) requires motions for rehearing to

be filed within fourteen days of entry of judgment on

appeal.

The Court need not decide the precise legal basis for

entertaining the instant motions for reconsideration. GE

acknowledges the Court has the authority to reconsider

its own decision. Moreover, an intervening change of

controlling law is a near-universally valid basis for

bringing a motion for reconsideration. See, e.g., Kroemer

v. Tantillo, 2018 WL 6619850, at *3 (2d Cir. Dec. 17, 2018)

(summary order) (motion to alter or amend judgment

under Fed. R. Civ. P. 59(e)); Ayazi v. United Fed’n of

Teachers Local 2, 487 F. App’x 680, 681 (2d Cir. 2012)

(summary order) (Fed. R. Civ. P. 60(b)); Sargent v.

Columbia Forest Prods., Inc., 75 F.3d 86, 90 (2d Cir.

1996) (recalling mandate); Raymond v. Mid-Bronx

Haulage Corp., 2017 WL 9882601, at *1 (S.D.N.Y. June

10, 2017) (Fed. R. Civ. P. 54(b)); In re Parade Place,

18a

LLC, 508 B.R. 863, 869 (Bankr. S.D.N.Y. May 2, 2014)

(S.D.N.Y. Local Bankr. R. 9023–1(a)).1

Generally, such a motion should be granted only

when the Court has overlooked facts or precedent that

might have altered the conclusion reached in the earlier

decision. Shrader v. CSX Transp., Inc., 70 F.3d 255, 257

(2d Cir. 1995); see SDNY Local Civil Rule 6.3. The

motion must be “narrowly construed and strictly

applied in order to discourage litigants from making

repetitive arguments on issues that have been

thoroughly considered by the court.” Range Rd. Music,

Inc., v. Music Sales Corp., 90 F. Supp. 2d 390, 391–92

(S.D.N.Y. 2000). Further, the motion “may not advance

new facts, issues, or arguments not previously

presented to the court.” Randell v. United States, 64

F.3d 101, 109 (2d Cir. 1995) (citing Morse/Diesel, Inc. v.

Fid. & Deposit Co. of Md., 768 F. Supp. 115, 116

(S.D.N.Y. 1991)). This limitation ensures finality and

“prevent[s] the practice of a losing party examining a

decision and then plugging the gaps of a lost motion with

additional matters.” Carolco Pictures Inc. v. Sirota, 700

F. Supp. 169, 170 (S.D.N.Y. 1988) (internal quotation

omitted). Mere disagreement with the Court’s decision

is not a basis for reconsideration. Pro Bono Invs., Inc.

GE argues the Court should apply the legal standard set forth in

Sargent v. Columbia Forest Products, Inc., in which the Second

Circuit articulated a four-factor test for determining whether to

recall a prior-issued mandate. 75 F.3d at 90. For substantially the

reasons set forth below, reconsideration is warranted under the

Sargent standard as well.

19a

v. Gerry, 2008 WL 2354366, at *1 (S.D.N.Y. June 9, 2008)

(collecting cases).

II. Application

Plaintiffs-appellees argue the Court should grant

reconsideration of the October 14 Decision because the

Second Circuit’s opinion in In re Anderson, represents

an intervening change of controlling law.

The Court agrees.

The October 14 Decision and In re Anderson dealt

with the same issue. In both cases, the plaintiffs

brought claims under 11 U.S.C. § 524(a)(2) alleging

defendants violated the Bankruptcy Code’s discharge

injunction by deliberately failing to inform credit

reporting agencies about the discharge of debts in

bankruptcy to coerce former debtors into paying

discharged debts. In re Anderson, 884 F.3d at 387; In

re Belton, 2015 WL 6163083, at *2. In both cases, the

defendants moved to compel arbitration.

In re

Anderson, 884 F.3d at 387; In re Belton, 2015 WL

6163083, at *2. And in both cases, the plaintiffs

contested arbitrability by arguing there was an

inherent conflict between arbitration of the Section 524

claims and the Bankruptcy Code. In re Anderson, 884

F.3d at 389; In re Belton, 2015 WL 6163083, at *6–7.

This Court and the Second Circuit reached opposite

conclusions. In the October 14 Decision, this Court held

Congress did not intend to preclude arbitration of

claims under 11 U.S.C. § 524(a)(2) for violations of a

discharge injunction. In re Belton, 2015 WL 6163083, at

*9. In so doing, the Court held, among other things,

there was no inherent conflict between the FAA and

20a

Section 524 because “arbitrating plaintiffs-appellees’

Section 524 claims would neither necessarily nor

seriously jeopardize the objectives of that section or of

the Bankruptcy Code in general.” Id. at *7. On the

other hand, in In re Anderson, the Second Circuit held

“arbitration of a claim based on an alleged violation of

Section 524(a)(2) would ‘seriously jeopardize a

particular core bankruptcy proceeding’” and thus create

an inherent conflict with the Bankruptcy Code. In re

Anderson, 884 F.3d at 389–90 (quoting In re U.S. Lines,

Inc., 197 F.3d 631, 641 (2d Cir. 1999)).

Moreover, the Second Circuit’s orders clearly

indicate the Circuit considers In re Anderson to affect

the disposition of this case. The Circuit stayed plaintiffsappellees’ petitions for writs of mandamus “pending a

ruling in In re Anderson,” Motion Order, In re Bruce,

No. 16-830 (Dkt. 69) (2d Cir. Dec. 15, 2016); Motion

Order, In re Belton, No. 16-833 (Dkt. 68) (2d Cir. Dec.

15, 2016), and ultimately denied the petitions

specifically because plaintiffs-appellees could seek

reconsideration of the October 14 Decision “in light of”

In re Anderson. See Order, In re Bruce, No. 16-830

(Dkt. 96) (2d Cir. June 26, 2018); Order, In re Belton, No.

16-833 (Dkt. 96) (2d Cir. June 26, 2018). Therefore, In

re Anderson represents an intervening change of

controlling law.

Defendants-appellants argue In re Anderson does

not represent an intervening change of controlling law

because the Second Circuit declined to address the

Bankruptcy Code’s text and legislative history, whereas

this Court found the Bankruptcy Code’s text and

legislative history weighed against the conclusion that

21a

Congress intended to preclude arbitration of Section 524

claims. However, as this Court held in its October 14

Decision, “the Court may look to the Bankruptcy Code’s

text, its legislative history, ‘or [to] an inherent conflict

between arbitration and the [Code]’s underlying

purposes’” to decide whether Congress intended to

preclude arbitration of Section 524 claims. In re Belton,

2015 WL 6163083, at *5 (quoting Shearson/Am. Exp.,

Inc. v. McMahon, 482 U.S. 220, 227 (1987) (emphasis

added)) (alterations in original); see also In re Anderson,

884 F.3d at 388 (“Congressional intent may be discerned

through the ‘text or legislative history, or from an

inherent conflict between arbitration and the statute’s

underlying purposes.’” (quoting Shearson/Am. Exp.,

Inc. v. McMahon, 482 U.S. at 227)). Thus, the fact that

the Second Circuit declined to address the Bankruptcy

Code’s text and legislative history does not detract from

In re Anderson’s precedential value in this case.

Defendants-appellants also argue In re Anderson is

inconsistent with the Supreme Court’s decision in Epic

Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018). In that

case, the Supreme Court held Section 7 of the National

Labor Relations Act (“NLRA”), which guarantees

workers “the right to self-organization, to form, join, or

assist labor organizations, to bargain collectively

through representatives of their own choosing, and to

engage in other concerted activities for the purpose of

collective bargaining or other mutual aid or protection,”

did not displace the FAA and outlaw arbitration

agreements requiring individualized arbitration. Id. at

1619, 1624 (quoting 29 U.S.C. § 157).

22a

Defendants-appellants argue both that (i) the

Supreme Court conducted a text-first analysis in Epic

Systems Corp. v. Lewis that contradicts the Second

Circuit’s inherent conflict approach in In re Anderson,

and (ii) the inherent conflict approach is no longer viable

post- Epic Systems Corp. v. Lewis—essentially the same

argument this Court rejected in the October 14 Decision,

when defendants-appellants argued the inherent conflict

approach was no longer viable post-CompuCredit Corp.

v. Greenwood, 132 S. Ct. 665 (2012). See In re Belton,

2015 WL 6163083, at *5.

Neither argument is persuasive. “[T]he Second

Circuit has spoken directly to the issue presented by this

case, and this Court is required to follow that decision

‘unless and until it is overruled in a precedential opinion

by the Second Circuit itself or unless a subsequent

decision of the Supreme Court so undermines it that it

will almost inevitably be overruled by the Second

Circuit.’” United States v. Diaz, 122 F. Supp. 3d 165, 179

(S.D.N.Y. 2015), aff’d, 854 F.3d 197 (2d Cir. 2017). The

Supreme Court did not “so undermine[]” the inherent

conflict test such that In re Anderson will almost

inevitably be overruled by the Second Circuit. Id.

Indeed, that the Circuit has continued to apply the

inherent conflict test even after the Supreme Court

bypassed it in multiple cases suggests the Circuit is not

inclined to abandon the inherent conflict test until the

Supreme Court more explicitly abrogates it.

Finally, defendants-appellants argue the Court

should refuse to grant reconsideration of the October 14

Decision because plaintiffs-appellees were dilatory in

failing to pursue arbitration in the three years since the

23a

decision. The Court disagrees. Plaintiffs-appellees were

not dilatory. On December 15, 2016, the Second Circuit

issued orders staying plaintiffs-appellees petitions for

writs of mandamus “pending a ruling in In re Anderson.”

Motion Order, In re Bruce, No. 16-830 (Dkt. 69) (2d Cir.

Dec. 15, 2016); Motion Order, In re Belton, No. 16-833

(Dkt. 68) (2d Cir. Dec. 15, 2016). Plaintiffs-appellees

were well within their rights to wait for the Second

Circuit’s decision on their requests for writs of

mandamus before commencing arbitration.

The motions for reconsideration are GRANTED.

This Court’s October 14, 2015, Memorandum

Decision, and the order to remand contained therein, are

VACATED.

The Bankruptcy Court’s orders denying defendantsappellants’ motions to compel arbitration are

AFFIRMED. The Bankruptcy Court is directed to

conduct further proceedings consistent with this

Opinion and Order.

The Clerk is instructed to terminate the motions. (In

re Belton, 15 Civ. 1934 (Doc. #37); In re Bruce, 15 Civ.

3311 (Doc. #30)).

Dated:

March 4, 2019

White Plains, NY

SO ORDERED:

Vincent L. Briccetti

24a

United States District Judge

25a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

--------------------------------------------------x

In re:

NYREE BELTON,

Debtor.

--------------------------------------------------x

NYREE BELTON, Debtor and

: 15 CV 1934 (VB)

Plaintiff on behalf of herself and all :

others similarly situated,

Plaintiff,

GE CAPITAL CONSUMER

LENDING, INC. a/k/a GE MONEY :

BANK,

Defendant.

--------------------------------------------------x

In re:

KIMBERLY BRUCE,

Debtor.

--------------------------------------------------x 15 CV 3311 (VB)

KIMBERLY BRUCE, Debtor and :

Plaintiff on behalf of herself and all :

others similarly situated,

Plaintiff,

26a

CITIGROUP INC., CITIBANK,

N.A., and CITIBANK

(SOUTH DAKOTA), N.A.,

Defendants.

--------------------------------------------------x

Briccetti, J.:

In these related bankruptcy appeals, defendantsappellants GE Capital Retail Bank1 (“GE”), as well as

Citigroup Inc. and Citibank, N.A., successor-in-interest

to Citibank (South Dakota), N.A. (together, “Citi”),

appeal from orders of the United States Bankruptcy

Court for the Southern District of New York (Drain, J.)

denying their respective motions to compel arbitration

under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1

et seq.

For the following reasons, the Bankruptcy Court’s

orders are REVERSED.

The Court has subject matter jurisdiction pursuant

to 28 U.S.C. § 158(a).

In 2007, plaintiffs-appellees Nyree Belton and

Kimberly Bruce each opened credit card accounts;

Belton opened an account with GE, and Bruce opened

an account with Citi. Both Belton’s credit card

agreement with GE and Bruce’s credit card agreement

with Citi contain arbitration provisions. The arbitration

GE Capital Retail Bank was formerly known as GE Money Bank,

which is named in the Belton case caption as an “also known as” for

GE Capital Consumer Lending, Inc.

27a

provision in Belton’s agreement provides, in relevant

part: “[A]ny past, present or future legal dispute or

claim of any kind, including statutory and common law

claims and claims for equitable relief, that relates in any

way to your account, card or your relationship with us

(‘Claim’) will be resolved by binding arbitration if either

you or we elect to arbitrate.” (Belton A112).2 Bruce’s

agreement similarly states: “All Claims [defined as ‘any

claim, dispute, or controversy between you and us’]

relating to your account, a prior related account, or our

relationship are subject to arbitration.” (Bruce A444).

Both credit card agreements also have provisions

discussing credit reporting, including the process for

cardholders to follow if they believe defendantsappellants have provided “inaccurate” or “erroneous”

information to credit reporting agencies. (Belton A112;

Bruce A442).

In May 2012, Belton filed a voluntary petition for

bankruptcy under Chapter 7 of the Bankruptcy Code.

Bruce did the same in January 2013. Both petitions were

filed in the United States Bankruptcy Court for the

Southern District of New York.

The Bankruptcy Court eventually entered a

discharge order in each case, thereby closing the cases

and discharging plaintiffs-appellees’ debts. Among their

discharged debts were debts they incurred with their

GE and Citi credit cards, respectively.

“Belton A___” and “Bruce A___” refer to the appendices

submitted in these appeals.

28a

In October 2012, after receiving her discharge,

Belton obtained her credit report from Equifax, a credit

reporting agency. The credit report included an entry,

or “tradeline,” for her GE credit card account. That

account was listed as “charged off,” which, according to

plaintiffs-appellees, means a “debt [i]s currently due and

owing.” (Pls.’ Br. at 4). The credit report gave no

indication Belton’s credit card debt had been discharged

in bankruptcy.

Similarly, when Bruce obtained her credit report in

September 2013, the report described her Citi credit card

debt as “charged-off” rather than as having been

discharged in bankruptcy.

In 2014, plaintiffs-appellees moved to re-open their

bankruptcy cases. After the motions were granted, they

each commenced a putative class action adversary

proceeding.

Plaintiffs-appellees allege defendantsappellants, as a matter of policy and practice,

deliberately fail to inform credit reporting agencies

about the discharge of debts in bankruptcy because

former debtors will often pay discharged debts to have

them removed from their credit reports. Defendantsappellants allegedly profit from debtors paying off

discharged debts by (i) selling those debts, as well as

information related thereto, to buyers who are willing to

pay more for them because of the likelihood the debts

will be paid off; and (ii) receiving a percentage—in some

cases 100 percent—of each repaid debt. Plaintiffsappellees allege defendants-appellants’ practices violate

the Bankruptcy Code’s discharge injunction, which

provides that a discharge order “operates as an

injunction against . . . an act, to collect, recover or offset

29a

any such debt as a personal liability of the debtor.”

11 U.S.C. § 524(a)(2). Plaintiffs-appellees seek, among

other relief, to have defendants-appellants held in

contempt for willfully violating discharge orders.

On June 30 and July 3, 2014, Citi and GE,

respectively, moved to compel arbitration of the claims

against them and to stay the adversary proceedings

pending arbitration.

While its motion was pending, GE had Belton’s

discharged credit card debt removed from her credit

report. Citi likewise had Bruce’s discharged debt

removed from her credit report.

In October 2014, the United States Trustee filed an

application in Belton’s re-opened bankruptcy case for an

order authorizing the Trustee to conduct an examination

of GE pursuant to Rule 2004 of the Federal Rules of

Bankruptcy.3 Specifically, the Trustee sought to serve a

subpoena duces tecum on GE and to compel a GE

representative to answer oral questions. The Trustee

filed a similar application in Bruce’s bankruptcy case in

December 2014. The Bankruptcy Court granted both

applications in January 2015.

On November 10, 2014, the Bankruptcy Court issued

an order denying GE’s motion to compel arbitration.

(Belton A684). The Bankruptcy Court set forth its

reasons for doing so in a “Corrected and Modified Bench

A Rule 2004 examination is a “very broad,” “pre-litigation”

discovery process designed “to assist the trustee in revealing the

nature and extent of the estate, ascertaining assets, and discovering

whether any wrongdoing has occurred.” In re Corso, 328 B.R. 375,

383 (E.D.N.Y. 2005) (internal quotation marks omitted).

30a

Ruling” issued the same day. See In re Belton, 2014 WL

5819586 (Bankr. S.D.N.Y. Nov. 10, 2014). Two days

later, on November 12, 2014, the Bankruptcy Court

issued an order denying Citi’s motion to compel

arbitration substantially for the reasons stated in its

Corrected and Modified Bench Ruling. (Bruce A620).

Defendants-appellants sought leave to appeal those

orders directly to the United States Court of Appeals for

the Second Circuit, which denied their applications on

March 3 and April 7, 2015, respectively. Accordingly,

GE filed the pending appeal in this Court on March 13,

2015, and Citi did so on April 28, 2015.

I. Standard of Review

A district court “may affirm, modify, or reverse a

bankruptcy judge’s judgment, order, or decree.” Fed. R.

Bankr. P. 8013. A district court reviews a bankruptcy

court’s conclusions of law de novo and its findings of fact

under a clearly erroneous standard. See In re Ames

Dep’t Stores, Inc., 582 F.3d 422, 426 (2d Cir. 2009) (citing

Momentum Mfg. Corp. v. Emp. Creditors Comm., 25

F.3d 1132, 1136 (2d Cir. 1994)).

II. Arbitrability of Plaintiffs-Appellees’ Claims

The FAA provides, in relevant part: “A written

provision in . . . a contract evidencing a transaction

involving commerce to settle by arbitration a controversy

thereafter arising out of such contract or transaction . . .

shall be valid, irrevocable, and enforceable, save upon such

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

any contract.” 9 U.S.C. § 2. The statute reflects a “liberal

31a

federal policy favoring arbitration,” AT&T Mobility LLC

v. Concepcion, 131 S. Ct. 1740, 1745 (2011) (internal

quotation marks omitted), and establishes a “preference

for enforcing arbitration agreements . . . even when the

claims at issue are federal statutory claims.” Parisi v.

Goldman, Sachs & Co., 710 F.3d 483, 486 (2d Cir. 2013).

In deciding whether to compel arbitration, “a court

must consider (1) whether the parties have entered into a

valid agreement to arbitrate, and, if so, (2) whether the

dispute at issue comes within the scope of the arbitration

agreement.” In re Am. Express Fin. Advisors Secs.

Litig., 672 F.3d 113, 128 (2d Cir. 2011). And when any of

claims at issue arise under a federal statute, the court

must also determine whether Congress intended such

federal statutory claims to be arbitrated, and whether

arbitration would “prevent the ‘effective vindication’ of

[the] federal statutory right.” Am. Express Co. v. Italian

Colors Rest., 133 S. Ct. 2304, 2309-10 (2013).

Although the Bankruptcy Court ultimately denied

defendants-appellants’ motions to compel arbitration, it

concluded the parties’ arbitration agreements were

valid and covered plaintiffs-appellees’ claims. Plaintiffsappellees challenge those rulings on appeal.

Accordingly, the Court first considers whether the

arbitration agreements are valid.

A. Validity of Arbitration Agreements

Plaintiffs-appellees contend their bankruptcy

discharges rendered their arbitration agreements

32a

unenforceable.4 According to plaintiffs-appellees, their

discharges relieved them of all of their obligations under

their credit card agreements—including their obligation

to arbitrate.

However, in MBNA America Bank, N.A. v. Hill, the

Second Circuit enforced an arbitration clause even

though the plaintiff had already been granted a

discharge. 436 F.3d 104, 106, 110-11 (2d Cir. 2006). Hill

thus appears to foreclose plaintiffs-appellees’ argument.

In any event, Supreme Court precedent makes clear

that “a party’s challenge to . . . [a] contract as a whole,

does not prevent a court from enforcing a specific

agreement to arbitrate.” Rent-A-Center, W., Inc. v.

Jackson, 561 U.S. 63, 70 (2010) (emphasis added). “That

is because § 2 [of the FAA] states that a ‘written

provision’ ‘to settle by arbitration a controversy’ is

‘valid, irrevocable, and enforceable’ without mention of

the validity of the contract in which it is contained.” Id.

Indeed, “[a]s a matter of substantive federal arbitration

law, an arbitration provision is severable from the

remainder of the contract.” Id. at 70-71. Thus, an

arbitration agreement may be declared unenforceable

only when a party “challenges specifically the validity of

the agreement to arbitrate,” as opposed to the validity

of the entire contract. Id. at 70 (internal quotation marks

omitted).

Although plaintiffs-appellees include this argument in a section of

their brief discussing the scope of the arbitration agreements (Pls.’

Br. at 38-41), this argument assails the validity, rather than the

scope, of the arbitration agreements.

33a

Here, plaintiff-appellees do not make any arguments

about why their agreements to arbitrate, in and of

themselves, are unenforceable; rather, they attack the

enforceability of their credit card agreements as a whole.

Plaintiffs-appellees therefore have failed to show their

arbitration agreements are invalid under Jackson.

Accordingly, the Court next considers whether

plaintiffs-appellees’ claims fall within the scope of their

arbitration agreements.

B. Scope of Arbitration Agreements

Plaintiffs-appellees contend their claims exceed the

scope of their respective arbitration agreements

because those agreements apply only to claims or

disputes between the parties, whereas the claims here

are, in effect, between defendants-appellants and the

Bankruptcy Court. As plaintiffs-appellees explain,

these actions seek to hold defendants-appellants in

contempt for violating the Bankruptcy Court’s

discharge orders, meaning, in plaintiffs-appellees’ view,

“the Bankruptcy Court itself is a party to each action,

since it is the Bankruptcy Court’s injunction that has

allegedly been violated and it is the Bankruptcy Court’s

. . . powers that provide the means through which the

violation can be remedied.” (Pls.’ Br. at 39).

But “[i]n determining whether a particular claim falls

within the scope of the parties’ arbitration agreement,”

the Court focuses “on the factual allegations in the

complaint rather than the legal causes of action

asserted.” Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d

840, 846 (2d Cir. 1987). “If the allegations underlying the

claims ‘touch matters’ covered by the parties [credit

34a

card] agreements, then those claims must be arbitrated,

whatever the legal labels attached to them.” Id. (quoting

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,

Inc., 473 U.S. 614, 624 n.13 (1985)).

Plaintiffs-appellees allege defendants-appellants

deliberately failed to remove discharged debts, or have

discharged debts removed, from plaintiffs-appellees’

credit reports. The parties’ credit card agreements

specifically discuss credit reporting, including the

process for plaintiffs-appellees to follow if they believe

defendants-appellants have provided “inaccurate” or

“erroneous” information to credit reporting agencies.

(Belton A112; Bruce A442). Thus, the factual allegations

underlying plaintiffs-appellants’ claims clearly “touch

matters” covered by their credit card agreements.

Accordingly, irrespective of the relief plaintiffsappellees seek or the means by which they hope to obtain

such relief, their claims fall within the scope of their

arbitration agreements.

Having concluded the arbitration agreements are

valid and cover the claims asserted here, the Court next

considers whether Congress intended claims under

Section 524 to be arbitrable.

C. Congressional Intent to Preclude Arbitration of

Section 524 Claims

As noted above, the FAA establishes a “preference

for enforcing arbitration agreements.”

Parisi v.

Goldman, Sachs & Co., 710 F.3d at 486. The statute thus

generally “requires courts to enforce agreements to

arbitrate according to their terms . . . even when the

claims at issue are federal statutory claims.”

35a

CompuCredit Corp. v. Greenwood, 132 S. Ct. 665, 669

(2012). But “the FAA’s mandate [may be] overridden” if

the federal statute alleged to have been violated contains

“a contrary congressional command,” id. (internal

quotation marks omitted), that is, if the statute evinces

Congress’ intent to have courts, not arbitrators, decide

claims arising under the statute.

See Gilmer v.

Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991).

“The party opposing arbitration has the burden of

showing that Congress intended to preclude arbitration

of the statutory rights at issue.” MBNA Am. Bank, N.A.

v. Hill, 436 F.3d at 108.

The parties disagree about how to ascertain whether

Congress intended to foreclose arbitration of discharge

injunction claims under Section 524. Plaintiffs-appellees

contend this intent may be divined “from [the

Bankruptcy Code’s] text or legislative history, or from

an inherent conflict between arbitration and the [Code]’s

underlying

purposes,”

set

forth

Shearson/American Express, Inc. v. McMahon, 482

U.S. at 227 (internal citation and quotation marks

omitted). (Pls.’ Br. at 15, 22). Defendants-appellants

maintain the Supreme Court’s recent decision in

CompuCredit Corp. v. Greenwood, which considered

whether the Credit Repair Organizations Act (“CROA”)

prohibits arbitration of claims made thereunder,

requires plaintiffs-appellees to identify “explicit

statutory language” exempting their claims from

arbitration; a statute’s legislative history or an “inherent

conflict” is not enough. (GE Br. at 18; accord Citi Br. at

10 (federal statutory claims must be arbitrated “in the

36a

absence of an express contradiction in the text of the

statute”)).

The Court agrees with plaintiffs-appellees. Although

CompuCredit held CROA claims are subject to

arbitration “[b]ecause the CROA is silent on whether

claims under the Act can proceed in an arbitrable

forum,” 132 S. Ct. at 673, CompuCredit cannot be read

as impliedly overruling McMahon, particularly given

that CompuCredit cites McMahon for the proposition

that the FAA may be “overridden by a contrary

congressional command.”

CompuCredit Corp. v.

Greenwood, 132 S. Ct. at 669 (internal quotation marks

omitted). Indeed, Justices Sotomayor and Kagan, who

concurred in the judgment in CompuCredit, did “not

understand the majority opinion to hold that Congress

must speak so explicitly in order to convey its intent to

preclude arbitration of statutory claims. We have never

said as much, and on numerous occasions have held that

proof of Congress’ intent may also be discovered in the

history or purpose of the statute in question.” Id. at 675

(Sotomayor and Kagan, J.J., concurring). And, as

plaintiffs-appellees point out, in arguing that the CROA

overrode the FAA, respondents in CompuCredit did not

rely on the CROA’s legislative history, nor did they

make an “inherent conflict” argument; “[c]onsequently,

the sole question for the Court [wa]s whether the text of

the CROA precludes arbitration with sufficient clarity

to override the operation of the FAA.” (Pls.’ Br. at 24

(quoting petitioners’ brief in CompuCredit, 2011 WL

2533009, at *18 (June 23, 2011))).

Accordingly, in deciding whether Congress intended

to preclude arbitration of Section 524 claims, the Court

37a

may look to the Bankruptcy Code’s text, its legislative

history, “or [to] an inherent conflict between arbitration

and the [Code]’s underlying purposes.” Shearson/Am.

Exp., Inc. v. McMahon, 482 U.S. at 227 (emphasis

added). That said, “[t]hroughout such an inquiry, it

should be kept in mind that questions of arbitrability

must be addressed with a healthy regard for the federal

policy

favoring

arbitration.”

Gilmer

Interstate/Johnson Lane Corp., 500 U.S. at 26 (internal

quotation mark omitted).

1. Text and Legislative History

Neither Section 524, nor the Bankruptcy Code in

general, expressly mentions arbitration.

28 U.S.C. § 1334 does, however, discuss jurisdiction

over bankruptcy-related matters. The statute provides,

in relevant part, that federal district courts “have

original but not exclusive jurisdiction of all civil

proceedings arising under title 11, or arising in or

related to cases under title 11,” 28 U.S.C. § 1334(b)

(emphasis added), but retain exclusive jurisdiction over

“claims or causes of action that involve construction of

section 327 of title 11, United States Code, or rules

relating to disclosure requirements under section 327.”5

Id. § 1334(e)(2).

By declining to give district courts exclusive

jurisdiction over most bankruptcy-related civil

Section 327 of the Bankruptcy Code addresses the retention and

compensation of professionals, such as attorneys, accountants,

appraisers, and auctioneers, in connection with a bankruptcy

proceeding.

38a

proceedings, Section 1334(b) on its face appears to

permit arbitration of such proceedings. See MBNA Am.

Bank, N.A. v. Hill, 436 F.3d at 110 (citing Section 1334

and noting that “[a]rbitration is presumptively an

appropriate and competent forum for federal statutory

claims” and that litigation of claims under the

Bankruptcy Code’s automatic stay provision “is not a

matter within the exclusive jurisdiction of the

bankruptcy courts”).

And to the extent it can be argued that a grant of

exclusive jurisdiction over certain claims provides some

evidence of Congress’ intent to preclude arbitration of

those claims,6 the fact that in subsection (e)(2) of Section

1334 Congress vested district courts with exclusive

jurisdiction over Section 327 claims—but not Section 524

claims—cuts against the conclusion that Congress

intended to exempt Section 524 claims from arbitration.

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

Smith, Inc., 885 F.2d 1149, 1157 n.11 (3d Cir. 1989)

(“Where Congress has specifically indicated subjugation

of arbitration to the dictates of the bankruptcy laws in

one situation, but not in another, we must presume that

Congress neither intended to subjugate arbitration in

the second instance, nor saw the two laws as conflicting

in this respect.”). Congress added subsection (e)(2) in

In McMahon, the Supreme Court held that claims under Section

10(b) of the Securities Exchange Act are subject to arbitration even

though the statute grants district courts exclusive jurisdiction over

such claims. 482 U.S. at 227-28. The dissent pointed out, however,

that “the limitation of § 10(b) actions to federal court argues against

enforcing predispute arbitration agreements as to such actions.” Id.

at 245 n.2 (Blackmun, J., dissenting).

39a

2005, after “a string of [Supreme] Court[] decisions

compelling arbitration pursuant to contractual

stipulations . . . [had] alerted Congress to the utility of

drafting anti[-arbitration] prescriptions with meticulous

care.” CompuCredit Corp. v. Greenwood, 132 S. Ct. at

669 (Ginsburg, J., dissenting). Thus, had Congress

intended to give federal courts exclusive jurisdiction

over Section 524 claims, or otherwise express its intent

to preclude arbitration of those claims, it knew how to do

so.

Accordingly, text and legislative history weigh

against the conclusion that Congress intended to

preclude arbitration of Section 524 claims.

2. Inherent Conflict

An “inherent conflict” exists between the FAA and a

provision of the Bankruptcy Code if arbitrating a claim

arising under that provision would “necessarily” and

“seriously” jeopardize the Code’s objectives, which

include “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.” MBNA Am. Bank, N.A. v. Hill, 436 F.3d

at 108-09 (internal quotation marks omitted).

Determining whether arbitration of a claim would

necessarily and seriously jeopardize the Code’s

objectives “requires a particularized inquiry into the

nature of the claim and the facts of the specific

bankruptcy.” Id. at 108. Only if a “severe conflict” is

found can a court “properly conclude that, with respect

to the particular Code provision involved, Congress

intended to override the Arbitration Act’s general policy

40a

favoring the enforcement of arbitration agreements.”

Id.

Here, arbitrating plaintiffs-appellees’ Section 524

claims would neither necessarily nor seriously

jeopardize the objectives of that section or of the

Bankruptcy Code in general.

The Bankruptcy Court concluded plaintiffsappellees’ Section 524 claims should not be arbitrated

principally because giving the debtor a “fresh start” is

the most fundamental objective of the Bankruptcy Code;

the discharge injunction secures that objective; and,

therefore, allowing an arbitrator rather than a

bankruptcy court to adjudicate a claim for violation of

the discharge injunction would seriously undermine that

objective. See In re Belton, 2014 WL 5819586, at *8.

But the fact that a plaintiff alleges a violation of an

important, even fundamental, Bankruptcy Code

provision is not enough to exempt such a claim from

arbitration. In MBNA America Bank, N.A. v. Hill, the

Second Circuit compelled arbitration of a putative class

action adversary proceeding alleging violations of the

Bankruptcy Code’s automatic stay provision, even

though the court recognized “the automatic stay is

surely an important provision of the Bankruptcy Code.”

436 F.3d at 110; accord Midlantic Nat’l Bank v. N.J.

Dep’t of Envtl. Prot., 474 U.S. 494, 503 (1986) (“The

automatic stay provision . . . has been described as one

of the fundamental debtor protections provided by the

bankruptcy laws.” (internal quotation marks omitted)).

Indeed, “by agreeing to arbitrate a statutory claim, a

party does not forgo the substantive rights afforded by

the statute; it only submits to their resolution in an

41a

arbitral, rather than a judicial, forum.” Gilmer v.

Interstate/Johnson Lane Corp., 500 U.S. at 26 (internal

quotation marks omitted).

The Bankruptcy Court misread Hill as

“articulat[ing] in very strong dicta that when the

debtor’s fresh start is at issue, an enforcement

proceeding in the bankruptcy court should not be

stayed in favor of arbitration.” In re Belton, 2014 WL

5819586, at *8. In Hill, the Second Circuit held that

arbitration of the plaintiff’s automatic stay claim would

not seriously jeopardize the objectives of the

Bankruptcy Code, “[f]irst, and most importantly,”

because the plaintiff had received a discharge and,

therefore, “no longer require[d] the protection of the

stay to ensure her fresh start.” 436 F.3d at 110. The

Bankruptcy Court interpreted Hill as suggesting that,

had the stay been necessary to ensure the plaintiff’s

fresh start, arbitration would not have been

appropriate; and because the discharge injunction is

necessary to obtain a fresh start, the reasoning goes,

Hill should be viewed as cautioning against arbitration

of actions to enforce that injunction.

But Hill cannot be construed as supporting the

notion that arbitration is unavailable whenever “the

debtor’s fresh start is at issue.” In re Belton, 2014 WL

5819586, at *8. Hill stands for the more modest

proposition that claims alleging violations of the

Bankruptcy Code should not be arbitrated if those

claims are “integral to [the] bankruptcy court’s ability to

preserve and equitably distribute assets of the estate”

or if arbitration would “substantially interfere with [the

debtor’s] efforts to reorganize.” 436 F.3d at 110 (internal

42a

quotation marks omitted). Conversely, under Hill,

arbitration of claims under the Bankruptcy Code is

required when “arbitration would not interfere with or

affect the distribution of the estate” or would not “affect

an ongoing reorganization,” as was the case there. Id. at

109-10.

In support of the latter proposition, Hill cited

Bigelow v. Green Tree Financial Servicing Corp., 2000

WL 33596476 (E.D. Cal. Nov. 30, 2000), a case in which

the court compelled arbitration of the plaintiff’s claims—

including a claim for violation of the discharge injunction

under Section 524—because the claims did “not address

the liquidation of the estate nor the priority of creditor’s

claims.” Id. at *6. The court therefore “perceive[d] no

adverse effect on the underlying purposes of the code

from enforcing arbitration.” Id. The same reasoning

applies here. Because arbitration of plaintiffs-appellees’

Section 524 claims “would not interfere with or affect the

distribution of the estate” and would not “affect an

ongoing reorganization,” it cannot be said arbitration

would necessarily or seriously jeopardize the objectives

of the Bankruptcy Code in this case. MBNA Am. Bank,

N.A. v. Hill, 436 F.3d at 109-10.

Hill’s two other bases for holding that arbitration of

the plaintiff’s automatic stay claim would not seriously

jeopardize the objectives of the Bankruptcy Code apply

equally here as well.

The Second Circuit observed that “the fact Hill filed

her [automatic stay] claim as a putative class action”

weighed in favor of compelling arbitration. MBNA Am.

Bank, N.A. v. Hill, 436 F.3d at 110. “By tying her claim

to a class of allegedly similarly situated individuals,

43a

many of whom are no longer in bankruptcy

proceedings,” the court explained, Hill “demonstrate[d]

the lack of a close connection between the claim and her

own underlying bankruptcy case.” Id. In other words,

bringing her claim as part of a putative class action

underscored the fact that the claim was not “integral” to

her own bankruptcy case. Id.; cf. In re U.S. Lines, Inc.,

197 F.3d 631, 641 (2d Cir. 1999) (reversing order

compelling arbitration of declaratory judgment

proceedings because they were “integral to the

bankruptcy court’s ability to preserve and equitably

distribute the Trust’s assets”). The same goes here for

plaintiffs-appellees.

The Second Circuit in Hill also relied on the fact that

the bankruptcy court was not “uniquely able to interpret

and enforce” the automatic stay provision. 436 F.3d at

110.

The court noted that “[a]rbitration is

presumptively an appropriate and competent forum for

federal statutory claims,” id., and there was nothing to

suggest the bankruptcy court was more qualified than

an arbitrator to adjudicate a claim alleging violations of

the automatic stay.

Similarly here, a discharge order “is a form, a

national form, which is issued in every case when there

is, in fact, a discharge”; it is “not a handcrafted order.”

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

July 22, 2014). Accordingly, the Bankruptcy Court is not

“uniquely able to interpret and enforce” such an order.

MBNA Am. Bank v. Hill, 436 F.3d at 110. This point is

only reinforced by the fact that plaintiffs-appellees have

brought putative class actions asking one bankruptcy

court to enforce the discharge orders of many other

44a

bankruptcy courts. Arbitration of plaintiffs-appellees’

Section 524 claims therefore would not necessarily or

seriously jeopardize the goal of having bankruptcy

courts enforce their own orders. Id. at 108.

In short, Hill does not support denial of defendantsappellants’ motions to compel.

Plaintiffs-appellees also contend that arbitrating

their claims would necessarily and seriously jeopardize

the Bankruptcy Code’s goal of avoiding piecemeal

litigation. See MBNA Am. Bank v. Hill, 436 F.3d at 108.

As plaintiffs-appellees argue, the United States Trustee

has “intervened in these cases” to conduct examinations

pursuant to Federal Rule of Bankruptcy Procedure

2004, but the Trustee is obviously not a party to their

arbitration agreements; thus, because “[t]he Trustee’s

actions cannot be arbitrated . . . the granting of

Defendants-Appellants’ motions would lead to

duplicative proceedings.” (Pls.’ Br. at 37-38).

Although the Trustee has intervened in plaintiffsappellees’ bankruptcy cases, the Trustee has not joined

in the adversary proceedings that defendants-appellants

seek to arbitrate. Indeed, as the Bankruptcy Court

noted, the Trustee is conducting a “separate inquiry”

that is “not really tied to” the adversary proceedings.

(Bruce A775). Sending the adversary proceedings to

arbitration therefore will not create any more

duplicative proceedings than already exist.

Accordingly, plaintiffs-appellees have failed to meet

their burden of showing Congress intended to preclude

arbitration of Section 524 claims.

45a

The Court therefore will next consider whether

arbitration would “prevent the ‘effective vindication’ of”

plaintiffs-appellees’ right to the fresh start secured by

the discharge injunction. Am. Express Co. v. Italian

Colors Rest., 133 S. Ct. at 2310.

D. Effective Vindication Doctrine

The “effective vindication” doctrine “originated as

dictum” in Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., a case in which the Supreme Court

“expressed a willingness to invalidate, on public policy

grounds, arbitration agreements that operate as a

prospective waiver of a party’s right to pursue statutory

remedies.” Am. Express Co. v. Italian Colors Rest., 133

S. Ct. at 2310 (alterations and internal quotation marks

omitted).

“[S]o long as the prospective litigant

effectively may vindicate its statutory cause of action in

the arbitral forum,” the Court observed, “the statute

will continue to serve both its remedial and deterrent

function.” Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U.S. at 637.

As the Supreme Court made clear in Italian Colors,

the doctrine will only invalidate an agreement that

eliminates “the right to pursue” a federal remedy, such

as an agreement “forbidding the assertion of certain

statutory rights” or imposing “filing and administrative

fees . . . that are so high as to make access to the [arbitral]

forum impracticable.” 133 S. Ct. at 2310-11. When “a

party seeks to invalidate an arbitration agreement on the

ground that arbitration would be prohibitively

expensive, that party bears the burden of showing the

likelihood of incurring such costs.” Green Tree Fin.

Corp.-Alabama v. Randolph, 531 U.S. 79, 92 (2000).

46a

Although the Bankruptcy Court concluded there was

a “risk” the costs of arbitration here would “make access

to the [arbitral] forum impracticable,” In re Belton, 2014

WL 5819586, at *9, the record is devoid of facts “showing

the likelihood” such costs would actually be incurred.

Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S.

at 92. The costs of arbitration here therefore cannot

serve as a basis for invalidating the arbitration

agreements.

The Bankruptcy Court also expressed concern about

“the ability of an arbitration panel to grant timely . . .

[and] effective relief.” In re Belton, 2014 WL 5819586,

at *10. The inability to grant timely relief, however, is

not tantamount to “the elimination of the right to

pursue” a federal statutory remedy. Am. Express Co. v.

Italian Colors Rest., 133 S. Ct. at 2311 (emphasis in

original). In any event, plaintiffs-appellees’ discharged

debts have been removed from their credit reports, thus

mitigating the need for urgent action. Cf. In re Belton,

2014 WL 5819586, at *10 (“[E]very day that a credit

report is inaccurate is another day that the debtor

believes she must pay her debt or be turned down for

new credit.”). And although the Bankruptcy Court

doubted whether an arbitrator could render a final

decision on any bankruptcy matters in light of the

Supreme Court’s decision in Stern v. Marshall, 131 S. Ct.

2594 (2011) (holding that a bankruptcy court lacks

constitutional authority to make final determinations on

certain types of core bankruptcy matters),7 in Wellness

As plaintiffs-appellees explain, “if the Bankruptcy Court does not

even have the power to issue a final order on some bankruptcy

matters, how could a non-Article III or a non-Article I arbitrator

47a

International Network, Ltd. v. Sharif, 135 S. Ct. 1932

(2015), the Supreme Court held that bankruptcy judges

could adjudicate all matters submitted to them on the

parties’ consent. The Court even noted that arbitration

is a long-accepted method of resolving cases on consent.

Id. at 1942.

Accordingly, arbitration of plaintiffs-appellees’

Section 524 claims would not prevent the effective

vindication of their right to a fresh start.

The Bankruptcy Court’s orders denying defendantsappellants’ motions to compel arbitration are

REVERSED. These cases are REMANDED to the

Bankruptcy Court with instructions to grant the

respective motions to compel and stay the adversary

proceedings pending arbitration, and for further

proceedings consistent with this Memorandum Decision.

The Clerk is instructed to close these cases.

Dated: October 14, 2015

White Plains, NY

SO ORDERED.

Vincent L. Briccetti

United States District Judge

have more power to finally resolve bankruptcy matters.” (Pls.’ Br.

at 32).

48a

IN RE: NYREE BELTON,

Debtor,

NYREE BELTON,

Debtor and Plaintiff

on behalf of herself

and all others similarly

situated,

Case No. 12-23037

(RDD)

Chapter 7

Adv. No. 14-08223

(RDD)

GE CAPITAL CONSUMER

LENDING, INC., A/K/A

GE MONEY BANK

Defendant.

Upon the motion (the “Motion”), on due notice, of

defendant GE Capital Consumer Lending Inc. for an

order compelling arbitration and staying this proceeding

pursuant to 9 U.S.C. §§ 2-4; and upon plaintiff’s objection

to the Motion and all other pleadings filed in connection

therewith; and upon the record of the hearings held by

the Court on the Motion on September 11, 2014 and

October 6, 2014; and, after due deliberation and for the

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reasons stated in the Court’s corrected and modified

bench ruling, dated November 10, 2014, a copy of which

is attached hereto, the Court having found and

concluded that the plaintiff has sustained her burden in

opposition and that the Motion should not be granted, it

is hereby

ORDERED that the Motion is denied.

Dated: White Plains, New York

November 10, 2014

/s/ Robert D. Drain

United States

Bankruptcy Judge

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UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------In re:

NYREE BELTON,

Chapter 7

Case No. 12Debtor.

23037 (RDD)

. . . . . . . . . . . . . .

NYREE BELTON,

Plaintiff,

GE CAPITAL CONSUMER

LENDING, INC. A/K/A

GE MONEY BANK,

Defendant.

. Adv. P. No. 14. 08223 (RDD)

------------------------------------------------

APPEARANCES:

For the Plaintiff:

BOIES SCHILLER &

FLEXNER, LLP

By: George Carpinello, Esq.

30 South Pearl Street

51a

Albany, NY 12207

CHARLES JUNTIKKA &

ASSSOCIATES LLP

By: Charles W. Juntika, Esq.

1250 Broadway, 24th Floor

New York, NY 10001

For GE Capital Consumer

Lending, Inc.:

JENNER & BLOCK, LLP

By: Joseph L. Noga, IV, Esq.

919 Third Avenue, 37th Floor

New York, NY 10022

United States Trustee:

OFFICE OF THE UNITED

STATES TRUSTEE

By: Greg M. Zipes, Esq.

33 Whitehall Street, 21st Floor

New York, NY 10004

Hon. Robert D. Drain, United States Bankruptcy Judge

In this adversary proceeding, the plaintiff, Ms.

Belton seeks under 11 U.S.C. §§ 105(a) and 524, as well

as by invoking the Court’s inherent power to enforce and

find parties in contempt for breach of its orders, to

enforce the discharge of debt under section 727(a) of the

Bankruptcy Code that she received at the end of her

bankruptcy case. In addition to requesting relief on

behalf of Ms. Belton, the adversary proceeding also

seeks, pursuant to Fed. R. Bankr. P. 7023, to enforce the

discharge on behalf of a class of all similarly situated

debtors. (The Court previously addressed an issue

raised by the complaint’s request for class action relief

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in a closely analogous proceeding, Haynes v. Chase

Bank USA (In re Haynes), 2014 Bankr. LEXIS 3111

(Bankr. S.D.N.Y. July 22, 2014)).

The asserted factual basis for relief is that the

defendant, GE Capital Consumer Lending, Inc. (“GE

Capital”), while aware of Ms. Belton’s discharge, did not

correct one or more credit reports to show that her debt

originally owed to GE Capital was, in fact, discharged in

bankruptcy, instead permitting it to continue to be

represented as outstanding. The complaint asserts that

this was not a simple mistake by GE Capital but, rather,

an attempt to enforce the debt notwithstanding its

discharge.

The complaint asserts that when a credit report lists

debt as not having been discharged in bankruptcy, the

debtor’s fresh start, and more particularly her ability to

obtain credit in the future, including, for example, to buy

a home, an automobile or engage in other substantial

credit transactions, is materially impaired. As stated by

the editors of the leading bankruptcy treatise,

The failure to update a credit report to show that

a debt has been discharged is also a violation of

the discharge injunction if shown to be an attempt

to collect the debt. Because debtors often feel

compelled to pay debts listed in credit reports

when entering into large transactions, such as a

home purchase, it should not be difficult to show

that the creditor, by leaving discharged debts on

a credit report, despite failed attempts to have

the creditor update the report, is attempting to

collect the debt.

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4 Collier on Bankruptcy, ¶ 524.02[2][b] (16th ed. 2014),

at page 524-23; see also In re Haynes, 2014 Bankr.

LEXIS 3111, *5, and the cases cited therein.

The complaint asserts that GE Capital has a

concerted, widespread and profitable practice of not

reporting debt to it as discharged in bankruptcy in order

to pressure consumer debtors to clean up their credit

reports by paying debt that, as a matter of law embodied

in the discharge order, they do not have to pay.

The complaint’s merits (which GE Capital disputes),

are not presently at issue. Instead, what is before me is

GE Capital’s motion to stay this proceeding pursuant to

section 3 of the Federal Arbitration Act, 9 U.S.C. §§ 115 (the “FAA”), and to compel arbitration of the dispute

pursuant to sections 2 and 4 of the FAA.

The parties are party to an agreement, contained in

Ms. Belton’s credit card contract, which provides in

relevant part, “Any legal dispute or claim of any kind,

including statutory and common law claims and claims

for equitable relief that relate in any way to your

account, card, or your relationship with us will be

resolved by binding arbitration if either you or we elect

to arbitrate.” The credit card agreement also contains a

waiver of any class action remedy. Finally, it provides

We [GE Capital] will pay all filing, administrative

hearing and other fees the administrator or

arbitrator charges up to $2,500. If the cost is

higher, you can ask us to pay more and we will

consider your request in good faith. Under all

circumstances we will pay all amounts we are

required to pay under applicable law.

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Although the particular factual context of this motion

raises issues that have not been directly addressed by

the Second Circuit, or courts within the Circuit or by the

Supreme Court, the general standard by which the

Court should determine a motion to compel arbitration

under the FAA is reasonably well-established.

The FAA “reflects a legislative recognition of the

desirability of arbitration as an alternative to the

complications of litigation. The Act, reversing centuries

of judicial hostility to arbitration agreements, was

designed to allow parties to avoid the costliness and

delays of litigation, and to place arbitration agreements

upon the same footing as other contracts.” Genesco, Inc.

v. T. Kakiuchi & Co., Ltd., 815 F.2d 840, 844 (2d Cir. 1987)

(internal quotations and citations omitted). The FAA,

and in particular section 2 thereof, which provides that a

provision in a contract “evidencing a transaction

involving commerce to settle by arbitration a

controversy thereafter arising out of such contract or

transaction . . . shall be valid, irrevocable and enforceable,

save upon such grounds as exist in law or in equity for

the revocation of any contract,” is “a congressional

declaration of a liberal federal policy favoring arbitration

agreements . . . .” Moses H. Cone Mem’l Hosp. v.

Mercury Constr. Corp., 460 U.S. 1, 24 (1983). “This text

reflects the overarching principle that arbitration is a

matter of contract. And consistent with that text,

courts must rigorously enforce arbitration agreements

according to their terms, including terms that specify

with whom the parties choose to arbitrate their disputes

and the rules under which that arbitration will be

conducted.” American Express Co. v. Italian Colors

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Restaurant, 133 S. Ct. 2304, 2309 (2013) (internal

quotations and citations omitted). “That holds true for

claims that allege a violation of a federal statute, unless

the FAA’s mandate has been ‘overridden by a contrary

congressional command.’” Id. (quoting CompuCredit

Corp. v. Greenwood, 132 S. Ct. 665, 668-69 (2012)).

That being said, and consistent with the last clause of

the foregoing quotation, courts, including the Supreme

Court, have continued to recognize limitations on the

enforceability of arbitration agreements under section 2

of the FAA and the related obligation, which is

mandatory if the FAA applies, to stay proceedings

pending before them in favor of arbitration pursuant to

section 3 of the FAA.

Given the statutory directives in those two sections, a

court asked to stay proceedings and compel arbitration

in a case claimed to be covered by the FAA has

essentially four tasks. First, it must determine whether

the parties in fact agreed to arbitrate the dispute at

issue. Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U.S. 614, 626 (1985).

Second, it must determine the scope of the parties’

agreement to arbitrate and whether the agreement is

revocable, “with a healthy regard for the federal policy

favoring arbitration [such that] any doubts concerning

the scope of arbitrable issues should be resolved in favor

of arbitration, whether the problem at hand is the

construction of the contract language itself or an

allegation of waiver, delay or a like defense to

arbitrability.” Id. See also AT&T Mobility LLC v.

Concepcion, 131 S. Ct. 1740, 1748 (2011) (“Although § 2’s

saving clause preserves generally applicable contract

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defenses, nothing in it suggests an intent to preserve

state-law rules that stand as an obstacle to the

accomplishment of the FAA’s objectives.”); Buckeye

Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 446 (2006)

(arbitrator, not court, should consider claim that entire

contract, as opposed to arbitration provision itself, is void

for illegality); Prima Paint Corp. v. Flood & Conklin

Mfg. Co., 388 U.S. 395, 403-04 (1967) (federal case should

be stayed under section 3 of FAA in favor arbitration

unless arbitration provision, in contrast to contract in

which it appears, is revocable).

Third, “[l]ike any statutory directive the [FAA’s]

mandate may be overridden by a contrary congressional

command;” therefore, if federal statutory claims are

asserted in the pending action, the Court must consider

whether Congress intended those claims to be nonarbitrable. Shearson/American Express v. McMahon,

482 U.S. 220, 226-27 (1987). The burden is on the party

opposing arbitration to establish such contrary

congressional intent, which may be shown by the

allegedly conflicting statute’s text or legislative history

to establish either an express or inherent conflict

between arbitration and the statute’s underlying

purposes. Id.

Neither McMahon nor subsequent decisions equate

this inquiry with determining whether Congress has

impliedly repealed the FAA in the allegedly conflicting

statute, which would require a finding that the two

statutes are in “irreconcilable conflict, or where the

latter act covers the whole subject of the earlier one and

is clearly intended as a substitute.” Calcieri v. Salazar,

555 U.S. 379, 395 (2009). A lesser showing of Congress’

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express or inherent intent “to limit or prohibit waiver of

a judicial forum for a particular claim . . . deducible from

the statute’s text or legislative history, or from an

inherent conflict between arbitration and the statute’s

underlying purposes” is required. Shearson/American

Express v. McMahon, 482 U.S. at 227 (internal

quotations and citations omitted).