Amicus Curiae Brief — Goldman Sachs Bank USA, dba Marcus by Goldman Sachs, Petitioner v. Rhea Ann Brown, et al.

No. 25-1408

IN THE

Supreme Court of the United States

___________________________

GOLDMAN SACHS BANK USA, d/b/a Marcus by

Goldman Sachs,

Petitioner,

v.

RHEA ANN BROWN; GREGORY KEVIN MAZE,

Respondents.

___________________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

___________________________

BRIEF OF THE AMERICAN BANKERS

ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

___________________________

Robert M. Loeb

Counsel of Record

John Coleman

Tor Tarantola

ORRICK, HERRINGTON &

SUTCLIFFE LLP

2100 Pennsylvania

Avenue, NW

Washington, DC 20037

(202) 339-8400

rloeb@orrick.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... ii

INTEREST OF AMICUS CURIAE ............................1

INTRODUCTION & SUMMARY OF THE

ARGUMENT .........................................................2

ARGUMENT ...............................................................3

I.

The Court Should Resolve The Split. ..................3

A. Millions of borrowers are subject to

arbitration agreements, and hundreds

of thousands of them declare

bankruptcy each year......................................4

B. The split threatens to eviscerate the

benefits of arbitration. ....................................5

II. Exceptions To The Federal Arbitration

Act Should Be Rooted In Statutory Text. ............7

CONCLUSION ..........................................................10

ii

TABLE OF AUTHORITIES

Page(s)

Cases

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) ............................................4, 6

CompuCredit Corp. v. Greenwood,

565 U.S. 95 (2012) ..............................................8, 9

Continental Ins. Co. v. Thorpe Insulation Co.

(In re Thorpe Insulation Co.),

671 F.3d 1011 (9th Cir. 2012)................................7

CSX Transp., Inc. v. Easterwood,

507 U.S. 658 (1993) ................................................8

Dan’s City Used Cars, Inc. v. Pelkey,

569 U.S. 251 (2013) ................................................8

Epic Sys. Corp. v. Lewis,

584 U.S. 497 (2018) ............................................6, 8

Ins. Co. of N. Am. v. NGC Settlement

Tr. & Asbestos Claims Mgmt. Corp.

(In re Nat’l Gypsum Co.),

118 F.3d 1056 (5th Cir. 1997)................................7

MBNA America Bank, N.A. v. Hill,

436 F.3d 104 (2d Cir. 2006) ...............................2, 3

Mintze v. Am. Gen. Fin. Servs., Inc. (In

re Mintze),

434 F.3d 222 (3d Cir. 2006) ...................................7

Mitsubishi Motors Corp. v. Soler

Chrysler-Plymouth, Inc.,

473 U.S. 614 (1985) ................................................6

iii

Moses H. Cone Mem’l Hosp. v. Mercury

Constr. Corp.,

460 U.S. 1 (1983) ....................................................6

Moses v. CashCall, Inc.,

781 F.3d 63 (4th Cir. 2015)....................................7

Prima Paint Corp. v. Flood & Conklin

Mfg.,

388 U.S. 395 (1967) ................................................6

Shearson/American Express Inc. v.

McMahon,

482 U.S. 220 (1987) ............................................7, 8

Statutes

10 U.S.C. § 987(e)(3) ...................................................9

11 U.S.C. § 362(k) ....................................... 2, 3, 5, 8, 9

11 U.S.C. § 362(k)(1) ...................................................8

Federal Arbitration Act of 1925 (“FAA”) .... 2, 3, 6, 7, 8

Other Authorities

Admin. Off. of the U.S. Cts., Bankruptcies

Increase 11.9 Percent (Apr. 23, 2026),

https://perma.cc/88YH-S2ML ................................5

CFPB, Arbitration Study (Mar. 2015),

https://perma.cc/6US5-U35P .................................4

CFPB, The Consumer Credit Card

Market (Dec. 2025),

https://perma.cc/RQ6N-YL42 ............................4, 5

1

INTEREST OF AMICUS CURIAE 1

The American Bankers Association (ABA) is the

voice of the nation’s $24.1 trillion banking industry

and its 2.1 million employees. ABA members provide

banking services, including credit card lending, in

each of the 50 states and the District of Columbia.

Among them are nationally chartered and state-chartered banks and savings associations of all sizes.

Review by this Court of the Fourth Circuit’s decision below is critical to the ABA’s members, constituent organizations, and affiliates (collectively,

“members”). The Fourth Circuit’s ruling, which created a clear conflict with the Second Circuit, injected

significant uncertainty into the enforceability of arbitration agreements between many of the ABA’s members and their customers. The ABA’s members rely on

these agreements to structure their operations effectively. Arbitration offers a predictable, efficient mechanism for resolving consumer disputes, including

those arising during bankruptcy. The uncertainty engendered by the Fourth Circuit’s ruling threatens to

eviscerate these benefits, not just with respect to customers in the Fourth Circuit, but with respect to putative class members nationwide.

1 Pursuant to Supreme Court Rule 37.2, counsel for amicus

curiae notified the parties on July 9, 2026, of its intention to file

this brief, which was more than ten days prior to its due date.

Pursuant to Supreme Court Rule 37.6, no counsel for a party authored the brief in whole or in part. No party, counsel for a party,

or any person other than amicus curiae and their counsel made

a monetary contribution intended to fund the preparation or submission of the brief.

2

The ABA therefore respectfully submits this brief

in support of the petition.

INTRODUCTION &

SUMMARY OF THE ARGUMENT

This case presents a recurring question at the intersection of the Federal Arbitration Act (“FAA”) and

the Bankruptcy Code that has great significance for

banks, lenders, and their customers. Arbitration

clauses are a common feature of consumer-credit relationships, including credit card agreements. With

personal bankruptcy filings exceeding 500,000 per

year—and steadily increasing—the enforceability of

these agreements during bankruptcy is of paramount

importance. When a borrower who agreed to arbitrate

later seeks damages under 11 U.S.C. § 362(k) for an

alleged violation of the automatic stay, the parties

should know whether that claim will be arbitrable.

The current split leaves that question without a uniform answer.

The conflict is direct and clear. In MBNA America

Bank, N.A. v. Hill, 436 F.3d 104, 108-10 (2d Cir.

2006), the Second Circuit held that a § 362(k) claim

may be arbitrated where arbitration would not interfere with estate administration or the purposes of the

automatic stay. The Fourth Circuit reached the opposite result here, holding that arbitration of respondents’ § 362(k) claims would inherently conflict with

the Bankruptcy Code’s purposes. Pet. App. 13a. Judge

King’s dissent recognized the conflict: the majority’s

decision “needlessly created a circuit split with the

Second Circuit.” Pet. App. 24a (King, J., dissenting).

3

The costs of leaving that split unresolved are substantial. A circuit-dependent arbitrability rule complicates contract drafting, compliance systems, and

litigation reserves, among other things. But it also

threatens to undermine the efficiency that arbitration

promises, virtually guaranteeing costly litigation over

arbitrability and venue before any court or arbitrator

reaches the merits.

This case presents an ideal vehicle for providing

more general clarity over how to identify and resolve

conflicts between the FAA and the Bankruptcy Code.

As Petitioner argues, the touchstone of that analysis

should be the text of the relevant statute, not a court’s

policy preferences. This Court’s guidance in that regard would restore predictability in an area where

lower courts have divided and where nationwide lenders and borrowers need a stable rule.

ARGUMENT

I.

The Court Should Resolve The Split.

The Fourth Circuit held that arbitration of

§ 362(k) automatic-stay claims “would interfere and

conflict with the strong and established policies and

purposes of the Bankruptcy Code.” Pet. App. 2a. In

doing so, it directly contradicted the Second Circuit,

which held that arbitration of a functionally identical

claim “would not necessarily jeopardize or inherently

conflict with the Bankruptcy Code.” MBNA, 436 F.3d

at 110. As Judge King correctly recognized in dissent,

the panel majority “needlessly created a circuit split

4

with the Second Circuit.” Pet. App. 24a (King, J., dissenting). That split presents a host of significant realworld problems and requires this Court’s resolution.

A. Millions of borrowers are subject to

arbitration agreements, and hundreds of

thousands of them declare bankruptcy

each year.

The uncertainty generated by the Fourth Circuit’s

decision is far-reaching. In the credit card market

alone, arbitration agreements bind millions of cardholders in the United States. Since the Court clarified

the FAA’s applicability to consumer contracts in

AT&T Mobility LLC v. Concepcion, 563 U.S. 333

(2011), arbitration agreements have become commonplace—prior estimates suggest that more than half of

all cardholders are subject to them. 2 With more than

200 million Americans owning a credit card, 3 the arbitrability of related disputes is of pressing importance to the financial-services industry.

This is no less true of disputes arising during

bankruptcy. The Administrative Office of the U.S.

Courts reported more than 565,000 non-business

bankruptcy filings in the year ending March 31, 2026,

up more than 11 percent from the previous year and

CFPB,

Arbitration

Study

9

(Mar.

2015),

https://perma.cc/6US5-U35P (estimating that, during the study

period, more than half of outstanding credit card loans were subject to arbitration agreements).

2

3 CFPB, The Consumer Credit Card Market 18 (Dec. 2025),

https://perma.cc/RQ6N-YL42.

5

more than 48 percent from 2021-2022. 4 As a leading

source of unsecured consumer credit, 5 credit card issuers are frequent participants in bankruptcy proceedings. And with a majority of debtors likely bound

by at least one arbitration agreement, the uncertainty

created by the Fourth Circuit’s split from the Second

Circuit implicates hundreds of thousands of debtorcreditor relationships each year.

The cross-jurisdictional nature of consumer lending magnifies the uncertainty created by the split.

Many of the ABA’s members operate nationally, serving borrowers across multiple circuits. Borrowers routinely move from one circuit to another, and as a

result, loans may be issued in one jurisdiction, subject

to collection in a second, and subject to bankruptcy

proceedings in a third. Under the current circuit conflict, it is impossible for lenders and borrowers to

know with certainty whether their arbitration agreements will be enforced. Whether a § 362(k) claim can

be resolved in arbitration, or whether it must be resolved by a bankruptcy court, becomes a function of

geographic happenstance.

B. The split threatens to eviscerate the

benefits of arbitration.

Left unresolved, the circuit conflict will exacerbate what arbitration seeks to avoid: costly litigation.

This Court has repeatedly recognized the benefits of

4 Admin. Off. of the U.S. Cts., Bankruptcies Increase 11.9

Percent (Apr. 23, 2026), https://perma.cc/88YH-S2ML.

5 See CFPB, The Consumer Credit Card Market, supra note

3, at 33.

6

arbitration in reducing the costs of resolving disputes,

noting that the FAA embodies “a liberal federal policy

favoring arbitration agreements.” Moses H. Cone

Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24

(1983). Arbitration offers a forum that is more

streamlined and expeditious, Mitsubishi Motors Corp.

v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628

(1985), whose “informality” can “reduc[e] the cost and

increas[e] the speed of dispute resolution,” Concepcion, 563 U.S. at 345.

Those benefits are materially reduced if parties

are forced to litigate arbitrability as a threshold issue.

If the Court allows the circuit split to persist, litigation over venue will become endemic, as would be expected whenever one circuit’s law offers a party

advantages that another’s does not. More litigation—

particularly litigation over issues that precede the

merits—only adds to the costs that an arbitration

agreement was designed to avoid. As this Court has

held, “the unmistakably clear congressional purpose

[of the FAA is] that the arbitration procedure, when

selected by the parties to a contract, be speedy and

not subject to delay and obstruction in the courts.”

Epic Sys. Corp. v. Lewis, 584 U.S. 497, 506 (2018)

(quoting Prima Paint Corp. v. Flood & Conklin Mfg.,

388 U.S. 395, 404 (1967)).

The facts of this case exemplify the stakes for

lenders. Respondents here brought a putative class

action on behalf of “all individuals in the United

States … who currently are in a consumer bankruptcy case or were formerly in a consumer bankruptcy case … from whom [Goldman Sachs] made a

post-petition demand for pre-petition debt.” Pet. App.

7

4a (alterations in original). This class purportedly includes similarly situated borrowers nationwide, not

just those with bankruptcy cases in the Fourth Circuit. As this case illustrates, though most borrowers

with binding arbitration agreements may reside elsewhere, a lender may nonetheless be drawn into nationwide class litigation by a class representative who

files in the Fourth Circuit. A lender’s expectation of

arbitrability is thus defeated—with respect to all borrowers—by a single circuit’s rule. This Court’s intervention is needed to right this untenable result.

II. Exceptions To The Federal Arbitration Act

Should Be Rooted In Statutory Text.

This Court has held that the FAA’s mandate to

enforce arbitration agreements can be overridden “by

a contrary congressional command,” as evidenced by

a statute’s text, legislative history, or “an inherent

conflict between arbitration and the statute’s underlying purposes.” Shearson/American Express Inc. v.

McMahon, 482 U.S. 220, 226-27 (1987).

As Petitioner has explained, lower courts are divided more generally over how to identify non-arbitrable bankruptcy claims. Pet. 18-20, 31-32. Some

courts, for example, treat the distinction between

“core” and “non-core” bankruptcy claims as central,

while others treat it as irrelevant. Compare Moses v.

CashCall, Inc., 781 F.3d 63, 71-73 (4th Cir. 2015), and

Continental Ins. Co. v. Thorpe Insulation Co. (In re

Thorpe Insulation Co.), 671 F.3d 1011, 1021 (9th Cir.

2012), with Mintze v. Am. Gen. Fin. Servs., Inc. (In re

Mintze), 434 F.3d 222, 231 (3d Cir. 2006), and Ins. Co.

of N. Am. v. NGC Settlement Tr. & Asbestos Claims

8

Mgmt. Corp. (In re Nat’l Gypsum Co.), 118 F.3d 1056,

1066-67 (5th Cir. 1997). The result is a growing patchwork in which the enforceability of an arbitration

agreement can turn on a court’s discretion—which often boils down to its assessment of proper bankruptcy

policy—rather than a nationally uniform rule.

This case offers a clean vehicle for providing

much-needed guidance. In particular, the Court

should clarify that an “inherent conflict” between a

provision of the Bankruptcy Code and the FAA,

McMahon, 482 U.S. at 227, must derive principally

from the provision’s text and not a court’s policy

views. See Epic Sys., 584 U.S. at 509 (the Court “must

be alert to new devices and formulas” manifesting “judicial antagonism toward arbitration”). A statute’s

text is the most predictable way to assess whether it

conflicts with the FAA—the clearest evidence available of a “congressional command,” McMahon, 482 U.S.

at 226. See CompuCredit Corp. v. Greenwood, 565

U.S. 95, 104 (2012) (“Because the CROA is silent on

whether claims under the Act can proceed in an arbitral forum, the FAA requires the arbitration agreement to be enforced according to its terms.”); cf. Dan’s

City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260

(2013) (a statute’s text “necessarily contains the best

evidence of Congress’ pre-emptive intent” (quoting

CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664

(1993))).

Section 362(k) contains no express anti-arbitration command; it provides merely that an injured person “shall recover actual damages, including costs

and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” 11 U.S.C.

9

§ 362(k)(1). Congress knows how to prohibit arbitration when it chooses to—the Military Lending Act, for

instance, bars mandatory arbitration clauses in certain consumer credit contracts between lenders and

servicemembers or their dependents. 10 U.S.C.

§ 987(e)(3). The absence of comparable language in

§ 362(k) indicates that Congress did not intend to exclude such claims from arbitration. See CompuCredit,

565 U.S. at 103 (“When [Congress] has restricted the

use of arbitration in other contexts, it has done so

with a clarity that far exceeds the claimed indications

in the CROA.”). At a minimum, this demonstrates the

need for this Court to clarify how much weight courts

should give textual evidence versus purposive inferences in questions such as this one.

The legal uncertainty caused by the lower courts’

confusion complicates lenders’ contract drafting, compliance systems, claims handling, and litigation reserves. More pointedly, the present circuit split

implicates potentially hundreds of thousands of debtors and their contractual relationships with lenders.

The Court’s timely resolution is needed to address the

costly uncertainty that the Fourth Circuit’s decision

has exacerbated.

10

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for a writ of certiorari.

Respectfully submitted,

Robert M. Loeb

Counsel of Record

John Coleman

Tor Tarantola

ORRICK, HERRINGTON &

SUTCLIFFE LLP

2100 Pennsylvania

Avenue, NW

Washington, DC 20037

(202) 339-8400

rloeb@orrick.com

July 23, 2026