Petition for Writ of Certiorari — Genesis Financial Solutions, Inc., Petitioner v. Steve Ford, et al.

No. 25-

In the Supreme Court of the United States

___________

GENESIS FINANCIAL SOLUTIONS, INC.,

Petitioner,

v.

STEVE FORD; SPRING OAKS CAPITAL SPV, LLC,

___________

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

___________

PETITION FOR A WRIT OF CERTIORARI

___________

Christopher A. Eiswerth

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, DC 20005

Collin P. Wedel

Counsel of Record

Sean Commons

SIDLEY AUSTIN LLP

350 S. Grand Ave.

Los Angeles, CA 90071

(213) 896-6000

cwedel@sidley.com

Counsel for Petitioner

i

QUESTION PRESENTED

Does the Federal Arbitration Act (“FAA”), 9 U.S.C.

§ 2, permit states to impose separate and heightened

consideration requirements that apply only to

arbitration clauses, as the Fourth Circuit alone holds,

or does it preempt such requirements as improperly

discriminating against arbitration clauses, as held by

the First, Second, Third, Sixth, and Eighth Circuits?

ii

PARTIES TO THE PROCEEDING

Petitioner Genesis Financial Solutions, Inc. was a

defendant in the district court and an appellant in

the court of appeals.

Respondent Steve Ford was the plaintiff in the

district court and the appellee in the court of appeals.

Spring Oaks Capital SPV, LLC was a defendant in

the district court and an appellant in the court of

appeals. Under Supreme Court Rule 12.6, Spring

Oaks Capital SPV, LLC is considered a respondent

for the purposes of this petition, though it was

aligned with petitioner below.

iii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Petitioner

Genesis Financial Solutions, Inc. discloses the

following. Petitioner’s successor by merger is Concora

Credit, Inc., a Delaware corporation, which is a

wholly owned subsidiary of CLGF Holdco 2, LLC,

which is a wholly owned subsidiary of CLGF Holdco

1, LLC, which is a wholly owned subsidiary of CLGF

Holdings, L.P, a Delaware limited partnership. No

publicly held company owns 10% or more of

Petitioner’s stock.

iv

RELATED PROCEEDINGS

This case arises from the following proceedings:

•

Ford v. Genesis Financial Solutions, Inc., No. 241341 (4th Cir. May 30, 2025) (opinion and

judgment); and

•

Ford v. Genesis Financial Solutions, Inc., No. 23cv-02156-DLB (D. Md. Mar. 28, 2024) (order

denying motion to dismiss and to compel

arbitration).

Petitioner is not aware of any other proceedings

that are directly related to this case within the

meaning of Rule 14.1(b)(iii).

v

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................

i

PARTIES TO THE PROCEEDING ....................

ii

CORPORATE DISCLOSURE STATEMENT .....

iii

RELATED PROCEEDINGS................................

iv

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

vii

INTRODUCTION ................................................

1

OPINIONS BELOW ............................................

3

JURISDICTION ..................................................

3

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

3

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

4

A. Legal Background ..................................

4

B. Factual Background ...............................

5

C. Procedural History .................................

6

REASONS FOR GRANTING THE PETITION ..

10

I. The Fourth Circuit’s Decision Deepens a

Conflict With Decisions from Multiple

Courts of Appeals .........................................

10

II. The Decision Below Is Wrong ......................

13

III. The

Question

Presented

Carries

Exceptionally Important Consequences for

Countless Commercial Contracts ................

17

IV. This Case Provides a Perfect Vehicle to

Resolve The Question Presented .................

19

CONCLUSION ....................................................

20

vi

APPENDICES

APPENDIX A: Opinion, Ford v. Genesis Fin.

Sols., Inc., No. 24-1341 (4th Cir. May 30,

2025) ...................................................................

1a

APPENDIX B: Memorandum Opinion, Ford v.

Genesis Fin. Sols., Inc., No. 8:23-cv-02156DLB (D. Md. Mar. 28, 2024) ..............................

4a

APPENDIX C: Order Denying Rehearing En

Banc, Genesis Fin. Sols., Inc., No. 24-1341

(4th Cir. June 17, 2025).................................... 35a

vii

CASES

TABLE OF AUTHORITIES

Page

Allied-Bruce Terminix Cos. v. Dobson, 513

U.S. 265 (1995) ............................................

14

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

333 (2011)................................ 1, 3, 5, 14, 16, 17

Barker v. Golf U.S.A., Inc., 154 F.3d 788

(8th Cir. 1998), abrogated on other grounds

by Morgan v. Sundance, Inc., 596 U.S. 411

(2022)............................................................ 2, 11

Blumenthal v. Heron, 274 A.2d 636 (Md.

1971) .............................................................

15

Cheek v. United Healthcare of Mid-Atl., Inc.,

835 A.2d 656 (Md. 2003)........................... 1, 7, 16

In re Cox Enters., Inc. Set-Top Cable

Television Box Antitrust Litig., 835 F.3d

1195 (10th Cir. 2016) ...................................

11

DIRECTV, Inc. v. Imburgia, 577 U.S. 47

(2015)..................................................... 14, 15, 17

Doctor’s Assocs., Inc. v. Casarotto, 517 U.S.

681 (1996).............................................. 14, 16, 17

Doctor’s Assocs., Inc. v. Distajo, 66 F.3d 438

(2d Cir. 1995) ........................................ 2, 11, 13

Epic Sys. Corp. v. Lewis, 584 U.S. 497

(2018).................................................... 5, 14, 18

Gibson v. Neighborhood Health Clinics, Inc.,

121 F.3d 1126 (7th Cir. 1997) .....................

19

Glazer v. Lehman Bros., Inc., 394 F.3d 444

(6th Cir. 2005) ..............................................

10

Harford Cnty. v. Town of Bel Air, 704 A.2d

421 (Md. 1998) .............................................

15

Harris v. Green Tree Fin. Corp., 183 F.3d

173 (3d Cir. 1999) ........................................ 2, 11

Hull v. Norcom, Inc., 750 F.2d 1547 (11th

Cir. 1985) .....................................................

13

viii

TABLE OF AUTHORITIES – continued

Page

J.M. Davidson, Inc. v. Webster, 128 S.W.3d

223 (Tex. 2003).............................................

18

Jackson v. Hino Motors Mfg. USA, Inc., 2008

WL 4425300 (E.D. Ark. Sept. 25, 2008) ......

19

Johnson v. Cont’l Fin. Co., 131 F.4th 169

(4th Cir. 2025) ......................... 1, 3, 8, 9, 12, 19, 20

Joudi v. Doerkin Props., Inc., 46 F.3d 66,

1995 WL 29307 (5th Cir. Jan. 13, 1995) .....

19

Kindred Nursing Ctrs. Ltd. v. Clark, 581

U.S. 246 (2017) .................... 1, 4, 5, 13, 14, 16, 17

Marmet Health Care Ctr., Inc. v. Brown, 565

U.S. 530 (2012) ............................................

14

Morrison v. Amway Corp., 517 F.3d 248 (5th

Cir. 2008) .....................................................

19

Moses H. Cone Mem’l Hosp. v. Mercury

Constr. Corp., 460 U.S. 1 (1983)..................

4

Noohi v. Toll Bros., Inc., 708 F.3d 599 (4th

Cir. 2013) ......................................... 1, 8, 16, 17

Ozormoor v. T-Mobile USA, Inc., 354 F.

App’x 972 (6th Cir. 2009) ............................

10

Perry v. Thomas, 482 U.S. 483 (1987) ...........

14

Prima Paint Corp. v. Flood & Conklin Mfg.

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

2

Rent-A-Center, W., Inc. v. Jackson, 561 U.S.

63 (2010)....................................................... 4, 5

Rodriguez de Quijas v. Shearson/Am. Exp.,

Inc., 490 U.S. 477 (1989) .............................

17

Soto v. State Indus. Prods, Inc., 642 F.3d 67

(1st Cir. 2011) .............................................. 2, 11

Stevens/Leinweber/Sullens, Inc. v. Holm

Dev. & Mgmt., Inc., 795 P.2d 1308 (Ariz.

Ct. App. 1990) ..............................................

18

Taylor v. Turley, 33 Md. 500 (1871)...............

15

ix

TABLE OF AUTHORITIES – continued

Page

The Money Place, LLC v. Barnes, 78 S.W.3d

714 (Ark. 2002) ............................................

18

Tyler v. Capitol Indem. Ins. Co., 110 A.2d

528 (Md. 1955) .............................................

15

Viking River Cruises, Inc. v. Moriana, 596

U.S. 639 (2022) ............................................

14

Volt Info. Sci., Inc. v. Bd. Of Trs., 489 U.S.

468 (1989).....................................................

4

Wilson Elec. Contractors, Inc. v. Minnotte

Contracting Corp., 878 F.2d 167 (6th Cir.

1989) ..................................................... 2, 10, 11

STATUTES

9 U.S.C. § 16(a)(1)(B)......................................

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

8

3

OTHER AUTHORITIES

3 Williston on Contracts § 7:54 (4th ed.)........

15

INTRODUCTION

This case presents the critical and recurring

problem of state rules targeting arbitration clauses

for unfavorable treatment in violation of the Federal

Arbitration Act (“FAA”), 9 U.S.C. § 2. The Fourth

Circuit’s

decision

enforcing

a

heightened

consideration standard for arbitration clauses

warrants this Court’s review because it conflicts with

the decisions of every other circuit that has

considered similar efforts to invalidate arbitration

clauses, is wrong, and imperils innumerable

standard-form contracts.

Maryland ordinarily treats consideration for an

agreement—such as payment for services—as

sufficient to support the contract as a whole; it does

not require unique consideration for each term. But

Maryland employs a different rule for arbitration

clauses: those clauses, and those clauses alone, must

be backed by an additional and independent

exchange of consideration, namely “mutual promises

to arbitrate.” Cheek v. United Healthcare of Mid-Atl.,

Inc., 835 A.2d 656, 665 (Md. 2003).

The State’s arbitration-only standard derives

“meaning from the fact that an agreement to

arbitrate is at issue,” AT&T Mobility LLC v.

Concepcion, 563 U.S. 333, 339 (2011), and the FAA

preempts such unfavorable “legal rules that ‘apply

only to arbitration.’” Kindred Nursing Ctrs. Ltd. v.

Clark, 581 U.S. 246, 251 (2017). Nevertheless, the

Fourth Circuit, bound by its earlier decisions in

Johnson v. Continental Finance Co., 131 F.4th 169

(4th Cir. 2025), pet. for cert. docketed, No. 25-34 (July

10, 2025), and Noohi v. Toll Brothers, Inc., 708 F.3d

599 (4th Cir. 2013), applied the Maryland rule, held

that the arbitration provision at issue in an

2

otherwise-valid

agreement

lacked

its

own

consideration, and refused to compel arbitration as

mandated by the agreement.

The Fourth Circuit’s decision deepens a now fully

developed split with other courts of appeals. For

instance, the Sixth Circuit has held that, although

this Court’s cases have contemplated that arbitration

clauses could contain their own independent

consideration, a State may “not require separate

consideration for an arbitration provision contained

within a valid contract.” Wilson Elec. Contractors,

Inc. v. Minnotte Contracting Corp., 878 F.2d 167, 169

(6th Cir. 1989) (cautioning that a different reading of

Prima Paint Corp. v. Flood & Conklin Manufacturing

Co., 388 U.S. 395 (1967), would “clearly be

inappropriate” under this Court’s instruction to

“rigorously enforce agreements to arbitrate” under

the FAA. (quoting Dean Witter Reynolds, Inc. v. Byrd,

470 U.S. 213, 221 (1985))). That reasoning aligns

with the First, Second, Third, and Eighth Circuits,

which all recognize that “a doctrine that require[s]

separate consideration for arbitration clauses might

risk running afoul” of the FAA’s “strong federal policy

favoring arbitration.” Doctor’s Assocs., Inc. v. Distajo,

66 F.3d 438, 453 (2d Cir. 1995); accord Soto v. State

Indus. Prods, Inc., 642 F.3d 67, 74 (1st Cir. 2011);

Harris v. Green Tree Fin. Corp., 183 F.3d 173, 180 (3d

Cir. 1999); Barker v. Golf U.S.A., Inc., 154 F.3d 788,

792 (8th Cir. 1998), abrogated on other grounds by

Morgan v. Sundance, Inc., 596 U.S. 411, 417 (2022).

Worse still, the Fourth Circuit’s position conflicts

with the FAA’s equal-treatment principle and

undercuts countless contractual relationships.

Maryland law does not “place arbitration agreements

on an equal footing with other contracts,” and the

3

court of appeals’ application of the rule condones the

“hostility to arbitration agreements” that Congress

sought to end by enacting the FAA. Concepcion, 563

U.S. at 339. By doing so in this context, it has placed

arbitration clauses—core to modern transactions—at

a unique disadvantage vis-a-vis other contractual

provisions. Judge Niemeyer emphasized this problem

in his Johnson dissent, observing that the Fourth

Circuit’s hostility to arbitration provisions invalidates

“legal and widespread commercial arrangement[s]”

core to “the credit card industry,” among others,

which are otherwise entirely “consistent with general

contract law.” 131 F.4th at 183–84. To restore

uniformity and prevent continued disruption to

interstate commerce, the petition should be granted.

OPINIONS BELOW

The Fourth Circuit’s opinion is unpublished but

available at 2025 WL 1540933. It is also reproduced

at Pet. App. 1a–3a. The district court’s decision is

reported at 726 F. Supp. 3d 441 and reproduced at

Pet. App. 4a–34a. The Fourth Circuit’s denial of

rehearing en banc is reproduced at Pet. App. 35a.

JURISDICTION

The Fourth Circuit entered judgment on May 30,

2025, and denied the petition for rehearing en banc

as untimely. On August 25, 2025, the Chief Justice

extended the time within which to file a petition for a

writ of certiorari until September 15, 2025. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 2 of Title 9 of the U.S. Code provides:

4

A written provision in any maritime transaction

or a contract evidencing a transaction involving

commerce to settle by arbitration a controversy

thereafter arising out of such contract or

transaction, or the refusal to perform the whole or

any part thereof, or 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

or as otherwise provided in chapter 4.

STATEMENT OF THE CASE

A. Legal Background

The FAA embodies a simple but fundamental

principle that should control this case: “arbitration is

a matter of contract,” Rent-A-Center, W., Inc. v.

Jackson, 561 U.S. 63, 67 (2010), and the parties’

choices should be respected and enforced like “other

contracts, in accordance with their terms,” Volt Info.

Scis., Inc. v. Bd. of Trs., 489 U.S. 468, 478 (1989).

Section 2 of the FAA is the statute’s central

substantive provision. It declares arbitration clauses

“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. This provision

“establishes an equal-treatment principle.” Kindred

Nursing Ctrs., 581 U.S. at 251; see Moses H. Cone

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

(1983) (“Section 2 is a congressional declaration of a

liberal federal policy favoring arbitration agreements,

notwithstanding any state substantive or procedural

policies to the contrary.”). Arbitration agreements

may be invalidated by “generally applicable contract

5

defenses, such as fraud, duress, or unconscionability.”

Rent-A-Center, 561 U.S. at 68. But state laws that

discriminate—whether openly, by targeting features

unique to arbitration, or by imposing additional

hurdles to enforce arbitration clauses that do not

apply equally to all contracts—are preempted. See

Epic Sys. Corp. v. Lewis, 584 U.S. 497, 508 (2018)

(states may not “target arbitration either by name or

by more subtle methods”); see also Kindred Nursing

Ctrs., 581 U.S. at 251 (similar); Concepcion, 563 U.S.

at 339 (similar).

Sections 3 and 4 of the FAA implement Section 2’s

“substantive rule.” Rent-A-Center, 561 U.S. at 68.

Section 3 directs courts to stay litigation of claims

that the parties have agreed to arbitrate. See

Concepcion, 563 U.S. at 344 (citing 9 U.S.C. § 3). And

Section 4 “requires courts to compel arbitration ‘in

accordance with the terms of the agreement’” when

requested by a party, so long as “the ‘making of the

arbitration agreement or the failure ... to perform the

same’ is not at issue.” Id. (quoting 9 U.S.C. § 4).

B. Factual Background

Petitioner services loans, including for credit cards.

Pet. App. 5a. Respondent Steve Ford applied for and

received a credit card that First Electronic Bank

issued and that petitioner serviced. Id. at 5a–6a.

Along with his credit card, Ford received an

account agreement. Pet. App. 5a–6a. This agreement

governed the card’s use and contained an Arbitration

of Disputes clause. Id. at 6a–8a. That clause required

the parties to arbitrate “any dispute or claim” that

“arises out of or is related to” the agreement, the

account, or any alleged breach—“whether based on

statute, contract, tort, or other legal theory.” Id. at

6

7a. It contained a delegation clause that made clear

that “any dispute” over the validity of the arbitration

agreement or account agreement was subject to

arbitration. Id. It also barred Ford from bringing

claims as part of a class, representative, or private

attorney general action. Id. at 6a–7a.

Ford was given an opportunity to “reject this

[arbitration] provision” without “affect[ing] any other

aspect of the Agreement.” C.A. Doc. 34 at JA073,

Case No. 24-1341 (4th Cir. 2024). If he did not,

however, then the arbitration provision would “stay

in force no matter what happens to [his] Account,

including the closing of [the] Account.” Id. Ford did

not opt out.

The agreement also included a Change of Terms

clause and a Governing Law clause. Pet. App. 8a–9a.

The first stated: “Subject to the limitations of

applicable law, we may, at any time, change or

remove any of the terms and conditions of, or add

new terms or conditions to, this Agreement. If

required by applicable law, we will mail written

notice of such a change to you in the manner required

by such law.” Id. at 8a. The second provided that the

agreement, including

its interpretation and

enforcement, would be governed by federal and Utah

law. Id. at 8a–9a.

Ford used his card to make two purchases but

failed to repay the charges. Pet. App. 9a. His debt

was later transferred to Spring Oaks Capital SPV,

LLC, which initiated a debt-collection action. Id.

C. Procedural History

1. Seeking to avoid repaying his credit card

charges, Ford filed this putative class action in

Maryland state court against petitioner and Spring

7

Oaks Capital SPV, LLC, alleging violations of

Maryland law. Pet. App. 9a. Defendants removed the

case to federal court and moved to compel arbitration.

See id.

In opposing the motion to compel, Ford did not

dispute the validity of the loan agreement or deny

that the loan agreement included the Arbitration of

Disputes provision. See C.A. Doc. 34 at JA273 & n.9.

Instead, he argued that Maryland law applied and

required the district court to “analyze arbitration

clauses within broader contracts as a ‘severable

contract that must be supported by [its own]

adequate consideration.’” Pet. App. 15a (quoting

Noohi, 708 F.3d at 603). Ford specifically relied on

Cheek, in which Maryland’s highest court interpreted

Prima Paint as requiring separate consideration for

an arbitration provision to be enforceable. 835 A.2d at

654–55. Ford argued that this separate consideration

was lacking on the theory that the Change of Terms

provision rendered the mutual promise to arbitrate

illusory. See Pet. App. 16a–17a, 23a.

The district court agreed with Ford and denied the

motion to compel arbitration. Pet. App. 34a. It

concluded that Maryland law required there to be

independent consideration for the Arbitration and

Disputes provision. Id. at 15a. Even though Maryland

does not apply this heightened consideration

standard to other contractual terms, such as noncompete clauses, see Cheek, 835 A.2d at 665, the

district court rejected the argument that the FAA

preempts such an arbitration-specific rule, Pet. App.

15a n.1 (citing Noohi, 708 F.3d at 612). It then held

that, despite the mutual promises underlying the

agreement and the arbitration clause itself, the

possibility that the arbitration clause could be

8

amended via a standard change-of-terms provision

meant the arbitration clause fell below Maryland’s

standard for separate consideration to be able to

compel arbitration. Id. at 33a–34a. It thus denied the

motion.

2. Petitioner and Spring Oaks appealed. Pet. App.

2a; see 9 U.S.C. § 16(a)(1)(B) (permitting an

immediate appeal of the denial of a motion to compel

arbitration under 9 U.S.C. § 4). The Fourth Circuit

affirmed in a short opinion, rejecting petitioner’s

preemption argument based on Noohi and adopting

its reasoning in Johnson. See Pet. App. 2a & n.*

(citing Noohi, 708 F.3d at 611–13).

In Noohi, the Fourth Circuit held that the FAA

does not preempt Maryland’s rule treating an

arbitration provision “as a severable contract” that

requires its own consideration. 708 F.3d at 603. The

panel acknowledged that the FAA preempts “state

laws applicable only to arbitration provisions,” id. at

612 (quoting Doctor’s Assocs., Inc. v. Casarotto, 517

U.S. 681, 687 (1996)), and that Maryland’s Cheek rule

“single[s] out an arbitration provision in a larger

contract,” id. But it nevertheless rejected the

preemption argument on the ground that Maryland

applies the rule as if arbitration clauses were “like

any stand-alone contract.” Id.

In Johnson, a divided panel of the Fourth Circuit

affirmed a denial of a motion to compel arbitration on

the ground that an arbitration clause requires

separate consideration. The panel majority reiterated

its support for Maryland’s heightened consideration

rule for arbitration agreements. In doing so, Johnson

held that the mutual promises to arbitrate in a

cardholder agreement should be treated as illusory in

9

light of the change-of-terms provision. 131 F.4th at

179–80 (citing Cheek, 835 A.2d at 664–65).

Judge Wynn concurred, stressing that Maryland

law treats arbitration clauses as separate contracts

requiring their own consideration. Id. at 181–82

(Wynn, J., concurring) (citing Holmes v. Coverall

N.A., Inc., 649 A.2d 365, 371 (Md. 1994); Noohi, 708

F.3d at 609)). He wrote that, “[w]hen that separate

consideration is specifically challenged, as it [wa]s

[t]here, a court must resolve that threshold formation

dispute—even if the consideration supporting the

[rest of the] contract is not disputed, and even if

downstream arbitrability issues have been validly

delegated to the arbitrator.” Id. Because he agreed

that the change-of-terms provision rendered the

mutual promise to arbitrate in that agreement

illusory, he joined the majority opinion.

Judge Niemeyer dissented in part. See id. at 183–

85. He recognized that the change-of-terms provision

in the cardholder agreement was “consistent with the

general contractual structure employed in the credit

card industry,” id. at 183, and reasoned that, under

the terms of the agreement—interpreted consistent

with background principles regarding notice—the

defendant’s right to alter the terms was not so

unlimited as to render illusory the promise to

arbitrate, id. at 184. Therefore, even under

Maryland’s heightened consideration requirement, he

would have held the arbitration provision was valid.

Id. at 185. Judge Niemeyer warned, moreover, that

the majority was “undermin[ing] the universal

practice of allowing credit card companies to make

changes so long as they provide credit card holders

with notice and the opportunity to accept or reject

10

changes by either continuing to use the credit card or

withdrawing from the arrangement.” Id. at 185.

3. Petitioner sought rehearing en banc. The Fourth

Circuit denied that petition as untimely. See Pet.

App. 35a.

REASONS FOR GRANTING THE PETITION

I. The Fourth Circuit’s Decision Deepens a

Conflict With Decisions from Multiple

Courts of Appeals.

The Fourth Circuit’s decision below exacerbates a

lopsided split among the courts of appeals over

whether

States

may

impose

independent

consideration requirements—which apply only and

uniquely to arbitration clauses—without running

afoul of the FAA’s equal-treatment principle.

1. Every other circuit that has addressed the

question presented has held that the FAA does not

permit heightened or separate consideration

requirements that apply only to arbitration clauses in

otherwise valid contracts supported by adequate

consideration. The Sixth Circuit, for instance, has

repeatedly rejected consideration-based challenges to

arbitration clauses when there is no dispute that

sufficient consideration supports the overall contract.

See Wilson, 878 F.2d at 169; Ozormoor v. T-Mobile

USA, Inc., 354 F. App’x 972, 975 (6th Cir. 2009);

Glazer v. Lehman Bros., Inc., 394 F.3d 444, 453 (6th

Cir. 2005). A contrary rule, it has explained, would be

inconsistent with the FAA’s equal-treatment

principle, Wilson, 878 F.2d at 169 n.2, and would

“appear[] to be pervaded by ‘the old judicial hostility

to arbitration,’” id. at 169 (quoting Rodriguez de

Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 480

(1989)). The Sixth Circuit has reasoned that, given

11

this Court’s more recent FAA decisions, Prima Paint

cannot

be

construed

to

“require

separate

consideration for an arbitration provision contained

within a valid contract.” Id. at 169.

The First, Second, Third, and Eighth Circuits have

followed the path laid out by the Sixth Circuit. In

Doctor’s Associates, the Second Circuit expressly

rejected the argument that “an arbitration clause

must be treated as a contract supported by

independent consideration.” 66 F.3d at 452. It also

declined to adopt an overly broad reading of Prima

Paint, noting that “[a] doctrine that required separate

consideration for arbitration clauses might risk

running afoul” of more recent Supreme Court

decisions and the FAA’s equal-treatment principle,

id. at 453. In Barker, the Eighth Circuit likewise

refused to adopt a separate consideration test for

arbitration clauses within otherwise valid contracts.

See 154 F.3d at 792. In Harris, the Third Circuit

joined with its sister circuits and held that, as a

matter of federal law, “th[e] parties to an arbitration

agreement need not equally bind each other with

respect to an arbitration agreement if they have

provided each other with consideration beyond the

promise to arbitrate.” 183 F.3d at 180. And in Soto,

the First Circuit held that “special restrictions on

arbitration agreements,” such as heightened

consideration requirements, are “preempted.” 642

F.3d at 74; see also In re Cox Enters., Inc. Set-Top

Cable Television Box Antitrust Litig., 835 F.3d 1195,

1212–13 (10th Cir. 2016) (noting that an Arizona

decision

applying

“arbitration-specific

law”

concerning consideration “appear[ed] to have relied

on a misreading of Prima Paint”).

12

2. The Fourth Circuit, in contrast, has adopted the

opposite interpretation of the FAA and enforced

Maryland’s

arbitration-specific

consideration

requirement despite the equal-treatment principle.

The Fourth Circuit has acknowledged that “the Cheek

rule” announced by Maryland’s highest court “gives

[it] pause” because it “single[s] out an arbitration

provision in a larger contract” to “assess whether that

provision binds both parties to arbitrate at least some

claims.” Noohi, 708 U.S. at 612. Nonetheless, it has

determined that the FAA does not preempt this rule

because it “treat[s] an arbitration provision like any

stand-alone contract, requiring consideration,” and

[l]ack of consideration is clearly a generally

applicable contract defense.” Id. The Fourth Circuit

has suggested that, by singling out arbitration

clauses from every other contract provision in this

fashion, they somehow could “be viewed as

encouraging arbitration by requiring that both

parties to an arbitration agreement bind themselves

to arbitrate at least some categories of claims.” Id. at

612–13.

In deciding petitioner’s appeal and recent related

cases, the Fourth Circuit has reaffirmed Noohi’s

endorsement of Maryland’s arbitration-specific rule.

In Johnson, the majority opinion applied Maryland’s

rule and assessed whether the arbitration provision

at issue was an “independently enforceable contract.”

131 F.4th at 179 (quoting Cheek, 835 A.2d at 664–65).

Judge Wynn stressed in his concurrence that, under

Maryland law, such independent consideration was

necessary “even if the consideration supporting the

[overall] contract is not disputed” and “even if

downstream arbitrability issues have been validly

delegated to the arbitrator.” Id. at 182 (Wynn, J.,

concurring). And in the decision below, the Fourth

13

Circuit incorporated this ratification of Maryland’s

rule and reaffirmed the district court’s rejection of

petitioner’s FAA preemption argument based on

Noohi, see Pet. App. 2a n.*.

As a result, there is a split between the majority

view of the First, Second, Third, Sixth, and Eighth

Circuits—which hold that the FAA’s equal-treatment

principle precludes arbitration-specific consideration

requirements—and the Fourth Circuit’s view that the

FAA permits Maryland’s heightened consideration

requirement for arbitration clauses. 1 This conflict has

persisted and is ripe for this Court’s resolution.

II. The Decision Below Is Wrong.

Not only did the Fourth Circuit deepen a one-sided

split, it did so by adopting a plainly incorrect

construction of the FAA and this Court’s precedents.

1. Section 2 of the FAA “requires courts to place

arbitration agreements”—and arbitration clauses

within contracts—“‘on equal footing with all other

contracts’” and contract terms. Kindred Nursing Ctr.,

581 U.S. at 248 (quoting DIRECTV, Inc. v. Imburgia,

577 U.S. 47, 58 (2015), and Buckeye Check Cashing,

Inc. v. Cardegna, 546 U.S. 440, 443 (2006)). That

command “preempts any state rule discriminating on

its face against arbitration.” Kindred Nursing Ctrs.,

1 In Hull v. Norcom, Inc., 750 F.2d 1547, 1550 (11th Cir.

1985), the Eleventh Circuit construed New York law to require

mutual promises to arbitrate, but interpreted the FAA to apply

only to determinations of an arbitration provision’s

enforceability. The New York Court of Appeals has since

rejected the obligation of mutuality for arbitration agreements.

See Doctor’s Assocs., 66 F.3d at 451–52 (citing Sablosky v.

Edward S. Gordon Co., 535 N.E.2d 643, 645 (N.Y. 1989)).

14

581 U.S. at 251; accord Viking River Cruises, Inc. v.

Moriana, 596 U.S. 639, 650 (2022); Epic Sys., 584

U.S. at 508; DIRECTV, Inc. v. Imburgia, 577 U.S. 47,

58–59 (2015); Marmet Health Care Ctr., Inc. v.

Brown, 565 U.S. 530, 532 (2012) (per curiam);

Concepcion, 563 U.S. at 341; Doctor’s Assocs., Inc. v.

Casarotto, 517 U.S. 681, 687 (1996); Allied-Bruce

Terminix Cos. v. Dobson, 513 U.S. 265, 281 (1995);

Perry v. Thomas, 482 U.S. 483, 493 n.9 (1987). And

that rule also “displaces any rule that covertly

accomplishes the same objective by disfavoring

contracts that (oh so coincidentally) have the defining

features of arbitration agreements.” Kindred Nursing

Ctrs., 581 U.S. at 251; accord Viking River Cruises,

596 U.S. at 650–51; Epic Sys., 584 U.S. at 507–08;

Concepcion, 563 U.S. at 341. In short, the FAA

precludes States from “decid[ing] that a contract is

fair enough to enforce all its basic terms (price,

service, credit), but not fair enough to enforce its

arbitration clause.” Allied-Bruce, 513 U.S. at 281.

2. This Court has repeatedly invalidated state laws

that do not place arbitration clauses on equal footing

with other agreements or contractual clauses. For

example, in Kindred Nursing Centers, the Court

considered a Kentucky rule requiring a power of

attorney to contain an express reference to

arbitration before a representative could enter an

arbitration agreement. 581 U.S. at 250. Because

Kentucky did not require the same clear statement

before attorneys-in-fact could initiate litigation or

sign property-related contracts, this Court held that

the rule “specially impeded” arbitration clauses and

thus “flouted” the FAA’s equal-treatment principle.

Id. at 255–56. In DIRECTV, the Court struck down

California’s rule interpreting “law of your state” to

incorporate invalid statutes when applied to

15

arbitration clauses—but not to other contract terms.

577 U.S. at 56. Because California applied its

interpretation only to arbitration clauses, it did not

give “due regard” to federal policy favoring

arbitration and violated the equal-treatment

principle. Id. at 56, 58.

3. The Fourth Circuit’s enforcement of Maryland’s

extra-consideration requirement for arbitration

clauses likewise offends Section 2.

Under Maryland law, for every context except in

connection with an arbitration, “it is well settled”

that courts “will not inquire into the adequacy of the

value exacted for the promise” underlying a contract

“so long as it has some value.” Harford Cnty. v. Town

of Bel Air, 704 A.2d 421, 431 (Md. 1998) (citation

omitted); see Blumenthal v. Heron, 274 A.2d 636, 640

(Md. 1971) (noting this rule “is almost as old as the

law of consideration itself” (citing 1 Williston on

Contracts § 115)). Parties have “the power to estimate

the value of the consideration and the benefits to be

derived from their contracts.” Taylor v. Turley, 33

Md. 500, 505 (1871). Similarly, except for arbitration

clauses, Maryland respects the settled principle

under contract law that “[a] single performance or

return promise may thus furnish consideration for

any number of promises.” 3 Williston on Contracts

§ 7:54 (4th ed.); accord Tyler v. Capitol Indem. Ins.

Co., 110 A.2d 528, 530 (Md. 1955) (“[T]he mere fact

that the option prevents the mutual promises from

being coextensive does not prevent both promises

from being binding.”).

When it comes to arbitration, however, Maryland

flips this general rule on its head, expressly requiring

arbitration clauses to be supported by independent

consideration even when the surrounding contract is

16

valid—an extra hurdle that state law does not impose

on non-compete clauses or other contractual terms.

See Cheek, 835 A.2d at 665. The Fourth Circuit has

acknowledged that this doctrine “single[s] out an

arbitration provision in a larger contract,” Noohi, 708

F.3d at 612, but here, the court enforced it anyway,

Pet. App. 2a & n.*. That holding “specially impede[s]”

the Arbitration and Dispute provision in direct

conflict with Section 2, and is thus incorrect as a

matter of law. Kindred Nursing Ctrs., 581 U.S. at

255. It improperly turns on “the fact that an

agreement to arbitrate is at issue.” Concepcion, 563

U.S. at 339.

The Fourth Circuit’s justifications for applying the

Maryland rule cannot be reconciled with this Court’s

construction of Section 2. In Noohi, the Fourth

Circuit asserted that it could comply with Section 2

so long as it adopted a test that treated an arbitration

clause itself the same as “any stand-alone contract.”

708 F.3d at 612. But that comparison is inapt. The

FAA requires not only that arbitration agreements

receive equal respect as other contracts, but also that

arbitration clauses within a contract be placed on

equal footing with other provisions in the same

agreement. Casarotto, 517 U.S. at 686–87. By

requiring the Arbitration and Disputes provision to

independently satisfy the elements for contract

formation—including

consideration—the

Fourth

Circuit did just what Kindred Nursing Centers,

DIRECTV, and Concepcion prohibit—it imposed

additional hurdles for arbitration clauses based on

the fact that they are arbitration clauses.

Finally,

any

suggestion

that

Maryland’s

arbitration-specific consideration standard furthers

the FAA’s broad goals cannot justify the decision

17

below. See Noohi, 708 F.3d at 612. No matter how

well-intentioned, a state policy that conflicts with

Section

2

and

this

Court’s

“authoritative

interpretation” of the FAA is preempted. DIRECTV,

577 U.S. at 53. The Fourth Circuit’s contrary decision

based on its assessment of public policy cannot

supplant Section 2 or this Court’s precedents,

providing yet another reason why this case warrants

this Court’s review.

III. The

Question

Presented

Carries

Exceptionally Important Consequences for

Countless Commercial Contracts.

The question presented is of extraordinary

importance. Its resolution affects countless form

contracts and potentially millions of transactions that

take place under standard arbitration provisions like

the one here. Without this Court’s intervention, the

Fourth Circuit’s rule threatens to undermine the

predictable enforcement of arbitration agreements,

destroying the availability of arbitration’s benefits for

companies and consumers alike.

This Court has not hesitated to grant certiorari

when confronted with similar instances of “judicial

hostility to arbitration.” Rodriguez de Quijas v.

Shearson/ Am. Exp., Inc., 490 U.S. 477, 480 (1989);

see, e.g., Kindred Nursing Ctrs., 581 U.S. at 255–56

(“A rule selectively finding arbitration contracts

invalid because improperly formed fares no better

under the Act than a rule selectively refusing to

enforce those agreements once properly made.”);

DIRECTV, 577 U.S. at 54; Concepcion, 563 U.S. at

339, 341 (courts cannot courts apply generally

applicable state-law doctrines “in a fashion that

disfavors arbitration”); Casarotto, 517 U.S. at 687

(FAA “preclude[s] States from singling out

18

arbitration provisions for suspect status”). Indeed,

this Court’s precedents stress that federal courts

“must be alert to new devices and formulas” that

would inappropriately disadvantage arbitration

agreements or clauses. Epic Sys., 584 U.S. at 509

(citing Concepcion, 563 U.S. at 342).

If anything, this case presents a far starker set of

issues than those prior precedents. Unlike the

unequal power-of-attorney rule in Kindred Nursing

and the unequal construction of “law of your state” in

DIRECTV,

which

applied

only

in

select

circumstances, the Fourth Circuit subjects every

arbitration provision to a uniquely demanding

consideration test. That means the issue recurs in

every contract subject to Maryland law—e.g., every

bank account contract, every mortgage, every

contract for consumer credit, and so on. As Judge

Niemeyer emphasized in his Johnson dissent, the

Fourth Circuit’s rule has already invalidated a “legal

and widespread commercial arrangement” that is

core to “the credit card industry,” among others.

Maryland also does not appear to be alone in

subjecting arbitration clauses to enhanced scrutiny.

Other States—at least in some circumstances—seem

to require an exchange of mutual promises to

arbitrate for alternative dispute-resolution clauses to

be enforceable, even when contracts as a whole

contain adequate mutual promises. See, e.g., The

Money Place, LLC v. Barnes, 78 S.W.3d 714, 717

(Ark. 2002); Stevens/Leinweber/Sullens, Inc. v. Holm

Dev. & Mgmt., Inc., 795 P.2d 1308, 1313 (Ariz. Ct.

App. 1990); J.M. Davidson, Inc. v. Webster, 128

S.W.3d 223, 230–31 (Tex. 2003). Based on such state

rules requiring arbitration clauses uniquely to reflect

“mutuality,” federal courts have refused to enforce

19

arbitration clauses where only one party retains the

right to change an agreement’s terms. See, e.g.,

Morrison v. Amway Corp., 517 F.3d 248, 254–55 (5th

Cir. 2008) (applying Texas law); Gibson v.

Neighborhood Health Clinics, Inc., 121 F.3d 1126,

1131 (7th Cir. 1997) (applying Indiana law); Joudi v.

Doerkin Props., Inc., 46 F.3d 66, 1995 WL 29307, at

*5 (5th Cir. Jan. 13, 1995) (per curiam) (applying

Arizona law); Jackson v. Hino Motors Mfg. USA, Inc.,

2008 WL 4425300, at *1 (E.D. Ark. Sept. 25, 2008)

(applying Arkansas law). And, as in Johnson, these

courts have done so without considering whether

such arbitration-specific state rules violate the equaltreatment requirement of the FAA. Compare Pet.

App. 2a n.*, with Johnson, 131 F.4th at 170–181.

The issue is thus likely to recur. Whether millions

of consumer contracts are validly subject to

arbitration remains as vitally important today as

when this Court previously has clarified the

applicability of the equal-treatment principle under

Section 2 to other attempts to discriminate against

arbitration clauses. The Court’s review is thus

urgently needed.

IV. This Case Provides a Perfect Vehicle to

Resolve The Question Presented.

This petition offers the Court a clean vehicle to

resolve the split over whether the FAA bars the

enforcement of state laws subjecting arbitration

clauses to a heightened consideration standard. This

case comes to the Court on direct appeal from the

denial of a motion to compel arbitration,

unencumbered by disputed facts or a voluminous

record. And the issue is squarely presented. The court

of appeals unanimously required arbitration-specific

consideration based on Johnson where the panel

20

majority, as Judge Wynn explained, determined that

the consideration for the agreement as a whole

“cannot ‘serve as the consideration for the separate

bilateral agreement to arbitrate.’” Johnson, 131 F.4th

at 182 (Wynn, J., concurring) (quoting Cheek, 835

A.2d at 668 n.6). The panel then rejected petitioner’s

preemption defense to that state-law rule based on

prior circuit precedent. See Pet. App. 2a n.*. Finally,

review and reversal would be outcome-determinative:

if this Court grants certiorari and rejects Maryland’s

heightened consideration test under the FAA, that

ruling would remove the underlying impediments to

arbitration in this and innumerable other cases.

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

Christopher A. Eiswerth

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, DC 20005

Collin P. Wedel

Counsel of Record

Sean Commons

SIDLEY AUSTIN LLP

350 S. Grand Ave.

Los Angeles, CA 90071

(213) 896-6000

cwedel@sidley.com