Amicus Curiae Brief — Genesis Financial Solutions, Inc., Petitioner v. Steve Ford, et al.

No. 25-311

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 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

__________________________

Thomas Pinder

Andrew Doersam

AMERICAN BANKERS

ASSOCIATION

1333 New Hampshire

Avenue NW

Washington, DC 20036

Robert M. Loeb

Counsel of Record

John R. Coleman

James R. McGuire

Edmund R. Hirschfeld

Julia Hu

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 AND SUMMARY OF

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

ARGUMENT ...............................................................5

I.

The Special Requirement of Separate

Contract Consideration for Arbitration

Clauses Violates the FAA. ...................................5

II. The Question Presented Has Nationwide

Implications for Financial Institutions. ..............9

A. Credit Card Lending Is a Nationwide

Business.........................................................10

B. Open-Ended Credit Issuers Must Have

the Flexibility to Change the Terms of

Credit Agreements. .......................................11

C. The Fourth Circuit’s Decision

Unevenly Undermines the

Enforcement of Valid Arbitration

Clauses. .........................................................15

CONCLUSION ..........................................................18

ii

TABLE OF AUTHORITIES

Page(s)

Cases

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011)............................................3, 5

Buckeye Check Cashing, Inc. v. Cardegna,

546 U.S. 440 (2006)................................................6

Carroll v. Stryker Corp.,

658 F.3d 675 (7th Cir. 2011)................................15

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

835 A.2d 656 (Md. 2003) ................................2, 6, 8

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

Television Box Antitrust Litig.,

835 F.3d 1195 (10th Cir. 2016)..............................7

DIRECTV, Inc. v. Imburgia,

577 U.S. 47 (2015)..........................................5, 8, 9

Doctor’s Assocs., Inc. v. Casarotto,

517 U.S. 681 (1996)................................................5

Doctor’s Assocs., Inc. v. Distajo,

66 F.3d 438 (2d Cir. 1995) .....................................7

Goff v. Nationwide Mut. Ins., Co.,

825 F. App’x 298 (6th Cir. 2020) .........................15

Johnson v. Cont’l Fin. Co.,

131 F.4th 169 (4th Cir. 2025) ...... 1, 4, 9, 10, 15, 17

iii

Kindred Nursing Ctrs. Ltd. P’ship v. Clark,

581 U.S. 246 (2017)............................................3, 5

Larsen v. Citibank FSB,

871 F.3d 1295 (11th Cir. 2017)............................14

Noohi v. Toll Bros. Inc.,

708 F.3d 599 (4th Cir. 2013)..................................8

Perry v. Thomas,

482 U.S. 483 (1987)................................................5

Prima Paint Corp. v. Flood & Conklin

Mfg. Co.,

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

Rent-A-Ctr., West, Inc. v. Jackson,

561 U.S. 63 (2010)..............................................5, 6

Southland Corp. v. Keating,

465 U.S. 1 (1984)..................................................17

Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp.,

559 U.S. 662 (2010)..............................................16

Vogelhut v. Kandel,

517 A.2d 1092 (Md. 1986) ......................................8

Wilson Elec. Contractors, Inc. v.

Minnotte Contracting Corp.,

878 F.2d 167 (6th Cir. 1989)..................................7

Statutes

9 U.S.C. § 2 ..............................................................5, 7

iv

15 U.S.C § 1602(j)......................................................12

Rules and Regulations

12 C.F.R. § 1026.9(c)(2) .............................................13

12 C.F.R. § 1026.52 ...................................................12

Other Authorities

ABA, New Consumer Polling Data:

Americans Oppose Policy Changes

that Threaten Credit Card Reward

Programs (Apr. 9, 2025),

https://perma.cc/S6LP-Q9PR ...............................10

17A Am. Jur. 2d Contracts § 496 .............................12

Capital One Shopping Research, How

Many Americans Have Credit Cards

(June 3, 2025),

https://perma.cc/NC47-TJK5 ...............................11

CFPB, Apple Card Customer Agreement

(June 30, 2025),

https://perma.cc/DB8U-U6TF........................14, 16

CFPB, Cardmember Agreement for U.S.

Bank National Association American

Express Credit Card Accounts (June 30,

2025), https://perma.cc/HRR4-X93V .............14, 16

CFPB, The Consumer Credit Card

Market (Oct. 2023),

https://perma.cc/2G2Y-L4C4 ............... 9, 10, 12, 13

v

CFPB, The Consumer Credit Card

Market (Sept. 2021),

https://perma.cc/U86P-YM9L ..............................16

CFPB, Discover Cardmember

Agreement (June 30, 2025),

https://perma.cc/7XML-7EHX .......................14, 16

CFPB, Know Before You Owe: Credit

Cards (Dec. 12, 2024),

https://perma.cc/DN5Y-ZPD6 ..............................11

CFPB, Terms of Credit Card Plans

Survey Results for June 30, 2024 –

December 31, 2024,

https://perma.cc/LXU9-NUX4 .............................11

iBanknet, Maryland – Financial

Institutions (June 30, 2025),

https://perma.cc/FM68-RH64 ..............................11

Kevin Foster, Claire Greene & Joanna

Stavins, 2023 Survey & Diary of

Consumer Payment Choice:

Summary Results, Fed. Rsrv. Bank

of Atlanta, Research Data Report,

No. 24-1 (2024),

https://perma.cc/L8BH-PBDY ...............................9

Restatement (Second) of Contracts § 79 (1981) .........8

3 Williston on Contracts § 7:54 (4th ed.) ....................8

1

INTEREST OF AMICUS CURIAE1

Amicus Curiae American Bankers Association

(“Amicus” or “ABA”) respectfully submits this brief in

support of Petitioner Genesis Financial Solutions,

Inc. The ABA is the principal national trade association of the financial services industry in the United

States. Founded in 1875, the 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, which followed directly from Johnson v.

Continental Financial Co., 131 F.4th 169 (4th Cir.

2025),2 is critical to ABA members, constituent organizations, and affiliates (collectively, “Members”). The

1 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 and their counsel made a monetary contribution intended to

fund the preparation or submission of the brief.

2 Although the Johnson petition for certiorari (Case No. 2534) is pending before this Court and presents a similar question,

further briefing on the Johnson petition has been delayed, and

the petition will likely be voluntarily dismissed, because the parties “have reached agreement on the terms for settling the underlying class action and are currently in the process of seeking

the approval of the settlement from the United States District

Court for the District of Maryland.” Joint Letter to Clerk, Cont’l

Fin. Co. v. Johnson, No. 25-34 (U.S. July 28, 2025). If those certiorari proceedings end up going forward in Johnson, the Court

should consider this case together with Johnson.

2

Fourth Circuit struck down credit card agreements

merely because they contained industry-standard

clauses addressing arbitration and change-of-terms—

all in the service of a Maryland rule that impermissibly requires independent contract consideration for

arbitration provisions separate from any consideration underlying the contract as whole. Cheek v. United

Healthcare of Mid-Atl., Inc., 835 A.2d 656 (Md. 2003).

If that ruling stands, it will cause widespread disruption for Amicus Members and their customers in exactly the way the Federal Arbitration Act (“FAA”)

should prevent.

Amicus Members rely on arbitration and changein-terms clauses to structure their operations effectively. Arbitration offers a predictable, efficient mechanism for resolving disputes arising from consumer

transactions, and Amicus Members rely heavily on

the FAA and this Court’s prior decisions protecting

the equal footing of arbitration agreements in conducting business nationwide. Moreover, change-interms clauses enable Amicus Members to adapt contract terms to changes in market conditions and the

regulatory landscape, among other developments.

That is particularly vital for consumer credit cards

and other open-ended credit agreements. Without

change-in-terms clauses, credit card issuers would be

forced to continually rescind agreements and re-offer

them to consumers on new terms as the credit and/or

regulatory environment evolves, imposing costs and

disruption on both issuers and consumers. Nevertheless, in Maryland and in cases applying Maryland

law, plaintiffs may evade otherwise routine and enforceable arbitration agreements based only on a

standard change-in-terms clause, subjecting Amicus

3

Members to costly and unnecessary litigation that undermines the efficiencies of arbitration that the FAA

was enacted to protect.

The First, Second, Third, Sixth, and Eighth Circuits have correctly recognized that the FAA prohibits

separate and heightened consideration requirements

for arbitration clauses, while the Fourth Circuit alone

has held that the FAA does not preempt the Cheek

rule. See Pet. 10-13. Accordingly, whether an Amicus

Member can enforce exactly the same arbitration

agreement depends on whether the Member operates

in Maryland or has a Maryland customer base. Not

only does this encourage gamesmanship and forumshopping, but it also undercuts the uniformity and

predictability of the enforcement of arbitration agreements that the FAA was intended to protect. The important question presented by Petitioner is thus

nationwide in scope, affecting Amicus Members

across the country and millions of consumer arbitration agreements. For these reasons, Amicus and its

Members have a strong interest in the outcome of this

case.

INTRODUCTION AND SUMMARY OF

ARGUMENT

The FAA preempts unfavorable “legal rules that

‘apply only to arbitration.’” Kindred Nursing Ctrs.

Ltd. P’ship v. Clark, 581 U.S. 246, 251 (2017) (quoting

AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339

(2011)). Maryland’s Cheek rule plainly violates that

equal-treatment command by holding arbitration

clauses to a special independent consideration requirement that does not apply to any other type of

4

contractual term. Rather than strike down that facially discriminatory rule as preempted by the FAA,

the Fourth Circuit applied Cheek to invalidate the arbitration clause in a credit card agreement based

solely on an industry-standard change-in-terms

clause. By endorsing the Cheek rule, the Fourth Circuit has defied this Court’s FAA precedents and split

from every other court of appeal to consider the issue.

The question presented by Petitioner has important nationwide implications for Amicus Members

and other businesses. There are an estimated 754 million open credit card accounts in the United States,

each subject to a credit card agreement. In many of

those agreements, credit card issuers rely on changein-terms clauses to nimbly adapt contractual terms to

market forces and on arbitration provisions as a costeffective and efficient way to resolve disputes. As

Judge Niemeyer noted in dissent from the related

Johnson decision, the Fourth Circuit’s endorsement of

Maryland’s discriminatory rule upends a “legal and

widespread commercial arrangement” that is core to

the “credit card industry.” Johnson, 131 F.4th at 18384 (Niemeyer, J., concurring in part and dissenting in

part). The Cheek rule undermines the predictability

of enforcement of arbitration clauses for financial institutions who operate in Maryland or have a Maryland customer base. Such uneven enforcement

defeats the efficiency of arbitration and contravenes

the national policy favoring arbitration that is embodied in the FAA. Given the important nationwide implications of the question presented, this Court should

grant certiorari to resolve the split of authority and

restore fidelity to the FAA.

5

ARGUMENT

I.

The Special Requirement of Separate

Contract Consideration for Arbitration

Clauses Violates the FAA.

The FAA “requires courts to place arbitration

agreements ‘on equal footing with all other contracts.’” Kindred Nursing, 581 U.S. at 248 (quoting

DIRECTV, Inc. v. Imburgia, 577 U.S. 47, 54 (2015)).

That command is codified in Section 2, which permits

challenges to an arbitration agreement only “upon

such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 (emphasis added).

This Court has repeatedly interpreted this savings

clause to “permit[] agreements to arbitrate to be invalidated by ‘generally applicable contract defenses,

such as fraud, duress, or unconscionability,’ but not

by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to

arbitrate is at issue.” Concepcion, 563 U.S. at 339

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

681, 687 (1996); citing Perry v. Thomas, 482 U.S. 483,

492-93, n.9 (1987)); see also Rent-A-Ctr., West, Inc. v.

Jackson, 561 U.S. 63, 67-68 (2010) (same). The inquiry under Section 2 is not what “grounds that the

[state] court might have offered but rather [what] it

did in fact offer.” DIRECTV, 577 U.S. at 54.

Here, Maryland’s Cheek rule plainly “takes its

meaning precisely from the fact that a contract to arbitrate is at issue.” Perry, 482 U.S. at 492 n.9. Cheek

requires arbitration clauses, but no other contractual

provisions, to contain their own independent contrac-

6

tual consideration separate from any underlying exchange of consideration that supports the rest of the

contract. Cheek purports to derive that rule from

Prima Paint Corp. v. Flood & Conklin Manufacturing

Co., 388 U.S. 395, 403 (1967), which held that a dispute over whether an entire contract was fraudulently induced could be delegated to an arbitrator

because it does not put “the making” of the contract’s

arbitration clause, in particular, “in issue.” 388 U.S.

at 403-04. In other words, “an arbitration provision is

severable from the remainder of the contract” when

determining whether that provision was validly

formed, Buckeye Check Cashing, Inc. v. Cardegna,

546 U.S. 440, 445 (2006), but “a party’s challenge to

another provision of the contract, or to the contract as

a whole, does not prevent a court from enforcing a specific agreement to arbitrate,” Rent-A-Ctr, 561 U.S. at

70.

Cheek misreads this narrow severability rule to

mean that an arbitration clause must always constitute an independent contract containing its own

unique consideration and may never draw consideration from a “larger” contractual exchange, like the

payment of money for services. 835 A.2d at 664-66,

669. That confused sufficiency with necessity. As Justice Harrell noted in dissent, “Although it has been

held that arbitration agreements may stand apart

from the contracts of which they may be a part, if supported by independent consideration, they nonetheless also may be supported by the consideration that

supports the contract as a whole.” Cheek, 835 A.2d at

672-73 (Harrell, J., dissenting) (citing cases). By misreading Prima Paint in that way, Cheek violated the

7

FAA by imposing a heightened consideration test specific to arbitration clauses.

Every other court of appeal to have confronted the

question has correctly diagnosed the problem with

Cheek’s rule. See Pet. 10-13 (citing cases). For example, recognizing that a similar state-law standard “appears to have relied on a misreading of Prima Paint,”

the Tenth Circuit held that the rule was an “arbitration-specific law [that] is not the sort of general state

law applicable under 9 U.S.C. § 2.” In re Cox Enters.,

Inc. Set-top Cable Television Box Antitrust Litig., 835

F.3d 1195, 1212 (10th Cir. 2016) (declining to enforce

Arizona rule). The Sixth Circuit too has held that an

interpretation of Prima Paint “as implying that an arbitration clause is an independent contract that is

separable from the main contract in which it is found

and therefore must have all of the essential elements

of a contract, including consideration” would “clearly

be inappropriate given” this Court’s FAA precedents.

Wilson Elec. Contractors, Inc. v. Minnotte Contracting

Corp., 878 F.2d 167, 169 (6th Cir. 1989); see also Doctor’s Assocs., Inc. v. Distajo, 66 F.3d 438, 452-53 (2d

Cir. 1995) (noting that reading Prima Paint to hold

that “an arbitration clause is separable from its underlying contract, and therefore must be supported by

separate consideration” “might risk running afoul of”

the FAA).

The Fourth Circuit’s contrary reasoning cannot be

squared with this Court’s construction of Section 2.

The Fourth Circuit held that Cheek was not

preempted by the FAA because “all Cheek does is treat

an arbitration provision like any stand-alone con-

8

tract, requiring consideration,” and “[l]ack of consideration is clearly a generally applicable contract defense.” Noohi v. Toll Bros. Inc., 708 F.3d 599, 612 (4th

Cir. 2013).3 What the Fourth Circuit failed to recognize is that “treat[ing] an arbitration provision like a[]

standalone contract” is arbitration-specific, not “generally applicable.” Id. Maryland law does not treat

any other type of contractual promise as a standalone

contract requiring independent consideration.

Rather, the generally applicable rule is that “[a]

benefit to the promisor”—such as the credit made

available to the consumer here—“is sufficient valuable consideration to support a contract” as a whole,

including each of its constituent clauses. Vogelhut v.

Kandel, 517 A.2d 1092, 1096 (Md. 1986) (emphasis

added). “If the requirement of consideration is met,

there is no additional requirement of … mutuality of

obligation” for individual promises. Restatement (Second) of Contracts § 79 (1981); see also 3 Williston on

Contracts § 7:54 (4th ed.) (“A single performance or

return promise may … furnish consideration for any

number of promises.”). These well-established principles of contract law “would ordinarily govern” the sufficiency of consideration for a contractual promise,

DIRECTV, 577 U.S. at 56, and nothing in Cheek calls

their general applicability to other contracts in Maryland into question, see 835 A.2d at 661 (recounting

Maryland contract law). Rather, Cheek’s “conclusion

appears to reflect the subject matter at issue here (arbitration), rather than a general principle that would

3 The decision below relied exclusively on Noohi in deciding

the preemption issue. See Pet. App. 2a n.*.

9

apply to contracts.” DIRECTV, 577 U.S. at 56; see supra pp. 5-6.

II. The Question Presented Has Nationwide

Implications for Financial Institutions.

Every one of the roughly 754 million credit cards

open in the United States is governed by a credit card

agreement.4 With 82 percent of U.S. adults owning a

credit card, credit payments have become near ubiquitous among U.S. households.5 This widespread

adoption is no surprise—credit cards are safe, reliable, secure, and almost universally accepted by merchants around the world and online. Both consumers

and businesses accrue substantial benefits from using

and accepting credit card payments.

The agreement struck down by the Fourth Circuit—containing an arbitration clause and general

change-in-terms clause—was “consistent with the

general contractual structure employed in the credit

card industry.” Johnson, 131 F.4th at 183 (Niemeyer,

J., concurring in part and dissenting in part). If the

Fourth Circuit’s erroneous decision stands, that

standard contractual structure would effectively be

Consumer Finance Protection Bureau, The Consumer

Credit Card Market 87 (“2023 Consumer Credit Card Report”)

(Oct. 2023), https://perma.cc/2G2Y-L4C4 (“By year-end 2022,

there were 548 million open general purpose card accounts [and]

206 million open private label accounts.”).

4

5 Kevin Foster, Claire Greene & Joanna Stavins, 2023 Survey & Diary of Consumer Payment Choice: Summary Results 7,

Fed. Rsrv. Bank of Atlanta, Research Data Report, No. 24-1

(2024), https://perma.cc/L8BH-PBDY.

10

banned for Maryland businesses or out-of-state businesses dealing with Maryland consumers, unsettling

“legal and widespread commercial arrangement[s]”

that underpin a critical sector of the U.S. financial

services industry. Id. at 184.

A. Credit Card Lending Is a Nationwide

Business.

Credit card lending is a prevalent source of credit

for Americans. Credit cards offer consumers convenience,6 financial flexibility, and protection of their

purchases. Most Americans use credit cards, see supra p. 9, and a strong majority of those consumers are

happy with their credit cards.7 As of 2022, there were

754 million open credit card accounts in the United

States.8 U.S. consumers spend over $3 trillion

through credit cards each year, and the total amount

of credit available was $5.1 trillion in 2022.9

About 4,000 financial institutions, many of them

Amicus Members, offer credit cards to consumers.10

The Fourth Circuit’s erroneous decision will have a

disparate impact on the operations of the dozens of

6 In a recent survey, 94 percent of consumers reported that

they value the convenience of using their credit cards. ABA, New

Consumer Polling Data: Americans Oppose Policy Changes that

Threaten Credit Card Reward Programs (“2025 ABA Survey”)

(Apr. 9, 2025), https://perma.cc/S6LP-Q9PR.

7 See 2025 ABA Survey.

8 2023 Consumer Credit Card Report, supra, at 87.

9 Id. at 31, 89.

10 Id. at 18.

11

financial institutions based in Maryland.11 Although

many credit card issuers are not based in Maryland,

most make credit cards available nationally.12 Thus,

many of the estimated 3.95 million Maryland residents who are credit card consumers13 likely hold a

credit card from an out-of-state institution. As detailed below (pp. 17-18), and in light of the Fourth Circuit’s unwillingness to enforce the card agreement’s

choice of law provision (a separate error), the question

presented therefore has nationwide implications, as

many institutions attempting to operate a nationwide

business will be forced to contend with the Maryland

rule.

B. Open-Ended Credit Issuers Must Have

the Flexibility to Change the Terms of

Credit Agreements.

Every credit card account is subject to a credit

agreement between the issuer and consumer.14 Unlike closed-end credit (such as a mortgage or car loan),

open-end credit plans (such as credit cards) have no

11 See iBanknet, Maryland – Financial Institutions (June

30, 2025), https://perma.cc/FM68-RH64 (sourced from data from

the FDIC, FRB, NCUA, OCC, SEC, and U.S. Department of

Treasury).

12 493 (87%) of the 566 credit cards in a 2024 survey were

offered nationally. See CFPB, Terms of Credit Card Plans Survey

Results for June 30, 2024 – December 31, 2024,

https://perma.cc/LXU9-NUX4.

13 Capital One Shopping Research, How Many Americans

Have Credit Cards (June 3, 2025), https://perma.cc/NC47-TJK5.

14 See, e.g., CFPB, Know Before You Owe: Credit Cards (Dec.

12, 2024), https://perma.cc/DN5Y-ZPD6.

12

finite term and instead contemplate repeated, revolving extensions going forward. 15 U.S.C § 1602(j). Typically, either party is free to terminate a credit card

agreement at any time.

The indefinite nature of open-end credit plans requires that issuers be afforded flexibility in adjusting

terms of the contract. Issuers must be able to adapt to

changes in market conditions, the regulatory landscape, consumer spending trends, and the like. Issuers thus need to change terms such as the annual

percentage rate, fees, and credit limits, which most

card agreements permit, subject to regulatory notification provisions. For example, certain fees may be

subject to regulatory limitations that can change over

time due to changes in the applicable regulations or

inflation adjustments.15 Issuers may also use credit

line management to respond to default risk revealed

after origination or changes in nationwide economic

conditions.16

That is where change-in-terms clauses play a vital role. See 17A Am. Jur. 2d Contracts § 496 (“Parties

to a contract are not forever locked into its terms, but

have the right to amend their contract by mutual consent.”). Without the ability to efficiently modify openend credit agreements via change-in-terms clauses,

issuers would be forced to effect modifications by terminating plans and re-offering them to consumers on

new terms.

15 See, e.g., 12 C.F.R. § 1026.52.

16 2023 Consumer Credit Card Report, supra, at 93.

13

But such a draconian method would be cumbersome and costly for both issuers and borrowers. Consumers generally want to keep their accounts open, as

closure of a credit card account can reduce access to

needed liquidity, interfere with preauthorized transfers, and generally inconvenience cardholders. Indeed, only two percent of accounts are closed each

year.17 And issuers would be forced to bear unnecessary transaction costs: U.S. consumers submitted

over 160 million credit card applications in 2022,18

and that number would multiply if issuers were

forced to continuously terminate and re-open customer accounts instead of modifying their terms. The

law does not require such inefficiency. Accord 12

C.F.R. § 1026.9(c)(2) (federal regulations contemplating changes in terms of open-end credit agreements

with sufficient notice).

Given the need for flexibility in open-ended credit

arrangements, change-of-terms clauses are ubiquitous in credit card agreements. The change-in-terms

clause in this case used language standard in the industry, authorizing the issuer to change terms after

any notice “required by applicable law” and making

those changes enforceable if the consumer consents by

continuing to use the card.19

17 2023 Consumer Credit Card Report, supra, at 96.

18 Id. at 77.

19 Compare Pet. App. 8a-9a (“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

14

Ordinarily, nothing about that arrangement calls

into question whether the issuer has provided contractual consideration. Issuers extend credit to consumers, and that is more than enough to provide

consideration for the credit card agreement and its

constituent terms. Indeed, numerous courts of appeals have enforced agreements with this sort of

change-in-terms language. See, e.g., Larsen v. Citibank FSB, 871 F.3d 1295, 1317 (11th Cir. 2017) (“We

reserve the right to change or add to the terms and

conditions of this Agreement or change the terms of

your Account at any time. We will give you such notice

of the change as we determine is appropriate … and

as required under applicable law.”); Carroll v. Stryker

Corp., 658 F.3d 675, 678 (7th Cir. 2011) (“[The company] may add, change, or rescind any of the policies,

benefits, or practices listed, with or without advance

notice, at the discretion of management.”); Goff v. Nationwide Mut. Ins., Co., 825 F. App’x 298, 300 (6th Cir.

notice of such a change to you in the manner required by such

law.”), with e.g., CFPB, Apple Card Customer Agreement 2 (“Apple Card Customer Agreement”) (June 30, 2025),

https://perma.cc/DB8U-U6TF (“Subject to applicable law, we

may change any term of this Agreement, or add new provisions,

at any time in our sole discretion.”); CFPB, Discover Cardmember Agreement 1 (“Discover Cardmember Agreement”) (June 30,

2025), https://perma.cc/7XML-7EHX (“We may add or delete any

term to this Agreement. If required by law, we will give you advance written notice of the change(s) and a right to reject the

change(s).”); CFPB, Cardmember Agreement for U.S. Bank National Association American Express Credit Card Accounts 6

(“U.S. Bank Cardmember Agreement”) (June 30, 2025),

https://perma.cc/HRR4-X93V (“Account and Agreement terms

are not guaranteed for any period of time; we may change the

terms of your Agreement, including APRs and fees, in accordance with applicable law and the terms of your Agreement.”).

15

2020) (“Nationwide shall have the right to change, alter, amend or otherwise modify such Arbitration Procedures and/or the Nationwide Arbitration Rules at

any time and from time to time and Agent acknowledges and agrees that any such change, alteration,

amendment or limitation shall become effective on

the date published by Nationwide.”).

C. The Fourth Circuit’s Decision Unevenly

Undermines the Enforcement of Valid

Arbitration Clauses.

The Fourth Circuit’s decision creates a profound

disruption to that settled status quo. By unlawfully

requiring arbitration provisions to contain their own

independent consideration, and then ruling that an

exchange of promises to arbitrate does not suffice if it

is subject to a standard change-in-terms provision,

the Fourth Circuit has imperiled the use of arbitration and “undermine[d] 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 the changes.” Johnson,

131 F.4th at 185 (Niemeyer, J., concurring in part and

dissenting in part).

For many Amicus Members and other institutions, arbitration is a faster, more efficient, and more

cost-effective method of resolving disputes than court

litigation. It minimizes the disruption and loss of

goodwill that often results from litigation and is more

convenient for both Amicus Members and their customers. This Court has long recognized such benefits.

See, e.g., Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp.,

559 U.S. 662, 685 (2010) (“In bilateral arbitration,

16

parties forgo the procedural rigor and appellate review of the courts in order to realize the benefits of

private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes.”).

Following the Court’s blessing of the use of arbitration in consumer contracts in Concepcion in 2011,

credit card issuers and many other businesses began

to add arbitration clauses to their agreements as an

efficient means of dispute resolution. By 2020, 75 percent of the 20 largest bank issuers and almost 60 percent of other banks included arbitration clauses in

their credit card agreements.20

As with the credit card agreement struck down by

the Fourth Circuit, many arbitration clauses are subject to a standard change-in-terms clause.21 Although

many changes in terms do not pertain to arbitration,

see supra p. 12, there are frequent developments in

the law of arbitration that may require businesses to

amend their arbitration clauses. Just as with a

change in interest rate, it would be costly and cumbersome to require an issuer to terminate a credit

agreement and re-offer the same product to the consumer with an amended arbitration clause. Changein-terms clauses avoid such inefficiency to benefit

both issuers and consumers. See supra pp. 12-13.

20 CFPB, The Consumer Credit Card Market 125-26 (Sept.

2021), https://perma.cc/U86P-YM9L.

21 See, e.g., Apple Card Customer Agreement, supra, at 1819; Discover Cardmember Agreement, supra, at 2-3; U.S. Bank

Cardmember Agreement, supra, at 7.

17

By invalidating an arbitration clause based solely

on the presence of a standard change-in-terms contract clause, the Cheek rule may force issuers to give

up their rights under the FAA to use arbitration

against a subset of consumers. The prospect of such

uneven enforcement of their arbitration clauses

threatens the ability of issuers to conduct uniform nationwide operations.

That concern is particularly acute given the additional uncertainty introduced by the Fourth Circuit’s

recent refusal to honor choice-of-law provisions in

credit card agreements. See Johnson, 131 F.4th at

178. Johnson, for example, held that Maryland law

applied because Maryland was where the cardholder

“accepted and used the card,” despite the parties’ designated choice of Utah and Missouri law. Id. at 179

(internal quotation marks omitted). That approach

will expand the impact of the Fourth Circuit’s erroneous arbitration rulings, with Maryland consumers

empowered to invoke the Cheek rule despite their contractual promises to be bound by a different state’s

contract law. Such unpredictability in enforcement

further undermines the FAA’s purposes and squanders the efficiency of alternative dispute resolution.

See Southland Corp. v. Keating, 465 U.S. 1, 15 (1984)

(declining to “encourage and reward forum shopping”

and “attribute to Congress the intent, in drawing on

the comprehensive powers of the Commerce Clause,

to create a right to enforce an arbitration contract and

yet make the right dependent for its enforcement on

the particular forum in which it is asserted”).

18

CONCLUSION

For the foregoing reasons and the reasons set

forth by Petitioner, Amicus Curiae respectfully requests that the Petition be granted.

Respectfully submitted,

Thomas Pinder

Andrew Doersam

AMERICAN BANKERS

ASSOCIATION

1333 New Hampshire

Avenue NW

Washington, DC 20036

Robert M. Loeb

Counsel of Record

John R. Coleman

James R. McGuire

Edmund R. Hirschfeld

Julia Hu

ORRICK, HERRINGTON &

SUTCLIFFE LLP

2100 Pennsylvania

Avenue NW

Washington, DC 20037

(202) 339-8400

rloeb@ orrick.com

Counsel for Amicus Curiae

October 17, 2025