Reply Brief — Green Tree Financial Corp.-Ala. v. Randolph

Supreme Court, U.S.

0% FILED

No. 99-1235 AuG 24 260

———————S———S

oe CLERK

i

Supreme Court of the Anited States

GREEN TREE FINANCIAL CORP.—ALABAMA,

AND GREEN TREE FINANCIAL CORPORATION,

Petitioners,

Vv.

LARKETTA RANDOLPH,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

REPLY BRIEF OF PETITIONERS

ROBERT A. HUFFAKER CARTER G. PHILLIPS *

WILLIAM H. WEBSTER PAUL J. ZIDLICKY

RUSHTON, STAKELY, JOHNSTON MICHAEL L. POST

& GARRETT, P.A. LAUREL E. SHANKS

184 Commerce Street SIDLEY & AUSTIN

Montgomery, AL 36101-0270 1722 Eye Street, N.W.

(334) 206-3100 Washington, D.C. 20006

(202) 736-8000

Counsel for Petitioners

August 24, 2000 * Counsel of Record

AA Ra PES LNRM IPORTAL LEE TEL IIE PLE LEI LES LETH ETE MET I

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 —- WASHINGTON, D. C. 20001

TABLE OF CONTENTS

PRAT EE S iiccsctinicneensininnvniieadennenenssnbceciinnitiniabennnnaiannias

I.

Il.

AN ORDER COMPELLING ARBITRATION

AND DISMISSING AN “EMBEDDED”

PROCEEDING IS NOT A _ “FINAL

DECISION” UNDER 9 U.S.C. SECTION

EDN inccaticch pueiaba psu denceieileaanmaadiandivniciabieasidanlatte

THE ARBITRATION AGREEMENT IS

ENFORCEABLE UNDER THE FEDERAL

PTET TTR GE Pile B sisntetnninccnsonicsmnnimiensionininiys

A. The Arbitration Agreement Is Enforceable

To Resolve Respondent’s Claims Under

The Truth In Lending Act And Equal

Credit Opportunity Act ...ccrcccccsscesccssssvescesoves

B. Congress Did Not Intend To Preclude

Individual Agreements To Arbitrate Truth

BD CAIN, FE CIS civaeencesscneavvnivansersetiors

CEI Ae her siltcirnsnspessiecinetitvsunsionisannntaonsapainentiienneiians

(i)

il

TABLE OF AUTHORITIES

CASES Page

Allied-Bruce Terminix, Inc. v. Dobson, 513 U.S.

BD CSSD) siccciisicsersitieniepinlaiiindaa Raa ade ei 17

Bailey v. United States, 516 U.S. 137 (1995)........ 6

Catlin v. United States, 324 U.S. 229 (1945)........ 3

Cedar Coal Co. v. United Mine Workers, 560

£8 BIDS CGM. FFD ccrsdniisccndceeenen 4

Cole v. Burns Int'l Sec. Servs., 105 F.3d 1465

CEDA... Se: SS Bvinisaseecbccsasdcenacanasieanaead 13

Coopers & Lybrand v. Livesay, 437 U.S. 463

(BTS) sccivsisstanpiitineniennedtiandianbieiamuaiia thes. 6

Cortez Byrd Chips, Inc. v. Bill Harbert Constr.

Co., TSS, Ch. ERE site tctesdccetiicones 3,7

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482

Ue SSF CIR nctasdiinsoriticdilempallngieti cats 16

Dole v. United Steelworkers of Am., 494 U.S. 26

( FD) is ccccnssteiscinssgiidieitiiamlgntitdaicesampsial arias pier ine arre 7

Farr & Co. v. CIA. Intercontinental De Navega-

cion de Cuba, S.A., 243 F.2d 342 (2d Cir.

ESEPY ) .ncscusocedesidneseqnaasiausulunslasmipesmenademaiaadtaied 4

Gilmer v. Interstate/Johnson Lane Corp., 500

UF De SP CS A) rsnoeentnnicacibimnbatieitinasiaiadiiasadibia passim

Hartford Fin. Sys. Inc. v. Florida Software

Servs., Inc., 712 F.2d 724 (1st Cir. 1983).......... 4

John Hancock Mut. Life Ins. Co. v. Olick, 151

Se: Boe COO RAN, SUR ccaentnaiieeicieeteens 5

Lackey v. Central Bank, 710 So. 2d 419 (Ala.

EDIPWE) asnncossanisainisssonuhesenatbiaintnmsaestpascimiiaauabiiaite 13

Locklear Dodge City, Inc. v. Kimbrell, 703 So.

Bk Fd CRE, TPT) nccconsclsonsiniaiabinioinianiasiisiatens 9

Lummus Co. v. Commonwealth Oil Refining Co.,

297 Va CAB Ci, TO hiccenisivintniacsitiitienss 4,7

Mastrobuono v. Shearson Lehman Hutton, Inc.,

pi ROR | MER? Cinta 10

iii

TABLE OF AUTHORITIES—Continued

Page

Mitsubishi Motors Corp. v. Soler Chrysler-

Plymouth, Inc., 473 U.S. 614 (1985) ou... '3, 35

Moses H. Cone Mem. Hosp. v. Mercury Constr.

Sig A PE CR PUD Riciinsciicsinnnistinicbicickavidaxeies 5

Nationwide Ins. Co. v. Patterson, 953 F.2d 44

De RE aii sis inncntnitaiicinbiiciapascanigullebeocichabetion 4,5

Pererra v. Siegel Trading Co., 951 F.2d 780 (7th

ic IT di saalisclsanaelnlaNalbhedonsndeneriaiisahaleiebdanonkes 3

Rodriguez de Quijas v. Shearson/Am. Express,

Fg Pe Sis EET (PO ansccsnciniebavisacessboncapacoces 11, 12

Rogers v. Schering Corp., 262 F.2d 180 (3d Cir.

UN itsiliatad cadet lncitsssaniea sa vanndioneniiecbotedaipiisbaniieanssees 4

Schoenamsgruber v. Hamburg Am. Line, 294

I ET Accu tcsenintecaneikauscundtencesseussansiicosoanccinit 5

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

ly MT NITIES Bisicniseah shsuciastbuiaiesaiannaibeconeineniniic 11, 15, 16

Sparling v. Hoffman Constr. Co., 864 F.2d 635

I ahs ciass tah cukésiecsonsansineminaranmnsdauusicnts 4

Sullivan, Long & Hagerty v. Southern Elec.

Generating Co., 667 So. 2d 722 (Ala. 1995)..... 13

Sullivan v. Finklestein, 496 U.S. 617 (1990)......... 5

United Sav. Ass’n v. Timbers of Inwood Forest

PE RS CFs FR CIE vcensstinncserincsernasnceie 8

FEDERAL AND STATE STATUTES

RE NIN TUN Rindaledchiichadccsesinsnsessbiseiettpeikinesaiebinslicien 10, 11

i ivthintceiedheetesiiehgh tlineabisiasshsibcietiaeiiactiantieeiaien 3

i av aiaasepiieiaideeecinieeaesblis cing Saebnaai 3

8 1 ENCE SEAR EEE ON OCS EE ROO ED PS 3

ei tbaiiiahiehicvanohiseticenatibneedhtucnnditabacnsbloni 3

i Tal iathadhatth dct cictadebeiigaadigeasdsibieselibaaeesaieis 1,6

Fa te OE BD deseccciakivindcsisclevesacienniciennncnniel 8, 15, 16, 18

a iniseitdthchedicntuibeiebiniiniiineditiocnananinesil 8, 15, 16

iV

TABLE OF AUTHORITIES—Continued

Page

LEGISLATIVE HISTORY

S. Rep. No. 68-536 (1924) .........ccccsccosccesessonseosesees 17

S. Rep. No. 93-278 (1973) .......cercccsosscsescossneessoress 19

H.R. Rep. No. 97-542 (1982), reprinted in 1982

RR aks POD ackcindnhercbseincnsicsinmenataninnte 17

REPLY BRIEF OF PETITIONERS

In their opening brief, Petitioners Green Tree Financial

Corp.—Alabama and Green Tree Financial Corp. (“petition-

ers”) demonstrated that the district court’s order compelling

arbitration of respondent’s underlying federal claims was not

a “final decision with respect to an arbitration” under 9

U.S.C. § 16(a)(3). Brief of Petitioners (“Pet. Br.”’”) 19-30.. Pe-

titioners showed that the language of Section 16(a)(3), the

structure of Section 16, and the purpose of the Federal Arbi-

tration Act (“FAA”) all confirmed that an order compelling

arbitration in an “embedded” proceeding is not a “final deci-

sion.” Id.

Further, petitioners explained that the arbitration agreement

was enforceable under the FAA because respondent failed to

satisfy her burden of showing that Congress intended to pre-

vent private parties from agreeing to arbitrate disputes under

the Truth in Lending Act (“TILA”) or the Equal Credit Op-

portunity Act (“ECOA”). Pet. Br. 30-49. As to the issue of

arbitration costs, petitioners first showed, contrary to the

court of appeals’ decision, that the arbitration agreement au-

thorized the arbitrator to award respondent her costs in accor-

dance with the requirements of TILA and ECOA. 7d. at 36-

39. Second, petitioners explained that respondent failed to

satisfy her burden of proof by identifying what the costs of

arbitration would be and showing precisely how such costs

would be inconsistent with TILA or ECOA. /d. at 18, 41-42.

Finally, as to the issue of class actions, the Court need not

address this issue, Pet. Br. 42-43 & n.12, but, if it did, the ar-

bitration agreement is enforceable because respondent can ef-

fectively vindicate her substantive rights under TILA through

individual arbitration. This argument is fully supported by

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 32

(1991), which held that merely because Congress anticipated

some litigants would seek to proceed collectively does not

mean that Congress sought to prohibit all agreements to arbi-

trate such claims individually. Pet. Br. 43-44. Moreover,

Congress created incentives in TILA — actual damages, plus

4

statutory damages, costs, and a reasonable attorney’s fee —

that ensure that individual litigants could and would continue

to prosecute meritorious claims under TILA. /d. at 46-48.

Respondent’s brief (“Resp. Br.”) calls none of these con-

clusions into question. Instead, her arguments proceed from a

fundamental distrust of arbitration that is out of step with

Congress’ emphatic policy, recognized by this Court, in favor

of arbitral dispute resolution.

ARGUMENT

I. AN ORDER COMPELLING ARBITRATION

AND DISMISSING AN “EMBEDDED” PRO-

CEEDING IS NOT A “FINAL DECISION” UN-

DER 9 U.S.C. SECTION 16(a)(3).

Respondent argues (Resp. Br. 9-28) that the district court’s

order compelling arbitration of her embedded lawsuit is a “fi-

nal decision” under Section 16(a)(3). Her contentions are

without merit and should be rejected.

1. Respondent agrees that Congress intended that the term

“final decision” in Section 16(a)(3) should “‘be construed in

accordance with pre-existing . . . interpretations,’” Resp. Br. 9

(omission in original) (quoting Bragdon v. Abbott, 524 U.S.

624, 632 (1998)), and that, under those prior interpretations,

an “action qualifies as [a] ‘final decision’ when it ‘ends litiga-

tion on the merits and leaves nothing for the court to do but

execute the judgment,’” id. at 9-10 (quoting Catlin v. United

States, 324 U.S. 229, 233 (1945)). These concessions fore-

close respondent’s argument here because an order compel-

ling arbitration in an embedded proceeding does not “‘end{]

litigation on the merits’” given that “an ‘arbitration cannot

produce an enforceable result without further judicial ac-

tion.’” Jd. at 22 n.13 (quoting Lummus Co. v. Commonwealth

Oil Refining Co., 297 F.2d 80, 86 (2d Cir. 1961)). As re-

spondent recognizes, under the FAA, even after a court has

compelled arbitration in an embedded proceeding, further ju-

dicial action will be necessary to “make[] what is already a

final arbitration award a judgment of the court.” /d. at 23 (in-

ternal quotation marks omitted).

a i a ii i i i

3

Despite these settled principles, respondent argues that the

district court’s order in this case is final because “[t]here is no

material difference . . . between appeals from orders compel-

ling arbitration in independent proceedings and the appeal at

issue here” in that, in both cases, “the rulings [are] issued in

deference to arbitration and they dispose[] of the entire matter

before the court.” Resp. Br. 19. But that argument is clearly

wrong. In an independent proceeding, which seeks only to

compel arbitration, an order that compels arbitration is a “fi-

nat decision” because it “ends the litigation on the merits and

leaves nothing for the court to do but execute the judgment.”

Catlin, 324 U.S. at 233. In contrast, in an embedded proceed-

ing, which seeks relief on the merits apart from the issue of

arbitrability, an order that compels arbitration does not “dis-

pose of the entire matter before the Court” because further ju-

dicial involvement after the arbitration will be “necessary for

[the arbitration] award to become enforceable.” Pererra v.

Siegel Trading Co., 951 F.2d 780, 784 (2d Cir. 1992); see

also 9 U.S.C. §§ 9, 10, 11.

Respondent acknowledges that further judicial action will

be necessary, Resp. Br. 23, but she argues that such action

does not affect finality because “confirmation of an arbitra-

tion award is simply akin to the execution of a judgment in a

judicial forum.” Jd. Respondent is mistaken. The FAA pro-

vides detailed substantive standards governing post-

arbitration review of arbitration awards. See 9 U.S.C. §§ 9,

10, 11. As this Court noted just last Term, during post-award

review of an arbitration award, the district court is authorized

“to confirm the award or to set it aside for irregularity, fraud,

ultra vires or other defect.’” Cortez Byrd Chips, Inc. v. Bill

Harbert Constr. Co., 120 S. Ct. 1331, 1338 (2000) (quoting

Marine Transit Corp. v. Dreyfus, 284 U.S. 263, 275-76

(1932)). It is only after an arbitration award has been con-

firmed by a district court pursuant to Section 9 of the FAA,

that the award “may be enforced as if it had been rendered in

an action in the court.” 9 U.S.C. § 13. Indeed, respondent

acknowledges that confirmation under the FAA, unlike exe-

4

cution of a judgment, provides “an opportunity to obtain

modification of an award.” Resp. Br. 35 n.19.

Nor does respondent call into question that the “embedded-

independent framework” was, and remains, well established

among the federal courts of appeals as the means for deter-

mining whether an arbitration order constituted a “final deci-

sion.” See, e.g., Farr & Co. v. CIA. Intercontinental De

Navegacion de Cuba, S.A., 243 F.2d 342, 345 (2d Cir. 1957);

Hartford Fin. Sys. Inc. v. Florida Software Servs., Inc., 712

F.2d 724, 728 (1st Cir. 1983) (Breyer, J.); Rogers v. Schering

Corp., 262 F.2d 180, 182 (3d Cir. 1959); see also Pet. Br. 24

n.6 (citing post-1988 cases). Although respondent argues that

some courts of appeals differed regarding how to characterize

“Section 4 motions to compel arbitration, which were brought

in conjunction with Section 3 motions to stay litigation,”

Resp. Br. 14, she notes that where such proceedings were

deemed “independent,” they were “therefore appealable,” and

where they were deemed “embedded,” they were “therefore

unappealable,” id. at 14 (citing Hartford Fin. Sys., 712 F.2d at

728-29).” Here, the district court’s order compelling arbitra-

' Although respondent does not dispute that “arbitration cannot pro-

duce an enforceable result without further judicial action,” Lummus, 297

F.2d at 86, she argues that Lummus should be ignored because it “was

written before Section 16 was enacted.” Resp. Br. 22 n.13. But that ar-

gument fails because respondent admits that Congress, in enacting Section

16(a)(3), sought to adopt the pre-existing “definition of ‘final decision.’”

Id. at 11.

? The decisions from outside the Eleventh Circuit cited by respondent

do not undermine that conclusion. See Resp. Br. 12. In Sparling v. Hoff-

man Construction Co., 864 F.2d 635 (9th Cir. 1988), the Ninth Circuit did

not address the question of jurisdiction. /d. at 637-39. In Cedar Coal Co.

v. United Mine Workers, 560 F.2d 1153 (4th Cir. 1977), the Fourth Circuit

ruled only that “an order dismissing a complaint with prejudice for failure

to state a claim upon which relief may be granted . . . is a final appealable

order under § 1291.” /d. at 1161. Finally, the Third Circuit’s 1991 deci-

sion in Nationwide Insurance Co. v. Patterson, 953 F.2d 44 (3d Cir.),

could not have affected Congress’ understanding of the law when it en-

acted Section 16 in 1988. Indeed, the Patterson Court confirmed that the

law, as of 1988, was that “an order requiring arbitration is appealable as

_ th

5

tion clearly was entered in an “embedded” proceeding in

which respondent sought relief under TILA and ECOA.

Next, although respondent initially agrees that courts must

look to the substance of orders and “not the labels attached to

the decisions,” Resp. Br. 16, she later insists that the district

court’s label should control, regardless of substantive effect,

because “stays and dismissals are governed by very different

rules in Section 16 regarding their susceptibility to appeal.”

Id. at 17. Section 16(a)(3), however, draws no such distinc-

tion, and respondent never identifies how the label “dis-

missed,” or “with prejudice,” affixed by the district court in

this case makes its order substantively different than the same

order compelling arbitration if it were labeled a “stay.” Be-

cause an order that requires “the parties to proceed to arbitra-

tion” and “stay[s] trial of the action pending filing of the

award” “definitely” is “not final,” Schoenamsgruber v. Ham-

burg Am. Line, 294 U.S. 454, 456 (1935), respondent must

argue — against settled law — that appealability should turn on

an “artificial[]” and “substanceless distinction between stays

and dismissals.” Moses H. Cone Mem. Hosp. v. Mercury

Constr. Corp., 460 U.S. 1,9 n.8 (1983); see also Sullivan v.

Finklestein, 496 U.S. 617, 628 n.7 (1990) (“The label used by

the District Court of course cannot control the order’s appeal-

ability”). Indeed, respondent never addresses the anomaly

that, under her interpretation, the district court would be em-

powered to transform unilaterally what is in substance an in-

terlocutory order into a “final decision” through the simple

expedient of the label affixed to the order, thereby circum-

venting the requirement in Section 16(b) that such interlocu-

tory orders may be appealed only if the district court and the

final . . . ‘where it is not merely a step in the judicial enforcement of a

claim . . . but is the full relief sought.’” Jd. at 46 (quoting Zosky v. Boyer,

856 F.2d 554, 557 (3d Cir. 1988)); see also John Hancock Mut. Life Ins.

Co. v. Olick, 151 F.3d 132, 135-36 (3d Cir. 1998) (arbitration order in an

“embedded” proceeding “cannot be considered a final order”).

6

court of appeals conclude that 28 U.S.C. § 1292(b)(2) has

been satisfied.”

2. Respondent also is mistaken in claiming that the “‘struc-

ture” of Section 16 supports an immediate appeal of the dis-

trict court’s order. Resp. Br. 20-24. She argues that Section

16(a)(3) should not be given a “pro-arbitration tilt” because

(i) “neither the statutory language nor the legislative history

_. . indicate that appellate jurisdiction for all appeals from or-

ders compelling arbitration should be denied,” id. at 21, and

(ii) “Congress plainly contemplated appeals under circum-

stances other than those addressed specifically by the [other

subsections of Section 16],” id.

First, there can be no dispute that Section 16 reflects a pro-

arbitration bias. Sections 16(a)(1) and (a)(2) authorize im-

mediate appeals from orders, whether final or interlocutory,

that are hostile to arbitration. 9 U.S.C. § 16(a)(1), (a)(2).

Section 16(b), in turn, denies immediate appeals as of right

from interlocutory orders that favor arbitration. 9 U.S.C.

§ 16(b). Respondent provides no basis for ignoring the pro-

arbitration bias in Section 16(a)(1), (a)(2) and (b), when in-

terpreting the language of (a)(3), the one remaining subsec-

tion of Section 16. Nor can she dispute that this Court “‘con-

sider[s] not only the bare meaning of the word[s] but also

[their] placement and purpose in the statutory scheme,” Bai-

ley v. United States, 516 U.S. 137, 145 (1995), as well as

3 Nor is the district court’s order appealable under the “death knell”

doctrine. Resp. Br. 13 n.7. Respondent’s claim that “if she were com-

pelled to proceed through arbitration alone,” then “she would have to

‘forego any claims she might have,’” id., was unsupported both here and

below, and is belied by respondent's ability to litigate and bear the costs

associated with a case that has been active for more than four years in the

district court, the court of appeals, and now this Court. Moreover, Coo-

pers & Lybrand v. Livesay, 437 U.S. 463 (1978) — the decision upon

which her argument rests — held that “the fact that an interlocutory order

may induce a party to abandon his claim before final judgment is not a

sufficient reason for considering it a ‘final decision’ within the meaning of

§ 1291.” Id. at 477.

eR ORT TO

7

““the provisions of the whole law’” including “‘its object and

policy.”” Dole v. United Steelworkers of Am., 494 U.S. 26,

35 (1990). These principles compel the conclusion that Con-

gress did not intend an expansive interpretation of “final deci-

sion” in Section 16(a)(3) because it would open the door to

immediate appeals of a substantial number of orders that fa-

vor arbitration and thus undermine the FAA’s “‘statutory pol-

icy of rapid and unobstructed enforcement of arbitration

agreements.’” Cortez Byrd Chips, 120 S. Ct. at 1337 (quoting

Moses H. Cone, 460 U.S. at 23). Thus, to the extent that

there was any dispute among the courts regarding the mean-

ing of “final decision” when Congress enacted Section 16, the

pro-arbitration bias reflected in_the structure of Section 16

supports the conclusion that Congress intended to adopt the

less broad construction of “final decision” reflected in cases

adopting the embedded/independent framework.

Nor does this reading “render Section 16(a)(3) superflu-

ous.” Resp. Br. 22. To the contrary, as respondent is aware,

id. at 21 n.12, under petitioners’ reading, an order compelling

arbitration in an independent proceeding — a situation that is

not addressed elsewhere in Section 16 — would be a “final de-

cision” under Section 16(a)(3).

3. Finally, respondent argues that the “legislative history”

may “be dispositive.” Resp. Br. 25. She relies on a snippet

from the congressional record which states, in a circular fash-

ion, that a “final decision” under Section 16 includes “‘a final

judgment dismissing an action in deference to arbitration.”

Id. at 27 (quoting 134 Cong. Rec. at 31,065 (1988)). But as

respondent recognizes, the legislative history also states that a

decision is final “where there is nothing left to be done in the

district court.” /d. (internal quotation marks omitted). Thus,

this evidence appears to do no more than reflect the embed-

ded/independent framework. Where, as here, a court compels

arbitration in an embedded proceeding, further court in-

volvement is necessary because “arbitration cannot produce

an enforceable result without further judicial action.” Lum-

mus, 297 F.2d at 86. Because the legislative history can be

8

construed as consistent with this meaning of “final decision,”

it should be so understood because a change in a judicial in-

terpretation will not be presumed “without specific provision

in the text of the statute.” United Sav. Ass’n v. Timbers of

Inwood Forest Assocs., 484 U.S. 371, 380 (1988).

Il. THE ARBITRATION AGREEMENT IS _ EN-

FORCEABLE UNDER THE FEDERAL ARBI-

TRATION ACT.

Respondent argues, despite the “policy favoring enforce-

ment of . . . agreements to arbitrate,” that the court of appeals

“properly barred enforcement of the agreement” in this case.

Resp. Br. 28. Neither her unproved arbitration costs argu-

ment nor her putative class action argument establishes that

Congress intended to preclude arbitration of her claims uader

TILA and ECOA.

At the outset, it is important to clarify the record. Respon-

dent repeatedly states that “the $15 value of [her] claim,”

Resp. Br. 45, reflects that the “economic damages” in -this

case “are modest,” id. at 8; see also id. at 34 (speculating that

costs could have “dwarf[ed] the $15 value of [respond-

ent’s] actual damages”). As petitioners explained previ-

ously, Pet. Br. 46-47, TILA and ECOA permit recovery of

not only actual damages, (15 U.S.C. § 1640(a)(1); id.

§ 1691e(a)), but also statutory damages of up to $2000 under

TILA, (id. § 1640(a)(2)(A)), punitive damages of up to

$10,000 under ECOA, (id. § 1691e(b)), and “the costs of the

action, together with a reasonable attorney’s fee” under both

TILA and ECOA (id. § 1640(a)(3); id. § 169le(d)). It is thus

inexplicable that respondent continues, misleadingly, to sug-

gest that the value of her claimed damages is $15 when her

own Complaint seeks all of these categories of relief. J.A.

26-28 (Second Amended Compl.)."

* Respondent also suggests that she never agreed to arbitrate, claiming

that she “did not have the opportunity to read carefully the installment

contract.” Resp. Br. 2. That claim (i) is false factually because she testi-

fied that she “could have” reviewed the agreement, J.A. 49, (ii) was aban-

9

A. The Arbitration Agreement Is Enforceable To

Resolve Respondent’s Claims Under The Truth

In Lending Act And Equal Credit Opportunity

Act.

Respondent makes three arguments regarding the “poten-

tial” costs associated with arbitration. First, she argues for a

sweeping and unsupported change in federal law whereby an

“arbitration agreement” will be held “unenforceable” unless it

“ensure[s] that the costs [a plaintiff] would bear in arbitration

[are] no greater than those that would be borne in court.”

Resp. Br. 30 (capitals altered). Second, recognizing that set-

tled law places the burden of proof squarely on her, respon-

dent insists that she satisfied that burden or, at worst, she

“made the best record possible.” /d. at 33. Finally, although

she acknowledges that the cost and fee shifting provisions of

TILA and ECOA “may apply by virtue” of the language of

the arbitration agreement, id. at 37, respondent contends that

the arbitration agreement is nevertheless unenforceable.

These arguments are without merit.

1. Respondent’s principal argument is that an arbitration

agreement is unenforceable if it “fail[s] to ensure that the

costs [a plaintiff] would bear in arbitration [are] no greater

than those that would be borne in court.” Resp. Br. 30 (capi-

tals altered). That argument, if adopted, would constitute a

radical change in the settled arbitration law whereby (i) every

arbitration agreement covered by the FAA would be subject

to challenge based on nothing more than an unsupported

“concern” that arbitration might be more expensive than liti-

gation, and (ii) the party seeking to enforce an arbitration

clause would be required to allay that “concern” by proving

both what arbitration costs might be and that they would not

exceed litigation costs. Although respondent suggests that

doned below, Pet. App. 22a n.3, and (iii) is frivolous because “a person

who signs a contract is . . . bound thereby even if he or she fails to read

the document.” Locklear Dodge City, Inc. v. Kimbrell, 703 So. 2d 303,

306 (Ala. 1997) (“[t]o hold otherwise would turn the concept of ‘sanctity

of contract’ upside down” and “would encourage irresponsibility”).

10

this approach could be limited to “costs,” which she insists

“are virtually unique in their power to discourage parties from

exercising their rights,” id. at 31 (emphasis added), only

pages later, respondent argues, apart from costs, that “absent

the ability to aggregate their claims and proceed on a class

wide basis,” consumers also “would be unlikely” to exercise

their rights under TILA in arbitration. Id. at 45. Respon-

dent’s amici complete the picture, arguing that this Court

should adopt this presumption against arbitration based on

their “concerns” about discovery, arbitrator competence, arbi-

trator bias, appellate review and virtually every other aspect

of the arbitral process.” Taken together, respondent and her

amici’s arguments constitute a wholesale break with settled

law in favor of an approach that presumes that arbitration is

suspect and imposes the burden of proof on the party seeking

enforcement of the arbitration agreement.

These arguments misunderstand the purpose of the FAA

and provide no basis for undoing this Court’s settled prece-

dent. As the Court has explained, Congress enacted the FAA

“to ensure ‘that private agreements to arbitrate are enforce-

able.” Mastrobuono v. Shearson Lehman Hutton, Inc., 514

U.S. 52, 53-54 (1995) (quoting Volt Info. Sciences, Inc. Vv.

Board of Trustees of Leland Stanford Junior Univ., 489 U.S.

468. 479 (1989)). Congress understood that the procedures

associated with arbitration and litigation differ, but Congress

nevertheless decided that private parties should be able to

choose arbitration over litigation. See 9 U.S.C. § 2. Respon-

> See, e.g., Amicus Curiae Brief of the National Association of Con-

sumer Advocates 12 (“limits on discovery in arbitration . . . make it im-

possible for consumers to prove” their cases); id. at 19 (“any right to ap-

peal is essentially eliminated”); id. at 24 (arguing that “[a]rbitrators are of-

ten biased”); Brief Amicus Curiae of Consumers Union 21 (“There is no

way to know whether arbitrators, even if they have expertise to do so, will

follow the law”); Brief Amici Curiae of AARP and the National Con-

sumer Law Center 24 (arguing that “it is difficult, if not impossible, to de-

termine whether an aggrieved party’s substantive rights have been up-

held”).

11

dent, however, argues for a standard that would deny any real

choice because, in her view, an arbitration agreement is unen-

forceable unless the party seeking enforcement could estab-

lish that the costs of arbitration (or any other procedure that

could “discourage parties from exercising their rights,” Resp.

Br. 31) would be the same, or more favorable, than those as-

sociated with litigation. As this Court has explained, how-

ever, the choice between arbitration and litigation is a trade-

off based on a series of competing concerns: “[B]y agreeing

to arbitrate, a party ‘trades the procedures and opportunity for

review of the courtroom for the simplicity, informality and

expedition of arbitration.’” Gilmer, 500 U.S. at 31 (quoting

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,

473 U.S. 614, 628 (1985)).°

Relying on this understanding, this Court has held that the

FAA manifests an “emphatic federal policy in favor of arbi-

tral dispute resolution,” Mitsubishi, 473 U.S. at 631, and that

judicial “suspicion of arbitration,” such as that advocated by

respondent and her amici, is “far out of step with [the

Court’s] . . . strong endorsement of the federal statutes favor-

ing this method of resolving disputes.” Rodriguez de Quijas

v. Shearson/Am. Express, Inc., 500 U.S. 477, 481 (1989). In-

deed, respondent recognizes, but then ignores, that “[t]he fed-

eral policy favoring the enforcement of arbitration agree-

ments is predicated on the assumption” that “‘[b]y agreeing to

arbitrate a statutory claim, a party does not forgo the substan-

tive rights afforded by the statute.’” Resp. Br. 30 (quoting

Mitsubishi, 473 U.S. at 628). As a result, the “burden is on

the party opposing arbitration . . . to show that Congress in-

tended to preclude a waiver of judicial remedies for the statu-

tory rights at issue.” Shearson/Am. Express, Inc. v. McMa-

° Congress did not limit enforcement, as some amici suggest, to arbi-

tration agreements made “after a dispute arises.” E.g., Brief Amicus Cu-

riae of Consumers Union 28. Under the FAA, agreements to arbitrate

disputes, whether “existing” or “thereafter arising,” both are “valid, ir-

revocable, and enforceable, save upon such grounds as exist at law or in

equity for the revocation of any contract.” 9 U.S.C. § 2.

12

hon, 482 U.S. 220, 227 (1987); see also Gilmer, 500 U.S. at

26. In short, respondent’s principal argument is inconsistent

with and provides no basis for reconsidering this Court’s

“strong endorsement of the federal statutes favoring [arbitra-

tion].” Rodriguez de Quijas, 490 U.S. at 481.

2. Settled law dictates that respondent bears the burden of

~ establishing that congressional intent to preclude arbitration

appears in “the text of the [federal statute], its legislative his-

tory, or an ‘inherent conflict’ between arbitration and the fed-

eral statute’s underlying purposes.” Gilmer, 500 U.S. at 26

(quoting McMahon, 482 U.S. at 227). Respondent nowhere

argues that the statutory texts or legislative histories of TILA

or ECOA preclude arbitration. Nor does she undermine this

Court’s holdings that Congress’ grant of concurrent jurisdic-

tion over an underlying statutory claim in State and federal

courts “constitutes explicit authorization” for parties to agree

to arbitrate such claims. See Rodriguez de Quijas, 490 U.S.

at 482: see also Gilmer, 500 U.S. at 29. Instead, she appears

to argue that there is an “inherent conflict” between TILA and

ECOA and arbitration because the agreement “failed to pro-

tect [respondent] from the imposition of prohibitive costs.”

Resp. Br. 7.

On this point, respondent has failed to carry her burden.

As her brief makes clear, respondent’s only effort to present

evidence regarding the costs associated with the Green Tree

arbitration provision was an afterthought in her Motion for

Reconsideration, after the district court had ordered arbitra-

tion. Resp. Br. 3, 33-34. In the course of a “procedural due

process argument,” respondent made the following “show-

ing”:

For purposes of this discussion, we will assume filing

with the AAA, the filing fee is $500 for claims under

$10,000 and this does not include the cost of the arbitra-

tor or administrative fees. ... AAA further cites $700

per day as the average arbitrator’s fee.

Plaintiff's Motion for Reconsideration 8-9 (J.A. 14) (empha-

sis added). In reply, petitioners pointed out that respondent’s

13

assumption that the AAA would conduct the arbitration was

“without support in the record.” Brief of Appellees 41 (J.A.

17). After reviewing these arguments, even the court of ap-

peals acknowledged that it lacked a record “about how claim-

ants fare under Green Tree’s arbitration clause.” Pet. App.

19a.’

Respondent’s failure of proof stands in stark contrast to the

decisions upon which she relies in which the party seeking to

invalidate an arbitration agreement presented a clear record of

the costs associated with arbitration. Resp. Br. 31-32; see

also Brief of Amici Curiae Trial Lawyers for Public Justice,

the National Employment Lawyers Association, and the As-

sociation of Trial Lawyers of America in Support of Respon-

dent 8-11 (noting cases where claimants established record on

issue of arbitration costs). In particular, respondent’s reliance

on Cole v. Burns International Security Services, 105 F.3d

1465 (D.C. Cir. 1997), is utterly misplaced. Resp. Br. 35-36.

In Cole, not only was the court of appeals presented with a

clear record of the applicable arbitration costs and fees, 105

F.3d at 1480-81, but it enforced an ambiguous arbitration

agreement, holding that “where a contract is unclear on a

point, an interpretation that makes the contract lawful is pre-

ferred to one that renders it unlawful,” id. at 1485. Indeed,

respondent conceded in her brief in opposition that the court

y Respondent’s failure of proof is underscored by her resort, in lieu of

evidence, to a series of empty adjectives. Resp. Br. 3 (“intolerable risk of

incurring excessive arbitration costs”); id. at 7, 28, 34, 35 (“risk” of “pro-

hibitive costs”); id. at 29 (“risk of high costs”); id. (“potentially large arbi-

tration costs”); id. at 30 (“failed to protect against . . . exorbitant arbitra-

tion costs”); id. at 33, 35 (“risk” of “substantial costs”): id. at 33 (“poten-

tially high costs”) (emphases added).

* The same is true under Alabama law. Sullivan, Long & Hagerty v.

Southern Elec. Generating Co. 667 So. 2d 722, 725 (Ala. 1995) (explain-

ing that contracts are construed to uphold their validity); cf. Lackey v.

Central Bank, 710 So. 2d 419, 422 (Ala. 1998) (under Alabama law, the

rule of contra proferentem, i.e., ambiguity must be construed against the

drafter, is “a rule of last resort that should be applied only when other

rules of construction have been exhausted”).

14

of appeals’ decision in this case created a circuit conflict with

the Cole decision. Opp. 14 & n.8.

Aware that she has failed to provide any evidence of arbi-

tration costs under the arbitration agreement, respondent ar-

gues that (i) she “was unable to present additional evidence of

the actual costs of arbitration” because “Green Tree appar-

ently entrusted broad discretion to its arbitrators,” Resp. Br.

34, and (ii) she should not be “expected to commence the ar-

bitration . . . to ask the arbitrator assigned . .-. about the costs

of arbitration,” id. at 35. These arguments are wrong. Under

the arbitration agreement, the choice of arbitrator is a joint

decision shared by Green Tree and respondent. Pet. App.

57a. Nothing prohibited respondent from asking an arbitrator

proposed by Green Tree “about the costs of arbitration.”

Resp. Br. 35. Nor was she prevented from conducting dis-

covery to determine the scope of arbitration costs. Despite

having ample opportunity to do so, respondent failed to sus-

tain her burden by presenting any relevant evidence of arbi-

tration costs under the arbitration agreement in this case.”

3. Finally, even if respondent had presented evidence re-

garding the costs associated with arbitration under her agree-

ment, that would not have established an “inherent conflict”

between arbitration and TILA and ECOA’s underlying pur-

poses. See Gilmer, 500 U.S. at 26. TILA and ECOA do not

insulate a plaintiff from litigation costs in federal or in State

court. For example, since this lawsuit was filed more than 42

years ago, J.A. 1, petitioners and respondent have been re-

quired to bear the costs of litigation associated with discovery

and motions practice before the district court, J.A. 1-16, mul-

tiple rounds of briefing and an oral argument before the court

of appeals, J.A. 17-19, and two sets of briefing before this

Court. Yet there is no plausible argument that the magnitude

° Contrary to respondent’s suggestion, the court of appeals never “con-

strued Green Tree’s silence in its arbitration agreement as an unwilling-

ness to bear such costs.” Resp. Br. 35 (citing Pet. App. 17a-18a). Re-

spondent has never asked whether, or under what circumstances, petition-

ers might be willing to pay her share of arbitration costs.

15

of this litigation burden creates an “inherent conflict” with

TILA or ECOA. Instead, in TILA and ECOA, Congress ad-

dressed concerns about costs by ensuring that a prevailing

plaintiff will recover “the costs of the action, together with a

reasonable attorney’s fee.” 15 U.S.C. § 1640(a)(3); id.

§ 169le(d).

Although respondent recognizes that, under the agreement,

the arbitrator “may apply” the fee shifting provisions of TILA

and ECOA, Resp. Br. 37, she erroneously maintains that this

is inadequate, id. at 37-39. In this regard, her concern that the

arbitrator may “not follow the fee-snifting provisions of TILA

and ECOA,” id. at 37 n.21, is answered by this Court’s deci-

sions which hold that “there is no reason to assume at the out-

set that arbitrators will not follow the law.” McMahon,.482

U.S. at 232; see also Gilmer, 500 U.S. at 30; Mitsubishi, 473

U.S. at 636-37. But even if the arbitrator were to disregard

the law, review under the FAA is “sufficient to ensure that

arbitrators comply with the requirements of the statute.”

McMahon, 482 U.S. at 232; see also Gilmer, 500 U.S. at 32

n.4; Mitsubishi, 473 U.S. at 636-37 & n.19.

Similarly misguided is her suggestion that recovery of

costs under TILA and ECOA would not include “the cost of

an arbitrator’s time or the additional expenses of arbitration.”

Resp. Br. 38. First, if, as respondent claims, recovery of

these costs is essential to vindication of her federal rights un-

der TILA and ECOA, then plainly the arbitration agreement,

which grants the arbitrator “all powers provided by the law

and Contract” and “all legal and equitable remedies,” in con-

junction with the statutory mandates of TILA and ECOA,

would authorize an arbitrator to award respondent these arbi-

tration costs. As this Court has explained, “[w]here the par-

ties have agreed that the arbitral body is to decide” a claim

“arising from the application of [federal law],” the arbitral

body “should be bound to decide that dispute in accord with

the [federal] law giving rise to the claim.” Mitsubishi, 473

U.S. at 636-37.

16

Respondent’s claim that Crawford Fitting Co. v. J.T. Gib-

bons, Inc., 482 U.S. 437 (1987), suggests a different result is

baseless. - There, the Court held that “absent explicit statutory

or contractual authorization” a party seeking recovery of “the

expenses of a litigant’s witness” based solely on Federal Rule

of Civil Procedure 54(d) was “bound by the limitations set

out in 28 U.S.C. § 1821 and § 1920.” /d. at 445. Here, TILA

and ECOA explicitly provide that a prevailing plaintiff shall

recover “the costs of the action” as part of an award of dam-

ages, 15 U.S.C. § 1640(a)(3); id. § 1691e(d), and the agree-

ment provides the arbitrator with express authority to award

“all legal and equitable remedies” in connection with “all dis-

putes arising under case law, statutory law, and all other

laws.” Pet. App. 57a. Thus, unlike the district court in Craw-

ford, where the only authority to award “costs” was Rule

54(d), an arbitrator resolving respondent’s claims would have

ample authority under TILA, ECOA and the arbitration

agreement to award respondent her arbitration costs if she

prevailed."”

Finally, respondent complains that “even if the costs of ar-

bitration were covered by the fee shifting provisions of TILA

and ECOA, such costs would only be recoverable in the event

that [she] prevailed on her statutory claims.” Resp. Br. 38.

To the extent that respondent contends that she should re-

cover her costs whether or not she prevails, neither TILA nor

ECOA supports this view. Cf. 15 U.S.C. § 1640(a); id.

§ 169le(d). Congress plainly did not seek to provide incen-

tives for non-meritorious claims. And, to the extent respon-

dent contends her rights under TILA and ECOA would be

hindered because the costs of arbitration would be “substan-

tially greater than those borne in a judicial forum,” Resp. Br.

Respondent acknowledges that she could seek modification of an

award if the costs assessed were insufficient, Resp. Br. 35 n.19, but specu-

lates that such review does not provide “adequate protection,” id. Al-

though such review “necessarily is limited,” this Court has made clear that

it “is sufficient to ensure that arbitrators comply with the requirements of

the statute.” Gilmer, 500 U.S. at 32 n.4; McMahon, 482 U.S. at 232.

_

17

28; id. at 38, she has failed to present evidence regarding the

costs of arbitration or the costs of litigation."

Nor can respondent blandly assume that litigation costs

would be lower. The delay and high costs of litigation are

prime reasons that Congress enacted the FAA. See S. Rep.

No. 68-536, at 3 (1924) (the FAA, by avoiding “the delay and

expense of litigation,” will appeal “to big business and little

businesses, . . . Corporate interests [and] . . . individuals”);

H.R. Rep. No. 97-542, at 13 (1982), reprinted in 1982

U.S.C.C.A.N. 765, 777 (“The advantages of arbitration are

many: it is usually cheaper and faster than litigation”). In-

deed, this Court recently explained that “Congress, when en-

acting [the FAA] had the needs of consumers, as well as oth-

ers, in mind” because “arbitration’s advantages often would

seem helpful to individuals, say, complaining about a prod-

uct, who need a less expensive alternative to litigation.” Al-

lied-Bruce Terminix, Inc. v. Dobson, 513 U.S. 265, 280

(1995),'?

B. Congress Did Not Intend To Preclude Individ-

ual Agreements To Arbitrate Truth In Lending

Act Claims.

If the Court addresses respondent’s claim regarding her in-

ability to proceed collectively in arbitration, that claim should

be rejected based on settled precedent.

1. Gilmer, 500 U.S. at 32, is controlling. In Gilmer, this

Court considered and rejected the argument that “arbitration

procedures cannot adequately further the purposes of the

ADEA [Age Discrimination in Employment Act] because

'' Because respondent's alleged damages far exceed the $3,000 juris-

dictional limit for small claims court in Alabama, Ala. Code § 12-12-

31(a), she simply could not “have prosecuted her claim in the small claims

court” for a “filing fee” of “$57,” Resp. Br. 33 n.18.

'? Thus, contrary to the suggestion of respondent’s amici (see Brief

Amicus Curiae of Consumers Union 8-19; Brief Amicus Curiae of Public

Citizen 5-18), there is no basis in the text or legislative history of the FAA

to create a “consumer” exception to the federal policy in favor of arbitra-

tion. +

—

18

they do not provide for . . . class actions.” Jd. The Court did

not, as respondent suggests, rely on the fact that “Gilmer in-

volved only an individual action.” Resp. Br. 46. Indeed, the

respondent in Gilmer made precisely that point, arguing that

that “unavailability of a class action has no bearing on

whether arbitration is sufficient” because “Petitioner’s claim

[is] an individual one.” See Brief on the Merits of Respon-

dent at 21-22, Gilmer v. Interstate/Johnson Lane Corp., 500

U.S. 20 (1991) (No. 90-18). The Court did not adopt that ar-

gument, but instead held that “even if the arbitration could

not go forward as a class action or class relief could not be

granted by the arbitrator, the fact that the [ADEA] provides

for the possibility of bringing a class action does not mean

that individual attempts at conciliation were intended to be

barred.” Gilmer, 500 U.S. at 32 (internal quotation marks

omitted). Because there is no reason to treat claims under

TILA differently than claims under the ADEA, Gilmer pro-

vides a complete answer to respondent’s argument.

2. Nor are class action procedures essential for respondent

effectively to vindicate her rights under TILA. To argue oth-

erwise, respondent mischaracterizes her claim as limited ‘o

the recovery of $15 in “economic damages,” Resp. Br. 45,

and contends that “[g]iven the limited economic damages at

issue individually,” a class action is “the only viable means of

prosecuting” the claims of respondent and members of the

putative class. /d. That argument ignores that Congress pro-

vided remedial incentives to ensure that plaintiffs could and

would bring individual suits under TILA. Thus, if respondent

prevails, TILA provides that she shall recover “any actual

damage,” statutory damages of up to $2000, and “the costs of

the action, together with a reasonable attorney’s fee.” 15

UZL.. 4 1640(a).'? Given these incentives, respondent sim-

'3 That these structural incentives make individual TILA actions eco-

nomically viable is clear because “TILA cases brought by individuals”

have made their way to this Court. Resp. Br. 42 n.25; Pet. Br. 47 n.13

(citing cases). Indeed, the principal case respondent cites to argue that

“Congress expected consumers to enforce TILA as ‘private attorneys gen-

19

ply cannot demonstrate that she (or any of the members in her

putative class) could not effectively vindicate statutory TILA

rights through individual arbitration. And, “‘[s]o long as the

prospective litigant effectively may vindicate [his or her]

Statutory cause of action in the arbitral forum, the statute will

continue to serve both its remedial and deterrent function.’”

Gilmer, 500 U.S. at 28 (quoting Mitsubishi, 473 U.S. at 637).

3. Finally, respondent contends that the legislative history

of TILA reflects that “Congress believed that the availability

of class action liability was critical to securing compliance

with the TILA.” Resp. Br. 43. As petitioners demonstrated

previously, the legislative history does not support the con-

clusion that Congress intended class actions to provide the

sole means for securing compliance with TILA. Pet. Br. 48

n.16. Indeed, respondent does not address the statements in

the legislative history that make clear that Congress envi-

sioned that “consumers” would continue to “bring individual

or class actions against creditors” and that the amendments

did not “preven[t] a series of individual civil actions.”

S. Rep. No. 93-278, at 15, 16 (1973). Moreover, her claim

that class actions are essential to ensure compliance with

TILA, Resp. Br. 43, ignores not only the incentives for litiga-

tion by individuals, but also that TILA authorizes governmen-

tal agencies to bring enforcement actions to ensure compli-

ance with TILA and to obtain class-wide relief for aggrieved

consumers. Cf. Gilmer, 500 U.S. at 32 (rejecting claim that

class actions were essential because “arbitration agreements

will not preclude the [federal agency] from bringing actions

seeking class-wide relief’); Brief of the Chamber of Com-

merce of the United States of America as Amicus Curiae in

Support of Petitioners 19-29 (noting enforcement efforts of

governmental agencies). Indeed, no State or federal agency is

participating in this case to argue that enforcement of TILA

eral,” Resp. Br. 41 (quoting McGowan v. King, Inc., 569 F.2d 845, 848

(Sth Cir. 1978)), was an individual action in which the plaintiff recovered

$218.02 in statutory damages, plus “the costs of the action and a reason-

able attorney’s fee.” /d. at 850.

20

requires that all prospective TILA plaintiffs be denied the

right to choose to arbitrate their claims through individual ar-

bitration.

In sum, respondent cannot remotely satisfy her heavy bur-

den to show that there is an “inherent conflict” between the

arbitration process and TILA and ECOA that would justify

rendering her private agreement to arbitrate unenforceable."

CONCLUSION

For these reasons, the judgment of the court of appeals

should be reversed.

Respectfully submitted,

ROBERT A. HUFFAKER CARTER G. PHILLIPS *

WILLIAM H. WEBSTER PAUL J. ZIDLICKY

RUSHTON, STAKELY, JOHNSTON MICHAEL L. POST

& GARRETT, P.A. LAUREL E. SHANKS

184 Commerce Street SIDLEY & AUSTIN

Montgomery, AL 36101-0270 1722 Eye Street, N.W.

(334) 206-3 100 Washington, D.C. 20006

(202) 736-8000

Counsel for Petitioners

August 24, 2000 * Counsel of Record

'* Finally, respondent’s claims that she did not “waive her right to

bring a class action by agreeing to arbitrate her claims,” Resp. Br. 45 n.30,

and that courts may “permit[] class actions to proceed to arbitration,” id.

at 48, are not properly before the Court. Respondent waived these issues

by arguing to the court of appeals that “Green Tree’s form contract does

not provide for consolidation of complaints” and that “the right to a class

action . . . cannot be duplicated in arbitration.” Brief for Appellant 15, 24

(J.A. 17) (capitals altered).

ly