Compucredit Corp. v. Greenwood , 132 S. Ct. 665 ( 2012 )

(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
COMPUCREDIT CORP. ET AL. v. GREENWOOD ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 10–948. Argued October 11, 2011—Decided January 10, 2012
Although respondents’ credit card agreement required their claims to
be resolved by binding arbitration, they filed a lawsuit against peti-
tioner CompuCredit Corporation and a division of petitioner bank, al-
leging, inter alia, violations of the Credit Repair Organizations Act
(CROA). The Federal District Court denied the defendants’ motion to
compel arbitration, concluding that Congress intended CROA claims
to be nonarbitrable. The Ninth Circuit affirmed.
Held: Because the CROA is silent on whether claims under the Act can
proceed in an arbitrable forum, the Federal Arbitration Act (FAA) re-
quires the arbitration agreement to be enforced according to its
terms. Pp. 2–10.
(a) Section 2 of the FAA establishes “a liberal federal policy favor-
ing arbitration.” Moses H. Cone Memorial Hospital v. Mercury Con-
str. Corp., 460 U. S. 1, 24. It requires that courts enforce arbitration
agreements according to their terms. See Dean Witter Reynolds Inc.
v. Byrd, 470 U. S. 213, 221. That is the case even when federal statu-
tory claims are at issue, unless the FAA’s mandate has been “over-
ridden by a contrary congressional command.” Shearson/American
Express Inc. v. McMahon, 482 U. S. 220, 226. Pp. 2–3.
(b) The CROA provides no such command. Respondents contend
that the CROA’s disclosure provision—which requires credit repair
organizations to provide consumers with a statement that includes
the sentence “ ‘You have a right to sue a credit repair organization
that violates the [Act],’ ” 15 U. S. C. §1679c(a)—gives consumers the
right to bring an action in a court of law; and that, because the CROA
prohibits the waiver of “any right of the consumer under this sub-
chapter,” §1679f(a), the arbitration agreement’s waiver of the “right”
to bring a court action cannot be enforced. Respondents’ premise is
2 COMPUCREDIT CORP. v. GREENWOOD
Syllabus
flawed. The disclosure provision creates only a right for consumers to
receive a specific statement describing the consumer protections that
the law elsewhere provides, one of which is the right to enforce a
credit repair organization’s “liab[ility]” for “fail[ure] to comply with
[the Act].” §1679g(a). That provision does not override the FAA’s
mandate. Its mere contemplation of judicial enforcement does not
demonstrate that the Act provides consumers with a “right” to initial
judicial enforcement. Pp. 3–8.
(c) At the time of the CROA’s enactment in 1996, arbitration claus-
es such as the one at issue were no rarity in consumer contracts gen-
erally, or in financial services contracts in particular. Had Congress
meant to prohibit these very common provisions in the CROA, it
would have done so in a manner less obtuse than what respondents
suggest. Pp. 8–9.
615 F. 3d 1204, reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined. SO-
TOMAYOR, J., filed an opinion concurring in the judgment, in which KA-
GAN, J., joined. GINSBURG, J., filed a dissenting opinion.
Cite as: 565 U. S. ____ (2012) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–948
_________________
COMPUCREDIT CORPORATION, ET AL., PETITIONERS
v. WANDA GREENWOOD ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[January 10, 2012]
JUSTICE SCALIA delivered the opinion of the Court.
We consider whether the Credit Repair Organizations
Act (CROA), 15 U. S. C. §1679 et seq., precludes enforce-
ment of an arbitration agreement in a lawsuit alleging
violations of that Act.
I
Respondents are individuals who applied for and re-
ceived an Aspire Visa credit card marketed by petitioner
CompuCredit Corporation and issued by Columbus Bank
and Trust, now a division of petitioner Synovus Bank. In
their applications they agreed to be bound by a provision
which read: “Any claim, dispute or controversy (whether in
contract, tort, or otherwise) at any time arising from or
relating to your Account, any transferred balances or this
Agreement (collectively, ‘Claims’), upon the election of you
or us, will be resolved by binding arbitration . . . .” App.
62.
In 2008, respondents filed a class-action complaint
against CompuCredit and Columbus in the United States
District Court for the Northern District of California,
alleging, as relevant here, violations of the CROA. The
2 COMPUCREDIT CORP. v. GREENWOOD
Opinion of the Court
claims largely involved the defendants’ allegedly mislead-
ing representation that the credit card could be used to
rebuild poor credit and their assessment of multiple fees
upon opening of the accounts, which greatly reduced the
advertised credit limit.
The District Court denied the defendants’ motion to
compel arbitration of the claims, concluding that “Con-
gress intended claims under the CROA to be non-
arbitrable.” 617 F. Supp. 2d 980, 988 (2009). A panel of
the United States Court of Appeals for the Ninth Circuit
affirmed, Judge Tashima dissenting. 615 F. 3d 1204(2010). We granted certiorari, 563 U. S. ___ (2011).
II
The background law governing the issue before us is the
Federal Arbitration Act (FAA), 9 U. S. C. §1 et seq., enact-
ed in 1925 as a response to judicial hostility to arbitration.
AT&T Mobility LLC v. Concepcion, 563 U. S. ___, ___
(2011) (slip op., at 4). As relevant here, the FAA provides:
“A written provision in any maritime transaction or
a contract evidencing a transaction involving com-
merce to settle by arbitration a controversy thereafter
arising out of such contract or transaction . . . shall be
valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation
of any contract.” 9 U. S. C. §2.
This provision establishes “a liberal federal policy favoring
arbitration agreements.” Moses H. Cone Memorial Hospi-
tal v. Mercury Constr. Corp., 460 U. S. 1, 24 (1983). See
also, e.g., Concepcion, supra, at __ (slip op., at 4); Gilmer v.
Interstate/Johnson Lane Corp., 500 U. S. 20, 25 (1991). It
requires courts to enforce agreements to arbitrate accord-
ing to their terms. See Dean Witter Reynolds Inc. v. Byrd,
470 U. S. 213, 221 (1985). That is the case even when
the claims at issue are federal statutory claims, unless the
Cite as: 565 U. S. ____ (2012) 3
Opinion of the Court
FAA’s mandate has been “overridden by a contrary con-
gressional command.” Shearson/American Express Inc. v.
McMahon, 482 U. S. 220, 226 (1987). See also Mitsubishi
Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S.
614, 628 (1985). Respondents contend that the CROA
contains such a command.
That statute regulates the practices of credit repair
organizations, defined as certain entities that offer ser-
vices for the purpose of “(i) improving any consumer’s
credit record, credit history, or credit rating; or (ii) provid-
ing advice or assistance to any consumer with regard to
any activity or service described in clause (i).”1 15 U. S. C.
§1679a(3). In its principal substantive provisions, the
CROA prohibits certain practices, §1679b, establishes
certain requirements for contracts with consumers,
§1679d, and gives consumers a right to cancel, §1679e.
Enforcement is achieved through the Act’s provision of a
private cause of action for violation, §1679g, as well as
through federal and state administrative enforcement,
§1679h.
III
Like the District Court and the Ninth Circuit, respond-
ents focus on the CROA’s disclosure and nonwaiver provi-
sions. The former, which is reproduced in full in the
Appendix, infra, sets forth a statement that the credit re-
pair organization must provide to the consumer before any
contract is executed. §1679c(a). One sentence of that
required statement reads, “ ‘You have a right to sue a
credit repair organization that violates the Credit Repair
Organization Act.’ ” The Act’s nonwaiver provision states,
——————
1 The District Court said that petitioners do not dispute that they
come within this definition. See 617 F. Supp. 980, 984, n. 2 (ND Cal.
2009). The Ninth Circuit did not address that issue, see 615 F. 3d
1204, 1207, n. 3 (2010), nor do we.
4 COMPUCREDIT CORP. v. GREENWOOD
Opinion of the Court
“Any waiver by any consumer of any protection provided
by or any right of the consumer under this subchapter—
(1) shall be treated as void; and (2) may not be enforced
by any Federal or State court or any other person.”
§1679f(a).
The Ninth Circuit adopted the following line of reason-
ing, urged upon us by respondents here: The disclosure
provision gives consumers the “right to sue,” which “clear-
ly involves the right to bring an action in a court of law.”
615 F. 3d, at 1208. Because the nonwaiver provision
prohibits the waiver of “any right of the consumer under
this subchapter,” the arbitration agreement—which
waived the right to bring an action in a court of law—
cannot be enforced. Id., at 1214.
The flaw in this argument is its premise: that the disclo-
sure provision provides consumers with a right to bring an
action in a court of law. It does not. Rather, it imposes an
obligation on credit repair organizations to supply con-
sumers with a specific statement set forth (in quotation
marks) in the statute. The only consumer right it creates
is the right to receive the statement, which is meant to
describe the consumer protections that the law elsewhere
provides. The statement informs consumers, for instance,
that they can dispute the accuracy of information in their
credit file and that “ ‘[t]he credit bureau must then rein-
vestigate and modify or remove inaccurate or incomplete
information.’ ” 15 U. S. C. §1679c(a). That description is
derived from §1681i(a), which sets out in great detail the
procedures to be followed by a credit bureau in the event
of challenges to the accuracy of its information. Similarly,
the required statement informs consumers that they may
“ ‘cancel your contract with any credit repair organization
for any reason within 3 business days from the date you
signed it’ ”—the right created and set forth in more detail
in §1679e. And the “right to sue” language describes the
consumer’s right to enforce the credit repair organization’s
Cite as: 565 U. S. ____ (2012) 5
Opinion of the Court
“liab[ility]” for “fail[ure] to comply with any provision of
this subchapter” provided for in §1679g(a).2 Thus, con-
trary to the dissent’s assertion, our interpretation does not
“[r]educ[e] the required disclosure to insignificance,” post,
at 6. The disclosure provision informs consumers of their
right to enforce liability for any failure to conform to the
statute—information they might otherwise not possess. It
is the dissent’s interpretation that effectively reduces a
portion of the CROA to a nullity. Interpreting the “right
to sue” language in §1679c(a) to “create” a right to sue in
court not only renders it strikingly out of place in a section
that is otherwise devoted to giving the consumer notice of
rights created elsewhere; it also renders the creation of the
“right to sue” elsewhere superfluous.
Respondents suggest that the CROA’s civil-liability pro-
vision, §1679g (set forth in full in the Appendix, infra),
demonstrates that the Act provides consumers with a
“right” to bring an action in court. They cite the provi-
sion’s repeated use of the terms “action,” “class action,”
and “court”—terms that they say call to mind a judicial
proceeding. These references cannot do the heavy lifting
that respondents assign them. It is utterly commonplace
for statutes that create civil causes of action to describe
the details of those causes of action, including the relief
available, in the context of a court suit. If the mere formu-
lation of the cause of action in this standard fashion were
sufficient to establish the “contrary congressional com-
——————
2 Accordingly, when a consumer sues to enforce liability under the
CROA, he does so under §1679g(a), not “in light of §1679c,” post, at 4
(GINSBURG, J., dissenting). An action under the CROA need not refer
to §1679c at all, unless it is based on the company’s failure to provide
the statement required under that section. Section 1679g(a) creates the
“right” at issue and describes it in detail not contained in §1679c’s
summary. When determining the scope of that right, it is therefore
§1679g(a)—and not §1679c—that must govern.
6 COMPUCREDIT CORP. v. GREENWOOD
Opinion of the Court
mand” overriding the FAA, McMahon, supra, at 226, valid
arbitration agreements covering federal causes of action
would be rare indeed. But that is not the law. In Gilmer
we enforced an arbitration agreement with respect to a
cause of action created by the Age Discrimination in Em-
ployment Act of 1967 (ADEA) which read, in part: “Any
person aggrieved may bring a civil action in any court of
competent jurisdiction for such legal or equitable relief as
will effectuate the purposes of this chapter.” 29 U. S. C.
§626(c)(1). In McMahon we enforced an arbitration
agreement with respect to a cause of action created by a
provision of the Racketeer Influenced and Corrupt Organ-
izations Act (RICO) which read, in part: “Any person
injured in his business or property by reason of a violation
of section 1962 of this chapter may sue therefor in any
appropriate United States district court and shall recover
threefold the damages he sustains and the cost of the suit
. . . .” 18 U. S. C. §1964(c). And in Mitsubishi Motors we
enforced an arbitration agreement with respect to a cause
of action created by a provision of the Clayton Act which
read, in part: “[A]ny person who shall be injured in his
business or property by reason of anything forbidden in
the antitrust laws may sue therefor in any district court of
the United States . . . and shall recover threefold the
damages by him sustained, and the cost of suit, including
a reasonable attorney’s fee.” 15 U. S. C. §15(a). Thus, we
have repeatedly recognized that contractually required
arbitration of claims satisfies the statutory prescription
of civil liability in court. See Gilmer, 500 U. S., at 28;
McMahon, 482 U. S., at 240; Mitsubishi Motors, 473 U. S.,
at 637. To be sure, none of the statutes described above
contained a nonwaiver provision, as the statute before us
does. But if a cause-of-action provision mentioning judi-
cial enforcement does not create a right to initial judicial
enforcement, the waiver of initial judicial enforcement is
not the waiver of a “right of the consumer,” §1679f(a). It
Cite as: 565 U. S. ____ (2012) 7
Opinion of the Court
takes a considerable stretch to regard the nonwaiver
provision as a “congressional command” that the FAA
shall not apply.3
Moreover, if one believes that §1679g’s contemplation of
court suit (combined with §1679f(a)) establishes a nonwaiv-
able right to initial judicial enforcement, one must also
believe that it establishes a nonwaivable right to initial
judicial enforcement in any competent judicial tribunal,
since it contains no limitation. We think it clear, however,
that this mere “contemplation” of suit in any competent
court does not guarantee suit in all competent courts,
disabling the parties from adopting a reasonable forum-
selection clause. And just as the contemplated availability
of all judicial forums may be reduced to a single forum by
contractual specification, so also can the contemplated
availability of judicial action be limited to judicial action
compelling or reviewing initial arbitral adjudication. The
parties remain free to specify such matters, so long as the
guarantee of §1679g—the guarantee of the legal power to
impose liability—is preserved.
Respondents and the dissent maintain that if the CROA
does not create a right to a judicial forum, then the disclo-
sure provision effectively requires that credit repair organ-
izations mislead consumers. We think not. The disclosure
provision is meant to describe the law to consumers in a
manner that is concise and comprehensible to the lay-
man—which necessarily means that it will be imprecise.
The required statement says, for example, that the CROA
“ ‘prohibits deceptive practices by credit repair organiza-
——————
3 Gilmer noted that the ADEA had been amended after conclusion of
the arbitration agreement in that case to preclude waiver of “rights
or claims that may arise after the date the waiver is executed.” 29
U. S. C. §626(f)(1)(C). The Court said in dictum that this provision “did
not explicitly preclude arbitration or other nonjudicial resolution of
claims,” 500 U. S., at 29.
8 COMPUCREDIT CORP. v. GREENWOOD
Opinion of the Court
tions,’ ” 15 U. S. C. §1679c(a). This is in some respects an
overstatement, and in some respects an understatement,
of the “Prohibited practices” set forth in §1679b. It would
include, for example, deception apart from “the offer or
sale of the services of the credit repair organization,”
§1679b(a)(4). Yet we would not hold, in order to prevent
the required statement from being “misleading,” that a
consumer has a right to be protected from deceptive prac-
tices beyond those actually covered by §1679b. So also
with respect to the statement’s description of a “right to
sue.” This is a colloquial method of communicating to
consumers that they have the legal right, enforceable in
court, to recover damages from credit repair organizations
that violate the CROA. We think most consumers would
understand it this way, without regard to whether the suit
in court has to be preceded by an arbitration proceeding.
Leaving that possibility out may be imprecise, but it is not
misleading—and certainly not so misleading as to de-
mand, in order to avoid that result, reading the statute to
contain a guaranteed right it does not in fact contain.
IV
At the time of the CROA’s enactment in 1996, arbitra-
tion clauses in contracts of the type at issue here were no
rarity. Quite the contrary, the early 1990’s saw the in-
creased use of arbitration clauses in consumer contracts
generally, and in financial services contracts in particular.
See Ware, Arbitration and Unconscionability After Doc-
tor’s Associates, Inc. v. Casarotto, 31 Wake Forest L. Rev.
1001, 1001, and n. 3 (1996); J. Shimabukuro, Congres-
sional Research Service Report for Congress, The Federal
Arbitration Act: Background and Recent Developments 1
(2002).
Had Congress meant to prohibit these very common
provisions in the CROA, it would have done so in a man-
ner less obtuse than what respondents suggest. When it
Cite as: 565 U. S. ____ (2012) 9
Opinion of the Court
has restricted the use of arbitration in other contexts, it
has done so with a clarity that far exceeds the claimed
indications in the CROA. See, e.g., 7 U. S. C. §26(n)(2)
(2006 ed., Supp. IV) (“No predispute arbitration agree-
ment shall be valid or enforceable, if the agreement re-
quires arbitration of a dispute arising under this section”);
15 U. S. C. §1226(a)(2) (2006 ed.) (“Notwithstanding any
other provision of law, whenever a motor vehicle franchise
contract provides for the use of arbitration to resolve a
controversy arising out of or relating to such contract,
arbitration may be used to settle such controversy only if
after such controversy arises all parties to such controver-
sy consent in writing to use arbitration to settle such
controversy”); cf. 12 U. S. C. §5518(b) (2006 ed., Supp. IV)
(granting authority to the newly created Consumer Finan-
cial Protection Bureau to regulate predispute arbitration
agreements in contracts for consumer financial products
or services).4 That Congress would have sought to achieve
the same result in the CROA through combination of the
nonwaiver provision with the “right to sue” phrase in the
disclosure provision, and the references to “action” and
——————
4 The dissent questions the relevance of these statutes, since they
postdated the CROA and since this Court’s intervening decisions
compelling arbitration “increasingly alerted Congress to the utility of
drafting antiwaiver prescriptions with meticulous care.” Post, at 8.
But as the dissent implicitly recognizes, Congress had been “alerted”
much before these post-CROA statutes were passed. The CROA itself
followed a series of this Court’s seminal decisions compelling arbitra-
tion, decisions which held that the FAA had established a “federal
policy favoring arbitration,” Gilmer v. Interstate/Johnson Lane Corp.,
500 U. S. 20, 26 (1991), and that “[t]he burden is on the party opposing
arbitration . . . to show that Congress intended to preclude a waiver of
judicial remedies,” Shearson/American Express Inc. v. McMahon, 482
U. S. 220, 227 (1987). To the extent Congress is ever “stimulated” by
this Court’s decisions, post, at 8, there is no reason to think the Con-
gress that enacted the CROA was any less stimulated than subsequent
Congresses.
10 COMPUCREDIT CORP. v. GREENWOOD
Opinion of the Court
“court” in the description of damages recoverable, is
unlikely.
* * *
Because the CROA is silent on whether claims under
the Act can proceed in an arbitrable forum, the FAA re-
quires the arbitration agreement to be enforced according
to its terms. The judgment of the Ninth Circuit is re-
versed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Cite as: 565 U. S. ____ (2012) 11
Opinion of the Court
Appendix to opinion of the Court
APPENDIX
Section 1679c provides:
“(a) Disclosure required
“Any credit repair organization shall provide any con-
sumer with the following written statement before any
contract or agreement between the consumer and the
credit repair organization is executed:
“ ‘Consumer Credit File Rights Under State and
Federal Law
“ ‘You have a right to dispute inaccurate information in
your credit report by contacting the credit bureau directly.
However, neither you nor any ‘credit repair’ company or
credit repair organization has the right to have accurate,
current, and verifiable information removed from your
credit report. The credit bureau must remove accurate,
negative information from your report only if it is over 7
years old. Bankruptcy information can be reported for 10
years.
“ ‘You have a right to obtain a copy of your credit report
from a credit bureau. You may be charged a reasonable
fee. There is no fee, however, if you have been turned
down for credit, employment, insurance, or a rental dwell-
ing because of information in your credit report within the
preceding 60 days. The credit bureau must provide some-
one to help you interpret the information in your credit
file. You are entitled to receive a free copy of your credit
report if you are unemployed and intend to apply for
employment in the next 60 days, if you are a recipient of
public welfare assistance, or if you have reason to believe
that there is inaccurate information in your credit report
due to fraud.
“ ‘You have a right to sue a credit repair organiza-
tion that violates the Credit Repair Organization Act.
This law prohibits deceptive practices by credit repair
organizations.
12 COMPUCREDIT CORP. v. GREENWOOD
Opinion of the Court
Appendix to opinion of the Court
“ ‘You have the right to cancel your contract with any
credit repair organization for any reason within 3 business
days from the date you signed it.
“ ‘Credit bureaus are required to follow reasonable pro-
cedures to ensure that the information they report is
accurate. However, mistakes may occur.
“ ‘You may, on your own, notify a credit bureau in writ-
ing that you dispute the accuracy of information in your
credit file. The credit bureau must then reinvestigate and
modify or remove inaccurate or incomplete information.
The credit bureau may not charge any fee for this service.
Any pertinent information and copies of all documents you
have concerning an error should be given to the credit
bureau.
“ ‘If the credit bureau’s reinvestigation does not resolve
the dispute to your satisfaction, you may send a brief
statement to the credit bureau, to be kept in your file,
explaining why you think the record is inaccurate. The
credit bureau must include a summary of your statement
about disputed information with any report it issues about
you.
“ ‘The Federal Trade Commission regulates credit bu-
reaus and credit repair organizations. For more infor-
mation contact:
“ ‘The Public Reference Branch
“ ‘Federal Trade Commission
“ ‘Washington, D. C. 20580’.
“(b) Separate statement requirement
“The written statement required under this section shall
be provided as a document which is separate from any
written contract or other agreement between the credit
repair organization and the consumer or any other written
material provided to the consumer.
Cite as: 565 U. S. ____ (2012) 13
Opinion of the Court
Appendix to opinion of the Court
“(c) Retention of compliance records
“(1) In general
“The credit repair organization shall maintain a
copy of the statement signed by the consumer ac-
knowledging receipt of the statement.
“(2) Maintenance for 2 years
“The copy of any consumer’s statement shall be
maintained in the organization’s files for 2 years
after the date on which the statement is signed by the
consumer.”
* * *
Section 1679g provides:
“(a) Liability established
“Any person who fails to comply with any provision of
this subchapter with respect to any other person shall be
liable to such person in an amount equal to the sum of
the amounts determined under each of the following
paragraphs:
“(1) Actual damages
“The greater of—
“(A) the amount of any actual damage sustained by
such person as a result of such failure; or
“(B) any amount paid by the person to the credit
repair organization.
“(2) Punitive damages
“(A) Individual actions
“In the case of any action by an individual, such
additional amount as the court may allow.
“(B) Class actions
“In the case of a class action, the sum of—
“(i) the aggregate of the amount which the court
may allow for each named plaintiff; and
14 COMPUCREDIT CORP. v. GREENWOOD
Opinion of the Court
Appendix to opinion of the Court
“(ii) the aggregate of the amount which the court
may allow for each other class member, without re-
gard to any minimum individual recovery.
“(3) Attorneys’ fees
“In the case of any successful action to enforce any
liability under paragraph (1) or (2), the costs of the ac-
tion, together with reasonable attorneys’ fees.
“(b) Factors to be considered in awarding punitive
damages
“In determining the amount of any liability of any credit
repair organization under subsection (a)(2) of this section,
the court shall consider, among other relevant factors—
“(1) the frequency and persistence of noncompliance
by the credit repair organization;
“(2) the nature of the noncompliance;
“(3) the extent to which such noncompliance was in-
tentional; and
“(4) in the case of any class action, the number of con-
sumers adversely affected.”
Cite as: 565 U. S. ____ (2012) 1
SOTOMAYOR, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–948
_________________
COMPUCREDIT CORPORATION, ET AL., PETITIONERS
v. WANDA GREENWOOD ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[January 10, 2012]
JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN joins,
concurring in the judgment.
Claims alleging the violation of a statute, such as the
Credit Repair Organizations Act (Act), 15 U. S. C. §1679et seq., are generally subject to valid arbitration agree-
ments unless Congress evinces a contrary intent in the
text, history, or purpose of the statute. See Gilmer v.
Interstate/Johnson Lane Corp., 500 U. S. 20, 26 (1991). I
agree with the Court that Congress has not shown that
intent here. But for the reasons stated by the dissent, I
find this to be a much closer case than the majority opin-
ion suggests.
The Act creates a cause of action in its liability provi-
sion, see §1679g(a), denominates the cause of action a
“right to sue” in the mandatory disclosure statement,
§1679c(a), and then provides that “right[s]” may not be
waived, §1679f(a). Those for whom Congress wrote the
Act—lay readers “of limited economic means and . . .
inexperienced in credit matters,” §1679(a)(2)—reasonably
may interpret the phrase “right to sue” as promising a
right to sue in court. And it is plausible to think that
Congress, aware of the impact of its words, intended such
a construction of the liability provision.
But while this interpretation of the Act is plausible, it is
in my view no more compelling than the contrary con-
2 COMPUCREDIT CORP. v. GREENWOOD
SOTOMAYOR, J., concurring in judgment
struction that petitioners urge. As the majority opinion
notes, the disclosure provision does not itself confer a
cause of action, and the liability provision that does is
materially indistinguishable from other statutes that we
have held not to preclude arbitration. In my mind this
leaves the parties’ arguments in equipoise, and our prece-
dents require that petitioners prevail in this circumstance.
This is because respondents, as the opponents of arbitra-
tion, bear the burden of showing that Congress disallowed
arbitration of their claims, and because we resolve doubts
in favor of arbitration. See id., at 26. Of course, if we
have misread Congress’ intent, then Congress can correct
our error by amending the statute.
I add one more point. The majority opinion contrasts
the liability provision of the Act with other, more recently
enacted statutes that expressly disallow arbitration. I do
not understand the majority opinion to hold that Congress
must speak so explicitly in order to convey its intent to
preclude arbitration of statutory claims. We have never
said as much, and on numerous occasions have held that
proof of Congress’ intent may also be discovered in the
history or purpose of the statute in question. See ibid. (“If
such an intention exists, it will be discoverable in the text
of the [statute], its legislative history, or an ‘inherent
conflict’ between arbitration and the [statute’s] underlying
purposes”); Shearson/American Express Inc. v. McMahon,
482 U. S. 220, 227 (1987) (“If Congress did intend to limit
or prohibit waiver of a judicial forum for a particular
claim, such an intent ‘will be deducible from [the statute’s]
text or legislative history,’ or from an inherent conflict
between arbitration and the statute’s underlying pur-
poses” (quoting Mitsubishi Motors Corp. v. Soler Chrysler-
Plymouth, Inc., 473 U. S. 614, 628 (1985); citation omit-
ted)). I agree with the dissent that the statutes the
majority opinion cites shed little light on the thoughts of
the Congress that passed the Act. But the Act’s text is not
Cite as: 565 U. S. ____ (2012) 3
SOTOMAYOR, J., concurring in judgment
dispositive, and respondents identify nothing in the legis-
lative history or purpose of the Act that would tip the
balance of the scale in favor of their interpretation.
Cite as: 565 U. S. ____ (2012) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–948
_________________
COMPUCREDIT CORPORATION, ET AL., PETITIONERS
v. WANDA GREENWOOD ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[January 10, 2012]
JUSTICE GINSBURG, dissenting.
Congress enacted the Credit Repair Organizations Act
(CROA) to protect consumers “who have experienced
credit problems”—“particularly those of limited economic
means”—against the unfair and deceptive practices of
credit repair organizations. 15 U. S. C. §1679(a). Central
to the legislation, Congress sought to arm consumers with
information needed to make intelligent decisions about
purchasing a repair organization’s services. To that end,
Congress directed that, “before [execution of] any contract
. . . between [a] consumer and [a] credit repair organiza­
tion,” the organization must make certain disclosures.
One of the required disclosures reads:
“You have a right to sue a credit repair organization
that violates the [CROA]. This law prohibits decep­
tive practices by [such] organizations.” §1679c(a).
The Act’s civil-liability provision describes suits consumers
may bring in court: individual and class actions for dam­
ages (actual and punitive) and attorneys’ fees. A further
provision renders void any purported waiver of any protec­
tion or right the Act grants to consumers.
The Court today holds that credit repair organizations
can escape suit by providing in their take-it-or-leave-it
contracts that arbitration will serve as the parties’ sole
2 COMPUCREDIT CORP. v. GREENWOOD
GINSBURG, J., dissenting
dispute-resolution mechanism. The “right to sue,” the
Court explains, merely connotes the vindication of legal
rights, whether in court or before an arbitrator. That
reading may be comprehensible to one trained to “think
like a lawyer.” But Congress enacted the CROA with
vulnerable consumers in mind—consumers likely to read
the words “right to sue” to mean the right to litigate in
court, not the obligation to submit disputes to binding
arbitration.
In accord with the Ninth Circuit, I would hold that
Congress, in an Act meant to curb deceptive practices, did
not authorize credit repair organizations to make a false
or misleading disclosure—telling consumers of a right they
do not, in fact, possess. If the Act affords consumers a
nonwaivable right to sue in court, as I believe it does, a
credit repair organization cannot retract that right by
making arbitration the consumer’s sole recourse.
I
CompuCredit marketed a credit card to consumers with
weak credit ratings. It did so through massive direct-mail
and Internet solicitations, urging recipients to acquire a
card under the brand name Aspire Visa, and thereby
“rebuild poor credit” and “improve [their] credit rating.”
App. 40, Complaint ¶11 (internal quotation marks omit­
ted). Plaintiffs, individuals who applied for and received
CompuCredit’s card, sought redress for multiple violations
of the CROA.
Their complaint alleged that CompuCredit’s promotion­
al materials told potential customers that no deposit
would be required, and that cardholders would receive,
upfront, a credit line of $300. In fact, plaintiffs asserted,
they were charged an initial finance fee of $29, a monthly
fee of $6.50, and an annual fee of $150, assessed immedi­
ately against the $300 limit. In the aggregate, plaintiffs
calculated, fees charged the first year amounted to $257.
Cite as: 565 U. S. ____ (2012) 3
GINSBURG, J., dissenting
CompuCredit’s fee exactions did appear in the promotional
materials: in small print, buried amidst other information,
and removed from the clearer representation that no de-
posit would be required. Id., at 40–41, Complaint ¶¶12–
13. Far from improving their credit rating, plaintiffs
complained, CompuCredit knew that its card, saddled
with these fees, “would not provide any meaningful assis­
tance whatsoever with regard to rebuilding credit and
improving a credit rating.” Id., at 48, Complaint ¶41(b).
Furthermore, plaintiffs stated, CompuCredit did not
provide them with the written disclosures of their rights
required by the CROA. Id., at 42, Complaint ¶23.
Seeking damages for the alleged violations, along with
attorneys’ fees, plaintiffs requested class certification. In
the District Court and Court of Appeals, they successfully
resisted CompuCredit’s motion to compel arbitration
pursuant to a form contract that barred class proceedings.1
This Court, however, interprets the CROA to permit Com-
puCredit’s demand that plaintiffs proceed, if at all, before
an arbitrator.2 I read the governing statute differently.
II
Three sections of the CROA, considered together, indi­
cate Congress’ intention to preclude mandatory, creditor­
imposed, arbitration of CROA claims. See 15 U. S. C.
§§1679c(a), 1679g, and 1679f. Before entering into any
——————
1 The contract signed by cardholders did not itself require arbitration.
Rather, it incorporated by reference an “enclosed insert” providing that
all disputes would be resolved by arbitration at the discretion of Com­
puCredit or the cardholder. App. 61–63.
2 CompuCredit’s form contract specified that arbitration was to occur
under the auspices of the National Arbitration Forum (NAF). In 2009,
after the Attorney General of Minnesota filed an action alleging that
NAF had engaged in numerous violations of consumer-protection laws,
NAF entered into a consent decree barring it from handling consumer
arbitrations. See Press Release by Lori Swanson, Attorney General of
Minnesota (July 19, 2009).
4 COMPUCREDIT CORP. v. GREENWOOD
GINSBURG, J., dissenting
consumer contract, credit repair organizations must give
potential customers a written statement of rights they
possess under that Act and related consumer-protection
laws. §1679c(a). Congress dictated every word of the
required notification. Credit repair organizations must
tell consumers, in plain terms, how they may enforce their
rights: “You have a right to sue a credit repair organiza­
tion that violates the Credit Repair Organization Act.”
Ibid.
The “right to sue” refers to the claim for relief Congress
afforded consumers in §1679g. “Any person” who violates
another’s rights under the CROA “shall be liable” for
actual damages and attorneys’ fees, and may be liable for
punitive damages as well. §1679g(a)(1)–(3). The Act sets
out the factors “the court shall consider” in determining
the amount of punitive damages “the court may allow”
aggrieved consumers to recover, either individually or as a
class. §1679g(a)(2) and (b). The liability created here, in
§1679g, is precisely what the consumer, in light of §1679c,
may sue to enforce.
The Act renders void and unenforceable “[a]ny waiver by
any consumer of any protection provided by or any right of
the consumer under this subchapter.” §1679f (emphasis
added).3 The rights listed in §1679c(a) rendered nonwaiv-
able by §1679f are the “right to sue” and the “right to
cancel [a] contract . . . for any reason within 3 business
days from the date [the consumer] signed it.”4
——————
3 Section 1679f(a), omitted from the Court’s statutory appendix, ante,
at 11–14, provides in full:
“Any waiver by any consumer of any protection provided by or any
right of the consumer under this subchapter—
“(1) shall be treated as void; and
“(2) may not be enforced by any Federal or State court or any other
person.”
4 Two provisions, although described by §1679c(a) as consumer
“right[s],” are not rendered nonwaivable by §1679f because they are not
“right[s] . . . under this subchapter.” Rather, the “right to dispute
Cite as: 565 U. S. ____ (2012) 5
GINSBURG, J., dissenting
The question on which this case turns is what Congress
meant when it created a nonwaivable “right to sue.”
Recall that Congress’ target audience in the CROA is not
composed of lawyers and judges accustomed to nuanced
reading of statutory texts, but laypersons who receive a
disclosure statement in the mail. Recall, as well, Con­
gress’ findings that these individuals are often “of limited
economic means and . . . inexperienced in credit matters.”
§1679(a)(2). Attributing little importance to this context,
the Court construes the right to sue as “the legal right,
enforceable in court, to recover damages . . . without re­
gard to whether the suit in court has to be preceded by an
arbitration proceeding.” Ante, at 8. I read Congress’
words without that sophisticated gloss: The right to sue,
I would hold, means the right to litigate in court.
The Court is quite right in recognizing that consumers
“have the legal right, enforceable in court, to recover dam­
ages from credit repair organizations that violate the
CROA.” Ibid. But the Court is quite wrong, as I see it, to
characterize as merely “imprecise,” ibid., Congress’ failure
to include the caveat that access to court may be condi­
tioned upon an anterior arbitration. The “right to sue”
may well be “a colloquial method of communicating to
consumers.” See ibid. But it surely is not colloquially
understood by recipients of the required disclosures as the
right, not to adjudicate in court, but only to seek, or defend
against, court enforcement of an award rendered by the
arbitrator chosen by the credit repair organization. Few,
if any, credit repair customers would equate the “right to
——————
inaccurate information in your credit report” and the “right to obtain a
copy of your credit report” referred to in §1679c(a) are rights conferred
elsewhere in the U. S. Code. See §1681i(a), §1681j. Section 1679f also
makes nonwaivable the “protection[s] provided . . . under this subchap­
ter” (emphasis added); these protections include the prohibition of cer­
tain business practices, see §1679b, and the provision, in writing, of
certain contractual terms and conditions, see §1679d.
6 COMPUCREDIT CORP. v. GREENWOOD
GINSBURG, J., dissenting
sue,” §1679c(a), with the extremely limited judicial review
given to an arbitrator’s award, see, e.g., Hall Street Asso-
ciates, L. L. C. v. Mattel, Inc., 552 U. S. 576, 586–589
(2008).
The Court discounts the references to “action,” “class
action,” and “court” in §1679g, the provision that “cre­
ate[s]” the consumers’ claim for relief. See ante, at 5.
Despite similar statutory language, the Court observes, we
have enforced arbitration agreements to settle disputes
arising under other Acts of Congress. The CROA, how-
ever, is distinguished by its disclosure requirements,
prime among them, the obligation imposed on the credit
repair organization to inform potential customers they
“have a right to sue” an organization that violates the Act.
§1679c(a). Yet the Court refuses to read this language in
concert with §1679g, notwithstanding our frequent ac­
knowledgment that “a statute is to be read as a whole,
since the meaning of statutory language . . . depends on
context.” King v. St. Vincent’s Hospital, 502 U. S. 215, 221
(1991) (citation omitted). As just explained, I believe
Congress meant what an ordinary reader of the disclosure
requirement would likely comprehend: A credit repair
organization that engages in deceptive practices may be
sued in court.
Reducing the required disclosure to insignificance, see
ante, at 4–5, the Court’s construction of the CROA scarcely
advances the Act’s goals. Congress aimed to ensure pro­
spective customers “are provided with the information
necessary to make an informed decision,” and also to
“protect the public from unfair or deceptive advertising
and business practices.” 15 U. S. C. §1679(b). The Court’s
interpretation, however, enables the very deception Con­
gress sought to suppress. Today’s decision permits credit
repair organizations to deny consumers, through fine print
in a contract, an important right whose disclosure is de­
creed in the U. S. Code.
Cite as: 565 U. S. ____ (2012) 7
GINSBURG, J., dissenting
This unfortunate result is not compelled by our prece­
dents. The Court cites three decisions for the proposition,
by now uncontroversial, that the mere existence of a stat-
utory right of action does not preclude agreements to
arbitrate disputes. See ante, at 5–6 (citing Gilmer v.
Interstate/Johnson Lane Corp., 500 U. S. 20, 28 (1991);
Shearson/American Express Inc. v. McMahon, 482 U. S.
220, 240 (1987); and Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U. S. 614, 637 (1985)). As
the Court acknowledges, ante, at 6, none of the statutes at
issue in those cases contained a nonwaiver clause analo­
gous to §1679f. Yet the presence of such a clause would
not have affected the outcome, the Court maintains; a
nonwaiver provision would not have precluded arbitration
because the statutes conferred no underlying right to
proceed in court.
Precisely the point: The CROA differs from the statutes
we have construed in the past in just that respect. The
Act does not merely create a claim for relief. It designates
that claim as an action entailing a “right to sue”; man­
dates that consumers be informed, prior to entering any
contract, of that right; and precludes the waiver of any
“right” conferred by the Act. Neither Gilmer, McMahon,
nor Mitsubishi construed a statute of a similar order.5
III
The Court’s final point is that, elsewhere, Congress has
spoken with particular clarity in guaranteeing a judicial
——————
5 “[I]f one believes [the CROA] . . . establishes a nonwaivable right to
initial judicial enforcement,” the Court states, “one must also believe
that it establishes a nonwaivable right to initial judicial enforcement in
any competent judicial tribunal.” Ante, at 7. In Sportin’ Life’s words,
“it ain’t necessarily so.” While there is good reason to believe Congress
cared about the institutional location of consumers’ suits under the
CROA, there is no reason to think Congress sought to disturb the
personal jurisdiction and venue rules that determine in which court a
civil action may be brought.
8 COMPUCREDIT CORP. v. GREENWOOD
GINSBURG, J., dissenting
forum and proscribing arbitration, but here, it did not do
so. The two statutes the Court cites as exemplary post­
date the CROA’s enactment by 14 and 6 years, respective­
ly. (A third merely delegates regulatory authority over
certain arbitration agreements.) See ante, at 9. Notably,
these recent statutes were framed following a string of
this Court’s decisions compelling arbitration pursuant to
contractual stipulations.6 Our decisions have increasingly
alerted Congress to the utility of drafting antiwaiver
prescriptions with meticulous care. But the Congress that
drafted the CROA was not similarly stimulated, and we
cannot fairly assess that enactment in the light of subse­
quent legislative responses to developments unknown to
the CROA’s drafters. Cf. United States v. Price, 361 U. S.
304, 313 (1960) (“[T]he views of a subsequent Congress
form a hazardous basis for inferring the intent of an
earlier one.”).
Beyond question, the Federal Arbitration Act, “standing
alone,” favors the enforcement of arbitration agreements.
McMahon, 482 U. S., at 226. To depart from that rule,
however, Congress need not employ “magic words.” See
Tr. of Oral Arg. 6. In determining whether the Arbitration
Act’s general rule has been displaced by another statutory
prescription, it remains our responsibility to examine
carefully “the text of the [statute], its legislative history,”
and Congress’ “underlying purposes.” Gilmer, 500 U. S.,
at 26 (citing McMahon, 482 U. S., at 227). See also 14
Penn Plaza LLC v. Pyett, 556 U. S. 247, 258 (2009) (arbi­
tration agreements will be enforced “unless Congress itself
has evinced an intention to preclude a waiver of judicial
remedies for the statutory rights at issue” (quoting
Gilmer, 500 U. S., at 26, in turn quoting Mitsubishi, 473
U. S., at 628)). No “unmistakably clear” statement is
——————
6 See Brief for American Association for Justice as Amicus Curiae 12,
and n. 5 (listing arbitration decisions since the CROA’s enactment).
Cite as: 565 U. S. ____ (2012) 9
GINSBURG, J., dissenting
necessary to proscribe the arbitration clause CompuCredit
seeks to enforce.
* * *
The CROA mandates that potential customers shall be
told of their “right to sue a credit repair organization” for
damages arising from deceptive practices. 15 U. S. C.
§1679c(a). But CompuCredit’s adhesion contract provided
that consumers would “not have the right to go to court.”
App. 61 (capitalization omitted). Congress’ direction must
prevail over CompuCredit’s opposing declaration. Accord­
ingly, I would affirm the judgment of the Court of Appeals
for the Ninth Circuit.