PUBLISH
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT NOV 22 2000 No. 98-6492 THOMAS K. KAHN _____________________ CLERK
D.C. Docket No. 97-01279-CV-S-N
OZIE BOWEN, on behalf of himself and all others similarly situated,
Plaintiffs-Appellants,
versus
FIRST FAMILY FINANCIAL SERVICES, INC.,
Defendant-Appellee.
_______________________
Appeal from the United States District Court for the Middle District of Alabama _______________________ (November 22, 2000)
Before EDMONDSON, CARNES and WATSON*, Circuit Judges.
CARNES, Circuit Judge:
_________________________ * Honorable James L. Watson, Judge, U.S. Court of International Trade, sitting by designation. The plaintiffs, Ozie Bowen and Ethel Ford, filed a putative class action
lawsuit against First Family Financial Services, Inc. (“First Family”), claiming
that the lender’s practice of requiring customers to sign arbitration agreements
before obtaining a consumer loan violates the Equal Credit Opportunity Act
(“ECOA”), 15 U.S.C. § 1691 et seq. According to the plaintiffs, that statute
prohibits a creditor from conditioning the extension of credit on a customer’s
agreement to forego his right to judicial remedies under the Truth in Lending Act
(“TILA”), 15 U.S.C. § 1601 et seq., and an arbitration clause contravenes that
prohibition. The magistrate judge, acting by consent as the district court,1
concluded that the plaintiffs had not alleged a violation of the ECOA, and that the
arbitration agreement signed by plaintiffs was fully enforceable pursuant to the
Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq. The plaintiffs appealed.
The plaintiffs have standing to challenge the legality of First Family’s
requirement that customers sign arbitration agreements as a condition of credit,
because they were required to and did sign such an agreement in order to obtain
credit from First Family. On the merits of that issue we agree with the district
court that such a requirement does not violate the ECOA. As to the separate
1 The parties consented to have the magistrate judge exercise the authority of the district court pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ P. 73. All of our references to the district court in this case are to the magistrate judge acting as the district court.
2 questions of whether arbitration agreements are generally unenforceable under the
TILA, and whether this one is unenforceable for some other reason, we conclude
that the plaintiffs lack standing to raise those issues, because there has been no
attempt to enforce the agreement against them, and they have not established that
there is a substantial likelihood that it will be enforced against them in the future.
I. BACKGROUND
In 1996, Bowen and Ford, the plaintiffs, separately obtained small loans
from First Family, and as part of their transactions, each of them was required to
sign a two-page document entitled in bold lettering: “ARBITRATION
AGREEMENT.” The agreement provides that First Family and the consumer
“agree to arbitrate, under the following terms, all claims and disputes between you
and us, except as provided otherwise in this agreement.” In a more specific
provision, the agreement states that it applies to “all claims and disputes arising out
of, in connection with, or relating to: ... any claim or dispute based on a federal or
state statute.”
In August of 1997, Bowen and Ford filed this putative class action. They
contend that the TILA grants consumers a non-waivable right to obtain judicial, as
distinguished from arbitral, redress of statutory violations, including the right to do
3 so through a class action. That is the basis of their claim that First Family’s
requirement that they sign the arbitration agreement violated the ECOA,
specifically 15 U.S.C. § 1691(a)(3), because it forced them to waive their right to
litigate TILA claims in order to obtain credit. The complaint sought actual and
statutory damages, as well as declaratory and injunctive relief. Notably, other than
their challenge to the arbitration agreement requirement, the plaintiffs did not claim
that First Family had violated a substantive provision of the ECOA, the TILA, or
any other provision of the Consumer Credit Protection Act, 15 U.S.C. §§ 1601-
1693r.
The district court granted First Family’s motion for judgment on the
pleadings. In its order, the court first concluded that the plaintiffs had failed to
plead how they exercised a right under the Consumer Credit Protection Act or how
First Family had discriminated against them in response to their exercising such a
right. Also, the district court was “not persuaded” that the “right” on which the
plaintiffs based their ECOA claim – the right to judicial redress, and particularly,
the right to pursue a class action for violations of the TILA – was a “right” under
the Consumer Credit Protection Act within the meaning of § 1691(a)(3). The court
then concluded there was no conflict between the TILA and the FAA that would
render the arbitration agreement unenforceable. Consequently, the court granted
4 First Family’s motion for judgment on the pleadings and dismissed the case with
prejudice.
II. DISCUSSION
Judgment on the pleadings involves issues of law, and our review is de novo.
See Mergens v. Dreyfoos, 166 F.3d 1114, 1116-17 (11th Cir. 1999).
A. The ECOA Claim
Enacted as part of the Consumer Credit Protection Act, see 15 U.S.C. §§
1601-1693r, the ECOA proscribes discrimination in the extension of credit by
making it:
unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction –
(1) on the basis of race, color, religion, national origin, sex or marital status, or age (provided the applicant has the capacity to contract);
(2) because all or part of the applicant’s income derives from any public assistance program; or
(3) because the applicant has in good faith exercised any right under [the Consumer Credit Protection Act].
15 U.S.C. § 1691(a) (emphasis added). If a creditor violates § 1691(a), the ECOA
provides that the aggrieved applicant, either through an individual suit or a class
action, shall recover any actual damages sustained by the applicant, punitive
5 damages, reasonable attorney’s fees and costs, and any necessary equitable relief.
See id. § 1691e.
The TILA is part of the Consumer Credit Protection Act, and it imposes
disclosure obligations upon creditors and authorizes consumers to recover both
actual and statutory damages when a creditor makes inaccurate or inadequate
disclosures. See 15 U.S.C. §§ 1601 et seq. The “right under [the Consumer Credit
Protection Act]” upon which the plaintiffs base their § 1691(a)(3) ECOA claim is
the purported right under the TILA to litigate, both individually and as a class
action, statutory claims for disclosure violations. They contend that First Family
discriminated against them “with respect to any aspect of a credit transaction” by
requiring them, as a condition of obtaining credit, to agree in advance to arbitrate
any claims under the Consumer Credit Protection Act, including any claims under
the TILA .
In order to establish a violation of § 1691(a)(3), a plaintiff must show that:
(1) he exercised in good faith (2) a right under the Consumer Credit Protection Act,
and (3) as a result, the creditor discriminated against him with respect to the credit
transaction. See 15 U.S.C. § 1691(a)(3). An initial premise of the plaintiffs’
argument in this case is that the TILA grants consumers a non-waivable right to
litigate, individually and through a class action, any claims arising under the
6 statute. This right to litigate TILA claims, the plaintiffs maintain, is prospectively
waived by the arbitration agreements that First Family requires credit applicants to
sign. Because a credit applicant would be denied credit if he declined to sign the
arbitration agreement in order to preserve his right to litigate under the TILA, the
plaintiffs argue that First Family discriminates against applicants based on a good
faith exercise of their rights under the Consumer Credit Protection Act, in violation
of § 1691(a)(3) of the ECOA and its implementing regulation, Regulation B, 12
C.F.R. § 202.4. But how were these plaintiffs discriminated against, and for
exercising what rights?
If the purported non-waivable right to litigate, instead of arbitrate, claims
under the TILA exists, the complaint contains no allegation describing how these
plaintiffs exercised that right. The basis for their ECOA claim is the arbitration
agreement, but there is no allegation in the complaint that the plaintiffs voiced any
objection to signing the arbitration agreement. In this respect, the cases cited by
the plaintiffs, Bryson v. Bank of New York, 584 F. Supp. 1306 (S.D.N.Y. 1984)
and Owens v. Magee Fin. Serv. of Bogalusa, Inc., 476 F. Supp. 758 (E.D. La.
1979), are distinguishable. In Owens, the plaintiff was extended credit only after
agreeing to abandon her TILA claims in a pending lawsuit that had arisen from a
previous credit transaction with the defendant. See Owens, 476 F. Supp. at 768. In
7 Bryson, the plaintiff was denied credit after he inquired into whether the written
disclosure provided by the creditor accurately reflected its policy of requiring
credit life insurance, a disclosure specifically required by the TILA. See Bryson,
584 F. Supp. at 1318-19. Pursuing TILA claims in a lawsuit and specifically
inquiring into a disclosure that is required by the TILA can both reasonably be
viewed as an exercises of rights under the TILA.
Even if the complaint alleged that the plaintiffs objected to the arbitration
agreement, and even if we assume that such an objection somehow constitutes the
requisite exercise of their rights, it is unclear what discrimination the plaintiffs
suffered as result of that exercise of their rights. There is no allegation that either
Bowen or Ford were refused a loan. To the contrary, the complaint alleges that
both of them received a loan. Nor is there any allegation that either plaintiff paid a
higher interest rate as a result of having objected to the arbitration clause – if they
did object to it.
In order to establish the discrimination element of a § 1691(a)(3) claim, it
may be necessary for the plaintiff to show either that the creditor refused to extend
credit to the applicant or that it extended credit but on less favorable terms. In
Bryson, for example, the plaintiff was denied the loan after inquiring into the
accuracy of the bank’s written disclosures. See Bryson, 584 F. Supp. at 1318-19.
8 However, in Owens, the other ECOA case cited by the plaintiff, the district court
concluded that the plaintiff had established a § 1691(a)(3) claim even though the
plaintiff had been able to obtain a loan. See Owens, 476 F. Supp. at 768. In
reaching this conclusion, the court found that the defendant had threatened to deny
the plaintiff a second loan unless the plaintiff released her TILA claims arising
from a previous loan. See id. Even if the Owens decision presents a correct view
of § 1691(a)(3), it may be distinguishable from this case because the plaintiffs here
have not alleged that First Family threatened to refuse their loan application unless
they signed the arbitration agreement, and they have not alleged that there were
any pre-existing rights that had arisen in connection with a prior loan to the
plaintiffs.
The plaintiffs attempt to overcome the difficulties surrounding the “good
faith” exercise of rights and discrimination elements of § 1691(a)(3) by contending
that one of the ECOA’s implementing regulations, 12 C.F.R. § 202.4, prohibits a
creditor from presenting an unlawful term as a mandatory condition of the loan
agreement. We doubt that the existence of that regulation dispenses with the
statutory requirements that there be an exercise of rights and discrimination
resulting therefrom. But even if it does, a more basic problem for the plaintiffs,
and one that we rely upon to dispose of their claim, is their position’s fundamental
9 premise that the TILA confers upon consumers a non-waivable right to litigate – as
distinguished from arbitrate – claims brought under that statute.
The fact that Congress has enacted a statute which creates substantive rights
and provides judicial remedies to vindicate those substantive rights does not mean
it has created a non-waivable, substantive “right” to judicial redress. Cf. American
Bank & Trust Co. v. Federal Reserve Bank of Atlanta, Georgia, 256 U.S. 350, 358,
41 S.Ct. 499, 500 (1921) (Holmes, J.) (“But the word 'right' is one of the most
deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to
an unqualified one in the conclusion.”). As the Supreme Court has explained
repeatedly, “‘[b]y agreeing to arbitrate a statutory claim, a party does not forgo the
substantive rights afforded by the statute; it only submits to their resolution in an
arbitral, rather than a judicial, forum.’” Gilmer v. Interstate/Johnson Lane Corp.,
500 U.S. 20, 26, 111 S.Ct. 1647, 1652 (1991) (quoting Mitsubishi Motors Corp. v.
Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 3354 (1985)).
The ECOA protects the good faith exercise of “any right under [the
Consumer Credit Protection Act],” 15 U.S.C. § 1691(a)(3), and thus, the plaintiffs
can state a cognizable ECOA claim only if the TILA creates a substantive, non-
waivable right to litigate the violations of substantive rights. “[I]f Congress
intended the substantive protection afforded [by the TILA] to include protection
10 against waiver of the right to a judicial forum, that intention will be deducible from
text or legislative history.” Gilmer, 500 U.S. at 29, 111 S.Ct. at 1654 (quoting
Mitsubishi Motors Corp., 473 U.S. at 628, 105 S.Ct. at 3354).
In arguing that the TILA provides a non-waivable right to redress in a
judicial forum, the plaintiffs point to the provision of class action remedies in §
1640(a). See 15 U.S.C. § 1640(a). In 1974, Congress amended § 1640 by, among
other things, removing the $100 mandatory minimum statutory damage award for
individuals and providing a statutory damage award specifically for class actions.
Compare id. with 15 U.S.C. § 1640(a) (1973). The section now authorizes a class
action statutory damage award of “the lesser of $500,000 or 1 per centum of the net
worth of the creditor,” see 15 U.S.C. § 1640(a)(2)(B), and provides a non-
exclusive list of factors for a court to consider in determining the appropriate
amount of that award. See id. § 1640(a).
The reason Congress amended § 1640 is that the previous mandatory
minimum statutory damage award of $100 for individuals threatened creditors with
“horrendous” class action liability for mere technical violations of the statute, and
the prospect of that result had made courts reluctant to certify TILA claims for
class treatment. See McCoy v. Salem Mortgage Co., 74 F.R.D. 8, 10 (E.D. Mich.
1976). Through the 1974 amendments, Congress sought to protect the financial
11 viability of creditors by capping the amount of statutory damages in a class action,
which would make courts less reluctant to certify class actions involving such
claims. See id. (“Rather than placing the courts in a dilemma which had them
choose between denying class actions altogether or permitting multi-million dollar
recoveries against defendants for minor or technical violations, Congress placed a
ceiling of [$500,000] or 1% of [the defendant’s] net worth, whichever is less, on a
defendant’s statutory liability in any class action.”).
The plaintiffs point out that Congress has created in TILA a class action
remedy, which allows a court to consider various factors in assessing a significant
statutory damage penalty against a defendant. That remedy, the plaintiffs maintain,
will be lost if creditors are allowed to require consumers to arbitrate claims. The
net result, they say, will be to undermine a critical statutory enforcement
mechanism of the TILA.2 In addition, pointing to legislative history which stresses
the importance of class action procedures in the TILA scheme, see S. Rep. 93-278
(1973), the plaintiffs argue that Congress intended to guarantee consumers access
2 We note that it is unclear whether arbitration always precludes the use of a class action procedure. See, e.g., Johnson v. West Suburban Bank, 225 F.3d 366, 377 n. 4 (3d Cir. 2000) (“This court has never addressed the question whether class actions can be pursued in arbitral forums, though it appears impossible to do so unless the arbitration agreement contemplates such a procedure.”) (citation omitted). However, both parties indicate that the arbitration agreement in this case does. For present purposes, we will assume that arbitration and a class action procedure are mutually exclusive.
12 to individual lawsuits and class actions to allow them to serve as private attorneys
general in enforcing the provisions of the TILA, thereby furthering the policy goals
of the statute. See, e.g., Sosa v. Fife, 498 F.2d 114 (5th Cir. 1974) (“[W]e begin
with the settled proposition that congressional goals underlying the [TILA] include
the creation of a system of private attorney[s] general[] who will be able to aid the
effective enforcement of the Act.”) (citation and internal marks omitted).
In regard to that argument, we recognize, of course, that a class action is an
available, important means of remedying violations of the TILA. See 15 U.S.C. §
1640. “However, there exists a difference between the availability of the class
action tool, and possessing a blanket right to that tool under any circumstance.”
Wood v. Cooper Chevrolet, Inc., 102 F. Supp.2d 1345, 1349 (N.D. Ala. 2000)
(addressing, and rejecting, the same ECOA claim that is asserted in this case). An
intent to create such a “blanket right,” a non-waivable right, to litigate by class
action cannot be gleaned from the text and the legislative history of the TILA. See
Johnson v. West Suburban Bank, 225 F.3d 366, 377-78 (3d Cir. 2000).
In Johnson v. West Suburban Bank, the Third Circuit addressed the language
of § 1640 and explained that:
Though the [TILA] clearly contemplates class actions, there are no provisions within the law that create a right to bring them, or evince an intent by Congress that claims initiated as class actions be exempt from binding arbitration clauses. The ‘right’ to proceed to a class
13 action, insofar as the TILA is concerned, is a procedural one that arises from the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 23.
Id. at 371; see also Boggs v. Alto Trailer Sales, Inc., 511 F.2d 114, 117 (5th Cir.
1975) (holding that Fed. R. Civ. P. 23 applies to TILA claims).3 While the
legislative history of § 1640 shows that Congress thought class actions were a
significant means of achieving compliance with the TILA, see S. Rep. 93-278
(1973), it does not indicate that Congress intended to confer upon individuals a
non-waivable right to pursue a class action nor does it even address the issue of
arbitration.
Moreover, the fact that the TILA plaintiffs serve as “private attorneys
general” in enforcing the statute does not support the plaintiffs’ position that they
have a non-waivable right to litigate claims, either individually or as members of a
class. The Supreme Court has enforced agreements to arbitrate claims brought
under RICO and under federal antitrust laws, both of which create “private
attorneys general” enforcement schemes. See Shearson/American Express, Inc. v.
McMahon, 482 U.S. 220, 107 S.Ct. 2332 (1987) (RICO); Mitsubishi Motors Corp.
3 Decisions of the Fifth Circuit issued prior to October 1, 1981 are binding precedent on this Court. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
14 v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346 (1985) (antitrust
statutes).
As we have explained, neither the text nor the legislative history of the TILA
establishes that the plaintiffs have a non-waivable right to pursue a class action, or
even to pursue an individual lawsuit, as distinguished from pursuing arbitration in
order to obtain remedies for violations of the statute. See Gilmer, 500 U.S. at 29,
111 S.Ct. at 1654 (“[I]f Congress intended the substantive protection afforded [by
the TILA] to include protection against waiver of the right to a judicial forum, that
intention will be deducible from text or legislative history.”) (quoting Mitsubishi
Motors Corp., 473 U.S. at 628, 105 S.Ct. at 3354)). The district court in Wood v.
Cooper Chevrolet, Inc., rejected virtually the same ECOA claim as that asserted in
this case. Wood, 102 F. Supp.2d at 1350. We agree with that court’s explanation
that the plaintiff[s] [have] not given up any rights or claims” by signing the
arbitration agreement. Id. Instead, they simply have agreed “to move [TILA]
claims, and all others, into an arbitral rather than a judicial forum.” Id.
For these reasons, we agree with the other courts that have addressed this
issue. See Johnson, 225 F.3d at 378 n. 5 Wood, 102 F. Supp.2d at 1350;
Thompson v. Illinois Title Loans, Inc., __ F.Supp.2d___ (N.D. Ill. 2000). We hold
that, for purposes of the ECOA, specifically 15 U.S.C. § 1691(a)(3), Congress did
15 not create a non-waivable right to pursue TILA claims in a judicial forum, either
individually or through a class action. It follows that the plaintiffs cannot show
that when First Family required them to sign an agreement to arbitrate any claims
arising under the TILA, it discriminated against the plaintiffs in violation of §
1691(a)(3) because they had exercised a right under the Consumer Credit
Protection Act.
Our holding goes no further than the § 1691(a)(3) issue. We have no
occasion to address in this appeal whether arbitration agreements are generally
unenforceable under the TILA or whether the specific agreement in this case is
unenforceable. The reason we have no occasion to address those issues is that, as
we explain in the next section, these plaintiffs have no standing to raise them.4
4 Consequently, we do not reach the issue of whether an agreement to arbitrate is unenforceable with respect to TILA claims on the ground that there is “an ‘inherent conflict’ between arbitration and the ... underlying purposes’” of the TILA. Gilmer, 500 U.S. at 26, 111 S.Ct. at 1652 (citing McMahon, 482 U.S. at 227, 107 S.Ct. at 2337)). Nor do we reach the issue of whether – assuming arbitration agreements generally are enforceable with respect to TILA claims – the agreement in this case is unenforceable because it prevents a plaintiff from effectively vindicating his statutory rights, for example, by unduly limiting the types or amount of relief available, see, e.g., Paladino v. Avnet Computer Tech., Inc., 134 F.3d 1054, 1060-62 (11th Cir. 1998), or by imposing burdensome costs, see, e.g., Randolph v. Green Tree Fin. Corp., 178 F.3d 1149, 1157-59 (11th Cir. 1999), cert. granted, 120 S.Ct. 1552 (2000).
Instead, we decide only that Congress has not conferred upon individuals a substantive, non-waivable right to judicial redress of TILA violations. Because the plaintiffs’ ECOA claim, the only claim for which the plaintiffs have standing, is premised on the existence of such a right, that claim must fail.
16 B. The Unenforceability Claim
It appears that the plaintiffs contend that even if requiring customers to sign
an arbitration agreement as a condition of credit is not a violation of the ECOA, the
arbitration agreement in this case is unenforceable for a number of reasons.5 But
there is no allegation that First Family has invoked, or threatened to invoke, the
arbitration agreement to compel the plaintiffs to submit any claim to arbitration.
Thus, the plaintiffs lack standing to challenge the enforceability of the arbitration
agreement, even though they do have standing to claim that First Family violated
the ECOA by requiring them to sign the arbitration agreement in order to obtain a
loan. See generally 13 Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure, § 3531, at 568 (2d ed. Supp. 2000) (“A party with standing to
advance one claim may lack standing to advance other claims ... .”); see also
International Primate Protection League v. Administrators of Tulane Educ. Fund,
500 U.S. 72, 77, 111 S.Ct. 1700, 1704 (1991) (“[S]tanding is gauged by the
specific common-law, statutory or constitutional claims that a party presents.”).
The difference is that the plaintiffs were required to and did sign the arbitration
5 The district court held that the arbitration agreement was “fully enforceable,” which is some indication it thought that issue had been raised. Also, in their briefs to this Court, the plaintiffs discuss enforceability beyond the general ECOA issue. For these reasons, we will treat the issue as having been raised and argued to us.
17 agreement, but there has been no occasion for First Family to attempt to enforce it
against them.6
Under Article III of the United States Constitution, the subject matter
jurisdiction of federal courts extends only to “cases or controversies.” Socialist
Workers Party v. Leahy, 145 F.3d 1240, 1244 (11th Cir. 1998). One aspect of this
“case or controversy” limitation is the doctrine of standing, which requires that the
plaintiff show, among other things, that he has suffered an “injury in fact” – some
harm to a legal interest that is “actual or imminent, not ‘conjectural’ or
‘hypothetical[.]’” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-
61, 112 S.Ct. 2130, 2136 (1992)) (emphasis added); see generally National
Treasury Employees Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996)
(“In an attempt to give meaning to Article III's case-or-controversy requirement,
the courts have developed a series of principles termed ‘justiciability doctrines,’
among which are standing[,] ripeness, mootness, and the political question
doctrine.”) (citation omitted).
6 The fact that this suit was brought as a class action does not affect the plaintiffs’ burden of showing that they individually satisfy the constitutional requirements of standing. See Griffin v. Dugger, 823 F.2d 1476, 1482, 1483 (11th Cir. 1987) (“[A] plaintiff cannot include class action allegations in a complaint and expect to be relieved of personally meeting the requirements of constitutional standing, ‘even if the persons described in the class definition would have standing themselves to sue.’”) (quoting Brown v. Sibley, 650 F.2d 760, 771 (5th Cir. Unit A July 1981)).
18 A plaintiff has standing to seek declaratory or injunctive relief only when he
“allege[s] facts from which it appears there is a substantial likelihood that he will
suffer injury in the future.” Malowney v. Federal Collection Deposit Group, 193
F.3d 1342, 1346-47 (11th Cir. 1999) (citing City of Los Angeles v. Lyons, 461
U.S. 95, 102, 103 S.Ct. 1660, 1665 (1983)); see also Whitmore v. Arkansas, 495
U.S. 149, 158, 110 S.Ct. 1717, 1724-25 (1990) (“Each of these cases demonstrates
what we have said many times before and reiterate today: Allegations of possible
future injury do not satisfy the requirements of Art. III. A threatened injury must
be ‘certainly impending’ to constitute injury in fact.”) (citations and internal marks
omitted). In this case, the plaintiffs will not be injured by the arbitration agreement
unless and until it is enforced, and there are no indications of a substantial
likelihood the agreement will be enforced against the plaintiffs.
To conclude that such enforcement is sufficiently imminent to entitle the
plaintiffs to declaratory or injunctive relief from the agreement, we would first
have to conclude that there is a substantial likelihood that First Family will take
some action that at least arguably violates the TILA or some related law.
However, other than their erroneous contention that being required to sign the
arbitration agreement violated the ECOA, the plaintiffs have not alleged that First
Family has violated any law. And we are unwilling to assume that First Family has
19 failed or will fail to comply with the TILA or any other laws governing consumer
credit transactions. But even if First Family were likely to violate the TILA or
some similar law, we would also have to find there was a substantial likelihood
that the plaintiffs and First Family would be unable to resolve any resulting dispute
without litigation. The undeniable fact is that the vast majority of credit
transactions such as the ones in this case do not result in litigation. We cannot say
that enforcement of the arbitration agreement against these plaintiffs is “certainly
impending,” as required by Whitmore, 495 U.S. at 158, 110 S.Ct. at 1724-25.
There is at most a “perhaps” or “maybe” chance that the arbitration agreement will
be enforced against these plaintiffs in the future, and that is not enough to give
them standing to challenge its enforceability. See Malowney, 193 F.3d at 1347.
By insisting that a plaintiff show a substantial likelihood of future injury, in
the absence of declaratory or injunctive relief, courts further one of the purposes of
the constitutional standing requirement – reserving limited judicial resources for
individuals who face immediate, tangible harm absent the grant of declaratory or
injunctive relief. See 13A Charles Alan Wright and Arthur R. Miller, Federal
Practice and Procedure, § 3532.1, at 114 (2d ed. 1984) (“The central perception [of
the justiciability doctrines] is that courts should not render decisions absent a
genuine need to resolve a real dispute. Unnecessary decisions dissipate judicial
20 energies better conserved for litigants who have a real need for official
assistance.”).7 This is certainly true with respect to suits to enjoin the enforcement
of arbitration agreements. In light of the increasing use of such agreements in a
wide variety of consumer transactions, as well as in the employment context,8
requiring a plaintiff seeking relief from an arbitration agreement to demonstrate a
real threat that the agreement will be invoked against him helps maintain a
manageable caseload for the courts and prevents courts from becoming merely
legal counselors and their adjudications merely advice. If and when First Family
7 The lack of imminent harm to the plaintiffs from the arbitration agreement can also be viewed as a constitutional problem of ripeness. “The ripeness doctrine raises both jurisdictional and prudential concerns. ... It asks whether there is sufficient injury to meet Article III’s requirement of a case or controversy and, if so, whether the claim is sufficiently mature, and the issues sufficiently defined and concrete, to permit effective decisionmaking by the court.” Cheffer v. Reno, 55 F.3d 1517, 1524 (11th Cir. 1995) (emphasis added); see also DKT Memorial Fund v. Agency for Int’l Dev., 887 F.2d 275, 297 (D.C. Cir. 1989) (“[T]he constitutional requirement for ripeness is injury in fact.”) (citing Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 81, 98 S.Ct. 2620, 2634-35 (1978)).
Whether viewed as a problem of standing or ripeness, the result in this case is that, at this point, the speculative possibility that the arbitration agreement may be enforced against the plaintiffs is too uncertain to present a constitutional “case or controversy” with respect to the enforceability of that agreement. 8 See generally Alan S. Kaplinsky and Mark J. Levin, Consumer Financial Services Arbitration: A Panacea or a Pandora’s Box?, 55 Bus. Law. 1427, 1427 (May 2000) (“During 1999, consumer financial services companies, led by the issuers of the American Express and the Discover cards, continued to implement arbitration programs with their customers at a record pace.”); Bruce P. McMoran, The Enforceability of Mandatory Pre-Dispute Arbitration Agreements: The Battle Rages On and Some Tips on Winning, 591 P.L.I. 1009, 1011 (1998) (“According to one report, as of the summer of 1996, the American Arbitration Association alone was helping administer the ADR programs of almost 300 large corporations, covering 3.5 million employees.”)
21 seeks to compel arbitration of a TILA claim, the plaintiffs can challenge the
agreement as unenforceable at that time. See Board of Trade of the City of
Chicago v. Commodity Futures Trading Comm’n, 704 F.2d 929, 933 (7th Cir.
1983) (holding unripe the Board’s constitutional challenge to the Commission’s
rule requiring arbitration of customers’ common-law claims, noting that a Board
employee or member who was ordered to arbitrate “could simply bring a suit to
enjoin arbitration or to enjoin enforcement of an arbitration award against him on
the ground that the Commission’s rule requiring arbitration is invalid”).
In the absence of a substantial likelihood that the arbitration agreement will
be enforced against the plaintiffs, they lack standing to challenge its enforceability.
III. CONCLUSION
For purposes of the ECOA, specifically 15 U.S.C. § 1691(a)(3), there is no
non-waivable right to litigate claims brought under the TILA. Thus, First Family’s
requirement that its credit applicants sign an arbitration agreement as part of the
loan process, thereby prospectively waiving the applicant’s right to litigate TILA
claims, does not violate § 1691(a)(3). Because the plaintiffs have not alleged facts
demonstrating a substantial likelihood that the arbitration agreement will be
enforced against them, they do not have standing to challenge its enforceability.
Consequently, although we affirm the district court’s dismissal of the plaintiffs’
22 only justiciable claim – their ECOA claim – we vacate that part of the court’s order
holding that the arbitration agreements between First Family and the plaintiffs are
“fully enforceable pursuant to the Federal Arbitration Act.”
AFFIRMED IN PART AND VACATED IN PART.
23 WATSON, Circuit Judge, concurring in the result:
Much of today’s majority opinion is correct, and I concur with the
discussion and conclusion under Part II B that plaintiffs-appellants (“plaintiffs”)
lack standing to challenge the enforceability of First Family’s arbitration
agreement. Further, I also concur with the majority’s decision to affirm the district
court’s dismissal of plaintiffs’ Equal Credit Opportunity Act (“ECOA”) claim, but
not the majority’s holding that plaintiffs have standing with respect to that claim.
Accordingly, as to Part II A of the majority’s opinion, I concur only in the result.
Unlike the majority’s detailed standing analysis of plaintiffs’
“Unenforceability Claim” under Part II B, in which I concur, the majority’s
discussion of plaintiffs’ standing with respect to “The ECOA Claim” under Part II
A is quite scant and states only: “the plaintiffs have standing to challenge the
legality of First Family’s requirement that customers sign arbitration agreements as
a condition of credit, because they were required to and did sign such an agreement
in order to obtain credit from First Family.” I disagree.
In Allen v. Wright, 468 U.S. 737, 755 (1984), the Supreme Court held that
“an injury arising from discrimination ‘accords a basis for standing only to those
persons who are personally denied equal treatment by the challenged
discriminatory conduct.’” I am unable to see how plaintiffs acquired standing with
24 respect to their ECOA claim merely on the basis of the slender reed relied on by
the majority. There is no suggestion whatever by the allegations of plaintiffs’
complaint that First Family denied consumers equal treatment in requiring
consumers to arbitrate disputes arising from the extension of credit. Similarly, the
majority recognizes that “to establish the discrimination element of a § 1691(a)(3)
it may be necessary for plaintiff to show either that the creditor refused to extend
credit to the applicant or that it extended credit but on less favorable terms.”
However, here, there is no allegation either that plaintiffs were denied credit or that
they were extended terms less favorable than those offered to other applicants for
loans.
Apart from the absence in the complaint of any allegation of disparate
treatment, also fatal to plaintiffs’ standing with respect to their ECOA claim is the
requirement of a “causal connection,” as articulated by the Supreme Court in Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Plaintiffs have not alleged any
causal connection between some asserted discriminatory conduct (e.g., disparate
treatment of consumers) by First Family and the claimed injury (e.g., ostensibly, by
being required to agree to arbitration). As recognized by the majority, the Supreme
Court in International Primate Protection League v. Administrators of Tulane
Educ. Fund, 500 U.S. 72, 77 (1991), held that “standing is gauged by the specific
25 common-law, statutory, or constitutional claims that a party presents. Typically, . .
. the standing inquiry requires careful judicial examination of a complaint’s
allegations to ascertain whether the particular plaintiff is entitled to an adjudication
of the particular claims asserted.” Tulane Educ. Fund, 500 U.S. at 77 (Emphasis
in original). The Court has always insisted on strict compliance with this
jurisdictional standing requirement. Raines v. Byrd, 521 U.S. 811, 819 (1996).
Accordingly, I conclude that since plaintiffs have not alleged inter alia, any
denial of equal treatment or causal connection, for purposes of their claim under §
1691(a)(3), plaintiffs have not alleged either that they suffered any actual or
imminent injury cognizable under § 1691(a)(3), or there is any causal connection
between the creditor’s alleged unlawful conduct (e.g., disparate treatment of
consumers) and an injury (e.g., ostensibly, by being required to agree to
arbitration). For purposes of their discrimination claim under § 1691(a)(3), the
standing requirements of injury and causal connection are not satisfied simply by
plaintiffs’ bald and broad brush stroke allegation that First Family violated §
1691(a)(3), or by plaintiffs’ allegation that they were required to agree to
arbitration of disputes with First Family.
For the foregoing reasons, I believe that the majority opinion mistakenly
concludes that plaintiffs have met the constitutional minimum requirements
26 necessary to establish standing for an ECOA claim under § 1691(a)(3).
Consequently, the required federal jurisdictional foundation of a “case” or
“controversy” mandated by Article III of the Constitution, which the majority finds
lacking with respect to the enforceability claim under Part II B, is also lacking with
respect to plaintiffs ECOA claim addressed by the majority in Part II A.
Moreover, even assuming arguendo that plaintiffs have standing under §
1691(a)(3) simply because they were required to and did sign the arbitration
agreement, and further assuming that the waivability of plaintiffs’ right to judicial
redress of TILA claims is somehow relevant to the discrimination claim, in my
view, the waivability issue is not ripe for judicial resolution for essentially the
same reasons advanced by the majority for not reaching the enforceability claim.
As does the majority, I recognize that in advancing their discrimination claim
under § 1691(a)(3) of the ECOA, “an initial premise of plaintiffs’ argument in this
case is that the TILA grants consumers a non-waivable right to litigate,
individually and through class action, any claims under the statute,” and that
“plaintiffs maintain that the right to litigate TILA claims is prospectively waived
by the arbitration agreements that First Family requires credit applicants to sign.”
The majority discusses the waivability issue at length, but then expressly declines
to reach the issue of whether an agreement to arbitrate is enforceable.
27 I believe that the waivability of the right to judicial redress under TILA is
reciprocally and inextricably intertwined with, and indeed, is contingent upon an
enforceable alternative dispute resolution mechanism, such as arbitration.1 Indeed,
a conclusion that judicial redress of TILA claims is not non-waivable subsumes
enforceable alternative dispute resolution, and the latter subsumes the waivability
of the right to judicial redress.
I agree with the majority’s reasoning and conclusion in Part II B that
plaintiffs do not have standing to raise the “Unenforceability Claim” unless and
until the creditor seeks to enforce the arbitration agreement. As also noted in the
majority opinion, note 7, “[w]hether viewed as a problem of standing or ripeness,
the result in this case is that, at this point, the speculative possibility that the
arbitration agreement may be enforced against the plaintiffs is too uncertain to
present a constitutional ‘case or controversy’ with respect to the enforceability of
that agreement.” As I have concluded that waivability and enforceability are
reciprocally and inextricably linked, the issue of whether plaintiffs have a non-
1 If the right of judicial redress of TILA claims is “not non-waivable” (viz., waivable), then a fortiori under the Consumer Credit Protection Act, some alternative means of dispute resolution must be available to satisfy the Act’s underlying purpose of affording a means for consumers to resolve TILA claims. Generally, arbitration is encouraged to resolve disputes arising under the Acts or provisions of federal law, but I agree with the majority that the issue of enforceability of arbitration agreements should not be reached in this case for lack of standing by plaintiffs.
28 waivable right to judicial redress is not ripe for adjudication and must await their
standing to litigate the enforceability issue, viz., if and when the creditor invokes
the arbitration provision.