[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 03-16329 February 18, 2005 ________________________ THOMAS K. KAHN CLERK D. C. Docket No. 03-00094 CV-1
CHARLENE JENKINS, And All Other Persons Similarly Situated,
Plaintiff-Appellee,
versus
FIRST AMERICAN CASH ADVANCE OF GEORGIA, LLC, FIRST NATIONAL BANK IN BROOKINGS,
Defendants-Appellants.
________________________
Appeal from the United States District Court for the Southern District of Georgia _________________________
(February 18, 2005)
Before ANDERSON, DUBINA and BLACK, Circuit Judges.
BLACK, Circuit Judge: Plaintiff-Appellee Charlene Jenkins entered into several lending
transactions with Defendants-Appellants First American Cash Advance of
Georgia, LLC (First American) and First National Bank in Brookings (FNB).
Each time Jenkins obtained a loan, she signed an Arbitration Agreement, in which
she agreed to either arbitrate or assert in a small claims tribunal, any claim she had
against Defendants. The Arbitration Agreements also required Jenkins to waive
her right to participate in a class action against Defendants. Nonetheless, Jenkins
filed a class action lawsuit against First American and FNB in state court,
asserting the loan agreements violated Georgia usury laws. After removing the
case to federal court, Defendants moved to stay the court proceedings and compel
arbitration. The district court denied Defendants’ motion, finding the Arbitration
Agreements were unconscionable. Pursuant to 9 U.S.C. § 16(a) (2000),
Defendants appealed the denial of their motion to this Court. We reverse and
remand.
I. BACKGROUND
FNB is a national bank chartered under the National Bank Act, 12 U.S.C.
§ 21–216(d) (2000), with its principal offices in South Dakota. From September
2001 through January 2003, First American, which is located in Georgia, managed
and serviced loans for FNB; however, FNB set the credit scoring criteria for the
2 loans and funded the loans. Customers, like Jenkins, seeking to obtain a loan from
FNB would fill out a loan application at First American’s offices. First American
would electronically transmit the application to FNB for review. FNB would
analyze the loan application and make the final decision on whether or not to
extend credit. If FNB approved the application, it would send a Consumer Loan
Agreement, which included a Promissory Note and an Arbitration Agreement, to
First American. To obtain the loan, the customer would have to sign and date both
the Promissory Note and the Arbitration Agreement.
The type of lending transactions at issue in this case are commonly referred
to as “payday loans.” In general, payday loans are small-dollar, short-term loans
with high interest rates. In such transactions, a borrower receives a modest cash
advance that becomes due for repayment within a short period of time, usually
about 14 days. As security for the loan, the borrower gives a check to the payday
lender in the amount of the cash advance, plus the interest charged by the lender.
The interest rates in payday lending transactions typically range from 20% to 30%
for a two-week advance, which computes to an annual percentage rate of about
520% to 780%. If the borrower has not repaid the lender by the due date, the
3 lender can negotiate the check.1 Alternatively, the borrower may be able to extend
the loan’s due date by paying a fee. This type of extension is referred to as a
renewal or a rollover.
Between June 2002 and September 2002, Jenkins entered into at least eight
payday lending transactions with First American and FNB. Each of these loans
was for less than $500 and had a maturity date between 7 and 14 days. The annual
percentage rates charged by Defendants for these loans ranged from a low of
438% to a high of 938.57%. Most of the loans in question charged an interest rate
of about 469% annually.
Like other FNB customers, Jenkins signed and dated a Promissory Note and
an Arbitration Agreement each time she took out a loan. FNB was explicitly listed
as the lender in the loan documents, and First American was listed as the “loan
marketer/servicer.” Each Promissory Note included a choice-of-law provision,
stating the note was “governed by and construed in accordance with the laws of
South Dakota.” The Arbitration Agreements stipulated that they were governed
by the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1–16 (2000), because the
underlying lending transactions involved interstate commerce. Each Arbitration
1 Borrowers’ repayment checks were made payable to FNB and were deposited in a bank account in FNB’s name.
4 Agreement further stated if a court found the FAA did not apply to a particular
transaction, then the Arbitration Agreement would be governed by the arbitration
law of South Dakota.
The Arbitration Agreements signed by Jenkins provided that “all disputes”
between the parties would be resolved by binding arbitration. They further stated
Jenkins waived her right to participate in a class action against Defendants. Under
the Agreements, Jenkins had the right to choose the arbitrator from a list of
national arbitration organizations, or Jenkins and Defendants could agree on a
local arbitrator. The Agreements required Defendants to advance Jenkins’
arbitration costs if she submitted a written request for them to do so. The
Arbitration Agreements also permitted the arbitrator to award reasonable
attorneys’ fees and expenses to the prevailing party “[i]f allowed by statute or
applicable law.”
The Arbitration Agreements provided only one exception to resolving
disputes in arbitration: “All parties . . . shall retain the right to seek adjudication in
a small claims tribunal for disputes within the scope of such tribunal’s
jurisdiction.” The Agreements did, however, require appeals from the small
claims tribunal to be resolved by arbitration. Therefore, by signing the Arbitration
5 Agreements, Jenkins agreed to resolve any claim she had against Defendants by
either submitting the claim to arbitration or raising it in a small claims tribunal.
The main provisions of the Arbitration Agreements were conspicuously
disclosed in bold-faced capital letters:
You acknowledge and agree that by entering into this Arbitration Provision: (a) YOU ARE WAIVING YOUR RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY DISPUTE ALLEGED AGAINST US OR RELATED THIRD PARTIES; (b) YOU ARE WAIVING YOUR RIGHT TO HAVE A COURT, OTHER THAN A SMALL CLAIMS TRIBUNAL, RESOLVE ANY DISPUTE ALLEGED AGAINST US OR RELATED THIRD PARTIES; and (c) YOU ARE WAIVING YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, AND/OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT FILED AGAINST US AND/OR RELATED THIRD PARTIES.2
In addition, each Promissory Note signed by Jenkins included a clause stating:
Arbitration: You acknowledge that you have read, understand and agree to the terms contained in the Arbitration Agreement you are signing in connection with this Note. By entering into the Arbitration Agreement, you waive certain rights, including the right to go to
2 The class action waiver was also conspicuously disclosed at another point in the Arbitration Agreements, where it was further explained: “THE ARBITRATOR SHALL NOT CONDUCT CLASS ARBITRATION; THAT IS, THE ARBITRATOR SHALL NOT ALLOW YOU TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY FOR OTHERS IN THE ARBITRATION.”
6 court, to have the dispute heard by a jury (except as specifically provided in the Arbitration Agreement), and to participate as part of a class of claimants relating to any dispute with Lender, First American or their affiliates.
Jenkins nevertheless filed a class action lawsuit against First American and
FNB in the Superior Court of Richmond County, Georgia. In her complaint,
Jenkins alleged the payday loan agreements violate Georgia’s usury statutes, Ga.
Code Ann. §§ 7-4-2, 7-4-18 (2004), and the Georgia Racketeer Influenced and
Corrupt Organizations (RICO) Act, Ga. Code Ann. § 16-14-4 (2003).
First American and FNB removed the case to federal district court. In
federal court, First American and FNB sought to enforce the Arbitration
Agreements signed by Jenkins. Defendants moved pursuant to the FAA to stay
the court proceedings and to compel arbitration. Under the FAA, a written
arbitration provision in “a contract evidencing a transaction involving [interstate]
commerce . . . 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
(2000). The FAA explains when a party to such an agreement fails or refuses to
arbitrate, the other party may petition a federal district court for an order to compel
arbitration. Id. § 4.
7 The district court found the payday lending transactions involved interstate
commerce, and, therefore, the FAA applied. The district court, however, denied
Defendants’ motion to compel arbitration, finding the Arbitration Agreements
were unenforceable because they were unconscionable. Defendants filed a motion
to reconsider and to stay the proceedings pending this appeal. The district court
denied the motion for reconsideration and granted the motion to stay the
proceedings. This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
Pursuant to 9 U.S.C. § 16(a) (2000), we have jurisdiction over this appeal.
9 U.S.C. § 16(a) (2000) (authorizing an immediate appeal of any “final decision
with respect to an arbitration”).3 We review de novo the district court’s denial of a
3 In her brief, Jenkins questions whether removal was appropriate in this case and suggests federal jurisdiction does not exist. This argument, however, is without merit. In Beneficial National Bank v. Anderson, 539 U.S. 1, 123 S. Ct. 2058 (2003), the United States Supreme Court held actions for usury against a national bank can be removed to federal court because the National Bank Act, 12 U.S.C. §§ 85–86 (2000), preempts state usury laws in such situations. Id. at 11, 123 S. Ct. at 2064. The Court explained: In actions against national banks for usury, [§§ 85 and 86] supercede both the substantive and the remedial provisions of state usury laws and create a federal remedy for overcharges that is exclusive, even when a state complainant, as here, relies entirely on state law. Because §§ 85 and 86 provide the exclusive cause of action for such claims, there is, in short, no such thing as a state-law claim of usury against a national bank. Id., 123 S. Ct. at 2064. Jenkins attempts to evade the Supreme Court’s holding in Anderson by contending her usury claims were brought primarily against First American, not FNB. She argues FNB was only included in her complaint because she was seeking a declaratory judgment finding FNB to be a “sham” lender. Her complaint, however, expressly named both First American and FNB as Defendants and charged them both with usury. The complaint
8 motion to compel arbitration. Musnick v. King Motor Co. of Fort Lauderdale, 325
F.3d 1255, 1257 (11th Cir. 2003).
III. DISCUSSION
The parties raise, inter alia, the following three issues on appeal: (1)
whether the district court erred in applying the FAA to the loan agreements in this
case; (2) whether the district court erred in finding the Arbitration Agreements are
unconscionable; and (3) whether the Arbitration Agreements are unenforceable
because the underlying payday loans are illegal and void ab initio under Georgia
law. We address each of these issues in turn.
A. Applicability of the FAA
The purpose of the FAA “was to reverse the longstanding judicial hostility
to arbitration agreements that had existed at English common law and had been
adopted by American courts, and to place arbitration agreements upon the same
footing as other contracts.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20,
24, 111 S. Ct. 1647, 1651 (1991). The FAA’s provisions “manifest a ‘liberal
federal policy favoring arbitration agreements.’” Id. at 25, 111 S. Ct. at 1651
consistently used the plural form of “Defendants.” She asserted that “Defendants violated” Georgia usury laws, and that she was “entitled to recover from Defendants all interest charges paid by [her].” Because Jenkins charged a national bank with violating Georgia usury laws, removal was proper.
9 (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24,
103 S. Ct. 927, 941 (1983)). The Supreme Court has “rejected generalized attacks
on arbitration that rest on ‘suspicion of arbitration as a method of weakening the
protections afforded in the substantive law to would-be complainants.’” Green
Tree Fin. Corp. v. Randolph, 531 U.S. 79, 89–90, 121 S. Ct. 513, 521 (2000)
(quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 481,
109 S. Ct. 1917, 1920 (1989)).
The FAA makes enforceable a written arbitration provision in “a contract
evidencing a transaction involving commerce.” 9 U.S.C. § 2 (2000). The FAA
defines “commerce” as “commerce among the several States.” Id. § 1. The
Supreme Court has “interpreted the term ‘involving commerce’ in the FAA as the
functional equivalent of the more familiar term ‘affecting commerce’—words of
art that ordinarily signal the broadest permissible exercise of Congress’ Commerce
Clause power.” Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56, 123 S. Ct. 2037,
2040 (2003) (citation omitted). The Court has further explained the phrase
“evidencing a transaction” means only that the transaction turns out, in fact, to
have involved interstate commerce, “even if the parties did not contemplate an
interstate commerce connection.” Allied-Bruce Terminix Cos., Inc. v. Dobson,
513 U.S. 265, 277–81, 115 S. Ct. 834, 841–43 (1995).
10 In this case, the district court found the FAA applied because the underlying
payday lending transactions involved interstate commerce. On appeal, Jenkins
challenges this part of the district court’s decision, contending there has been no
showing that the loan agreements involved interstate commerce. Jenkins’
contention is without merit.
The FAA’s broad interstate commerce requirement is satisfied in this case.
The lending transactions were between Jenkins, a Georgia resident, and FNB, a
national bank located in South Dakota.4 Loan applications were electronically
transmitted to South Dakota, where FNB decided whether to approve or refuse the
loans. If the loans were approved, FNB sent the borrowers preprinted Consumer
Loan Agreements, each including an Arbitration Agreement. The district court
explained: “First National Bank’s role in analyzing loan applications, sending the
approved loan applications, funding the loans, and accepting the loan proceeds
constitutes sufficient interstate commerce to satisfy the definition of ‘involving
commerce’ within the meaning of 9 U.S.C. §§ 1, 2.” Jenkins v. First Am. Cash
4 The district court correctly rejected Jenkins’ assertion that First American, a Georgia entity, was the “true” lender. FNB was expressly listed as the lender in the loan documents, while First American was listed merely as the “loan marketer/servicer.” FNB approved the loans, funded the loans, and set the credit scoring criteria for the loans. Also, repayment checks were made out to FNB and deposited in a bank account in FNB’s name.
11 Advance of Georgia, 313 F. Supp. 2d 1370, 1373 (S.D. Ga. 2003) (citation
omitted).
We agree with the district court. Here, the parties not only contemplated an
interstate commerce connection when they entered into the lending agreements,5
but the payday lending transactions did, in fact, turn out to involve interstate
commerce. The district court did not err in applying the FAA to the loan
agreements signed by Jenkins.6
B. Unconscionability
Under the FAA, a written arbitration provision is “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 (2000) (emphasis added). This language has been
interpreted to mean “[t]he FAA allows state law to invalidate an arbitration
agreement, provided the law at issue governs contracts generally and not
arbitration agreements specifically.” Bess v. Check Express, 294 F.3d 1298, 1306
5 The Arbitration Agreements expressly stipulated the lending transactions between Jenkins and Defendants involved interstate commerce and were governed by the FAA. 6 We also reject Jenkins’ argument that the FAA does not apply because the Georgia legislature recently made a general pronouncement that payday lending does not involve interstate commerce. See Ga. Code Ann. § 16-17-1(d) (2003 & Supp. 2004) (effective May 2004). Courts determine whether or not interstate commerce exists under the FAA on a case-by- case analysis by examining whether the transaction in question turns out, in fact, to have involved interstate commerce. See Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265, 277–81, 115 S. Ct. 834, 841–43 (1995).
12 (11th Cir. 2002) (citing Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 686,
116 S. Ct. 1652, 1656 (1996)). The Supreme Court has recognized that “generally
applicable contract defenses, such as fraud, duress, or unconscionability, may be
applied to invalidate arbitration agreements.” Doctors Assocs., 517 U.S. at 687,
116 S. Ct. at 1656. In this case, Appellant argues, and the district court found, the
Arbitration Agreements signed by Jenkins are unconscionable.
In deciding claims of unconscionability, Georgia courts generally consider a
variety of factors, which have been divided into procedural and substantive
elements.7 NEC Techs., Inc. v. Nelson, 478 S.E.2d 769, 771–72 (Ga. 1996).
“Procedural unconscionability addresses the process of making the contract, while
substantive unconscionability looks to the contractual terms themselves.” Id. at
771. Factors relevant to the procedural unconscionability inquiry include the
bargaining power of the parties, “the conspicuousness and comprehensibility of
the contract language, the oppressiveness of the terms, and the presence or
7 In determining whether the Arbitration Agreements were unconscionable, the district court applied Georgia unconscionability law. The choice-of-law provisions in the Arbitration Agreements stipulated that the FAA governs those Agreements, and that if a court found the FAA did not apply to a particular transaction, then South Dakota arbitration law would govern. Moreover, the choice-of-law provisions within the Promissory Notes provided that those Notes would be controlled by the laws of South Dakota. As South Dakota’s unconscionability laws mirror Georgia’s laws, the outcome of the unconscionability issue would be the same regardless of which state law applied. See Johnson v. John Deere Co., 306 N.W.2d 231, 237–38 (S.D. 1981) (applying the same two-part analysis of procedural and substantive unconscionability).
13 absence of a meaningful choice.” Id. (citations omitted). As for substantive
unconscionability, courts consider “the commercial reasonableness of the contract
terms, the purpose and effect of the terms, the allocation of the risks between the
parties, and similar public policy concerns.” Id. at 772 (citations omitted).
On the procedural side of this analysis, the district court found that
Defendants had superior bargaining power and that the Arbitration Agreements
constituted adhesion contracts. On the substantive side of the analysis, the court
provided two reasons for finding the terms of the Agreements to be
unconscionable: (1) precluding class action relief was unfair because a class action
is the most effective method for borrowers with small claims to obtain relief; and
(2) the Arbitration Agreements lacked mutuality of obligation because the
provision providing access to a small claims tribunal would only benefit the
lender, FNB.
The district court explained that considered individually, these factors might
not be enough to support a finding of unconscionability, but that considered
together, they rendered the Arbitration Agreements unconscionable. We disagree.
1. Bargaining Power/Adhesion
The district court found the Arbitration Agreements were “procedurally
oppressive” because the “type of consumer loans that Defendants offer
14 unquestionably places the consumer at a severe bargaining disadvantage.”
Jenkins, 313 F. Supp. 2d at 1374. The court stated “[c]onsumers who are willing
to borrow money at such [high] interest rates would foreseeably sign anything.”
Id. The court further explained consumers were unable to negotiate the terms of
the preprinted contracts. After a customer, like Jenkins, filled out a loan
application at First American’s offices, the application would be electronically
transmitted to FNB. FNB would then send a completed Consumer Loan
Agreement, including an Arbitration Agreement, back to First American for the
borrower to sign. The court found the contracts to be adhesive because the
borrower was unable to discuss or negotiate “the amount and conditions of the
preprinted agreement.” Id.
Before considering the merits of the adhesion argument, we must first
decide whether this issue is one for an arbitrator or a court to resolve. The FAA
“provides a remedy to a party seeking to compel compliance with an arbitration
agreement.” Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403,
87 S. Ct. 1801, 1806 (1967). Such a party can move the district court for an order
compelling arbitration. 9 U.S.C. § 4 (2000). Section four of the FAA instructs the
federal court to grant the motion and order arbitration once it is satisfied “that the
making of the agreement for arbitration . . . is not in issue.” Id. If, however, the
15 making of the arbitration agreement is in question, then the federal court may first
adjudicate that issue. Id.
In interpreting this section of the FAA, the Supreme Court has distinguished
between claims that challenge the contract generally and claims that challenge the
arbitration provision itself. See Prima Paint Corp., 388 U.S. at 403–04, 87 S. Ct.
at 1806. In Prima Paint, the plaintiff sought to rescind a contract on the grounds
that the contract was fraudulently induced. Id. at 398, 87 S. Ct. at 1803. The
defendant, on the other hand, sought to invoke the contract’s arbitration clause and
moved to stay the action pending arbitration. Id. at 398–99, 87 S. Ct. at 1803.
The Supreme Court explained:
[I]f the claim is fraud in the inducement of the arbitration clause itself—an issue which goes to the “making” of the agreement to arbitrate—the federal court may proceed to adjudicate it. But the statutory language [of the FAA] does not permit the federal court to consider claims of fraud in the inducement of the contract generally.
Id. at 403–04, 87 S. Ct. at 1806. The Court concluded that because the fraudulent
inducement claim related to the underlying contract generally, and not to the
arbitration clause specifically, it was a matter to be resolved by the arbitrator, not
the federal court. Id. at 406, 87 S. Ct. at 1807.
This Court has applied the Prima Paint rule to claims of adhesion and
unconscionability. We have held that “[i]f . . . [the party’s] claims of adhesion,
16 unconscionability, . . . and lack of mutuality of obligation pertain to the contract as
a whole, and not to the arbitration provision alone, then these issues should be
resolved in arbitration.” Benoay v. Prudential-Bache Secs., Inc., 805 F.2d 1437,
1441 (11th Cir. 1986) (citations omitted).
Here, the adhesion arguments relied on by the district court pertain to the
underlying Consumer Loan Agreements as a whole, and not to the Arbitration
Agreements specifically. As explained above, the adhesion arguments were
(1) that the consumers lacked bargaining power because these “type[s] of
consumer loans . . . would only appeal to extremely desperate consumers,” and
(2) that the consumers were allegedly unable to negotiate the terms and conditions
of the preprinted agreements. Jenkins, 313 F. Supp. 2d at 1374. These claims do
not relate to the Arbitration Agreements themselves; rather, they allege the
Consumer Loan Agreements, in general, were adhesive. Under the Supreme
Court’s decision in Prima Paint and our decision in Benoay, the FAA does not
permit a federal court to consider claims alleging the contract as a whole was
adhesive. We conclude, therefore, Jenkins’ adhesion claims are for an arbitrator,
not a federal court, to decide.
17 2. Class Action Waiver
The district court found the Arbitration Agreements were substantively
unconscionable because they preclude “borrower[s] from either instigating or
participating in a class action suit.” Jenkins, 313 F. Supp. 2d at 1375. The court
explained “[a] class action is the only way that borrowers with claims as small as
the individual loan transactions [at issue in this case] can obtain relief.” Id. The
district court considered the cost of attorney’s fees to be a significant factor in
determining whether the Arbitration Agreements are unconscionable. Id. The
court speculated that a borrower who attempts to pursue her claim individually
based on one loan transaction would “probably” be unable to obtain a lawyer on a
contingent fee basis. Id. The district court found requiring arbitration and
prohibiting class action “would have the practical effect of providing Defendants
immunity.” Id.
As an initial matter, we note this issue may be decided by a federal court.
The class action waiver was a provision included in each of the Arbitration
Agreements. Unlike the adhesion argument, which applies to the loan contracts
generally, this claim alleges the Arbitration Agreements specifically are
unconscionable because they preclude class action relief. Under section four of
the FAA, a federal court may adjudicate this claim because it applies to the
18 Arbitration Agreements themselves, and thus, it places the making of the
Arbitration Agreements in issue. See 9 U.S.C. § 4 (2000).
We have held, however, that arbitration agreements precluding class action
relief are valid and enforceable. See Randolph v. Green Tree Fin. Corp.-Alabama,
244 F.3d 814, 819 (11th Cir. 2001) (holding “a contractual provision to arbitrate
TILA claims is enforceable even if it precludes a plaintiff from utilizing class
action procedures in vindicating statutory rights under TILA”). Other federal
circuit courts have similarly enforced arbitration agreements despite the fact that
classwide relief was unavailable. See, e.g., Snowden v. Checkpoint Check
Cashing, 290 F.3d 631, 638 (4th Cir. 2002) (rejecting the borrower’s argument
“that the Arbitration Agreement is unenforceable as unconscionable because
without the class action vehicle, she will be unable to maintain her legal
representation given the small amount of her individual damages”); Johnson v.
West Suburban Bank, 225 F.3d 366, 369 (3d Cir. 2000) (holding arbitration
“clauses are effective even though they may render class actions to pursue
statutory claims under the TILA or the EFTA unavailable”); cf. Livingston v.
Assocs. Fin., Inc., 339 F.3d 553, 559 (7th Cir. 2003) (“The Arbitration Agreement
at issue here explicitly precludes the [borrowers] from bringing class claims or
pursuing ‘class action arbitration,’ so we are therefore ‘obliged to enforce the type
19 of arbitration to which these parties agreed, which does not include arbitration on
a class basis.’”) (citations omitted).
In addition, the district court’s contention that consumers would likely be
unable to obtain legal representation without the class action vehicle is unfounded.
The Arbitration Agreements expressly permit Jenkins and other consumers to
recover attorneys’ fees and expenses “[i]f allowed by statute or applicable law.”
Under the Georgia RICO statute, a prevailing plaintiff may be awarded attorney’s
fees. Ga. Code Ann. § 16-14-6(c). Jenkins, therefore, can presumably recover
attorneys’ fees and costs if she prevails in arbitration on her Georgia RICO claim.8
See Snowden, 290 F.3d at 638 (in rejecting an unconscionability argument, the
court concluded the plaintiff could recover attorney fees in arbitration if she
prevailed on her TILA and civil RICO claims).
Georgia courts have explained that by authorizing the recovery of attorneys’
fees, the Georgia RICO statute provides plaintiffs “with effective access to the
judicial process.” Dee v. Sweet, 489 S.E.2d 823, 825 (Ga. 1997). Moreover,
federal circuit courts have recognized that arbitration agreements prohibiting class
action relief do not “necessarily choke off the supply of lawyers willing to pursue
8 Also, Jenkins’ arbitration costs would not be expensive. Under the Arbitration Agreements, Defendants have offered to advance Jenkins’ arbitration expenses, such as filing and administrative fees, if she submits a written request.
20 claims on behalf of debtors.” Johnson, 225 F.3d at 374; see also Snowden, 290
F.3d at 638. These courts explained that when the opportunity to recover
attorneys’ fees is available, lawyers will be willing to represent such debtors in
arbitration. See Snowden, 290 F.3d at 638; Johnson, 225 F.3d at 374.
Thus, precluding class action relief will not have the practical effect of
immunizing First American and FNB. The Arbitration Agreements permit Jenkins
and other consumers to vindicate all of their substantive rights in arbitration. We
conclude, therefore, the inclusion of a class action waiver in the Arbitration
Agreements did not render those Agreements substantively unconscionable.
3. Access to Small Claims Tribunals
The district court’s finding of substantive unconscionability was also based
on the provision in the Arbitration Agreements permitting either party to seek
adjudication in a small claims tribunal. The court found the Arbitration
Agreements lacked mutuality of obligation because this provision only benefits
Defendants.
On its face, this provision does not favor one party over the other; rather, it
provides that “[a]ll parties . . . shall retain the right to seek adjudication in a small
claims tribunal for disputes within the scope of such tribunal’s jurisdiction.” The
district court, however, found a borrower’s ability to pursue an action in a small
21 claims tribunal to be illusory. The court speculated that it is “hard to conceive of a
claim by the payday lender that cannot be sought in a small claims tribunal,” but it
is “easy to envision a plethora of claims a consumer might seek which are
inaccessible in [such a tribunal] due to its limited jurisdiction.” Jenkins, 313 F.
Supp. 2d at 1375. Additionally, the district court explained this provision favored
Defendants because the judgments of small claims tribunals were appealable to an
arbitrator.9
Under Georgia law, if at the time the agreement is to be enforced, “the
contract contains mutual obligations equally binding on both parties to the
contract, then the contract is not unilateral and unenforceable.” Jones v. Quigley,
315 S.E.2d 59, 60 (Ga. Ct. App. 1984). In this case, both Jenkins and Defendants
had equal access to small claims tribunals. The only restriction, which applied
equally to both parties, was that the claims sought in such a tribunal must fall
within the tribunal’s limited jurisdiction.
In stating it could “envision a plethora of claims” that consumers would not
be able to raise in small claims courts, the district court apparently overlooked the
many claims that consumers could bring in such tribunals. For example, if FNB
9 We note this claim alleged the Arbitration Agreements themselves were unconscionable due to a lack of mutuality of obligation; therefore, the district court had the authority, under the FAA, to adjudicate the issue. See 9 U.S.C. § 4 (2000).
22 charged a consumer an interest rate higher than that agreed upon in the contract,
the consumer could, in most instances, pursue an action for the difference in a
small claims court. Additionally, if FNB mistakenly imposed late charges on a
consumer, he could presumably seek recovery in a small claims tribunal. Thus, we
disagree with the district court’s unsupported speculation that the consumers’
ability to pursue an action in a small claims tribunal is illusory.
We note, moreover, that the provision providing access to small claims
tribunals was intended to benefit, not injure, consumers. The American
Arbitration Association (AAA) has developed a set of principles, known as the
Consumer Due Process Protocol, to protect consumers and ensure they are treated
equitably in arbitration. See generally American Arbitration Association,
Consumer Due Process Protocol, (Apr. 17, 1998), http://www.adr.org/protocols.
Principle 5 of this Protocol expressly states that consumer arbitration agreements,
like those at issue here, should offer all parties the option of seeking adjudication
in a small claims tribunal. Id. The Comment to Principle 5 explains “access to
small claims tribunals is an important right of Consumers” because it provides “a
convenient, less formal, and relatively expeditious judicial forum for handling . . .
disputes” involving small amounts of money. Id. By including a provision that
offers access to such tribunals, the Arbitration Agreements at issue here merely
23 complied with the AAA’s Consumer Due Process Protocol. Such compliance
further undermines the district court’s finding that the small-claims provision in
the Arbitration Agreements only benefitted the payday lender. Cf. Green Tree
Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 94–95, 121 S. Ct. 513, 524 (2000)
(Ginsburg, J., concurring) (explaining the drafter of the contract could have relied
on the AAA’s Consumer Arbitration Rules to ensure the claims are arbitrated
under a “consumer-protective fee arrangement”).
We further note the district court did not provide support for its assertion
that the small-claims provision favors Defendants because the judgments from
small claims courts are appealable to an arbitrator. This aspect of the small-claims
provision is equally binding on Jenkins and Defendants, as both parties are
obligated to appeal such judgments to an arbitrator. Moreover, the arbitral forum
does not unfairly favor Defendants. Jenkins, who has raised claims under Georgia
usury laws and the Georgia RICO statute, is capable of vindicating all of her
substantive rights in arbitration. In Bess v. Check Express, 294 F.3d 1298 (11th
Cir. 2002), we held the terms of the arbitration agreement at issue in that case did
not “grossly favor” the payday lender because, among other reasons, “nothing in
the agreement prevent[ed] the arbitrator from awarding ‘the full panoply of relief’
available under [the applicable] law.” Id. at 1308; see also Green Tree Fin. Corp.,
24 531 U.S. at 90, 121 S. Ct. at 521 (holding “even claims arising under a statute
designed to further important social policies may be arbitrated because so long as
the prospective litigant effectively may vindicate [his or her] statutory cause of
action in the arbitral forum, the statute serves its functions”) (alteration in original)
(citation and internal quotation marks omitted). The same is true in this case, as
the Arbitration Agreements do not limit Jenkins’ right to relief.10
We conclude the small-claims provision is mutual and bilateral—it applies
equally to both parties. Jenkins has not demonstrated that access to small claims
tribunals unfairly benefits Defendants. The Arbitration Agreements, therefore, do
not lack mutuality of obligation.
In summary, we disagree with the district court’s reasons for finding the
Arbitration Agreements unconscionable. The district court did not have the
authority to decide the adhesion claim because that issue related to the loan
agreements generally and, therefore, should have been submitted to an arbitrator.
Although the district court did have the authority to adjudicate the arguments
relating to the class action waiver and the small-claims provision, those
10 We note the Arbitration Agreements also permit Jenkins to either (1) choose the arbitrator from a list of national arbitration organizations, or (2) come to an agreement with Defendants in selecting a local arbitrator.
25 contractual conditions, for the reasons explained above, did not render the
Arbitration Agreements unconscionable.
C. Legality of the Underlying Transactions
Jenkins raises an alternative argument for affirming the denial of
Defendants’ motion to compel arbitration. Jenkins argues Defendants’ motion
should not be granted because the underlying payday loan contracts are illegal and
void ab initio under Georgia law. See Ga. Code Ann. § 16-17-1 (2003 & Supp.
2004) (effective May 2004). Because the loan contracts are allegedly void,
Jenkins contends “there is nothing to arbitrate.”
We have, however, previously considered and rejected such an argument.
Bess, 294 F.3d at 1304–06. In Bess, a class action lawsuit arose out of “check
advances” or “deferred payment transactions” between the plaintiffs and
defendants. Id. at 1300. A deferred payment transaction is essentially the same as
a payday lending transaction. See id. at 1300–01. One of the named plaintiffs in
Bess, Luna Clifton Colburn, signed an arbitration agreement in connection with
the deferred payment transactions. The defendants sought to enforce this
agreement and compel arbitration. Like Jenkins’ argument in this case, Colburn
argued the arbitration agreements were unenforceable because the underlying
deferred payment transactions were void as illegal under Alabama law. Colburn
26 alleged the loans charged usurious rates of interest, and the collection of the loans
violated the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §
1961–1968 (2000).
In rejecting Colburn’s argument, we applied the Prima Paint rule. Bess,
294 F.3d at 1304–05. We explained the “allegations of illegality go to the
deferred payment transactions generally, and not to the arbitration agreements
specifically.” Id. at 1305. Therefore, an arbitrator, and not a federal court, should
determine whether the underlying transactions are illegal and void. Id. at 1306.
In Bess, we also distinguished our holding from our earlier decision in
Chastain v. Robinson-Humphrey Co., Inc., 957 F.2d 851 (11th Cir. 1992).11 In
Chastain, we considered an “unusual” set of facts, in which the plaintiff never
personally signed the customer agreements at issue. Id. at 852–53. Without such
a signature, the plaintiff argued she never assented to the arbitration clauses found
within the customer agreements. Id. at 853. We explained:
Under normal circumstances, an arbitration provision within a contract admittedly signed by the contractual parties is sufficient to require the district court to send any controversies to arbitration. Under such circumstances, the parties have at least presumptively
11 Jenkins’ argument relies on a Georgia case, Stewart v. Favors, 590 S.E.2d 186 (Ga. Ct. App. 2003), and a Florida case, Cardegna v. Buckeye Check Cashing, Inc., — So. 2d — (Fla. 2005), both of which cite this Court’s decision in Chastain.
27 agreed to arbitrate any disputes, including those disputes about the validity of the contract in general.
Id. at 854 (citations omitted). “Where the party seeking to avoid arbitration
admittedly did not sign any contract requiring arbitration, however, ‘there is no
presumptively valid general contract which would trigger the district court’s duty
to compel arbitration pursuant to the [FAA].’” Bess, 294 F.3d at 1305 (quoting
Chastain, 957 F.2d at 854) (alteration in original).
In Chastain, the plaintiff alleged “that a contract never existed at all”
because she never signed and assented to the contracts in question. 957 F.2d at
855. She challenged “the very existence of any agreement, including the existence
of an agreement to arbitrate.” Id. at 854. In that situation, we held the plaintiff
placed the making of the arbitration agreement in question, thereby permitting the
district court to adjudicate the issue. Id. at 855. We concluded that before
determining whether arbitration should be compelled under the FAA, the district
court can decide whether the parties assented to the contracts containing the
arbitration clauses. Id. at 855–56; see also Bess, 294 F.3d at 1305.
The plaintiff in Bess, Colburn, attempted to compare his void ab initio
allegation to the contentions in Chastain that a contract never existed. 294 F.3d at
1305. We rejected this argument, explaining Colburn’s reliance on Chastain was
28 misplaced because Chastain focused primarily “on the question of assent.” Id.
We explained:
Colburn urges that the transactions in this case are void, not because he failed to assent to the essential terms of the contracts, but because those terms allegedly render the contracts illegal under Alabama law. At bottom, Colburn challenges the content of the contracts, not their existence. Indeed, unlike the contracts in Chastain, both the arbitration agreement and the deferred payment contracts were signed by Colburn, and there is no question about Colburn’s assent to those contracts. Thus, this case falls within the “normal circumstances” described in Chastain, where the parties have signed a presumptively valid agreement to arbitrate any disputes, including those about the validity of the underlying transaction.
Id. at 1305–06. Because assent to the contracts was not in question, we applied
Prima Paint and held that whether or not the deferred payment transactions were
usurious and void was an issue to be decided by an arbitrator, not a federal court.
Id. at 1306; see also John B. Goodman Ltd. P’ship v. THF Constr., 321 F.3d 1094
(11th Cir. 2003) (holding whether or not the underlying construction contracts
were unenforceable under Florida law was a question for the arbitrator to
decide).12
12 Other federal circuit courts have similarly held that allegations claiming high interest loan agreements are void as illegal will not preclude the enforcement of arbitration provisions included in the allegedly illegal contracts. See, e.g., Snowden v. Checkpoint Check Cashing, 290 F.3d 631, 637 (4th Cir. 2002) (“[Plaintiff’s] allegations of usurious rates of interest . . . do not relate specifically to the Arbitration Agreement. Neither do they underlie a claim that [Plaintiff] failed to assent to the terms of the . . . Agreement.”); Burden v. Check Into Cash of Kentucky, LLC, 267 F.3d 483, 489–91 (6th Cir. 2001) (holding plaintiffs’ allegations that the high interest loan agreements were void as illegal was an issue to be decided by an arbitrator).
29 Jenkins’ void ab initio argument is no different from the argument we
dismissed in Bess. Jenkins assented to the payday loan contracts and the
Arbitration Agreements associated with those contracts. It is undisputed that she
signed and dated both a Promissory Note and an Arbitration Agreement each time
she obtained a loan from FNB. Jenkins argues the payday loan contracts are void,
not because she failed to assent to the terms of the contracts, but because those
terms render the contracts usurious and void under Georgia law. Thus, Jenkins
does not challenge the existence of either the payday loan contracts or the
accompanying Arbitration Agreements; rather she challenges the content of the
contracts—i.e., the rates of interest charged in the loan agreements. As we held in
Bess, we conclude Jenkins and Defendants entered into “presumptively valid
agreement[s] to arbitrate any disputes, including those about the validity of the
underlying transaction.” Bess, 294 F.3d at 1306; see also John B. Goodman Ltd.
P’ship, 321 F.3d at 1096. We conclude, therefore, that Jenkins’ void ab initio
argument, which challenges the legality of the payday lending transactions, is an
issue for the arbitrator, not the court, to decide.13
13 We note this issue raised a question of federal law—namely, deciding whether the district court has the authority under the FAA to adjudicate Jenkins’ claim that the payday lending transactions were illegal. See Bess, 294 F.3d at 1306 n.3. In deciding this federal question, we do not pass judgment on any issues of Georgia contract law. See id.
30 IV. CONCLUSION
For the reasons stated above, we conclude the district court erred in finding
the Arbitration Agreements at issue in this case unconscionable and
unenforceable. Moreover, Jenkins’ alternative argument for affirming the district
court—alleging the underlying payday lending transactions are void ab initio
under Georgia law—is an issue for an arbitrator, not the court, to decide.
Accordingly, we reverse the district court’s decision and remand with instructions
to grant Defendants’ motion to compel arbitration.
REVERSED and REMANDED.