USCA4 Appeal: 23-2083 Doc: 72 Filed: 01/27/2025 Pg: 1 of 17
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-2083
PABLO ESPIN; NICHOLAS PADAO; JEREMY BELL; KEITH TAYLOR,
Plaintiffs - Appellees,
v.
CITIBANK, N.A.,
Defendant - Appellant.
-----------------------------------------------
AMERICAN BANKERS ASSOCIATION; CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; AMERICAN FINANCIAL SERVICES ASSOCIATION,
Amici Supporting Appellant,
and
ENLISTED ASSOCIATION OF THE NATIONAL GUARD OF THE UNITED STATES; MILITARY OFFICERS ASSOCIATION OF AMERICA; RESERVE ORGANIZATION OF AMERICA; UNITED STATES OF AMERICA,
Amici Supporting Appellees.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:22-cv-00383-BO-RN)
Argued: September 26, 2024 Decided: January 27, 2025 USCA4 Appeal: 23-2083 Doc: 72 Filed: 01/27/2025 Pg: 2 of 17
Before NIEMEYER, Circuit Judge, FLOYD, Senior Circuit Judge, and Kenneth D. BELL, United States District Judge for the Western District of North Carolina, sitting by designation.
Reversed and remanded with instructions by published opinion. Judge Niemeyer wrote the opinion, in which Judge Floyd and Judge Bell joined.
ARGUED: Andrew John Pincus, MAYER BROWN LLP, Washington, D.C., for Appellant. Leah Marie Nicholls PUBLIC JUSTICE, Washington, D.C., for Appellees. Christopher Chen-Hsin Wang, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus United States. ON BRIEF: Lucia Nale, Chicago, Illinois, Archis A. Parasharami, Kevin S. Ranlett, MAYER BROWN LLP, Washington, D.C., for Appellant. Hannah Kieschnick, PUBLIC JUSTICE, Oakland, California; Knoll D. Lowney, Claire E. Tonry, SMITH & LOWNEY, PLLC, Seattle, Washington, for Appellees. Jennifer B. Dickey, Jonathan D. Urick, UNITED STATES CHAMBER LITIGATION CENTER, Washington, D.C.; Philip Bohi, AMERICAN FINANCIAL SERVICES ASSOCIATION, Washington, D.C.; Kathryn M. Barber, Richmond, Virginia, Jonathan Y. Ellis, MCGUIREWOODS LLP, Washington, D.C.; Thomas Pinder, Andrew Doersam, AMERICAN BANKERS ASSOCIATION, Washington, D.C., for Amici The Chamber of Commerce of the United States of America, American Financial Services Association, and American Bankers Association. Gregory Y. Porter, Samantha McNichols, Anne Bloom, BAILEY & GLASSER, LLP, Washington, D.C., for Amici The Enlisted Association of the National Guard of the United States, the Military Officers Association of America, and the Reserve Organization of America. Kristen Clarke, Assistant Attorney General, Sydney A.R. Foster, Appellate Section, Civil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Seth Frotman, General Counsel, Steven Y. Bressler, Deputy General Counsel, Kristin Bateman, Assistant General Counsel, Andrea Matthews, Senior Counsel, CONSUMER FINANCIAL PROTECTION BUREAU, Washington, D.C., for Amicus United States.
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NIEMEYER, Circuit Judge:
In connection with their credit card accounts with Citibank, N.A, the plaintiffs, who
were members of the military, commenced this class action against Citibank for violations
of, among other things, the Servicemembers Civil Relief Act (“SCRA”), 50 U.S.C. § 3901
et seq. The terms and conditions of their credit cards included agreements to arbitrate “any
claim, dispute, or controversy,” but only “on an individual (non-class, non-representative)
basis.” The question here is whether the SCRA prohibits enforcement of these arbitration
agreements under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq.
When the plaintiffs left active-duty military service, they had accrued large balances
on their credit cards. Citibank, as the issuer of the plaintiffs’ credit cards, had generally
charged reduced or no interest on the plaintiffs’ accounts while the plaintiffs were on active
duty, as required by the SCRA, 50 U.S.C. § 3937. But when the plaintiffs left active duty,
Citibank began charging them its standard civilian interest rates and fees on the outstanding
balances, which the plaintiffs claim violated the SCRA. In their class action complaint,
they alleged, among other claims, that Citibank violated the SCRA and the Military
Lending Act (“MLA”), 10 U.S.C. § 987, and that it breached their contracts.
Based on the parties’ agreement to arbitrate their claims, Citibank filed a motion to
compel arbitration and to stay the action. Relying on the SCRA, which provides various
special protections for active-duty military members, the district court denied Citibank’s
motion, concluding that Congress intended to preclude enforcement of agreements to
arbitrate claims under the SCRA, which expressly allows for class actions,
“notwithstanding any previous agreement to the contrary.” 50 U.S.C. § 4042(a)(3). The
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court explained that, “[w]hile the SCRA is silent as to arbitration specifically, it was
nonetheless amended to codify the unwaivable right of servicemembers to bring and
participate in class actions,” based on the clause stating “notwithstanding any previous
agreement to the contrary.” Accordingly, the court held that Congress demonstrated a clear
intention to displace the provisions of the FAA, which provides for the enforcement of
arbitration agreements.
On appeal, Citibank contends that there is no clear and explicit language in the
SCRA from which to conclude that Congress intended to override the applicability of the
FAA. Accordingly, it argues that the district court should have compelled arbitration of
the plaintiffs’ SCRA claim under the FAA, as well as all of the other claims alleged by the
plaintiffs. Therefore, it urges us to order arbitration for the entire case.
We agree generally with Citibank and therefore reverse the district court’s
judgment. We remand with instructions to compel arbitration according to the parties’
credit card agreements with respect to all claims except those brought under the MLA,
which require further assessment by the district court.
I
Pablo Espin, a North Carolina resident, served in the military, including
deployments to Afghanistan and Qatar. In 2014, before his active duty, Citibank issued
Espin a credit card together with its terms and conditions, which was replaced in 2016 with
a new card and similar terms and conditions. When Espin left the military in 2022, he had
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accrued a substantial balance on his credit card, and Citibank began to charge him its
standard civilian interest rates and fees on that balance.
Nicholas Padao, an Illinois resident, was deployed to Iraq from 2018 to 2019. In
2011, American Express issued Padao a credit card, which Citibank acquired in 2016.
While in the military, Padao requested benefits under the SCRA from Citibank, but he did
not ultimately receive them as he “could not jump through [the SCRA’s] hoops,” which he
contends were troublesome and unnecessary. Therefore, he continued to pay interest and
fees while on active duty as generally required by his credit card agreement.
Jeremy Bell, a Georgia resident, also served in the military. In 2014, before serving
on active duty, Citibank issued him a credit card together with its terms and conditions.
When Bell left active duty, he had accrued a balance on his credit card account of over
$10,000, on which Citibank then began to charge him its standard civilian interest rates
and fees.
Keith Taylor, whose residence is not alleged, served in the military and was
deployed to Iraq and Afghanistan. In 2013, before his active duty, Citibank issued Taylor
a credit card together with its terms and conditions. Taylor accrued a balance of over
$5,000 on his credit card account, and since leaving active duty, Citibank has charged him
standard civilian interest rates and fees on his balance.
The plaintiffs claimed generally that although Citibank charged them interest of 6%
or less on the balances they incurred on their Citibank credit cards while on active duty, as
required by the SCRA, after they left active duty, Citibank began to charge them the much
higher standard civilian interest rates and fees on those balances. They claimed that the
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resumption of civilian interest rates was a “veteran penalty” that was not authorized by the
SCRA. They also claimed that they were prejudiced by poor administration of their
accounts, improper calculations, and notices that were not “clear and conspicuous.”
The terms and conditions for the plaintiffs’ credit card accounts with Citibank
included an arbitration agreement that was substantially the same for each plaintiff. It
provided, “You [the cardholder] or we [Citibank] may arbitrate any claim, dispute or
controversy between you and us arising out of or related to your Account, a previous related
Account or our relationship (called ‘Claims’).” The agreement also limited the scope of
arbitration in several respects, including the prohibition of class arbitrations, providing:
Claims brought as part of a class action, private attorney general or other representative action can be arbitrated only on an individual basis. The arbitrator has no authority to arbitrate any claim on a class or representative basis and may award relief only on an individual basis.
The arbitration agreement included a severability clause, which provided in relevant part,
“If any part of this arbitration provision is deemed invalid or unenforceable, the other terms
shall remain in force, except that there can be no arbitration of a class or representative
Claim.”
In September 2022, the plaintiffs commenced this class action against Citibank
alleging, in their amended complaint, that Citibank violated the SCRA; the MLA; the Truth
in Lending Act, 15 U.S.C. § 1637(b); and the Credit CARD Act of 2009, 15 U.S.C.
§ 1666i-1. They also alleged claims under state law for breach of contract, breach of
implied covenant of good faith and fair dealing, and breach of fiduciary duty or special
trust. They purported to represent a class that they defined to include:
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All persons who requested and/or received reduced interest and/or fee benefits from Citibank on an interest-bearing obligation because of an obligor’s military service, but excluding persons who executed a release of the rights claimed in this action.
Citibank filed a motion under the FAA to compel arbitration pursuant to the terms
of the plaintiffs’ credit card agreements and to stay the court action. The district court
denied the motion, holding that the SCRA authorizes plaintiffs to file their action in federal
court as a class action even if they had earlier agreed to arbitration. It therefore held that
the SCRA overrode the plaintiffs’ preexisting arbitration agreements that waived class
proceedings. Specifically, the court relied on the language in the SCRA that authorizes
servicemembers to bring class actions under the Federal Rules of Civil Procedure,
“notwithstanding any previous agreement to the contrary.” 50 U.S.C. § 4042(a)(3). Thus,
the court held,
By providing servicemembers with an unwaivable right to participate in a class action and providing that those actions may be filed in accordance with the Federal Rules of Civil Procedure, which are generally not fully applicable in arbitration proceedings, Congress has evinced its intent to proscribe waivers of the right to pursue relief as a class in federal court.
It concluded therefore that it did not have to consider application of the FAA, as Congress
“evinced an intention to preclude a waiver of judicial remedies for the statutory rights at
issue.” (Cleaned up). Because the court found that the SCRA authorized the plaintiffs to
proceed in federal court despite an agreement to arbitrate, it “declined to reach any
additional grounds raised by the parties in support of or opposition to the motion to compel
arbitration.” (Cleaned up).
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From the district court’s order dated September 29, 2023, denying Citibank’s
motion to compel arbitration, Citibank filed this interlocutory appeal. See 9 U.S.C. § 16
(authorizing such interlocutory appeals).
II
The SCRA is the product of “a long record of congressional concern for the
domestic affairs of those in military service,” and out of that concern, Congress has relieved
servicemembers of many civil burdens while they serve on active duty, prohibiting, for
example, default judgments, mortgage foreclosures, cancellations of life insurance
contracts, and multiple taxations. Gordon v. Pete’s Auto Serv. of Denbigh, Inc., 637 F.3d
454, 457–58 (4th Cir. 2011). As relevant here, the SCRA also caps interest on military
members’ credit obligations. See 50 U.S.C. § 3937. We have recognized that these
protections are important in enabling military members in active duty to devote themselves
fully to the Nation’s military needs and that we should therefore read the SCRA “with an
eye friendly to those who dropped their affairs to answer their country’s call.” Gordon,
637 F.3d at 458 (ultimately quoting Le Maistre v. Leffers, 333 U.S. 1, 6 (1948)). Thus, as
we assess the appropriate forum for resolving the plaintiffs’ claims, we remain sensitive to
Congress’s solicitude for servicemembers, believing that the substantive benefits created
by Congress can be properly protected either in the district court or the arbitral forum.
In 2019, Congress amended the provision in the SCRA that creates a private right
of action to state, “Any person aggrieved by a violation” of the SCRA “may in a civil action
. . . be a representative party on behalf of members of a class or be a member of a class, in
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accordance with the Federal Rules of Civil Procedure, notwithstanding any previous
agreement to the contrary.” 50 U.S.C. § 4042(a)(3). Focusing on the clause
“notwithstanding any previous agreement to the contrary,” the district court held that the
SCRA foreclosed enforcement of the arbitration agreements that precluded class
proceedings.
Citibank contends that the district court misread and misapplied this provision of
the SCRA to conclude that it “overrides” the arbitration agreements made enforceable
under the FAA. It argues that the SCRA did not, in “express and unequivocal terms,”
prohibit arbitration agreements covered by the FAA, noting that the SCRA does not even
mention arbitration. It therefore urges us to reject the district court’s conclusion that the
SCRA overrode the FAA and thus precluded the enforcement of the plaintiffs’ arbitration
agreements.
The issue presented thus reduces to whether § 4042(a)(3) contains “a clearly
expressed congressional intention” to override the FAA’s instruction to enforce arbitration
agreements. Epic Sys. Corp. v. Lewis, 584 U.S. 497, 510 (2018) (quoting Vimar Seguros
y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 533 (1995)).
The FAA “establishes ‘a liberal federal policy favoring arbitration agreements,’” as
it was adopted “in response to a perception that courts were unduly hostile to arbitration.”
Epic Sys., 584 U.S. at 505–06 (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24 (1983)). Congress therefore has instructed courts to “treat arbitration
agreements as ‘valid, irrevocable, and enforceable.’” Id. at 505 (quoting 9 U.S.C. § 2).
The Supreme Court has concluded that arbitration agreements are enforceable “even when
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the claims at issue are federal statutory claims, unless the FAA’s mandate has been
‘overridden by a contrary congressional command.’” CompuCredit Corp. v. Greenwood,
565 U.S. 95, 98 (2012) (quoting Shearson/Am. Express Inc. v. McMahon, 482 U.S. 220,
226 (1987)).
Over the years, the Supreme Court has never concluded that a federal statute
overrode the enforcement of arbitration agreements under the FAA without explicitly
saying so. See Epic Sys., 584 U.S. at 516 (collecting cases). It has explained that courts
have a “duty to interpret Congress’s statutes as a harmonious whole rather than at war with
one another.” Id. at 502. A party arguing that one statute “displaces” another thus carries
a “heavy burden.” Dep’t of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz, 601 U.S. 42, 63
(2024) (quoting Epic Sys., 584 U.S. at 510). Accordingly, any time that a federal statute is
“silent on whether claims under [it] can proceed in an arbitral forum, the FAA requires the
arbitration agreement to be enforced according to its terms.” CompuCredit Corp., 565 U.S.
at 104 (emphasis added). We have thus observed that the Supreme Court repeatedly “has
rejected state- and court-made exceptions to the FAA’s strong presumption of
arbitrability.” Polk v. Amtrak Nat’l R.R. Passenger Corp., 66 F.4th 500, 506 (4th Cir.
2023) (collecting cases), cert. denied, 144 S. Ct. 553 (2024).
With these governing principles before us, we turn to the question whether the
SCRA clearly manifests a congressional intent to override the enforcement of arbitration
agreements under the FAA, such as the ones in this case.
The SCRA provision at issue provides that “[a]ny person aggrieved” by a violation
of the SCRA “may in a civil action . . . be a representative party on behalf of members of
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a class . . . in accordance with the Federal Rules of Civil Procedure, notwithstanding any
previous agreement to the contrary.” 50 U.S.C. § 4042(a)(3) (emphasis added). We read
that provision to authorize a person with a claim under the SCRA to file a civil action in
federal court and to prosecute that action as a class action under the Federal Rules of Civil
Procedure. We conclude that the clause “notwithstanding any previous agreement to the
contrary” confirms the authority of persons aggrieved to bring federal class actions despite
any previous agreement to the contrary. The language in § 4042(a)(3) thus defines the
action that the person aggrieved may bring, but it does not indicate that that person must
bring a class action or even must file an action in federal court. The provision is permissive,
providing undampened authority to bring a federal class action. More importantly,
however, the provision does not prohibit the person from resolving a SCRA claim in
another forum, such as the arbitral forum. Indeed, the statute does not even mention
arbitration, much less prohibit the enforcement of agreements to arbitrate.
In this case, the plaintiffs did indeed agree to arbitration, a fact that they do not
dispute. And the FAA binds them to that agreement “according to its terms.” CompuCredit
Corp., 565 U.S. at 104.
This conclusion is comfortably consistent with the cases in which the Supreme
Court has concluded that, unless they do so explicitly, federal statutory remedies do not
override agreements to arbitrate. Its CompuCredit decision is particularly relevant and
indeed controlling. See 565 U.S. 95. In that case, the plaintiffs agreed to arbitrate disputes
arising in connection with their credit cards, just as the plaintiffs did in this case. When
the CompuCredit plaintiffs brought a class action against the credit card issuer for violating
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the Credit Repair Organizations Act (“CROA”), 15 U.S.C. § 1679 et seq., the credit card
issuer filed a motion to compel arbitration and enforce the arbitration agreement. Id. at 97.
The district court denied the motion, and the Ninth Circuit affirmed. Id. Both courts relied
on the CROA’s statutory language to conclude that Congress intended the plaintiffs’
CROA claims to be non-arbitrable. Id. The court of appeals reasoned that the CROA gave
plaintiffs the right to sue in federal court and prohibited any agreement waiving that right.
Id. at 99. It relied on language in the CROA that “[a]ny waiver by any consumer of any
protection provided by or any right of the consumer under this subchapter” is “void” and
“may not be enforced.” 15 U.S.C. § 1679f(a). The Supreme Court reversed, holding that
the non-waiver clause could not be read to provide “a ‘congressional command’ that the
FAA shall not apply” and that the arbitration agreements could not be enforced.
CompuCredit, 565 U.S. at 101–02. The Court explained,
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 formulation of the cause of action in this standard fashion were sufficient to establish the “contrary congressional command” overriding the FAA, valid arbitration agreements covering federal causes of action would be rare indeed. But that is not the law.
Id. at 100–01 (emphasis added) (cleaned up). It concluded, “Because the CROA is silent
on whether claims under the Act can proceed in an arbitral forum, the FAA requires the
arbitration agreement to be enforced according to its terms.” Id. at 104 (emphasis added).
Likewise, in this case, because the SCRA is silent on whether claims can proceed
in an arbitral forum, the FAA requires that the plaintiffs’ arbitration agreements be
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enforced according to their terms, which include a term that arbitration be conducted on an
individual basis.
Emphasizing that silence is not enough to convey Congress’s intent, the Court has
pointed out that Congress knows how to override arbitration. The CompuCredit Court
provided examples of explicit language by which Congress did indeed override the
enforcement of arbitration agreements under the FAA. See CompuCredit, 565 U.S. at 103–
04. Thus, for example, in the Ending Forced Arbitration of Sexual Assault and Sexual
Harassment Act of 2021, Congress made clear that a “predispute joint-action waiver,”
“whether or not part of a predispute arbitration agreement,” was unenforceable. 9 U.S.C.
§ 401(2) (emphasis added). Similar language, however, is not included in the SCRA; it
remains silent on the point.
Moreover, the legislative history of the SCRA confirms that Congress never
intended to prohibit arbitration. While legislative history is not the law, it nonetheless
provides further evidence of Congress’s intent not to displace the FAA by prohibiting
arbitration. The House-adopted version of the 2020 National Defense Authorization Act
included a provision that would have prohibited arbitration of SCRA claims without mutual
consent. See National Defense Authorization Act for Fiscal Year 2020, S. 1790, 116th
Cong. § 550H (engrossed House amendment, Sept. 17, 2019) (“[W]henever a contract with
a servicemember . . . provides for the use of arbitration to resolve a controversy subject to
a provision of this Act . . . , arbitration may be used to settle such controversy only if, after
such controversy arises, all parties to such controversy consent in writing to use arbitration
to settle such controversy”). But that provision was never enacted. Despite being
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introduced again in 2021, the provision again failed. Congress’s failure to enact this
provision in both 2019 and 2021 signals an understanding that the amendment it enacted
in 2019 — 50 U.S.C. § 4042(a)(3), which is at issue here — does not prohibit arbitration
provisions with class waivers. Compare National Defense Authorization Act for Fiscal
Year 2022, H.R. 4350, 117th Cong. § 6414 (2021), with National Defense Authorization
Act for Fiscal Year 2022, Pub. L. No. 117-81, 135 Stat. 1541 (2021). And, citing the SCRA
specifically, Congress also commissioned a report in 2019 on “the effects of the common
commercial and governmental practices of including a mandatory arbitration clause in
employment and consumer agreements.” National Defense Authorization Act for Fiscal
Year 2020, Pub. L. No. 116-92, § 550F(a)(2), 133 Stat. 1198, 1384 (2019). Congress’s
commission of that study also signals an understanding that § 4042(a)(3) does not prohibit
arbitration, because the study would be pointless if Congress had already banned arbitration
provisions with class waivers. See U.S. Gov’t Accountability Off., GAO-21-221,
Servicemember Rights: Mandatory Arbitration Clauses Have Affected Some Employment
and Consumer Claims but the Extent of Their Effects Is Unknown 9 (2021),
https://www.gao.gov/assets/gao-21-221.pdf [https://perma.cc/XJ2J-88KR].
The plaintiffs argue that because their arbitration agreements require their claims to
be resolved on an individual, non-class-representative basis, the agreements conflict with
the SCRA’s statutory protection of class actions. But this argument misinterprets the scope
of the SCRA’s protection. The relevant provision authorizes class actions in federal court
“in accordance with the Federal Rules of Civil Procedure, notwithstanding any previous
agreement to the contrary.” 50 U.S.C. § 4042(a)(3). Yet, the arbitration agreements’ terms
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do not purport to address class actions in federal court in accordance with the Federal Rules
of Civil Procedure. Rather, they address the nature and scope of the arbitration
proceedings and the relief that the arbiter can provide.
Accordingly, we reverse the district court’s judgment and remand with instructions
to compel arbitration in accordance with the terms of the parties’ arbitration agreements,
not only with respect to plaintiffs’ SCRA claims but also with respect to all other claims
except those brought under the MLA. We except the MLA because, as explained further
below, it does indeed manifest a congressional intent to override arbitration. See 10 U.S.C.
§ 987(f)(4). And we include the other claims because the plaintiffs’ only ground for
avoiding arbitration of them was based on the SCRA.
III
The MLA prohibits charging consumers in the military an annual interest rate
greater than 36% and requires that particular disclosures be made to those consumers
before they are issued credit. With respect to their MLA claims, the plaintiffs point out
correctly that Congress did indeed explicitly override agreements to arbitrate. The MLA
provides,
Notwithstanding section 2 of title 9 [i.e., the FAA], or any other Federal or State law, rule, or regulation, no agreement to arbitrate any dispute involving the extension of consumer credit shall be enforceable against any covered member or dependent of such a member, or any person who was a covered member or dependent of that member when the agreement was made.
10 U.S.C. § 987(f)(4).
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While Citibank does not challenge this point, it notes that the MLA did not cover
credit card accounts until October 3, 2017. See 10 U.S.C. § 987(h); 32 C.F.R.
§ 232.13(c)(1) (“[U]ntil October 3, 2017, consumer credit does not mean credit extended
in a credit card account”); Limitations on Terms of Consumer Credit Extended to Service
Members and Dependents, 80 Fed. Reg. 43560, 43561 (July 22, 2015). Citibank argues
that it extended consumer credit to the plaintiffs when opening their credit card accounts.
Because that occurred for each plaintiff before October 3, 2017, Citibank contends that the
MLA is not applicable at all, and the prohibition of arbitration is irrelevant. The plaintiffs
respond that Citibank did indeed extend consumer credit to them after October 3, 2017,
because they made purchases on their credit cards after that date. They maintain that
Citibank extended consumer credit to them with each purchase. Accordingly, they argue
that the MLA does indeed apply. The parties thus disagree about the meaning of
“extending consumer credit.” Because of its ruling on the SCRA, the district court never
addressed the MLA question. Accordingly, we remand the plaintiffs’ MLA claims to
enable the court to determine whether the MLA applies to this case and to address any
other issues on those MLA claims that the parties might raise.
* * *
In sum, we reverse the district court’s September 29, 2023 order, and we remand to
the district court with instructions (1) to compel arbitration on all claims except those
brought under the MLA, (2) to determine whether the MLA applies to the plaintiffs’ credit
card accounts, and if necessary (3) to resolve any other issues that the parties might raise
as to those MLA claims.
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IT IS SO ORDERED.