CompuCredit Corp. v. Greenwood (10-948)

argument 10-948

CompuCredit Corp. v. Greenwood

Supreme Court of the United States 55 min 4 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the Supreme Court’s stance on statutes that create a right to sue but also include a waiver provision?

John G. Roberts 0:03

We'll hear argument next in Case 10-948, CompuCredit Corporation v. Greenwood. Mr. McConnell.

William A. McConnell 0:10

Mr. Chief Justice, and may it please the Court, this Court has consistently rejected the argument that Federal statutes that both create a right to sue and also borrow a waiver of rights under the statute are sufficiently explicit to override the strong Federal policy in favor of arbitrability expressed in the Federal Arbitration Act. In two of those cases, Gilmer and Payette, the Court construed a statute, the relevant language of which is virtually indistinguishable from that in the Credit Repair Organizations Act that we have before us today. Those cases involve the ADEA. Both the ADEA and CROA, as I'll call it, create a cause of action for aggrieved parties to bring actions for damages. And both statutes explicitly bar waiver of, quote,

William A. McConnell 1:03

any rights under the statute.

Elena Kagan 1:07

Well, that statute didn't have, as this one has, a disclosure requirement that says you have a right to sue.

William A. McConnell 1:13

And that's the sole distinction between the two statutes.

Elena Kagan 1:16

Well, it could be

William A. McConnell 1:16

a meaningful one. So let's talk about it. So first of all, the disclosure statute describes in layman's terms, gives a quick description of of an operative civil liability section which is set out in 1679 and which tells us exactly what Congress had in mind in creating a cause of action. And when you look at the language of the actual operative provision, 1679 , it's almost as if Congress deliberately went out of its way to use language that would not preclude arbitration. That language provides that a person who violates the statute shall be liable to the person's — JUSTICE

Anthony M. Kennedy 2:02

SOTOMAYOR. Suppose it said something different, Mr. McConnell. Suppose that the disclosure provision didn't exist at all, but that instead of that liability provision, you had a provision that simply said any person injured by a violation of this Act will have a right of action or will have a right to sue. under this statute, and then you had the waiver provision that you have in this statute. Is that enough?

William A. McConnell 2:29

Justice Kagan, I think that would be exactly the same, because a cause of action and a right to sue are the same thing. They mean the same thing. And this Court has consistently since Mitsubishi held that just because Congress creates a cause of action, which is a right to sue, does not preclude arbitration.

Unknown 2:47

Mr. McCallum, you started with the notion that The disclosure provision, the statute, is meant to apply to ordinary people, and if an ordinary person not schooled in the law read, you have a right to sue, wouldn't they understand that to mean I have a right to sue in court?

William A. McConnell 3:12

Justice Ginsburg, in the ADEA context, the government itself, the EEOC, since discriminated against workers — a right to sue letter that tells them that they have a right to sue. But this Court has quite twice said that that does not preclude arbitration. And that's because a right to sue is simply a cause of action. It doesn't actually — that doesn't mean that exclusively a right to be in court. It gives you rights which may be vindicated, and there are various ways in which they can be vindicated. And the Federal Arbitration Act provides that the — that this court or that the courts must enforce private contractual agreements that provide for the vindication even of statutory rights through arbitration.

Samuel A. Alito 3:59

Can you imagine any statutory language that would eliminate the right, the ability of the parties to enter into an arbitration agreement other than language that expressly prohibits the waiver of the right to sue in court in favor of arbitration?

William A. McConnell 4:17

Yes, Justice Alito, I can imagine. Now, Congress has to date not used it. Congress knows perfectly well how to bar arbitration. They've done it in a number of statutes. In fact, in the very Congress that enacted CROA, There were three different statutes that were proposed that would have eliminated arbitration for particular statutory schemes. None of them were adopted. But Congress is perfectly aware of how to do this. I don't think they have to use the magic words no arbitration, but they certainly have to do something considerably more direct than this.