Observers of the U.S. Supreme Court’s arbitration jurisprudence over the past several years will not be shocked by this one. Let’s face it: the Court loves it some arbitration.
The Court today held that the Credit Repair Organizations Act–which requires that credit repair organizations provide consumers with a statement that says “You have a right to sue a credit repair organization”–does not give consumers a right to sue a credit repair organization. (Here’s the opinion.) Instead, CROA merely gives consumers the right to a statement saying they have a right to sue–not the actual right to sue itself. As such, the plaintiffs must arbitrate their claims. Scalia sums it up thusly:
The disclosure provision is meant to describe the law to consumers in a manner that is concise and comprehensible to the layman—which necessarily means that it will be imprecise… We think most consumers would understand it this way, without regard to whether the suit in court has to be preceded by an arbitration proceeding. Leaving that possibility out may be imprecise, but it is not misleading—and certainly not so misleading as to demand, in order to avoid that result, reading the statute to contain a guaranteed right it does not in fact contain… Because the CROA is silent on whether claims under the Act can proceed in an arbitrable forum, the FAA requires the arbitration agreement to be enforced according to its terms.
Ginsburg was having none of it:
The “right to sue,” the Court explains, merely connotes the vindication of legal rights, whether in court or before an arbitrator. That reading may be comprehensible to one trained to “think like a lawyer.” But Congress enacted the CROA with vulnerable consumers in mind—consumers likely to read the words “right to sue” to mean the right to litigate in court, not the obligation to submit disputes to binding arbitration… Today’s decision permits credit repair organizations to deny consumers, through fine print in a contract, an important right whose disclosure is decreed in the U. S. Code.
Thankfully, Miranda was not decided along similar lines.
Let us know your thoughts in the comments.