A federal law says firms that offer "credit repair" have to tell customers about their "right to sue a credit repair organization that violates" the law. The statute also voids "[a]ny waiver by any consumer of any protection provided by or any right of the consumer under this subchapter".
May a consumer still waive the "right to sue", such as by agreeing to arbitrate a claim that the credit repair outfit violated the statute?
Of course, the Supreme Court ruled in CompuCredit Corp. v. Greenwood, No. 10-948 (U.S. Jan. 10, 2012) (per Scalia, J.). Mr. Greenwood did waive any right to sue by agreeing to arbitrate disputes relating to the Visa card account he got through CompuCredit. The anti-waiver part of the Credit Repair Organization Act didn't trump the arbitration clause, the Court held, because the CROA itself simply made violators "liable" and didn't specify a "right to sue". And CROA's notice requirement didn't "provide consumers with a right to bring an action in a court of law" and Mr. Greenwood's waiver of his right to sue therefore didn't waive a "right of the consumer under this subchapter".
If that leaves you scratching your head, don't feel like the Lone Ranger. CROA does create a private cause of action by making violators "liable", and the disclosure CROA calls for does deem that right a "right to sue" in court. But that doesn't amount to a "right" that CROA created?
We think the two concurring justices did better with their reasons for ruling against Mr. Greenwood. Justice Sotoymayor, whom Justice Kagan joined, said Congress didn't make its desire to ban arbitration quite clear enough in CROA to beat the strong presumption in favor of arbitration under the federal Arbitration Act. Which seems about right.
The broader — and, to us, hard-to-grasp — rationale that Justice Scalia and the majority offered, we fear, signals a long and ugly Term ahead for consumers and other plaintiffs.
The status quo almost always favors the wealthy and powerful — the haves. With this Court, God help the have-nots. Because a majority of the Court surely won't.