Livingston v. Associates Finance, Inc.

Decision Date07 August 2003
Docket NumberNo. 02-8025.,No. 02-3624.,02-3624.,02-8025.
Citation339 F.3d 553
PartiesMarc LIVINGSTON, et al., Plaintiffs-Appellees, v. ASSOCIATES FINANCE, INC., et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Daniel A. Edelman (argued), Edelman, Combs & Latturner, Chicago, IL, for Plaintiffs-Appellees.

Christina M. Tchen, Skadden, Arps, Slate, Meagher & Flom, Chicago, IL, Andrew L. Sandler (argued), Skadden, Arps, Slate, Meagher & Flom, Washington, DC, for Defendants-Appellants.

Before BAUER, KANNE, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Marc and Michelle Livingston sued Associates Finance, Inc. for violations of the Truth in Lending Act, on behalf of themselves and a purported class of similarly aggrieved borrowers. Associates, which moved to compel arbitration pursuant to an arbitration agreement, appeals the district court's denial of its motion as well as the court's grant of the Livingston's motion for class certification. Because we find the Arbitration Agreement controlling, and Associates' offer to pay arbitration fees sufficient to protect against potentially prohibitive costs, we reverse the district court's denial of arbitration, vacate its class certification determination, and remand the case with instructions to the district judge to stay the case to allow the parties to proceed on their claims in arbitration.


The Livingstons were frequent borrowers from Associates. Their transactions with Associates began with one loan, but they periodically took out loans to pay off their previous loans, which is typically called "loan-flipping." When the Livingstons took out their last loan, they signed an Arbitration Agreement in which both parties waived their rights to litigate in court any and all claims arising between the parties on this loan and any and all existing or previous loans. The Agreement permits either party to demand arbitration in response to a lawsuit, and provides that Associates may pay the arbitration costs at the Livingstons' request if they (the Livingstons) are unable to do so themselves.1 The Agreement also precludes the Livingstons from joining a class action lawsuit if one is filed, and from creating a class action in any arbitration proceeding.

When the Livingstons obtained their last loan, they also received Truth in Lending disclosures that were supposed to detail the implications of their loans and a rate reduction rider that provided the interest rate on their loan could be lowered through regular payments over a period of time. The Livingstons believe the disclosures do not reflect the terms of the rate reduction rider and thus do not disclose the true annual percentage rate, finance charges, and total payments of the loan. Believing this to be a violation of the Truth in Lending Act (TILA), 15 U.S.C. § 1635(f), and Regulation Z governing truth in lending, 12 C.F.R. § 226.23, the Livingstons filed suit in federal court and moved for certification of a class of similarly aggrieved borrowers. Associates responded by filing a motion to compel arbitration pursuant to the terms of the Arbitration Agreement, and a motion to dismiss the class claims based on the Arbitration Agreement's prohibition against class actions. Associates also filed a scheduling motion, explaining that it was not responding to the Livingstons' class certification motion and seeking to stay briefing and discovery on the class certification question because resolution of the arbitration motion could moot the class certification question. In response to Associates' rescheduling motion, the district court stayed all briefing and discovery on the class certification question.

The Livingstons responded to Associates' motion to compel arbitration, arguing that the Arbitration Agreement is unenforceable because they (the Livingstons) rescinded the last loan, the costs of arbitrating are prohibitively high, the American Arbitration Association (AAA) is biased in favor of Associates,2 and Associates fraudulently induced them to enter the Arbitration Agreement. They also moved for leave to seek discovery on the prohibitive costs question. The Magistrate Judge recommended rejecting most of the Livingstons' arguments but permitting discovery on whether the costs of arbitration would be prohibitively high. The district court adopted the Magistrate Judge's recommendations, rejecting the Livingstons' arguments on rescission, AAA bias, and fraudulent inducement, and allowing limited discovery on the prohibitive costs question. Associates then agreed to "pay [the Livingstons'] arbitration costs to the extent those costs exceeded what [the Livingstons] would incur in litigation in federal court," at which point the Livingstons discontinued all discovery into whether arbitration costs would be prohibitively high and dropped the issue entirely before the district court.

The district court rejected Associates' arbitration motion, finding that the Arbitration Agreement was unenforceable because Associates' offer to pay fees was "vague" and "nebulous" and had not "eliminated any possibility that the costs of arbitration could prove prohibitively high." The district court stated that "[d]efendants completely fail to iterate exactly which litigation costs would offset arbitration costs. This `offer' is an invitation to further litigation about costs, nothing more." The district court also found that the "uncertainty of an [attorneys' fee] award by an arbitrator using his or her `discretion,' coupled with the uncertainty inherent in [Associates'] nebulous offer to pay arbitration costs only to the extent they exceed litigation costs, impermissibly impedes [the Livingstons'] exercise of their rights under TILA." Associates filed a motion for reconsideration, clarifying that its offer to pay costs was meant to be sufficient, but that they would further agree to pay "all costs of arbitration" without regard to the comparative costs in federal court. The district court rejected Associates' clarified offer and denied its reconsideration motion.

Finding the Arbitration Agreement unenforceable, the district court summarily denied Associates' motion to dismiss the class claims, which was based on the Arbitration Agreement's prohibition of class actions and class claims in arbitration, and proceeded to certify the class. The district court reached the class certification question by considering Associates' motion to dismiss class claims as its substantive response to the Livingstons' motion for class certification, despite the court's earlier decision staying all briefing and discovery on the issue.

On appeal, Associates argues that the Arbitration Agreement should be enforced and arbitration should be compelled. It also argues that the class certification should be vacated because the district court's inquiry was insufficient and the class claims should be dismissed. The Livingstons argue that Associates' offers to pay the arbitration costs are a material change to the Arbitration Agreement that they do not accept, therefore the Arbitration Agreement is unenforceable. They also reiterate the rescission argument that was rejected by the district court and raise a new theory of judicial estoppel by asking the court to take judicial notice of a California case that they believe binds Associates to a position in favor of litigation and class certification.

A. Motion to Compel Arbitration

The Federal Arbitration Act (FAA) provides that a written provision in any contract evidencing an intent to settle by arbitration any future controversy arising out of such contract "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. The purpose of the FAA is "`to reverse the longstanding judicial hostility to arbitration agreements ... and to place them on the same footing as other contracts.'" Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 89, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000) (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991)); see also Sweet Dreams Unlimited, Inc. v. Dial-A-Mattress Int'l, Ltd., 1 F.3d 639, 641 (7th Cir.1993) ("It is beyond peradventure that the [FAA] embodies a strong federal policy in favor of arbitration."). A party seeking to invalidate an arbitration agreement must establish that the agreement precludes them from effectively "vindicating [their] statutory cause of action in the arbitral forum." Green Tree, 531 U.S. at 90, 121 S.Ct. 513. We review the denial of a motion to compel arbitration de novo. CK Witco Corp. v. Paper Allied Indus., 272 F.3d 419, 422 (7th Cir.2001); Iowa Grain Co. v. Brown, 171 F.3d 504, 508-09 (7th Cir.1999).

The district court denied Associates' arbitration motion, in part, because Associates had not "eliminated any possibility that the costs of arbitration could prove prohibitively high." This misplaces the burden that parties must meet in order to avoid arbitration due to prohibitive costs. In Green Tree, the Supreme Court acknowledged that a legitimate reason to deny arbitration may exist if a party would "be saddled with prohibitive [arbitration] costs." 531 U.S. at 90-92, 121 S.Ct. 513. The Court stated, however, that "[the] party seek[ing] to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive ... bears the burden of showing the likelihood of incurring [prohibitive] costs." Id. at 92, 121 S.Ct. 513. While the Court did not state how detailed that showing must be before the party seeking to compel arbitration must come forward with contrary evidence, see id., the party opposing arbitration nevertheless must provide some individualized evidence that it likely will face prohibitive costs in the arbitration at issue and that it is financially incapable of meeting those costs. See Bradford v. Rockwell...

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