A few years ago, preemption arguments were used everywhere in an attempt to disable state law protections for employees and consumers. When the majority of preemption arguments failed, defendants moved on to more fertile pastures. Today, the first place defendants look in their effort to shift the balance of power in their direction is to arbitration. In Greenwood v. CompuCredit Corporation (9th Cir. Aug. 17, 2010), the Ninth Circuit examined whether a defendant, sued under the Credit Repair Organization Act (“CROA”) for offering "credit rebuilding" credit cards with credit lines of $300 and annual fees of about $257 the first year, could compel arbitration. In a divided decision, the Court concluded that the language of the statute was sufficient to answer the question:
The CROA gives consumers the “right to sue,” and prevents any waiver of “any right” under the statute. We find this sufficient to demonstrate Congress intended that consumers cannot waive their right to sue under the CROA, and instead submit to arbitration. Therefore, we affirm the district court’s holding that the forced arbitration clause is void and the court’s denial of the motion to compel arbitration of the CROA claims.
Slip op., at 12091.