WASHINGTON The United States Supreme Court today was to hear arguments in a case challenging the enforceability of mandatory arbitration clauses in customer contracts, the first of three cases with implications for the banking industry that are before the high court this session.
In addition to Tuesdays case, Green Tree Financial Corp.-Alabama v. Randolph, the court has scheduled Nov. 28 oral arguments in Missouri Director of Revenue v. CoBank ASB, in which it will decide the tax status of Farm Credit System banks. A third case, Murphy v. Beck, which questions the extent to which the Federal Deposit Insurance Corp. can protect failed banks from lawsuits, has not been scheduled, but will likely be heard early next year.
Of the three, it is the Green Tree Financial case that could have the broadest impact on the banking industry. Many institutions, particularly credit card banks, require that customers sign a contract promising to avoid lawsuits and submit to binding arbitration in the event of billing disputes and other disagreements. Arbitration is less costly for lenders, and typically reaches a conclusion much sooner than a lawsuit.
Bankers that already use mandatory arbitration clauses in their consumer contracts have an obvious interest in the case, and those that dont should be thinking about it, said Michael F. Crotty, the American Bankers Associations deputy general counsel for litigation. This decision, however it turns out, ought to be a factor in deciding whether to adopt this policy or not.
The case was sent to the high court after a federal appeals court ruled that an arbitration clause in a contract between an Alabama affiliate of Green Tree and Larketta Randolph was unenforceable.
Ms. Randolph, who financed a $39,000 mobile home through the company, claimed that the contract unfairly hid the potential costs of arbitration from her, and the U.S. Court of Appeals in Atlanta ruled in her favor. However, the appellate court failed to rule on a separate issue: whether or not the case should have reached the appeals court in the first place.
Green Trees appeal to the Supreme Court contends that Ms. Randolph should not have been allowed to appeal a lower-court ruling that compelled her to enter arbitration, and that the appeals court ruling should be voided because it did not have jurisdiction in the case.
Second, Green Tree claims that the finance contract contained all the necessary disclosures to let Ms. Randolph understand the implications of agreeing to binding arbitration.
An attorney knowledgeable about the case said that the court cannot avoid deciding the question of whether the appeal should have been allowed, but may elect to stop there instead of wading into questions about the contract itself.
If the court reaches beyond the purely procedural issue regarding the timing of appeals, he said its decision will either reinforce or disrupt the long-standing federal policy in favor of arbitration.
A more straightforward issue will be considered in November, when the court is to hear the Missouri director of revenues challenge of a Farm Credit banks tax immunity. The state has attempted to collect taxes on the income of CoBank ASB, the former National Bank for Cooperatives, which was created by the Farm Credit Act of 1971.
Designated by the Farm Credit Administration as an Agricultural Credit Bank, Denver-based CoBank provides funds to smaller nonbank lenders and makes loans to agricultural cooperatives.
Last year CoBank claimed tax immunity as a federal instrumentality and requested the refund of several years worth of taxes it had already paid. The state, however, has charged that as a privately owned, for-profit institution, CoBank should no longer get that subsidy. In January the institution argued its case successfully before the Missouri Supreme Court.
The ABA sided with the state of Missouri in a friend-of-the-court brief, arguing that tax exemption unfairly gives CoBank a competitive advantage over banks that compete with it. Another brief, filed by the U.S. Solicitor General, challenges the legal basis for CoBanks claim to immunity and sides with the state in urging the high court to reverse the Missouri courts decision.
The third banking-related case, Murphy v. Beck, marks the last stop of a well-traveled legal dispute over the right of the FDIC to protect a failed bank from lawsuits.
In 1989, Bruce G. Murphy invested $515,000 in a real estate development project that subsequently went bankrupt when it defaulted on loans and Southeast Banking Corp., of Miami, foreclosed. Mr. Murphy claimed that Southeast Bank had secretly controlled the real estate venture and that it was responsible for fraudulent statements about its condition. Southeast itself was shut down in 1992, after the FDIC determined it to be insolvent. Mr. Murphy sued both the bank and Jeffrey H. Beck, whom the FDIC appointed to oversee the dissolution of the institution, in an attempt to recoup his investment.
In April the federal appellate court in Atlanta declined to send the case to a jury trial, ruling that government insurers are not liable for agreements that do not appear on a banks books. However, the case has also been heard by the U.S. Court of Appeals for the D.C. Circuit, which ruled in 1995 that the FDIC can only protect the failed bank from claims on its assets not from claims against it stemming from fraudulent activities.
Lower courts are looking to the Supreme Court to settle the divergence of opinion at the appellate level.
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