LES KROL

v.

FCA US, LLC AND GIBSON AUTO SALES, INC. D/B/A GIBSON TRUCK WORLD

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

LES KROL,

Appellant,

v. Case No. 5D18-2149

FCA US, LLC AND GIBSON AUTO

SALES, INC. D/B/A GIBSON TRUCK WORLD,

Appellees.

________________________________/

Opinion filed May¹⁰, 2019

Nonfinal Appeal from the Circuit Court for Brevard County, Stephen R. Koons, Judge.

Jeremy Kespohl and Angela Thomas, of Morgan & Morgan, P.A., Jacksonville, for Appellant.

Robert E. Sickles and Yesica S. Liposky , of Nelson Mullins Broad and Cassel, Tampa, for Appellee, Gibson Auto Sales, Inc. d/b/a Gibson Truck World. No Appearance for other Appellee.

ORFINGER, J.

Les Krol appeals an order compelling arbitration of the written warranty claims that he brought against Gibson Auto Sales, Inc. (“Gibson Auto”) under the Magnuson-Moss

2 Warranty Act (“MMWA”).¹ Because we conclude that the MMWA does not prohibit binding arbitration of written warranty claims and the arbitration agreement here does not violate Federal Trade Commission (“FTC”) disclosure rules, we affirm the order compelling arbitration.

BACKGROUND

This case arises from Mr. Krol’s purchase of a used truck from Gibson Auto. As part of the sale, the parties executed an installment sales contract and a separate retail purchase order that included a binding arbitration agreement for any dispute related to the truck’s purchase.² Gibson Auto also extended an express written warranty on the truck. A few months after purchasing the truck, Mr. Krol sued Gibson Auto under the MMWA, asserting several causes of action related to alleged defects in the truck that Gibson Auto was unable to remedy. In response, Gibson Auto moved to stay the proceedings and to compel arbitration in accordance with the parties’ agreement. Mr. Krol opposed the motion, asserting the same arguments he makes in this appeal. Following a

Dealer and customer agree that any controversy, claim, suit, demand, counterclaim, cross claim, or third-party complaint, arising out of, or relating to this Order or the parties’ relationship (whether statutory or otherwise), including, but not limited to any matter that may have induced the Customer to enter into any relationship with Dealer and any disputes regarding the validity or enforceability of this clause (collectively referred to as “Claim”), shall be submitted to final and binding arbitration . . . . The arbitration shall be final and binding on all parties.

ANALYSIS

We review a trial court’s ruling on a motion to compel arbitration de novo. Tropical Ford, Inc. v. Major, 882 So. 2d 476, 478 (Fla. 5th DCA 2004). When deciding whether to compel arbitration according to an agreement, a trial court must consider: “(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999). Mr. Krol’s appeal centers on the second factor. He argues that no arbitrable issue existed here because MMWA claims are exempt from binding arbitration. Alternatively, he posits that the arbitration agreement is unenforceable because it violates the FTC’s disclosure rules since the arbitration clause does not appear in a single document with the other warranty terms.

I.

The Arbitrability of MMWA claims. The United States Supreme Court has not addressed whether MMWA claims are arbitrable, and state and lower federal courts are divided on the issue.³ However, both

3 Compare, e.g., Jones v. Gen. Motors Corp., 640 F. Supp. 2d 1124, 1143 (D. Ariz. 2009), S. Energy Homes, Inc. v. Ard, 772 So. 2d 1131, 1135 (Ala. 2000), Borowiec v. Gateway 2000, 808 N.E. 2d 957, 970 (Ill. 2004), Abela v. Gen. Motors Corp., 677 N.W. 2d 325, 327 (Mich. 2004), and In re Am. Homestar of Lancaster, Inc., 50 S.W. 3d 480, 492 (Tex. 2001) (all holding MMWA claims are subject to binding arbitration), with Higgs v. Warranty Grp., No. C2-02-1092, 2007 WL 2034376, at *8 (S.D. Ohio July¹¹, 2007), Rickard v. Teynor’s Homes, Inc., 279 F. Supp. 2d 910, 921 (N.D. Ohio 2003), Browne v. Kline Tysons Imps., Inc., 190 F. Supp. 2d 827, 831-33 (E.D. Va. 2002), Pitchford v. Oakwood Mobile Homes, Inc., 124 F. Supp. 2d 958, 962-65 (W.D. Va. 2000), and Koons Ford of Balt., Inc. v. Lobach, 919 A. 2d 722, 737 (Md. 2007) (all holding MMWA claims are exempt from binding arbitration).

A.

MMWA.

Because product warranties often left consumers with “little understanding of the frequently complex legal implications of warranties on consumer products,” 40 Fed. Reg.

4 In Kolev v. Euromotors West/The Auto Gallery, 658 F. 3d 1024 (9th Cir. 2011), the Ninth Circuit held that the MMWA prohibited pre-dispute binding arbitration on written warranty claims. But that opinion has since been withdrawn. See Kolev v. Euromotors W./The Auto Gallery, 676 F. 3d 867 (9th Cir. 2012) (“The Opinion filed September 20, 2011, and appearing at 658 F. 3d 1024 (9th Cir. 2011), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit.”) (citations omitted).

5 60168 (Dec. 31, 1975) (quoting S. Rep. No. 93-151 (1973)), Congress enacted the MMWA “[t]o provide minimum disclosure standards for written consumer product warranties; to define minimum federal content standards for such warranties; to amend the federal trade commission act in order to improve its consumer protection activities; and for other purposes.” Magnuson-Moss Warranty-Federal Trade Comm’n Improvement Act, Pub. L. No. 93-637, § 356, 88 Stat. 2183 (1975). The MMWA requires warrantors to “fully and conspicuously disclose in simple and readily understood language the terms and conditions of such warranty.”¹⁵ U.S.C. § 2302(a) (2012). It also creates a private right of action for those consumers who have been “damaged by the failure of a . . . warrantor . . . to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract.” Id. § 2310(d)(1). An aggrieved consumer has the option to sue for damages and equitable relief in either state courts or federal district courts. Id. If the consumer prevails, he or she is entitled to attorney’s fees and costs. Id. § 2310(d)(2). Along with a private right of action, the MMWA encourages warrantors to settle consumer claims “fairly and expeditiously” through informal dispute settlement procedures. Id. § 2310(a). While the term “informal dispute settlement procedures” is not defined in the MMWA, Congress authorized the FTC to establish minimum requirements for any such procedures that are incorporated into the terms of a written warranty. Id. § 2310(a)(2). If a warrantor establishes an informal dispute settlement procedure, it may include within the written warranty “a requirement that the consumer resort to such procedure before pursuing any legal remedy.” Id. § 2310(a)(3)(C). The FTC has broadly interpreted the term “informal dispute settlement procedures” to include both binding and

B.

Federal Policy. Federal policy favors arbitration. In 1925, Congress enacted the Federal Arbitration Act (“FAA”) “to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place arbitration agreements upon the same footing as other contracts.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991). To this end, the FAA provides that [a] written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

The FAA establishes a “liberal federal policy favoring arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S.¹, 24 (1983). The Supreme Court has interpreted this policy as establishing a strong presumption favoring the enforcement of binding arbitration agreements so that any doubts over whether an issue is arbitrable should be resolved in favor of arbitration. Mitsubishi Motors Corp. v. Soler Chrysler- Plymouth, Inc., 473 U.S. 614, 626 (1985). This presumption applies equally to statutory claims. Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220, 226 (1987). Courts will enforce binding arbitration of statutory claims, unless Congress has expressed a clear

7 intention to preclude arbitration. Gilmer, 500 U.S. at 26. The party challenging arbitration bears the heavy burden of proving such congressional intent. Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 91-92 (2000).

C.

The McMahon Test. To determine whether Congress has intended to prohibit binding arbitration of a statutory claim, we apply the Supreme Court’s McMahon test, which requires us to consider three factors to determine Congress’s intent: “(1) the text of the statute; (2) its legislative history; and (3) whether ‘an inherent conflict between arbitration and the underlying purposes [of the statute]’ exists.” Davis, 305 F. 3d at 1273 (quoting McMahon, 482 U.S. at 226). To date, “[i]n every statutory right case that the Supreme Court has considered, it has upheld binding arbitration if the statute creating the right did not explicitly preclude arbitration.”⁶ Id. Turning to the first McMahon factor, the text of MMWA does not expressly preclude or even mention “binding arbitration.” Despite a lack of an express reference, Mr. Krol argues that Congress expressed its intention to prohibit binding arbitration in two ways. One, it created a right to commence a civil action for written warranty claims. Two, when Congress enacted the MMWA, arbitration—both binding and non-binding—was widely

6 The Supreme Court has upheld binding arbitration agreements related to claims arising under the following federal statutes: Securities Act of 1933, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484-86 (1989), overruling Wilko v. Swan, 346 U.S. 427 (1953); Age Discrimination in Employment Act (“ADEA”), Gilmer, 500 U.S. at 35; Sherman Act, Mitsubishi, 473 U.S. at 628; Securities Exchange Act of 1934 and Racketeer Influenced and Corrupt Organization Act (“RICO”), McMahon, 482 U.S. 220; Truth in Lending Act, Green Tree Financial Corp.-Alabama, 531 U.S. at 88-92; RICO, PacifiCare Health Systems, Inc. v. Book, 538 U.S. 401 (2003); Credit Repair Organizations Act, CompuCredit Corp. v. Greenwood, 565 U.S. 95 (2012); and the Fair Labor Standards Act, Epic Systems v. Lewis, 138 S. Ct. 1612 (2018).

8 considered an “informal” procedure. Hence, he posits that it was likely that Congress would have considered binding arbitration an informal dispute settlement procedure that would serve as a prerequisite to litigation that would be regulated by the FTC. Both of these arguments fail. First, the provision of a private right of action alone does not establish Congressional intent to prohibit binding arbitration. Davis, 305 F. 3d at 1274 (citing Gilmer, 500 U.S. at 29 (rejecting argument that binding arbitration is improper “because it deprives claimants of the judicial forum provided for by the ADEA”)). Second, binding arbitration is not comparable to the informal dispute settlement procedures described in the MMWA because it is not a prerequisite to litigation—it is a substitute for litigation. Walton, 298 F. 3d at 475; see Mitsubishi, 473 U.S. at 628 (“By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.”). The second McMahon factor requires us to examine the MMWA’s legislative history. Like the text, the legislative history does not suggest that binding arbitration is prohibited. Indeed, it implies the opposite. For instance, the Senate declared in its Conference Report that litigants may look to the courts and arbiters alike “to resolve ‘actions’ and to be the ‘ultimate’ means of resolving an MMWA claim.” Jones v. Gen. Motors Corp., 640 F. Supp. 2d 1124, 1137 (D. Ariz. 2009) (citing S. Rep. No. 93-1408 (1974), as reprinted in 1974 U.S.C.C.A.N. 7755). The Senate Conference Report further explains¹⁵ U.S.C. § 2304(a)(4)—the section of the MMWA that gives the FTC the ability to define what constitutes “a reasonable number of attempts” a warrantor must make to remedy a product defect before a refund or replacement must be provided—by stating that “if the [FTC] does not determine by rule what constitutes a reasonable number of

9 attempts in a given situation, then the parties or, ultimately, a third party (arbiter or judge) would decide.” Id. (quoting S. Rep. No. 93-1408, as reprinted in 1974 U.S.C.C.A.N. at 7757) (emphases added). This explanation of¹⁵ U.S.C. § 2304, which, among other things, authorizes the FTC to establish minimum standards regarding the duration of a warranty, consequential damage provisions, and conditions imposed by the warrantor, demonstrates that binding arbitration is permitted to resolve MMWA disputes. In fact, the same Conference Report recognizes that when there is no FTC rule regulating the reasonableness of a warrantor’s duty, “the consumer could challenge the reasonableness of such requirement by bringing an action for breach of warranty and arguing that the warrantor had breached his full warranty obligation. The burden would then be upon the warrantor to establish before an arbiter or in a court that the requirement . . . was reasonable . . . .” Id. at 1138 (quoting S. Rep. No. 93-1408, as reprinted in 1974 U.S.C.C.A.N. at 7757). Thus, the legislative history suggests that Congress considered binding arbitration a reasonable alternative to civil litigation for resolving MMWA claims. At least, it does not suggest that binding arbitration is prohibited. The third McMahon factor requires us to consider whether there is an underlying conflict between binding arbitration and the purposes of the MMWA. Mr. Krol argues that such a conflict exists, suggesting that binding arbitration of written warranty claims would undermine Congress’s goals of protecting consumers and correcting the inequality in bargaining power between warrantors and consumers. Neither of these goals overrides the strong federal policy favoring arbitration. To the first goal, the Supreme Court has repeatedly enforced binding arbitration of statutory claims where the purpose of the statute was consumer protection. See Davis, 305 F. 3d

D.

The Chevron Test. Notwithstanding the results of our McMahon analysis, Mr. Krol contends that since Congress gave the FTC rulemaking authority to enforce the MMWA, we must defer to its regulations prohibiting binding arbitration of MMWA written warranty claims. See 16 C.F.R. §§ 700.8, 703.5(j) (2015). Because Congress has given the FTC rulemaking authority regarding portions of the MMWA, we apply the two-prong test set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), to determine whether we must defer to the FTC’s interpretive regulations. Chevron informs us to defer to the FTC’s interpretive regulations prohibiting binding arbitration only if: (1) Congress has not directly spoken to the specific issue; and (2) the FTC’s interpretation “is based on a permissible construction of the statute.” 467

7 In Walton, the Fifth Circuit avoided Chevron’s second prong by concluding that Congress spoke to binding arbitration when it expressed in the FAA a clear intention to favor enforcement of binding arbitration agreements. 298 F. 3d at 475. We disagree and join the majority of courts who have concluded that Congress has not spoken directly to the permissibility of binding arbitration under the MMWA. See, e.g., Davis, 305 F. 3d at 1278; Jones, 640 F. Supp. 2d at 1139; Higgs, No. C2-02-1092, 2007 WL 2034376, at *8; Lobach, 919 A. 2d at 737.

II.

The FTC’s Single Document Rule. Mr. Krol also contends that the arbitration agreement here is unenforceable because it was in the retail purchase order and not in a single document along with the other warranty terms.8

8 Under Florida law, when, as here, parties to a contract execute two or more documents at or near the same time and concern the same transaction or subject matter, the documents are generally construed together as a single contract. E.g., Mnemonics, Inc. v. Max Davis Assocs., 808 So. 2d 1278, 1280 (Fla. 5th DCA 2002); see Wilson v. Terwillinger, 140 So. 3d 1122, 1124 (Fla. 5th DCA 2014) (reiterating “contemporaneous

instrument rule” and that origins “are of rather ancient vintage” and has been consistently applied since inception).

Under this synopsis of the law, then, it is plain that, while the single document rule enjoys continued vitality, arbitration agreements lie beyond the scope of the disclosures required pursuant to that rule.

399 F. Supp. 2d at 1303-04.

16

This reasoning is persuasive. Cunningham’s application of the single document rule rests solely on the notion that binding arbitration is an informal dispute settlement procedure. If we accept this premise, we would need to then defer to the FTC’s regulations prohibiting binding arbitration because as an informal dispute settlement mechanism, binding arbitration would then be subject to the FTC’s rulemaking authority. This is a view that we do not accept. The FTC’s disclosure regulations do not explicitly mention binding arbitration. By enforcing an arbitration disclosure requirement that is not expressly included in the FTC’s regulations, this Court would “encroach on the [MMWA’s] statutory and regulatory framework by unilaterally constructing a judicial rule that neither Congress nor the FTC has seen fit to create.” Dixon, 399 F. Supp. 2d at 1309. The MMWA “requires disclosure in the warranty itself only ‘to the extent required by the rules of the [FTC],’ and the FTC has seen fit to require disclosure of required resort to an informal dispute-settlement mechanism, not the completely separate process of binding arbitration.” Jackson, 929 So. 2d at 1006. For these reasons, we hold that the FTC’s single-document rule does not apply to binding arbitration agreements. We disagree with the Third District Court’s opinion in Larrain and certify conflict. AFFIRMED; CONFLICT CERTIFIED.

EVANDER, C.J. and SASSO, J., concur.