GREEN TREE FINANCIAL CORP.-ALABAMA et al. v. RANDOLPH

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GREEN TREE FINANCIAL CORP.-ALABAMA et al.
v. RANDOLPH
certiorari to the united states court of appeals for
the eleventh circuit
No. 99–1235. Argued October 3, 2000—Decided December 11, 2000
Respondent Randolph’s mobile home financing agreement with petitioners,
financial institutions, required that Randolph buy insurance protecting
petitioners from the costs of her default and also provided that all dis-
putes under the contract would be resolved by binding arbitration.
Randolph later sued petitioners, alleging that they violated the Truth
in Lending Act (TILA) by failing to disclose the insurance requirement
as a finance charge and that they violated the Equal Credit Opportunity
Act by requiring her to arbitrate her statutory causes of action.
Among its rulings, the District Court granted petitioners’ motion to
compel arbitration, dismissed Randolph’s claims with prejudice, and de-
nied her request for reconsideration, which asserted that she lacked the
resources to arbitrate, and as a result, would have to forgo her claims
against petitioners. The Eleventh Circuit held that it had jurisdiction
to review the District Court’s order under § 16(a)(3) of the Federal Arbi-
tration Act (FAA), which allows appeals from “a final decision with re-
spect to an arbitration that is subject to this title.” The court deter-
mined that a final, appealable order within this provision is one that
disposes of all the issues framed by the litigation, leaving nothing to be
done but execute the order, and found the District Court’s order within
that definition. Determining also that the arbitration agreement failed
to provide the minimum guarantees that Randolph could vindicate her
statutory rights under the TILA, the court observed that the agreement
was silent with respect to payment of arbitration expenses, and there-
fore held the agreement unenforceable because it posed a risk that Ran-
dolph’s ability to vindicate her statutory rights would be undone by
“steep” arbitration costs.
Held:
1. Where, as here, the District Court has ordered the parties to pro-
ceed to arbitration, and dismissed all the claims before it, the decision
is “final” under § 16(a)(3), and therefore appealable. The term “final
decision” has a well-developed and longstanding meaning: It is a decision
that ends the litigation on the merits and leaves nothing more for the
court to do but execute the judgment. E. g., Digital Equipment Corp.
v. Desktop Direct, Inc., 511 U. S. 863, 867. Because the FAA does not

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80 GREEN TREE FINANCIAL CORP.-ALA. v. RANDOLPH
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define “a final decision with respect to an arbitration” or otherwise sug-
gest that the ordinary meaning of “final decision” should not apply, this
Court accords the term its well-established meaning. See Evans v.
United States, 504 U. S. 255, 259–260. The District Court’s order
plainly falls within that meaning because it disposed of the entire case
on the merits and left no part of it pending before the court. The fact
that the FAA permits parties to arbitration agreements to bring a sepa-
rate proceeding to enter judgment on an arbitration award once it is
made (or to vacate or modify it) does not vitiate the finality of the Dis-
trict Court’s resolution of the claims below. Moreover, this Court dis-
agrees with petitioners’ contention that the phrase “final decision” does
not include an order compelling arbitration and dismissing the other
claims in the action when that order occurs in an “embedded” proceed-
ing, such as this one, involving both an arbitration request and other
claims for relief, as distinguished from an “independent” proceeding in
which a request to order arbitration is the sole issue before the court.
It does not appear that, at the time of § 16(a)(3)’s enactment, Court of
Appeals decisions attaching significance to this independent/embedded
distinction, and its consequences for finality, were so firmly established
that this Court should assume Congress meant to incorporate them into
§ 16(a)(3). Certainly the statute’s plain language does not suggest such
an intent. Pp. 84–89.
2. Randolph’s agreement to arbitrate is not rendered unenforceable
simply because it says nothing about arbitration costs, and thus fails to
provide her protection from potentially substantial costs of pursuing her
federal statutory claims in the arbitral forum. In light of the FAA’s
purpose to reverse longstanding judicial hostility to arbitration agree-
ments and to place them on the same footing as other contracts, Gilmer
v. Interstate/Johnson Lane Corp., 500 U. S. 20, 24, this Court has recog-
nized that federal statutory claims can be appropriately resolved
through arbitration and has enforced agreements involving such claims,
see, e. g., Rodriguez de Quijas v. Shearson/American Express, Inc., 490
U. S. 477. In determining whether such claims may be arbitrated, the
Court asks whether the parties agreed to submit the claims to arbitra-
tion and whether Congress has evinced an intention to preclude a
waiver of judicial remedies for the statutory rights at issue. See, e. g.,
Gilmer, supra, at 26. Here, it is undisputed that the parties agreed to
arbitrate all claims relating to their contract, including claims involving
statutory rights, and Randolph does not contend that the TILA evinces
an intention to preclude a waiver of judicial remedies. She contends
instead that the arbitration agreement’s silence with respect to costs
creates a “risk” that she will be required to bear prohibitive arbitration

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costs, and thereby be unable to vindicate her statutory rights in arbitra-
tion. Although the existence of large arbitration costs may well pre-
clude a litigant like Randolph from effectively vindicating such rights,
the record does not show that Randolph will bear such costs if she goes
to arbitration. Indeed, it contains hardly any information on the mat-
ter, revealing only the agreement’s silence on the subject. That fact
alone is plainly insufficient to render it unenforceable. To invalidate
the agreement would undermine the liberal federal policy favoring ar-
bitration agreements, Moses H. Cone Memorial Hospital v. Mercury
Constr. Corp., 460 U. S. 1, 24, and would conflict with this Court’s hold-
ings that the party resisting arbitration bears the burden of proving
that Congress intended to preclude arbitration of the statutory claims
at issue, see, e. g., Gilmer, supra, at 26. Thus, a party seeking to invali-
date an arbitration agreement on the ground that arbitration would be
prohibitively expensive bears the burden of showing the likelihood of
incurring such costs. Randolph did not meet that burden. The Court
need not discuss how detailed such a showing would have to be, for in
this case, there was no timely showing at all on the point. Pp. 89–92.
178 F. 3d 1149, affirmed in part and reversed in part.
Rehnquist, C. J., delivered the opinion of the Court, Part II of which
was unanimous and Parts I and III of which were joined by O’Connor,
Scalia, Kennedy, and Thomas, JJ. Ginsburg, J., filed an opinion con-
curring in part and dissenting in part, in which Stevens and Souter, JJ.,
joined, and in which Breyer, J., joined as to Parts I and III, post, p. 92.
Carter G. Phillips argued the cause for petitioners. With
him on the briefs were Paul J. Zidlicky, Robert A. Huffaker,
and William H. Webster.
Joseph M. Sellers argued the cause for respondent. With
him on the brief were Suzette M. Malveaux, Deborah J.
Vagins, C. Knox McLaney III, and Lynn W. Jinks III.*
*Briefs of amici curiae urging reversal were filed for the Alabama Man-
ufactured Housing Institute by Robert E. Sasser; for the American Arbi-
tration Association by Florence Peterson, John M. Townsend, Daniel
Wolf, and James H. Carter; for the American Bankers Association et al.
by Christopher R. Lipsett, Eric J. Mogilnicki, and Todd Zubler; and for
the Equal Employment Advisory Council by Ann Elizabeth Reesman.
Briefs of amici curiae urging affirmance were filed for the Consumers
Union of the United States by Sally J. Greenberg; for Public Citizen by
Alan B. Morrison and Paul Levy; for Trial Lawyers for Public Justice

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82 GREEN TREE FINANCIAL CORP.-ALA. v. RANDOLPH
Opinion of the Court
Chief Justice Rehnquist delivered the opinion of the
Court.
In this case we first address whether an order compelling
arbitration and dismissing a party’s underlying claims is a
“final decision with respect to an arbitration” within the
meaning of § 16(a)(3) of the Federal Arbitration Act, 9
U. S. C. § 16(a)(3), and thus is immediately appealable pur-
suant to that Act. Because we decide that question in the
affirmative, we also address the question whether an arbitra-
tion agreement that does not mention arbitration costs and
fees is unenforceable because it fails to affirmatively protect
a party from potentially steep arbitration costs. We con-
clude that an arbitration agreement’s silence with respect to
such matters does not render the agreement unenforceable.
I
Respondent Larketta Randolph purchased a mobile home
from Better Cents Home Builders, Inc., in Opelika, Alabama.
She financed this purchase through petitioners Green Tree
Financial Corporation and its wholly owned subsidiary,
Green Tree Financial Corp.-Alabama. Petitioners’ Manu-
factured Home Retail Installment Contract and Security
Agreement required that Randolph buy Vendor’s Single In-
terest insurance, which protects the vendor or lienholder
against the costs of repossession in the event of default.
The agreement also provided that all disputes arising from,
et al. by F. Paul Bland, Jr., Arthur H. Bryant, and Jeffrey White; and for
Terry Johnson et al. by Daniel A. Edelman and James O. Latturner.
Briefs of amici curiae were filed for the Chamber of Commerce of the
United States of America by Alan S. Kaplinsky, David H. Pittinsky,
Thomas B. Roberts, and Robin S. Conrad; for the National Arbitration
Forum by Edward C. Anderson, David F. Herr, and Michael C. McCarthy;
for the National Association of Consumer Advocates by Patricia Sturde-
vant and Michael D. Donovan; and for AARP et al. by Stacy Canan, Jean
Constantine-Davis, Nina F. Simon, Deborah Zuckerman, Michael R.
Schuster, and Elizabeth Renuart.

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or relating to, the contract, whether arising under case law
or statutory law, would be resolved by binding arbitration.1
Randolph later sued petitioners, alleging that they vio-
lated the Truth in Lending Act (TILA), 15 U. S. C. § 1601 et
seq., by failing to disclose as a finance charge the Vendor’s
Single Interest insurance requirement. She later amended
her complaint to add a claim that petitioners violated the
Equal Credit Opportunity Act, 15 U. S. C. §§ 1691–1691f, by
requiring her to arbitrate her statutory causes of action.
She brought this action on behalf of a similarly situated class.
In lieu of an answer, petitioners filed a motion to compel
arbitration, to stay the action, or, in the alternative, to dis-
miss. The District Court granted petitioners’ motion to
compel arbitration, denied the motion to stay, and dismissed
Randolph’s claims with prejudice. The District Court also
denied her request to certify a class. 991 F. Supp. 1410 (MD
Ala. 1997). She requested reconsideration, asserting that
1 The arbitration provision states in pertinent part: “All disputes, claims,
or controversies arising from or relating to this Contract or the relation-
ships which result from this Contract, or the validity of this arbitration
clause or the entire contract, shall be resolved by binding arbitration by
one arbitrator selected by Assignee with consent of Buyer(s). This arbi-
tration Contract is made pursuant to a transaction in interstate commerce,
and shall be governed by the Federal Arbitration Act at 9 U. S. C. Section
1. Judgment upon the award rendered may be entered in any court hav-
ing jurisdiction. The parties agree and understand that they choose arbi-
tration instead of litigation to resolve disputes. The parties understand
that they have a right or opportunity to litigate disputes through a court,
but that they prefer to resolve their disputes through arbitration, except
as provided herein. THE PARTIES VOLUNTARILY AND KNOW-
INGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL
EITHER PURSUANT TO ARBITRATION UNDER THIS CLAUSE
OR PURSUANT TO A COURT ACTION BY ASSIGNEE (AS PRO-
VIDED HEREIN). The parties agree and understand that all disputes
arising under case law, statutory law, and all other laws, including, but not
limited to, all contract, tort, and property disputes, will be subject to bind-
ing arbitration in accord with this Contract. The parties agree and un-
derstand that the arbitrator shall have all powers provided by the law and
the Contract.” Joint Lodging 37.

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84 GREEN TREE FINANCIAL CORP.-ALA. v. RANDOLPH
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she lacked the resources to arbitrate and, as a result, would
have to forgo her claims against petitioners. See Plaintiff ’s
Motion for Reconsideration, Record Doc. No. 53, p. 9. The
District Court denied reconsideration. 991 F. Supp., at
1425–1426. Randolph appealed.
The Court of Appeals for the Eleventh Circuit first held
that it had jurisdiction to review the District Court’s order
because that order was a final decision. 178 F. 3d 1149
(1999). The Court of Appeals looked to § 16 of the Federal
Arbitration Act (FAA), 9 U. S. C. § 16, which governs appeal
from a district court’s arbitration order, and specifically
§ 16(a)(3), which allows appeal from “a final decision with re-
spect to an arbitration that is subject to this title.” The
court determined that a final, appealable order within the
meaning of the FAA is one that disposes of all the issues
framed by the litigation, leaving nothing to be done but exe-
cute the order. The Court of Appeals found the District
Court’s order within that definition.
The court then determined that the arbitration agreement
failed to provide the minimum guarantees that respondent
could vindicate her statutory rights under the TILA. Criti-
cal to this determination was the court’s observation that the
arbitration agreement was silent with respect to payment of
filing fees, arbitrators’ costs, and other arbitration expenses.
On that basis, the court held that the agreement to arbitrate
posed a risk that respondent’s ability to vindicate her statu-
tory rights would be undone by “steep” arbitration costs, and
therefore was unenforceable. We granted certiorari, 529
U. S. 1052 (2000), and we now affirm the Court of Appeals
with respect to the first conclusion, and reverse it with re-
spect to the second.
II
Section 16 of the Federal Arbitration Act, enacted in 1988,
governs appellate review of arbitration orders. 9 U. S. C.
§ 16. It provides:

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“(a) An appeal may be taken from—
“(1) an order—
“(A) refusing a stay of any action under section 3 of
this title,
“(B) denying a petition under section 4 of this title to
order arbitration to proceed,
“(C) denying an application under section 206 of this
title to compel arbitration,
“(D) confirming or denying confirmation of an award
or partial award, or
“(E) modifying, correcting, or vacating an award;
“(2) an interlocutory order granting, continuing, or
modifying an injunction against an arbitration that is
subject to this title; or
“(3) a final decision with respect to an arbitration that
is subject to this title.
“(b) Except as otherwise provided in section 1292(b)
of title 28, an appeal may not be taken from an interlocu-
tory order—
“(1) granting a stay of any action under section 3 of
this title;
“(2) directing arbitration to proceed under section 4
of this title;
“(3) compelling arbitration under section 206 of this
title; or
“(4) refusing to enjoin an arbitration that is subject
to this title.”
The District Court’s order directed that arbitration pro-
ceed and dismissed respondent’s claims for relief. The ques-
tion before us, then, is whether that order can be appealed
as “a final decision with respect to an arbitration” within
the meaning of § 16(a)(3). Petitioners urge us to hold that
it cannot. They rely, in part, on the FAA’s policy favoring
arbitration agreements and its goal of “mov[ing] the parties
to an arbitrable dispute out of court and into arbitration as
quickly and easily as possible.” Moses H. Cone Memorial

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86 GREEN TREE FINANCIAL CORP.-ALA. v. RANDOLPH
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Hospital v. Mercury Constr. Corp., 460 U. S. 1, 22 (1983); id.,
at 24. In accordance with that purpose, petitioners point
out, § 16 generally permits immediate appeal of orders hos-
tile to arbitration, whether the orders are final or interlocu-
tory, but bars appeal of interlocutory orders favorable to
arbitration.
Section 16(a)(3), however, preserves immediate appeal of
any “final decision with respect to an arbitration,” regardless
of whether the decision is favorable or hostile to arbitration.
And as petitioners and respondent agree, the term “final de-
cision” has a well-developed and longstanding meaning. It
is a decision that “ ‘ends the litigation on the merits and
leaves nothing more for the court to do but execute the judg-
ment.’ ” Digital Equipment Corp. v. Desktop Direct, Inc.,
511 U. S. 863, 867 (1994), and Coopers & Lybrand v. Livesay,
437 U. S. 463, 467 (1978) (both quoting Catlin v. United
States, 324 U. S. 229, 233 (1945)). See also St. Louis, I. M. &
S. R. Co. v. Southern Express Co., 108 U. S. 24, 28–29 (1883).
Because the FAA does not define “a final decision with re-
spect to an arbitration” or otherwise suggest that the ordi-
nary meaning of “final decision” should not apply, we accord
the term its well-established meaning. See Evans v. United
States, 504 U. S. 255, 259–260 (1992).
The District Court’s order directed that the dispute be re-
solved by arbitration and dismissed respondent’s claims with
prejudice, leaving the court nothing to do but execute the
judgment. That order plainly disposed of the entire case on
the merits and left no part of it pending before the court.
The FAA does permit parties to arbitration agreements to
bring a separate proceeding in a district court to enter judg-
ment on an arbitration award once it is made (or to vacate
or modify it), but the existence of that remedy does not viti-
ate the finality of the District Court’s resolution of the claims
in the instant proceeding. 9 U. S. C. §§ 9, 10, 11. The Dis-
trict Court’s order was therefore “a final decision with re-
spect to an arbitration” within the meaning of § 16(a)(3), and

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an appeal may be taken.2 See Sears, Roebuck & Co. v.
Mackey, 351 U. S. 427, 431 (1956) (explaining that had the
District Court dismissed all the claims in an action, its deci-
sion would be final and appealable); Catlin, supra, at 236
(noting that had petitioners’ motion to dismiss been granted
and a judgment of dismissal entered, “clearly there would
have been an end of the litigation and appeal would lie . . .”).
Petitioners contend that the phrase “final decision” does
not include an order compelling arbitration and dismissing
the other claims in the action, when that order occurs in an
“embedded” proceeding, such as this one. Brief for Petition-
ers 26. “Embedded” proceedings are simply those actions
involving both a request for arbitration and other claims for
relief. “Independent” proceedings, by contrast, are actions
in which a request to order arbitration is the sole issue be-
fore the court. Those Courts of Appeals attaching signifi-
cance to this distinction hold that an order compelling arbi-
tration in an “independent” proceeding is final within the
meaning of § 16(a)(3), but that such an order in an “embed-
ded” proceeding is not, even if the district court dismisses
the remaining claims.3 Petitioners contend that the distinc-
2 Had the District Court entered a stay instead of a dismissal in this
case, that order would not be appealable. 9 U. S. C. § 16(b)(1). The ques-
tion whether the District Court should have taken that course is not be-
fore us, and we do not address it.
3 The majority of Courts of Appeals have so opined, contrary to the
instant decision of the Court of Appeals for the Eleventh Circuit. See,
e. g., Seacoast Motors of Salisbury, Inc. v. Chrysler Corp., 143 F. 3d 626,
628–629 (CA1 1998); Altman Nursing, Inc. v. Clay Capital Corp., 84 F. 3d
769, 771 (CA5 1996); Napleton v. General Motors Corp., 138 F. 3d 1209,
1212 (CA7 1998); Gammaro v. Thorp Consumer Discount Co., 15 F. 3d 93,
95 (CA8 1994); McCarthy v. Providential Corp., 122 F. 3d 1242, 1244 (CA9
1997). But see Arnold v. Arnold Corp.—Printed Communications for
Business, 920 F. 2d 1269, 1276 (CA6 1990) (order compelling arbitration in
an “embedded” proceeding treated as a final judgment when the District
Court dismissed the action in deference to arbitration and had nothing left
to do but execute the judgment); Armijo v. Prudential Insurance Co. of
America, 72 F. 3d 793, 797 (CA10 1995) (same).

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tion between independent and embedded proceedings and its
consequences for finality were so firmly established at the
time of § 16’s enactment that we should assume Congress
meant to incorporate them into § 16(a)(3). See Brief for
Petitioners 23–26.
We disagree. It does not appear that, at the time of
§ 16(a)(3)’s enactment, the rules of finality were firmly estab-
lished in cases like this one, where the District Court both
ordered arbitration and dismissed the remaining claims.4
We also note that at that time, Courts of Appeals did not
have a uniform approach to finality with respect to orders
directing arbitration in “embedded” proceedings.5 The
term “final decision,” by contrast, enjoys a consistent and
longstanding interpretation. Certainly the plain language
of the statutory text does not suggest that Congress in-
tended to incorporate the rather complex independent/
4 Seacoast Motors of Salisbury, Inc., supra, at 628 (noting in 1998 that
the Court had not before addressed the question whether a district court
order directing arbitration and dismissing the proceedings was a “final
decision” within the meaning of § 16(a)(3)); Napleton, supra, at 1212
(noting in 1998 that the appeal at issue adds an “unfamiliar ingredient”
because the District Court ordered arbitration and dismissed the
proceedings).
5 Cincinnati Gas & Elec. Co. v. Benjamin F. Shaw Co., 706 F. 2d 155,
158 (CA6 1983) (rejecting the argument that because a declaratory judg-
ment and other relief was sought in suit where arbitration was ordered,
order to arbitrate should not be appealable); Howard Elec. & Mechani-
cal Co. v. Frank Briscoe Co., 754 F. 2d 847, 849 (CA9 1985) (plaintiff
brought suit for work performed under contract and then sought arbitra-
tion; order compelling arbitration held appealable). Cf. In re Hops Anti-
trust Litigation, 832 F. 2d 470, 472–473 (CA8 1987) (District Court order
requiring arbitration of some claims before it is not a final appealable order
because other matters remained pending before the court); County of
Durham v. Richards & Assocs., Inc., 742 F. 2d 811, 813, n. 3 (CA4 1984)
(noting that a number of Courts of Appeals have held that an order com-
pelling arbitration may be appealed even when it is entered in the course
of a dispute over the underlying claim). See generally 15B C. Wright, A.
Miller, & E. Cooper, Federal Practice and Procedure § 3914.17, pp. 19–25
(1992).

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embedded distinction, and its consequences for finality, into
§ 16(a)(3). We therefore conclude that where, as here, the
District Court has ordered the parties to proceed to arbitra-
tion, and dismissed all the claims before it, that decision
is “final” within the meaning of § 16(a)(3), and therefore
appealable.
III
We now turn to the question whether Randolph’s agree-
ment to arbitrate is unenforceable because it says nothing
about the costs of arbitration, and thus fails to provide her
protection from potentially substantial costs of pursuing her
federal statutory claims in the arbitral forum. Section 2 of
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 . . . 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.
In considering whether respondent’s agreement to arbitrate
is unenforceable, we are mindful of the FAA’s purpose “to
reverse the longstanding judicial hostility to arbitration
agreements . . . and to place arbitration agreements upon
the same footing as other contracts.” Gilmer v. Interstate/
Johnson Lane Corp., 500 U. S. 20, 24 (1991).
In light of that purpose, we have recognized that fed-
eral statutory claims can be appropriately resolved through
arbitration, and we have enforced agreements to arbitrate
that involve such claims. See, e. g., Rodriguez de Quijas
v. Shearson/American Express, Inc., 490 U. S. 477 (1989)
(Securities Act of 1933); Shearson/American Express Inc. v.
McMahon, 482 U. S. 220 (1987) (Securities Exchange Act of
1934 and Racketeer Influenced and Corrupt Organizations
Act); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,
Inc., 473 U. S. 614 (1985) (Sherman Act). We have likewise
rejected generalized attacks on arbitration that rest on “sus-
picion of arbitration as a method of weakening the protec-

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90 GREEN TREE FINANCIAL CORP.-ALA. v. RANDOLPH
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tions afforded in the substantive law to would-be complain-
ants.” Rodriguez de Quijas, supra, at 481. These cases
demonstrate that even claims arising under a statute de-
signed to further important social policies may be arbitrated
because “ ‘so long as the prospective litigant effectively may
vindicate [his or her] statutory cause of action in the arbitral
forum,’ ” the statute serves its functions. See Gilmer,
supra, at 28 (quoting Mitsubishi, supra, at 637).
In determining whether statutory claims may be arbi-
trated, we first ask whether the parties agreed to submit
their claims to arbitration, and then ask whether Congress
has evinced an intention to preclude a waiver of judicial rem-
edies for the statutory rights at issue. See Gilmer, supra,
at 26; Mitsubishi, supra, at 628. In this case, it is undis-
puted that the parties agreed to arbitrate all claims relating
to their contract, including claims involving statutory rights.
Nor does Randolph contend that the TILA evinces an inten-
tion to preclude a waiver of judicial remedies. She contends
instead that the arbitration agreement’s silence with respect
to costs and fees creates a “risk” that she will be required
to bear prohibitive arbitration costs if she pursues her claims
in an arbitral forum, and thereby forces her to forgo any
claims she may have against petitioners. Therefore, she ar-
gues, she is unable to vindicate her statutory rights in arbi-
tration. See Brief for Respondent 29–30.
It may well be that the existence of large arbitration costs
could preclude a litigant such as Randolph from effectively
vindicating her federal statutory rights in the arbitral forum.
But the record does not show that Randolph will bear such
costs if she goes to arbitration. Indeed, it contains hardly
any information on the matter.6 As the Court of Appeals
6 In Randolph’s motion for reconsideration in the District Court, she
asserted that “[a]rbitration costs are high” and that she did not have the
resources to arbitrate. But she failed to support this assertion. She first
acknowledged that petitioners had not designated a particular arbitration
association or arbitrator to resolve their dispute. Her subsequent discus-

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recognized, “we lack . . . information about how claimants
fare under Green Tree’s arbitration clause.” 178 F. 3d, at
1158. The record reveals only the arbitration agreement’s
silence on the subject, and that fact alone is plainly insuffi-
cient to render it unenforceable. The “risk” that Randolph
will be saddled with prohibitive costs is too speculative to
justify the invalidation of an arbitration agreement.
To invalidate the agreement on that basis would under-
mine the “liberal federal policy favoring arbitration agree-
ments.” Moses H. Cone Memorial Hospital, 460 U. S., at
24. It would also conflict with our prior holdings that the
party resisting arbitration bears the burden of proving
that the claims at issue are unsuitable for arbitration. See
Gilmer, supra, at 26; McMahon, supra, at 227. We have
sion of costs relied entirely on unfounded assumptions. She stated that
“[f]or the purposes of this discussion, we will assume filing with the
[American Arbitration Association], the filing fee is $500 for claims under
$10,000 and this does not include the cost of the arbitrator or administra-
tive fees.” Randolph relied on, and attached as an exhibit, what appears
to be informational material from the American Arbitration Association
that does not discuss the amount of filing fees. She then noted: “[The
American Arbitration Association] further cites $700 per day as the aver-
age arbitrator’s fee.” For this proposition she cited an article in the Daily
Labor Report, February 15, 1996, published by the Bureau of National
Affairs, entitled Labor Lawyers at ABA Session Debate Role of American
Arbitration Association. Plaintiff ’s Motion for Reconsideration, Record
Doc. No. 53, pp. 8–9. The article contains a stray statement by an associa-
tion executive that the average arbitral fee is $700 per day. Randolph
plainly failed to make any factual showing that the American Arbitration
Association would conduct the arbitration, or that, if it did, she would
be charged the filing fee or arbitrator’s fee that she identified. These
unsupported statements provide no basis on which to ascertain the actual
costs and fees to which she would be subject in arbitration.
In this Court, Randolph’s brief lists fees incurred in cases involving
other arbitrations as reflected in opinions of other Courts of Appeals,
while petitioners’ counsel states that arbitration fees are frequently
waived by petitioners. None of this information affords a sufficient basis
for concluding that Randolph would in fact have incurred substantial costs
in the event her claim went to arbitration.

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92 GREEN TREE FINANCIAL CORP.-ALA. v. RANDOLPH
Opinion of Ginsburg, J.
held that the party seeking to avoid arbitration bears the
burden of establishing that Congress intended to preclude
arbitration of the statutory claims at issue. See Gilmer,
supra; McMahon, supra. Similarly, we believe that where,
as here, a party seeks to invalidate an arbitration agreement
on the ground that arbitration would be prohibitively expen-
sive, that party bears the burden of showing the likelihood
of incurring such costs. Randolph did not meet that burden.
How detailed the showing of prohibitive expense must be
before the party seeking arbitration must come forward with
contrary evidence is a matter we need not discuss; for in
this case neither during discovery nor when the case was
presented on the merits was there any timely showing at all
on the point. The Court of Appeals therefore erred in de-
ciding that the arbitration agreement’s silence with respect
to costs and fees rendered it unenforceable.7
The judgment of the Court of Appeals is affirmed in part
and reversed in part.
It is so ordered.
Justice Ginsburg, with whom Justice Stevens and
Justice Souter join, and with whom Justice Breyer joins
as to Parts I and III, concurring in part and dissenting in
part.
I
I join Part II of the Court’s opinion, which holds that the
District Court’s order, dismissing all the claims before it, was
a “final,” and therefore immediately appealable, decision.
Ante, at 84–89. On the matter the Court airs in Part III,
7 We decline to reach respondent’s argument that we may affirm the
Court of Appeals’ conclusion that the arbitration agreement is unenforce-
able on the alternative ground that the agreement precludes respondent
from bringing her claims under the TILA as a class action. See Brief for
Respondent 39–48. The Court of Appeals did not pass on this question,
and we need not decide here issues not decided below. Roberts v. Galen
of Va., Inc., 525 U. S. 249 (1999) (per curiam).

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93 Cite as: 531 U. S. 79 (2000)
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ante, at 89–92—allocation of the costs of arbitration—I
would not rule definitively. Instead, I would vacate the
Eleventh Circuit’s decision, which dispositively declared the
arbitration clause unenforceable, and remand the case for
closer consideration of the arbitral forum’s accessibility.
II
The Court today deals with a “who pays” question, spe-
cifically, who pays for the arbitral forum. The Court holds
that Larketta Randolph bears the burden of demonstrating
that the arbitral forum is financially inaccessible to her. Es-
sentially, the Court requires a party, situated as Randolph
is, either to submit to arbitration without knowing who will
pay for the forum or to demonstrate up front that the costs,
if imposed on her, will be prohibitive. Ante, at 91–92. As
I see it, the case in its current posture is not ripe for such
a disposition.
The Court recognizes that “the existence of large arbitra-
tion costs could preclude a litigant such as Randolph from
effectively vindicating her federal statutory rights in the
arbitral forum.” Ante, at 90. But, the Court next deter-
mines, “the party resisting arbitration bears the burden of
proving that the claims at issue are unsuitable for arbitra-
tion” and “Randolph did not meet that burden.” Ante, at
91, 92. In so ruling, the Court blends two discrete inquiries:
First, is the arbitral forum adequate to adjudicate the claims
at issue; second, is that forum accessible to the party resist-
ing arbitration.
Our past decisions deal with the first question, the ade-
quacy of the arbitral forum to adjudicate various statutory
claims. See, e. g., Gilmer v. Interstate/Johnson Lane Corp.,
500 U. S. 20 (1991) (Age Discrimination in Employment Act
claims are amenable to arbitration); Shearson/American
Express Inc. v. McMahon, 482 U. S. 220 (1987) (Claims
under Racketeer Influenced and Corrupt Organizations Act
and Securities Exchange Act are amenable to arbitration).

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94 GREEN TREE FINANCIAL CORP.-ALA. v. RANDOLPH
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These decisions hold that the party resisting arbitration
bears the burden of establishing the inadequacy of the arbi-
tral forum for adjudication of claims of a particular genre.
See Gilmer, 500 U. S., at 26; McMahon, 482 U. S., at 227. It
does not follow like the night the day, however, that the
party resisting arbitration should also bear the burden of
showing that the arbitral forum would be financially inacces-
sible to her.
The arbitration agreement at issue is contained in a form
contract drawn by a commercial party and presented to an
individual consumer on a take-it-or-leave-it basis. The case
on which the Court dominantly relies, Gilmer, also involved
a nonnegotiated arbitration clause. But the “who pays”
question presented in this case did not arise in Gilmer.
Under the rules that governed in Gilmer—those of the New
York Stock Exchange—it was the standard practice for secu-
rities industry parties, arbitrating employment disputes, to
pay all of the arbitrators’ fees. See Cole v. Burns Int’l Se-
curity Servs., 105 F. 3d 1465, 1483 (CADC 1997). Regarding
that practice, the Court of Appeals for the District of Colum-
bia Circuit recently commented:
“[I]n Gilmer, the Supreme Court endorsed a system
of arbitration in which employees are not required to
pay for the arbitrator assigned to hear their statutory
claims. There is no reason to think that the Court
would have approved arbitration in the absence of this
arrangement. Indeed, we are unaware of any situation
in American jurisprudence in which a beneficiary of a
federal statute has been required to pay for the services
of the judge assigned to hear her or his case.” Id., at
1484.
III
The form contract in this case provides no indication of
the rules under which arbitration will proceed or the costs a

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95 Cite as: 531 U. S. 79 (2000)
Opinion of Ginsburg, J.
consumer is likely to incur in arbitration.1 Green Tree,
drafter of the contract, could have filled the void by spec-
ifying, for instance, that arbitration would be governed by
the rules of the American Arbitration Association (AAA).
Under the AAA’s Consumer Arbitration Rules, consumers in
small-claims arbitration incur no filing fee and pay only $125
of the total fees charged by the arbitrator. All other fees
and costs are to be paid by the business party. Brief for
American Arbitration Association as Amicus Curiae 15–16.
Other national arbitration organizations have developed sim-
ilar models for fair cost and fee allocation.2 It may be that
in this case, as in Gilmer, there is a standard practice on
arbitrators’ fees and expenses, one that fills the blank space
in the arbitration agreement. Counsel for Green Tree of-
fered a hint in that direction. See Tr. of Oral Arg. 26
(“Green Tree does pay [arbitration] costs in a lot of
instances . . . .”). But there is no reliable indication in this
record that Randolph’s claim will be arbitrated under any
consumer-protective fee arrangement.
1 In Alabama, as in most States, courts interpret a contract’s silence
(about arbitration fees and costs) according to “usage or custom.” Green
Tree Financial Corp. of Ala. v. Wampler, 749 So. 2d 409, 415 (Ala. 1999);
see also Restatement (Second) of Contracts § 204, Comment d (1979)
(where an essential term is missing, “the court should supply a term which
comports with community standards of fairness and policy”). Cf. First
Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 944 (1995) (courts should
generally apply state contract law principles when deciding whether
parties agreed to arbitrate a certain matter); Mastrobuono v. Shearson
Lehman Hutton, Inc., 514 U. S. 52, 62–64, and n. 9 (1995) (interpreting
arbitration clause according to New York and Illinois law).
2 They include National Arbitration Forum provisions that limit small-
claims consumer costs to between $49 and $175 and a National Consumer
Disputes Advisory Committee protocol recommending that consumer costs
be limited to a reasonable amount. National Arbitration Forum, Code
of Procedure, App. C, Fee Schedule (July 1, 2000); National Consumer
Disputes Advisory Committee, Consumer Due Process Protocol, Prin-
ciple 6, Comment (Apr. 17, 1998), http://www.adr.org/education/education/
consumer_protocol.html.

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96 GREEN TREE FINANCIAL CORP.-ALA. v. RANDOLPH
Opinion of Ginsburg, J.
As a repeat player in the arbitration required by its form
contract, Green Tree has superior information about the cost
to consumers of pursuing arbitration. Cf. Raleigh v. Illi-
nois Dept. of Revenue, 530 U. S. 15, 21 (2000) (“the very fact
that the burden of proof has often been placed on the tax-
payer [to disprove tax liability] . . . reflects several compel-
ling rationales . . . [including] the taxpayer’s readier access
to the relevant information”); 9 J. Wigmore, Evidence § 2486
(J. Chadbourn rev. ed. 1981) (where fairness so requires, bur-
den of proof of a particular fact may be assigned to “party
who presumably has peculiar means of knowledge” of the
fact); Restatement (Second) of Contracts § 206 (1979) (“In
choosing among the reasonable meanings of . . . [an] agree-
ment or a term thereof, that meaning is generally preferred
which operates against the [drafting] party . . . .”). In these
circumstances, it is hardly clear that Randolph should bear
the burden of demonstrating up front the arbitral forum’s
inaccessibility, or that she should be required to submit to
arbitration without knowing how much it will cost her.
As I see it, the Court has reached out prematurely to re-
solve the matter in the lender’s favor. If Green Tree’s prac-
tice under the form contract with retail installment sales
purchasers resembles that of the employer in Gilmer, Ran-
dolph would be insulated from prohibitive costs. And if the
arbitral forum were in this case financially accessible to Ran-
dolph, there would be no occasion to reach the decision today
rendered by the Court. Before writing a term into the form
contract, as the District of Columbia Circuit did, see Cole,
105 F. 3d, at 1485,3 or leaving cost allocation initially to each
arbitrator, as the Court does, I would remand for clarifica-
tion of Green Tree’s practice.
3 The court interpreted a form contract to arbitrate employment dis-
putes, silent as to costs, to require the employer “to pay all of the arbitra-
tor’s fees necessary for a full and fair resolution of [the discharged employ-
ee’s] statutory claims.” 105 F. 3d, at 1485.

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The Court’s opinion, if I comprehend it correctly, does not
prevent Randolph from returning to court, postarbitration,
if she then has a complaint about cost allocation. If that is
so, the issue reduces to when, not whether, she can be spared
from payment of excessive costs. Neither certainty nor ju-
dicial economy is served by leaving that issue unsettled until
the end of the line.
For the reasons stated, I dissent from the Court’s reversal
of the Eleventh Circuit’s decision on the cost question. I
would instead vacate and remand for further consideration
of the accessibility of the arbitral forum to Randolph.4
4 Randolph alternatively urges affirmance on the ground that the arbi-
tration agreement is unenforceable because it precludes pursuit of her
statutory claim as a class action. But cf. Johnson v. West Suburban Bank,
225 F. 3d 366 (CA3 2000) (holding arbitration clause in short-term loan
agreement enforceable even though it may render class action to pursue
statutory claims unavailable). The class-action issue was properly raised
in the District Court and the Court of Appeals. I do not read the Court’s
opinion to preclude resolution of that question now by the Eleventh Cir-
cuit. Nothing Randolph has so far done in seeking protection against
prohibitive costs forfeits her right to a judicial determination whether her
claim may proceed either in court or in arbitration as a class action.