LIZZIE DAVIS, individually and on behalf of all others similarly situated, DENNIS GREEN, individually and on behalf of all others similarly situated, JOHNNY MOODY, individually and on behalf of all others similarly situated, JOHN SUBER, individually and on behalf of all others similarly situated, SHIRLEY WILLIAMS, individually and on behalf of all others similarly situated, PAMELA DAVIS, individually and on behalf of all others similarly situated, Plaintiffs-Appellees,
OASIS LEGAL FINANCE OPERATING COMPANY, LLC, OASIS LEGAL FINANCE, LLC, OASIS LEGAL FINANCE HOLDING COMPANY, LLC, Defendants-Appellants.
Appeals from the United States District Court for the
Southern District of Georgia D.C. Docket No.
TJOFLAT and JORDAN, Circuit Judges, and SCHLESINGER, District
JORDAN, CIRCUIT JUDGE.
courts have long refused to enforce contractual provisions
that contravene public policy. See, e.g.,
Marshall v. Baltimore and Ohio R.R., 57 U.S. 314,
334 (1853) ("It is an undoubted principle of the common
law that it will not lend its aid to enforce a contract to do
an act that is illegal, or which is inconsistent with sound
morals or public policy. . . ."). In Georgia, "[n]o
principle of jurisprudence is better settled than this."
Glass v. Childs, 71 S.E. 920, 921 (Ga.Ct.App.
have said that "[i]t is the duty of all courts of
justice to keep their eye steadily up on the interests of the
public, . . . and when they find an action is founded up on a
claim injurious to the public . . . to give no countenance or
assistance in foro civili." Elisha Greenhood,
The Doctrine of Public Policy: Reduced to Rules 2 (1886)
(quoting C.J. Wilmot's Opinion in Low v. Peers,
(1770) 97 Eng. Rep. 138 (Ex. Ch.)). Others, however, have
characterized the public policy defense as "a very
unruly horse, and when once you get astride it you never know
where it will carry you." Richardson v.
Mellish, (1824) 130 Eng. Rep. 294, 303 (H.L.) (Burrough,
case, a class of borrowers filed suit in Georgia against
their lenders, alleging that their loan agreements violated
state usury laws. The lenders moved to dismiss the action
based on the forum selection clause and class action waiver
in the agreements. The district court concluded that both
provisions were unenforceable as against Georgia public
policy, and the lenders appealed.
oral argument and a review of the relevant authorities, we
agree with the district court. Georgia's Payday Lending
Act and Industrial Loan Act articulate a clear public policy
against enforcing forum selection clauses in payday loan
agreements and in favor of preserving class actions as a
remedy for those aggrieved by predatory lenders. If
Georgia's public policy regarding payday lenders is a
horse, as Justice Burrough suggested, it carries these
borrowers safely to a Georgia courthouse.
plaintiffs entered into identical loan agreements with Oasis
Legal Finance, LLC; Oasis Legal Finance Operating Company,
LLC; and Oasis Legal Finance Holding Company, LLC (the
"Oasis lenders"). The loans generally amounted to
less than $3, 000 and were to be repaid from any recoveries
that the plaintiffs received in their separate personal
injury lawsuits. The plaintiffs' obligations to repay the
loans were therefore contingent on success in the underlying
February of 2017, the plaintiffs filed a class action
complaint against the Oasis lenders in Georgia state court,
alleging that the loan agreements violated Georgia's
Payday Lending Act, O.C.G.A. § 16-17-1 et seq.,
Industrial Loan Act, O.C.G.A. § 7-3-1 et seq.,
and usury laws, O.C.G.A. § 7-4-18. The Oasis lenders
removed the suit to federal court and moved to dismiss the
complaint under Federal Rule of Civil Procedure 12(b)(6) and
to strike the plaintiffs' class allegations under Federal
Rule of Civil Procedure 12(f). The Oasis lenders argued,
among other things, that the loan agreements' forum
selection clause required the plaintiffs to bring suit in
Illinois, and that the class action waiver barred their
ability to file a class action. The plaintiffs responded that
these provisions violated Georgia public policy and,
therefore, were unenforceable.
Georgia law, the district court rejected both of the
arguments made by the Oasis lenders and held that the forum
section clause and class action waiver were unenforceable.
See Davis v. Oasis Legal Fin. Operating Co., No. CV
317-022, 2017 WL 5490919, at *4-5 (S.D. Ga. Nov. 15, 2017)
The district court concluded that "the enforcement of
forum selections clauses in payday lending contracts would
contravene [Georgia's] public policy" as established
by the Payday Lending Act. Id. at *4. It explained
that "[c]ertain payday lenders have attempted to use
forum selection clauses contained in payday loan documents in
order to avoid the courts of the State of Georgia, and the
General Assembly has determined that such practices are
unconscionable and should be prohibited." Id.
at *3 (quoting § 16-17-1(d)). The district court
similarly ruled that the class action waiver contravened
public policy because, when the Georgia Legislature enacted
the PLA and the GILA, it expressly included class actions as
a remedy for those aggrieved by payday lenders. The district
court reasoned that the Georgia Legislature would not create
such a remedy and then allow lenders to "effectively
wipe away this consumer protection with a waiver in a single
paragraph of a six-page, single-spaced agreement."
Id. at *5.
district court certified its decision for interlocutory
review, and the Oasis lenders petitioned us to consider
whether the district court erred in concluding that the loan
agreements' forum selection clause and class action
waiver are unenforceable. We agreed to consider both issues,
and now affirm.
enforceability of a forum selection clause is a question of
law that we review de novo. See Rucker v. Oasis Legal
Fin., L.L.C., 632 F.3d 1231, 1235 (11th Cir. 2011). The
same plenary standard governs the enforceability of a class
action waiver. See Cruz v. Cingular Wireless, LLC,
648 F.3d 1205, 1210 (11th Cir. 2011).
selection clause, when properly bargained for, "protects
[the parties'] legitimate expectations and furthers the
vital interest of the justice system." Atl. Marine
Constr. Co. v. U.S. Dist. Ct. for the W. Dist. of Tex.,
571 U.S. 49, 63 (2013) (quotation marks omitted). Such
clauses "should be given controlling weight in all but
the most exceptional cases." Id. See also
M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15
(1972) (stating that ...