244 F.3d 814 (11th Cir. 2001)
Larketta RANDOLPH, on behalf of herself and all others similarly situated, Plaintiff-Appellant,v.GREEN TREE FINANCIAL CORP.-ALABAMA and Green Tree Financial Corporation, Defendants-Appellees.
No. 98-6055.
United States Court of Appeals,Eleventh Circuit.
March 13, 2001.March 27, 2001

Appeal from the United States District Court for the Middle District of  Alabama. (No. 96-00011-CV-D-N), Ira De Ment, Judge.
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DUBINA, CARNES and FARRIS*, Circuit Judges.
CARNES, Circuit Judge:


1
Plaintiff Larketta Randolph filed this putative class action against defendants  Green Tree Financial Corp. and Green Tree Financial Corp.-Alabama (collectively,  "Green Tree") for alleged violations of the Truth in Lending Act, 15 U.S.C.   1601 et seq. ("TILA") and the Equal Credit Opportunity Act, 15 U.S.C.  1691 et  seq. ("ECOA"). The district court ordered the parties to proceed to arbitration  and dismissed the action with prejudice. In our prior opinion, Randolph v. Green  Tree Financial Corp.-Alabama, 178 F.3d 1149 (11th Cir.1999), we held that the  arbitration agreement in this case defeated the remedial purposes of TILA and  was unenforceable because of the potentially high costs to Randolph of pursuing  arbitration. The Supreme Court reversed that holding in Green Tree Financial  Corp.-Alabama v. Randolph, --- U.S. ----, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000).


2
In doing so, the Supreme Court explicitly "decline[d] to reach [Randolph's]  argument that ... the arbitration agreement is unenforceable on the alternative  ground that the agreement precludes [Randolph] from bringing her claims under  the TILA as a class action," because we had not passed on that question. Id. at  523 n. 7. In a separate opinion four Justices noted that issue had been properly  raised in the district court and in this Court, and observed that the Supreme  Court's majority opinion does not preclude us from deciding that issue on  remand. Id. at 525 n. 4 (Ginsburg, J., joined by Stevens, Souter, and Breyer,  JJ., concurring in part and dissenting in part). We have received supplemental  briefing on that issue, but before addressing it we must deal with a threshold  issue Randolph raises.

CLASSWIDE ARBITRATION

3
Randolph's position in this remand is two-fold. First, she maintains she should  be permitted to pursue the classwide relief she seeks in the arbitration  proceeding itself which, of course, would moot the question of whether her  inability to do so renders the arbitration agreement unenforceable. Randolph  maintains that classwide arbitration is not foreclosed by the language of the  arbitration provision in her contract with Green Tree, and argues that reading a  classwide remedy into the agreement would reconcile the Federal Arbitration  Act's ("FAA"), 9 U.S.C.  1 et seq., goal of enforcing arbitration agreements  with TILA's scheme of using private class actions as one way to enforce that  statute.


4
The arbitration agreement itself (which is set out in full as Appendix A to this  opinion) is silent about whether Randolph may pursue classwide relief in the  arbitration proceeding. Randolph argues that silence equates with permission  instead of preclusion, that the FAA itself does not forbid classwide  arbitration, and that construing the arbitration agreement to authorize  classwide relief will avoid unnecessary tension between the FAA and TILA. For  authority Randolph points to decisions of state courts in California and  Pennsylvania permitting classwide arbitration. See, e.g., Keating v. Superior  Court, Alameda County, 109 Cal.App.3d 784, 167 Cal.Rptr. 481 (1980); Dickler v.  Shearson Lehman Hutton, Inc., 408 Pa.Super. 286, 596 A.2d 860 (1991).


5
On the other hand, the two federal courts that have addressed this issue have  held that classwide arbitration is available only if that remedy is expressly  provided for in the parties' arbitration agreement. See, e.g., Champ v. Siegel  Trading Co., 55 F.3d 269, 275 (7th Cir.1995) ("[S]ection 4 of the FAA forbids  federal judges from ordering class arbitration where the parties' arbitration  agreement is silent on the matter."); Gammaro v. Thorp Consumer Discount Co.,  828 F.Supp. 673, 674 (D.Minn.1993) (refusing to order classwide arbitration of  TILA claims where the "arbitration agreement makes no provision for class  treatment of disputes" (footnote omitted)). We have not yet spoken to the  precise issue, but in Protective Life Insurance Corp. v. Lincoln National Life  Insurance Corp., 873 F.2d 281 (11th Cir.1989), we held that arbitrations may be  consolidated only when the arbitration agreement so provides. The reasoning of  our Protective Life decision may dictate that we join the Seventh Circuit and  the District Court of Minnesota in holding that classwide relief may not be  insisted upon in an arbitration proceeding if the agreement is silent on the  subject of that type of remedy. Or maybe not. We have no occasion to decide that  today, because Randolph did not properly preserve the issue of whether classwide  relief is available in the arbitration proceeding itself.


6
Randolph initially took the position that the availability of classwide  arbitration was an open question in this circuit, but the district court held  that our decision in Protective Life ruled out classwide arbitration and that,  as a result, "compelling arbitration in this instance will eliminate Plaintiff's  ability to arbitrate her claims on behalf of a class." Randolph apparently found  that holding to her strategic liking and came to embrace it. Instead of urging  us to reject that holding, Randolph's first brief on appeal assured us that "[t]here is no provision in the Green Tree contract for a class or consolidation  of actions," and told us that the "right" to bring a class action "cannot be  duplicated in arbitration." Having picked that horse, Randolph must continue  riding it.


7
Recently, in another remand from the Supreme Court, we declined to consider an  issue that was not raised by the appellant when he was before us initially,  citing the "well-established rule that issues and contentions not timely raised  in the briefs are deemed abandoned." United States v. Ardley, --- F.3d ----  (11th Cir.Feb. 20, 2001). See also Hartsfield v. Lemacks, 50 F.3d 950, 953 (11th  Cir.1995) ("We note that issues that clearly are not designated in the initial  brief ordinarily are considered abandoned." (marks and citation omitted)). A  supplemental brief after remand from the Supreme Court is not a proper place for  switching positions and resurrecting arguments abandoned earlier. We will decide  what remains of this case based upon the district court's previously  unchallenged holding, and Randolph's pre-remand position, that the arbitration  agreement precludes any type of classwide relief in the arbitration proceeding.


8
ENFORCEABILITY OF ARBITRATION PROVISIONS PRECLUDING CLASS ACTION REMEDIES FOR TILA CLAIMS


9
That brings us to Randolph's second position, which is that because the  agreement she signed does not permit classwide arbitration, it is unenforceable.  The issue is whether an arbitration agreement that bars pursuit of classwide  relief for TILA violations is unenforceable for that reason. The two principal  decisions bearing upon this issue are Gilmer v. Interstate/Johnson Lane Corp.,  500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), and Bowen v. First Family  Financial Services., Inc., 233 F.3d 1331 (11th Cir.2000).


10
In Gilmer, the Supreme Court set out the standards for determining whether a  federal statutory claim is subject to arbitration. The Court stated that "[i]t  is now clear that statutory claims may be the subject of an arbitration  agreement, enforceable pursuant to the FAA," and went on to instruct us that:


11
Although all statutory claims may not be appropriate for arbitration,  "[h]aving made the bargain to arbitrate, the party should be held to it unless  Congress itself has evinced an intention to preclude a waiver of judicial  remedies for the statutory rights at issue." ... If such an intention exists,  it will be discoverable in the text [of the statute], its legislative history,  or an "inherent conflict" between arbitration and the [statute's] underlying  purposes.


12
Gilmer, 500 U.S. at 26, 111 S.Ct. at 1652 (citations omitted). The Gilmer Court  also held that the burden is on the party opposing arbitration to show that  Congress intended to prevent waiver of a judicial forum in favor of an arbitral  forum for the statutory claims. Id. The Court explained that an "inherent  conflict" between the policies underlying a federal statute and the enforcement  of an agreement to arbitrate claims under that statute does not exist simply  because the statute "is designed not only to address individual grievances, but  also to further important social policies ... [because] so long as the  prospective litigant effectively may vindicate [his or her] statutory cause of  action in the arbitral forum, the statute will continue to serve both its  remedial and deterrent function." Id. at 27-28, 111 S.Ct. at 1653 (marks and  citations omitted).


13
In light of those Gilmer standards, we addressed in Bowen the issue of whether  the text of TILA and its legislative history, or an inherent conflict between  TILA and the FAA, would render an arbitration clause unenforceable, and we  concluded that they did not. 233 F.3d at 1334 and 1338. Bowen involved claims  made under ECOA, 15 U.S.C. 1691, et seq., a necessary premise of which was the  proposition "that the TILA grants consumers a non-waivable right to litigate,  individually and through a class action, any claims arising under the statute."  Id. at 1335. In deciding whether TILA created such a "right," we considered the  plaintiffs' arguments about the role of class actions in the TILA enforcement  scheme. We acknowledged that the text of TILA specifically contemplates class  actions as evidenced by the fact that the statute caps the amount of statutory  damages available in a TILA class action. Id. at 1337. The cap on those damages  was enacted in order to overcome courts' reluctance to certify TILA class  actions in light of the potentially crippling statutory damage awards which  might otherwise result. Id. We also considered in Bowen TILA's legislative  history "which stresses the importance of class action procedures in the TILA  scheme," and which the plaintiffs argued was an indication that "Congress  intended to guarantee consumers access to individual lawsuits and class actions  to allow them to serve as private attorneys general in enforcing the provisions  of the TILA, thereby furthering the policy goals of the statute." Id.


14
But after discussing TILA's text and legislative history relating to class  action remedies in Bowen, we reasoned as follows:


15
[W]e recognize, of course, that a class action is an available, important  means of remedying violations of the TILA. See 15 U.S.C.  1640. However,  there exists a difference between the availability of the class action tool,  and possessing a blanket right to that tool under any circumstance.... An  intent to create such a "blanket right," a non-waivable right, to litigate by  class action cannot be gleaned from the text and the legislative history of  the TILA.


16
Id. at 1337-38 (citations and quotations omitted). We said that "[w]hile the  legislative history of  1640 shows that Congress thought class actions were a  significant means of achieving compliance with the TILA, ... it does not  indicate that Congress intended to confer upon individuals a non-waivable right  to pursue a class action nor does it even address the issue of arbitration." Id.  at 1338. We also concluded that the "private attorneys general" aspect of TILA's  enforcement scheme did not require a different conclusion. Id.


17
In light of the Bowen decision and for the reasons set out in our opinion in  that case, Randolph cannot carry her burden of showing either that Congress  intended to create a non-waivable right to bring TILA claims in the form of a  class action, or that arbitration is "inherently inconsistent" with the TILA  enforcement scheme. We did say in Bowen that our holding went "no further than  the [ECOA]  1691(a)(3) issue" and "[did] not reach the issue of whether an  agreement to arbitrate is unenforceable with respect to TILA claims on the  ground that there is an inherent conflict between arbitration and the ...  underlying purposes of the TILA."1 Id. at 1338-39 (citations and quotations  omitted). But there is no good reason why our analysis in Bowen of the interplay  between arbitration, class actions and TILA in the context of ECOA claims  premised on TILA violations does not apply with equal force to pure TILA claims.  Randolph simply repeats the arguments that we considered in Bowen concerning the  same statutory text, the same legislative history, and the same policy concerns.  We have already rejected those arguments because they do not establish that  Congress intended to preclude the arbitration of TILA claims, even where  arbitration would prevent the claims from being brought in the form of a class  action.


18
Our thinking in this respect is consistent with the Third Circuit's decision  that "[arbitration] clauses are effective even though they may render class  actions to pursue statutory claims under the TILA ... unavailable." Johnson v.  West Suburban Bank, 225 F.3d 366, 369 (3d Cir.2000), cert. denied sub nom.  Johnson v. Tele-Cash, Inc., --- U.S. ----, 121 S.Ct. 1081, --- L.Ed.2d ----  (2001). On the way to that conclusion, the court held that nothing in the text  of TILA created a non-waivable right to bring a class action, and although the  plaintiff argued that the legislative history "demonstrates the centrality of  class actions to the TILA's effective enforcement," the court held that that  history "falls short of demonstrating irreconcilable conflict between  arbitration and the TILA." Id. at 371-73. There is no irreconcilable conflict,  because the public policy goals of TILA can be vindicated through arbitration,  and the statute contains other incentives-statutory damages and attorneys  fees-for bringing TILA claims. Id. 373- 74. Not only that, but TILA also  provides for enforcement by administrative agencies. Id. at 375. For these  reasons, the Third Circuit concluded in Johnson, as we have here, that Congress  did not intend to preclude parties from contracting away their ability to seek  class action relief under the TILA. Id. at 378.


19
What the Supreme Court said in the present case reinforces our decision. In  reversing our earlier decision, the Court emphasized the "liberal federal policy  favoring arbitration agreements," which is embodied in the FAA, and noted that  it had previously "rejected generalized attacks on arbitration that rest on  'suspicion of arbitration as a method of weakening the protections afforded in  the substantive law to would-be complainants.' " Green Tree, 121 S.Ct. at 521-22  (citations and quotations omitted). See also Johnson, 225 F.3d at 376 ("Insofar  as Congress's intent, broadly contemplated, is concerned, we must give equal  consideration to Congress's policy goals in enacting the FAA."). According to  the Supreme Court, the last time this case was before us we made the mistake of  giving too little weight to the FAA's pro-arbitration policy. We decline to make  the same mistake again. Giving full weight to the congressional policy embodied  in the FAA, we hold that a contractual provision to arbitrate TILA claims is  enforceable even if it precludes a plaintiff from utilizing class action  procedures in vindicating statutory rights under TILA.

CONCLUSION

20
The judgment of the district court is AFFIRMED.

APPENDIX A

21
ARBITRATION: All disputes, claims, or controversies arising from or relating  to this Contract or the relationships 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 arbitration 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  having jurisdiction. The parties agree and understand that they choose  arbitration 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 KNOWINGLY 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 PROVIDED 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 binding arbitration in accord with this Contract.  The parties agree and understand that the arbitrator shall have all powers  provided by the law and the Contract ... [including] money damages,  declaratory relief, and injunctive relief. Notwithstanding anything hereunto  the contrary, Assignee retains an option to use judicial or non-judicial  relief to enforce a security agreement relating to the Manufactured Home  secured in a transaction underlying this arbitration agreement, to enforce the  monetary obligation secured by the Manufactured Home or to foreclose on the  Manufactured Home.... The initiation and maintenance of an action for judicial  relief in a court [on the foregoing terms] shall not constitute a waiver of  the right of any party to compel arbitration regarding any other dispute or  remedy subject to arbitration in this Contract, including the filing of a  counterclaim in a suit brought by Assignee pursuant to this provision.



NOTES:


*
  Honorable Jerome Farris, U.S. Circuit Judge for the Ninth Circuit, sitting by  designation.


1
  In Bowen, we had no occasion to address whether an arbitration clause precluding  class actions was enforceable in the TILA context because we found that the  plaintiffs in that case had no standing to pursue their TILA claims. Id. at  1341. The basis for this holding was that "there [was] no allegation that [the  defendant] ha[d] invoked, or threatened to invoke, the arbitration agreement to  compel the plaintiffs to submit any claim to arbitration." Id. at 1339. They did  have standing to pursue the claim that the defendant's requirement that they  sign an arbitration agreement constituted discrimination with respect to a  credit transaction in violation of ECOA, and it was that claim that we addressed  in Bowen. Id. at 1334-38.


