FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DENISE P. EDWARDS, individually 

and on behalf of all others Nos. 08-56536 similarly situated, 08-56538 Plaintiff-Appellant,

D.C. No.

v.  CV-07-03796-SJOTHE FIRST AMERICAN CORPORATION; FFM

FIRST AMERICAN TITLE INSURANCE OPINION COMPANY,

Defendants-Appellees. 

Appeals from the United States District Court

for the Central District of California

James Otero, District Judge, Presiding

Argued and Submitted

February 4, 2010—Pasadena, California

Filed June 21, 2010

Before: Betty B. Fletcher, Harry Pregerson, and

Susan P. Graber, Circuit Judges.

Opinion by Judge Graber

9089
COUNSEL

Cyril V. Smith, Zuckerman Spaeder LLP, Baltimore, Maryland, and James W. Spertus, Law Offices of James Spertus,

Los Angeles, California, for the plaintiff-appellant.

Richard M. Zuckerman, New York, New York, and Charles

A. Newman, St. Louis, Missouri, for the defendantsappellees.

Gregory W. Happ, Medina, Ohio, and Mary Dryovage, Law

Offices of Mary Dryovage, San Francisco, California, for

amicus curiae.

EDWARDS v. FIRST AMERICAN CORPORATION 9091
OPINION

GRABER, Circuit Judge: 

Plaintiff Denise P. Edwards filed a complaint against

Defendants The First American Corporation (“First American”) and its wholly owned subsidiary, First American Title

Insurance Company (“First American Title”) (collectively,

“Defendants”). The complaint alleged a violation of the Real

Estate Settlement Procedures Act of 1974 (“RESPA”), 12

U.S.C. § 2607. According to Plaintiff, First American improperly paid millions of dollars to individual title companies and

in exchange those title companies entered into exclusive referral agreements with First American. Plaintiff moved for class

certification, and certain discovery, which the district court

denied. Plaintiff’s appeal from those rulings is addressed separately in a memorandum disposition filed this date. At the

same time as Plaintiff filed her motions, Defendants moved to

dismiss the complaint for lack of standing. The district court

denied the motion, and Defendants brought this appeal. We

have jurisdiction pursuant to 28 U.S.C. § 1292(b). See also 28

U.S.C. § 1292(e); Fed. R. Civ. P. 23(f). For the reasons that

follow, we affirm.

First American is a publicly traded holding company that

owns, in addition to First American Title, several other companies in the field of real estate-related information services.

First American Title is a title insurance underwriter that issues

title insurance policies to real estate owners and lenders in 47

states and the District of Columbia. Defendants assert that

First American has an ownership interest in a small proportion of the thousands of title insurance agencies that are

authorized to sell First American Title policies. Plaintiff contends that, in exchange for First American’s purchase of a

minority interest, many of these title agencies enter into “exclusive” agency agreements with First American Title, pursuant to which the agencies agreed to sell First American Title’s

title insurance policies generally. Defendants assert that few

9092 EDWARDS v. FIRST AMERICAN CORPORATION
First American Title “exclusive” agency agreements are completely exclusive. Plaintiff claims that these agreements are

actually exclusive and thus illegal under the anti-kickback

provisions of RESPA.

According to Plaintiff’s allegations, she was affected by

one such exclusive agency agreement between First American

and Tower City. In 1998, First American paid Tower City $2

million in cash and securities. According to Plaintiff’s allegations, in exchange, First American received a 17.5% minority

interest in Tower City, and Tower City entered into a “Captive Title Insurance Agreement” that required it to refer all

future title insurance business “exclusively” to First American

Title. Plaintiff further alleges that Tower City had agreements

with and regularly referred business to at least three other title

insurers prior to 1998, but then began referring customers

exclusively to First American after they entered into the Captive Title Insurance Agreement.

Plaintiff, a resident of Cleveland, Ohio, bought a home in

Cleveland in September 2006. Tower City was the settlement

agent and conducted the closing at its office in Highland

Heights, Ohio. At or before settlement, Plaintiff received a

“HUD-1 Settlement Statement” showing, on line 1108, that

she would pay $455.43 and the seller would pay $273.42 for

title insurance. Plaintiff claims that her title insurance was

referred to First American pursuant to an exclusive agency

agreement, which Plaintiff alleges was illegal under RESPA.

Plaintiff filed a complaint in district court. Defendants

responded by filing a motion to dismiss for lack of subject

matter jurisdiction. Specifically, Defendants claimed that

Plaintiff lacked both Article III standing and statutory standing under RESPA. The district court denied Defendants’

motion, holding that RESPA gave Plaintiff certain rights, the

violation of which conferred standing. We review de novo.

Mortensen v. County of Sacramento, 368 F.3d 1082, 1086

(9th Cir. 2004).

EDWARDS v. FIRST AMERICAN CORPORATION 9093
[1] There are three requirements for Article III standing—

injury, causation, and redressability. Fulfillment Servs. Inc. v.

UPS, 528 F.3d 614, 618 (9th Cir. 2008). The parties disagree

about the injury component only. Defendants argue that Plaintiff has not suffered a concrete injury in fact because she has

not alleged that the charge for title insurance was higher than

it would have been without the exclusivity agreement. Plaintiff does not and cannot make this allegation because Ohio

law mandates that all title insurers charge the same price.

Ohio Rev. Code Ann. §§ 3935.04, 3935.07 (West 2010).

Nonetheless, Plaintiff counters that the damages provision in

RESPA gives rise to a statutory cause of action whether or not

an overcharge occurred. We agree with Plaintiff.

[2] “The injury required by Article III can exist solely by

virtue of ‘statutes creating legal rights, the invasion of which

creates standing.’ ” Fulfillment Servs., 528 F.3d at 618-19

(quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)). “Essentially, the standing question in such cases is whether the constitutional or statutory provision on which the claim rests

properly can be understood as granting persons in the plaintiff’s position a right to judicial relief.” Warth, 422 U.S. at

500. Thus, we must look to the text of RESPA to determine

whether it prohibited Defendants’ conduct; if it did, then

Plaintiff has demonstrated an injury sufficient to satisfy Article III. 

It is well settled in this court that “statutory interpretation

begins with the plain language of the statute.” United States

v. Chaney, 581 F.3d 1123, 1126 (9th Cir. 2009) (brackets and

internal quotation marks omitted). “The preeminent canon of

statutory interpretation requires us to presume that the legislature says in a statute what it means and means in a statute

what it says there. Thus, our inquiry begins with the statutory

text, and ends there as well if the text is unambiguous.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir.

2009) (brackets and internal quotation marks omitted). 

9094 EDWARDS v. FIRST AMERICAN CORPORATION
[3] RESPA prohibits the payment of “any fee, kickback, or

thing of value” in exchange for business referrals and also forbids that a “portion, split, or percentage of any charge made

or received for the rendering of a real estate settlement service” be paid for services that are not actually rendered to the

customer. 12 U.S.C. § 2607(a), (b). Whenever a violation of

these prohibitions occurs, the statute provides that the defendants are liable to the “person or persons charged for the settlement service involved in the violation in an amount equal

to three times the amount of any charge paid for such settlement service.” Id. § 2607(d)(2) (emphasis added).

[4] These RESPA provisions are clear. A person who is

charged for a settlement service involved in a violation is entitled to three times the amount of any charge paid. The use of

the term “any” demonstrates that charges are neither restricted

to a particular type of charge, such as an overcharge, nor limited to a specific part of the settlement service. Further, the

term “overcharge” does not exist anywhere within the text of

the statute. 

[5] Because the statutory text does not limit liability to

instances in which a plaintiff is overcharged, we hold that

Plaintiff has established an injury sufficient to satisfy Article

III. The legislative history of RESPA supports our holding.

As first enacted in 1974, RESPA entitled purchasers to damages “in an amount equal to three times the value or amount

of the fee or thing of value” that changed hands. Pub. L. No.

93-533, § 8(D)(2), 88 Stat. 1724 (1974) (amended 1983). This

provision failed to account for “controlled business arrangements” like the alleged agreement between Tower City and

First American Title, whereby an entity could provide a referral without the direct payment of a referral fee. A 1982 House

Committee Report noted that these practices could result in

harm beyond an increase in the cost of settlement services:

[T]he advice of the person making the referral may

lose its impartiality and may not be based on his proEDWARDS v. FIRST AMERICAN CORPORATION 9095
fessional evaluation of the quality of service provided if the referror or his associates have a financial

interest in the company being recommended.

[Because the settlement industry] almost exclusively

rel[ies] on referrals . . . the growth of controlled

business arrangements effectively reduce[s] the kind

of healthy competition generated by independent settlement service providers.

H.R. Rep. No. 97-532, at 52 (1982). 

Acting on this concern, Congress exempted controlled business arrangements from liability only in limited circumstances, 12 U.S.C. § 2607(c)(4), and eliminated the “thing of

value” phrasing in the damages provision, replacing it with

“any charge paid” for the settlement service, id. § 2607(d)(2).

Calculating the penalty with reference to the entire amount of

the settlement service appears to address instances in which

no direct referral fee has been paid. Indeed, these no-fee situations were the impetus behind Congress’ enactment of the

1983 amendment. See H.R. Rep. No. 98-123, at 77 (1983)

(expecting that RESPA violators “involved in controlled business arrangements . . . shall be . . . liable . . . in the amount

of three times the amount of the charge paid for the settlement

service”).

[6] Because RESPA gives Plaintiff a statutory cause of

action, we hold that Plaintiff has standing to pursue her claims

against Defendants. Our holding places us in agreement with

two of our sister circuits. In Carter v. Welles-Bowen Realty,

Inc., 553 F.3d 979, 989 (6th Cir. 2009), the Sixth Circuit held

that a plaintiff has standing to sue a settlement service provider under RESPA, even if that plaintiff was not overcharged

for settlement services. The court came to that conclusion

after looking at the text of RESPA and then examining its legislative history and the overall intent of RESPA. Id. at 986-88.

The Third Circuit held similarly in Alston v. Countrywide

Financial Corp., 585 F.3d 753, 755 (3d Cir. 2009), stating

9096 EDWARDS v. FIRST AMERICAN CORPORATION
that Congress created a private right of action without requiring an overcharge allegation. 

AFFIRMED in part; REVERSED in part and

REMANDED. The parties shall bear their own costs on

appeal.

EDWARDS v. FIRST AMERICAN CORPORATION 9097