Since 2010, the Supreme Court and the Eleventh Circuit Court of Appeals have issued several influential pro-arbitration rulings which are beginning to impact financial services litigation. At least one district court recently held that a bank’s use of an arbitration provision in a customer agreement is enforceable, requiring the dismissal of a putative class action being brought by that customer.
In August 2010, the Supreme Court held that even the question of enforceability of the arbitration clause was a question for the arbitrator, not a court, and the Court further limited the ability of employees and consumers to challenge the fairness of arbitration provisions. Rent-A-Center West v. Antonio Jackson, 130 S. Ct. 2772 (2010). Rent-A-Center is widely viewed as an important pro-arbitration shift in the law of arbitration clause enforceability. Two additional cases have since extended the pro-arbitration policy to uphold class action waivers in consumer contracts. 1
In light of these recent decisions, this week a Florida federal judge overseeing multiple overdraft fee lawsuits found that certain account agreement arbitration provisions were valid and enforceable.2 The judge then dismissed putative class suits by bank customers whose account agreements included these arbitration provisions.
The August 28, 2013 decision of the Florida judge came just one day after the court heard oral argument on the issue. The court's decision is particularly significant because it had previously denied motions to dismiss filed by various banks, and had permitted bank customers, over the banks' objections, to proceed with discovery in their lawsuits. In fact, the judge previously rebuffed a bank's attempt to enforce its arbitration provision, holding that the provision was unenforceable and unconscionable because it contained a class action waiver which he believed unfairly protected the bank from liability. The judge further ruled that the agreement was impermissibly one-sided.
The federal court's reversal is especially noteworthy not only because it follows and adds to the growing body of law in favor of arbitration, but also because it upholds an arbitration provision specifically in favor of financial institutions in a highly-watched series of overdraft fee class action lawsuits. The decision of the Florida court helps widen the door for financial institutions to use arbitration provisions to avoid costly, time-intensive and public litigation, especially class action lawsuits, in favor of private dispute resolution. Financial institutions should review their customer agreements and consider whether an appropriately tailored arbitration clause would help them achieve their business and litigation strategies.
1 AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) and Cruz v. Cingular Wireless LLC, 648 F.3d 1205 (11th Cir. 2011).
2 See KeyBank Order and Wells Fargo Order.