Last year, the U.S. Supreme Court’s landmark decision in AT&T Mobility LLC v. Concepcion sent a resounding message in favor of arbitration clauses and class action waivers in consumer contracts.1 The high Court strengthened that message for banks last week by declining to review rulings enforcing arbitration clauses in bank deposit agreements.2
Buffington v. SunTrust Banks, Inc. and Hough v. Regions Fin. Corp. are part of a wave of class action litigation across the country challenging banks’ processing order for debit card and ATM transactions and the effect that processing order has on customers’ overdraft fees.3 SunTrust and Regions were swept into a massive multidistrict litigation proceeding in the Southern District of Florida in which the court has issued several plaintiff-friendly decisions. The district court continued its trend in favor of plaintiffs by denying SunTrust’s and Regions’ motions to compel arbitration. Both banks appealed.
The Eleventh Circuit Court of Appeals reversed the district court, finding that the banks’ arbitration clauses were enforceable and applicable. The court noted that The Federal Arbitration Act reflects a “liberal federal policy favoring arbitrations,” providing that arbitration agreements “shall be . . . enforceable, save upon such grounds as exist at law or in equity for [their] revocation.”4 The court rejected arguments that the specific arbitration clauses at issue were either procedurally or substantively unconscionable, finding that the clauses were consistent with Georgia law, were not particularly one-sided and were conspicuous.
By declining to review the Eleventh Circuit’s decision in favor of the banks’ arbitration agreements, the Supreme Court has effectively confirmed that the liberal federal policy in favor of arbitration applies to consumer contracts. Banks should review their deposit agreements to determine whether to include arbitration clauses and class action waivers, and if so, how those clauses should be worded. Our financial institutions attorneys are experienced in drafting these clauses and representing banks in court proceedings, arbitrations and regulatory proceedings.
1 AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1745 (2011).
2 Buffington v. SunTrust Banks, Inc., No. 12-146, 2012 U.S. LEXIS 7890 (Oct. 9, 2012); Hough v. Regions Fin. Corp., No. 12-139, 2012 U.S. LEXIS 7880 (Oct. 9, 2012).
3 In re Checking Account Overdraft Litg., 459 Fed. Appx. 855 (11th Cir. 2012); Hough v. Regions Fin. Corp., 672 F.3d 1224 (11th Cir. 2012).
4 9 U.S.C. § 2 (2012).