Tuesday, October 30, 2012

Arbitration Opinion from the 11th Circuit Court of Appeals

Garcia v. Wachovia Corp., 2012 U.S. App. LEXIS 22268 (11th Cir. Fla. Oct. 26, 2012) held that in a case that had been pending in court for more than a year, the bank waived its right to compel arbitration.  This is a claim brought by customers as a putative class alleging the banks unlawfully charged them with overdraft fees.  Conducting discovery for such a lengthy period and litigating a number of motions was (1) acting inconsistent with the arbitration right; and (2) prejudiced the plaintiffs who had incurred considerable expense in engaging in such litigation.  The court also rejected the argument that it would have been futile to move to compel arbitration prior to AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011) because that case did not establish new law.

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