For $410 million, Bank of America Corp. has bought itself out of a massive class action over sorting of overdraft fees.
Now its fellow banks, many of which maximized fees with the same processing techniques, need to decide if they hold an advantage that B of A did not. Some might.
Setting aside its effect on the resources and drive of the attorneys coordinating the case — their bounty on B of A may run as high as $130 million — the breadth of the tentative settlement's impact may turn on a critical difference among the defendant banks. Though all of the banks used the same high-to-low processing techniques, recent rulings on mandatory arbitration clauses give some better prospects for getting the case dismissed than others.
Based on the wording of their contractual agreements with customers and prior attempts to enforce arbitration provisions, banks such as Regions Financial Corp., SunTrust Banks Inc. and BB&T Corp. may be able to push consumer grievances into the low-stakes world of individual arbitration. A second group, containing such institutions as Citigroup Inc. and PNC Financial Services Group Inc. did not have arbitration clauses in their customer clauses and clearly cannot do so. Finally, banks like Wells Fargo & Co. and JPMorgan Chase & Co. fall in the middle — they had arbitration clauses in place but were less aggressive in seeking to use them. They must now argue that they should take precedence over what are now well-established class action proceedings.
B of A is something of a special case in that it used to have arbitration clauses written into its contracts but has since stepped back on demanding their enforcement in small-dollar disagreements with customers. It did not pursue arbitration in the multidistrict litigation, however, putting it in roughly the same boat as the banks without arbitration provisions at all.
Distinctions among arbitration positioning could prove very meaningful, attorneys for both plaintiffs and the industry said.
"Those that don't have arbitration, we're going to hope that they determine that it's better they don't go to trial," said Aaron Podhurst of Podhurst Orseck P.A., co-lead counsel in the multidistrict litigation. "I don't see how you hope to defend this case where you don't have the arbitration issue. Everyone knows sequencing is wrong."
Though industry attorneys dismissed the plaintiffs counsel's confidence and moral stance, some appeared to agree on the legal positioning. Banks that have arbitration provisions will at the very least be able to put up a substantial fight based on last month's Supreme Court decision in AT&T Mobility v. Concepcion, which upheld the validity of mandatory arbitration clauses in consumer contracts. The ruling was widely seen as a boon for the financial services industry, and corporate defense attorneys such as Alan Kaplinsky consider it a major obstacle in the overdraft litigation.
"The banks that have arbitration are in good shape," said Kaplinsky, a Ballard Spahr LLP attorney who has litigated overdraft-ordering cases but is not directly involved in the Miami case in front of U.S. District Court Judge James Lawrence King.
"The banks that don't have it are in a more difficult situation, because Judge King has denied a federal motion to dismiss based on preemption," he said. "Surprisingly, a lot of the banks did not have arbitration in their checking account agreements."
Arbitration is hardly the only issue that might factor into banks' decision to settle or push the case to trial. Many cases are lumped together into a master case for judicial efficiency, but how each bank handles its defense will depend on circumstances such as the quality of its fee disclosures, previous litigation it has settled on related subjects and the bank's intent in ordering payments.
For Bank of America, a prior $35 million overdraft class action settlement posed a significant obstacle for the plaintiffs that could conceivably have precluded further damages. The existence of that settlement likely would have strengthened Bank of America's position when negotiating with plaintiffs attorneys.
Asked about the case, Bank of America spokeswoman Anne Pace said "we are pleased to reach a fair resolution to this matter," and noted the bank's recent work to prevent customer overdrafts. Bank of America did not admit to any wrongdoing in the proposed settlement.
The settlement comes at a time when Bank of America is doing its best to put legal feuds and merger-related troubles behind it. In London on Tuesday at a Barclays Capital conference, Chief Executive Brian Moynihan made no direct mention of the fees but said B of A put a premium on leaving distractions behind it. The company has wrapped up legal issues whenever possible, he said.
B of A's legacy mortgage problems are "the remaining issue left in the future," he said.
Such company-specific circumstances can make a great difference.
"You can't predict what any bank is going to do," Kaplinsky said. "That settlement worked for Bank of America, it may not work for any of the other banks."
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