In the most recent sign of this fallout, a federal judge in San Francisco postponed motions on class certification in a lawsuit against U.S. Bancorp after its lawyers at Reed Smith moved to compel arbitration. The lawsuit was filed by customers who alleged they were improperly charged overdraft fees after U.S. Bancorp automatically deducted auto loan payment from checking accounts with too little money. The auto loan agreement contained an arbitration clause that U.S. Bank now seeks to enforce. Federal district court judge Richard Seeborg has scheduled a hearing for June 23.
Plaintiffs counsel S. Chandler Visher told the Litigation Daily that he planned to argue that U.S. Bancorp waived its right to arbitrate by allowing the suit to proceed for so long without attempting to compel arbitration. He pointed out that the case has already survived a motion to dismiss and discovery has begun. “They’ve gone too far down the path,” he said.
U.S. Bancorp counsel Heather Hoesterey of Reed Smith declined comment citing the ongoing status of the case.
Other firms are also busy preparing similar filings. “We probably have about three dozen class actions pending around the county that were stayed pending the outcome of Concepcion,” said Alan Kaplinsky of Ballard Spahr. His firm has been alerting judges about the Supreme Court ruling in an effort to bolster pending motions to compel arbitration.
