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Bickerstaff v. SunTrust Bank

The plaintiff effectively exercised his right to opt out of arbitration, pursuant to the opt-out provision in a deposit accounts agreement, when he filed suit against the bank alleging he was charged usurious bank card overdraft fees.

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These companion cases arise from a dispute between SunTrust Bank and one of its customers, Jeff Bickerstaff, Jr., over whether the parties must arbitrate their disagreement over what Bickerstaff contends are usurious bank card overdraft fees. In Case No. A14A1780, Bickerstaff argues that the trial court erred in denying his motion for certification of a class of SunTrust customers who also were charged the fees and in failing to find that SunTrust was barred from enforcing its arbitration provision as to the putative class. In Case No. A14A1781, SunTrust argues that the trial court erred in denying its motion to compel arbitration. For ease of analysis, we will address Case No. A14A1781 first and Case No. A14A1780 last. As detailed below, we affirm in both cases.

Bickerstaff opened a personal checking account with SunTrust in 2009, after agreeing to the bank’s Rules and Regulations for Deposit Accounts, which included a mandatory arbitration provision. In May 2010, in a case not involving Bickerstaff, a federal court determined that SunTrust’s mandatory arbitration provision was substantively and procedurally unconscionable under Georgia law. See In re Checking Account Overdraft Litigation, 734 F.Supp.2d 1279, 1292 II E and n. 15 S.D. Fla. 2010, later overturned in In re Checking Account Overdraft Litigation, MDL No. 2036, 459 Fed.Appx. 855, 858-859 III 11th Cir. 2012 finding the arbitration clause conscionable. Approximately one month after the initial federal decision, in June 2010, SunTrust amended its arbitration agreement to allow customers a window of time in which to opt out of arbitration if they sent SunTrust written notice that complied with various requirements. Customers such as Bickerstaff had to opt out by October 1, 2010.

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