ATLANTA — The U.S. Court of Appeals for the 11th Circuit on Feb. 13 affirmed a lower court's denial of RBC Bank’s motion for arbitration in a class-action case initiated by account holders accusing it of rearranging debit card transactions for increased overdraft charges.

While RBC Bank repeatedly motioned and failed to compel arbitration on multiple customer service agreements, the appeals court concluded that RBC Bank’s motions failed for two more fundamental reasons: the distribution of litigation-ending amendments to those customer service agreements and the fact that Michael Dasher, who filed the original complaint, consistently resisted arbitration, according to background information in the decision.

RBC Bank attempted to use multiple customer agreements from 2008, 2012 and 2013 as justification for motioning for arbitration. Dasher claimed these attempts were strategic ploys, paralleling the court’s own conclusions.

Citing not creating the amendment until three years after litigation began, failing to assert said amendment and pursuing arbitration under a different agreement for the duration of the case, the US District Court for the Southern District of Florida previously denied RBC Bank's motion.

The 11th Circuit cited Russell v. Citigroup Inc. in which the defendant attempted to retroactively apply an employment agreement to avoid the potential consequences of litigation already underway. The court found Citigroup lacked the intent for the agreement to be retroactive and potentially end litigation through its failure to convincingly communicate with the other party. For the court, this was persuasive in upholding the trial court’s denial of a motion for arbitration.

Another point of interest is reflected in how the case was remanded in consideration of the Supreme Court’s decision of AT&T Mobility LLC v. Concepcion, which found the defendant guilty of fraudulently offering free hardware while still charging sales tax. That case affected Dasher v. RBC Bank in how AT&T Mobility LLC’s motion to compel arbitration was similarly denied based on a lack of clearly communicated intention.

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