Citibank Arbitration Clause
Are you arbitration-ed out?
Waiting with bated breath for the Supremes to rule in Concepion already?
Well we have two significant arbitration updates to report on this evening.
First, Judge King invalidated Citibank's standard no-class action/arbitration clause in its credit card agreements, finding the clause to be substantively unconscionable under South Dakota law.
The opinion, which could potentially have wide application, has been Scribified above.
Second, my friends at Aventura law firm Stok Folk + Kon have scored big, with the Supremes taking cert in an arbitration clause waiver case also involving Citibank.
You can read the 11th Circuit's opinion here, which I humbly believe was wrongly decided.
Come on, the bank filed an answer(!), did not raise arbitration therein, and allowed the firm to serve an offer of judgment, reply to the answer, and discovery before suddenly realizing they have an applicable arbitration clause argument?
It's also picayune for the 11th to focus on the lack of record evidence of the time and money spent litigating in state court before the arbitration clause was invoked. The mere existence of the offer of judgment, reply to the answer and discovery requests should be sufficient to establish these facts for purposes of evaluating the prejudice to the law firm of Citibank sandbagging them a month later with the arbitration clause.
Seriously, should they have done a notice of filing of their time runs to prove this point?
(Whether or not these actions constitute sufficient prejudice is a different issue, and whether prejudice should be required at all after a waiver is presumably what the Court will be looking at).
Now, the last time a Florida native went all the way up to DC to argue a big-time case before the Supremes, there was a little issue with names.
Let's get it right this time, fellas!