In a sweeping affirmance of Judge King, the 11th Circuit addresses yet another arbitration clause in the checking overdraft context.
The twist, however, is that in this situation the arbitration provision was in a prior agreement that was entirely superseded by a subsequent agreement that did not contain any arbitration clause at all.
So how can the bank insist the old clause still applies?
At this point, RBC reaches its last line of defense. RBC claims that even when parties supersede — rather than waive — a prior agreement containing an arbitration clause by forming a new agreement that is silent on arbitration, the prior agreement’s arbitration clause remains binding. In these situations, RBC contends that the arbitration clause can only be superseded if it is specifically eliminated by the superseding agreement. In other words, RBC claims that silence in a subsequent agreement is per se insufficient to eliminate an earlier agreement’s arbitration provision. This leads to the implausible conclusion that when parties indicate a clear intent to supersede a prior agreement, that superseding language applies to every term in the prior agreement except for arbitration provisions.
Does this even pass the blush test?