Judge rules that banks cannot rely on AT&T Mobility v. Concepcion to compel arbitration in overdraft fee class actions

When the U.S. Supreme Court ruled earlier this year in AT&T Mobility v. Concepcion that AT&T could compel individual arbitration (taking away the customers' right to bring a class action), many decried the ruling as a significant hurdle in bringing consumer class actions.  This past week a federal judge in Miami narrowed the scope of the Concepcion opinion and dealt a huge blow to banks and other large corporations seeking to hide behind unconscionable class action waiver provisions.  In the new case, a consolidated multi-district case referred to as MDL No. 2036: In re Checking Account Overdraft Litigation, bank customers of 30 different national and regional banks brought nearly 100 separate class actions alleging that the banks illegally reordered the sequence of bank charges to maximize overdraft fees.  When the U.S. Supreme Court handed down the Concepcion opinion, some of those banks moved to compel arbitration.  In the new opinion, U.S. District Judge James L. King held that Concepcion does not require arbitration in every case, and the banks in the Miami case could not compel arbitration.  Judge King found that the banks could not enforce their arbitration provisions because the provisions were unconscionable under state and federal laws.  Plaintiffs' attorney Michael Sobol, of Lieff Cabraser Hiemann & Bernstein, said in a statement reported by Bloomberg News that the Miami opinion represents a "trememdous victory for consumers."