In Dasher v. RBC Bank (USA), Case No. 15-13871 (decided February 13, 2018), the United States Court of Appeals for the Eleventh Circuit considered whether a bank could invoke an arbitration clause to block litigation when the bank had added the arbitration clause to its customer agreement by amendment while the litigation was in progress. The Eleventh Circuit held that the bank could not.

Mr. Dasher filed a lawsuit against RBC Bank regarding the bank’s overdraft practices. A 2008 customer agreement contained an arbitration agreement, but a 2012 amendment to the customer agreement, issued while the case was pending, had removed the arbitration clause. The district court ruled that the 2012 amendment controlled and refused to compel arbitration. While the parties continued to litigate over arbitration under the 2012 agreement, and after the district court had issued its ruling regarding the 2012 agreement, the bank in February 2013 issued an amendment to its customer agreement that included an arbitration clause. The amendment could be accepted by the customer by either not opting out or continuing to use the account. Mr. Dasher had done neither. The bank ultimately made a new motion to compel contending that Mr. Dasher was bound by the arbitration clause in the 2013 amendment.

The Eleventh Circuit ruled that the 2013 amendment was not effective because there was no meeting of the minds as to whether there was an agreement to arbitrate. Before and after the 2013 amendment, Mr. Dasher was vigorously resisting arbitration, evidencing his intent not to agree to arbitration. The Eleventh Circuit relied heavily on the fact that the bank had issued the “litigation-ending amendment” directly to Mr. Dasher at a time when he was represented by counsel in litigation regarding the subject of the amendment (arbitration). The Court concluded that the Bank’s failure to communicate through Mr. Dasher’s counsel was material to the existence of an agreement that would effectively end the litigation. The Court noted the ethics rule that prohibits an attorney from communicating directly to a party known to be represented by counsel regarding the subject of the communication. While the Court noted that it did “not intend to write an ethics opinion” (Opinion, p. 14), the Court found that the bank’s direct communication with the customer while litigation was pending evidenced a lack of an agreement between the bank and the customer about whether the arbitration agreement was effective.

This case is instructive to parties that may attempt to affect the outcome of litigation by amending agreements or communicating directly to a represented party while litigation is pending.

The Opinion is available here.