January 03, 2019 Articles

Litigate Today, Arbitrate Tomorrow? Not So Fast, Big Business!

By Alexander Bachuwa

The issue in Dasher v. RBC Bank (USA), 882 F.3d 1017 (11th Cir. 2018), was whether the defendant could compel arbitration in a case, where consumers were actively engaged in a lengthy pending litigation, simply by updating its customer-account agreement to include an arbitration provision. The plaintiff artfully characterized the defendant’s motion to compel as “litigation-protracting sandbagging.” Id. at 1024 n.4. Unsurprisingly, the defendant took the exact opposite position, arguing that it amended its agreement containing an arbitration provision only for account holders who continued to use their accounts and did not opt out. Id. at 1021 n.3. On appeal, the Eleventh Circuit held that the defendant’s motion “failed to demonstrate the requisite meeting of the minds to support a finding that the parties agreed . . . to arbitrate their then-pending litigation.” Id. at 1021.

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