Citibank (South Dakota), N.A. v. Desmond

114 So. 3d 401, 2013 WL 2320747, 2013 Fla. App. LEXIS 8458
CourtDistrict Court of Appeal of Florida
DecidedMay 29, 2013
DocketNo. 4D12-1745
StatusPublished

This text of 114 So. 3d 401 (Citibank (South Dakota), N.A. v. Desmond) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Citibank (South Dakota), N.A. v. Desmond, 114 So. 3d 401, 2013 WL 2320747, 2013 Fla. App. LEXIS 8458 (Fla. Ct. App. 2013).

Opinion

TAYLOR, J.

The case below began as a credit card debt collection action filed by Citibank [402]*402(South Dakota), N.A., against Leo Desmond. Desmond filed a counterclaim alleging that Citibank violated the Florida Security in Communications Act, Chapter 934, Florida Statutes, by electronically recording conversations with its customers. Citibank moved to compel arbitration pursuant to the credit card agreement, which contained an arbitration clause with a class-action waiver. Relying upon our decision in McKenzie v. Betts, 55 So.3d 615 (Fla. 4th DCA 2011), the trial court denied the motion after determining that the class-action waiver violated Florida public policy. Subsequently, the Florida Supreme Court quashed our decision based on the United States Supreme Court’s decision in AT&T Mobility, LLC v. Concepcion, - U.S. -, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011).1 See McKenzie v. Betts, 112 So.3d 1176, 2013 WL 1457843 (Fla. April 11, 2013). Accordingly, we reverse the trial court’s order denying Citibank’s motion to compel arbitration.

At the hearing on Citibank’s motion to compel arbitration, Desmond contended that the arbitration agreements should be invalidated as against public policy because the class action prohibition prevented him and others from vindicating their statutory rights under Chapter 934, Florida Statutes. To support his claim, Desmond, a licensed lawyer, submitted his own affidavit averring that he cannot afford to hire counsel and experts to prove his claim because their costs would exceed his potential recovery of $1000. He also submitted the affidavits of several attorneys who attested that Desmond would not be able to obtain effective representation if he could not proceed as part of a class. The trial court found the affidavits persuasive and determined that Desmond had provided competent, substantial evidence that his statutory rights would not be vindicated through individual arbitration. Citing our reasoning in McKenzie regarding the preeminence of Florida public policy over the general policy favoring arbitration, the trial court agreed with Desmond that the inability to bring a class action against Citibank would frustrate the Florida public policy that prompted the Legislature to enact the Florida Security in Communications Act.

In McKenzie, we affirmed a trial court’s denial of a motion to compel arbitration in a case wherein a borrower brought a putative class action against a payday lender under the state usury and interest statutes and various other consumer protection laws. 55 So.3d at 617. We concluded that “[b]ecause payday loan cases are complex, time-consuming, involve small amounts, and do not guarantee adequate awards of attorney’s fees, individual plaintiffs cannot obtain competent counsel without the procedural vehicle of a class action. The class action waiver prevents consumers from vindicating their statutory rights, and thus violates public policy.” Id. at 629. Due to the increasing use of such class-action waivers in consumer contracts, we certified to the Florida Supreme Court the issue of whether an arbitration agreement’s class-action waiver violates public policy when a claim is asserted under a remedial statute and the trial court is persuaded by evidence that such waiver prevents consumers from obtaining competent counsel. Id.

In denying Citibank’s arbitration motion, the trial court relied on McKenzie and attempted to distinguish the United States Supreme Court’s recent decision in Concepcion. In Concepcion, the Court [403]*403held that the Federal Arbitration Act (“FAA”) preempted state public policy concerns that invalidated class-action waivers in arbitration agreements. 131 S.Ct. at 1747-49. The trial court found, however, that Concepcion did not extend the preemptive effect of the FAA to “the generally applicable contract defenses” and that Concepcion did not expressly overrule precedent with respect to invalidating an arbitration agreement on public policy grounds where the arbitration agreement prevents a claimant from vindicating his statutory cause of action. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985).

On appeal, Desmond urges us to affirm the trial court’s denial of Citibank’s motion to arbitrate, arguing that Concepcion does not apply where an arbitration agreement containing a class action prohibition violates public policy by preventing a claimant from vindicating his or her statutory rights. In quashing our McKenzie decision, however, the Florida Supreme Court rejected this very argument. The court stated:

Kelly’s primary argument for why Concepcion does not apply in this case is based on her assertion that Concepcion does not disturb long-standing Supreme Court precedent dating back to Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985), that statutory claims are arbitrable only if the prospective litigant effectively may vindicate his or her statutory cause of action in the arbitral forum. See Mitsubishi Motors, 473 U.S. at 637, 105 S.Ct. 3346 (stating that “so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function”); Green Tree Fin. Corp.-Ala v. Randolph, 531 U.S. 79, 90, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000) (stating that “even claims arising under a statute designed to further important social policies may be arbitrated because ‘so long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum,’ the statute serves its functions” (quoting Mitsubishi Motors, 473 U.S. at 637, 105 S.Ct. 3346)); see also Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 115 S.Ct. 2322, 132 L.Ed.2d 462 (1995); EEOC v. Waffle House, Inc., 534 U.S. 279, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002). Kelly asserts that because Concepcion did not overrule this line of precedent, the only way to harmonize Concepcion with these cases is to hold that a' class action waiver cannot be enforced if it would prevent parties from vindicating statutory rights.
The case law, however, does not support Kelly’s argument. The Supreme Court cases cited by Kelly involved the FAA and claims brought under federal statutes, whereas Concepcion involved the issue of whether state law was preempted by the FAA. Compare Mitsubishi Motors, 473 U.S. at 627-28, 105 S.Ct.

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Related

Vimar Seguros Y Reaseguros, S. A. v. M/V Sky Reefer
515 U.S. 528 (Supreme Court, 1995)
Green Tree Financial Corp.-Alabama v. Randolph
531 U.S. 79 (Supreme Court, 2000)
McKenzie v. Betts
55 So. 3d 615 (District Court of Appeal of Florida, 2011)
McKenzie Check Advance of Florida, LLC v. Betts
112 So. 3d 1176 (Supreme Court of Florida, 2013)

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Bluebook (online)
114 So. 3d 401, 2013 WL 2320747, 2013 Fla. App. LEXIS 8458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citibank-south-dakota-na-v-desmond-fladistctapp-2013.