Mcgovern v. U.S. Bank N.A.

362 F. Supp. 3d 850
CourtDistrict Court, S.D. California
DecidedJanuary 25, 2019
DocketCase No.: 18-CV-1794-CAB-LL
StatusPublished
Cited by6 cases

This text of 362 F. Supp. 3d 850 (Mcgovern v. U.S. Bank N.A.) is published on Counsel Stack Legal Research, covering District Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mcgovern v. U.S. Bank N.A., 362 F. Supp. 3d 850 (S.D. Cal. 2019).

Opinion

Hon. Cathy Ann Bencivengo, United States District Judge

This matter is before the Court on a motion to compel arbitration filed by Defendant *854U.S. Bank N.A. ("USB"). The motion has been fully briefed, and the Court held a hearing on January 23, 2019. For the following reasons, the motion is granted.

I. Background

Plaintiff Reyna McGovern initiated this putative class action lawsuit on August 2, 2018, with a complaint asserting claims for breach of contract and violation of California's unfair competition law, California Business and Professions Code § 17200 et seq. ("UCL"), arising out of USB's practices concerning the assessment of two types of fees. The complaint refers to these fees as "OON Fees" and "OD Fees." The OON Fee claims arise out of USB's alleged practice of charging two fees for use of out-of-network ("OON") automated teller machines ("ATMs") when an accountholder checks her account balance and then withdraws funds. The OD Fee claims arise out of USB's alleged practice of charging an overdraft fee for transactions made with a debit card at a time when sufficient funds were available because in the time between when the debit card transaction is made and when it settles, an intervening transaction on the checking account reduces the amount of funds in the account to less than the amount of the prior debit card transaction. The complaint calls these transactions "Authorize Positive, Purportedly Settle Negative Transactions" or "APPSN Transactions."

McGovern alleges that these duplicate OON Fees and OD Fees are not permitted by the account agreements governing her and other account-holders' relationships with USB. The complaint defined two classes, one for California account-holders who were assessed duplicate OON fees when checking their balances before making an OON ATM withdrawal, and one for California account-holders who were charged an OD Fee on a debit card transaction that was authorized at a time when the account balance exceeded the amount of the transaction. The complaint asserted separate breach of contract and UCL claims on behalf of each class, and sought a declaration that USB's OON Fee and OD Fee policies were unfair and a breach of contract, restitution of the improperly assessed fees, disgorgement, actual, statutory and punitive damages, and "an order on behalf of the general public enjoining [USB] from continuing to employ unfair methods of competition and commit unfair and deceptive acts and practices alleged in [the] complaint...." [Doc. No. 1 at 26-27.]

USB responded to the original complaint with a motion to compel arbitration based on Plaintiff's agreement to arbitrate in her deposit account agreement. [Doc. No. 12.] Plaintiff, in turn, filed a first amended complaint ("FAC") [Doc. No. 14] instead of opposing the motion to compel. The FAC added an "Injunctive Relief Class" consisting of all persons in California eligible to open a consumer checking account. The FAC asserted the same four claims as the original complaint (two breach of contract claims and two UCL claims) but added the Injunctive Relief Class as a party to the UCL claims. The FAC also removed the prayer for an "order on behalf of the public" from the original complaint and added a prayer for a "public injunction that enjoins [USB] from continuing to misrepresent its OD Fee policy governing APPSN transactions and OON Fee policies in its publicly available account documents and marketing materials such as its 'Account Agreement,' 'Fee Schedule,' and the 'Simple Snapshot.' " [Doc. No. 14 at 34.]

USB once again moves to compel arbitration of this lawsuit pursuant to the arbitration provision in the Deposit Account Agreement between Plaintiff and USB. That arbitration provision states:

ARBITRATION
*855This section does not apply to any dispute in which the amount in controversy is within the jurisdictional limits of, and is filed in, a small claims court.... These arbitration provisions shall survive closure of your account or termination of all business with us. If any provision of this section is ruled invalid or unenforceable, this section shall be rendered null and void in its entirety.
Arbitration Rules: In the event of a dispute relating to or arising out of your account or this Agreement, you or we may elect to arbitrate the dispute.... Without regard to which arbitration body is selected to resolve the dispute, any disputes between you and us as to whether your claim falls within the scope of this arbitration clause shall be determined solely by the arbitrator, and not by any court.
Arbitration can only decide our or your dispute and cannot consolidate or join claims of other persons who may have similar claims. There will be no authority or right for any disputes to be arbitrated on a class action basis.
Effects of Arbitration: If either of us chooses arbitration, neither of us will have the right to litigate the dispute in court or have a jury trial. In addition, you will not have the right to participate as a representative or member of any class of claimants, or in any other form of representative capacity that seeks monetary or other relief beyond your individual circumstances, pertaining to any dispute subject to arbitration. There shall be no authority for any claims to be arbitrated on a class action or any other form of representative basis. Arbitration can only decide your or our claim, and you may not consolidate or join the claims of other persons who may have similar claims, including without limitation claims for public injunctive or other equitable relief as to our other customers or members of the general public. Any such monetary, injunctive, or other equitable relief shall be limited solely to your accounts, agreements, and transaction with us. Notwithstanding the foregoing, any question as to the validity and effect of this class action waiver shall be decided solely by a court of competent jurisdiction, and not by the arbitrator.

[FAC Ex. A at 18-19.]

II. Legal Standard

The Federal Arbitration Act, 9 U.S.C. §§ 1 - 16 (the "FAA") "was enacted in 1925 in response to widespread judicial hostility to arbitration agreements," AT & T Mobility LLC v. Concepcion , 563 U.S. 333, 339, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011), and it "reflects an 'emphatic federal policy' in favor of arbitration," Ferguson v. Corinthian Colleges, Inc. , 733 F.3d 928, 932 (9th Cir. 2013) (quoting Marmet Health Care Ctr., Inc. v. Brown , 565 U.S.

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Cite This Page — Counsel Stack

Bluebook (online)
362 F. Supp. 3d 850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgovern-v-us-bank-na-casd-2019.