Swift v. BancorpSouth, Inc.

859 F. Supp. 2d 1313
CourtDistrict Court, S.D. Florida
DecidedApril 30, 2012
DocketCase No. 09-MD-02036-JLK; MDL No. 2036
StatusPublished
Cited by13 cases

This text of 859 F. Supp. 2d 1313 (Swift v. BancorpSouth, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swift v. BancorpSouth, Inc., 859 F. Supp. 2d 1313 (S.D. Fla. 2012).

Opinion

ORDER DENYING BANCORPSOUTH BANK’S MOTION TO STAY AND GRANTING PLAINTIFF’S EMERGENCY MOTION TO ENJOIN COPYCAT CASE UNDER THE ALL WRITS ACT

JAMES LAWRENCE KING, District Judge.

On March 27, 2012, nearly two years after this action was commenced and approximately 18 months after the Judicial Panel on Multidistrict Litigation (“JPML”) transferred it to this Court for inclusion in this multidistrict litigation proceeding, Defendant BancorpSouth Bank (“BaneorpSouth”) filed a Notice of Settlement and Motion to Stay and Suspend Scheduling Order (“Motion to Stay”) (DE #2602) based on the entry of an order granting preliminary approval of a proposed class action settlement in an action styled Thomas, et al. v. Bancorpsouth Bank, et al, filed on February 29, 2012 in the United States District Court for the Western District of Arkansas, Case No.: l:12-cv1016-RTD {“Thomas”). The Motion to Stay urges this Court to stay all further class-related proceedings in this action because the proposed class action settlement in Thomas would, if finally approved, encompass the claims of all proposed class members in this action other than named Plaintiff Shane Swift.

On March 29, 2012, Plaintiff Swift, Plaintiffs’ Co-Lead Counsel, and the Plaintiffs’ Executive Committee (“PEC”), filed an Opposition to the Motion to Stay and Emergency Motion to Enjoin Copycat Case Under the All Writs Act (“Motion to [1317]*1317Enjoin”) (DE # 2603). The Motion to Enjoin asserts that this Court should deny the Motion to Stay and enjoin BancorpSouth, its attorneys, and all others acting in concert with them from proceeding in any fashion with the Thomas case, including the proposed class action settlement, because, inter alia, (i) the action pending before this Court is the first-filed action challenging BancorpSouth’s re-sequencing of debit transactions in a manner designed to inflict more overdraft fees on its customers, (ii) this action is substantially further progressed than Thomas, and on the eve of a class certification decision, with a June 2012 discovery cutoff, and (iii) permitting BancorpSouth — or any other defendant — to settle the claims pending against it in this multidistrict litigation proceeding in another forum would undermine the jurisdiction of this Court and the responsibilities imposed on it by the JPML to oversee, administer and resolve all pretrial issues raised in In re Checking Account Overdraft Litigation, MDL 2036 (“MDL 2036”).

The Motion to Stay and the Motion to Enjoin are fully briefed (DE # 2602, 2603, 2605, 2626, 2634 & 2635) and the Court proceeds with the benefit of oral argument (DE # 2642). As announced at the conclusion of the April 18 hearing and as discussed below, the Court denies BancorpSouth’s Motion to Stay and grants Plaintiffs and the PEC’s Motion to Enjoin.

I. FINDINGS OF FACT1

On May 18, 2010, Plaintiff Swift filed a nationwide class action complaint against Defendant BancorpSouth in the Northern District of Florida, challenging BancorpSouth’s overdraft fee policies and practices {“Swift”). Swift was the first-filed class action lawsuit challenging BancorpSouth’s overdraft fee policies and practices. On October 20, 2010, over BancorpSouth’s objection, the JPML transferred Swift to this Court as part of MDL 2036.

Swift has been actively litigated in this Court for almost 18 months. Among other activities, this Court entered a comprehensive Scheduling Order on April 13, 2011 (DE # 1340), setting firm deadlines for the conduct of discovery and motion practice and a January 14, 2013 trial date. In accordance with the Scheduling Order, the Court denied BancorpSouth’s motion to dismiss (DE # 1305); BancorpSouth filed its amended answer and affirmative defenses (DE # 1693); the Court denied BancorpSouth’s Daubert motion (DE # 2650); and Plaintiff filed its Motion for Class Certification (DE # 2271), which is fully briefed and awaiting decision.2 The parties also engaged in extensive pretrial discovery, including depositions and BancorpSouth’s production of over 100,000 pages of documents, conducted pursuant to the Court’s Scheduling Order that establishes a June 22, 2012 deadline for completing discovery.

Moreover, for a period spanning July 2011 through December 2011, counsel for Plaintiff and BancorpSouth exchanged privileged and confidential settlement-related communications and data with the goal of ultimately engaging in mediation in Swift. (DE #2626 & 2625). As part those settlement negotiations, Plaintiff retained an expert to complete a damage [1318]*1318analysis calculation based on sample transactional data provided by BancorpSouth. Plaintiffs expert concluded that the class’ damages were in excess of $12 million. See Supplemental Declaration of Jeffrey M. Ostrow (DE # 2625), at ¶ 19. In response, counsel for BancorpSouth stated that “the case would not settle and will go to trial.” Id. Yet, during the same time period, the same counsel for BancorpSouth was participating in intensive settlement negotiations and mediations of a case with identical claims and a substantially similar class in Arkansas before re-filing the case in a race to the courthouse for a lower settlement. See Settlement Agreement (DE # 2605-10), at 140 (establishing $1.75 million “Settlement Fund” in Thomas for a proposed class that is broader in scope and for a longer time period than in Swift).3

This Court first learned of the existence of Thomas on March 27, 2012, when BancorpSouth filed a notice that a proposed class action settlement had been preliminarily approved in Thomas by the Honorable Robert T. Dawson, United States District Judge, Western District of Arkansas, and requested that this Court stay all class-related proceedings in Swift to allow the parties in Thomas to move forward with the final settlement approval process before Judge Dawson in Arkansas. (DE # 2602). Prior to March 27, 2012, BancorpSouth’s counsel never made this Court, the PEC, or Plaintiffs counsel aware of any other overdraft-fee-related lawsuits filed or pending against Bancorpsouth. (DE# 2603-1).

As a result of the motion practice that ensued, this Court has learned that on August 2, 2011 — nearly 18 months after Swift was filed — one of the named plaintiffs in Thomas, Billy D. Lawson, Jr., filed an action in Arkansas state court styled Billy D. Lawson, Jr. v. Bancorpsouth, Inc., et al., Case No.: CV-11-4261 (21st Judicial District, Crawford County, Ark.) (“Lawson ”), alleging claims nearly identical to those already pending in Swift. (DE # 2605-1). On September 9, 2011, Lawson was voluntarily dismissed without prejudice so that Plaintiffs counsel in Lawson and BancorpSouth could pursue confidential settlement negotiations. (DE #2603-1 & 2605-1). Those confidential settlement negotiations continued for approximately six months, including two mediation sessions, culminating in the February 2012 class action settlement agreement that was submitted to Judge Dawson for preliminary approval in Thomas. (DE # 2605-1).

On February 28, 2012, the day before the settlement agreement was signed, Plaintiff Melvin L. Thomas, III joined Plaintiff Lawson in filing Thomas in the Western District of Arkansas, asserting claims nearly identical to those in the Swift action.

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Bluebook (online)
859 F. Supp. 2d 1313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swift-v-bancorpsouth-inc-flsd-2012.