Tale of Two Headlines: Checking Overdraft Update...or Herman Russomanno Looked White Hot!

So who else saw Herman Russomanno looking quite dapper at the Heat game last night?

LOVE the white jacket and red hankie!

In other SD FL news, the plaintiffs in the Checking Overdraft litigation, in light of new bank motions to arbitrate filed after the Supreme Court's Concepcion decision, are arguing waiver (of course) but also that the Supreme Court didn't fundamentally change the law in the 11th Circuit:

Simply put, Concepcion did not change the law of arbitration enforceability in the vast majority of the relevant states. For example, Concepcion changes nothing in states such as Florida, Georgia, Texas and others, where certain Plaintiffs reside. These states have never adopted a rule even closely resembling Discover Bank’s per se rule against class action waivers.

What do you think -- does this argument hold water?

Checking Overdraft Cases Thrown into Turmoil!

We've previously reported on the numerous orders entered by Judge King finding various banks' arbitration clauses to be unconscionable.

Those orders are now highly suspect in light of the Supreme Court's Concepcion opinion last week.

Already the 11th Circuit has vacated at least five of these orders:

After oral argument in this case, the United States Supreme Court decided AT&T Mobility LLC v. Conception, No. 09-893, 2011 WL 1561956 (April 27, 2011). The district court’s order denying the motion to compel arbitration is VACATED, and this case is remanded to the district court for reconsideration in light of the Supreme Court’s opinion.

And Wells Fargo immediately moved before Judge King to have the case against it dismissed for lack of jurisdiction.

How this will impact the $410 million BoA settlement announced back in February is anyone's guess.

It's Citibank Arbitration Day in the SD FL!

Citibank Arbitration Clause

Are you arbitration-ed out?

Waiting with bated breath for the Supremes to rule in Concepion already?

Well we have two significant arbitration updates to report on this evening.

First, Judge King invalidated Citibank's standard no-class action/arbitration clause in its credit card agreements, finding the clause to be substantively unconscionable under South Dakota law.

The opinion, which could potentially have wide application, has been Scribified above.

Second, my friends at Aventura law firm Stok Folk + Kon have scored big, with the Supremes taking cert in an arbitration clause waiver case also involving Citibank.

You can read the 11th Circuit's opinion here, which I humbly believe was wrongly decided.

Come on, the bank filed an answer(!), did not raise arbitration therein, and allowed the firm to serve an offer of judgment, reply to the answer, and discovery before suddenly realizing they have an applicable arbitration clause argument?

It's also picayune for the 11th to focus on the lack of record evidence of the time and money spent litigating in state court before the arbitration clause was invoked.  The mere existence of the offer of judgment, reply to the answer and discovery requests should be sufficient to establish these facts for purposes of evaluating the prejudice to the law firm of Citibank sandbagging them a month later with the arbitration clause.

Seriously, should they have done a notice of filing of their time runs to prove this point?

(Whether or not these actions constitute sufficient prejudice is a different issue, and whether prejudice should be required at all after a waiver is presumably what the Court will be looking at).

Now, the last time a Florida native went all the way up to DC to argue a big-time case before the Supremes, there was a little issue with names.

Let's get it right this time, fellas!

"There's Gambling Going On Here"?

Jennifer Love Hewitt - New Music - More Music Videos

I'm feeling pretty morose over the general political, economic, and legal climate we find ourselves in nowadays.

We may soon have Scott as our Governator and Rubio our Senator.

That's depressing enough.

Meanwhile the judicial vacancy crisis rages on, with real-life negative effects for litigants seeking justice:

Since March 2007, Middle Tennessee has been short one of its four U.S. District Court judges. Then, as now, Middle Tennessee should have four federal district court judges to share the responsibilities of adjudicating all of the civil actions and federal criminal matters filed in our 32-county region. With the fourth position vacant, more than 1,400 civil cases and more than 300 criminal cases involving over 550 criminal defendants must now be handled by the remaining three federal judges, taxing the judges and the federal court system.

Senior judges work part-time to assist in managing that caseload, and four magistrate judges conduct preliminary hearings on criminal matters and some of the civil trials by agreement of the parties. The vacancy of one of the four seats renders it difficult for the judges to handle the escalating caseload effectively. Placing this burden on the remaining judges can lead to a serious delay in the administration of justice in the Middle District of Tennessee.

President Barack Obama has had fewer judges confirmed to the bench than any president at this point in his tenure since Richard Nixon nearly 40 years ago.

With our do-nothing Congress, is there any reason to expect some confirmations before it adjourns?

Maybe we don't need courts anymore, depending on how the Supremes handle the arbitration issues raised in the important AT&T Mobility v. Concepcion case, due to be argued before the Wise Ones on November 9th.

Same with the widening question of preemption, also due to be argued before the Supremes this term.

Here's one reason vesting all power in the feds may not be a good idea:

The agency responded by releasing a detailed report last year that found that the agency’s scientific reviewers had repeatedly and unanimously over many years declared Menaflex unworthy of approval, but that they had been overruled by agency managers after political pressure from four Democrats from New Jersey — Senators Robert Menendez and Frank R. Lautenberg and Representatives Frank Pallone Jr. and Steven R. Rothman. The report also concluded that Dr. Andrew C. von Eschenbach, then the agency’s commissioner, had become inappropriately involved in the decision, and that agency procedures had been bypassed.

All four lawmakers made their inquiries about Menaflex after receiving significant campaign contributions from ReGen, which is based in Hackensack, N.J. Dr. von Eschenbach and the four lawmakers said they acted properly.

God I'm beginning to sound like an ass.

What to do, what to do......

Ok, I feel better now.