Checking Overdraft -- I Move to Strike Your Motion to Strike My Motion!

In light of the recent Supreme Court and 11th Circuit rulings on arbitration provisions, many of the checking overdraft bank defendants have asked Judge King to reconsider his rulings denying their motions to compel arbitration.

Naturally, the plaintiffs have responded like all good plaintiffs should -- by aggressively attacking the very motion to reconsider and moving to strike the reconsideration motion as improper.

Turns out, however, that it may be improper to move to strike a motion to reconsider as being improper:

No relief is available to Plaintiff under her Rule 12(f) Motion to Strike. First, and most important, a motion to strike applies only to pleadings, which does not include motions. See Santana v. RCSH Operations, LLC, 2011 U.S. Dist. LEXIS 21814, *2–4 (S.D. Fla. Feb. 18, 2011); see also Croom v. Balkwill, 672 F. Supp. 2d 1280, 1285 (M.D. Fla. 2009) ("To object to the substance contained in a motion, the opposing party should raise such objections in the material it submits in opposition to the motion, rather than in a motion to strike."); Mann v. Darden, 2009 U.S.Dist. LEXIS 63044, *2 (M.D. Ala. July 6, 2009); Pimentel & Sons Guitar Makers, Inc. v. Pimentel, 229 F.R.D. 201, 203 (D.N.M. 2005) ("There is no provision in the Federal Rules of Civil Procedure for motions to strike motions and memoranda."); Phinney v. Paulshock, 181 F.R.D. 185, 207 (D.N.H. 1998); Weiss v. PPG Indus., Inc., 148 F.R.D. 289, 292 (M.D. Fla. 1993); 2-12 Moore's Federal Practice, Civil § 12.37 (2011) ("Only material included in a 'pleading' may be the subject of a motion to strike, and courts have been unwilling to construe the term broadly. Motions . . . may not be attacked by the motion to strike."). Plaintiff cites no authority to the contrary. Thus, Plaintiff's Motion to Strike BB&T's Renewed Motion is not permitted and the Court should deny the Motion to Strike for this reason alone.

I hope the plaintiffs reply by moving to strike the response to their motion to strike, which will be met with a motion to strike their motion to strike D's response to their motion to strike.

And then come the reconsideration motions.

Welcome to federal court!

Tom Scott Declares Impasse in Checking Overdraft Suit Against Chase Bank.

As the prospect of the application of the Supreme Court's Concepcion decision on arbitration clauses hangs over their heads, the plaintiffs and JP Morgan Chase Bank are unable to settle their claims before mediator and former federal judge™ Tom Scott, who has declared an impasse.

You can read the plaintiffs' response to the arbitration motion here.

The response centers largely on waiver and all the litigation conduct undertaken by Chase over the last two years, and seeks to distinguish the arbitration provision at issue in Concepcion from the one utilized by Chase here.

Judge King has already interrupted merits discovery but has authorized limited arbitration-related discovery against co-defendant US Bank.

Looks Like Jeremy Alters Has Finally Made It!

And by "made it," I'm not referring to his firm's role in the recent BoA checking overdraft settlement preliminarily approved by Judge King the other day, I'm talking about getting sued for a percentage of the fees that may be recovered down the road:

As an exhibit, the suit includes a copy of a contract between Campos and Alters' former firm, Alters Boldt Brown Rash Culmo. The agreement stipulates Campos agreed to work exclusively for Alters to develop potential cases.

"Campos brokered significant relationships on behalf of … Alters ... in Latin America such as top members of the government, law firms, attorneys and other noteworthy persons who were instrumental in the origination of cases pursued by the Alters law firm as a result of its agreement with Campos," the complaint said.

Hmm, these things don't ordinarily end too well for anyone involved.

This part isn't too good either, if true:

Campos y Asociados also alleges it originated the Bank of America lawsuit pending before U.S. District Judge James Lawrence King and is entitled to a 25 percent origination fee. Alters acknowledged the class action was originated by Campos in an email Aug. 21, 2008, according to the suit.

Alters has hired Andy Hall, who has moved to dismiss the suit claiming these are foreign attorneys unauthorized to practice law in Florida, and thus the contract is illegal or unenforceable?

If so wouldn't that leave a quantum meruit or unjust enrichment-type claim?

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.

Judge King Finds Another Bank Arbitration Clause Unconscionable.

And this one had a belts-and-suspenders Delegation Clause (sneaky!), which he also found unconscionable.

For good measure he found this blog unconscionable, but can anyone really argue that point?

BREAKING -- BoA Checking Overdraft Settles HUGE!

Good to see all that TARP money going to a good place:

Plaintiffs and Bank of America, N.A., through their respective undersigned counsel, hereby notify the Court that on or around January 27, 2011, they executed a Memorandum of Understanding evidencing an agreement in principle, under which Bank of America will pay the total sum of four hundred ten million and 00/100 dollars ($410,000,000.00) in exchange for a full and complete release of all claims brought against Bank of America in this multidistrict litigation.

Aaron, your timing is impeccable as always.

Bobby Gilbert Leaves Alters for Grossman Roth.

Gilbert Grossman Roth

The turmoil at Jeremy Alters' firm continues as class action litigator Bobby Gilbert is apparently leaving for PI powerhouse Grossman Roth.

This according to Judge King who is supervising the checking overdraft MDL, and who entered an order noting Gilbert's move to his new firm, creating a new position for Bobby as "Coordinating Counsel" and appointing Grossman Roth to the plaintiff's executive committee.

The Court also appointed war horse (ed. note -- this is a compliment!) Aaron Podhurst to serve as co-lead counsel with Bruce Rogow.

Congrats on the move Bobby!

Judge King Doesn't Like Contention Interrogatories.

Hey, neither do I.

But what I really like about this Order, entered today in the Checking Overdraft litigation, is that the Judge articulates in an intelligent, reasonable way why exactly these rogs can go off the rails and also how to fix that problem, adopting Judge Brazil's innovative burden-shifting approach from 1985.


Ahh yes, 1985 -- when many of us were strapping on Keytars, grooving to the Greg Kihn Band, and the only thing in contention was whether to wear the teal or lavender leg warmer before heading out with the Sony Walkman to go buy some of that tasty New Coke.

Memories....