State High Court Denies B of A Arbitration Appeal

The state Supreme Court on Wednesday left intact a ruling allowing longtime Bank of America customers to take disputes to court rather than submit to binding arbitration. The ruling could affect millions of bank customers.

The court denied review of an appellate decision last November that declared the bank’s arbitration clause unenforceable on the grounds that customers hadn’t knowingly surrendered their right to a jury trial.

The ruling is now binding on trial courts statewide and could be used to challenge new arbitration clauses other businesses try to enforce against longtime customers. The court rejected a request from businesses to withdraw the ruling as a precedent for future cases.

A lawyer for four customers who challenged the bank said the ruling will protect all 3.4 million credit card customers and 9 million checking account holders who did business with the bank in June 1992, when the clause was introduced. If the bank tried to make them arbitrate any dispute, they could use the ruling to go to court instead, said attorney James Sturdevant.

State and federal courts seem to be recognizing that if a business can impose arbitration through a notice that few customers read, “you can basically make the civil justice system disappear without the knowledge or consent of the customer,” Sturdevant said.

Seth Hufstedler, a lawyer for the bank, could not be reached for comment.

In mandatory, binding arbitration, a referee or a panel decides disputes, with little or no right to appeal. Banks, health maintenance organizations and similar businesses favor it as a quick and inexpensive alternative to civil court.

But many consumer advocates consider it one-sided. They contend a business would have more experience with the arbitration process than a typical customer.

Bank of America notified its customers by mail over several months in 1992 that it would require arbitration of all disputes. The bank relied on a clause in previous contracts allowing the bank to change any term of a customer’s account after written notice.