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Badie v. Bank of America

California Class ActionSan Francisco Superior CourtCase No. 944916

Case Type:  Consumer RightsConsumer Fraud

A class action lawsuit challenging Bank of America’s attempt to impose unilaterally alternative dispute resolution (“AD R”) on its checking and credit card account customers, thus depriving them of access to the courts and of their constitutional rights to trial by judge or jury.  Plaintiffs challenged both the procedure utilized by the bank in imposing ADR on its customers as well as the substance of the bank’s chosen ADR “agreements.”  The Bank’s policy and procedure required no informed consent or signature; the policy was imposed automatically when a customer wrote a check or used a credit card.  Plaintiffs sought relief from Bank of America’s practices under two California consumer protection statutes:  The Consumer Legal Remedies Act (California Civil Code § 1750 et seq.) and the Unfair Competition Law (California Business and Professions Code § 17200 et seq.).  After nearly a four-week trial, the trial court issued its decision in August 1994, to uphold the bank’s attempted modification of its contracts although finding no evidence that a substantial portion of the customers read or were aware of the arbitration/reference provisions.  In November 1998, the Court of Appeal reversed.  It concluded that the ADR clause was a new material term to the agreement which required clear, unmistakable consent by the customer.  It found that the bank breached the covenant of good faith and fair dealing, that the policy favoring arbitration does not come into play until there is found to be an enforceable agreement containing the arbitration clause and that the waiver of the constitutional right to a jury trial requires unambiguous consent.  Badie v. Bank of America (Cal. App. 1st Dist., 1998) 67 Cal. App. 4th 779, 79 Cal. Rptr. 2d 273.

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