By Eric Jones
On May 29, 2015, the Fourth Circuit issued a published opinion in the civil case Dillon v. BMO Harris Bank. The Circuit Court held that the district court erred when it denied appellant’s renewed motion to compel arbitration pursuant to loan agreements that the plaintiff had signed. Thus, the Fourth Circuit vacated and remanded to the district court for further proceedings.
The Automated Clearing House Network and Payday Lenders
In 2013, James Dillon obtained loans from several online lenders that carried interest rates which substantially exceed the maximum allowable rates under North Carolina State law. The defendants, BMO Harris Bank, N.A., Generations Federal Credit Union, and Bay Cities Bank (the “Banks”) operated as Originating Depository Financial Institutions (“ODFIs”) in connection with the loans. Dillon alleges that in doing so they provided the payday lenders with access to the Automated Clearing House (the “ACH”) network, a system to enable secure electronic payments. When payments were due under Dillon’s loans, the lenders initiated payment transactions through the ACH network. The Banks then entered the transactions into the ACH network. Soon after, a central clearing facility transferred funds directly from Dillon’s account to those of the lenders. In this way, Dillon alleges that the payday lenders were able to establish loans in states where those loans are illegal and unenforceable.
The Motions to Compel Arbitration
Dillon filed a putative class action against the Banks alleging that by operating as OFDIs for payday lenders, they were complicit and necessary parties to the lenders’ unlawful practices. The Banks filed initial motions to compel arbitration, pointing to clauses in the loan agreements stating that any claims arising from those loans would be submitted to arbitration. To these motions, the Banks attached the loan agreements themselves bearing Dillon’s name. In opposition, Dillon argued that the Banks had failed to offer proof that the attached loan agreements had been authenticated. The Banks argued that because Dillon used the same loan agreements in his complaint, the pleadings themselves established the authenticity of the agreements and the arbitration clause. Nevertheless, the district court denied the motion to compel arbitration, finding that the Banks had failed to provide authenticating evidence.
To cure the deficiency, the Banks obtained declarations from the lenders purporting to authenticate the loan agreements and filed renewed motions to compel arbitration. Dillon opposed, arguing that the district court had already ruled on the motion to compel arbitration, and thus the law of the case doctrine should bar reconsideration. The district court agreed, and the Banks filed a timely interlocutory appeal.
The Federal Arbitration Act and Interlocutory Appeals
The Fourth Circuit began by explaining the history of the Federal Arbitration Act (FAA) and the requirement that courts rigorously enforce agreements to arbitrate. Section 16(a)(1)(A) of the FAA provides for immediate appeal from an order refusing a stay in any litigation that is referable to arbitration, and § 16(a)(1)(B) provides for immediate appeal for any order denying a petition to compel arbitration. The Banks argued that the district court’s denial of the renewed motion to compel arbitration and stay the proceedings thus allows immediate appeal. Dillon, in opposition, argued that the district court’s order denied reconsideration of the motion to compel arbitration, and thus fell outside of the FAA. The Fourth Circuit, looking to the title of the motions and the clear intention to seek enforcement of an arbitration clause, held that valid jurisdiction existed over the appeal.
The District Court Erred by Interpreting the Renewed Motions as Motions for Reconsideration
Although the district court did not explain why it considered the renewed motions to be motions for reconsideration, the Circuit Court found two potential reasons. The Fourth Circuit held that neither were convincing. First, the district court could have believed that the Banks were allowed only one opportunity to invoke the FAA’s enforcement mechanisms. Alternatively, the district court could have relied on the law of the case doctrine, believing that both motions invoked the same issues. The Circuit Court addressed each of these in turn.
First, the Fourth Circuit could find no authority which limited a party’s access to FAA’s enforcement mechanisms unless the party is found to be in default. A party is found to be in default, and thus barred from compelling arbitration or staying the proceedings, only if they have utilized the litigation machinery so substantially that to subsequently permit arbitration would prejudice the party opposing the stay. Because the district court did not find that the Banks were in default, the order could not have rested upon these grounds.
Second, the Fourth Circuit held that the initial motions to compel arbitration and the renewed motions raised different issues, and thus were not barred by the rule of the case doctrine. In their initial motions, the Banks argued that the loan agreements were substantially authenticated. When the district court disagreed, the Banks did not challenge that ruling in their renewed motions. Rather, they attempted to cure the evidentiary deficiencies that the district court relied on in denying the initial motion. Thus, the law of the case doctrine did not bar the renewed motions.
The Fourth Circuit Vacated and Remanded for Further Proceedings
Because the district court erred in its interpretation of the Banks’ renewed motions to compel arbitration, the Fourth Circuit vacated the court’s order and remanded for further proceedings.