Second Circuit Remands Dispute Over Arbitration Of Bank Rewards Program Claims

Class Action Rewards Programs

On October 22, the U.S. Court of Appeals for the Second Circuit overturned a district court’s denial of a motion to compel arbitration in a dispute over a deposit account rewards program and instructed the district court on how to assess whether the claims should be arbitrated. Hirsch v. Citibank, N.A., No. 13-1172, 2013 WL 5716397 (2nd Cir. Oct. 22, 2013). In this case, two individuals filed suit on behalf of a putative class of similarly situated bank customers, alleging that the bank attracted customers with promises of frequent flier miles rewards but failed to disclose that customers would be required to report part of the rewards to the IRS as income. The district court denied the bank’s motion to compel arbitration, holding that the agreement to arbitrate was not binding on the parties as the signature cards signed by the customers upon opening deposit accounts failed sufficiently to reference a document containing an arbitration provision. On appeal, the bank argued that the district court should not have relied solely on the incorporation by reference doctrine and that the court ignored the bank’s policy of providing at account opening a deposit account client manual including an arbitration provision. The Second Circuit found that the district court failed to conduct a complete analysis of incorporation by reference, and held that the district court must conduct a factual inquiry into whether the bank actually provided the client manual. The Second Circuit held that on remand the bank must sufficiently demonstrate that it had in place a corporate policy requiring provision of the client manual. Further, the court held that, because the client manual does not on its face state that it is an agreement governing the account, the bank must show that new customers are informed that the client manual governs the account and that it contains an arbitration clause.