[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 16

- 16820

________________________ D.C. Docket No s . 1:09

- md

- 02036

- JLK, 1:09

- cv - 23685

- JLK , 1:09

- cv - 23834

- JLK, 1:09

- cv - 21386

- JLK DOLORES GUTIERREZ, on behalf of herself and all others similarly situated, MARC MARTINEZ, on behalf of himself and all others similarly situated, ALEX ZANKICH, WILLIAM RUCKER, individually and on be half of all others similarly situated, Plaintiffs

- Appellees ,

versus WELLS FARGO BANK, NA , Defendant

- Appellant

.

________________________ No. 16

- 16823

________________________ D.C. Docket No s . 1:09

- md

- 02036

- JLK, 1:08

- cv - 22463

- JLK, 1:09

- cv - 21680

- JLK MELANIE L. GARCIA, CELIA SPEARS

- HAYMOND, as an individual and on behalf of all others similarly situated,

Case: 16-16820 Date Filed: 05/10/2018 Page: 1 of 152 Plaintiffs

– Appellees, versus WELLS FARGO BANK, NA , Defendant

- Appellant

.

________________________ Appeal s from the United States District Court for the Southern District of Florida

________________________ ( May 10, 2018 )
Before TJOFLAT and JORDAN , Circuit Judges , and STEELE, ∗ District Judge

. TJOFLAT, Circuit Judge : This appeal arises from five class actions brought by bank customers (“Plaintiffs”) alleg ing that their banks unlawf ully charged them overdraft fees.
Th ese cases have been before this Court multiple times in recent years

. 1 In this appeal, Wells Fargo appeals the District Court’s denial of its motion to compel arbitration with the unnamed P laintiffs comprising the classes. The District Court denied the motion because it found that Wells Fargo waived its arbitration r ights as against those unnamed P laintiffs. W e hold that the District Court’s finding of

∗ Honorable John E. Steele, United States District Judge for the Middle District of Florida, sitting by designation. 1 See, e.g. , In re Checking Account Overdraft Litig. ( Spears

- H aymond I ), 780 F.3d 1031 (11th Cir. 2015 ) ; Barras v. Branch Banking & Trust. Co. , 685 F.3d 1269 (11th Cir. 2012); Garcia v. Wachovia Corp. , 699 F.3d 1273 (11th Cir. 2012); Given v. M&T Bank Corp. , 674 F.3d 1252 (11th Cir. 2012); Hough v. Regions Fin. Corp. , 672 F.3d 1224 (11th Cir. 2012).

Case: 16-16820 Date Filed: 05/10/2018 Page: 2 of 153 waiver with re spect to the unnamed P laintiffs was erroneous. We therefore vacate the District Court’s order

. I. Plaintiffs , all current or former checking account holders of Wells Fargo or Wachovia (“Wells Fargo”) , 2 filed these class actions in 2008 and 2009. P laintiffs allege that Wells Fargo committed certain unlawful practices relating to the charging of o verdraft fees

. Wells Fargo is one among dozens of banks accused of such conduct: in June 2009, the Judicial Panel on Multidistrict Litigatio n consolidated the class action here with numerous other cases thro ughout the country in which plaintiffs accused various banks of the same or similar overdraft practices. Garcia v. Wachovia Corp. , 699 F.3d 1273, 1276 (11th Cir. 2012). Wells Fargo’s accounts were governed by customer agreements that provide d for arbitra tion of disputes on an individual basis. In relevant part, t he customer agreement s state d, “E ither [the customer] or the Bank may require the submission of a dispute to binding arbitration at any reasonable time notwithstanding that a lawsuit or other proceeding has been commenced. ” Id. at 1275

. Additionally, t he customer agreements prohibited customers or Wells Fargo from consolidating any disputes or “ includ[ing] in any arbitration any dispute as a representative or member of a class.” Id.

2 Wells Fargo acquired Wachovia in January 2009, and Wachovia no longer operates as a separate bank. Ac cordingly, we refer to both banks jointly as “ Wells Fargo. ”

Case: 16-16820 Date Filed: 05/10/2018 Page: 3 of 154 After the cases were consolidated in late 2009 , the District Court on November 6, 2009 , ordered all of the defendant banks to file all “merits and non

merits motions directed to the operative complaints,” including motions to compel arbitration, by December 8, 2 009. Well s Fargo did not move the named P laintiffs to arbitrate their claims. Instead, it joined several other banks in filing an omnibus motion to dismiss. 3 On April 14, 2010, the District Court observed that only a handful of the defendant banks had mo ved to compel arbitration prior to its December 8, 2009 motions deadline. Accordingly, the Court ordered any defendant who intended to seek arbitration to file a motion to compel by April 19, 2010. In response, Wells Fargo filed a re ply to the Court’s or der which stated that it would not seek to

com pel arbitration with the named P laintiffs but wished to reserve its arbitration rights against any p laintiffs “who [might] later join, individually or as putative class members, in this litigation.” Wells Farg o explained that its “arbitration rights as to a nationwide class, for newly added plaintiffs, and/or for plaintiffs from newly added states are not yet at issue.” 4 Subsequently , Wells Fargo filed its answers to the five complaints. In each of its five an swers, Wells Fargo alleged

3 The District Court largely denied the motion on March 11, 2010. See In re Checking Account Overdraft Litig

. , 694 F. Supp. 2d 1302 , 1329 (S.D. Fla. 2010)

. 4 Wachovia filed a similar statement declining to seek arbitration against the named P laintiffs but reserving its right to arbitrate any claims which might be raised by other accountholders in the future.

Case: 16-16820 Date Filed: 05/10/2018 Page: 4 of 155 that “[a]bsent members of the putative classes have a contractual obligation to arbitrate any claims they have against Wells Fargo.” Thereafter, the case proceeded toward class certification. The parties commenced class

- rela ted discovery and motions practice, which continued for about one year. Then, on April 27, 2011, the Supreme Court held that § 2 of the Federal Arbitration Act, 9 U.S.C. § 2 , preempts state

- law rules voiding consumer arbitration agreements that bar class

- wide arbitration procedures. AT&T Mobility LLC v. Concepcion , 563 U.S. 333 , 351

– 52, 131 S. Ct. 1740, 1753 (2011). This decision prompted Wells Fargo to reconsider its arbitration strategy. Two days after the Supreme Court issued its opinion in Concepcion , Wells F argo moved to compel the named P laintiffs to arbitrate their disputes. The District Court denied the motion, finding that Wells Fargo waived its arbitrati on rights as against the named P laintiffs by failing to timely move to compel arbi tration prior to extensive discovery and litigation proceedings. Wells Fargo appealed on the basis that moving to compel arbitration against the named P laintiffs prior to Concepcion would have been futile. This Court affirmed the District Court’s decisio n, holding that a motion to compel arbitration would not have been futile prior to Concepcion because the question of whether federal law preempted state laws that voided class

- wide arbitration provisions was merely unsettled, not squarely adverse to Wells Fargo’s rights

. Garcia , 699 F.3d at 1275.

Case: 16-16820 Date Filed: 05/10/2018 Page: 5 of 156 On remand, the named P laintiffs moved the District Court to certify the class. Wells Fargo opposed certification. Among other arguments, Wells Fargo contended that a lack of numerosity existed because all custo mers bound by enforceable arbitration provisions would have to be excluded from the class and, because all of Wells Fargo’s customers had signed such provisions, there simply would not be enough class members to make a class action viable. At the same ti me it filed its opposition to class certification, Wells Fargo filed conditional motions to compel arbitration against the unnamed class members in the event the District Court certified the class. 5 On April 8, 2013, without ruling on the named P laintiffs ’ motion for class certification, the District Court denied Wells Fargo’s conditional motions to compel arbitration. Wells Fargo appealed, and we vacated the decision. In re Checking Account Overdraft Litig. ( Spears

Haymond I ) , 780 F.3d 1031 , 1037

– 39 (11 th Cir. 2015). We held that because no class including the unnamed putative class members had been certified, the District Court “lacked jurisdiction to rule on the arbitration obligations of the unnamed putative class member s,” and further that the named P laintiffs lacked third

- party

5 The conditional motions stated in relevant part: While the Absent Class Members are not yet part of this litigation, and are therefore not currently subject to this Court’ s jurisdiction, this will change if this Court certifies one or more classes in response to plaintiffs’ pending motion for class certification. Wells Fargo accordingly makes this arbitration motion at this time so that if the Court does certify one or more classes in these cases, it can address the arbitration obligation of the Absent Class Members at the first possible moment. If the Court declines to certify any clas s . . . , this arbitration motion will be moot. Case: 16-16820 Date Filed: 05/10/2018 Page: 6 of 157 standing to assert waiver or other arguments against arbitration on behalf of the unnamed putative class members. Id. On remand, the District Court granted P laintiffs ’ motion for class certification. Immediately thereafter, Wells Fargo moved to compel arbitration as to the unnamed class members

. The District Court denied that motion, holding that Wells Fargo had waived its rights to demand arbitration as to the unnamed class members because it “acted inconsistent ly with its arbitration rights” during its pre

certification litigation efforts” and “significant prejudice would result” if the Court were to permit Wells Fargo to invoke arbitration. 6 Wells Fargo timely appeal ed

. II.
A. We review the District Court’s d enial of a motion to compel arbitration de

novo . Garcia , 699 F.3d at 1277. Like any other contractual right, “ [t] he right to arbitrate can be waived.” Benoay v. Prudential

- Bache Sec., Inc. , 805 F.2d 1437, 1440 (11th Cir. 1986). However, “because federa l law favors arbitration, any party arguing waiver of arbitration bears a heavy burden of proof.” Stone v. E.F. Hutton
& Co. , 898 F.2d 1542, 1543 (11th Cir. 1990) (per curiam) (internal quotation marks omitted) (alteration accepted). We conduct a two

- par t inquiry to determine whether a party has waived its arbitration rights. First, we consider whether “under

6 The District Court added that Wells Fargo’s motions were “untimely” because they did not meet the deadlines set by the Court earlier in the litigation.

Case: 16-16820 Date Filed: 05/10/2018 Page: 7 of 158 the totality of the circumstances, the party has acted inconsistently with the arbitration right.” Ivax Corp. v. B. Braun of Am., Inc. , 286 F.3d 1 309, 1315

– 16 (11th Cir. 2002) (internal quotation marks omitted). A key factor in deciding this is whether a party has “substantially invoke[d] the litigation machinery prior to demanding arbitration.” S & H Contractors v. A.J. Taft Coal Co., Inc. , 906 F.2d 1507, 1514 (11 th Cir. 1990) (internal quotation marks and alterations omitted). Second, i f a party has done so, we consider whether the party’s conduct “ has in some way prejudiced the other party.” Ivax , 286 F.3d at 1316 (internal quotation marks o mitted). In considering the amount, if any, of prejudice imposed on the plaintiffs, “we may consider the length of delay in demanding the arbitration and the expense incurred by that party from participating in the litigation process.” S &
H Contractors , 906 F.2d at 1514. Careful examination of our precedent reveals that the purpose of the waiver doctrine is to prevent litigants from abusing the judicial process. Acting in a manner inconsistent with one’s arbitration rights and then changing cou rse mid

journey smacks of outcome

- oriented gamesmanship played on the court and the opposing party’s dime. The judicial system was not designed to accommodate a defendant who elects to forego arbitration when it believes that the outcome in litigation wil l be favorable to it, proceeds with extensive discovery and court proceedings, and then suddenly changes course and pursues arbitration when its

Case: 16-16820 Date Filed: 05/10/2018 Page: 8 of 159 prospects of victory in litigation dim. Allowing such conduct would ignore the very purpose of alternative dis pute resolution: saving the parties’ time and money. 7 From this purpose, we can deduce that the key ingredient in the waiver analysis is fair notice to the opposing party and the District Court of a party’s arbit ration rights and its intent to exercise them. If the court and the opposing party have such notice at an early stage in litigation, they can manage the litigation with this contingency in mind. For example, if the court knows a party has potential arbitration rights that could throw t he case out of court, it can limit the scope of early discovery with this possibility in view, in order to avoid significant expenditures if it turns out that the arbitration provision governs

. 8 Accordingly, fair notice at a relatively early stage of liti gation is a primary factor in considering whether a party has acted consistently with its arbitration rights

.

7 See Concepcion , 563 U.S. at 344

– 45, 131 S. Ct. at 1749 (“The point of affording parties discretion in designing arbitration processes is to allow for efficient, streamlined procedures tailored to the type of dispute. It can be specified, for example, that the decisionmaker be a specialist in the relevant field, or that proceedings be kept confidential to protect trade secrets. And the informality of arbitral proceedings is itself desirable, reducing the cost and increasing the speed of dispute resolution.”). 8 This is especially true in a class action li ke th is on e , which could involve innumerable plaintiffs and extensive discovery. In such case s , early notice of arbitration rights works in tandem with the class

- certification process to avoid the accrual of heavy litigation costs while the class is still putative. Federal Rule of Civil Procedure 23(c) encourages courts to rule on class certification “at an early practicable time.” Thus, both the arbitration

- waiver doctrine and Rule 23’s exhortation to rule on certification further the purpose of avoidin g wasteful expenditures of time and money by nudging the district court to decide on class certification and arbitration before the scope of discovery is expanded to its fullest extent.

Case: 16-16820 Date Filed: 05/10/2018 Page: 9 of 1510 B

. Applying this analysis to the instant case, we conclude that Wells Fargo did
not act inconsistently with its arbitration right s as to the unnamed P laintiffs. Its conduct with respect to the unnamed P laintiffs differed starkly from its conduct as to the named P laintiffs. 9 It stated expressly in its response to the District Court’s scheduling order that it did not plan to seek ar bitration with the named P laintiffs, and it thus joined other defendants in filing an omnibus motion to dismiss the complaints. In that same response, however, which it filed well before any discovery had been conducted, Wells Fargo explained to the Distr ict Court that it was not in a position to assert its arbitration rights against the unnamed P laintiffs but wished to preserve those rights for when the matter became ripe for the Court to consider them: However, Wells Fargo reserves its rights to enforce its applicable contractual dispute resolution procedures, including its right to

9 For this reason, our decision in Garcia , which held that Wells Fargo acted inconsistently with its arbitration rights as to the named P laintiffs, does not control our decision as to the unnamed P laintiffs. Nor can P laintiffs invoke Garcia to claim collateral estoppel or issue preclusion to support a finding of waiv er with respect to the unnamed P laintiffs. As we noted in our prior opinion in this case, such arguments would fail because the issue to which the named plaintiffs would have us give preclusive effect

— whether Wells Fargo had waived its rights to enforce the arbitration provisions in its contracts with the named plaintiffs , which Garcia resolved in the affirma tive

— is not the same as the relevant issue here: whether Wells Fargo has waived its rights to enforce the arbitration provisions in separate contracts with each of the unnamed putative class members

. Spears

- Haymond I , 780 F.3d at 1038 n.9 . This is because issue preclusion applies only when “the issue at stake is identical to the one involved in the prior litigation.” Miller’s Ale House, Inc. v. Boynton Carolina Ale House, LLC , 702 F.3d 1312, 1318 (11th Cir. 2012).

Case: 16-16820 Date Filed: 05/10/2018 Page: 10 of 1511 compel arbitration, against other customer s that were recently joined as plaintiffs in the Gutierrez , Martinez or Zankich matters or who later join, individually or as putativ e class members, in this litigation against Wells Fargo. . . . At this time Wells Fargo does not know whether other contractual dispute resolution procedures issues may arise in this proceeding with respect to any other customers. Wells Fargo’s arbitrati on rights as to a nationwide class, for newly added plaintiffs, and/or for plaintiffs from newly added states are not yet at issue. To the extent such issues do arise in the future, Wells Fargo does not waive its rights to enforce its contractual dispute resolution procedures, including its right to compel arbitration where appropriate, by not joining in the motions currently pending before the Court. Shortly after that, it also cited the parties’ arbitration agreements as an affirmative defense in its an swers to P laintiffs’ complaints

. Fairly read, these actions had the effect of putting both the Court and P laintiffs on notice of Wells Fargo’s arbitrat ion rights against the unnamed P laintiffs and its intent to invoke them. Nevertheless, in find ing that Wells Fargo waived its arbitrat ion rights against the unnamed P laintiffs, the District Court relied heavily upon Wells Fargo’s failure
to move to compel the unnamed class members to arbitrate their claims after the
Court set a deadline to file merits and non

- merits motions of December 8, 2009 and a deadline to join in with other defendants who filed arbitration

- related motions by April 19, 2010

. Implicit in this analysis is the conclusion that Wells Fargo’s failure to do so signaled to the Court and P laintiffs that it would not seek arbitration with respect to the unnamed class members. An immediate problem with this is that both order s w ere unclear with regard to whether motions were due

Case: 16-16820 Date Filed: 05/10/2018 Page: 11 of 1512 with respect to unnamed, putative class members. In fact, the first order suggested the opposite. It stated: On or before December 8, 2009, Defendants Wachovia Bank, National Association, Bank of America, N.A., U.S. Bank National Assocation, JPMorgan Chase Bank, N.A., Wells Fargo and Union Bank shall file their merits and non

- merits motions directed to the operative complaints on file

. . . . (Emphasis added). At this point, the class had not been certified; hence, the class was still putative and its potential members remained unidentified

. As a re sult, their complaints were not yet “on file.” Moreover, t he Court’s order of April 1 9 did not mention the unnamed class members. The order simply invited any defendants who had not yet filed motions to compel arbitration “to join in and be heard on t he motions to compel arbitration” filed by some defendants. To add to the uncertainty, a t th e time the Court issued this order , the few motions to compel arbitration that had been filed were directed
at named p laintiffs

. And multiple defendants in additi on to Wells Fargo and Wachovia responded to the Court’s order by announcing they would not seek arbitration with respect to the named P laintiffs in their cases but wished to reserve their arbitra tion rights as against future p laintiffs that mi ght join the litigation later. Each indicated that asserting or foregoing arbitration rights as to those plaintiffs was unripe at that point. P laintiffs did not object to these responses, and the Court did not respond to them

. Given this uncertainty, Wells Fargo’s c hoice to inform

Case: 16-16820 Date Filed: 05/10/2018 Page: 12 of 1513 the Court it would not seek to compel the named P laintiffs to arbitrate but wished
to reserve its options with regard to the unnamed P laintiffs can hardly be said to have been inconsistent with its contractual arbitration rights. Putting the ambiguity of the District Court’s orders aside, it cannot be said that Wells Fargo’s failure to seek arbitration with the unnamed class members prior to class certification manifested inconsistency with its arbitration rights, considering that it would have been impossible in practice to compel arbitration against speculative plaintiffs and jurisdictionally impossible for the District Court to rule on those motions before the class was certified. As we held in Spears

Haym ond I , the Distric t Court lacked jurisdiction to rule on any such motion s . 780 F.3d at 1034. For another, the unnamed class members were putative at that point

. Class certification is the action that concretely identifies the plaintiffs; before that point, any plaintiffs beyond those named in the complaint are speculative and beyond the reach of the Court’s power

. Id. at 1037. S o Wells Fargo would not

even have been able to identify the specific plaintiffs against which it planned to seek arbitration , much less ascertai n its arbitration

- related rights as to th em . Thus, framing an effective motion to compel arbitration was impossible. As a result, b y ordering Wells Fargo to move to arbitrate claims not yet brought or else waive them , the District Court put Wells Farg o squarely between Scylla and Charybdis

. The Court’s scheduling order demanded one of two

Case: 16-16820 Date Filed: 05/10/2018 Page: 13 of 1514 possible courses of action only . The first was a shotgun motion to compel in which Wells Fargo would have made speculative arguments about speculative
customer agreements made with speculative plaintiffs , a document that could not have provided any cognizable basis upon which the District Court could have ruled (even assuming it had jurisdiction to rule

— it did not) . The second was what happened here: a failure b y Wells Fargo to raise those motions , and , according to the District Court’s analysis, a consequent waiver of its contractual arbitration rights altogether

. But, sa id the District Court, “Wells Fargo could have moved to compel arbitration at the outset as to the named Plaintiffs, which if successful would have had the practical effect of extinguishing the unnamed class members’ claims.” The District Court further stated that Wells Fargo “might have, at the outset, put the parties and the Court on notice

— th rough filing a conditional motion, like the one the Bank ultimately filed years later in 2013, or some other clear statement of its intent

— that it intended to request arbitration as to the unnamed class members if and when the class was certified.” But we have found no authority that requires a party to file a conditional arbitration motion against possible future adversaries

— at a juncture in which adjudicating, much less exercising jurisdiction over, those claims is impossible

— in order to avoid waiving it s rights with regard to those parties. Because the D istrict C ourt lack ed jurisdiction over such motions until the

Case: 16-16820 Date Filed: 05/10/2018 Page: 14 of 1515 class wa s certified, such a placeholder document could only serve the purpose of putting the C ourt and the parties on notice of the moving pa rty’s intent to invoke its arbitration rights upon certification of the class. But that same purpose was served by Wells Fargo’s express reservation of its arbitration rights as to future plaintiffs in response to the Court’s scheduling order. Accordingl y, we conclude that Wells Fargo did not act inconsistently with its arbitration rights, and, consequently, it did not waive those rights. 10
III. We accordingly vacate the District Court’s order and remand the case for further proceedings not inconsistent with this opinion. SO ORDERED.

10 Because we hold accordingly, we need no t and do not address prejudice, the second prong of the waiver inquiry.

Case: 16-16820 Date Filed: 05/10/2018 Page: 15 of 15