F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

E K V A T H A

N A , individually

and on behalf of all others similarly situated, Plaintiff-Appellant
,

v

.

E V E R B A N K , AKA EverB ank Direct, AKA EverB ank F ederal Saving s Association; E V E R

B A N K F I N A N C I A L C O R P .; E V E R

B A N K W O R

L D M A R K E T S , Defendants-Appellees

. N o. 12-15587

D.C. No. 5:09-cv-02338- RS

OPI NI ON

Appeal from the United States District Court for the Northern District of California Richard Seeborg , District J udg e, Presiding

Arg ued and Submitted F ebruary 14, 2014—San F rancisco, California

F iled October 31, 2014

B e fore: Alex Koz inski, Chief J udg e, and Diarmuid F

. O’Scannlain and Mary

H. Murg uia, Circuit J u dg es.
Opinion by

J u dg e Murg uiaV A T H A N A V

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SUMMARY *

F lorida Law

The panel affirmed in part and reversed in part the district court’s summary judg ment in f avor of EverB ank on a breach

o f c o n t r act claim broug ht by a certified class of E v erban k
customers who purchased E v er B ank W orldCurrency certificates of deposit denominated in I c elandic króna.

The cl a ss alleg ed that EverB ank breached the terms a nd conditions of the W orldCurrency CDs by closing the W o rldCurrency CDs without the c lass memb e rs’ consent, a nd delivering the value of the closed CDs in U.S. d ollars at the

ex c h a ng e rate that EverB ank obtain ed i n the wholesale market.

Under F lorida law, the panel held that no reasonable jury could find that EverB ank acted in bad faith when it ex ercised its discretion to close the W orldCurrency CDs to limit losses
to itself or its customers. The p anel also held that a reasonable jury could find that the terms and conditions were silent with respect to the currency conversion rate that a pplied when the W orldCurrency CDs were closed and the proceeds f r o m the CDs returned to the class members. The p a n el reversed on this g round, a nd remanded to the district court to resolve whether EverB a

nk breached the terms and conditions when it returned the value of the W orldCurrency CDs to the class members.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.V A T H A N A V

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COUNSEL

Michael Millen (arg

ued), L aw Office o f Michael Millen, L os Gatos, California, for Plaintiff-Appellant.

Deborah S. B irnbach (arg ued), Goodwin Proc ter L L P, B oston, Massachusetts; Robert B

. B ade r , Goodwin Procter L L P, San F r ancisco, California; W illiam M. J a y , Goodwin Procter L L P, W ashing ton, D.C., for Defendants-Appellees.

OP INION

MURGUI A, Circuit J udg e:

Ek Vathana and a certified class of E verB ank customers purchased EverB ank W orldCurrency certificates of deposit (CDs) denominated in I celandic króna (I SK), which matured between October 8, 2 0 0 8
, and December 31, 2008. They appeal the district court’s order g ranting summary judg ment f or E verB ank on their breach of contract action. W e h a v e jurisdiction under 28 U.S.C. § 1291. We aff i rm i n part a

nd reverse in part.

BACK G ROUND

A. EverBank’s WorldCurrency CD

Unlike traditional certificates o f deposit, an EverB a nk W o rldCurrency CD is denominated in foreig n currency

. This

means that, in addition to earning interest, the principal itself
may r ise or fall in value over t h e m a turity period o f the CD, depending o n the streng th of the foreig n currency relative to U.S. dollars.V A T H A N A V

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W h en a customer opens a W o rldCurrency CD, EverB a nk adds the customer’s investment to its treasury and credits the customer’s W o rldCurrency CD in a foreig n currency of the

c u s t omer’s c hoice. Under parag raph 2.7.1 of the terms a n d conditions applicable to the W o rldCurrency CDs (the “Terms and Conditions”), the ex c h a n g e rate that EverB ank uses to convert the customer’s initial investment into the f oreig n currency is a rate “within 1% of the wholesale spot price we
pay f or y our currency .” The “wholesale spot pric e ” is the
currency ’ s price in the wholesale currency marke t when the customer opens the CD. 1

This conversion o ccurs only a s a book transaction: EverB ank does not actually ex chan ge t h e currency invested for the phy sical currency in which t h e C D is denominated. I nstead, in separate transa c tions, EverB ank purchases “forward contracts” to h edg e the risks associated with its f o reig n currency liabilities to its W orldCurrency CD
customers. The forward contracts allow EverB ank to acquire a set amount of foreig

n currency

on a specified date and at a
set price, or ex chang e rate, that is b a s e d o n the currency ’s wholesale spot price when EverB a nk p urchases the c ontract. B y entering into forward contracts for the foreig n currency in its W orldCurrency CDs, EverB ank is a ssured delivery of the
currency from which to pay its customers on the date the CDs mature, should its customers choose to liq u idate their investments. Id. The forwar d c o n tracts protect EverB a nk

1 T h e w h o lesale cu rren cy m ark et is w h ere f in an cial in stitu tio n s lik e Ev erB an k trad e larg e am o un ts of cu rren cy

. B y co n tra st, w h en an in d iv i d u al g oes to a b an k to ex ch an g e cu rren cy , h e p urch ases cu rren cy in
t h e retail m ark et. T h e retail sp o t p rice av ailab le to an i n d iv id u al

ex ch an g in g m o n ey at a b a n k can d i f f er f ro m th e w

h o l esale sp o t p rices

av ailab le to b an k s in

th e w h o l esale m ark et.V A T H A N A V

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from the risks of ex chang e r ate fluct u a t i o n before the CDs’ maturity dates.

Parag raph 2 .7.10 of the Terms and Conditions sets out the W o rldCurrency CD’s renewal policie s upon maturity

. I t provides in relevant part,

R e new al P olicies: Ex cept as provided in the L ock-In Alternative section above, y our W o r l d C u r r e n c y C D i s a u t o m a t i c a l l y

re n e w a b le; however, y ou may do one of the following options by providing instructions to the Trading Desk at least one week prior to the maturity

date of the outstandingCD:

1. liquidate y our account upon maturity

.

2. remove th e i n terest and re-invest the principal.

3. roll o v er the CD proceeds (principal plus interest).

I f y ou choose to roll over the CD, it will be reinvested in the same c urrency f or t he same maturity
, at the current prevailing interest
rate.

. . . .

I f w e do not receive maturity instructions from y ou at least one week prior to maturi ty , y our CD will automatic a lly renew, reinvesting
y our principal a

nd any interest into a CD o fV A T H A N A V

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the same currency and maturity
, at t h e prevailing interest rate on the date of renewal.

B. Lead P laintif

f Ek Vathana’s WorldCurrency CDs and Iceland’s F inancial Crisis

On J uly 23, 2 008, lead plaintiff Ek Vatha n a opened the first of two I SK-denominated W orl d C u rrency CDs that matured d

uring the class period. The price of I S K when Vathana open ed t h e C D was 78.65 I SK per U.S. dollar. Id. The value of the CD when Vathana opened it was 747,676.53 I SK, or $9,447.49. Vathana opened his second W o rldCurrency CD on September 10, 2008. The ex c ha n ge

r a t e w a s 88.05 I SK per U.S. dollar, and the value of the C D

was 3,547,501.93 I S K
, or $40,040.07. B oth of Vathana’s W o rldCurrency

CDs had three-month maturities.

A month later, I celand’s financial sy stem was in crisis. The Prime Minister addressed the nation on October 6, 2008, describing the “major difficulties” facing I celand’s banks, which had g rown so rapidly before the r ecession that their liabilities w ere “many times I celand’s GNP.” The Prime Minister warned the country that “[ m] ajor credit lines to the banks h ave been closed and it was decided this morning to suspend trading with the banks and with the saving s f unds in the I celandic Stock Ex chang e.” The I c elandic g overnment passed emerg ency l e gi s l ation allowing it effectively to put I celand’s major banks into receivership. The Central B a nk o f I celand impos e d restrictions on the e x chang e of I SK into foreig n currency

.

B e cause of the crisis in I celand, EverB ank was unable to find any counterparties willing to o ffer forward contracts for I SK. B ecause it could not h ed g e t h e risk of offeringV A T H A N A V

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W o rldCurrency CDs d enominated in I SK g oing f o r ward, EverB an k decided not to roll over its I SK-denominated W o rldCurrency CDs set to mature in e arly October 2008. Id. EverB ank p aid the p roceed s of the matured CDs in U.S. dollars, calculating their value using the available wholesale spot price. I

d.

I n mid-Octobe r , EverB a nk was ag ain un able to find
any body w i l ling to e n ter into forward contracts f or I SK. However, unlike the week before, it could not even find any parties willing to trade I SK for U.S. dollars on the wholesale market.

Vathana’s first W orldCurrency CD matured on October 22, 2008. Two day s before it matured, Vathana emailed EverB ank, instructing it to roll over his CD. He wrote, “I will

n o t accept a forced liquidation conversion. I f y ou choose t o close my accounts, I demand y ou send me the actual phy sical I SKs.” Id.

I n late O ctober 2008, EverB ank finally located a party willing to offer a I SK/Euro forward contract, on the basis of which EverB ank could calculate a wholesale conversion rate for U.S. dollars. The ex chang e rate was abo u t 2 5 3 I SK per U.S. dollar, dramaticall y w orse than the 78.65 I SK p er U.S. doll a r rate a t which V athana opened the CD. Id. EverB a nk notified Vathana that it had closed his CD, converted the I SK
to U.S. do l l a r s at the 2 53 I SK per U.S. dollar rate, a nd deposited the proceeds, $2,958.03, into Vathana’ s ac count with EverB ank. Vathana lost $6,489.46.

On December 10, 2008, EverB ank closed Vathana’s second W orldCurrency CD and returned the value of that
account t o V a t h ana in U.S. d ollars at a slig htly betterV A T H A N A V

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ex c h a ng e rate of about 217 I SK p er U .S. dollar. The rate was still sig nificantly worse than the a p prox imately 88 I SK per U.S. dollar rate at which he opened the CD. Vat h a n a l o s t $23,700.88 on that CD.

EverB an k did not renew or r oll over any of its I SKdenominated W orld C u

r r e ncy CDs maturing between October 8, 2008, and December 31, 2008. I nstead, it closed t h e CDs

on their maturity dates and returned t h e value of the CDs to its customers in U.S. d ollars according to the r ates that EverB ank obtained in the wholesale market.

C. P roceedings Bef

ore the District Court

Vathana broug ht a class action f or breach of con t r a ct ag ainst EverB ank o n behalf of all EverB ank W orldCurrency CD customers whose I SK-denominated W orldCurrency CDs matured between October 8, 2008, and December 31, 2008. Vathana claims that Eve rB ank b reached the Terms a nd Conditions by (1) closing the W orldCurrency CDs w i t hout the class members’ consent, a nd ( 2) delivering the value o f the closed CDs in U .S. dollars at the ex chang e r a t e t h at EverB ank o b tained in the w holesale market. Vathana alleg e s that the Ter m s a nd Conditions required EverB ank to automatically r enew the CDs and did not specify a conversion
rate t hat applied when the W orldCurrency CDs were closed and liquidated.

The parties twice moved for summary judg ment. F irst, the parties cross-moved for summary judg ment on Vathana’s claim that EverB ank b re ached the Terms and Conditions b y paying the CDs’ p roceeds in U.S. dollars at the wholesale spot price. The district court g ranted summary judg ment to EverB ank on this claim, rejecting Vathana’s argu ment thatV A T H A N A V

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the currency conversion rate in parag raph 2.7.1 o f the Terms and Conditions, “with i n 1% of the wholesale spot p r ice we pay for y o ur currency ,” applies when the W orldCurrency CD is opened b ut does not clear l y a p p l y when the CD is closed. The district court ag r eed w i th EverB ank that the conversion
rate in parag raph 2.7.1 a p p lies to all conversions applicable
to t h e a c c o unt, including when the account is opened a nd when it is closed.

Second, the parties each moved f or summary judg ment on whether EverB ank breached the Terms a n d Conditions b y unilaterally c losing the CDs when they matured. T he district
court c o n cluded that, althoug h EverB ank was ordinarily required under parag raph 2.7.10 of the Terms and Conditions
to automatically r e new the CD or honor the customer’s instructions, EverB ank was r el e ased f rom doing so under
parag raph 1

. 1 7 of the Terms and Conditions. This p arag raph provides that “if we [ E verB ank] believe that it is n ecessary to close y our account immediately in order to limit losses b y y ou o r us, we may close y our account prior to p r o v i d ing notice to y ou.” B ecause the district cou r t saw no f actual dispute over whether EverB ank closed the class members’
accounts in g ood faith under this provision, the district court determined t h a t EverB ank had not breached the Terms a nd Conditions. The district court also disag reed with V athana that EverB a n k ’ s d ecision to close the accounts was an “amendment” to the C D ’s renewal policies set forth in
parag raph 2.7.10. The d istrict c o urt therefore rejected Vathana’s a r gu ment that EverB ank violated the T ruth in Saving s Act by failing to notify the class member s of the “amendment.” Having concluded that Vath a n a c ould not prevail as a matter of law on either of his theories of breach, the district court entered judg ment for EverB ank. Va t hana now appeals.V A T H A N A V

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D ISCUSSION

W e review de novo the district court’s g rant of summary judg ment. Posey v. Lak

e Pend Oreille Sch. Dist. No. 84
, 546 F .3d 1121, 1126 (9th Cir. 2008). Summary judg ment is appropriate if “the movan t s h ows that there is no g enuine dispute as to an y material fact and the movant is e ntitled to judg ment as a matter of law.” F ed. R. Civ. P. 56(a).

The part i e s a g r ee that the Terms and Conditions a re g overned by F lorida law. U nder F lor ida law, clear a nd unambig uous contract lang uag e may b e interpr e t e d as a matter of law. Smith v. Shelton
, 970 So. 2d 4 5 0
, 4 51 (F la. Dist. Ct. Ap p

. 2007). W hether contract lang uag e is ambig uous is also a question of law. Id. A contract’s w ording is ambig uous if it is “reasonably susceptible to more than o ne interpretation.” Lambert v. Berkley S. Condo. Ass’n
, 680 So. 2d 5 8 8, 590 (F la. Dist. Ct. App. 1996 )

. I f t h e wording is ambig uous, interpreting the contract invol v e s a f actual question and summary judg ment is inappropriate. Smith
, 970 So. 2d at 451.

1. EverBank’s Closure of the CDs at Maturity

W e decid e f

irst whether EverB a

n k breached the Terms and Conditions by unilaterally closing the cl a s s members’ W o rldCurrency CDs when they m a t u red. The district court concluded that E verB ank’s decisi o n to close the CDs was justified by parag raph 1.17, which provides, in relevant part, “[ i] f we b e lieve that it is necessary to close y o ur account i mmediately in order to limit losses by y ou or us, w e m a y close y our account prior to providing notice to y ou.”V A T H A N A V

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Under F lorida law, “where the terms o f the contract afford

a party substantial discretion to p romote that party ’s selfinterest, the duty to act in g ood faith nevertheless limits that party ’s ability to act capriciously .” Cox v. CSX Intermodal, Inc.
, 732 So. 2 d 1092, 1097–98 (F la. Dist. Ct. App. 1 9 9 9 ). “Yet, the limit placed on a party ’s discretion is n ot g reat.

. . . Unless no reasonable party

. . . would h ave made the same discretionary decision

. . . , it seems unlikely that [ the p arty ’s] decision would v iolate the c o v e nant of g ood faith.” Ernie H a i r e Ford, Inc. v. F

o rd Motor Co.
, 2 6 0 F .3d 1285, 1 2 9 1 (11th Cir. 2001) (alterations in orig inal) (internal quotation marks omitted).

W e ag ree with the d istrict c ourt that Vathana failed to introduce evidence sufficient for a reasonable jury to find that EverB ank breached the Terms and Conditions by ex ercising its discretion under parag raph 1.17 in bad faith

. Va t hana’s

own e x pert testified that forward co n t racts for I SK were

u n a vailable from O ctober 2008 to D ecember 2008. I t is

u n d i s p u t e d t h a t , h a d E v e r B a n k r o l l e d o v e r t h e W o rldCurrency CDs without entering into forward contracts, and had I SK continued to lose value, EverB ank co u ld have been ex p o s ed t o u

p to $12 million in losses. I t is also

u n d i sputed that, if EverB a nk had c o n tinued to offer I S K

d e n o minated W orldCurrency CDs, it would have h ad t o charg e the CD-holders interest, rather than pay them interest.

I n hin dsig ht, E verB a

nk liquidated the class members’ W o rldCurrency CDs when they w ere least valuable. The CDs would have reg ained value if EverB ank had remained in the I SK market until I celand’s economy improved. B ut p arag raph 1.17 g ave EverB ank discretion to close the W orldCurrency CD s i m m e diately to limit its or its customers’ losses

– discretion that was limited only by EverB ank’s oblig a t i o nV A T H A N A V

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under Fl o r i d a l aw to act in g ood faith. Vathana has not pointed to any facts demonstrating that no reasonable person would have made the same d iscretionary deci s i o n that EverB ank made under the c ircumstances. See Ernie H a ire Ford , 260 F .3d at 1291.

Vathana also argu e s t h at EverB a nk’s decision not to

renew the W orldCurrency CDs w as a c hang e t o i ts renewal policy
, and that its failure to disclose this chang e to the class members with sufficient notice violated federal law. V athana relies o n the Truth in Saving s Act § 266 (TI SA)
, 12 U .S.C. § 4305(c), which requires depository institutions li k e EverBa n k to notify its customers of any chang es to its renewal policies 30 day s before the chang es come into effect. W e ag ree with the d i strict court that Vathana’s T I SA
argument is unpersuasive.

TI SA does not provide a private r ig ht of action to e nforce its provisions. See 12 U.S.C. § 4309 (providing for administrative enforcement of TI SA). B u t , e v en if it did, EverB ank h as alway s reserved the r ig ht to terminate any deposit account to limit losses: Par ag raph 1.17 has alway s modified the automatic renewal poli cy in parag r aph 2.7.10. Moreover, TI SA does not provide that a b ank’s failure to g ive notice p revents the chang e f rom coming into effect, a s Vathana contends. Vathana’s unavailing TI SA a r g u m e nt does
not alter our conclusion that the district court prop e r l y h eld that Vathana failed to produc e s u ff icient facts for a reasonable j u r y t o find that EverB ank acted in bad f a ith in closing the class members’ CDs.V A T H A N A V

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2. The Currency Conversion Rate

Vathana argu es that parag raph 2 .7.1 o f the Terms a nd Conditions does not supply the currency conversion r ate that applies when the W orldCurrency CDs are closed. A ccording
to V athana, if p arag raph 2.7.1 does n ot a pply to an account’s closing
, then he an d the r est of the c lass were entitled to p ay ment in I SK, not U .S. dollars. W hile we do not a d d re s s whether the plaintiffs were entitled to pay ment in I SK absent

a contractual conversion r ate, w e d isag ree w ith the district court’s conclusion that p arag r aph 2.7.1 unambig uously provides this rate. The Terms and Conditions could reasonably be interpreted as providing a currency conversion
rate applicable o n l y w h e n a W orldCurrency CD is opened. Therefore, the district c ourt erred i n d e ci d ing as a matter o f law that EverB ank did not b reach its ag reement w ith the class members by converting the value o f t h e i r CDs into U.S. dollars a t a currency conversion rate within 1% of the wholesale spot price.

Parag raph 2.7.1 of the Terms and Conditions provides:

Conversion Inf

or m ation : This account will be used to hold f

und s d enominated in a currency other than U.S. dollars. I f y ou request funds in t h is account to be denominated in a currency other than the
currency sent to us t o f

u nd the account, we will c onvert y our funds using a t hen current conversion r at e set by us. Y our currency

convers i o n rate will be within 1% o f the wholes a le spot price we p ay for y our currency

. Ex ceptions may occur when aV A T H A N A V

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specific conversion r ate is ag reed u pon between y

ou and us.

The district court acknowledg ed that reading parag raph 2.7.1 alone, the currency c onversion rat e “within 1% of the wholesale spot price we pay f or y o ur c urrency

” appears only
to apply when EverB ank converts the customer’s U.S. dollars into fore i gn currency to fund the account. The district court also recog niz e d that p arag r aph 2.7.1 appears a t the beg inning of the section of the Terms and Conditions specifica l l y applicable to the W orldCurrency CD, whereas p rovisions
g overning the withdrawal of funds from the CDs and t he renewal of the CDs appear later, sug g e sting that t he conversion rate in paragr ap h 2.7.1 applies only when the account is opened. Id.

However, the district court r e a soned t hat, looking at the Terms and Conditions as a whole, parag raph 2.7.1 provides the W orldCu r r e ncy CDs’ g enerally applicable, default conversion rate. The district court pinpointed the p arag raph of the Terms and Conditions offering a “L ock-I n Alternative”
rate as conclusive e vidence that the currency conversion rate in parag raph 2.7.1 otherwise applies to all conversions. Under
t h a t parag raph, the customer can contact EverB ank at a n y p o i n t d uring the CD’s maturity period to lock in an ex it
currency con v er s ion rate for the CD rather than risk f urther fluctuations in the market b efo r e the CD matures. B ecause EverB ank offers t he customer this a lternative ex it c urrency conversion rate, the district court reasoned that the a lternative
rate must be “distinct from an o therwise understood c urrency conversion rate that is g enerally applicable to the account.” Thus, the district c ourt concluded that parag raph 2.7.1 necessarily provides the g enerally applicable conversion rate.V A T H A N A V

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W e ag r ee with the district court that the L o ck-I n Alternative sug g ests that many customers migh t desire to have their balances converted into U.S. dollars upon maturity
, and that it would therefore b e reasonable for the Terms a nd Conditions to provide fo r a g enerally understood c urrency conversion rate. B ut we d isag ree that the L ock-In Alternative establishes as a matter of law that parag raph 2

. 7

. 1 provides that rate.

F irst, the structure of paragr a p h 2.7.1 strong ly sug g ests that its conversion rate applies o nly when EverB ank converts

a customer’s deposit to a f orei g n currency when the CD is opened. The p a r a graph beg ins b y ex plaining that, if the
customer “request[ s] funds in this account to be denominated in a cu r r e n c y other than the currency sent to us to f und the account,” E verB ank w ill c o n vert the customer’s initial investment into foreig n currency “ using a then current conversion rate set by us.” The sentence “[ y ] our c urrency conversion rate will be within 1 % of the wholesale spot price
we pay for y o ur currency

” immediately follows.

Second, the wording o f the sentence “[ y ] our c u r rency conversion rate will be within 1 % of the wholesale spot price

we pay for your currency ” supports the interpretation that the
currency conversion rate applies only when t h e a c c ount is opened, but n o t w h en it is closed, as EverB ank only purchases foreig n currency when the customer first opens the CD, and not when it closes the account.

Third, o ther references to currency conversion rates in the Terms and Conditions do not refer to a w holesale spot price

or refer back to paragr ap h 2 .7.1. F or ex ample, p arag raph 2.7.8, which provides the p enalties for early withdr a wal,
states that if the customer wishes to withdraw the value of theV A T H A N A V

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W o rldCurrency CD before it matures, the customer will pay an early withdrawal penalty a n d receive the value of the CD “converted to U.S. dollars at prices prevail ing in the market
at the time of early withdrawal, minus a conversion cost of up to 1.5%.”

The Terms and Conditions do n ot unambig uously supply

a c u r r e n c y c o n v e r s i o n r a t e a p p l i c a b l e w h e n t h e W o rldCurrency CD is closed. Thus, EverB ank may have breached its ag reement with the class members by returning the v alue of their W orldCurrency CD s u s ing a c urrency

c o n version rate within 1% of the wholesale spot pric e. B ecause the Terms and Conditions a re ambig uous, summary judg ment for EverB ank on this issue was inappropriate.

CONCLUSION

No r easonable jury could find that EverB ank acted in b ad faith when it ex e rcised its discretion to c lose the W o rldCurrency CDs to limit losses to itself or its customers. However, we conclude that a reasonable jury could f ind that the Terms and Conditions are silent with respect to the

c u r r e n c y c o n v e r s i o n r a t e t h a t a p p l i e d w h e n t h e W o rldCurrenc y C Ds were closed and the proceeds from the CDs returned to the class members. W e reverse the district court’s entry of summary judg ment on this g round. W e remand t o t he district court to resolve whether EverB a nk br e ached the Terms and Conditions when it returned the value of the W orldCurrency CDs to the class members.

Each party

shall bear its own costs on appeal.

AF F IRMED in part, REVE R S ED in part, a nd REMANDED.