FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 MARCH 1, 2012

JOHN LEY

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

 FOR THE ELEVENTH CIRCUIT

 ________________________

 No. 11-14316 

Non-Argument Calendar

 ________________________

 D.C. Docket Nos. 1:09-md-02036-JLK,

1:09-cv-23632-JLK

 

In Re: CHECKING ACCOUNT OVERDRAFT LITIGATION

lllllllllllllMDL NO. 2036

____________________________________________

JEFFREY BUFFINGTON, 

JEANETTE BUFFINGTON,

on behalf of themselves and

all other similarly situated,

Plaintiffs - Appellees,

versus

SUNTRUST BANKS, INC., 

Defendant - Appellant.

________________________

 Appeal from the United States District Court

 for the Southern District of Florida

 ________________________

(March 1, 2012)

Before TJOFLAT, PRYOR and FAY, Circuit Judges.

PER CURIAM:

SunTrust Banks, Inc. appeals the denial of its renewed motion to compel
Jeffrey and Jeanette Buffington to arbitrate their complaint against SunTrust. 9

U.S.C. § 16(a)(1)(C). The Buffingtons sued SunTrust in a Georgia court for

allegedly violating state law by collecting overdraft fees under its deposit

agreement, and SunTrust removed the action to district court and moved to compel

arbitration based on an arbitration clause in the agreement. The district court

denied the motion to compel on the ground that the arbitration clause was

substantively unconscionable because it contained a class action waiver, but we

vacated that ruling and remanded for further consideration in the light of AT&T

Mobility LLC v. Concepcion, 563 U.S. ___,131 S. Ct. 1740 (2011). On remand,

SunTrust renewed its motion to compel, which the district court denied on the

ground that the arbitration clause was substantively unconscionable under Georgia

law because provisions granting SunTrust the right to recover its expenses for

arbitration allocated disproportionately to the Buffingtons the risks of error and

loss inherent in dispute resolution. Because the reimbursement provisions are

conscionable under Georgia law, we reverse the order denying the renewed motion

to compel of SunTrust and remand with instructions to compel arbitration.

I. BACKGROUND

The Buffingtons filed a complaint in a Georgia court “on behalf of

themselves and all persons similarly situated” against SunTrust. The Buffingtons

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complained that SunTrust breached its contract, converted funds, acted

unconscionably, and was unjustly enriched by assessing overdraft fees improperly

on the Buffingtons’ joint checking account. The Buffingtons alleged that

SunTrust processed transactions deceptively to maximize overdraft fees and

assessed overdraft fees when accounts contained sufficient funds to pay charges.

SunTrust removed the complaint to federal court and moved to compel the

Buffingtons to arbitrate their complaint individually. SunTrust argued that the

Buffingtons had agreed on page 22 of the Rules and Regulations for Deposit

Accounts to submit “any unresolvable dispute, controversy or claim . . . other than

any Excluded Claim or Proceeding, . . . concerning, arising out of or relating to the

Account or these rules and regulations, including any claims regarding the

applicability, interpretation, scope or validity of this arbitration clause and/or these

rules and regulations, . . . [to] individual (not class or classwide) binding

arbitration . . . .” SunTrust requested that the district court stay the Buffingtons’

action pending resolution of the arbitration proceeding.

The Buffingtons opposed the motion to compel and argued that the

arbitration clause was unconscionable. The Buffingtons argued, relevant to this

appeal, that the arbitration clause was procedurally unconscionable because it was

“not presented in a conspicuous manner and fail[ed] to present customers with a

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meaningful choice” because they were “offered [arbitration] on a take-it-or-leaveit basis.” The Buffingtons also argued that the clause was substantively

unconscionable because their “limited potential recovery” was eclipsed by the

costs of arbitration, including the potential obligation to reimburse SunTrust for its

expenses as a prevailing party. The Buffingtons based their substantive

unconscionability argument on a provision in the arbitration clause stating that

“[t]he prevailing party shall be entitled to an award of the costs and expenses of

the arbitration including an award of reasonable attorneys’ fees for any Claim(s) in

which the party has prevailed, except as otherwise required by applicable law.”

SunTrust replied that the arbitration clause was conscionable. SunTrust

argued that the clause was procedurally conscionable as “prominent and

conspicuous.” SunTrust also argued that the clause was substantively

conscionable because its reimbursement provision “guarantee[d] an award of

attorneys’ fees and expenses to the prevailing party” and the Buffingtons’

potential recovery exceeded the $4,000 that they had accumulated in overdraft

fees.

After we remanded for the district court to reconsider the motion to compel

in the light of Concepcion, SunTrust renewed its motion to compel arbitration and

the Buffingtons opposed the renewed motion. The Buffingtons repeated their

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argument that arbitration was cost-prohibitive and also argued that the arbitration

clause was substantively unconscionable because it contained “fee-shifting

provisions” that “effectively preclude[d] SunTrust customers from bringing a

claim for [the] improper imposition of overdraft fees.” The Buffingtons cited two

provisions in support of their unconscionability argument: (1) the right of a

prevailing party to have its costs reimbursed; and (2) the right of a party

demanding arbitration to recover “reasonable costs and expenses, including

attorneys’ fees” if the other party “wrongfully fails to comply with” that demand.

The district court denied the renewed motion to compel. The district court

ruled that the arbitration clause was substantively unconscionable because two

provisions in the clause “place[d] nearly all the risks of engaging in dispute

resolution” unfairly on the Buffingtons. The district court based its decision on

the reimbursement provision cited by the Buffingtons and a second provision that

permitted SunTrust, “[i]f [a depositor] owe[d] [it] money . . . [that] becomes due, .

. . [to exercise its] right under the law (called right of offset or setoff) . . . to use

the money from [the depositor’s] Account to pay the debt.” 

II. STANDARD OF REVIEW

We review de novo the denial of a motion to compel arbitration. Jenkins v.

First Am. Cash Advance of Ga., LLC, 400 F.3d 868, 873 (11th Cir. 2005).

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III. DISCUSSION

SunTrust contends that the district court should have compelled the

Buffingtons to arbitrate their complaint. SunTrust argues that the district court

erroneously based its finding of substantive unconscionability on a provision not

mentioned by either party and, alternatively, that the clause is severable. Because

we agree with SunTrust that the arbitration clause is conscionable, we need not

address whether the clause is severable.

The district court erred in its resolution of the issue of substantive

conscionability. The arbitration agreement permitted SunTrust to receive “an

award of the costs and expenses of the arbitration including an award of

reasonable attorneys’ fees for any Claim(s) in which [it] . . . prevailed” and to

collect that amount when it “bec[ame] due . . . [under what is] (called right of

offset or setoff).” The district court concluded that these provisions were

unconscionable, but under Georgia law “[a] contract allowing a bank a set-off of

its indebtedness to a depositor against the depositor’s indebtedness to it is not

unconscionable.” Greene v. Citizens & S. Bank of Cobb Cnty., 213 S.E.2d 175,

178 (Ga. App. 1975); see also Musnick v. King Motor Co. of Fort Lauderdale, 325

F.3d 1255, 1259–60 (11th Cir. 2003). The district court also found

unconscionable the right of SunTrust to seize funds that are jointly owned, but “if

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a party to a multiple-party account is indebted to a financial institution, the

financial institution has a right to setoff against the account in which the party has

. . . a present right of withdrawal,” Ga. Code Ann. § 7-1-821. The arbitration

agreement is not substantively unconscionable. 

The district court also ruled that the arbitration clause was procedurally

unconscionable, but to be procedurally unconscionable, under Georgia law, a

contract must be “so one-sided” that “‘no sane man not acting under a delusion

would make and that no honest man would’” participate in the transaction. NEC

Techs., Inc. v. Nelson, 478 S.E.2d 769, 771 & n.2 (Ga. 1996) (quoting R.L.

Kimsey Cotton Co. v. Ferguson, 214 S.E.2d 360, 363 (Ga. 1975)). The arbitration

clause in the Buffingtons’ agreement falls well short of this standard. Although

the district court found troubling that the clause was presented to the Buffingtons

“on a take-it-or-leave-it basis with no opt-out provision,” under Georgia law, an

adhesion contract is not per se unconscionable. See Crawford v. Results Oriented,

Inc., 548 S.E.2d 342, 343 (Ga. 2001) (citing Munoz v. Green Tree Fin. Corp., 542

S.E.2d 360, 365 (S.C. 2001)); see also Caley v. Gulfstream Aerospace Corp., 428

F.3d 1359, 1377 (11th Cir. 2005) (despite the existence of a “bargaining disparity”

common to an employment relationship, it did not render the arbitration agreement

entered unconscionable under Georgia law). As the Supreme Court has

7
recognized, “[m]ere inequality in bargaining power . . . is not a sufficient reason to

hold that arbitration agreements are never enforceable . . . .” Gilmer v.

Interstate/Johnson Lane Corp., 500 U.S. 20, 33, 111 S. Ct. 1647, 1655 (1991).

The district court also criticized the arbitration clause as “not conspicuous”

because it is “buried on the twenty-second page of a forty page, single-spaced, fine

print document,” but the district court overlooks other aspects of the document

that make apparent the agreement to arbitrate. The arbitration clause is

“capitalized in the . . . table of contents,” and an introductory paragraph to the

clause urges account holders to READ THIS PROVISION CAREFULLY AS

IT WILL HAVE A SUBSTANTIAL IMPACT ON HOW LEGAL CLAIMS

YOU AND WE HAVE AGAINST EACH OTHER and explains in bold typeset

what kinds of disputes are subject to arbitration. The Supreme Court invalidated

in Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 116 S. Ct. 1652 (1996), a

requirement under state law that operated to “singl[e] out arbitration provisions for

suspect status” on the ground that the Federal Arbitration Act requires that “such

provisions be placed ‘upon the same footing as other contracts.’” Id. at 687, 116

S. Ct. at 1656 (quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 511, 94 S. Ct.

2449, 2453 (1974)). Neither the district court, nor the Buffingtons on appeal, cite

any case law requiring that notice of or the provisions relating to arbitration be

8
“conspicious” and, even if this were the standard, the language in the Buffingtons’

agreement regarding arbitration is conspicious. The arbitration agreement is not

procedurally unconscionable.

The Federal Arbitration Act provides that an arbitration agreement “shall be

. . . enforceable, save upon such grounds as exist at law or in equity for [its]

revocation.” 9 U.S.C. § 2. The arbitration clause in the Buffingtons’ agreement is

neither procedurally nor substantively unconscionable. Because SunTrust is

entitled to “an order directing that such arbitration proceed in the manner provided

for in [its deposit] agreement,” id. § 4, we need not address the alternative

argument of SunTrust about severability. 

IV. CONCLUSION

We REVERSE the order that denied the renewed motion of SunTrust to

compel the Buffingtons to arbitration. We REMAND with instructions to compel

arbitration.

REVERSED AND REMANDED WITH INSTRUCTIONS.

9