UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

SHANE SWIFT, on Behalf of Himself and 

All Others Similarly Situated, 

Plaintiff,

vs.

BANCORPSOUTH BANK,

Defendant.

Case No. 1:10-cv-90-MMP

PLAINTIFFS’ PRETRIAL ISSUES MEMORANDUM

Plaintiff and the certified class (“Plaintiffs”) submit this memorandum addressing 

pretrial issues in accord with this Court’s Order for Pre-Trial Conference and Setting 

Trial. (N.D. Fla. DE # 49).

I. Status of The Case

In June 2009, the Judicial Panel on Multidistrict Litigation (“JPML”) created 

MDL No. 2036, and appointed United States District Judge James Lawrence King of the 

Southern District of Florida to preside over pretrial proceedings in a series of cases 

against numerous banks challenging the practice of assessing overdraft fees against their 

consumer account holders using a high-to-low re-sequencing scheme for debit card and 

ATM transactions. See In re Checking Account Overdraft Litig., 626 F. Supp. 2d 1333, 

1335 (J.P.M.L. 2009). Cases against more than 40 banks were eventually transferred to 

MDL No. 2036 for coordinated pretrial proceedings before Judge King.

On May 18, 2010, Plaintiff Shane Swift filed this case against Defendant 

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BancorpSouth Bank. In October 2010, the JPML transferred this case to the Southern 

District of Florida for inclusion in MDL No. 2036. (S.D. Fla. DE # 847, 848). Extensive 

pretrial proceedings were conducted before Judge King following transfer to MDL No. 

2036. 

On December 6, 2010, Plaintiff filed a Second Amended Complaint, asserting 

claims for breach of contract/breach of the implied covenant of good faith and fair 

dealing (Count I), unconscionability (Count II), Conversion (Count III), Unjust 

Enrichment (Count IV), and for violation of Arkansas’ Deceptive Trade Practice Act

(Count V). (S.D. Fla. DE # 994). BancorpSouth Bank moved to dismiss the Second 

Amended Complaint. (S.D. Fla. DE # 1068). Following briefing and oral argument, 

Judge King denied BancorpSouth Bank’s motion to dismiss the Second Amended 

Complaint. (S.D. Fla. DE # 1305). 

On April 11, 2011, BancorpSouth Bank filed its Answer and Affirmative 

Defenses, denying liability and asserting numerous defenses. (S.D. Fla. DE # 1335). 

Plaintiff moved to strike a number of BancorpSouth Bank’s defenses as legally 

insufficient. (S.D. Fla. DE # 1390). Prior to a ruling on that motion, the Court approved 

the parties’ stipulation authorizing BancorpSouth Bank to file amended affirmative 

defenses. (S.D. Fla. DE # 1613). On July 6, 2011, BancorpSouth Bank filed its 

Amended Answer and Affirmative Defenses. (S.D. Fla. DE # 1693). As a result, the 

operative pleadings in this case are Plaintiffs’ Second Amended Complaint and 

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BancorpSouth Bank’s Amended Answer and Affirmative Defenses.1 (S.D. Fla. DE # 

994, 1693).

Discovery commenced in May 2011. During the course of discovery, Plaintiffs 

reviewed over 100,000 pages of documents produced by BancorpSouth Bank, and 

Plaintiffs’ data expert analyzed voluminous electronic data produced by BancorpSouth 

Bank pertaining to its consumer account holders’ banking transactions during the class 

period. Plaintiffs deposed six BancorpSouth Bank employees, including Derek Caswell, 

Patty Farris, Jeff Jaggers (as corporate representative and individually), Michael Lindsey 

(as corporate representative and individually), and Lee McAllister. BancorpSouth Bank 

propounded written discovery, and deposed Plaintiff Shane Swift, and his wife, Trina

Swift. 

Both sides have disclosed experts on various topics. Plaintiffs designated Arthur 

Olsen, an expert in database analysis, data extraction, and data analysis, who first 

provided a declaration in support of class certification and later performed a class-wide 

calculation of damages using the voluminous electronic banking data produced by 

BancorpSouth Bank; Bruce McFarlane, a damages methodology expert, who opines

about alternative posting orders as a reliable measure of class members’ damages; and 

Steven Fried, a banking expert, who opines about BancorpSouth Bank’s debit resequencing practices and the motivations of banks such as BancorpSouth Bank in 

adopting debit re-sequencing like the one at issue in this lawsuit. 

 

1 On October 2, 2013, the claim for conversion (Count III) was dismissed pursuant to a 

Stipulation and Order. (S.D. Fla. DE # 3667, 3668). 

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BancorpSouth Bank designated Steven Visser, an expert in the field of data 

management and analysis, who opined about the methodologies employed by Mr. Olsen; 

Michael Barone, an expert in marketing – specifically consumer behavior and consumer 

psychology – who opined about purported consumer benefits from sequencing and 

overdraft payment policies like the ones used by BancorpSouth Bank; and Paul A. 

Carrubba, an attorney specializing in banking law and legal and operational issues, who 

opined about the purported reasonableness of BancorpSouth Bank’s processes and 

procedures relating to the posting sequence of transactions to deposit accounts, account 

disclosures, and information. All experts were deposed.

On December 20 2011, Plaintiffs filed their motion for class certification. (S.D. 

Fla. DE # 2271). Following extensive briefing and oral argument, the Court entered an 

Opinion and Order Granting Class Certification on May 4, 2012, a copy of which is 

attached as Exhibit A. (S.D. Fla. DE # 2673). In the class certification order, the Court 

certified the following class:

All BancorpSouth Bank customers in the United States who had one or 

more accounts and who, from the applicable statute of limitations through

August 13, 2010 (the “Class Period”), incurred an overdraft fee as a result 

of BancorpSouth’s practice of sequencing debit card transactions from 

highest to lowest.

Exhibit A at p. 22. Additionally, at Plaintiffs’ request, the Court certified the following 

five subclasses: 

One good faith and fair dealing subclass (encompassing Alabama, 

Arkansas, Florida, Louisiana, Mississippi, and Tennessee); one unjust 

enrichment subclass (encompassing Arkansas and Mississippi); two 

unconscionability subclasses (one encompassing Alabama, Arkansas, 

Florida, Louisiana, Tennessee, and Texas; and the other encompassing 

Mississippi and Missouri); and one subclasses [sic] for Plaintiff’s 

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Arkansas Deceptive Trade Practices Act claims.

Exhibit A at p. 23. 

BancorpSouth Bank then filed a petition with the United States Court of Appeals 

for the Eleventh Circuit, pursuant to Fed. R. Civ. P. 23(f), seeking permission to appeal 

the Opinion and Order Granting Class Certification. See 11th Cir. Case No. 12-90024-E. 

Following briefing, the Eleventh Circuit denied BancorpSouth Bank’s petition for 

permission to appeal. (S.D. Fla. DE # 3294). On May 3, 2013, BancorpSouth Bank 

moved to decertify the class. (S.D. Fla. DE # 3455). Following briefing, the District 

Court denied BancorpSouth Bank’s motion to decertify the class. (S.D. Fla. DE # 3540). 

BancorpSouth Bank then filed a second petition pursuant to Fed. R. Civ. P. 23(f), seeking 

permission to appeal the Order Denying Motion to Decertify, which the Eleventh Circuit 

denied.

2

 See 11th Cir. Case No. 13-90019-E. 

In February 2013, the District Court approved the implementation and completion 

of the class notice plan to 185,280 members of the certified class. (S.D. Fla. DE # 3242, 

3338, 3342). Two hundred and thirty-eight (238) class members timely exercised their 

right to opt out of the certified class. (S.D. Fla. DE # 3589). 

The District Court’s Revised Scheduling Order directed the parties to file all 

pretrial motions, including motions for summary judgment, Daubert motions, and

motions in limine. (S.D. Fla. DE # 2834). The filing deadlines were extended by 

 

2 During one of the Fed. R. Civ. P. 23(f) proceedings, the Eleventh Circuit raised a

technical issue concerning the diversity jurisdiction allegations, which Plaintiffs corrected 

by way of an unopposed motion to amend the Second Amended Complaint by 

Interlineation. (S.D. Fla. DE # 2820, 2826).

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subsequent Order. (S.D. Fla. DE # 2891). The following pretrial motions were filed and 

decided by the District Court following briefing and, in some instances, oral argument:

 Plaintiffs moved for summary judgment as to certain of BancorpSouth 

Bank’s affirmative defenses, arguing that those defenses were not 

available as a matter of law, either because they were inapplicable to the 

pending claims for relief or because there was no evidence to support the 

defenses. (S.D. Fla. DE # 2997, 3035, 3116). The District Court granted 

in part and denied in part Plaintiffs’ motion for summary judgment as to 

certain of BancorpSouth Bank’s affirmative defenses. (S.D. Fla. DE # 

3655, 3682). A copy of the summary judgment order is attached as 

Exhibit B. Prior to entry of the Order on Plaintiffs’ summary judgment 

motion, the parties stipulated to the dismissal with prejudice of 

BancorpSouth Bank’s res judicata and/or judicial estoppel and statute of 

repose defenses, and, consistent with the class certification order, to the 

applicable time frames for the relief Plaintiffs are seeking at trial pursuant 

to the various states’ statutes of limitations governing the claims for relief 

(S.D. Fla. DE # 3667, 3668). Thereafter, the Court granted summary 

judgment as to the affirmative defenses of laches, accord and satisfaction, 

ratification and acceptance, release, and course of dealing limited to 

Plaintiffs’ breach of contract/implied covenant of good faith and fair 

dealing claim. Exhibit B at pp. 5-7, 10. The Court denied summary 

judgment as to the affirmative defenses of voluntary payment and course 

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of dealing limited to the claims for unjust enrichment, unconscionability,

and violation of the Arkansas Deceptive Trade Practice Act. Exhibit B at 

pp. 8-10;

 BancorpSouth Bank moved for summary judgment against all of 

Plaintiffs’ claims for relief, arguing that: 

o the claim for breach of contract/implied covenant of good faith and 

fair dealing fails because the deposit agreement and related 

disclosures expressly authorized the high to low re-sequencing of 

debit card transactions; Arkansas law does not recognize the 

implied covenant claim; and that even if Arkansas recognized the 

claim, BancorpSouth Bank did not breach the covenant because 

deposit agreement and related disclosures permitted the resequencing;

o no affirmative claim for unconscionability exists under Arkansas 

law and, even if it did, there is no evidence of procedural and 

substantive unconscionability to support the claim; 

o no facts support the conversion claim, a claim that Plaintiffs did 

not seek to certify for class purposes, and which the parties 

dismissed by stipulation (S.D. Fla. DE # 3667, 3668);

o Arkansas law does not recognize a claim for unjust enrichment by 

or against parties to a written contract; 

o as to the Arkansas Deceptive Trade Practice Act, BancorpSouth

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Bank’s conduct fell within the safe harbor provision for conduct 

which complies with any rule, order, or statute administered by the 

Federal Trade Commission or to actions or transactions permitted 

under laws administered by a regulatory body or officer acting 

under statutory authority of Arkansas or the United States; and its 

conduct otherwise was not deceptive or misleading because the 

deposit agreement and disclosures informed Plaintiffs of the resequencing policy and there was no evidence of injury arising from 

BancorpSouth Bank’s posting policies; 

o BancorpSouth Bank’s ratification affirmative defense bars all 

claims because Plaintiffs incurred overdraft fees after learning of 

BancorpSouth Bank’s posting order;3

o BancorpSouth Bank’s waiver affirmative defense bars Plaintiffs’

claims because they continued to accept the benefits of 

BancorpSouth Bank’s overdraft protection service; and 

o all of the class claims would fail because Plaintiff’s individual 

claims fail.

(S.D. Fla. DE # 2999). Following extensive briefing and oral argument, 

the District Court denied BancorpSouth Bank’s motion for summary 

judgment in its entirety. Exhibit B at pp. 10-25; 

 

3 As discussed above, summary judgment was granted in Plaintiffs’ favor on this defense. 

Exhibit B at pp. 7-8. 

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 Plaintiffs moved in limine to preclude BancorpSouth Bank from offering 

evidence regarding: 

o Plaintiff’s control over other bank accounts or sources of payments 

when his account was overdrawn; 

o Plaintiff’s purpose and use of transactions on which overdraft fees 

were assessed, to buttress the bank’s argument that high to low 

posting benefits customers by giving priority to more important 

items; 

o BancorpSouth Bank purportedly acted in compliance with Office 

of the Comptroller of Currency (“OCC”) Interpretive Letters 

because no such letters authorized debit card transactions posting 

in high to low order to increase fees, and that BancorpSouth Bank 

should not be permitted to rely on the “Q and A” section of the 

OCC’s website because such information does not have the force 

of law;

o BancorpSouth Bank’s expert’s, Paul Carrubba, opinion that 

BancorpSouth Bank’s posting practices and account disclosures 

about those practices are common in the banking industry and used 

by competitors; and

o BancorpSouth Bank’s expert’s, Michael Barone, opinion that high 

to low posting of debit card transactions in general might be 

objectively reasonable to some consumers.

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(S.D. Fla. DE #2996). The Court granted Plaintiffs’ motion in limine in 

its entirety, finding all of the above described evidence irrelevant to the 

claims, with the qualifier that, consistent with the Court’s Daubert order, 

discussed infra (S.D. Fla. DE # 3229), that any issues related to expert 

testimony, as well as any other evidentiary issues, may be further 

considered at the final pre-trial conference. (S.D. Fla. DE # 3258);

 Plaintiffs also moved to strike BancorpSouth Bank’s expert witnesses, 

Paul Carrubba and Michael Barone, arguing that their opinions did not 

satisfy the Daubert standard (S.D. Fla. DE # 3014). Plaintiffs argued that 

Mr. Carrubba was offering a veiled legal opinion, that his opinions lacked 

foundational support, and that his opinion that it is commercially 

reasonable to post transactions high-to-low are irrelevant and 

unsubstantiated. Plaintiffs argued that Mr. Barone lacked support for his 

opinion that BancorpSouth Bank’s posting order benefited consumers as 

he relied on generic marketing studies and conceded that higher cost 

transactions are typically not made using debit cards, and that his opinions 

were irrelevant to the central issue in the case. Following extensive 

briefing, the District Court denied Plaintiffs’ motion to strike 

BancorpSouth Bank’s expert witnesses, concluding that there was “no 

cause to exclude their testimony at this time” or their reports, leaving the 

parties to object to the testimony and reports at trial (S.D. Fla. DE # 3229);

and

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 BancorpSouth Bank moved to strike two of Plaintiffs’ expert witnesses, 

Arthur Olsen and Bruce McFarlane. (S.D. Fla. DE # 3118). 

BancorpSouth Bank argued that Mr. Olsen was not a damages expert 

opining about a proper posting order or the appropriate amount of 

damages, a banking expert, or consumer behavior expert. Mr. Olsen’s 

opinions were labeled unreliable and claimed to lack “fit.” The challenge 

to Mr. McFarlane alleged that he did not do an analysis independent of 

what Mr. Olsen did, and that he was just approving Mr. Olsen’s methods. 

BancorpSouth Bank claimed that both experts assumed liability such that 

they could not be used to establish liability. Following extensive briefing, 

the District Court denied BancorpSouth Bank’s motion to strike Plaintiffs’ 

expert witnesses, also concluding that there was “no cause to exclude their 

testimony at this time” or their report, leaving the parties to object to the 

testimony and reports at trial. (S.D. Fla. DE # 3229). As to Mr. Olsen, the 

Court noted its previous denial of other banks’ challenges to his expertise 

and opinions, including BancorpSouth Bank’s challenge to Mr. Olsen at 

the class certification stage, indicating that the Court saw no reason to 

change its position on Mr. Olsen. Id.

Upon the conclusion of three years of pretrial proceedings, including substantial 

fact and expert discovery, comprehensive pretrial motion practice and the District Court’s 

determination of the pretrial motions, Judge King entered a Suggestion of Remand (S.D. 

Fla. DE # 3683, 3707). Thereafter, the JPML remanded the case to this Court. (N.D. Fla. 

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DE # 25, 26). The Clerk of the Southern District of Florida transmitted relevant docket 

sheets and designated docket entries to the Clerk of this Court. (N.D. Fla. DE # 30). 

Following remand to this Court, BancorpSouth Bank moved to transfer venue 

pursuant to 28 U.S.C. § 1404(a). (N.D. Fla. DE # 29, 33). On June 4, 2014, this Court 

entered an Order Denying Defendant’s Motion to Transfer Venue. (N.D. Fla. DE # 48). 

On June 5, 2014, this Court entered its Order for Pre-Trial Conference and Setting 

Trial. (N.D. Fla. DE # 49). Based on the pretrial proceedings conducted prior to remand, 

including the filing and disposition of all pretrial motions pursuant to the District Court’s 

Revised Scheduling Order (S.D. Fla. DE # 2834), this case is now ready for a final 

pretrial conference and for the scheduling of trial. Pursuant to the jury demand in 

Plaintiffs’ Second Amended Complaint, the case will be tried to a jury. 

II. Issues Requiring Determination Prior to Trial

The Court directed the parties to be guided by Fed. R. Civ. P. 16(c)(2) in 

addressing issues requiring determination prior to trial. Accordingly, Plaintiffs discuss

issues based on the relevant Rule 16(c)(2) factors.

A. Formulating and simplifying the issues, and eliminating frivolous 

claims or defenses.

The issues to be tried have been crystallized through the extensive motion practice 

before the District Court prior to remand. Plaintiffs’ claims are meritorious and have 

survived summary judgment. While Plaintiffs disagree with BancorpSouth Bank’s 

defenses, at this stage they do not foresee a means to eliminate any of the remaining 

defenses short of a trial on the merits.

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B. Amending the pleadings if necessary or desirable.

Further amendments to the pleadings are not appropriate at this stage of the 

proceedings.

C. Obtaining admissions and stipulations about facts and documents to 

avoid unnecessary proof, and ruling in advance on the admissibility of evidence.

As indicated above, the District Court has already ruled on a number of 

evidentiary issues. (S.D. Fla. DE # 3229, 3258). Plaintiffs will comply with the 

requirements in the Order for Pre-Trial Conference and Setting Trial to work with 

BancorpSouth Bank to include concise statements of admitted and disputed facts, and 

agreed and disputed legal issues, in the pre-trial stipulation. Plaintiffs will be prepared to 

discuss the disputed issues during the September 4, 2014 pre-trial conference. 

D. Avoiding unnecessary proof and cumulative evidence, and limiting the 

use of testimony under Federal Rule of Evidence 702.

As indicated above, the parties’ Daubert motions were denied by the Court. (S.D. 

Fla. DE # 3229).

E. Determining the appropriateness and timing of summary 

adjudication under Rule 56.

As indicated above, the District Court has already ruled on summary judgment 

motions. (S.D. Fla. DE # 3655, 3682).

F. Controlling and scheduling discovery, including orders affecting 

disclosures and discovery under Rule 26 and Rules 29 through 37.

Fact discovery is closed, and expert disclosures and discovery is also closed. 

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G. Identifying witnesses and documents, scheduling the filing and 

exchange of any pretrial briefs, and setting dates for further conferences and for 

trial.

The parties previously exchanged witness lists. Plaintiffs propose that trial 

exhibit lists be exchanged 30 days prior to the August 28 deadline for the filing of the 

pretrial stipulation and, following such exchange, that the parties confer to determine 

which exhibits can be admitted by stipulation or without objection, and which exhibits 

are subject to evidentiary objections. 

Plaintiffs propose that the trial be scheduled for the first available date on or after 

November 1, 2014. Plaintiffs anticipate that ten (10) days will be sufficient for the trial 

of this certified class action.

H. Referring matters to a magistrate judge or a master.

Plaintiffs do not recommend that any pending matters be referred to a magistrate 

judge or a master.

I. Settling the case and using special procedures to assist in resolving the 

dispute when authorized by statute or local rule.

The parties participated in formal mediation in August 2012 under the supervision 

of Professor Eric Green of Resolutions, LLC. No agreement was reached at mediation. 

J. Determining the form and content of the pretrial order.

As this Court has already entered its pre-trial order detailing the Parties’ 

obligations in advance of the September 4, 2014 pre-trial conference, Plaintiffs do not 

believe there is anything additional to do regarding this topic.

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K. Disposing of pending motions.

There are no pending motions at this time. 

L. Adopting special procedures for managing potentially difficult or 

protracted actions that may involve complex issues, multiple parties, difficult legal 

questions, or unusual proof problems.

Plaintiffs do not anticipate any manageability issues concerning the trial. A 

detailed trial plan was filed by the Plaintiffs in support of the motion for class 

certification. (S.D. Fla. DE # 2272). Plaintiffs provide an updated trial plan below. In 

certifying the class and subclasses identified above (supra at p. 4), the Court found that 

the proposed trial plan reflects that a manageable and efficient trial can be conducted. 

(S.D. Fla. DE # 2673 at pp.21-22). Plaintiffs’ trial plan provides a roadmap to aid the 

Court in assessing how a single trial should be conducted against BancorpSouth Bank on 

behalf of multiple classes under federal law and eight states’ laws in an efficient and 

manageable manner.

BancorpSouth Bank used uniform form contracts for all Class members. Class 

members were forced to accept BancorpSouth Bank’s contract terms on a “take-it-orleave-it” basis. There was no opportunity to negotiate the terms, and no material 

variations among them. Similarly, the testimony of BancorpSouth Bank’s employees and 

its documents demonstrate that the bank applied its overdraft policies uniformly to all 

Class members. The testimony of BancorpSouth Bank’s witnesses and its documents 

also demonstrate that BancorpSouth Bank’s unlawful scheme defrauded its customers out 

of millions of dollars in additional overdraft fees. 

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Plaintiffs envision a single trial lasting nine to ten days. First, Plaintiffs will 

present their case-in-chief with respect to all claims, submitting common evidence of 

BancorpSouth Bank’s wrongdoing, class-wide injury and total damages. Plaintiffs will 

present their case through the testimony of a number of BancorpSouth Bank’s employees

and documents, through the testimony of Plaintiff Shane Swift, and his wife, Trina Swift,

and through their three expert witnesses, Arthur Olsen, Bruce McFarlane and Steven 

Fried. Because BancorpSouth Bank’s policies were uniform across all Class members 

during the entire class period, presentation of evidence demonstrating the bank’s conduct 

will not be overly complex.

Second, the burden shifts to BancorpSouth Bank to present its defenses. Based on 

discovery conducted and witnesses it disclosed, Plaintiffs anticipate that BancorpSouth 

Bank will present its defenses through the testimony of its own employees and its three 

designated experts, Steven Visser, Michael Barone, and Paul A. Carrubba. 

Third, Plaintiffs will present their rebuttal. 

Fourth, liability and relief will be determined for all claims. Most, if not all, of 

Plaintiffs’ claims will be decided by the jury. Then, to the extent there are any remaining 

unconscionability claims (or issues related to such claims) for the Court to decide, the 

Court would decide them after the jury returns its verdict. To the extent Plaintiffs prevail 

on their claims, judgment in a total monetary sum will be entered based on the amounts 

awarded by the jury and/or the Court for the Subclasses. A post-judgment administrative 

proceeding will follow, in which BancorpSouth Bank’s data will be used to distribute 

checks to each individual Class member based on Plaintiffs’ expert’s damage 

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calculations. This will be done systematically and without requiring Class members to 

submit proofs of claim. The Court will be asked to approve this final allocation of 

damages, which should be of no concern to BancorpSouth Bank.

4

 On the other hand, if 

BancorpSouth Bank prevails on all claims, then judgment dismissing the action with 

prejudice would be entered. 

For all of their claims for relief, Plaintiffs will rely on common proof derived 

directly from BancorpSouth Bank’s own employees and documents, and from Plaintiffs’

experts. Below is an evidentiary outline demonstrating how this case will be tried as a 

class action.

1. Plaintiffs Will Prove with Common Evidence that BancorpSouth 

Bank Breached the Covenant of Good Faith and Fair Dealing

All states recognize an implied covenant of good faith and fair dealing in every 

contract.5 Further, “when one party is given discretion to act under a contract, said 

discretion must be exercised in good faith.” (S.D. Fla. DE # 305 at 19). The common 

law implies the duty of good faith and fair dealing in every contract in terms of 

performance and enforcement. See RESTATEMENT (2D) OF CONTRACTS §205 (1981) (the 

 

4

 It is common for courts to have follow-on proceedings regarding damages allocation, 

even if they involve individualized damage proceedings (which will not be necessary 

here). See, e.g., Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004); 

Bell Atl. Corp. v. AT&T Corp., 339 F.3d 294, 306 (5th Cir. 2003); 3 CONTE & NEWBERG,

NEWBERG ON CLASS ACTIONS, § 9:53 at 429-30 (4th ed. 2002) (collecting cases); 7B 

CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY K. KANE, FEDERAL PRACTICE AND 

PROCEDURE § 1781 (2d ed. 1986).

5

 Certain states recognize a claim for breach of the covenant of good faith and fair 

dealing as a separate and independent claim from breach of contract, while other states 

treat breach of the covenant of good faith and fair dealing as a species of breach of 

contract.

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“RESTATEMENT OF CONTRACTS”). In other words, each party to a contract has a duty to 

refrain from doing anything to unfairly interfere with the rights of any other party to 

receive the benefits of the contract. Id. Good faith and fair dealing includes exercising 

one’s discretion in carrying out the contract in good faith. (S.D. Fla. DE # 305 at 19).

The law of good faith and fair dealing is largely uniform. Forty-nine jurisdictions 

either directly cite or paraphrase the RESTATEMENT OF CONTRACTS as to the implied 

covenant of good faith and fair dealing. Some states treat the implied covenant of good 

faith and fair dealing as a separate cause of action. For those that do not, the good faith 

and fair dealing claims are subject to the elements of that state’s breach of contract 

claims. 

Plaintiffs have grouped the eight states where BancorpSouth Bank operated retail 

banking operations during the class period together into a single subclass for which 

materially identical legal standards apply. This subclass treats the implied covenant 

claims as part of the breach of contract claims. The states included are Alabama, 

Arkansas, Florida, Mississippi, and Tennessee. The common elements that must be 

proven to establish a breach of the duty of good faith and fair dealing in these states are: 

(i) a valid contract; (ii) the defendant breached the contract by unfairly interfering with 

the plaintiff’s rights to receive benefits under the contract; and (iii) resulting damages. 

Plaintiffs will prove with evidence common to all Class members that 

BancorpSouth Bank did not act in good faith when it exercised discretion under its 

account agreements with Class members. Evidence adduced during discovery 

demonstrates that proof of Plaintiffs’ claim is found in BancorpSouth Bank’s own 

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documents and the testimony of its current and former employees.

For example, BancorpSouth Bank’s account agreements were standardized form 

contracts that were remarkably uniform across the eight states in which BancorpSouth

Bank did retail business during the class period. The account agreements were given to 

customers when they opened an account and/or during the time that they maintained their 

accounts and were available in all BancorpSouth Bank branch offices. Upon 

implementing high-to-low posting in January 2003, and continuing throughout the class 

period, the boilerplate form contracts BancorpSouth Bank provided to its retail banking 

customers, on a non-negotiable “take-it-or-leave it” basis, were many pages long, with 

small type, and contained similarly vague and misleading disclosures that purported to 

reserve discretion to BancorpSouth Bank regarding its high-to-low sequencing and 

overdraft fee practices.

In all of BancorpSouth Bank’s agreements, the reordering of debit transactions is 

discretionary. Nothing in these uniform agreements permitted BancorpSouth Bank to 

manipulate the reordering of debit card transactions solely to create overdrafts that would 

not otherwise exist, to charge overdraft fees when there are sufficient funds in the 

account, or to reorder the posting of debits over a period of days irrespective of when the 

transaction occurred. BancorpSouth Bank’s conduct in doing so violated the implied 

covenant of good faith and fair dealing.

In addition to uniform account agreements, other evidence of BancorpSouth

Bank’s breach will be common and uniform, given that the bank uniformly re-sequenced 

transactions using a formulaic, automated system and posted debits from highest to 

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lowest for all Class members. BancorpSouth Bank employed a secret “Overdraft Matrix 

Limit” for Class members in order to authorize transactions and charge overdraft fees; 

and provided unclear balance information to all Class members.

Common evidence will also be introduced to demonstrate that BancorpSouth 

Bank failed to clearly disclose the circumstances under which it would charge overdraft 

fees, and that BancorpSouth Bank was well aware of the adverse impact that its scheme 

had on Plaintiff and the Class – indeed, the fundamental purpose for changing its posting 

order to high-to-low, based upon the recommendations of its consultant, was that it would 

generate millions of dollars more annually.

2. Plaintiffs Will Prove with Common Evidence that BancorpSouth

Bank’s Overdraft Practices are Substantively and Procedurally 

Unconscionable

In denying BancorpSouth Bank’s motion to dismiss and later its motion for 

summary judgment, the District Court ruled that Plaintiffs sufficiently pled the following 

elements of procedural unconscionability: (i) there is a tremendous disparity in 

sophistication and bargaining power between Plaintiffs and the bank; (ii) the deposit 

agreements were contracts of adhesion – that is, Plaintiffs and Class members were not 

presented with an option to negotiate the terms, and those terms were set out in 

voluminous boilerplate language; and (iii) Plaintiffs and Class members were denied any 

meaningful opportunity to opt out of the so-called “overdraft protection” programs. (S.D. 

Fla. DE # 1305 at 2). The District Court also ruled that Plaintiffs sufficiently pled the 

following elements of substantive unconscionability: (i) no reasonable person would 

have agreed to allow the bank to post debits in a manner designed solely to maximize the 

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number of overdraft fees; and (ii) the amount of overdraft fees is unconscionably 

excessive because the fees are not reasonably related to the costs or risks associated with 

providing overdraft protection. (S.D. Fla. DE # 1305 at 2).

The law of unconscionability is substantially uniform across all states. All of the 

states where BancorpSouth Bank operated retail banking operations during the class 

period, with the exception of Louisiana, have adopted statutes that are the same or 

substantially identical to Uniform Commercial Code (“U.C.C.”) §2-302.6 Plaintiffs have 

grouped the states together into two subclasses for which materially identical legal 

standards apply. The states in Subclass No. 1, which comprise the majority of states, 

require both substantive and procedural unconscionability. These states are: Alabama, 

Arkansas, Florida, Louisiana, Tennessee, and Texas. The states in Subclass No. 2 require 

only substantive or procedural unconscionability. If the Subclass No. 1 representatives 

prove both substantive and procedural unconscionability, they have necessarily proved 

the claims of Subclass 2. The fact finder will be asked to state on the verdict form 

whether both procedural and substantive unconscionability are proven. If the answer to 

 

6

 U.C.C. §2-302 (2011) provides: 

(1) If the court as a matter of law finds the contract or any term of the contract to have 

been unconscionable at the time it was made, the court may refuse to enforce the 

contract, or it may enforce the remainder of the contract without the unconscionable term, 

or it may so limit the application of any unconscionable term as to avoid any 

unconscionable result.

(2) If it is claimed or appears to the court that the contract or any term thereof may be

unconscionable, the parties shall be afforded a reasonable opportunity to present evidence 

as to its commercial setting, purpose, and effect to aid the court in making the 

determination.

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22

one inquiry or both is “yes,” the Subclass 2 claims are proved. 

Plaintiffs will prove the elements of unconscionability with common evidence, 

which will include evidence of BancorpSouth Bank’s financial resources and 

sophistication in devising the overdraft fee program; the form contracts with boilerplate 

language that BancorpSouth Bank provided to all of its retail banking customers; 

BancorpSouth Bank’s common failure to provide Plaintiff and Class members with any 

meaningful opportunity to negotiate or change the terms of their deposit agreements, or to 

opt out of the bank’s overdraft payment service; and consumer and employee confusion 

and complaints regarding the substantive unfairness of the terms of BancorpSouth’s 

overdraft scheme.

3. Plaintiffs Will Prove With Common Evidence that BancorpSouth 

Bank Was Unjustly Enriched

The law of unjust enrichment is largely uniform. Most states have simply adopted 

a variation of the definition of unjust enrichment in RESTATEMENT (FIRST) OF 

RESTITUTION §1, which provides that a party may be required to make restitution if she is 

unjustly enriched at the expense of another. Plaintiffs grouped the states together into a 

single subclass for which materially identical legal standards will apply. These states 

follow the definition of unjust enrichment in RESTATEMENT (FIRST) OF RESTITUTION §1. 

The states included are Arkansas and Mississippi. The common elements that must be 

proven to establish unjust enrichment in these states are: (i) the plaintiff conferred a 

benefit; (ii) the defendant accepted or retained that benefit; (iii) under circumstances that 

would be unjust for the defendant to retain the benefit. 

Plaintiffs will also use common evidence to prove their unjust enrichment claim. 

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First, Plaintiffs will demonstrate that Plaintiff Swift and the Class members conferred a 

benefit on BancorpSouth Bank that was unjust – paying excessive overdraft fees. This 

evidence will include the declaration and testimony of Plaintiffs’ experts based on a 

detailed analysis of BancorpSouth Bank’s internal documents and overdraft transaction 

data for the Class. It will also include evidence that BancorpSouth Bank specifically 

recognized that overdraft fee revenue (i.e., the benefit conferred) would increase as a 

result of the scheme. Thus, Plaintiffs will show with common evidence that 

BancorpSouth Bank appreciated that benefit.

Second, Plaintiffs will prove that BancorpSouth Bank’s retention of that benefit is 

unjust. That evidence will include documents and testimony proving that BancorpSouth 

Bank knowingly devised the scheme in order to increase revenue at the expense of the 

Class, and that the bank recognized that high to low would generate far more overdraft 

fees for customers. 

4. Plaintiffs Will Prove with Common Evidence that BancorpSouth 

Bank Violated the Arkansas Deceptive Trade Practices Act

The Arkansas Deceptive Trade Practices Act, Ark. Code Ann. §4-88-101, et seq. 

(“ADTPA”) prohibits unconscionable, false, or deceptive acts or practices in business, 

commerce, or trade. The applicable section of the ADTPA is ARK. CODE ANN. § 4-88-

107(a)(10).

Using evidence common to all Class members – much of which overlaps with the 

evidence that will be used to establish BancorpSouth Bank’s liability under Plaintiffs’ 

other claims for relief discussed above – Plaintiffs will demonstrate that BancorpSouth 

Bank violated the ADTPA. That evidence will include the following: BancorpSouth 

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Bank uniformly re-sequenced transactions and posted debits from highest to lowest for all 

Class members; employed a secret “Overdraft Matrix Limit” to Class members in order 

to charge overdraft fees; provided inaccurate balance information to all Class members; 

failed to disclose the circumstances under which it would charge overdraft fees in its 

uniform account agreements; was well aware of the adverse impact that its scheme had 

on the Class; and failed to provide Class members with any meaningful opportunity to 

opt out of the overdraft practice. Additional common proof will consist of evidence of 

BancorpSouth Bank’s financial resources and sophistication in devising the overdraft fee 

program; and consumer complaints regarding the unfairness of the overdraft scheme. 

5. Plaintiffs Will Prove with Common Evidence Causation and 

Amount of Damages

Plaintiffs will demonstrate causation through, inter alia, documents and testimony 

from BancorpSouth Bank employees showing that the injury to Class members in the 

form of the payment of overdraft fees was foreseeable and an intended consequence of its 

scheme, including internal documents admitting to the overdraft scheme’s impact on the 

Class and the benefit of the scheme to BancorpSouth Bank.

With the testimony of its experts, Plaintiffs will use common proof to demonstrate 

injury to Class members and present total damages for the Class without the need to

resort to information collected from individual Class members. BancorpSouth Bank’s 

sophisticated systems contemporaneously recorded and then stored all debit transactions 

during the class period. This common evidence has been mined and analyzed by 

Plaintiffs’ expert to (i) identify all BancorpSouth Bank customers who were assessed 

additional overdraft fees due to BancorpSouth Bank’s high-to-low posting order as 

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compared with alternative posting orders in which debit card transactions are posted 

either in of low-to-high order or in chronological order based on authorization date and 

time, and (ii) calculate the amount of the additional overdraft fees that each Class

member was charged during the class period. Based on the analysis of BancorpSouth 

Bank’s customer data performed by Plaintiffs’ data expert, at trial Plaintiffs will 

demonstrate that approximately 195,000 consumer account holders sustained damage 

based on BancorpSouth Bank’s high-to-low re-sequencing of debit card and ATM 

transaction, and will present two alternative damage calculations, ranging from 

approximately $49 million to $42 million, for the jury’s consideration.

M. Ordering a separate trial under Rule 42(b) of a claim, counterclaim, 

crossclaim, third-party claim, or particular issue.

There is no compelling reason to bifurcate the trial of this case. There are no 

counterclaims, crossclaims or third-party claims, and the determination of liability and 

damages based on the parties’ claims and defenses can be efficiently tried in a single trial. 

N. Ordering the presentation of evidence early in the trial on a 

manageable issue that might, on the evidence, be the basis for a judgment as a 

matter of law under Rule 50(a) or a judgment on partial findings under Rule 52(c).

There is no need to order the presentation of the evidence. Most, if not all, of 

Plaintiffs’ claims will be decided by the jury, making Fed. R. Civ. P. 52(c) inapplicable. 

O. Establishing a reasonable limit on the time allowed to present 

evidence.

Plaintiffs’ counsel currently believe that their case-in-chief can be presented in 

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26

five (5) days, including jury selection, and will confer with counsel for BancorpSouth 

Bank about the amount of time each side believes will be necessary to put on their 

respective cases in chief.

P. Facilitating in other ways the just, speedy, and inexpensive, 

disposition of the action.

At this time, Plaintiffs cannot identify any issues that could hamper the just, 

speedy, and inexpensive disposition of this action. Once the parties have submitted their

pre-trial stipulation, the Court will be in a position to preside over the trial of this action 

in a just and speedy manner. 

III. Other Pretrial Management Issues For The Court’s Consideration

None at this time.

Dated: June 25, 2014.

/s/ Bruce S. Rogow

Bruce S. Rogow, Esquire

Florida Bar No. 067999

brogow@rogowlaw.com 

BRUCE S. ROGOW, P.A.

Broward Financial Center

500 East Broward Boulevard

Suite 1930

Fort Lauderdale, FL 33394

Tel: 954-767-8909

Fax: 954-764-1530

/s/ Jonathan M. Streisfeld

Jeffrey M. Ostrow

Florida Bar No.: 121452

ostrow@kolawyers.com

Jonathan M. Streisfeld

Florida Bar No.: 117447

streisfeld@kolawyers.com

KOPELOWITZ OSTROW P.A.

/s/ Robert C. Gilbert

Robert C. Gilbert, Esquire

Florida Bar No. 561861

rcg@grossmanroth.com

David M. Buckner, Esquire

Florida Bar No. 60550

dbu@grossmanroth.com

GROSSMAN ROTH, P.A.

2525 Ponce de Leon Boulevard

Eleventh Floor

Coral Gables, FL 33134

Tel: 305-442-8666

Fax: 305-779-9596

Darren T. Kaplan

Georgia Bar No.: 172670

dkaplan@chitwoodlaw.com

CHITWOOD HARLEY HARNES, LLP

2300 Promenade II

1230 Peachtree Street, N.E.

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200 S.W. First Avenue, 12th Floor

Fort Lauderdale, FL 33301

Telephone: (954) 525-4100

Facsimile: (954) 525-4300

Michael W. Sobol, Esquire

California Bar No. 194857

msobol@lchb.com

Roger N. Heller, Esquire

California Bar No. 215348

rheller@lchb.com 

LIEFF CABRASER HEIMANN &

 BERNSTEIN L.L.P.

Embarcadero Center West

275 Battery Street, 30th Floor

San Francisco, CA 94111

Tel: 415-956-1000

Fax: 415-956-1008

Motion for Admission to be Filed

Atlanta, GA 

Telephone: (404) 873-3900

Facsimile: (404) 876-4476

Motion for Admission to be Filed

Counsel for Plaintiff and the Certified Class

Case 1:10-cv-00090-MP-GRJ Document 54 Filed 06/25/14 Page 27 of 28
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CERTIFICATE OF SERVICE

I hereby certify that on June 25, 2014, I electronically filed the foregoing 

document with the Clerk of the Court using CM/ECF. I also certify that the foregoing 

document is being served this day on all counsel of record or pro se parties in the manner 

specified, either via transmission of Notices of Electronic Filing generated by CM/ECF 

or in some other authorized manner for those counsel or parties who are not authorized to 

receive electronically Notices of Electronic Filing.

/s/ Jonathan M. Streisfeld

Jonathan M. Streisfeld

Florida Bar No. 117447

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