IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

GAINESVILLE DIVISION 

SHANE SWIFT, ON BEHALF OF : 

HIMSELF AND ALL OTHERS : 

SIMILARLY SITUATED, : 

 : CIVIL ACTION FILE 

 Plaintiff, : NO. 1:10-CV-00090-MMP-GRJ 

 : 

v. : 

 : 

BANCORPSOUTH BANK, : 

 : 

 Defendant. : 

BANCORPSOUTH'S INITIAL MEMORANDUM 

REGARDING PRETRIAL ISSUES 

Pursuant to the Court's Order for Pre-Trial Conference and Setting Trial (the 

"Order") (Doc. 49, Defendant BancorpSouth Bank ("BancorpSouth") submits this initial 

memorandum regarding pretrial issues.

I. CASE STATUS 

A. Case Posture. 

This case is nearly ready for trial, but important pretrial decisions remain to be 

made. Discovery is complete.1 The MDL Court certified a class and appointed Swift as 

the class representative. (MDL Doc. 2673.) Class notice was sent to 185,280 members of 

the certified class, of which 238 members timely opted out. (MDL Docs. 3242, 3338, 

 

1

 No motion practice arose out of discovery in the MDL Court—the parties were able 

to cooperate to work out discovery disputes and efficiently complete complex discovery. 

BancorpSouth has requested a supplemental report from Swift's expert, Arthur Olsen, and 

Swift's counsel has committed to producing that report. In addition, the parties have 

agreed to provide supplemental and amended discovery information as required by the 

Federal Rules of Civil Procedure. 
2 

3342, 3589.) Briefing on a motion to dismiss, motions for summary judgment, motions to 

strike expert witnesses, and several additional motions is complete, with orders entered 

by the MDL Court.2

 (MDL Docs. 1305, 3229, 2996, 2997, 2999, 3258, 3655, 3682.) 

The bulk of what remains before setting a trial date is for the Court to decide 

pragmatic issues related to managing this trial and to clear up inconsistencies that remain 

in the record. Respectfully, if the parties cannot reach an agreement, these issues should 

be decided before setting a trial date because additional motions and hearings may be 

necessary depending on the Court's decisions. Resolving these issues before trial will 

ensure that this case progresses logically and efficiently to verdict, without prejudice to 

the litigants. 

B. The sole class representative: Shane Swift and his Arkansas law claims. 

Plaintiff Shane Swift, the only class representative, is a former checking account 

customer of BancorpSouth. Throughout Swift's relationship with BancorpSouth, he 

regularly withdrew more money (including via debit card transactions) than he had in his 

checking account, and incurred overdraft charges as a result. Swift's lawsuit does not 

question the propriety of overdraft charges themselves. Instead, Swift attacks the order in 

which BancorpSouth posts electronic debit transactions to customers' accounts at the end 

of each banking day, despite the fact that BancorpSouth processes transactions consistent 

 

2

 Although the MDL Court set an "all motions" deadline 19 months ago (MDL Doc. 

2834 (setting October 9, 2012 as deadline)), consistent with the Court's Order for PreTrial Conference and Setting Trail (N.D. Fla. Doc. 49), BancorpSouth intends to file 

appropriate motions in limine focused on clarifying, organizing, and streamlining trial at 

an appropriate time. In addition, BancorpSouth notified opposing counsel that it would do 

so upon remand from the MDL Court. (MDL Doc. 2998.) 
3 

with its account agreements and other disclosures.3

 Because all transactions are processed 

in a batch, the bank must place them in some order. During the relevant period, 

BancorpSouth posted all deposits first, then all debits, with each debit transaction 

separately posted in order from highest to lowest by dollar amount.4

 (See generally MDL 

Doc. 2673.) Almost all the facts regarding the BancorpSouth account agreements, 

disclosures, and posting practices, as well as Swift's transaction data, are undisputed; 

BancorpSouth anticipates that the parties will be able to stipulate to these facts. (See

Swift's Response to BancorpSouth's Statement of Material Facts in Support of Summary 

Judgment, MDL Doc. 3043-1 at 3–6 (Swift does not dispute majority of material facts).) 

Swift alleges that BancorpSouth's policy of posting electronic debit transactions 

on each banking day from highest-dollar-amount to lowest-dollar-amount caused him to 

pay more overdraft fees to BancorpSouth than he would have otherwise paid. Swift 

characterizes BancorpSouth's disclosed posting order as "re-ordering," and claims it is 

wrongful because it causes more transactions to trigger overdraft fees than would occur 

under other, alternative posting orders.5 Swift argues that BancorpSouth's posting 

practice is a breach of contract or, alternatively, somehow unconscionable. Swift has 

refused to designate a "proper" or "correct" alternative posting order or point to any 

 

3

 The governing Deposit Agreement and the Account Information Statement are 

attached hereto as Exhibit A and Exhibit B. These were attached to Swift's Second 

Amended Complaint (MDL Doc. 994.) 

4

 Although Swift only challenges the posting of electronic debits in this lawsuit, 

checks and ACH transfers also were among the debits posted to Swift's account. 

5

 Swift's characterization of BancorpSouth's disclosed posting order as "re-ordering" 

is inaccurate advocacy. BancorpSouth ordered transactions only once, at the end of the 

banking day, before posting them all in one daily batch. No re-ordering occurred. 
4 

authority requiring any specific order, instead leaving that decision to the jury at trial. 

(See, e.g., MDL Doc. 3498 at 7.) 

Based on Swift's allegations, he is pursuing claims for breach of the duty of good 

faith and fair dealing, a declaratory judgment of unconscionability, unjust enrichment, 

and a violation of the Arkansas Deceptive Trade Practices Act (the "ADTPA"). Swift, 

however, does not pursue all of these claims for the class members in every state; instead, 

Swift is pursuing the patchwork of claims illustrated in the chart below (with the 

applicable class period): 

Good Faith/ 

Fair Dealing 

Unjust 

Enrichment 

Unconscionability ADTPA 

Alabama May 18, 2004- 

Aug. 13, 2010 

 May 18, 2004 - 

Aug. 13, 2010 

Arkansas May 18, 2005- 

Aug. 13, 2010 

May 18, 2007-

Aug. 13, 2010 

May 18, 2005 - 

Aug. 13, 2010 

May 18, 2005- 

Aug. 13, 2010 

Florida May 18, 2006 

-Aug. 13, 2010 

 May 18, 2006 - 

 Aug. 13, 2010 

Louisiana Jan. 1, 2003 - 

Aug. 13, 2010 

Mississippi May 18, 2007- 

Aug. 13, 2010 

May 18, 2007-

Aug. 13, 2010 

May 18, 2007 - 

Aug. 13, 2010 

Missouri May 18, 2007 - 

Aug. 13, 2010 

Tennessee May 18, 2004 

-Aug. 13, 2010 

 May 18, 2004 - 

 Aug. 13, 2010 

Texas May 18, 2006 - 

Aug. 13, 2010 

Thus, for example, although Swift is pursuing all four claims on behalf of Arkansas class 

members, Swift is pursuing only a declaratory judgment for unconscionability on behalf 

of Louisiana, Missouri, and Texas class members. 
5 

C. BancorpSouth's Defenses. 

At trial, BancorpSouth will present a number of affirmative defenses, depending 

on how the case progresses. These defenses include unclean hands, waiver or license, 

consent, failure to satisfy conditions precedent, failure to mitigate damages, and the 

voluntary payment doctrine, as well as a course of dealing defense applicable only to the 

unjust enrichment, unconscionability, and ADTPA claims. (See MDL Docs. 1693, 3668, 

& 3682.) 

II. PRETRIAL ISSUES TO BE DECIDED

Although many motions have been ruled on and discovery is complete, this case 

is not ready for trial. Several balls-and-strikes calls remain to be made; these decisions 

will determine the scope and conduct of the trial, and can avoid a trial that is rife with 

confusing, inconsistent presentations. Before trial, the Court should decide: (1) whether 

an unconscionability claim may proceed, and if it does, must it be tried to a jury or the 

Court; (2) whether an independent breach of contract claim may proceed; (3) whether the 

trial should be conducted in phases, and (4) discrete evidentiary issues. Decisions on 

these issues will, in turn, determine whether any motions in limine are necessary and will 

ensure a swift and just resolution of this case. 

A. The Court should rule on Swift's unconscionability claim. 

Arkansas law does not recognize an affirmative claim for unconscionability and 

Swift's attempt to use a declaratory judgment to circumvent Arkansas law should be 

rejected. In the alternative, the Court should act as fact finder, before trial, and decide 

whether the challenged provisions in BancorpSouth's Deposit Agreement are 
6 

unconscionable. The Court must make this decision because Swift's purported 

unconscionability claim is an equitable declaratory judgment claim, and the Court should

make this decision because it will guide whether Swift's case goes forward as a breach of 

contract case or a quasi-contract case—it cannot go forward as both. Otherwise, the trial 

will be unnecessarily complicated and Swift will be forced to prove diametrically 

opposed theories. It is hard to imagine a more confusing trial than one predicated on the 

plaintiff putting on evidence of one set of facts and the opposite of that same set of facts: 

a coherent verdict form would be nearly impossible to fashion, the jury inevitably would 

be confused, and error likely would follow.6

1. The Court can and should correct the MDL Court's erroneous rulings 

allowing Swift's unconscionability claim to proceed. 

As BancorpSouth has argued from the beginning of this case, unconscionability is 

an affirmative defense, not a cause of action under Arkansas law. To sidestep 

unconscionability's uniform characterization as an affirmative defense and to avoid 

dismissal of a nonexistent cause of action, Swift argued in his opposition to summary 

judgment that he is "seeking affirmative declaratory relief that the terms of a contract are 

 

6

 If the Court does not decide unconscionability prior to the trial, the Court should 

add an additional phase of the trial for the equitable claims. See, e.g., Hanwha Azdel, Inc. 

v. C&D Zodiac, Inc., No. 6:12-CV-00023, 2013 U.S. Dist. LEXIS 108776, *8 (W.D. Va. 

Aug. 2, 2013) ("The factor which tips in favor of bifurcation is that Counts I, II, and III 

assert legal claims for a jury to resolve—breach of contract and the resulting monetary 

damages [the plaintiff] alleges it suffered. Counts IV and V, however, seek equitable 

relief which only the court can award. Based on these factors, I find that bifurcation of 

liability and damages in Counts IV and V will promote judicial economy."). See also

Daniels v. Loizzo, 178 F.R.D. 46, 47 (S.D.N.Y. 1998) ("Judicial efficiency is served 

where a separate trial disposes of one claim or establishes a necessary element of a 

second claim.").
7 

unconscionable" and that his claim is "a cause of action for unconscionability where the 

plaintiff [seeks] declaratory relief." (MDL Doc. 3043 at 10, 11.) The MDL Court relied 

on Swift's late-arriving declaratory judgment theory to deny summary judgment on the 

unconscionability claim. (See Order on Mtns. for Summ. J., MDL Doc. 3684 at 14–15 

(describing Swift's unconscionability claim as "seeking affirmative declaratory relief that 

the terms of a contract are unconscionable."). 

Thus, Swift's unconscionability "claim" in fact seeks a declaration that the 

account agreement, or some part of it, is unconscionable. As a remedy accompanying this 

declaration, Swift seeks "damages as supplemental relief" under the declaratory judgment 

provisions of Arkansas and federal law.7 (See MDL. Doc. 3043 at 10 (citing Ark. Code 

Ann. § 16-111-103(a); Ark. Code Ann. § 16-111-110; 28 U.S.C. §§ 2201–2202).) Swift 

should not be able to use the declaratory judgment statute to sidestep state law prohibiting 

an affirmative cause of action, and the MDL Court erred by allowing the claim to 

proceed. 

 

7

 Swift's theory is that he is entitled to money damages based on a judgment 

declaring the account agreement unconscionable. This position is untenable. See Tiller v. 

State Farm Mut. Auto. Ins. Co., 549 F. App'x. 849, 854 (11th Cir. 2013) (dismissing 

claims because they are "direct actions for money damages masquerading as claims for 

equitable and declaratory relief"); B. Braun Med., Inc. v. Abbott Labs., 124 F.3d 1419, 

1428 (Fed. Cir. 1997) (holding that money damages after a declaratory judgment for the 

affirmative defense of patent misuse may not be awarded because the proper remedy is 

unenforceability; in other words, the defense "may not be converted to an affirmative 

claim for damages simply by restyling it as a declaratory judgment."). Even if damages 

were available, awarding them is within the discretion of the Court. See 28 U.S.C. § 2202 

(further relief "may be granted, after reasonable notice and hearing") (emphasis added). 

In any event, unjust enrichment is the vehicle to obtain damages outside of the contract—

even though Swift seeks precisely the same damages in his breach of contract claim. 
8 

As BancorpSouth demonstrated in both its motion to dismiss and motion for 

summary judgment, Arkansas law does not recognize an affirmative claim for 

unconscionability. (MDL Doc. 2999-1 at 9–13; MDL Doc. 3112 at 8–9.) Much like the 

claimant's attempt to use a declaratory judgment to get money damages on the affirmative 

defense of patent misuse in B. Braun Med., Inc. v. Abbott Labs., "monetary damages may 

not be awarded 'under a declaratory judgment . . . based on [unconscionability],' because 

[unconscionability] simply renders the [contract] unenforceable. In other words, the 

defense of [unconscionability] may not be converted to an affirmative claim for damages 

simply by restyling it as a declaratory judgment." 124 F.3d 1419, 1428 (Fed. Cir. 1997). 

See also King v. Carolina First Bank, No. 6:13-CV-02264-TMC, 2014 U.S. Dist. LEXIS 

77027, *20 (D.S.C. June 6, 2014) (in a similar overdraft-related case, the Court dismissed 

the plaintiffs' declaratory judgment claim for unconscionability because "Plaintiffs are 

clearly seeking damages based upon this claim . . . [a]nd in South Carolina, 'the only 

remedies available for common law unconscionability are equitable.'"). Swift's 

declaratory judgment scheme is an attempt to make an end-run around Arkansas law. 

Although the MDL Court let the affirmative unconscionability claim proceed 

because "this is not the ordinary case" (MDL Doc. 3682 at 14), this principle sets a 

dangerous precedent. All litigants believe their cases are special, and courts must be wary 

of any argument by a litigant that the normal rules of law do not apply to his claims. 

Indeed, a poorly-conceived or loosely-applied exception to a rule of law easily could 

swallow the rule. See, e.g., Cuomo v. Clearing House Ass'n, L.L.C., 557 U.S. 519, 530 

(2009) (avoiding interpreting an exception in a manner that "would swallow the rule"). 
9 

The Court should examine whether Swift's case truly "is not the ordinary case," and if so, 

whether the MDL Court's novel exception to Arkansas's traditional unconscionability law 

is justified. Nothing in this case mandates such an exception to the normal rule of law.8

 

 In allowing the unconscionability claim to proceed, the MDL Court erred and this 

Court has jurisdiction to review the MDL Court's orders on such issues after remand.9

 For 

example, In re Ford Motor Co., 591 F.3d 406 (5th Cir. 2009), the Fifth Circuit made 

clear that a Court receiving a case from a MDL "should use the law of the case doctrine 

to determine whether to revisit a transferee court's decision." Id. at 411. Although the law 

of the case doctrine ensures that "transferor courts respect the transferee court's 

decisions," it also "has the virtue of allowing transferor courts to correct serious errors of 

the transferee court." Id. BancorpSouth submits that the MDL Court's ruling on 

 

8

 The MDL Court's reason for deeming this is "not the ordinary case" was 

foundationally flawed. The MDL Court surmised that "the customer never has the 

opportunity to raise unconscionability as a defense for nonpayment. The only opportunity 

to do so is through a lawsuit filed by the customer, after payment has been made." (MDL 

Doc. 3682 at 14.) This is simply wrong. For a customer to overdraft his or her account, 

the account must go into a negative balance. Thus, any overdraft fees are charged against 

an account with no funds to pay those overdraft fees. Without funds in the account, there 

are only two ways a bank may collect overdraft fees. First, the customer may voluntarily 

deposit funds into the account to cover these fees. Or, second, if the customer did not 

voluntarily deposit funds because the customer disputes the fees, the bank could collect 

the fees through a collections action in court. A collections action is the paradigmatic 

opportunity for the customer to "raise unconscionability as a defense for nonpayment." 

Thus, a customer who disputes the fees as unconscionable simply would not pay the fees 

and then raise unconscionability as a defense should the bank attempt to collect the fees. 

9

 All judicial rulings in this case now belong to this Court. As such, any appellate 

review of rulings in this case will be review of this Court's decisions. The Court has both 

the authority and the obligation to review all pretrial rulings for error, and to correct any 

errors. Indeed, it is appropriate for the Court to make a sifting review of the orders 

entered to date as it familiarizes itself with this case. 
10 

unconscionability was a serious error, will taint any trial of the issue, and will ultimately 

be rejected on appeal. 

Courts in this Circuit have adopted the In re Ford rationale. For example, in Hill 

v. Ford Motor Co., 975 F. Supp. 2d 1351 (N.D. Ga. 2013), the court made the practical 

point that "[o]n appeal, the appellate court is only going to care whether the ultimate 

ruling was right, not whether the judge's first call on the issue was arguably meritorious." 

Id. at 1358. The goal, then, is for the Court to ensure that the decisions that will govern 

and shape the trial are correct. Because "the law of the case doctrine 'is flexible, [] a 

court's previous rulings may be reconsidered as long as the case remains within the 

jurisdiction of the district court.'" Id. at 1359 (citing United States v. Williams, 728 F.2d 

1402 (11th Cir. 1984). The Court, moreover, also has the inherent authority to manage its 

docket at it sees fit. The MDL Court erred in allowing unconscionability to proceed. This 

Court should correct that error. Getting it right is what matters.10

2. Alternatively, the Court must decide the merits of the unconscionability 

claim postured as a declaratory judgment claim. 

Even if the Court does not revisit the MDL Court's erroneous unconscionability 

decision, the Court must rule on the merits of Swift's unconscionability claim before trial. 

In this analysis, the Court should note that Swift no longer meets the jurisdictional 

requirements to proceed with a declaratory judgment claim, because Swift no longer has 

a checking account with BancorpSouth. The jurisdictional requirement that declaratory 

relief must address future harm cannot be met because Swift cannot be charged any 

 10 Here, getting it right also will make the case more manageable without costing 

Swift a single measure of damages. 
11 

more overdraft fees. See, e.g., Malowney v. Federal Collection Deposit Group, 193 F.3d 

1342, 1346 (11th Cir. 1999) ("In order to demonstrate that a case or controversy exists to 

meet the Article III standing requirement when a plaintiff is seeking injunctive or 

declaratory relief, a plaintiff must allege facts from which it appears there is a substantial 

likelihood that he will suffer injury in the future."); Emory v. Peeler, 756 F.2d 1547, 1552 

(11th Cir. 1985) (For a declaratory judgment to issue, "there must be a substantial 

continuing controversy between parties having adverse legal interests."). Thus, without 

an account, Swift cannot prosecute a declaratory judgment claim and he cannot represent 

a class on that claim. See, e.g., Fed. R. Civ. P. 23(a) (requiring common questions of law 

and fact for class representative). 

In any event, a declaratory judgment must be decided by the Court, not the jury. 

Under Arkansas law, declaratory relief is equitable in nature and can only be heard by the 

Court. See Baptist Health v. Murphy, 2010 Ark. 358, 13 (2010) ("[T]he constitutional 

right to a jury trial does not extend to equity. . . . Both declaratory judgments and 

injunctions have long been recognized as matters of equity."). The remainder of Swift's 

claims may be heard by a jury, but the declaratory judgment claim may not. 

To resolve this issue, BancorpSouth proposes that the Court conduct an 

evidentiary hearing on the unconscionability/declaratory judgment claim prior to the jury 

trial. No facts are legitimately in dispute on this claim, so the Court could sit as the factfinder, properly and efficiently.11 The Court's trial may consist of hearing stipulated 

 

11 As Swift's counsel admitted to this Court at the status conference, "the facts are not 

really in dispute about the cases. There's no question what the bank did." (See N.D. Fla. 
12 

evidence, live testimony (if necessary), and oral argument on this issue; the Court also 

may benefit from pre-bench-trial briefing from the parties. 

3. The Court should decide the merits of the unconscionability claim because 

it will streamline and simplify the trial. 

 As currently postured, the case would go forward with Swift simultaneously 

attempting to prove both contract and quasi-contract claims. On the one hand, Swift 

presumably would attempt to persuade a jury that BancorpSouth breached its account 

agreement because it breached the duty of good faith and fair dealing by posting debit 

transactions in high-to-low order. (MDL Doc. 2999-1 at 4–9.) On the other hand, Swift 

would attempt to prove that the account agreement was unconscionable and therefore 

unenforceable, and that BancorpSouth was unjustly enriched by its overdraft policies. 

(MDL Doc. 2999-1 at 9–14, 16.) At trial, Swift simultaneously will have to prove both 

that there was a contract that was breached and that no contract existed at all.12 Such 

directly contradictory positions undoubtedly will lead to an incoherent verdict form and a 

confused jury. 

 The confusion stems from Swift's attempt to prosecute inconsistent class claims in 

the alternative: if the account agreement is found to be void, then the unconscionability, 

unjust enrichment, and ADTPA claims go forward; but the good faith and fair dealing 

claim, which is predicated on a valid account agreement, cannot go forward. (See, e.g., 

Summary Judgment Order, MDL Doc. 3682 at 21 ("Plaintiffs acknowledge that they 

 

Hearing on Mtn. to Transfer Venue, May 8, 2014, at 10:2–4.) (See also Swift's Response 

to BancorpSouth's Statement of Material Facts in Support of Summary Judgment, MDL 

Doc. 3043-1 at 3–6 (Swift does not dispute majority of material facts).) 

12 A decision tree outlining the necessary decisions is attached as Exhibit C. 
13 

cannot recover judgment under both their contract-based claims and unjust enrichment 

claims, but they are permitted to plead and pursue these alternative claims"); Swift's Opp. 

to BancorpSouth's Mtn. for Summ. J., MDL Doc. 3043 at 17.) Thus, even if Swift proves 

everything he believes he can, he cannot prevail on all of his claims. 

A decision by the Court on unconscionability before the jury trial will streamline 

the case before the jury and avoid Swift attempting to prove directly inconsistent theories 

to the jury. This would clarify the issues for the jury to decide and minimize confusion. 

Accordingly, if the Court decides in favor of Swift on unconscionability and thereby 

voids the account agreement, Swift will pursue his non-contract claims at the jury trial 

(unjust enrichment and the ADTPA). If the Court decides in favor of BancorpSouth on 

unconscionability and thereby upholds the account agreement, Swift will pursue his 

contract claims at the jury trial (good faith and fair dealing and the ADTPA). Not only 

will a bench trial on Swift's unconscionability/declaratory judgment claim conform with 

the mandate of Arkansas law that all equitable claims be decided by the Court, but also it 

will streamline the trial. 

Nor will deciding unconscionability now prejudice Swift. Swift appears to 

contend that the measure of damages is the same for all of Swift's claims—Swift has not 

made any distinction regarding damages among his claims throughout this case. From 

Swift's point of view, whether he wins one claim or wins all of his claims is immaterial, 

because damages are the same for each. In addition, deciding unconscionability now will 

prevent jury confusion of opposing theories of recovery and protect against reversible 

error. Thus, Swift will not be prejudiced if the Court conducts the bench trial for Swift's 
14 

unconscionability/declaratory judgment claim before the jury trial for the remaining, 

alternate claims, as required by Arkansas law. 

The unconscionability claim is no more than Swift's attempt to plead creatively to 

survive a motion to dismiss attack. In the early stages of a case, pleading in the 

alternative may be appropriate because the facts learned through discovery could lend 

toward one alternative case theory or the other. But pleading a case in the alternative is 

very different than trying a case in the alternative. Discovery is over, the facts are fully 

developed, and now is the time to proceed with only one of Swift's alternative, 

inconsistent case theories. See, e.g., Hemispherx Biopharma, Inc. v. Mid-South Capital, 

Inc., 690 F.3d 1216, 1227-28 (11th Cir. 2012) ("Although at trial [the plaintiff] cannot 

recover against [the defendant] under both its legal (breach-of-contract) and its equitable 

claims, [the plaintiff] can plead these claims in the alternative and then elect at trial 

under which remedy it wants to proceed.") (emphasis added) The Court should decide 

the unconscionability claim now to simplify and streamline the trial. 

B. The Court should clarify whether Swift may present a breach of contract 

claim and how a claim for good faith and fair dealing may proceed. 

 Swift alleged a claim for "Breach of Contract and Breach of the Covenant of 

Good Faith and Fair Dealing" in his complaint. (MDL Doc. 994 at 25) Although the 

MDL Court certified a class for a breach of good faith and fair dealing claim, the MDL 

Court did not specifically certify a class for breach of an explicit term of the governing 

contract. (Class Certification Order, MDL Doc. 2673 at 22–23.) And Swift did not notify 

the class that Swift was pursuing a breach of contract claim on their behalf. (See Class 

Notice, MDL Doc. 3589-1 at 41 (notifying the class that Swift "is pursuing the following 
15 

claims for BancorpSouth account holders in the following states: Alabama: good faith 

and fair dealing; unconscionability . . ." but not notifying the class that Swift is pursuing 

an independent breach of contract claim in any state).) 

 In the summary judgment briefing and order, however, both Swift and the MDL 

Court appear to have believed that Swift is pursuing a breach of contract claim on a class 

basis.13 (See MDL Doc. 3682 at 11, MDL Doc. 3043 at 4.) At this late stage, it is still 

unclear whether Swift is pursuing—and whether he is permitted to pursue—an 

independent claim for breach of contract. The Court should resolve this issue before trial. 

Because the MDL Court did not certify a breach of contract class and because the class 

did not receive notice of a breach of contract claim, BancorpSouth submits that Swift 

should not be permitted to pursue this claim. 

 If the Court allows Swift to proceed on both a breach of contract claim and a good 

faith and fair dealing claim, BancorpSouth requests that Swift clarify: (1) which specific 

term(s) of the contract that BancorpSouth breached and how he contends BancorpSouth 

breached those terms; and (2) how Swift contends that BancorpSouth separately breached 

its duty of good faith and fair dealing. To date, these allegations have not been clearly 

identified. For example, the MDL Court's summary judgment order identifies the 

supposed breach of good faith and fair dealing as an alleged abuse of discretion in the 

application of the contract term providing that BancorpSouth "may pay any of [debit] in 

any order we choose, even if the order we choose results in greater insufficient funds fees 

than if we had chosen to pay them in some other order." (MDL Doc. 3682 at 12.) The 

 13 That the MDL Court's rationale would so closely hew to Swift's is not surprising, 

because the order entered was Swift's proposed order nearly verbatim. 
16 

MDL Court, however, did not identify any contract term that BancorpSouth breached. 

(Id. at 11–14.) 

 A court in a similar overdraft-related case dismissed the plaintiffs' breach of 

contract claim for the same failure to identify a breach of an actual term of the contract. 

In re HSBC BANK, USA, N.A., Debit Card Overdraft Fee Litigation, No. 13-MD-2451-

ADS-AKT, ___ F. Supp. 2d, ___, 2014 U.S. Dist. LEXIS 29050, *36 (E.D.N.Y. Mar. 5, 

2014) (in a similar overdraft-related case, dismissing the plaintiffs' breach of contract 

claim "because the Plaintiffs do not allege a breach of an actual term of the contract.").14

Thus, Swift must identify the term of the parties' contract that BancorpSouth allegedly 

breached. If he cannot, the claim should be dismissed. Id.

BancorpSouth also suggests that the Court analyze whether Swift's claim for good 

faith and fair dealing claim can proceed in light of the Arkansas Model Jury Instructions 

on good faith and fair dealing. The Arkansas Model Jury Instructions note: 

Because there is no cause of action in tort or contract for breach of the 

implied covenant of good faith and fair dealing, this instruction should 

only be given where there is evidence that one party's (or both parties') 

conduct prevented, hindered, delayed or impeded the performance of 

the express obligations under the contract. 

Arkansas Model Jury Instructions (Civil), AMI 2426 Implied Covenant of Good Faith 

and Fair Dealing (Dec. 2013) (emphasis added).15 The Arkansas Model Jury Instructions 

 

14 The HSBC court later reversed its dismissal of the breach of contract claim after 

the plaintiffs identified a purportedly breached provision of the contract on a motion for 

reconsideration. In re HSBC BANK, USA, N.A., ___ F. Supp. 2d, ___, 2014 U.S. Dist. 

LEXIS 55201, *20 (E.D.N.Y. Apr. 21, 2014). Importantly, Swift has not done so here. 

15 A copy of the Arkansas Model Jury Instructions for a good faith and fair dealing 

claim is attached hereto as Exhibit D. 
17 

continue, noting that "a breach of the implied covenant of good faith and fair dealing 

remains nothing more than evidence of a possible breach of a contract between parties." 

Id. (citing Arkansas Research Medical Testing, LLC v. Osborne, 2011 Ark. 158, 7 

(2011)). Thus, Arkansas law and the Arkansas Model Jury Instructions do not recognize 

an independent cause of action for a good faith and fair dealing claim. 

 Adding more confusion to Swift's claim, the model jury instruction for good faith 

and fair dealing is: "[You may consider the alleged [acts][hindrances] [and] [delays] of 

[defendant] only as evidence of a breach of the [operative term or obligation] of the 

contract.]" Id. Thus, in Arkansas, good faith and fair dealing is predicated entirely on the 

identification of an allegedly breached contract term. If Swift is not permitted to proceed 

on the breach of contract claim, a good faith and fair dealing claim cannot survive on its 

own. If Swift is permitted to proceed on the breach of contract claim, the model jury 

instructions make identification of the contract term that BancorpSouth allegedly 

breached even more important, because good faith and fair dealing is nothing more than 

evidence of a breach of a specific contract term. 

C. The trial should be conducted in phases. 

 1. A phased trial is appropriate in this case. 

The trial should be conducted in phases for simplicity and to prevent manifest 

injustice and prejudice to the parties. Federal Rule of Civil Procedure 42 specifically 

allows a Court to order "a separate trial of one or more separate issues [or] claims" for 
18 

"convenience, to avoid prejudice, or to expedite and economize." Fed. R. Civ. P. 42(b).16

Nevertheless, "the bifurcation of issues does not always necessitate fully separate trials." 

Bayou Fleet P'ship, L.L.P. v. St. Charles Parish, No. 10-1557, 2013 U.S. Dist. LEXIS 

5297, *6 (E.D. La. Jan. 14, 2013). Here, "separate phases rather than fully separate trials 

will best promote the interest of judicial economy while reducing juror confusion." Id. A 

phased trial here will be more efficient and will not result in any prejudice to Swift. See

Manual for Complex Litig. § 11.632 (4th ed. 2004) ("Whether the litigation involves a 

single case or many cases, severance of certain issues for separate trial under Federal 

Rule of Civil Procedure 42(b) can reduce the length of trial, particularly if the severed 

issue is dispositive of the case, and can also improve comprehension of the issues and 

evidence."). 

A phased trial will streamline the issues, clarify the order and structure of proof in 

the trial, and prevent prejudice. In this case, there should be three distinct phases of trial: 

(1) liability as to Swift individually; (2) damages as to Swift individually, if any; and (3) 

class-wide damages, if any.17 A trial with separate liability and damages phases is "the 

 

16 The decision to conduct the trial in phases in "within the court's discretion." 

Harrington v. Cleburne County Bd. of Educ., 251 F.3d 935, 938 (11th Cir. 2001). Rule 

42(b) "confers broad discretion on the district court in this area, permitting bifurcation 

merely 'in furtherance of convenience.' That is not a high standard, and the district 

court's concern for clarifying the issues to be tried suffices to permit the court to separate 

the trials." Id. (emphasis added). The party seeking a phased trial, furthermore, need only 

show one of the Rule 42(b) factors of "convenience, to avoid prejudice, or to expedite 

and economize." See id.; Daniels v. Loizzo, 178 F.R.D. 46, 47 (S.D.N.Y. 1998). 

17 Although Swift's case is certified as a class action, the trial will focus on evidence 

related to Swift and Arkansas law. See, e.g., Cooper v. Southern Co., 390 F.3d 695, 713 

(11th Cir. 2004) (claims of the class "rise or fall with the fortunes of the class 

representatives"). The results to Swift, as class representative, will be applied to the class. 
19 

most common application of Rule 42(b)." Robinson v. Sheriff of Cook County, 167 F.3d 

1155, 1157 (7th Cir. 1999). See also Wright & Miller, Federal Practice and Procedure: 

Civil § 2390 (3d ed. 2014) ("The separation of issues of liability from those relating to 

damages is an obvious use for Federal Rule 42(b)."). Class actions, furthermore, routinely 

benefit from separate liability and damages phases. See, e.g., Turner v. Murphy Oil USA, 

Inc., 234 F.R.D. 597, 606 (E.D. La. 2006) ("The Fifth Circuit has repeatedly upheld the 

decisions of district courts to bifurcate class action trials into liability and damages 

phases."); Maenner v. St. Paul Fire & Marine Ins. Co., 127 F.R.D. 488, 490 (W.D. Mich. 

1989) ("The federal courts have used bifurcated trials in class actions when doing so 

would further convenience, manageability, and the ends of justice. . . . In fact, one court 

has described this method of proceeding as the one 'generally' adopted in Rule 23(b)(3) 

class actions."). Nor is a trial with three phases unusual. See Jackson v. County of L.A., 29 

F. App'x. 430, 436 (9th Cir. 2001) (affirming trifurcation of trial); Grumbrecht v. Crown 

Control Corp., No. 99-CV-4921, 2001 U.S. Dist. LEXIS 2359, *4 (E.D. Pa. Mar. 7, 

2001) (ordering trifurcation of trial). 

2. How phases will work in this case. 

BancorpSouth provides the following chart to illustrate the proposed phases: 
20 

Phase 1 Phase 2 Phase 3 

Issues 

Tried 

Liability on Swift's 

Claims 

Swift's Individual 

Damages, if any Class Damages, if any 

Likely 

Evidence 

Evidence from 

BancorpSouth 

Evidence from Mr. 

Swift and Mrs. Swift 

Experts re: Banking 

Industry and Consumer 

Issues 

Experts re: Proper 

Measure of Damages 

Experts re: Calculation 

of Swift's Damages 

Experts re: Calculation 

of Class Damages 

Jury Yes Yes No 

Decision Whether BancorpSouth 

is Liable to Swift 

The Proper Measure of 

Damages for Swift 

The Calculation of 

Damages for the Class 

Based on the Proper 

Measure of Damages 

for Swift 

 Phase 1: Liability. 

 Stipulated Facts and Documents: BancorpSouth anticipates that Swift will 

rely on documents obtained during discovery that memorialize the relationship between 

Swift and BancorpSouth, including the account agreement, account statements and 

transaction history, and written disclosures. (See Swift's Trial Plan, MDL Doc. 2272 at 3–
21 

5.18) BancorpSouth also anticipates that Swift will rely on BancorpSouth's internal 

documents, including emails. (See id.) There are very few disputed facts here and 

BancorpSouth anticipates that the parties will be able to stipulate to most of the facts. 

 Lay Testimony: BancorpSouth anticipates that Swift will rely on 

testimony from BancorpSouth employees and Mr. and Mrs. Swift. (See id.; Plaintiff's Lay 

Witness List for Trial, N.D. Fla. Doc. 29-7.) In rebuttal, BancorpSouth may call 

BancorpSouth employees and Mr. and Mrs. Swift. (See Defendant BancorpSouth Bank's 

Preliminary Non-Expert Witness List, N.D. Fla. Doc. 29-8.) 

 Expert Testimony: BancorpSouth anticipates that Swift will rely on 

testimony from Swift's banking industry expert, Steven Fried, regarding his "experience 

in the banking industry and research of applicable standards of care, commercial 

reasonableness, practice, regulatory laws and pronouncements, and scholarly articles on 

the issues, on the conduct by [BancorpSouth] applied to the circumstances of this case." 

(See Fried Expert Report, Sep. 24, 2012, at 3.) In rebuttal, BancorpSouth may call its 

banking industry expert, Paul Carrubba, and its expert on consumer behavior, Michael 

Barone.19

 Result: The jury will decide whether BancorpSouth's conduct was 

wrongful within the framework of the causes of action to be decided by the jury. 

 18 Although Swift presented a Trial Plan in support of his class certification motion 

(MDL Doc. 2272), that plan is prejudicial, confusing, inefficient, and does not take into 

account the case as it stands today. 

19 BancorpSouth anticipates moving for directed verdict before this phase goes to the 

jury if evidence developed by Swift at trial does not satisfy the elements of his claims in 

Arkansas or does not satisfy the elements of the class claims in the other states Swift 

represents. 
22 

 Phase 2: Swift's Damages. 

 Stipulated Facts and Documents: BancorpSouth anticipates that Swift will 

rely on Swift's account statements and transaction history obtained during discovery. 

 Lay Testimony: None. BancorpSouth anticipates that the parties will 

stipulate to the authenticity of the accounts statements and transaction history. 

 Expert Testimony: BancorpSouth anticipates that Swift will rely on 

testimony from his damages methodology expert, Bruce McFarlane, regarding "the use of 

a damages methodology involving one or more alternative posting orders to reliably 

measure the damages [Swift] suffered as a result of overdraft fees BancorpSouth Bank 

assessed based on the high-to-low posting order it used to post all Debit Card 

Transactions initiated by [Swift]." (See McFarlane Expert Report, Sep. 24, 2012, at 1.) In 

rebuttal, BancorpSouth may call its banking industry expert, Paul Carrubba. 

BancorpSouth also anticipates that Swift will rely on testimony from his damages 

calculations expert, Arthur Olsen, to calculate the damages based on the alternative 

posting order methodologies proposed by Mr. McFarlane. 

 Result: The jury will decide Swift's individual damages, if any. 

 Phase 3: Class Damages. 

 Stipulated Facts and Documents: BancorpSouth anticipates that Swift will 

rely on the aggregate transaction history for the class members obtained during 

discovery. 

 Lay Testimony: None. BancorpSouth anticipates that the parties will 

stipulate to the authenticity of the aggregate transaction history. 
23 

 Expert Testimony: BancorpSouth anticipates that Swift will rely on 

testimony from his damages calculations expert, Arthur Olsen. (See Swift's Trial Plan, 

MDL Doc. 2272 at 2.) To the extent that the jury chooses an alternative posting order in 

Phase 2, BancorpSouth anticipates that Mr. Olsen will testify as to how he calculated the 

damages based on that alternative posting order. For rebuttal, BancorpSouth may call its 

damages calculation expert, Steven Visser. To the extent that the jury chooses a method 

of damages calculation other than an alternative posting order, Mr. Olsen's testimony 

may not be necessary. 

Result: There are no questions of fact in this phase; a jury will not be necessary. 

The Court will determine class damages based on the jury's decision in Phase 2. 

Each phase is dependent on a decision from the prior phase. Phases 2 is dependent 

on a finding of liability. Phase 3 is dependent on a finding of Swift's individual damages. 

Because each phase will result in a decision necessary for the next phase, the phased trial 

will streamline the jury's decision-making. See Bayou Fleet, 2013 U.S. Dist. LEXIS 5297 

at *6 (approving of "a single proceeding but divided the trial into separate phases, 

whereby the jury first determined liability, and if the defendant was found liable, a trial 

on the issue of damages was then presented to the same jury."); Daniels v. Loizzo, 178 

F.R.D. 46, 47 (S.D.N.Y. 1998) ("Judicial efficiency is served where a separate trial 

disposes of one claim or establishes a necessary element of a second claim."). Separate 

phases for liability, individual damages, and class damages is especially important in a 

case like this, where (a) the scope of the class is unknown before a liability determination 
24 

is made, and (b) the measure of damages cannot be calculated until a liability 

determination.20

3. The importance of phases in this case. 

This is an unusual class action. In fact, the members of the class itself have not yet 

been identified—the class definition is dependent on the claims to be tried and any 

damages finding. As discussed above, Swift's class is a class in the alternative: if the 

account agreement is found to be void, then the unconscionability, unjust enrichment, and 

ADTPA claims go forward; but the good faith and fair dealing claim, which is predicated 

on a valid account agreement, cannot go forward. (See, e.g., Summary Judgment Order, 

MDL Doc. 3682 at 21.) If the Court accepts unconscionability, all the class members may 

proceed with their claims. 

However, if the Court determines that the account agreement is a valid contract, 

then the good faith and fair dealing and ADTPA claims go forward; but the 

unconscionability and unjust enrichment claims, which are predicated on voiding the 

account agreement, cannot go forward. In latter eventuality, the class members located in 

Louisiana, Missouri, and Texas cannot obtain any relief at all as members of the class. 

Thus, the Court's decision on unconscionability has this second important role in 

managing trial because it determines the total size of the class. 

 

20 Federal courts around the country have ordered phased trials where liability must 

be resolved before damages. See, e.g., Hines v. Joy Mfg. Co., 850 F.2d 1146, 1152 (6th 

Cir. 1988) ("Bifurcation of issues of liability from those relating to damages is an obvious 

application of Rule 42(b). Logically, liability must be resolved before damages may be 

considered."); Bayou Fleet, 2013 U.S. Dist. LEXIS 5297 at *5 ("[B]ecause factual issues 

of liability had to be determined before raising the issue of damages to the jury, holding 

trial on both issues simultaneously was 'potentially confusing and prejudicial.'"). 
25 

Beyond that, the class membership and measure of damages also is predicated on 

the type of damages determination a jury may make. Swift's damages theory is based 

entirely on the difference between BancorpSouth's actual posting order and a not-yetdetermined alternative posting order. (See, e.g., Swift's Opposition to Motion to Decertify 

Class, MDL Doc. 3498 at 6 ("[T]he jury will be charged with identifying the alternative 

posting order on which to base its verdict for Plaintiffs and the class at trial.").) Swift 

proposes that the jury choose an alternative posting order that BancorpSouth should have 

used instead of the actual posting order—but the jury does not have to accept this 

argument. Unless and until the jury determines an alternative posting order (or some 

other damages methodology), all damages calculations are speculative. Thus, Swift 

cannot match his damages model to his liability theory until liability has been established. 

A jury, furthermore, first must find that BancorpSouth acted wrongfully before it can 

determine how BancorpSouth should have acted instead.21

Swift will seek to have the jury decide all issues of class-wide liability and classwide damages at the same time, even though one is dependent on the other. This is a 

recipe for confusion and prejudice. See Bayou Fleet, 2013 U.S. Dist. LEXIS 5297 at *5 

("[B]ecause factual issues of liability had to be determined before raising the issue of 

damages to the jury, holding trial on both issues simultaneously was 'potentially 

 

21 Because the scope of the class itself and the measure of damages both are 

predicated on the liability and damages determination, prejudice would result if Swift 

presented evidence of class damages to the jury before a class and a method to calculate 

damages were established. Before those determinations are made, any attempt to show 

class damages would be speculative, confusing, and unduly prejudicial. BancorpSouth 

anticipates filing a motion in limine on this issue depending on this Court's decision 

regarding phased trials. 
26 

confusing and prejudicial.'"); Tanner v. Entergy Ark., No. 4:08-CV-00099-BSM, 2009 

U.S. Dist. LEXIS 53588, *7 (E.D. Ark. June 8, 2009) ("The court finds that the jury 

would likely be unnecessarily confused by conducting what amounts to three mini-trials 

at one time."). A phased trial, instead, focuses the jury on discrete tasks supporting by 

discrete evidence: first, decide if BancorpSouth's conduct satisfies the elements of the 

claims presented to the jury. Second, decide, if the jury finds Swift was damaged, what 

the measure of damages should be. See Ciena Corp. v. Corvis Corp., 210 F.R.D. 519, 521 

(D. Del. 2002) ("To this end, the Court will separate the issues for trial in this case in a 

way that reduces the number of legal principles the jury must consider and apply."). After 

the jury has made these discrete decisions, the Court may decide how to apply the jury's 

decisions to the class.22 

Finally, a phased trial will streamline shorten the trial. See Morton v. Otis 

Elevator Co., No. 07-CV-00469-M, 2012 U.S. Dist. LEXIS 4801, *4 (W.D.N.Y. Jan. 17, 

2012) ("The potential for saving the parties' and court's time in the event of a defense 

verdict on liability is a significant consideration."); Daniels v. Loizzo, 178 F.R.D. 46, 49 

 

22 BancorpSouth anticipates very little overlap in evidence among the phases. But, 

even if some testimony or documentary evidence overlapped between phases, a phased 

trial still would be appropriate. See Angelo v. Armstrong World Indus., 11 F.3d 957, 965 

(10th Cir. 1993) (affirming bifurcation because, "[a]lthough the same witnesses may 

testify in both phases, the issues and testimony are different."); Morton v. Otis Elevator 

Co., No. 07-CV-00469-M, 2012 U.S. Dist. LEXIS 4801, *4 (W.D.N.Y. Jan. 17, 2012) 

(ordering bifurcation even though the plaintiff overlapped as a liability and damages 

witness). Indeed, even assuming some overlapping evidence, there will be no need to 

redevelop that evidence in a later phase because the same jury will be used. Id. at *5 ("As 

the same jury will be used to try both the liability and damage phases of the action, there 

will be no need to have duplicative testimony, and there will be little sacrifice to 

efficiency, convenience or judicial economy") (emphasis added). 
27 

(S.D.N.Y. 1998) ("Because a second trial may be unnecessary, the parties and the Court 

may benefit from a bifurcated trial process."). The jury will be able to focus on the 

relevant evidence for its decision and do its job efficiently and quickly without 

extraneous evidence, confusing and inconsistent case theories, or prejudice to the parties. 

 BancorpSouth's proposed phased trial streamlines the issues for trial and clarifies 

the order and structure of the trial. BancorpSouth is happy to explore the exact contours 

of the phases with the Court and opposing counsel to ensure a structured, streamlined 

trial with minimal jury confusion or prejudice to the parties. 

D. The Court should clarify inconsistencies created by rulings on Swift's motion 

in limine, both parties' Daubert motions, and summary judgment. 

 1. The Court prematurely ruled on several evidentiary issues. 

Eight months before its summary judgment ruling, the MDL Court entered an 

order granting a motion in limine filed by Swift. (MDL Doc. 3258, the "Motion in 

Limine Order.") In the Motion in Limine Order, the MDL Court ruled the following 

categories of evidence inadmissible: (1) "Evidence of Plaintiff's Alternative Sources of 

Payment;" (2) "Evidence of Plaintiff's Purpose of, and Use of Funds that resulted in 

Overdraft Fees;" (3) "References to Interpretive Letters by the Office of the Comptroller 

of the Currency and Statements in the Office of the Comptroller of the Currency's 

Website;" (4) "Evidence that BancorpSouth's Posting Practices are Common in the 

Banking Industry and are Used by BancorpSouth's Competitors;" and (5) "Evidence of 

the 'Benefits' of Permitting Overdrafts." (Motion in Limine Order at 2.) This Order did 

not contain any analysis, and simply declared for each category of evidence that "[t]he 

Court finds that this information is irrelevant." 
28 

 Many of these categories of evidence will be relevant to the claims presented by 

Swift and the defenses presented by BancorpSouth. For example, the MDL Court ruled 

that "Evidence that BancorpSouth's Posting Practices are Common in the Banking 

Industry and are Used by BancorpSouth's Competitors" is inadmissible. But Swift is 

pursuing claims where this evidence would be relevant. With respect to the good faith 

and fair dealing claim, for instance, other banks' practices bear on BancorpSouth's intent 

and whether its posting practice was objectively reasonable under prevailing industry 

standards. See Autry Petroleum Co. v. BP Products North America, Inc., 334 F. App'x 

982, 985 (11th Cir. 2009) ("Good faith includes observance of reasonable commercial 

standards . . . in the trade"). In addition, both Arkansas case law and the Arkansas Model 

Jury Instructions make clear that the allegedly improper conduct for an ADTPA claim 

"must be considered in light of trade practices." Independence County v. Pfizer, Inc., 534 

F. Supp. 2d 882, 887–88 (E.D. Ark. 2008), aff'd, 552 F.3d 659 (8th Cir. 2009); Arkansas 

Model Jury Instructions (Civil), AMI 2900 Issues—Claim for Damages Based on 

Deceptive Trade Practices (Dec. 2013) ("Both the preamble to the [ADTPA] and the 

activities that the [ADTPA] makes unlawful show that the application of the [ADTPA] is 

limited to trade practices and that 'unconscionable' conduct prohibited by the [ADTPA] 

must be considered in light of trade practices.").23 Thus, banking industry practices are 

relevant to the claims brought by Swift. 

 

23 A copy of the Arkansas Model Jury Instructions for a ADTPA claim is attached 

hereto as Exhibit E. 
29 

Instead of ruling on the admissibility of the categories of evidence now, out of 

context, BancorpSouth proposes that the Court reserve ruling until the appropriate 

context for the categories of evidence arises during trial. See, e.g., Stewart v. Hooters of 

America, Inc., No. 8:04-CV-40-T-17-MAP, 2007 WL 1752843, at *1 (M.D. Fla. June 18, 

2007) ("[A]dmissibility questions should be ruled upon as they arise at trial."). With this 

approach, the Court may determine whether the evidence will be relevant or not within 

the proper context at trial.24 

2. The MDL Court's Motion in Limine Order contradicted its earlier Daubert

Order. 

The Motion in Limine Order stands in stark contrast to the MDL Court's Daubert

Order entered just ten days earlier. (Compare MDL Doc. 3229 with MDL Doc. 3258.) In 

the Daubert Order, the MDL Court denied Swift's Daubert challenge against two of 

BancorpSouth's proffered experts, Paul Carrubba and Michael Barone. (MDL Doc. 3229 

at 2.) The Court emphasized that it "finds no cause to exclude their testimony at this time. 

Instead, parties may object to such testimony as appropriate during trial." (Id.) 

 Although the Daubert Order allowed the expert testimony to be presented and 

evaluated for relevancy at trial, the Motion in Limine Order appeared to reverse course 

and exclude certain topics on which BancorpSouth's experts are expected to opine. (MDL 

Doc. 3258 at 1–2.) In the same order, however, the MDL Court went on to apparently 

 

24 Even the MDL Court appeared to have second thoughts about its premature 

evidentiary rulings when, at the summary judgment motions hearing seven months later, 

the MDL Court said "I'm afraid about carving out chunks of the trial and tying the hands 

on the presiding Judge on what is admissible from an evidentiary standpoint." (MDL 

Doc. 3663 at 25:6–9.) 
30 

contradict itself by ordering that "any issues related to expert testimony, as well as any 

other evidentiary issues, may be further considered at the final pre-trial conference." (Id.

at 2.) In other words, the MDL Court opened the door on the expected expert testimony, 

then shut the door, then opened the door back up. 

 BancorpSouth requests that the Court clarify these issues and rule on them at or 

just before trial in the proper context. 

 3. It is likely the parties will need to file further motions in limine. 

 The pretrial conference set for September 4, 2014 and the Court's decisions on the 

issues in this memorandum, including which of Swift's claims may go forward and 

whether the trial will be conducted in phases. As will the parties' continuing efforts to 

meet and confer to resolve outstanding issues. Thus, after the Court has ruled on the 

issues presented in this memorandum and Swift's memorandum, it is likely that the 

parties will need to file further motions in limine. Accordingly, BancorpSouth requests 

that the Court allow motions in limine to be filed after the Court's decision on these 

issues that establish the contours of the trial. 

III. CONCLUSION 

The Court should decide which alternative case theory Swift may present to the 

jury, whether an independent breach of contract claim may proceed, whether the trial 

should be conducted in phases, and evidentiary issues. A decision on these issues will 

streamline and focus the trial, while preventing prejudice to the parties. 
Respectfully submitted this 25th day of June, 2014. 

PARKER, HUDSON, RAINER & DOBBS LLP 

 /s/ Eric Jon Taylor 

 Eric Jon Taylor 

 Georgia Bar No. 699966 

 David B. Darden 

 Georgia Bar No. 250341 

 Darren E. Gaynor 

 Georgia Bar No. 288210 

 Peter F. Busscher 

 Georgia Bar No. 407228 

 Counsel for BancorpSouth Bank

1500 Marquis Two Tower 

285 Peachtree Center Avenue, N.E. 

Atlanta, Georgia 30303 

Telephone: 404-523-5300 

Facsimile: 404-522-8409 

E-mail: ejt@phrd.com 

E-mail: dbd@phrd.com 

E-mail: deg@phrd.com 

E-mail: pfb@phrd.com 

 
3339879_2 

CERTIFICATE OF SERVICE 

I hereby certify that I have this day caused the foregoing BANCORPSOUTH'S 

INITIAL MEMORANDUM REGARDING PRETRIAL ISSUES to be electronically 

filed with the Clerk of the Court using the CM/ECF system, which will send notification 

of such filing to all counsel who have appeared and are entitled to receive service. 

 This 25th day of June, 2014. 

 /s/ Eric Jon Taylor 

Eric Jon Taylor