Bickerstaff v. Suntrust Bank

In the Supreme Court of Georgia

Decided: July 8, 2016

S15G1295. BICKERSTAFF v. SUNTRUST BANK.

Benham, Justice.

Appellee SunTrust Bank created a deposit agreement to govern its

relationship with its depositors that permits an individual depositor to reject

the agreement’s mandatory arbitration clause by giving written notice by a

certain deadline, containing certain identifying information such as name and

account number. SunTrust claims it drafted the arbitration clause in such a

way that only an individual depositor may exercise this right to reject

arbitration on his or her own behalf, thereby permitting that individual to file

only an individual lawsuit against the bank. But SunTrust asserts that even if,

as it has been determined here, the filing of a lawsuit prior to the expiration of

the rejection of arbitration deadline operates to give notice of the individual

plaintiff’s rejection of arbitration, the complaint cannot be brought as a class

action because the filing of a class action cannot serve to reject the arbitration
clause on behalf of class members who have not individually given notice.

Instead, SunTrust claims, its arbitration rejection clause is drafted in such a

manner as to make it impossible for a class representative to act on behalf of

class members in this lawsuit. We disagree.

Factual and procedural background

On July 12, 2010, Jeff Bickerstaff, Jr., who was a SunTrust Bank

depositor, filed a complaint against SunTrust on behalf of himself and all

others similarly situated alleging the bank’s overdraft fee constitutes the

charging of usurious interest.1 At the time Bickerstaff opened his account,

thereby agreeing to the terms of SunTrust’s deposit agreement, that agreement

included a mandatory arbitration provision. In response to the ruling of a

federal court in an unrelated action finding the arbitration clause in SunTrust’s

deposit agreement was unconscionable at Georgia law,2 and after Bickerstaff’s

complaint had been filed, SunTrust amended the arbitration clause to permit a

1
Mr. Bickerstaff passed away after certiorari was granted in this appeal, and this Court granted
the motion to substitute his legal representative as the appellant in this case.
2
In re Checking Account Overdraft Litigation, 734 F.Supp.2d 1279, 1292 (II) (E) and n. 15 (S.D.
Fla. 2010), later overturned in In Re Checking Account Overdraft Litigation, MDL No. 2036, 459
Fed.Appx. 855, 858-859 (III) (11th Cir. 2012). We note that after the Southern District of Florida
opinion was issued, the United States Supreme Court ruled that a class action waiver in a contract
arbitration clause is enforceable, and that the application of state law doctrine holding that such a
waiver is unconscionable is pre-empted by the Federal Arbitration Act. AT&T Mobility LLC, v.
Concepcion, 563 U.S. 333 (131 SCt 1740, 179 LE2d 742) (2011).
2
window of time in which a depositor could reject arbitration by sending

SunTrust written notification that complied with certain requirements.

SunTrust had not notified Bickerstaff or its other customers of this change in

the arbitration clause of the deposit agreement at the time Bickerstaff filed his

complaint, but the complaint, as well as the first amendment to the complaint,

was filed prior to the amendment’s deadline for giving SunTrust written notice

of an election to reject arbitration. It was only after Bickerstaff’s complaint

was filed that SunTrust notified Bickerstaff and its other existing depositors,

by language printed in monthly account statements distributed on August 24,

2010, that an updated version of the deposit agreement had been adopted, that

a copy of the new agreement could be obtained at any branch office or on-line,

and that all future transactions would be governed by the updated agreement.

The section of the updated deposit agreement setting forth the arbitration

agreement contained the right to reject provision which directed customers, in

pertinent part, as follows:

Right to reject arbitration agreement. You may reject this
arbitration agreement provision and therefore not be subject to being
required to resolve any dispute, controversy or claim by arbitration.
To reject this arbitration agreement provision, you must send the
Bank written notice of your decision so that we receive it at the
address listed below by the later of October 1, 2010 or within forty-
five (45) days of the opening of your Account. Such notice must
3
 include a statement that you wish to reject the arbitration agreement
section of these rules and regulations along with your name, address,
Account name, Account number and your signature and must be
mailed to SunTrust Bank Legal Department, Attn: Arbitration
Rejection, P.O. Box 2848, Mail Code 2034, Orlando, FL 32802-
2848. This is the sole and only method by which you can reject this
arbitration agreement provision. . . . You agree that our business
records will be final and conclusive with respect to whether you
rejected this arbitration agreement provision in a timely and proper
fashion.

Bickerstaff was unaware of the arbitration rejection provision or its deadline

until SunTrust filed a motion to compel arbitration on the first business day

after the October 1, 2010, notice deadline. That motion was denied in an order

finding Bickerstaff had substantially complied with the contract’s arbitration

rejection requirements when he supplied the required information to SunTrust

in the pleadings filed by his attorney on his behalf prior to the notice deadline.

On April 13, 2013, Bickerstaff moved to certify a class of all Georgia citizens

with a SunTrust deposit agreement who, from a date four years prior to the date

Bickerstaff filed his complaint, had at least one overdraft of $500.00 or less

resulting from an ATM or debit card transaction and paid an overdraft fee on

that transaction. That motion was also denied.3

3
The deposit agreement also includes a jury trial waiver for all matters not submitted to arbitration
that also stipulates that any such litigation is to proceed on an individual basis and not as part of a
class action. Bickerstaff challenged the enforceability of this provision as being unconscionable
4
 SunTrust appealed the order denying its motion to compel Bickerstaff to

arbitrate his claim, and the Court of Appeals affirmed the trial court, finding

that the information contained in the complaint filed by Bickerstaff’s attorney

substantially satisfied the notice required to reject arbitration. Bickerstaff v.

SunTrust Bank, 332 Ga. App. 121 (1) (a) (770 SE2d 903) (2015). Bickerstaff

appealed the order denying his motion for class certification, and in the same

opinion the Court of Appeals affirmed that decision. Id. at (2). In considering

Bickerstaff’s appeal, the Court of Appeals held, in essence, that the contractual

language in this case requiring individual notification of the decision to reject

arbitration did not permit Bickerstaff to reject the deposit agreement’s

arbitration clause on behalf of other putative class members by virtue of the

filing of his class action complaint. Id. at (2) (b). This Court granted

Bickerstaff’s petition for certiorari review.4

The requirements to obtain class certification are set forth in OCGA § 9-

11-23 (a) and (b). “Under Georgia law, a case may proceed as a class action if

and unenforceable at Georgia law, but that challenge has not yet been addressed by the trial court
and is not an issue in this appeal.
4
SunTrust did not seek review of the Court of Appeals’ ruling finding Bickerstaff substantially
complied with the arbitration rejection notice requirements by filing his complaint.

5
all prerequisites of OCGA § 9-11-23 (a) are satisfied: numerosity,

commonality, typicality, and adequacy, and if at least one ground of OCGA §

9-11-23 (b) is satisfied.” EarthLink, Inc. v. Eaves, 293 Ga. App. 75, 76 (1)

(666 SE2d 420) (2008).5 Here, the trial court analyzed only the issue of

numerosity, and found it was lacking in this case. The Court of Appeals

affirmed, finding that pursuant to the terms of the deposit agreement,

Bickerstaff could reject the arbitration agreement only for himself and not for

any other depositor. Bickerstaff was deemed to have timely rejected the

arbitration agreement for himself by filing his complaint prior to the deadline

for notifying SunTrust of rejection of arbitration. But, the Court of Appeals

opined, since Bickerstaff’s complaint could not serve as notification of

5
OCGA § 9-11-23 (a) reads as follows:

(a) One or more members of a class may sue or be sued as representative parties on behalf
of all only if:

(1) The class is so numerous that joinder of all members is impracticable:

(2) There are questions of law or fact common to the class;

(3) The claims or defenses of the representative parties are typical of the claims or
defenses of the class; and

(4) The representative parties will fairly and adequately protect the interests of the
class.

6
rejection of arbitration by any other depositor, the class consists of only one

depositor and lacks numerosity for class certification. For reasons set forth

below, we reverse.

Legal analysis

1. Application of the rule of tolling to contractual limitations

As we have previously noted, “[m]any provisions of OCGA § 9-11-23

were borrowed from Federal Rule of Civil Procedure 23, and for this reason,

when Georgia courts interpret and apply OCGA § 9-11-23, they commonly

look to decisions of the federal courts interpreting and applying Rule 23.”

Georgia-Pacific Consumer Products, LP v. Ratner, 295 Ga. 524, 525 at n.3 (1)

(762 SE2d 419) (2014). In the 1974 landmark decision in American Pipe and

Construction Co. v. Utah,6 the Supreme Court of the United States applied

Rule 23 and held that “the filing of a timely class action complaint commences

the action for all members of the class as subsequently determined.” Id. at 550.

Accordingly, in American Pipe, the statute of limitation was tolled for all who

made timely motions to intervene in the lawsuit after class certification was

ultimately denied for failure to satisfy the requirement of numerosity. Id. at

6
414 U.S. 538 (94 SCt 756, 38 LE2d 713) (1974).
7
552-553. In the case filed by Bickerstaff, it is undisputed that the purported

class numbers at least 1,000, and SunTrust has stipulated that it is unfeasible

for so many depositors with relatively small claims to bring such claims

individually. The determinative issue is whether the filing of Bickerstaff’s

complaint, thereby signaling his rejection of the arbitration agreement, tolled

the time in which the putative class members were required to notify SunTrust

of their intent to reject arbitration. The answer is yes.

Both this Court and the Court of Appeals have ruled that putative class

representatives may satisfy certain conditions such as a limitation period for

filing suit or making a claim on behalf of those class members who ratify the

representatives’ actions by remaining in the class after the class is certified. In

Schorr v. Countrywide Home Loans, Inc.,7 individual plaintiffs, who were

mortgage borrowers, sought class certification for damages allegedly due the

class members for the defendant lender’s failure to comply with a statutory

requirement to cancel a security deed, upon repayment of the loan, within the

time set forth in the statute. This Court answered a certified question posed by

the federal district court by holding that the named plaintiff in a class action

7
287 Ga. 570 (697 SE2d 827) (2010).
8
could satisfy the pre-suit written demand requirement of the applicable code

section on behalf of putative class members. In Barnes v. City of Atlanta,8 a

group of plaintiffs, who were attorneys practicing law in that city, challenged

the constitutionality of an occupational tax and sought tax refunds on behalf of

a putative class of individuals pursuant to a statute that required exhaustion of

administrative remedies by the taxpayer seeking a refund, including making a

written claim prior to filing suit. This Court held that the named plaintiffs had

satisfied those requirements for the class. The contractual notice requirements

placed upon a depositor in this case do not preclude a class representative from

acting on behalf of other depositors any more than the statutory requirements

placed upon taxpayers precluded the Barnes class representatives from acting

on behalf of other taxpayers. Indeed, the Court of Appeals has held that a class

representative may satisfy contractual notice requirements. See Resource Life

Ins. Co. v. Buckner, 304 Ga. App. 719, 727 (1) (698 SE2d 19) (2010) (class

certified in a case involving form credit life or credit disability insurance

contracts that included a statement that unearned premiums would be refunded

on written notice).

8
281 Ga. 256 (637 SE2d 4) (2006).
9
 This Court, however, has never examined whether a party who files suit

and seeks class certification may satisfy a contractual limitation period on

behalf of absent class members. SunTrust argues no legal authority exists for

the proposition that contractual deadlines become suspended by the filing of a

class complaint. In fact, this issue has been addressed by other courts in cases

involving disputes between passengers and cruise lines, and those courts held

contractual deadlines may be tolled on behalf of putative class members by the

filing of a class complaint. Both in cases applying federal class action law, as

well as the law of at least one other state, courts have held that because the

filing of a class action commences suit for the entire class for purposes of the

statute of limitation, the same rule applies to a contractual period of limitation

for filing suit or giving notice of a claim. See, e.g., Kornberg v. Carnival

Cruise Lines, Inc., 741 F2d 1332 (11th Cir. 1984) (rejecting the argument that

since plaintiffs had no authorization from other passengers, the suit seeking

class certification filed by a small number of cruise line passengers did not

operate as notice of a claim by the absent class members within a specified

number of days as required by the ticket contract); Freeman v. Celebrity

Cruises, Inc., 1994 WL 689809 (S.D.N.Y, Dec. 8, 1994) (a contract

requirement that a claim be filed with the defendant within a certain period of
10
time is satisfied by the filing of a claim by the plaintiff in a class action);

Latman v. Costa Cruise Lines, N.V., 758 So2d 699 (Fla. Dist. Ct. App. 2000)

(rejecting the argument that as a prerequisite to maintaining a class action on

behalf of passengers on a cruise line, every member of the class must submit a

written claim within the limitation period contained on the ticket).

a. Tolling the contractual limitation in this case does not violate
Georgia contract law.

SunTrust would have us exempt the application of such a rule to this case

because it claims the terms of its deposit agreement specifically require

individual action that can only be performed by the individual depositor. The

arbitration clause states that “[y]ou may reject this arbitration agreement.” In

another part of the agreement, “You” is defined as “the owner of the account,”

and the agreement further states it is “not for the benefit of, and may not be

enforced by, any third party.” SunTrust asserts that permitting the attorney for

a single depositor to reject arbitration on behalf of other depositors runs afoul

of the plain language of the deposit agreement, and that permitting Bickerstaff

to reject arbitration for other depositors with whom he is not in privity violates

the substantive legal rights of these other parties by permitting the contract

between SunTrust and these other depositors to be modified or altered by a
11
stranger to the contract. But we are unconvinced by SunTrust’s argument that

a contractual deadline requiring individual action may not be suspended until

the certification of a class (and the attendant opportunity of class members to

opt out or remain bound by the result of the class action) when it is clear that

deadlines imposed by statutes or regulations requiring individual action can be

suspended by the filing of a class action. See Schorr, supra (where the

applicable statute required a pre-suit written demand for liquidated damages

be filed by a claimant); Barnes, supra (requiring exhaustion of administrative

remedies, including making a written claim, prior to filing suit for a tax refund).

See also American Pipe, supra (even where the class ultimately was not

certified, the statutory limitation period was tolled for all who made timely

motions to intervene in the lawsuit once certification was denied).

In its analysis of this issue, the Court of Appeals focused on whether

Bickerstaff was in privity with the putative class members so that he could toll

the contractual limitation period for rejecting the arbitration clause, or whether

he could act as a third party to do so. Finding that Bickerstaff was not in privity

with the purported class members and was not authorized to act for the

members as a third-party beneficiary of their accounts, the Court of Appeals

concluded he could not reject the arbitration clause for anyone other than
12
himself. Bickerstaff, supra, 332 Ga. App. at 131. But this faulty reasoning

ignores the fact that the entire class action scheme is based upon the premise

that a member of a class may act as a representative of the other purported class

members. See OCGA § 9-11-23 (a). If a class is certified and the putative

members are notified, as set forth in subsection (c), a member may opt out,

pursuant to subsection (c) (2), after which the class representative no longer

represents that party. That the SunTrust contract requires individual

notification of rejection of arbitration does not mean that Bickerstaff cannot

act as a representative for that purpose until such time as a class member may

opt out of such representation. Georgia contract law provides that contractual

obligations may be performed by an agent, where personal skill is not required.

OCGA § 13-4-20. Likewise, the law of agency provides generally that

“[w]hatever one may do himself may be done by an agent . . . .” OCGA § 10-

6-5. As the Eleventh Circuit held with respect to proofs of claim filed on behalf

of a class of claimants in a bankruptcy proceeding, “the representative in a

class action is an agent for the class members.” In re Charter Co., 876 F2d

866, 873 (11th Cir. 1989). A class action “is a device by which the

representative is an agent for persons who have not appeared or given even

tacit consent.” In re American Reserve Corp., 840 F2d 487, 493 (7th Cir.
13
1988). The class representative is a putative agent who “keep[s] the case alive

pending the decision on certification.” Id.

We reject SunTrust’s assertion that permitting Bickerstaff’s rejection of

arbitration to be applied to other depositors illegally permits Bickerstaff to

abridge the contractual rights of others. The deposit agreement’s arbitration

clause grants the prevailing party the right to collect attorney fees and costs,

and SunTrust points to the fact that those depositors who remain bound by the

arbitration clause and do not reject it are thereby entitled to recover fees and

expenses in the event they prevail in an arbitrated dispute. Contrary to

SunTrust’s assertion, Bickerstaff does not argue he can reject arbitration for

other depositors and thereby abrogate this contractual right to recover fees

prior to class certification and the subsequent election by class members to

remain in the class or opt out of it. Again, Bickerstaff’s complaint serves only

to toll the contractual period for making such an election until such time as the

class is certified, and does not improperly abridge the contractual rights of

others. Furthermore, courts routinely permit a putative class representative to

seek a ruling invalidating contractual arbitration clauses prior to class

certification. See, e.g., Jackson v. Payday Fin., LLC 764 F3d 765, 779 (7th Cir.

2014) (putative class representative obtained pre-certification ruling that
14
arbitration provision is void); Noohi v. Toll Bros., Inc., 708 F3d 599, 614 (4th

Cir. 2013) (putative class representative obtained pre-certification ruling that

arbitration provision is unenforceable for lack of mutual consideration); In re

Checking Account Overdraft Litigation, 84 FSupp3d 1345 (S.D. Fla. 2015)

(putative class representative obtained pre-certification ruling that arbitration

provision is unconscionable). Once a class is certified, such rulings bind class

members who do not opt out, thereby affecting their contractual rights.

Invalidating an arbitration clause is no more of an alteration of contract rights

than exercising a contractual right to reject arbitration.9

SunTrust notes that the arbitration rejection notice requirements involve

more than simply meeting a deadline. It argues the terms of the contract must

be enforced, and in this case that means in order to reject the arbitration clause

each depositor must provide individual information: name, address, account

9
SunTrust sets up a false dilemma—that in the interim between the filing of Bickerstaff’s
complaint and the time an election is made by a depositor (if a class is certified), it cannot know
its own contractual rights with respect to its customers or know, for example, whether a dispute
between the bank and a given depositor is governed by the arbitration clause or not. Practically
speaking, if a depositor sues SunTrust and rejects SunTrust’s demand to arbitrate on the ground
that he or she timely rejected the arbitration clause at the time Bickerstaff’s class action complaint
was filed, then that depositor’s election under the arbitration clause is obvious. By its terms, the
contract’s arbitration requirement also applies to the bank. Likewise, then, if the bank pursues a
dispute with a depositor and files an arbitration claim against a customer and that customer
responds by seeking dismissal on the ground that the customer rejects the arbitration clause, any
uncertainty about the bank’s rights based on the customer’s rejection, or not, of the arbitration
clause would appear to be resolved.
15
name, account number, and the depositor’s signature. But this is frequently

the case in class action disputes, and yet this does not typically defeat the

pursuit of the claim as a class action so long as the class plaintiff has met the

prerequisites for filing suit. The Barnes case involved a demand for refund of

taxes paid, and although it had already been determined that the tax was

unconstitutional, claimants were nevertheless subject to administrative

exhaustion requirements that called for the individual filing of a written claim

for refund that provided information required by the taxing authority, as set

forth in the governing statute. Barnes, supra, 281 Ga. at 257-258.

Nevertheless, this Court applied the general principles of class actions which

hold that the satisfaction of a precondition for suit by the class plaintiff

typically avoids the necessity for each class member to satisfy the precondition

individually. Id. at 258. Likewise, Schorr involved a demand for liquidated

damages that, by statute, required the claimant to make a written demand upon

the lender who allegedly owed the statutory damages. Again, this Court

applied “the general rule allowing the named plaintiffs in a class action to

satisfy preconditions for suit on behalf of the entire class.” Schorr, supra, 287

Ga. at 573. What is important is that the named plaintiff’s fulfillment of each

precondition and the filing of the class action provide notice of “the nature of
16
the suit, the governing law, and the extent of the class.” Id. Compare J.M.I.C.

Life Ins. Co. v. Toole, 280 Ga. App. 372, 374-375 (1) (b) (634 SE2d 123 (2006)

(where the statute on which the class plaintiff filed suit did not require pre-suit

notice, filing the suit satisfied the notice requirement on behalf of the

individual class representative, and the Court of Appeals went on to affirm the

certification of the class) to the facts of this case in which it has already been

determined that the filing of the lawsuit provided notice of Bickerstaff’s

rejection of arbitration.

Bickerstaff’s lawsuit informs SunTrust of the nature and scope of the

claim and provides it with the information necessary to frame a legal defense

to the claim of usury. As to the extent of the class, the identity of customers

who are putative class members, and the individual information required from

a depositor who rejects arbitration, the record shows SunTrust stipulated that

its business records are sufficient to identify the customers who were charged

an overdraft fee during the relevant period by name, account number, address,

and the dates and amounts of the fees charged.

b. Tolling in this case does not illegally bind the putative class
members to the class representative’s decision to reject
arbitration.

17
 The Court of Appeals further concluded that in order to satisfy the

numerosity requirement, Bickerstaff “would have to legally bind class

members to a rejection of the arbitration clause—at least until they opted out

of the class itself once it was certified.” Bickerstaff, supra, 332 Ga. App. at

130-131. But this analysis, based upon an assumption that a class cannot be

certified unless Bickerstaff can legally bind putative class members before

certification, thereby satisfying the numerosity requirement, again

demonstrates a fundamental misconception about the way class actions work.

The entire scheme of class actions, as set forth in OCGA § 9-11-23, is that all

putative class members benefit from the class representative’s filing of the

complaint just as if each member had filed the complaint himself or herself.

See In Re American Reserve Corp., supra. The Court of Appeals disregarded

“those principles which apply generally in class actions, including that which

permits a representative to act on behalf of an entire class” with respect to a

precondition for filing suit. Barnes, supra, 281 Ga. at 258. The Court of

Appeals itself correctly noted that Bickerstaff was acting for the class members

only until such time as they chose whether or not to opt out of the class. In

damages class actions such as this one brought pursuant to OCGA § 9-11-23

(b) (3), a putative class representative cannot bind class members before a class
18
is certified and the members have the opportunity to opt out of the complaint.

See OCGA § 9-11-23 (c) (2). It follows that in the interim, the filing of

Bickerstaff’s lawsuit simply serves to mark time and toll the contractual period

of limitation for putative class members to elect to remain in the class or opt

out of it after class certification. If a member opts out, he or she is not bound

by Bickerstaff’s decision to reject arbitration. The Court of Appeals’ reliance

upon Standard Fire Ins. Co. v. Knowles,10 is misplaced. In that case, the

Supreme Court held that a class plaintiff’s jurisdictional amount stipulation

could not bind absent class members to the amount in controversy prior to class

certification. Here, Bickerstaff is not attempting to bind any other class

member to rejection of arbitration prior to class certification; his class action

complaint, in which he personally rejects arbitration, simply tolls the time in

which the other putative class members may elect to opt out of the class action,

or remain in it. A class member’s decision to remain in the class after class

certification and notification is what will serve as his or her own election to

reject the arbitration clause.

10
___ U.S. ___ (133 SCt 1345, 185 LE2d 439) (2013).
19
 In this case, both the trial court and the Court of Appeals deemed the

filing of Bickerstaff’s complaint, with respect to Bickerstaff himself, to have

satisfied the contractual requirement that he rejected the arbitration clause in

writing within the required period of time and, given the information contained

within his complaint, to have satisfied the other notice requirements such as

name, address, and account number. We add that, applying the reasoning of

the Supreme Court in American Pipe and subsequent decisions of this and other

courts, the filing of Bickerstaff’s complaint tolled the required time period for

giving notice to SunTrust for all putative class members until a certification

decision is made and the notified class members elect whether to opt out or

remain in the class. See American Pipe, supra, 414 U.S. at 551. This preserves

the numerosity issue for a determination of whether the total number of

putative class members whose contractual conditions have been tolled meets

the numerosity requirement of OCGA § 9-11-23 (a) (1). To hold otherwise—

that the filing of the class action complaint tolls the required time period for

giving notice of a claim or filing suit only for the named plaintiff—would

defeat numerosity in many cases in which any sort of notice requirement exists.

20
The concept of numerosity applies to the number of putative class members,11

and does not require that the actual number of class members be determined

before a class is certified. That Bickerstaff’s rejection of the arbitration

agreement by the act of filing his complaint does not bind others until the class

is certified does not defeat numerosity.

2. Relation back

Assuming a class is certified in this case, as in any subsection (b) (3)

class action, each class member will be notified and required to decide whether

to opt out of the lawsuit. See OCGA § 9-11-23 (c) (2). At that point, each

notified depositor will be exercising his or her own contractual right to reject,

or not, the deposit agreement’s arbitration clause. Bickerstaff will not be

making that decision for the other depositors and thus will not be acting as a

party to those depositors’ contracts or as a person in privity with the other

depositors, and will not be acting as a beneficiary of anyone else’s deposit

agreement. Any member of the certified class who remains and does not opt

out of the class will be deemed to have brought suit at the same time

11
William B. Rubenstein, Newberg on Class Actions § 3:13 (5th ed.) (“Generally, a plaintiff must
show enough evidence of the class’s size to enable the court to make commonsense assumptions
regarding the number of putative class members.” (Emphasis supplied.) )
21
Bickerstaff’s complaint was filed, which was within the deadline for rejecting

arbitration for existing depositors, the class Bickerstaff seeks to represent. See

Barnes, supra, 281 Ga. at 257 (1).

Consistent with the law of agency, depositors who remain in the class

will thereby ratify the filing of the complaint, and that ratification will relate

back to the timely notice of rejection Bickerstaff made when he filed the

complaint. See OCGA § 10-6-52. This is consonant with, and simply another

aspect of, the tolling rule adopted by the Supreme Court in American Pipe,

supra, whereby the commencement of class action satisfies the statute of

limitation for all those who ultimately participate in the suit. As we have

previously noted, in this case it is the class representative’s timely notification

of rejection of arbitration by filing the complaint that serves to toll the time for

the remaining class members to give notice. And for those members who ratify

the class representative’s acts by remaining in the class, the complaint provides

the necessary notice. It demonstrates the member’s intent to sue SunTrust in a

court of law and to reject the requirement to arbitrate the claim. Tolling and

the notion of relation back are simply two sides of the same coin.

3. Remaining enumeration of error

22
 In his remaining enumeration of error, Bickerstaff claims the Court of

Appeals erred in failing to hold SunTrust is barred due to lack of assent and

waiver from enforcing the deposit agreement’s arbitration clause against all

putative class members. In fact, the Court of Appeals did not address that

ground for reversing the trial court because it deemed the issue to be moot as

a result of its decision that class certification was properly denied. Bickerstaff,

supra, 332 Ga. App. 132 (3). Upon remand to the Court of Appeals, that

alleged trial court error remains to be addressed.

Conclusion

For the reasons set forth in this opinion, we reverse. We hold the terms

of the arbitration rejection provision of SunTrust’s deposit agreement do not

prevent Bickerstaff’s class action complaint from tolling the contractual

limitation for rejecting that provision on behalf of all putative class members

until such time as the class may be certified and each member makes the

election to opt out or remain in the class. Accordingly, the numerosity

requirement of OCGA § 9-11-23 (a) (1) for pursuing a class complaint is not

defeated on this ground.

Judgment reversed and case remanded. All the Justices concur.

23