Faith Gordon v. Branch Banking and Trust

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-15399 JANUARY 31, 2012
________________________ JOHN LEY
CLERK
D. C. Docket No. 09-23067-CV-JLK

FAITH GORDON,
on behalf of herself and all
others similarly situated,

Plaintiff-Appellee,

versus

BRANCH BANKING AND TRUST,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(January 31, 2012)

ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before MARCUS and ANDERSON, Circuit Judges, and MILLS,* District Judge.

PER CURIAM:

On March 28, 2011, in an unpublished opinion, we affirmed the judgment of

the district court denying Branch Banking and Trust’s (“BB&T”) motion to compel

arbitration and motion for reconsideration, holding that the class action waiver in

the arbitration agreement at issue was substantively unconscionable under Georgia

law. See Gordon v. Branch Banking and Trust, 419 F. App’x 920. After our

opinion issued, the Supreme Court rendered a decision in AT&T Mobility LLC v.

Concepcion, 131 S. Ct. 1740 (2011), which held that the Federal Arbitration Act

(“FAA”), 9 U.S.C. § 1 et seq., preempted California’s state law rule “classifying

most collective-arbitration waivers in consumer contracts as unconscionable.”

Concepcion, 131 S. Ct. at 1746. The Supreme Court has vacated this Court’s

judgment in Gordon and remanded for further consideration in light of

Concepcion. See Branch Banking and Trust v. Gordon, --- S. Ct. ----, 2011 WL

3876982 (Nov. 14, 2011) (table).

Accordingly, without implying any view about the resolution of the case, we

vacate the judgment of the district court denying BB&T’s motion to compel

arbitration and motion for reconsideration, and remand this case to the district

*
Honorable Richard Mills, United States District Judge for the Central District of
Illinois, sitting by designation.

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court for reconsideration in light of Concepcion and subsequent decisions of this

Court. See, e.g., Cruz v. Cingular Wireless, LLC, 648 F.3d 1205 (11th Cir. 2011).

VACATED AND REMANDED.

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