17-1762
Roberts v. Capital One, N.A.

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 1st day of December, two thousand seventeen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         JOHN M. WALKER, JR.,
         GUIDO CALABRESI,
                     Circuit Judges.
________________________________________________

TAWANNA M. ROBERTS, on behalf of herself and all
others similarly situated,

                               Plaintiff-Appellant,

                               v.                                        No. 17-1762

CAPITAL ONE, N.A.,

                               Defendant-Appellee,

CAPITAL ONE FINANCIAL CORPORATION, dba
CAPITAL ONE BANK,

                     Defendant.
_____________________________________________

For Plaintiff-Appellant:              MATTHEW W.H. WESSLER (Deepak Gupta and Matthew
                                      Spurlock, Gupta Wessler PLLC; Jeffrey Kaliel and Hassan A.
                                      Zavereei, Tycko & Zavareei LLP, on the brief), Gupta Wessler
                                      PLLC, Washington, DC.
For Defendant-Appellee:              JOSEPH R. PALMORE (James R. McGuire, San Francisco, CA,
                                     Jessica L. Kaufman, New York, NY, Sophia M. Brill,
                                     Washington, DC, Morrison & Foerster, on the brief), Morrison
                                     & Foerster LLP.

For Amici Curiae Center for          Rebecca K. Borné, Center for Responsible Lending,
Responsible Lending, National        Washington, DC.
Consumer Law Center, and
New Economy Project:



        Appeal from the United States District Court for the Southern District of New York

(Schofield, J.).

        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court is AFFIRMED IN PART and

VACATED IN PART.

        Plaintiff-Appellant Tawanna Roberts appeals from a final judgment entered by the

district court (Schofield, J.) on May 5, 2017, dismissing her complaint against Defendant-

Appellee Capital One, N.A., for failure to state a claim under Rule 12(b)(6) of the Federal Rules

of Civil Procedure. We assume the parties’ familiarity with the underlying facts, the procedural

history, and the issues on appeal.

        Roberts has maintained a checking account with Capital One since 2014 and has a debit

card linked to that account. The relevant terms of the parties’ relationship were set forth in two

agreements: Capital One’s Rules Governing Deposit Accounts (the “Deposit Agreement”) and

its Electronic Fund Transfer Agreement and Disclosure for Personal and Commercial Accounts

(the “EFT Agreement”), each of which addresses the imposition of overdraft fees by Capital

One. Citing overdraft practices by Capital One that allegedly differ from the parties’ contractual

arrangement, Roberts brought five causes of action against the bank: (1) breach of contract, (2)


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breach of the covenant of good faith and fair dealing, (3) conversion, (4) unjust enrichment, and

(5) violation of New York General Business Law § 349. Each was dismissed by the district

court. Roberts v. Capital One, N.A., No. 16 Civ. 4841, 2017 WL 1750445 (S.D.N.Y. May 4,

2017).

         According to Roberts, the parties’ agreements provide that an overdraft occurs when

Capital One “elect[s] to pay” certain costs. Roberts Br. at 1 (quoting App. 39). Capital One, on

the other hand, reads the agreements as establishing that “overdrafts occur when Capital One

pays merchants for transactions—an occurrence that can happen at a separate and later time.”

Capital One Br. at 12. Capital One’s alleged business practices comport with its reading of the

parties’ agreements, but they do not comport with Roberts’ understanding of the agreements. Put

another way, the principal question presented by this matter is whether Capital One has breached

the parties’ agreement by assessing overdraft fees when it settles transactions (i.e., at the time

that Capital One actually pays merchants), rather than when it authorizes transactions (i.e., at the

time that a merchant queries Capital One as to whether it should proceed in a transaction with a

Capital One account-holder, which may occur several days prior to settlement).1

         Capital One argues that Roberts has forfeited any argument based on the “elect to pay”

language found in the Deposit Agreement, upon which Roberts now focuses. Capital One is

correct that Roberts’ argument on appeal differs from those she presented to the district court,

but that is not dispositive. Although “it is a well-established general rule that an appellate court


1
  To understand the import of this distinction, consider a simple scenario in which an individual has $10 in his
Capital One bank account. On day one he makes four $1 purchases, on day two he makes one $10 purchase that is
settled the same day, and on day three his four $1 purchases are settled. If overdrafts are assessed based upon the
funds available at the time each of the transactions was authorized, he will pay a single overdraft fee for his $10
purchase on day two. But if overdraft fees are based on the funds available at the time each of the transactions was
settled, on the other hand, he will pay four overdraft fees—one for each of the $1 purchases that settled on day three,
after settlement of the $10 transaction reduced his available funds to $0 on day two. The very same purchases could
thus lead to a four-fold increase in overdraft fees if overdrafts are assessed at settlement as compared to
authorization.

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will not consider an issue raised for the first time on appeal,” it “is not an absolute bar” because

“[e]ntertaining issues raised for the first time on appeal is discretionary with the panel hearing

the appeal.” Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994). “Exercise of that

discretion is particularly appropriate where,” as here, “an argument presents a question of law

and does not require additional fact finding.” United States v. Brunner, 726 F.3d 299, 304 (2d

Cir. 2013). Moreover, the district court placed the Deposit Agreement’s “elect to pay” language

at issue by citing to it repeatedly in addressing the breach of contract claim. See Roberts, 2017

WL 1750445, at *3. In light of the district court’s reliance on this aspect of the Deposit

Agreement, we hereby exercise our discretion to address the merits of Roberts’ argument in the

first instance. See, e.g., United States v. Clariot, 655 F.3d 550, 556 (6th Cir. 2011) (“When a

district court resolves an issue, the losing party can challenge it. Otherwise, the more surprising a

district court decision in terms of resolving unbriefed and unargued points, the more insulated

from review that decision would be.”); Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d

699, 707-08 (D.C. Cir. 2009) (“Review here is . . . appropriate because the district court ‘passed

upon’ the . . . issue appellants now present to this court.”).

         Turning to the merits, we agree with Roberts that the district court erred in dismissing her

contract claim.2 The key provision in this appeal is the first sentence of the Deposit Agreement’s

“overdraft” provision, which provides as follows: “We may in our sole discretion, and without

obligation, elect to pay checks and other items drawn on your deposit account or to permit

automatic bill payments and withdrawals against your account for an amount in excess of your

available balance (an ‘Overdraft’).” App. 39. Although this sentence attempts to define the term

“Overdraft” for purposes of the parties’ agreements, it fails to provide “a definite and precise

2
 Although the agreements at issue do not specify which state’s laws govern this dispute, we assume that New York
contract law applies in light of the parties’ citations to New York caselaw, as well as their failure to assert that the
district court erred in applying New York law. See Roberts, 2017 WL 1750445, at *2.

                                                           4
meaning,” JA Apparel Corp. v. Abboud, 568 F.3d 390, 396 (2d Cir. 2009) (internal quotation

marks omitted), because it simply tacks a parenthetical purporting to define the term on to the

end of a grammatically complex sentence, without making clear which portions of the sentence

are meant to be subsumed within that definition. Accordingly, it is equally reasonable to

understand the term “Overdraft” as referring to Capital One’s election to make a payment, which

would occur at the time of authorization (as asserted by Roberts), or as referring to the payment

itself, which would occur at the time of settlement (as asserted by Capital One). Because this

fundamental definition is “subject to more than one reasonable interpretation,” it is ambiguous.

Universal Am. Corp. v. Nat’l Union Fire Ins. Co., 37 N.E.3d 78, 80 (N.Y. 2015). And because it

is ambiguous, dismissal was improper. See JA Apparel, 568 F.3d at 397 (“the meaning of the

ambiguous contract is a question of fact for the factfinder”). Moreover, this ambiguity infects

several other provisions of both agreements that employ the defined term “Overdraft,”

effectively incorporating its lack of clarity by reference.

        In finding that the parties’ agreements “expressly provide that an overdraft occurs when

[Capital One] pays—and not merely authorizes—a transaction in an amount that exceeds a

customer’s available balance,” the district court relied on the ambiguous definition of

“Overdraft,” as well as another clause from the Deposit Agreement that similarly imposes

“‘Overdraft fees for each Overdraft item’” when Capital One “‘elect[s] to pay Overdraft items.’”

Roberts, 2017 WL 1750445, at *3 (quoting App. 39) (emphases in district court opinion); see

also App. 54 (employing identical language in EFT Agreement). In doing so, the district court

repeatedly emphasized the word “pay” without explaining what significance, if any, it attributed

to the transitive verb “elect to” in each clause using that formulation. “Because we are not free to

‘rewrite . . . a contract . . . by adding or excising terms under the guise of construction,’” failing



                                                   5
to give meaning to the phrase “elect to” throughout the Deposit Agreement’s pertinent provisions

was also error. Bank of N.Y. Mellon Trust Co., N.A. v. Morgan Stanley Mortg. Capital, Inc., 821

F.3d 297, 307 (2d Cir. 2016) (quoting Slamow v. Del Col, 571 N.Y.S.2d 335, 336 (N.Y. App.

Div. 1991)); see also Columbus Park Corp. v. Dep’t of Hous. Pres. & Dev., 598 N.E.2d 702, 708

(N.Y. 1992) (“Such a construction which makes a contract provision meaningless is contrary to

basic principles of contract interpretation.”).

       In the hopes of clarifying the ambiguity identified by Roberts, Capital One points to

several other provisions dispersed throughout the parties’ agreements that it asserts clarify that

overdrafts are assessed at the time of settlement. Yet these other provisions are similarly opaque

and problematic. For example, the EFT Agreement provides that “[a]n Overdraft occurs when

you do not have enough money in your designated account to cover a transaction, but we pay it

anyway,” App. 54, which Capital One reads to refer to occasions on which “a customer has a

negative available balance in her account at the time Capital One pays for a transaction,” Capital

One Br. at 14. But the phrase “at the time Capital One pays for” does not appear in the

agreement itself. Capital One seems to presume that the “transaction” in question refers to its

settlement with the merchant, which is certainly a plausible reading of the agreement, but it

would hardly be implausible for a consumer to think that “a transaction” refers to the consumer’s

transaction with a merchant, such that the assessment of whether their account holds sufficient

funds refers to the funds available at the time that the consumer-merchant transaction is

authorized by Capital One. Similarly, the Deposit Agreement provides that a consumer “can

avoid Overdrafts . . . by always making sure that [they] have sufficient available funds in [their]

account to cover all of the debits presented for payment,” App. 39, without clarifying when the

sufficiency of funding is determined or whether the referenced presentation for payment might



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be the consumer’s initial agreement to pay the merchant. With respect to this provision, Capital

One’s preferred “interpretation of the agreement . . . makes little sense from [the account-

holder’s] point of view,” as a reasonable consumer likely considers something to have been paid

for when they swipe their debit card, not when their bank’s back-office operations are completed.

See Cheng v. Modansky Leasing Co., Inc., 539 N.E.2d 570, 573 (N.Y. 1989) (“If the letter was

ambiguous because it did not state [terms] explicitly, then its terms must be strictly construed

against the drafter[.]”).

        Lastly, Roberts notes in passing that the district court’s “flawed interpretation of the

parties’ agreements led it to dismiss all of the claims in the case,” such that reinstatement of her

contract claim necessitates reversing the dismissal of her remaining claims as well. Roberts Br. at

23 n.3. We decline to consider whether Roberts’ common-law causes of action were properly

dismissed because “‘issues adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived,’” a rule with “particular force where an

appellant makes an argument only in a footnote,” as was done here. Niagara Mohawk Power

Corp. v. Hudson River-Black River Regulating Dist., 673 F.3d 84, 107 (2d Cir. 2012) (quoting

Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir. 2001)); see also Fed. R. App. 28(a)(8)(A). We

nevertheless reverse the dismissal of Roberts’ New York General Business Law § 349 claim,

based upon Capital One’s concession that it “should” be remanded for the district court to

consider whether it is preempted by federal banking regulations in light of our ruling on the

parties’ contractual dispute. Capital One Br. at 34-35.

        For the foregoing reasons, we AFFIRM the judgment of the district court with respect to

Roberts’ causes of action for breach of the covenant of good faith and fair dealing, conversion,

and unjust enrichment, and we VACATE the judgment of the district court with respect to



                                                  7
Roberts’ causes of action for breach of contract and violation of New York General Business

Law § 349.

                                            FOR THE COURT:
                                            CATHERINE O’HAGAN WOLFE, CLERK




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