                                                                     [PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT           FILED
                           ________________________ U.S. COURT  OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                               MARCH 5, 2012
                                  No. 11-14317
                              Non-Argument Calendar              JOHN LEY
                                                                  CLERK
                            ________________________

                       D.C. Docket Nos. 1:09-md-02036-JLK,
                               1:10-cv-20476-JLK

In Re: CHECKING ACCOUNT OVERDRAFT LITIGATION

lllllllllllllMDL NO. 2036
____________________________________________

LAWRENCE D. HOUGH,
PAMELA J. HOUGH,
on behalf of themselves and
all others similarly situated,
                                                            Plaintiffs - Appellees,
                          versus
REGIONS FINANCIAL CORPORATION,
REGIONS BANK,
                                                         Defendants - Appellants.


                            ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________
                                 (March 5, 2012)
Before HULL, PRYOR and FAY, Circuit Judges.

PER CURIAM:

      Regions Financial Corporation and Regions Bank (collectively “Regions”)

appeal the denial of their renewed motion to compel Lawrence and Pamela Hough

to arbitrate their complaint against Regions. 9 U.S.C. § 16(a)(1)(C). The Houghs

sued Regions for allegedly violating federal and state law by collecting overdraft

charges under its deposit agreement, and Regions moved to compel arbitration

based on an arbitration clause in that agreement. The district court denied the

motion to compel on the ground that the arbitration clause was substantively

unconscionable because it contained a class action waiver, but we vacated that

ruling and remanded for further consideration in the light of AT&T Mobility LLC

v. Concepcion, 563 U.S. ___,131 S. Ct. 1740 (2011). On remand, Regions

renewed its motion to compel, which the district court denied on the ground that

the arbitration clause was substantively unconscionable under Georgia law

because a provision granting Regions the unilateral right to recover its expenses

for arbitration allocated disproportionately to the Houghs the risks of error and

loss inherent in dispute resolution. Because the reimbursement provision is

conscionable under Georgia law, we reverse the order denying the renewed motion

to compel of Regions and remand with instructions to compel arbitration.

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                                  I. BACKGROUND

      Approximately ten years after the Houghs became customers of Regions

Bank, the Houghs filed a complaint “on behalf of themselves and all persons

similarly situated” against Regions. The Houghs complained that they were

assessed overdraft charges unfairly on their checking account. The complaint

alleged five acts of wrongdoing by Regions: (1) Regions breached its duty of good

faith and fair dealing with its customers; (2) Regions converted funds by levying

overdraft charges unfairly; (3) Regions processed transactions and fees

deceptively to maximize overdraft charges; (4) Regions loaned money at a

usurious rate to process transactions when the account contained insufficient

funds; and (5) Regions was unjustly enriched.

      Regions moved to compel the Houghs to arbitrate their complaint

individually. Regions argued that the Houghs had agreed in paragraph 34 of its

deposit agreement that, “except as expressly provided[,] . . . either party [could]

elect to resolve by BINDING ARBITRATION any controversy, claim, . . . dispute

or disagreement” and that “no Claim [could] be joined with another dispute or

lawsuit . . . or resolved on behalf of a class of similarly situated persons . . . .”

Regions requested that the district court, “upon being satisfied that the making of

the agreement for arbitration or the failure to comply therewith is not in issue, . . .

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direct[] the parties to proceed to arbitrate in accordance with the terms of the

agreement.”

      The Houghs responded that the arbitration provisions in the deposit

agreement were unconscionable. The Houghs argued, relevant to this appeal, that

the arbitration provisions were substantively unconscionable because the expenses

imposed in paragraphs 34 and 36 of the deposit agreement created a financial

disincentive to arbitrate. Although paragraph 34 capped the Houghs’ costs for the

arbitration proceeding at $125, paragraph 36 required the Houghs to reimburse

Regions as a prevailing party for its costs of arbitration. Paragraph 36 provided

that “[Depositors] agree to reimburse [Regions] for [its] costs and expenses

(including reasonable attorney’s fees) in connection with . . . (iii) any action or

arbitration regarding this Agreement, [the depositor’s] account or services linked

to the account where [Regions] [is] the prevailing party.” Paragraph 36 also

provided that “[Regions] may charge any account of [a depositor] for such costs

and expenses without further notice.”

      In reply, Regions argued that the district court “should deny the

conscionability challenge and . . . enforce the parties’ arbitration agreement.”

Regions argued that the reimbursement provision was commercially reasonable

and conscionable. Regions also argued that it never had exercised its right to

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reimbursement and that the provision “could not render the arbitration agreement

unconscionable” because the provision “is expressly severable.” Additionally,

Regions argued that the Houghs could, as permitted in paragraph 34, “pursue their

individual claims in small claims court” and, if they prevailed on their claims of

conversion and usury, could recover attorney’s fees. Regions stated in footnote 16

of the reply that “[i]f [it were to] prevail on [the] motion [to compel], it [would]

not file an arbitration action” and the Houghs could then “decide . . . [to] initiate

an individual action in small claims court or in arbitration.”

      After we remanded for the district court to reconsider the motion to compel

in the light of Concepcion, Regions renewed its motion to compel arbitration.

Regions argued, based on the decision of the Supreme Court in Rent-A-Center,

W., Inc. v. Jackson, 561 U.S. ___, 130 S. Ct. 2772 (2010), that the district court

should “compel arbitration of all issues” because “the arbitration agreement

delegates threshold arbitrability issues to the arbitrator.” And Regions quoted in

its renewed motion a sentence in paragraph 34 of the deposit agreement providing

that the parties would submit all disputes to an arbitrator: “Any dispute regarding

whether a particular controversy is subject to arbitration, including any claim of

unconscionability and any dispute over the scope or validity of this agreement to

arbitrate disputes or of this entire Agreement, shall be decided by the

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arbitrator(s).” Regions also argued, based on our decision in Cappuccitti v.

DirecTV, Inc., 623 F.3d 1118 (11th Cir. 2010), that the Houghs “created

unconscionability by . . . refusing to plead a cause of action [under the Georgia

Fair Business Practices Act] that would [have] confer[red] automatic attorney’s

fees.”

         The Houghs opposed the renewed motion of Regions. The Houghs argued

that the district court should decide the issue of conscionability because, in

contrast with the arbitration agreement in Rent-A-Center, the arbitration clause in

the Houghs’ deposit agreement failed to “clearly place[] [the Houghs] on notice

that an arbitrator would decide questions of arbitrability.” The Houghs contended

that the delegation of all disputes to the arbitrator was substantively

unconscionable, and the Houghs argued that the arbitration provisions in the

deposit agreement were procedurally and substantively unreasonable.

         The district court denied the renewed motion to compel. As to the initial

question of who should decide conscionability, the district court concluded that

Regions “waived its right to arbitrate the threshold issue of unconscionability” by

“ask[ing] [the district] Court to determine [that] question in [its] original motion to

compel arbitration, filed well over a year ago.” The district court ruled that the

arbitration clause was substantively unconscionable under Georgia law because

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the provision granting Regions the right of reimbursement allocated “nearly all the

risks of engaging in dispute resolution” unfairly on the Houghs. The district court

rejected the argument of Regions that the reimbursement provision in paragraph

36 was severable from the arbitration clause in paragraph 34. The district court

ruled that Regions “waived the right to invoke [the severance] provision” by

failing to mention it “in either its Motion [to compel] or the Reply filed in support

of its original Motion.”

                           II. STANDARD OF REVIEW

      We review de novo the denial of a motion to compel arbitration. Jenkins v.

First Am. Cash Advance of Ga., LLC, 400 F.3d 868, 873 (11th Cir. 2005).

                                 III. DISCUSSION

      Regions contends that it was entitled to compel the Houghs to arbitrate their

complaint and that the district court ignored precedent requiring it to enforce the

agreement to arbitrate. Regions argues that the district court should have

submitted the issue of conscionability to the arbitrator, the arbitration clause was

conscionable and, even if unconscionable, the clause was severable. Although we

conclude that Regions waived the right to have the arbitrator resolve the issue of

conscionability, because we agree with Regions that the reimbursement provision

was conscionable, we need not address whether the clause was severable.

                                          7
      Regions waived its right to arbitrate the conscionability of its arbitration

clause. The clause contained “sweeping language concerning the scope of the

questions committed to arbitration,” Green Tree Fin. Corp. v. Bazzle, 539 U.S.

444, 453, 123 S. Ct. 2402, 2407 (2003), and “clearly and unmistakably

provide[d],” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S. Ct.

588, 591 (2002), that an arbitrator should resolve “any claim of

unconscionability,” but Regions did not invoke that delegation provision in

response to the Houghs’ arguments that the clause was unconscionable. Regions

instead asked the district court to “deny the conscionability challenge.” The

actions of Regions are virtually indistinguishable from the actions of Princess

Cruise Lines in Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204, 1213 (11th Cir.

2011), where we held that Princess was barred from arguing that the district court

should have submitted the issue of arbitrability to an arbitrator because Princess

“asked the district court to decide for itself whether the dispute was subject to

arbitration.” Regions, “as a party to the contract it signed, is presumed to know

that it had . . . [the right] to arbitrate” the issue of conscionability, Holt & Holt,

Inc. v. Choate Constr. Co., 271 Ga. App. 292, 294, 609 S.E.2d 103, 105 (2004),

and “waive[d] [that aspect of the] agreement to arbitrate by taking actions that

[were] inconsistent with [that] right of arbitration,” M. Homes, LLC v. S.

                                            8
Structural, Inc., 281 Ga. App. 380, 383, 636 S.E.2d 99, 101 (2006) (internal

quotation marks omitted).

      The district court erred in its resolution of the issue of substantive

conscionability. The arbitration agreement permitted Regions, if it was “the

prevailing party,” to obtain “reimburse[ment] for [its] costs and expenses

(including reasonable attorney’s fees) . . . [in] arbitration” and to collect that

amount by “charg[ing] [the Houghs’] account.” The district court concluded that

the reimbursement provision was unconscionable because Regions had an

exclusive right of setoff, but under Georgia law “an arbitration provision is not

unconscionable because it lacks mutuality of remedy.” Crawford v. Great Am.

Cash Advance, Inc., 284 Ga. App. 690, 693, 644 S.E.2d 522, 525 (2007); see also

Greene v. Citizens & S. Bank of Cobb Cnty., 134 Ga. App. 73, 76, 213 S.E.2d

175, 178 (1975) (“A contract allowing a bank a set-off of its indebtedness to a

depositor against the depositor’s indebtedness to it is not unconscionable.”). The

arbitration agreement is not substantively unconscionable.

      The district court also ruled that the arbitration clause had “a degree of

procedural unconscionability,” but to be unconscionable under Georgia law, a

contract must be “so one-sided” that “‘no sane man not acting under a delusion

would make and that no honest man would’” participate in the transaction. NEC

                                            9
Techs., Inc. v. Nelson, 267 Ga. 390, 391 & n.2, 478 S.E.2d 769, 771 & n.2 (1996)

(quoting R.L. Kimsey Cotton Co. v. Ferguson, 233 Ga. 962, 966, 214 S.E.2d 360,

363 (1975)). The arbitration clause in the Houghs’ agreement falls well short of

this standard. Although the district court found troubling that the clause was

presented to the Houghs “on a take-it-or-leave-it basis with no opt-out provision,”

under Georgia law, an adhesion contract is not per se unconscionable. See

Crawford v. Results Oriented, Inc., 273 Ga. 884, 885, 548 S.E.2d 342, 343 (2001)

(citing Munoz v. Green Tree Fin. Corp., 343 S.C. 531, 542 S.E.2d 360 (2001)); see

also Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1377 (11th Cir. 2005)

(despite the existence of a “bargaining disparity” common to an employment

relationship, it did not render the arbitration agreement entered unconscionable

under Georgia law). As the Supreme Court has recognized, “[m]ere inequality in

bargaining power . . . is not a sufficient reason to hold that arbitration agreements

are never enforceable . . . .” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20,

33, 111 S. Ct. 1647, 1655 (1991). The district court also criticized the clause as

“not conspicuous” because it was “buried on the twenty-first page of a forty-three

page, single-spaced document” and “in a maze of fine print,” but the district court

overlooked other aspects of the document that made apparent the agreement to

arbitrate. The first two pages of the deposit agreement thrice reference that it

                                          10
contains “BINDING ARBITRATION provisions,” and the second page of the

agreement contains a separate paragraph typed in all caps, bold, and underlined

stating that “THIS AGREEMENT CONTAINS PROVISIONS FOR BINDING

ARBITRATION” and that “ACCEPTANCE OF [THE] AGREEMENT

INCLUDES YOUR ACCEPTANCE OF AND AGREEMENT TO SUCH

PROVISIONS.” And reference to the arbitration clause is not difficult: the table

of contents states that the paragraph regarding “Arbitration and Waiver of Jury

Trial” is located on pages 21 through 23, and that paragraph explains in bold

typeset what kinds of disputes are subject to arbitration. The Supreme Court

invalidated in Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 116 S. Ct.

1652 (1996), a requirement under state law that operated to “singl[e] out

arbitration provisions for suspect status” on the ground that the Federal Arbitration

Act requires that “such provisions be placed ‘upon the same footing as other

contracts.’” Id. at 687, 116 S. Ct. at 1656 (quoting Scherk v. Alberto-Culver Co.,

417 U.S. 506, 511, 94 S. Ct. 2449, 2453 (1974)). The Houghs fail to cite any case

law that requires provisions relating to arbitration be “conspicious,” and even if

this were the standard, the language regarding arbitration in the Houghs’

agreement is conspicious. The arbitration agreement is not procedurally

unconscionable.

                                         11
      The Federal Arbitration Act provides that an arbitration agreement “shall be

. . . enforceable, save upon such grounds as exist at law or in equity for [its]

revocation.” 9 U.S.C. § 2. The arbitration clause in the Houghs’ agreement is

neither procedurally nor substantively unconscionable. Because Regions is

entitled to “an order directing that such arbitration proceed in the manner provided

for in [its deposit] agreement,” id. § 4, we need not address the alternative

argument of Regions about severability.

                                IV. CONCLUSION

      We REVERSE the order that denied the renewed motion of Regions to

compel the Houghs to arbitration. We REMAND with instructions to compel

arbitration.

      REVERSED AND REMANDED WITH INSTRUCTIONS.




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