SCOA: Bank-Customer Arbitration Provision Unenforceable Due to Lack of Mutuality

Bank of the Ozarks, Inc. v. Walker, 2016 Ark. 116, 487 S.W.3d 808 (2016).

Circuit court denied banks’ motion to enforce arbitration agreement in class action filed by customers. The Supreme Court of Arkansas affirmed holding that the arbitration agreement was unenforceable because there was no mutuality of obligation.

The supreme court noted that the agreement required the bank’s customers to pay all of the bank’s expenses incurred in good faith relating to the agreement, yet it did not impose that same obligation on the bank.

The supreme court also noted that the arbitration agreement contained provisions stating that no waiver could be deemed by the bank’s failure to enforce any available right or remedy, yet there was no similar non-waiver provision in favor of the customers.

Opinion date: March 17, 2016.