Motion to compel arbitration (and kill the TCPA class action) DENIED.
Banks and other multi-product companies often try to use an arbitration clause from one product to cover claims about a different product. This order draws a clear line. It separates “all disputes” clauses from “arising from or relating to” clauses. The Court also rejected the idea that calling a clause “broad” or “expansive” settles anything.
In Ertl v. Fulton Bank, N.A., No. 3:26-cv-00011, 2026 U.S. Dist. LEXIS 246324 (W.D. Va. Oct. 27, 2026), the Western District of Virginia denied a bank’s motion to compel arbitration in a TCPA class action over a prerecorded loan pitch.
The plaintiff had put his cell number on the National Do-Not-Call Registry and had told the bank he didn’t want solicitation calls. He got a prerecorded call anyway, inviting him to contact the bank if he was in the market for a new loan. When he called to complain, a representative reportedly told him the bank’s records showed he had “previously requested to be opted out of marketing communications and that he should not have received such a call.” Hard to argue with your own records.
So the bank argued arbitration instead. Back in 2018, the plaintiff had opened a checking account and signed a signature card incorporating the bank’s deposit account rules, which included an arbitration clause. That account was closed for inactivity in January 2023, three years before the call.
The bank won round one. It first attached a version of the rules that took effect after the account was already closed. On reply, it produced the older versions, and the Court found the plaintiff had agreed to arbitrate.
Round two went the other way. The clause covered claims only that “arise from or relate to” the account and a specific list of features like debit cards, transfers, and overdraft services. Because the list had no “including, but not limited to” language, the Court found it “exclusive, not illustrative.”
The bank leaned on Mey v. DIRECTV, LLC, 971 F.3d 284 (4th Cir. 2020), and Smith v. Walmart, Inc., No. 7:22-cv-00568, 2023 WL 5215376 (W.D. Va. Aug. 14, 2023). The Court called both “readily distinguishable,” because those clauses covered all disputes between the parties. This one didn’t.
The facts didn’t help the bank either. The plaintiff’s cell number wasn’t on the checking account paperwork. The bank got it from his loan application. According to the Court, the bank could have placed the call even if the checking account had never existed.
That made the case look a lot like Wachovia Bank, Nat’l Ass’n v. Schmidt, 445 F.3d 762 (4th Cir. 2006), where the Fourth Circuit refused to stretch one arbitration clause across two separate relationships with the same bank. Here, the plaintiff was both a depositor and a borrower. A call pitching a new loan related, at most, to the borrower side.
The bank repeatedly described its clause as “broad” and “expansive.” The Court was unmoved: “But the question before the court is not whether the provision is ‘broad,’ ‘expansive,’ or any other synonym.” Citing EEOC v. Waffle House, Inc., 534 U.S. 279 (2002), the Court added that the federal policy favoring arbitration does not require it to “reach a result inconsistent with the plain text of the contract.”
And that is the right conclusion.
Motion denied. The class case stays in court, and the thesaurus goes back on the shelf.
