On October 26th, the Eleventh Circuit affirmed the district court’s finding that the defendant banks waived their right to compel the arbitration of customer disputes alleging that the banks unlawfully charged overdraft fees on checking accounts. The customer agreements at issue provide that either party may compel arbitration on an individual, not a classwide, basis. The district court twice invited defendants to move to compel arbitration but defendants did not do so until after the Supreme Court held that the Federal Arbitration Act preempts state laws that condition the enforceability of consumer arbitration agreements on the availability of classwide procedures. The Eleventh Circuit holds that the Supreme Court decision established no new law and it would not have been futile for defendants to argue preemption. Defendants therefore waived their right to compel arbitration. Garcia v. Wachovia Corp.