NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0438n.06

                                           No. 11-4077
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                          Jun 17, 2014
                               FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk
ARLINGTON VIDEO PRODUCTIONS,)
INC.,                        )
                             )
      Plaintiff B Appellant, )
                             )                       ON APPEAL FROM THE UNITED
v.                           )                       STATES DISTRICT COURT FOR THE
                             )                       SOUTHERN DISTRICT OF OHIO
FIFTH THIRD BANCORP,         )
                             )
      Defendant B Appellee.  )                            OPINION
                             )

       Before: ROGERS and STRANCH, Circuit Judges; PEARSON, District Judge.*

       JANE B. STRANCH, Circuit Judge. Arlington Video Productions, Inc. (AArlington@)

filed suit against Fifth Third Bank (Athe Bank@)1 alleging individual and class claims for breach of

the Bank’s contractual obligation to inform customers in advance that certain service fees would

be charged to their accounts. The district court denied Arlington=s motion for class certification

and subsequently granted the Bank’s motion for summary judgment on Arlington=s individual

claim. Arlington appealed both decisions. We concluded that the district court erred in granting

summary judgment in favor of the Bank on Arlington=s individual claim and in denying

Arlington=s class certification motion. Observing that it was the district court’s prerogative to

       *
         The Honorable Benita Y. Pearson, United States District Judge for the Northern District of
Ohio, sitting by designation.
       1
        Arlington=s original Complaint incorrectly identified the defendant as Fifth Third
Bancorp, a holding company. The proper defendant is Fifth Third Bank, as specified in
Arlington=s First Amended Class Action Complaint.


                                                 1
define the class in accordance with our opinion and to make any refinements to the class definition

that might be necessary to manage the litigation, we reversed and remanded for further

proceedings. Arlington Video Prods., Inc. v. Fifth Third Bancorp, 515 F. App=x 426 (6th Cir.

2013). We denied the Bank’s petition for rehearing by the panel and for rehearing en banc. The

Bank filed a petition for a writ of certiorari. The Supreme Court granted the Bank’s petition,

vacated our prior judgment, and remanded the case to this court for further consideration in light of

Comcast Corp. v. Behrend, 
133 S. Ct. 1426
 (2013). Fifth Third Bancorp v. Arlington Video

Prods., Inc., 
134 S. Ct. 212
 (2013) (mem.) (GVR order).

       Recognizing that the GVR order does not necessarily imply that the Supreme Court has in

mind a different result in this appeal, see Tyler v. Cain, 
533 U.S. 656
, 666 n.2 (2001); Cmtys. For

Equity v. Mich. High Sch. Athletic Ass=n, 
459 F.3d 676
, 680 (6th Cir. 2006), we directed the parties

to file supplemental briefs on remand. Upon reconsideration, and for the reasons set forth below,

we REVERSE the grant of summary judgment in favor of the Bank on Arlington=s individual

claim and we REVERSE the district court’s order denying class certification. We REMAND

the case to the district court for further proceedings on Arlington=s individual claim and to

determine in the first instance whether class certification is appropriate. The district court should

undertake the class certification inquiry in accordance with the contract analysis we outline in this

opinion and in light of Supreme Court precedent, including but not limited to, Comcast Corp.,

Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 
133 S. Ct. 1184
 (2013), and

Wal-Mart Stores, Inc. v. Dukes, 
131 S. Ct. 2541
 (2011), and further in light of this court’s class

certification cases, particularly those cases decided after the district court initially denied

Arlington=s class certification motion in September 2010.



                                                 2
                                           I. FACTS

       Arlington is an Ohio corporation that provides video services to clients. Arlington=s sole

shareholder is Evan Newman, who at all times conducted Arlington=s business affairs. The Bank

is an Ohio corporation conducting business in twelve states:          Ohio, Kentucky, Michigan,

Tennessee, Indiana, Illinois, Missouri, Pennsylvania, West Virginia, North Carolina, Georgia, and

Florida.

       Arlington opened a business checking account with the Bank on August 3, 2000, known as

a Business 5/3 account. Newman signed a signature card that included seven paragraphs of

ATERMS AND CONDITIONS,@ the first two of which read:

       1.     The terms and conditions stated herein, together with resolutions or
       authorizations which accompany this signature card, if applicable, and the Rules,
       Regulations, Agreements, and Disclosures of Bank constitute the Deposit
       Agreement (AAgreement@) between the individual(s) or entity(ies) named hereon
       (ADepositor@) and the Bank.

       2.      This Agreement incorporates the Rules, Regulations, Agreements, and
       Disclosures established by Bank from time to time, clearing house rules and
       regulations, state and federal laws, recognized banking practices and customs,
       service charges as may be established from time to time and is subject to laws
       regulating transfers at death and other taxes.

R. 83-1, Page ID 3303 (emphasis added). When Newman signed the signature card, Arlington

granted the Bank a security interest in the account and agreed to allow the Bank at any time to Aset

off, against any balance in this account . . . any debt owed to Bank by any entity listed@ on the

account. Id. & 6. Arlington further agreed to all of the specified terms and conditions listed on

the signature card, acknowledged receipt of a Acopy of the Rules and Regulations, Agreements,

and Disclosures of Bank,@ and further agreed Ato the terms set forth therein.@ Id. & 7.




                                                 3
       The phrase ARules and Regulations@ referred to the Bank’s ARules & Regulations

Applicable To All Fifth Third Accounts and Cards June 1, 2000@ (hereinafter ARules &

Regulations@). R. 83-1, Page ID 3304B3338. Paragraph 9 of that document provided:

               These Rules and Regulations, as well as fees and charges contained on the
       Fee Schedule may be altered or amended at any time by the Bank and as altered or
       amended shall be binding on all Customers after having been made available in the
       offices of the Bank for fifteen (15) days or by such other method as specifically
       provided by law.

Id., Page ID 3307 (emphasis added). Paragraph 23 of the document specifically concerned a

Areturned item fee@ and provided: AWhen a deposited item is returned unpaid and charged back to

your account, the Bank reserves the right to charge a returned item fee.@ Id., Page ID 3310. The

Rules & Regulations also included a AFee Schedule,@ which listed the fee amounts to be charged

for at least twelve different bank services, but it did not include the Areturned item fee@ mentioned

in paragraph 23 of the Rules & Regulations, nor did it list a Adeposit adjustment fee@ or the amount

to be charged for that fee. Id., Page ID 3334. As Newman later learned, the Bank charged a

Adeposit adjustment fee@ if a business customer tendered multiple items for deposit, but totaled the

items incorrectly, requiring a bank employee to reconcile the deposit. Between August 2000,

when Arlington opened its account, and December 2007, when Arlington filed this lawsuit, the

Bank issued revised versions of the Rules & Regulations.

       On several occasions beginning in January 2001 and continuing through early 2007, the

Bank posted a non-itemized Aservice charge@ on Arlington=s monthly account statement and

deducted the amount of that charge from Arlington=s account. Upon receiving many of these

statements, Newman visited the Bank to inquire about the service charge. He learned that a

Aservice charge@ is comprised of separate fees. The two most often at issue were the Adeposit



                                                 4
adjustment fee@ and the Areturned item fee.@ Although Newman asked Bank employees to

produce documentation confirming that Arlington=s business account was subject to a Adeposit

adjustment fee,@ the Bank could not present any such writing. On most, if not all, of these

occasions, Newman asked the Bank to reverse the service charges, and the Bank did so.

According to Newman, the Bank reversed the service charges either because the Bank could not

determine what the charges were for or the Bank could not produce any documents to confirm that

the fees applied to Arlington=s account. The Bank asserts that it waived the service charges as a

courtesy to its customer.

       In January 2007, the Bank sent Arlington a letter asking it to choose one of three business

checking accounts listed in the letter. The Bank indicated its intent to assign Arlington to one of

the three accounts starting that month if Arlington did not make a choice. Arlington did not make

an election, and the January 2007 statement revealed that the Bank had placed Arlington in a

ABusiness Preferred Checking@ account. Newman later changed the account to a ABusiness

Advantage@ account and then to a ABusiness Basics@ account. He did not execute any new

documents when these changes were made, nor did he receive any documentation relating to the

changes to the account.

       In June 2007 the Bank revised the Rules & Regulations. The paragraph referring to fees

and charges, now paragraph 8 instead of paragraph 9, provided:

              These Rules and Regulations, as well as fees and charges contained on the
       Fee Schedule associated with your account(s) may be altered or amended at any
       time by the Bank and as altered or amended shall be binding on all Customers after
       having been made available in the offices of the Bank for fifteen (15) days or by
       such other method as specifically provided by law.

Appellant=s App=x, Vol. 1 at 130 (emphasis added). Like the 2000 version of the Rules &

Regulations, the 2007 version included a paragraph explaining the Areturned item fee.@ Id. at 134,

                                                5
& 21. The 2007 version did not include a AFee Schedule,@ but it did have a section entitled,

ASPECIAL FEES THAT APPLY TO ALL CONSUMER ACCOUNTS.@ Id. at 160B61. Listed

there were approximately thirty different fees, including a charge of $10.00 for a AReturned

deposited item.@ Id. at 161. The list did not include a Adeposit adjustment fee.@

       In August 2007, Arlington received a monthly account statement for July that included a

non-itemized Aservice charge@ for $41.00. As in the past, Newman visited the Bank and asked

about the service charge. The Bank provided Newman with a one-page computer printout

showing that the service charge was comprised of two deposit adjustment fees of $8.00 each and

two returned item fees of $12.50 each for a total service charge of $41.00. The Bank charged

Arlington $12.50 for each Areturned item fee@ even though the June 2007 Rules & Regulations in

effect at that time stated that the fee was $10.00. The Bank refused to waive the service charge

and also did not produce on Newman=s request a document confirming that the fees applied to

Arlington=s account.

       Newman took other steps to try to locate written confirmation of the fees applicable to

Arlington=s account. He explored the Bank’s website, but found nothing of help there. He

visited several bank branches asking for written confirmation of the fees applicable to Arlington=s

account, but no documentation was provided. Newman thus believed that Arlington was entitled

to rely on the Rules & Regulations as disclosing the fees that could be charged to Arlington=s

account.

       The Bank charged Arlington another deposit adjustment fee in September 2007, which

Newman also challenged. The Bank refused Newman=s request to refund the fee, prompting

Arlington to file suit against the Bank in December 2007.



                                                6
        Arlington contends that the Bank deducted fees from its account without ever providing a

Fee Schedule, product brochure, or other document to verify that Arlington=s account was subject

to a deposit adjustment fee or to a returned item fee in excess of the amount stated for that fee in the

Rules & Regulations. The only documentation the Bank produced on Newman=s request was the

August computer printout detailing the composition of the $41.00 fee charged in July, after the

charge had already been deducted from Arlington=s account.

        During discovery, the Bank provided Arlington with a comprehensive list of all fees

potentially applicable to Arlington=s account. The Bank produced that list by culling data from a

mainframe computer that is inaccessible to branch banks. Arlington asserts that the Bank’s

difficulty in providing the information Newman requested demonstrates that specific fee

information is not readily available to business customers.

        In support of its summary judgment motion, the Bank produced a variety of evidence,

including the testimony of certain bank managers. According to Greg Eiting, Manager of Retail

Operations, when the Bank Adecides to make a business account fee change, it sends notification of

the change to each of its branches at least fifteen days prior to implementation of the fee change so

that the representatives at those branches can adequately discuss the fee with the customers

impacted by the change.@ Appellant=s App=x. Vol. 2 at 369. William Curry, Enterprise Program

Manager, averred that the Bank Aalways provides information regarding fee changes for business

accounts to its financial center branches at least fifteen days prior to that change becoming

effective.@ R. 82-2, Curry Second Decl. && 6B7. Further, the Bank Aupdates its branches on a

weekly basis regarding new applicable fees, changes in fee amounts, effective dates of fee

changes, and other information concerning changes to business account fees.@ Id. Documents

supporting these general statements are notably absent from the summary judgment record.

                                                   7
       Curry further stated that the Anature and amount of the deposit adjustment fee of $6.00 was

made available in the offices of [the Bank] for at least fifteen days before [the Bank] charged

Arlington Video that fee,@ and the Bank increased the amount of that fee from $6.00 to $8.00 in

January 2006. AInformation regarding this change in the amount of the deposit adjustment fee

was made available in the offices of [the Bank] for at least fifteen days before [the Bank] charged

Arlington Video the deposit adjustment fee of $8.00.@ Id. & 8. Curry attested that the returned

item fee changed from $10.00 to $12.50 in January 2006,2 and that A[i]nformation regarding this

change . . . was made available@ in the Bank’s offices Afor at least fifteen days@ before the Bank

charged the $12.50 fee to Arlington. Id. & 11.

       Additionally, the Bank produced testimony that it tailors the notice it gives to customers

based on the specific changes being implemented and that its customers are notified of fee changes

by various means, including statement inserts, letters, product brochures, signs posted in branch

banks, the customer call center, and the internet. According to the Bank, Arlington never utilized

the Bank’s commercial call center. Further, the Bank’s testimony noted that determining which

service fees apply to a customer is primarily dependent on the products and services used by that

customer and is unique for each customer. A business customer can determine in advance the

fees that may be applicable by maintaining a Treasury Management account and negotiating the

applicable fees with the Bank.

       Newman testified that the Bank did not accurately list the fees applicable to Arlington=s

account on any Fee Schedule or in any product brochures; that Arlington did not receive any form

of written notice about the fees or amendments to fees applicable to its account other than what

       2
           Curry did not explain why the June 2007 Rules & Regulations listed a returned item fee of
$10.00.


                                                  8
was stated in the Rules & Regulations; that every time a service charge was deducted from

Arlington=s account he was required to visit the Bank to inquire what the charge was for; and that

the Bank’s employees could not tell him why the fees were charged because they could not figure

out which fees were applicable to Arlington=s account. Newman points out that the ABusiness

Banking Product Descriptions,@ which are available to bank employees on the Bank’s intranet for

use in explaining accounts and fees to bank customers, are very complicated and expressly state

that they are AFor Internal Use Only,@ and ANote: Other fees may apply.@

       James Bingham, the Bank’s Senior Manager of Applications Development, testified about

the Bank’s computer pricing methodology. To do so, he referred to documents printed from the

Bank’s mainframe computer that are hundreds of pages in length. Other charts in the record

confirm the complex nature of the Bank’s fee charges. It appears, however, that the Bank is

capable of determining the number of Ohio business checking account customers who were

charged a non-negotiated deposit adjustment fee since December 2002.

       Arlington filed this action in December 2007 in Ohio state court. The Bank removed the

lawsuit to federal court under the Class Action Fairness Act, 28 U.S.C. ' 1332(d). In a First

Amended Complaint, Arlington asserted individual and class claims for violations of the Ohio

Deceptive Trade Practices Act, Ohio Rev. Code Ann. ' 4165.02(A)(11), breach of contract and the

duty of good faith and fair dealing, and unjust enrichment. Arlington generally alleges that the

Bank can charge a business customer fees for services as long as those fees are disclosed in writing

to the customer before they are deducted from the account. On the Bank’s motion, the district

court dismissed all claims with the exception of the breach of contract claim.           Following

discovery, the court denied Arlington=s motion for class certification and, on cross-motions for



                                                 9
summary judgment, the district court entered judgment in favor of the Bank on Arlington=s

individual claim. Arlington timely appealed, and we have jurisdiction under 28 U.S.C. ' 1291.

                                         II. ANALYSIS

       Our first task is to review the grant of summary judgment to the Bank on Arlington=s

breach of contract claim. We conclude that the district court improperly granted summary

judgment in favor of the Bank and against Arlington.

A. Individual Breach of Contract Claim

       1. Standard of Review

       We examine de novo a district court’s grant of summary judgment. Binay v. Bettendorf,

601 F.3d 640
, 646 (6th Cir. 2010). We consider summary judgment properly granted Aif the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.@ Fed. R. Civ. P. 56(a). The factual evidence, as well as the

reasonable inferences drawn from the evidence, are viewed in favor of the nonmoving party.

Banks v. Wolfe Cnty. Bd. of Educ., 
330 F.3d 888
, 892 (6th Cir. 2003). A genuine issue of material

fact exists for trial Aif the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.@ Anderson v. Liberty Lobby, Inc., 
477 U.S. 242
, 248 (1986).

       2. Breach of Contract Under Ohio Law

       To prevail on a claim for breach of contract under Ohio common law, Arlington must

prove the following elements by a preponderance of the evidence:           (1) a contract existed,

(2) Arlington fulfilled its contractual obligations, (3) the Bank failed to fulfill its contractual

obligations, and (4) Arlington incurred damages as a result of the Bank’s failure. See Langfan v.

Carlton Gardens Co., 
916 N.E.2d 1079
, 1087 (Ohio Ct. App. 2009). Construction of a written

contract, including the determination of whether the contract=s terms are ambiguous, is a question

                                                10
of law for the court, and in making our inquiry we give effect to the intent of the parties in making

the contract. Savedoff v. Access Group, Inc., 
524 F.3d 754
, 763 (6th Cir. 2008) (applying Ohio

law); Beasley v. Monoko, Inc., 
958 N.E.2d 1003
, 1011 (Ohio Ct. App. 2011). The parties’ intent

is presumed to lie in the language they used in their agreement. Beasley, 958 N.E.2d at 1011.

We must read the contract as a whole and give effect to every part of it, if possible. See id.

       If the parties dispute the meaning of their contract, the court first considers the four corners

of the document to decide if an ambiguity exists. Id. at 1012. If the contract terms are clear and

precise, the contract is not ambiguous, and the court is not permitted to consider any evidence

concerning the parties= intent that is outside the contract itself. Id. at 1012. If the parties= intent

cannot be discerned from the four corners of the agreement or if the language is susceptible of two

or more reasonable interpretations, the meaning of the language is construed against its drafter,

and a question of fact must be decided by a jury. Geczi v. Lifetime Fitness, 
973 N.E.2d 801
,

805B06 (Ohio Ct. App. 2012). Contract language can be interpreted by the court on summary

judgment if the contract=s terms are clear and unambiguous or, if the contract language is

ambiguous, the extrinsic evidence supports only one of the conflicting interpretations,

notwithstanding the ambiguity. United Rentals (N. Am.), Inc. v. Keizer, 
355 F.3d 399
, 406 (6th

Cir. 2004).

       One of the disputes in this case centers on the third element of the claim: whether the

Bank fulfilled its obligations under the contractual agreement with Arlington.3 The parties agreed

in their contract that the Bank could collect service charges, with Arlington giving the Bank a

       3
         At oral argument, Arlington conceded that it did not point the district court to any
ambiguity in the contract language. As a result, Arlington raises ambiguity for the first time on
appeal and that issue is not properly before us. See United States ex rel. Wall v. Circle C Constr.,
L.L.C., 
697 F.3d 345
, 357B58 (6th Cir. 2012).


                                                  11
security interest in its business checking account to permit the Bank to withdraw any debt

Arlington owed to the Bank. Our inquiry is directed to what the parties’ contract required of the

Bank with respect to apprising its business customers of the applicability and amount of particular

service fees.

       The district court focused on whether the Bank breached its contractual obligation to notify

Arlington concerning any changes in fees because the deposit adjustment fee did not appear on any

comprehensive fee list which was made available to or given to Newman. The court concluded

that Athe Rules and Regulations do not require that a charged fee appear on a >then current Fifth

Third Fee Schedule= or any other compiled list of fees and the Bank is permitted to charge any fee

as long as prior notice of the fee is provided in an appropriate manner to the customer. The court

further reasoned:

              The language of & 9 of the Rules and Regulations indicates that as long as
       information concerning the altered or amended rule, regulation, fee or charge was
       made available in defendant=s offices for fifteen days prior to the fee or charge
       being imposed, or the customer was notified of the amendment or alteration by
       some other method provided by law, the change in the fee or charge is binding on
       defendant=s account holders.

R. 92, Page ID 3689.

       When the district court referred to paragraph 9 of the Rules & Regulations in effect in

2000, the court overlooked an important contractual phrase. Paragraph 9 actually stated that

A[t]hese Rules and Regulations, as well as fees and charges contained on the Fee Schedule@ could

be altered or amended as specified in that paragraph. R. 83-1, Page ID 3307 (emphasis added).

Paragraph 8 of the Rules & Regulations in effect in 2007 was even more specific, stating that

A[t]hese Rules and Regulations, as well as fees and charges contained on the Fee Schedule

associated with your account(s)@ could be altered or amended as provided in that paragraph.


                                                12
Appellant=s App=x, Vol. 1 at 130 (emphasis added). The language employed in both of these

versions presupposed that the Bank had stated the fees and charges applicable to the account on the

AFee Schedule@ before the Bank would take any action to alter or amend those fees and charges by

following the procedure set forth in paragraph 9 (2000 version) or paragraph 8 (2007 version).

We interpret this unambiguous language to mean that the Bank accepted a contractual obligation

to disclose to its customers in writing on a AFee Schedule@ all of the fees and charges Aassociated

with@ the account or potentially applicable to the account.

       The district court reached its contrary interpretation by disregarding the words, Acontained

on the Fee Schedule@ or Acontained on the Fee Schedule associated with your account(s).@ The

court’s approach did not consider the contract as a whole or give effect to every part of it. See

Beasley, 958 N.E.2d at 1011. Only by omitting the specified contractual phrases could the court

reach its conclusion that the Bank could alter, amend, and presumably add fees and charges Aso

long as the information concerning fees was made available in defendant=s offices for fifteen days

prior to the imposition of the fees.@ R. 92, Page ID 3690. This interpretation of the contract was

erroneous as a matter of law. See Savedoff, 524 F.3d at 763; Beasley, 958 N.E.2d at 1011.

       The district court then credited the Bank’s evidence without considering contrary evidence

presented by Arlington. Bank managers testified that the Bank updated its branch offices weekly

about new fees, changes in fees, effective dates of fee changes, and similar information; that the

Bank Aalways@ provides information to its branches at least fifteen days prior to the effective date

of a fee change; and that the Bank tailors the notice it gives to personal and business customers

based on the specific changes being implemented by using statement inserts, letters, product

brochures, signs posted in branch banks, the customer call center, and the internet.



                                                13
       This general testimony lacked specific detail and evidentiary support. As the moving

party, the Bank has the burden to identify those portions of the record Awhich it believes

demonstrate the absence of a genuine issue of material fact.@ See Celotex Corp. v. Catrett, 
477 U.S. 317
, 323 (1986). Moreover, some of the Bank’s evidence related to personal bank accounts,

which are governed by the Truth in Savings Act. 12 U.S.C. '' 4301B4313. That Act, however,

does not apply to Arlington=s business account. See 12 U.S.C. ' 4313(1) (AThe term >account=

means any account intended for use by and generally used by consumers primarily for personal,

family, or household purposes.@).

       In contradiction to the Bank’s evidence, Newman testified that Arlington did not receive

any written fee information from the Bank, other than a copy of the Rules & Regulations, before

fees were assessed to Arlington=s account. After the fees were assessed in one non-itemized

Aservice charge,@ Newman visited a branch bank seeking written information about the

composition of the Aservice charge@ and written documentation that the fees applied to Arlington=s

account, but very little information was provided to him. The only written documentation

Newman received was an August 2007 computer printout showing the composition of the $41.00

service charge for July, after the amount had already been deducted from Arlington=s account.

Newman took other steps to obtain information. He visited other branch banks seeking written

confirmation that the fees charged actually applied to Arlington=s account, but bank tellers were

unable to provide such documentation. He looked at the Bank’s internet website, but he did not

find any fee information available there.

       The district court summarily disregarded Arlington=s evidence, reasoning that the Bank’s

inability to justify the fees after they had been assessed was immaterial to the ultimate issue of



                                               14
whether the Bank informed its customers of the fees before they were charged. But this analysis

misses the precise point Arlington makes. If the Bank possessed written documentation to show

business customers all of the potentially applicable fees before those fees were charged, surely the

Bank would have produced it to Newman when he inquired or at the very least the Bank would

have disclosed it during discovery and provided it to the court to support the Bank managers’

declarations.

       Similarly, if the Bank Amade available in the offices of the Bank for fifteen (15) days or by

such other method as specifically provided by law@ information about anticipated alterations or

amendments to fees, it stands to reason that the Bank would have produced that material. The

Bank’s obvious inability to produce any documentation that it provided to business customers or

Amade available in the offices of the Bank@ before charging fees is circumstantial evidence that no

such documentation existed. See V & M Star Steel v. Centimark Corp., 
678 F.3d 459
, 469 (6th

Cir. 2012) (observing that V & M Star Steel Aproduced sufficient circumstantial evidence to justify

a jury trial@); Newell Rubbermaid, Inc. v. Raymond Corp., 
676 F.3d 521
, 531 (6th Cir. 2012)

(noting that circumstantial evidence is sufficient to survive summary judgment). Only after this

lawsuit was filed did the Bank resort to its mainframe computer to produce hundreds of pages of

fees potentially applicable to Arlington=s business account. Yet, it appears that this information

was not accessible to the staff in the branch banks.

       The Bank contends that it fulfilled its contractual obligations if it made information about

fee alterations or amendments available to staff in the branch banks and not to business customers.

This argument disregards the intent of the parties as expressed in their unambiguous contract

language. The Rules and Regulations provided that fee alterations and amendments Ashall be

binding on all Customers after having been made available in the offices of the Bank for fifteen

                                                15
(15) days or by such other method as specifically provided by law.@ The emphasized language

evidences the parties’ intent to create a notice provision. In other words, the Bank agreed to

notify its business customers of contemplated changes to fees fifteen days before the effective date

of those changes. Once proper notice of the changes was provided, the customers agreed to be

bound by the changes. This language did not obligate Arlington to contact the Bank every fifteen

days to inquire whether any new fees or fee modifications affecting its account were about to take

effect. Rather, the contract placed the obligation on the Bank to give the business customer

proper advance notice of any impending fee changes, after which the changes would be binding on

the customer.

       In summary, we conclude that the critical contract language must be considered in

interpreting the agreement between the Bank and Arlington. In our interpretation of the contract,

we consider all of the evidence presented and draw all reasonable factual inferences in favor of

Arlington. See Banks, 330 F.3d at 892. When we do so, genuine issues of material fact emerge

for trial concerning whether the Bank fulfilled its contractual obligation to disclose all fees and

charges applicable to business accounts on the AFee Schedule@ associated with the account and

whether the Bank provided fifteen days= advance notice to business customers of any anticipated

fee alterations or amendments.

       3. The Bank’s Defenses

       The Bank contends that Arlington=s breach of contract claim is barred by the voluntary

payment doctrine and the contractual statute of limitations. We disagree on both counts.

       Under Ohio law, money voluntarily paid by one person laboring under a mistake of fact to

another person who claims the right to such payment is generally recoverable, but money

voluntarily paid as a result of a mistake of law is not. See State ex rel. Dickman v. Defenbacher,

                                                16

86 N.E.2d 5
, 7 (Ohio 1949) (per curiam); Consol. Mgmt., Inc. v. Handee Marts, Inc., 
671 N.E.2d 1304
, 1307 (Ohio Ct. App. 1996). ASimply stated, >a person who voluntarily pays another with

full knowledge of the facts will not be entitled to restitution.=@ Scott v. Fairbanks Capital Corp.,

284 F. Supp. 2d 880
, 894 (S.D. Ohio 2003) (quoting Randazzo v. Harris Bank Palatine, 
262 F.3d 663
, 667 (7th Cir. 2001)).

       Viewed most favorably to the non-moving party, the evidence shows that Arlington did not

voluntarily pay the Bank the fees with full knowledge of the facts. The Bank did not disclose to

Arlington all of the facts relating to the deposit adjustment fee or the increase in the returned item

fee before automatically withdrawing those fees from Arlington=s account and listing unexplained

Aservice charges@ on the monthly bank statements. Newman had to contact the Bank to question

the composition and applicability of the Aservice charges.@ Cf. Harris v. ChartOne, 
841 N.E.2d 1028
, 1032 (Ill. App. Ct. 2005) (holding plaintiffs voluntarily paid charges listed on invoices

where they made no effort to investigate the exact nature of the fees charged). In response to

Newman=s inquiries, the Bank could not produce any documentation confirming that these fees, in

the amounts charged, were applicable to Arlington=s account. On this record, the voluntary

payment doctrine does not bar Arlington=s breach of contract claim as a matter of law. See Nelson

v. Am. Power & Light, No. 2:08-cv-549, 
2010 WL 3219498
, *12B14 (S.D. Ohio Aug. 12, 2010).

       The Bank points out that Arlington received actual notice of the Adeposit adjustment fee@

and the proper amount of the Areturned item fee@ before August 2007 because charges for those

fees appeared on Arlington=s monthly bank statements. But evidence that a general Aservice

charge@ was posted on the bank statements does not necessarily compel a finding that Arlington

knew what the charge was for without further investigation. The ultimate issue is whether the



                                                 17
Bank honored its contractual obligation as stated in the Rules & Regulations to disclose the fees

and any changes to them before assessing the fees and whether Arlington had full knowledge of

the facts before paying the fees.

       Next, the Bank argues that Arlington=s suit to recover fees incurred prior to July 2007 is

barred by the contractual statute of limitations. Under Ohio law, parties can agree by contract to

shorten the applicable statute of limitations if the time limit is reasonable and the contract language

is clear and unambiguous. Angel v. Reed, 
891 N.E.2d 1179
, 1181 (Ohio 2008); R.E. Holland

Excavating Co. v. Montgomery Cnty. Bd. of Comm=rs, 
729 N.E.2d 1255
, 1259 (Ohio Ct. App.

1999); Universal Windows & Doors, Inc. v. Eagle Window & Door, Inc., 
689 N.E.2d 56
, 59 (Ohio

Ct. App. 1996); Arcade Co. Ltd. v. Arcade, LLC, 105 F. App=x 808, 810 (6th Cir. 2004). The

Ohio Supreme Court ruled that a clear and unambiguous two-year statute of limitations in an

automobile insurance policy was reasonable and enforceable. Angel, 891 N.E.2d at 1181. In

R.E. Holland Excavating Company, the parties agreed that certain claims and disputes between

them would be subject to a resolution process governed by specific notice periods, potentially

culminating in a sixty-day period to file Aa formal proceeding . . . in a forum of competent

jurisdiction to exercise such rights or remedies as the appealing party may have with respect to

such claim, dispute or other matter in accordance with applicable laws and Regulations.@

729 N.E.2d at 1257. The Ohio Court of Appeals upheld that contractual clause as a reasonable

reduction in the length of the statutory limitations period. Id. at 1259. The same court later held

that a dealer agreement providing for a one-year period to file suit for breach of the agreement was

a reasonable and enforceable contractual statute of limitations. Universal Windows & Doors, 689

N.E.2d at 58B59.



                                                  18
       In this case, however, the language of the Rules & Regulations does not clearly and

unambiguously shorten the Ohio breach-of-contract statute of limitations applicable to Arlington=s

lawsuit against the Bank. Paragraph 28 of the June 2007 version provided in pertinent part:

               Customer agrees to carefully examine and reconcile account statements. . . .
       Customer agrees that Bank will not be liable if Customer fails to exercise ordinary
       care in examining their (sic) statements. Customer will notify Bank of any
       discrepancy with any item, including, but not limited to, deposits, withdrawals, and
       checks, within thirty (30) days of the statement mailing or made available to
       customer date. . . . If notification is not received, Bank will have no liability for
       such item(s).

       The plain language of this provision Aneither mentions nor purports to limit any >action,=

>lawsuit,= or >demand.=@ Arcade Company Ltd., 105 F. App=x at 810. At most this paragraph

attempts to release the Bank from liability if its customer fails to exercise ordinary care in

examining and reconciling its bank statements and fails to notify the Bank of Aany discrepancy

with any item@ within thirty days. A[U]nder Ohio=s case law, something more than this language

is required to support a finding that the parties intended to modify the statute of limitations.@ Id.

No language like that used in the contracts at issue in Angel, Universal Windows & Doors, or R.E.

Holland Excavating Company is found in the Bank’s Rules & Regulations. See id. at 811. AIn

the absence of such language, we will not infer an intent to create a contractual limitation period.@

Id. (noting that the finality achieved by a statute of limitations Amust be made manifest in clear,

unequivocal language.@)

       Accordingly, the Bank’s defenses fail. Summary judgment in favor of the Bank was not

warranted on Arlington=s individual breach of contract claim.




                                                 19
B. Class Certification

        The district court denied Arlington=s motion to certify a class action, and Arlington now

appeals. Reversal is warranted because the district court premised its decision on an incorrect

interpretation of the Bank’s contractual obligation to its customers. Reversal will also provide the

district court with an opportunity to consider recent legal developments affecting the class

certification issue.

        1. Standard of Review

        The district court has broad discretion to decide whether to certify a class, and we review

its certification determination for an abuse of discretion. In re Whirlpool Corp. Front-Loading

Washer Prods. Liab. Litig., 
722 F.3d 838
, 850 (6th Cir. 2013), cert. denied, 
82 U.S.L.W. 3236

(U.S. Feb. 24, 2014). AAn abuse of discretion occurs if the district court relies on clearly

erroneous findings of fact, applies the wrong legal standard, misapplies the correct legal standard

when reaching a conclusion, or makes a clear error of judgment.@             Id. (quoting Young v.

Nationwide Mut. Ins. Co., 
693 F.3d 532
, 536 (6th Cir. 2012)). We will find an abuse of discretion

if we reach a firm and definite conviction that the district court committed a clear error of

judgment. Id.

        2. The District Court Will Have the Opportunity to Reconsider Class Certification

        At the time the district court denied class certification, it did not have the benefit of our

analysis of the contractual relationship between Arlington and the Bank that is explained in this

opinion. Because the district court misconstrued the Bank’s contractual obligation to Arlington

under the Bank’s own Rules & Regulations, the denial of class certification similarly rested on a

misapprehension of the Bank’s contractual obligations to its customers. The district court’s error

amounts to an abuse of discretion warranting reversal.

                                                 20
       On remand, the district court will have the opportunity to reconsider Arlington=s breach of

contract claim and the motion for class certification in light of this opinion and recent

developments in class action law. The district court issued its class certification decision in

September 2010, nine months before the Supreme Court released its decision in Wal-Mart Stores,

Inc. v. Dukes, 
131 S. Ct. 2541
 (2011). The Supreme Court thereafter issued other important class

action decisions, including Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 133 S.

Ct. 1184 (2013), and Comcast Corp. v. Behrend, 
133 S. Ct. 1426
 (2013). Similarly, this court has

issued numerous class action decisions since late 2010.

       In our prior opinion, we outlined in some detail the reasons why Arlington may be able to

satisfy the class action prerequisites of Federal Rule of Civil Procedure 23. This explanation was

not intended to certify the class for the first time on appeal, as Arlington clearly acknowledged in

its response to the Bank’s supplemental briefing. Our intention was to provide guidance to the

district court in making its decision on remand. We remand the case to the district court to

determine in the first instance whether class certification is appropriate in light of Comcast Corp.

and other pertinent cases. Because of recent legal developments affecting the case, the district

court should grant Arlington leave to amend the motion for class certification and should allow the

Bank to file a response to the amended motion.

                                         III. CONCLUSION

       We conclude that the district court erred in granting summary judgment in favor of the

Bank on Arlington=s individual breach of contract claim. Genuine issues of material fact exist

regarding whether the Bank fulfilled its contractual responsibilities. The court misapprehended

the Bank’s contractual obligations to its customers and this same predicate error led it to deny

Arlington=s motion to certify a class.

                                                 21
        Accordingly, in light of our conclusions and the Supreme Court’s GVR order, we

REVERSE the grant of summary judgment in favor of the Bank on Arlington=s individual claim

and we REVERSE the district court’s order denying class certification. We REMAND the case

to the district court for further proceedings, consistent with this opinion. It is the district court’s

prerogative to decide in the first instance whether Arlington can satisfy the prerequisites of Rule

23. In ruling on the class certification issue, the district court should take into consideration

Comcast Corp. v. Behrend, Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 133 S.

Ct. 1184 (2013), Wal-Mart Stores, Inc. v. Dukes, 
131 S. Ct. 2541
 (2011), and this court’s class

certification cases.




                                                  22


Case Information

Case Name: Arlington Video Production, Inc. v. Fifth Third Bancorp

Court: ca6

Year: 2014-06-17