Federal Arbitration Act
Fuller v. Cadence Bank
Date: August 28, 2026
Issue: Whether a financial institution can amend an arbitration clause in a deposit account agreement by notifying the customer and having the customer continue to use the account.
Case Summary: ABA and the Mississippi Bankers Association filed a coalition amicus brief urging the Supreme Court of Mississippi to affirm a Mississippi trial court’s order compelling arbitration and hold that banks may amend deposit agreements, including arbitration clauses, through notice and continued account use.
In 2025, Robert Fuller sued Cadence Bank, alleging it negligently processed four wire transfers totaling about $1.18 million. Fuller claimed a third party scammed him into sending the money to gold and cryptocurrency merchants. Fuller had maintained accounts with Cadence and its predecessor banks for decades. His deposit agreements allowed the bank to change the account terms after providing reasonable notice. In 2021, BancorpSouth, a predecessor to Cadence Bank, sent Fuller new account terms that added a consumer arbitration provision. BancorpSouth told Fuller that continued use of his accounts would bind him to the new terms. Fuller continued to use his accounts and, in June 2024, signed four wire transfer forms that incorporated the bank’s deposit terms. Fuller later sought $10 million in damages.
Judge Grady Tollison of the Circuit Court of Union County, Mississippi, granted Cadence’s motion to compel arbitration and stayed the case. The court found that Cadence Bank gave Fuller notice of the 2021 terms and that Fuller continued to use his accounts after receiving them. The court also noted that Fuller signed four wire transfer forms that incorporated the deposit terms. Based on these facts, the court held that the 2021 terms governed Fuller’s accounts when he made the transfers. The court also held that the arbitration provision was valid and enforceable and covered Fuller’s claims. Fuller appealed the circuit court’s decision.
In its brief supporting Cadence Bank, ABA argued that amending a deposit agreement by notice and continued use is legally valid and commercially indispensable. Notice-and-continued use follows ordinary contract principles because Mississippi law allows a party to show assent through conduct rather than only through a signature. Put differently, when a financial institution gives a customer reasonable notice of new terms and states that continued account use will show acceptance, the customer accepts those terms by continuing to use the account. ABA noted that Mississippi courts and federal courts applying Mississippi law have enforced deposit-account changes this way, including changes that added arbitration clauses.
ABA also maintained that the notice-and-continued-use amendment is a practical necessity, and the “signature-for-every-change” rule Fuller proposed is impossible. Fuller proposed that financial institutions obtain a new physical signature from a customer each time it changes a term in a deposit agreement. ABA stressed that such a rule would disrupt ordinary banking, burden banks and customers, and require institutions to obtain new signatures from millions of account holders whenever they update account terms. Financial institutions must regularly revise long-term deposit agreements to address changes in law, technology, security, products, and business operations.
ABA argued that to the extent the Mississippi Supreme Court’s decision in Union Planters Bank, N.A. v. Rogers exempts arbitration provisions from the notice-and-continued-use amendment, the Federal Arbitration Act preempts it. Rogers held that notice and continued use are insufficient for arbitration clauses. However, ABA emphasized the FAA’s equal-footing principle forbids state courts from subjecting arbitration agreements to defenses or formation rules that do not apply to contracts generally. ABA underscored that Rogers conflicts with this principle because it allows banks to amend other deposit-account terms through notice and continued use but requires a heightened form of assent for arbitration provisions. That arbitration-specific rule singles out arbitration for different treatment. Even more so, ABA pointed out that the Mississippi Supreme Court has recognized the equal-footing doctrine and stated that Rogers cannot be reconciled with it.
For these reasons, ABA urged the court to reject Rogers to the extent it requires a different standard for adding arbitration provisions and to confirm that banks may amend arbitration terms through the same notice-and-continued-use process that applies to other deposit-account terms.
Bottom Line: The Mississippi Supreme Court will decide whether banks may add arbitration clauses to deposit agreements through notice and continued account use, or whether those clauses require a higher level of customer assent.
Document: Brief
