In Krinsk v. SunTrust Bank, Inc., the Eleventh Circuit held, in a matter of first impression for the court, that by amending her complaint to include a much broader class of litigants than envisioned in the original complaint, Krinsk had materially altered the litigation. As a result, SunTrust Bank ("SunTrust") must be allowed to rescind its previous waiver of the right to arbitrate under the agreement between the two parties. The courtreasoned that while the filing of an amended complaint does not ordinarily revive all defenses or objections previously by the answering party, "the defendant will be allowed to plead anew in response to an amended complaint, as if it were the initial complaint, when 'the amended complaint . . . changes the theory or scope of the case.'" Analogizing this principle, the court established that a defendant's waiver of the right to arbitrate will not automatically be rescinded upon the filing of an amended complaint. A defendant will be allowed to rescind this waiver only when "it is shown that the amended complaint unexpectedly changes the scope or theory of the plaintiff's claims." According to the court, by amending her complaint to redefine the class of litigants in a way that would open the suit to a much broader range of parties in her suit against SunTrust, Krinsk had materially altered the scope of the litigation so as to allow SunTrust to rescind its previous waiver of its right to arbitrate under the agreement between the two parties. In so ruling, the Eleventh Circuit fundamentally changed the way in which waivers of the right to arbitrate will be enforced throughout the jurisdiction in future litigation.
Dustin Morgan, When a Waiver Isn't Really a Waiver: Eleventh Circuit Establishes New Standard for Waiver of Right to Arbitrate After Filing of Amended Complain, 4 270 (2012).