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Burns v. First American Bank

December 19, 2006

THOMAS BURNS AND MARK LARSEN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
FIRST AMERICAN BANK, DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiffs Thomas Burns and Mark Larsen ("Plaintiffs") bring this action against First American Bank ("Defendant" or "First American") alleging violations of the Electronic Funds Transfer Act ("EFTA"), 15 U.S.C. § 1693 et seq., and Regulation E of 12 C.F.R. 205 et seq. EFTA requires an Automatic Teller Machine ("ATM") operator to provide notice to consumers when a fee is being imposed and the amount of any such fee. An ATM operator must provide such notice on the machine itself and on the display screen before the consumer is irrevocably committed to completing the transaction. Defendant is an ATM operator, Plaintiffs are consumers that used two of Defendant's ATMs. Plaintiffs allege that the ATMs did not contain the required notice.

Plaintiffs move to certify a class of consumers seeking statutory damages for Defendant's alleged non-compliance with EFTA. Because Plaintiffs have met their burden under Federal Rule of Civil Procedure 23, the Court certifies a class consisting of all persons nationally who, from November 28, 2003 to December 1, 2004 ("the Class Period"): (1) were charged a "transaction fee" for the use of ATMs (Nos. S1A5260 and S1A5261) located in the Chicago Hilton and Towers at 720 South Michigan Avenue in Chicago, Illinois; (2) in an amount different from the "transaction fee" disclosed on the fee notice posted on the outside of those ATMs.

Background

On August 16, 2004, Plaintiff Larsen withdrew money from ATM number S1A5261 located in the lobby of the Chicago Hilton and Towers Hotel. (Compl. ¶ 22.) On November 23, 2004, Plaintiff Burns withdrew money from ATM number S1A5260 also located in the lobby of the Chicago Hilton and Towers Hotel. (Compl. ¶ 16.) First American owned and operated ATMs S1A5260 and S1A5261. (Compl. ¶¶ 17, 23.) Located on each machine was a notice that provided:

Fee Notice

The owner of the terminal, First American Bank, charges a fee to U.S. cardholders of $2.00 for withdrawing cash if the transaction is performed using a card that was not issued by First American Bank.

This charge is in addition to any fees that may be assessed by your financial institution. This additional charge will be added to the transaction amount and deducted from your account. (Compl. ¶¶ 18, 24.) Prior to completing their transactions, Plaintiffs were prompted on the screen with the notice that:

THE AMOUNT CHARGED TO YOUR ACCOUNT WILL INCLUDE A FEE OF $2.50

IN ADDITION TO THE REQUESTED AMOUNT. THIS IS IN ADDITION TO ANY FEE CHARGED BY YOUR FINANCIAL INSTITUTION.

DO YOU WISH TO CONTINUE?

YES >

NO >

(Plaintiffs' Reply Memorandum in Further Support of Plaintiffs' Motion for Class Certification, Ex. 2.) Plaintiffs were charged $2.50 for withdrawing money from ATMs S1A5260 and S1A5261. (Compl. ¶¶ 20-21, 26.) Other consumers who used ATMs S1A5260 and S1A5261 during the Class Period also were charged $2.50. (Compl. ¶ 31.)

The Electronic Funds Transfer Act

Congress passed EFTA as an amendment to the Consumer Credit Protection Act ("CCPA"), 15 U.S.C. § 1601 et seq.*fn1 See Pub.L. No. 95-630, 92 Stat. 3641, 3728 (1978). EFTA's purpose is to protect individual consumer rights by providing a "basic framework establishing the rights, liabilities, and responsibilities of participants in electronic fund transfer systems." 15 U.S.C. § 1693(b). Plaintiffs assert their claims under § 1693b(d)(3), which prohibits an ATM operator from imposing a fee on consumers without first providing notice:

(3) Fee disclosures at automated teller machine

(A) In General

The regulations prescribed under paragraph (1) shall require any automated teller machine operator who imposes a fee on any consumer for providing host transfer services to such consumer to provide notice in accordance with subparagraph (B) to the consumer (at the time the service is provided) of--

(i) the fact that a fee is imposed by such operator for providing the service; and

(ii) the amount of any such fee.

(B) Notice Requirements

(i) On the Machine

The notice required under clause (i) of subparagraph (A) with respect to any fee described in such subparagraph shall be posted in a prominent and conspicuous location on or at the automated teller machine at which ...


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