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Karen Reyes, On Behalf of Herself and A Class v. Cole Taylor Bank

August 22, 2011

KAREN REYES, ON BEHALF OF HERSELF AND A CLASS, PLAINTIFF,
v.
COLE TAYLOR BANK, DEFENDANT.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

I. BACKGROUND

Karen Reyes withdrew cash from the Cole Taylor Bank ATM located at 4400 Oakton Street in Skokie, IL on April 21, 2010. When she did so, there was a notice on the side of the machine indicating that Cole Taylor would assess a $2.00 fee for cash withdrawals from non-customers. In fact, at the time of the withdrawal, Cole Taylor was charging $2.50. In addition to the external notice, there was an on-screen, electronic notice of a fee, which included a specified amount. Plaintiff does not recall what amount the on-screen, electronic fee notice indicated, though she agreed to pay the fee by pressing the appropriate tab or button. She then withdrew her cash and was charged the higher amount. At some point she realized she had been charged $2.50 and not $2.00, as the external fee notice indicated. She took a picture of the external notice.

Cole Taylor had raised the rate from $2.00 to $2.50 in early 2009. When they did so, they updated the external notice on all of their ATMs. The notices were in the form of stickers affixed to the machines. The new, updated fee notices indicated only the fact that a fee would be charged; they provided no specific fee amount. Lori Tolentino, the Teller Supervisor at the 4400 Oakton branch of Cole Taylor, updated the external fee notice at that location when the fee increase took place. Lori Tolentino affixed the notice - a sticker - on top of the outdated notice. This was the same method employed at the other Cole Taylor ATMs.

Cole Taylor's policy is to conduct quarterly checks of its ATMs.*fn1 The last quarterly check performed on the 4400 Oakton ATM was November 5, 2009. Ms. Tolentino conducted that check, and her uncontested testimony is that she would have noticed if the updated notice sticker were missing at that time. The Banking Center Manager at the 4400 Oakton branch, Joanne Sabath, specifically observed the updated fee notice in September of 2009.

The 4400 Oakton ATM was inspected again on March 13, 2010. The inspector noted that the signage was "cracked" and there was "damage." Plaintiff's April 1 picture of the external notice shows a crack. Uncontested testimony and affidavits state that the update fee sticker was "removed."

After receiving indications that the 4400 Oakton ATM had an outdated fee notice, Cole Taylor conducted a full inventory of all of its ATMs. The inventory showed that only the 4400 Oakton ATM had an outdated sticker. On May 28, 2010, the updated fee notice (the one showing no amount), was reapplied. At some point all of the updated fee notice stickers were replaced with more rigid placards explaining that fees would be charged.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the record, viewed in the light most favorable to the nonmoving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "In other words, the record must reveal that no reasonable jury could find for the nonmoving party." Keri v. Bd. of Trs. of Purdue Univ., 458 F.3d 620, 627 (7th Cir. 2006) (quotation omitted). Provided reasonable fact discovery has taken place, Rule 56 requires the entry of summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

A party seeking summary judgment bears the initial responsibility of informing a court of the basis for its motion and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323. Once a properly supported motion for summary judgment is made, the nonmoving party cannot resist the motion and withstand summary judgment by merely resting on its pleadings. Keri, 458 F.3d at 628. Instead, it must come forward with specific facts showing that there is a genuine issue for trial; raising some metaphysical doubt as to the material facts is not enough. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Conclusory allegations and argument, if not supported by the record, will not preclude summary judgment. Haywood v. N. Am. Van Lines, Inc., 121 F.3d 1066, 1071 (7th Cir. 1997))

III. DISCUSSION

The ATM Fee Reform Act of 1999 (the "Act") addresses fee disclosures on automated teller machines. ATM Fee Reform Act, Pub. L. No. 106-102 § 702, 113 Stat. 1338, 1463 (1999). The Act requires two broad types of notice regarding ATM fees: "(i) the fact that a fee is imposed by [an ATM] operator for providing the service; and (ii) the amount of any such fee."

15 U.S.C. § 1693b(d)(3)(A). The statute goes on to specify the notice requirements as follows:

(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 ...


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