The U.S. District Court for the District of Columbia recently denied class certification in an action under the Electronic Fund Transfer Act ("EFTA"), 15 U.S.C. §§ 1693 et seq. Ballard v. Branch Banking & Trust Co., 2012 U.S. Dist. LEXIS 80109 (June 11, 2012). In Ballard, the plaintiff claimed that the exterior of one of the defendant's automatic teller machines (ATMs) did not have a required notice stating that a fee would be charged for withdrawals, even though an on-screen message provided that information. The plaintiff sought certification of a class of individuals who were charged a withdrawal fee while the exterior notice was allegedly missing.
The court denied class certification for failure to satisfy the superiority requirement of Rule 23(b)(3). Superiority was not met for two primary reasons. First, because the EFTA regulates fees charged to "consumers," individualized inquiries were needed to determine whether each account was a personal (non-corporate) account and whether, even if the account was a personal account, the account was used for personal (non-business) purposes. The court concluded that it was "absolutely essential to communicate with the individuals who used the ATM" to learn this information.
Second, the court concluded that the class members could not be identified because the defendant did not maintain, and was not allowed to maintain, records identifying those who withdrew money from its ATMs or whether any given ATM user was a "consumer." Instead, the class members could only be identified by requesting that their banks conduct record searches, which would not be manageable on a class basis. Further, because contact information for the ATM users was not available, class notice could only be made by publication. But given the location of the ATM – in a high-tourist area in downtown Washington, D.C. – potential class members would be highly unlikely to see the notice. This was a real problem because each class member would need to be questioned about whether his or her transaction was a "consumer transaction." Because few people were likely to respond to the publication notice and provide this information, the class would "at best, consist of a handful of consumers, or at worst, be a class of one – plaintiff."
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