Alert June 12, 2012

Nebraska Federal Court Holds Consumer Lacks Standing in ATM Fee Class Action

The United States District Court for the District of Nebraska found that plaintiff lacked constitutional standing to bring a claim under the Electronic Fund Transfer Act for alleged violations of the fee notice requirement. Under EFTA, an ATM operator who imposes fees on consumers for electronic fund transfers is required to post two notices, both (1) on or at the ATM, and (2) on the screen of the ATM. Plaintiff claimed that the bank failed to provide notice on or at the ATM, but did not allege failure to provide an on-screen notice, or ultimately that he suffered any injury-in-fact at all.

In determining that plaintiff lacked constitutional standing, the Court distinguished this case from prior district court cases holding that, where an ATM operator failed to provide a fee notice on the exterior of the ATM, the statutory violation was an injury. The Court held that constitutional standing requires more than just an injury-in-law, but instead an injury-in-fact. Because plaintiff only alleged a statutory violation, the Court did not grant standing. Additionally, the Court stayed all proceedings in the case pending the U.S. Supreme Court’s decision in First American Financial Corporation v. Edwards, 610 F.3d 514 (9th Cir. June 21, 2010), cert. granted, 131 S. Ct. 3022 (U.S. June 20, 2011) (No. 10-708), addressing a similar issue of standing. This ruling may provide some relief to many banks and credit unions, which have raised this issue in their comments in response to the CFPB’s streamlining regulations notice (see February 21, 2012 Alert). Click here for the opinion.