Alert April 02, 2013

Texas Federal Court Holds ATM Fee Notice Law Retroactive

The United States District Court for the Southern District of Texas dismissed a putative class action holding that legislation (H.R. 4367) concerning ATM notices, which was signed into law in December 2012, applies retroactively. Plaintiff filed a class action alleging that defendant, a bank, violated the Electronic Fund Transfer Act and its implementing regulation, Regulation E, by failing to provide notice to consumers "on or at" the ATM that a fee would be imposed and the amount of that fee. H.R. 4367 eliminated that requirement to protect ATM operators from frivolous lawsuits related to the fee notice requirement citing that it was unnecessary because ATM operators are already required to disclose such fees on the screen and consumers have a right to decline the transaction without being charged.

Because H.R. 4367 was passed while the lawsuit was pending, the Court examined whether the presumption against retroactivity applied to H.R. 4367. According to the Court, it is well-established that statutes are presumed to operate prospectively, not retrospectively and that “when an act of the legislature is repealed, it must be considered, except as to transactions past and closed, as if it never existed.” Citing the guidance set forth in Landgraf v. USI Film Prods., 511 U.S. 244 (1994), the Court noted that it must determine whether H.R. 4367 attached “new legal consequences to events completed before its enactment[,]” and, if it did, “a presumption against statutory retroactivity exists[”] unless the presumption could be rebutted by “specific legislative authorization.” Without such “specific legislative authorization,” Landgraf instructs that the Court should determine whether retroactive application of the legislation would impair rights a party possessed when that party acted—a party’s vested rights. The Court noted that there are no vested rights when a cause of action is based solely on a statute and the statute is subsequently repealed. As a result, the Court concluded that plaintiff had no vested rights, and as such, the presumption against retroactivity did not apply and plaintiff no longer had a statutory basis for her claim.