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California Court Rejects “Sham Guarantee” Defense

Bryan Cave LLP recently served as counsel for amicus curiae California Bankers Association (“CBA”) and helped score a victory in an important California appellate case of great interest to the banking industry,  LSREF2 Clover Property 4 LLC v. Festival Retail Fund 1 357 N. Beverly Drive LP (Second District, California Court of Appeal case number B259937).

The trial court had ruled that the guarantor of a commercial loan was excused from performance on the grounds that the guaranty was a “sham,” structured by the lender to circumvent California’s anti-deficiency laws.  The guarantor essentially argued that there was no legal separation between it and the borrower because it was the borrower’s “alter ego,” and as support they identified evidence that the two entities failed to observe basic corporate formalities.  According to the guarantor, it should be excused from its obligations because it was essentially the same as the borrower, and thus protected by California’s anti-deficiency laws.

In its amicus brief, the CBA raised two principal arguments, both of which were adopted by the court of appeal in its published opinion reversing the trial court’s judgment in favor of the guarantor Festival Fund.

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July 2014 Client Alerts

Practice groups throughout Bryan Cave often prepare alerts on issues of interest to our clients and friends. Listed below are the Client Alerts published in July 2014.  Please click on the title to read the full text of the Alert.

Good News for In-House Counsel:  The D.C. Circuit Court Restores Attorney-Client Privilege for Internal Investigations, published by the White Collar Defense and Investigations, Securities Litigation and Enforcement and Government Contracts practice groups on July 2, 2014.

Federal Antitrust Laws:  A New Tool to Prohibit Pre-Petition Coordination Among Creditors?, published by the Bankruptcy, Restructuring and Creditors’ Rights group on July 14, 2014.

No More Blurred Lines?  Federal Courts Rule That Conditional Discovery Objects are No Longer Proper Under Federal Rules of Civil Procedure, published by the Commercial Litigation practice group on July 30, 2014.

Fraud Outweighs Fairness:  Government Contractor Cannot Recover the Value of Its Services, published by the White Collar Defense and Investigations practice on July 16, 2014.

Seventh Circuit Rejects Judge Shuffling in Multidistrict Litigation Cases, published by the Securities Litigation and Enforcement group on July 3, 2014.

No False Claims Act Liability for Claiming Private Money:  Fifth Circuit Rejects Broad FCA Interpretation, published by the While Collar Defense and Investigations practice group on July 8, 2014.

SEC Brings Enforcement Action Under MCDC Initiative, published by the Broker-Dealer Litigation, Arbitration and Regulatory practice on July 16, 2014.

No FCPA Liability or Penalties for Former Noble Executives:  SEC Settles FCPA Claims on Eve of Trial, published by the Global Anti-Corruption/Foreign Corrupt Practices Act Team and the White Collar Defense and Investigations practice on July 7, 2014.

The D.C. Circuit Imposes Some Due Process in the CFIUS Review Procedures But the Impact May be Limited and, in Any Case, Short-Lived, published by the National Security practice on July 18, 2014.

BNP Paribas Pleads Guilty to Criminal Charges and Collar Clearing Rights Are Suspended in the Largest U.S. Sanctions Case to Date, published by the White Collar Defense and Investigations Global Anti-Corruption/Foreign Corrupt Practices Act Team and the International Trade practice on July 2, 2014.

Failure To Appear At a Hearing — A Risky Tactic?, published by the International Arbitration Commercial Litigation practice on July 8, 2014.

Arbitration and Competition Law – New Prospects of Recovery for Victims of Antitrust Infringements, published by the Antitrust and Competition and International Arbitration groups on July 16, 2014.

Enforcement of CIS Court Judgments in England, published by the International Arbitration practice on July 4, 2014.

New UK Guidance on coping with Small Bribes and Facilitation Payments, published by the Global Anti-Corruption/Foreign Corrupt Practices Act Team on July 3, 2014.

EU & Competition Law Update – July 2014, published by the European Antitrust and Competition groups on July 7, 2014.

 EU Adds Individuals and Entities to Sanctions List and Expands Grounds for Sanctions (IRB No. 525), published by the International Trade CEE and CIS Team on July 28, 2014.

Interns Can Turn Out to Be Expensive for Companies, published by the Labor and Employment Client Service Group (Hamburg, Frankfurt) on July 21, 2014.

UK Labor and Employment Bulletin – July 2014, published by the London  Labor and Employment group on July 21, 2014.

EU Commission Proposes Radical Reform of EU Merger Regulation, published by the Antitrust and Competition practice group on July 14, 2014.

 

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June 2014 Client Alerts

Practice groups throughout Bryan Cave often prepare alerts on issues of interest to our clients and friends. Listed below are the Client Alerts published in June 2014.  Please click on the title to read the full text of the Alert.

Supreme Court Holds Bare Allegation of Improper Purpose Does Not Entitle a Taxpayer to Examine IRS Officials, published by the Tax Advice and Controversy practice group on June 20, 2014.

District Judge Expands the Reach of Dodd Frank Retaliation Protections, published by the White Collar Defense and Investigations, Securities Litigation and Enforcement, Labor and Employment, Broker-Dealer Litigation, Arbitration and Regulatory practice groups on June 3, 2014.

Breaking News:  Second Circuit Reverses Rakoff Decision Rejecting SEC Settlement, Holds That Requiring Admissions was Abuse of Discretion, published by the White Collar Defense and Investigations, Securities Litigation and Enforcement and Investment Management practice groups on June 4, 2014.

SEC Settles First Whistleblower Anti-Retaliation Case, published by the White Collar Defense and Investigations, Securities Litigation and Enforcement and Labor and Employment practice groups on June 19, 2014.

Small Business Administration Issues Proposed Rule That Would Establish a Safe Harbor From Fraud Penalties for a Business That Acted in Good Faith in Incorrectly Representing the Firm as Being Small,  published by the Government Contracts practice group on June 26, 2014.

Ninth Circuit Issues Two Decisions Upholding Class Action Waivers in Employment Agreements, But Interplay with California Supreme Court Remains an Open Question,  published by the Labor and Employment and Commercial Litigation practice groups on June 27, 2014.

Securities Defendants Will Have New Tool To Use in Opposing Class Certification But Fraud-On-The-Market Theory Survives under Supreme Court Decision,  published by the Class and Derivative Actions and Securities Litigation and Enforcement practice groups on June 23, 2014.

California Supreme Court Affirms Use of Class Action Waivers in Arbitration Agreements, published by the Labor and Employment practice group on June 24, 2014.

Shifting Trends:  Privacy & Security Class Action Litigation, published by the Data Privacy and Security Team on June 11, 2014.

SEC to Give Credit For Self-Reporting Certain Municipal Offering Violations, published by the Broker-Dealer Litigation, Arbitration and Regulatory practice on June 18, 2014.

Whither Demand Response in Wholesale Electric Power Markets?, published by the Energy and Natural Resources practice group on June 2, 2014.

FINRA Cracks Down on Use of Consolidated Reporting,  published by the Broker-Dealer Litigation, Arbitration and Regulatory Practice on June 23, 2014.

Supreme Court Rejects Federal Circuit’s “Insolubly Ambiguous” Standard for Indefiniteness, published by the Intellectual Property practice group on June 3, 2014.

U.S. Supreme Court Allows Private Lanham Act Suits Against Product Labels Otherwise Compliant With Federal Law, published by the Antitrust and Competition practice, Food and Beverage Team and Intellectual Property practice on June 12, 2014.

U.S. Supreme Court Invalidates Alice Corp’s Software Patent Claims, published by the Intellectual Property practice group on June 20, 2014.

U.S. Supreme Court Rejects Divided Infringement of Method Claims in Limelight v. Akamai, published by the Intellectual Property practice group on June 3, 2014.

IRS Announces Changes to Offshore Voluntary Disclosure Program, published by the Tax Advice and Controversy practice group on June 20, 2014.

EPA Extends Comment Period For Proposed Clean Water Act Jurisdictional Regulations, published by the Environmental practice group on June 30, 2014.

EPA’s Proposed Clean Power Plan Regulations:  Structure and Impacts, published by the Environmental group on June 6, 2014.

Missouri Supreme Court Holds That Statutes of Limitations Are Not Tolled by Putative Class Action Lawsuits Filed Outside of Missouri, published by the Class and Derivatives Actions practice group on June 25, 2014.

Reminder:  Increase in California Minimum Wage Effective July 1, 2014, published by the Labor and Employment practice group on June 24, 2014.

EU Proposes Greater Transparency of Beneficial Ownership,  published by the White Collar Defense and Investigations practice group and Global Anti-Corruption/Foreign Corrupt Practices Act Team on June 26, 2014.

Significant Competition/Antitrust Fines in Europe Sound the Alarm for Private Equity Over Liability for Their Portfolio Companies,  published by the Antitrust and Competition and Private Equity groups in London and Frankfurt on June 19, 2014.

Australia Imposes Targeted Ukraine-Related Sanctions on 50 Individuals and 11 Entities, published by the White Collar Defense and Investigations practice group on June 19, 2014.

The French Blocking Statute:  Effective Protection Against Cross-Border Discovery?, published by the Commercial Litigation and Class and Derivative Actions practice groups on June 19, 2014.

Canada Charges 3 Foreign Nationals with Bribery of Foreign Officials, published by the Global Anti-Corruptions/Foreign Corrupt Practices Act Team on June 6, 2014.

EU Makes It Easier for Creditors to Recover Cross-Border Debts in the EU in Civil and Commercial Matters, but Has the UK Missed a Trick?, published by the London Commercial Litigation practice group on June 5, 2014.

EU and Competition Law Update — June 2014, published by the European Antitrust and Competition practice groups on June 9, 2014.

Thailand:  Is a Coup d’etat Force Majeure?published by the Hong Kong Commercial Litigation group on June 6, 2014.

Clarification of the Approach to Non-Arbitrable Claims — Silica Investors v Tomolugen Holdings (Singapore High Court), published by the International Arbitration practice group on June 4, 2014.

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April 2014 Client Alerts

Practice groups throughout Bryan Cave often prepare alerts on issues of interest to our clients and friends. Listed below are the Client Alerts published in April 2014.  Please click on the title to read the full text of the Alert.

 U.S. Supreme Court Clarifies Test For Standing to Sue Under Federal False Advertising Statute And Rejects Test Used by Several Circuits to Prohibit Suits Brought By Non-Competitor Businessespublished by the Commercial Litigation, Intellectual Property and Trademarks practice groups on April 1, 2014.

The Australian Privacy Principles:  They don’t apply to me, do they?, published by the Data Privacy and Security team, April 1, 2014.

SEC Convenes Cybersecurity Roundtable:  Highlights Importance of Cybersecurity for Public Companies and Financial Market Participants, published by the Corporate Finance and Securities practice group and Data Privacy and Security Team, April 4, 2014.

Now It Gets Personal:  Department of Justice Obtains its First Ever Extradition on Antitrust Charges, published by the Antitrust and Competition White Collar Defense and Investigations practice on April 8, 2014.

SEC Touts Monetary Benefits of Whistleblowing, published by the White Collar Defense and Investigations, Securities Litigation and Enforcement and Labor and Employment practice groups, April 10, 2014. 

Paving The Way for Increased Data Litigation, Court Refuses to Dismiss FTC’s Use of Deception or Unfairness Authority in Data Breach Cases, published by the Data Privacy and Security Team, April 11, 2014.

$5.15B Cleanup:  Anadarko Environmental Settlement Reveals New Government Tactics, published by the White collar Defense and Investigations and Environmental practice groups, April 11, 2014.

Court of Appeals Issues Opinion in Conflict Minerals Case:  Portion of Rule Violates First Amendment, published by the Corporate Finance and Securities practice group, April 14, 2014.

SEC Staff Responds to Court of Appeals Opinion in Conflict Minerals Case:  Game On, published by the Corporate Finance and Securities group, April 30, 2014.

Will This Be Enough?  Competitors Sharing Cyber Threat Information Will Not Result in Federal Antitrust Prosecutions — Sometimes, published by the National Security, Antitrust and Competition practice groups and the Data Privacy and Security Team

We Know Who You Are:  Companies’ Ability To Deal Confidentially With The CPSC is Further Eroded, published by the Consumer Protection and Data Privacy groups, April 18, 2014.

OCIE Issues Risk Alert Regarding Cybersecurity Preparednesspublished by the Broker-Dealer, Litigation, Arbitration and Regulatory,  and Investment Management groups, April 21, 2014.

Missouri Supreme Court Deals With Trade Secret Issues, published by the Labor and Employment practice group, April 22, 2014.

Missouri Supreme Court Introduces Drastic Change to Workers’ Compensation Retaliation Law, published by the Labor and Employment practice group, April 29, 2014.

New York’s Non-Profit Revitalization Act of 2013 and Its Impact on Non-Profit Organizations, published by the Non Profit Organizations practice on April 1, 2014.

U.S. Expands Sanctions Against Russia By Freezing More Assets and Restricting Exports (IRB No. 522), published by the International Trade group, April 29, 2014.

Partnership Tax Changes:  New Salaried Member Rules from 6 April 2014published by the Tax Advice and Controversy practice group (London) on April 3, 2014.

New Consumer Regulations – Implications for Retailers doing Business in the UK, published by the London Retail team, April 17, 2014.

Sunday Trading Laws in the UK — Is The Customer Still King?, published by the London Retail team, April 17, 2014.

UK Deferred Prosecution Agreements — Key Considerations For Companies Deciding Whether To Self-Report, published by the White Collar Defense and Investigations, Global Anti-Corruption/Foreign Corrupt Practices Act Team, April 2, 2014.

New Consumer Protection Law:  A Reinforced Framework for Distribution Agreements, published by the Paris Consumer Protection and Data Privacy group, April 9, 2014.

New Consumer Protection Law:  A Stricter Regime for Payment Terms, published by the Consumer Paris Protection and Data Privacy group, April 9, 2014.

EU & Competition Law Update – April 2014, published by the European Antitrust and Competition group, April 10, 2014.

 

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January 2014 – Bryan Cave Client Alerts

Client service groups throughout Bryan Cave LLP often prepare alerts on issues of interest to our clients and friends.  Listed below are the client alerts published in January, 2014.  Please click on the title to read the full text of the Alert.

Qualified Plan Limits, published by Employee Benefits and Executive Compensation, January 21, 2014

California “Do-Not-Track” Law Has Gone Into Effect, Requiring Some Websites to Revise Privacy Policy, published by the Data Privacy and Security Team, January 9, 2014

Federal Trade Commission Increases Interlocking Directorates Thresholds, published by Antitrust and Competition, January 24, 2014

Eleventh Circuit Holds that Affiliates of Indicted Contractor May Be Suspended from Government Contracting Indefinitely, Despite No Wrongdoing, published by Government Contracts, January 3, 2014

‘Single Asset Real Estate’:  A Concept in Need of Redefinition, published by Bankruptcy, Restructuring and Creditors’ Rights, January 15, 2014

Tax Court Upholds Captive Insurance Arrangement Despite Parent Guarantee and Captive’s Investment in Stock of Parent, published by Tax Advice and Controversy, January 16, 2014

Investment Funds Maintained by Charitable Organizations, published by the Fund Formation Team and Tax Exempt and Charitable Planning, January 7, 2014

Circuit Decision Requires Production of Foreign Bank Account Records, Thus Emphasizing Importance of IRS Amnesty Program, published by Tax Advice and Controversy and White Collar Defense and Investigations, January 9, 2014

SEC ALJ Imposes Six Month Bar on China Affiliates of Big Four Accounting Firms, published by White Collar Defense and Investigations and International Trade, January 24, 2014

Premerger Notification Thresholds Increased, published by Antitrust and Competition, January 24, 2014

EPA Adopts New ASTM Phase I Standard, published by the Environmental group, January 15, 2014

While Some Things Changed, Much Stays the Same as the EU and the United States Relax Sanctions Against Iran (IRB No. 517), published by International Trade, January 28, 2014

SCOTUS Limits the Exercise of General Personal Jurisdiction Over Multi-National Parent Corporations:  Daimler AG v. Bauman, published by Commercial Litigation, January 29, 2014

SEPA — Is There Some Respite for European and US Companies?, published by Financial Services, January 13, 2014

EU & Competition Law Update – January 2014, published by Antitrust and Competition, January 14, 2014

Overhaul of the BIS Unverified List Imposes New Requirements for Exporters (IRB No. 516), published by International Trade, January 21, 2014

UK Labor and Employment Law Bulletin – January 2014, published by Labor and Employment, January 23, 2014

Lokpal:  Finally a force to combat corruption in India, published by the India Practice Group, January 8, 2014

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December 2013 – Bryan Cave Client Alerts

Client Service Groups across the Firm often prepare Alerts on issues of interest to our clients and friends.  Listed below are the Alerts published in December, 2013.   Please click on the title to read the full text of the Alert.

New SEC Guidance on Bad Actor Rules, published by the Fund Formation Team, December 20, 2013

IRS Issues New Guidance on In-Plan Roth Rollovers, published by Employee Benefits and Executive Compensation, December 18, 2013

Tips and Traps for Taking Current Year Deductions for Bonus Programs Fixed by End of Year, published by Tax Advice and Controversy, December 20, 2013

Tax News and Developments – Fall 2013, published by Tax Advice and Controversy, December 20, 2013

IRS Publishes Proposed Regulations Determining Partner’s Share of Recourse Liabilities, published by Tax Advice and Controversy, December 26, 2013

Supreme Court Clarifies Law on Forum Selection Clauses:  Choice of Forum in Contract Should be Enforced Absent “Extraordinary Circumstances,” published by Commercial Litigation, December 23, 2013

Fifth Circuit Reverses ‘D.R. Horton’ in Another Decision Upholding Class Action Waivers, published by Class and Derivative Actions, December 17, 2013

Second Circuit Rules continuing Interest Payments are Not in Furtherance of a Conspiracy; Do Not Extend Statute of Limitations, published by White Collar Defense and Investigations and Securities Litigation, December 11, 2013

Department of Defense Imposes New Cybersecurity Requirements on its Contractors and Subcontractors, published by National Security, December 20, 2013

New Milestone:  China (Shanghai) Pilot Free Trade Zone Opens (IRB No. 515), published by International Trade, December 18, 2013

The Introduction of Class Actions in French Law:  Second Reading of the Bill by the French National Assembly, published by the Commercial Litigation, December 17, 2013

Foreign Companies Beware:  U.S. FCPA Enforcers Will Pursue You, published by the Global Anti-Corruption/Foreign Corrupt Practices Act Team, December 17, 2013

European Commission Announces Streamlined EU Merger Notification Process, published by Antitrust and Competition, December 11, 2013

Who You Gonna Call? — the Singapore DNC Registry Opens for Registrations, published by the Data Privacy and Security Team, December 9, 2013.

EU Competition Law Update – December 2013, published by Antitrust and Competition, December 9, 2013

PT First Media v Astro Nusantara:  A cautionary tale on the enforcement of arbitral awards and joinder of third parties, published by International Arbitration, December 2, 2013

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11th Circuit Upholds Deposit Agreement Arbitration Provision

The United States Court of Appeals for the 11th Circuit rendered an important decision on March 5, 2012, addressing the enforceability of binding arbitration provisions in consumer deposit agreements. The case began when Lawrence and Pamela Hough brought suit against Regions Bank for allegedly violating federal and state law by collecting overdraft charges under its deposit agreement. The deposit agreement contained an arbitration provision and Regions moved to compel arbitration. The federal district court hearing the case denied the motion to compel on the ground that the arbitration clause was substantively unconscionable because it contained a class action waiver. Regions appealed the decision to the 11th Circuit Court of Appeals and the appellate court vacated the ruling and sent it back to the trial court in light of a recent United States Supreme Court which held that the Federal Arbitration Act preempted a California’s judicial rule regarding the unconscionability of class arbitration waivers in consumer contracts. This time around the district court found other reasons to deny Regions’ motion to compel arbitration, holding that the arbitration clause was substantively unconscionable under Georgia law because it believed that a provision granting Regions the unilateral right to recover its expenses for arbitration allocated disproportionately to the Houghs the risks of error and loss inherent in dispute resolution.

The lower court decision was again appealed to the 11th Circuit. On appeal the Houghs argued that while the arbitration provision in the deposit agreement capped the Houghs’ costs for the arbitration proceeding at $125, another paragraph required the Houghs to reimburse Regions as a prevailing party for its costs of arbitration. The arbitration agreement permitted Regions, if it was “the prevailing party,” to obtain “reimburse[ment] for [its] costs and expenses (including reasonable attorney’s fees) … [in] arbitration” and to collect that amount by “charg[ing] [the Houghs’] account.” The district court concluded that the reimbursement provision was unconscionable because Regions had an exclusive right of setoff. The 11th Circuit disagreed, and noted that under Georgia law an arbitration provision is not unconscionable because it lacks mutuality of remedy. The district court also ruled that the arbitration clause had a degree of procedural unconscionability, but the 11th Circuit found that to be unconscionable under Georgia law, a contract must be so one-sided that “no sane man not acting under a delusion would make and that no honest man would participate in the transaction.” The court found that the arbitration clause in the Houghs’ agreement fell well short of that standard. Although the district court found it troubling that the clause was presented to the Houghs “on a take-it-or-leave-it basis with no opt-out provision,” the 11th Circuit noted that under Georgia law, an adhesion contract (i.e., one that is not truly negotiated between the parties such as a deposit agreement or a credit card agreement) is not per se unconscionable.

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March 2012 Client Alerts

9th Circuit Holds TILA Bars Rescission Suits Filed More Than 3 Years After Consummation

In McOmie-Gray v. Bank of America (9th Cir. Feb. 8, 2012), the Ninth Circuit Court of Appeals held that under the Truth in Lending Act (“TILA”), “rescission suits must be brought within three years from consummation of the loan, regardless whether notice of rescission is delivered within that three-year period.”  It ruled that the three year period in the Act is an absolute limitation on rescission actions and that the one year period for bringing claims applies only to damages actions and does not extend the time to file a claim for rescission even where the borrower has sent the Bank a written notice of rescission within three years of loan signing or “consummation.”  To learn more about the facts in this case and the Court’s decision, please click here to read the Alert published by the Commercial Litigation Client Service Group and the Financial Institutions Client Service Group on March 6, 2012.

How Long Should You Retain Data?  Recent Developments May Add Confusion Not Clarity

Businesses have always collected information about their customers, but with the explosion of on-line commerce the quantity of information collected has ballooned.  One question that necessarily arises for almost any business is deciding how long it will keep the data it collects.  Businesses are aware that future developments in technology will improve the usefulness (and value) of the data that is currently in their possession.  Retaining consumer data, however, raises a number of legal risks which are often difficult to quantify in light of the changing regulatory and litigation landscape.  For a discussion of how recent developments add to the legal complexity, please click here to read the Bulletin published by the Data Privacy & Security Team on March 16, 2012.

Supreme Court Weakens EPA’s Enforcement Regine

The United States Supreme Court handed landowners a major victory against the United States Environmental Protection Agency (EPA) in its unanimous decision in Sackett v. EPA, No. 10-1062.  The decision announced March 21, 2012, held that Clean Water Act compliance orders can be challenged in court under the Administrative Procedures, undercutting EPA’s historic practice of using compliance orders to, in the words of the Court, “strong-arm” parties into voluntary compliance.  To learn about the case and the Court’s decision, please click here to read the Alert published by the Environmental Client Service Group on March 22, 2012.

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New Legislation Introduced on ATM Notices

Legislation has been introduced in the United States House of Representatives that, if passed, would relieve banks of the responsibility of installing and monitoring the presence of physical notices on their ATMs notifying customers about the imposition of ATM transaction fees.

On April 17, 2012, Representatives Blaine Luetkemeyer (R-MO) and David Scott (D-GA) introduced H.R. 4367 which seeks to amend the Electronic Fund Transfer Act to limit the fee disclosure requirement for operators of ATMs to the electronic notice alone. The electronic notice allows a consumer to choose whether the consumer wishes to continue with the ATM transaction and pay the fee or exit the transaction.  This proposed bill comes in the wake of class action litigation filed against banks and other ATM operators nationwide (and most recently against several Georgia community banks) alleging that the banks failed to post or maintain the physical notice on their ATMs.

As currently written, the Electronic Fund Transfer Act requires both a physical notice at or on the ATM in addition to the electronic notice the customer receives on the computer screen when making the withdrawal.  Currently, there are statutory penalties for failure to comply with the Act.  While there is no minimum penalty proscribed for a class action, the statute provides that in a successful class action, plaintiffs may recover up to “the lesser of $500,000 or 1 percent of the net worth of the (ATM operator),” plus attorneys’ fees and costs.  There may be a defense to such claims when the bank maintains procedures reasonably adapted to avoid a failure to comply with the Act and the failure to comply was a “bona fide error.”

Even where banks have been in full compliance with the physical notice requirements, many banks have found that their fee notice placards have mysteriously disappeared or have been removed by persons as yet unknown in the time periods preceding the institution of litigation against them.

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Class Actions Filed Against Four Georgia Banks Over ATM Physical Fee Disclosure

Four class action complaints have been filed in the last two weeks against four different Georgia community banks alleging that the banks have violated the Electronic Fund Transfer Act.  The complaints were filed in the federal courts and all allege that the banks imposed fees on consumers who withdrew cash from the bank’s ATMs and that the banks allegedly failed to post a physical notice on the ATMs that a fee would be imposed for such services.

The Electronic Fund Transfer Act requires both a physical notice at or on the ATM in addition to the electronic notice the customer receives on the computer screen when making the withdrawal.  There are statutory penalties for a failure to comply with the Act.   While there is no minimum penalty proscribed for a class action, the statute provides that in a successful class action, plaintiffs may recover up to “the lesser of $500,000 or 1 percent of the net worth of the (ATM operator),” plus attorneys’ fees and costs.  There may be a defense to such claims when the bank maintains procedures reasonably adapted to avoid a failure to comply with the Act and the failure to comply was a “bona fide error.”

The attorneys associated with these cases have filed similar class actions, alleging the same violations of the Electronic Fund Transfer Act, against other banks, hotels and retailers around the country.

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