Cardtronics ATM Fee Violation Class Action Lawsuit Certified

An ATM in downtown Minneapolis operated by a division of Cardtronics Inc. failed to display a notice that a $3 fee applied to cash withdrawals, according to a class action lawsuit certified Tuesday in federal court in Minnesota.

The ATM operator had argued that a 2012 law that relaxed fee disclosure rules should be applied retroactively, but the judge rejected that claim in certifying the Class, which consists of all persons who were assessed a fee for using the ATM between July 14, 2010 and July 14, 2011.

The Electronic Funds Transfer Act (EFTA), beginning in 1999, had required that automated teller machines should include both an on-screen warning during the transaction, as well as a sign or sticker affixed to the outside of the machine “in a prominent and conspicuous location” alerting consumers to fees that would be charged if they chose to withdraw cash from the ATM. In 2012, Congress passed legislation amending the EFTA to eliminate the ATM fee sticker requirement, leaving in place only the requirement that a fee disclosure appear on the ATM screen during the transaction.

In 2011, plaintiffs Margaret Gawarecki and Anthony Brown of Minnesota filed an ATM fee disclosure class action lawsuit against Cardtronics’ ATM Network Inc. unit seeking damages for fees assessed allegedly without posting an external notification. The Class was determined to involve about 2,600 transactions. ATM Network asked the judge to dismiss the case, and to reject certifying the Class, arguing that the change in the rules in 2012 should be applied retroactively.

U.S. District Judge Susan Richard Nelson denied ATM Network Inc.’s motion to dismiss the ATM fee class action lawsuit. Citing a decision made in March 2013 in the Brown v. Wells Fargo & Co. class action lawsuit, Nelson wrote, “This Court agrees with the reasoning and outcome in Brown. First, the EFTA does not evince any clear expression of congressional intent that the new notice provision applies to cases arising before its enactment. While Congress had the ability to expressly state that the new notice provision applies retroactively, it did not do so. Defendant points to statements within congressional committee reports and by members of Congress that elimination of the on-machine notice provision would protect institutions from frivolous lawsuits, but such statements are insufficient to demonstrate an express intent that the new language should apply retroactively.”

Nelson concluded, “[a]ccordingly, the Court finds that the pre-amendment version of the EFTA notice requirement applies to Plaintiffs’ claim, and Defendant’s motion to dismiss is denied.”

Due to the class satisfying requirements of numerosity, commonality, and typicality, as well as adequacy of representation, Nelson agreed to certify the class and allow the fee violation class action lawsuit against ATM Network to proceed.

The plaintiffs are represented by Thomas J. Lyons Sr. of Lyons Law Firm PA, Thomas J. Lyons Jr. of the Consumer Justice Center PA, and Curtis P. Zaun.

The Cardtronics ATM Fee Class Action Lawsuit is Gawarecki v. ATM Network Inc., Case No. 0:11-cv-01923, in the U.S. District Court for the District of Minnesota.