Wal-Mart ATM Fee Disclosure Class Action Lawsuit Dismissed

A Tennessee federal judge has dismissed multiple class action lawsuits accusing Wal-Mart Stores Inc. of failing to disclose ATM fees, ruling that the company is protected from liability by the company’s safe harbor defense.

Wal-Mart customers who were class members in the ATM fee class action lawsuit claimed that the exterior fee notices required by the Electronic Funds Transfer Act were not affixed to the ATMs. They argued that Wal-Mart and its co-defendant, Satellite Receivers Ltd. d/b/a Cash Depot, should provide an affirmative defense that the notices were removed by someone other than Wal-Mart or Cash Depot employees. U.S. District Judge Jon P. McCalla did not agree, and granted summary judgment to the two defendants, dismissing all plaintiff’s claims on April 28.

At issue was the testimony of two of the employees for the two defendants. According to the order, “On April 10, 2013, Plaintiffs filed Motions to Strike, challenging whether Kam Lam (Senior Manager of Innovations, Delivery, and Technology) of Wal-Mart, and Rocky Heiser (Operations Manager) of Cash Depot can testify regarding the facts [in the case] because of their lack of personal knowledge.” These facts included whether stickers were removed by third parties and whether Lam and Heiser had knowledge of corporate policies regarding compliance with the Electronic Funds Transfer Act.

The Electronic Funds Transfer Act provides for consumer protection by alerting them of fees to be charged. The relevant portion of the EFTA in this case is a requirement that ATM owners and operators who charge consumers fees for withdrawals provide notice of that fact in a “prominent and conspicuous” place, including both the fact and the amount of the fee. The plaintiffs in the case did not dispute, however, that the ATMs included notices in the withdrawal process, as the order stated.

“Plaintiffs do not dispute that an on-screen notice that a $1.50 ATM fee may be charged may have been given, stating, ‘This WalMart Financial Center will charge a fee of $1.50 for a cash withdrawal. This charge is in addition to any fees that may be assessed by your financial institution,'” Judge McCalla wrote.

Judge McCalla found that the knowledge of the two managers in question about corporate policies and the EFTA was sufficient. The Court, he wrote, “finds Lam and Heiser have sufficient personal knowledge and/or information based on review of the business records of the corporations as demonstrated in their respective declarations and depositions to establish, for purposes of admissibility under the Federal Rules of Evidence as to the facts asserted.”

Based on this finding, he explained that because “Plaintiffs have provided no evidence to contradict facts established in Lam and Heiser’s sworn declarations and depositions, which provide the basis for the facts [in the case], and only dispute the admissibility of the submitted evidence, the Court finds the facts undisputed for the purposes of the instant Motions for Summary Judgment.”

Over 1,900 Money Center Express machines are owned and operated by Wal-Mart in the U.S., and Cash Depot leases or rents space from the company for the placement and operation of its ATMs in Wal-Mart stores in Tennessee and Mississippi, where the plaintiffs resided. Wal-Mart machines charged $1.50, and Cash Depot machines charged $1.75  for cash withdrawals, according to court filings.

Neither company had any record of removing the fee notice stickers, or requesting that an employee do so.

The plaintiffs are represented by Eric C. Calhoun of Travis Calhoun & Conlon PC and B.J. Wade of Skouteris & McGee PLLC.

The defendants are represented by Glen G. Reid Jr., Robert L. Crawford, Kacey L. Faughnan and Byron N. Brown IV of Wyatt Tarrant & Combs LLP.

The Wal-Mart ATM Fee Class Action Lawsuit is In re: Wal-Mart ATM Fee Notice Litigation, Case No. 2:11-md-02234, in the U.S. District Court for the Western District of Tennessee, Western Division.