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Brown v. Wells Fargo & Co.

United States District Court, Eighth Circuit

December 30, 2013

ANTHONY BROWN, on behalf of himself and all others similarly situated, Plaintiff,
v.
WELLS FARGO & COMPANY and WELLS FARGO BANK, N.A., Defendants.

Curtis P. Zaun, CHAMPION LAW LCC, Minneapolis, MN, and Mark L. Vavreck, MARTINEAU, GONKO & VAVRECK, PLLC, Minneapolis, MN, for plaintiff.

Shari L.J. Aberle, DORSEY & WHITNEY, LLP, Minneapolis, MN, for defendants.

MEMORANDUM OPINION AND ORDER

JOHN R. TUNHEIM, District Judge.

Plaintiff Anthony Brown brought this putative class action against Defendant Wells Fargo Bank, N.A. ("Wells Fargo")[1] alleging that Wells Fargo violated the Electronic Funds Transfer Act, 15 U.S.C. §§ 1693a et seq. ("EFTA"). On July 25, 2012, this Court granted partial summary judgment to Brown with respect to his claim that Wells Fargo had violated the EFTA by failing to provide "prominent and conspicuous" notice on the ATM that a fee would be charged. The Court denied Brown's motion to certify a class because he failed to precisely define a class and failed to demonstrate he was a representative member of that class. On December 20, 2012, the EFTA was amended and the on-machine fee notice requirement was eliminated. Wells Fargo now moves for reconsideration of the Court's prior order in light of this amendment to the EFTA. Brown brings a second motion to certify a class.

The Court will deny Wells Fargo's motion to reconsider the order granting plaintiff partial summary judgment because it finds that the pre-amendment version of the EFTA applies to Brown's transaction. The Court will also deny Brown's second motion for class certification because Brown fails to demonstrate that a class is a superior means of adjudicating the controversy due to the difficulty of correctly identifying and notifying all the class members.

BACKGROUND

Underlying Events

In May 2011, Brown used a Wells Fargo ATM in a gas station on East Seventh Street in St. Paul ("Seventh Street ATM"). (Am. Compl. ¶ 6, Aug. 15, 2011, Docket No. 9.) Brown does not have an account with Wells Fargo and so incurred a $3.00 transaction fee when he withdrew money. ( Id. ) Brown does not contest that he knew that Wells Fargo would charge him a fee before he completed the transaction because he received on-screen notice of the fee and the amount. ( See generally Am. Compl.; Decl. of Timothy Ward ¶ 8, Jan. 13, 2012, Docket No. 24.) Brown's amended complaint alleges that the fee notice on the Seventh Street ATM was not "posted in a prominent and conspicuous location, " as required by the EFTA until December 20, 2012. 15 U.S.C. § 1693b(d)(3)(B)(i) (2010). ( See Am. Compl. ¶ 38.)

On July 25, 2012, this Court ruled that the fee notice on the Seventh Street ATM was not in a "prominent and conspicuous" location as a matter of law. (Order, Jul. 25, 2012, Docket No. 63). Although this Order addressed all pending claims, it did not address the issues of attorneys' fees and damages; therefore, the Order was not a final judgment.[2]

Amendment of the EFTA

After this Court's prior order, Congress enacted a bill eliminating the EFTA's on-machine fee notice requirement. See Amendment-Electronic Fund Transfer Act, Pub. L. No. 112-216, 126 Stat. 1590 (2012). The amendment, however, does not state that it is to apply retroactively.

Section 1693b(3)(B) now states:

The notice required... shall appear on the screen of the automated teller machine, or on a paper notice issued from such machine, after the transaction is initiated and before the consumer is irrevocably committed to completing the transaction.

Wells Fargo asks the Court to reconsider its prior order granting summary judgment for Brown on his EFTA claim, arguing that the amendment to the EFTA should apply to pending cases.

Brown's Second Motion for Class Certification

In his second motion for class certification, Brown seeks to certify ...


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