There have been quite a few attempts to sue financial institutions for ATMs where the fee sign is missing. Some CU folks have even speculated that plaintiffs’ lawyers have gone out under cover of darkness, pried off some signs and sent out willing plaintiffs to make withdrawals the next day.
I’m sure such skullduggery is merely anecdotal. What is real however, is a recent case where an ATM provider avoided a class action by making an Offer of Judgment to a plaintiff for everything he would have been owed under the Electronic Funds Transfer Act, 26 days prior to the plaintiff’s filing for class certification.
If that sounds interesting but Byzantine it’s because it is. In essence, a defendant can take the wind out of the sails of a putative class action plaintiff by making an Offer of Judgment 10 days prior to the plaintiff’s Motion for Class Certification. Clear as mud? Let’s take a hypothetical.
Anthrax Research Federal Credit Union owns an ATM attached to one of its branches. One night, the EFTA notice concerning ARFCU’s $1.00 for non-member withdrawals mysteriously vanishes. Felix Filcher then makes a withdrawal the next day and a week later, Attorney Benny Bumbles sues the credit union for the EFTA violation for not having a sign on the ATM. The credit union makes an Offer of Judgment for $1000.00 for the statutory violation. Attorney Bumbles has 10 days to move for class action status and if he fails to do that, it’s game over for Filcher. Take a look at Stilz v. Global Cash Network, Inc., No. 10 CV 1998 (N.D.Ill., Oct. 7, 2010) (2010 WL 3975588) if you want to see this concept in action.
If you can stomach it, Google “class action attorney” if you want to see how big a business class actions have become.