Consumer anger over automated teller machine fees has flared again in a lawsuit filed against Bank of America Corp. by a Seattle resident who said he was improperly surcharged at a machine the bank owns in a grocery store.
The lawsuit, filed Sept. 21 in U.S. District Court in Seattle, alleges that the bank violated the Electronic Funds Transfer Act when it surcharged Bank of America customers at unbranded ATMs the bank owns and operates at off-premises sites.
Jeremy Knapp, a Bank of America customer, initiated the lawsuit, and he and his lawyer are seeking class-action status. Mr. Knapp said he was repeatedly surcharged for withdrawals at an ATM in his neighborhood grocery store. When he noticed the Bank of America logo on his receipt, he said, he contacted a customer service representative who verified that the company owns the machine.
The company refunded that months surcharges but subsequently charged Mr. Knapp again for using the machine.
Mr. Knapp is represented by Adam Berger of Schroeter, Goldmark & Bender in Seattle, one of the largest personal injury law firms in the Northwest.
As we read it, Mr. Berger said, the Electronic Funds Transfer Act basically requires the bank to tell its customers up-front when and how much it will charge for fees, so the violation really goes back to the terms of the customer agreement.
Mr. Berger said he is unsure whether the companys current customer agreement covers this practice. He said that the several mergers involving Bank of America make it difficult to determine what customer agreement covered the machine in question.
Mr. Knapps complaint also charges the company with violating the Washington Consumer Protection Act, which, according to the office of the Washington attorney general, declares that unfair and deceptive practices in trade or commerce that harm the public interest are illegal.
Bank of America declined to comment. Thats our policy when theres pending litigation, said Holly Siegel, a spokeswoman.
If the court makes the complaint a class action, Bank of America customers in the state of Washington who have been surcharged on unbranded machines may qualify for reimbursements. Mr. Berger said the plaintiffs will also seek statutory penalties. Under the state Consumer Protection Act, if a class of plaintiffs wins such a case, the court may award triple damages up to $10,000 per plaintiff, in addition to attorneys fees. Violation of the Electronic Funds Transfer Act may incur a damage award of up to $500,000.
Mr. Berger said one goal of the lawsuit is to get the company to stop surcharging its customers at ATMs that it owns. Though the company could justify the surcharge if it were covered under a customer agreement, Mr. Berger said, exposing the practice might be a little difficult in a public relations sense.
Alanna Kellogg, president of an electronic bank consulting firm, Kellogg Group in St. Louis, said it is difficult to gauge how widespread this practice is in the banking industry since, for obvious reasons, banks do not publicize the matter.
With unbranded ATMs, its difficult to know who owns them, especially with the explosion of ATMs owned by nonbanks and retailers, she said.
Ms. Kellogg said the lawsuit against Bank of America may have originated with a servicing mistake in which the wrong receipt paper was installed in the machine, giving away its ownership.
A bank client of hers struggled with this issue, Ms. Kellogg said, when it put ATMs in casinos and did not want its name associated with gambling. The bank in question was very, very careful about altering its customer agreement to reflect the practice, and though we werent going to advertise it, we absolutely presumed that our customers could know, she said.
Though various states and municipalities have tried to take the ATM surcharge issue into their own hands by enacting bans, these efforts have largely failed as courts and regulatory agencies upheld the legality of banks surcharging noncustomers. The Seattle lawsuit may be one of the first attempts by a consumer to fight the surcharge issue or at least one aspect of it through the legal system.
I think what this shows is that people really hate ATM surcharges, Mr. Berger said.
