WASHINGTON — The banking industry, facing a rash of lawsuits over fee-disclosure signs on ATMs, is hoping for help this week both from Congress and the Supreme Court.
On Capitol Hill, the House Financial Services Committee is scheduled to vote Wednesday on a bipartisan bill that would eliminate the requirement that ATMs display signs disclosing their fees, in light of the fact that ATM users must separately receive an on-screen notice of any charges.
The goal is to stop nuisance lawsuits. Rep. Blaine Luetkemeyer, R-Mo., said that in his home state, one man visited five ATMs, threatened to sue over missing fee-disclosure stickers, and settled the cases for more than $100,000.
"And apparently it's been going on throughout the country," said Luetkemeyer, who is sponsoring the House legislation. "Everybody realizes this is a situation that's got to be fixed."
The day after the House panel votes, the Supreme Court is expected to issue a ruling that observers said has the potential to make the legislative remedy unnecessary.
The Supreme Court case, which involves alleged violations of the Real Estate Settlement Procedures Act, hinges on whether the plaintiff can sue based solely on the fact that the law was violated, regardless of whether the plaintiff suffered any harm as a result.
That parallels the situation with the Electronic Fund Transfer Act, the federal law that plaintiffs have been using to sue over missing ATM fee signs. Because the plaintiffs all agreed to pay the $2 or $3 fee — using on-screen prompts — they cannot argue that they suffered any harm from the missing signs, industry supporters said.
So the Supreme Court ruling, which will be far overshadowed Thursday by the decision on health-care reform, could go a long way toward ameliorating bank industry worries about the recent spike in ATM sign lawsuits.
More than 500 such cases have been filed — against banks, credit unions and retailers that have ATMs — a tally that does not include instances where the dispute was settled out of court before a suit was brought, according to Kurt Helwig, president of the Electronic Funds Transfer Association.
In some cases, there are suspicions that the plaintiff may have actually removed the ATM's fee-disclosure sign before filing suit.
Even if that is not the case, industry officials regard the cases as frivolous, an impression reinforced at the website classactionconnect.com, where visitors are asked whether they used an ATM that did not have a physical sign disclosing fees, and then told: "You may be entitled to money!"
Eric Magnuson, an attorney at Nutter McClennen & Fish LLP in Boston who has represented defendants in these suits, said that the requirement that ATMs disclose fees with stickers dates back to a time when on-screen displays were not as sophisticated as today's machines.
"All modern ATMs that I'm aware of can display the amount that's going to be charged," he said, "which makes this whole regime superfluous."
While bank industry officials are hoping for a favorable ruling from the Supreme Court, it likely will not provide the same degree of comfort that a change in the law would.
The House bill is being co-sponsored by more than half of the Financial Services Committee's members, including many Democrats and Republicans, so it should receive the committee's approval Wednesday. A floor vote in the House of Representatives is expected sometime in July, and the measure seems likely to be approved.
"I think it looks good for us to move this thing, and move it quickly," Luetkemeyer said.
The legislative focus would then shift to the Senate, where Sen. Mike Johanns, R-Neb., has introduced a companion bill.
Johanns said in a written statement Monday that his bill has broad, bipartisan support within the Senate Banking Committee. A committee spokesman said that the bill is still under review and did not commit to a timetable for moving forward with a vote.
"This is obviously one that is easy to do. But nothing is ever easy in the Senate," said James Ballentine, a lobbyist for the American Bankers Association, which is pushing Congress to approve the measure.
The ATM fee legislation has united a variety of trade groups, including some that are accustomed to being on opposite sides of the fence. Joining the bank and credit union trade associations are the National Association of Convenience Stores and the Food Marketing Institute, both of which warred with the banking industry over interchange fees.
A total of 10 trade associations signed a letter sent last week to congressional leadership arguing that the requirement for fee-notice signs has become outdated since it was enacted in the 1990s.
"At that time, off-premise ATMs were relatively uncommon, and some consumers might have been unaware that they may be charged a fee for using an ATM. Also, many ATMs were not capable of providing the notice on the monitor," the groups wrote.
"Today, consumers expect to pay a fee at an ATM unless they are using an ATM owned or operated by the bank or credit union where they have their account or their financial institution has agreed to pay for the use of the ATM."
The only vocal opposition to the bill has come from three consumer groups — Consumers Union, Consumer Action, and the U.S. Public Interest Research Group — which argued in a letter to Luetkemeyer that the physical signs are necessary to inform ATM users before they use the machines that they may incur a fee.
The three consumer groups argued that regulators can address the legal concerns raised by ATM owners without repealing the sign requirement altogether.
In December, the Consumer Financial Protection Bureau asked for public comment on whether the requirement for a physical sign on ATMs should be eliminated, but it has yet to take any action on the issue.