Lawsuits seeking class-action status over ATM fee notices have been sent back to U.S. District Court in Omaha after a higher panel hearing an appeal of the case said they should not have been dismissed.
The 8th U.S. Circuit Court of Appeals said this month the suits filed by Douglas County resident Jarek Charvat in 2012 can proceed after being dismissed last year.
The lawsuits say Omaha’s Mutual First Federal Credit Union and First National Bank of Wahoo failed to put signs on or at their ATMs informing users that they might be charged a fee.
Charvat, the appeals court said, made cash withdrawals at ATMs operated by the institutions in early 2012. He was a customer of neither institution and said in his suits that the machines charged him $2 and lacked fee-warning signs. The opinion kicking the suits back to district court said the ATMs did have on-screen notices.
But Charvat’s suits say physical notices in the form of signs on or at the ATMs are required, citing federal law.
The lawsuits seek class-action status representing all people with similar histories involving the ATMs operated by the two financial institutions from early 2011 to early 2012, potentially “thousands” of people, the suits say.
The banks said in their motions to dismiss that Charvat lacked standing by not citing a specific injury.
The lawsuits were dismissed by a judge in U.S. District Court in Omaha in July 2012. The court found Charvat lacked “standing,” or a legally protectable stake or interest. His suits, the court found, objected only to the legal violation that would be posed by the lack of a fee-notice sign, as opposed to citing a specific injury.
The 8th Circuit took a different view after the suits were consolidated for an appeal of the dismissal. The higher panel said in an opinion this month that Charvat’s injury and the alleged statutory violation were sufficiently connected to grant him the standing required for the suit to proceed in U.S. District Court.
“Once Charvat alleged a violation of the notice provisions ...he had standing to claim damages,” the 8th Circuit wrote. “If, hypothetically, Charvat simply heard from an acquaintance that appellees did not provide an on machine notice — but never visited their ATMs, never initiated a transaction, was never charged a transaction fee — then Charvat may well lack the standing to bring a suit.”
Executives at Mutual First Federal Credit Union and First National Bank of Wahoo, and their attorneys, did not respond to email and telephone voice-mail messages. Attorneys for Charvat did not respond to email and telephone voice-mail messages.
Mutual First Federal operates two branches in the metro area and has 12,218 members and $110 million of assets. First National Bank of Wahoo has four branches and $206 million of assets.