Floyd v. Bank of America Corp.
70 A.3d 246
D.C.2013Background
- Plaintiffs Robin Floyd and Priscilla Fuller, Bank of America customers, sued Bank of America, its holding company, and non‑bank subsidiaries under the D.C. Consumer Protection Procedures Act (CPPA).
- Plaintiffs alleged Bank provided a U.S.‑looking ten‑digit customer service number that sometimes routed calls and transmitted customers’ digitized account data to foreign call/data centers (e.g., India).
- Plaintiffs claimed they were not told their calls or account data would be routed overseas and that routing exposed their data to U.S. government surveillance and loss of U.S. legal protections.
- The Bank moved to dismiss for lack of standing and, alternatively, for failure to state a CPPA claim; the Superior Court dismissed for lack of standing.
- The D.C. Court of Appeals held plaintiffs satisfied CPPA‑based standing (alleged invasion of statutory right to truthful information) but affirmed dismissal because the Complaint failed to state a claim under multiple CPPA subsections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing: whether plaintiffs allege a concrete injury under Article III/CPPA | Plaintiffs alleged statutory injury: they were consumers and were misled/omitted material information about routing and legal exposure of data | Bank argued plaintiffs only alleged speculative fear of government access and no concrete injury | Court: Plaintiffs have CPPA‑based standing (statutory right to truthful information) and may litigate merits |
| § 28‑3904(a),(b),(d): whether ten‑digit number or routing constitutes misrepresentation about characteristics/status/standard of services | Plaintiffs: ten‑digit number represents U.S.‑based service with U.S. law protections; actual routing overseas misrepresents characteristics/status/standards | Bank: no specific representation that overseas reps can invoke U.S. law; ten‑digit numbers do not guarantee geographic/protective attributes | Court: dismissal — plaintiffs did not identify misrepresentations about the Bank’s economic output; claims do not fit those subsections |
| § 28‑3904(f): whether omission of legal consequences (risk of government intrusion) is a material fact | Plaintiffs: Bank failed to disclose legal detriment (forfeiture of protections) — would have affected consumers’ decisions | Bank: the alleged legal assessment is not a factual omission and is not material to ordinary consumers | Court: dismissal — the omission is a legal conclusion, not a factual omission, and not shown to be material to a significant number of unsophisticated consumers |
| § 28‑3904(s),(t): whether Bank ‘‘passed off’’ or used deceptive geographic designations by using a domestic number | Plaintiffs: routing overseas passes off foreign services as U.S. services and uses deceptive geographic designation | Bank: U.S. and overseas centers both provide customer service; domestic‑looking numbers and offshore centers are common and not deceptive per se | Court: dismissal — no plausible pass‑off or deceptive geographic representation; modern telephony and common practice defeat an objectively reasonable expectation of U.S.‑location |
Key Cases Cited
- Grayson v. AT & T Corp., 15 A.3d 219 (D.C. 2011) (CPPA standing can be based on deprivation of statutory right to truthful information)
- Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) (statutory right to truthful information supplies standing)
- Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (2013) (speculative injury insufficient for Article III standing)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (courts need not accept legal conclusions disguised as factual allegations)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standard requires more than labels and conclusions)
- Saucier v. Countrywide Home Loans, 64 A.3d 428 (D.C. 2013) (materiality under CPPA: information an unsophisticated consumer would find important)