In re Checking Account Overdraft Litigation
281 F.R.D. 667
S.D. Ga.2012Background
- Plaintiffs allege TD Bank used specially designed software to re-sequence debit transactions from highest to lowest to maximize overdraft fees nationwide.
- Plaintiffs claim TD Bank collected hundreds of millions in excessive overdraft fees, harming a broad class of customers, including vulnerable ones.
- Class period runs from the applicable statutes of limitations through August 13, 2010, covering all US TD Bank customers with overdraft fees tied to the sequencing practice.
- Plaintiffs seek certification for multiple state-law claims: breach of contract, duty of good faith and fair dealing, unjust enrichment, unconscionability, and state unfair/deceptive trade practices acts.
- Plaintiffs propose using an expert to identify class members from TD Bank records; damages to be calculated after liability is established.
- Court grants class certification, approves thirteen state-law subclasses, and appoints named plaintiffs and firms as class representatives and class counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rule 23(a) prerequisites met | McNulty argues numerosity, commonality, typicality, adequacy satisfied. | TD Bank contends issues vary and class ascertainability is problematic. | Yes; all 23(a) requirements satisfied |
| Predominance under Rule 23(b)(3) | Common evidence on TD Bank's uniform scheme supports predominance; damages calculable by expert. | TD Bank asserts significant individual issues will predominate. | Predominance satisfied |
| Subclass Certification | Grouped state-law claims can be managed via thirteen subclasses with uniform standards. | TD Bank argues variations undermine subclass utility. | Thirteen subclasses certified |
| Superiority of class treatment | Class action is the most efficient means given small individual damages and widespread harm. | TD Bank challenges efficiency of class treatment. | Class action is superior |
Key Cases Cited
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (predominance standard is demanding; governs Rule 23(b)(3))
- Klay v. Humana, Inc., 382 F.3d 1241 (11th Cir.2004) (burden to prove Rule 23 elements by preponderance; common issues predominate)
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (moves the burden to show each Rule 23(a) element; commonality must be proven)
- In re Cardizem CD Antitrust Litig., 200 F.R.D. 326 (E.D. Mich. 2001) (illustrates analysis of class-wide vs individual proof in complex claims)
- Allapattah Servs., Inc. v. Exxon Corp., 333 F.3d 1248 (11th Cir.2003) (class actions may proceed when common issues predominate across claims)