602 F. App'x 164
5th Cir.2015Background
- Frey sued First National Bank Southwest for an EFTA exterior fee notice violation at an ATM in Plano, Texas; he was charged a $3.50 fee.
- EFTA required two notices: on the machine and on-screen or via a paper notice after transaction initiation but before irrevocable commitment.
- The putative class included consumers charged withdrawal fees at the same ATM during a defined period.
- The EFTA amendment in December 2012 removed the exterior notice requirement but left on-screen notice in place.
- The district court certified the class in February 2013; Mabary v. Home Town Bank later addressed retroactivity and influenced the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Retroactivity of the 2012 EFTA amendment | Frey argues the amendment extinguishes his claims retroactively. | First National argues the amendment should retroactively bar claims. | Amendment not retroactive to extinguish claims. |
| Rule 23 predominance and ascertainability | Class is ascertainable and common issues predominate for liability and damages. | Argues lack of ascertainability and predominance due to account-type inquiry and individualized dates. | Class certification proper; common issues predominate and ascertainability is satisfied. |
Key Cases Cited
- Mabary v. Home Town Bank, N.A., 771 F.3d 820 (5th Cir. 2014) (retroactivity under Landgraf framework; amendment not applied retroactively)
- Landgraf v. USI Film Products, 511 U.S. 244 (U.S. 1994) (two-step retroactivity test for statutory amendments)
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (U.S. 1997) (predominance concerns in complex class actions)
- Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996) (predominance and common issues in class actions)
- Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620 (5th Cir. 1999) (district court abuse of discretion in class certification within Rule 23 framework)