Lead Opinion
MсKEAGUE, J., delivered the opinion of the court, in which GILMAN, J., joined. ROGERS, J. (p. 356), delivered a separate concurring opinion.
OPINION
As the district court succinctly summarized, this case turns on whether the Electronic Funds Transfer Act (the “EFTA”) permits an automated teller machine’s onscreen notice to read that a fee “may” be charged when a fee “will” be charged. Clemmer v. Key Bank, N.A., No. 06-2654,
I
A. The Electronic Funds Transfer Act
The federal government enacted the EFTA as part of the comprehensive Consumer Credit Protection Act (the “CCPA”), Pub.L. No. 95-630 § 2001, 92 Stat. 3641 (1978) (codified as amended at 15 U.S.C. § 1601 et seq.). The EFTA рrotects individual consumer rights by “providing] a basic framework establishing the rights, liabilities, and responsibilities of participants in electronic fund transfer systems.” 15 U.S.C. § 1693(b). One of the EFTA’s provisions requires that operators of automated teller machines (“ATMs”) provide notice of fees charged to consumers. Specifically, 15 U.S.C. § 1693b(d) states in relevant part:
(3) Fee disclosures at automated teller machines
(A) In general
The regulаtions prescribed under paragraph (1) shall require any automated teller machine operator who imposes a fee on any consumer for providing host transfer services to such consumer to provide notice in accordance with subparagraph (B) to the consumer (at the time the service is provided) of—
(i) the fact thаt a fee is imposed by such operator for providing the service; and
(ii) the amount of any such fee.
(B) Notice requirements (i) On the machine
The notice required under clause (i) of subparagraph (A) with respect to any fee described in such subpara-graph shall be posted in a prominent and conspicuous location on or at the automated teller machine at which the electronic fund transfer is initiated by the consumer.
(ii) On the screen
The notice required under clauses (i) and (ii) of subparagraph (A) with respect to any fee described in such subparagraph shall appear on the screen of the automated teller machine, or on a paper notice issued from such machine, after the transaction is initiated and before the consumer is irrevocably committed to completing the transaction....
C) Prohibition on fees not properly disclosed and explicitly assumed by consumer
No fee may be imposed by any automated teller machine operator in connection with any electronic fund transfer initiated by a consumer for which a notice is required under sub-pаragraph (A), unless—
(i) the consumer receives such notice in accordance with subpara-graph (B); and
(ii) the consumer elects to continue in the manner necessary to effect the transaction after receiving such notice.
The EFTA defines an “automated teller machine operator” as a person who operates an ATM and “is not the financial institution that holds the account” of the consumer using that ATM. 15 U.S.C. § 1693b(d)(3)(D)(i).
The EFTA grants to the Board of Governors of the Federal Reserve System (the “Board”) the authority and responsibility to “prescribe regulations to carry out the purposes” of the act. Id. § 1693b(a). The Board has implemented various administrative regulations codified at 12 C.F.R.
(b) General. An automated teller machine operator that imposes a fee on a consumer for initiating an electronic fund transfer or a balance inquiry shall:
(1) Provide notice that a fee will be imposed for providing electronic fund transfer services or a balance inquiry; and
(2) Disclose the amount of the fee.
12 C.F.R. § 205.16. The rеgulation has different requirements for on-machine and on-screen notices. The on-machine notice must alert a potential consumer that:
(i) A fee will be imposed for providing electronic fund transfer services or for a balance inquiry; or
(ii) A fee may be imposed for providing electronic fund transfer services or for a balance inquiry, but the notice in this paragraph (c)(l)(ii) may be substituted for the notice in paragraph (e)(l)(i) only if there are circumstances under which a fee will not be imposed for such services....
Id. § 205.16(c)(1). The on-screen notice must notify the consumer that a fee will be imposed and the amount of the fee before the consumer commits to paying the fee. Id. § 205.16(c)(2).
B. Factual Background
Key Bank is a federally chartered bank that conducts business in the United States. As a part of its banking services, Key Bank operates ATMs, which permit both Key Bank customers and non-customers to conduct transactions. While Key Bank customers can use the bank’s ATMs free of service fees, the bank usually assesses fees on non-customers who use the ATMs. After a non-customer places the card into a Key Bank ATM and enters the personal identification number, the following message appears on the screen:
This terminal may charge a fee of $2.00 for a cash withdrawal. This charge is in addition to any fees that may be assessed by your financial institution.
Do you wish to continue this transaction?
If yes press to accept fee
If no press to decline fee
However, Key Bank does not actually charge a fee to all non-customers who receive this message and accept the fee. For example, Key Bank does not charge a fee to certain members of the military, customers of affiliated banks, non-customers conducting international transactions, and non-customers using the Key Bank ATM at the Cleveland Clinic. As Charles M. Scavelli, Key Bank’s ATM channel manager, testified during his deposition, only after a non-customer accepts the fee does the Key Bank ATM ascertain whether that person should actually be charged a fee. Scavelli Dep. at 14, 65.
Michael Clemmer is not a Key Bank customer. On November 4, 2005, Clem-mer withdrew $20 from a Key Bank ATM in Rocky River, Ohio. When prompted by the оn-screen message, Clemmer selected “yes,” received his $20, and Key Bank charged him a fee of $2.
Clemmer sued Key Bank in the Northern District of Ohio on behalf of himself and all others similarly situated. He asserted two claims: Count I, failure to provide sufficient on-screen notice, in violation of 15 U.S.C. § 1693b(d)(3) and 12 C.F.R. § 205.16; and Count II, unjust enrichment, in violation of Ohio common law. After permitting limited discovery, the district court granted Key Bank’s motion for summary judgment on both counts and denied Clemmer’s motion for partial summary judgment. Clemmer,
This appeal followed.
We review de novo the district court’s grant of summary judgment. Bender v. Hecht’s Dep’t Stores,
In addition to the EFTA, the CCPA includes several other consumer-protection statutes, including the Truth in Lending Act (the “TILA”), 15 U.S.C. §§ 1601-1667f, and the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681x. With the common purpose of each statute to protect consumers with respect to financial credit, courts draw upon case law interpreting one statute for persuasive authority for another statute. See, e.g., Johnson v. W. Suburban Bank,
Clemmer’s primary argument on appeal is straightforward: the EFTA and Regulation E both require a definite statement on the screen to the effect that a fee “is” or “will be” charged if Key Bank in fact charges a fee to a non-customer using its ATM. Beyond the language of the statute and regulation, 15 U.S.C. § 1693b(d)(3)(A)(i) (“is”); 12 C.F.R. § 205.16(b)(1) (“will be”), Clemmer finds additional support from an inferencе-by-omission: because Regulation E explicitly authorizes the indefinite “may” for on-machine notice but does not likewise authorize such language for on-screen notice, the regulation implicitly prohibits a “may” notice on the screen. This makes sense, according to Clemmer, because the on-machine notice must account for overall ATM usage while the on-screen notice can be. transaction specific.
We take no position on whether the Board properly exercised its discretion under the EFTA by permitting a “may” notice for ATM machines. We do, however, reject Clemmer’s argument that any use the term “may” on ■the screen necessarily causes the on-screen notice to be deficient.
“As in all statutory construction cases, we begin with the language of the statute.” Barnhart v. Sigmon Coal Co., Inc.,
Clemmer argues that the on-screen message must convey to “a certainty that thе [consumer] will be charged a fee.” Id. Clemmer argues, in essence, that the onscreen message can be neither under-broad (failing to notify a consumer who is actually charged a fee) nor over-broad (notifying a consumer of a fee that is not actually charged). In support, he directs us to a statement made by the Board to explаin recent changes to its regulations. In the January 2006 Federal Register notice of the revised final rule and official staff interpretation regarding on-machine notice, the Board explained in the preamble:
The final rule clarifies the two-part disclosure scheme established in Section 904(d)(3)(B) of the EFTA. The first disclosure, on ATM signage posted on or at the ATM, allows consumers to identify quickly ATMs that generally charge a fee for use. This disclosure is not intended to provide a complete disclosure of the fees associated with the particular type of transaction the consumer seeks to conduct. Until a consumer uses his or her card at an ATM, the ATM operator does not know whether a surchargе will be imposed for that particular consumer. Rather, it is the second, more specific disclosure, made either on the ATM screen or on an ATM receipt, that informs the consumer before he or she is committed to the transaction whether, in fact, a fee will be imposed for the transaction and the amount of the fee. Thus, consumers who are charged a fee would not be adversely affected by a general notice that a fee “may” be imposed because they will have the opportunity to terminate the transaction after receiving the on-screen notice or receipt containing the transaction-specific disclosure.
71 Fed.Reg. 1638, 1656 (Jan. 10, 2006). Indeed, the district court appears to have read the phrase “whether, in fact, a fee will be imposed” to imply that an ATM screen must provide “flawless transaction-specific notice.” Clemmer,
We are not, however, confronted with both types of purported error in this lawsuit. Neither Clemmer nor any of the members of the class he seeks to represent is in the over-broad category — none of them were allegedly notified of a fee but not actually charged a fee. Under the facts alleged in the complaint, neither Clemmer nor his purported class has standing to raise the hypothetical claim that notice was incorrect because a fee was not charged.
Clemmer’s remaining arguments also fail. He points us tо a number of district court decisions involving ATM fee notice. The decisions are not, however, relevant or persuasive here because they either involve on-machine notice, not on-screen notice, see Brown v. Bank of Am., N.A., 457 F.Supp.2d 82 (D.Mass.2006); Morrissey v. Webster Bank, N.A.,
Clemmer also argues that the on-screen notice provision is a striet-liability requirement. See 15 U.S.C. §§ 1693b(d)(3), 1693m(a). True enough, see Bisbey v. D.C. Nat’l Bank,
Thus, because Key Bank provided sufficient on-screen notice of the fee it charged Clemmer, we affirm summary judgment in favоr of the bank on Clemmer’s EFTA claim (Count I). As for his unjust enrichment claim (Count II), Clemmer predicated that claim on Key Bank’s alleged enrichment from the ATM fee imposed in violation of the EFTA. Without a violation of the EFTA, Clemmer’s claim of unjust enrichment necessarily fails.
Ill
Accordingly, for the reasons provided above, we AFFIRM summary judgment in favor of Key Bank on both counts оf Clem-mer’s complaint.
Notes
. Arguably, the EFTA permits an on-screen message to be over-broad, meaning that a user could get notice that he is to be charged a fee, but then not actually be charged the fee. The imposition of a fee appears to be a precondition for a violation of § 1693b(d)'s notice requirements. See 15 U.S.C. § 1693b(d)(3)(A) (providing that an ATM operator cannot impose a fee on “any consumer” unless "such consumer” is notified that a
Concurrence Opinion
concurring.
I concur, but my reasoning differs a little from that of the majority. In my view, the statutory language, 15 U.S.C. § 1693b(d)(3)(A) & (B)(ii), does not preclude Key Bank from charging a fee following an on-screen notice that the ATM-user is subject to a fee charge, even if the fee may in actuality not be charged to some classes of users. The relevant statutory language is identical to language regarding on-machine notice, see id. § 1693b(d)(3)(A) & (B)(i), as to which the regulations explicitly permit such qualified notice, 12 C.F.R. § 205.16(c)(l)(ii). Because the on-screen notice in this case clearly notified Clemmer that he was subject to a charge, it is not necessary for us to determine whether the on-screen message told him that he would in fact be charged. It is also not necessary for us to determine whether the Commissioner could by regulation impose a flawless notice requirement for on-screen messages.