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DOJ files amicus brief supporting plaintiff in Eighth Circuit standing case

Posted in CFPB General

Earlier this week, we wrote about Charvat v. First National Bank of Wahoo, a case pending before the Eighth Circuit that raises the question whether a plaintiff has Article III standing to sue for an alleged statutory violation that caused no actual injury.  The district court had dismissed, for lack of standing, the plaintiff’s class action complaint seeking statutory damages for the bank’s alleged violation of the Electronic Funds Transfer Act requirement that notice of an ATM fee must be posted on the machine.   

We were disappointed to learn that the Department of Justice has filed an amicus brief in support of the plaintiff/appellant, who is asking the Eighth Circuit to reverse the district court’s ruling and find that he has Article III standing.  As we have previously observed, we see little value to consumers in the duplicative posting requirement, which now seems to mainly provide an opportunity for plaintiffs lawyers to manufacture class action lawsuits by looking for ATMs where the posted notice has been removed and then conducting an ATM transaction for which a fee is charged.   For that reason, we were pleased that the CFPB identified the posting requirement as a candidate for elimination in its request last year for public comment on opportunities “to streamline the inherited regulations by updating, modifying, or eliminating outdated, unduly burdensome, or unnecessary provisions.” 

Given that the CFPB may decide to eliminate the posting requirement as unnecessary to protect consumers, we question the DOJ’s use of its resources to file an amicus brief in Charvat.  (Indeed, the DOJ seems unaware that the CFPB inherited the posting requirement in Regulation E, which implements the EFTA, from the Fed. In its brief, the DOJ states that  Congress “anticipated that the Bureau, through rulemaking, would clarify the scope and contours of the notice requirement to which ATM operators are subject,” and that “[t]he Bureau has promulgated a regulation [containing the posting requirement.]“)