This document provides a summary of the overdraft fee litigation landscape and a recent adverse ruling against Wells Fargo. It discusses how over 50 putative class action lawsuits have been filed challenging overdraft practices. It summarizes a recent case, Gutierrez v. Wells Fargo, where the court found Wells Fargo's practices of high-to-low posting, transaction commingling, and use of shadow lines to be unfair and fraudulent. The court ordered injunctive relief and estimated $203 million in restitution for California customers. Emerging data suggests consumers want overdraft protection, undermining the Gutierrez ruling, and regulation of fees may be improper. The litigation and regulatory issues around overdraft fees remain un
PLI M&A 2017 - Advanced Trends Opening Remarks 1-12-17 (Display)Kevin Miller
This document provides an opening remarks summary for a conference on mergers and acquisitions trends from 2017. It discusses four significant trends from prior years that have affected Delaware litigation: 1) adoption of exclusive venue bylaws, 2) the M&F Worldwide decision permitting dismissal of claims with controller transactions under certain conditions, 3) the Cornerstone Therapeutics decision permitting dismissal of duty of care claims with an exculpatory clause, and 4) the Corwin v. KKR Financial decision establishing the business judgment rule for fully informed stockholder approved mergers. It then summarizes major mergers and acquisitions developments and cases from 2016 related to interpreting and applying the Corwin decision.
The SEC has announced a policy shift where it will now require admissions of wrongdoing from defendants in some enforcement cases, particularly those involving widespread investor harm or egregious misconduct. This change could impact companies in several ways: (1) it may discourage cooperation and settlements if defendants are unwilling to admit wrongdoing, leading to more litigation; (2) it could prolong returning funds to investors if more cases go to court; and (3) it may have unintended consequences for the SEC by tying up more resources in litigation. However, the SEC hopes this new policy will increase accountability and deterrence, though it remains to be seen if the benefits outweigh the costs.
Quatro Banking Corporation is launching an investment opportunity to raise £16-20 million for an innovative e-banking project. The document outlines Quatro's mission to create a secure online banking system without physical branches that allows customers to access and transfer funds electronically. Investors who purchase shares in Quatro Finance Ltd. will benefit from the projected rapid growth of the e-banking system over the next 5 years, with customer accounts expected to increase from 1 million to 30 million and annual income projected to rise from £15 million to £450 million. The investment covers development of the e-banking technology as well as physical assets like a card manufacturing facility.
This document discusses the launch of designer debit cards in India. It notes that debit cards have become the main interface people have with banks, interacting with cards 9 times per month on average. However, current debit cards in India are seen as reminders of lower status and do not reflect the aspirations of new generations. The presentation proposes launching designer debit cards with innovative designs, shapes, colors and motifs to make debit cards a statement of lifestyle and status. This would help debit cards gain prestige currently enjoyed by credit cards and disrupt the market by answering the consumer need to stand out and be noticed.
This document outlines a plan for engaging the public and stakeholders on the topic of nuclear energy. It begins with an introduction to Gemaker, a communications company. It then discusses nuclear energy's current position and arguments in its favor from an MIT professor. The bulk of the document provides a detailed plan for public engagement, including polls and research, public information sessions, addressing concerns, and providing facts to dispel myths. It gives an example of a public consultation in the UK and concludes with a vision for nuclear energy being a reliable, low-carbon source in the future.
PLI M&A 2017 - Advanced Trends Opening Remarks 1-12-17 (Display)Kevin Miller
This document provides an opening remarks summary for a conference on mergers and acquisitions trends from 2017. It discusses four significant trends from prior years that have affected Delaware litigation: 1) adoption of exclusive venue bylaws, 2) the M&F Worldwide decision permitting dismissal of claims with controller transactions under certain conditions, 3) the Cornerstone Therapeutics decision permitting dismissal of duty of care claims with an exculpatory clause, and 4) the Corwin v. KKR Financial decision establishing the business judgment rule for fully informed stockholder approved mergers. It then summarizes major mergers and acquisitions developments and cases from 2016 related to interpreting and applying the Corwin decision.
The SEC has announced a policy shift where it will now require admissions of wrongdoing from defendants in some enforcement cases, particularly those involving widespread investor harm or egregious misconduct. This change could impact companies in several ways: (1) it may discourage cooperation and settlements if defendants are unwilling to admit wrongdoing, leading to more litigation; (2) it could prolong returning funds to investors if more cases go to court; and (3) it may have unintended consequences for the SEC by tying up more resources in litigation. However, the SEC hopes this new policy will increase accountability and deterrence, though it remains to be seen if the benefits outweigh the costs.
Quatro Banking Corporation is launching an investment opportunity to raise £16-20 million for an innovative e-banking project. The document outlines Quatro's mission to create a secure online banking system without physical branches that allows customers to access and transfer funds electronically. Investors who purchase shares in Quatro Finance Ltd. will benefit from the projected rapid growth of the e-banking system over the next 5 years, with customer accounts expected to increase from 1 million to 30 million and annual income projected to rise from £15 million to £450 million. The investment covers development of the e-banking technology as well as physical assets like a card manufacturing facility.
This document discusses the launch of designer debit cards in India. It notes that debit cards have become the main interface people have with banks, interacting with cards 9 times per month on average. However, current debit cards in India are seen as reminders of lower status and do not reflect the aspirations of new generations. The presentation proposes launching designer debit cards with innovative designs, shapes, colors and motifs to make debit cards a statement of lifestyle and status. This would help debit cards gain prestige currently enjoyed by credit cards and disrupt the market by answering the consumer need to stand out and be noticed.
This document outlines a plan for engaging the public and stakeholders on the topic of nuclear energy. It begins with an introduction to Gemaker, a communications company. It then discusses nuclear energy's current position and arguments in its favor from an MIT professor. The bulk of the document provides a detailed plan for public engagement, including polls and research, public information sessions, addressing concerns, and providing facts to dispel myths. It gives an example of a public consultation in the UK and concludes with a vision for nuclear energy being a reliable, low-carbon source in the future.
This document provides guidance on generating new revenue with cards in 2014. It discusses how cards work, why they are effective, executing a successful card campaign, tools for success, and a case study. Cards are packages of discounted goods and services from local merchants that are promoted and sold by media companies. They can drive significant revenue, with sites keeping 80% of sales. Common card types include golf, skiing, spas, and dining. Planning includes choosing a card type, prospecting merchants, creating a sales package, setting up the card, and promoting it across multiple channels. Tools include templates, fulfillment options, and the Second Street Lab platform.
This document summarizes arguments against the proposed HS2 high-speed rail project in the UK. It argues that HS2 is not good value for money based on a flawed cost-benefit analysis that exaggerates benefits and underestimates costs. It also argues that there are viable capacity alternatives to HS2 on existing lines, and that HS2 will not meaningfully reduce regional economic imbalances or domestic air travel as claimed. In summary, the document asserts that HS2 is a waste of public money and not the right priority based on overstated benefits, underestimated costs, and availability of better alternatives.
Introducing session 'The Business Case for Integrated Energy-Water Planning and Investments' at 2014 UN-Water Annual International Zaragoza Conference. Preparing for World Water Day 2014: Partnerships for improving water and energy access, efficiency and sustainability. 13-16 January 2014
Topul bancilor cu cel mai mare volum de publicitate inregistrat in 2013 (Roma...Constantin Cocioaba
Top 10 banci cu cele mai multe reclame in 2013 sunt:
1. Volksbank
2. banca Comerciala Romana
3. Bancpost
4. Banca Transilvania
5. Raiffeisen Bank
6. Piraeus bank
7. ING Bank
8. Banca Romana pentru Dezvoltare
9. Alpha Bank
10. OTP Bank
The document discusses launching a campaign for Citibank's World Money Card targeted at India's growing outbound leisure travel market. It notes that India is now the third largest outbound travel market in Asia Pacific, with over 10 million Indians traveling abroad in 2008-2009. Factors fueling growth include rising incomes, more affordable foreign destinations due to recession, and new low-cost carriers. The campaign will highlight the security and convenience advantages of using Citibank's World Money Card over cash or traveler's checks for carrying foreign exchange while traveling overseas.
The passage of credit card reform legislation and the economic crisis present challenges and opportunities for card issuers. Major issuers are tightening standards while smaller issuers see a chance to gain market share. This is a prime opportunity for smaller issuers to differentiate their offerings as public sentiment has turned against large banks for credit card and banking practices. The speaker, Doreen Fox Kelsey, provides marketing consulting and writes on financial literacy topics.
Riverisland: Inordinate Burdens or Leveling the Playing Field, California Litigation, Vol. 27, No. 2 (July 2014).
Discusses the litigation implications of the new fraud exception to the parol evidence rule, including the likely coming application to at-will employment contracts.
The Bankruptcy Court ruled that certain secured obligations and associated liens incurred by Tousa and its subsidiaries to pay off a prior lender were avoidable as fraudulent conveyances. The District Court reversed this decision but the 11th Circuit Court of Appeals affirmed the Bankruptcy Court's original ruling, finding that the subsidiaries received no value from the payments and liens. The 11th Circuit held that the loan proceeds must be disgorged from the prior lender. This sets an important precedent that payments to creditors that simply delay bankruptcy without providing reasonably equivalent value can be considered fraudulent conveyances.
our contribution to January issue of DS NEWSmjbarker
In the January issue of DS NEWS, we have included an article regarding the ability of the judiciary to sanction mortgage foreclosure defense attorneys for delay tactics
This document summarizes a recent court case that applied fraudulent conveyance statutes to a pre-bankruptcy sale of assets. In the Crown Stock Distribution case, the debtor sold all its assets to a new company (Newco) financed by a bank loan, then defaulted on the notes and filed for bankruptcy. The court ruled the sale was a fraudulent conveyance, as the debtor received inadequate value and was left with too much debt to avoid bankruptcy. The trustee was entitled to recover cash payments made to shareholders from the sale. The case shows unsecured creditors using legal theories to assert claims against third parties to recover funds for creditors.
Staying Out of Trouble (with the California State Bar) 2016Gabriela Ocampo
The document discusses the disciplinary process for attorneys in California. It begins with an overview of how complaints are investigated and may lead to charges and a trial in the State Bar Court. It then covers sources of complaints, reasons for a rise in complaints in 2009-2010, ways for attorneys to protect themselves in retainer agreements, rules regarding fees and referrals, duties and reporting requirements for attorneys, and examples of attorney misconduct cases.
This document provides guidance on generating new revenue with cards in 2014. It discusses how cards work, why they are effective, executing a successful card campaign, tools for success, and a case study. Cards are packages of discounted goods and services from local merchants that are promoted and sold by media companies. They can drive significant revenue, with sites keeping 80% of sales. Common card types include golf, skiing, spas, and dining. Planning includes choosing a card type, prospecting merchants, creating a sales package, setting up the card, and promoting it across multiple channels. Tools include templates, fulfillment options, and the Second Street Lab platform.
This document summarizes arguments against the proposed HS2 high-speed rail project in the UK. It argues that HS2 is not good value for money based on a flawed cost-benefit analysis that exaggerates benefits and underestimates costs. It also argues that there are viable capacity alternatives to HS2 on existing lines, and that HS2 will not meaningfully reduce regional economic imbalances or domestic air travel as claimed. In summary, the document asserts that HS2 is a waste of public money and not the right priority based on overstated benefits, underestimated costs, and availability of better alternatives.
Introducing session 'The Business Case for Integrated Energy-Water Planning and Investments' at 2014 UN-Water Annual International Zaragoza Conference. Preparing for World Water Day 2014: Partnerships for improving water and energy access, efficiency and sustainability. 13-16 January 2014
Topul bancilor cu cel mai mare volum de publicitate inregistrat in 2013 (Roma...Constantin Cocioaba
Top 10 banci cu cele mai multe reclame in 2013 sunt:
1. Volksbank
2. banca Comerciala Romana
3. Bancpost
4. Banca Transilvania
5. Raiffeisen Bank
6. Piraeus bank
7. ING Bank
8. Banca Romana pentru Dezvoltare
9. Alpha Bank
10. OTP Bank
The document discusses launching a campaign for Citibank's World Money Card targeted at India's growing outbound leisure travel market. It notes that India is now the third largest outbound travel market in Asia Pacific, with over 10 million Indians traveling abroad in 2008-2009. Factors fueling growth include rising incomes, more affordable foreign destinations due to recession, and new low-cost carriers. The campaign will highlight the security and convenience advantages of using Citibank's World Money Card over cash or traveler's checks for carrying foreign exchange while traveling overseas.
The passage of credit card reform legislation and the economic crisis present challenges and opportunities for card issuers. Major issuers are tightening standards while smaller issuers see a chance to gain market share. This is a prime opportunity for smaller issuers to differentiate their offerings as public sentiment has turned against large banks for credit card and banking practices. The speaker, Doreen Fox Kelsey, provides marketing consulting and writes on financial literacy topics.
Riverisland: Inordinate Burdens or Leveling the Playing Field, California Litigation, Vol. 27, No. 2 (July 2014).
Discusses the litigation implications of the new fraud exception to the parol evidence rule, including the likely coming application to at-will employment contracts.
The Bankruptcy Court ruled that certain secured obligations and associated liens incurred by Tousa and its subsidiaries to pay off a prior lender were avoidable as fraudulent conveyances. The District Court reversed this decision but the 11th Circuit Court of Appeals affirmed the Bankruptcy Court's original ruling, finding that the subsidiaries received no value from the payments and liens. The 11th Circuit held that the loan proceeds must be disgorged from the prior lender. This sets an important precedent that payments to creditors that simply delay bankruptcy without providing reasonably equivalent value can be considered fraudulent conveyances.
our contribution to January issue of DS NEWSmjbarker
In the January issue of DS NEWS, we have included an article regarding the ability of the judiciary to sanction mortgage foreclosure defense attorneys for delay tactics
This document summarizes a recent court case that applied fraudulent conveyance statutes to a pre-bankruptcy sale of assets. In the Crown Stock Distribution case, the debtor sold all its assets to a new company (Newco) financed by a bank loan, then defaulted on the notes and filed for bankruptcy. The court ruled the sale was a fraudulent conveyance, as the debtor received inadequate value and was left with too much debt to avoid bankruptcy. The trustee was entitled to recover cash payments made to shareholders from the sale. The case shows unsecured creditors using legal theories to assert claims against third parties to recover funds for creditors.
Staying Out of Trouble (with the California State Bar) 2016Gabriela Ocampo
The document discusses the disciplinary process for attorneys in California. It begins with an overview of how complaints are investigated and may lead to charges and a trial in the State Bar Court. It then covers sources of complaints, reasons for a rise in complaints in 2009-2010, ways for attorneys to protect themselves in retainer agreements, rules regarding fees and referrals, duties and reporting requirements for attorneys, and examples of attorney misconduct cases.
This document summarizes a research paper that investigated factors influencing the quality of adjudication of complex payment disputes in Australia. It begins by providing background on statutory adjudication processes in different Australian states. It then discusses what constitutes a large or complex claim and reviews literature on this topic. Finally, it identifies five key factors that can impact the quality of adjudication determinations: the method of adjudicator appointment; regulation of adjudicators; reviewability of determinations; timeframes in the adjudication process; and adjudicators' powers. The document provides an overview of criticisms of different approaches to these factors under various state legislation and considers their potential influence on producing quality determinations, particularly for large or complex claims.
Restoring the Corners to Contracts- David J. Myers, ESQ.Debi Myers
1. The document discusses changes to California's parole evidence rule regarding fraud exceptions. Previously, oral inducements inconsistent with written contracts could not be used to claim fraud. However, a recent court case now allows such claims to prevent fraudulent inducement.
2. Going forward, contract expectations will be less certain as fraud claims and litigation focusing on parties' intent and reliance will be more common. Boilerplate clauses will provide less protection. Sophistication of parties and reasonableness of reliance will be important factors.
3. Some potential limitations discussed include failing to read a contract, sophistication of parties, bargaining power differences, and failure to investigate. Reformation of contract terms based on fraud may also now be available
All product and company names mentioned herein are for identification and educational purposes only and are the property of, and may be trademarks of, their respective owners.
Defined Contribution Plans and Fee Lawsuits: Stuck in the Mud or the Road to ...Callan
The document summarizes recent 401(k) fee lawsuits against plan sponsors and discusses best practices for sponsors to avoid costly litigation. It notes that nearly 40 lawsuits have been filed since 2006 regarding issues such as excessive fees, revenue sharing violations, and imprudent investment options. Settlements have typically required sponsors to reduce fees, improve investment options, and enhance disclosures. The document examines some high-profile lawsuits and concludes by recommending sponsors closely monitor fees, benchmark expenses, and document their oversight to stay out of legal trouble.
The settlement will provide $25 billion in relief to homeowners and penalties for banks. It represents the largest financial recovery by state attorneys general. Hundreds of thousands of homeowners will receive assistance to stay in their homes or funds if they were improperly foreclosed on. The settlement also mandates extensive reforms to mortgage servicing standards and practices.
The settlement will provide $25 billion in monetary sanctions and relief to address foreclosure misconduct by five major banks. This includes $17 billion to help hundreds of thousands of homeowners stay in their homes through loan modifications and other assistance programs. It also establishes comprehensive mortgage servicing reforms and oversight to prevent improper foreclosure practices like robo-signing going forward.
As uncertainty continues in the national and global economies, the business world should expect to see a growing number of creditors that try to force borrowers into paying their debts, especially through involuntary bankruptcy. Though usually complicated and perhaps not preferable, involuntary bankruptcy serves a purpose in protecting both creditors and debtors.
The document discusses the history and current state of the billable hour system used by law firms to bill clients. It traces the evolution of the billable hour from a flat fee system in the early 20th century to the widespread adoption of hourly billing by law firms in the 1960s. It also examines how courts have ruled that paralegal time can be billed at market rates and outlines best practices for law firms to accurately track and bill for paralegal time in order to receive full compensation.
The world of due diligence is designed to be predictable and stable – but change is inevitable. This presentation reviews the changes facing modern due diligence and provides strategies to best manage these updates. CT’s expert consultant will specifically discuss changes in Delaware corporate law, due diligence recordings, case law, and cyber due diligence.
Learn About:
Changes and updates to statutory law
Cybersecurity / due diligence
UCC-3 Issues
General Motors case and terminations
Legal Proceedings Initiated Against Steven de Koenigswarter and Associated En...Theworld Crawler
Court order from the Superior Court of Justice in Ontario, Canada. The order is dated July 4, 2023, and it is addressed to Steven de Koenigswarter, Luc Georges de Clerck, the de Koenigswarter Family Trust, the Health Factory Holding BV, and Venator International SA.
The order states that a legal proceeding has been commenced against the defendants by the plaintiff, 2705564 Ontario Inc. The claim made against the defendants is set out in the statement of claim that was served with the notice of action
This document provides guidelines and considerations for handling fraud and RICO claims. It discusses evaluating the viability of fraud claims, common types of fraud, investigating the assets and characteristics of alleged fraudsters, challenges in investigating complex fraud schemes, and considerations for drafting complaints. It emphasizes the need to clearly articulate the specific actions of each defendant and provide factual support for allegations due to the high pleading standards required in fraud cases.
This document provides practical tips and guidance for appellate practice regarding supersedeas issues. It summarizes recent developments in case law surrounding how to calculate bond amounts required to suspend enforcement of a judgment pending appeal. Specifically, it discusses how courts have determined that attorney's fees are not considered compensatory damages or costs for purposes of calculating bond amounts. It also addresses issues around considering net worth affidavits of affiliated companies and whether consolidated or individual financial statements should be used.
This document discusses proper valuation and exemption of property in consumer bankruptcy cases. It notes that accurately disclosing and claiming exemptions for assets like a home or car is important to allow the debtor to keep those assets after bankruptcy. The document provides guidance on properly valuing and exempting different types of assets, like real property, vehicles, and legal claims or lawsuits. It examines court rulings on issues like how appreciation in an asset's value after filing affects exemptions, and the level of detail and specificity required to disclose potential legal claims. The document emphasizes that full disclosure, with clear explanations of valuations, helps prevent issues with judicial estoppel or objections to discharge down the road.
Recent California Appellate Cases that Affect Real Estate v2Michael Slattery
The document summarizes several recent California appellate court cases that affect real estate lenders. It discusses cases related to deficiency judgments after short sales, violations of the "one form of action" rule, borrowers bringing "mass actions" against lenders, and a borrower's standing to challenge a foreclosing lender's chain of title.
Elizabethan England in the 2010 Global RecessionDavidConaway
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2. KRCLFINANCIALSERVICESLITIGATION
"I warn you, Sir! The discourtesy of this
bank is beyond all limits. One word more
and I—I withdraw my overdraft."
Punch Magazine, Vol. 152, June 27, 1917
KRCL LITIGATION ALERT–MORE CONFLICT AND DEBATE ON
THE OVERDRAFT LITIGATION ROAD
By Kenneth Johnston, James Greer, and Julie Biermacher
Introduction The Overdraft Litigation Landscape
Courts across the country have seen a proliferation of class- In June 2009, in an effort to uniformly administer the growing
action lawsuits challenging overdraft practices and policies. number of overdraft lawsuits, the Judicial Panel on
As discussed in a previous KRCL Litigation Alert from June Multidistrict Litigation consolidated the pretrial proceedings
2010,1 at least fifty-seven putative class-action lawsuits are for overdraft cases pending in the federal courts (the
pending nationwide. These lawsuits challenge the methods "Overdraft MDL").2 The Panel has transferred to the
used by banks in posting and processing debit transactions. Overdraft MDL all but a few overdraft cases pending in the
The plaintiffs generally assert that banks improperly reorder federal courts. One exception is a California case styled
debit transactions in "high-to-low" order, thereby causing Veronica Gutierrez, Erin Walker and William Smith, as
artificially high overdraft fees. In response, the defendants individuals and on behalf of all others similarly situated v.
generally assert that "high-to-low" posting is authorized by Wells Fargo Bank, N.A., Cause No. 07-05923 ("Gutierrez").
law and regulation.
At present, the Overdraft MDL is on hold pending subject
This Alert provides brief background on the overdraft matter jurisdiction rulings by the Eleventh Circuit. 3 Because
litigation landscape; discusses a recent ruling adverse to a the plaintiffs in Gutierrez filed their lawsuit in November
bank; highlights new data which suggests that consumers 2007, well before the Overdraft MDL, the Panel denied its
want the overdraft protection that is at the heart of the class- transfer to the Overdraft MDL. Gutierrez proceeded to a
action litigation; and raises questions about the propriety of bench trial on May 7, 2010.Gutierrez is significant because it
courts regulating the price of overdraft fees. is the only case that has proceeded to trial and resulted in an
adverse ruling against a bank.
KRCL Litigation Alert October 2010 1
3. On August 10, 2010, the Gutierrez court issued
Findings of Fact and Conclusions of Law in
favor of the Gutierrez plaintiffs on several The three practices criticized in Gutierrez involved "high-to-low"
critical issues explained in detail below.4
posting, transaction commingling, and use of a "shadow line" to
Based on the court's findings, injunctive relief
was ordered and significant restitution was support decisions to cover overdrafts:
awarded to the Gutierrez class members. In
response, on September 8, 2010, Wells Fargo • "High-to-low" posting means that when a bank receives multiple
filed an appeal. items for payment on a customer's account, the bank will pay the
largest-sum items first and the smallest-sum items last.
Thus, the overdraft cases will likely continue for Historically, many banks and regulators supported this practice
the foreseeable future. to ensure that the most important items (and typically most
expensive), such as a mortgage or rent payment, would be paid.
What Happened in Gutierrez?
However, in practice, "high-to-low" posting can lead to more
Gutierrez, as well as most overdraft litigation, overdraft fees than would otherwise be assessed if the bank had
did not directly challenge the general policy of followed a "low-to-high" or chronological posting order.
overdraft fees. This is no surprise because
regulators encourage the use of overdraft fees • Commingling debits entails a bank's aggregation of various debit
to deter habitual overdraft usage and to transactions into a single batch versus a posting in a pre-
promote the safety and soundness of the specified order (i.e., payment of all checks, then payment of all
banking system. 5 Nonetheless, without giving debit-card transactions, etc.). Wells Fargo commingled all
much consideration to Wells Fargo's defenses,
checks, ACH debits, cash withdrawals and debit-card
the Gutierrez court criticized three specific
overdraft practices that Wells Fargo used in its transactions into a single batch and then posted high-to-low.
overdraft program. The court concluded that Under this policy, the largest items will always be paid first – no
together these three practices "formed a 'one- matter what type of transaction it is.
two-three' punch to maximize the overdraft-
multiplying effect of a 'high-to-low' posting order • A "shadow line" refers to a credit extension available to cover
– all at the expense of customers."6 insufficient funds availability on a checking account. To satisfy
regulatory requirements, banks are required to establish account
Based on the evidence, the Gutierrez court eligibility standards to determine which accounts qualify for
concluded that these practices were both
overdraft protection. By use of a shadow line, Wells Fargo
"unfair" and "fraudulent" in violation of
California's consumer protection statute. authorized various debit transactions to customer accounts
Significantly, the court found that "Wells Fargo despite the account having insufficient funds to pay for the item.
affirmatively reinforced the expectation that
transactions were covered in the sequence
made while obfuscating its contrary practice of
that "high-to-low" posting is improper. For example, a
posting transactions in 'high-to-low' order to maximize the
recent study of overdraft opt-in rates since implementation of
number of overdrafts assessed on customers."
amended Regulation E7 found that even with the alleged
high cost of overdrafts, consumers still want overdraft
The court's ruling conferred the following relief to a class of
coverage:
California customers. First, the court granted injunctive relief
barring Wells Fargo from continued "high-to-low" posting
About 90 percent of overdraft revenue comes
effective November 30, 2010. Second, the court ordered
from frequent users. The Moebs study noted
Wells Fargo to pay restitution, which would require Wells
frequent users, those with 10 or more overdrafts
Fargo to refund all overdraft fees that exceeded the fees that
in a year, almost all opted in. For all consumers,
would have been generated had Wells Fargo posted debits
consent varied between 60 percent and 80
in a purely chronological order. The court estimated the
percent with a median of about 75 percent. The
restitution to be in the neighborhood of $203 million for the
median overdraft price increased to $28 per check
California class members.
in 2010 from $26 in 2009. NSFs, where the
institution returns the check, increased from $25
Recent Empirical Data and Regulatory Findings per check returned in 2009 to $27 in 2010. "Even
Could Undermine Gutierrez with the price of overdraft protection going up, it
appears from the opt-in numbers that the
As the Gutierrez appeal and the Overdraft MDL proceed, American consumer is saying they want and need
emerging empirical data may discredit plaintiffs' contentions overdrafts."8
KRCL Litigation Alert October 2010 2
4. Kane Russell Coleman & Logan PC is a full service law
This study also lends support to a 2008 report issued by the firm with offices in Dallas and Houston. Formed in 1992 with
Government Accounting Office, which found relatively few five lawyers, today KRCL has 73 lawyers. The Firm provides
consumer complaints about overdraft fees: professional services for clients ranging from Fortune 500
companies to medium-sized public and private companies to
[o]ur analysis of complaint data from each of entrepreneurs. KRCL handles transactional, litigation and
the federal regulators showed that while they insolvency matters in Texas and throughout the country.
receive a large number of checking account
complaints, a small percentage of these COMMITMENT. PERFORMANCE. RESULTS. These core
complaints concerned the fees and principles form the basis of our philosophy—the
disclosures associated with either checking or COMMITMENT to produce high-quality legal work through
savings accounts. 9 passionate, high-level PERFORMANCE designed to
produce positive RESULTS.
Despite the contentions in Gutierrez and other cases,
significant evidence suggests that consumers both want and For more information about this topic, please contact
need overdraft protection. Kenneth Johnston, James Greer, or Julie Biermacher at
(214) 777-4200.
Does Gutierrez Improperly Attempt to Regulate
the Pricing of Overdraft Fees?
The Gutierrez decision may be viewed as an inappropriate
attempt to regulate overdraft fees through judicial activism.
Historically, bank regulators have deferred to market
competition among banks to dictate fee pricing. Indeed, "[f]
ederal regulators' examination procedures for Regulations
DD and E do not require examiners to evaluate the
reasonableness of fees associated with checking and
savings accounts. According to the Federal Reserve, the
statutes administered by the regulators do not specifically
address the reasonableness of fees assessed."10 Industry-
wide standards on fees would not be feasible because,
among other things, market conditions largely determine 1http://www.krcl.com/index.php?
fees. 11 In most situations, market conditions will prevent src=news&submenu=News&srctype=detail&category=Publicatio
excessive fees because a financial institution charging ns&refno=176.
significantly higher fees will likely lose business to its
competitors.12 One may argue that the Gutierrez court 2In re Checking Account Overdraft Litigation, MDL No. 2036
usurped the province of the marketplace. pending in the United States District Court for the Southern
" District of Florida, Cause No. 1:09-MD-02036.
Conclusion
3 See In re Checking Account Overdraft Litigation, Cause No.
Contrary to what news reports may suggest, the Overdraft 1:09-MD-02036, Order Granting Joint Motion to Suspend Oral
MDL is far from over. For example, the plaintiffs' bar must Argument and Hold Motions to Dismiss in Abeyance [doc no.
still maneuver rulings favorable to banks in recent cases 795].
such as Hassler v. Sovereign Bank, where the Third Circuit 4 Findings of Fact and Conclusions of Law After Bench Trial
affirmed the dismissal of a case virtually identical to
Gutierrez. 13 There, the court held that because the deposit [Doc. No. 476], available at http://graphics8.nytimes.com/
agreement authorized non-chronological debit posting, the packages/pdf/business/20100811-wells.pdf.
plaintiffs' allegations were insufficient to maintain any claims. 5By way of example, 12 C.F.R. § 7.4002(b) dictates that
Moreover, contrary to Gutierrez, historical case law
national banks should consider deterring the misuse of the
specifically authorized Wells Fargo's "high-to-low" check
service by customers when setting overdraft fees.
posting practices.14 These cases—combined with both an
obvious indication that consumers need and want overdraft 6 Findings of Fact and Conclusions of Law After Bench Trial at p.
protection and a regulatory regime that deferred overdraft
68 [Doc. No. 476].
pricing to the market—provide grounds for a robust debate
about Gutierrez and how it may not impact the Overdraft
MDL. Only time will tell.
KRCL Litigation Alert October 2010 3
5. 7 See 12 C.F.R. 205 Electronic Fund Transfers (Regulation E),
available at http://www.fdic.gov/regulations/laws/rules/
6500-3100.html. Regulation E, which governs electronic funds
transfers, was amended effective July 1, 2010. Under the
revised Regulation E consumers must now opt-in to any
overdraft protection program.
8http://www.moebs.com/Pressreleases/tabid/58/ctl/Details/mid/
380/ItemID/193/Default.aspx.
9 http://www.gao.gov/new.items/d08281.pdf at p. 25.
10http://www.gao.gov/new.items/d08281.pdf at p. 26; See also
12 C.F.R. 230 Truth in Savings (Regulation DD) and 12 C.F.R.
205 Electronic Fund Transfers (Regulation E).
11 Id.
12 http://www.gao.gov/new.items/d08281.pdf at p. 27.
13 See 374 Fed. Appx 341, 2010 WL 893134 (C.A.3 N.J.),
affirming Hassler v. Sovereign Bank, 644 F.Supp.2d 509 (D. N.J.
2009).
14See Fetter v. Wells Fargo Bank Texas, N.A., 110 S.W.3d 683
(Tex.App.—Houston [14th Dist.] 2003, no writ) (holding that the
Uniform Commercial Code and deposit agreements authorized
the bank to post checks in any order).
KRCL Litigation Alert October 2010 4
6. State and Parties involved in
the Overdraft MDL (October 2010)
STATE CASE NUMBER CASE NAME BANKS INVOLVED
Alabama 1:09-CV-00549 Willie James Moore v. BBVA BBVA Compass
Compass, et al. Banco Bilboa Vizcaya Argentaria,
S.A.
Arizona 4:09-cv-00075 Georgio Churchwell v. Wells Wells Fargo Bank, N.A.
Fargo Bank, N.A., et al. Wells Fargo & Co.
California 2:09-cv-00176 Adam Najemy v. Bank of Bank of America Corp.
America Corp., et al. Bank of America, N.A.
2:09-cv-06967 Andrea Luquetta v. J.P. J.P. Morgan Chase Bank, N.A.
Morgan Chase Bank, N.A.
2:10-cv-00550 Robert Townsend v. Wells Wells Fargo Bank & Co.
Fargo Bank & Co., et al. Wells Fargo Bank, N.A.
J.P. Morgan Chase
Chase Bank USA, N.A.
2:10-cv-02469 Betty Orallo v. Bank of the West Bank of the West
1
Kane Russell Coleman & Logan PC
7. State and Parties involved in
the Overdraft MDL (October 2010)
STATE CASE NUMBER CASE NAME BANKS INVOLVED
California 2:10-cv-03423 Victor M. Braden, et al. v. Wells Wells Fargo Bank, N.A.
Fargo Bank, N.A., et al. Wells Fargo & Co.
8:10-cv-00527 Laura Knighten v. Bank of Bank of America, N.A.
America, N.A.
3:07-cv-05923 Claudia Sanchez, et al. v. Wells Wells Fargo & Co.
Fargo & Co., et al. Wells Fargo Bank, N.A.
3:08-cv-04610 Celia Spears-Haymond v. Wachovia Corp.
Wachovia Corp., et al. Wachovia Bank, N.A.
3:08-cv-05739 Donna McMillian, et al. v. Wells Wells Fargo Bank, N.A.
Fargo Bank, N.A.
3:09-cv-01579 George T. Burke v. U.S. U.S. Bancorp
Bancorp, et al. U.S. Bank, N.A.
2
Kane Russell Coleman & Logan PC
8. State and Parties involved in
the Overdraft MDL (October 2010)
STATE CASE NUMBER CASE NAME BANKS INVOLVED
California 3:09-cv-02071 Willyum Waters, et al. v. U.S. U.S. Bancorp
Bancorp, et al. U.S. Bank, N.A.
3:09-cv-02186 Steve Yourke, et al. v. Bank of Bank of America, N.A.
America, N.A., et al. Bank of America Corp.
California Bank of America
3:09-cv-04700 Linda D. Ray v. Wells Fargo & Wells Fargo & Co.
Co., et al. Wells Fargo Bank, N.A.
3:09-cv-05338 Josh Naehu-Reyes v. Unionbancal Corp.
Unionbancal Corp., et al. Union Bank of California, N.A.
3:09-cv-05622 Katherine Anne Williams v. Wachovia Bank, N.A.
Wachovia Bank, N.A.
3:10-cv-03956 Loretta A. Billen v. Bank of the Bank of the West
West
3
Kane Russell Coleman & Logan PC
9. State and Parties involved in
the Overdraft MDL (October 2010)
STATE CASE NUMBER CASE NAME BANKS INVOLVED
California 4:08-cv-05101 Mike Amrhein v. Citibank, Inc., Citibank, Inc.
et al. Citibank, N.A.
Citibank, F.S.B.
4:09-cv-03250 Cynthia Larsen v. Union Bank, Union Bank, N.A.
N.A., et al. Unionbancal Corp.
4:10-cv-02736 Saynyohoh Dee v. Bank of the Bank of the West
West
3:09-cv-02115 John D. Kirkland v. JP Morgan JP Morgan Chase Bank
Chase Bank
3:09-cv-02179 Sandra Quarles v. Union Bank, Union Bank, N.A.
N.A., et al. Unionbancal Corp.
3:09-cv-02232 Donald Kimenker v. U.S. U.S. Bancorp
Bancorp, et al. US Bank National Association
4
Kane Russell Coleman & Logan PC
10. State and Parties involved in
the Overdraft MDL (October 2010)
STATE CASE NUMBER CASE NAME BANKS INVOLVED
Colorado 1:09-cv-00253 Lynn Egan v. Wells Fargo & Lynn Egan v. Wells Fargo & Co.
Co., et al. Wells Fargo Bank, N.A.
1:09-cv-02940 Preston & Associated Intn'l, Wells Fargo & Co.
P.C. v. Wells Fargo & Co., et al. Wells Fargo Bank, N.A.
Connecticut 3:10-cv-01448 Kelly v. Webster Bank NA Webster Bank NA
Washington DC 1:10-cv-00040 Anne-Marie Mascaro v. TD TD Bank, Inc
Bank, Inc.
1:10-cv-00232 Ramona Trombley, et al. v. National City Bank
National City Bank
Florida 2:10-cv-00376 Jeffrey M. Eno, et al. v. M&I M&I Marshall & Ilsley Bank
Marshall & Ilsley Bank
5
Kane Russell Coleman & Logan PC
11. State and Parties involved in
the Overdraft MDL (October 2010)
STATE CASE NUMBER CASE NAME BANKS INVOLVED
Florida 1:10-cv-00090 Shane Swift v. BancorpSouth, BancorpSouth, Inc.
Inc.
0:10-cv-60505 Michelle Keyes v. Fifth Third Fifth Third Bank
Bank
1:08-cv-22463 Melanie L. Garcia v. Wachovia Wachovia Bank, N.A.
Bank, N.A.
1:08-cv-23323 Ralph Tornes, et al. v. Bank of Bank of America, N.A.
America, N.A.
1:09-cv-21863 Anthony Scott Poulin v. Wachovia Bank, N.A.
Wachovia Bank, N.A.
1:09-cv-22623 Raisa Construction Corp. v. Colonial Bank
Colonial Bank Branch Banking & Trust Co.
1:09-cv-23126 April Speers v. U.S. Bank, N.A. U.S. Bank, N.A.
6
Kane Russell Coleman & Logan PC
12. State and Parties involved in
the Overdraft MDL (October 2010)
STATE CASE NUMBER CASE NAME BANKS INVOLVED
Florida 1:09-cv-23127 Estella A. Lopez, et al. v. J.P. J.P. Morgan Chase Bank, N.A.
Morgan Chase Bank, N.A.
1:10-cv-21283 Michelle Keyes v. Fifth Third Fifth Third Bank
Bank
1:10-cv-21556 Stephen T. Anderson v. Compass Bank
Compass Bank
1:10-cv-21771 Robert A. Matos v. National National City Bank
City Bank
1:10-cv-21868 Fernando Hernandez, et al. v. PNC Bank, N.A.
PNC Bank, N.A.
1:10-cv-21870 Gregory D. Mazzadra, et al. v. TD Bank, Inc.
TD Bank, Inc.
1:10-cv-22190 Michael Dasher v. RBC Bank RBC Bank (USA)
(USA)
Georgia 1:06-cv-00560 Ken Vollmer v. Wachovia Bank, Wachovia Bank, N.A.
N.A.
7
Kane Russell Coleman & Logan PC
13. State and Parties involved in
the Overdraft MDL (October 2010)
STATE CASE NUMBER CASE NAME BANKS INVOLVED
Georgia 1:09-cv-01558 Jeffrey Buffington, et al. v. SunTrust Banks, Inc.
SunTrust Banks, Inc..
1:09-cv-01744 Faith Gordon v. Branch Branch Banking & Trust Co.
Banking & Trust Co.
1:09-cv-02017 Linda McDaniel v. J.P. Morgan J.P. Morgan Chase Bank, N.A.
Chase Bank, N.A.
1:09-cv-02079 William W. Powell, Jr., et al. v. Bank of America Corp.
Bank of America Corp.
1:09-cv-02148 Juanita Dickerson v. Wachovia Wachovia Bank, N.A.
Bank, N.A.
1:09-cv-02545 Lawrence D. Hough, et al. v. Regions Financial Corp.
Regions Financial Corp.
1:10-cv-00271 Marlene Willard v. Fifth Third Fifth Third Bancorp
Bancorp
1:10-cv-01176 Howard Watson Green, Jr. v. Wachovia Bank, N.A.
Wachovia Bank, N.A.
8
Kane Russell Coleman & Logan PC
14. State and Parties involved in
the Overdraft MDL (October 2010)
STATE CASE NUMBER CASE NAME BANKS INVOLVED
Georgia 1:10-cv-02747 Griner et al v. Synovus Bank Synovus Bank
1:10-cv-03027 Childs et al v. Columbus Bank Columbus Bank & Trust
& Trust et al Synovus Bank
Synovus Financial Corp.
Illinois 1:09-cv-04381 M. Roger Olds v. U.S. Bank, U.S. Bank, N.A.
N.A.
1:09-cv-05909 Yi Tang v. TCF Financial Corp. TCF Financial Corp.
1:09-cv-06655 Shannon Schulte v. Fifth Third Fifth Third Bank
Bank
1:10-cv-00533 Jessica Duval v. Citizens Citizens Financial Group, Inc.
Financial Group, Inc.
1:10-cv-02543 Stephanie N. Blahut v. Harris, Harris, NA
NA
9
Kane Russell Coleman & Logan PC
15. State and Parties involved in
the Overdraft MDL (October 2010)
STATE CASE NUMBER CASE NAME BANKS INVOLVED
Illinois 1:10-cv-05961 Solomon v. Bank of America, Bank of America, N.A.
N.A. et al U.S. Asset Management, Inc.
Collecto, Inc.
NCO Financial Systems, Inc.
Louisiana 2:09-cv-07776 Erich Webb Bailey v. SunTrust SunTrust Bank
Bank, et al. SunTrust Banks, Inc.
Federal Reserve Bank of Atlanta
2:10-cv-01505 Leanne Steen v. Capital One Capital One Financial Corp.
Financial Corp., et al. Capital One Bank, N.A.
Massachusetts 1:09-cv-12118 Carly A. Dwyer v. Toronto- Toronto-Dominion Bank
Dominion Bank
1:10-cv-10386 Eric Daniels v. Citizens Financial Citizens Financial Group, Inc.
Group, Inc.
1:10-cv-11493 Shirley Durgin, et al. v. RBS RBS Citizens, N.A.
Citizens, N.A., et al. Citizens Bank of Pennsylvania
10
Kane Russell Coleman & Logan PC
16. State and Parties involved in
the Overdraft MDL (October 2010)
STATE CASE NUMBER CASE NAME BANKS INVOLVED
Maryland 1:09-cv-02207 Maxine Aarons Given v. M&T M&T Bank Corp.
Bank Corp.
Michigan 1:09-cv-00880 Michelle Gulley v. Huntington Huntington Bancshares, Inc.
Bancshares, Inc., et al. Huntington National Bank
Minnesota 0:10-cv-03943 Kimberly Pellett, et al. v. TCF TCF Bank, N.A.
Bank, N.A., et al. TCF Financial Corp.
Missouri 4:10-cv-00328 Leslie J. Wolfegeher v.
Commerce Bank, N.A. Commerce Bank, N.A.
4:10-cv-00595 Michael McKinley v. Great Great Western Bank
Western Bank
4:10-cv-00654 David Johnson v. UMB Bank UMB Bank N.A.
N.A., et al. UMB Financial Corp
4:10-cv-00685 Harold J. Joseph, Jr. v. Commerce Bank N.A.
Commerce Bank N.A., et al. Commerce Bancshares, Inc.
11
Kane Russell Coleman & Logan PC
17. State and Parties involved in
the Overdraft MDL (October 2010)
STATE CASE NUMBER CASE NAME BANKS INVOLVED
North Carolina 5:10-cv-00329 Stephanie Avery v. RBC Bank RBC Bank
1:09-cv-00619 Doris Powell-Perry v. Branch Branch Banking & Trust, Inc.
Banking & Trust, Inc., et al. Branch Banking & Trust Co.
BB&T Corp.
1:09-cv-00678 Lacy Barras v. Branch Banking Branch Banking & Trust Co.
& Trust Co.
New Jersey 1:08-cv-05263 Ryan Phillip Pena v. Wachovia Wachovia Bank, N.A.
Bank, N.A.
1:10-cv-00136 Donald Kimenker v. TD Bank, TD Bank, N.A.
N.A., et al. TD Bank Financial Group
1:10-cv-02718 John C. Chierici v. Citizens Citizens Financial Group, Inc.
Financial Group, Inc., et al.
12
Kane Russell Coleman & Logan PC
18. State and Parties involved in
the Overdraft MDL (October 2010)
STATE CASE NUMBER CASE NAME BANKS INVOLVED
New Jersey 2:09-cv-02138 Daniel Dachille, et al. v. Bank Bank of America, N.A.
of America, N.A., et al. Bank of America Corp.
2:09-cv-05155 Virgilio S. Casayuran, Jr. v. PNC PNC Bank, N.A.
Bank, N.A.
New Mexico 6:09-cv-01072 Marc Martinez v. Wells Fargo Wells Fargo Bank, N.A.
Bank, N.A.
Nevada 3:09-cv-00065 Diane Martenson v. Wells Wells Fargo Bank, N.A.
Fargo Bank, N.A., et al. Wells Fargo & Co.
New York 1:09-cv-08780 Angela Walsh-Duffy, et al. v. JP JP Morgan Chase Bank, N.A.
Morgan Chase Bank, N.A., et JP Morgan Chase & Co.
al.
1:10-cv-04172 Jane Emmons v. Webster Bank, Webster Bank, N.A.
N.A.
13
Kane Russell Coleman & Logan PC
19. State and Parties involved in
the Overdraft MDL (October 2010)
STATE CASE NUMBER CASE NAME BANKS INVOLVED
Ohio 1:10-cv-0060 Nicholas J. Benedetti v. Key Key Corp.
Corp., et al. Key Bank, National Association
Oklahoma 5:10-cv-00901 Terry Case v. Bank of Bank of Oklahoma, N.A.
Oklahoma, N.A.
Oregon 3:09-cv-00409 April Speers v. U.S. Bank, N.A. U.S. Bank, N.A.
3:09-cv-01329 Dolores Gutierrez v. Wells Fargo Wells Fargo Bank, N.A.
Bank, N.A.
Pennsylvania 2:10-cv-00731 Todd M. Mosser v. TD Bank, TD Bank, N.A.
N.A.
Rhode Island 1:10-cv-00163 Michael L. Blankenship v. RBS RBS Citizens, N.A.
Citizens, N.A., et al. Citizens Bank of Pennsylvania
Citizens Financial Group, Inc.
14
Kane Russell Coleman & Logan PC
20. State and Parties involved in
the Overdraft MDL (October 2010)
STATE CASE NUMBER CASE NAME BANKS INVOLVED
Texas 9:09-cv-00146 James E. Spikes, et al. v. Regions Bank
Regions Bank
3:10-cv-00326 Delphia Simmons v. Comerica, Comerica, Inc.
Inc.
4:09-cv-02578 Vada Mitchell, et al. v. Wells Wells Fargo Bank, N.A.
Fargo Bank, N.A., et al. Wells Fargo & Co.
4:10-cv-03911 Bevins v. International International Bancshares
Bancshares Corporation Corporation
Washington 2:10-cv-00356 Brown et al. v. US Bank US Bank National Association
National Association
2:08-cv-01476 Alex Zankich, et al. v. Wells Wells Fargo Bank, N.A.
Fargo Bank, N.A.
15
Kane Russell Coleman & Logan PC
21. State and Parties involved in
the Overdraft MDL (October 2010)
STATE CASE NUMBER CASE NAME BANKS INVOLVED
Washington 2:10-cv-00304 David M. Johnson v. KeyBank KeyBank, National Association
National Association
3:10-cv-00182 Pamela Harris v. Associated Associated Banc-Corp.
Banc-Corp.
16
Kane Russell Coleman & Logan PC