Posted 9/16/2013 12:00 am
Updated 10 months ago
The lone ATM stalker case in Arkansas that didn’t reach a settlement is set for trial Dec. 9 in U.S. District Court at Pine Bluff. But it won’t be surprising if a trial doesn’t happen.
Union Bank & Trust of Monticello received a favorable ruling in the July 13, 2012, lawsuit filed by serial EFTA plaintiff, New Yorker Don Anderson.
U.S. District Judge Brian Miller denied Anderson’s motion for class certification in his Electronic Fund Transfer Act case.
Miller’s July 11 order noted that Anderson “suffered no damages” and that he didn’t meet the typicality and adequacy requirements needed for class certification.
“Anderson, unlike the members of his proposed class, is an intentional lawsuit and class-action seeker,” the order stated.
“Since 2009, he has filed nearly 50 cases in federal district courts from Nevada to Florida making nearly identical claims against banks that have failed to post fee notices outside of their ATMs.
“Upon reviewing the dockets in those cases, more than 40 were settled. It is clear that Anderson does not have the typical claim of members of the proposed class and will not adequately represent their interests.”
Anderson’s local counsel, Dan Turner of the Arkadelphia firm of Arnold Batson Turner & Turner, couldn’t be reached for comment.
The same goes for Michael Todd Harrison of Stevenson Ranch, Calif., who has overseen Anderson’s ATM litigation across the nation.
The order signed by Miller also points out the frivolity of Anderson’s complaint:
“This is a silly case filed by a lawsuit seeker who knew exactly what he was doing when he transacted business with Union’s ATM and did so in an attempt to get a payday.
“Therefore, Anderson cannot serve as a class representative and his proposed class will not be certified.”
Anderson was charged a 40-cent transaction fee for use of a Monticello ATM operated by Union Bank. The touch screen informed Anderson of the fee and required his acknowledgement before completing the transaction.
However, the machine didn’t have a sign posted on the ATM as required under EFTA when the transaction occurred on July 9, 2012.
EFTA was amended on Dec. 20, 2012, so that an onscreen fee notice is sufficient to comply with the law.
The judge denied Union Bank’s motion to dismiss the case because the amended law doesn’t address the issue of retroactivity and Anderson’s complaint over a technical violation remains valid.
Miller gave a less than subtle indication of where the judicial train was headed, and it isn’t going Anderson’s way.
Because his lawsuit didn’t achieve class-action status, Anderson’s recovery is limited to $100-$1,000 under EFTA.
“Given Anderson’s history, his recovery herein will be limited to $100, unless he presents compelling evidence that it would be greater,” the order stated.
The judge said that Anderson could be responsible for the bank’s legal fees if the trial doesn’t go his way and it is determined his case was brought in bad faith or for purposes of harassment.
“They did send us another settlement offer, and we told them to forget it,” said Dave Dickson, president of Union Bank & Trust. “Their last offer actually went up, to $7,000.
“I still think our legal expenses will come in below what we could’ve settled this thing for. We could’ve let this thing go for $5,000 when it was first filed, but it’s the principle of the thing.”
Union Bank is the only Arkansas lender among seven who didn’t settle after Anderson filed an EFTA lawsuit. The half-dozen banks that settled during 2011 and 2012 include Bank of Salem, Citizens Bank of Batesville, First Bank of Hampton (Calhoun County), First Security Bank of Searcy, Liberty Bank of Arkansas in Jonesboro and Metropolitan National Bank of Little Rock.