1 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS BRANDI SALLS, individually, and on behalf of all others similarly situated, Plaintiff, v. DIGITAL FEDERAL CREDIT UNION and DOES 1 through 100, Defendants. Case No.: JURY TRIAL DEMANDED CLASS ACTION COMPLAINT Plaintiff Brandi Salls (“Plaintiff”), by her attorneys, hereby brings this class and representative action against Digital Federal Credit Union and DOES 1 through 100 (collectively “DFCU” or “Defendant”). NATURE OF THE ACTION 1. All allegations herein are based upon information and belief except those allegations which pertain to Plaintiff or her counsel. Allegations pertaining to Plaintiff or her counsel are based upon, inter alia, Plaintiff or her counsel’s personal knowledge, as well as Plaintiff or her counsel’s own investigation. Furthermore, each allegation alleged herein either has evidentiary support or is likely to have evidentiary support, after a reasonable opportunity for additional investigation or discovery. 2. This is a class and representative action brought by Plaintiff to assert claims in her own right, and in her capacity as the class representative of all others persons similarly situated, and in her capacity as a private attorney general on behalf of the members of the general public. DFCU wrongfully charged Plaintiff and the class member overdraft fees. 3. This class action seeks monetary damages, restitution, and injunctive relief due to Case 4:18-cv-11262-TSH Document 1 Filed 06/15/18 Page 1 of 25
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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
BRANDI SALLS, individually, and on behalf
of all others similarly situated,
Plaintiff,
v.
DIGITAL FEDERAL CREDIT UNION and
DOES 1 through 100,
Defendants.
Case No.:
JURY TRIAL DEMANDED
CLASS ACTION
COMPLAINT
Plaintiff Brandi Salls (“Plaintiff”), by her attorneys, hereby brings this class and
representative action against Digital Federal Credit Union and DOES 1 through 100 (collectively
“DFCU” or “Defendant”).
NATURE OF THE ACTION
1. All allegations herein are based upon information and belief except those
allegations which pertain to Plaintiff or her counsel. Allegations pertaining to Plaintiff or her
counsel are based upon, inter alia, Plaintiff or her counsel’s personal knowledge, as well as
Plaintiff or her counsel’s own investigation. Furthermore, each allegation alleged herein either
has evidentiary support or is likely to have evidentiary support, after a reasonable opportunity for
additional investigation or discovery.
2. This is a class and representative action brought by Plaintiff to assert claims in her
own right, and in her capacity as the class representative of all others persons similarly situated,
and in her capacity as a private attorney general on behalf of the members of the general public.
DFCU wrongfully charged Plaintiff and the class member overdraft fees.
3. This class action seeks monetary damages, restitution, and injunctive relief due to
Case 4:18-cv-11262-TSH Document 1 Filed 06/15/18 Page 1 of 25
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DFCU’s policy and practice of assessing an overdraft fee on transactions when there was enough
money in the checking account to cover (pay for) the transactions presented for payment. The
charging for such overdraft fees breaches DFCU’s contract with its customers, who include
Plaintiff and the members of the Class.
4. The charging for such overdraft fees also violates federal law. Because DFCU
failed to describe its actual overdraft service in its Opt-In Contract (because the language in its
Opt-In Contract fails to describe the actual method by which ECU calculates its overdraft fees,
instead describing a method under which overdrafts only result when there is not enough money
in the account to pay for a transaction), Regulation E (12 C.F.R. §§1005.17 et seq.) of the
Electronic Fund Transfer Act (15 U.S.C.A. §§ 1693 et seq.) prohibited DFCU from assessing
overdraft fees for automated teller machine (ATM) and non-recurring debit card transactions (12
C.F.R. §1005.17(b)(1)(i)), but DFCU did so anyway.
PARTIES
5. Plaintiff is a resident of Paxton, Massachusetts, and was a member of DFCU at all
times relevant to the class action allegations.
6. Based on information and belief, Defendant DFCU is a federally chartered credit
union with its headquarters located in Marlborough, Massachusetts, and branch offices located in
both Massachusetts and New Hampshire. DFCU is a “financial institution” within the meaning
of Regulation E (12 C.F.R. § 1005.2(i)).
7. Without limitation, defendants Does 1 through 100, include agents, partners, joint
ventures, subsidiaries and/or affiliates of DFCU and, upon information and belief, also own
and/or operate DFCU branch locations. Each of Defendants Does 1 through 100 is a “financial
institution” within the meaning of Regulation E (12 C.F.R. § 1005.2(i)). As used herein, where
appropriate, the term “DFCU” is also inclusive of Defendants Does 1 through 100.
8. Plaintiff is unaware of the true names of defendants Does 1 through 100.
Defendants Does 1 through 100 are thus sued by fictitious names, and the pleadings will be
amended as necessary to obtain relief against defendants Does 1 through 100 when the true
Case 4:18-cv-11262-TSH Document 1 Filed 06/15/18 Page 2 of 25
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names are ascertained, or as permitted by law or by the Court.
9. There exists, and at all times herein mentioned existed, a unity of interest and
ownership between the named defendants (including Does) such that any corporate individuality
and separateness between the named defendants has ceased, and that the named defendants are
alter egos in that the named defendants effectively operate as a single enterprise, or are mere
instrumentalities of one another.
10. At all material times herein, each defendant was the agent, servant, co-conspirator
and/or employer of each of the remaining defendants, acted within the purpose, scope, and
course of said agency, service, conspiracy and/or employment and with the express and/or
implied knowledge, permission, and consent of the remaining defendants, and ratified and
approved the acts of the other defendants. However, each of these allegations are deemed
alternative theories whenever not doing so would result in a contradiction with the other
allegations.
11. Whenever reference is made in this Complaint to any act, deed, or conduct of
Defendant, the allegation means that Defendant engaged in the act, deed, or conduct by or
through one or more of its officers, directors, agents, employees, or representatives who was
actively engaged in the management, direction, control, or transaction of Defendant’s ordinary
business and affairs.
12. As to the conduct alleged herein, each act was authorized ratified or directed by
Defendant’s officers, directors, or managing agents.
VENUE AND JURISDICTION
13. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §
1332(d) because: (1) the claims of plaintiffs aggregated together exceed $5,000,000, and (2)
some putative class members are residents of different states than Defendant. This Court also
has subject matter jurisdiction under28 U.S.C. § 1331.
14. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(1) because
Defendant is a resident of this District and a substantial part of the events and/or omissions
Case 4:18-cv-11262-TSH Document 1 Filed 06/15/18 Page 3 of 25
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giving rise to the claims asserted herein occurred in this District.
FACTUAL ALLEGATIONS
A. DFCU’s Unlawful Charges of Overdraft Fees
15. DFCU is a credit union with branch offices in Massachusetts and New Hampshire
with approximately $6.8 billion in assets. DFCU offers its consumer banking customers a
checking account. One of the features of a DFCU checking account is a debit card, which can be
used for a variety of transactions including the purchasing of goods and services. In addition to
receiving a debit card, other features of a DFCU checking account include: the ability to write
checks; withdraw money from ATMs; schedule Automated Clearing House (ACH) transactions
(certain recurring payments); and other types of transactions that debit from a checking account.
16. In connection with its processing of debit transactions (debit card, ATM, check,
ACH, and other similar transactions), DFCU assesses overdraft fees to customer accounts when
it determines that a customer’s account has been overdrawn.
17. Overdraft fees constitute the primary fee generators for banks and credit unions.
In 2009 alone, banks generated an estimated $37 billion from overdraft fees on debit purchases
and ATM transactions. While credit unions portray themselves to customers as more overdraft
and fee friendly than banks, a 2015 study conducted by Moebs Services confirmed that the
median overdraft fees charged by credit unions are not statistically significantly less than the
median overdraft fees charged by banks. For credit unions such as DFCU, overdraft fees are a
major source of revenue and a profit center. According to a 2010 report by Georgetown
University Law Professor Adam Levitin, overdraft fees comprise 6 to 7% of the gross revenue of
credit unions. (Filene Research Institute Report, Overdraft Regulation A Silver Lining In The
Clouds? Filene Research Institute 2010).
18. The high cost of an overdraft fee is usually unfairly punitive. In a 2012 study,
more than 90% of customers who were assessed overdraft fees overdrew their account by
JS 44 (Rev. 06/17) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except asprovided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for thepurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS
(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government 3 Federal Question PTF DEF PTF DEFPlaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4
of Business In This State
2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a 3 3 Foreign Nation 6 6 Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC 130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust
& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking151 Medicare Act 330 Federal Employers’ Product Liability 830 Patent 450 Commerce152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent - Abbreviated 460 Deportation
Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer Influenced and (Excludes Veterans) 345 Marine Product Liability 840 Trademark Corrupt Organizations
153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY 480 Consumer Credit of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards 861 HIA (1395ff) 490 Cable/Sat TV
160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending Act 862 Black Lung (923) 850 Securities/Commodities/190 Other Contract Product Liability 380 Other Personal 720 Labor/Management 863 DIWC/DIWW (405(g)) Exchange195 Contract Product Liability 360 Other Personal Property Damage Relations 864 SSID Title XVI 890 Other Statutory Actions196 Franchise Injury 385 Property Damage 740 Railway Labor Act 865 RSI (405(g)) 891 Agricultural Acts
362 Personal Injury - Product Liability 751 Family and Medical 893 Environmental Matters Medical Malpractice Leave Act 895 Freedom of Information
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 790 Other Labor Litigation FEDERAL TAX SUITS Act210 Land Condemnation 440 Other Civil Rights Habeas Corpus: 791 Employee Retirement 870 Taxes (U.S. Plaintiff 896 Arbitration220 Foreclosure 441 Voting 463 Alien Detainee Income Security Act or Defendant) 899 Administrative Procedure230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRS—Third Party Act/Review or Appeal of240 Torts to Land 443 Housing/ Sentence 26 USC 7609 Agency Decision245 Tort Product Liability Accommodations 530 General 950 Constitutionality of290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION State Statutes
Employment Other: 462 Naturalization Application446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration
Other 550 Civil Rights Actions448 Education 555 Prison Condition
560 Civil Detainee - Conditions of Confinement
V. ORIGIN (Place an “X” in One Box Only)1 Original
Proceeding2 Removed from
State Court 3 Remanded from
Appellate Court4 Reinstated or
Reopened 5 Transferred from
Another District(specify)
6 MultidistrictLitigation -Transfer
8 Multidistrict Litigation - Direct File
VI. CAUSE OF ACTIONCite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
Brief description of cause:
VII. REQUESTED IN COMPLAINT:
CHECK IF THIS IS A CLASS ACTIONUNDER RULE 23, F.R.Cv.P.
DEMAND $ CHECK YES only if demanded in complaint:JURY DEMAND: Yes No
VIII. RELATED CASE(S) IF ANY (See instructions):
JUDGE DOCKET NUMBERDATE SIGNATURE OF ATTORNEY OF RECORD
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE
Brandi Salls, Individually, and on behalf of others similarly situated55 Grove StreetPaxton, MA 01612
Worcester
Christine M. Craig, Esq./ Shaheen & Gordon, P.A.140 Washington Street / P.O. Box 977Dover, NH 03821
Digital Federal Credit Union and Does 1-100220 Donald Lynch Blvd. / P.O. Box 9130Marlborough, MA 01752-9130
Middlesex
15 USCA §§ 1693 et seq
Deft wrongfully imposed, assessed & collected overdraft fees violating its contracts, and state and federal law
06/15/2018 /s/ Christine M. Craig
Case 4:18-cv-11262-TSH Document 1-1 Filed 06/15/18 Page 1 of 1
UNITED STATES DISTRICT COURTDISTRICT OF MASSACHUSETTS
1. Title of case (name of first party on each side only)
2. Category in which the case belongs based upon the numbered nature of suit code listed on the civil cover sheet. (See local
rule 40.1(a)(1)).
I. 410, 441, 470, 535, 830*, 891, 893, 895, R.23, REGARDLESS OF NATURE OF SUIT.
*Also complete AO 120 or AO 121. for patent, trademark or copyright cases.
3. Title and number, if any, of related cases. (See local rule 40.1(g)). If more than one prior related case has been filed in thisdistrict please indicate the title and number of the first filed case in this court.
4. Has a prior action between the same parties and based on the same claim ever been filed in this court?
YES NO
5. Does the complaint in this case question the constitutionality of an act of congress affecting the public interest? (See 28 USC§2403)
YES NOIf so, is the U.S.A. or an officer, agent or employee of the U.S. a party?
YES NO
6. Is this case required to be heard and determined by a district court of three judges pursuant to title 28 USC §2284?
YES NO
7. Do all of the parties in this action, excluding governmental agencies of the United States and the Commonwealth ofMassachusetts (“governmental agencies”), residing in Massachusetts reside in the same division? - (See Local Rule 40.1(d)).
YES NO
A. If yes, in which division do all of the non-governmental parties reside?
Eastern Division Central Division Western Division
B. If no, in which division do the majority of the plaintiffs or the only parties, excluding governmental agencies, residing in Massachusetts reside?
Eastern Division Central Division Western Division
8. If filing a Notice of Removal - are there any motions pending in the state court requiring the attention of this Court? (If yes,submit a separate sheet identifying the motions)
YES NO
(PLEASE TYPE OR PRINT)
ATTORNEY'S NAME
ADDRESS
TELEPHONE NO.
(CategoryForm -201 .wpd )
Brandi Salls v. Digital Federal Credit Union
✔
✔
✔
✔
✔
✔
Christine M. Craig, Esq. #12842
Shaheen & Gordon, P.A., P. O. Box 977, Dover, NH 03821-0977
603-749-5000
Case 4:18-cv-11262-TSH Document 1-2 Filed 06/15/18 Page 1 of 1
AO 440 (Rev. 12/09) Summons in a Civil Action
UNITED STATES DISTRICT COURTfor the
__________ District of __________
)))))))
Plaintiff
v. Civil Action No.
Defendant
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address)
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if youare the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 ofthe Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,whose name and address are:
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.
CLERK OF COURT
Date:Signature of Clerk or Deputy Clerk
District of Massachusetts
Brandi Salls, individually and on bhealf of all others similarly sitatuted
Digital Federal Credit Union and Does 1 - 100
Digital Federal Credit Union220 Donald Lynch Blvd.Marlborough, MA 01752
Christine M. Craig, Esq.Shaheen & Gordon, P.A.P. O. Box 977Dover, NH 03821-0977
Case 4:18-cv-11262-TSH Document 1-3 Filed 06/15/18 Page 1 of 2
AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)
Civil Action No.
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)
was received by me on (date) .
’ I personally served the summons on the individual at (place)
on (date) ; or
’ I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individual’s last known address; or
’ I served the summons on (name of individual) , who is
designated by law to accept service of process on behalf of (name of organization)
on (date) ; or
’ I returned the summons unexecuted because ; or
’ Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ .
I declare under penalty of perjury that this information is true.
Date:Server’s signature
Printed name and title
Server’s address
Additional information regarding attempted service, etc:
0.00
Case 4:18-cv-11262-TSH Document 1-3 Filed 06/15/18 Page 2 of 2