14.  Plaintiff has a checking account with Members 1st.   16.  Pursuant to its standard account agreement, Members 1st charges fees (currently in  the amount of $37) for debit card transactions that purportedly result in an overdraft.      A.  Members 1st Account Documents   17.  Plaintiff’s checking account with Members 1st was, at all relevant times, governed  by Members 1st’s standardized contract for deposit accounts, the material terms of which are  drafted by Members 1st, amended by Members 1st from time to time at its convenience and  complete discretion, and imposed by Members 1st on all of its customers.     19.  Similarly, the account’s fee schedule states:  2017 Service Charges  Non-Sufficient Funds Posted  Point-of-Sale Item    $37 each (does not apply to  declined transactions)   Non-Sufficient Funds Courtesy  Paid Check, Debit, Bill Pay or  Point-of-Sale Item   $37 each  “Fee Schedule,” attached as Exhibit B.   20.  Federal law requires that banks and credit unions receive affirmative consent from  accountholders before charging overdraft fees for ATM and/or non-recurring debit card purchases.   21.  Regulation E required Members 1st to provide its customers the information  required to obtain their legally binding informed consent because.  But Members 1st failed to do  this, because its opt-in disclosures contained the same or similar misrepresentations regarding  Members 1st’s true overdraft policies as the account contract documents did.   22.  The importance of Regulation E is highlighted by the fact that the Consumer   Financial Protection Bureau’s ("Bureau") study of actual practices found that: 1) ATM and debit  card transactions are by far the most frequent transactions that occur; 2) overdraft fee policies  entail expensive fees at very little risk to the financial institutions; and 3) opted-in accounts have  seven times as many overdrafts that result in fees as not opted-in accounts.   B.  Plaintiff’s Experience   24.  Plaintiff brings this action on behalf of himself and all others similarly situated  pursuant to Rule 23 of the Federal Rules of Civil Procedure.  This action satisfies the numerosity,  commonality, typicality, adequacy, predominance and superiority requirements of Rule 23.     25.  The proposed classes are defined as:   All Members 1st checking account holders who, during the  applicable statute of limitations through the date of class  certification, were charged OD Fees on transactions that did not  overdraw their checking accounts.  All Members 1st checking account holders that reside within the  Commonwealth of Pennsylvania, who, during the applicable statute  of limitations through the date of class certification, were charged  OD Fees on transactions that did not overdraw their checking  accounts.   26.  Plaintiff reserves the right to modify or amend the definition of the proposed Class  before the Court determines whether certification is appropriate.   27.  Excluded from the Class are Members 1st, its parents, subsidiaries, affiliates,  officers and directors, any entity in which Members 1st has a controlling interest, all customers  who make a timely election to be excluded, governmental entities, and all judges assigned to hear  any aspect of this litigation, as well as their immediate family members.   28.  The members of the Class are so numerous that joinder is impractical.  The Class  consist of thousands of members, the identity of whom is within the knowledge of and can be  ascertained only by resort to Members 1st’s records.     30.  There are numerous questions of law and fact common to the Class and those  common questions predominate over any questions affecting only individual Class members.   31.  Among the questions of law and fact common to the Class are whether Members  1st:  a.  Imposed OD Fees on debit card transactions when those transactions did  not overdraw accounts;  b.  Breached its covenant of good faith and fair dealing with Plaintiffs and other  members of the Classes through its overdraft policies and practices;   c.  Violated the consumer protection acts of certain states through its overdraft  policies and practices.   d.  Violated Regulation E and EFTA.  Other questions of law and fact common to the Class include:  e.  The proper method or methods by which to measure damages, and  f.  The declaratory relief to which the Class are entitled.   33.  Plaintiff is committed to the vigorous prosecution of this action and has retained  competent counsel experienced in the prosecution of class actions and, in particular, class actions  on behalf of consumers and against financial institutions.  Accordingly, Plaintiff is an adequate  representative and will fairly and adequately protect the interests of the Class.   34.  A class action is superior to other available methods for the fair and efficient  adjudication of this controversy.  Since the amount of each individual Class member’s claim is  small relative to the complexity of the litigation, and due to the financial resources of Members  1st, no Class member could afford to seek legal redress individually for the claims alleged herein.   Therefore, absent a class action, the Class members will continue to suffer losses and Members  1st’s misconduct will proceed without remedy.   36.  Plaintiff repeats paragraphs 1 through 35 above.    37.  Plaintiff and Members 1st have contracted for bank account deposit, checking,  ATM, and debit card services.   38.  Under the laws of Pennsylvania, good faith is an element of every contract  pertaining to the assessment of overdraft fees.  Whether by common law or statute, all such  contracts impose upon each party a duty of good faith and fair dealing.  Good faith and fair dealing,  in connection with executing contracts and discharging performance and other duties according to  their terms, means preserving the spirit – not merely the letter – of the bargain.  Put differently,  the parties to a contract are mutually obligated to comply with the substance of their contract in  addition to its form.  Evading the spirit of the bargain and abusing the power to specify terms  constitute examples of bad faith in the performance of contracts.   40.  Members 1st has breached the covenant of good faith and fair dealing in its account  agreement with customers through its overdraft policies and practices as alleged herein.     41.  Members 1st breached promises included in the account documents as described  herein when it charged overdraft fees on transactions that did not overdraw checking accounts.   42.  Plaintiff and members of the Class have performed all, or substantially all, of the  obligations imposed on them under the contract.   43.  Plaintiff and members of the Class have sustained damages as a result of Members  1st’s breach of the contract.   44.  Plaintiff repeats paragraphs 1 through 44 above.     45.  This claim is asserted on behalf of the Subclass of Members 1st customers who are  Pennsylvania residents and enjoy the protections of the Pennsylvania Unfair Trade Practices and  Consumer Protection Law, 73 P.S. § 201-1 et seq.   46.  The UTPCPL, PA ST 73 P.S. § 201-3 prohibits “[u]nfair methods of competition  and unfair or deceptive acts or practices in the conduct of any trade or commerce.”     48.  Pursuant to PA ST 73 P.S. § 201-9.2, et seq., Plaintiff and members of the  Pennsylvania Class purchased services, in the form of banking services, from Members 1st that  were used primarily for personal, family or household purposes.    49.  Members 1st engaged in unlawful conduct, made affirmative misrepresentations,  or otherwise violated the UTPCPL by, inter alia, knowingly and intentionally employing an unfair  and deceptive policy and practice regarding its overdraft policy in its Deposit Agreement and  related documents.     50.  Specifically, Members First affirmatively promises to customers like the Plaintiff  to only charge OD Fees on transactions which actually overdraw an account.  These promises are  a written guarantee of how the Plaintiff and Class Members’ money will be handled by Members  1st.  However, Members 1st does charge OD Fees even when the transaction has not overdrawn  an account.     51.  Members 1st intended that Plaintiff and all Class Members rely on the affirmative  misrepresentations which were false and deceived the Plaintiff and Class Members in the process  of choosing a retail bank, in making purchase decisions, and in conducting their day to day  activities in an objective effort not to be charged OD fees.  Plaintiff and all Class Members  justifiably relied upon Members 1st's promises and guarantees.   53.  Members 1st intended that Plaintiff and all Class Members rely on the acts of  concealment and omissions, so that Plaintiff and all Class Members would continue to incur  overdraft fees.   54.  Members 1st’s conduct caused Plaintiff and Class members to suffer ascertainable  losses in the form of excessive overdraft fees that, but for Members 1st’s unfair and deceptive  policy, would not otherwise have been imposed.    55.  A causal relationship exists between Members 1st’s unlawful conduct and the  ascertainable losses suffered by Plaintiff and the Class.  Had Members 1st processed transactions  as it should have, Plaintiff and the Class would not have incurred excessive overdraft fees in  violation of the UTPCPL.   56.  As redress for Members 1st’s repeated and ongoing violations of these consumer  protection statutes, Plaintiff and the Subclass are entitled to, inter alia, damages and declaratory  relief.  57.  Plaintiff repeats paragraphs 1 through 54 above.     58.  By charging overdraft fees on ATM and nonrecurring transactions, Members 1st  violated Regulation E (12 C.F.R. §§1005 et seq.), whose “primary objective” is “the protection of  consumers” (§1005.l(b)) and which “carries out the purposes of the [Electronic Fund Transfer Act  15 U.S.C. §§1693 et seq.), the “EFTA”] (§1005. l(b)), whose express “primary objective” is also  “the provision of individual consumer rights” (15 U.S.C. §1693(b)).    60.  The intent and purpose of this Opt-In Contract is to “assist customers in  understanding how overdraft services provided by their institutions operate .... by explaining the  institution's overdraft service ... in a clear and readily understandable way”-as stated in the Official  Staff Commentary (74 Fed. Reg. 59033, 59035, 59037, 5940, 5948), which is “the CFPB’s official  interpretation of its own regulation,” “warrants deference from the courts unless ‘demonstrably  irrational,’” and should therefore be treated as “a definitive interpretation” of Regulation E. Strubel  v. Capital One Bank (USA), 2016 U.S. Dist. LEXIS 41487, *11 (S.D. N.Y. 2016) (quoting Chase  Bank USA v. McCoy, 562 U.S. 195, 211 (2011)) (so holding for the CFPB’s Official Staff  Commentary for the Truth In Lending Act’s Regulation Z)).    62.  As exhibited by the transactions above, Plaintiff’s account had funds to cover the  transactions, which were paid, yet Members 1st charged overdraft fees.   63.  As a result of violating Regulation E’s prohibition against assessing overdraft fees  on ATM and non-recurring debit card transactions without obtaining affirmative consent to do so,  Members 1st has harmed Plaintiff and the Class.    64.  Due to Members 1st’s violation of Regulation E (12 C.F.R. § 1005.17), Plaintiff  and members of the Classes are entitled to actual and statutory damages, as well as attorneys' fees  and costs of suit pursuant to 15 U.S.C.A. § 1693.  Breach of Contract and Breach of the Covenant of Good Faith and Fair Dealing1  (On Behalf of the Class)   Violation of Electronic Fund Transfers Act (Regulation E)  C.F.R. § 1005 et seq. (authority derived from 15 U.S.C. § 1693 et seq.))  (On Behalf of the Class)   Violations of Pennsylvania Unfair Trade Practice Laws  (On Behalf of the Pennsylvania Class)  