10. Whenever a customer uses the debit card, the transaction is processed electronically.  Therefore, BOA is notified instantaneously when the card is swiped, and thus has the  immediate option to accept or decline the transaction.    11. BOA uses a software program to automate its overdraft system. This system intentionally  maximizes the number of overdrafts in order to charge each business customer the maximum  amount of fees. Specifically, BOA accomplishes this by processing daily transactions starting  with the largest debit and ending with the smallest, instead of processing such transactions in  chronological order.    12. As a result of BOA’s processes set forth in paragraph 11, Plaintiff was charged overdraft fees  that it would not have otherwise been charged had BOA processed the transactions in  chronological order.   13. Plaintiff re-alleges and hereby incorporates by this reference each and every preceding and  subsequent allegation as though fully set forth herein.   14. Plaintiff brings all claims herein as class claims pursuant to Fed. R. Civ. P. 23. Plaintiff hereby  reserves the right to amend the class action allegations after further discovery on the matter has  2:13-cv-10840-BAF-RSW   Doc # 1   Filed 03/01/13   Pg 5 of 10    Pg ID 5 4 of 8  occurred. The requirements of Fed. R. Civ. P. 23(a) and (b)(3) are met with respect to the class  defined below.  A. Class Definition(s)   15. The Class is defined as:  All persons or entities who hold a business checking account with Defendant  Bank of America, N.A.  Excluded from the Class are: Defendant, any entities in which it has a controlling  interest, any of its parents, subsidiaries, affiliates, officers, directors, employees  and members of such persons immediate families, the presiding judge(s) in this  case and his, her on their immediate family and Plaintiff’s counsel.  B. Numerosity   16. At this time, Plaintiff does not know the exact size of the class; however, due to the fact that  BOA is one of the largest national banks in the United States, Plaintiff believes that the Class  members are so numerous that joinder of all members is impracticable. The number and  identities of Class members is administratively feasible and can be determined through  appropriate discovery and identification from Defendant’s records.  C. Commonality   17. There are questions of law or fact common to the class, including at least the following:  (a) Whether BOA obtains consent from its customers prior to processing transactions that will  result in overdraft fees;  (b) Whether BOA alerts its customers that a debit card transaction will trigger an overdraft fee,  and whether BOA provides its customers with an opportunity to cancel such transactions;  (c) Whether BOA manipulates and reorders debits from highest to lowest in order to maximize  the number of overdrafts and thus the amount of fees it can charge.   2:13-cv-10840-BAF-RSW   Doc # 1   Filed 03/01/13   Pg 6 of 10    Pg ID 6 5 of 8   D. Typicality   18. Plaintiff has the same interests in this matter as all other members of the Class, and his claims  are typical of all members of the class.  E. Adequacy   19. Plaintiff is committed to pursuing this action and has retained competent counsel experienced  in the prosecution of consumer class actions. Plaintiff will fairly and adequately represent the  interests of the Class members and does not have interests adverse to the Class members and  does not have interests adverse to the Class.  F. The Prerequisites of Rule 23(b)(3) are Satisfied   20. This case satisfies the prerequisites of Fed. R. Civ. P. 23(b)(3). The common questions of law  and fact enumerated above predominate over questions affecting only individual members of  the Class, and a class action is the superior method for fair and efficient adjudication of the  controversy. The likelihood that individual members of the Class will prosecute separate  actions is remote due to the extensive time and considerable expense necessary to conduct such  litigation, especially when compared to the relatively modest amount of monetary, injunctive  and equitable relief at issue for each individual Class member. This action will be prosecuted  in a fashion to ensure the Court’s able management of this case as a class action on behalf of  the class  21. Plaintiff re-alleges and hereby incorporates by this reference each and every preceding and  subsequent allegation as though fully set forth herein.  2:13-cv-10840-BAF-RSW   Doc # 1   Filed 03/01/13   Pg 7 of 10    Pg ID 7 6 of 8   22. Plaintiffs and BOA contract for a business deposit checking account, which included ATM and  debit card services.    23. Under the laws of the states where BOA conducts business, good faith is an element of every  contract pertaining to the assessment of overdraft fees. Whether by law or statute, all such  contracts impose upon each party a duty of good faith and fair dealing.    24. BOA’s overdraft policies are a breach of its duty of good faith and fair dealing.    25. Plaintiff and the Class have performed all, or substantially all, of the obligations imposed on  them under the Deposit Agreement.    26. Plaintiff and the Class have sustained damages as a result of BOA’s breach of the covenant of  good faith and fair dealing.    27. Plaintiff re-alleges and hereby incorporates by this reference each and every preceding and  subsequent allegation as though fully set forth herein.   28. BOA’s overdraft policies and practices are substantively and procedurally unconscionable in  that they;  a. Do not disclose to customers that they have the option to “opt out” of the overdraft  scheme; and  b. Apply debit transactions according to the highest debt to the lowest instead of  chronological order.    29. The provisions in the agreements between Plaintiff and BOA that allow for the conduct set  forth in paragraph 28 are unconscionable and, therefore, unenforceable as a matter of law.   30. The imposition of a overdraft charge which exceeds the amount overdraft is unconscionable.   31. Plaintiff and the Class sustained damages as a result of BOA’s unconscionable policies and  2:13-cv-10840-BAF-RSW   Doc # 1   Filed 03/01/13   Pg 8 of 10    Pg ID 8 7 of 8  practices.    32. Plaintiff re-alleges and hereby incorporates by this reference each and every preceding and  subsequent allegation as though fully set forth herein.   33. BOA has wrongfully collected overdraft fees from Plaintiff and the Class.   34. BOA assumed and exercised right of ownership of Plaintiff’s funds without authorization or  legal justification.   35. Plaintiff and the class had a property interest in the funds that were converted by BOA.    36. BOA continues to retain these funds unlawfully with the consent of Plaintiff or the Class.    37. As a direct and proximate result of Defendants’ actions, Plaintiff has been permanently  deprived of his property by Defendant’s unauthorized acts.   38. Pursuant to MCL § 600.2919(a), Plaintiff and the class is entitled to damages in the amount of  three times the value of the converted property together with costs, interest and attorney fees.  39. Plaintiff re-alleges and hereby incorporates by this reference each and every preceding and  subsequent allegation as though fully set forth herein.   40. BOA knowingly received and retained wrongful benefits and funds from Plaintiff, in  conscious disregard for the rights of Plaintiffs and members of the Class.   41. BOA has been unjustly enriched at the expense of, and to the detriment of, Plaintiff and the  Class.   2:13-cv-10840-BAF-RSW   Doc # 1   Filed 03/01/13   Pg 9 of 10    Pg ID 9 8 of 8  42. Plaintiff re-alleges and hereby incorporates by this reference each and every preceding and  subsequent allegation as though fully set forth herein.   43. BOA engages in unfair business practices relating to the imposition of overdraft fees on  consumers, in violation of the Michigan Consumer Protection Act.    44. BOA violated the Michigan Consumer Protection Act by causing a probability of confusion  with regard to the collection of a debt, and other provisions of the Michigan Consumer  Protection Act. MCL 445.901 MCL 445.903.  7. At all times relevant, Plaintiff was a business customer of BOA.   8. At all times relevant, Plaintiff held a business checking account with BOA.    9. At all times relevant, one of the services BOA provided to Plaintiff, in connection with the  business checking account, was to provide a business debit card, also known as a check card or  ATM card.    Brief description of cause: Breach of Contract; Contract Unconsionable vn, REQUESTED IN