10.  For example, the Terms and Conditions inform a customer:   If another transaction is presented for payment in an amount greater than the funds  left after the deduction of the temporary hold amount, that transaction will be a  nonsufficient funds (NSF) transaction if we do not pay it or an overdraft transaction  if we do pay it. You will be charged an NSF or overdraft fee according to our NSF  or overdraft fee policy.    See Terms and Conditions, p. 2 (emphasis added) (Exh. A hereto).   11.  City National’s Fee Schedule establishes that a $36 fee will be charged for either  an “Non-Sufficient Funds (NSF) or overdraft fee” per item.  See Fee Schedule (Exh. B hereto).    12.  City National breaches its contract when it charges more than one $36 NSF Fee on  the same item, since the contract states—and reasonable consumers understand—that the same  item can only incur a single NSF Fee.   13.  This abusive practice is not universal in the financial services industry.  Indeed,  major banks like Chase—the largest consumer bank in the country—do not charge more than one  4  NSF Fee on the same item when it is reprocessed.  Instead, Chase charges one NSF Fee even if an  item is resubmitted for payment multiple times.   14.  City National’s Terms and Conditions never disclose this practice.  To the contrary,  the Terms and Conditions indicate it will only charge a single NSF Fee on an item.  A.  Plaintiff Noe’s Experience.   15.  Ms. Noe has been assessed multiple fees that should not have been assessed against  her checking account.  As alleged below, City National reprocessed a previously declined  transaction additional times in order to assess multiple fees on a single item.   16.  In July 2018, Ms. Noe attempted an electronic payment to Cashland in the amount  of $52.10.   17.  City National rejected payment of that transaction due to insufficient funds in  Plaintiff’s account and charged her a $36 NSF Fee for doing so.  Plaintiff does not dispute the  initial fee, as it is allowed by City National’s Terms and Conditions.    18.  Unbeknownst to Plaintiff, and without her request to City National to reprocess the  item, however, weeks later, on August 8, 2018, City National processed the same transaction yet  again, which City National referred to as a “RETRY PYMT” on Plaintiff’s statement.     19.  Again City National rejected the transaction due to insufficient funds and charged  Plaintiff another $36 NSF Fee.   20.  Unbeknownst to Plaintiff, and without her request to City National to reprocess the  item, on August 22, 2018, City National processed the same transaction yet again – and again  referred to the item as a “RETRY PYMT”.     21.  And again, City National rejected the transaction due to insufficient funds and  charged Plaintiff yet another $36 NSF Fee for doing so.  5   22.  In sum, City National assessed Plaintiff $108 in NSF Fees based on a single  payment of $52.10.     23.  Ms. Noe’s payment to Cashland was a single transaction as is laid out in City  National’s contractual documents, capable at most of receiving a single NSF Fee (if City National  returned it) or an overdraft fee (if City National paid it).   24.  On May 6, 2019, Ms. Noe attempted a payment to Wal-Mart in the amount of  $25.13.   25.   City National rejected payment of this transaction due to insufficient funds in  Plaintiff’s account and charged her a $36 NSF Fee for doing so.  Once again, Plaintiff does not  dispute this initial NSF Fee, as it is allowed by City National’s Terms and Conditions.    26.  Unbeknownst to Plaintiff, and without her request to do so, City National  reprocessed the same item a week later on May 13, 2019.  This transaction, like the Cashland  example above, was also designated as a “RETRY PYMT” on Plaintiff’s statement.   27.  Again City National rejected the transaction due to insufficient funds and charged  Plaintiff another $36 NSF Fee.   28.  Unbeknownst to Plaintiff, and without her request to do so, City National  reprocessed the item a third time (another “RETRY PYMT”) ten days later on May 24, 2019.     29.  Yet again City National rejected the transaction due to insufficient funds and  charged Plaintiff a third $36 NSF Fee for doing so.   30.  Unbeknownst to Plaintiff, and without her request to do so, City National  reprocessed the item a fourth time on June 7, 2019.     31.  Yet again City National rejected the transaction due to insufficient funds and  charged Plaintiff a fourth $36 NSF Fee for doing so.  6   32.  Unbeknownst to Plaintiff, and without her request to do so, City National  reprocessed the item a fifth time two weeks later on June 21, 2019.     33.  Yet again City National rejected the transaction due to insufficient funds and  charged Plaintiff a fifth $36 NSF Fee for doing so.   34.  In sum, City National assessed Plaintiff $180 in NSF Fees based on a single  payment of $25.13.  B.  The Imposition of Multiple NSF Fees on a Single Transaction Also Violates  City National’s Online Representations.   35.  Beyond the language found in the Terms and Conditions and Fee Schedule, City  National’s online disclosures also inform customers that only a singular NSF Fee can be assessed  on checks, ACH debits, and electronic payments.   36.  City National’s website informs its account holders:  If you write a check or make a recurring payment for more money than you have  in your account, City will return the item unpaid and a $36 NSF fee will be assessed  against your account.   37.  Thus City National does not provide any information to its customers that would  inform them that a single check or single recurring payment becomes a new item each time it is  rejected for payment then reprocessed, especially when—as here—Plaintiff took no action to  resubmit the item.   38.  There is zero indication anywhere in the Terms and Conditions, the Fee Schedule,  or the City National website that informs its customers that the same check or recurring payment  could possibly incur multiple NSF Fees.   39.  Even if City National reprocesses an instruction for payment, it is still the same  check or recurring payment.  The Bank’s reprocessing is simply another attempt to effectuate an  accountholder’s original order or instruction.   7   40.  Indeed, the language noted above makes clear that it is the action of the  accountholder, and only the accountholder, that creates an item:  “If you write a check or make a  recurring payment. . .”  As alleged herein, Plaintiff took only a single action to make a single  payment; she may therefore be charged only a single fee.   41.  Moreover, by expressly linking overdraft fees and NSF Fees in the Fee Schedule,  City National bolsters the reasonable assumption that only a single fee can be assessed on an item.   Here’s why:  For an item charged an “overdraft fee” and thus paid into overdraft, there is no chance  it can be subject to reprocessing and thus no chance it could be subject to a second or third fee,  since it has already been paid.  No reasonable contract reading could allow the other fee mentioned  in the disclosure—the NSF Fee—to be treated so differently and assessed two or three times on  the same item.   42.  The disclosures described above never discuss a circumstance where City National  may assess multiple NSF Fees for an item that was returned for insufficient funds and later  reprocessed one or more times and returned again (incurring an NSF Fee).    43.  In sum, City National promises that one $36 NSF Fee will be assessed per check or  payment, and these terms must mean all iterations of the same instruction for payment.  As such,  City National breached the contract when it charged more than one fee per item.   44.  Reasonable consumers understand any given authorization for payment to be one,  singular check or payment as those terms are used in City National’s Terms and Conditions.   45.  Taken together, the representations and omissions identified above convey to  customers that all submissions for payment of the same transaction will be treated as the same  “item,” which the Bank will either authorize (resulting in an overdraft item) or reject (resulting in  a returned item) when it decides there are insufficient funds in the account.  Nowhere does City  8  National disclose that it will treat each reprocessing of a check or ACH payment as a separate item,  subject to additional fees, nor do City National customers ever agree to such fees.     46.  Customers reasonably understand that the Bank’s reprocessing of checks or  payments are simply additional attempts to complete the original order or instruction for payment,  and as such, will not trigger additional NSF Fee.  In other words, it is always the same item.   47.  Banks like City National that employ this abusive multiple fee practice know how  to plainly and clearly disclose it.  Indeed, other banks and credit unions that do engage in this  abusive practice disclose it expressly to their accountholders—something Defendant here never  did.   48.  For example, First Hawaiian Bank engages in the same abusive practices as  Defendant, but at least currently discloses it in its online banking agreement, in all capital letters,  as follows:  56.  Plaintiff brings this action on behalf of himself and on behalf of all others similarly  situated pursuant to Federal Rule 23.  The National Class includes:   All persons who, within the applicable statute of limitations period, were charged  multiple NSF Fees for a single item in a City National checking account (the  “Multiple NSF Fee Class”).  The West Virginia sub-class includes:  All persons residing in the State of West Virginia who, within the applicable statute  of limitations period, were charged multiple NSF Fees for a single item in a City  National checking account (the “West Virginia Sub-Class”).   57.  Excluded from the Classes are Defendant, Defendant’s subsidiaries and affiliates,  their officers, directors, and the members of their immediate families, and any entity in which  Defendant has a controlling interest, the legal representatives, heirs, successors, or assigns of any  such excluded party, the judicial officer(s) to whom this action is assigned, and the members of  their immediate families.   58.  Plaintiff reserves the right to modify or amend the definition of the proposed  Classes and/or to add subclasses if necessary before this Court determines whether certification is  appropriate.   59.  The questions here are ones of common or general interest such that there is a well- defined community of interest among the members of the Classes. These questions predominate  over questions that may affect only individual class members because City National has acted on  11  grounds generally applicable to the Classes.  Such common legal or factual questions include, but  are not limited to:  a)  Whether City National improperly charged more than one NSF Fee on the same  item;   b)  Whether City National’s conduct violates the contract;  c)  Whether City National’s conduct violates the covenant of good faith and fair  dealing;  d)  Whether City National’s conduct constitutes unjust enrichment;  e)  Whether City National’s conduct constitutes unfair methods of competition and  unfair or deceptive acts or practices in the conduct of any trade or commerce within  the meaning of W.Va. Code § 46A-6-104; and  f)  The appropriate measure of damages.   60.  The parties are numerous such that joinder is impracticable.  Upon information and  belief, and subject to class discovery, the Classes consist of thousands of members or more, the  identities of whom are within the exclusive knowledge of and can be ascertained only by resort to  City National’s records.  City National has the administrative capability through its computer  systems and other records to identify all members of the Classes, and such specific information is  not otherwise available to Plaintiff.   61.  It is impracticable to bring members’ of the Classes individual claims before the  Court. Class treatment permits a large number of similarly situated persons or entities to prosecute  their common claims in a single forum simultaneously, efficiently and without the unnecessary  duplication of evidence, effort, expense, or the possibility of inconsistent or contradictory  judgments that numerous individual actions would engender.  The benefits of the class mechanism,  including providing injured persons or entities with a method for obtaining redress on claims that  might not be practicable to pursue individually, substantially outweigh any difficulties that may  arise in the management of this class action.  12   62.  Plaintiff’s claims are typical of the claims of the other members of the Classes in  that they arise out of the same wrongful business practices by City National, as described herein.   63.  Plaintiff is more than an adequate representative of the Classes in that Plaintiff has  a City National checking account and has suffered damages as a result of City National’s contract  violations, City National’s violations of the covenant of good faith and fair dealing, City National’s  unjust enrichment, and City National’s violation the West Virginia Consumer Credit And  Protection Act (W.Va. Code § 46A-6-104).  In addition:  a)  Plaintiff is committed to the vigorous prosecution of this action on behalf of himself  and all others similarly situated and has retained competent counsel experienced in  the prosecution of class actions and, in particular, class actions on behalf of  consumers against financial institutions;  b)  There is no conflict of interest between Plaintiff and the unnamed members of the  Classes;   c)  Plaintiff anticipates no difficulty in the management of this litigation as a class  action; and  d)  Plaintiff’s legal counsel has the financial and legal resources to meet the substantial  costs and legal issues associated with this type of litigation.   64.  Plaintiff knows of no difficulty to be encountered in the maintenance of this action  that would preclude its maintenance as a class action.   65.  City National has acted or refused to act on grounds generally applicable to each of  the class, thereby making appropriate final injunctive relief or corresponding declaratory relief  with respect to the Classes as a whole.       66.  All conditions precedent to bringing this action have been satisfied and/or waived.  67.  Plaintiff repeats, realleges, and incorporates by reference each of the foregoing  paragraphs of this Amended Petition as if fully set forth herein.   68.  Plaintiff and City National contracted for checking account services, as embodied  in the Terms and Conditions and Fee Schedule.   69.  City National breached the terms of the Terms and Conditions and Fee Schedule.   70.  Plaintiff and members of the putative Class have performed all of the obligations  on them pursuant to the Bank’s Terms and Conditions and Fee Schedule.   71.  Plaintiff and members of the putative Class have sustained monetary damages as a  result of each of Defendant’s breaches.   72.  Plaintiff and City National contracted for checking account services, as embodied  in the Terms and Conditions and Fee Schedule.   73.  All of the relevant states (with the possible exception of Texas) mandate that an  implied covenant of good faith and fair dealing govern every contract.  For banking transactions,  this is also mandated by the Uniform Commercial Code that has been adopted in each state.  The  covenant of good faith and fair dealing constrains Defendant’s discretion to abuse self-granted  contractual powers.   74.  This good faith requirement extends to the manner in which a party employs  discretion conferred by a contract.   75.  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  14  abusing the power to specify terms constitute examples of bad faith in the performance of  contracts.   76.  Subterfuge and evasion violate the obligation of good faith in performance even  when an actor believes his conduct to be justified.  A lack of good faith may be overt or may  consist of inaction, and fair dealing may require more than honesty.  Other examples of violations  of good faith and fair dealing are willful rendering of imperfect performance, abuse of a power to  specify terms, and interference with or failure to cooperate in the other party’s performance.   77.  City National breached the covenant of good faith and fair dealing as explained  herein.   78.  Each of Defendant’s actions was done in bad faith and was arbitrary and capricious.   79.  Plaintiff and members of the putative Class have performed all of the obligations  imposed on them pursuant to the Terms and Conditions.   80.  Plaintiff and members of the putative Class have sustained monetary damages as a  result of each of Defendant’s breaches of the covenant of good faith and fair dealing.  81.  Plaintiff repeats, realleges, and incorporates by reference each of the foregoing  paragraphs of this Amended Petition as if fully set forth herein.   82.  This Count is brought solely in the alternative.  Plaintiff acknowledges that his  breach of contract claim cannot be tried along with unjust enrichment.   83.  To the detriment of Plaintiff and the Class, Defendant has been, and continues to  be, unjustly enriched as a result of its wrongful conduct alleged herein.  15   84.  Plaintiff and the Class conferred a benefit on Defendant when they paid Defendant  the fees that were not disclosed or allowed for in the in the Terms and Conditions and Fee  Schedule.   85.  Defendant unfairly, deceptively, unjustly, and/or unlawfully accepted said benefits,  which under the circumstances, would be unjust to allow Defendant to retain.   86.  Plaintiff and the Class, therefore, seek disgorgement of all wrongfully obtained fees  received by Defendant as a result of its inequitable conduct as more fully stated herein.   87.   Plaintiff repeats, realleges, and incorporates by reference each of the foregoing  paragraphs of this Amended Petition as if fully set forth herein.   88.  City National engages in trade or commerce in West Virginia and offers overdraft  “protection” services to its customers, which services necessarily include, but are not limited to,  financial services, bank account services, and the extension of consumer credit.   89.  Banking accounts, financial services, overdraft protection, and processing,  payment, and rejection of debit card transactions constitute a “service” as defined by W.Va. Code  9.  As alleged herein, City National’s “TERMS AND CONDITIONS OF YOUR  ACCOUNT” (“Terms and Conditions”) and its Fee Schedule convey to customers that a single  $36 NSF Fee will be assessed when an item, including an electronic payment item, is returned for  insufficient funds.    BREACH OF CONTRACT AND BREACH OF THE   COVENANT OF GOOD FAITH AND FAIR DEALING  (On Behalf of Plaintiff, the Multiple NSF Fee Class, and the West Virginia Sub-Class)  13   I.  CITY NATIONAL CHARGES MORE THAN ONE NSF FEE ON THE SAME  ITEM   UNJUST ENRICHMENT  (In the Alternative to COUNT I)   (On Behalf of Plaintiff, the Multiple NSF Fee Class, and the West Virginia Sub-Class)   VIOLATION OF WEST VIRGINIA CONSUMER CREDIT AND PROTECTION ACT  (W.Va. Code § 46A-6-104, et seq.)  (On Behalf of Plaintiff and the West Virginia Sub-Class)  