20.  As alleged more fully herein, Ally’s Account Documents allow it to take certain  steps when an accountholder attempts a transaction, but does not have sufficient funds to cover it.  Specifically, Ally may (a) authorize the transaction and charge a single $25 OD Fee; or (b) reject  the transaction and charge a single $25 NSF Fee.    21.  In contrast to its Account Documents, however, Ally regularly assesses two or more  NSF Fees on the same item or transaction.     23.  Ally’s Account Documents never disclose this practice. To the contrary, Ally’s  Account Documents indicate it will only charge a single NSF Fee on an item or per transaction.  A.  Examples of Ally’s Imposition of Multiple NSF Fees on a Single Overdraft  Item   24.  There are numerous instances in which Ally charged NSF Fees on Plaintiff’s  Overdraft Items that it returned unpaid, and in which Ally charged multiple NSF Fees on a single  Overdraft Item.     25.  On December 19, 2018, Mr. Coleman attempted a $28.02 payment via an  Automated Clearing House (“ACH”) payment.   26.  Ally rejected payment of the item due to insufficient funds and charged Mr.  Coleman a $25 NSF Fee for doing so.   27.  Eight days later, on December 27, 2018, the same item was reprocessed for  payment, and again Ally rejected the item due to insufficient funds, and again charged Mr.  Coleman a $25 NSF Fee.   28.  Yet again, on January 3, 2019, the same item was reprocessed for payment, and  again Ally rejected the item due to insufficient funds, and again charged Mr. Coleman a $25 NSF  Fee.   29.  In sum, Ally charged Mr. Coleman $75 in NSF Fees to attempt to process a single  payment that was roughly a third of that amount.   30.  Mr. Coleman took no affirmative action to reinitiate or resubmit the payment.   32.  Ally’s “Fee Schedules” for both savings and checking accounts indicate that only  a single NSF Fee will be assessed per “Overdraft Item returned” due to insufficient funds:  Fee for Overdraft Item Returned $25   • Maximum one fee per day   • The fee is charged when you don’t have enough money in your checking account to cover  a transaction(s).   •The fee isn’t charged for a one-time debit card transaction or ATM withdrawal   • We won’t charge an additional fee even if you have a negative account balance over  an extended period  Checking Fee Schedule, Ex. A; Savings Fee Schedule, Ex. B (emphasis added).   33.  Ally’s Deposit Agreement and Disclosures (Deposit Agreement”) similarly states:  Fee for Overdraft Item Returned Fee assessed when a presented transaction(s) is  returned, other than a one-time debit card transaction or ATM withdrawal, and such  return causes or could cause your account to not have sufficient funds available  […]  When a transaction is presented against your account, and your account either does  not have sufficient funds or the transaction would cause your account to not have  sufficient funds, and you have…transacted by…an ACH transaction….[you] will  be charged an overdraft fee (one (1) fee maximum per day) unless the transaction  will result in your account being overdrawn by less than $10.  Deposit Agreement, at 30.   34.  In none of the documents is the phrase “Overdraft Item” defined.   36.  Ally’s purportedly “Straight Talk” Fee Schedules compound the common sense  understanding by misrepresenting to consumers that “We won’t charge an additional fee even if  you have a negative account balance over an extended period.” Ex. A; Ex. B.     37.  In sum, the same instruction for payment on an account cannot conceivably become  a new “Overdraft Item” each time it is rejected for payment then reprocessed, especially when— as here—Plaintiff did not ask Ally to resubmit it.   38.  There is no indication in the Account Documents that the same item is eligible to  incur multiple NSF Fees.   39.  Consistent with express representations in the Account Documents, reasonable  consumers understand any given authorization for payment to be one, singular “Overdraft Item,”  as that term is used in Ally’s Account Documents.   40.  The Account Documents bar Ally from assessing multiple NSF Fees on the same  Overdraft Item.   41.  Customers reasonably understand, based on the language of the Account  Documents, that Ally’s reprocessing of checks or ACH items are simply additional attempts to  complete the original order or instruction for payment, and as such, will not trigger NSF Fees.  In  other words, it is always the same item or transaction.   43.  For example, First Citizens Bank, a major institution in the Carolinas, engages in  the same abusive practice as Ally, but at least expressly states:  Because we may charge a service fee for an NSF item each time it is presented, we  may charge you more than one service fee for any given item. All fees are  charged during evening posting. When we charge a fee for NSF items, the charge  reduces the available balance in your account and may put your account into (or  further into) overdraft.  (emphasis added).   44.  First Hawaiian Bank engages in the same abusive practices as Ally, but at least  currently discloses it in its online banking agreement, in all capital letters, as follows:  51.  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.     52.  The proposed class is defined as:   All Ally savings and checking account holders in the United States  who, during the applicable statute of limitations, were charged more  than one NSF Fee on the same item (the “Class”).   53.  Plaintiff reserves the right to modify or amend the definition of the proposed Class  before the Court determines whether certification is appropriate.   54.  Excluded from the Class are Ally, its parents, subsidiaries, affiliates, officers and  directors, any entity in which Ally 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.   55.  The members of the Class are so numerous that joinder is impractical.  The Class  consists of thousands of members, the identity of whom is within the knowledge of and can be  ascertained only by resort to Ally’s records.     56.  Notice to class members can be accomplished after obtaining the identity of class  members, which can be ascertained only by resort to Ally’s records.   58.  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.   59.  Among the questions of law and fact common to the Class are whether Ally:  a.  Charged multiple NSF Fees on a single Overdraft Item;  b.  Breached its contract with consumers by charging multiple NSF Fees on a  single Overdraft Item;   c.  Breached the covenant of good faith and fair dealing by charging multiple  NSF Fees on a single Overdraft Item; and  d.  Whether Plaintiff and the Class were damaged by Ally’s conduct and if so,  the proper measure of damages.   60.  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.   62.  Even if Class members themselves could afford such individual litigation, the court  system could not.  Given the complex legal and factual issues involved, individualized litigation  would significantly increase the delay and expense to all parties and to the Court.  Individualized  litigation would also create the potential for inconsistent or contradictory rulings.  By contrast, a  class action presents far fewer management difficulties, allows claims to be heard which might  otherwise go unheard because of the relative expense of bringing individual lawsuits, and provides  the benefits of adjudication, economies of scale and comprehensive supervision by a single court.  63.  The preceding allegations are incorporated by reference and re-alleged as if fully  set forth herein.   64.  Plaintiff and Ally have contracted for bank account services. That contract does not  permit Ally to charge multiple NSF Fees for a single Overdraft Item.   65.  Ally has breached its account agreement with customers by charging multiple NSF  Fees for a single Overdraft Item.     66.  Plaintiff and members of the Class have performed all, or substantially all, of the  obligations imposed on them under the contract unless otherwise excused.   68.  The preceding allegations are incorporated by reference and re-alleged as if fully  set forth herein.   69.  Plaintiff and Ally have contracted for bank account services as alleged herein.    70.  Under the laws of Utah, 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.   71.  Subterfuge and evasion violate the obligation of good faith in performance even  when an actor believes his conduct to be justified. A failure to act in good faith may be overt or  may consist of inaction, and fair dealing may require more than honesty. Examples of violations  of good faith and fair dealing include evasion of the spirit of the bargain, 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.   73.  Instead of exercising that discretion in good faith and consistent with Plaintiff’s  reasonable expectations, Ally abuses that discretion to take money out of Plaintiff’s account  without his permission and contrary to his reasonable expectations that he will not be charged  multiple NSF Fees for the same transaction. Specifically, Ally regularly charges NSF Fees upon  reprocessing of previously declined transactions.    74.  Plaintiff and members of the Class have performed all, or substantially all, of the  obligations imposed on them under the contract.   75.  Plaintiff and members of the Class have sustained damages because of Ally’s  breach of the covenant of good faith and fair dealing.  Breach of Contract   (On Behalf of Plaintiff and the Class)   Breach of the Covenant of Good Faith and Fair Dealing  (On Behalf of Plaintiff and the Class)   I.  ALLY CHARGES TWO OR MORE NSF FEES ON THE SAME ITEM  