13.  On or about August 7, 2012, Plaintiff withdrew funds from the ATM inside Brother’s  Deli, located at 41 Market Street, Lynn, Massachusetts (the “Brother’s ATM”).   14.  At the time Plaintiff used the Brother’s ATM, it was owned and operated by Defendant.   15.  At the time Plaintiff used the Brother’s ATM, a fee notice was inconspicuously posted  near the bottom of the machine, below the currency dispensing slot.  A true and correct copy of a  photograph of the Brother’s ATM is attached hereto as Exhibit A.   16.  As shown in Exhibit A, the “Fee Notice” is placed in an inconspicuous location, at or  below knee level and out of eyesight of any person accessing the Brother’s ATM.   17.  At the time Plaintiff used the Brother’s ATM, he was charged a service fee in the  amount of $2.75.  A true and correct copy of Plaintiff’s receipt from the Brother’s ATM is attached  hereto as Exhibit B.  18.  Plaintiff brings this case as a class action pursuant to Rule 23 of the Federal Rules of  Civil Procedure on behalf of himself and all others similarly situated.   19.  The Class of consumers that Plaintiff seeks to protect is defined as:  All persons who within the one year period preceding the initiation of this  action were charged a transaction fee for use of the Brother’s ATM.  B.  Numerosity   21.  Upon information and belief, since the date of Plaintiff’s transaction at the Brother’s  ATM, Defendant has not posted a conspicuous notice disclosing the amount of the service fee on the  outside of the Brother’s ATM.    22.  The members of the Class are therefore believed to be so numerous that joinder of all  members is impractical.    23.  Although the exact numbers and identities of class members are unknown at this time  and can only be ascertained through appropriate discovery, Plaintiff is informed and believes that there  are thousands of individuals throughout Massachusetts who have claims identical to Plaintiff’s.   Therefore, bringing the action as a class will fairly ensure the adequate representation of all who may  sue.  C.  Common Questions of Law and Fact   24.  Plaintiff identifies the following questions of fact and law common to the Class which  predominate any questions affecting only individual Class members:  a) Whether Defendant was, at all relevant times during the class period, an ATM  operator who imposed a fee on consumers for providing host transfer services;   b) Whether the Brother’s ATM provided disclosure in a prominent and  conspicuous location that the ATM transaction was subject to the imposition of  a specified fee; and  c) Whether Defendant imposed fees on consumers without notice.    26.  Plaintiff’s claims are typical of the claims of the Class members since each of the  claims arises from the use of an ATM owned and operated by Defendant in their regular course of  business.  E.  Protecting the Interests of the Class Members    27.  Plaintiff will fairly and adequately represent the Class members, all of whom are  victims of Defendant’s unlawful and wrongful conduct.    28.  All of the Class members’ claims arise from substantially the same course of conduct  and specific activities complained of herein and require application of identical legal principles.    29.  Plaintiff has retained counsel experienced in bringing class actions and consumer class  claims and who stands ready, willing and able to represent the Class and advance the costs of this  litigation.  F.  Proceeding via Class Action is Superior and Advisable    30.  A class action is superior to other available methods for the fair and efficient  adjudication of this controversy.    31.  Absent a class action, most members of the Class would find the cost of litigating their  claims to be prohibitive, and therefore would have no effective remedy at law.   32.  The class treatment of common questions of law and fact is also superior to multiple  individual actions or piecemeal litigation in that it conserves the resources of the court and the litigants  and promotes consistency and efficiency of adjudication.    34.  The amount of money at issue is such that proceeding by way of a class action is the  only economical and sensible manner in which to vindicate Plaintiff and the other members of the  Class.  35.  Plaintiff repeats and realleges the above paragraphs of this Complaint and incorporates  them herein by reference.   36.  15 U.S.C. § 1693b(d)(3)(A) provides that any ATM operator who imposes a fee on any  consumer for providing host transfer services must provide a notice stating:  (i)  The fact that a fee is imposed by such operator for providing  the service; and  (ii)  The amount of any such fee.   37.  The notice required by 15 U.S.C. § 1693b(d)(3)(A) must “be posted in a prominent and  conspicuous location on or at the automated teller machine at which the electronic fund transfer is  initiated by the consumer.” 15 U.S.C. § 1693b(d)(3)(B)(i).    38.  In addition, 15 U.S.C. § 1693b(d)(3)(c) provides:  No fee may be imposed by any automated teller machine operator in  connection with any electronic fund transfer initiated by a consumer for  which a notice is required under subparagraph (A), unless:  (i)  The consumer receives such notice in accordance with  subparagraph (B); and  (ii)  The consumer elects to continue in the manner necessary to effect the  transaction after receiving such notice.   40.  12 C.F.R. 205.16(c) further provides:  An automated teller machine operator must comply with the  following:  (1) Post the notice required by paragraph (b)(1) of this section in a  prominent and conspicuous location on or at the automated teller  machine   41.  In addition, 12 C.F.R. 205.16(e) states:  An automated teller machine operator may impose a fee on a  consumer for initiating an electronic fund transfer of a balance  inquiry only if:  (1) The consumer is provided the notices required under paragraph  (c) of this section; and  (2) The consumer elects to continue the transaction or inquiry after  receiving such notices.   42.  Defendant is an automated teller machine operator who provided host transfer services  at all times relevant to this action.   43.  Defendant failed to comply with the EFTA in connection with providing such services  to Plaintiff and the other members of the Class as the notice on the Brother’s ATM was in neither a  prominent nor conspicuous location.   45.  Plaintiff and the other members of the Class have suffered damages as a result of  Defendant’s violations of the EFTA in that they were charged a fee that was not properly disclosed.   46.  Pursuant to 15 U.S.C. § 1693m, Defendant is liable to Plaintiff and the other members  of the Class for the amount of actual damages incurred, as well as for statutory damages, reasonable  attorney’s fees and the costs of this action.  A.  The Class   Violation of the EFTA, 15 U.S.C. § 1693, et seq.,  (On Behalf of All Class Members)  