17.  Specifically, Plaintiff made a cash withdrawal from Defendant’s ATM  at the following locations:   (a)  On or about September 1, 2012, Plaintiff made an electronic fund transfer  at Defendant’s ATM located at 761 Highway 68, Sweetwater, Tennessee.   Defendant charged Plaintiff a fee of $3.00 in connection with the above- described transaction.   18.  At the time of the above-described electronic transaction, Plaintiff did not maintain  any accounts with Defendant.   19.  At the time of the above-described transaction, Defendant was acting as an  “automated teller machine operator” that operated the automated teller machine at which Plaintiff  initiated an electronic fund transfer or a balance inquiry.   20.  However, at the time of the above-described transaction, there was no notice  posted “on or at” the ATM operated by Defendant apprising consumers that a fee would be  charged for use of the ATM.   21.  Because Defendant did not post the required notice, it was not permitted to charge  a usage fee to Plaintiff and other class members.  22.  Plaintiff brings this class action on behalf of himself and all other similarly  situated pursuant to Rules 23(a) and 23(b) of the Federal Rules of Civil Procedure.   23.  Plaintiff seeks to represent a class of persons to be defined as follows:  All persons who during the year preceding the filing of Plaintiff’s complaint:  1)  where charged a “terminal fee” at Defendant’s ATM located at 761 Highway 68,  Sweetwater, Tennessee, which was operated by Defendant when such persons  made an electronic fund transfer and/or balance inquiry where, 2) no notice  indicating that such fee was to be charged was posted on or at the outside of the  ATM machine.   24.  Congress expressly intended that the EFTA would be enforced, in part, through  private class actions.  15 U.S.C. § 1693m(a).  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  Plaintiff Don Anderson’s Class Action  Complaint  - 6 -   25.  The EFTA’s class action enforcement provisions are identical, in relevant part, to  the class action enforcement provisions of other consumer protection statutes and housed within  the Consumer Credit Protection Act.  (15 U.S.C. § 1692 et seq.)  There is abundant authority  interpreting and applying these statutory class action provisions, throughout the federal judiciary.   Federal courts have routinely certified classes relating to consumer claims for statutory damages,  generally, and for violation of the EFTA’s ATM fee disclosure provisions, specifically.  See, e.g.,  Hammer v. JP’s Southwestern Foods, LLC, No. 08-cv-0339 (W.D. Mo.)(Gaitan, J.); Flores, supra  2008 WL 4861511 at 3-5; Burns, supra., 2006 WL 3754820 at *11-12; Jackman v. Global Cash  Access Holdings, 09-cv-897 (W.D. Pa.)(McVerry, J.)(class certified and final settlement approval  granted); Nolf v. Allegheny Bank of Pittsburgh, 09-cv-645 (W.D.Pa.)(Bissoon, J.)(class certified  and final settlement approval granted); Dragotta v. Northwest Bancorp, Inc. d/b/a Northwest  Savings Bank, 09-cv-632 (W.D. Pa.)(Fischer, J.) .)(class certified and final settlement approval  granted); Parker v. First-Citizen Bank & Trust Company, 09-cv-0588 (M.D. Tenn.)(Campbell, J.)  .)(class certified and final settlement approval granted); Polevoy v. Devon Bank, 08-cv-4822  (N.D. Ill.)(Kennelly, J.) (class certified and final settlement approval granted);Ochart v.  Broadway Bank, 08-cv-4893, (N.D. Ill.)(Castillo, J.)(class certified and final settlement approval  granted);Anthony v. Fifth Third Bank (Chicago), 08-cv-4359, (N.D. Ill)(Schenkier, J.)(class  certified and final settlement approval granted); Zintel v. Financial Partners Credit Union, (C.D.  CA), SACV 09-0868. (class certified and final settlement approval granted).   26.  Numerosity:  The class described above is so numerous that joinder of all  individual members in one action would be impracticable.  The disposition of the individual  claims of the respective class members through this class action will benefit both the parties and  this Court.   27.  Plaintiff is informed and believes, and thereon alleges, that there are at minimum,  thousands of members of the class described above.   28.  The exact size of the class and the identities of the individual members thereof are  ascertainable through Defendant’s records.  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  Plaintiff Don Anderson’s Class Action  Complaint  - 7 -   29.  Members of the class may be notified of the pendency of this action by techniques  and forms commonly used in class actions, such as by published notice, e-mail notice, website  notices, first class mail, or combinations thereof, or by other methods suitable to this class and  deemed necessary and/or appropriate by this Court.   30.  Typicality:  Plaintiff’s claims are typical of the claims of the members of the class.   The claims of the Plaintiff and members of the class are based on the same legal theories and  arise from the same unlawful and willful conduct.   31.  Plaintiff and members of the class were each consumers who used an ATM  machine operated by Defendant to make an electronic fund transfer or balance inquiry and were  charged a terminal owner fee, notwithstanding that the posting providing notice of the fee  required by EFTA “on or at” Defendant’s terminals was not present.   32.  Common Questions of Fact and Law:  There is a well-defined community of  interest and common questions of fact and law affecting members of the class.   33.  The questions of fact and law common to the class predominate over questions  which may affect individual members and include the following:  a.  Whether, under 15 U.S.C. § 1693b(d)(3)(A) and 12 C.F.R. 205.16,  Defendant was, at all relevant times, an automated teller machine operator  that imposed a fee on consumers for providing host electronic fund transfer  services to those consumers;  b.  Whether Defendant complied with the notice requirements of 15 U.S.C. §  1693(d)(3)(B) and 12 C.F.R. 205.16; and,  c.  Whether Plaintiff and members of the class are entitled to statutory  damages, costs and/or attorneys’ fees for Defendant’s acts and conduct.   34.  Adequacy of Representations:  Plaintiff is an adequate representative of the class  because his interests do not conflict with the interests of the members of the class.  Plaintiff will  fairly, adequately, and vigorously represent and protect the interests of the members of the class  and has no interests antagonistic to the members of the class.  Plaintiff has retained counsel who  is competent and experienced in the prosecution of class action litigation.  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  Plaintiff Don Anderson’s Class Action  Complaint  - 8 -   35.  Superiority:  A class action is superior to other available means for the fair and  efficient adjudication of the claims of the class.  While the aggregate damages which may be  awarded to the members of the class are likely to be substantial, the damages suffered by the  individual members of the class are relatively small.  As a result, the expense and burden of  individual litigation makes it economically infeasible and procedurally impracticable for each  member of the class to individually seek redress for the wrongs done to them.  Plaintiff does not  know of any other litigation concerning this controversy already commenced by or against any  member of the class.  The likelihood of the individual members of the class prosecuting separate  claims is remote.  Individualized litigation would also present the potential for varying,  inconsistent, or contradictory judgments, and would increase the delay and expense to all parties  and the court system resulting from multiple trials of the same factual issues.  In contrast, the  conduct of this matter as a class action presents fewer management difficulties, conserves the  resources of the parties and the court system, and would protect the rights of each member of the  class.  Plaintiff knows of no difficulty to be encountered in the management of this action that  would preclude its maintenance as a class action. 