U.S. Supreme Court Denies Cert. in ATM Sticker Notice Case

On March 10, 2014, the Supreme Court denied a certiorari petition in First National Bank of Wahoo v. Charvat, No. 13-679 (8th Cir. 2013), a case involving the core question of whether a statutory violation is enough to confer Article III standing on a plaintiff. See Supreme Court 2013 Term Order List 03/10/14 (available here). As previously mentioned, in Robins v. Spokeo, Inc., No. 11-56843, the Ninth Circuit recently held that a plaintiff in a Fair Credit Reporting Act case need not show actual injury to have standing.

In First National Bank, the U.S. Court of Appeals for the Eighth Circuit had ruled that the plaintiff had standing to proceed with his class claims alleging that a bank and a credit union failed to provide ATM sticker fee notices as required by the Electronic Fund Transfer Act (“EFTA”). Charvat v. First National Bank of Wahoo, No. 12-cv-02797 (8th Cir. 2013) (slip opinion available here). The Eighth Circuit disagreed with the district court’s finding that “because Charvat failed to allege some injury beyond the failure to receive an ‘on machine’ notice, he had not suffered a cognizable injury in fact,” stating, “[d]ecisions by this Court and the Supreme Court indicate that an informational injury alone is sufficient to confer standing, even without an additional economic or other injury.” Slip op. at 6.

By denying the petition, the Court declined to revisit the issue from First American Financial Corp. v. Edwards, 132 S. Ct. 2536 (2012), which had raised the same question regarding standing in the context of the Real Estate Settlement Procedures Act; the cert petition was later dismissed as having been granted “improvidently” on the last day of the Supreme Court’s 2012 term.

The impact of the Supreme Court’s denial of cert reaches further than suits brought under the EFTA; it would make suits by plaintiffs under consumer protection statutes with statutory damages provisions, such as the Truth in Lending Act, 15 U.S.C. §§ 1631-32; the Fair Debt Collection Practices Act, 15 U.S.C. § 1692(f); the Fair Credit Reporting Act, 15 U.S.C. § 1681e(b); and  the Telephone Consumer Protection Act, 47 U.S.C. § 227(b), easier to bring.