The United States District Court for the Southern District of California, interpreting New Jersey law, recently denied a bank’s motion for summary judgment seeking to dismiss a breach of contract claim brought by the bank’s depositors for multiple out-of-network ATM fees. See Figueroa v. Capital One, N.A., 2019 WL 4962971 (S.D. Cal. Oct. 7, 2019). In the case, the plaintiffs opened a bank account with the defendant bank in New Jersey and received documents disclosing the fees that the bank would charge for certain activities. Over the next year, plaintiffs made three ATM withdrawals at out-of-network ATMs, and were charged multiple fees for each withdrawal; one fee when plaintiffs checked their balance and one fee when they subsequently withdrew money. Plaintiffs then brought this class action alleging, among other things, that the bank had violated its contract with its customers by charging fees to which the customers did not consent. After discovery, the bank filed a motion for summary judgment.

The Court denied the bank’s summary judgment motion. First, the Court determined which of the many bank documents and disclosures were part of the contract. It held that the only documents that could be part of the contract were those to which the parties mutually assented. Relying on the bank’s records of what it printed as part of the “Welcome Kit” and the bank representative’s testimony regarding the same, the Court found that one of the documents relied on by plaintiffs was not part of the contract. Nonetheless, the Court found that the contracts were ambiguous with regard to fees. The Fee Schedule stated that there may be a “Foreign ATM Fee” for actions “initiated” at out-of-network ATMs. The Court found that plaintiffs’ interpretation that this meant only one fee would be charged if plaintiffs performed multiple acts as part of a single visit to the ATM was reasonable. “In sum, the court has read the contract documents as a whole in a fair and common sense manner and finds the plain and ordinary meaning of the term ‘initiate’ used in the Fee Schedule, read along with the ‘may also be charged…..’ phrase in the EFTAAD does not ‘indisputably’ state that a fee will be applied for each and every cash withdrawal and balance inquiry as Defendant would have the court believe.”