Lisa Mabary v. Home Town Bank, N.A.
In May 2010, Lisa Mabary made two withdrawals from ATMs operated by HomeTown Bank, N.A. At the time of the withdrawals, the Electronic Fund Transfer Act (EFTA) required ATM operators who imposed a fee on consumers to notify the consumer of the fee both (1) in a prominent and conspicuous location on or at the machine and (2) either on the screen or on paper. Neither of the ATMs from which Ms. Mabary withdrew money, however, contained the required on-machine notice. In October 2010, Ms. Mabary filed this lawsuit on behalf of herself and similarly situated ATM users, alleging that HomeTown Bank violated EFTA’s fee disclosure requirements. The complaint was followed by extensive district court proceedings. In December 2012, while a motion to certify a class in the case was pending, Congress amended EFTA to remove the requirement that ATM operators post the on-machine notice. Based on the amendment, the district court denied Ms. Mabary’s motion for class certification and dismissed Ms. Mabary’s case with prejudice.
Representing Ms. Mabary on appeal, we argue that under the test set forth by the Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244 (1994), the EFTA amendment does not apply retroactively either to Ms. Mabary’s or the class’s claims.
In its brief in response, in addition to arguing that the EFTA amendment applies to Ms. Mabary’s claims, HomeTown Bank argues that Ms. Mabary lacked standing because she did not claim an economic loss, that the case is moot because of an unaccepted offer of judgment it made to her early in the case, and that the class should not be certified because it does not meet the requirements of Federal Rule of Civil Procedure 23.
On November 5, 2014, the Fifth Circuit ruled in favor of Ms. Mabary on the standing, mootness, and retroactivity arguments and remanded to the district court to decide whether the class should be certified. On November 19, HomeTown Bank filed a petition for rehearing en banc, to which we responded on December 1. On January 6, 2015, the parties jointly moved to dismiss the appeal. The Fifth Circuit granted the motion, declared the pending petition for rehearing en banc moot, and withdrew its opinion.