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Judge reverses ATM fee class decertification; suggests any award go to charity

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The 7th Circuit Court of Appeals court didn’t exactly call an Indiana appeal a small-change case, but it suggested the few dollars each member of a class might receive could be more usefully given to charity.

David Hughes is the lead plaintiff in a class-action lawsuit over automated teller machines in two Indianapolis bars that he alleged failed to comply with a now-repealed federal law that required ATMs to carry a disclosure of fees both onscreen and on a sticker affixed to the machine. The sticker is no longer required, and the machines he used carried the onscreen disclosure of a $3 transaction fee.

Judge Jane Magnus-Stinson decertified the class in the U.S. District Court for the Southern District of Indiana, and Hughes appealed, winning a reversal Wednesday that at most could win for the class $10,000 under penalties for violation of the Electronic Funds Transfer Act, 15 U.S.C. § 1693b(d)(3). There are at least 2,700 people in the class in David Hughes v. Kore of Indiana Enterprise Inc., et al., 13-8018.

In reversing the District Court, Circuit Judge Richard Posner concluded for the panel, “We hold only that the judge’s opinion decertifying the class does not provide adequate grounds for her ruling. There may be such grounds. And our extended discussion of
how to distribute damages was not meant to imply that Kore must be liable in this case. For all we know, it has good defenses.”

But Posner wrote that the prospect of thousands of plaintiffs getting perhaps $3 raises questions about the process and remedies. “Since distribution of damages to the class members would provide no meaningful relief, the best solution may be what is called (with some imprecision) a “cy pres” decree. Such a decree awards to a charity the money that would otherwise go to the members of the class as damages, if distribution to the class members is infeasible.

“A foundation that receives $10,000 can use the money to do something to minimize violations of the Electronic Funds Transfer Act; as a practical matter, class members each given $3.57 cannot,” the court reasoned.

Kore, which owned and operated ATMs in bars including Average Joe’s in Broad Ripple and another establishment the court described as “said to be popular with college students” did not file a brief on appeal to the 7th Circuit, the opinion noted, and the court opined that perhaps that meant the defendants favored class status against the potential risk of individual suits.

But Posner mused that didn’t seem likely, noting no apparent individual claims had been filed. “Although one reason for the paucity of litigation may be unfamiliarity with the law, another may be the difficulty of finding a lawyer willing to handle an individual suit in which the stakes are $100 or an improbable maximum of $1000,” he wrote.

“But what is a reasonable attorney’s fee for obtaining a $100 judgment? More than one might think, if the judge thought that the suit had broadcast a needed warning about compliance with the Electronic Funds Transfer Act (albeit the specific provision that Kore is charged with violating has been repealed); but enough to interest a competent lawyer? The paucity of litigation suggests not.”


 

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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