United States District Court, W.D. North Carolina, Charlotte Division
LISA MORRIS, MICHAEL BUI, and TUMIKA WILLIAMS, on behalf of themselves and all others similarly situated, Plaintiffs,
BANK OF AMERICA, N.A., Defendant.
J. CONRAD, JR. UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendant's
Motion to Dismiss Plaintiffs' Second Amended Complaint
(“the Motion”), (Doc. No. 22), and the
parties' associated briefs and exhibits; the Memorandum
and Recommendation (“M&R”) of the United
States Magistrate Judge, (Doc. No. 38), recommending that the
Court grant Defendant's Motion in part and deny
Defendant's Motion in part; Defendant's Partial
Objection to the M&R, (Doc. No. 39); and Plaintiffs'
Response in Opposition to Defendant's Partial Objection,
(Doc. Nos. 40-41). The Motion is ripe for adjudication.
party has objected to the Magistrate Judge's statement of
the factual and procedural background of this case.
Therefore, the Court adopts the facts as set forth in the
STANDARD OF REVIEW
district court may assign dispositive pretrial matters,
including motions to dismiss, to a magistrate judge for
“proposed findings of fact and recommendations.”
28 U.S.C. § 636(b)(1)(A) and (B). The Federal Magistrate
Act provides that “a district court shall make a de
novo determination of those portions of the report or
specific proposed findings or recommendations to which
objection is made.” Id. at §
636(b)(1)(C); Fed.R.Civ.P. 72(b)(3); Camby v. Davis,
718 F.2d 198, 200 (4th Cir. 1983).
partially objects to the M&R, asking the Court to reject
the portion of the M&R recommending that the Court allow
Plaintiffs' claims based on the Oklahoma, Georgia, and
North Carolina consumer protection statutes to proceed based
on choice of law concerns. Defendant makes two specific
arguments: (1) the Oklahoma and Georgia consumer protection
acts contain exemptions for alleged conduct in regulated
industries, and therefore, no choice-of-law analysis is
needed on these claims, and (2) Plaintiffs' North
Carolina Unfair and Deceptive Trade Practices Act claim
should be dismissed on choice of law grounds. The Court
agrees with Defendant's first argument but disagrees with
its second. The Court addresses each in turn.
The exemption provisions of the consumer protection laws
of Oklahoma and Georgia apply to
Defendant's alleged conduct.
pled claims under North Carolina law, but also pled claims
under the consumer protection statutes of the states in which
they reside in the alternative. Defendant contends that the
Court need not even engage in a choice-of-law inquiry
regarding the consumer protection claims under Oklahoma and
Georgia law because both statutes “exempt from coverage
the subject matter of Plaintiffs' allegations-rules
related to the application and collection of bank fees for
overdraft protection.” (Doc. No. 39 at 5). The Court
the claim arising under Oklahoma law, the Oklahoma Consumer
Protection Act (“OCPA”), 15 Okla. Stat. §
751 et seq., exempts from coverage “[a]ctions
or transactions regulated under laws administered by . . .
regulatory bod[ies] or officer[s] acting under statutory
authority of this state or the United States.” Okla.
Stat. tit. 15, § 754(2). Plaintiff contends that, for
this exemption to apply, the specific conduct at issue must
be regulated by state or federal law. Here, Plaintiff claims
that Defendant engages in four distinct practices to increase
fee revenue at the expense of its customers:
1. BANA charges multiple $35 insufficient funds fees
(“NSF Fees”) and $35 overdraft (“OD
Fees”) (collectively NSF and OD Fees are referred to
herein as “Fees”) on the same transactions when
it repeatedly re-processes them, even though the Bank's
agreements authorize only one fee (and only one type of fee)
2. BANA assesses Fees on payments or attempted payments
to itself, even when it knows such transaction
attempts will be futile and its contracts do not authorize
3. BANA deducts Fees prematurely and from already-empty
accounts, and prior to the time promised (after deposits) in
its contractual agreements to ensure that even ...