Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Behrens v. Landmark Credit Union

United States District Court, W.D. Wisconsin

June 26, 2018

DANELL BEHRENS, individually and on behalf of all others similarly situated, Plaintiff,
LANDMARK CREDIT UNION and DOES 1-100, Defendants.

          OPINION & ORDER


         Plaintiff Danell Behrens filed a proposed class action alleging that defendants, Landmark Credit Union and Does 1-100 (collectively “LCU”), charged LCU members overdraft fees in violation of Regulation E of the Electronic Fund Transfer Act (ETFA) and LCU's own overdraft program contract. Now before the court is Behrens's unopposed motion seeking preliminary approval for the parties' proposed class action settlement. Dkt. 29. In her motion, Behrens seeks conditional certification of the class, approval of a proposed notice plan, appointment of a claims administrator, and a hearing date for the final approval of the settlement. The court will conditionally certify the class and preliminarily approve the settlement pending a final fairness hearing.


         LCU is a Wisconsin-based credit union. During the six-year period prior to the filing of this suit, Behrens and the proposed class members all had checking accounts with LCU.

         Behrens alleges that LCU wrongfully charged its customers overdraft fees. An overdraft fee is charged to an account when there are not sufficient funds in an account to cover a transaction. There are two methods to determine if an account has sufficient funds to cover a transaction: (1) the ledger, or actual, balance method and (2) the available balance method. LCU used the available balance method to assess its overdraft fees.

         The difference between the two is that the actual balance reflects all of the money in an account, whereas the available balance reflects only the money not subject to a hold due to pending transactions. Thus, the available balance in an account may be less than the actual balance. So by using the available balance method, LCU may assess an overdraft fee even when a customer's actual balance shows enough money to cover a transaction.

         Behrens claims that this practice violates the terms of the contracts governing LCU's overdraft program, and that it violates Regulation E of the EFTA, see 12 C.F.R. § 1005.17, because LCU failed to properly disclose its overdraft policy to customers.

         Behrens brings her claims on behalf of herself and the entire class, which is composed of two subclasses. The first, the “Sufficient Funds” subclass, is tied to the breach of contract claim and is defined as “those members of Defendant who were assessed an Overdraft Fee between February 9, 2011 and February 28, 2017 on any type of payment transaction and at the time such fee was assessed, the member had sufficient money in his or her ledger balance to cover the transaction that resulted in the fee.” Dkt. 37, at 6. The second, the “Regulation E” subclass, is tied to the ETFA claim and is defined as “those members of Defendant who were assessed an Overdraft Fee for an ATM or non-recurring debit card payment transaction for the first time between February 9, 2016 and February 28, 2017.” Dkt. 37, at 6. Id.

         The Court has subject matter jurisdiction over Behrens' EFTA claim under 28 U.S.C. § 1331 because it arises under federal law, and the court may assert supplemental jurisdiction over the breach of contract claim under 28 U.S.C. § 1367 because it is part of the same case or controversy.


         A. Class Certification

         For settlement purposes only, Behrens moves the court to certify the proposed class. The proposed class consists of “any member of LCU who is in either of the two [sub]classes, the Regulation E Class or the Sufficient Funds Class.” Dkt. 37, at 6.

         “Rule 23 gives the district courts ‘broad discretion to determine whether certification of a class-action lawsuit is appropriate.'” Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir. 2008) (quoting Chavez v. Ill. State Police, 251 F.3d 612, 629 (7th Cir. 2001)). Before “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all members, ” the proposed class must satisfy the Rule 23(a) prerequisites: numerosity, commonality, typicality, and adequacy of representation. Fed.R.Civ.P. 23(a). The proposed class must also satisfy one subsection of Rule 23(b). Here, Behrens argues that the proposed class satisfies Rule 23(b)(3). Rule 23(b)(3) permits class certification when “questions of law or fact common to class members predominate over any questions affecting only individual members, ” and when a class action is “superior to other available methods for fairly and efficiently adjudicating the controversy.” And “[i]f the action proceeds under Rule 23(b)(3), then each member of the class must receive notice and an opportunity to opt out and litigate (or not) on his own behalf.” Jefferson v. Ingersoll Int'l Inc., 195 F.3d 894, 896 (7th Cir. 1999).

         When considering whether to preliminarily approve a class action settlement and, in the process, to certify a Rule 23 class, the court must rigorously examine whether the proposed class satisfies the Rule 23 requirements, to mitigate the lack of an adversarial relationship between the parties and to identify potential conflicts of interest. See Redman v. RadioShack Corp., 768 F.3d 622, 629 (7th Cir. 2014). Thus, Behrens must go beyond the pleadings and adduce evidence to satisfy Rule 23. Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). Because she does so, the court will certify the proposed class.

         1. Numerosity

         Rule 23(a)(1) requires that the proposed class be so numerous that joinder is impracticable. There is no explicit cut-off, but the Seventh Circuit has deemed classes of 40 members to be sufficient. See Swanson v. Am. Consumer Indus., Inc., 415 F.2d 1326, 1333 n.9 (7th Cir. 1969). Here, Behrens has identified 14, 286 LCU members as belonging to the Sufficient Funds subclass and 6, 020 LCU members as belonging to the Regulation E class, for a total class membership of 18, 062 persons. This number is large enough to make joining all potential class members impracticable. Behrens has satisfied the numerosity requirement.

         2. Commonality

         Under Rule 23(a)(2), a class action must involve “questions of law or fact common to the class” or, more accurately, common answers to those questions. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-50 (2011). Put differently, a class satisfies the commonality requirement when “determining the truth or falsity of [a] common contention will resolve an issue that is central to the validity of each claim.” Chi. Teachers Union, Local No. 1 v. Bd. of Educ., 797 F.3d 426, 434 (7th Cir. 2015).

         Here, Behrens has identified several questions common to the class, all of which would share common answers: (1) whether LCU uniformly and systematically used the available balance method instead of the actual balance method to assess an overdraft fee on a transaction; (2) whether the operative terms in the overdraft fee program contract, including the method of balance calculation to be used in the assessment of overdraft fees, were provided to all class members; and (3) whether the terms of the overdraft fee program contract mandated the use of the actual balance in the assessment of overdraft fees.

         The determination of these issues, regardless of outcome, will resolve the allegations of the entire class. Behrens satisfies Rule 23(a)(2)'s commonality requirement.

         3. Typicality

         Under Rule 23(a)(3), a class representative's claims must have “the same essential characteristics” as the class members' claims. Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009) (quoting De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983)). Behrens seeks appointment as the class representative, contending that her claims are based on the same questions of law and fact as the rest of the class. Behrens is a member of the proposed class, she entered into LCU's standardized overdraft program contract, and she ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.