Congress Eliminates ATM Fee Notice Requirements And Provides Protection For Bank Information Provided To CFPB
Congress has finally acted to address two issues that we have addressed in past issues of this Update. One issue we have addressed in the past that has impacted many banks involved frivolous class action lawsuits filed under the auspices of the Electronic Fund Transfer Act. Such claims involved users of ATMs alleging that they were entitled to damages because a notice had not been placed on the ATM informing them they may be charged a fee for their transaction. On December 11th, a bill eliminating the on-machine notice requirement was passed by the Senate and sent to the President for his signature. The House of Representatives in their report on the bill stated they were eliminating the requirement that fee notice be affixed or displayed on the ATM as such notices were unnecessary since ATM operators are required to disclose the fees on the screen prior to the consumer consummating the transaction. The House saw the bill as a way to protect ATM operators from the frivolous lawsuits to which many have been subjected related to the ATM fee notice requirement. The President signed the bill into law on December 20, 2012. The new law eliminates the requirement that a notice be placed on our about the ATM, leaving in place the requirement for the on-screen notice.
The second issue we have commented on in the past and which was finally rectified by Congress was Congress’ failure to include the Consumer Protection Financial Bureau (“CFPB”) within the terms of the Federal Deposit Insurance Act such that disclosure of attorney-client privileged materials to the CFPB would not waive the attorney-client privilege to those documents. On December 11, the bill adding the CFPB to the list of regulators to whom such disclosures are made does not waive the attorney-client privilege. The House of Representatives explained that the purpose of the bill was to clarify that institutions regulated by the CFPB will not waive applicable legal privileges as to third parties when they share information with the CFPB. The President signed the bill into law on December 20, 2012. With this enactment, the debate about whether attorney-client privilege is waived by submitting information and documents to the CFPB has been put to rest. Such disclosure does not waive applicable legal privileges, including the attorney-client privilege.