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Wellington v. Empower Federal Credit Union

Credit Union Violated Regulation E by Ambiguously Describing When Overdraft Fee Assessed

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MEMORANDUM DECISION and ORDER I. INTRODUCTION On November 4, 2020, plaintiff Danielle Wellington (“Wellington” or “plaintiff”), an accountholder at defendant Empower Federal Credit Union (“Empower”), filed this putative class action against Empower and Jane Does 1 through 5 (collectively “defendants”). According to plaintiff’s two-count class complaint, defendants violated certain disclosure requirements governing bank overdraft fees. On February 2, 2021, Empower moved under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) to dismiss the complaint. The motion has been fully briefed and will be considered on the basis of the submissions without oral argument. II. BACKGROUND The following factual allegations are taken from Wellington’s complaint, Dkt. No. 1 (“Compl.”), and are assumed true for the purpose of resolving Empower’s motion to dismiss. In August of 2019, Wellington opened a checking account with Empower, a credit union headquartered in Syracuse, New York. Compl.

16, 24. As part of her enrollment, plaintiff “opted in” to a service called “Courtesy Pay,” which is Empower’s overdraft program for one-time debit card and ATM transactions. Id. 24. Under the Courtesy Pay program, Empower automatically pays for a transaction using its own funds when the transaction would cause a customer’s account to be overdrawn, or where the customer’s account lacks sufficient funds. Compl.

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