MEMORANDUM ORDER On December 7, 2022, defendant FCTI, Inc. (“FCTI”) moved for summary judgment in its favor on all claims asserted by plaintiff Jerome Polvay in the First Amended Complaint. See ECF No. 26. After full briefing, the Court heard oral argument on FCTI’s motion on Friday, January 6, 2023.1 The Court then denied FCTI’s motion by a “bottom-line” order dated January 13, 2023, promising that a subsequent memorandum would explain the reasons for the Court’s order. Here is that Memorandum Order. I. Factual Background FCTI supplies ATMs to 7-Eleven convenience stores. Decl. of Todd D. Carpenter in Support of P’s Opp. to D’s Mot. for Summ. J. (hereinafter, “Carpenter Decl.”), ECF No. 35, Ex. 5, at 15:17-23. ATMs allow customers to withdraw cash, transfer funds, and check the balance of their bank accounts. Sometimes, a bank will charge a fee to a customer who completes a transaction through an ATM that is outside of the bank’s own network. When a customer checks their balance through an FCTI ATM, FCTI receives a portion — on average, $0.17 — of the fee assessed by the customer’s bank. Id. at 25. On October 12, 2021, Mr. Polvay used an FCTI ATM at a 7-Eleven located at 1239 2nd Avenue, New York, New York. Decl. of Jerome Polvay in Support of P’s Opp. to D’s Mot. for Summ J. (hereinafter, “Polvay Decl.”), ECF No. 34, at 3. Mr. Polvay sought to withdraw $40 in cash. Id., at 5. The ATM then displayed a screen which asked, “Would you like to view your account balance?” Mr. Polvay pressed “YES.” Following that, the ATM displayed a screen which asked Mr. Polvay, “Would you like to print your Balance and continue the Transaction?” Id. at 5. The screen presented Mr. Polvay with two options: One option was to “Continue”; the other was to “Cancel.” Id. (This screen is hereinafter referred to as the “Continue/Cancel Prompt.”) Believing that he needed to press “Continue” in order to complete the transaction, Mr. Polvay pressed “Continue.” Id. Mr. Polvay’s bank, TD Bank, then charged him two $3 fees for conducting balance inquiries. Polvay Decl., ECF No. 34, at
4, 6. The first balance inquiry was initiated when Mr. Polvay requested to see his account balance. The second balance inquiry was initiated when Mr. Polvay pressed “Continue” at the Continue/Cancel Prompt. Mr. Polvay did not anticipate that he would incur a fee for pressing “Continue.” Polvay Decl., ECF No. 34, at 6. While Mr. Polvay understood that he would be charged a fee for making a balance inquiry, and while he also understood that viewing his account balance would qualify as a balance inquiry, he did not believe that pressing “Continue” at the Continue/Cancel Prompt would initiate a second balance inquiry. In Mr. Polvay’s own words, “[I]t wasn’t a balance inquiry. I already had my balance.” Carpenter Decl., ECF No. 35, Ex. 8, at 82:7-83:22. On May 25, 2022, Mr. Polvay initiated this putative class action by filing the Complaint, which was subsequently amended on July 6, 2022. The First Amended Complaint alleges that the Continue/Cancel Prompt was deceptive and/or false, in violation of section 349 and 350 of New York General Business Law. As alleged in the First Amended Complaint, retail bank customers are accustomed to having to “opt-in” to making a balance inquiry. FAC, 19. For example, TD Bank’s own ATMs present customers with a menu of seven options, only one of which initiates a balance inquiry, and that option is clearly labeled “Balance Inquiry.” FAC, 20. Bank retail customers are also accustomed to being able to print a receipt that includes their account balance information, free of charge, whenever they complete a transaction by using an ATM supplied by their home bank. See 12 C.F.R. §1005.9 (requiring financial institutions to provide this option). The First Amended Complaint alleges that these practices create a reasonable expectation that pressing “Continue” at the Continue/Cancel Prompt would not initiate a balance inquiry. Because pressing “Continue” at that prompt did initiate a balance inquiry, the Complaint asserts, that prompt was deceptive and/or false. FAC, ECF No. 14, at
