In Arlington Video Productions, Inc. v. Fifth Third Bancorp, the Sixth Circuit, in an unpublished decision, reversed summary judgment granted to Fifth Third and reversed the denial of class certification. The case arose from a dispute between a business that had a business checking account and its bank, and it concerned a number of fees that the bank assessed on the business during the banking relationship. In the first half of its decision, the Court focused on the contractual relationship between the bank and the business, as well as on the adequacy of disclosure of the relevant fees. The Court pointed to information that suggested that some of the fees were not readily ascertainable. Based on this type of evidence, the Court determined that there were material issues of fact concerning whether the bank breached its contractual agreement with the business, and therefore it reversed summary judgment on this basis.
Then the Court turned to the issue of class certification. Building on its prior decision in Glazer v. Whirlpool Corp. and the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, the Court walked through the class certification analysis. Initially, the Court expressed some concern about the breadth definition of the class, based upon the business’ pursuit of recovery for personal banking customers who it could not represent. As a result, the Court remanded to the district court the issue of the class definition. But on the other aspects of class certification, the Court found most other elements satisfied. For instance, on commonality, the Sixth Circuit rejected an argument that because class members may be impacted differently by the fee schedule, that it will not implicate common questions. It also rejected an argument that the size of potential class and the need to review data concerning individual class members is a basis for denial of class certification. On typicality, the Court determined the proper focus was not on whether the business customers actually received the disclosure of fees applicable to their accounts, but whether the bank provided those required disclosures.
Although unpublished, this case may be significant in terms of financial services litigation because there are a number of cases that address fees charged by financial institutions. However, there remain a number of issues for the district court to sort through on remand, and further proceedings may impact the scope of this decision. But this case remains an important one to review in terms of the Sixth Circuit’s approach on class actions.