A federal appeals panel appeared ready to unravel a class-action lawsuit accusing Bank of America of quietly ending a COVID-19 fee-relief program that once promised refunds to struggling customers. During oral arguments this week, all three judges on the panel criticized the scope of the class as too broad, with two suggesting that the case hinges on facts too individualized to be decided as a group.
The lawsuit, filed in February 2022, alleges that Bank of America charged overdraft and insufficient-funds fees after promising refunds to customers facing pandemic-related hardship, according to Law360. Plaintiffs said the bank ended the relief without notice. A federal district judge certified classes of California and New Jersey customers who said they experienced hardship and were charged fees; the class period runs from September 2020 through June 2022, The Charlotte Observer reported.
Lead plaintiff Anthony Ramirez said he racked up $245 in fees after overdrawing his account in August 2021 following a cut to his work hours, according to Bloomberg Law. The plaintiffs had alleged the bank promised fee refunds to customers who could prove economic hardship tied to the pandemic, per the same outlet. U.S. District Judge Yvonne Gonzalez Rogers allowed the plaintiffs' second amended complaint, filed in November 2023, to move forward in April 2024, Bloomberg Law reported.
The Certification Dispute
A central dispute is whether the bank’s internal tracking codes can reliably identify customers whose fee-relief requests are relevant to the case. Bank of America argued that the codes also captured millions of unrelated customer complaints, leaving no dependable common method to establish harm, according to The Observer’s reporting. The bank contended that determining which customers qualified would instead require reviewing accounts individually.
The bank said it recorded 1.4 million routine relationship inquiries during the period at issue, according to The Observer. It has also said it waived tens of millions of dollars in fees at the height of the pandemic in 2020, Bloomberg Law reported. In an earlier ruling, Judge Yvonne Gonzalez Rogers found that the bank promised to review pandemic fee-relief requests case by case, not to grant every request, according to Bloomberg Law.
The Evidence Behind the Class Definitions
The parties disagree about what customer-service records show. The Observer reported that Bank of America handled about 140,000 relief-related inquiries per month before the pandemic and roughly 180,000 per month during it. Consumer attorneys argued that the bank created and used the tracking codes to route pandemic-relief requests, Law360 reported.
Plaintiffs’ attorneys told the panel that remaining questions about eligibility could be addressed with customer claim forms and billing records, according to The Observer. But at least two judges indicated that deciding who was denied relief could depend on individual circumstances, Law360 reported. The panel’s questions included whether identifying customers facing pandemic hardship would require reviewing call recordings or account files one by one, The Observer reported.
Later Changes to Bank Fees
The case comes amid a broader decline in overdraft and nonsufficient-funds fee revenue. Bank of America stopped charging NSF fees and reduced its overdraft fee from $35 to $10 in 2022, Bloomberg Law reported. The Consumer Financial Protection Bureau also reported that quarterly overdraft and NSF fees stayed flat throughout 2023.
How Later Fee Changes and Industry Data Fit
Bank of America announced the fee changes in January 2022: it said NSF fees would be eliminated beginning in February and overdraft fees would fall from $35 to $10 beginning in May, according to the bank’s announcement distributed by PR Newswire. Those later changes were separate from the pandemic fee-relief program at issue in the lawsuit.
The CFPB’s combined reported bank overdraft and NSF fee revenue was $5.83 billion in 2023, down 51%—or $6.13 billion—from 2019, and 24% from 2022. That industry-wide measure does not establish what Bank of America promised customers in this case.
No ruling has yet been issued in the appeal, and it remains unclear whether the Ninth Circuit will ultimately decertify the classes or allow the case to proceed in its current form. For now, the panel's pointed questions this week leave the fate of the lawsuit — and the fee-relief claims of California and New Jersey account holders — in limbo.
