Judge Trims Bank of America Class Action

     SAN FRANCISCO (CN) – A federal judge tossed out parts of a class action by customers who claim Bank of America charges for “Privacy Assist” services without informing them, and refuses to refund the money when they catch on.
     The class claims Bank of America has been withdrawing $8.99 from their accounts every month for “Privacy Assist,” which includes credit monitoring and free access to online credit reports.
     Privacy Assist Premier offers identity theft insurance for $12.99 a month, and Privacy Assist Complete includes anti-virus software for $18.99.
     Some plaintiffs say they have overdrawn on their bank accounts because of these automatic withdrawals, also known as “electronic funds transfers.”
     The complaint was dismissed and later amended to add three plaintiffs and remove the initial lead plaintiff. Bank of America moved to dismiss the third amended complaint.
     U.S. District Judge Joseph Spero partly granted the bank’s motion in an order last week, finding that two of the three plaintiffs could not relitigate certain claims.
     Unless the plaintiffs bring new or different evidence, the judge found they could not sue the bank for unjust enrichment, conversion, or violations of the Electronic Funds Transfer Act because they consented to Privacy Assist.
     The judge found the same two plaintiffs, Patricia VanHorn and Patrick Mulcahy, failed to state a claim for unfair competition because their allegations are based on lack of consent.
     However, part of plaintiff Richard Albaugh’s claims can stand because he sufficiently stated claims for state law violations.
     Albaugh, unlike the other plaintiffs, has standing to pursue a claim under California’s Legal Remedies Act because he alleges that the Bank refused to refund the fees for Privacy Assist and received overdraft charges, the judge found.
     The part of Albaugh’s unfair competition claim based on fraud was dismissed with leave to amend.
     Judge Spero declined to dismiss the claims against FIA Card Services, because the amended complaint sufficiently states that the company placed fraudulent charges to Albaugh’s FIA account.

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