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Floyd v. Bank of America Corp.

Court of Appeals of Columbia District

July 11, 2013

Robin Floyd, et al., Appellants,
v.
Bank of America Corporation, et al., Appellees.

Argued March 12, 2013

Appeal from the Superior Court of the District of Columbia (CAB-8011-11) (Hon. Laura A. Cordero, Trial Judge)

Joseph A. Hennessey for appellants.

Michael B. Miller, with whom Mark P. Ladner, Jessica Kaufman, and Ana-Maria Ignat were on the brief, for appellees.

Before Thompson and Beckwith, Associate Judges, and Farrell, Senior Judge.

Thompson, Associate Judge:

Appellants, Robin Floyd and Priscilla Fuller, appeal from the judgment of the Superior Court dismissing, for lack of standing, the action they brought pursuant to the District of Columbia Consumer Protection Procedures Act (the "CPPA").[1] Although we conclude that the allegations of appellants' Amended Complaint (the "Complaint") satisfied the concrete-injury-in-fact requirement of standing, we affirm the judgment of dismissal on the ground that the Complaint failed to state a claim upon which relief could be granted.[2]

I. Background

Appellants are customers of Bank of America, N.A. (the "Bank"), who named, as defendants in their CPPA suit, the Bank, its holding company (Bank of America Corporation), and a number of the Bank's or holding company's non-bank subsidiaries[3] (together, the "appellees" or the "Bank appellees"). The Complaint centers on the allegation that the Bank furnishes its customers with what looks like a "U.S. [customer service] telephone number" (i.e., a "ten-digit, U.S.-exchange, domestic telephone number"), which, when dialed, sometimes results in the customer's connection to a call center physically located outside the United States (in Mumbai, India, for example). The Complaint avers that when such an overseas connection occurs, the foreign-call-center representative receives an electronic transmission of the customer's digitized financial records and passwords, "so that [the] overseas personnel can service [customers'] inquiries and questions." The Complaint alleges that such telephonic communications and electronic data transmissions are exposed to surveillance, interception, or seizure by the U.S. government, because "the Executive Branch of the U.S. Government is of the view that it has unhindered authority to gather overseas intelligence" and "has established scores of listening posts throughout the world for the purpose of intercepting electronic signals being transmitted overseas, " and because "foreign companies cannot invoke the protections of U.S. law . . . against Government intrusion into the [electronic data] of Bank of America's U.S. consumers."[4]

The Complaint further asserts that, "[g]enerally speaking, when a resident of the United States makes use of the international telephone exchange to place a telephone call to a foreign national overseas, that U.S. resident must dial '011' . . ., a country code, [and] a city code, " thereby "purposefully availing himself of . . . an overseas communication system." By contrast, the Complaint asserts, when a person dials a U.S. telephone number like the Bank's ten-digit customer-service number, she "has a reasonable expectation that the person to whom [she] will be connected also resides in the United States" and "a reasonable expectation that [her] . . . telecommunications, electronic passwords, and financial records will be kept secure from intrusion by the United States Government." According to the Complaint, customers dialing the customer-service telephone number "are not affirmatively notified that their [electronic data] have been transferred to a foreign national residing overseas" or that the routing of their data overseas "will affect a forfeiture of consumer rights under the laws of the United States."

Describing their own interest in the matters described above, appellants asserted in the Complaint that:

[Each of them], after dialing a U.S. telephone number to reach Bank of America, has been connected to a foreign national residing overseas. [Each] Plaintiff . . . has had at least one discussion with a customer service representative acting as an agent for Bank of America — a customer service representative who resides overseas. This customer service representative had access to Plaintiff['s] . . . financial records. Plaintiff . . . never provided her consent to having her [electronic data] transferred to a foreign national residing overseas and was never informed that by communicating with such foreign nationals overseas, she would forfeit all the U.S. law protection that protected her [electronic data] from intrusion by the Government.

The Bank appellees moved to dismiss the Complaint for lack of subject matter jurisdiction, arguing that appellants alleged no concrete injury and therefore lacked standing to maintain their suit. Alternatively, appellees sought dismissal on the ground that the Complaint failed to state a claim under the CPPA. The Superior Court dismissed the Complaint for lack of standing, concluding that appellants "have not sufficiently alleged an actual or imminent injury that is neither conjectural nor hypothetical" and ...


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